Opinion by
Mr. Justice Wolverton.
There is no doubt that the plaintiff and one C. J. Finn made a sufficient and valid location of the White Pigeon Claim, November twenty-fifth, eighteen hundred and ninety-one. This is the finding of both the referee and the court below, and is borne out by the testimony. On October twenty-fourth, eighteen hundred and ninety-two, Finn sold and conveyed his interest in the claim to plaintiff, and thereupon plaintiff became the sole owner thereof. The fact that J. L. Baisley made a sufficient and valid location of the Mabel Claim, and S. B. Baisley of the Queen of the West, on or about the twelfth day of May, eighteen hundred and ninety-two, is also placed beyond dispute by the testimony, provided the lands and premises occupied by them were at that time open for location and occupancy by the public. The Mabel Claim is identical with the White Pigeon for a distance of one thousand two hundred and sixty feet southwestward from its [125] northeast line, and the Queen of the West covers the rest of it. The question then is, which of these parties has the better title to the premises occupied by the White Pigeon Claim? It is claimed by defendants that plaintiff forfeited his claim by not representing it as required by law, — that is to say, by failing to perform work and labor thereon in prospecting and developing it to the amount of one hundred dollars prior to January first, eighteen hundred and ninety-three, and, therefore, that it was open to exploration and location at the time defendants made their location of the Mabel and Queen of the West claims, and consequently their locations were valid, and that their title and right of posession is superior to plaintiff’s. Under the United States statutes governing the location of mines, and the acquirements of patents therefor, the locator has one year from the first day of January succeeding the date of his location in which to perform his first annual work: United States Revised Statutes, § 2324, as amended January twenty-second, eighteen hundred and eighty, (Supplement to Revised Statutes, 276). The plaintiff, therefore, had until January first, eighteen hundred and ninety-three, in which to perform his annual labor upon the White Pigeon. If he failed to perform the required amount of labor prior to the last named date, the claim would thereafter be open for relocation by any person competent under the statute. But if, having failed in performing his annual labor, he resumed and performed work thereafter to the extent required by law, his rights after resumption would have been the same as if no default had occurred: Belk v. Meagher, 104 U. S. 282; Honaker v. Martin, 11 Mont. 91 (27 Pac. 397). But whether, after having resumed, and while in the actual possession, performing labor, and prior to the full per[126] formance of the amount required by law, the claim would be open to relocation, the authorities are divided. See Belcher Consolidated Mining Company v. Deferrari, 62 Cal. 160, and Honaker v. Martin, 11 Mont. 91 (27 Pac. 397). The facts here do' not present such a case. It is, however, plain that if plaintiff had performed one hundred dollars’ worth of work on his claim prior to the date of the alleged location by defendants of their claims, as he insists that he has done, the territory covered by the White Pigeon was not open for relocation, and hence their locations could not be valid. But, aside from the question of work, plaintiff claims: First, that before defendants can avail themselves of a forfeiture, they must plead it; second, that the court erred in allowing defendants to file their amended answer by which they attempt to allege a forfeiture; third, that if the court rightfully allowed the amended answer to be filed, then the forfeiture is insufficiently alleged; and, fourth, that forfeiture was not shown by the testimony. Of these in their order.
1. A mining claim subsequent to a valid location is property in the highest sense of the term. It may be bought and sold, and will pass by descent. It carries with it the “exclusive right of possession and enjoyment of all the surface included within the lines” of. location. The right is a valuable one, and is protected by law. It continues until there shall be a failure to represent the claim; that is, to do the requisite amount of work within the prescribed time. The right of possession" and enjoyment acquired by location is kept alive by the representation prescribed by law, but, when not thus kept alive, the - right is forfeited, and the claim is thereafter open for relocation. In order, therefore, to secure a valid location, it must be [127] established that rights acquired under a prior one upon the same claim have been forfeited. The affirmative of this proposition is always cast upon the party seeking to establish it, and hence, under the rules of pleading, it must be specially pleaded, where opportunity is offered, before a party can be heard to support it with evidence: Renshaw v. Switzer, 6 Mont. 464 (13 Pac. 127); Hammer v. Garfield Mining Company, 130 U. S. 291 (9 Sup. Ct. 548); Belk v. Meagher, 104 U. S. 279; Morenhaut v. Wilson, 52 Cal. 263; Wulff v. Manuel, 9 Mont. 276 (23 Pac. 723); Quigley v. Gillett, 101 Cal. 462 (35 Pac. 1040); Mattingly v. Lewisohn, 13 Mont. 508 (35 Pac. 114). Furthermore, “a forfeiture cannot be established except upon clear and convincing proof of the failure of the former owner to have the work performed, or to have improvements made, to the amount required by law”: Hammer v. Garfield Mining Company, 130 U. S. 291 (9 Sup. Ct. 548).
2. Plaintiff contends that as objection had been interposed to all the evidence offered by defendants to show that plaintiff had not done or performed one hundred dollars’ worth of labor upon the White Pigeon Claim, as required by law, for the purpose of. establishing a forfeiture on the part of the plaintiff, and that as plaintiff had not offered his full evidence in refutation of the claim of forfeiture, all which was shown by affidavit, the court erred in allowing defendants’ motion for leave to file the amended answer. The rule is well established that a party is not entitled to have his pleadings amended to conform to the proof where objection was made to the introduction of evidence to cover which the amendment is desired: Mendenhall v. Harrisburg Water Company, 27 Or. 38 (39 Pac. 399); Beard v. Tilghman, 20 N. Y. Supp. 736. But the [128] court below met this objection by referring the cause back to the referee, with directions to allow the parties to introduce other evidence touching the additional questions raised by the amended pleadings, so that the cause might be tried fully upon its merits. This, we think, was within the sound discretion of the court, and in furtherance of justice. Courts are always solicitous to reach the merits of every cause, and to that end are liberal in allowing amendments. There was no error in allowing the motion.
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Opinion by
Mr. Justice Wolverton.
There is no doubt that the plaintiff and one C. J. Finn made a sufficient and valid location of the White Pigeon Claim, November twenty-fifth, eighteen hundred and ninety-one. This is the finding of both the referee and the court below, and is borne out by the testimony. On October twenty-fourth, eighteen hundred and ninety-two, Finn sold and conveyed his interest in the claim to plaintiff, and thereupon plaintiff became the sole owner thereof. The fact that J. L. Baisley made a sufficient and valid location of the Mabel Claim, and S. B. Baisley of the Queen of the West, on or about the twelfth day of May, eighteen hundred and ninety-two, is also placed beyond dispute by the testimony, provided the lands and premises occupied by them were at that time open for location and occupancy by the public. The Mabel Claim is identical with the White Pigeon for a distance of one thousand two hundred and sixty feet southwestward from its [125] northeast line, and the Queen of the West covers the rest of it. The question then is, which of these parties has the better title to the premises occupied by the White Pigeon Claim? It is claimed by defendants that plaintiff forfeited his claim by not representing it as required by law, — that is to say, by failing to perform work and labor thereon in prospecting and developing it to the amount of one hundred dollars prior to January first, eighteen hundred and ninety-three, and, therefore, that it was open to exploration and location at the time defendants made their location of the Mabel and Queen of the West claims, and consequently their locations were valid, and that their title and right of posession is superior to plaintiff’s. Under the United States statutes governing the location of mines, and the acquirements of patents therefor, the locator has one year from the first day of January succeeding the date of his location in which to perform his first annual work: United States Revised Statutes, § 2324, as amended January twenty-second, eighteen hundred and eighty, (Supplement to Revised Statutes, 276). The plaintiff, therefore, had until January first, eighteen hundred and ninety-three, in which to perform his annual labor upon the White Pigeon. If he failed to perform the required amount of labor prior to the last named date, the claim would thereafter be open for relocation by any person competent under the statute. But if, having failed in performing his annual labor, he resumed and performed work thereafter to the extent required by law, his rights after resumption would have been the same as if no default had occurred: Belk v. Meagher, 104 U. S. 282; Honaker v. Martin, 11 Mont. 91 (27 Pac. 397). But whether, after having resumed, and while in the actual possession, performing labor, and prior to the full per[126] formance of the amount required by law, the claim would be open to relocation, the authorities are divided. See Belcher Consolidated Mining Company v. Deferrari, 62 Cal. 160, and Honaker v. Martin, 11 Mont. 91 (27 Pac. 397). The facts here do' not present such a case. It is, however, plain that if plaintiff had performed one hundred dollars’ worth of work on his claim prior to the date of the alleged location by defendants of their claims, as he insists that he has done, the territory covered by the White Pigeon was not open for relocation, and hence their locations could not be valid. But, aside from the question of work, plaintiff claims: First, that before defendants can avail themselves of a forfeiture, they must plead it; second, that the court erred in allowing defendants to file their amended answer by which they attempt to allege a forfeiture; third, that if the court rightfully allowed the amended answer to be filed, then the forfeiture is insufficiently alleged; and, fourth, that forfeiture was not shown by the testimony. Of these in their order.
1. A mining claim subsequent to a valid location is property in the highest sense of the term. It may be bought and sold, and will pass by descent. It carries with it the “exclusive right of possession and enjoyment of all the surface included within the lines” of. location. The right is a valuable one, and is protected by law. It continues until there shall be a failure to represent the claim; that is, to do the requisite amount of work within the prescribed time. The right of possession" and enjoyment acquired by location is kept alive by the representation prescribed by law, but, when not thus kept alive, the - right is forfeited, and the claim is thereafter open for relocation. In order, therefore, to secure a valid location, it must be [127] established that rights acquired under a prior one upon the same claim have been forfeited. The affirmative of this proposition is always cast upon the party seeking to establish it, and hence, under the rules of pleading, it must be specially pleaded, where opportunity is offered, before a party can be heard to support it with evidence: Renshaw v. Switzer, 6 Mont. 464 (13 Pac. 127); Hammer v. Garfield Mining Company, 130 U. S. 291 (9 Sup. Ct. 548); Belk v. Meagher, 104 U. S. 279; Morenhaut v. Wilson, 52 Cal. 263; Wulff v. Manuel, 9 Mont. 276 (23 Pac. 723); Quigley v. Gillett, 101 Cal. 462 (35 Pac. 1040); Mattingly v. Lewisohn, 13 Mont. 508 (35 Pac. 114). Furthermore, “a forfeiture cannot be established except upon clear and convincing proof of the failure of the former owner to have the work performed, or to have improvements made, to the amount required by law”: Hammer v. Garfield Mining Company, 130 U. S. 291 (9 Sup. Ct. 548).
2. Plaintiff contends that as objection had been interposed to all the evidence offered by defendants to show that plaintiff had not done or performed one hundred dollars’ worth of labor upon the White Pigeon Claim, as required by law, for the purpose of. establishing a forfeiture on the part of the plaintiff, and that as plaintiff had not offered his full evidence in refutation of the claim of forfeiture, all which was shown by affidavit, the court erred in allowing defendants’ motion for leave to file the amended answer. The rule is well established that a party is not entitled to have his pleadings amended to conform to the proof where objection was made to the introduction of evidence to cover which the amendment is desired: Mendenhall v. Harrisburg Water Company, 27 Or. 38 (39 Pac. 399); Beard v. Tilghman, 20 N. Y. Supp. 736. But the [128] court below met this objection by referring the cause back to the referee, with directions to allow the parties to introduce other evidence touching the additional questions raised by the amended pleadings, so that the cause might be tried fully upon its merits. This, we think, was within the sound discretion of the court, and in furtherance of justice. Courts are always solicitous to reach the merits of every cause, and to that end are liberal in allowing amendments. There was no error in allowing the motion.
3. The ground of the next contention is that the amended answer, after stating the facts relied upon as constituting the forfeiture of plaintiff’s claim, fails to state “that thereby the claim was forfeited,” citing Gelston v. Hoyt, 16 U. S. (3 Wheat.), 247. This was a case of seizure of a ship and cargo for a supposed forfeiture, and, under the common-law form of pleading then in use, it was held that, after stating the facts, it was necessary to aver “that thereby the property became and was actually forfeited, and was seized as forfeited.” Under our practice these technical forms of pleading are abolished, and it is now only necessary to set forth the facts constituting the cause of action or defense concisely without unnecessary repetition. Not having been tested by a demurrer, the allegations of forfeiture are sufficient after trial.
4. Has a forfeiture of the White Pigeon Claim by plaintiff been established by the testimony? Numerous witnesses were produced, and testified relative to the labor done upon the claim prior to January first, eighteen hundred and ninety-three, and, while they differed widely as regards the established value of the [129] work observed by them as having been done in the years eighteen hundred and ninety-one and eighteen hundred and ninety-two, they substantially agreed as to its amount and extent. Many years prior to the location of the White Pigeon there had been sunk on the ledge three different shafts. Some witnesses say two, but there were undoubtedly three. The larger one is sometimes called an incline. The shafts ranged from two to eight feet in depth and were of different relative dimensions. The witnesses gathered their information by passing over the claim; some casually, and some for the express purpose of ascertaining what work had been done. They all describe a new cut at the southwest, corner of the claim. Some think it was within the boundary, and others say it was outside, but it is immaterial to this inquiry whether it was within or beyond the boundary. This cut was evidently made with the purpose of tunneling into the hillside, and thereby striking the ledge at some distance under the surface. It was from twenty to twenty-five feet long, three to four feet wide, and, in the face of the cut, .or at its deepest point, four or five feet deep. They testify also to some fresh work that had been done in one of the old shafts. This is as far as they all agree. One of the witnesses, C. M. Foster, in rebuttal, recalled having seen a cut spoken of as a “crosscut” running across the ledge, presumably for the purpose of exposing it. The dimensions of this cut are given by the plaintiff as from eight to ten feet long, probably sixteen inches wide, and about twelve inches deep. A. witness or two relates having seen some small prospect holes, two or three in number, sunk in the earth at a point where the ledge is broken off and lost sight of, probably for the purpose [130] of finding the ledge again. This is a synopsis of all the work observed by the defendants’ witnesses, which had been done in the years eighteen hundred and ninety-one and eighteen hundred and ninety-two, after the date of the location of the White Pigeon. It was comparatively easy to distinguish the new work from that done in sinking the shafts years prior, from the action and indications ” left by the elements upon the exposures made by., the excavations. Many of these witnesses were practical miners, and knew the value of mining labor, and their estimate of the value of the labor thus expended ranged from nine to thirty dollars — none placing it higher than the latter sum.
Of the testimony offered to overcome this showing, that of plaintiff in his own behalf is the strongest, and is practically all that he has offered upon the question, except as he is corroborated by other witnesses. The work on the cut at the southwest corner of the claim was done by Howard, Heffrom, and Ellis, under his directions, for which work he paid Howard ten dollars. Howard describes how it was done, and gives the time expended in doing it. He says he worked two and one half days, four hours counting as a day’s work. Heffrom and Ellis each worked an hour and a half, and Bishop worked the. same time. Bishop testifies that he, himself, put in about twenty days on the claim, one of which is the one and one half hour’s work referred to by Howard. He says: “My work consisted in crosscutting the ledge, sinking holes, prospecting croppings, and working the croppings by hand and mortar, and reducing the ore to pulp with water and quicksilver, using acids, and separating the gold from the quicksilver after working it.” On cross-examination he describes minutely what work he did and how. He lived at Baker City, and generally went [131] from Ms home to the mine, a distance of twelve miles, and back again each day he worked upon it. Speaking of the first and second days that he was there, he says: “I prospected the ledge, the croppings.” “Prospected by breaking the rock off the ledge, and sampling it.” “I worked along the ledge there, picking and hunting for free gold rock, knowing that she carried free gold.” “That was all I done these trips.” Of the third time, he says: “I started to do surface work — that is, top work — where there was no ledge on the break of the hill, westerly from the old 'shaft, where the ledge is broken off, and no one has found it.” “There were several, holes there that I dug at that time; I cannot tell how many.” Also, “worked on the ledge matter.” “I picked rock, examined it, and prospected for the gold streak that I knew was there.” In regard to the fourth trip in April, eighteen hundred and ninety-two, the former being along in March, he says: “I prospected around on that trip on the mine, east of the old shaft on the westerly end. ” “ Removed no dirt at that time.” “Removed some rock; yes.” The trace left was “by the ledge being disturbed by breaking it.” The fifth time, “broke off rock; put it in a mortar; panned it out with a gold pan.” “I worked a little in the old shaft and hole number two; from the old shaft with a pick and shovel.” The sixth trip, “I run a crosscut at that time.” “I removed some dirt, not a great deal, away from the hanging wall on the southwest, westerly from the old prospect shaft.” The seventh trip, “I cleared away around the ledge; took off rock; sampled it; marked it, and worked in hole number two with pick and shovel; threw out some dirt at that time; sampled it, and brought them to town.” Eighth trip, “I worked on this slope westerly to see if I could find the ledge where the break [132] was, near the old prospect shaft, with the intention, if I could find it, of running a tunnel, and sinking and clearing out the old prospect shaft.” “Prospected around with the pick some. I would break off portions of the ledge matter with my pick, and would break the rock with the eye of the pick, or a small hammer I. had with me. I would take my glass and examine the rock, and if it did not suit me I would leave that portion of the ledge and go to another portion. I was hunting the pay chute. The reason I was hunting the pay chute was, I found a piece of rock three inches long and one half inch wide, and about one half an inch deep that had free gold in it.” The ninth trip, “I picked down the rock in small pieces; marked them, and cut into the ledge quite a little piece.” “I took some samples out of the old shaft number one, marked them and the part of the ledge they came from, and brought them out and took them back with me.” Without following this testimony further in detail, suffice it to say that the foregoing fully illustrates the nature of the work done by plantiff for which he claims twenty days.
When asked to “give the number, size, and dimensions of any and all new holes and crosscuts, which were made on the claim after its location, up to January first, eighteen hundred and ninety-three,” he replied: “On the westerly slope of the White Pigeon, westerly of the old shaft, there is a crosscut in the hill crosscutting the ledge, I should judge perhaps fifteen feet or more; it would be about two feet to thirty inches wide, twenty-four inches deep; and several holes, — I don’t recollect = how many, — in the vicinity of where this crosscut is, would average about three feet, I should judge, in length, and about two in depth. There is a great number of these, I don’t [133] recollect how many; sunk several of them to try and find the ledge running parallel with the main White Pigeon, which I think would average two or three feet, and about twenty inches or two feet in depth. There was a hole, number three, an old shaft to the best of my recollection, about four feet long, about thirty inches wide, and about two feet deep. I enlarged hole number two by working, I should judge, about one third. The old shaft, I have made that larger, I should judge, about one foot. The length on one side was ten feet. I had work done on the tunnel site in the fall of eighteen hundred and ninety-two, about twenty feet long, four feet wide, and about four and one half or five feet deep at the big end.” He further testifies that C. X Finn rendered him a statement of thirteen days’ work that he did upon the claim, but he has no personal knowledge of his having done any work, except that he saw Finn at the mine one day in June, eig'hteen hundred and ninety-two, and at that time he was prospecting the ledge for ore samples, some of which he produced. He further states that he spent eight days at home testing the samples of rock which he had taken from the mine, and had some twelve assays made of them, and that it was worth one dollar and fifty cents each to make such assays. All this work, he says, would “exceed one hundred dollars in value.” The fact was established that miners’ labor was worth from three to three and one half dollars per day. It may be conceded that if the nature of the work done and performed by the plaintiff fills the measure of work required to be done annually on all unpatented claims, he has complied with the law, but, if it does not, that he has fallen short of it. A summary of the value of [134] the labor performed will, therefore, be unnecessary whether classed as assessment work or not.
5. Section 2324, Revised Statutes of the United States, requires that on each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars’ worth of labor shall be performed or improvements made during each year. The time in which the first annual labor after location is required to be performed has been noted. Mr. Justice Miller, in Chambers v. Harrington, 111 U. S. 353, (4 Sup. Ct. 428,) after explaining the reasons for the adoption of this statute, says: “Clearly the purpose was the same as in the matter of similar regulations by the miners, namely, to require every person who asserted an exclusive right to his discovery or claim to expend something of labor or value on it, as evidence of his good faith, and to show that he was not acting on the principle of the dog in the manger.” Wade, C. J., in Remington v. Baudit, 6 Mont. 141, (9 Pac. 819,) says: “The purpose of requiring one hundred dollars’ worth of work or improvements on a mining claim each year is to so develop the mine as that a patent may issue for the claim. It is not the policy of the government to issue patents for the mineral lands until there has been a discovery, and sufficient work done upon the claim to demonstrate its value. * * A liberal construction should be given the mining act of eighteen hundred and seventy-two, but it should not be so liberal as to authorize a claim to be held without representation, or a patent to be procured before any work had been done on the claim.” This language is quoted with approval in Honaker v. Martin, 11 Mont. 91, (27 Pac. 398,) a later case from the same [135] state. Before patent can issue, the claimant is required to file with the register a certificate of the United States surveyor-general showing that five hundred dollars’ worth of labor or improvements has been done or made by himself or grantors: United States Kevised Statutes, § 2325. So that it is apparent the statute touching the location and acquirement of mining claims was enacted to subserve two purposes, namely, to insure good faith in the locator or claimant, and to require of him that he exhibit a claim, which, by reason of its development or the improvements made thereon or for its benefit, is of some value; and it was assumed by congress that five hundred dollars worth of labor or improvements would demonstrate its value as a mine. As to the nature of the labor or improvements, the statute would seem to require that the labor be performed or the improvements made for the development of the claim; that is, to facilitate the extraction of the metals it may contain: Smelting Company v. Kemp, 104 U. S. 636; Remington v. Baudit, 6 Mont. 141 (9 Pac. 819).
But it is insisted that whatever labor is performed for the purpose of prospecting a mine, fills the requirements of the statute, and in support of this position counsel cites United States v. Iron Silver Mining Company, 24 Fed. 568, and Book v. Justice Mining Company, 58 Fed. 107. In the former of these cases language is employed which would seem to indicate that the term "prospecting” was used in its broadest sense. It is there said that “work done for the purpose of discovering mineral, whatever the particular form or character of the deposit which is the object of the search* is within the spirit of the statute.” It is disclosed, however, by the opinion, that labor was claimed for digging prospect holes on a placer mine, evidently in [136] trying to find veins, leads, and lodes, and it was contended that no work in that direction and for that purpose ought to be counted in an application for a patent to placer mining ground; and it was with reference to this state of facts that Brewer, J., with some hesitancy, used the language above quoted. The latter case simply announces the well-settled doctrine that “labor and improvements, within the meaning of the statute, are deemed to be done upon the location when the labor is performed or improvements made for the express purpose of working, prospecting, or developing the ground embraced in the location,” and was said with reference to a tunnel commenced outside of the mining claim in dispute and intended for its development as well as other contiguous claims. The word “prospecting,” when used with reference to annual labor to be expended upon a mining claim, is incapable of so broad a signification as is claimed for it. It is not used in the sense of “exploration and discovery,” which is necesssary before a valid location can be made, but rather in the sense of “development and demonstration, ” that the value of the ledge may bo determined, as distinguished from the ascertainment of its existence.
6. Now the question recurs whether picking rock from the walls of a shaft or from the side or outcroppings of a ledge, in small quantities, from day to day, making tests for the purpose of sampling it, breaking and examining it under a glass, crushing it in a mortar and panning it out, and carrying it away and making assays of it in attempting to find the “pay chute,” as it is termed, is such as the law will permit the claimant to be credited with upon his account for annual labor performed? Such labor does not add to [137] the value of the claim, nor does it tend to the development of the mine. Five hundred dollars’ worth of labor of this nature could easily be expended, and yet the surveyor-general would not be able to certify from an inspection of the mine that it had been done. On the contrary, on applying the test of reasonable value, he would find it far short of this amount: Mattingly v. Lewisohn, 13 Mont. 508 (35 Pac. 114); Du Prat v. James, 65 Cal. 555 (15 Morrison’s Min. Rep. 344; 4 Pac. 562). Such work naturally leads one to question the good faith of the claimant, and to doubt his purpose to represent the claim except upon finding the “pay chute.” This class of labor is not such as the statute contemplated, and will not avail the plaintiff; and it is apparent that without it he has failed in performing the one hundred dollars’ worth of labor or improvements required. by law. The actual work that he did which can avail him consists in the cut at the southwest corner of the claim, which cost him ten dollars; the crosscut made by him in one day for the purpose of exposing the ledge; several prospect holes that he sunk for the same purpose, which could be done within five days as the outside limit; and an enlargement of one or two of the old shafts. The court below very properly found that the assessment work did not exceed fifty dollars. The claim was therefore open to reentry on January first, eighteen hundred and ninety-three; and, unless plaintiff had resumed work thereafter as required by law,