the intention may also be to supply water to others for mining and irrigating purposes. In the case of Amador Queen M. Co. v. Dewitt,1 the plaintiff undertook to condemn the right of way through defendant's ground, for the purpose of a tunnel to enable plaintiff to extract ore from its mine and transport it to its mill, defendant's land intervening between plaintiff's mine and its mill. The federal statute was invoked, as in the Colorado case of People ex rel. Aspen M. and S. Co. v. District Court (supra). But the court held that the language of the Revised Statutes of the United States contained no reservation of such right in favor of plaintiff," that the mine of defendant was his private property, the use for which it was sought to be condemned was a private use, and the proceeding could not be maintained. 2263a. Oregon.-The legislature of Oregon enacted a law3 authorizing any corporation organized for the purpose of transporting timber, lumber, or cordwood to condemn rights of way for railroads, skid roads, tramways, chutes, and flumes which "shall be deemed to be "for the public benefit, . . . and shall afford to all 66 persons equal facilities in the use thereof for the purposes to which they are adapted, upon payment or "tender of reasonable compensation for such use." The Apex transportation company sought, under this act, to condemn a right of way over the land of the defendant for a skid road. But the supreme court of Oregon held that the use for which condemnation was sought was private, and, consequently, that the act was unconstitutional.1 173 Cal. 482, 15 Pac. 74. Cited approvingly in Cone v. Roxana G. M. Co., U. S. Cir. Ct., Dist. of Colo., 2 Leg. Adv. 350. 3 Laws of 1895, p. 5. Apex Trans. Co. v. Garbade, 32 Or. 582, 52 Pac. 573, 54 Pac. 367, 882. 2264. Conclusions.'-While in states and territories. surrounded by such physical and industrial conditions as exist in Nevada and Arizona, and probably Montana, judicial discretion may, with some show of reason, be exercised in favor of the rule that mining in the hands of individuals is a "public use," yet such a rule elsewhere is against the logic of the law and the weight of authority. We may appropriately close this discussion by quoting from the opinions of two distinguished courts as to what constitutes a public use: "No question has ever been submitted to the courts upon which there is a greater variety and conflict of "reasoning and results than that presented as to the "meaning of the words 'public use,' as found in the "different state constitutions regulating the right of "eminent domain. The reasoning is in many of the "cases as unsatisfactory as the results have been uncer"tain. The beaten path of precedent, to which courts "when in doubt seek refuge, here furnishes no safe 66 guide to lead us through the long lane of uncertainty "to the open highway of public justice and of right. "The authorities are so diverse and conflicting that, no "matter which road the court may take, it will be sus"tained, and opposed, by about an equal number of the "decided cases. In this dilemma, the meaning must, 66 in every case, be determined by the common sense of "each individual judge who has the power of deciding "it." 2 "What, then, constitutes a public use, as distinguished "from a private use? The most extended research will "not likely result in the discovery of any rule or set of "rules or principles of certain and unusual application by which this question can be determined in all cases. 66 In the state of New York mining is a "public utility," for the reason that the ownership of the precious metals is in the state by virtue of its sovereignty, and the fundamental theory is analogous to the doctrine of the civil law. See, ante, §§ 11, 19. Dayton G. and S. M. Co. v. Seawell, 11 Nev. 394, 400. 66 "Eminent jurists and distinguished writers upon public "law do not express concurrent or uniform views upon "this subject. It is a question, from its very nature, of great practical, perhaps of insuperable, difficulty, to determine the degree of necessity or the extent of public use which justifies the exercise of this extraor"dinary power upon the part of a state, by which the citizen, without his will, is deprived of his prop"erty."1 66 66 1 Valley City Salt Co. v. Brown, 7 W. Va. 191, 195. CHAPTER II. LOCAL DISTRICT REGULATIONS. $268. Introductory. § 269. Manner of organizing districts. $270. Permissive scope of local regulations. § 271. Acquiescence and observance, not mere adoption, the test. § 272. Regulations, how provedTheir existence a ques tion of fact for the jury; § 273. Regulations concerning ree- $275. Local rules and regulations 2268. Introductory.-In the beginning the miners made the laws governing the mining industry, unhampered by congressional or state legislation. In their district assemblages they adopted regulations which covered most of the exigencies of the situation, and frequently much more. They amended, altered, and repealed their rules at will, as changed conditions suggested the necessity, propriety, or convenience. Some of these regulations were wise, and others were otherwise. That these early prospectors were pioneers of extreme western civilization in America, and assisted in laying the foundation of great states, is undoubted. For this they deserve, and have received, full meed of praise. But that they originated a system which is deserving of perpetuation for all time is open to serious question. We doubt whether there is any reason at the present time for permitting local district regulations of any character. If congress will not remodel the national mining laws in such a way as to prohibit legislation by local assemblages, the several states and territories should so cover the ground as to render mining districts as law-making factors not only unnecessary-for that they usually are-but impossible. In a previous chapter, we have traced the origin and noted the general character of district rules and miners' customs during the period when they constituted the American common law of mines. The change in governmental policy wrought by the act of July 26, 1866, and the subsequent legislation crystallizing into the existing system, have circumscribed the limits within which such rules and customs may have controlling force, and they now constitute but a small part in the scheme of mining jurisprudence. When we further consider that in most of the precious-metal-bearing states the legislatures have enacted mining codes of more or less comprehensive nature, leaving but little to be regulated by district rules, we are forced to recognize the fact that the tendency is towards the absolute elimination of miners' regulations and customs as elements controlling mining rights. Nevertheless, in some states legislation is meager, and the subjects with which district organizations may deal are limited only by the laws of congress. In all of the states and territories some vestige of power still resides in these local mining communities. Local rules may still be adopted, if they do not contravene congressional or state legislation.2 It therefore becomes necessary to deal with them to a limited extent, to consider the field in which they may legitimately be made operative, the manner of their 1 Tit. II, ch. iii, §§ 40-46. * Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. Rep. 301; Rosenthal v. Ives, 2 Idaho, 244, 12 Pac. 904; Dutch Flat W. Co. v. Mooney, 12 Cal. 534; Flaherty v. Gwinn, 1 Dak. 509; Wolfley v. Lebanon M. Co., 4 Colo. 112; In re Monk, 16 Utah, 100, 50 Pac. 810; Penn v. Oldhauber, 24 Mont. 287, 61 Pac. 649. |