English mining jurisprudence, that, without any exception, provision is made protecting the customary rights to the mines.1

21. Right of entry into reserved mines.- While the discussion of incidental rights resulting from severance of mines from the surface is mainly postponed to a further part of this work, the subject in hand, being one incident to the royal right, is proper to be considered here. Thus, by an early authority, Lord Hardwicke is said to have rendered the opinion that there was by the terms of the grant no power of entry reserved to the crown, and certainly none was implied. This opinion, however, stands alone. And, following the general rule that a grant or reservation carries with it the necessary means of extracting the minerals, the right was declared to exist by all the twelve judges in the celebrated case in Plowden, afterwards upheld by Sir William Grant, M. R., and followed in other cases. And it has been held that this right may be exercised to the extreme extent of authorizing the galees of lower veins of coal to sink shafts through the upper veins of a prior galee for the purpose of working out the coal."

Mr. Collier, upon the indisputable proposition that a tenant, not possessing the property in minerals, cannot open them without committing waste, though he may dig an open one, argues that it follows that the right of entry must be reserved or it does not exist,- citing a large number of cases. He then proceeds to say: "The reversioner, or lord

1 Bainb. Mines (1 Am. from 3d London ed.), p. 7; Kerr v. Pauson, 25 Beav. 394, 27 L. J. Ch. 594.

2 Post, Part XII, ch. V, art. C. Lyddall v. Weston, 2 Atk. 20; Bainb. Mines, p. 26.

Bainb. Mines, pp. 25–27 (1st Am. ed.), p. 33; Queen v. Earl of Northumberland, Plowd. 310-36; Seaman v. Vaudrey, 16 Ves. 393; Collier, Mines, p. 1; Cullen v. Rich, Bull, N. P. 102, 2 Str. 1142.

Goold v. Great Western Deep Coal Co., 2 De Gex, J. & S. 600, 11 Jur. (N. S.), 865.

6 Co. Lit. 53b, 54b; Astray v. Ballard, 2 Mod. 193; Manwood's Case, Moore, 101; Gilbert, Tenures, p. 327; Doe v. Huntington, 4 East, 271; Bourne v. Taylor, 10 East, 189.

7 See authorities to note 6, ante. See also Brown v. Rawlins, 7 East, 409; Bishop of Winchester V. Knight, P. Wms. 407.

of the manor, cannot enter and dig because he has not the possession of the surface, or even of the sub-soil." All of which is correct; but it sticks in the bark as to the real proposition, which is that where there is a grant, a reservation, or a custom fixing the right, all the means necessary to enjoy it are, as a general rule, incidents.2

§ 22. Similarity to feudal tenure as to mines.- In some parts of England, notably wherever the customary tenure has prevailed, the tenure of some mines, as well as the mode of exacting compensation, resembles in some degree the old feudal system in its application to ordinary real estate. In both cases there was duty or service due to the lord by custom; often pay or royalty was delivered in kind, and the right descended to the heir or executor.3

§ 23. Feudal tenure.- The remarks in the last section are aptly illustrated by the following extract from a late work: "To say of a tenant that he holds in fee (tenet in feodo) means no more than that his rights are inheritable. He does not hold for life, he does not hold for a term of years, he does not hold as guardian of an heir, or as one to whom the land has been gaged as security for money; he holds heritably and for his own behoof. But nothing is implied as to the terms of his holding - the relation between him and his lord. His duty to his lord may be onerous or nominal, noble or humble, military or agricultural; but if his rights are heritable, then he holds in fee and the land is feodum suum. . . It is clear then that of dependent or feudal tenure in general little can be said: but still some analysis of it is possible. We may at least notice that it seems to be a complex of personal rights and of real rights. On the one hand, the lord has rights against his tenant, the ten

1 Collier, Mines, p. 3; Lewis v. Braithwaite, 2 Barn. & Ad. 437.

2 See note 4, p. 19,ante, this section. 3 McSwinney, Mines. 431, 482-83; Bainb. Mines (1st Am. from 3d Lon

don ed.), pp. 63, 64; 4th ed., p. 149; Darcy v. Asquith, Hobart, 234; Arlet v. Ellis, 7 B. & C. 346; Glover v. Lane, 3 T. R. 446.

ant has rights against his lord; the tenant owes service to his lord, the lord, at least normally (nominally), owes defense and warranty to his tenant. On the other hand, both lord and tenant have rights in the land, in the tenement, the subject of the tenure."1

Thus it is that in this principle of feudal tenure, coupled with the customs of the copyhold lands, we have the fundamental elements which compose the estate acquired by the miner in the public lands of the United States by location; the duty, burden or service being cast upon him there to improve the land a fixed amount at least each year.2

24. Examples of sovereign authority asserted by the states. It is manifest from the foregoing, when the principles which control are accurately understood, that the doctrine of sovereign control of mineral lands lies at the very root of state authority within the first thirteen states of the United States, and with reference to the federal government, as to all lands acquired by it. Whence it follows that wherever that authority has been asserted by either a sovereign state or the United States, the power is well claimed and may be lawfully asserted.

This authority and right were early asserted, both by statute and decision, in the state of New York; but seem not to have been asserted, perhaps for want of occasion, for

1 Pollock & Maitland, Hist. Eng. Law, vol. I, pp. 213-15. See also 2 Bl. Com., pp. 44–50.

2 See post, "Annual Labor and Assessment Work," Part VII, chs. I and II.

New York Const. 1848, art. I, sec. 2; N. Y. Rev. Stat. (3d ed.) 322; Laws 1894, vol. I, ch. 317, p. 589; Jackson v. Ingraham, 4 Johns. 163; Jackson v. Waters, 12 Johns. 365. The matter is now regulated by statute. See Appendix B, §§ 80 et seq.

NOTE. In Michigan the sovereign right of the people to mines of gold and silver has been asserted from very early times. Act 78, Laws 1848, p. 92; Compiled Laws (Mich.) 1897, § 1526. But inasmuch as the territory was acquired by the United States and became a public-land state, this would be of meagre application if not an erroneous assertion of authority. No case seems to have called it in question in the courts. See R. S. U. S., § 2345.

many years until recently. The power was incidentally mentioned by the supreme court of the United States,2 and was claimed to underlie the policy of the state of Georgia, to the extent that it was decided that if a state made a grant of public lands to an individual, without any exception of the mines and minerals, both would pass to the grantee as part and parcel of the land. This principle was recognized in an early case in California, and except that the learned court overlooked the distinction between a sovereign state and its rights to state land, on the one hand, and territory belonging to the United States, on the other, the underlying principle was well asserted, and the reasoning of the court unassailable, notwithstanding it has received much adverse criticism."

§ 25. The allodial system of title prevails throughout this country. All lands containing mines or minerals in this country, acquired from individuals holding the fee simple, must of necessity be acquired by contract, except in

1 Moore v. Brown, 139 N. Y. 127, 34 N. E. Rep. 772, where mines were asserted to be the property of the people.

2 Fremont v. United States, 58 U. S. 442. See also United States v. Castillero, 2 Black, 1, 371.

3 State of Georgia v. Canatoo, a Cherokee Indian, reported in National Intelligencer, Oct. 24, 1843; 3 Kent, Com. 378, note.

4 Hicks v. Bell, 3 Cal. 219.

5 Mr. Gregory Yale thus comments on this case of Hicks v. Bell: "Our supreme court grappled with the question at an early day, by anticipation, if not by inspiration, in announcing that the state owned the mines of gold and silver on the public lands by virtue of her sover eignty, and has, solely, the right to authorize them to be worked, and

to pass laws for their regulation, and fix such terms and conditions to the freedom of their use as she deems proper." Yale on Mining Claims and Water Rights, p. 27. In a later case the court pursued the question still further and held that the state also owned the mines of gold and silver in the lands of private individuals, but for the want of legislation had not the power to authorize the invasion of such lands to work them. Stokes v. Barrett, 5 Cal. 36. But this doctrine was virtually abandoned in Merced Mining Co. v. Fremont, 7 Cal. 317, and in Biddle Boggs v. Merced M. Co., being the same case under another name, 14 Cal. 279. And it was finally abandoned in Moore v. Smaw and Fremont v. Flower, 17 Cal. 199.

those states where mining is held to be a public use for certain purposes and the doctrine of eminent domain is spread over it. But there is no recognition of the doctrine that the minerals, independent of the land, belong to the sovereign power. The common-law doctrine prevails, that he who owns the soil owns all above and beneath it, assuming that the estate is in fee simple and is unsevered, as hereinafter adverted to;' and minerals, in their natural condition, are a part of the soil. A patent from the United States, a conveyance from a state or an individual of lands owned by either, carries with it the minerals therein, unless they are expressly reserved by the terms of the grant, or have been previously granted."

§ 26. Allodial title in Mexico.- While there were many features of the older Mexican law which preserved the essential elements of the regalian right, there was likewise a system of concession which in its practical effect operated to establish all the essential elements of an allodial ownership of the mines in him who owned or had the possession of the soil; that is, the concession could be, and generally was, so framed that the two rights ran together.

The regalian right does not necessarily imply that the absolute property of mines, with full power of disposition, is primarily in the state; the theory of that right is equally consistent with the doctrine of the French law of 1810, that

1 See post, Part XII, ch. IV. Cujus est solum ejus est usque ad coelum is the maxim of the law, and controls every where except where limited by grant, reservation or statute. See Broom, Leg. Max., pp. 395-397: 1 Co. Inst., p. 4a; 2 Bl. Com., p. 18; Alloway v. Wagstaff, 4 H. & N. 307; Bainb. Mines, p. 4; 2 Washb. Real Prop., § 3, subd. 62; 3 Kent, Com. 378; McSwinney, Mines, p. 26; United States v. Parrott, 1 McAll, 271, 27 Fed. Cas. 416

(No. 15,998); Lee Doon v. Tesh, 68 Cal. 48, 8 Pac. Rep. 621-624; Ah Hee v. Crippen, 19 Cal. 491; Boggs v. Merced M. Co., 14 Cal. 279; Stratton v. Lyons, 53 Vt. 641; Gold Hill Quartz M. Co. v. Ish, 5 Oreg. 104.

2 Stratton v. Lyon, supra; Adam v. Briggs Iron Co., 7 Cush. 631; La Custrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476.

3 Moore v. Smaw, 17 Cal. 199; 3 Kent, Com. 378, note b.