amount of work necessary to hold possession; (5) manner in which boundaries shall be defined;5 (6) statutory limitation of actions involving the possessory right, and (7) rules for working mines, involving easements, drainage, and other necessary means to their complete development.6 The following compilation of state statutes shows, in part at least, what has been done by the local legislatures in the way of supplying the deficiencies of the general law.7 1 Ante, Ch. I., §§ 1-2. 2 Ibid, §§ 2-3. 3 Ante, Ch. II., § 12 et seq. 4 Rev. Stat., § 2320, ante, p. 14. 5 Rev. Stat. U. S., § 2324, ante, p. 15. § 142. Same-Local regulations prior to acts of Congress-Width.—In the early history of lode mining in California, while the length of claims was fixed by district rules with more or less accuracy, considerable latitude seems to have been indulged as to the proper width, so that it often became a question of fact whether the ground taken was excessive in amount; claims being held by a possessory title independent of any statutory authority that could be construed into even a temporary license from the proprietor.1 The proper boundaries of a claim in its lateral extent were often determined by custom in order to ascertain the extent of the claimant's constructive possession; for where such boundaries were described in a deed, and the quantity described was in excess of that allowed by local rules or customs, it was held that the constructive possession of the grantee would not extend to the unauthorized boundaries.2 Where held by actual possession, and the extent of the claim was marked by distinct and visible monuments, the posses sion would extend to the entire claim.3 In the absence of any local custom in force, giving constructive possession to mining ground on the posting of notice on the claim, giving the length of the claim without defined boundaries, such a location would not support a judgment for possession of the claim. But where the claim was held according to the customs of miners in a given district, the possession constructively extended to the customary limits.5 1 Ante, Ch. I., § 1 et seq. 2 English vs. Johnson, 17 Cal. 107. 3 Table Mountain, &c. Co. vs. Stranahan, 20 Cal. 198; Hess vs. Winder, 30 Cal. 349; Conger vs. Weaver, 6 Cal. 548. 4 Morenhaut vs. Wilson, 52 Cal. 263; Gelcich vs. Moriarity, 53 Cal. 217. 5 Hicks vs. Bell, 3 Cal. 219. § 143. Same-Location. -The rights acquired to mining property, which were recognized by the courts in the early history of the prosecution of this branch of industry on the public domain, were obtained by two methods: First, possession taken independent of mining regulations, which extended only to the ground actually occupied within well defined boundaries.1 And, second, where the claim was located according to district rules. When the claim was taken by the latter method the rules and customs of the district might prescribe the limits without strict dependence upon actual occupancy or definite boundaries.2 The matter of prime importance in old locations seems to have been notice, by which others could learn not only that a claim had been taken, but for what purposes the ground was appropriated. For no conflict was recognized to locations of the same ground for different purposes not inconsistent with each other, as for fluming purposes and the deposit of tailings by one party, and for the purposes of mining by an other, provided the subsequent location did not obstruct the free use of the ground by the prior locator in the prosecution of the business for which it was located.3 The notice was also necessary to inform others of the direction from the point of discovery, in which the claim lay. In lode claims, the location was intended and supposed to be on the lode, and the claim was a right to follow it through all its supposed meanderings, dips, and angles. But a misdescription in the notice as to the direction of the lode, where it was impracticable to give it more accurately, was held not to vitiate the location in favor of a subsequent locator on the same vein.4 And in a contest between the locators of a ditch and of a mining claim, it was held that a slight divergence from the original line on which the ditch was located, where bo.h lines ran through the mining claim located at a time intermediate between the original location of the ditch and the change in lines, would not materially affect the rights of the parties to the ground in question.5 The locator of a claim must take the ground as he finds it, subject to all prior rights, including such incidental rights as are essential to the enjoyment of the ground claimed for any legitimate purpose.6 The notice will frequently govern as to the character of the claim taken, from the language used, as it may describe the incidents of one kind of claim or another. As where it claimed twelve hundred feet of ground "for mining purposes," following the particular description by the words, "with all its dips, angles, and spurs," it was held that these words referred to a lode, and not to surface claims. It has also been held with respect to the notice, that it is not essential to a valid location by posting notice, that it should be placed on the vein or ore body itself; but that it would suffice if placed within such proximity as to notify any one of what was claimed.8 But though some slight divergence from district rules as to location, where the rule is merely directory, may be sanctioned, there must be a substantial compliance with the district regulations to constitute a valid location. Such local rules, by general recognition, have the effect of positive laws when not in conflict with the statute, and are to be construed accordingly.10 The claim being for the particular lode and sufficient lateral ground for working purposes, it did not follow in every instance that the original claimant could hold the side veins by virtue of his prior location.11 The locators whose names appear in the notice become tenants in common, regardless of whether they were all alike active in making the location or not.12 The location may be made by an agent.13 Under district rules and local laws a definite quantity of work was required in order to complete the location. But the time within which this should be done is not always definitely expressed. It is in some. cases required to be done "in a reasonable time" after discovery. When the facts are undisputed it has been held that what is a reasonable time is a question of law.14 And where it was conceded that the labor was not commenced until after the expiration of sixty days after the discovery, and was completed by sinking a shaft ten feet deep, nine feet long, and five feet wide, in twenty-five days, the time-eighty-five days from discovery-was held unreasonably long.15 Where the law of the state,16 in harmony with the federal law, required the location to be described by reference to permanent monuments or natural objects, it was held that describing a claim as "situated on the north side of Iowa Gulch, about timber line, on the west side of Bald Mountain, said claim is staked and marked as the law requires," was not a compliance with the statute.17 English vs. Johnson, 17 Cal. 107; Table Mountain, &c. Co. vs. nahan, 20 Cal. 198; Hess vs. Winder, 30 Cal. 349. 2 Ibid; Table Mountain, &c. Co. vs. Stranahan, 31 Cal. 387; Atwood vs. Fricot, 17 Cal. 37. 3 O'Keefe vs. Cunningham, 9 Cal. 589. 4 Johnson vs. Parks, 10 Cal. 446. 5 Conger vs. Weaver, 6 Cal. 548. 6 Irwin vs. Phillips, 5 Cal. 140; Sims vs. Smith, 7 Cal. 148; Weimer vs. Lowery, 11 Cal. 104; Martin vs. Brown, 11 Cal. 12; Butte Canal, &c. Co. vs. Vaughn, 11 Cal. 143. 7 Weill vs. Lucerne M. Co., 11 Nev. 200. 8 Phillpots vs. Blaisdell, 8 Nev. 61. 9 Oreamuno vs. Uncle Sam, &c. Co., 1 Nev. 215; Mallet vs. Uncle Sam M. Co., 1 Nev. 188; Sullivan vs. Heuse, 2 Col. 424. 10 Golden Fleece Co. vs. Cable Co., 12 Nev. 312. 11 Van Valkenburg vs. Huff, 1 Nev. 142. 12 Chase vs. Savage &c. Co., 2 Nev. 9; Morton vs. Solombo, &c. Co., 26 Cal. 527. 13 Murley vs. Ennis, 2 Col. 300. 14 Wiggins vs. Buckham, 10 Wall. 129; Leaming vs. Wise, 73 Pa. St. 173; Morgan vs. McKee, 77 Pa. St. 228; Douse vs. Wheeler, 26 Mich. 195; Nudd vs. Wells, 11 Wis. 417; Patterson vs. Hitchcock, 3 Col. 533. 15 Patterson vs. Hitchcock, supra. 16 Colorado, post, Ch. XV. 17 Faxon vs. Barnard, 1 Col. Law Rep. 145. § 144. Same—Recording.—The act of Congress of 1872 seems to take the recording of claims as a matter of course, but leaves the manner in which it shall be done to local regulation, merely providing, for the purpose of rendering local laws effective in this respect, that "all records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument, as will identify the claim."1 Beyond this the record is to be provided for by the local law or district rules. If not so provided for, either before or after the passage of the federal statute, the recording of claims is not, and never was, obligatory, and evidence of failure in this respect would be irrelevant, although there might be a dis |