CHAPTER 6 TIME FOR PERFORMANCE AND RESUMPTION OF WORK
| Jurisdiction | United States |
(Sep 1970)
TIME FOR PERFORMANCE AND RESUMPTION OF WORK
United States Smelting Refining and Mining Company
Salt Lake City, Utah
TIME FOR PERFORMANCE
1. In General
The period within which work is required to be done annually on all unpatented mining claims is established by Federal statute and commences at 12:00 o'clock Meridian on the 1st day of September succeeding the date of location of such claim,1 and the period continues until 12:00 Meridian on September 1 of the following year.2
2. Date of Location
An interesting aspect to the above statute concerns the question of the particular "act" of location which determines the "date" of location from
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which the commencement of the assessment work requirement can be calculated. That is, does the statute mean the "date of location" is the date of posting, or the date of discovery, or the date of marking boundaries, or the date of recording the notice or certificate of location, or date of the last act required to perfect the location?3
The law contemplates that the location of a mining claim shall consist of a number of distinct acts which are independent of each other4 and location is not perfected until all of the several acts of locating a claim have been completed.5 Morrison concluded that in the circumstance of a discovery in the latter part of a year and the other acts of location are not completed until the following year, the latter year would be the location year and there would be no forfeiture for neglecting to do the annual labor
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during that year.6 However, Lindley reasoned that while a location is not perfected until all of the requisite acts are performed, when those acts are completed the locator's rights relate back to the date of the discovery and it is this date that should be considered as the date of location.7
Lindley's conclusion seems logical, for until an actual discovery is made upon a claim, annual assessment work is not necessary.8 Practically speaking though, the knowledge of mineral discovery is not sufficient to give rise to a right that is protected against a bona fide locator. There must be an intent to appropriate and, logically, the initial outward evidence of such intent is the posting
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of a notice of location on the claim.9
Presuming the necessary discovery prerequisite to a valid claim the various state statutes and decisions seem to conclude that the date of location is generally considered to be the date the notice of location is posted upon the claim. As a matter of fact, the Montana Statute specifically states that the date of posting the notice of location upon the claim is the date of location.10
Other state statutes are not this helpful, but the language in several of them implies
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that the posting of notice and date of location are synonymous.11
3. Entire Period
It is well established that the claim owner has the whole of the period in which to perform the required annual work. The law fixes no time within a year when the work must be done.12 This has been the settled rule since the annual work requirement
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originated.13 Prior to the Act of January 22, 1880,14 the law did not provide a uniform assessment year. This Act added a provision that the annual period for performance of annual work would commence January 1 following the date of location. The commencement date of the uniform period has been changed from time to time.15
4. Overlap of Work
Having determined the rule of law to be that the claim owner has the entire year in which to perform annual work, we turn next to the question which arises by the commencement of the annual work in one year without completing it and then continuing it in the new period.
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In the case of Plough v. Nelson,16 A commenced his annual assessment work on December 30 or December 31, 1913 but had not completed it by midnight December 31, 1913.17 The evidence indicated that the following day (January 1) was a Sunday on which he rested, but he performed work on Monday and remained in possession into the year 1914, continuing work through the winter and spring until the required amount had been performed. B entered the property on January 1, 1914 and relocated a large portion of the area.
The court held that A continued in actual possession and all rights are saved by commencing work at any time during the year for which the work is required to be done, provided the required amount is done on the claim with reasonable diligence and without unnecessary interruptions or delay, although
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the work is not completed until the following year.
The court, in discussing the statute said:
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. *** And upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation the same as if no location of the same had ever been made, provided that the original locators, their heirs, assigns or legal representatives, have not resumed work upon the claim after failure and before such location.177
We think the proviso in the statute was intended to prevent forfeiture if the work was actually resumed at any time before relocation could legally be and actually was made.178
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Another question raised in determining the time of performance of assessment work is the situation where, for example, a discovery is made on August 31, 1970, at which time the locator posts his notice of location at the point of discovery. Most mining industry state statutes contain a requirement for the performance of discovery or location work as one of the acts of location required to perfect a claim.18
Query: If such location work is accomplished after September 1, does that work also fulfill the requirement of the Federal statute for performance of annual work for the period commencing September 1 following the date of location?
Although the answer may be in some doubt under these circumstances, it would appear that the better rule is that such location or discovery work does not count as annual labor.19 The work required as location
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work is one of the acts of location. When all acts are completed, they relate back to the date of discovery.20 Some writers, however, believe that crediting such work as assessment work is logically responsive to the Federal statute and also is equitable.21
The obligation to perform $100 worth of work or improvements on a claim each year does not permit a carryover of excess expenditures in one year to another assessment year. This gives rise to the practical procedure of doing two (2) years' assessment work around September 1, spending $100 before 12:00 noon September 1 and $100 after 12:00 noon on September 1.
RESUMPTION OF WORK
1. Nature of the Right
Exclusive possession is the reward enjoyed by the claim owner who perfects and maintains his claim in accordance with the law.22 This right of exclusive possession takes the form of constructive possession because actual continuous occupation of
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the ground is not essential.23 As long as the required expenditure of $100 per claim is accomplished by the end of the statutory period, there is no necessity that the work be prosecuted diligently or continuously to completion once it is commenced at any particular time during the period.24
2. Effect of Default
The nature of the possessory right of a locator of a mining claim depends upon his compliance with the requirement as to annual assessment work.25 The position of an owner of a mining location on which a default in performance of assessment work has occurred is not, prior to curing the default, the same as that which would have existed if no default occurred. Upon default in performance of annual labor, the locator loses his constructive possession and his right to exclusive possession in the claim. Default imposes
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a burden upon the claim owner to maintain actual possession by resumption of work until his default is cured.26
This change in the nature of the right and the need to cure the default is embodied in the Federal statute which recognizes the possibility that the claim owner might not always maintain his claim:
...and upon a failure to comply with these conditions, 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, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.27
The decisions of the courts support the proposition that the protection which results from
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a resumption of work is dependent upon re-establishment of the right of exclusive possession through re-entry and establishment of actual possession.28 After a locator has resumed and actually completed assessment work for a claim, his default is cured and he is completely re-established in his possessory right without the requirement of continuous occupancy, provided no intervening rights have vested in another party.
3. Time of Resumption
The early case of Belk v. Meagher29 established the principle that an attempted relocation made prior to the time that the original locator is delinquent in the performance of assessment work is wholly void. In that case, A located his claim in July or August 1864. The claim had been properly maintained and was valid on May 10, 1872, but A did not work thereafter until he resumed work in June of
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1875 and completed the requirement for the period ending December 31, 1875. A did no further work and no one was in actual possession on...
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