We do not desire to be understood as contending that locators should be permitted to include more than one claim in a location notice, and we hardly think that any sane prospector would attempt to do so. But if such a contingency should arise, even in the states having this statutory provision, we apprehend that if the notice is sufficiently definite as to any claim sought to be described in it, and valid otherwise, a court would hesitate before declaring the notice entirely void, but rather that the notice would be held valid as to such claim, and void for the excess only.

§ 115. Summary of competent state legislation.- By the foregoing we do not mean to dispute the authority for state legislation on this subject. It is part of the system of mining law, and within the lines authorized by congress it is not only competent for a state to act, but congress evidently intended that it would act. Such legislation has been repeatedly upheld by the courts everywhere, and it may now be considered as settled law. As before indicated, however, such legislation is purely supplemental, and must be strictly within the lines authorized by congress. It is foreign to our present purpose and would involve repetition to state the provisions of these statutes at length, or to give in full the decisions made under them, as all will be considered at length under the appropriate heads and sections.

1Johnson v. McLaughlin, 1 Ariz. Rep. 95; Lockhart v. Wills (N. M.), 493, 4 Pac. Rep. 130.

'Erhardt v. Boaro, 113 U. S. 527; Sisson v. Summers, 24 Nev. 379, 55 Pac. Rep. 829; Sanders v. Noble, 22 Mont. 110, 55 Pac. Rep. 1037; Oscamp v. Crystal River M. Co., 58 Fed. Rep. 293; Omar v. Soper, 11 Colo. 380, 18 Pac. Rep. 443; Eberle v. Carmichael, 8 N. M. 169, 42 Pac.

54 Pac. Rep. 336; McGinnis v. Egbert, 8 Colo. 41, 5 Pac. Rep. 652; Taylor v. Parenteau, 23 Colo. 368, 48 Pac. Rep. 505; Pollard v. Shively, 5 Colo. 309.

3 Eberle v. Carmichael, supra; Pollard v. Shively, supra; Sanders v. Noble, supra.

4 Eberle v. Carmichael, supra.

CHAPTER VII.

SUPPLEMENTAL DISTRICT RULES.

§ 118. Distinction between district rules under the statute and those which existed prior thereto.

119. District rules authorized by law of congress-Special limitations - What they may contain.

120. The binding force and intrinsic value of district rules - Must be authorized, and must be reasonable in themselves-Must be obeyed.

121. Necessity of following local rules-Language of courts — Customs must also be lawful.

122. Writing Immaterial whether district rules are in writing or parol Mode of enactment immaterial.

123. Judicial notice - Courts will not take judicial notice of miners'

rules-They must be proved.

124. District rules must be plain and specific-Must be within au thority and must bind all.

125. Existence of rules must first be proved-Presumed to continue. 126. The district rules - Enactment a question of fact - How proved. 127. Same-Records parol.

§ 118. Distinction between district rules under the statute and those which existed prior thereto.- The district rules authorized by the statute are closely allied in their force and effect to state statutes. They form part of the present law of mining,2 titles rest upon them, and more may be yet acquired. Moreover, while in some parts of

1 In re Monk, 16 Utah, 100, 50 Pac. Rep. 810; Sanders v. Noble, 22 Mont. 110, 55 Pac. Rep. 1037; Sissons v. Summers, 24 Nev. 379, 55 Pac. Rep. 829; Jupiter M. Co. v. Bodie M. Co., 11 Fed. Rep. 666; McCornick v. Varnes, 2 Utah, 355.

2 Johnson v. McLaughlin, 1 Ariz.

493, 4 Pac. Rep. 130; Sullivan v. Hense, 2 Colo. 424; Dutch Flat Water Co. v. Mooney, 12 Cal. 534.

3 Morton v. Solambo M. Co., 26 Cal. 527; Table Mountain Tunnel Co. v. Stranahan, 31 Cal. 387; Donohue v. Meister, 88 Cal. 121.

some states the district organizations have lapsed and have no longer any potential existence, there are other parts of states where the district organizations are preserved intact, either supplemental to or co-ordinate with state statutes, or as quasi-independent systems.

The difference between the rules and customs authorized by congress and those which before existed is in many instances most marked, in that any assumed authority beyond the limitations fixed by congress is, as a general rule, carefully avoided; and while many of the rules themselves remain the same in form, there is this distinction to be borne in mind with reference to them: those enacted since the statute rest upon the authority delegated by congress and are limited in respect to their potency thereby; while those existing prior to the statute, whether they exist from notions or suppositions of necessity as a corollary adjunct to mining everywhere, and are so observed, or whether they exist by reason of having been enacted by that solemn conclave - that American stannary parliament — the miners' meetings, they are recognized by the courts and by the law as of controlling influence in respect to mining claims. And it matters not what name is applied to them, whether it be customs, miners' rules and regulations or the by-laws of the district, they come to us not only in the humble garb of custom, but as an authoritative enunciation of the mining common law of the vicinage; a different custom, it is true, from the immemorial custom so long recognized in England, but a custom none the less.2

§ 119. District rules authorized by law of congressSpecial limitations- What they may contain. The district rules, since the passage of the acts of congress of 1866 and 1872, are merely a continuation in many respects of the rules in force prior thereto, where not superseded by the laws of congress and the laws of the state or territory.

King v. Edwards, 1 Mont. 235; Gleeson v. Martin White M. Co.. 13 Nev. 442.

2 See comment in Preface.

Under the law of congress' the district has the right to pass local laws, rules and regulations governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the requirements of the above law that the location must be distinctly marked upon the ground so that its boundaries can be readily traced, and all records of mining claims authorized by district rules or state statutes must refer to some natural object or permanent monument. Likewise the annual labor or improvements must not be less than one hundred dollars in value.2

§ 120. The binding force and intrinsic value of district rules-Must be authorized, and must be reasonable in themselves-Must be obeyed. It is manifest from the foregoing that district rules, to be binding, must be within the letter and spirit of the authority granted by the law of congress; must not conflict therewith nor with state statutes. This narrows their scope. Where congress has acted there is no need for district rules. Where it has not, or has not authorized district rules or state statutes, it must be manifest that neither can be enacted or exist, for want of power.3

In recognizing and authorizing the continuance of local customs or district rules, congress meant just what the words implied: that the districts, where states or territories had not acted, might make laws, and such laws would be binding. Moreover, congress recognized the force and effect of miners' customs as they existed, and must be presumed to be mind

1 R. S. U. S., § 2324.

2 Id.; Erhardt v. Boaro, 113 U. S. 537; Golden Fleece G. & S. M. Co. v. Cable Con. G. & S. M. Co., 12 Nev. 312; Leet v. John Dare S. M. Co., 6 Nev. 218: North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299, 1 Fed. Rep. 522; Riborado v. Quang Pang. M. Co., 2 Idaho, 131, 6 Pac. Rep. 125.

3 Hammer v. Garfield M. Co., 130 U. S. 291; Thompson v. Spray, 72 Cal. 528, 14 Pac. Rep. 182; Atwood v. Fricott, 17 Cal. 37, Becker v. Pugh, 9 Colo. 589, 13 Pac. Rep. 906, 17 Colo. 243, 29 Pac. Rep. 173; Lockhart v. Rollins, 2 Idaho, 503, 21 Pac. Rep. 413; Robertson v. Smith, 1 Mont. 410; Mallett v. Uncle Sam M. Co., 1 Nev. 188.

ful of the fact that titles rested upon them; and if reason were necessary, herein is to be found the reason for their existence and the authority for their continuance. Of necessity such customs, rules and regulations must be reasonable, and moreover be within the authority granted; they must be recognized and followed by miners, and have such universal application and receive such general observance as to give the miners the right to believe that all miners in the district do act and will act with reference to their provisions, and obey them. It will thus be seen that while the miners' rules and regulations, prior to the statute, could be much broader and more comprehensive in their scope and effect, being circumscribed only by the general requirement. that they do not conflict with natural right nor the general laws of the country, nor its constitution, and likewise that they are reasonable within themselves, those under the federal statute, in addition to this limitation, are restricted in their operation and value still further, in that, as before noted, they must not be contrary to the authority granted by congress. In fine, then, mining customs, rules and regulations, when not in conflict with state or national law, and when reasonable in themselves, must be complied with.2

1 Glacier Mountain Silver M. Co. v. Willis, 127 U. S. 471; Broder v. Natoma W. & M. Co., 101 U. S. 274; Chambers v. Harrington, 111 U. S. 350; s. c. sub nom. Harrington v. Chambers, 3 Utah, 94; Eberle v. Carmichael, 8 N. M. 169, 42 Pac. Rep. 95; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299, 1 Fed. Rep. 522; Becker v. Pugh, 9 Colo. 589; Sullivan v. Hense, 2 Colo. 422; Con. Rep. M. M. Co. v. Lebanon M. Co., 9 Colo. 343, 12 Pac. Rep. 212; Harvey v. Ryan, 42 Cal. 626; King v. Edwards, 1 Mont. 235; Jupiter M. Co. v. Bodie Con. M. Co., 11 Fed. Rep. 666; Prosser v. Parks, 18 Cal. 47; Noonan v. Caledonian M. Co., 121 U.S. 393.

2 Woodruff v. North Bloomfield Gravel M. Co., 18 Fed. Rep. 753-802; King v. Edwards, 1 Mont. 235; McCornick v. Varnes, 2 Utah, 355; Gleeson v. Martin White M. Co., 13 Nev. 442; Harvey v. Ryan, supra; Rosenthal v. Ives, and Lansdale v. Ives, 2 Idaho, 244, 12 Pac. Rep. 904; Upton v. Larkin, 7 Mont. 449, 17 Pac. Rep. 728; Orr v. Haskell, 2 Mont. 225; Hess v. Winder, 30 Cal. 349; Merritt v. Judd, 14 Cal. 64; English v. Johnson, 17 Cal. 107: St. John v. Kidd, 26 Cal. 263; Titcomb v. Kirk, 51 Cal. 288; Watervale M. Co. v. Leach (Ariz.), 33 Pac. Rep. 418; Erhardt v. Boaro, 113 U. S. 527.