CHAPTER V.

OF RESERVATIONS EXPRESSED IN PATENTS.

$755. Preliminary and review.

756. Miscellaneous reservations in patents originating in custom. 757. The constitutional aspect of the question.

758. Water rights and other easements-Local rules.

759. Limitations in patents of lode claims as to veins discovered in a tunnel.

760. Right of adjoining proprietor to follow the vein on its downward

course.

761. Summary.

§ 755. Preliminary and review.

We have already noticed at considerable length that there are certain lands upon which a mining location may not be made, and among them are lands upon which the government had authoritatively impressed a reservation. These reservations, of course, are either executive by the president as commanderin-chief of the army and navy, or they are legislative, so to speak; that is to say, they are made by or under the statute. In the one case they may be temporary, and in the other they must be permanent. Both take effect upon the exercise of the law over them.

It is equally manifest that the reservations themselves proceed from the law and the authority given thereby; whence it follows that the officers issuing patents are but the servants of the law, and, as we have seen,' are restricted and controlled in their operations, and as to the language they shall use in the patent, by the letter and the terms of the law itself. No other exceptions, terms or conditions can be inserted in the patent than those authorized by the law, 2 Ante, § 666.

1 See ante, Part IV, ch. VI, §§ 210-212.

and, if so inserted, the patent is, as to that part, absolutely void.1

756. Miscellaneous reservations in patents originating in custom.- By statute certain easements and rights of way made necessary by customs of mining districts are required to be inserted in the patent. This is a recognition of such customs and the consequent easement, and is usually expressed as follows: "That in the absence of necessary legislation by congress, the legislature of (the particular state) may provide rules for working the mining claim or premises hereby granted, involving easements, drainage, and other necessary means to its complete development."

It will be noticed that this language is scarcely as broad as the statute, which reads as follows: "As a condition of sale, in the absence of necessary legislation by congress, the local legislature of any state or territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and these conditions shall be fully expressed in the patents." 2

Notwithstanding some courts affect to believe that it is beyond the power of congress to delegate any power to a state legislature, such courts are met by this suggestion: What is to prevent congress from itself exercising, or delegating to another the exercise of, a particular power over the subject of which it has plenary control? Besides, it is not necessary to call it a delegation of power. We think there can be no question that this power is well reserved and can be exercised upon the lines granted. These pro

1 Cowell v. Lammers, 10 Sawy. 254, 21 Fed. Rep. 200; Deffeback v. Hawke, 115 U. S. 402; AmadorMedean G. M. Co. v. South Spring Hill G. M. Co., 36 Fed. Rep. 668, 670; Butte City Smoke-house Lode Cases, 6 Mont. 397, 12 Pac. Rep. 858; Doe

v. Waterloo M. Co., 54 Fed. Rep. 935; post, $$ 866, 867; Ledbetter v. Borland (Ala., 1901), 29 S. Rep. 579, and cases.

214 Stat. at L., p. 252; R. S. U. S., § 2338.

visions in patents are therefore of limitations upon the grant, and the interests thus reserved are carved out of it.' Of course they are not self-executing reservations; they simply recognize as valid such easements as local law may regularly impose or authorize.2

$757. The constitutional aspect of the question.— In what we have said in the last preceding section we are not unmindful of the limitations placed upon congress in respect of matters of purely state concern, and for that reason congress may not interfere with the subjects over which the right of eminent domain may be exercised within a sovereign state. In the view we take of it, congress has not done that, but has simply said that no matter what other property shall be liable to easements, and to the exercise of eminent domain, within the state, this property shall be sold by the proprietor who owns it under the law, subject to such special easements, denominated as rights of way for ditches, for drainage and for other purposes, as are sanctioned and made necessary by a local custom and usage, and that these limitations shall be and are impressed upon these grants.

§ 758. Water rights and other easements-Local rules. It would seem that the same statute and the principles involved therein are broad enough and sufficiently complete in their terms to impress a similar easement for water ditches or the like, proceeding from the basis of miners' rules and the local customs of the district. It is true the patent only in terms recognizes existing water rights and the rights to ditches and reservoirs. But there can be no

1See Jennison v. Kirk, 98 U. S. 453; Broder v. Natoma Water Co., 101 U. S. 274; Jacob v. Day, 111 U. S. 571, 44 Pac. Rep. 243; Jacob v. Lorenz, 98 Cal. 332, 33 Pac. Rep.

119; Lorenz v. Waldron, 96 Cal. 243, 31 Pac. Rep. 54; Rockwell v.

Graham, 9 Colo. 36, 10 Pac. Rep. 284; Murray v. Butte City, 7 Mont. 61, 14 Pac. Rep. 656; Barnes v. Sabron, 10 Nev. 217; Hobart v. Ford, 6 id. 77.

2 Jennison v. Kirk, supra

doubt that that was intended to cover and include all reasonable rights of way in connection therewith. The provision usually inserted is the following: "That the premises hereby conveyed shall be held subject to any vested and accrued water rights for mining, agricultural, manufacturing or other purposes, and rights to ditches and reservoirs in connection with such water rights as may be recognized and acknowledged by the local laws, customs and decisions of the court."

There can he no doubt that this would include ditches for drainage as well as those necessary to convey water for hydraulic mining. This statute recognized existing conditions and protected existing rights. It not only looked to the future but provided for the past. Whence it follows that the existence of the right, whether it grew up with the beginning of mining on the Pacific coast, or was inaugurated subsequent to the passage of the law, is equally protected.2

§ 759. Limitations in patents of lode claims as to veins discovered in a tunnel. The discussion in a previous section as to the position of the supreme court upon the effect. and extent of a tunnel reservation makes some further observations necessary at this time respecting a vein apexing in patented ground and not known to exist at the date of the tunnel location. If, as the supreme court say, no rights can be lost by a failure to adverse the application for patent with the inchoate tunnel right, it must necessarily follow that the patentee, notwithstanding the language of his grant, secures no title to any vein discovered in such tunnel within three thousand feet from the mouth or "face" thereof, and not known to exist at the date of the location of the tunnel, provided only that he has prosecuted work

114 Stat. at L, p. 352; R. S. U. S., 217. See also Broder v. Natoma S$ 2338, 2339. Water Co., 101 U. S. 274; Van Sickle v. Haines, 7 Nev. 249.

2 Jacob v. Lorenz, 98 Cal. 332, 33 Pac. Rep. 119; Hobart v. Ford, 6 Nev. 77; Barnes v. Sabron, 10 Nev.

3 Ante, § 297 et seq.

with reasonable diligence. If, however, the patent is granted before the tunnel is located, of course its rights have fully attached, and are relieved of, or rather not subject to, any such condition. The far-reaching effect of this decision' cannot be overestimated. Either it will have to be modified or the patent is no longer an evidence of title upon which the holder may rest for peace and security.

$760. Right of adjoining proprietor to follow the vein on its downward course.- By far the most sweeping reservation inserted in all the patents to mining claims, and likewise all other patents issued at the present time in the vicinity of mineral land, whether they be agricultural or town-site patents, is the one which protects the miner in his right to follow the vein on its downward course or dip. The full consideration of this question is postponed to the next succeeding part of this work, but it is proper to say in passing that too much stress has been laid in the protection of this right, or rather in attempts to defeat it, upon the common-law principle that he who owns the surface owns all beneath it. That principle of the law still exists and no attempt will be made to ignore it, but this statute carves an exception or reservation out of the patent and bestows it upon the owner of the apex; and it also reserves the same right out of the estate of the person owning the apex with respect to any other adjoining or neighboring proprietor, so that it takes nothing without bestowing an equivalent in return. It is not altogether in derogation of the common law, it is rather in the nature of a remedial statute, partaking at the same time of some of the elements of a declaratory one. It is the statute upon the subject and should be taken by its four corners and construed.

§ 761. Summary.- Briefly summarized, then, the reservations which may be expressed in a patent are those which the law authorizes and no more. As to the easements au

1 Enterprise M. Co. v. Rico-Aspen M. Co., 167 U. S. 108.