The defendant, believing that the court's opinion herein is erroneous, has petitioned for a rehearing. She contends that the court erred in holding that she failed to prove, by clear and convincing evidence, that plaintiff had forfeited his rights in his mining claim by failing to perform the required amount of assessment work. She concedes, inferentially, that she had the burden of proving forfeiture, but says that, upon her proof of plaintiff's failure to file the statutory affidavit *Page 450 of assessment work for 1943-1944, "the burden of proof did shift" to plaintiff to show by other evidence that the work was done. The allegation of defendant's pleading was that, between July 1, 1941, at meridian, and July 1, 1944, at meridian, plaintiff had failed and neglected to do or perform "any work or labor constituting assessment work or annual labor" on the claim. Work was performed on the claim by Anderson in May, 1944. As to that work, only two questions were involved: (1) Did it, or any of it, constitute assessment work? (2) If it did, was the assessment work worth $100?
Further reflection has persuaded us that Anderson's work in endeavoring to locate a stratum of gold-bearing gravel, of the existence of which he had previous knowledge, may properly be classed as development work. The prima facie case in support of the allegation in defendant's pleading, to the effect that no assessment work whatever had been done during the period in question, was therefore counterbalanced by proof to the contrary, and defendant had the burden of proceeding further and proving, by clear and convincing evidence, that the work done was not worth $100. Such burden was not sustained, in our opinion, by the mere negative testimony of a very interested witness that he was unable to see that any work had been done.
Moreover, it is required in adverse proceedings that a relocator must allege and prove, by clear and convincing evidence, the facts upon which he relies to establish the claimed forfeiture. In this case, the defendant should have pleaded and proved that plaintiff had done none of the acts of representation which are required by the statute. Her pleading alleged *Page 451 only that plaintiff, during the years mentioned, had not done "any work or labor constituting assessment work or annual labor, as described in and required by the laws of the United States for mining claims". The statute reads: "On each claim * * * not less than one hundred dollars' worth of labor shall be performed or improvements made during each year." Rev. St. U.S. § 2324. The mere allegation that no work or labor constituting assessment work had been done is not sufficient to establish a forfeiture, no matter how convincing the proof might have been. The pleading must also negative the performance of the alternative of one hundred dollars' worth of improvements, and the proof should have shown the lack thereof. Power v. Sla, 24 Mont. 243, 61 P. 468. Lest it be thought that we view such technical insufficiency in pleading and proof with too critical an eye, let it be remembered that the law abhors forfeitures, and that courts will construe all doubtful cases against forfeiture. Snyder on Mines, vol. 1, sec. 544.
There was no suggestion of abandonment of the claim. The defendant relies upon technical forfeiture. Her pleadings and proof must satisfy all technical requirements. We think that they do not. The petition for rehearing is denied. *Page 452