for "the extra-lateral right." They point to the tranquility under the English common law titles of the lead and copper mines east of the Rocky mountains and of the placer mines in our own State, where an exact adjustment of boundary rights depends simply upon exact surveying. The increasing familiarity of many of our prominent mining men with the "square location" system of Mexico and its results has had much to do with fostering a sentiment in its favor. The agitation has already begun for the adoption of the system of "square locations." As early as 1880, B. C. Whitman, of Nevada, and Judge Hallett, of Colorado, openly advocated it, and the public land commission urged it upon Congress, while Chief Justice Beatty and Dr. R. W. Raymond, though pointing out where the present law must be amended, strenuously contended for the extra-lateral right, at any rate until the era of active prospecting shall have actually passed away (Report public land commission, of 1880). I do not intend to enter into the merits of the controversy between the champions of the extra-lateral right and square locations. In an article upon the history of mining law in California we would be led too far apace. If, possibly under conditions analogous to those that obtained in Prussia at the time, the extra-lateral right shall ever be abolished, then its abolition will be history, but not till then. The extralateral right is, moreover, a vested right at present in all lode patents fulfilling the conditions of the present law, and in all the numberless locations duly made under the lode rules, customs or regulations. No amendment can take that vested right away. In all lode mines that at present exist where compliance has been had with the condition of substantial parallelism of end lines, the extra-lateral right is indefeasible, unless the abandonment of the possessory ownership by the owner shall throw the mine itself back into the public domain. Any legislation on the subject, could at most, then, only affect future locations. After all, no matter how honestly the advocates of the two systems contend, the conclusions reached depend largely upon the point of view. The large mine operator, who buys and opens, but who does not discover or locate mines, upon whose shoulders falls the burden of the costs of litigation,— he, with his lawyers and his surveyors and his experts, usually leans toward the "square location." The prospector and the discoverer feels in his every fibre, no matter what fictitious sacredness judicial construction or the statute may have thrown about the idea of the surface, that the lode itself is the only real property, as it is the only thing he has been hunting, and when he finds the lode his desire "to stay with it till it reaches hell" is a passion that cannot be understood by one who has never owned a lode mine and worked in it, or who has never lived in a mining community. The discoverer is not of the class that has usually had to bear the costs of mighty law-suits, and therefore he loses no sleep over the possible litigation. And, even if he does take the chance of losing the mine, he is willing to do so with the same cheerfulness with which he spent the greater part of his life on the chance of finding it. As long as the law recognizes his right, he is willing to take his chances of being able to hold on to the lode. He has long learned to look upon mining with the same game philosophy with which John Oakhurst looked upon life, as at best an uncertain game, and to "recognize the usual percentage in favor of the dealer." SUGGESTED AMENDMENTS OF LAW OF 1872. The act of 1872, with further congressional amendment putting all matters concerning location in the terms of the act itself, abolishing all local rules, regulations and customs and superseding all State and territorial enactments, arranging for the discoverer to have a reasonably liberal time within which to mark his boundaries before he shall be bound by them, and regulating effectively the performance of the work necessary to hold the possessory right to the claim, will be immensely improved. The mistakes incident to hurried location and consequent ignorance of the details to give it effec tiveness will be reduced to a minimum. The law has already stood many a severe geological test. It has had to undergo the test of the flat wavy veins of the neighborhood of Nevada City. It may have to deal with lodes like the Royal Consolidated in Calaveras County, where one can walk down the shaft, or with the abnormal width of the mother lode in some portions of Amador County. The law that could stand Carson City-North Star, South Scotia-New Idea, WyomingChampion, Providence-Champion, Argonaut-Kennedy, and many another problem already solved, will have no trouble in California. The mountains and gulches of California will probably never try it with anything so hard as Leadville. CERTAIN STATE MINING LEGISLATION. It would be manifestly beyond the scope of an article of this kind to stop to point out all the different laws that were passed and repealed in California with reference to the exclusion of Chinese from the mines, and the attempts to levy and collect a Foreigners' Tax. There would be no use in relating the history of the enactment of any acts, whether in general or codified form, providing under the law of eminent domain for the condemnation of sites for tunnels, ditches, flumes, pipes, and dumping places for working mines, or for outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from the mines, for the reason that in all instances where any attempt has been made under the provisions of the act, the Supreme Court of this State has foiled the attempt by holding that mining is not a public use. The act establishing a system of mine bell signals introduced by Senator Voorheis, of Amador and Calaveras Counties, and approved March 8, 1893, cannot be said to belong to the law of mining in California, in the sense in which I have been discussing that subject. It is significant, however, as indicating the immense strides in the industry of lode mining, and the large scale of lode mining operations as distinguished from its small beginnings, that such a system of bell signals was found necessary and convenient. Likewise, the act for the protection of stockholders in mining companies, approved April 23, 1880, and its amendment, more properly belongs to the law of corporations than that of mining. The peculiar associations, too, known as mining partnerships, which arise where several owners of a mine engage in the actual working of it, belong properly to a treatise on partnership, though their law of today is but the statutory enactment of a distinctive California common law, which, though in many respects similar to the "cost-book system" of Cornwall and Devon, blossomed out of the tenderest relationship of the days of '49, the days of Tennessee and his "pardner." They spread out into all the states and territories, where went the California law of mining properly so-called, were early crystallized in decisions of the courts, and enacted into statutes, which were, with all their features distinctive from ordinary partnership, re-enacted into the Civil Code, Sections 2511-2520, in 1872. HYDRAULIC MINING AND CALIFORNIA DEBRIS COMMISSION ACT. One of the most interesting phases of the mining law in California is the federal statute creating the California Debris Commission, following the closing down of the hydraulic mines in the Sacramento and San Joaquin watershed as a result of the federal injunction in the test case of Woodruff vs. The North Bloomfield. The act was the work of Mr. Caminetti, of Jackson, then congressman from the Second District, and deserves a more detailed notice than I shall be able to give it in this article, as it is a unique example of governmental intervention. The government had sold the agriculturalists in the valley their land and the miners in the mountains their placer claims, had given each patents with equal covenants "to have and to hold," and had collected from each side the fees for the land at the land office with equal urbanity. It had been decided in the North Bloomfield case that the debris from that mine, the result of mining by the well-known hydraulic process, was injuring the lands adjacent to the navigable streams below. The magnitude of the extent of hydraulic mining had been its undoing. The choking up of the overtaxed channels of the rivers, the covering up of valuable adjacent lands, and the injury to navigation brought all parties down upon the offending industry. Private individuals invoked the doctrine "ut non laedas," the State protested against interference with its water highways, and the federal government, despite the covenant in the deed, objected to the obstruction to navigation. The bitter feeling engendered between the interests injured and the industry was so great that for some years no effort was made towards any rehabilitation of hydraulic mining. In the decision of the Woodruff vs. North Bloomfield case, brought by an individual, and the People vs. Gold Run case, brought by the State, the hydraulic process in and of itself had not been declared unlawful, but hydraulic mining as theretofore conducted where it contributed or threatened to contribute in a material degree to the filling up of river channels, injuring navigation, or covering the lands adjacent to the navigable streams with debris, was declared a public nuisance and prohibited. Judge Sawyer, who decided the Woodruff-Bloomfield case, realized the awful damage to entire sections of the State by the closing down of these mines, and left a fair opening, making certain suggestions of possible conditions under which the injunction might be dissolved. The North Bloomfield Company constructed the suggested impounding works, and the United States then brought its action for an injunction against the North Bloomfield Company. The injunction was denied, the Court holding that by reason of the impounding works constructed the light matter floating over the dam was harmless, that danger to be apprehended from the operation of the North Bloomfield mine, with its impounding reservoirs as constructed and used and intended to be used, was too remote to justify the Court in issuing an injunction. Thereafter, the California Debris Commission Act was passed. |