Reference are to sections.

Yellow Jacket M. Co. v. Stevenson | Young v. Goldsteen (97 Fed. Rep.
(5 Nev. 224, 3 M. R. 545), 1281.
Yosemite Lode N. E. Extension (3
C. L. O. 18), 663.

THE LAW

OF

MINES AND MINING.

PART I.

OF THE COMPONENT ELEMENTS OF MINING
LAW, AND ITS PROGRESSION TOWARDS
THE PRESENT LAW.

CHAPTER I.

OF THE SOVEREIGN POWER, OF EUROPEAN SYSTEMS, THE CIVIL AND COMMON LAW AND ROYAL MINES.

ARTICLE A.

Of the Sovereign Power Over Mines and Mineral Lands.

§ 1. Introductory - Whence the law.

2. Why reproduced here — New law predicated upon the old.

3. Early traces of regalian right or ownership of mines.

4. In Continental Europe.

5. Russia excepted - Allodial title there.

§ 1. Introductory Whence the law. An eminent lawyer once said, "Law is seldom or never created: it is ascertained." This truth may seem a solecism to those who think they find the foundation of American mining law in the federal statutes. But those who look beyond and find the elementary substance of the federal statute, in many of its features, in the pre-existing laws of Spain, France and

1 Address of Mr. James C. Carter tion, Saratoga, New York, 1896, 29 before the American Bar Associa- Am. Law Review, p. 608.

other continental countries of Europe, in the customs prevailing in at least three counties in England, and in the law which has governed mining in Mexico for two hundred and eighty years prior to the enactment of our statute, will not only fully indorse the same, but will be impressed with the truth uttered by Israel's great law-giver, "There is nothing new under the sun."

§ 2. Why reproduced here - New law predicated upon the old. Since an examination into pre-existing conditions and laws not only affords valuable assistance in arriving at the purpose and meaning of the law, but is ofttimes essential to an accurate knowledge of its scope and purposes, a brief review of those laws and customs upon which the American mining law is grounded, if not indispensable, will not be a waste of time. As said by Blackstone, "Surely no industrious student (or practitioner) will imagine his time misemployed when he is led to consider that the obsolete doctrines of our laws are frequently the foundation upon which what remains is predicated; and that it is impracticable to comprehend many rules of the modern law in a scholar-like, scientific manner without having recourse to the ancient." 1

§ 3. Early traces of regalian right or ownership of mines. The principle of national ownership of mines, at least those of precious metals, has prevailed to a greater or less extent throughout all countries of which history speaks, and has been expressed in the larger portion of their legisdation. And throughout the history of the mining law of many countries, the idea is kept uppermost and distinct that a mine is property separate from the soil which covers or incloses it; and that this property can enter into the private domain only in virtue of an act of the sovereign power, where alone rests the authority to dispose of it for the interests of society."

12 Bl. Com., p. 44.

2 De Fooz, Mines, p. 14.

Among the Athenians the regalian right was exercised by the republic, which retained one twenty-fourth of the product of the mines of silver which it granted, and the working of which was under the surveillance of public officers.1

Among the Romans, mines in the conquered territories were worked by the generals or overseers of the emperors, on the condition of paying the sovereign a tenth of their product; the working being under the instruction of the Procurators Metallorum.2

§ 4. In Continental Europe.- The principle of regalian ownership pervades the entire system of the law in Continental Europe, with the single exception of Russia. It was so recognized from earliest times, and is protected in many of the countries by ordinances, themselves now ancient. It is admitted in Bavaria; it pervades the entire system of Austro-Hungary, including Bohemia. In Saxony 5 it was established by ordinance as early as 1589, and was established in many other of the German states in a similar manner, notably in Hanover."

3

The Spanish government has always recognized the regalian right from the earliest period of history, both in making concessions and in causing certain mines to be worked on the state's account.7

The same is true with respect to the Prussian government, as it existed before its absorption into the German Empire, and it is so preserved in the institutions of that portion of Germany to-day. The land-owner could not prohibit authorized diggings. He was obliged, being indemnified therefor, under a system recognizing the mining industry as

De Fooz, Mines, p. 14. 2 Id.

Ordinances of 1463; De Fooz, Mines, pp. 14-16.

4 Ordinances of Marie Theresa, 1747; Ordinances of Joseph II., 1781; De Fooz, Mines, p. 15.

5 Ordinances of 1589; De Fooz, Mines, p. 15.

6 Ordinances of 1593; De Fooz, Mines, p. 15.

7 De Fooz, Mines, p. 15; Gamboa, Com. Rockw. Transl., law IV, ch. 1, § 12.