A

time of the grant need not conform to the requirements of the mining laws of the United States as to the performance of annual labor. compliance with the local mining rules and regulations prescribed by the legislature of Nevada, if any there be, is sufficient for the purpose of maintaining the possessory right to such lodes." Sutro Tunnel Co., Copp, 302 (1881).

Where local law requires annual expenditure on placer claims, failure to make such expenditure subjects the claim to relocation. But where no relocation has been made, it is of no consequence whether work has been done since application for patent or not. J. P. Sears, Copp, 312 (1881).

Co-tenants who are alleged to be delinquent, and who have forfeited their rights under Rev. Stats. 2324, even when in fact they are not so, must protect their rights by filing adverse claims. Grampian Lode, 1 L. D. 544 (1882).

A claim is not subject to relocation in the interim between entry and issuance of patent for failure to perform annual work. Harrison, 2 L. D. 767 (1884).

When the parties owned two adjoining claims, and a drift in one of them was run in the direction of the other, under the advice of mining experts, with a view to the improvement of both, it is available to hold both. McNeil v. Pace, 3 L. D. 267 (1884).

When application is made for a patent upon a placer mining claim embracing several locations, an adverse claimant may prove abandonment of any one of such locations by failure to make annual expenditure upon it or upon a common claim for its benefit, and the possessory right will fail even though the adverse claimant may not show in himself a good adverse title by reason of a like failure. Good Return M. Co., 4 L. D. 221 (1885).

In a claim located after May 10, 1872, failure to make the annual expenditure required by the statute renders the claim subject to relocation in the same manner as if no location of the same had ever been made, provided that work has not been resumed thereon after such failure, and before relocation. Little Pauline v. Leadville Lode, 7 L. D. 506 (1888).

Where several claims are embraced in one application, the annual work required by statute may be done on one of such claims for the common benefit of all. Nichols v. Becker, 11 L. D. 8 (1890).

The burden of proof is upon the owner to show that such work is a part of a general scheme of improvement, and develops the claim as a whole. Dolles v. Hamberg C. M. Co., 23 L. D. 267 (1896).

The B. Co. made application for patent, and furnished all the evidence necessary to entitle it to make entry, but through an oversight failed to pay the sixty-five dollars which under Rev. Stats. 2325 should have accompanied the application. Under belief that its entry was complete, it suspended, and failed for two years to do the annual labor required by the law. The claim was then relocated by one who applied for patent. The company discovering its default, tendered the sixty-five dollars, which was refused, on account of the intervening claim. Held, that the claim had been abandoned, and was open to relocation. Ferguson v. Belvoir M. & M. Co., 14 L. D. 43 (1892).

CHAPTER X.

LOCAL MINING RULES AND REGULATIONS.

PRIOR to 1866 no law was enacted by Congress providing for the sale of the public mineral lands or regulating mining thereon. This gave rise to a phenomenon unique in the history of American law. During the interval between 1849 and 1866 there grew up and was established a common law of mining, a law created and enacted by the miners themselves, which was almost at once recognized as a part of the law of the land and has since received the endorsement of legislative action. This law is the code of mining rules, regulations, or customs in force in each of the different districts. The system had its origin in the early mining camps of California, and the example there set was followed by all the miners on the public domain. The lands in which large deposits of the precious metals were found upon the Pacific slope were the property of the United States, were unsurveyed, and not open by the law to settlement. These the miners penetrated, explored, and developed. Their right to do so, and the title they acquired by engaging in mining upon the public domain, have been considered. But they found there no law to govern them in any of their relations. They accordingly assembled in miners' meetings, and there enacted codes of law for their government. For this purpose the country was divided into districts, each having its own set of district regulations or customs. These rules were generally in writing, and they bore a marked similarity in their provisions. They usually first defined the name and boundaries of the district; secondly, the number and kind of officers to be elected from time to time; and then fixed the extent and number of the claims that might be located, the qualifications of the locator, the manner of designating the claim-generally by posting and recording a notice - the amount of work required to hold the claim; and sometimes established a judicial system for the trial of causes and the enforce

ment of the regulations. Their differences were those that arose from the extent and character of the mines and the kind of mining carried on in the different districts. But they all recognized discovery followed by appropriation as the foundation of the possessory title, and development as the condition of its retention. The California Practice Act of 1851, sec. 621, provided that proof of "the customs, usages, or regulations established or in force at the bar or diggings embracing such claims" might be given in causes regarding them in justices' courts, and "when not in conflict with the constitution and laws of the State should govern the decision of the action." 1

But this effect, indeed, was given to them in all the courts, not only in California, but of the other mining States. They were the law by which, prior to 1866, the rights of conflicting claimants were determined; and the kind of property created by them found judicial recognition in the Supreme Court of the United States in Sparrow v. Strong, 3 Wall. 97.

The act of Congress of July 26, 1866, gave the sanction of law to these miners' rules so far as they were not in conflict with the laws of the United States. Section 1 of that act was as follows: "The mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the law of the United States."

Subsequent legislation specified with greater particularity the manner of location and appropriation and the extent of each mining claim, recognizing, however, the essential features of the rules. framed by miners, and among others those which made discovery and appropriation the basis of title, and required work on the claim for its development as a condition of its ownership. The sections of the Revised Statutes now in force recognizing these regulations are sections 2319, 2320, and 2324.

Until 1872 there was no limit to the power of miners' meetings to legislate, except the general principles of the law and the acts of the State and Territorial legislatures. But the act of 1872 has

1 See Code Civ. Proc. 1885, sec. 748.

superseded all the provisions of mining regulations upon all those subjects upon which it has made distinct provision, and the importance of these rules has been in consequence much diminished. It is, however, still competent for the mining districts to make regulations subject to the restrictions of the act. They may, within the limits prescribed by the act, fix the extent of claims; they may determine whether or not claims shall be recorded, whether and what posting of notice shall be done; they may make additional requirements in the manner of location, of marking boundaries and the like, and as to the amount of work. Beyond this they cannot now go. Their scope is confined to the regulation of the location and working of mining claims. And with reference to these they may only govern the rights of miners as between themselves. They cannot be invoked as against the government or the owner in fee of land, though he holds by patent from the government. Nor have they any effect against the occupants or owners of ground not the subject of mineral appropriation.

Regulations must be reasonable in themselves, and not in conflict with the laws of the United States or with those of the State or Territory in which the district is situated. If they are so, they are of no effect. Generally they are of binding force, but the act of Congress must not be construed in subordination to them. A patentee, for example, cannot by force of them acquire a greater estate than is by the law of the United States given to him. And a regulation of the amount of work necessary to hold a mining claim which is inconsistent with the requirements of Rev. Stats. 2324, or which fixes a less annual expenditure than that section, is entirely void. Rules imposing burdens or obligations in addition to those imposed by the act must be clear and positive, and not rest on inference or presumption.

While the mining districts may enact regulations, they are not bound to do so, and in the absence of proof it will not be presumed that they have done so. If they have not done so, a compliance with the law of Congress and of the State will secure the

1 Arizona, Rev. Stats. 1887, sec. 2349; Oregon, Hill's Ann. Laws, 1892, sec. 3832; Washington, Gen. Stats., secs. 2210, 2211, 2213; Wyoming, Laws 1888, ch. 40, secs. 1-3; Montana, Code Civ. Proc. 1895, sec.

2 Oregon, Hill's Ann. Laws 1892, sec. 3832; Utah, 2 Comp. Laws 1888, sec. 3472, p. 324; Washington, Gen. Stats. 1891, sec. 2213; Wyoming, Laws 1888, ch. 40, secs

1-3.

claim to the locator. To have the force of law, a regulation must be in force at the time of the location. It does not, like a statute, acquire validity by the mere enactment, but from the customary obedience and acquiescence of the miners following its enactment. It likewise becomes void by disuse; this disuse, however, must be general: it is not sufficient that the rule has been disregarded or violated by a few persons. Whether it has so fallen into disuse is a question of fact. To satisfy the Land Department of such disuse, an applicant for a patent, it seems, must show that it is without exception. A locator, therefore, who intends to apply for a patent should not treat a regulation as obsolete if it is at all regarded.

Where a regulation has fallen into disuse, a custom reasonable in itself and generally observed, though contrary to the regulation, may be proved. But the written rules are presumed to be in force, and proof of a contrary custom must be clear. A witness may not be asked if he knows of a custom to prevent what the written rule prescribes,—at least, before the rule has been shown to have fallen into disuse. The existence of mining regulations is a fact, and must be proved as a fact whether in court or in the Land Office. Judicial notice will not be taken of them. Upon the person relying on them lies the burden of proving them. This is done by producing the original rules when in writing. They are generally deposited with some public officer, as the county recorder. When it is proved that rules were adopted and recognized, they become admissible in evidence. The fact that the meeting at which they were adopted was held upon a day different from that named in the notice thereof, does not, in the absence of fraud, render them inadmissible. And an alteration in one article of regulations after their adoption does not change the legal effect of the other articles.

When it is sought to prove regulations by copy, it should be shown that the copy comes from the proper depositary, and that he is empowered to certify copies so that they may become evidence. Neither these things nor the fact that such regulations prevailed in the district can be shown by the certificate itself or by other ex parte proof.

When the written regulations are deposited with some authorized officer, or recorded in his office, they may not be proved by parol evidence. Other evidence, however, besides proof of the