error to charge that because there is a dispute as to what is the custom, a forfeiture cannot be found.

The written laws of a district are presumed to be in force, and a custom contrary to them must be clearly proved. It is not competent to ask a witness if he knows of a custom of a district to prevent a thing the opposite of which was prescribed by the written rule. The rules and customs of one district cannot be introduced to vary those of another district.

Mining rules and customs must be reasonable. A custom requiring work to be performed directly in reference to ground in the district is not unreasonable. Where mining ground could not be worked profitably without going outside the district to run a bed rock, flume, or drain race to it, a custom requiring work to be done in the district to represent it might be unreasonable.

Boucher v. Mulverhill, 1, 306 (1871). Mining regulations provided "that no claim shall be recognized as legally held unless the prior claimant has personally pre-empted the same, with the exception of three claims allowed the discoverers for their prospecting. partners." Prospecting partners is not to be construed by the law of strict partnership. It includes those who furnish money and provisions, for which they are to receive interests in the mining grounds that might be discovered. This rule is not against public policy, and should be upheld.

Robertson v. Smith, 1, 410 (1871). "The clause 'subject to such regulations as may be prescribed by law' reserves only the right to regulate the manner and conditions under which miners must work their claims, by legal enactments. The clause subject to the local customs or rules of miners in the several mining districts' refers evidently to the rules, customs, and regulations of miners in relation to the location, user, and forfeiture of mining claims. By no rule of legal construction that I am aware of can these clauses be made to refer to a reservation of a right to the public to construct a highway over located mining claims."

Orr v. Haskell, 2, 225 (1874). A book containing the rules and regulations of the miners of the district in which the mining land in controversy was situated is competent evidence under sec. 504, Civ. Prac. Act, and under sec. 207, same act, the jury may take said book to their room when they retire for deliberation.

Gropper v. King, 4, 367 (1882). When the rules and customs of a mining district are not in conflict with the laws of the United States or the Territory, they become a part of the law of the land, and when complied with in the taking up and locating mining ground, a grant from the government follows and title vests in the locator.

Mallett v. Uncle Sam G. & S. M. Co., 1, 188 (1865).

Nevada. Usually the mining claims in this State have been located with direct reference to the mining laws established in the district where the location is made. Such mining laws when once established are recognized by the courts, and indeed the legislature of the State has given them the force and binding obligation of legislative enactment (Stats. of Nev., p. 21, sec. 77). When those mining laws directly point out how mining claims must be located, and how the

possession once acquired is to be maintained and continued, that course must be strictly pursued. A failure to do so works a forfeiture, not a strict forfeiture," but a kind of forfeiture recognized by the courts of this coast from the earliest day, and which is certainly founded upon rational and just principles." When, a court presumes title in a first appropriator, it can only be a title subject to the conditions imposed by the mining laws and customs under and by virtue of which it was acquired. In the absence of mining laws, the miner locating a claim holds only by actual occupancy and by such working for the development of the mine as would under all the circumstances be deemed reasonable, and his right of possession will only be continued by occupancy and use.

Öreamuna v. Uncle Sam G. & S. M. Co., 1, 215 (1865). Mallett v. Uncle Sam G. & S. M. Co. followed. It was not error to instruct the jury as follows: "To enable a party to maintain a right to a mining claim, after the right is acquired, it is necessary that the party continue substantially to comply with mining rules and customs established and in force in the district where the claim is situated upon which such right is made to depend."

Smith v. North American M. Co., 1, 423 (1865). Mining customs may be proved under the Nevada statute, however recent their date or short the duration of their establishment. The common law rules as to customs do not apply to them.

Leet v. John Dare S. M. Co., 6, 218 (1870). The mining regulations of the White Pine District provided that each claimant should be entitled to hold by location two hundred feet; that all locations should have two days' work done upon them annually for each location; that work done upon a portion of a location should be deemed done for the benefit of the whole of said location. Held, where a company located twelve hundred feet, "location" in the regulations meant the aggregate of the ground claimed by the parties, and not the interest of a single shareholder, and two days' work was sufficient to preserve the claim from relocation for a year.

Golden Fleece G. & S. M. Co. v. Cable Consolidated G. & S. M. Co., 12, 312 (1877). "All that the government requires to be done in order to obtain its license to occupy is prescribed by the law, and in the absence of local rules a compliance with the public law will secure the claim. The miners in their respective districts may, if they choose, exact something more; but they are not obliged to do so, and no court, in the absence of proof, will presume that they have done so.' "Proof of a record is totally irrelevant without proof of some regulation making a record obligatory or giving it some effect." For neither of these does the law provide, leaving their enactment to the miners of the respective districts.

Gleeson v. Martin White M. Co., 13, 442 (1878). It seems that the act of 1872 was a revocation of local rules requiring notices and record, and if a locator chose to mark his boundaries at once, the validity of his claim was not affected by his failure to record. These provisions of the local rules, if remaining in force, only serve to protect the claim during the time reasonably necessary for tracing its course and marking its boundaries. But if such rules were re-enacted

after the passage of the act of 1872, then compliance with them became essential.

Poujade v. Ryan, 21, 449 (1893). The court will not take judicial notice of the existence of a rule requiring claims to be recorded. Such rule, if it exists, must be proved like any other fact in the case.

Marshall v. Harney Peak T. M. M. & M. Co., 1, South Dakota. 350 (1890). In the absence of proof of regulations, it will be presumed that none exist.

Roberts v. Wilson, 1, 292 (1876). "In order to introduce the Utah. written local mining laws of a district, it is necessary that it should appear aliunde that the copy comes from the proper repository, and that such party was empowered to give a certified copy so as to become evidence, and that such was a copy of the laws prevailing and in force in the district at the required date. These things have not been, and could not be, shown by the certificate attached to the alleged laws. Nor is there any authority for showing them by affidavit. This could only be done by express statute, and no such statute exists. In attempting to prove these facts the opposite party is entitled to his right of cross-examination, from which he is cut off if ex parte affidavits are sufficient."

McCormick v. Varnes, 2, 355 (1878). Congress has given to the local laws and customs of miners the force and effect of laws, so far as they are not in conflict with any superior law.

LAND OFFICE DECISIONS.

A location notice which, after naming the locators and their interests to the extent of 1,000 feet, concludes: "We claim 500 feet easterly and 500 feet westerly, situate about 200 feet easterly from the Sacramento," is sufficient under mining rules which require the notice to state" the number of feet claimed in the location and number claimed each side of monument," and that "in making a record of location of any claim the same shall be definitely described with reference to some natural or artificial monument."

Where the district rules provide that "the recorder in person or through his deputies go on the ground before filing a location for record and see that the proper notice and monument are placed thereon, and note on the notice and in a book for that purpose the locality of said location," the fact that notice was filed and recorded is corroborative evidence that the locator had complied with the law in the matter of location. Red Pine Mine, Copp, 158 (1875).

"The laws adopted by miners of a district must remain in force until amended, or repealed by the same authority that established them, or until abolished or modified by a law of the United States, or of the State or Territory within which the district is situated." An applicant for a patent, who had not complied with the local regulations, alleged that they were obsolete, and proved that a majority of locators in the district had disregarded them, though some had located in accordance with them. This was held not to establish the allegation, and the application was refused. Chavanne Quartz Mine, Copp, 283 (1880).

PROPERTY in a mining claim may be lost by abandonment. This is a voluntary act, and consists of relinquishing possession of the claim with an intention not to return and occupy it. The claim then becomes again a part of the unoccupied and unappropriated public domain, open to location by any one. Abandonment is purely a question of intention, to be determined by a jury.1 If there is no animus revertendi, the desertion of the claim determines the property at once, without regard to the duration of the locator's absence. On the other hand, abandonment will not be presumed from mere lapse of time. The question is one of intention only, and lapse of time is only evidence of intention not to

return.

Abandonment must leave the land free to the appropriation of the next comer, whoever he may be. It must be an absolute desertion of the premises regardless of what may become of them in the future. It would logically follow that if the locator left in order that another might continue his possession, or expressed, upon leaving, the wish that a certain person might succeed him, this would not be an abandonment, but a gift, and it has been so decided in California. A different view, however, was taken in Murley v. Ennis, 2 Colo. 300, where the leaving without an intention of returning was treated as an abandonment, though he yielded up the possession to another on leaving. So the admission of another into a share of the claim is held in this view to be an abandonment pro tanto and an appropriation by the other 2 And see Black v. Elkhorn M. Co., 163 U. S. 445.

1 In New Mexico there is a statutory provision by which a claim may be abandoned by recording a certificate of such a purpose. Act Feb. 5, 1889, sec. 6, p. 42.

person. The former view, which treats this succession as a gift, is the better one, and seems to have subsequently had the indorsement of the Colorado courts in Omar v. Soper. It follows from this view that a relocation by the original locator is not an abandonment of the first location, although in the second location new parties are joined.

An abandonment can be taken advantage of only by one who has subsequently acquired rights in the property.

It need not be specially pleaded, but may be proved under the general issue.

Little Pittsburg Con. M. Co. v. Amie M. Co., 17 United States. Fed. 57 (1883), C. C. D. Colo. After a claim has been properly located, the owner of it may sell any part of it without prejudice to his right to hold the remainder. He may dispose of it, or any part of it, by grant or gift in any way that seems proper to him. The transfer of a part containing the discovery shaft is not an abandonment of the rest of the claim.

Doe v. Waterloo M. Co., 70 Fed. 455 (1895), C. C. Ap., 9th Circ. The discoverer of a vein posted a notice, and then verbally agreed to transfer to others one-half of the claim if they would complete the location. This was not an abandonment.

Black v. Elkhorn M. Co., 163, 445 (1896). See this case under Chap. XII., Div. I.

Davis v. Butler, 6, 510 (1856). An abandonment of a California. mining claim determines the right of the party thereto from the date of the act of abandonment. Having once abandoned his claim, he will not be permitted to come, within the time allowed for commencing civil actions by the Statutes of Limitations, to reassert or resume his claim to the prejudice of those who may have in the mean time appropriated it.

Partridge v. McKinney, 10, 181 (1858). The law will not presume an abandonment of property in a dam and ditch for mining purposes from lapse of time.

Waring v. Crow, 11, 366 (1858). The court charged: "Where an abandonment is sought to be established by the act of the party, the intention alone governs, and if such party leave a mining claim with the intention not to return, his abandonment is as complete if it last for a minute or a second as though it continued for years; but if he left it with the intention of returning, he might do so at any time within five years, provided there was no rule, usage, or custom of miners of such a notorious character as to raise a presumption of an intention to abandon." 1 This was held to fairly leave the question of the abandonment to the jury.

As the possession of one tenant in common is the possession of all, the mere fact that one such tenant or partner goes away and remains absent, leaving his associates in possession, creates no presumption of abandonment.

1 Subject now to law as to annual work.