CONTENTS II. HISTORICAL TREATMENT. Vol IV, No. 6, pp. 437-452. The Origin and Development of the Extra- lateral Right in the United States... The Federal Mining Act of 1866............................................. T The Extralateral Right: Shall It HERE is no feature of the American mining law that has provoked more spirited discussion and against which a greater amount of criticism has been aimed than the extralateral right, or "law of apex," or dip right, as it is variously termed. It has become quite popular to present the arraignment of charges which can legitimately be made against the practical operation of this right and there is scarcely a meeting of importance connected with the mining industry where some one does not add to this volume of condemnation. In all this discussion, it is rare to find a word of commendation and not only are the advantages which flow from the exercise of this right ignored, but in the general demand for its abolition we find very little well considered thought given to the serious results of such action and few suggestions as to what steps should be taken to minimize the grave consequences which are bound to follow such a radical and far reaching change in our mining law. We are too prone to assume that legislation is a panacea for all defects in existing laws and not enough attention is paid to the evils. which inevitably flow from "half baked" remedial statutes. Judging from the published remarks of many who have criticized the extralateral right, the opinion seems to be quite prevalent that all that is necessary to be done to cure the ills that are inherent in the "law of apex" is for Congress to pass a statute abolishing it. It is not the purpose of this article to attempt to demonstrate that the extralateral right feature should be retained in our mining laws. It may well be that should the right be abolished, a satisfactory solution of the difficulties which must be met can *There are several bills to amend our mining laws pending before the present Congress. One of these would abolish the extralateral right without any provisions to relieve the serious consequences of such action. This discussion is prompted by this proposed revision. be reached. But this article is written in the hope that it may correct some of the misinformation which has been circulated concerning the subject and unfortunately generally accepted, and also to point out a few of the problems which must inevitably be dealt with in a satisfactory way if we are to avoid placing ourselves in a worse position than we now occupy. With this object in view, the subject will be presented in the following manner: First: From a comparative standpoint, treating of the existence of the extralateral right in the mining laws of other countries. Second: From a historical standpoint, treating of the origin, growth and development of the right in the United States. Third: From an analytical standpoint, setting forth the arguments for and against the right and the consequences which must follow its abolition. I. COMPARATIVE TREATMENT In a discussion of this character it is interesting to know whether other systems of mining law have similar features and what has been the result of their operation. It has been erroneously assumed by many that the extralateral right is a unique burden suffered by the United States alone. An examination of the laws of other countries shows that this is not a fact. Naturally we cannot expect to find in other countries an extralateral law identical in all respects with our own. It is the fundamental principle underlying this law that is vital,1 viz: the right to mine on and pursue a vein in depth beneath surface ground that is not owned or controlled by the mine operator. In other words, the right to follow the vein in depth is independent of and is not measured by surface ownership, hence it is termed the right of extralateral pursuit. It is usually described as being opposed in principle to the common law idea of ownership of land, where the owner of the surface is entitled to everything situated vertically beneath. As Judge Lindley has pointed out in his treatise on the Law of Mines2 the common law 1 "The application of the term 'extralateral' to this right is of comparatively recent origin and the right existed long prior to this designation." Lindley on Mines, 3d Ed. § 568. 2 Lindley on Mines, 3d Ed. § 568. recognized the right of severance and frequently the surface owner conveyed to another the right to mine a vein or mineral bearing strata that penetrated or lay beneath his surface. However, the extralateral right as we ordinarily conceive of it has an element that did not exist in the common law. In the exercise of the extralateral right the vein may be pursued indefinitely in depth beneath the surface of adjoining owners who have nothing to say about the exercise of this right underneath their ground and are powerless to prevent it. The right has been created by statute or custom before their surface ownership attached and the vein has been reserved and carved out of their estate. It is the statutory or customary origin of the right, giving it an indefinite sweep in depth and the fact that it is not at all dependent upon conveyance from private owners of overlying surface, nor for its measurement upon the vertical boundaries of such surface ownership that distinguishes the extralateral right from the common law severance of minerals from the surface. We have no definite information as to whether an extralateral right was exercised in ancient times. The existing record. of these ancient mining laws is meager and a great part of the mining was carried on as a sovereign venture so that the question of extralateral pursuit would seldom arise. It is only when there are adjoining private ownerships that a situation is created where the question becomes important. Under the democratic control of Athens the silver-lead mines of Mt. Laurion were leased in small adjoining areas to individuals. One might expect to find the extralateral right a feature of the Ancient Greek mining law were it not for the fact that these were flat lying contact deposits occupying horizontal beds and hence unsuited to the exercise of any dip right.* Germany and Austria. The first recorded appearance of the extralateral right, so far as the writer is aware, was in the year 1249, and is contained in a code of mining law proclaimed for the mining town of Iglau by the King of Bohemia. By its terms the discoverer of a mine "shall have by right in that which is commonly called the roof (hanging wall of vein), three and a half 3 Those interested in the subject of Ancient Mining Laws will find an excellent note at pp. 82-86 of Hoover's translation of Agricola, De Re Metallica. * See Hoover's Agricola, p. 83 footnote. Lehen (an ancient Germanic measure) and in that which is called foot (wall of vein), one Lehen, in height and depth in equal proportions." In the event of a dispute between two adjoining claimants the matter was submitted to an impartial jury of four and if necessary to determine whether a trespass was committed or not the two workings were required to be connected. Many will recognize in this the litigation work which has become such a pronounced feature of our modern extralateral cases.5 It is in the mining districts of the various states that afterwards became merged in the Germanic and Austrian Empires that the extralateral law or right to follow the vein indefinitely in depth had its earliest and most complete development. The right was founded on ancient custom and its origin is lost in the obscurity which surrounded the early beginnings of mining in those regions. It later became crystallized and confirmed in the charters and proclamations issued by the various kings and rulers of these states. There is a remarkable similarity running through these various laws in force in the different districts and while details differ they give evidence of having been impressed with the same ideas which were doubtless traceable to a common origin." The extralateral right in force in these Germanic States was complex in the extreme." There were two general classes of mining claims. The Längenfeld, sometimes called the Gestrecktes 5 The writer acknowledges his indebtedness to Mr. Herbert C. Hoover for the permission to use the foregoing information which Mr. Hoover collated from Geschichte des Bergbaues, etc., Vol. II, pp. 14-35 (1838) by Kaspar von Sternberg; Dr. J. A. Tomaschek. Das Alte Bergrecht von Iglau, pp. 3-10 (1897), and Geschichte der Böhmischen und Mährischen Bergwerke by J. T. Perthner, (Wien, 1780). In this respect these mining laws bear a striking resemblance to the miners' rules and regulations which sprang up in the Western States following the discovery of gold in 1848. They were founded on custom and as they spread through the other mining regions from their source in California they were modified in details but retained similar fundamental principles. The writer is indebted to his wife, Rachel Vrooman Colby, and to Mr. W. J. Aschenbrenner for invaluable assistance in the translation of the Germanic authorities which form the source for this presentation. Some idea of the difficulties encountered in translating the Old German works may be gained from the fact that ten different German dictionaries devoted exclusively to mining terms were consulted. The German works consulted are: Die Vermessung der Längenfelder, by von Hatzfeld, Oberbergamtsmarkscheider in Bonn, published in Zeitschrift für Bergrecht, (1899), Vol. 40, pp. 418-441; Commentar über das Bergrecht, by Chr. G. H. Hake (1823); Anleitung zu den Rechten und der Verfassung bey dem Bergbaue im Königreiche Sachsen, by Köhler (1824); De jure Quadraturae Metallicae, by S. A. W. Herder |