known as the Real del Monte, Aurora, Last Chance, ** containing in all
4,400 feet, more or less, and being the same property described in the as-
sessment," there is no variance between the two descriptions. Where
many claims are consolidated in the hands of one company there is no
impropriety in calling it one mining claim. Id.
335
10. The words "Pocotillo Mine," in a mortgage, construed.-Where
a dispute arose between Brandow and the Pocotillo Silver Mining Com-
pany, as to the ownership of eight hundred feet of mining ground, and,
on an amicable settlement, a contract was entered into between them in
which, after reciting the controversy as to such mining ground "known
as the Pocotillo Mine," Brandow agreed to convey to said company all his
right, title and interest in "said claim or mine," and the company agreed
among other things, to pay Brandow $15,000, and that the contract should
"operate as a lien by way of mortgage upon said mine to secure the
same. Held, that the mortgage was restricted to the mining ground in
controversy, and could not include the Pocotillo Mine in fact, which em-
braces much more ground. Brandow v. Pocotillo Silver M. Co.,
11. Description limited to the mine so known at time of contract.—The
words "Pocotillo Mine" being used in the contract to designate certain
mining property therein specifically described, could not be construed to
intend any additional part of the larger tract afterward known as the Poco-
tillo Mine. Id.
1. Sickness and want of means no excuse for delay.—In considering
the question of reasonable diligence upon enterprises requiring much labor
and capital, the illness of the principal operator, or his want of pecuniary
means, and such other accidents causing delay as are incident to the per-
son and not to the enterprise, can not be taken as an excuse to prolong
the time which should be allowed. Ophir Mining Co. v. Carpenter, 649
2. Due diligence defined.—To constitute diligence does not require
unusual efforts or expenditures, but only such constancy in the pursuit of
the undertaking as is usual with those in like enterprises who desire a
speedy accomplishment of their designs; such assiduity as shows a bona
fide intention to complete it within a reasonable time. Id.
See APPROPRIATION, 10, 11; LEASE, 1; LOCATION, 15; MEASURE of
DAMAGES, 4.
1. Following lode beyond side lines.-One who seeks to establish a
right to pursue his lode beyond its side lines must be able to show that
the lode is continuous and in place throughout its whole course from its
origin in his own ground, to the place beyond in which he claims it.
Leadville Mining Co. v. Fitzgerald,
380
2. Departure from the perpendicular.-A vein dipping at any angle be-
tween a vertical and a horizontal position has a departure from the per-
pendicular within the meaning of § 2322 R. S. U.S. Id.
3. Ancillary or side veins.-Where a valid location is made up-
on 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
sides lines. Jupiter Mining Co. v. Bodie Co.,
412
1. Veins can only be discovered on public lands.-If two locations of
mining claims are made by the same party which interfere with each other,
the second location includes only so much ground as is exclusive of the
first, and if the discovery of the second is within the boundaries of the first
location, then such second location is invalid, for it is a condition precedent
to the location of a mining claim, that a discovery of a vein, bearing val-
uable minerals, shall first be made within the limits of such location, in-
dependent of any other subsisting and valid location. It is upon the pub-
lic mining lands that the vein must first be discovered. Golden Terra
M. Co. v. Mahler,
390
2. Discovery after location made.--But if such party afterward discov-
ers a vein upon that portion of the second location which is exclusive of
the first, the staking, recording and improving will inure to his benefit,
and the validity of the location will date from the time of such discovery.
The order of the acts to be performed is non-essential, provided no interven-
ing rights of others have accrued. Id.
3. Pay ore not essent al to discovery.-- A vein is discovered when there
is disclosed a well-defined body of rock in place carrying gold, which
body afterward proves to be continuous, and it is not essential that it
should carry pay ore. Id.
4. Discovery of mineral, though made after location will avail against
strangers.--Though the locators of a mining claim may not, at the time
of the location and survey of the claim, have sunk their shaft to the dis-
covery of mineral in place, yet, if they shall thereafter so sink the shaft
and find the lode, they will hold as against all who had not theretofore
acquired an interest in the lode, the discovery relating back to the location.
Zollars v. Evans,
407
5. 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. Jupiter M. Co. v. Bodie Co.,
411
6. Discovery of vein after location.-A location is made valid by the
discovery 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. Id.
412
7. 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. Id.
8. Discovery notice holds the claim pending location-Constructive
DISCOVERY. Continued.
possession. The statute of Colorado, which gives sixty days after the
discovery of a mining claim in which to sink a discovery shaft and make
a location, does not require the discoverer to remain during that interval,
in actual personal possession by being present upon the ground. The
erection of the discovery stake, with the required notice thereon, is
notice to all others of the claim of the discoverer, and amounts to con-
structive possession, which is sufficient during the period provided by the
statute. Erhardt v. Boaro,
432
9. Notice-How made.-A notice posted at the point of discovery, spec-
ifying the nature and extent of his claim, will protect the locator's right
for the time allowed by law in which to complete the location, although
he may be absent from the claim during part of such time. Erhardt v.
Boaro,
434
10. Same-Must specify extent of claim.--But if he fails to specify in
his notice of discovery and claim to the ground the extent of his claim, as
that it extends a certain distance from the point of discovery in a direc-
tion named, it will relate only to the place where it stands. As against
others afterward locating in the vicinity, it will cover only ground neces-
sary for sinking a shaft. Id.
11. Prerequisites to location-Discovery outside of discovery shaft.—
Under the statutes, Federal and State, no location of a mining claim shall
be made until the discovery of a vein or lode within the limits of the
claim; and a discovery shaft must be sunk thereon to the depth of at least
ten feet. The mineral or ore so discovered must be in position-in the
form of a lode--and not in a broken and fragmentary condition, inter-
mingled with slide and debris on the surface. Discovery of ore after loca-
tion, in a different part of the claim, will not avail. Van Zandt v. Ar-
gentine Co.,
441
12. The burden is on the plaintiff to establish the fact that ore was so
found in his discovery shaft, and that the same lode is continuous to the
ground in controversy. Id.
1. 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. Jupiter M. Co.
v. Bodie Co.,
2. Must not conflict.-The rules and customs of miners must not con-
flict with the laws of the United States, or the laws of the State in which
the claims are located. Id.
3. 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 miners' meeting and recorded in writing. Id.
4. Existence of rule is a question of fact.—Whether or not a mining
DISTRICT RULES. Continued.
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. Id.
5. Mining regulations as evidence-Affecting vested rights.—In a suit
for the possession of mining claims, the defendant was allowed to read in
evidence the mining rules of the district, though adopted after the plaint-
iffs' rights had attached. Held, that as defendants claimed under the
rules, they were competent for the purpose of determining the nature and
extent of their claim, and their effect upon pre-existing rights was suffi-
ciently guarded by the instructions. Roach v. Gray,
6. Appropriation limited.-The mining rules of a district may limit
the quantity of ground which a party can acquire by location or prior ap-
propriation. Prosser v. Parks,
452
7. Right to purchase unlimited.-Such rules can not limit the quan-
tity of ground he may acquire by purchase. Id.
8. Usage and custom confined to the district.-Questions affecting a
mining right should be solved according to the customs and usages of the
bar or diggings embracing the claim, whether written or unwritten.
Morton v. Solambo Co..
463
9. Mining customs-Conditions, precedent and subsequent-Forfeit-
ure. The mining customs of any particular mining district are the com-
mon law of mining. Compliance with the customs which point out the
manner of locating mining ground, is a condition precedent, and the reg-
ulations which require that so much work must be performed upon each
claim are conditions subsequent which must be complied with, or the
claim be forfeited to the United States. It is not necessary that the law
should provide in terms for such forfeiture. King v. Edwards, 480
10. Customs, a question for a jury-Law of other districts.-The
issue as to what customs are in force in a district is properly left to the
jury, and the customs of an outside dist ict can not be introduced to vary
them. Id.
11. Written law presumed in force-Contrary custom may be shown.
-When the written laws of a district provide for work in the district to
represent mining ground therein, these laws are presumptively in force,
and parties who claim to represent their ground by work outside of the
district, must show a positive custom sanctioning such representation. Id.
12. Change of boundaries.--The boun laries of a mining district may
be changed, but such change can not interfere with rights vested under
district rules existing before the change. Id.
13. Customs must be reasonable--Representation by work on flume in
another district.-All mining customs must be reasonable, and where it
appears that mining ground could not be profitably worked without going
outside the district to run a bed-rock flume to it, a custom which would
require work to be done in the district to represent it, might be consid-
ered unreasonable. Id.
14. Labor on claim or location.-The local laws of White Pine dis-
trict which require two days' work for every location do not mean two days'
work for each two hundred feet, but for the entire mining claim, irrespect-
DISTRICT RULES. Continued.
ive of the number of locators or feet. Leet v. John Dare Mining Co., 487
15. No distinction between written and unwritten customs.-No dis-
tinction is made by the statute in California between the effect of a "cus-
tom" or "usage," the proof of which must rest in parol, and a "regula-
tion" which may be adopted at a miners' meeting and embodied in a
written local law. Harvey v. Ryan,
490
16. District rules become void by non-user.-Such laws, whether
written or not, acquire validity from the customary obedience of the
miners, and are void whenever they fall into disuse; hence, an unwritten
regulation, reasonable and in general use, may prevail against a written
custom which has fallen into disuse. Id.
17. Proof of location notice required by unwritten rule.-It is error to
reject proof of a parol custom requiring a location notice, although such
notice was not required by the written rules. Id.
18. A district rule must not only be established, but must remain in
force, and whether it be in force or has fallen into disuse is a question of
fact for the jury. Id.
19. Evidence-The district books-Montana practice.-The book con-
taining the mining laws of a district is competent evidence under § 504
of the Montana Practice Act, viz.: "In actions respecting mining claims,
proof shall be admitted of the customs, usages and regulations
and such customs, usages and regulations, when not in conflict with the
laws of this Territory, shall govern the decision of the action." And,
under § 207 of the same act, the book was rightfully taken by the jury to
the jury room. Orr v. Haskell,
493
20. District records as evidence of title.-A book for the record and
transfer of mining claims, shown to be authorized by the rules of the dis-
trict, was offered in evidence and admitted without objection, and showed
several transfers by which a title to the premises in controversy was
vested in plaintiffs. Held, that the book was at least secondary evidence,
which, being admitted without objection, made out the plaintiffs' case
and put the defendants to the proof of a forfeiture or abandonment by
plaintiffs. St. John v. Kiad,
455
21. Proof of mining rules by copy-Affidavit.-In order to introduce
evidence of the local mining laws of a district, it is necessary that it should
be made to appear aliunde that the copy offered comes from the proper
custodian, and that such person was empowered to give certified copies
thereof, so as to become evidence, and that such was a copy of the laws in
force in such district. Such copy can not be proved by affidavit. Roberts
v. Wilson,
498
22. Mining rules, their history and character.-The history and
nature of miners' laws and customs stated and explained. Jennison v.
Kirk,
504
23. Statutory law controls local customs.-The act of Congress ap-
proved July 26, 1866, provides "that whenever, by priority of possession,
rights to the use of water for mining, etc., purposes, have vested and
accrued, and the same are recognized and acknowledged by the local cus-
toms, laws, and the decisions of courts, the possessors and owners of such
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