laws or regulations on the subject, of recording all such notices in the county recorder's office of the several counties. Where provisions for recording are found only in local rules, the county recorder may not be required to so record. If he does, his act is not that of a county recorder elected by the people, but as a person selected by the miners to do an act not provided for by the recording laws of the state. The county recorder's books, showing records of such claims in any considerable number, are competent evidence, as tending to establish such custom and its general observance.2 But such 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 was required as to the place of record. When such a custom has been generally followed and acquiesced in, it gives the record validity and entitles it, or certified copies of it, to be introduced in evidence; but a failure to record would not work a forfeiture of the claim, or make it subject to relocation, unless the custom or rule so provided. This is the view adopted by the supreme courts of California and Arizona, and by Judge Sawyer; but the opposite conclusion has been reached by the courts of Montana and Nevada.*

Where such custom has become recognized and generally observed, the records of the county recorder, besides tending to establish a regulation sanctioning the recording of mining claims, also furnish evidence of a persuasive character, tending to show in many instances that local written regulations at one time formally adopted, and never formally repealed, have fallen into disuse. Instances of this character are found in several

'San Bernardino County v. Davidson, 112 Cal. 503, 44 Pac. 659. See the later case of County of Kern v. Lee, 129 Cal. 361, 61 Pac. 1124. Pralus v. Pacific G. and S. M. Co., 35 Cal. 30.

Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 111, 11 Fed. 666. *See, post, § 274.

of the mining counties of California, and undoubtedly elsewhere. Prior to the passage of the act of May 10, 1872, written regulations adopted at a miners' meeting limited the width of lode claims to one hundred feet on each side of the lode, and provided for recording with a district recorder. After the passage of this act, it seems that, almost uniformly, location notices were recorded with the county recorder; and from such records it appeared that the new locations invariably claimed the statutory limit of three hundred feet on each side of the center of the vein. There can be no doubt that these records should be considered as competent evidence tending to establish the fact that the local rules had become obsolete, and were no longer of controlling force. A discussion of the method of proving local rules and customs concerning the location and recording of claims will be found in a preceding section.1

? 274. Penalty for non-compliance with district rules. -While it has been frequently said that a forfeiture may be worked for failure to comply with local rules,2 the supreme court of California at an early date announced the doctrine that

"The failure to comply with any one of the mining "rules and regulations of the camp is not a forfeiture of "title. It would be enough to hold the forfeiture as a "result of the non-compliance with such of them as "make a non-compliance a cause of forfeiture."

4

This doctrine was acquiesced in, in a later case, decided by the same court, and reaffirmed at a still later date by the same tribunal, in the following terms:

1 See, ante, § 272. See, also, McCann v. McMillan, 129 Cal. 350, 62 Pac. 31.

Mallett v. Uncle Sam M. Co., 1 Nev. 203; Oreamuno v. Uncle Sam M. Co., 1 Nev. 179; St. John v. Kidd, 26 Cal. 264; Depuy v. Williams, 26 Cal. 310; Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153.

McGarrity v. Byington, 12 Cal. 427.

4 English v. Johnson, 17 Cal. 108, 117, 76 Am. Dec. 574.

"The objection taken to this instruction is, that it "directs the jury to find for the defendants, if they find "from the evidence that the plaintiff had failed to com"ply with certain regulations, without accompanying "the same with a further charge as to whether these "rules and regulations declared a forfeiture as the "result of such non-compliance. The failure of a party "to comply with a mining rule or regulation can not "work a forfeiture, unless the rule itself so provides. "There may be rules and regulations which do not pro"vide that a failure to comply with their provisions "shall work a forfeiture. If so, a failure will not work a forfeiture; hence, in charging the jury upon a ques"tion of forfeiture, the charge should be narrowed to "such rules as expressly provide that a non-compliance "with their provisions shall be cause of forfeiture."1 This is now the settled rule in California.2

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The rule announced by the California court was accepted by the supreme court of Arizona, and by the late Judge Sawyer, circuit judge of the ninth circuit."

The supreme court of Montana, however, while conceding that the decisions in California generally deserve great weight upon the subject of mining, expresses the opinion that upon this particular point they are far from satisfactory, and declines to follow them."

The supreme court of Nevada has also adopted a rule different from that recognized in California and Arizona. That court has held that failure to comply with laws or local rules works a forfeiture whether such laws or rules provide for such forfeiture or not."

'Bell v. Bed Rock H. and M. Co., 36 Cal. 214.

Emerson v. McWhirter, 133 Cal. 510, 65 Pac. 1036.

3 Johnson v. McLaughlin, 1 Ariz. 493, 4 Pac. 130, 132; Rush v. French, 1 Ariz. 99, 25 Pac. 816.

Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 117, 11 Fed. 666. See, also, Flaherty v. Gwinn, 1 Dak. 509, 511.

"King v. Edwards, 1 Mont. 235, 241. See Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153.

Mallett v. Uncle Sam G. and S. M. Co., 1 Nev. 188, 90 Am. Dec. 484; Oreamuno v. Uncle Sam M. Co., 1 Nev. 215; Sissons v. Sommers, 24 Nev. 379, 77 Am. St. Rep. 815, 55 Pac. 829.

The existing mining laws, however, relieve to a large extent the embarrassments which might flow from a conflict of opinion on this subject, particularly with reference to the performance of annual labor and the result of non-compliance with the terms of the law. As to other matters within the scope of local regulation which may be considered of minor importance, we think the California rule, as was said by the supreme court of Arizona, "is a safe and conservative rule of decision, tending to the permanency and security of mining "titles."1

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Forfeitures have always been deemed in law odious, and the courts have universally insisted upon their being clearly established before enforcing them.2

We shall have occasion to again consider this subject in another portion of this treatise, in connection with the perpetuation of estates acquired by location.

8 275. Local rules and regulations before the land department. In proceedings to obtain patents under the mining laws, it devolves upon the land department, in the absence of adverse claims, and suits brought to determine them, to decide what rules and regulations are in force in a given district, and its decision upon the subject is final.3

As a rule, the land department has followed closely the doctrines announced by the courts in the mining regions, in applying and construing local customs and

'Johnson v. McLaughlin, 1 Ariz. 493, 4 Pac. 130, 133. To the same effect, see Emerson v. McWhirter, 133 Cal. 510, 65 Pac. 1036.

See, post, § 645; Hammer v. Garfield M. and M. Co., 130 U. S. 291, 9 Sup. Ct. Rep. 548; Mt. Diablo M. and M. Co. v. Callison, 5 Saw. 439, Fed. Cas. No. 9886; Belcher Cons. M. Co. v. Deferari, 62 Cal. 160; Quigley v. Gillett, 101 Cal. 462, 35 Pac. 1040; Johnson v. Young, 18 Colo. 625, 34 Pac. 173; Book v. Justice M. Co., 58 Fed. 106; Strasburger v. Beecher, 49 Fed. 740; Providence G. M. Co. v. Burke (Ariz.), 57 Pac. 641; Emerson v. McWhirter, 133 Cal. 510, 65 Pac. 1036.

3 Parley's Park M. Co. v. Kerr, 130 U. S. 256, 262, 9 Sup. Ct. Rep. 511.

regulations. In suits upon adverse claims, where most of the questions arise, the local courts determine the facts and apply the law, and their judgment is a guide to the land department in the issuance of patents. We do not encounter in the decisions of this department much that is instructive at the present time, as applied to existing conditions.