The appeal is taken from the order granting the plaintiff a new trial. Both parties have discussed most of the grounds of the motion for a new trial, but as the record does not show upon which of the grounds the Court relied in making the order, we shall consider only those which in our opinion clearly dispose of this appeal.
When this cause was formerly before the Court (20 Cal. 198) it was held on the authority of English v. Johnson, 17 Cal. 107, that “ 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.” After laying down this rule which disposed of the point before the Court— it relating to the admissibility of certain testimony tending to *391prove that those under whom the plaintiff claimed had taken up and defined in that manner a mining claim, including the premises in controversy—the Court proceeded to dispose of an objection to the rule, urged by counsel, that under the rule there would be no limit to the quantity of land that might be located as a mining claim. Two answers were given to this objection ; the second, which was regarded as the most satisfactory, being that “ 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.” In the opinion on the petition for rehearing, Mr. Justice Cope again alludes to the objection to the rule, and says: “ 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 on a different footing,” and would be inadmissible to limit the extent of a claim previously located. The defendants’ counsel regards this answer to the objection as a limitation or modification of the general terms of the rule, and treats it as constituting a part of the law of the case; but although it amounts to no more than a dictum, we are satisfied with the doctrine announced, except in respect to general usage, which has its beginning after the location of the claim has been made, and the case at bar does not demand the solution of that branch of the doctrine.
The defendants asked of their witnesses this question : “ Do you know the customs in any district of this State, in regard to locating tunnelling claims, as to their extent?” In answer, they stated the customs prevailing in mining camps with which they were acquainted, in several counties other than the one in which is situated the claim in controversy, all of which differed from each other as to the extent of the claims; but they did not testify to any general custom or usage regulating the extent of claims. The. plaintiff objected to the question, and the objection being overruled, moved to strike out the evidence, and the motion was denied. This was not competent evidence of a general custom, but as far as it *392amounted to anything on that point, it tended strongly to negative its existence. We do not undertake to say that in this respect any general custom, usage or regulation does of ever did prevail among the miners, or in the mineral regions of this State, or any considerable portion of them—as there probably does in regard to the mode of locating claims—but if such custom exists it must be susceptible of proof; but evidence of local usages and regulations varying from each other, are not admissible for this purpose, for they tend to show that the usage is not general.
The counsel for the defendants contends that, giving the opinion a reasonable and proper construction, it means that evidence showing the extent of a single claim, or of the claims in a single locality, is not admissible to show that the plaintiff’s claim is unreasonable; but that the custom of several localities may be given in evidence “in order to get the general sense of the mining community on this point.” Evidently, neither the largest nor the smallest claim would be selected, but the average would have to be struck to serve as a criterion. The proposition may be stated in another form— the general custom may be ascertained by finding the mean of the several local customs. This involves a palpable contradiction, for different local customs being shown, a" general custom regulating the same matter and prevailing at the same places is impossible.
If the proof is as we understand it, that the defendants entered, claiming by virtue of a location under the local mining laws, which allowed a claim of three hundred feet front for each man, and that the plaintiff’s claim did not exceed that ratio, the defendants are not in a position to allege that the plaintiff’s claim is unreasonable in extent, for, by locating their claims under and in accordance with those laws, they affirm that the limit therein provided is not unreasonable. If that amount was not unreasonable for the defendants to locate under the local laws, the same amount was not unreasonable for the plaintiff to continue to hold after the adoption of the laws.
*393In view of what we have already said, it is unnecessary to consider at length the first four and the sixth and seventh instructions of the Court. They were irrelevant, because there was no evidence of a general custom.
The fifth instruction is irrelevant because it substitutes general customs for local customs, which, it is provided by section six hundred and twenty-one of the Practice Act, “.when not in conflict with the Constitution and laws of this State, shall govern the decision of the action.”
The next point we shall notice relates to the charge in respect to the alleged adverse possession of the defendants. They answered that “if plaintiffs ever had any right or title to their claims, or to any portion thereof, they are barred by the Statute of Limitations, as they, the defendants, have been in the quiet and peaceable possession of the same adversely to these plaintiffs for a period of over five years.” The Court instructed the jury upon that point, without questioning the sufficiency of the answer, and it does not appear that the plaintiff raised any objection to it; but as the cause must be remanded for a new trial it is proper to say that the Statute of Limitations is not well pleaded. The averment that the plaintiff is “ barred by the Statute of Limitations ” is merely a conclusion of law. It does not present any issuable fact. (Schroder v. Johns, 27 Cal. 274; Caulfield v. Sanders, 17 Cal. 569.) The “ period of over five years,” during which, it is alleged, the defendants were in the adverse possession, is not charged as having preceded the commencement of the action ; but from the manner in which the averment is made, it must be held to mean the period next preceding the filing of the answer.
The plaintiff complains of the charge of the Court in respect, to the alleged alteration of Article XVI of the Table Mountain' laws—that such alteration if made, did not alter the legal effect of the other articles. The charge was clearly right. That Article itself, after its passage, would not be changed or in any manner impaired by any attempted surreptitious altera*394tiou. Such alteration in the original draft or a copy of the law might make it more difficult to prove the law, but it would not nullify or change any Article of the law. The rule precluding a party to a contract who has altered it in some material particular from offering it in evidence has no a¡3plícation to a system of mining laws and regulations. If. the alteration of which the Court speaks, is to be understood as counsel seem to regard it, as made at such a time and in such a manner that it in fact worked a change in Article XVI— that is to say, that the Article, when it took on an authentic shape by being engrossed and signed by the officers of the miners’ meeting, differed from the same subject matter when it was passed on by the meeting—then it becomes important to ascertain the true construction, as well as the effect of the Article. Much more proof might be required of the plaintiff as against a party claiming under those rules, in case Article XVI excepts “ any claim,” than there would be if the exception is of “ Oliver Company’s claim.” But it is useless to attempt to give construction to the Article before it is found what is its true reading.
We fail to see in the record any proper ground for the instruction, restricting the plaintiff to the one channel worked by it on the eastern side of the mountain. The only matter pointing in that direction is the notice posted by the plaintiff on the 2d of May, 1854. In that the company state that its claim “ comprises the claim held and occupied by the. Experimental Tunnel Company, etc., and comprises the channel there existing from this point, with its dips and angles, through Table Mountain.”
Whether the company can follow the channel beyond the limits of the Experimental Tunnel Company’s claim is not a question here; but the plaintiff does not limit its claim to the .channel. The notice as clearly indicates their intention to .hold the whole of the Experimental Tunnel Company’s claim, .as it .does to hold the channel through the mountain; and guided by the notice, no reason appears why the channel, *395rather than the claim mentioned, should be taken as indicating the limits of the plaintiff’s claim.
The order granting a new trial is affirmed.