119 P. 334 | Or. | 1911
Opinion by
This is a suit instituted to establish an adverse right to a mining claim, for which defendants have applied to the United States’ Land Department for a patent. The Golden Star claim is one of a group of mines originally owned by the Copperopolis Copper Company, in Grant
It is conceded that the Copperopolis Copper Company did no annual labor, as required by section 2326, U. S. Rev. St. (U. S. Comp. St. 1901, p. 1430), upon the Golden Star claim for the year 1907. But plaintiff asserts that until June, 1906, it was performing labor in excavating a tunnel, and was erecting machinery upon the Protection & Oregon Bell claims, being patented claims in a group with the Gloden Star, known as the “Home Group,” for its development, and had constructed more than 600 feet of tunnel and had several thousand dollars’ worth of machinery and buildings thereon; that for lack of funds it had ceased work thereon in June, 1906, and its superintendent, W. W. Gibbs, his wife, and son, had remained upon the property as keepers of the property until June, 1907. Gibbs’ salary as superintendent was $150 per month. The son’s salary as chore boy and the wife’s as cook was $40 each per month. Plaintiff relied on these expenditures to constitute the annual labor for the 10 unpatented claims in that group. Defendants allege in the answer the forfeiture by plaintiff’s grantors of the Golden Star claim as follows:
“That on the 2d day of January, 1908, the plaintiff or its grantors or predecessors in interest had performed no work or improvements upon said Golden Star quartz claim as the annual labor and assessment work for the year 1907, and all rights or interest under or by virtue of said pretended location and amended location were forfeited and the said premises so attempted to be located were forfeited on account of the failure to do said annual work, and the same was on the 2d day of January, 1908, unappropriated public domain of the United States, and subject to be located as such.”
The only other contention of plaintiff is that the evidence established the fact that plaintiff’s grantors performed the annual labor for the year 1907 as required by the United States statute. It is not contended by plaintiff that any labor was performed on the Golden Star c’iaim during that year, but that, it being a part of the “Home Group,” work done and improvements made on the Protection and Oregon Bell claims prior to 1907, which was for the development of all claims, inured to the benefit of the Golden Star, and that the work of the watchman above mentioned in 1907 should be taken as the annual labor for those claims.
“The cases must be rare-in which it can justly be said . that such money is expended in prospecting or working the mine. There may be cases where work has been temporarily suspended, and there are structures which are likely to be lost if not cared for, and it appears that the structures will be required when work is resumed,*331 and that the parties do intend to resume work in which money expended to preserve the structures will be on the same basis as money expended to create them anew. But this could not go on indefinitely. As' soon as it should appear that this was done merely to comply with the law and to hold the property without any intent to make use of such structures within a reasonable period, such expenditures could not be said to have been made in work upon the mine.”
This case is cited with approval in Gear v. Ford, 4 Cal. App. 562 (88 Pac. 600); 2 Lindley, § 629; Fredricks v. Klauser, 52 Or. 110 (96 Pac. 679). See also, Kinsley v. New Vulture Min. Co., 11 Ariz. 66 (90 Pac. 438: 110 Pac. 1135); Morrison, Mining Rights (14 ed.) 118. The application of the expense of the keeper to the annual work in the case before us is excluded by the terms of the language quoted. Evidently the company was insolvent and had no intention of immediately resuming work, and the keeper was there to preserve the property, to aid in its sale, and not in the development of the mine. Even if it is conceded that the whole of the expense of the keeper should be credited as annual labor upon the ten unpatented claims, it is insufficient in value for that purpose.
The decree of the lower court is affirmed.
Affirmed.