Boundaries of claim must be visible and notorious.

Mining

customs or rules.

property of his co-owners who have made the required expenditures.

As to the Surface Boundaries.-It has been decided that a mining claim need not be fenced (Rogers v. Cooney, 7 Nev. 213), but the boundaries must be distinct, visible, and notorious (English v. Johnson, 17 Cal. 107), but where a man, at the time of location, establishes monuments, the boundaries of his claim are fixed by such monuments, so that he cannot afterwards remove them to the injury of others (L. O. June, 1876). So also if one hold a mining claim by prior possession only, without reference to mining customs or regulations, he must make out his boundaries by physical marks so distinctly that any person can tell what these outside boundaries are (Hess v. Winder, 30 Cal. 349) (and see p. 13 above).

Leave is given by this section to the miners of each district* to make their own laws and regulations on these subjects, provided such laws are not in conflict with the U. S. laws, or those of the State or Territory. We will briefly shew what these Miners' Regulations, Local Customs, or Rules of Miners (§ 2319) or Local Regulations (§ 2312) are which are by this Act, and the previous statute of July, 1866, engrafted upon and made a part of the Mining Law of the U. S.

Formerly, that is before there had been any legislation on the subject of mining claims either by the Federal or the State or Territorial Governments, the Miners' Rules and Miners' Customs were the only laws regulating the rights of miners inter se, &c. In those days, therefore, these rules or regulations were of far greater importance than they are now. For then they were the only law on the subject, now they are obliged to conform to the provisions of this Act, and also to the laws of the State or Territory, and where there is a conflict between the local customs and the state or territorial legislation, the latter, as being of superior authority, governs (Basey v. Gallagher, 20 Wallace, 670-U. S. Sup. Court). "The

* These districts are very numerous, there being nearly 500 in California, and about as many in each of the States of Nevada and Colorado, not to mention those in the territories of Utah, Arizona, Montana, and Idaho. Some districts comprise a hundred square miles, others not more than two. Each of these has its set of written regulations.

How made

formerly.

rules con

tained.

miners used to come together in mass meetings of from 5 to 500 men, at twenty-four hours notice, and pass laws or 'customs' which required no more formalities to abolish than to make them. A notice posted on a door, a mass meeting next day, and the thing was done. The records of title were kept by an officer called a Recorder, not known to the law, and not answerable for malfeasance in office. In a few districts the records were kept in fire-proof safes, but more frequently under the counter, and behind the flour-barrels" (Professor Raymond's Report to Congress in 1869). The written regu- What those lations usually defined the name and boundaries of the district, the number of officers, the number of feet on the lode, and the amount of surface ground allowed, the amount of work required to hold a claim, the stating of boundaries, the allowance of an additional claim to the discoverer, and various other points which are to be found in the Spanish and Mexican Codes. But since those days changes have taken place, and among them not the least important is that which requires the mining records of any district to be filed with the Clerk of Probate or Recorder of the country in which the district is situate, who is a responsible State officer. Few new Modern districts will hereafter be formed, but in those created since the district rules. 10th of May, 1872, the Rules provide for (1) the length or width of the surface claim, subject to the Mining Acts of Congress and the State; (2) The length of time from discovering within which claims must be recorded; (3) Time within which the development must be completed; (4) The duties of officers; (5) The fees chargeable for recording claims, and copying the same; and (6) Provisions for referring all disputes to arbitration, i.e., to a miners' tribunal, analogous to the tribunals of the Spanish law, and the Stannaries of Cornwall.

It has been decided that the Courts will not inquire into the regularity of the modes by which district rules have been enacted, except fraud or like cause be alleged (Gore v. McBrayer, 18 Cal. 588). It is not necessary that these rules should be in writing (Harvey v. Ryan, 42 Cal. 627), and where it is doubtful if the written rules are in force, parol evidence of the mining customs may be given (Colman v. Clements, 23 Cal. 245), the existence of a district mining rule being a question for a jury (Harvey v. Ryan, 42 Col. 627), and the presumption of law is, that those who are in

May be proved

by parol

evidence.

Not the Common Law customs.

must not be unreasonable.

possession hold according to the local laws, unless the contrary is shown (Robertson v. Smith, 1 Mont. 410). These customs are not the ancient customs of the Common Law, which, to have force, must be from time immemorial, but they are the usages which grow out of the regulations or rules of the miners by practice, and are appurtenant to them (Yale, 86; Smith v. North American Mining These customs Co., 1 Nev. 423). In order to be binding, these regulations must not be unreasonable, as in Lincoln v. Rogers (1 Mont. 221), where the custom was to allow the tailings of a prior locator on a stream to run down over the workings below (see also King v. Edwards, 1 Mont. 239); nor must they be contrary to public policy (Boucher v. Mulverhill, 1 Mont. 306; Morton v. Solambo Co., 26 Cal. 527; Gore v. McBrayer, 18 Cal. 582). In the absence of any miners' laws applicants for a patent are required to shew compliance with the Federal and State laws (L. O., May, 1873).

Nor contrary to public policy.

It will be noticed that $100 worth of labour is required in each claim in each year until the issuance of the patent. Hence it will not satisfy the requirements of the Act for a person to spend a larger amount than $100 on labour one year and less subsequently; the expenditure must be annual. It will also be noticed that the word "claim" is used in this section, and that the words "mining claims are also used in § 2320. By the latter section a claim located since the 10th of May, 1872, cannot exceed 1500 feet in length along the lode; but in this section reference is made to claims located prior to the 10th of May, 1872, i.e., under the law of the 26th of July, 1866. By section 4 of that Act a claim consisted of 200 feet (with an additional 200 feet for the discoverer), with a maximum of 3000 feet for any number of persons, and a claim is, in the Act of 1866, regarded as made up of a number of 200 feet claims. It appears that, under this section, an expenditure of $20 would save 200 feet out of 3000 from forfeiture, but all the rest would be forfeited. Practically, however, patents have before now issued in most cases for "claims" located prior to the 10th of May, 1872, and therefore sect. 4 of the Act of 1866 has become of little importance. Since the 10th of May, 1872 (and until a patent has issued), the labour expenditure must be annual, dating from the location of the lode (Copp. 142), and hence it is necessary that the record should contain the date of location,

among co

owners.

otherwise a re-location is advisable, as the Land Office is strict upon the requirement of annual expenditure. This annual labour expen- Contribution diture must be made by one of several co-owners, if the others refuse to contribute; but he cannot save a portion of the claim by spending a portion of the $100 upon it; the whole burden may fall upon one co-owner, but if the others fail to contribute the delinquents forfeit their interest. It will be a sufficient compliance with Work need the statute if the work be done in proximity to the lode, but it need not be on the lode (McGarrity v. Byington, 12 Cal. 426; Rogers v. Cooney, 7 Nev. 213). In New Mexico, for the purpose of defining what amount of annual labour will be worth $100, it is provided by statute that a day's labour (of eight hours) shall be valued at $4. In Colorado, and the other States, the affidavit of the person In Colorado. making the expenditure is primâ facie evidence of the expenditure,

but such affidavit is usually supported by the affidavit of two "disinterested" persons.*

not be on the

lode.

In New Mexico

a day's labour valued at $4.

A re-location may be made in the case of (a) a claim forfeited for Re-location. non-compliance with this section, and the State Laws and Mining Rules, (b) A claim abandoned, (c) A claim which has been already located, but not abandoned or forfeited. The distinction between Distinction between forfeiture and abandonment is, that the former comes by non-com- forfeiture and pliance with the laws, while the latter is altogether a question of abandonment. intention (Yale, 81), and arises only where there has been naked possession without title, for where there is a title there can be no abandonment (Ferris v. Coover, 10 Cal. 589; Davenport v. Turpin, 43 Cal. 591). Hence, after patent has issued there can be no abandonment in the sense in which the word is used in the Miners' Rules. Under Spanish law a legal proceeding called "denouncement " was necessary to create a forfeiture, or abandonment, but under American law the claim becomes "jumpable." The term "for- Forfeiture. feiture," as used in the Mining Codes and Rules, is distinct from the forfeiture at Common Law, and means the loss of right, previously acquired, to mine a particular piece of ground, by neglect or

* In Arizona, by an Act of 1st Jan. 1865, the Spanish and Mexican system is made the basis of its mining laws, and the laws and proceedings of all mining districts for the denouncement, registration, and regulation of mining claims in force prior to the Act are thereby affirmed; but “placer mining is not considered mining proper" in that territory.

Co-owner.

Abandonment."

failure to comply with, the rules and regulations of the district (St. John v. Kidd, 26 Cal. 263). But the presumption of law is against forfeiture, and therefore the party who claims a forfeiture must be able to prove strictly all the facts necessary to constitute it (Colman v. Clements, 23 Cal. 245; Wiseman v. McNulty, 25 Cal. 230), and generally forfeiture is not enforced where the locator acts bonâ fide (Yale, 67), and in the cases that have come before the Courts the inquiry has been confined to the facts, so far as regarded the violation of particular rules, and not all of them (Packer v. Heaton, 9 Cal. 568; English v. Johnson, 17 Cal. 107), that is to say: forfeiture is the result of non-compliance with such of the rules as make non-compliance a cause of forfeiture, and the failure to comply with any one is not a forfeiture (McGarrity v. Byington, 12 Cal. 426). Upon forfeiture and until re-location, a claim reverts to the U. S.; but upon re-location the relocator may declare a forfeiture (King v. Edwards, 1 Mont. 235). Where co-owners have located a claim as tenants in common and afterwards forfeited it, the claim may be re-located by a part of the first locators, together with other parties who were strangers to the first location, and those whose names are left out cease to have any interest in the property (Strang v. Ryan, 46 Cal. 33).

The word "co-owners may mean tenants in common, or individual owners who have ceased to be tenants in common by a partition of interests. The question may arise whether, if one co-owner has spent more than the amount required by law, during any year upon a claim, he would be entitled to receive contributions from his co-owners for all his expenditure. The delinquent co-owner, who tendered his proportion of the amount required by this Act, would thereby save his interest from forfeiture, and would not be liable for his share of such extra expenditure unless he had given his consent to it, and if he had, the Courts would apply the ordinary principles of mining partnerships to the case. The question whether or not a co-owner may treat a claim on which the required work has not been done as forfeited, and relocate the same in his own name, has been decided in the affirmative (Strang v. Ryan, 46 Cal. 33), but neglect of labour does not work a forfeiture until entry by the co-owner.

As we have said, abandonment is altogether a question of inten