rules, he may recover without proof of the existence of such rules by evidence of his prior possession and the entry of defendant; but if his prima facie case on possession is negatived by any title proved by defendant he must then show the existence of the district rules and his compliance therewith before he can introduce his location or record made under such rules.-Sears v. Taylor 5 M. R. 318; 4 Colo. 38.

Courts will not inquire into the regularity of the mode by which district rules have been enacted, except upon allegation of fraud, or other like cause.Gore v. McBrayer 1 M. R. 645; 18 Cal. 583.

Where the evidence renders it doubtful whether the written laws of a district are in force, both the written laws and parol proof of the mining customs may be offered in evidence.-Colman v. Clements, 5 M. R. 247; 23 Cal. 245.

District Records.

A district record kept in a pocket diary is no record.-Fuller v. Harris, 29 Fed. 814. A district recorder can not appoint a deputy.-Van Buren v. McKinley, 66 Pac. 936.

Once proved to exist are presumed to continue.Riborado v. Quang Pang M. Co. 6 Pac. 125.

The land office, in patent applications, has the power to decide what rules are in force.-Parleys Park Co. v. Kerr, 130 U. S. 256.

A mining regulation can not restrict the number of claims which a party may hold by purchase.— Prosser v. Parks, 4. R. 452; 18 Cal. 47.

A district rule can not limit the size of a claim duly located before such rule was adopted.-Table Mt. Co. v. Stranahan, 9 M. R. 465; 21 Cal. 548.

A right to hold a claim may be forfeited by failure to comply with the district rules.-St. John v. Kidd, M. R. 454; 26 Cal 264. But not unless the rule itself so expressly provides.-Bell v. Bed Rock Co. 1 M. R. 45; 36 Cal. 214; Emerson v. McWhirter, 65 Pac. 1036.

A valid district rule may exist and be proved, although not found among other written rules of the district.-Harvey v. Ryan, 4 M. R. 490; 42 Cal. 626.

A custom, reasonable in itself, and generally observed, will prevail against a written mining regulation which has fallen into disuse.-Id. The existence of a district mining law is a question of fact for the jury. Id.

Effect of Mining Codes.

Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, North and South Dakota, Oregon, Washington and Wyoming have adopted more or less complete mining codes. In California, Utah and Alaska much more is left to the control of the district organizations, but the inclination in all is toward statutory regulations and on whatever point the statute is made to cover the authority of the district rules ceases, except as to rights already vested. The tendency is thus to their ultimate extinction. See STATUTORY REQUIREMENTS and RECORD.

CONGRESSIONAL RECOGNITION OF MINERS' RIGHTS.

License to Appropriate the Public Domain.

R. S. Sec. 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.--Sec. 9, A. C. Feb. 27, 1865.

License Under Congressional Act of 1866.

Sec. 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 Intention 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.-Sec. 1, A. C. July 26, 1866. Repealed May 10, 1872.

License Under Present Congressional Law.

R. S. Sec. 2319.-All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.-Sec. 1, A. C. May 10, 1872.

Section 910 contains the first Congressional recognition of the fact that the mineral lands of the United States were being appropriated by its citizens. From the time, however, of the discovery of gold in California, the government had tacitly recognized the occupation of its mining lands as such, and withheld them from survey and pre-emption.

Judicial Recognition.

The judiciary of California and all the States and Territories on the Pacific slope had recognized the "Miners' Title" as property entitled to protection, and they were followed by the Supreme Court of the United States to the same effect.-Sparrow v. Strong, 2 M. R. 320; 3 Wall. 97; Forbes v. Gracey, 14 M. R. 183; 94 U. S. 762.

Consecutive Acts of '66, '70 and '72.

In 1866 the first Act was passed looking to the absolute disposition of mineral veins. In 1870 a supplemental Act was passed embracing placers. In 1872 these Acts were revised and the Act of Congress of May 10 of that year, found in Chapter 6, Title 32 of the Revised Statutes of the United States, is, with slight change, the Congressional law still in force.

LEGAL STATUS OF POSSESSORY CLAIMS.

The National Government the Source of Title.

By proper expressions in the Organic Act of each Territory or the Enabling Act of each State, the ownership of the United States in the public domain is declared as fundamental law. The attempt once made in California to assert a State ownership in mines, Hicks v. Bell, 3 Cal. 219, has long ago been abandoned.-Moore v. Smaw, 12 M. R. 429; 17 Cal. 199. The title to all lands in the French and Mexican cessions is, in the first instance, in the United States of America, excepting grants made by the old governments prior to the treaties. These cessions include all land west of the Mississippi River except the old Territory of Oregon.

The fee simple thus remaining in the government, all citizens, or persons who have declared their intention to become citizens, are allowed to enter upon the unappropriated public domain and acquire title to mineral lands by complying with certain regulations intended to preserve the peace and protect the first occupant.

Before the passage of Acts of Congress to this effect, the assertion of claims to mines by discoverers had been recognized by district rules, local statutes and decisions of courts. But ever since 1866 the matter has been regulated by specific Acts of Congress, supplemented by district rules and local legislation concerning the details of occupation and the manner of disclosing and perfecting title.

Whether a Vested Estate.

It would not seem under previous decisions (Yosemite Case, 15 Wall. 77) that an unpatented mining claim was a vested estate. And the clause in the Act of 1872 requiring annual labor on claims taken up under the Act of 1866 was a statutory declaration that it did not constitute a vested estate. But later rulings, made since such Mining Titles have been

frequently before the National Supreme Court and the number and importance of such inchoate estates have been recognized, treat them technically as well as in conscience, as estates vested in the occupant. Such may now be accepted as the necessary conclusion from the decisions to be cited; and the Yosemite case is relegated to that class of precedents which are silently departed from without being in terms overruled.-Gwillim v. Donnellan, 15 M. R. 482; 115 U. S. 45; McFeters v. Pierson 15 Colo. 204.

The Miner Holds a Qualified Title dependent upon possession and maintained by compliance with local directions. He is not compelled to advance to patent nor to pay for the use of the land, but his holding is of the same legal class as a homestead or pre-emption and is in anticipation of an ultimate entry and patent. His title is not absolute in a technical sense, nor secure in a practical sense, until he gets the fee simple title by such proceedings.

Abandonment.

Such an estate, dependent upon possession, is conversely one which may be lost by abandonment. -Merritt v. Judd 6 M. R. 62; 14 Cal. 59; Mallett v. Uncle Sam Co. 1 M. R. 18; 1 Nev. 188.

Is a Freehold.

That is to say, an estate which passes to the heirs.-Harris v. Equator Co. 12 M. R. 178; 8 Fed. 863; Merritt v. Judd, supra; McFeters v. Pierson, 15 Colo. 201; Keeler v. Trueman, Id. 143.

Is Real Estate.

The miner's claim or title is real estate as distinguished from chattel or personal property and is conveyed, sued for, descends, is devisable and is treated in other respects as the real property of the occupant, subject only to the paramount title of the United States.-Roseville Co. v. Iowa Gulch Co. 16 M. R. 93; 15 Colo. 29; Butte Co. v. Frank, 21 M. R. 368; 65 Pac. 1; Bakersfield Co. v. Kern County, 77