And your attention will now be asked to the facts necessary to establish such better title.

Much that has been said with reference to the Highland Mary location is equally applicable to defendant's location, which he calls the Eliza-that is to say, a lode must have been found in the discovery shaft, and the lode must extend from that point to the ground in dispute. Perhaps there is some doubt here also whether any body of mineral or mineralized rock that may be called a lode was found in the discovery shaft, and if so found, whether the same body was exposed in the territory in dispute. Those questions are submitted to your decision on the evidence, and assuming that the plaintiffs have established their right, as before explained to you, if you further find that defendant's grantors discovered a lode in the Eliza discovery shaft and that such lode extends from thence into the ground in dispute, the defendant will prevail.

Because, as was before explained to you, plaintiffs' right can not be of earlier date than July 30, 1879; and defendant, if his grantors made a valid discovery and location, dates back to 1878, long prior to the date of plaintiffs' title by possession. It is true that there is some controversy upon the question whether, at the time of the survey of the Eliza lode in July, 1878, the locators had sunk their shaft to the point where they claim to have found the lode; but if they had not done so, they did, in fact, sink it to the point mentioned by September following, and if they then found a lode, they could have advantage of it as against all who had not then acquired an interest in the lode in the same manner as if they had uncovered it before making their survey and filing their certificate.

And if their location was completed by or before September, 1878, it antedates plaintiffs' title by possession in the same manner as it would if it had been completed in July of that year.

In that view, the question as to defendant's title still remains, whether a lode was discovered in the discovery shaft, and whether such lode extends from that point to the ground in controversy.

If the plaintiffs have established their title, as first ex

plained to you, and the defendant has not established his title, your verdict should be for plaintiffs. If the plaintiffs have failed to establish their title, or the defendant has established his title, your verdict should be for defendant.

Verdict for defendant.

JUPITER MINING Co. v. BODIE CONSOLIDATED MINING

Co.

(11 Federal Rep. 666, 7 Sawyer, 96. U. S. Circuit Court, District of California, 1881.)

Length and width of lode claims. The act of Congress of May 10, 1872, authorizes a claim to be located 1,500 feet in length along the vein, and, in the absence of any local rule or custom, the width of such cla'm may extend 300 feet on each side of the middle of the vein; but said act of Congress, by implication, authorizes the miners to limit the width of such claims to 25 feet on each side of the middle of the vein. Miners' rules must be in force. To be of any validity, a rule or custom

of miners must not only be established or enacted, but must be in force at the time and place of the location. It ceases to be operative whenever it falls into disuse, or is generally disregarded.

Must not conflict. The rules and customs of miners must not conflict with the laws of the United States, or the laws of the State in which the claims are loca ed.

District rule may exist in parol. Section 748 of the Code of Civil Procedure of California is still in force, except so far as it is limited by act of Congress; and no distinction is made by this provision of the State statute between a custom or usage proved by parol evidence and a rule adopted by a miner's meeting and recorded in writing.

Existence of rule is a question of fact. Whether or not a mining law or custom is in force at any given time is a question of fact; but when shown to have been in force, the presumption is that it continues in force until the contrary is proved. Void for excess of width.

Where a location, otherwise valid, exceeds the width allowed by law, it is void as to the excess, but valid as to the extent allowed by law.

1 Discovery of a vein. No rights can be acquired, under the statute, by location, before the discovery of a vein or lode within the limits of the claim located.

2 Definition of vein or lode. A vein or lode, authorized to be located, is a seam or fissure in the earth's crust, filled with quartz or some other kind of rock, in place, carrying gold, silver or other valuable mineral deposits, named in the statute. It may be very thin, or many feet thick, 1 Overman Co. v. Corcoran Co., 1 M. R. 691.

2 Leadrille Co. v. Fitzgerald, 4 M. R. 380; Eureka Co. v. Richmond Co., 4 Saw. 302; Post LODE.

or irregular in thickness; and it may be rich or poor, provided it contains any of the metals named in the statute. But it must be more than detached pieces of quartz or mere bunches of quartz not in place. Discovery of vein after location. A location is made valid by the dis covery of a vein or lode at any time after the location, provided that such discovery is made before any rights are acquired in the same claim by other persons.

Locator need not be discoverer. It is not necessary that the locator should be the first discoverer of the vein, but it must be known and claimed by him in order to give validity to his location.

Ancillary or side veins-Dip. Where a valid location is made upon a vein or lode discovered, the locator is not only entitled to the vein discovered, but to every other vein and lode throughout its entire depth, the top or apex of which lies within the surface lines of the claim extended vertically downward, to which no right had attached in favor of other parties at the time the location became valid, although such veins or lodes may so far depart from a perpendicular as to extend outside of the vertical side lines.

How location to be marked. A location of a mining claim must be distinctly marked on the ground so that its boundaries can be readily traced; but the law does not define or prescribe what kind of marks shall be made, or upon what part of the ground or claim they shall be placed. Any marking on the ground claimed, by stakes, mounds and written notices, whereby the boundaries can be readily traced, is sufficient.

2 Right of subsequent locator to object. A subsequent locator has no right to object that the first location was not sufficiently marked on the ground at the time of the location or before recording, provided that such first location was sufficiently marked on the ground before any valid subsequent location of the same claim. Obliteration of monuments. After a location has been lawfully made, the right of the locator can not be divested by the mere obliteration of the marks or removal of the stakes without his fault, he having performed the other acts required by the statute.

3 Record-Stake may be permanent monument. The law of Congress requires no record of a mining claim except in obedience to valid local rules or customs of miners; but when such local rules or customs require a record it must contain the names of the locators, the date of the location, and such a description of the claim, by reference to some natural object or permanent monument, as will identify the claim. But such natural objects or permanent monuments are not required to be on the ground located, although they may be; and the natural object may consist of any fixed natural object, and such permanent monument may consist of a prominent post or stake firmly planted in the ground or of a shaft sunk in the ground. If by reference to any such natural object or permanent monument, the claim recorded can be identified with reasonable certainty, the record will be sufficient in this particular, otherwise not.

1 Golden Terra Co. v. Mahler, 4 M. R. 390.

2 Zollars v. Evans, 4 M. R. 407.

3 Golden Fleece Co. v. Cable Co. 1 M. R. 120.

Object and effect of record. The object of recording mining claims is to give notice to others desiring to locate in the vicinity. The language of the act of Congress authorizing miners to make regulations "governing the location and manner of recording,” implies that the act of location is distinct from that of recording, except where the regulations of miners make recording necessary to constitute a location; so that a location may be complete and vest the exclusive right of possession before any record thereof is made, unless recording is made an act of location, or one of the acts necessary to constitute a location, by miners' rules or regulations.

Forfeiture by failure to record. The right to a mining claim will not be forfeited by a failure to record the same, in the absence of a miners' rule or regulation providing for a forfeiture on that ground.

Effect of actual notice. In the absence of any miners' rule or regulation making recording a necessary act or condition of a complete location, or providing for a forfeiture by failure to record, a prior location of a mining claim, without recording the same, gives the locator thereof the exclusive right to possess and enjoy the same as against all persons having actual notice of such location and the extent thereof. Work necessary to hold a claim. The statute requires $100 worth of work on each claim located after May 10, 1872, in each year, and, in default thereof, authorizes the claim to be relocated by other parties, provided the first locator has not resumed work upon it. But if the first locator resumes work at any time after the expiration, of the year and before any relocation is made, he thereby preserves his claim. The statute nowhere authorizes a trespass upon, or a relocation of, a claim before located by another, however derelict in performing the required work the first locator may have been, provided he has returned and resumed work, and is actually engaged in developing his claim at the time the second locator enters and attempts to secure the claim.

1 Annual labor by working one of a group of claims. Where one person or company owns several contiguous claims capable of being advantageously worked together, one general system may be adopted to work such claims; and work done according to such system for the purpose of prospecting or working all such contiguous claims, although done on only one of such claims, or even outside of all of them, is available to hold all such contiguous claims intended to be worked or prospected by such general system.

This was an action in the nature of an action of trespass upon a lode mining claim in the Bodie mining district, California, in which the defendant pleaded title to the locus in quo. The case was removed from the State Court to the Circuit Court of the United States, where it was tried by a jury.

GARBER, THORNTON & BISHOP and ROBERT M. CLARK, for plaintiff.

1 Mt. Diablo Co. v. Callison, 5 Saw. 439; Post LODE.

STEWART, VANCLIEF & HERRIN and P. REDDY, for defendant.

SAWYER, C. J. (charging jury).

Counsel having ably discharged their duty, it now devolves on the court to state to you the law governing this case, and then it will be your duty and your province to determine the facts. The questions of fact are for you alone to determine; the weight to be given to the evidence, the credit to be given. to the witnesses, and everything relating to a disputed question of fact, is for your sole consideration and determination.

If I state the testimony I shall only do it for the purpose of calling your attention to it and stating its tendency, but I shall not go over it fully. If I intimate an opinion on a disputed question of fact you are not to be governed by it unless it corresponds with your own ideas as to what the facts are. If I make a mistake in stating the testimony, or alluding to a fact, you will correct it by your own recollection and judgment. I do not intend to express an opinion on the disputed questions of fact, or where the testimony is in conflict. I shall state to you the law which governs this case, and it is your duty to take the law from the court.

You will examine the testimony calmly, carefully and impartially, and announce the result by your verdict.

First in the order of proceedings, you will naturally consider the questions that arise on the plaintiff's title. I do not understand the defendant to insist that the plaintiff has not made out a prima facie title to the ground covered by its claims, now known as the Jupiter Company's ground, embracing the four claims, the Savage, the East Savage, the Riordan and the Daley. It does claim, however, by its own evidence, to overthrow that title by showing a title in itself prior and superior to that title. Prima facie, I do not understand the defendant to claim that plaintiff has not shown its title to these claims; but the question that arises on its title is, is the point on the Acteon vein, where the acts complained of were committed, within the claims of the plaintiff? Does the plaintiff own the lead at the point where the acts complained of were performed? If it does not, then it has no title to the vein worked upon, and it is not injured by the act of the defendant, and your verdict must be for the defendant, whether