40. Compliance with miners' regulations | Rep. 411. Contra, King v. Edwards, 1 Mont. and customs in force is necessary to the valid- 235; 4 Mor. Min. Rep. 480. ity of a location. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304 (second trial, 17 Colo. 243; 29 Pac. Rep. 173); Sullivan v. Hense, 2 Colo. 424; 9 Mor. Min. Rep. 487; Cons. Republican Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490. 41. To prevail in an adverse suit a party, whether plaintiff or defendant, must show, not mere occupancy of the premises in controversy, but a compliance with law, customs and regulations. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304 (second trial, 17 Colo. 243; 29 Pac. Rep. 173); Bryan v. McCaig, 10 Colo. 309; 15 Pac. Rep. 413. 42. The rules and customs which point out the manner of locating mining claims are conditions precedent, which must be substantially complied with. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 43. The mining rules and regulations of a district (1865) govern the location of claims and maintenance thereof, and must be followed. Mallett v. Uncle Sam G. & S. M. Co., 1 Nev. 188; 1 Mor. Min. Rep. 17. 44. The location must be made in compliance with the United States laws and with miners' rules and regulations. Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429. 45. A forfeiture may take place by failing to comply with local rules and regulations of miners. St. John v. Kidd, 26 Cal. 263; 4 Mor. Min. Rep. 454. 46. The law presumes that locators forfeit their rights by failing to comply with local rules and customs relative to annual work, although no penalty is specified by such rules and customs. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 47. The failure of a party to comply with a mining rule or regulation cannot work a forfeiture of his title thereto, unless the rule so provides. Rush v. French, 1 Ariz. 99; 25 Pac. Rep. 816; Johnson v. McLaughlin, 1 Ariz. 495; 4 Pac. Rep. 130; McGarrity v. Byington, 12 Cal. 426 (1859); 2 Mor. Min. Rep. 311; Bell v. Bed Rock T. & M. Co., 36 Cal. 214; 1 Mor. Min. Rep. 45; Jupiter M. Co. v. Bodie Cons. M. | Co., 7 Eawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. 48. Forfeiture of a mining claim under mining laws must be specially pleaded, and cannot be shown under the general issue. Morenhaut v. Wilson, 52 Cal. 263; 1 Mor. Min. Rep. 53. 49. Error in the notice of location in a particular not essential under the law or regulations and customs of miners is harmless and does not vitiate a description otherwise good. Metcalf v. Prescott, 10 Mont. 283; 25 Pac. Rep. 1037. (Citing Gamer v. Glenn, 8 Mont. 371; 20 Pac. Rep. 654; Flavin v. Mattingly, 8 Mont. 242; 19 Pac. Rep. 384; Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153; 130 U. S. 291.) 50. "A person who makes a valid location of a mineral ledge or lode, and complies with the laws and the local mining rules in respect thereto obtains a vested right to such prop erty, of which he cannot be divested." Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503. 51. The right to a mining claim vests by the taking thereof in accordance with local Mor. Min. Rep. 311 (1859); Dutch Flat Water rules. McGarrity v. Byington, 12 Cal. 426; 2 Co. v. Mooney, 12 Cal. 534 (1859). 52. The right to occupy, explore, and extract the precious metals in the mineral lands of the United States becomes vested in the party who located these lands according to local rules and customs of the mining district in which they are situated. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196. 53. It is presumed, in the absence of evidence, that parties in possession of mining claims hold them according to the rules and customs of the miners in the district. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196. 54. A person who makes improvements upon public land, knowing that he has no title, and that the land is open to exploration and sale for its minerals, and makes no effort to secure the title to it as such, under the laws of Congress, or a right of possession under the local customs and rules of miners, has no claim to compensation for his improvements as an adverse holder in good faith, when such sale is made to another and 74 the title is passed to him by a patent of the United States. Sparks v. Pierce, 115 U. S. 408. 55. When plaintiff's ownership and right of possession are put in issue by answer, he must show affirmatively compliance with the act of Congress and local rules and regulations, and that he had thereby made a valid location. Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153; 130 U. S. 291. 56. Actual possession of a portion of a mining claim, according to the custom of miners in a given locality, extends by construction to the limits of the claim held in accordance with such customs. Hicks v. Bell, 3 Hepburn, 220 (1853). 57. A party claiming mining ground not actually possessed, and beyond the possessio pedis, must show his right thereto by constructive possession, and he can show such constructive possession only by physical works and monuments, or by compliance with local mining laws and rules. Roberts v. Wilson, 1 Utah, 292; 4 Mor. Min. Rep. 498. 58. Possession is good only as to that portion of the claim actually occupied and worked, unless the boundaries were plainly and prominently marked, or there was some local regulation giving possession of the whole of the ground claimed. Hess v. Winder, 30 Cal. 349 (1865); 12 Mor. Min. Rep. 217. 59. One attempting to hold by prior possession without reference to local mining customs must give notice to others by actual physical marks or monuments. If this is not done he can only hold to the extent of the land actually occupied and worked, as against others. Hess v. Winder, 30 Cal. 349 (1865); 12 Mor. Min. Rep. 217. 60. Where all the rules, laws, regulations and customs with reference to a mining claim have been complied with, a property right, prior to the issuance of patent, has been acquired that can be transferred or inherited. Suessenbach v. First National Bank, 5 Dak. 477; 41 N. W. Rep. 662. 61. The first locators of mining ground can work the claim with reasonable care and diligence; but a mining custom which would allow the total destruction of a junior location in a gulch below the prior location on ground which was vacant, cannot be maintained under any statute or common mining law. Lincoln v. Rogers, 1 Mont. 217 (1870). 62. "A mining claim is the name given to that portion of the public mineral lands which the miner, for mining purposes, takes up and holds in accordance with mining laws, local and statutory. It must under the law of Congress of 1872 (R. S., sec. 2320), be located upon at least one known vein or lode, but the vein or lode is not the whole claim." Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439; 9 Mor. Min. Rep, 616. 63. Before statutory enactment, the manner of locating mining claims and maintaining such locations was governed by miners' rules and customs, and compliance therewith was necessary to constitute a valid location or to maintain one. Cons. Republican Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490. 64. An adverse complaint must allege a location to have been made in accordance with mining district rules, and proof of compliance with them must be made. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304 (second trial, 17 Colo. 243; 29 Pac. Rep. 173); Sullivan v. Hense, 2 Colo. 424; 9 Mor. Min. Rep. 487; Cons. Republican Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490. 65. In an adverse suit each party must prove his right to a patent by a compliance with the statutes, State and Federal, and miners' rules and regulations in force relative to location, in order to recover a judgment for the ground in controversy. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304 (second trial, 17 Colo. 243; 29 Pac. Rep. 173). 66. A misdescription in the notice of the claimant to a quartz lead, posted up near the premises, in pursuance of the requirements of the mining laws of the district in which the land is situated, and where the lead is under ground and undeveloped, will not vitiate the claim. Johnson v. Parks, 10 Cal. 446 (1858); 4 Mor. Min. Rep. 316. 67. The fact that land is covered by a water right, held by local laws, will not bar entry thereof as a mill site. Charles Lennig, 5 L. D. 190. 68. The failure of an applicant to comply with local regulations will not justify suit by the United States to vacate the patent issued to him. Such failure should be made the subject of an adverse claim or protest during the pendency of the application. Robert Hawke, 5 L. D. 131. 69. Failure by one-third of the miners of a certain mining district to comply with State and local rules does not render applicable the maxim “communis error facit jus." O'Donnell v. Glenn, 9 Mont. 452; 23 Pac. Rep. 1018. 70. Mining district regulations may restrict placer locations to eighty rods in length. Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324; Landale v. Ives, 2 Idaho, 244. 71. The width of mining claims may be limited by local laws or regulations to twentyfive feet on each side of the middle of the vein. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 72. A regulation of a mining district requiring more work to be done to hold the claim than is required by United States law is void. Original M. Co. v. Winthrop M. Co., 60 Cal. 631. 73. Rules and customs of one district cannot be introduced to vary those of another district. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 74. A local mining regulation or custom adopted after location of a claim cannot be given in evidence to limit the extent of a claim previously located. Table Mtn. Tunnel Co. v. Stranahan, 20 Cal. 198; 31 Cal. 387 (1865); 9 Mor. Min. Rep. 457. 75. All mining rules and customs must be reasonable. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 76. Mining customs need not, like customs at common law, be shown to have been of long duration. Smith v. North American M. Co., 1 Nev. 423; 13 Mor. Min. Rep. 599. 77. Written mining district regulations, once adopted, are presumed to continue in force in absence of showing to the contrary. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Riborado v. Quang Pang M. Co., 2 Idaho, 131; 6 Pac. Rep. 125; King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 78. Mining district regulations established and recognized, have all the effect of legis lative enactments. Mallett v. Uncle Sam G. & S. M. Co., 1 Nev. 188; 1 Mor. Min. Rep. 17. 79. Local rules and customs of miners recognized discovery, followed by appropriation, as the foundation of the possessor's title, and development by working as the condition of its retention. Jennison v. Kirk, 98 U. S. 453. (Affirming Titcomb v. Kirk, 51 Cal. 288; 5 Mor. Min. Rep. 10.) 80. In the absence of a local custom allow ing it, one miner has no right to run a tailthe owner of such claim may fill up such race or flume over the claim of another, and race or flume by tailings deposited on his own ground. Ralston v. Plowman, 1 Idaho, 595; 5 Mor. Min. Rep. 160. 81. In the absence of local statutes or reg. ulations, a discoverer has a reasonable time within which to perfect his location. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542. 82. In the absence of local statutes or regulations, a discoverer has no time for marking his claim after discovery, but must proceed with diligence to perfect his location. Patterson v. Tarbell, 26 Oreg. 29; 37 Pac. Rep. 76. 83. In the absence of a local statute or regulation, there is no law which requires the locator of a mining claim to record a notice of location. Haws v. Victoria Copper M. Co., 160 U. S. 303; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; Harvey v. Ryan, 42 Cal. 626; 4 Mor. Min. Rep. 490; Thompson v. Spray, 72 Cal. 528; 14 Pac. Rep. 182: Souter v. Maguire, 78 Cal. 543; 21 Pac. Rep. 183; Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419; Sullivan v. Hense, 2 Colo. 424; 9 Mor. Min. Rep. 487; King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480; Golden Fleece G. & S. M. Co. v. Cable Cons. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450; Southern Cross G. & S. M. Co. v. Europa M. Co., 15 Nev. 383; 9 Mor. Min. Rep. 513; Poujade v. Ryan, 21 Nev. 449; 33 Pac. Rep. 659; Allen v. Dunlap, 24 Oreg. 229; 33 Pac. Rep. 675; Carter v. Bacigalupi, 23 Pac. Rep. 361. 84. The United States laws do not require location certificates to be recorded. This is governed only by State or mining district laws. Moxon v. Wilkinson, 2 Mont. 421; 12 Mor. Min. Rep. 602; Gamer v. Glenn, 8 Mont. 371; 20 Pac. Rep. 654; Freezer v. Sweeney, 8 Mont. 508; 21 Pac. Rep. 20; Souter v. Maguire, 78 Cal. 543; 21 Pac. Rep. 183. 85. Record of a location is required, if at all, by local laws or regulations. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529. 86. Record of a location is not required by the United States law in the absence of State statutes or local regulations. Southern Cross G. & S. M. Co. v. Europa M. Co., 15 Nev. 383; 9 Mor. Min. Rep. 513. 87. In the absence of a regulation of an organized mining district or a local statute, a notice of a mining location should be filed for record in the office of the county recorder of deeds. Rose Nos. 1 and 2 Lodes, 22 L. D. 83. 88. In the absence of a custom requiring it, the recording of a mining location is not necessary to give it validity; and where such a custom does exist, the fact that the notice is recorded before it is posted is not material. Thompson v. Spray, 72 Cal. 528; 14 Pac. Rep. 182. 89. In the absence of local statutes or rules, a claim is sufficiently marked if a stake be placed at the center of each end with a notice describing the length and width of the claim. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529. 90. In the absence of a local statute or regulation, a stake at each end of the lode line, properly marked, is a sufficient marking of the boundaries of a claim, as the boundaries may be traced from a definitely fixed center line. Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429. (Refusing to follow Holland v. Mt. Auburn G. Q. M. Co., 53 Cal. 149; 9 Mor. Min. Rep. 497; | Gelcich v. Moriarty, 53 Cal. 217; 9 Mor. Min. Rep. 498.) 91. Marking by placing a stake at the discovery point, and one at the center of each end, on the croppings, is sufficient, in the absence of local statutes or regulations to the contrary, without marking the corners of the claim. Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429. 92. No particular mode of marking is required in the absence of local laws or regulations. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 93. In the absence of local statutory requirement, a location notice recorded need not be a copy of the notice posted on the claim, as the United States law does not require any notice to be posted on claim. Gird v. California Oil Co., 60 Fed. Rep. 531. 94. When no mining regulations or customs are in force in a district where a mining claim is located, general customs then in force may be given in evidence upon the question of the reasonableness of its extent. A general uniform custom should be proved, if one exists. Table Mtn. Tunnel Co. v. Stranahan, 20 Cal. 198; 9 Mor. Min. Rep. 457; 31 Cal. 387 (1865). 95. In the absence of local regulations, the quantity of mining ground which may be located is restricted to a reasonable area. This question will be determined by the general usages and customs prevailing upon the subject. Table Mtn. Tunnel Co. v. Stranahan, 20 Cal. 198 (1862); 9 Mor. Min. Rep. 457. 96. In the absence of local statutes or rules, writing is not necessary to the conveyance of a mining claim. Lockhart v. Rollins, 2 Idaho, 503; 21 Pac. Rep. 413. 97. Miners' rules required possession of a mining claim to be predicated on a discovery and maintained by development work. Cons. Rep. Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490. (Following Jennison v. Kirk, 98 U. S. 453.) 98. Local regulations requiring certain assessment work to be done on each location, held not to mean that it must be done on every two hundred feet of the entire claim held by several persons, but on the whole claim, irrespective of the number of locations or feet. Leet v. John Dare S. M. Co., 6 Nev. 218; 4 Mor. Min. Rep. 487. 99. The quantity of ground a miner can claim by location, or prior appropriation for mining purposes, may be limited by the mining rules of the district, but such rules cannot limit the quantity of ground or the number of claims a party may acquire by purchase. Prosser v. Parks, 18 Cal. 47 (1861); 4 Mor. Min. Rep. 452. 100. The mere fact that a suit involves proof and construction of local mining laws, rules and regulations will not justify removal of the case to a Federal court as a case arising under the laws of the United States. Trafton v. Nougues, 4 Sawy. 178. 101. The jurisdiction of the State or the mining district is limited to laws and ruler affecting extent and manner of working min ing claims. Territory v. Lee, 2 Mont. 124; 6 | cannot be diverted by any mere neighborhood Mor. Min. Rep. 248. 102. Judicial notice will not be taken of mining district regulations. They must be proven like any other fact. Sullivan v. Hense, 2 Colo. 424; 9 Mor. Min. Rep. 487. 103. State laws or local regulations cannot relieve mine holders from the requirement of the United States laws with regard to annual expenditures for the benefit of claims. Sweet v. Webber, 7 Colo. 443; 4 Pac. Rep. 752; 4 West Coast Rep. 116. 104. The legality of mining district regulations must be decided by the court, and not left to the jury. Ralston v. Plowman, 1 Idaho, 595; 5 Mor. Min. Rep. 160. 105. Where local rules of miners exist, controversies affecting a mining right must be determined by the customs and usages of the bar or diggings where such right is asserted or denied, whether such customs are written or unwritten. Morton v. Solambo M. Co., 26 Cal. 527; 4 Mor. Min. Rep. 463. 106. The question of possession of mining claims under the California laws, rules, and customs, discussed. Atwood v. Fricot, 17 Cal. 37 (1860-61); 2 Mor. Min. Rep. 305; English v. Johnson, 17 Cal. 107 (1860-61); 12 Mor. Min. Rep. 202. 107. Courts must construe local mining rules and customs, and require owners of mining ground to develop and work such ground if consistent with law. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 108. Mining district laws when introduced in evidence are to be construed by the court, and whether by virtue of such laws a forfeiture has accrued is a question of law and cannot be submitted to the jury. Fairbanks v. Woodhouse, 6 Cal. 33 (1856); 12 Mor. Min. Rep. 86. custom or regulation. Waring v. Crow, 11 Cal. 366 (1858); 5 Mor. Min. Rep. 204. 111. If a patent is issued contrary to the regulations of a mining district in force, it is void, at least in so far as it is so in conflict, and may be attacked collaterally. Parley's Park S. M. Co. v. Kerr, 130 U. S. 256. 112. A location made prior to the mining act of 1866 is valid if made according to the then existing local laws and customs. Glacier Mtn. S. M. Co. v. Willis, 127 U. S. 471. 113. A corporation interested in mining may be represented by an officer or agent at a meeting of miners called to frame mining district rules and regulations. McKinley v. Wheeler, 130 U. S. 630. 114. It is not within the province of the General Land Office to instruct mining recorders. Com'r to J. O. Fain, Jan. 18, 1892. LOCATION. I. THE STATUTE II. REGULATIONS. III. DECISIONS. 1. Marking. 2. Posting. 3. Record. 4. Relocation. 5. General. I. THE STATUTE. (See sec. 2324, U. S. Rev. Stat., p. 70.) II. REGULATIONS. 9. From and after the 10th May, 1872, any person who is a citizen of the United States, or who has declared his intention to become a citizen, may locate, record, and hold a mining claim of fifteen hundred linear feet along the course of any mineral vein or lode subject to location; or an association of persons, severally qualified as above, may make joint location of such claim of fifteen hundred feet, but in no event can a location of a vein or lode made subsequent to May 10, 1872, exceed fifteen hundred feet along the course thereof, whatever may be the number of persons com 109. When the regulations of a mining locality require that every mining claim shall be worked two days in every ten, held, that the efforts of the owners to procure machinery for working the claim are by fair intendment to be considered as work done on the claim. Packer v. Heaton, 9 Cal. 568; 4 Mor.posing the association. Min. Rep. 447 (1858); McGarrity v. Byington, 12 Cal. 426 (1859); 2 Mor. Min. Rep. 311. 110. Where parties' rights to a mining claim are fixed by the rules of property, which are a part of the general law of the land, they 10. With regard to the extent of surfaceground adjoining a vein or lode, and claimed for the convenient working thereof, the Reof locations of veins or lodes made after May vised Statutes provide that the lateral extent 10, 1872, shall in no case exceed three hundred feet on each side of the middle of the vein at |