ute of that state which provides that the right of eminent domain may be exercised in behalf of certain enumerated public uses, including "tunnels, ditches, flumes, pipes, "and dumping-places for working mines; also, outlets, "natural or otherwise, for the flow, deposit, or conduct "of tailings or refuse matter from the mines."'1

In the case of the Consolidated Channel Co. v. C. P. R. R. Co.2 the attempt was made by the plaintiff, as the owner of a gold mine, to condemn a right of way for the purpose of constructing a ditch and flume to carry off the tailings from the mine.

"It is clear," said the court, "that the object sought is "the appropriation of the private property of the de"fendants to the private use of plaintiff. The proposed "flume is to be constructed solely for the purpose of "advantageously and profitably washing and mining "plaintiff's mining ground. It is not even pretended "that any person other than the plaintiff will derive 66 any benefit whatever from the structure when com"pleted. No public use can possibly be subserved by "it. It is a private enterprise, to be conducted solely "for the personal profit of the plaintiff, and in which "the community at large have no concern. It is clear "that this case does not come within the meaning of "that clause of the constitution which permits the taking of private property for a public use. . . . It would "be difficult to suppose a case more completely within "the exception stated, and in which the absence of all "possible public interest in the purposes for which the "land is sought to be condemned is more clear and "palpable, than in the case at bar."

3

In Lorenz v. Jacobs, the same court held that the right of eminent domain could not be exercised in favor of the owners of mining claims, to enable them to obtain water for their own use in working such claims, though

1Code Civ. Proc., § 1238, (subd. 5). See, also, Laws of 1891, § 2, p. 221.

51 Cal. 269.

3 63 Cal. 73.

the intention may also be to supply water to others for mining and irrigating purposes.

In the case of Amador Queen M. Co. v. Dewitt,1 the plaintiff undertook to condemn the right of way through defendant's ground, for the purpose of a tunnel to enable plaintiff to extract ore from its mine and transport it to its mill, defendant's land intervening between plaintiff's mine and its mill. The federal statute was invoked, as in the Colorado case of People ex rel. Aspen M. and S. Co. v. District Court (supra). But the court held that the language of the Revised Statutes of the United States contained no reservation of such right in favor of plaintiff,2 that the mine of defendant was his private property, the use for which it was sought to be condemned was a private use, and the proceeding could not be maintained.

? 263a. Oregon.-The legislature of Oregon enacted a law3 authorizing any corporation organized for the purpose of transporting timber, lumber, or cordwood to condemn rights of way for railroads, skid roads, tramways, chutes, and flumes which "shall be deemed to be "for the public benefit, .. and shall afford to all persons equal facilities in the use thereof for the "" purposes to which they are adapted, upon payment or "tender of reasonable compensation for such use." The Apex transportation company sought, under this act, to condemn a right of way over the land of the defendant for a skid road. But the supreme court of Oregon held that the use for which condemnation was sought was private, and, consequently, that the act was unconstitutional.1

173 Cal. 482, 15 Pac. 74.

Cited approvingly in Cone v. Roxana G. M. Co., U. S. Cir. Ct., Dist. of Colo., 2 Leg. Adv. 350.

Laws of 1895, p. 5.

'Apex Trans. Co. v. Garbade, 32 Or. 582, 52 Pac. 573, 54 Pac. 367, 882.

264. Conclusions.'-While in states and territories surrounded by such physical and industrial conditions as exist in Nevada and Arizona, and probably Montana, judicial discretion may, with some show of reason, be exercised in favor of the rule that mining in the hands of individuals is a "public use," yet such a rule elsewhere is against the logic of the law and the weight of authority.

We may appropriately close this discussion by quoting from the opinions of two distinguished courts as to what constitutes a public use:

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"No question has ever been submitted to the courts upon which there is a greater variety and conflict of "reasoning and results than that presented as to the

meaning of the words 'public use," as found in the "different state constitutions regulating the right of "eminent domain. The reasoning is in many of the "cases as unsatisfactory as the results have been uncer"tain. The beaten path of precedent, to which courts "when in doubt seek refuge, here furnishes no safe guide to lead us through the long lane of uncertainty "to the open highway of public justice and of right. "The authorities are so diverse and conflicting that, no matter which road the court may take, it will be sus"tained, and opposed, by about an equal number of the "decided cases. In this dilemma, the meaning must, "in every case, be determined by the common sense of "each individual judge who has the power of deciding "it." 2

"What, then, constitutes a public use, as distinguished "from a private use? The most extended research will "not likely result in the discovery of any rule or set of "rules or principles of certain and unusual application "by which this question can be determined in all cases.

In the state of New York mining is a "public utility," for the reason that the ownership of the precious metals is in the state by virtue of its sovereignty, and the fundamental theory is analogous to the doctrine of the civil law. See, ante, §§ 11, 19.

'Dayton G. and S. M. Co. v. Seawell, 11 Nev. 394, 400.

"Eminent jurists and distinguished writers upon public "law do not express concurrent or uniform views upon "this subject. It is a question, from its very nature, of "great practical, perhaps of insuperable, difficulty, to "determine the degree of necessity or the extent of

public use which justifies the exercise of this extraor"dinary power upon the part of a state, by which the "citizen, without his will, is deprived of his property."1

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1 Valley City Salt Co. v. Brown, 7 W. Va. 191, 195.

CHAPTER II.

LOCAL DISTRICT REGULATIONS.

§ 268. Introductory.

- § 269. Manner of organizing districts.

$270. Permissive scope of local regulations.

§ 271. Acquiescence and observance, not mere adoption, the test.

§ 272. Regulations, how provedTheir existence a ques

tion of fact for the jury; their construction a question of law for the court. 273. Regulations concerning records of mining claims. 274. Penalty for non-compliance with district rules.

275. Local rules and regulations before the land department.

? 268. Introductory.-In the beginning the miners made the laws governing the mining industry, unhampered by congressional or state legislation. In their district assemblages they adopted regulations which covered most of the exigencies of the situation, and frequently much more. They amended, altered, and repealed their rules at will, as changed conditions suggested the necessity, propriety, or convenience. Some of these regulations were wise, and others were otherwise. That these early prospectors were pioneers of extreme western civilization in America, and assisted in laying the foundation of great states, is undoubted. For this they deserve, and have received, full meed of praise. But that they originated a system which is deserving of perpetuation for all time is open to serious question. We doubt whether there is any reason at the present time for permitting local district regulations of any character. If congress will not remodel the national