The plaintiff is a mining corporation, and the suit is brought to eject the defendants from nine hundred and twenty-six feet of a mining claim, the ownership of which is alleged to be in the plaintiff. The claim was located in 1852, by an association of individuals calling themselves the Experimental Tunnel Company, who posted a notice and proceeded with the construction of a tunnel. In 1853 the boundaries of the claim were run off and marked by the blazing of trees at the corners and along the lines ; and the work upon the tunnel was continued by certain of the members of the company until the plaintiff took possession in 1854. The plaintiff became a corporation on the second of May, 1854, the articles of incorporation being signed by the only members of the Experimental Company who seem to have participated in the affairs of that company, and specifying as the object of the corporation, “ the prosecution and completion of the tunnel heretofore known as the Experimental Tunnel.” These members of the Experimental Company were made officers of the corporation, and entered upon the discharge of then duties as such—one of them as president, another as secretary, and a third as one of the trustees. On the day the articles were filed, the notice of the company was taken down, and the following, signed by the president and secretary of the corporation, put up in its place: u Claim of Table Mountain Tunnel Company. This claim comprises the claim held and occupied by the Experimental Tunnel Company since its location, June 12th, 1852, up to this date, situated near Jamestown, Tuolumne county, California. Said claim commences about one hundred and ten feet west from the entrance of the upper tunnel of said company, and comprises the channel there existing from this point, with its dips and angles, *208through Table Mountain; said channel having been heretofore unworkable on account of water, as proven by many fruitless efforts made previous to the location of said claim.” The operations of the plaintiff were commenced immediately thereafter, and the work upon the claim has progressed continuously until the present time; the portion in controversy, however, not yet being reached. In 1857 the boundaries of the claim were again run off and marked, and in 1861 a survey was made, and the original marks were still visible.
The defendants claim under a location made in 1855, overlapping that of the plaintiff to the extent mentioned—of nine hundred and twenty-six feet. On the day preceding the location, the miners of the district adopted a code of rules for their government, and the location was made in the manner designated in these rules. The defendants afterwards proceeded to mine within the boundaries of the plaintiff’s claim, and they contend that under their location they were entitled to do so. The rules adopted were limited in their provisions to claims subsequently acquired, and claims previously located were excluded from them operation.
The case was tried by a jury, and various exceptions taken during the progress of the trial are relied upon for a reversal. The plaintiff gave in evidence the facts stated in relation to the Experimental Company, and one of the errors assigned is that this evidence was afterwards stricken out. The Court considered a conveyance from the company necessary to invest the plaintiff with their rights, and the evidence was stricken out on the ground that no conveyance had been shown. We are of opinion that the Court erred in this respect, and that a conveyance by deed would have passed no greater interest than the plaintiff acquired by a transfer of the possession. Rights resting upon possession only, and not amounting to an interest in the land, are not within the statute of frauds, and no conveyance, other than a transfer of possession, is necessary to pass them. The rights of the company were of this character, and the transfer of possession was as effectual for the purpose intended as if it had been accompanied by a conveyance in writing. The plaintiff was put in possession as the successor in interest of the company, and the intention undoubtedly was that *209whatever rights the company had should pass with the possession. There was no reservation in that respect; and the only rational theory upon the subject is, that the plaintiff was to take the place of the company, and stand in the same position with regard to the claim. The possession of the plaintiff being assailed, the acts of the company showing the character and extent of that possession were at least pertinent, and the ground assumed did not justify their exclusion. If these acts were sufficient in point of law, the plaintiff was entitled to the benefit of them ; and the case of English v. Johnson (17 Cal. 107) is decisive of the matter. There also the subject of dispute was a mining claim, the plaintiff relying upon prior possession, evidenced by work done, and by posting notices and marking the boundaries. There were mining regulations in force in the district, but neither of the parties claimed under them; and the question was as to the sufficiency of the evidence of possession. “ In mining claims,” said the Court, “ we require no other acts, as evidence of possession, than those usually exercised by the owners of such claims. A miner is not expected to reside upon his claim, 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. * * Where a claim is distinctly defined by physical marks, possession taken for mining purposes embraces the whole claim thus characterized, though the actual occupancy or work done be only on a part, and though the party does not enter in accordance with mining rules.” The jury had been instructed that a possession of this character was sufficient to maintain the action, and the instruction was held to be a correct exposition of the law upon the subject. In the case at bar, the evidence' stricken out tended to prove a similar possession, and as the plaintiff might have recovered upon it, the evidence was improperly excluded. The effect of the evidence was a matter for the jury, and whether or not such a possession was proved, is an inference from the facts which they alone were competent to draw. The Court had nothing to do with it, and the exclusion of evidence tending to influence the result, deprived the jury of the means of arriving at a just conclusion.
*210It is suggested that, under this rule, there is no limit to the quantity of ground that may be located as a mining claim. This objection applies, however, to every location not made in pursuance of some regulation limiting the quantity, and the result flowing from it is that no such location would be valid. Of course, it was not intended to push the objection to that extent, but we cannot admit the premise and avoid the conclusion to which it necessarily leads. If the want of a limit shows the rule to be wrong, no rule subject to the same objection can be right, and a location made under a rule of this description must of necessity be invalid. There is another answer, however, which is more satisfactory, as it goes to the foundation of the objection, and furnishes a practical solution of the difficulty. No location can be so extended as to amount to a monopoly; and in the absence of local regulations prescribing a limit, recourse must be had to general usage. If the quantity of ground included be unreasonable, the location will not be effectual for any purpose, and possession under it will only extend to the ground actually occupied. In other words, the extent of the occupancy will determine the extent of the claim, and whether the quantity is' unreasonable or not must depend upon the customs prevailing generally upon the subject.
The mining laws of the “ Waflaville District ” were improperly given in evidence, for the reason that they were inapplicable to a claim of this character.
The judgment is reversed, and the cause remanded for a new trial.
On petition for rehearing, Cope, J. delivered the opinion of the Court—Field, C. J. and Norton, J. concurring.
We are asked by the counsel for the respondent to modify certain portions of the opinion delivered by us in this case. On looking at the mining rules of the Table Mountain District, we find that an error was committed in saying that claims previously located were excluded from their operation. The rules contain a provision to that effect, but they also provide that persons holding such claims shall have one week to establish their boundaries in the manner therein required. A construction of these provisions is unnecessary *211for the purposes of this appeal, and we refer to the matter to guard against misapprehension, to which the language of the opinion would probably lead.
The counsel objects to that portion of the opinion relating to the mode of determining the reasonableness of a claim in the absence of local regulations limiting the extent. He understands us to have said that in such case recourse must be had to general usage previously established, and argues that under this rule there would be no means of imposing a limitation upon persons whose claims were located anterior to the existence of customs of a general nature fixing the quantity. We think the opinion does not warrant the view taken of it, but it is proper to say that while a general custom, whether existing anterior to the location of the claim or not, may be given in evidence upon the question of extent, a mere local regulation stands upon a different footing. The former results from the general sense of the mining community as to what is just and reasonable in that respect, and in connection with the particular circumstances of the case may be safely relied on in arriving at a conclusion. The latter owes its origin to the will and discretion of a few individuals, and operating directly upon the location sought to be limited, would be an improper and unjust criterion of action; as in many cases its effect would be to deprive persons of property to which, prior to its adoption, they had a valid legal right.
Rehearing denied.