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in that district * it devolved upon the appellant to show it, as this would be considered an amendment to, or modification of, the former custom."4 This places both upon the common footing of recognized usages, and gives effect to the latest. This being the case, it would be safe to say that a written rule adopted at the miners' meeting, as an expression of their acquiescence, would abrogate previous custom among the miners of the district. It has also been held that general recognition of a miner's right to a claim will give him a good title where the location was not made in strict accordance with local rules.5

1 California Practice Act, § 3, p. 621.

2 Harvey vs. Ryan, 42 Cal. 626.

3 Ibid.

4 King vs. Edwards, 1 Mont. 235.

5 Kinney vs. Consolidated Va. M. Co., 4 Sawyer, 382; Harris vs. Equator M. & S. Co., 2 Col. Law Rep. 63.

§ 8. Pleading.-Whether the rule or custom must be specially pleaded, depends, in a great measure, upon the code provisions, or the practice of the different states and territories. But, in general, it is deemed sufficient under the code to allege that the property is claimed “by virtue of full compliance with the local laws and rules of miners," etc. And in California it has been decided that rules and customs may be shown when not specially pleaded, in support of an allegation of ownership.1 This, however, is somewhat modified as a rule of decision by a much later case in the same court. The modification or qualification, goes to the object for which the mining rule is invoked. Where the custom is relied upon by defendant for the purpose of showing a forfeiture by plaintiff, it is held that it should be specially pleaded.2 It is admitted in this case that abandonment, having the effect to leave the land entirely unoccupied, might be

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shown under the general denial. "But," says NILES, J., in delivering the opinion of the court, "the occupant of a mining claim does not lose his right of possession absolutely by a failure to comply with one or more of the local mining laws, although these laws declare a forfeiture as the result of such non-compliance. He may still remain in possession, under his original location, and is entitled to possession until such time as another shall enter and locate the ground in the manner prescribed by the mining laws, and avail himself of the default of the prior occupant. A defense based merely upon forfeiture does not involve a denial of the plaintiff's possession or right of possession, at the date of defendant's entry."3

1 Coleman vs. Clements, 23 Cal. 245.

2 Morenhaut vs. Wilson, 52 Cal. 263.

3 In this case the contrary views expressed in Bell vs. Brown, 22 Cal. 681, are expressly noticed and overruled.

§ 9. Construction of local customs.-In construing these local regulations and usages, for the purpose of determining their validity, force, and application to particular cases, courts will not look narrowly into the regularity of the proceedings of the miners' meeting by which they were adopted and promulgated. It is sufficient if it appear that the rule was agreed to by the miners, assembled on due notice, and they will only be disregarded for fraud, not on account of clumsiness of methods by which the expression was obtained. And even the alteration of one of several rules, after they have been passed and reduced to writing, does not affect the validity of the others.2 Courts will examine and construe rules and customs for the purpose of ascertaining their meaning,3 and when their meaning is reasonable, and not in conflict with the law, such rules and customs must be strictly pursued.4 For the reason that forfeitures are odious, they are construed strictly against such a conclusion.5 Local

rules have been sustained as reasonable, which provided for the amount of work to be done on a claim in order to hold it; how claims are to be located; 7 requiring a notice of location to be posted on or near the claim,8 and requiring a renewal of notice, under penalty of the claim being considered as abandoned.9

1 Gore vs. McBrayer, 18 Cal. 583.

2 T. M. Tunnel Co. vs. Stranahan, 31 Cal. 387.

3 Fairbanks vs. Woodhouse, 6 Cal. 434.

4 Oreamuno vs. Uncle Sam M. Co., 1 Nev. 215; Gleeson vs. Martin White M. Co., 13 Nev. 443; St. John vs. Kidd, 26 Cal. 263.

5 Colman vs. Clements, 23 Cal. 245.

6 Bradley vs. Lee, 38 Cal. 362; King vs. Edwards, 1 Mont. 235; Leet vs. John Dare Silver M. Co., 6 Nev. 218.

7 Mallet vs. Uncle Sam M. Co., 1 Nev. 188.

8 Harvey vs. Ryan, 42 Cal. 626.

9 Strong vs. Ryan, 46 Cal. 33.

§ 10. Rules and customs affected by state laws.— In many of the details for carrying into execution the laws in regard to mining upon the public domain, Congress has delegated the power to legislate to the lawmaking powers of the states and territories in which the mineral land is situated. So far as this power is exercised it supersedes or abrogates the district rules, saving all rights previously acquired. But these district rules and customs have been recognized by local legislatures.1 The construction of state and territorial legislation will receive attention in subsequent chapters, where a large part of the mining laws now in force of the several mining states and territories will be found compiled and arranged.2

1 Laws of Nev. Ter. p. 16, § 4, and p. 21, §§ 74, 77. 2 Post, Ch. xv.

CHAPTER II.

LAWS OF THE UNITED STATES NOW IN FORCE.

SECTION 11-Arrangement of subsequent chapters.

12-Referring to Title xxxii, Chapter 6, and Title xiii,
Chapter 17, Revised Statutes of the United States.
13-Referring to the repeal provisions of the Revised
Statutes of the United States.

§ 11. Arrangement of subsequent chapters.- Having introduced the subject by a brief consideration of miners' common law, it is now proposed to give the acts of Congress, with the construction their provisions have received from the courts. Some portions of the federal statutes have been repealed, and others substituted by new enactments. The order in which it is intended to present the mining law, rules and decisions, in this and subsequent chapters, is as follows:

Second.

First. The laws of Congress now in force. The judicial construction of the federal law governing (1) lode claims; (2) tunnel rights; (3) placer claims; (4) mill sites; (5) timber; (6) easements; (7) coal lands; (8) homesteads and town sites in mineral districts; (9) patent. Third. Land office regulations; (1) the rules; (2) decisions of the executive department. Fourth. The local law; (1) miners' rights and remedies under (2) local statutes.

§ 12. Referring to Title xxxii, Chapter 6, and Title xiii, Chapter 17, Revised Statutes of the United States. Some of the repealed portions of the federal law have been noticed in the preceding chapter. As rights were acquired under those provisions which became the subject of subsequent litigation, and all of such

rights were expressly saved by the repealing act, or by a general provision in the Revised Statutes, it may be necessary to refer to some of them from, time to time, in which event they will be properly cited or set out. But as the Revised Statutes contain, under the above titles and chapters, nearly the entire body of national legislation upon the subject of mining, I deemed it expedient to insert these portions with amendments, in the order in which they are arranged in the 1878 edition of the revision, so that it may be conveniently referred to.2 The statutes referred to are too voluminous to be inserted in a note, so they will follow as the remainder of this section.

1 Post, § 13, p. 29; Rev. Stat. U. S. § 5597 et seq.

2 In the following pages I have preserved the original synopsis of sections, and interpolated amendments in the same form as they were added in the statutes, in cases where they were enacted in time to obtain insertion. The object of doing this in this manner, was to present the body of the law in a condensed form, thereby materially enhancing its value for purposes of reference, and at the same time save space which might have been needlessly taken up by frequently copying portions of the statute in order to show the application of the judicial construction.

REVISED STATUTES OF THE UNITED STATES.

TITLE XIII, CHAPTER 17.

§ 910. No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie, is in the United States; but each case shall be adjudged by the law of possession. (Act of Congress Feb. 27, 1865, § 9).

TITLE XXXII, CHAPTER 6.

MINERAL LANDS AND MINING RESOURCES.

SECTION 2318-Mineral lands reserved.

2319-Mineral lands open to purchase by citizens.
2320-Length of mining claims upon veins or lodes.
2321-Proof of citizenship.

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