By Court,
French, J.:
This action was heard before the district judge, without a jury, and full findings of fact filed.
Ho exceptions were taken, nor any objections made to said findings by either party. The judgment was for the plaintiffs.
A motion for a new trial was made by the defendants, on the grounds of insufficiency of the evidence to justify the decision and judgment, and that the same were against law, which motion was denied, and this appeal is from both the judgment and order denying a new trial. On its first hearing in this court the judgment and order denying a new trial were reversed, and the cause ordered remanded for a new trial. On the announcement of which decision both parties expressed a wish for judgment upon the findings, without a new trial. Upon petition a rehearing was granted, and upon such rehearing questions of law on the findings only were discussed.
The defendants located the claim in controversy on the twenty-first day of June, and recorded the same on the fifth day of July, in the recorder’s office of the proper county.
The plaintiffs located the same ground on the fifth day of August, and recorded the same with the district recorder on the sixth of August, and with the county recorder on the fourteenth of August, all of said acts being in the months of June, July, and August, 1879.
[499]*499The defendants’ location and record being thus clearly first in priority, the only question in the case is, Did the defendants lose their right by failure to comply with the local requirement to record with the local district recorder, and to procure the district recorder to go upon the ground to' examine the same ?
The sixth finding is as follows: “That at the times of the respective locations of said premises, all the parties to this action were, and ever since have been, qualified to enter upon and explore the mineral lands of the United States, and locate, occupy, and purchase the same under the provisions of the laws of the United States; and the said defendants, and the said Daniel Johnson, in their respective locations of the premises, complied with the requirements of the laws of the United States and of this territory, and the rules and regulations of the said mining district, except the failure on the part of the defendants to file and record their location in the office of the recorder of said mining district, and their failure to procure the recorder of said district to go upon and examine the location as required by the local rules and regulations of said district.
The court finds (sixth finding) that said defendants, in their location of the premises, complied with the requirements of the laws of the United States, and of this territory, and the rules and regulations of the mining district, except in this respect.
The right to a mining claim rests: 1. On the laws of the United States; 2. On the laws of the state or territory; and 8. On the regulations of the mining district wherein the same is located.
By the express provisions of the United States statutes these regulations must not conflict with either the laws of the United States or the laws of the state or territory in which the district is situated.
The laws of the United States are of course paramount. The laws of either state or territory must not conflict with those of the United States, and so far as they do they are entirely nugatory to the extent of said conflict.
The more distinctly these classes of provisions are preserved, the more certain and easy are the rules of decision upon the aggregate provisions of all of them. It is not [500]*500proposed here to discuss generally, or even to enter upon the inquiry how, or how far legislative acts of state or territory may go upon the same subject-matter contained ifl the acts of congress, or how far local regulations may trench upon both United States and state or territorial provisions without legally conflicting with the paramount provisions. It is apparent that while the United States laws remain intact, a uniform basis is presented to the courts of ail the mineral portion of the country for decision.
The legislature of a neighboring territory recently passed an act providing that the one hundred dollars’ worth of labor or improvements on a mining claim which, by United States statutes, and entirely uniform decisions of all the courts, including the United States supreme court, may be made at any time during the year—must be made during the first month of the year.
This is indirectly in the nature of an amendment to the United States statute. The same reasoning applies to attempted changes in the provisions of state or territorial acts by local rules and regulations.
In view of the great magnitude of mining interests; the rules of decision as to title should be as certain as possible.
The respondents in this case earnestly urge that appellants never attained a full title to the ground in controversy.
The district regulation as to recording is in writing, and reads as follows: “Section 2. All claims shall be recorded within thirty days after the location.” Trans., folio 94.
The right of appellant, whatever it was up to the expiration of these thirty days, can not be questioned.
Under the sixth finding, hereinbefore cited in full, the right of appellants was perfect up to this time; and this brings us back to the only question in the case, did the appellants lose their right by failing to bring the district recorder upon the ground, etc., and recording their claim with the district recorder? By the local regulations this district recorder is required to go upon the ground to inspect it, and “is inhibited from recording the claim if he finds a prior valid claim thereto.” (Bindings of fact, transcript, folio 19.) What is a valid claim is a question of law. On the sixth day of August the district recorder, with one of the respondents [501]*501herein, visited the ground and apparently decided this legal question in favor of the respondents.
The appellants had already, on the twelfth day of July preceding, filed and recorded their claim with the county recorder. The territorial laws give sixty days in which to record these claims.
The laws of the territory require all the claims of this kind (lode claims) to be filed and recorded in the office of the county recorder of the county in which such claims are situate, and give, as before stated, sixty days to make such filing and record after their location.
But aside from all these questions, should the right of a party who has complied, in all respects, with the laws of the United States and the territory, and the rules and regulations of the mining districts, except in the particular before mentioned, be taken away for failure to comply with a district regulation which- provides no penalty or forfeiture for its non-observance ?
At a time when the right to mining claims rested mainly on local rules, and before the existence of many of the present federal laws upon the subject, the supreme court of California, in McGarrity v. Byington, 12 Cal. 431, said: “The failure to comply with any one of the mining rules and regulations of the camp is not a forfeiture of title. It would be enough to hold the forfeiture as a result of the non-compliance with such of them as make a non-compliance a cause of forfeiture.”
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By Court,
French, J.:
This action was heard before the district judge, without a jury, and full findings of fact filed.
Ho exceptions were taken, nor any objections made to said findings by either party. The judgment was for the plaintiffs.
A motion for a new trial was made by the defendants, on the grounds of insufficiency of the evidence to justify the decision and judgment, and that the same were against law, which motion was denied, and this appeal is from both the judgment and order denying a new trial. On its first hearing in this court the judgment and order denying a new trial were reversed, and the cause ordered remanded for a new trial. On the announcement of which decision both parties expressed a wish for judgment upon the findings, without a new trial. Upon petition a rehearing was granted, and upon such rehearing questions of law on the findings only were discussed.
The defendants located the claim in controversy on the twenty-first day of June, and recorded the same on the fifth day of July, in the recorder’s office of the proper county.
The plaintiffs located the same ground on the fifth day of August, and recorded the same with the district recorder on the sixth of August, and with the county recorder on the fourteenth of August, all of said acts being in the months of June, July, and August, 1879.
[499]*499The defendants’ location and record being thus clearly first in priority, the only question in the case is, Did the defendants lose their right by failure to comply with the local requirement to record with the local district recorder, and to procure the district recorder to go upon the ground to' examine the same ?
The sixth finding is as follows: “That at the times of the respective locations of said premises, all the parties to this action were, and ever since have been, qualified to enter upon and explore the mineral lands of the United States, and locate, occupy, and purchase the same under the provisions of the laws of the United States; and the said defendants, and the said Daniel Johnson, in their respective locations of the premises, complied with the requirements of the laws of the United States and of this territory, and the rules and regulations of the said mining district, except the failure on the part of the defendants to file and record their location in the office of the recorder of said mining district, and their failure to procure the recorder of said district to go upon and examine the location as required by the local rules and regulations of said district.
The court finds (sixth finding) that said defendants, in their location of the premises, complied with the requirements of the laws of the United States, and of this territory, and the rules and regulations of the mining district, except in this respect.
The right to a mining claim rests: 1. On the laws of the United States; 2. On the laws of the state or territory; and 8. On the regulations of the mining district wherein the same is located.
By the express provisions of the United States statutes these regulations must not conflict with either the laws of the United States or the laws of the state or territory in which the district is situated.
The laws of the United States are of course paramount. The laws of either state or territory must not conflict with those of the United States, and so far as they do they are entirely nugatory to the extent of said conflict.
The more distinctly these classes of provisions are preserved, the more certain and easy are the rules of decision upon the aggregate provisions of all of them. It is not [500]*500proposed here to discuss generally, or even to enter upon the inquiry how, or how far legislative acts of state or territory may go upon the same subject-matter contained ifl the acts of congress, or how far local regulations may trench upon both United States and state or territorial provisions without legally conflicting with the paramount provisions. It is apparent that while the United States laws remain intact, a uniform basis is presented to the courts of ail the mineral portion of the country for decision.
The legislature of a neighboring territory recently passed an act providing that the one hundred dollars’ worth of labor or improvements on a mining claim which, by United States statutes, and entirely uniform decisions of all the courts, including the United States supreme court, may be made at any time during the year—must be made during the first month of the year.
This is indirectly in the nature of an amendment to the United States statute. The same reasoning applies to attempted changes in the provisions of state or territorial acts by local rules and regulations.
In view of the great magnitude of mining interests; the rules of decision as to title should be as certain as possible.
The respondents in this case earnestly urge that appellants never attained a full title to the ground in controversy.
The district regulation as to recording is in writing, and reads as follows: “Section 2. All claims shall be recorded within thirty days after the location.” Trans., folio 94.
The right of appellant, whatever it was up to the expiration of these thirty days, can not be questioned.
Under the sixth finding, hereinbefore cited in full, the right of appellants was perfect up to this time; and this brings us back to the only question in the case, did the appellants lose their right by failing to bring the district recorder upon the ground, etc., and recording their claim with the district recorder? By the local regulations this district recorder is required to go upon the ground to inspect it, and “is inhibited from recording the claim if he finds a prior valid claim thereto.” (Bindings of fact, transcript, folio 19.) What is a valid claim is a question of law. On the sixth day of August the district recorder, with one of the respondents [501]*501herein, visited the ground and apparently decided this legal question in favor of the respondents.
The appellants had already, on the twelfth day of July preceding, filed and recorded their claim with the county recorder. The territorial laws give sixty days in which to record these claims.
The laws of the territory require all the claims of this kind (lode claims) to be filed and recorded in the office of the county recorder of the county in which such claims are situate, and give, as before stated, sixty days to make such filing and record after their location.
But aside from all these questions, should the right of a party who has complied, in all respects, with the laws of the United States and the territory, and the rules and regulations of the mining districts, except in the particular before mentioned, be taken away for failure to comply with a district regulation which- provides no penalty or forfeiture for its non-observance ?
At a time when the right to mining claims rested mainly on local rules, and before the existence of many of the present federal laws upon the subject, the supreme court of California, in McGarrity v. Byington, 12 Cal. 431, said: “The failure to comply with any one of the mining rules and regulations of the camp is not a forfeiture of title. It would be enough to hold the forfeiture as a result of the non-compliance with such of them as make a non-compliance a cause of forfeiture.”
In Bell v. Bed Rock T. & M. Co., 36 Cal. 219, Mr. Justice Sanderson, speaking for the court, says: “The objection taken to this instruction is that it directs the jury to find for the defendant, if they find from the evidence that the plaintiffs had failed to comply with certain mining rules and regulations without accompanying the same with a further charge, as to whether those rules and regulations declared a forfeiture as the result of such non-compliance. The failure of a party to comply with a mining rule or regulation can not work a forfeiture unless the rule itself so provides. ■ There may be rules and regulations which do not provide that a failure to comply with their provisions shall work a forfeiture. If so, á failure will not work a forfeiture.”
The same doctrine is announced in English v. Johnson, 17 [502]*502Cal. 118; Mr. Justice Baldwin delivering the opinion, and Mr. Chief Justice Field concurring. It has also been uniformly held by the supreme court of California, that abandonment of a mining claim may be proved under the general issue, but that forfeiture must be pleaded. Dutch Flat Water Co. v. Mooney, 12 Cal. 534; Wiseman v. McNulty, 25 Id. 230; Morenhaut v. Wilson, 52 Id. 263.
The .forfeiture mentioned in these decisions is not the common-law forfeiture, but a mining-claim forfeiture, that is, the loss of the right, previously acquired, to hold and work a mining claim.
It is worthy of remark that this line of decision occurred in California during the existence of the following statute: “In actions respecting mining claims, proof shall be admitted of the customs, usages, or regulations established and enforced at the bar or digging embracing such claims, and such customs, usages, or regulations, when not in conflict with the constitution and laws of this state, shall govern the decision of the action.” Act, sec. 621, p. 2. The above enactment makes no mention of federal constitution or laws, and some have inferred that no federal laws concerning these public mineral lands then existed. This is not the case-—the United States government simply forbore to enforce the laws and rights of the United States then existing as to these lands. It is also probable that the doctrine of state ownership of the mines, then extensively entertained, but long since entirely abandoned, had more or less to do with the terms of this enactment.
It was made applicable to trials in justices’ courts.
It may be reasonably questioned whether the concluding words “shall govern the decision of the action” is a proper provision.
The decision of all cases, it would seem, should be governed by all the law applicable thereto and all the legal evidence in the case. Gradually the courts of California adopted the principles of this enactment, and the courts and many of the legislatures of other mining states and territories recognized them to a greater or less extent, and finally the congress of the United States recognized and adopted them.
The decisive character of the California enactment makes [503]*503the decisions of her courts the more cogent, so far as denying forfeiture under said local regulations is concerned.
The rule as to forfeiture above recited, to wit: that the prior locator shall not lose his right by failure to comply with a local regulation unless such regulation prescribes a forfeiture as a penalty of its non-observance, has been criticised in some instances, and in King v. Edwards, 1 Mont. 235, disapproved; but it has been recognized as a safe and conservative rule of decision in the nisi prius courts of this territory, tending to the permanence and security of mining titles, and we are not prepared to reject it in the present case.
Judgment and order reversed, and court below directed to enter judgment on the finding for appellants.
PlNNEY, J., concurred.