CHAPTER XVIII

PROSPECTING AREAS

These are obtainable in a large number of mining countries. The theory upon which they are based is that if an individual or company with means wishes to conduct exploring operations upon a large and scientific scale, to locate suspected mineral of which there are no direct indications on the surface, or to open up a deposit already discovered but neglected, with the view of ascertaining if it can be made payable, the opportunity to do so should be encouraged by the temporary exclusive grant of a good sized tract of land, with the right, within a reasonable time, of selecting a smaller tract from within it for permanent operations.

There would seem to be no reasonable objections to the plan in cases where there are no certain indications on the surface of mineral values below, or where the ground had already been looked over by the individual prospector and recognized as too unpromising for his method of operation. Coal, oil, gas and many other desirable mineral substances may often be inferred with great certainty, for geological reasons, under areas completely free from all surface indications of them, and wholly beyond the reach of the pioneer mineral explorer. The same is occasionally true in cases of metalliferous deposits. Many instances also are known where outcropping veins and segregations, too low in value or too scattered in disposition to attract the prospector or induce preliminary exploration by him, have been successfully developed into mines of great value by means of well directed capital.

But experience in those countries where such areas are obtainable shows that unless much care is exercised in granting them

unfortunate results may easily follow. Unless the grant is clearly recognized as a privilege which should be liberally paid for by the recipient, the individual explorer who has not the means to take advantage of it is liable to be discouraged in his line of activity, particularly if the area reserved from his investigation is large, or has not previously been accessible to him. Of course, in lands where the prospector has never existed this objection has no force, but where free prospecting is allowed it has much weight. It cannot be too strongly emphasized that everywhere, either at the beginning of the mining industry, or at some time later when new discoveries are needed to keep it alive, the pioneer explorer is an absolute necessity, and should be given his opportunity before much ground is locked up in State, National, or private reserves of any kind.

In countries where prospecting licenses are required, and where the business of mining is suffering because of the lack of new discoveries, instead of trying to stimulate exploration by rewards of money, or of large claims, or other special privileges, all of which devices have so far proved futile, it would be an interesting experiment to throw open for a year or longer a tract of the public domain of good size as an absolutely free public prospecting area, under conditions and rules that would give the explorers such right to acquire property as has proved successful in attracting their services elsewhere. If, for instance, such tracts were widely advertised as to be thrown open for one or more years, it seems probable that prospectors would pour into them and give them such a preliminary surface examination as could be secured in no other way. That is the kind of prospecting area that would be of the largest public benefit, because it would probably result in a number of discoveries, several of which might later become the foundations of extended development by capital. A prospecting area for the prospector himself would be simply a return to the condition of the "early days" in every part of the world where notable mineral discoveries have been made.

CHAPTER XIX

DEFECTS AND DEFICIENCIES OF THE AMERICAN LAW

In the opinion of the author the two most important deficiencies of the American law are, first, that it applies only to a part of the Union and, second, that it makes provisions for the discovery and operation of mines on only the unoccupied public domain of the nation.

The first could probably be cured without much difficulty except in the case of the State of Texas, but as it now stands it would have small application east of the Mississippi Valley where but little public land still remains.

To make its provisions apply on privately owned and State lands will call for a reconsideration of our whole doctrine of land tenure. What can be and has been accomplished in autocratic European countries as well as in some of those under liberal parliamentary rule along this line, will be effected with considerable difficulty in a pure democracy. Yet the time must come when the nation, having regard for the probably enormous undiscovered metallic wealth in the older states of the Union, will have to face the question and solve it. The experience in the British Isles, from which country we have inherited our ideas of the nature of real property, and where all attempts to bring about modifications of the doctrine held have so far failed, in spite of the fact that everywhere else in Europe changes have been effected, is an indication of how difficult it will be for us to alter our views even now.

Meantime it should not be so hard to take steps towards that end in those states where the Federal law now applies, and it is full time to move in that direction. Already vast areas in the far West have passed out of the control of the people in the form

of grants to railroad corporations, ostensibly of land suitable only for surface occupation and usage in agriculture, grazing, forestry, etc., and also granted with a special reservation of all mineral rights except those of coal and iron; but which the grantees or their assigns are now holding under the same theory by which real estate is held in the older parts of the country, namely, that ownership of the surface carries with it ownership of everything vertically underneath it.

It will be impossible to discuss here the legal aspects of this question, but simply to call attention to the fact that in all parts of the civilized world except in the British Isles and in the United States this doctrine has been virtually abandoned, and in its place has been substituted the theory that the unexplored subsoil, being "res nullus" belongs either to the national sovereign in the case of autocracies, or to the Nation in countries under parliamentary governments. This will be made clear by examining the digests in this volume. Further it will be interesting to note that everywhere, except in the United States and four of the Canadian provinces, the sovereign or the nation as represented in its legislature, refuses to give fee simple title to the underground. Instead, the right of possession and usage is offered under some form of lease, either for a month, a year, or a term of years, or in perpetuity, in all cases dependent on some form of monthly or annual rental, default in the payment of which automatically causes forfeiture of the right.

In the matter of placer claims new legislation is much needed. As the law now stands, if no veins or other forms of mineral deposits in rock in place have been discovered within its lines by the time a patent is granted, the deed from the government passes fee simple title to all that may hereafter be found. This is obviously an unwise provision, having the effect of withdrawing the ground from under-surface exploration except by its owner, while the grantee acquires more than the locator asked for or expected to get. The Land Office should be authorized in such cases to issue a patent in which undersoil minerals are expressly reserved. On the other hand, when that form of claim is used

to acquire beds of coal, pools of oil, reservoirs of gas, or deposits of other substances supposed to exist because of surrounding geological conditions, the fee simple title to the same should ultimately pass to the individual or corporation that had the energy and enterprise to explore and discover. The author is not in favor of substituting leases in such cases, no matter how favorable their terms might be. It is true that this is the solution of the problem adopted almost everywhere else in such cases, but that does not necessarily prove it to be the best one. The general effects of leasehold titles on the individual and the community should be taken into consideration. This has been pointed out in Chapter XVI, and nothing further need be said here on the point.

Many of the most glaring deficiencies of the American law have been corrected by the various State laws, and some of the difficult situations that have arisen under the doctrine of the apex have been overcome by the consent of the community where they originated to ignore the letter of the law. This is one of the most interesting developments in the evolution of democracy, and has a generally true bearing on the science of jurisprudence. Just as, in the matter of frauds, it is impossible to enumerate all that may be invented or attempted, hence making it very difficult to exactly define the nature of the offense, or prescribe adequately in advance the punishment that should always follow; so, in the case of laws framed to govern operations upon the infinitely varying forms in which ore deposits have been disposed by Nature in the crust of the globe, there will be found, from time to time, conditions that have not been contemplated in the law, no matter what its class may be, and that are beyond its powers to solve with perfect justice. Because this must inevitably be so, it does not follow that a doctrine conferring equity in the vast majority of cases should be set aside because it fails completely in a small number of them, and then must be decided by the commonsense of the people acting outside of the letter of the law.

The costs connected with the process of patenting mining