Page:Federal Reporter, 1st Series, Volume 7.djvu/345

 eiiAVONIAN MINING CO. V. PEEASICH. 333 �was no forfeiture of the plaintiff's claim until January 3, 1880. �In September, 1879, the defendant Samuel Vacovich relo- cated this claim. This, it is admitted, was a premature loca- tion, but it is claimed by the defendants to have been vali- dated after January 3, 1880, by the failure to do the annual work on the part of plaintiff. But this, in my judgment, is a wrong view. Vacovich, before January. 3, 1880, was a trespasser, and could not lay the foundation of any valid claim to this mine before that date. Until then the plaintiff was not in default,.and its ground was not subject to reloca- tion for the failure to do the annual work, : ; �It would rteVer do to permit an'entryu;^on a mining ciaim, before the ownpr.of it was in qef ault, |or the purpose of mak- iag. a provisional location, to. bp yalid. or worthiess acco^ding: as the Gwner failed or naA to do the antmal work subse- qderitly. The Vaconeh location was a mete ntillity. ■ On March 19, 1880, Mr. Koenecke, president of the plaintiff, by authority 6i the compan^l '\i^ut tO' Candalaria todo the aiinual work, arid it'is adtuitted'thai't'at thil, titne "the claim' ^t^as torfeited and subject tO Mbc'a^ioii; aM that unlesS'what was done by Mr. Koenecke in Marbh, and by Mt. HarJ)ham in June following, amothted to a'i^^uni^on of Vork on the claim, there can be nb recovery; ' ^Tlre provision of section 2324, Eev. St., is that— ' ■ ■• ' "'■' �" l'he claim or mine upon which siich failure (to work) occurred shall be open to relocation in the same manner' ai if no location of iHe eame had eeer been made: provided, that the original locatora, their heirs, assigns, or legal representatives have not resumed work upon the claim after fail- ure, and before such location." �Mr. Koeneke testifies — �That he visited the mine March 19, 1S80, and that it is situated about a mile from the town of Candalaria. About half way between the mine and Candalaria he met Thomas Perasich, one of the defendants, and told him he was going to do the annual work on the mine ; that Perasich there told him that he was the sole owner of the mine, and could not permit any one to work on it ; that he would shoot any one who attempted to work ; and that he did not do any work on the mine because he was threatened with shooting. It does not appear that Perasich did, in fact, offer any violence, or that he prevented Mr. Kooncke from going on to the ��� �