Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-21
OREGON SUPREME COURT DECISIONS
BY Courtesy Of +. Turner Reporter Of the
Supreme Court
Merchants National Bank '. McKeOHn
ct al, Grapt County.
Decided, December 12, 1911.

McClernan and Tho mas M. Ray, re-
spondents. Appeal from the circuit
court for Grant county The Hon.
Geo. e. Davis, judge. Argued and
submitted Nov 2, 1911 at Pendleton.
VIM. H. Packwood, Jr. and John L.
Rand, on brief) for appellant. ]. E.
Marks (Hicks & Marks on brief) for
respondent. Eakin, G. ]. Affirmed.
Eakin, C. ]. This is suit insti-
tuted 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 county, Oregon, to whose title
plaintiff has succeeded. On January
2, 1908, defendants relocated it as the
Argonaut Quartz Mining Claim.
1t is conceded that the Copperopo-
lis Copper Company did no manual
labor, as required by Sec. 1926 U. s.
Statute, upon the Golden Star Claim
for the year 1907. But plaintiff as
sents that until June, 1906, it was
performing labor in excavating
tunnel and was erecting machinery
upon the Protection & Oregon Bell
Claims, being patented claims in
group with the Golden Star, known
as the Home group" for its devel-
0pment, and had constructed more
than 600 feet of tunnel and had sew
eral thousand dollars worth of ma
chinery ad buildings thereon; that
for lack Of funds 1t had ceased work
thereon In June, 1906 and its super
intendent, W, W. Gibbs, his wife and
son, had remained upon the property,
as keepers Of the property, until
June, 1907. Gibbs salary as superin-
tendent was $3.50 per month; the
sons salary as chore boy, and the
wife's as cook was $40 each. per
month. Plaintiff relied on these ex-
penditures to constitute the annual
labor for the. 10 unpatented claims in
that group.
Defendants allege in the answer
the forfeiture by plaintiffs grantors
OF the Golden Star Claim as follows:
"That on the End day of January,
1908 the plaintiff or its grantors or
predecessors In interest had per-
formed 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 To-
cation were forfeited and the said
premises so attempted to be located
were forfeited on account of the fall
ure to do said annual work, and the
same was on the 2nd day of January,
1908 unapproprlated public domain
of the United States and subject to
be lcated as such"
Plaintiff now for the first time in
sists that the answer does not suffi-
ciently allege a forfeiture, in that II
does not state that work on the claim
had not been resumed in 1908. Gen
orally, forfeiture as defense must
be specially pleaded, but 1t is stated
In 2 Lindley on Mines, Sec. 643, that
: this rule does not necessarily obtain
In a proceeding to determine adverse
claims under the United States Rev.
Stat Sec. 1926, where the title of
each party is in issue and neither
can recover without proof of title.
See to the same effect; Wilson v.
Cleveland, 80 Calf. 1872; Trevaskie v.
Peard. Ill Calf. 500; Steel v. Gold
Lead M. Co. Is Nov. 80, Sc. Further
more, there is not a total absence OF
allegation thereof, 1t being alleged
that on Jan 2, 1908 plaintiff had per-
formed no work or improvements as
annual labor or assessment work for
the year 1907, and the same was on
Jan. ., 1908 unappropriated public
domain, subject to location, and that
defendants located 1t on that day.
This may be a defective statement Of
the fact that work was not resumed,
but not an omission. There was no
contention at the trial that work
was resumed in 1903, prior to defen-
dants' location, and 1t is too late to
raise that question in this court for
the first ime. A pleading unobiected
to until after trial win be libcrally
construed: Patterson v. Patterson, 20
Or $50.
The only other contention Of plain
tiff is, that the evidence established
the fact that plaintiffs grantors per-
formed the annual labor for the year
1907 as required by the U. s. Stat
ute. II is not contended by plaintiff
that any labor was performed ON the