Harvey v. Ryan

By the Court, Niles, J.: This was an action of trespass involving the right to the possession of certain placer mining claims. The defendants claimed under a location purporting to have been made in May, 1858. The plaintiffs claimed a portion of the same ground under a location purporting to have been made in May, 1866.

It was proven at the trial that at a meeting of the miners of the mining district, held in Rovember, 1861, certain written rules were adopted, regulating the manner of location and size of claims. These rules contained no requirement that notices should be posted upon the claims at the time of location. The defendants offered to prove by several witnesses that, at the time plaintiffs claimed to have located the ground, there was a custom in the mining district that required a party locating to post a notice of his claim upon the ground. The testimony was rejected upon [628]the ground that there were written rules in force in that locality, and that those rules superseded any custom in regard to locating claims.

In this class of cases the statute authorizes proof “ of the customs, usages, or regulations established and in force at the bar or diggings embracing such claims,” and declares that “ such customs, usages, and regulations * * * shall govern the decision of the action.” (Practice Act, Sec. 3, p. 621.) Ho distinction is made by this statute between the effect of a “ custom ” 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. This law does not, like a statute, acquire validity by the mere enactment, but from the customary obedience and acquiescence of the miners following its enactment. It is void whenever it falls into disuse or is generally disregarded. It must not only be established,, but in force. A custom, reasonable in itself, and generally observed, will prevail as against a written mining law ’which has fallen into disuse. It is a question of fact for the jury whether the law is in force at any given time.

The custom sought to be proven in this case was not even in conflict -with the mining laws. It merely prescribed another and not unreasonable act in the series of acts required for a location. The exclusion of the evidence was error.

It is unnecessary to pass upon the validity of the instructions refused by the Court. The testimony comes up to this Court in such confused and unintelligible shape that it is impossible to learn from the record whether the instructions did or did not apply to the proofs presented.