a new property is created, or one previously dormant is brought into life and activity by the concession. In either view of the question, the regalian right is regarded as remaining in the state, while the right of property is vested by the concession in the grantee.

"In Spain and Mexico, the property of the subject or citizen, whether in the surface or in minerals under the surface, is allodial, and he is considered as seized thereof in dominio suo in his own demesne. Nevertheless, the crown or state, in conferring upon the grantee this allodial title of property, ownership or demesne in the mine, retains over the mine so conceded its jura regalia, or the regalian right to receive a portion of the product, to watch over and direct the working, and, in case of forfeiture, to re-grant this property to others upon the terms and conditions which it may see fit to impose." Senor Gamboa, in his commentaries upon the new recompilation, 1759, was of the opinion. that although the laws granted the dominion and property (dominio y propriedad) to subjects, yet the transfer was not absolute because the eminent domain still remained in the king. His views were incorporated into the mining ordinances of 1783, and the theory of those ordinances has been accurately summarized and stated as follows:

"1. The mines belong to the crown by virtue of its regalian right.

"2. The right of property in them is vested in the grantee by the concession.

"3. That this concession does not deprive the crown of its regalian right of eminent domain over them.

"4. That this grant is a gift, with a charge to do certain things specified in the laws.

"5. That on a failure to comply with certain provisions of law, the right of property so vested in the grantee shall be forfeited, and the mines become grantable to others."1

1 Blanch. & Weeks, Leading 24, 25, 26; Hal. Int. De Fooz, § 11; Cases on Mines, p. 45; Gamboa, Hal. Col., pp. 222, 381, 387; OrdiCom., Rockw. Transl., ch. II, §§ 19, nanzes de Minera, by Rockwell,

These provisions were substantially preserved and incorporated in the jurisprudence of the republic, and in all their essential elements are still the law in Mexico, as we shall see further on.1

p. 79 et seq. See also Yale, Mining Claims and Water Rights, pp. 4447.

1 Post, Part III, ch. IV.

CHAPTER II.

OF THE EARLY ENGLISH AND CONTINENTAL CUSTOMS AND LAWS, AND OF THE STANNATORS.

ARTICLE A.

Early English Customs.

§ 30. General observations - Tin bounding-The English customs and the customs of miners compared.

31. Similarity of customs in England to many of the district rulesMarking, notice and labor.

32. Of the custom of tin bounding — How exercised.

33. The right existed only as to waste lands - Work was necessary.

34. Other customs-Measuring the meers in Derbyshire.

35. Width of surface ground allowed - Other surface customs. 36. Similar customs in Gloucester-Gales

and rights.

37. Origin and antiquity of these customs.

Free miner - Definition

§ 30. General observations-Tin bounding - The English customs and the customs of miners compared.- The most important of the early English customs which found expression in the mining customs of the Pacific Coast, and afterwards in the federal statutes, were those of tin bounding, and the qualifications, rights and duties of tin bounders. Added to these, there was introduced with the customs of the Pacific Coast a new innovation and a new and unique feature not known to the English customs nor to the commercial custom. Instead of the English, which closely followed the commercial custom, in that to be valid it must not only be reasonable but must have existed from time immemorial, the miners of the Pacific Coast introduced into their system of laws a custom which to be valid had only to be in force and be observed. In other words, these customs,

1 Comment in Preface.

6

2

as we shall have occasion to demonstrate in another part of this work, were not the common-law or commercial customs, but a new and entirely different thing. Indeed, the word "custom" itself became easily convertible with and meant no more than was understood by the "by-laws of the district," or "district rules."

§ 31. Similarity of customs in England to many of the district rules-Marking, notice and labor.-— The similarity of the English customs to the district rules early adopted in California was more noticeable in respect to the question of marking boundaries of claims, the exact equivalent of tin bounding, posting notice, the exact equivalent of giving notice, in the stannary courts; and the working of the tin claim within the bounds was reproduced in the district rules and later in the federal statutes, in the requirement of representation work or annual labor.

32. Of the custom of tin bounding - How exercised. The custom in Cornwall and Devonshire most materially affecting the right to mine is that of tin bounding. While this custom has from many causes become, in modern times, comparatively inoperative, yet, as it has been recognized by recent statutes and decisions of the courts, and is the title by which some property is held and more may still be acquired, some space may not be improperly devoted to its consideration. Moreover, its bearing, as furnishing the foundation of some of the present law, renders it more material in the consideration of the subject of this chapter.

The custom, so far as it relates to Cornwall, is thus described in a case which recently came before the courts concerning it, and in which it was found to exist by the jury: "That any person may enter on the waste land of another in Cornwall, and mark out by four corner boundaries a certain area; a written description of the plot of land so marked, with metes and bounds, and the name of the person for whose use the proceeding is taken, is recorded in an

1 See post, Part II, ch. I.

immemorial local court, called the stannary court, and proclaimed at three successive courts, held at stated intervals. If no objection is successfully made by any other person, the court awards a writ to the bailiff of the court to deliver possession of said 'bounds or tin work' to the bounder, who thereupon has the exclusive right to search for, dig and take to his own use all the tin and tin ore within the described limits, paying to the land-owner a certain customary proportion of the ore raised, under the name of toll-tin. The right descends to executors, and may be preserved for an indefinite time, either by actually working and paying toll, or by annually renewing the four boundary marks on a day certain."1

§ 33. The right existed only as to waste lands - Work was necessary. This custom could only be invoked to protect one against a charge of trespass when it was asserted in respect to waste land. Moreover, the early custom claimed by some of the tinners of Cornwall, of renewing of boundaries once a year, being sufficient to reserve the right, was elaborately reasoned away by Lord Denman in a later case where he proceeds to say:

"It is right to observe, in passing, how every step, even in this strong invasion of the rights of ownership, still is made with reference to them. In the first place, the land to be bounded (we speak of a supposed original case of bounding) must be wastrel; if it be several and inclosed it must have been anciently bounded while wastrel, and so, in the language of the country, assured for wastrel; the liability must have first attached on it, therefore, before inclosure and devotion to other useful purposes. Then after the tinner or bounder has commenced by cutting the turves, and so marking out the limits within which he will work, proceedings are to be taken in the stannary courts, of which the owner has notice.

1 Rogers v. Brenton, 10 Q. B. 26; Coll. Mines, pp. 17, 18; 6 & 7 Vict.,

If he abstain from any in

ch. 105; Bainb. Mines (4th ed.), p. 149.