the plaintiff, nor any of his grantors or predecessors in interest, did or performed, or caused to be done or performed, any work, labor, or improvements, of any kind, nature, or description, upon, or for the use or benefit of, said alleged White Pigeon claim, under or by virtue of said alleged location of plaintiff, and that plaintiff and his grantors wholly failed and neglected to represent said claim, after the date of said alleged location, in any manner or form whatever, or to the value of anything. The plaintiff, by his amended reply, put in issue all these and other allegations of the amended answer, and the court thereupon referred the case back to the referee to take such further testimony as the parties had to offer. Other testimony was accordingly taken, mainly upon the question as to whether plaintiff had performed $100 worth of assessment work prior to January 1, 1893, whereupon the referee reported the case back, with his findings again in favor of plaintiff. Exceptions and objections were filed to the report by both parties. The defendants, excepting only to the amount of damages found, moved the court for a confirmation of the report as to all the other findings. The court thereupon modified the findings of the referee, and rendered a decree for the defendants, from which plaintiff appeals. The testimony necessary to a full understanding of the case is noted in the opinion.

J. H. Slater and R. J. Slater, for appellant. Chas. A. Johns, for respondents.

WOLVERTON, J. (after stating the facts). There is no doubt but that plaintiff and one C. J. Finn made a sufficient and valid location of the White Pigeon claim, November 25, 1891. This is the finding of both the referee and the court below, and is borne out by the testimony. On October 24, 1892, 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 12th day of May, 1892, 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 1,260 feet southwestward from its 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 $100, prior to January 1, 1893, 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 possession are 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 1st day of January succeeding the date of his location in which to perform his first annual work. Rev. St. U. S. § 2324, as amended January 22, 1880 (Supp. Rev. St. p. 276). The plaintiff therefore had until January 1, 1893, 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 (Mont.) 27 Pac. 397. But whether, if having resumed, and while in the actual possession, performing labor, and prior to the full performance of the amount required by law, the claim would be open for relocation, the authorities are divided. See Mining Co. v. Deferrari, 62 Cal. 160, and Honaker v. Martin, supra. The facts here do not present such a case. It is, however, plain that if plaintiff had performed $100 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 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 (Mont.) 13 Pac. 127; Hammer v. Milling Co., 130 U. S. 291, 9 Sup. Ct. 548; Belk v. Meagher, 104 U. S. 279; Morenhaut v. Wilson, 52 Cal. 263; Wulff v. Manuel (Mont.) 23 Pac. 723; Quigley v. Gillett (Cal.) 35 Pac. 1040; Mattingly v. Lewisohn (Mont.) Id. 114. Furthermore, "a forfeiture cannot be established, except upon clear and convincing proof of the failure of the former owner to have work performed, or to have improvements made, to the amount required by law." Hammer v. Milling Co., supra.

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 $100 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 of 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. Water-Power Co. (Or.) 39 Pac. 399; Beard v. Tilghman (Sup.) 20 N. Y. Supp. 736. But the 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, 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." But 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 1, 1893; and, while they differed widely as regards the estimated value of the work observed by them as having been done in the years 1891 and 1892, 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." These 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. All of them 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 to strike the ledge at some distance under the surface. It was from 20 to 25 feet long, 3 to 4 feet wide, and in the face of the cut, or at its deepest point, 4 to 5 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 8 to 10 feet long, probably 16 inches wide, and about 12 inches deep. A witness or two relate 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 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 1891 and 1892, 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 $9 to $30,-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, un

der his directions, for which work he paid Howard $10. Howard describes how it was done, and gives the time expended in doing it. He says he worked 21⁄2 days, 4 hours counting as a day's work. Heffrom and Ellis each worked an hour and a half, and Bishop worked the same length of time. Bishop testifies that he himself put in about 20 days on the claim, one of which is the 11⁄2 hours' work referred to by Howard. He says: "My work consisted of 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 from his home to the mine, a distance of 12 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 freegold 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." gard to the fourth trip, in April, 1892,-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 No. 2, 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 No. 2 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 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

In re

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, No. 1, 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 plaintiff, for which he claims 20 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 1, 1893," 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 theseI don't recollect how many-sunk, several of them to try and find the ledge running parallel with the main White Pigeon, which 1 think would average two or three feet, and about twenty inches or two feet in depth. There was a hole, No. 3, 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 No. 2 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 1892, 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. J. Finn rendered him a statement of 13 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, 1892, and at that time he was prospecting the ledge for ore samples, some of which he produced. He further states that he spent 8 days at home testing the samples of rock which he had taken from the mine, and had some 12 assays made of them, and that it was worth $1.50 each to make such assays. All this work, he says, would "exceed one hundred dollars in val ue." The fact was established that miners' labor was worth from $3 to $3.50 per day.

It may be conceded that, if the nature of the work done and performed by the plaintiff

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 the labor performed will therefore be unnecessary, whether classed as assessment work or not. Section 2324, Rev. St. U. S., requires that on each claim located after the 10th day of May, 1872, and until a patent has been issued therefor, not less than $100 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, 355, 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 Remmington 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 1872, 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 (Mont.) 27 Pac. 398,-a later case from the same state. Before patent can issue, the claimant is required to file with the register a certificate of the United States surveyor general showing that $500 worth of labor or improvements has been done or made by himself or grantors. Rev. St. U. S. § 2335. 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 $500 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 Co. v. Kemp, 104 U. S. 636; Remmington v. Baudit, supra.

But it is insisted that whatever labor is

mine fills the requirements of the statute, and, in support of this position, counsel cites U. S. v. Iron-Silver Min. Co., 24 Fed. 568, and Book v. Mining Co., 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 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 necessary before a valid location can be made, but rather in the sense of "development and demonstration," that the value of the ledge may be determined, as distinguished from the ascertainment of its existence. 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 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 (Mont.) 35 Pac. 114; Du Prat v. James (Cal.) 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 $100 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 $10; 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 $50. The claim was therefore open to re-entry on January 1, 1893; and, unless plaintiff had resumed work thereafter as required by law, it was likewise open at the time defendants relocated it. Plaintiff, in April, 1893, entered one of the old shafts, and spent an hour or so with pick and hammer, in securing samples of the ore, and it is claimed for this that it was a resumption of work; but this is not a resumption, under any of the authorities. See Honaker v. Martin, supra.

It was further contended that defendants' entry was under a license from the plaintiff, but it is sufficient to say that this contention is not established by the evidence.

This disposes of the case, with the exception of a question which is made as to the jurisdiction. of a court of equity to take cognizance of the matter in issue, the possession and title being in dispute. It is clear from the testimony that at the commencement of the suit the plaintiff was absolutely out, and the defendants were in full possession of the claim. The inquiry has heretofore proceeded upon the assumption that the court had jurisdiction to determine all matters connected with the suit. We will now consider the contention of the respective parties upon this proposition.

This may be termed a suit to enjoin a trespass, and for an account. It falls within the category of remedies which are of purely equitable cognizance. The trespass, threatened or actual, is the element which, in proper cases, lays the foundation for equitable interference. It is the primary "cause of suit." The power to assess damages is incidental, and does not exist as an equitable remedy, except in connection with the injunction to restrain the trespass, and is sustained upon the principle that, as a general rule, a court of equity, having acquired jurisdiction for one purpose, will retain it for all,

1 Rev. St. U. S. § 2324, as amended by Supp. Rev. St. p. 276, declares a mining claim forfeited by failing to put $100 worth of work and improvements thereon during any year prior to the issue of a patent, and allows a relocation by another person, provided the original locators "have not resumed work."

and proceed to the adjudication of legal as well as equitable rights, with a view to the administration of full relief. Fleischner v. Investment Co., 25 Or. 130, 35 Pac. 174. And, upon the further ground of preventing a multiplicity of suits, Chancellor Kent, in Livingston v. Livingston, 10 Am. Dec. 354, says, "This protection is now granted in the case of timber, coals, lead ore, quarries, etc.," and quotes from Lord Eldon, in Thomas v. Oakley, 18 Ves. 184, as follows: "The present established course was to sustain the bill for the purpose of injunction, connecting it with the account in both cases (waste and trespass), and not to put the plaintiff to come here for an injunction, and to go to law for damages." Mr. Daniell says: "The account depends entirely upon the injunction. It is incidental to, and consequential upon it. And, if a person is entitled to the one, he is entitled to the other, also, on the principle of preventing a multiplicity of suits; for otherwise he would be obliged to bring his action at law, as well as in equity,-his action, by way of satisfaction; his bill, by way of prevention." 2 Daniell, Ch. Prac. *1634. Courts of equity will enjoin a trespass only when there exists some equitable grounds for interference, as where there is danger of irreparable mischief, or that the value of the inheritance is put in jeopardy by a continuance of the trespass, or when it becomes necessary to prevent a multiplicity of suits. The primary purpose of the suit is to quiet the possession. In ordinary trespass, or where the law affords an adequate remedy, equity refuses to interfere. Bracken v. Preston, 44 Am. Dec. 420. The law is very old which permits the use of an injunction in restraint of waste. Lord Eldon says there is a writ at common law after action to restrain waste. Smith v. Collyer, 8 Ves. 90. An injunction for this purpose was, and is now, allowed a party out of possession against one in possession of lands, to restrain irremediable damage to the inheritance, but the parties must be privies in title or estate, such as landlord and tenant, mortgagor and mortgagee, or tenant of a particular estate and remainder-man; and the injunction will be allowed in all cases where an action wiH lie to recover possession of lands wasted, or damages for the waste. Chapman v. Toy Long, 4 Sawy. 33, Fed. Cas. No. 2,610, and 3 Pom. Eq. Jur. § 1348. the remedy which permits an injunction against trespass is of more recent origin. and was first granted by Lord Thurlow, late in the eighteenth century. Lord Eldon relates the instance, of which he had a note,the case in which the order was made being now known as the "Flamang Case."-as follows: "There was a demise of close A. to a tenant for life, the lessor being landlord of an adjoining close, B. The tenant dug a mine in the former close. That was waste from the privity. But when we asked an injunction against his digging in the other

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