Sturtevant

(after stating the facts as above). The plaintiff in error contends that, both by the laws of Alaska and the custom of the miners, the recording of the location notice within 90 days after location is essential to the life of the location, and that a failure to so record the same results in the forfeiture thereof. But one witness was called to prove the alleged custom of the miners, and his testimony falls short of showing the existence of any custom or regulation adopted by the miners, in the district where the claim is located, making the recording of the notice of location essential to the right to hold the same. The court in charging the jury said that such a custom can only be binding when established by clear and satisfactory evidence, and that no custom which may require the recording of a location certificate is good and valid in law unless it carries with it a provision that for noncompliance therewith the location shall be forfeited and void. The court further instructed the jury that the mining laws of the United States in force in Alaska, while they allow a location notice to be recorded, do not require such record as an essential to a valid location.

Section 2324,…

(dissenting). By section 2324 of the Revised Statutes ( 30 U.S.C.A. § 28 and note) it is declared that in making a location of a mining claim “the location must be distinctly marked on the ground so that its boundaries can be readily traced.” The same section of the statute expressly confers upon the miners of each mining district the power to make regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, covering the location, manner of recording, and amount of work necessary to hold possession of a mining claim, subject to the requirement in respect to so marking the location as that its boundaries may be readily traced. And it has been uniformly held by the courts that the respective states and territories may make like rules and regulations not in conflict with any law of the United States upon the subject. Neither the act of Congress of 1866 nor of 1872 required such notices to be recorded. As a result, in some states and territories and in some mining districts the notice of location is required to be recorded, and in some it is not. But, whenever required, the express declaration of section…