Fee v. Durham

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. The defendant’s grantors were in the actual possession of the claim, actively engaged in doing the annual assessment work thereon, when the plaintiffs entered upon the claim and made their location. The entry and location, under these circumstances, was a trespass, and no rights were acquired thereby. The Lebanon Mining Co. of New York v. The Consolidated Republican Mining Co., 6 Colo. 371; Weese v. Barker, 7 Colo. 178, 2 Pac. 919; Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735. Inchoate rights to the public lands cannot in any case be acquired by trespass or by violence. An entry upon the prior possession of another is a trespass, and tends to provoke violence, homicides, and other crimes, and one making such an entry gains nothing by it. Atherton v. Fowler, 96 U. S. 513, 24 L. Ed. 732. [470] The original locators must be held to have been in the actual possession of the claim at the time the plaintiffs made their location. The suspension of work Saturday night, intending to resume it Monday morning, and leaving their tools on the ground for that purpose, was not, in any sense, an abandonment of their possession for the time between Saturday night and Monday morning. In contemplation of law, their possession was as complete and actual during that time as if they had remained at work during the night and on the Lord’s Day. They were not required to work during the night or on the Lord’s Day in order to maintain their possession and make their assessment work continuous. Their possession was attested and protected by their work and the presence of their tools. They could not lawfully work on the Lord’s Day if they had desired to do so, for the law of the state forbids labor on that day under a penalty. Sand. & H. Dig. § 1887. Resting from their work from Saturday night until Monday morning was no more an abandonment of their work or possession than the cessation of work to eat their midday meal would be. Under the act of Congress the failure to do the required assessment work within the year does not absolutely and irrevocably render the claim subject to relocation. It has this qualification: “Provided that the original locators * * * have not resumed work after •failure and before such location.” Referring to this statute the Supreme Court of the United States in Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735, said: “Such being the law, it seems to us clear that If work is renewed on a claim after it has once been open to relocation, but before a relocation is actually made, the rights of the original owners stand as they would if there had been no failure to comply with this condition of the act. * * * Mining claims are not open to relocation until the rights of the former locator have come to an end. A relocator seeks to avail himself of mineral in the public lands which another has discovered. This he cannot do until the discoverer has in law abandoned his claim and left the property open for another to take up.” The original locators in this case had not abandoned their claim, but were actually and continuously at work from the 26th of December until an early day in January, when they had done $500 worth of work. There was no suspension of the work during this time, and there was no period of time during which the plaintiffs could enter and make a valid location. The continuity of the work and possession was riot broken by the cessation of labor at night and on the Lord’s Day. It must be conceded that if the original locators had “resumed work” after the clock struck 12 on Saturday night, December 31st, that the plaintiffs’ location would have been invalid. We think upon the facts in this case, for all legal purposes, the original locators must be held to have been prosecuting the work for the whole of that night, and that the plaintiffs could not rightfully enter upon the claim and make a valid location between midnight and the usual hour of resuming work on Monday morning. Pharis v. Muldoon (Cal.) 17 Pac. 70; Belcher Consolidated Gold Mining Co. v. Deferrari, 62 Cal. 160. The instructions of the court are- in harmony with the views we have expressed. The judgment of the Circuit Court is affirmed.