a quasi-public use, to cede to the mine workers the land necessary for working the mines. And the state collected rents or indemnity for the expenses of surveillance and direction.1 In Sweden and Norway the mines are considered dependencies of the crown.2 In ancient France the king invested individuals with the right of working mines under the reservation of a portion of the products, either as a revenue to the state or to pay the expenses incurred for the service of mines, and this working was regulated by provisions of police.3 This rule, in all its substantial features, prevails in the republic to-day. 5. Russia excepted - Allodial title there. It seems that Russia does not in name assume to exercise regalian control or ownership of mines. But, while this is the established policy, there is a system of taxation more rigorous and expensive than in any of the countries where regalian ownership is boldly asserted. In that country each proprietor is permitted to search for minerals; to work them, or to grant the property in them, or the right of working them, to others; the state, however, exercising direction over the working, and exacting and collecting exorbitant duties.1 1 Ordinances of Frederick II., 1776, 1772-79; De Fooz, Mines, pp. 15, 16. 2 Ordinances of 1480, 1685, 1757; De Fooz, Mines, p. 16. 3 Ordinances of 1515, Law of July 12, 1791; Ordinance of March 21, 1781; Edict of 1604; De Fooz, Mines, pp. 24-25. NOTE. The law of France of 1810 is thus described by Fourcroy, one of its chief advocates: "The system of the law rests upon this principle, which is uniform with almost every people, that mines are public property, constituting a part of the national domain, and that they be long to the state, which causes them to be worked for its own ac count, or which grants them to individuals, to be worked by them under certain conditions." See De Fooz, Mines, pp. 37-38. Napoleon, however, arbitrarily and obstinately insisted, in the face of this law, that mines belonged to the owner of the surface, thus recognizing the allodial system; he was, however, outvoted in the contest, and in order to avoid the consequences of the edict, and the appearance of defeat, put forth this startling idea, that "mines are new property; that the right of working them forms a new wealth." De Fooz, Mines, p. 40. 4 Ordinance of Catherine IL, 1782; ARTICLE B. Of the Civil and Common Law. § 6. Of the ownership in mines under civil law. The $ 6. Of the ownership in mines under civil law. continental systems were the outgrowth of the civil law, which, without exception, furnished the basis of the laws of nearly every country in Europe outside of Great Britain, and to some extent there. Naturally, therefore, their systems followed the principles of the civil law, by which it was established that the ownership of all lands was primarily vested in the state, and that all mines of gold or silver in public lands belong to the state or sovereign, as a part of the sovereign patrimony; whence it followed that the right of severance could be exercised, and the minerals granted to one and the land to another, or the land and minerals together. But in private lands, closely analogous to the rule of the common law, and probably the foundation of it, the minerals belonged primarily and prima facie to the owner of the soil, with this condition or limitation, similar to the rule prevailing in Russia, that if worked by the owner he was bound to render the tenth part to the sovereign as a right attaching to his crown; and if worked by another with the consent of the owner, there was a fixed and standing royalty of one-tenth to the crown and one-tenth to the owner.1 § 7. The rule of the common law. By the rule of the common law from the earliest time, prima facie and as a general rule, the owner of the soil owned all beneath it, De Fooz, Mines, pp. 17, 18; Dig. Min. Stats (Skorof, Moscow, 1900), $ 263-7, 417, 427, 418, 475. See Eng. Mag., Jan. 1902, p. 553, for abbreviated digest. 1 Gamboa, Com., Rockw. Transl., ch. 2, sec. 1; Rockw. Spanish and Mexican Law, pp. 124-5; Gamboa, Com., Heathfield's Transl., p. 15; Lagunez, De Fructibus, 1, p. c. 10, n. 51; Rodgers, Mines, ch. 4; Lindl. Mines, sec. 11; Bainb. Mines, 1 Am, (from 3d London ed.), pp. 25–28. with the limitation only,- the burden of showing which was upon the person attempting to rebut the presumption of ownership,- that "Royal Mines "1 belonged to the crown or sovereign. By some of the earlier statutes and decisions there was some doubt as to what was included in the term "Royal Mines," the attempt being made to include copper and tin as well as gold and silver; and by others a distinction was sought to be made between the values of baser metals and those of gold and silver. This, however, was virtually settled by the statute of William and Mary,2 by which it was ordained that the enjoyment of all mines in which tin, copper, iron or lead were found, notwithstanding any quantity of the precious metals intermixed, was secured to the subject.3 9. The supposed origin of the right- Royal prerogative - Coinage. 10. Purpose of all this - Its application - Definition of mineral landCost of extraction. 11. Royal or sovereign rights in public reserves, streets and river beds. 12. Mines under the sea shore - High and low-water mark. 13. Traces of the assertion of royal ownership in early colonial grants. 38. S. Royal mines- Earlier definition. As indicated in the last section, there was originally some doubt and dispute as to what constituted or came under the nomenclature of Royal Mines. An accurate English writer thus reviews the subject: "According to the law of England, the only mines which are termed Royal, and which are the exclusive property of the crown, are mines of gold and silver. It 1 See infra, this chapter, art. C. 2 Statute 1 Wm. & Mary, ch. 30; 5 Wm. & Mary, ch. 6; Coll. Mines, p. 2. See also Vice v. Thomas, Stan., p. 35; 2 Bl. Com., p. 18; 1 id. 294; Bainb. Mines, 1 Am. (from 3d London ed.), p. 24; Rodgers, Mines, ch. 4; Lyddal v. Weston, 2 Atk. 20; Seaman v. Vaudrey, 16 Ves. 293; McSwinney, Mines, p. 26, 27; Lindl. Mines, § 2. 31 Wm. & Mary, ch. 30; 5 id., ch. 6; Collier, Mines, p. 2. seems formerly to have been a matter of considerable dispute as to what constituted a royal mine. By some it was considered to be a principle of the common law that, if any gold or silver was found in metals of a baser nature, there was sufficient to bring the mine within the definition of a royal mine; while by others a mine was not to be deemed royal unless the quantity of gold or silver exceeded in value that of the other metals with which it was mixed. The latter opinion was adopted by three of the judges, viz., Harper, Southcott and Weston, in the case of the Queen and the Earl of Northumberland, although they agree in thinking that, as the defendant in that case had confessed the production of some royal ore, he was concluded by his not having proceeded to show the relative difference of value, and that the mine must therefore be presumed to be royal. But all the other nine judges were of opinion that the existence of any portion of gold or silver was sufficient to constitute a royal mine. Plowden himself contends that if the royal metals should bear the expenses of extraction, the whole should belong to the crown, and if otherwise, to the owners of the base metals. This decision occurred in the time of Queen Elizabeth, when the prerogative of the crown was perhaps at its greatest height, and the opinion of the nine judges does not appear to have gained the acquiescence of more recent lawyers." But, as we have seen, this early claim and doc. trine was overthrown by statute, which brushed away all doubt as to what constituted a royal mine, by which statute it was enacted that no mines of copper, tin, iron or lead should be looked upon as royal mines, notwithstanding gold or silver might be extracted from them in quantity.3 Thus we see that from that time, at least, only those mines. 1 Bainb. Mines, 1 Am. (from 3d London ed.), ch. 2, sec. 3, pp. 24–27, citing Queen v. Earl of Northumberland, Plowd. 336; 2 Coke, Inst. 577-78. 2 Ante, § 7. 31 Wm. & Mary, ch. 30; 5 id., ch. 6; Collier Mines, p. 2; B. & W. Lead. Cases, p. 83. are to be considered as royal which contain gold and silver, or either one alone.1 § 9. The supposed origin of the right-Royal prerogative-Coinage.- English writers and English courts are hardly agreed as to the reason for the royal right asserted to mines; the reasons given being, variously, in virtue of prerogative, the king's right of coinage, and the excellence of the thing. It was considered so closely allied to or connected with the royal prerogative, at least by early writers and in early cases, that it was thought that though the king grant lands in which mines are, and all mines in them, yet royal mines would not pass by the grant. This prerogative is said to have originated, as above observed, in the king's right of coinage, in order to supply him with materials. But the right of coinage in the earlier periods of European history was not always exercised by the crown, and the same reason might apply to other metals, such as copper and tin." The reason assigned by writers who place this right upon the "excellence of the thing" is the puerile apology of the sycophant, and would scarcely be made by an English judge or writer of the twentieth century. But since the royal prerogative in England, under the early common law, was an arbitrary power to do good and not evil, and since it was a fiction of the law that the king could do no wrong, it would seem that the act of seeking the further 1 Collier, Mines, pp. 2-3; Lindl. Mines, p. 2; 1 Bl. Com. 294. 21 Bl. Com. 294; Collier, Mines, p. 1; 2 Co. Inst. 577; Bainb. Mines, p. 24; McSwinney, Mines, p. 26; Rockw. Span. and Mex. Law, p. 514. 31 Bl. Com. 294; 2 Co. Inst. 577. 4 Plowd. 31, 310. See also Pettus, Fodinæ Regales; Collier, Mines, p. 1; Queen v. Northumberland, Plowd. 336. |