were with the original locator.3 As has already been noticed, the resumption of work at any time prior to the completion of the relocation may rehabilitate the owner of the claim with all the rights lost by his previous failure. And this resumption may take place at any time after the lapse of successive years in which such failure has occurred, with like effect as though the claimant had failed for but a single year, provided the claim was not abandoned.5

5 It has been held in substance that one cannot enter to relocate while the original locator, who has failed to perform the necessary labor is in possession. Bradley vs. Lee, 38 Cal. 362.

$ 32. Relocation of claims forfeited to co-owners.-It has been decided that one of several co-owners of a mine, upon which there has been a failure to perform the amount of labor required by district rules, might treat it as abandoned property and relocate it in the name of himself and others, and thus appropriate the interest of a coowner who failed to contribute.1 The authority of this case is questionable even under district rules that did not render the failure to perform labor ipso facto an abandonment of the claim. There is no doubt that it would be inapplicable under the law of Congress governing the question of forfeiture and prescribing the method by which it might be taken advantage of by co-owners.2 That provides that for failure to contribute his proportion of the expenditures, he will be subject to the process which is popularly known as advertising out." That is by notice served personally or by publication, and the expiration of ninety days after such service is complete, and a continued failure to respond, his interest is divested

66

1

and passes to his co-owners who have made the required
expenditure.

1 Strong vs. Ryan, 46 Cal. 36.

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

§ 33. Abandonment.-This is quite a different mat-
ter from forfeiture. It is true that the rights of the
owner of an unpatented claim may be forfeited by
abandonment, or failure to work, may be evidence of
abandonment;1 but forfeiture for failure to work may
be either voluntary or involuntary, and may be cured by
resuming work at any time before adverse rights are
acquired;2 while abandonment must always be voluntary
and utterly extinguishes all right as soon as it occurs,
leaving the original owner on the same footing, with
respect to that claim, as any stranger.3 Abandonment
may take place within the year for which the labor is
due, and even after the year's labor is performed. The
intention is a mixed question of law and fact. Failure
to pay assessments is not conclusive, unless made so by
statute or some district rule in force at the time; but if
the failure to pay assessments or perform work was in
pursuance of an intention to abandon the claim it will
suffice to prove abandonment.5 The statement of the
party himself may be introduced in his own behalf as
part of the res gestæ, to disprove that he had abandoned
the claim.6 Leaving tools upon the ground is also
evidence of an intention to return;7 absence and nonuser
for any time short of the statute of limitations, does not
show abandonment;8 but connected with other circum-
stances may have that tendency;9 so, a gift of the claim
to another, by leaving it with the intention that the
donee take possession, which he does, instead of tending
to prove abandonment, proves the contrary,10 Evidence
of an offer to purchase and a refusal on the part of plain-

tiff to sell, was held as tending to disprove his abandonment of the claim.11 The judgment roll in a former case, in which plaintiff successfully sued another party for possession, is competent to rebut evidence of prior abandonment.12 A second location on the same ground is not necessarily an abandonment of the first location.13 The burden of proof rests with the party relying on an abandonment as a basis of title or right.14 But it may be shown by defendant, under a denial by defendant of plaintiff's title, without being specially pleaded.15 In this respect it differs from a forfeiture. By the latter the rights of the locator are not absolutely lost, but only subject to appropriation by another, and must be specially pleaded, while by the former there is nothing further required to divest the rights of a party who has abandoned.16 Of course the doctrine of abandonment only applies to claims held by possessory right, and not to those where the legal title is vested in the claimant.17 The relocation of abandoned claims is governed by substantially the same rules that govern any original location.18

1 Depuy vs. Williams, 26 Cal. 309; Oreamuno vs. Uncle Sam, &c. Co., 1 Nev. 215.

2 Supra, § 30.

3 Welll vs. Lucerne M. Co., 11 Nev. 215; St. John vs. Kidd, 26 Cal. 263; Mallett vs. Uncle Sam M. Co., 1 Nev. 194; Waring vs. Crow, 11 Cal. 366; Davis vs. Butler, 6 Cal. 510; Davis vs. Gale, 32 Cal. 26; Morenhaut vs. Wilson, 52 Cal. 263; Lechler vs. Chapman, 12 Nev. 66; Derry vs. Ross, 1 Col. Law Rep. 243. (Sup. Ct. Col., Dec. term 1880.)

4 Merley vs. Ennis, 2 Col. 300.

5 Oreamuno vs. Uncle Sam, &c. Co., 1 Nev. 215; Strong vs. Ryan, 46 Cal. 33; McGarrity vs. Byington, 12 Cal. 431.

6 Noble vs. Sylvester, 42 Vt. 146; but his testimony as to his intention is not conclusive. Meyers vs. Spooner, 55 Cal. 257.

7 Harkness vs. Barton, 39 Iowa, 101; Morenhaut vs. Wilson, supra.

8 Davis vs Butler, 6 Cal. 510; Mallett vs. Uncle Sam, &c. M. Co., 1 Nev. 188.

9 Davis vs. Gale, 32 Cal. 26.

10 Richardson vs. McNulty, 24 Cal. 339. (But see Merley vs. Ennis, 2 Col. 300.)

11 Bell vs. Bed Rock Co., 33 Cal. 214.

12 Richardson vs. McNulty, 24 Cal. 339.

13 Weill vs. Lucerne M. Co., 11 Nev., 201.

14 Oreamuno vs. Uncle Sam, &c. Co., supra.

15 Bell vs. Bed Rock Co., 36 Cal. 214; Morenhaut vs. Wilson, 52 Cal. 263.

16 Morenhaut vs. Wilson, supra. 108.

17 Ferris vs. Coover, 10 Cal. 589.

Atkins vs. Hendree, 1 Idaho,

18 Murley vs. Ennis, 2 Col. 300; Golden Fleece Co. vs. Cable Con. Co. 12 Nev. 312.

$34. Surface rights acquired by location.-It is not understood that any title to the mining property is acquired by location, as against the Government of the United States. The locators have merely a present right of exclusive possession and a preference-right of entry, and purchase.1 Still these rights, such as they are, are characterized as vested rights,2 and the right to an unpatented claim is not divested by a patent for agricultural land including the mineral claim.3 His right to the surface within his boundaries is exclusive in its possessory character, and even before the enactment of the statute, by which he was allowed all side veins on the ground located, no one could enter upon his claim for the purpose of prospecting for such supposed veins. They were required to be discovered outside, before they could be followed within the boundaries of the claim regularly located. Since the act of May 10, 1872,5 the exclusive right to the surface includes the right to possess and enjoy all veins, lodes and ledges throughout their entire depth, etc., which lie inside of such surface lines; and this provision applies as well to all prior locations where no

verse claim existed at the date of the passage of the act, as to subsequent locations. Although the claim taken is on a lode, or vein, the locator does not thereby relinquish his exclusive right to any valuable loose quartz or other rock he may find on the surface. The surface rights of the locator under the present law are strictly confined to his boundary lines, and he cannot change these, so as to conflict with other rights, in order to correct any mistakes or oversights as to the true direction of his vein. If he has through mistake located his claim across the vein instead of along it, he cannot make a valid relocation so as to disturb the rights of subsequent locators on the same vein, or whose surface boundaries may include it.7 But it will be presumed to be on the vein till the contrary appears.8

1 Gore vs. McBrayer, 18 Cal. 583.

2 Post, Ch. xiii. RIGHTS AND REMEDIES; Derry vs. Ross, 1 Col. Law Rep. 243.

3 Gold Hill Q. M. Co. vs. Ish, 5 Oreg. 104.

4 Atkins vs. Hendree, 1 Idaho, 108.

5 Rev. Stat. U. S. § 2322; ante, p. 14.

6 Brown vs. '49 and '56 M. Co., 15 Cal. 153.

7 Golden Fleece Co. vs. Cable Con. Co., 12 Nev. 329; Wolfly vs. Lebanon M. Co., 4 Col. 112.

8 Patterson vs. Hitchcock, 3 Col. 538; see post, Ch. xiii. MINERS' RIGHTS AND REMEDIES.

§ 35. Right to side veins.-One of the rights guaranteed by the act of Congress,1 which could not be claimed before by virtue of location, is a right to "all veins, lodes, and ledges, throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically," etc. However this provision as it affects "cross veins " may be modified by a subsequent section of the same statute,2 it still holds good as to side veins, whether discovered above or below the surface. These additional or subsequently discovered veins, if