The Nome Semi Weekly Nugget

LAW OF LOCATION
How Junior Locator Is Benefited
A Senior Location Inures to Benefit of Junior Location When No Assessment Work Is Done on Former.

That a junior location inures to the benefit of the locator when the rights of the senior locator have been forfeited, is a part of the dicta laid down by Judge Moore of the district court, in a recent charge to a jury in the case of Octave J. La Montagne et al vs. L. Labay et al.

The action was one of ejectment brought by the plaintiffs to recover from the defendants possession of placer claim No. 6 below, Solomon river. The plaintiffs claimed that La Montagne became the owner of the claim on June 20, 1901. The defendants denied all plaintiffs' allegations as to ownership, and asserted by way of defense that the claim was part of a larger claim containing less than 160 acres and called the "Mars tract," located May 3, 1901, by Lars Swenson and others, who were the owners prior to the commencement of the action, and the defendants contended that their title originated prior to the date of acquisition of the title of plaintiffs, and that the latter had no right or title to the ground.

The plaintiffs in reply, denied the title set up by the defendants, and alleged that defendants had not performed the annual assessment labor for the years 1902, 1903 and 1904, but the plaintiffs afterwards conceded that the work had been done for 1902. On this point the court instructed as follows:

"You are instructed that when a valid location of a claim is made the law presumes that the assessment labor is performed thereon from year to year, until the contrary is affirmatively shown."

The court also instructed that it was not necessary that labor be performed at the request of the owner if it was performed for his benefit, and he and his agents afterwards ratified the act of the person or persons performing the labor and adopted it as his own. Neither does the law prescribe the particular kind of work which is to be done, nor the manner in which it is done: nor does the law require that it should benefit the claim, in the sense of making it more valuable after the performance of the labor than before: neither does the contract price for the work matter: it depends entirely upon whether or not the work was reasonably worth $100.

The court also declared: "The person who fails to do assessment work on a mining claim for a given year is deemed to have forfeited it at the end of said year. In case another person, before the expiration of that year, enters thereon and performs all the acts thereon necessary to constitute a valid location, and the forfeiture of the prior location so resulting operates to vest in the junior locator a valid right to the possession of the claim in conflict."

The court further charged the jury as follows:

"I therefore charge you that if you find that the defendants' predecessors in interest in the claim in controversy in this action made a valid location of said claim in May, 1901, and that subsequently, to-wit: in June, 1901, the plaintiff, O. J. Montagne, made a valid location of said claim by performing all the acts made necessary by law to entitle a valid location thereof, in such case while the location could not at once vest a right of ownership and possession of said claim in said second location yet the subsequent failure, if there was a failure, to do the annual assessment work on said claim for the years 1903 and 1904 would work as a forfeiture of the title of said locators and the junior locator and his successors in interest and assigns immediately upon the forfeiture would acquire the right of possession of said claim."

"You are also instructed that if the location upon which defendants rely was prior to the location of plaintiff and was a valid location, but that defendants and their predecessors in the title failed to do the assessment work, or development work, required by law for the years 1903 and 1904, then, if plaintiff made a valid location necessary to a valid location plaintiff at the time alleged by him, such failure, if there was a failure, of the defendants to do the assessment work as aforesaid, would inure to the benefit of the plaintiff and the title of said claim would vest, at the termination of defendants' estate, in the plaintiff."

These instructions of the court were based upon a recent decision of the supreme court in a case from Utah entitled Lavignino vs. Uhlig