ments of the one by its silence and acquiescence and of the other by force of all the beneficial legislation it was able to enact to protect its licensee, and as such had the right to resort to any remedy either government could maintain against a wrong-doer. It was immaterial that the terms of these licenses were neither express, certain nor capable of clear definition; they existed nevertheless, and created equitable circumstances recognized as binding upon the consciences of both governments; and it must be said to the everlasting praise of the courts of California intrusted with the protection of these rights and the administration of justice, that they went the full length authorized by the elastic principles of the common law and seldom erred except on the side of equity and justice. § 91. Recognized by the supreme court of the United States. It is thus apparent that there was at least a silent recognition on the part of the United States of the miners' rights secured by possession. But there was even more than that: there was the positive declaration of judicial knowledge by the highest court in the land, and a recognition of these possessory rights, and likewise of the binding force of the local rules, the common law of mining, in a comprehensive opinion, where occurs the following: "We know, also, that the territorial legislature has recognized by statute the validity and binding force of the rules, regulations and customs of the mining districts. . . . And we cannot shut our eyes to the public history which informs us that under this legislation, and not only without interference by the national government but under its implied sanction, vast mining interests have grown up, employing many millions of capital and contributing largely to the prosperity and improvement of the whole country."2 True, a statute of Nevada was under consideration in this case, but the prin 1 Merced M. Co. v. Fremont, 7 18 L. ed., p. 49, citing the Laws of Cal. 317. Nevada Ter., p. 16, § 40, and p. 21, 2Sparrow v. Strong, 2 Wall. 97, §§ 74-77. ciple is the same. "A condition and not a theory" confronted the country and the supreme court was equal to the occasion. Ours is a growing country, and it is not impossible that these precise questions may again engage the attention of the courts. They therefore possess a double value here as furnishing a precedent in such cases and as reflecting the history of this formative period, and the bearing thereof as an elementary constituent of and upon the present law. § 92. First recognition of miners' possessory rights and miners' rules by federal legislation.-Twice did the thirty-ninth congress, by the passage of laws, one commonly called the Homestead Act,' and the other an act granting certain lands to the state of Nevada,2 re-affirm its policy and the policy of the government theretofore expressed, of reserving the mineral lands from sale. But its predecessor, the thirty-eighth congress, recognized, by the first legislative expression, the possessory rights of the miners upon the public domain, in an act providing for a district and circuit court for the district of Nevada. This is the text of the provision: "That no possessory action between individuals in any of the courts for the recovery of a mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land on which such mines lie is in the United States, but each case shall be adjudged by the law of possession." This section was continued in force in the Revised Statutes of the United States, and was the first real recognition of the miners' rights. The thirty-ninth congress, in an act extending the boundaries of the state of Nevada, made a further recognition of the miners' rights by the following provision: “That all possessory rights acquired by citizens of the United States 1 Homestead Act of June 21, 1866 (14 Stat. at L., pp. 66, 67). 2 Act concerning lands granted to state of Nevada, July 4, 1866 (14 Stat. at L., pp. 85, 86). 3 Act of Feb. 27, 1865 (13 Stat. at L., p. 440). 4 R. S. U. S., sec. 910. to mining claims, discovered, located and originally recorded in compliance with the rules and regulations adopted by miners in the Pah-Ranagat and other mining districts in the territory incorporated by the provisions of this act into the state of Nevada, shall remain as valid, subsisting mining claims; but nothing herein contained shall be so construed as granting a title in fee to any mineral lands held by possessory titles in the mining states and territories." 1 $93. The evolution of governmental policy-Further recognition of local rules by statute. It is apparent from the foregoing that while the rules essential to the acquisi tion of mineral lands and the manner of holding possession and title thereto as they existed in Spain and Mexico were substantially preserved in the miners' rules and regulations enforced in California prior to the statute, the theory of the relationship of the general government and of the controlling government of whatever name towards the mines and the mineral lands underwent a radical change. The observations of Mr. Dallas, in his notes to Bainbridge on Mines, succinctly states the salient features of this transition, and are therefore reproduced: "The government of Mexico succeeded that of Spain as the sovereign of the public lands in California, and the United States in turn succeeded Mexico. Whether or not the property in the mines of gold and silver was incident to the ownership of the soil or to the right of sovereignty became a question of considerable importance after the cession of the land containing them to the United States; but, after such discussion, it seems now to be settled that to the owner of the soil, whether the government or a private individual, the minerals belong as a part of the land, and not to the government as an incident of sovereignty."2 1Act concerning boundaries of state of Nevada, May 5, 1866 (14 Stat. at L., p. 43). 2 Dallas' Notes to Bainb. Mines (1st Am. ed.), p. 38. See also Moore v. Smaw, and Fremont v. Flower, 17 Cal. 199; Ah Hee v. Crippen, 19 Cal. 491; Boggs v. Merced M. Co., 14 Cal. 279; s. c., Mining Co. v. Boggs, 3 Wall. 304; United States v. Castillero, 2 Black, 371; United States v. Parrott, 1 McAll. 271, 27 Fed. Cas. We have already noticed the views of the courts, both federal and state, as to the relationship borne by the occupants of mineral lands to the true title and to the national government. They had a well-recognized right, which the courts felt bound to protect and which the legislatures recognized. And in furtherance of this view, the national government, by the law of 1866, recognized the local rules as of binding and essential force in the acquisition of title.1 94. Summary.- It will thus be seen that the local rules, regulations and customs of the miners not only furnished the most essential elements entering into the mining laws of 1866 and 1872, but over and beyond that they had become so firmly engrafted upon the system of the times that it became essential to continue them in force, and they were continued by statute and the recognition of the courts, and may be now characterized as the common law of mining within the public land states of the Union. It is quite clear that out of those rules and the system of which they formed a part has been evolved much that is valuable in the mining law of to-day, and which we shall have occasion to refer to from time to time in other portions of this work. No. 15,998; Fremont v. United 2 King v. Edwards, 1 Mont. 235, 4 M. R. 480; Morton v. Solambo C. M. Co., 26 Cal. 527; Jennison v. Kirk, 1 Act of July 26, 1866, § 1 (14 Stat. 98 U. S. 453. at L., p. 251). CHAPTER V. THE ENACTMENT OF THE STATUTE, INCLUDING CIRCUMSTANCES LEADING THERETO. $97. Introductory - Historical matter. 98. How the law was passed—A summary by Mr. Yale. 99. Same subject — Other historical matters - Substitutions and fail ures. 100. How the name was changed. 101. Summary of the statute-Its general purposes. 102. Criticisms by bench and bar A judicial summary Insuffi ciency of the statute of 1866. 103. Further commentaries on the act of 1866. 104. The placer mining act of 1870. 105. The statute of 1872 - The general system introduced thereby. 106. The general purposes and features of the law of 1872. 107. Radical differences between the law of 1866 and 1872 - The lodeThe surface rights. § 97. Introductory-Historical matter.-In the foregoing sections we have discussed many of the elements and principles which were given life and force by statutory recognition in the law of 1866. Naturally it was a subject concerning which there was a division of opinion in the minds of the public men of that day. Some favored a system of leasing at high rate of rent; others favored a partial disposition in the way of a concession with a provision of royalty perpetual running to the government. There were some, too, without definite plans, who looked upon the mining property as a means of paying the national debt. Other imperfect plans, coming from at least two sources, were put forth, clamoring for recognition as a means of settling the much-vexed question. On the one hand, were those whose cupidity was excited by this vast aggregation of hidden wealth, who, as above stated, saw in it a means of bettering |