A committee of five was appointed to investigate the nature of the grievance and examine the law on the subject, and a recess taken. The minutes then proceed: "Pursuant to adjournment meeting met at I o'clock, were called to order by the chairman, Mr. Cameron. Committee reported as follows, having thoroughly investigated the laws and customs of the miners of Weaver: We fully concur in the opinion that Dr. Ware is fully entitled to all the water in West Weaver, except four tom-heads, which is allowed for the bed of the stream; also that the burning of his reservoir, and the destruction of his dam and other property and the taking of his water from his race by force of arms are malicious acts, and should not be submitted to by those who are in favor of law and order. "On motion, the report was received and the committee discharged. "On motion, it was 'Resolved, That we assist Dr. Ware in turning the water into his race and that we sustain him to the last extremity in keeping it in the race.' "On motion, the meeting then adjourned for the purpose of carrying this resolution into effect." At this interesting point the minutes end, and the reader is left to imagine what usually takes place when an irresistible force meets an immovable object. As a sample of regulations concerning the location of quartz claims, that adopted for all the quartz mines in Nevada County, Dec. 20, 1852, will suffice: "Article II-Each proprietor of a quartz claim shall hereafter be entitled to one hundred feet on a quartz ledge or vein; and the discoverer shall be allowed one hundred feet additional. Each claim shall include all the dips, angles and variations of the vein." In other counties the length of a claim was usually greater than in Nevada, but the dips, spurs, angles and variations always went with the ledge, and if not expressly set forth in the rules and regulations were always included in the "customs" of the district. This was also true of the use of sufficient surface ground for the convenient working of the claim. THE DOCTRINE OF "CUSTOMS." This doctrine of "customs," in its technical sense, as applied to early California mining operations, must not be confused with the written "rules and regulations" of miners. Though very serviceable to the early miner for obvious rea sons, its possible and actual misuse at a later day often came back to plague him. "These (customs)," says Mr. Yale, "grow up by self-creation, and are not the subjects of invention or provision. They may be superseded when once observed as obligatory, and the customs of one district may have controlling force in another. They are not the ancient customs of the common law, which, to have force, must be immemorial, merely traditional, and not originating within living memory. But they are the usages which grow out of the regulations by practice, are appurtenant to them, and must be regarded and enforced as an inherent part of them, as explaining, enlarging and defining them. Their force is greater because they are within living memory, and as no generation has elapsed since they have existed, are as ancient as circumstances will conveniently admit." Their growth in a community where pen, pencil and paper were not exactly implements of mining, where everyone knew his neighbor, and where everyone knew what transpired in camp each day, was perfectly natural; and their recognition by courts into whose presence the rules and regulations of the miners themselves came in the guise of custom, in the generic sense of the word, was equally natural. STATE LEGISLATIVE RECOGNITION. In 1851 Stephen J. Field, then a member of the Assembly from Yuba County, introduced into the legislature and had passed what is commonly known as the Practice Act, section 621 of which (since re-enacted as section 748 of the Code of Civil Procedure) was as follows: "In actions respecting mining claims, proof shall be admitted of the customs, usages or regulations established and in force at the bar or diggings embracing such claims; and such customs, uses or regulations, when not in conflict with the constitution and laws of this State, shall govern the decision of the action." This was the first statute to take notice of these customs, usages and regulations, and its enactment recognized and, in a sense, adopted them as the common law of mines and mining in California. The act of April 13, 1860, relating to the conveyance of mining claims, also expressly recognizes the "lawful local rules, regulations or customs of the mines in the several mining districts in this State." This is the only other statutory recognition of these rules and customs in California before the federal mining law of 1866. "These usages and customs," said Chief Justice Sanderson, in 1864, in construing Section 621 of the Practice Act, in the case of Morton vs. Solambo Copper Mining Co., “were the fruit of the times, and demanded by the necessities of communities who, though living under common law, could find therein no clear and well-defined rules for their guidance applicable to the new conditions by which they were surrounded, but were forced to depend upon remote analogies of doubtful application and unsatisfactory results. Having received the sanction of the legislature, they have become as much a part of the law of the land as the common law itself, which was not adopted in a more solemn form." STATE SUPREME COURT RECOGNITION AND CONSTRUCTION. The State courts gave full recognition to the rules, regulations and customs of miners, and a large body of our law is made up of the judicial interpretation and application of these rules and customs, a summary of the chief points of which will not be amiss. The elastic construction given to these rules and regulations and the sympathetic construction given to the customs and usages were in accord with the spirit of their creation, and effectively promoted justice in the Arcadian days; but some of the principles then laid down became in later days, under other circumstances, a very Pandora's box of troubles. To have the force of law, a regulation must be in force at the time of the location. It does not, like a statute, acquire validity by the mere enactment, but from the customary obedience and acquiescence of miners following its enactment. It likewise becomes void by disuse; this disuse, however, must be general; it is not sufficient that the rule has been disregarded or violated by a few persons. Whether it has fallen into disuse is a question of fact, and, therefore, must go to the jury. Where a regulation has fallen into disuse, a custom reasonable in itself and generally observed, though contrary to the regulation, may be proved. But the written rules are presumed to be in force, and proof of a contrary custom must be clear. The existence of mining regulations is a fact, and must be proved as a fact. Judicial notice will not be taken of them. Upon the person relying on them lies the burden. of proving them. This is done by producing the original rules when in writing. When it is proved that the rules were adopted and recognized, they become admissible in evidence. The fact that the meeting at which they were adopted was held upon a day different from that named in the notice thereof, does not, in the absence of fraud, render them inadmissible. And an alteration in one article of the regulations after their adoption does not change the legal effect of the other articles. When the written regulations are deposited with some authorized officer, or recorded in his office, they may not be proved by parol evidence. Other evidence, however, besides proof of the written record or of the acts of a miners' meeting is admissible as tending to prove the existence of a particular rule. This may be done by establishing a custom or usage in the district. The custom of recording claims in a district, while not proving absolutely the existence of a rule requiring such a record, tends to establish it. So on a subject as to which the written rules, when proven, are silent, a custom prevailing in the district may be proved; but regulations or customs of another district are not admissible to vary such a custom or the written rules. The admissibility of mining regulations is not affected by the shortness of the time that they have been in force. The common law rule as to customs has no application on this point. A single extract from the written rules of a district may not be proved; the whole body of rules of a district must be offered in evidence. When regulations have been proved, their construction, like that of other writings, is for the court. But where good faith is shown, a substantial compliance with them is sufficient. There is a distinction between the local rule made by a few miners within a district and a mining regulation enacted by the whole district, or a custom in universal force throughout the district. The former is not binding upon the locator, unless he had actual notice of its existence or assisted in its enactment. Barringer and Adams on Mines, pp. 281-190, 290. In an action for possession of a mining claim, where plaintiff relied upon a location under certain written rules adopted by the miners of the district, which contained no requirements that notices should be posted on the claims at the time of the location, defendant may prove a custom in the district requiring such posting of notices. No distinction is made by the statute (Practice Act, sec. 621) between the effect of a "custom" or "usage," the proof of which must rest in parol, or a "regulation," which may be adopted at miners' meeting and embodied in a written local law. The custom or regulation must not only be established, but must be in force. A custom reasonable in itself and generally observed will prevail as against a written mining law which has fallen into disuse. Whether the law is in force at any given time is for the jury. Harvey vs. Ryan, 42 Cal. 626. FEDERAL SUPREME COURT RECOGNITION. The Supreme Court of the United States gave full recognition to the binding force of the local rules, regulations, usages and customs before the sanction of federal statutory enactment, and to the doctrine that they constitute the American common law of mines. Sparrow vs. Strong, 3 Wall. 97, decided in 1865. |