legislature has used these terms interchangeably, however, and the scientific definition of the terms is so similar, it would apparently seem that in drawing legal distinctions between the words the intention of the legislature has been disregarded and these distinctions used, in the absence of more accurate terms, to gauge the rights of litigants.

§ 6. "Placer" and "lode" mines distinguished. "Veins," "lodes" and "seams," all refer to mineral deposits contained in the native rock, as distinguished from those other deposits not so located.1 "Placers "indicate just the opposite from "lode" mines—and the ordinary meaning that would attach to the term itself— and refer to other forms of deposit than veins of quartz or other rock in place.2 Placer mines, as such, are not mentioned by MacSwinney but are well known to the mining of the Western States and sections where free ore is found. The rights

1 Ante, Reynolds v. Iron, Sil. Mining Co., 116 U. S. 687; Montana Copper Co. v. Dohl, 6 Mont. 131; Clory v. Hazlitt, 67 Cal. 286; Iron, Sil. Mining Co. v. Sullivan, 16 Fed. Rep. 829.

2 U. S. Rev. St., Sec. 2329; Copp's Mine Lodes, p. 52; U. S. v. Iron, Sil. Min. Co., 128 U. S. 673. "Placers" are superficial deposits, which occupy the beds of ancient rivers or valleys. Maxey v. Wilkerson, 2 Mont.

99 66

421; Brown v. 49 and 56 Min. Co., 15 Cal. 153; Tabor v. Dexter, 9 Mor. Min. Rep. 614; Copp's Min. Lands, p. 453; Carpenter's Mine Code, 71. A "placer" mine is mineral "in the earth, sand, or gravel; ground that includes valuable deposits not in place, i. e., not fixed in the rock, but which are in a loose state, and may, in most cases, be collected by washing or amalgamation, without milling." United States v. Iron, Sil. Min. Co., 128 U. S. 673. "Auriferous cement in the ground is a placer mine." Copp's Min. Land, p. 83. But copper and cinnabar in the rock are lodes not placers. Idem. But gold, bearing gravel, although located between crevices in the rock, is not a "lode" but a "placer" mine. Gregory v. Pershbaker, 73 Cal. 109; s. c. 15 Mor. Min. Rep. 602. The distribution of alluvial gold deposits is very extensive, the most important occurring in America and Australia. Free gold is also found in Mexico, Central America, Europe, Africa, South America and India.— Enc. Brit.

3 MacSwinney fails to mention them.

of property in placer mines and corresponding relations arising therefrom—were a portion of the American common law, i. e., the customs and uses of the mining sections,1 prior to the government's recognition of these rights,' but the term has long since been generally recognized as well by the general government as the courts of the United States. The rights of the owners of placer mines are the same as the property rights attaching to other kinds of mines, and in the application of the law of property, in this sense, there is no distinction. Under the Government Statutes and Land Office Decisions, however, pertaining to mining on the public lands, there are marked distinctions between "placer" and "lode" claims, as will be noted hereinafter.5

1 See Wade's American Mining Laws.

2 Webster gives the definition approved by usage in Mexico and California. Bar. & Adams on Mines & Mining in the U. S., p. 479. See definition in Soone's, Newman & Barretti (by Valaquez): "A place near a river bank, where gold is found." Ante. Blanchard & Weeks Ld. Cas. on Mines & Mining, 52–94.

3 R. S. U. S., Sec. 2329 (July 9, 1890); Gregory v. Pershbaker, 73 Cal. 109 (1887). The late Justice Field, than whom there is no better authority on the subject at hand-referring to the origin of placer mines, observed; "Whatever the origin of the subterranean channels, containing gravel beds, they have long been known to exist in California, and they have been generally supposed to be and generally spoken of as the beds of ancient rivers in which the gravel was deposited by fluvial action and which were either from their beginning, subterranean, or upon which the superincumbent earth or rock, has been hurled by means of convulsions caused by volcanic or other natural force." Eureka case, 4 Saw. 302; Eureka Co. v. Richmond Co., 8 Mor. Min. Rep. 144; Id. 9 M. M. R., 578.

4 "The rights of the owner to the minerals under a placer claim are the same as those of any other owner of the soil." Barringer and Adams, Mines and Mining in the United States, p. 478.

5 R. S. U. S: 2329. A placer claim contains 160 acres. Smelting Co. v. Kemp, 104 U. S. 636; Tucker v. Mosser, 113 Id. 203. A lode claim is 1500 ft. by 300 ft. on either side of the center of the vein at the surface. R. S. U. S., Sec. 2320; Silver Min. Co. v. Elgin Co., 118 U. S. 196.

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§ 7. Soil and subsoil not mineral. The terms soil 1 and subsoil,2 when used in their broadest sense, of lands, tenements and hereditaments,3 would of course include all mines located on the surface as well as all mineral deposits beneath,4 for these are a part of and included, prima facie, in the term "soil" or "land; " but the term "mineral" is not so broad as to include the land or soil, for, as suggested in an early case, if such an extensive meaning is to be applied, then in cases of exception in grants of land, of the mineral deposits contained, the exception would be broad enough to include the grant.5 Soil and subsoil are most frequently used as synonyms for land, surface and underlying stratii, which in a legal sense is broad enough to include all erections on the surface, the surface of the soil and all minerals beneath; 6 but

1 "Soil, prima facie, includes the surface and all that is beneath it to the center of the earth." MacSwinney, p. 21; Pretty v. Sally, 26 Beav. 606; Wakefield v. Buccleuch, 4 Eq. 624.

2 This is substantially the same, embracing the under soil and downward, including mineral deposits, to center of the earth. Cox v. Glue, 5 C. B. 549; Atkinson v. King, 2 L. R. (Ir.) 339.

8 Land includes the term mineral. Shep. Touch. 90; Newcolm v. Coulson, 5 Ch. D. 142; McDonell v. McKinty, 10 Ir. L. R. 514-524. And

the terms "tenement and hereditaments" also includes mines and minerals. Dunn v. Birmingham Canal Co., L. R. 8 Q. B. 47, 48; Errington v. Met. R. Co., 19 Ch. D. 568; Loosemore v. Tiverton R. Co., 22 Ch. D. 43.

MacSwinney on Mines, pp. 19, 20 and 21.

See Bell v. Wilson, 1 Ch. 308. "Kindersley said mineral would include the mould or loam, which lies more immediately at the surface, and on which the verdure grows and thrives, but with such an extensive meaning as this a grant would be altogether destroyed by an exception." Mid. R. Co. v. Haunchwood Co., 20 Ch. D. 555; MacSwinney, p. 19; Townley v. Gibson, 2 T. R. 701. "Mines " and "minerals" has also been held not to include brick clay immediately under the surface. Church v. Ind. Com., 11 C. B. (N. s.) 664. But see Cowley v. Wellesley, 1 Eq. 659; Tucker v. Linger, 21 Ch. D. 27-39; Errington v. Met. Ry. Co., supra, holding fire clay, in certain cases, to be mineral.

6 See Tiedeman Real Prop., Chap. 1, where the term land and the different elements that go to make up the whole are scientifically discussed.

the term mineral, of itself but a component part of what is necessary to go to make up the term land, is therefore incapable, as a part, of including the whole.1

1 Ante, idem. But if the subsoil contains mineral, it would be classed with the minerals, as well as the minerals themselves. Eardley v. Granville, 3 Ch. D. 826.

CHAPTER II.

PROPERTY IN MINES AND MINERALS.

SECTION 8. Ownership of minerals.

9. Title may be distinct.

9a. Implied power to mine.

10. Same How severance effected.

11. Property in mines in reversion.

12. Same-Shaft - Drift and containing chamber.

13. Mineral under streets and highways.

14. Mineral deposits under railroads.

15. Minerals under rivers and seas.

16. Nature of property in oil.

17. Same-Natural gas.

18. Minerals claimed adversely.

18a. Same When mineral has been conveyed.

§ 8. Ownership of minerals.— Under the theory that the sovereign is the absolute owner of the soil, the ownership of minerals, in England and formerly in the United States, was held to be in the crown. In this country prior to the Revolution, all lands were held mediately, or immediately, by grants from the crown,2 and whatever minerals the land contained were conveyed in these royal charters as part and

1 This is still the law in most nations. Blackstone derives the right as an incident to the royal prerogative to coin money. 1 Com. 294; Am. and Eng. Enc. of Law, Vol. 15, p. 507. But in Case of Mines (1 Plowd. 310) it was held to be based upon the right of coinage and the king's divine right to have the best; as to the rule among European nations, see Jacob's "History of the Precious Metals," pp. 46, 139, 141; Yale on Mines, 13, 44; Moore v. Snow, 17 Cal. 222; s. c. 79 Am. Dec. 123; Costello v. U. S., 2 Black (U. S.), 17; 1 W. & M. Ch. 30; 8 W. & M. Ch. 6; Rogers on Mines, Ch. 4; MacSwinney on Mines, p. 40 and cases cited.

2 Bainb. on Mines and Min., n., 37, 38; 3 Kent's Com. 378; 1 Plowd. 310; Fremont v. Flower, 17 Cal. 199: Moore v. Snow, 17 Cal. 203-223; Jackson v. Ingraham, 4 Johns. 163; Jackson v. Waters; 12 Id. 365. B. & W. L. C. 86.