Page:Federal Reporter, 1st Series, Volume 1.djvu/538

 630 ÏEDBBAIi BEFOBTEB. �prevail as against a written mining law which bas f alleu into disuse. It is a question of fact for the jury whether the mining law is in force at any given time." It is for you, then, gentle- men of the jury, to determine whether this limitation to 50 feet was actually in force at the time the two locations 300 feet wide on eaoh side were made. ïhe fact that the rule in question was adopted and kept on foot in the laws for a con- siderable period of time would be prima fade evidence, nothing to the contrary appearing, that it was in force at one time, and, being once in force, a presumption would arise that it continued in force till something appears tending to show that it had been repealed, or had fallen into disuse and an- other practice been generally adopted and acquiesced in. The mere violation of a rule by a few persons only would not abro- gate it, if still generally observed. The disregard and disuse must become so extensive as to show that in practice it has become generally disused. Now, gentlemen, whether, in view of there being few locations in this district during several years, and none in some, and of the passage of the act of oongress referred to, and the location, at first, after the revival of the mining interest in 1875, of most ail claims, in pursuanee of the provisions of the act, 300 feet wide on each side, if such be the fact, and in view of ail the circumstances appearing in the evidence, it is for you to determine whether the 50 feet limitation had fallen into disuse, or was really in force at the date of the two locations in question.' If it was not in force,- then, in that particular, if otherwise valid, the location was good and valid to the fuU extent of 300 feet on each side of the vein. If the limitation was in force, then it was void as to the excess over 50 feet on each side of the vein, but valid to the extent of 50 feet, and no more. �Thestatute also provides, gentlemen of the jury, that "no location of a mining slaim shall be made until the discovery of the vein or lôde within the limits of the claim located." So that no rights can be aoquired under the statute by a location made before the discovery of a vein or Iode within the limits of the claim located. A vein or Iode authorized to be located is a seam or fissure in the earth's crust filled with quartz, or ��� �