dependent upon the ascertained position of the apex which might take years to establish, and meanwhile the claim was for its greater part a "float." Provision was made for a temporary ascertainment of boundaries but this only added to the complexity as the temporary survey yielded to the later permanent measurement. The rules for ascertainment of boundaries in the event the vein pinched out or split into branches or was faulted were also so involved that there is not space to discuss these complex and intricate features. Anyone familiar with the many intricacies and indeterminate features connected with the ascertainment of the Germanic extralateral right will appreciate that the American law with its definitely fixed surface boundaries and well defined extralateral planes passed through parallel end lines is simple by comparison.

France. The extralateral right does not appear to have obtained a pronounced hold on the mining law of France though it existed there in a modified degree in the early days of mining under customary rights. 18 Aguillon says this system of granting inclined locations was abandoned in France in 1810.19 However, while the mining law of the Empire, April 21st, 1810, provided that in general the limits of a mining concession were to be fixed by vertical planes passed through a perimeter laid out on the surface, 20 there was nothing in the act to prevent their being inclined according to the formation of the deposit. The concessions may be granted by beds, i. e. following bedded and inclined deposits but this was not considered as regular.21 Concessions of this character were granted in conformity to the "prejudices and very unfortunate customs" of one of the mining districts that of Jemmapes.

22

While the extralateral right did not appear in France except in the cases noted, yet it is clear that the fundamental principle underlying this right, viz: the severance of the mineral from the surface was one of the prime characteristics of French mining law.

18 The writer is indebted to his wife for a portion of the translation of the material which forms the basis for this discussion.

19 Legislation des Mines, Etrangere (1891), Vol. II, p. 48.

20 The Act itself provides that vertical bounding planes must be adopted "unless the circumstances and localities require another mode of limitation," Title IV, Section I, rule 29.

21 Halleck's De Fooz on the Law of Mines (1860), p. 120.

22 Exposition of the Law of 1810 by Count

D'Angely. De Fooz, appendix C, pp. 250-251.

Regnault de Saint Jean

The philosopher Turgot in a periodical of 1769,23 urged that each land owner as a matter of natural equity should have the right to mine on his own ground and then to pass underneath in the subsoil of his neighbor without the latter's consent and become the owner of the material which he extracted therefrom.24 Dupont criticizes this system as an application to the mining industry of the celebrated doctrine of laissez faire which would result in the most complete anarchy-a true subterranean war.25 Curvelier criticizes the system as utopian.2

26

Practically all of the French philosophers and statesmen who have expressed themselves on the subject agree that there is nothing in common as far as ownership of the surface and of the mineral underneath is concerned. De Fooz says: The "nature of things", the "general principles of right", and "general utility" do not permit the surface to be confounded with that which is beneath. The surface may be divided ad infinitum and this renders its culture easier and more productive but mines are not divisible like the surface and their occurrence has nothing in common with the configuration of the surface." Jousselin says mines have a conformation of their own which in no way depends upon the character of the surface and can be worked to advantage when they are treated in mass or in sections of certain extent, without reference to surface boundaries.28 A vein which forms a mine may extend into the depth of the earth a considerable distance beneath surface properties infinitely divided among the surface owners. Which one of these surface owners ought to have the property in the vein? It is necessary in order to work mines to advantage to treat mines in mass, or in sections of definite extent determined by the position and character of the beds or veins.29 Mirabeau concluded one of the most famous debates on the fundamental principles of a true property in mines which took place in the French Chamber of Deputies in 1791 by saying: "The oblique direction of a mine may in a short distance pass underneath a

23 Memoire au Conseil d'Etat.

24 Naudier, Legislation des Mines (1877), p. 38.

25 Dupont, Legislation des Mines (1862), Vol. I, p. 5.

26 Curvelier, Legislation Miniere (1902), p. 5.

27 Halleck's De Fooz, p. 10.

28 Traite des servitudes d'utilite publique.

29 Report of Count Girardin on the Law of 1810. De Fooz, p. 10,

note 2, and Appendix D, p. 259.

9730

hundred different properties. We already know too well the scourge of war upon the surface of the globe; there is no need of adding to it the scourge of a subterranean war." He also argued that the proprietary right of the surface owner could not possibly apply to minerals several hundred feet in depth. "They cannot be a complement to the soil, and are moreover, by their course, unfit to be included in a partition of the surface." He pointed out the fact that the surface proprietor seldom had the capital to develop a mine and if he did he might find the valuable part of the vein to be under his neighbor's property.31 The surface overlying a mine may be fertile or barren, cultivated or uncultivated and the owner thereof has done absolutely nothing towards the acquisition, increase or creation of the mineral wealth concealed thereunder,32 De Fooz, therefore, concludes that as a matter of art, of right, and of interest the regalian doctrine ought to prevail over the narrow principle of private ownership and that mines and the outcrops of mines, i. e., the points where they rise to the soil belong to the nation rather than to the surface proprietor.33

Napoleon at first opposed this idea because he interpreted article 552 of his famous Civil Code to grant to the proprietor of the surface everything beneath and the doctrine of a national property in mines would violate this principle of private ownership which he had already promulgated. The counter arguments advanced in the Council of State and already noted finally prevailed and in order to avoid the acknowledgment of defeat the Emperor resorted to a fiction, entirely his own,34 "that mines are a new property; the right of working them forms a new wealth; and the property of mines does not exist prior to their concession." The famous French Law of Mines of April 21st, 1810, was the outcome. 35 The surface proprietor was recognized, however, for he

30 De Fooz, p. 10, note 4 and p. 13.

31 Foreign Mining Laws, Vol. II, Part I, Transactions of the Mining Association and Institute of Cornwall (1888), pp. 35-36.

32 Compte, de la Propriete, De Fooz, p. 11, note 6.
p. 13.

33

34 A "real property separated from the surface is a conception absolutely new, which emanated from the genius who consolidates and aggrandizes each day the destinies of France." Report of Count Stanislas Girardin, Appendix D, Halleck's De Fooz, p. 266.

35 De Fooz, pp. 37-42.

was paid a small royalty or rental depending upon the area of surface required for successful operation.

As a result of the careful analysis of underlying principles and searching debate which preceded the adoption of the French Mining Law by the Chamber of Deputies, it is ideal from a theoretical standpoint. The mineral deposit is a property distinct from the overlying surface and the Council of Mines determines in each case, from the evidence produced, whether it should give preference in the granting of a concession to the discoverer, or the proprietor of the surface or to another applicant. The person or company best qualified to undertake the venture usually received the concession. The extent of the concession, within a maximum limitation, depended upon the character of the deposit and was determined largely by economy of operation. A perimeter was marked out on the surface and the concessionaire operated on the vein or mineral deposit within vertical planes passed through this perimeter. The owners of the surface within the perimeter continued to cultivate or use the surface except such portions as were required for actual mining operations and for which portions compensation was paid. Other veins or bedded deposits within the perimeter might be excluded and granted to other parties, as the concession usually carried the right to mine only on one particular deposit or vein. When a concessionaire had mined to the limit of his concession an extension of the perimeter was usually granted him since economy of operation justified such a course. It will be apparent that these advantages of granting concessions to those best qualified to undertake the venture and of making the extent of the concession dependent solely upon the character and occurrence of the deposit which was consequently not forced into claims of uniform and unvarying size and likely to be unsuited to the particular deposit is perfect in conception. This system embodies a fundamental feature of the extralateral right, viz: the right to mine on the vein without acquisition of surface ownership. While the other characteristic feature of indefinite pursuit of the vein in depth is lacking, the right to extend his perimeter in that direction was invariably granted to the concessionaire whose workings were most favorably situated for economic mining.

While this system is ideal, considered from most angles, yet like many ideal systems its successful operation depends upon ideal circumstances. In a country like France, thickly populated and

with mining confined to comparatively well defined areas such a paternalistic surveillance as is exercised by the Council of Mines and the Engineers of Mines probably yields the best results, but in the Western part of the United States where the mining districts are sparsely settled and largely in remote and rugged regions, such a system would be impossible of administration. Walmesley says that the principal objection to the French system is "too much State control." It is an interesting commentary on the urgent demand for a change in our mining laws to note that in 1889 a Commission of Deputies reported to the Chamber on the subject of revision of the French Mining law that the main object of legislation should be to free the mine owner of state control as much as possible; that England and the United States are in the almost complete possession of a law as wise in its simplicity as that which they indicate as the perfection of mining law; that everywhere the power of the State in such matters is being restrained; and that everywhere greater belief is being placed in private enterprise and industrial liberty and that it is a remarkable fact that the more this faith increases the more mineral wealth is developed. The policy of severing the mineral from the surface and disposing of each separately is a most desirable feature, however, and it is regrettable that it was not adopted in the United States in the infancy of mining here.38

37

England. In the main, the law of England on the subject of mines did not recognize any severance of the vein from the surface. The surface owner was entitled to everything found vertically beneath his surface, except royal mines, i. e. mines of precious metals, and these latter were of little importance in England. There were some noteworthy exceptions, however.

In Derbyshire there existed a local mining law which was the outgrowth of ancient customs and regulations adopted by the miners themselves. It marked a wide departure from the ordinary conception of common law property rights. Under this law

36 Mining Laws of the World (1894), p. 50.

37 Walmesley, Mining Laws of the World, p. 52.

38 The severance of mineral from the surface and the policy of disposing of each separately has recently been adopted by the Federal Government in the case of public lands valuable for oil, coal, phosphates, nitrates, potash, gas, and asphaltic deposits, etc. See 38 Stat. at L. 509; 35 Stat. at L. 844; 36 Stat. at L. 583; 37 Stat. at L. 105; 38 Stat. at L. 335; 37 Stat. at L. 497; and 37 Stat. at L. 687.