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domain. The vast ore bodies of the Comstock, the wealth of the Alder Gulch, the veins and placers of Pike's Peak, and of countless intermediate mineral localities were all appropriated and their values extracted under the protection of this form of local selfgovernment for many years, with no paternal interference by the National Legislature.
"Each local camp called itself a mining district as defined by the action of a mass meeting of the miners. Some of them were less than a mile square, others quite extensive, and they have become permanent geographical divisions for purpose of description in the conveyance of real estate of all kinds in the mining counties.
“After defining the name and local extent of the district, these meetings usually designated certain officials to be elected from time to time, and then proceeded to adopt rules regulating the size of claims, prerequisites of location and for annual labor or periodical representation in some form.
“Before the territorial organizations were complete, and while the diggings were remote from organized society, they often took a much wider scope and provisions were made for executive officers, for miners' courts, and covering all sorts of subjects. But these incidents have long since ceased.
“Where the districts, as quasi municipal organizations have been abandoned, provisions have generally been made to preserve their records in the County Recorder's office.
"With almost no interference by State or Territorial Acts, they were mining laws of the land until the Act of Congress of July 26, 1866. This but slightly limited their authority, but the Act of May 10, 1872, covered so many essential incidents, and has been so supplemented by State and Territorial legislation, that they have been gradually abandoned, and survive now only as a name or description.
“Only in Califonria, Utah and Alaska are the organizations still preserved to any extent. Where not extinct, their existence is practically confined to the keeping of district records for the registry of locations, with regulations defining the size of claims and details of location. Undoubtedly where there is no State or Territorial Statute, a district can yet be organized, and details of location fixed by its rules, but any attempt to revive old districts or enact new district rules in
any State or Territory which has any pretense of a mining code would only tend to confusion.
"The details of these rules were not altogether arbitrary or experimental. In many respects they followed precedents already long established in Spain and Mexico. The requirements of discovery and discovery shaft, of sinking and record, periodical labor, forfeiture, for non-representation and many others, are duplicates more or less close, of like provisions of the Royal Code of 1783, but enacted by these local conventions of practical miners in entire ignorance of the existence of such code." 3
The existence of a district mining law is a question of fact for the jury. District rules once proved are presumed to continue.5
SECTION 10. MINING CUSTOMS. The customs of miners are regarded as the common law of mining, and their force has been recognized and * Rockwell's Spanish and Mexican Laws, p. 25.
(Ariz.), 1893), 33 Pac. Rep., • Harvey vs. Ryan, 4 M. R., 490
418; Rosenthal vs. Ives, 2 42 Cal., 626.
Idaho, 244, * Riborado vs. Quang Pang M. Co.,
o Watervale Min. Co. vs. Leach
6, p. 125.
continues in force by Acts of Congress.” Mining customs must yield to Federal or State Statutes, but a mining custom, reasonable in itself, and generally observed, will prevail against a written mining regulation which has fallen into disuse. • Eberle vs. Carmichael, 8 N. Mex. 8 Harvey vs. Ryan, 4 M. R., 490. 169; King vs. Edwards, 1 Mont.
42 Cal., 62. 235; Mountain Silver Min. Co. vs. Willis, 127 U. S., 471.
LANDS OPEN TO EXPLORATION AND PURCHASE AS MINES, UNDER THE STAT
UTES OF THE UNITED STATES.
SECTION 11. MINERAL LANDS OPEN TO PURCHASE BY
CITIZENS. “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." 1
“Title to mineral lands cannot be acquired by occupancy unless for the purpose of mining or extracting minerals.” 2
"Under this statute the public lands are free and open to exploration and occupation by the citizen for his own profit. This applies to all land containing valuable deposits, including building stone. The right thus granted necessarily carries with it the license to take what may be found in the course of exploration and apply it to the discoverer's own use, or option is left to him to acquire the exclusive right to the land containing deposits; but if he does not choose to do so, he may still avail himself of the deposit exclusively · U. S. Rev. Stat., Sec. 2319.
• Burns vs. Clark (1901), 133 Cal.,
or in common with others, unless some one else acquires the exclusive right from the government. In getting stone upon the public domain, the person is not a trespasser; by taking it and bestowing his labor upon it, or causing labor to be bestowed upon it, by an employee, he becomes the owner of it in fact against every person.
Limestone has been held not to come under the provisions of this Act, since the mining laws were intended to embrace only deposits of ore, and the term mineral excludes the idea of any nonmineralized deposit,' but there are decisions to the contrary.
“The Land Department of the government has the power to determine the character, as, mineral or nonmineral, of land for which a patent is asked, unless the determination of that question is committed by Congress to the local courts.". SECTION 12. LANDS WHICH CANNOT BE LOCATED ON.
“As the language in the statute implies, only public mineral lands of the United States are open to exploration, location, and purchase. It therefore follows that where land is appropriated or occupied under a claim of title or right—that is, where there is a prior location subsisting, or the land is reserved from sale, or has been previously granted by some valid and subsisting grant-no location can be made on it or title to it acquired from the United States, because, in contemplation of law, it does not belong to the United
• See act of Aug. 4, 1892; 27 Stat.
L., 348; Sullivan vs. Schultz
(1899), 22 Mont., 541. • Wheeler vs. Smith, 5 Wash. 704. • Sullivan vs. Schultz, 22 Mont.,
541. o Steel vs. St. Louis Smelting, etc.,
Co., 106 U. S., 447; Johnson vs.
Towsley, 13 Wall, (U. S.),
U. S., 330.
XX, p. 688.