Field, C. J. concurring.

The main question in this case arises upon the instructions given by the Court upon the trial. The case was brought to recover certain mining claims. The Court charged the jury, in effect, that possession taken, without reference to mining rules, of a mining claim was sufficient, as against one entering by no better title, to maintain the action ; and further, that this possession need not be evidenced by actual inclosures, but “ if the ground was included within distinct, visible and notorious. boundaries, and if the plaintiffs were working a portion of the ground within those boundaries,” this was enough as against one entering without title. We see no objection to this ruling. In the late case of Altwood & Walsh v. Fricot et al., we laid down some rules on this general subject. The taking up of mineral land in pursuance of the mining regulation of the vicinage gives possessory title to the claims, just as an entry in the land office, or the following of the prescribed rules given by statute, gives a possessory title to public or agricultural land. But it does not follow, because this is the regular and usual way of obtaining possession, that a possession not so obtained would necesrarily be without the protection of the law. Possession not taken in pursuance of these rules would still be good as against one not taking possession in accordance with the rules of the vicinage, but merely coming upon the premises in the same manner as the prior possessor. The actual prior possession of the first occupant would be better than the subsequent possession of the last.

The question arises as to the extent of the possession of the first taker, and the rules which determine this question. In mining claims we require no other acts, as evidence of possession, than those *116 usually exercised by the owners of such claims. A miner is not expected to reside upon his claim, nor to build upon it, nor to cultivate the ground, nor to inclose it. The claim is usually of a small strip of land compared with the extent of ground generally taken up for agricultural purposes. Its only value is in working it and extracting minerals. A party may be in possession by himself, or by his agents or servants. Going on the lead to work it, or even work done in proximity and in direct relation to the claim, for the purpose of extracting, or preparing to extract minerals from it—as, for example, starting a tunnel a considerable distance off to run into the claim—would be a possession of the claim within the meaning of the rule. If, as we held in the case of Attwood & Walsh v. Fricot et al., the party entered under written claim or color of title, his possession, except as against the true owner or a prior occupant, would be good to the extent of the whole limits described in the paper, though the possession be only of a part of the claim. In this case, it seems the plaintiffs took up, in connection with others, these claims sued for, marking.and defining, in the way usual among miners, the limits; and also bought out the interest of two of their associates, original appropriators. But we think where a claim is distinctly defined by physical marks, that possession taken for mining purposes embraces the whole claim thus characterized, though the actual occupancy or work done be only on, or of a part, and though the party does not enter in accordance with mining rules, or under a paper title. The rule which applies to agricultural land, and holds to a more strict interpretation of a possessio pedis, does not apply to such a case. Inclosure, if not impossible, besides being probably hurtful to other interests and rights, would be wholly useless. It would give no greater or better advertisement of the extent of the claim than these physical signs, nor give any better protection to the premises against intrusion, or show any higher power of dominion. Even actual possession, as applied to agricultural land, is from its nature somewhat constructive ; for there is no such thing as a literal corporal holding of land, even within the limits of an inclosure. A house is said to be in actual possession though not occupied, the claimant having the key and exercising acts of dominion; and in truth, the whole doctrine ot *117 possession, if not created, must necessarily be controlled and modified by the peculiar nature of the subject and by surrounding circumstances. If town lots are covered by deep water, would inclosure be necessary to give actual possession, or a possession of equal efficacy ? And if there were no timber, or other means of fencing, and no necessity or use for fences in a large district, could there be any sense in holding such acts necessary to protect a possession from intrusion ? So of mining claims. Fences are not necessary to exclude cattle, nor to give notice of a claim to given limits ; nor is the power or dominion over them at all increased or facilitated by this process. The custom of the country does not require so useless a formality. The physical marks upon and around the claim are sufficient to notify every one of the possession and claim of the possessor; and, by common understanding, the going upon a claim to work it is an appropriation of the entire claim, especially if that claim can be appropriated to that extent by location by one man. Possibly, if several distinct claims had been consolidated into one, and the rules of the locality allowed but one claim to be taken by one man, and after this consolidation a person went upon the consolidated claim to work, and did this without authority from the owner, then his possession might not be referred to the whole tract, but only to the particular claim upon which he entered. The question then might be one of intent, and it might be argued that it is not to be presumed that he meant to take and appropriate a greater quantity than that allowed to be appropriated by the rules of the vicinage. We see nothing in the law which would necessarily prevent a party from taking actual possession of mineral land, though in taking possession he did not observe the requirements as to registry and the like acts prescribed by the local laws. But if he took more land than these rules allowed, this would not give him title to the excess against any one who complied with the laws, and took up such excess in accordance with them. Much would depend upon the particular rules, and their right construction as to the effect of a registry, or the consequence of failing to make it. But in the absence of any rule declaring that a failure to record avoided the entry or claim, we cannot see that this failure, when actual possession was taken by the claimant *118 and kept—no forfeiture or abandonment being shown—would avoid the claim, as against a subsequent entry and location in due form; much less would it have that effect in favor of a mere intruder, claiming by no better title than the first claimant.

We do not hold that a party can, in defiance of mining rules, take up any quantity he chooses of mineral land, and hold it by merely putting up stakes or marking lines, or even inclosing it. All we hold is, that he can hold the quantity allowed to be taken up by him by the rules, without strictly complying with those regulations which prescribe the mode of taking, as registry, etc., so as to protect him in that quantity, as against one not claiming through the rules; unless, indeed, there be something to the contrary in the rules. And if a party takes up and marks out a larger claim than the rules allow, he is still entitled to keep and retain possession of it as against one merely entering without complying with the rules ; but the possessor is not entitled to hold the excess against one entering in pursuance of the rules, for the entry of the last according to the rules gives him the title to such excess. But this whole matter can be, and should be regulated by the miners, who have full authority to prescribe the rules governing the acquisition and divestiture of titles to this class of claims, and their extent, subject only to the general laws of the State.

In this case, no law or regulation of the vicinage was shown limiting the plaintiff’s right to hold to the extent of which he was in possession. Prima facie being in possession, he was rightfully possessed ; and no presumption can be indulged that such possession was in violation of any law, local or general. The plaintiff claims under purchase and location a small tract of land, with demarked limits, of which he was in possession; and in the absence of any proof that such claim is opposed to the local rules, we are unable to discover any principle upon which to hold that the possession is wrongful. The plaintiff need not show, in such a case as this, in the first instance, that he was in possession in accordance with the local laws ; but may (as a vendee under a deed may as to other land) make a prima facie case upon possession ; and this is enough until the defendant shows that the possession is wrongful, because in violation of rules which justify him in going upon the premises and working them.

*119 2. The Court properly ruled that the defendants must produce all the rules in the book of the district, and could not offer an extract or a single clause of the book. No harm was done by this requirement. The defendants had the book in Court. The whole of the rules,' making up the body of the local law, constituted one entire instrument—as a deed or other document containing various stipulations—and it was necessary, to a fair understanding of any one part, that the whole should .be inspected. At least, there was no error in requiring the whole of these rules to be put in.

3. It is next objected that the Court erred in refusing to permit the defendants to show by a witness that one of the plaintiffs admitted, in 1858, that he had more than five claims. We see no relevancy in this proof to anything in the issue, and its materiality ought to be made very apparent before we would reverse for such a cause. No offer was made to connect this testimony with other proof showing its relevancy. It would seem, at the first blush, that it was not important how many claims one or all of the plaintiffs had, if those claims were acquired by purchase, even if it were material to ascertain this fact in any aspect of the case. We are not disposed, unless compelled to do so, to give effect to mere technical exceptions taken in the course of a trial, when we can sustain a judgment which seems to be right on the merits.

On the whole case, we think the judgment should be affirmed.

See Coryell v. Cain ( 16 Cal. 567 ).