course, is governed by the ordinary rules of evidence, and it would seem, from the weight of authority and reason, that mining district rules or regulations upon a particular point must be offered in evidence as a whole; must be proven by the best evidence, and must be proved by the books themselves, properly produced, if there are books, or by the production of such other paper evidence as there may be of their existence. If there are no books, and the rules are not in writing, they may of course be proved by any competent evidence, the same as any other fact.' The land department accepts proof of mining district rules by a certified copy of the rules or by-laws attested by the seal of the district and the seal of the recorder or other legal custodian. If no proof is made of a custom or by-law upon a given point, the court will assume, for the purposes of the trial, that none exists. 2 $127. Same-Records parol.-- Suggestions have appeared in the foregoing indicating that miners' rules and customs may in general be proved by any competent evidence agreeable to general rules. Manifestly, therefore, they may be proved by the records themselves; indeed, this has been said to be the best evidence. But while this is true, and while a duly authenticated copy, agreeably to the rule in the land department, and that governing the admissibility of records generally, may in a proper case supply the place of the original, that is not the only way of prov Hense, 2 Colo. 424; Poujade v. Ryan, 21 Nev. 449; Harvey v. Ryan, 42 Cal. 626: King v. Edwards, 1 Mont. 235; Jupiter M. Co. v. Bodie M. Co., 11 Fed. Rep. 666; Golden Fleece M. Co. v. Cable M. Co., 12 Nev. 312; Doe v. Waterloo M. Co., 70 Fed. Rep. 455. 1 English v. Johnson, 17 Cal. 107; Roberts v. Wilson, 1 Utah, 292; Campbell v. Rankin, 99 U. S. 261; Pralus v. Pac. G. & S. M. Co., 35 Cal. 30; Doe v. Waterloo M. Co., 70 "Marshall v. Harney Peak M. Co., 1 S. D. 350; Perigo v. Erwin, 85 Fed. Rep. 904. 3 St. John v. Kidd, 26 Cal. 363; English v. Johnson, 17 Cal. 107; Roberts v. Wilson, supra; Orr v. Haskell, 2 Mont. 225. 'Campbell v. Rankin, 99 U. S. 261. ing them. The rule is firmly established that they may be proved by any one familiar with them and competent, if not in writing, to testify, the same as any other matter in parol.2 And parol evidence is admissible to show that written rules have fallen into disuse. Unless the particular right in question is dependent for its force and validity upon the existence of a district rule, it is not necessary to plead it. § 128. District rules, what are-Question of fact.What are and what are not district rules being thus made matter in pais, it necessarily follows that their existence or non-existence, when called in question, become matters of fact, to be determined as such by the court or jury, the same as any other fact in the case. But when established their validity becomes a question of law for the court; but this inquiry, as we have seen, only extends to the question whether they are reasonable, or are not contrary to the statute of the United States or of the state or territory." 8 § 129. Summary. In the foregoing sections we have attempted to demonstrate those principles of mining law which have for ages, in many countries, guided the operations of men engaged in mining, defined their rights and furnished the mode of redressing their wrongs. And from Flaherty v. Gwinn, 12 M. R. 605; Campbell v. Rankin, 99 U. S. 261. 2 Coleman v. Clements, 23 Cal. 245; Ralston v. Plowman, 1 Idaho, 595; Flaherty v. Gwinn, supra; Waring v. Crow, 11 Cal. 366; Harvey v. Ryan, 42 Cal. 626; Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. Rep. 666, 7 Sawy. 96; Leet v. John Dare M. Co., 6 Nev. 218; North Noonday M. Co. v. Orient M. Co., 1 Fed. Rep. 522, 6 Sawy. 299; Campbell v. Rankin, supra. 3 King v. Edwards, 1 Mont. 235; Leet v. John Dare M. Co., supra. 4 Coleman v. Clements, supra. "Harvey v. Ryan, 42 Cal. 626; Sullivan v. Hense, 2 Colo. 424; Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. Rep. 666, 7 Sawy. 96; North Noonday M. Co. v. Orient M. Co., 1 Fed. Rep. 522, 6 Sawy. 299; Campbell v. Rankin, 99 U. S. 261. 6 Ralston v. Plowman, 1 Idaho, 595. 7 King v. Edwards, 1 Mont. 235. 8 Jupiter M. Co. v. Bodie Cons. M. Co., supra; McCornick v. Varnes, 2 Utah, 355. 9 Barnes v. Sabron, 10 Nev. 217. it all we glean these deductions: That the western system of mining law enforced throughout the precious metal-bearing mining states and territories of the United States had its birth, for the greater part, primarily in the laws in force. in Mexico and other Spanish-American countries prior to the cession of California and the other Pacific coast possessions to the United States; but at the same time, the customs and laws in force in at least four counties in England, and in some countries on the European continent, played an important part in furnishing the elementary principles upon which our law is based, partly by direct application and from being copied directly into the miners' rules and regulations, and partly through the fact that substantially the same principles and rules existed in the Mexican ordinances. Our mining system, then, at the present time in the United States, is composed of two distinct yet closely allied systems: 1. Those changeless principles of the common law which are the same everywhere, and which furnish in many respects the final test by which rights are to be measured and adjusted, wrongs redressed, statutes interpreted and enforced, and men's rights every where protected and adjusted upon the same standard. 2. The federal statute and the decisions made under it, which in turn is composed of three elements, namely: (a) the statute itself; (b) the supplemental state statutes authorized by it; (c) the district rules, not only those authorized by the statute and subordinate to it, but those existing prior thereto, and recognized thereby, and upon which many titles rest, and under which many rights may be asserted and wrongs redressed. This comprehensive system, then, thus shown to be in existence will be examined in detail in the further pages of this work. PART III. OF THE LANDS OPEN TO EXPLORATION, APPROPRIATION AND PURCHASE AS MINES-DEFINITIONS. CHAPTER I. DEFINITIONS OF MINES, MINING AND MINERAL LANDS. § 131. Preliminary observations. 132. Historical summary of mining. 133. Precious metal mining in California. 134. Mining-Definition of. 135. Hydraulic and placer mining - Lawful enterprise - Debris to be cared for. 136. Mining in Spanish-America and Mexico. 137. Mining in England. 138. Early mining of copper. 139. Lead, zinc, iron and coal. 140. Mine-Definition of. 141. The old distinction between mine and quarry. 142. Distinction between open and unopened mines. 143. Minerals defined-Mineral lands. 144. Land office decisions - Special enumeration of minerals. 145. Petroleum lands specially recognized. 146. Same Petroleum and natural gas minerals and part of the soil. 147. Salt springs, lakes, ponds and saline lands. 148. Review of the chapter. § 131. Preliminary observations.- Having ascertained the source and present condition of the governing principles which control mining operations, and therefore constitute mining law, it becomes material to inquire into the character and scope of the materials and the land to which those rules apply. Likewise to define, at considerable length, the component elements which make up the mass of matter comprehended by and included in the terms "mines," "minerals" and "mineral lands; " also to define at some length the restricted, and at the same time comprehensive, meaning of the term "mining," as we shall have occasion to deal with it. We shall therefore examine the subject under consideration in a somewhat inverse order from the above manner of statement. § 132. Historical summary of mining.- The history of mining is the history of civilization, and that it has been carried on in some form from a very early period in that history is attested not only by history itself but by the quantity of metallic substances, such as gold, silver and copper, which have been produced and used in the arts, and as money, from very early times. The large quantities of gold and silver found in Mexico and Peru after their conquest by Spain stimulated an extensive search for those metals, which was amply rewarded in both those countries and other Spanish-American possessions to the extent that in less than one hundred and fifty years Spain became the wealthiest civilized country of the earth. Mining has been carried on extensively in England, certainly since the Roman invasion, and in one form or another it has formed an important industry in not less than twenty-two counties in England alone. The production of those mines includes gold, silver, copper, lead, tin, zinc, iron and coal, besides many other minerals which the purpose of this work does not require mentioning. Mining was carried on in many parts of the Appalachian range from Nova Scotia to Georgia, and it was carried on quite extensively in Georgia, North Carolina, Virginia, South Carolina and in Nova Scotia, that is, for the precious metals. Coal and iron have been mined more or less in nearly every state of the Union.2 133. Precious metal mining in California.- The late Mr. Justice Field, whose knowledge of mining law was world Ivanhoe M. Co. v. Keystone M. Co., 102 U. S. 167. 2 See historical matter, ante, Parts I and II. See also post, § 133. |