dissenting:
I respectfully dissent for reasons which more fully hereafter appear.
The statute we are called upon to interpret in 30 U.S.C.A. 28, which reads in pertinent part:
“* * * 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. On all claims located prior to the 10th day of May 1872, $10 worth of labor shall be performed or improvements made each year, for each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location. Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-otoners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of the *89expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures. The period within which the work required to be done annually on all unpatented mineral claims located since May 10, 1872, including such claims in the Territory of Alaska, shall commence at 12 o’clock meridian on the 1st day of July succeeding the date of location of such claim.” (Emphasis supplied.)
This Act of Congress was a belated recognition of the historical right of a citizen to make a mineral location, after discovery, upon the open public domain. It is true that certain conditions were prescribed including one requiring the performance of $100.00 of annual labor on unpatented claims. Oil shale is a recognized mineral and these claims were located under section 28. During at least part of the time since 1920 the Congress has adopted waiver statutes making it unnecessary to perform annual labor on claims and at times the necessary affidavits thereunder were filed for these disputed locations.
We should note that by section 28, supra, and the generally accepted interpretation of title thereunder, claims do not revert to the sovereign except by abandonment or proper challenge. If annual labor is not performed, only two things can happen: (1) the claim may be relocated by others and all rights lost, or (2) a co-owner may do the required assessment work and force contribution from his co-owners, or in lieu thereof acquire the title of non-payers after notice by operation of law.
Next we should consider the historical background of oil shale.
It is a well known fact, of which I would take judicial notice, that in western Colorado, eastern Utah and southern Wyoming, there are widespread oil shale deposits with fantastic reserves of oil locked within what is known as the Green River formation. For many decades our citizens have dreamed of commercially exploiting these potentially valuable natural resources, most of *90which lie under public lands owned by the United States. From time to time courageous and venturesome individuals have located placers on some of these lands (as was until recently allowed by law), the locators hoping that some technical processes would be developed by which the oil could be extracted profitably in commercial quantities. Some attempts have been made to refine this shale. The most recent of these was during World War II when the United States Government itself set up an experimental plant near Rifle, Colorado. Union Oil Company of California, following the last war, also established a plant in the Grand Valley of Western Colorado for the production of oil from shale. Both these plants have now been closed. The glut of oil in the markets from foreign sources and from our own liquid petroleum makes present production from oil shale in the United States not yet commercially feasible. The contrary has been the case, however, in several other areas of the world, such as Scotland, Spain and Sweden, where with governmental protection the oil shale refining industry has been successful.
The next matter to consider is the Leasing Act (30 U.S.C.A. 193) which withdrew from entry oil shale deposits in the area in which the subject claims are located. The statute, however, has a saving clause which excepted from its operation “valid claims existent at the date of passage of this act and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery.” (Emphasis supplied.)
It would appear at first blush that the underscored words in section 193 require annual labor to be performed on oil shale claims like these. Two federal court decisions, however, indicate that apparently such is not the case.
In Wilbur v. U. S. ex rel. Krushnic (1930), 280 U.S. 306, 50 S. Ct. 103, 74 L. Ed. 445, the Secretary of Interior had refused to issue a patent on the ground that the oil *91shale placer mining claims had been forfeited for failure to do assessment work for the year 1920; and the Supreme Court of the United States held that this failure to do assessment work did not defeat the claim if work had been resumed, in the absence of some form of challenge on behalf of the United States to the valid existence of the claim. Thereafter, the case of Ickes v. Virginia Colorado Development Corporation (1935), 295 U.S. 639, 55 S. Ct. 888, 79 L. Ed. 1627, was before the Supreme Court of the United States. It involved a suit by the corporation to obtain a mandatory injunction against the Secretary of the Interior requiring him to vacate certain adverse proceedings and his decision declaring certain placer mining claims of the plaintiff to be void. The adverse proceedings were initiated by the Department of Interior on the ground that plaintiff had not performed the annual assessment work and that the United States resumed possession of said land. The court injunction was held proper. This case apparently arose because of the qualifying language in the Krushnic case, supra, which was: “Unless at least some form of challenge on behalf of the United States to the valid existence of the claim has intervened.”
In my view the net effect of these two decisions was the establishment of the principle that so far as the federal government is concerned, failure to do assessment work for any year is without effect as to originally valid oil shale placer claims. These cases also state that the leasing act of 1920 inaugurated a new policy. The Act itself provides for leases instead of acquisition of oil shale rights by location, and thus there could be no valid relocation on such lands, even if the annual assessment work were not done on claims valid at the date of the enactment of the Act.
In Krushnic, supra, the court stated:
“Whenever $500.00 work of labor in the aggregate had been performed, other requirements aside, the owner be*92came entitled to a patent, even though in some years annual assessment labor had been omitted.”
Thus whether the Congress so intended, it appears that today by virtue of the saving clause in the Leasing Act and the decisions in Wilbur and Ickes, supra, the owners of oil shale claims find it possible to hold their claims awaiting perfection of technological processes for refining which will allow oil from shale to compete with liquid petroleum, without need to perform annual assessment work, the reason being that the deposits have been withdrawn from public entry so cannot be relocated and the government itself cannot challenge the ownership for non-performance.
The true question then before this court is whether the forfeiture provisions of Sec. 30, supra, are available to a co-owner to oust his fellow co-owners where oil shale claims are involved. I would answer this question in the negative.
The law abhors a forfeiture and if any valid reason exists upon which we can sustain the rights of all these parties we should do so. In my view Ertl was a mere volunteer and a donor of his work to the benefit of all his co-owners because the work he performed did not have to be done. This must be true, as I have shown that neither an outsider nor the government could disturb the possession of these owners for failure to perform assessment work not required to be done. It follows then that a co-owner may not do so. Ertl would only have the right to go in and produce ore from the claims as a co-owner if he so desired, or seek a partition thereof. As I view it the real reason for the forfeiture provision in Sec. 30, supra, is to protect the interest of a co-owner like Ertl against loss by relocation or by governmental challenge on the ground of non-compliance with the statutory labor requirement. Since title here was not in jeopardy for either of these reasons, we should strictly construe the statute to prevent the forfeiture.
*93All of the text and case law which I have found is to the effect that in order for one co-owner to forfeit out other co-owners there must have existed the necessity for doing the work and if it is not necessary to do the work in order to protect the title, there is no right of forfeiture. For example, in 2 Lindley on Mines 1623, sec. 646, it is said:
“Necessarily the work must have been actually done, and there should have existed the necessity for doing it to protect the property. Where performance is not required during any given year, the mere doing of the work for that year will not avail the working co-tenant as the basis for forfeiture.”
Under the above quotation is annotated the case of Royston v. Miller, 76 F. 50, which will be discussed infra.
58 C.J.S., Sec. 76, states:
“Such a forfeiture cannot be enforced where the delinquency was due to the acts of the delinquent co-tenants; or where it occurred during a period when the doing of assessment work was suspended.”
There are two kinds of forfeitures, the first being forfeiture to a new locator and the other forfeiture between co-owners where one has done the work and the other has not contributed thereto. Both, however, are based upon the same premise which is that the law requires the work to be done. If it is not done by anyone, claims are ordinarily open to relocation and if it is done by one co-owner to protect the claims from relocation, the law gives the co-owner doing the work the right to demand contribution, and failing in this the rights of the noncontributing co-owner are forfeited upon compliance with the requirements of the statute. I quote from the case of Royston v. Miller, supra, as follows:
“The suspension of the provisions of the statute requiring annual work to he done necessarily suspended the right of forfeiture. The forfeiture imposed by the statute was for failing to do the work which the law then required to be done. The suspendatory or amenda*94toiy act provided that the work hitherto required need not be done in 1893, and hence it follows that the right of forfeiture could not thereafter exist for any act omitted in that respect during that year. The enforcement of a forfeiture cannot be had when the law excuses the performance of the condition. The general rule is that statutes providing for forfeitures must be strictly construed. They are, to that extent, analogous to penal statutes; and the rule is well settled that actions on statutes in their nature penal, pending at the time of the repeal of such statutes, cannot be further prosecuted after such repeal unless the repealing act, in terms, saves the right to prosecute pending suits. There is no such thing as a vested interest in an unenforced penalty or forfeiture. Royston v. Miller, et al., 76 Fed. Reporter, Page 50.” (Emphasis added.)
It thus seems to me that under existing statutes and decisions that Ertl’s attempted ouster of his co-owners should fail. I would reverse the judgment of the learned trial court.