which 102,000 had been located that year. This would indicate a large number of new claims filed annually and presumably a fairly heavy abandonment annually since the total area of live locations is only about five times the area located in 1937.

In order to understand this situation it should be realized that many of the streams in California, including the areas within national forests, carry small values of gold in the gravels. Each spring after the high water has receded, small operators, known as snipers, pan gold along some of these streams. The earnings of this sort of operation are very small, averaging less than $2 per day per mine during the 1930's and for a season of 40 to 60 days. Large scale dredger operations for gold are mostly in areas at much lower elevations than the national forests and the lode mining developments are mostly outside of national forest

areas.

This study includes a detailed examination of the use made of 419 mineral patents in the national forests of California. Of these only slightly more than half made any mining use after patent. On some of these, mining was not the chief use and on only a very few were the mining operations financially profitable. Nearly one-third of the claims were unused for any purpose after patented. In a considerable number of cases, however, the claims were used for a wide variety of purposes entirely unrelated to mining.

The report represents a great deal of factual information, including a large number of excellent photographs how mining claims are used as a devise to get land for other purposes. A major purpose for which mining claims are used is to obtain control of land within national forests for recreational purposes. Placer claims located solidly along 15 miles of one stream resulted in no mineral use but in a splendid exclusive fishing club. Other mining claims were used to get sites for summer homes. Another major use of the mining claims was to obtain control of other resources, notably timber, but including also lumberyards, small farms, and the like. In still other cases, mining claims were filed as a means of extracting payment from the State, utility companies or others who required rights-of-way over these lands. In some instances mining-claim locators followed parties surveying rights-of-ways for State highways and located claims along the highway route in order to have some time to sell to the State.

The report concludes that the extent of the mining claim locations on the choicer recreational spots within the national forests of California has been so great as to seriously jeopardize the multiple use administration of the national forests and particularly to jeopardize the recreational use of the national forests. The report concludes also by pointing out that the mining laws themselves are threatened by such willful misuse of them because the persons damaged thereby may rebel and force drastic changes upon the mining industry.

REQUIREMENTS OF MINING Laws for Patenting of Lode anD PLACER CLAIMS, AND SUGGESTIONS FOR SIMPLIFICATION OF THE PATENTING PROCESS

THE DIFFICULTIES INVOLVED IN OBTAINING A MINERAL PATENT

One who seeks to obtain a patent for mineral lands under the present mining laws must run the gauntlet of a myriad of technical requirements which are either spelled out in the law or have been construed by the courts and the Department of the Interior to be implied in the law. These will be considered in order.

THE MINERAL SURVEY

All lode claims, all placer claims on unsurveyed land and all placer claims on surveyed land which do not conform to the subdivisions of the public-land survey must be surveyed at the expense of the claim owner before he can apply for a patent. The survey cannot be made by any local surveyor, however competent, but must be made by one who has been commissioned by the United States as a mineral surveyor. Since he must be bonded and since the survey of mining claims is seldom a full-time job in any locality his rates are necessarily high. In addition, all adjoining and all conflicting claims, whether excluded or not, must be shown. Often a group of claims are applied for and the adjoining and conflicting claims number from 10 to more than 50. All of these must be surveyed to the extent necessary to establish their exact location with respect to the claims applied for. These surveys are usually in rough country and several days are consumed in the execution of many of them. The surveyor must also measure and describe all workings on the claims and certify to their value and application to particular claims. Group work must be properly allocated.

After the survey is made the United States district cadastral engineer makes a plat showing all of the lines of the claim to be patented and of the adjacent and conflicting claims. The claim owner must pay for this work.

FILING THE APPLICATION

After obtaining his plat the claim owner must prepare his application which must contain matter reasonably simple in terms to one familiar with the mining law but too involved for the ordinary layman to compile. Probably no application not prepared by a lawyer or one experienced in such matters was ever found to be complete in all respects. Even when prepared by lawyers inexperienced in mining matters applications often have to be supplemented.

The application must show a proper title which involves statements as to the location, that a valid discovery was made, and that the land is claimed for mining purposes, how title passed to the applicant, the amount and character of the improvements made on the claim, what areas embraced in conflicting claims are excluded from the application because the applicant recognizes superior rights in others and such other facts as are material to his claim of right of possession of the land. With the application he must file proof of his citizenship, a statement by two persons that they posted a copy of the application and a copy of the plat on the claim, giving the date, a copy of the plat and field notes, either an abstract of title or competent evidence or possessory title by adverse possession, an agreement of the publisher that notice of the application will be published without expense to the United States, and a copy of the notice for publication which must detail the description of the land as surveyed by direction and distance of all lines and show all exclusions. Most of these papers must be executed in the land district and if the owner isn't there he must give a power of attorney to someone who is. A filing fee must be paid.

GIVING NOTICE OF THE APPLICATION

The next step is to give public notice of the filing of the application. This consists of three separate acts: (1) the posting of the plat and notice on the claim, see above; (2) publication in a newspaper circulated in the vicinity of the land; and (3) posting of the notice in the district land office. Each of these forms of notice must be given concurrently for a period of 60 days. If one of them begins after or ends before the period covered by the others the whole thing must be done over.

FINAL PROCEEDINGS

After notice is completed the proof as to each must be made and filed, a supplemental abstract of title to include the date the application was filed must be filed, proof must be furnished as to the amount of fees and charges paid for all required services used in the proceeding, and the purchase price of the land must be paid. In addition, an application to purchase must be filed.

If an adverse claim should be filed during the period of publication all proceedings in the land office will be suspended until the issues as to priority of claim are decided by a proper court. All other questions would still have to be decided in the land office.

Although placer claims for surveyed legal subdivisions do not have to be surveyed, proof must be made by the applicant of the amount and value of the work and improvements and that either there are no known lodes within the limits of the claim or the lode is excluded, or is covered as such by the application

THE REMEDY

Since patent proceedings are dictated by the law there is a little that can be done to lighten the burden by way of amendment of the regulations. Even that little would involve a different construction of the law than that which has prevailed for many years, in some cases almost back to 1872. The only real substantial way to remove the many obstacles to the speedy issuance of patents is to revise the existing mining law.

Amendment of the law in the following particulars would remove the major causes of delay:

1. Abolish the distinction between lodes and placers and require all claims to be located in terms of the public-land survey, if surveyed, and conformable to such survey, if unsurveyed. This would eliminate the need for mineral surveys in most cases and simplify them in the others. Such surveys should be made by

the United States cadastral engineers since the amount of work available would not attract competent private surveyors to apply in sufficient number for positions as mineral surveyors. The size of claims should be substantially larger than the present maximum for lode claims to enable a lode locator to acquire more of the lode than would be possible within the present 600-foot width.

2. Reduce the period for giving notice from 60 days to 4 weeks to conform to requirements in most other land-disposal laws. This would halve the cost which would be further reduced by simplifying and shortening the description of the land. The latter would also simplify and expedite adjudication and patent writing.

3. Require posting of notice of application on the claim only where a special survey is necessary. This would eliminate the necessity of giving a second notice because the posted notice was not maintained on the claim for the full period of publication as often happens under present procedure.

4. Eliminate the requirement for filing both an application for patent to the claim and an application to purchase the land. Only the former is necessary. 5. Require the filing of an abstract of title only with proof of publication. This would eliminate the need for filing a supplemental abstract to include the day on which application was filed as now required.

6. The law should specifically provide that the United States shall not be liable for the cost of publishing the notice. This would save the applicant from having to make a special contract with the newspaper even before an application for patent is filed which involves considerable correspondence between him, the district land office and the newspaper or the expense of several trips.

7. The requirement that adverse mining claims to the land should be decided by a court, should be repealed and this question along with those involving the mineral character of the land, the validity of the discovery, etc., should be decided in the land office for several reasons, viz:

(a) There is no need for two separate offices passing piecemeal on questions so closely related as right of possession and validity of claim.

(b) The land office has always determined the rights of conflicting claimants under other public-land laws and even does so as between mineral claimants and all other public-land claimants.

(c) It is obvious that there would be less delay if everything could be done in one instead of two independent agencies.

(d) Land need not be tied up for an additional 2 to 5 years as in the normal case, or from 5 to 70 years as in a substantial number of cases.

PROBLEMS ON EXTRALATERAL RIGHTS UNDER MINING LAWS

Section 2322, Revised Statutes (30 U. S. C. sec. 26), gives the locator of a lode mining claim the right to follow his lode from the apex in his claim on its downward course beyond the side lines of his claim and between the theoretical extension of the parallel end lines to infinity, but denies him the right to use the surface adjacent to his claims.

Undoubtedly, this provision has resulted in more litigation than any other provision of the law.

The orginal mining law of 1866, recognized the custom that had grown up of locations being made of segments of a vein without any limiting side lines and without requiring the end lines to be parallel. The Comstock lode in Nevada, then and perhaps now the most famous lode was appropriated in that fashion and Senator Stewart of Nevada was one of the most influential Members of Congress in procuring the enactment of the law. The result was incongruous and patent was often sought to large areas of adjacent land with little relation to its need for mining the appropriated segment of the vein.

The act of 1872 placed a limit of 1,500 by 600 feet on the area that could be acquired in one lode claim and limited rights on the vein as above indicated. It would be impractical to attempt, in a short paper, to discuss the many types of legal questions that the courts have had to decide because of this short provision. A mere listing of the reported cases would fill several pages and no doubt there have been many more where the litigants rested on the decisions of the court of first resort. Hence, only the most general types of matters will be referred to. Almost without exception, the decisions of the courts failed to agree on the answers to the problems and there was in consequence long periods during which the law on particular problems was unsettled. Often, after a period of years a particular point in issue reached the Supreme Court

of the United States where an authoritative rule was laid down. Even then, however, the rule was often based on the facts peculiar to the case in issue, or was subject to exceptions.

Some of the questions which resulted in extended litigation involved the following:

1. (a) What is the "apex" of a vein? Some of the answers were: (a) a point from which the vein has both a dip and a strike; (b) the juncture of two dipping limbs of a fissure vein; and (c) an anticlined crest. A mere swell which reaches the surface is not an apex.

(b) Effect of the location of the apex within the claim.

2. Effect of agricultural entries on the right.

3. Whether a miner may follow his vein on both the dip and strike beyond the lines of his claim or only on the dip. In several cases, a lode extended into another claim, bent and came back to the claim from which it started thus raising controversy over the respective rights. Other cases involved veins which changed course outside the claim from downward to horizontal or even upward. 4. At what point on the vein is its course determined for the purpose of ascerting the extent of an extralateral right?

5. Effect of the length of a vein along the length of a claim.

6. Right as to secondary veins appearing in the claim.

7. Rights as to a vein which crosses a claim from side to side. Here the side lines are treated as end lines.

8. One that croses one end and one side line.

9. The effect of intersecting claims covering portions of the same lode.

10. Effect on right of converging and lines.

11. Interlacing veins apexing on different claims. This one item has resulted in several pitched battles underground, one of which occurred on the Comstock lode.

12. Two claims bisecting the apex of the same vein.

13. The effect of laying the lines of a junior location upon or across an older claim.

14. Conflicting rights of the owners of adjacent claims, where the respective end lines lie in various relations to each other.

Other questions have arisen but those cited afford an insight into the complexity of the problems which arise. If it were possible to trace the apex of every vein in a straight line for a distance of 1,500 feet so that locations could be made in such manner that the vein would be at right angles from the end line many of these problems would not exist. But the ideal vein is seldom found. Usually only a small part of it is exposed and veins seldom run in a straight line. The effort to acquire a full claim along the apex, therefore,

is seldom realized.

There, are, no doubt, numerous cases where no problem has arisen because of conflicting extralateral right claims. There are instances of lode veins and others where the vein structure is fairly regular and reasonably well defined at the surface, but it is probably safe to say that there are few, if any, major mining areas which have not had their share of extralateral rights litigation.. If there are, their mining population must have been of a singularly even temper, strongly imbued with a "give and take" disposition.

It is probable that the 1866 act if still in force would have been less productive of law suits than the more restrictive 1872 act although it has contributed somewhat heavily to suits. Peculiarly there were few suits prior to 1866. Whether this was due to a system of handling such matters by the miners of the mining districts themselves, by reason of the fact that lode mining was comparatively new or because disputes were more often settled at gun point is not known. Perhaps each played its part. Then, too, courts were few and far between and good sense may have brought about compromises to avoid the law's delays and

expense.

The Spanish system of mining was better adapted to the undisturbed working of veins. That system did not provide for extralateral rights but instead gave the miner greater or less width according to the dip of the vein. Another possible remedy would abolish extralateral rights, make no distinction between lodes and placers for location purpose, and increase the size of claims to 40 acres. This would enable most locators to obtain adequate deposits for a working mine. But if confined to established 40-acre subdivisions there would no doubt be cases where the only exposure would occur near the subdivisional line and if the dip was toward the line he would have only a bit of the vein for his pains. He could, of course, by drilling on the adjacent 40), make another discovery and locate a

second claim, but he might find another prospector ahead of him. Much of this danger could be removed by permitting locations to be made of aliquot parts of 40-acre subdivisions. Even with these defects this would appear to be better than either the present or the old Spanish system since the difficulty of tracing veins as to either would have a greater effect on the fortunes of the miner.

DRAFT BILL TO REVISE MINING LAWS

(This draft is included for purposes of discussion only. It was prepared in the Bureau of Land Management, and includes some of the suggestions made in this statement. It is not a final draft and the Bureau of Land Management reserves the right to adopt changes in it.)

1. This draft bill permits the location of geological mining claims. See title II. A claim of not more than 640 acres, or several contiguous claims not exceeding 2,560 acres, may be filed and held, without surface discovery, for 2 years and renewed, if there has been a discovery on part of the area, for 1 year longer. At the end of this period a mining claim based on a valid discovery shall be filed or the claim relinquished. Relinquished claims may not be relocated by the same parties for 3 years. Claims must conform to legal subdivisions if the land is surveyed, or lie north and south, east and west if in unsurveyed areas. Claims must be filed in the appropriate district land office. Claims may be located and utilized only for the purpose of mineral development.

2. This draft bill contains several provisions to clear the title to presumed mineral areas. See title III. Location notices and statements of performance assessment work on all claims shall be filed in district land offices. Failure to file statements shall constitute relinquishment of the claim and make the land available for other use. Claims relinquished cannot be refiled by the same persons within 3 years. The effect of title III would be to clarify the title to prospective mineral land, allowing valid claims to remain undisturbed, but opening up other areas to location and development by some one interested in actual mining development.

3. This draft bill requires active development of every claim, if they are to be held. See title I. Assessment work to a reasonable amount, comparable to the requirement of the original act at the time it was passed, is required every year. It would no longer be possible to hold unpatented mining claims without some development. If patent were not applied for within 5 years, the amount of annual assessment work would be increased.

4. This draft bill would minimize litigation over mining claims, particularly as regards new mining claims. Extralateral rights would be abolished, as would the distinction between lode and placed claims. Fractional claims of mineral lands could be purchased, without discovery or development work, and thus clear up title in many areas. By having all mining claims recorded in one place, conflicts could more readily be eliminated.

5. This draft bill would minimize interference of mining with other land uses, by giving to mining claims and patents for such claims only mineral rights and as much of the surface as needed for mining development. Mining claims would no longer be filed for essentially nonmining purposes. Bona fide mining claims would not be injured in any way; others would be largely eliminated. Other land uses could proceed with a minimum of interference from mining.

6. This draft bill includes some measures for simplifying the whole patenting process for mining claims, such as eliminating the distinction between lode and placer claims, and reducing the period of publication. Other steps for simplifying the patenting process should be included.

DISCUSSION DRAFT

(This draft is included for purposes of discussion only. It was prepared in the Bureau of Land Management, and includes some of the suggestions made in this statement. It is not a final draft, and the Bureau of Land Management reserves the right to adopt changes in it.)

A BILL To promote the development of minerals and the modernization of the United States Mining Laws

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Mining Law of 1949."