DESCRIPTION.

one. Kahn v. Central Sm. Co., 102 U. S. 641; Bissell v. Foss, 114 U. S. 252; Skillman v. Lachman, 23 Cal. 198; Duryea v. Burt, 28 Cal. 569; Charles v. Eshleman, 5 Colo. 107; Manville v. Parks, 7 Colo. 128; 2 Pac. Rep. 212; 15 Mor. Min. Rep. 565; Meagher v. Reed, 24 Pac. Rep. 681; Lamar v. Hale, 79 Va. 147; Crawshaw v. Maule, 1 Swanst. 495; Fereday v. Wightwick, 1 Russ. & M. 45; Williams v. Attenborough, 1 Turn. & R. 70; Dickinson v. Valpy, 10 B. & C. 128; Rock on Mines, 574.

25. Tenants in common who unite to work a mining claim are for this purpose partners and may bind each other as such. Charles v. Eshleman, 5 Colo. 107; Manville v. Parks, 7 Colo. 128; 2 Pac. Rep. 212; 15 Mor. Min. Rep. 565; Skillman v. Lachman, 23 Cal. 198; Duryea v. Burt, 28 Cal. 569; Dougherty v. Creary, 30 Cal. 300; Settembre v. Putnam, 30 Cal. 493; Higgins v. Armstrong, 10 Pac. Rep. 232.

26. The owner of the majority interest may direct the working of a mining claim, but the owner of the minority interest may compel an accounting (Idaho). Hawkins v. Spokane Hydraulic M. Co., 28 Pac. Rep. 433; 33 Pac. Rep. 40.

27. One tenant in common of a mining claim may not work the claim, and thereby charge his co-tenant with a share of the expense. Brunswick v. Winter's Heirs, 5 Pac. Rep. 706; Rico Reduction & M. Co. v. Musgrave, 23 Pac. Rep. 458; Stuart v. Adams, 26 Pac. Rep. 970.

28. The interests of co-owners are subject to a lien for work done at the instance of one

owner who is working the mining claim for

all. Hurd v. Tompkins, 30 Pac. Rep. 247.

29. Tenants in common may be partners for the purpose of working the claim; but are not necessarily such for the purpose of selling the claim, and one has no concern in what another receives for his share. Harris v. Lloyd, 11 Mont. 390; 28 Pac. Rep. 736.

30. Co-tenants of a mining claim are partners for the purpose of working the claim, but may sell their interests to any one else, whereupon the grantee would become partFirst National Bank v. Bissell, 4 Fed.

ner.

Rep. 694.

260 and 284.)

1. If the record of the location certificate

contains some description of the claim by reference to natural objects or permanent monuments, the sufficiency of such description should be left to the jury Taylor v. Middleton, 67 Cal. 656; 8 Pac. Rep. 594; 15 Mor. Min. Rep. 284; Russell v. Chumasero, 4 Mont. 309; 1 Pac. Rep. 713; 15 Mor. Min. Rep. 508; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153. (See, also, 130 U. S. 291.) Flavin v. Mattingly, 8 Mont. 242; 19 Pac. Rep. 384; O'Donnell v. Glenn, 8 Mont. 248; 19 Pac. Rep. 302; Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404. (See, also, 5 Mont. 600; 6 Pac. Rep. 66.) Gamer v. Glenn, & Mont. 371; 20 Pac. Rep. 654; Dillon v. Bayliss, 27 Pac. Rep. 725; Seider v. Lafave, 4 New Mex. 369; 20 Pac. Rep. 789; Seider v. Maxfield, 4 New Mex. 374; 20 Pac. Rep. 794. (Discussing the point and overruling Baxter Mtn. G. M. Co. v. Patterson, 3 New Mex. 179; 3 Pac. Rep. 741; 3 West Coast Rep. 77.)

2. A location certificate is inadmissible in

evidence when it is obvious from a reading

thereof that there could be no certain description therein of the claim located. Darger v. Le Sieur, 30 Pac. Rep. 363.

3. A description of a placer claim in the recorded notice of location, giving the names of the claim and of adjoining claims, the size and its situation in a certain canyon, was held to be sufficient. Grady v. Early, 18 Cal. 108; 12 Mor. Min. Rep. 104.

4. A notice of location was held sufficient which described the claim as "cominencing at a young black oak tree, about 400 feet northerly of an old cross-cut or drift, in the ravine; thence running southeasterly 1500 feet, to a black oak tree near a small ravine on the north side of turnback creek." Carter v. Bacigalupi, 23 Pac. Rep. 361.

5. A tree, if sufficiently described, may constitute a monument, reference to which may fix the position of the claim. Quimby v. Boyd, 8 Colo. 194; 6 Pac. Rep. 462.

6. A bearing from a point on a claim to two mountain peaks will be held sufficient as fixing the locus of the claim by reference to natural objects, in the absence of any con

trary showing. Craig v. Thompson, 10 Colo. 517; 16 Pac. Rep. 24.

7. Stakes or stones may be regarded as permanent monuments, reference to which will fix the position of the claim. A claim may be sufficiently described, also, by reference to neighboring claims. Russell v. Chumeraso, 4 Mont. 309; 1 Pac. Rep. 713; 15 Mor. Min. Rep. 508.

8. A location certificate describing the claim as being west of and adjoining the Gambetta claim, and describing the claim located by metes and bounds, is sufficient, prima facie. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66.

9. A location notice describing a claim as being fifteen hundred feet by six hundred feet from the discovery stake, and "about 1500 feet south of Vaughn's Little Jennie Mine," held to be sufficient in the matter of description. Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153. See, also, 130 U. S. 291.

10. A description of the claim in the location certificate by reference to blazed trees, rock monument or a discovery shaft, may be sufficient. Hansen v. Fletcher, 10 Utah, 266; 37 Pac. Rep. 480.

11. A location record which describes the claim as bounded by four other claims and marked by monuments at the corners is prima facie sufficient in the matter of description. Southern Cross G. & S. M. Co. v. Europa M. Co., 15 Nev. 383; 9 Mor. Min. Rep. 513.

12. A claim was described in the notice of location as follows: "Beginning at the westerly end of the Gilpin Mining Company's property, on the Williams Lode, in Lake Gulch Mining District; runs thence in a westerly direction a distance of fifty feet to the easterly end of Packard and Updegraph's property on said lode." This description was held to be insufficient, and the location certificate inadmissible in evidence, though the other claims mentioned were patented ones. Gilpin County M. Co. v. Drake, 8 Col. 586; 9 Pac. Rep. 787.

13. In the description of the boundaries in a conveyance, monuments designated as the corners of the tract conveyed will prevail over designated measurements, and parol evidence is admissible for the purpose of pointing out these monuments and showing the identity

of the land conveyed with that upon which trespass was committed. Stinchfield v. Gillis, 107 Cal. 84; 40 Pac. Rep. 98; S. C., 96 Cal. 33; 30 Pac. Rep. 839.

14. A location certificate which described the claim as running a certain number of feet southeast from the discovery shaft and a certain number northwest, and as being situate fifteen hundred feet north of the

Hawkeye Lode, was held insufficient in the matter of description and inadmissible in evidence. Drummond v. Long, 9 Colo. 538; 13 Pac. Rep. 543; 15 Mor. Min. Rep. 510.

15. A location certificate describing the claim only by reference to neighboring claims is insufficient, and not receivable in evidence. Baxter Mtn. G. M. Co. v. Patterson, 3 New Mex. 179; 3 Pac. Rep. 741; 3 West Coast Rep. 77. (Overruled in Seider v. Maxfield, 4 New Mex. 374; 20 Pac. Rep. 794.)

16. A location notice should contain a description of the ground located, and the same should be marked on the ground. Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 645.

17. A location notice need only give fairly and reasonably a description of the claim to guide subsequent locators. Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439; 9 Mor. Min. Rep. 616.

18. An erroneous description of the legal subdivisions by which a placer claim is located, in the location certificate, will not invalidate the location where the abutting legal subdivisions are correctly described therein. Cullacott v. Cash G. & S. M. Co., 8 Colo. 179; 6 Pac. Rep. 211; 15 Mor. Min. Rep. 392; Duryea v. Boucher, 67 Cal. 141: 7 Pac. Rep. 421.

19. A patent is not conclusive as to the correct boundaries andas to the locus of the claim, but may be shown to be erroneous in the matter of the description. Bell v. Skillicorn, 28 Pac. Rep. 768.

20. The judgment on an adverse suit should describe the land as described by the verdict. Bushnell v. Crooke M. & Sm. Co., 11 Colo.

247; 21 Pac. Rep. 931.

EVIDENCE.

1. Abandonment — Forfeiture. 2. Adverse.

3. Burden of Proof.

1. Proof of a legal location of a mining claim and of possession thereof is proof of such a title as may be overthrown only by proof of forfeiture of the claim by failure to make the required annual expenditure thereon. Hammer v. Garfield M. & M. Co., 130 U. S. 291; Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040; Oreamuno v. Uncle Sam G. & S. M. Co., 1 Nev. 215; 1 Mor. Min. Rep. 32; McNeil v. Pace, 3 L. D. 267.

2. Where a legal location is proved, the burden of proving forfeiture thereof is upon the one claiming under an adverse relocation. Hammer v. Garfield M. & M. Co., 130 U. S. 291; Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040.

3. Forfeiture must be specially pleaded to render evidence thereof admissible. Hammer v. Garfield M. & M. Co., 130 U. S. 291; Morenhaut v. Wilson, 52 Cal. 263; 1 Mor. Min. Rep. 53; Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040; Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345; Wulff v. Manuel, 9 Mont. 279; 23 Pac. Rep. 723; Mattingly v. Lewisohn, 35 Pac. Rep. 111; Bishop v. Baisley, 41 Pac. Rep. 936.

4. Forfeiture of a mining claim under the mining laws must be specially pleaded, and cannot be shown under the general issue. Morenhaut v. Wilson, 52 Cal. 263; 1 Mor. Min. Rep. 53.

5. The defendant in an ejectment suit involving a mining claim may prove plaintiff's title to have been lost by abandonment of the claim under a general denial of plaintiff's title. Bell v. Brown, 22 Cal. 671; 5 Mor. Min. Rep. 240.

6. Proof of the abandonment of a mining claim by a defendant may be given by plaint

iff in ejectment therefor without a special plea, where the defendant pleads, and relies on as a defense to the action, a location prior to that of plaintiff. Trevaskis v. Peard, 44 Pac. Rep. 246 (Cal.).

7. Abandonment need not be specially pleaded in order to allow proof thereof. Bell v. Bed Rock T. & M. Co., 36 Cal. 214; 1 Mor. Min. Rep. 45.

8. Where defendant in an adverse suit relies upon a relocation of plaintiff's claim after forfeiture thereof, he is not obliged to plead such forfeiture specially. Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292.

9. The burden of clearly proving forfeiture of a mining claim is upon one who bases his claim thereon. Hammer v. Garfield M. & M. Co., 130 U. S. 291; Johnson v. Young, 18 Colo. 625; 34 Pac. Rep. 173; Oreamuno v. Uncle Sam G. & S. M. Co., 1 Nev. 215; 1 Mor. Min. Rep. 32; Coleman v. Curtis, 12 Mont. 301; 30 Pac. Rep. 266; McNeil v. Pace, 3 L. D. 267.

10. Although the burden of proving forfeiture is upon one relying upon the same, he has made out a prima facie case by showing no work to have been done on the claim, and if the party denying the forfeiture relies on work done outside of the claim, it devolves upon him to show such work to have been done for the benefit of the claim. Hall v. Kearney, 18 Colo. 505; 33 Pac. Rep. 373.

11. The question of abandonment is one of intention. The intention to abandon is not conclusively disproven by the statement of the owner, but the question is to be decided upon a consideration of all the facts in the case. Myers v. Spooner, 55 Cal. 257; 9 Mor. Min. Rep. 519.

12. Continuous possession and performance of annual assessment work are sufficient to disprove a charge of abandonment. Souter v. Maguire, 78 Cal. 543; 21 Pac. Rep. 183.

13. One claiming by relocation must first introduce evidence going to show abandonment before he will be allowed to prove relocation. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329.

14. Upon the issue of forfeiture of a mining claim, the conduct and interest of those who claim by relocation after such alleged forfeiture may be considered in weighing the testimony. Doherty v. Morris, 17 Colo. 105; 28 Pac. Rep. 85.

16. Where, in the location certificate of a mining claim of which entry has been made, it is stated that the location is upon an abandoned claim, the entryman is not required to furnish evidence of such abandonment, as the owner of the claim alleged to be abandoned loses his rights by failure to file an adverse claim. Manhattan & San Juan S. M. Co., 2 L. D. 698.

2. Adverse.

(See ADVERSE, p. 297.)

17. An adverse complaint must allege a location to have been made in accordance with mthing district rules, and proof of compliance with them must be made. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.) Sullivan v. Hense, 2 Colo. 424; 9 Mor. Min. Rep. 487; Cons. Republican Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490.

18. In an adverse suit, even if the plaintiff offers no testimony, the defendant is not entitled to a judgment unless he affirmatively proves his title. Becker v. Pugh, 17 Colo. 243; 29 Pac. Rep. 173. (First trial, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304.)

19. In an adverse suit each party must prove his title, and if no proof is submitted the suit will simply be dismissed without judgment. Bay State S. M. Co. v. Brown, 10 Sawy. 243.

20. In an adverse suit each party must prove his right to a patent by a compliance with the statutes, State and Federal, and with miners' rules and regulations in force relative to location (not a mere occupancy), in order to recover a judgment for the ground in controversy. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.) Bryan v. McCaig, 10 Colo. 309; 15 Pac. Rep.

413.

21. A plaintiff in a suit based upon an adverse claim must show possessory title to the premises, not only as against the defendant, but against the United States. Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

22. One party to an adverse suit may show the location of the other to be invalid because based upon a discovery made within a prior subsisting location, without connecting himself with such prior location. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.) Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362.

23. In ejectment for a mining claim, where it appears that the discovery shafts of both parties are identical, evidence that the discoveries were made on lands patented prior to the dates of discovery of either party should be admitted, and if the fact is found neither party can recover. Moyle v. Bullene, 44 Pac. Rep. 69 (Colo.).

24. An adverse claimant may show the abandonment of any one of several locations embraced in an application. Good Return M. Co., 4 L. D. 221.

26. In an action for the possession of a mining claim, a party relying upon a forfeiture by his adversary must specially plead such forfeiture; and the facts constituting the same must be alleged and proven upon the trial. Wulff v. Manuel, 9 Mont. 279; 23 Pac. Rep. 723.

27. One who bases his title upon the forfeiture of the claim of another has the burden of clearly establishing such forfeiture. Hammer v. Garfield M. & M. Co., 130 U. S. 291; S. C., 6 Mont. 53; 8 Pac. Rep. 153; Bishop v. Baisley, 41 Pac. Rep. 936.

muno v. Uncle Sam G. & S. M. Co., 1 Nev. 215; 1 Mor. Min. Rep. 32.

29. Although the burden of proving forfeiture is upon one relying upon the same, he has made out a prima facie case by showing no work to have been done on the claim, and if the party denying the forfeiture relies on work done outside of the claim, it devolves upon him to show such work to have been done for the benefit of the claim. Hall v. Kearney, 18 Colo. 505; 33 Pac. Rep. 373.

30. The burden of proof is on one attacking the return of lands by the United States Surveyor General. Nita v. State of Wisconsin, 9 L. D. 385.

31. The burden of proof is upon one attacking the prima facie agricultural character of the land. Savage v. Boynton, 12 L. D.

612.

32. Land was returned as non-mineral in character, and was entered (by cash entry) as such. Subsequently the surveys were suspended. A hearing was ordered on a contest by a mineral contestant to determine the character of the land at the date of the cash entry. Before trial a new public survey was approved, returning the land as mineral in character. Held, that the burden of proof was upon the agricultural claimant to show the land not to have been known to be mineral at date of his entry. Aspen Cons. M. Co. v. Williams, 23 L. D. 34. (Following case of

36. Where land is returned as mineral, the burden of proof is upon the agricultural claimant to prove that it is more valuable for agriculture than for mineral. Cutting v. Reininghaus, 7 L. D. 265.

37. The fact that land has been located as a mining claim is not, in itself, proof of the mineral character of the land, especially where the burden of proof is upon the mineral claimant. Etling v. Potter, 17 L. D. 424. 38. The report of a United States Deputy Mineral Surveyor who examines a placer mining claim in his official capacity, which shows the land to be mineral in character, overcomes the slight presumption raised by its return by the United States Surveyor General as agricultural in character, and places the burden of proof upon one alleging its non-mineral character. State of Washington v. McBride, 18 L. D. 199.

39. Where land returned as agricultural in character has been embraced in a prima facie valid mineral application, the slight presumption raised by the return of the United States Surveyor General is overcome, and the burden of proof is on one alleging its agricultural character. N. P. R. R. Co. v. Marshall, 17 L. D. 545.

33. Where land is returned as mineral in character by the United States Surveyor General, and is entered by a homestead claimant who files his non-mineral affidavit, an affidavit of a mineral claimant alleging its mineral character will offset the agricultural claimant's non-mineral affidavit, and place the burden of proving the non-mineral character upon him. Dickinson v. Capen, 14 L. D. 426.

34. Where land returned as mineral is decided upon a hearing had to be non-mineral, the burden thereafter is upon one alleging its mineral character to show it as a present fact. Kane v. Devine, 7 L. D. 532.

35. Where land is returned as mineral, the burden is upon an agricultural claimant to show that it is non-mineral, but he is not bound to prove it to be valuable for agriculture. Mulligan v. Hansen, 10 L. D. 311.

41. The burden of proof is upon one attacking the validity of a regularly allowed mineral entry. Tangerman v. Aurora Hill M. Co., 9 L. D. 538.

42. The allowance of a mineral entry on land returned by the United States Surveyor General as agricultural overcomes the presumption raised by such return, and the burden of proof is thereafter upon one alleging the non-mineral character of the land. Walton v. Batten, 14 L. D. 54.

43. Where a mineral entry has been allowed on satisfactory evidence of compliance with the law, the burden is upon a contestant to show non-compliance. Hargrove v. Robertson, 15 L. D. 499.

44. A contestant against a pre-emption entry who alleges the land to have been known to be mineral at date of pre-emption entry has the burden of proving that it was more valuable for mining than for agricult