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CHAPTER I.

INTRODUCTORY AND HISTORICAL.

SECTION 1. DEFINITION. "A mine, strictly speaking, is a tunnel, shaft, or other opening in the earth made for the purpose of getting out the underlying minerals;' but the word is also used to denote the vein or deposit of mineral and likewise the parcel of land in which such vein or deposit is found.”

"By the term 'minerals,' is meant all the substances in the earth's crust which are sought for and removed by man for the substance itself. It is not limited to metallic substances, but includes salt, coal, clay, stone of various sorts, etc., and even petroleum and natural gas have been held to be minerals." 3 4

SECTION 2. MINING LAW-A BRANCH OF LAW OF

REAL PROPERTY. Strictly speaking, mining law is a branch of the law of Real Property. The ownership of land (at least under the common law), carries with it the ownership of all minerals found under the surface. Minerals differ from the other elements which make up the corpus of the Real Property in that the value of the minerals consists in their use after their severance from the land and their conversion into personal property. 1 Coal Run"Coal Co. vs. Jones, 127

Henry vs. Lowe, 73 Mo., 96. Ill., 379; Marrow vs. Flimby, 3 Gill vs. Weston, 110 Pa. St., 313; etc., Coal Co. (1898), 2 Q. B.,

Murray vs. Allred, 100 Tenn., 599.

100, 66 Am. St. Rep., 740. · Clayton vs. Gregson, 5 Ad. & El., * Am. & Eng. Ency. of Law, Vol. 302, 31 E. C. L., 342; Rosse vs.

XX, Page 682-683. Wainnam, 14 M. & W., 859; • See Section 6, Real Property.

The laws governing mines and the working of mines, therefore, present many striking contrasts to the law in any other division of real property.

Feudalism, which, as has been seen, was the basis for the general system of law relative to real property in England, exerted only a slight and passing influence upon mining law. The common law principles relative to the ownership and working of mines presented a striking contrast in many respects to the law of other countries, especially those whose laws on this subject are taken from the Roman or Civil laws.

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SECTION 3. COMPARISON BETWEEN THE CIVIL LAW
AND THE COMMON LAW RULE AS TO THE

OWNERSHIP OF MINES.
"The continental systems were the outgrowth of
the civil law, which, without exception, furnished the
basis of the laws of nearly every country in Europe
outside of Great Britain, and to some extent there.
Naturally, therefore, their systems followed the prin-
ciples of the civil law, by which it was established that
the ownership of all was primarily vested in the State,
and that all mines of gold or silver in public lands
belong to the state or sovereign, as a part of the sover-
eign patrimony, whence it followed that the right of
severance could be exercised, and the minerals granted
to one and the land to another, or the land and minerals
together. But in private lands, closely analogous, to
the rule of the common law, and probably the founda-
tion of it, the minerals belonged primarily and prima
facie to the owner of the soil, with this condition or
limitation, similar to the rule prevailing in Russia,
that if worked by the owner he was bound to render
the tenth part to the sovereign as a right attaching to

the crown; and if worked by another with the consent of the owner, there was a fixed and standing royalty of one-tenth to the crown and one-tenth to the owner.

"By the rule of the common law from the earliest time, prima facie and as a general rule, the owner of the soil owned all beneath it, with the limitation onlythe burden of showing which was upon the person attempting to rebut the presumption of ownershipthat 'Royal mines' belonged to the crown or sovereign. By some of the earlier statutes and decisions there was some doubt as to what was included in the term 'Royal mines,' the attempt being made to include copper and tin as well as gold and silver; and by others a distinction was sought to be made between the values of baser metals and those of gold and silver. This, however, was virtually settled by the statute of William and Mary,' by which it was ordained that the enjoyment of all mines in which tin, copper, iron or lead were found, notwithstanding any quantity of the precious metals intermixed, was secured to the subject.

SECTION 4. "ROYAL MINES" IN ENGLAND.

As was seen in the last section, the right of land ownership in the minerals found beneath their land was limited by the rights of the Crown, in what was known as “Royal mines.The subject of “Royal mines” is thus discussed by a recent English writer on the subject: “According to the law of England, the only mines which are termed Royal, and which are the exclusive property of the crown, are mines of gold and silver.

It seems formerly to have been a matter of considerable dispute as to what constituted o Gamboa Com. Rockw. Transl. ch. 8 1 Wm. & Mary, ch. 30; 5 id., 2, Sec, 1.

6, Collier Mines, p. 2.

Pol. Vice vs. Thomas, Stan., p. 35, 2 • Snyder on Mines, I, Secs. 6 Bl. Com., p. 18, 1 id., 294.

ch.

& 7.

a royal mine. By some it was considered to be a principle of the common law, that, if any gold or silver was found in metals of a baser nature, there was sufficient to bring the mine within the definition of a royal mine; while by others a mine was not to be deemed royal unless the quantity of gold or silver exceeded in value that of the other minerals with which it was mixed. The latter opinion was adopted by three of the judges, viz., Harper, Southcott and Weston, in the case of the Queen and the Earl of Northumberland, although they agree in thinking that, as the defendant in that case had confessed the production of some royal ore, he was concluded by his not having proceeded to show the relative difference of value, and that the mine must therefore be presumed to be royal. But all the other mine judges were of the opinion that the existence of any portion of gold or silver was sufficient to constitute a royal mine. Plowden himself contends that if the royal metals should bear the expenses of extraction, the whole should belong to the crown, and if otherwise, to the owners of the base metals. This decision occurred in the time of Queen Elizabeth, when the prerogative of the crown was perhaps at its greatest height, and the opinion of the nine judges 'does not appear to have gained the acquiescence of more recent lawyers."

This right of the Crown in “Royal mines” was variously assigned to the virtue of the prerogative," the King's right of coinage, and the excellence of the thing. 13

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10 Bainb. Mines, 1 Am. (from 3rd

London ed.), ch. 2, sec. 3, pp. 24–27, citing Queen vs. Earl of Northumberland; Plowd, 336,

2 Coke, Inst., 577, 78. 11 1 Bl. Com., 294; Collier Mines, p.

1, 2 Co. Inst., 577; Bainb. Mines, p. 24, McSwinney Mines, p. 26; Rockw. Span, and Mex.

Law, p. 514. 19 1 Bl. Com., 294, 2 Co. Inst., 577. w Plowd., 31, 310.' See, also Pettus

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