it must have the effect of depreciating the value of all unpatented claims by deterring the more prudent class of capitalists from investing in them. That the subject is simple enough to be embraced in one general law is proved by the fact that the laws of the various districts, although differing in details, are in substance identical, and are substantially contained in the existing acts of Congress.

"What room is left, then, for any local regulations upon the only points that the miners have ever assumed to regulate? Just this: The miners may:

"First-Restrict themselves to smaller claims than the Act of Congress allows.

"Second-Require claims to be more thoroughly marked than would be absolutely necessary to satisfy the terms of the Act.

"Third-Require more work than the law requires.

"Fourth-Provide for the election of a recorder and the recording of claims.

"As to the first three points, it may be safely assumed that no such regulations will be adopted in any district hereafter organized. Mining districts are organized by those who discover valuable ore bodies outside of the limits of existing districts, and these first comers will be sure to take all the law allows them to take, and will do nothing on their part to increase the difficulty of holding what they have got. Later comers, not being able to deprive their predecessors of rights already vested, will find their advantage in claiming any new discoveries on terms as liberal as others have enjoyed, and it will inevitably happen that the privileges of the law will be in no wise abridged. Permission to abridge them is therefore wholly superfluous.

"In some of the older organized districts the local rules do restrict the size of claims; but in no case within my knowledge do they exact as much as the statute in regard to marking and working claims. Under the regulations restricting the size of claims in these old districts rights have vested which ought to be protected; but in amending the law, with

a view to its prospective operation in old as well as new districts, nothing is to be gained by permitting miners any longer to regulate either the size of claims or the mode of marking them, or the amount of work to be done on them. The only effect of such permission is to make the terms of the law upon these important points everlastingly uncertain, without the least prospect of its ever being improved.

"The fourth point at present left open to regulation by the miners remains to be noticed. All the district rules with which I am acquainted provide for mining recorders and the recording of claims; but under existing legislation such rules are worse than useless. The statute, it will be observed, does not make any notice or record obligatory, or define their effect. If the miners themselves made no regulation on the subject, claims would be located by simple compliance with the terms of the statute, which contains in itself ample provision for every essential to a location; i. e., size of claim and marking and working. Under the statute the vein is located by means of a surface claim, which not only can be, but must be, marked on the ground. When this is done all that the notice and record were ever intended or expected to accomplish is effected in a manner far more satisfactory and complete. In place of a very imperfect and often misleading description of the claim, there is a plain and unambiguous notice to the world of its exact position and extent. No reason exists, therefore, for retaining in the law a provision under which it may be made obligatory, by local regulations, to post and record a notice in addition to the marking of the ground. The monuments on the ground do well and completely what the notice and record do only imperfectly and in part.

"It may be asked why, if this is so, do the miners, who ought to understand their own business, persist in requiring a notice and record. The answer is, that marking locations by such means has with a majority of miners become an inveterate habit; and the custom, like many other customs, outlives the causes which called it into existence. For twenty years from 1852 to 1872-lode claims were located with

out reference to surface lines, and, as above explained, their locality and extent could only be indicated by means of a notice. Notice and record were therefore an essential part of the system. Now, however, since the law has applied the system of surface locations to lode claims, they have ceased to be of any importance as independent and substantial requirements. But the miners have generally failed to perceive that there has been any radical change in the system of making locations. They cannot divest themselves of the notion that the surface is still a mere incident to the vein, and that they must hold by means of their notice fifteen hundred feet of the vein, wherever it is found to run, notwithstanding their surface lines, as marked on the ground, may not include so much.

"But another evil remains. In the nature of things there must always exist the necessity in the assertion of any mining title of proving compliance with the law prescribing the conditions upon which it may be acquired; but there is no necessity for leaving the terms and existence of the law itself to be the subject of proof by evidence, the best of which is always open to dispute. As long as there are local regulations anywhere, and as long as there may be local regulations everywhere affecting the validity of mining titles, no man can ever know the law of his title until the end of a trial in which it is involved. In districts where the rules are in writing, where they have been some time in force and generally recognized and respected, the law may be tolerably well settled. But there is often a question whether the rules have been regularly adopted or generally recognized by the miners of a district. There may be two rival codes, each claiming authority and each supported by numerous adherents; evidence may be offered of the repeal or alteration of rules, and this may be rebutted by evidence that the meeting which undertook to effect the repeal was irregularly convened or was secretly conducted in some out-of-the-way corner, or was controlled by unqualified persons; customs of universal acceptance may be proved which are at variance with the

written rules; the boundaries of districts may conflict, and within the lines of conflict it may be impossible to determine which of two codes of rules is in force; there may be an attempt to create a new district within the limits of an old one; a district may be deserted for a time, and its records lost or destroyed; and then a new set of locators may reorganize it and relocate the claims. This does not exhaust the list of instances within my own knowledge in which it has been a question of fact for a jury to determine what the law was in a particular district. Other instances might be cited, but I think enough has been said to prove that local regulations being of no use ought to be abolished.

"The magnitude of the evil resulting from the uncertainty of mining titles will, perhaps, be appreciated when I say that after a residence of seventeen years in the State of Nevada, with the best opportunity for observing, I cannot at this moment recall a single instance in which the owners of really valuable mining ground have escaped expensive litigation, except by paying a heavy blackmail." This defect in the law, like the one concerning a want of a reasonable time to mark boundaries in making a location, can be cured by an amendment of the law itself, and, in this instance all that is necessary is a provision that all future occupation, location, or purchase of public mineral lands shall be governed by laws of Congress, to the exclusion of all local customs, rules and regulations and State and territorial law.

THE EXTRA-LATERAL RIGHT AND THE SQUARE LOCATION.

A discussion of any remedy for the remaining source of litigation resulting from the provisions of the statute would bring to the parting of the ways. Probably any system that allows the miner the right to follow his lode on the dip outside vertical planes drawn through the surface lines of his location must bring in its train more or less litigation. Where the miner who has sunk upon his lode has become the defendant at the instance of some one who has located upon his dip, he ought generally without difficulty by means of his underground workings to be able to prove his title to his lode,

though the expense is often great on account of the necessity of reopening old works. Where, however, he has opened his mine through a vertical shaft and cross-cut to his lode, he might, in such a case, be compelled to expend thousands and thousands of dollars in work that is utterly useless to him for all other purposes, simply to prove the identity of the lode he is working beneath his neighbor's surface with the one he located. He cannot escape the burden of this positive proof for the judicial construction that has brought us the law of the surface has brought with it the English commonlaw accompaniment that each locator has the prima facie right to all vertically beneath his surface. Where another is mining upon the dip of his lode, and he is seeking affirmative relief against the conscious or unconscious trespasser, he may not be able in the environment of his own operations to make the satisfactory proof, but will have to push on, against his other plans and interests, and do an immense amount of "dead" work until he breaks in upon the trespass. On account of peculiar surface boundaries he might be compelled, on the analogy of a bill of discovery, to apply to the court for permission to enter the works of the trespasser and, at his own cost, make ruinously expensive upraises to the surface, a permission in many jurisdictions impossible to obtain, in order to prove the identity of the lode. I have made no mention of the vexatious delays, delays which are sometimes used by the scoundrelly corporation trespassing to manifest its consciousness of guilt by efforts of reorganization and the like, nor to the enormous damage often caused by the cessation of operations in other portions of the mine rendered necessary by the expense of the abnormal amount of dead work useful alone for the purposes of the litigation. The expenses rendered necessary by these cases and by those arising from mistakes in the location of the apex and of the strike of the lode are mounting into millions. Only the wealthy, whether corporations or individuals, can indulge in this luxury.

These considerations have brought despair to many mining men and doubt as to advisability of any system providing