Where a state or territory, by its general law, has only partially exercised its privilege of supplemental legislation, district regulations may, in turn, supplement such legislation within the field not covered by state or territorial laws, if within the sanction of the federal laws.

2 271. Acquiescence and observance, not mere adoption, the test.-As heretofore observed, it is not necessary that any rules or regulations should be adopted. Compliance with the federal law and state legislation, if any, is sufficient.1 But when adopted, and acquiesced in, if not in conflict with federal or state legislation, they have the force of positive law, and substantial compliance with them is essential to a perfect mining title.3

As a rule, courts will not inquire into the regularity of the modes by which miners adopt their local rules, unless fraud or some other like cause be shown. It is enough that they agree upon their laws, and that they are recognized as the rules.*

Local regulations do not acquire operative force by mere adoption, but from customary obedience and acquiescence of the miners following the enactment; and they become void whenever they fall into disuse or are generally disregarded.

1 Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312.

Mallett v. Uncle Sam M. Co., 1 Nev. 203, 90 Am. Dec. 484; Gropper v. King, 4 Mont. 367; Rush v. French, 1 Ariz. 99, 25 Pac. 816; Gird v. California Oil Co., 60 Fed. 531, 535; McCormick v. Varnes, 2 Utah, 355.

Gleeson v. Martin White M. Co., 13 Nev. 443; Becker v. Pugh, 17 Colo. 243, 29 Pac. 173; King v. Edwards, 1 Mont. 235; Sullivan v. Hense, 2 Colo. 424; Donahue v. Meister, 88 Cal. 121, 22 Am. St. Rep. 283, 25 Pac. 1096.

Gore v. McBrayer, 18 Cal. 583, 589.

North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 307, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 106, 11 Fed. 666; Harvey v. Ryan, 42 Cal. 626.

North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 307, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 106, 11 Fed. 666.

A custom to be binding ought to be so well known, understood, and recognized in the district that locators should have no reasonable ground for doubt as to what is required.1

2272. Regulations, how proved-Their existence a question of fact for the jury; their construction a question of law for the court.-Judicial notice cannot be taken of the rules, usages, and customs of a mining district, and they should be proved at the trial, like any other fact, by the best evidence that can be obtained respecting them." If one desires to attack the validity of another's location upon the ground that local rules and regulations were not complied with by the locators, he must show what such rules and regulations were. The record books of the district into which written rules are transcribed are, of course, the best evidence as to such rules, and if lost or destroyed, secondary evidence is admissible. But this record will not prove itself. It must be produced by the proper officer, and its authenticity as such established."

Where copies of district rules are sought to be introduced in evidence, it is necessary that it should appear that they come from the proper repository, and that such custodian was empowered to give certified copies, and that such were copies of the laws prevailing and in force in the district.R

All of the written rules making up the body of the local law constitute one entire instrument; and it is

1 Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 106, 111, 11 Fed. 666. 'Sullivan v. Hense, 2 Colo. 424; Meydenbauer v. Stevens, 78 Fed. 787. Kirk v. Meldrum (Colo), 65 Pac. 633; Dutch Flat Water Co. v. Mooney, 12 Cal. 534. See Glacier etc. M. Co. v. Willis, 127 U. S. 482, 8 Sup. Ct. Rep. 1214; Hughes v. Ochsner, 26 L. D. 540.

'Sullivan v. Hense, 2 Colo. 425; Campbell v. Rankin, 99 U. S. 261. Roberts v. Wilson, 1 Utah, 292.

'Harvey v. Ryan, 42 Cal. 626; Roberts v. Wilson, 1 Utah, 292.

necessary to a fair understanding of any one part that the whole should be inspected.1

Parol evidence of a mining custom cannot be given when there are written rules or regulations of the mining district in force on the same subject. But if the proof renders it doubtful as to whether or not the written rules are in force, both the written laws and parol evidence of the mining customs may be offered in evidence.3

The existence of a custom relating to a subject not covered by the written laws, such as posting a notice on a claim, as an act indicating appropriation, may, of course, be shown.^

Rules and regulations once proved to have been adopted and acquiesced in, a presumption arises that they continue in force until something appears showing that they have been repealed or have fallen into disuse, and another practice has been generally adopted and acquiesced in."

The mere violation of a rule by a few persons only would not abrogate it, if still generally observed. The disregard and disuse must become so extensive as to show that in practice it has become generally disused." Such fact may be proved by a series of circumstances and conditions in the district."

The existence of mining customs may be proved, however recent the date or short the duration of their estab

1English v. Johnson, 17 Cal. 108, 119, 76 Am. Dec. 574; Roberts v. Wilson, 1 Utah, 292.

5 North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 308, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 107, 11 Fed. 666; Riborado v. Quang Pang Co., 2 Idaho, 131, 6 Pac. 125.

North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 308, 1 Fed. 522. 'Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 112, 11 Fed. 666; Flaherty v. Gwinn, 1 Dak. 509.

lishment. The common-law doctrine as to customs in such cases does not govern.1

Whether a given rule or custom is in force at any given time, is a question of fact to be determined by the jury. But the court must construe the rule;3 and it shall be so construed as to harmonize with the entire body of the mining law, including all other rules in force in the district.5

There is no distinction between the effect of a "cus"tom" or usage, the proof of which must rest in parol, and a "regulation," which may be adopted at a miners' meeting, and embodied in a written local law."

Some of the courts have held that a discoverer has a reasonable time to perfect his location after discovery, in the absence of a state statute or local rule fixing the time. In such cases, it is said, the court may consider evidence of a general custom upon this subject prevalent in different sections of the mining regions as to what constitutes a reasonable time, following the principle announced in early days as to what was a reasonable extent of ground embraced in a mining location, in the absence of any local rule fixing it.

'Smith v. North American M. Co., 1 Nev. 357, 359.

North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 307, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 112, 11 Fed. 666; King v. Edwards, 1 Mont. 235; Poujade v. Ryan, 21 Nev. 449, 33 Pac. 659; Golden Fleece v. Cable Cons. M. Co., 12 Nev. 312; Sullivan v. Hense, 2 Colo. 424; Harvey v. Ryan, 42 Cal. 626.

Fairbanks v. Woodhouse, 6 Cal. 434; Ralston v. Plowman, 1 Idaho, 595. 'Leet v. John Dare M. Co., 6 Nev. 218.

English v. Johnson, 17 Cal. 108, 119, 76 Am. Dec. 574; Roberts v. Wilson, 1 Utah, 292.

Harvey v. Ryan, 42 Cal. 626, 628; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 307, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 106, 11 Fed. 666; Doe v. Waterloo M. Co., 70 Fed. 455, 459; Flaherty v. Gwinn, 1 Dak. 509.

"Doe v. Waterloo M. Co., 70 Fed. 455; Gleeson v. Martin White M. Co., 13 Nev. 443; Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312, 329.

• Table Mountain T. Co. v. Stranhan, 20 Cal. 199.

2 273. Regulations concerning records of mining claims. The mining laws of congress do not require any notice or certificate of location to be recorded. In the absence of some state or territorial law, or local rule or custom, providing for such record, it is unnecessary,1 and proof of recording, without some regulation or custom requiring it, is irrelevant and inadmissible.2

If a notice is required, by either state law or local rules, to be recorded, it must contain all the requisites prescribed by section twenty-three hundred and twentyfour of the Revised Statutes.

In some states district recorders have been required to turn over their records to the county recorder. Such legislation is valid.

The popular understanding of the requirements of the mining law is, that notices of location should be recorded somewhere. This has led to an almost universal custom, in states where there are at present no

'Haws v. Victoria Copper Co., 160 U. S. 303, 16 Sup. Ct. Rep. 282; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 311, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 111, 114, 11 Fed. 666; Southern Cross M. Co. v. Europa M. Co., 15 Nev. 383; Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419; Gregory v. Pershbaker, 73 Cal. 109, 14 Pac. 401; Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Souter v. Maguire, 78 Cal. 543, 21 Pac. 183; Freezer v. Sweeney, 8 Mont. 508, 21 Pac. 20; Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 261; Fuller v. Harris, 29 Fed. 814; Allen v. Dunlap, 24 Or. 229, 33 Pac. 675; Gird v. California Oil Co., 60 Fed. 531; Moore v. Hamerstag, 109 Cal. 122, 41 Pac. 805; Meydenbauer v. Stevens, 78 Fed. 787, 792; Smith v. Newell, 86 Fed. 56; Perigo v. Erwin, 85 Fed. 904; Magruder v. Oregon and California R. R. Co., 28 L. D. 174; Kern County v. Lee, 129 Cal. 361, 61 Pac. 1124; Conway v. Hart, 129 Cal. 480, 62 Pac. 44.

Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312.

3 Hammer v. Garfield M. and M. Co., 130 U. S. 291, 9 Sup. Ct. Rep. 548; Gleason v. Martin White M. Co., 13 Nev. 443; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 312, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 112, 11 Fed. 666; Poujade v. Ryan, 21 Nev. 449, 33 Pac. 659; Meydenbauer v. Stevens, 78 Fed. 787, 792; Smith v. Newell, 86 Fed. 56; Conway v. Hart, 129 Cal. 480, 62 Pac. 44.

In re Monk, 16 Utah, 100, 50 Pac. 810.