53

LODE CLAIMS.

applied to that case.3 But where labor was allowed to be done outside of the district, it was held that it should have some direct application to the claim.4 Where the rules required two days' labor out of every ten, it was held that labor expended in trying to get machinery on the claim, should, by fair intendment, be considered as work done on the claim.5 By the amendment to Section 2324 of the Revised Statutes 6 owners of claims are permitted to perform the necessary labor by tunnels run for purposes of development. Where labor is to be performed within one year, in the absence of any time fixed for the commencement of the year, it has generally been understood as a year from the date of location, and there could be no forfeiture for failure until after that time had expired.7 By the district rules the amount of labor was, I believe, generally fixed according to value, and in some districts the value of a certain amount of labor was arbitrarily fixed by rule; a rule requiring two days' labor in one year, was found to be the only labor requirement in one case.8 By the act of May 10, 1872, the year for annual labor on claims thereafter located necessarily commenced with the date of location, and the work done under the local law, such as sinking a discovery shaft, etc., was counted as a portion of the first year's labor. But by the amendment of January 22, 1880,9 the commencement of the year for claims subsequently located was fixed as the first day of January after the date of location. This excludes from consideration as part of the first year's work, that which was done for the purpose of completing the location. The proviso that this section shall apply to all claims located since the tenth day of May, 1872, is likely to lead to (1) some confusion. It is capable of two constructions. A retroactive construction, by which the work on prior locations done, according to the law as it then existed, in the year 1879, for the year ending with the anniver

sary of the date of location, sometime in 1880, would be rendered ineffectual, and an additional $100 worth of labor be required prior to the first day of January, 1881; and by which claims so located upon which the annual labor had not been performed during the calendar year 1879, would be immediately subject to re-location on the passage of the act. (2) A prospective construction, by which the new law would only take effect as to claims already located with the beginning of the next calendar year after the passage of the act. The former construction would necessarily be based upon the conclusion that Congress intended to impose new obligations as a condition to the continued enjoyment of vested rights. The latter would be based upon the presumption that the object of the statute was merely to render these annual labor periods uniform, even though the owners of some of the previously located claims thereby were exempted from the duty of performing labor for a portion of one year. The latter construction, it is believed, is at least equally as reasonable as the former, and therefore, in the absence of a contrary judicial construction of this amendment to the statute, will be taken here as the correct one. "Words in a statute ought not to have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot otherwise be satisfied. This rule ought especially to be adhered to when such a construction will alter the pre-existing situation of the parties, or will affect their antecedent rights, services or remuneration."10 To give the statute a retrospective construction would be to deprive persons of property, "without due process of law," which would bring it in conflict with the constitution of the United States,11 and render it inapplicable to claims already located, and thus defeat the manifest intention of Congress. However legitimate

may have been the fixing of the value of labor by district rules, so long as this requirement was one of purely local regulation, the force of any such rules or customs is entirely destroyed by the statute which fixes the value of the labor to be performed. What amount of labor on a claim would be worth one hundred dollars is a question of fact to be determined by evidence, and will be found to vary in different localities. A party is not required to perform annual labor after application for patent and payment for the land, for the reason that such payment gives him a vested right to the patent, which, when issued. relates back to the time when payment was made.12

1 Rev. Stat. U. S. § 2324; ante, p. 15.

2 King vs. Edwards, 1 Mont. 235.

3 Ibid.

4 McGarrity vs. Byington, 12 Cal. 427.

5 Packer vs. Heaton, 9 Cal. 569; see English vs. Johnson, 17 Cal. 108.

6 Act of Congress Feb. 11, 1875; ante, p. 17.

7 Atkins vs. Hendree, 1 Idaho 108; Chapman vs. Toy Long, 4 Sawyer, 35.

8 Leet vs. John Dare S. M. Co., 6 Nev. 218.

9 Act of Congress Jan. 22, 1880, § 2; ante, p. 17. § 2324 Rev. Stat. Amendment in brackets, at foot of the section.

10 PATTERSON, J. in U. S. vs. Heth, 3 Cranch, 399, 413; Williamson vs. N. J. S. R. Co., 29 N. J. Eq. 311; Martindale vs. Warner, 15 Pa. St. 471; Starr vs. Pease, 8 Conn. 541; Marsh vs. Chestnut, 14 Ill. 223; Abington vs. Duxbury, 105 Mass. 287; Lucas vs. Tucker, 17 Ind. 41; Knowlton vs. Redenbaugh, 40 Iowa, 114; Davis vs. Administrators, 30 Md. 508; United States vs. Arredondo, 6 Pet. 691; Orr vs. Rhine, 45 Tex., 345; Rogers vs. Greenbush, 58 Me. 395; Le Bois vs. Bramell, 4 How. 449; Wade on Retroactive Laws, § 34, et seq. and cases cited.

11 Amendments, Art. 5.

12 Stark vs. Storrs, 6 Wall. 402; Lessieur vs. Price, 12 How. 74; Gibson vs. Chouteau, 13 Wall. 72.

§ 30. Forfeiture. The circumstances under which mining claims are forfeited are somewhat different from those that ordinarily produce the same result, where pro

prietary rights secured by contract are subject to conditions. Where the forfeiture arises from breach of contract, and the forfeiture is the penalty fixed for the breach, the ordinary rules will apply. But the forfeiture considered here is for failure to perform annual labor or make improvements as provided in the statute, or by local rules.2 The failure to perform labor as required leaves the claim open to relocation, subject to the proviso, that at any time before it is so relocated the original locators, their heirs, assigns or legal representatives may preserve their rights by resuming work. The rules of decision adopted with reference to forfeiture for failure to perform assessment work under the district rules will apply. It was held under these rules that there could be no forfeiture unless the rule requiring the labor provided for forfeiture.3 For the reason that forfeitures are considered odious in law, the statute will be strictly construed against them. The question can only arise between the party from whom the labor was due and some one who has availed himself of the default by relocating the claim before work is resumed. Until this is done no one is in a position to contest the right of the original locator.5 It has been decided in a case at Nisi Prius that after a party had entered for the purpose of relocation after forfeiture, and before he had completed sufficient work to locate the claim, the original locators resumed work, the forfeiture was saved.6 On the other hand, it was decided in another case that the party attempting to take up abandoned property had the same period to complete his relocation as the original locator had. As these cases are reported there is no necessary conflict in the decisions. In the one case it was forfeiture, and in the other abandonment. There is a vast difference between the two. The question of intent does not enter into the question of forfeiture.8 It is the loss of a right previously acquired, by failure to perform

work or make improvements, which is a condition subsequent to the enjoyment of the right.9 In setting up forfeiture of another's rights, as the foundation of adverse rights, it is incumbent upon the pleader to plead the forfeiture specially and state the facts constituting the forfeiture,10 and the burden of proof will be upon him to show affirmatively that the necessary work was not done.11

1 McKnight vs. Kreutz, 51 Pa. St. 232; s. c., 53 Pa. St. 319; Von Schmidt vs. Huntington, 1 Cal. 70; Wiseman vs. McNulty, 25 Cal.

230.

2 Rev. Stat. U. S., § 2324; ante, p. 15.

3 Bell vs. Bed Rock Co., 36 Cal. 214; McGarrity vs. Byington, 12 Cal. 427. But see King vs. Edwards, 1 Mont. 235.

4 Coleman vs. Clements, 23 Cal. 248.

5 Wiseman vs. McNulty, 25 Cal. 230; Brady vs. Lee, 38 Cal. 362.

6 STONE, J., in Graydon vs. Hood, Morrison's Mining Rights (4th ed.), 65.

7 HALLETT, J., in Little Gunnell Co. vs. Kimber; id.

8 Bell vs. Bed Rock Co., 36 Cal. 214: infra § 33, where the two are distinguished.

9 St. John vs. Kidd, 26 Call. 263; King vs. Edwards, 1 Mont 235. 10 Morenhaut vs. Wilson, 52 Cal. 263 (overruling Bell vs. Brown, 22 Cal. 671); Dutch Flat W. Co. vs. Mooney, 12 Cal. 534.

11 Oreamuno vs. Uncle Sam G. & S. M. Co., 1 Nev. 215.

§ 31. Relocation of entire claim forfeited.—In relocating claims forfeited for failure to perform annual labor, the same acts are required as in an original location. The language of the statute1 is: "The claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made," etc. It is a question whether the provision that "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located," 2 would apply so as to require a new discovery of mineral. Certainly all the acts of location must be original with the relocator, as the