the public mineral lands, in antecedent acts of Congress. But long prior to any legislation upon the subject, the exploration and development of the mines were commenced, under circumstances which rendered impracticable an appeal to positive law, to determine the conflicting rights of those engaged in such enterprises. Aside from the fact that the rights asserted were of a nature so novel to our jurisprudence that the principles of the common law were found to apply but imperfectly, the scene of contention was in a locality unprovided with the judicial machinery necessary to a regular legal trial of the merits of conflicting claims. Necessity, therefore, compelled the miners to form voluntary associations, and adopt such rules as were necessary for the government of the camp or the district. These were, and still are, denominated District Rules. But even these rules, which were usually reduced to writing, and recorded in books kept for that purpose, were not always sufficiently comprehensive in their scope to meet the exigencies of every case. It therefore became necessary at times to appeal to the customary usages of a mining district to settle a question of disputed right. These usages thus received such sanction as could be given them at the time, by general acquiescence, and came to be regarded as of sufficient validity to furnish a rule of action at least for cases not comprehended in the body of written rules. These usages will be mentioned hereafter as Miners' Customs. The rules and customs will be considered together, for the reason that it is difficult to tell which of the two -rules or customs-are of paramount authority.

§ 2. Rules and customs recognized by the courts. -As often as these rules and customs have been brought into question in the courts, they have been sustained by judicial authority, in so far, at least, as they were found reasonable and not in conflict with positive law, and

when clearly established have been generally, if not universally, recognized as fixing the rights of all those within the district where the rule or custom in question was in force, as definitely as could be done by statute.1 And it will be seen by consulting the authorities that this recognition of mining rules and customs is independent of any statutory provision acknowledging their validity. The reason of their recognition is well expressed in the opinion delivered in King vs. Edwards: "The mining customs of any particular mining district have the force and effect of laws, or in other words are law

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as effectual as acts of Congress, for they are the American common law on mining for precious metals."3

1 Hicks vs. Bell, 3 Cal. 219; Fairbanks vs. Woodhouse, 6 Cal. 434; Jenny Lind Co. vs. Bower, 11 Cal. 194; English vs. Johnson, 17 Cal. 106; Brown vs. '49 & '56, &c. Co., 15 Cal. 152; Gore vs. McBrayer, 18 Cal. 583; Coleman vs. Clements, 23 Cal. 245; St. John vs. Kidd, 26 Cal. 263; Bradley vs. Lee, 38 Cal. 362; Strong vs. Ryan, 46 Cal. 33; Robertson vs. Smith, 1 Mont. 410; Belk vs. Meagher, 3 Mont. 65; Smith vs. North American M. Co., 1 Nev. 123; Leet vs. John Dare Silver M. Co., 6 Nev. 218; Golden Fleece vs. Cable Con. M. Co., 12 Nev. 312; Cases cited infra; Sparrow vs. Strong, 3 Wall. 104; Basey vs. Gallaghear, 20 Wall. 670; Atchison vs. Peterson, 20 Wall. 507. 2 1 Mont. 235.

3 See remarks of Senator Stewart, of Nevada, on common law of miners and origin of rules and customs, 3 Wall. 100, 777.

§ 3. Recognition by Congress.-Though no formal acknowledgment of the existence and force of these rules and customs was ever made by the national legislature until as late as the year 1866,1 yet mineral lands had already been expressly reserved from sale, except as specially provided for by law. And in the previous years there had been, if not a recognition of the prevailing rules and customs under which mining was carried on, at least a recognition by Congress of the fact that the public lands were occupied for such purposes, and a

distinct acknowledgment of the possessory rights acquired by miners under these rules and customs.3 When, in 1872, the first section of the act of July 26, 1866,4 was repealed, by the substitution of a section of the Revised Statutes of substantially the same import,5 the recognition of these local rules and customs was not omitted. But it will be observed that, by the act of 1872, which embodies most of the congressional legislation upon the subject, and will be found fully set out in another place,6 many provisions were made for the determination of miners' rights, with respect to matters theretofore left entirely to regulation by the miners themselves.

1 Act of Congress July 26, 1866.-"§ 1. 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 intentions 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 laws of the United States." 2 Act of Congress July 4, 1866.-Rev. Stat. U. S. § 2318; post, p. 13.

3 Act of Congress February 27, 1865.-"§ 9. 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." Rev. Stat. U. S. § 910. 4 Supra.

5 Rev. Stat. U. S. § 2319; post, § 12 et seq., p. 13.

6 Title xxxii, Chapter 6, Rev. Stat. U. S.; post, § 12, p. 12.

§ 4. Paramount authority of acts of Congress.— In so far as these provisions extend, they entirely supersede all mere local regulations upon the same subject, and abrogate all those in conflict. The ownership of the property, with respect to which the license to occupy is given, necessarily gives the federal government the parad mount right to fix the terms upon which it shall be occad

pied and appropriated, and but for the provision which occurs in several places in the federal statute, subjecting the rights of miners upon the public domain to the local law of the state or territory in which the public lands lie, it would be doubtful whether they could be affected by other than congressional legislation, except as they might be indirectly operated upon by the state legislature in the exercise of the police and taxing powers of the state. The statutory recognition of these rules and customs, it will be observed, is, in every instance, qualified by substantially the same proviso, by which the courts have from the first reserved the right to declare them void-that they should not be contrary to positive law. Therefore, when a local mining rule is invoked to defeat the title of the United States, or of one holding under a patent granted in pursuance of the laws of the general government, it will be held ineffectual.2

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1 "* * * Under regulations prescribed by law, and according to the local customs," etc. Rev. Stat. U. S., § 2319. "* * Shall be governed as to length along the vein or lode by the customs, regulations and laws in force," etc. Rev. Stat. U. S. § 2320. 66* * * So long as they comply with the laws of the United States, and with state, territorial and local regulations, not in conflict with the laws of the United States governing their possessory title," etc. Rev. Stat. U. S. § 2322. Basey vs. Gallaghear 20 Wall.

670; Golden Fleece Co. vs. Cable Co., 12 Nev. 312.

2 Fremont vs. Seals, 18 Cal. 433; Yosemite Valley Case, 15 Wall. 77; Prosser vs. Parks, 18 Cal. 47.

§ 5. Existence of custom, question of fact, Evidence. Whether there is a custom, or a distinct rule, is a fact, like any other to be established by the best evidence. And in one case, at least, it has been held that a transcript from the record books in which the rules were copied by a designated officer, could not be offered in ⚫ evidence upon the strength of such authentication as it t might receive from a certificate of the custodian. It was

decided that the correctness of the transcript must be established by evidence aliende.2 The book of rules itself, however, is competent evidence to prove that the rule had been adopted,3 though this proposition was, in one case, qualified by the statement that it was good secondary evidence of a sale.4 It is probable that the book of rules, when properly identified, would be the best evidence; but where parol evidence had gone in without objection that it was not the best evidence, and the written rule was subsequently introduced, it was held no error to allow both to go to the jury.5 The evidence of customs is the same as is requisite to establish any kind of custom. The custom to be primarily established is a local one; but in the absence of any local custom controlling the matter in controversy, a general custom may be proven. It is held, however, that a general custom cannot be established by proof of local customs in other districts,6 by a court of high authority in mining matters.

1 Sullivan vs. Heuse, 2 Col. 424; King vs. Edwards, 1 Mont. 235. 2 Roberts vs. Wilson, 1 Utah 292.

3 Orr vs. Haskell, 2 Mont. 225; Harvey vs. Ryan, 42 Cal. 626.

4 St. John vs. Kidd, 26 Cal. 263.

5 Colman vs. Clements, 23 Cal. 245.

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

§ 6. Whether custom is in force.-It is not sufficient to show that a custom had prevailed, or that a certain rule was adopted. It devolves upon any one invoking the aid of either custom or written rule, to show that it is still in force, if such an issue is made.1 The rule to affect the right must have been in force at the time the right was acquired, or the acts done by virtue of which it is claimed, as these rules cannot have retroactive operation; 2 though it was held, in one case, that a subsequent rule might be given in evidence to show by what right the party claimed, the effect of such evidence being