as they allege, admitted plaintiffs' title, claiming only that the "Mountain Tiger" is a separate and distinct lode or vein.

The defendants certainly hold that the "Mountain Tiger" is a separate and distinct vein or lode, but do they admit that plaintiffs had any title to the "Coresa " lode? The answer says: "Defendants'deny that on the - day of March, A. D. 1870, or at any other day or date, said plaintiffs were seized in fee, or otherwise, of the said property described in said complaint, or that they were ever on said day of March, 1870, or at any other date, seized in fee, or otherwise, or possessed of, or entitled to the possession of, that portion of said premises hereinafter designated and set out as being in the possession of these defendants at the commencement of this suit." These denials apply first to the whole of the ground claimed, and the more especially to the part occupied by the defendants. Here we find an express denial of the plaintiffs' title, and there is nowhere to be found in the answer any admission thereof. The only supposed admission arises by inference to the fact that defendants allege that the "Mountain Tiger" is a separate and distinct lode from the "Coresa" lode. There are, therefore, two questions at issue in this case:

First. As to the title of plaintiffs to the "Coresa " lode; and,

Second. As to whether these lodes are one and the same or separate.

In proving plaintiffs' title was it necessary to introduce the mining laws of the district?

The United States Mining Law of 1866 says, that the public domain shall be open to "exploration and occupation by all citizens," etc., subject however "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."

The Supreme Court of California, in Attwood v. Fricot, 17 Cal. 43, says: "Mining claims are held by possession, but this possession is regulated and defined by usage and local conventional rules, and the actual possession,' which is applied to agricultural lands, and which is understood to be a possessio pedis, can scarcely be required in a mining claim in order to give right of action for the invasion of it. The claim

must be in some way defined as to limits, of course, before the possession of, or working upon part, gives possession to any more than that part so possessed or worked. But when the claim is defined, and the party enters in pursuance of mining rules and customs, the possession of part is the possession of the entire claim."

The converse of this proposition would require that in proving a claim, if its limits be not defined, and the entry be not in pursuance of the local rules and customs, the possession would give title only to the ground actually worked. And such is the doctrine of English v. Johnson, 17 Cal. 115, according to which, if no mining rules are sworn to exist under which the location was made and claimed, the party so claiming could, as against another party not claiming under the mining rules, hold his prior claim if its boundaries be "distinctly defined by physical marks," even without proving the local customs or rules.

The same court, in afterward commenting upon the case of English v. Johnson, just referred to, says: "While it has been the object and endeavor of the courts of this State to protect miners in the enjoyment of their mining locations on the public lands, justice and policy at the same time require some practical mode of notifying others of the extent of their claims. What that mode shall be, and what the extent of the mining claim may be, is generally regulated by the miners of the particular locality, whose rules in this respect are adopted as rules of law." And the court there says further, that in the absence of these local rules, "the boundaries of the land. claimed for mining purposes must be indicated by such distinct physical marks or monuments as will fairly advertise to all concerned where, and what it is, or, in other words, its extent."

In that case there being no such physical marks as required, nor any mining rules or customs shown whereby the locator could extend his possession beyond what he actually worked, that is, beyond the possessio pedis, his rights did not extend beyond that, and he had nothing whereon to base any claim to constructive possession: Hess v. Winder, 30 Cal. 355–8.

A party therefore claiming ground not actually possessed and worked, ground beyond the possessio pedis, must show

his right thereto by constructive possession; and he can show such constructive possession only by physical marks or monuments, or by local laws or rules and his compliance therewith.

In the case at bar, no physical marks or monuments having been shown, it was proposed to show the local mining rules as embraced in "Exhibit A." Without these the plaintiff could show no rights beyond the ground actually worked.

The introduction of the local laws was therefore necessary to the plaintiffs' case; and if the plaintiffs believed otherwise, they should have refrained from introducing them; but having introduced them, it would be highly improper for this court to say there was no injury done thereby, where such does not appear to have been the fact. On the contrary, we think that it clearly appears that there was injury, as without the introduction of these laws the plaintiffs could not have obtained this judgment.

The respondents have erroneously concluded that the only question in this case is as to the identity of these two alleged lodes. Were this really the only point, we might say that the judgment of the coart below should not be disturbed. But from what has already been said, it seems that the court views the case differently.

Let the judgment of the court below be reversed, and the order overruling defendants' motion for a new trial be revoked, and a new trial granted in the court below.

WHITE, C. J., and EMERSON, J., concurred.

Reversed.

1. Parol evidence not received when there are written rules in force on the same subject: Rawlston v. Plowman, 1 Idaho, 596; Post DUMP.

2. District record may show compliance with a rule requiring a record of transfer, but is not evidence of the transfer itself: Attwood v. Fricot, 2 M. R. 305. It can not prove who was the first locator: Campbell v. Rankin, 99 U. S. 261; Post PoSSESSION.

3. Possession of claim is regulated by district rules: Attwood v. Fricot, 2 M. R. 305; Hicks v. Bell, 3 Cal. 219; Post PUBLIC DOMAIN.

4. Compliance with the district rules (as to staking claim) is essential to a valid location: Myers v. Spooner, 55 Cal. 257; Post LOCATION; same as to record and notice: Gleeson v. Martin Co., 13 Nev. 443; Post LOCATION. 5. The local customs referred to in the Mining Act of 1866, are the district rules: Robertson v. Smith, 1 Mont. 410; Post HIGHWAY.

6. Mode of pleading forfeiture under district rules: Dutch Flat Co. v. Mooney, 12 Cal. 534; Post FORFEITURE.

7. Custom to transfer claims without deed: Blodgett v. Potosi Co., 3 M. R. 275.

8. When parties in ejectment are compelled to prove district rules: Sears v. Taylor, 4 Colo. 38; Post EJECTMENT; Colman v. Clements, 23 Cal. 245; Post EJECTMENT.

9. District rules may limit size of claim: McCormick v. Varnes, 2 Utah, 355; Post LOCATION.

10. Proof of written district rules having become obsolete: Colman v. Clements, 23 Cal. 245; Post EJECTMENT.

11. Irregularities in passage of district rules: Gore v. McBrayer, 1 M. R. 645.

12. District rules and district organizations are recognized by Congress, but are not essential: Golden Fleece Co. v. Cable Co, 1 M. R. 120.

13. Judicial notice will not be taken of district rules: Sullivan v. Hense, 2 Colo. 424; Post LOCATION.

14. The origin and growth of the district organizations reviewed by the Supreme Court: Jennison v. Kirk, 4 M. R. 504.

'JENNISON V. KIRK.

(98 United States, 453. Supreme Court, 1878.)

'Act of Congress of July 26, 1866, construed-Local customs applied to water rights and rights of way. The ninth section of the act of Congress of July 26, 1866, "granting the right of way to ditch and canal owners over the public lands, and for other purposes" enacted, "that whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid, is hereby acknowledged and confirmed. Provided, however, that whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage": Held, that both the right to the use of water and the right of way mentioned in said section are subject in their enjoyment to the local customs, laws and decisions; the object of the section being to give the sanction of the United States to rights which had previously existed under such local laws. The proviso conferred no additional rights upon the owners of ditches subsequently constructed; it simply rendered them liable to parties on the public domain, whose possessions might be injured by such construction.

Mining rules, their history and character. The history and nature of miner's laws and customs stated and explained.

Conflicting mining and water claims-Prior appropriation controls. By the customary law of miners in California, the owner of a mining claim and the owner of a water right enjoy their respective properties from the dates of their appropriation, the first in time being the first in right; but where both rights can be enjoyed without interference with or material impairment of each other, the enjoyment of both is allowed. 3 Injury to ditch occasioned by hydraulic process of mining. A person who constructs a water ditch across a mining claim previously located and worked by the hydraulic process, holds subject to the prior rights of the owner of the mining claim and can not recover damages for the washing away of a portion of his ditch so that the waters escape, if such washing away is done in the usual and reasonable method of working the mining claim.

'Affirms Titcomb v. Kirk, 5 M. R. 10. 2 Broder v. Natoma Co., 4 M. R. 670.

Proctor v. Jennings, 4 M. R. 265.