within the boundary and the right to follow them to whatever distance they might dip.""

In New South Wales the mining regulations of August 5, 1858, provided that:

"Miners occupying any portion of a quartz reef or vein shall be entitled to follow and work it in any direction that such reef or vein may take. . . . . Provided . . . . that when any reef, vein or bed of quartz shall lie nearly horizontal, or at a less angle with the horizon than 20°," the holder of any claim shall be only entitled to follow such reef, vein, or bed of quartz in the direction of the dip, for a distance not exceeding 50 yards from the point where they commence to sink in search of any such reef, vein, or bed of quartz.'

9978

These extralateral provisions were probably patterned after the miners' customs of California, since California miners are known to have taken a leading part in this early mining in Australia. The use of the terms "dip and angles" is similar to language employed here by the early miners. Where the vein was inclined, the limits of a claim were determined by establishing a base line passed through the "peg" or discovery point on the apex of the vein and "another point visible and as distant as possible on the known line of the reef" or in case the position of the reef (vein) was not sufficiently known, an arbitrary point was selected and from this base line right angled lines were extended out in the direction of the dip of the vein. This method of defining boundaries within which the miner could work is almost identical with the plan which was later adopted on the Comstock lode for the settlement of disputes over boundaries.79

In 1862 the regulations were altered so that a claim had a width of 100 yards and the owner was entitled to all veins found therein,

76 Law of Gold Mining in Australia and New Zealand, Armstrong (1901).

77 If this provision was not suggested by the Germanic extralateral law, it is at least the strongest kind of circumstantial evidence, for in most of the mining districts of Germany veins that dipped at an angle of less than 20° were termed Flötze and no extralateral right could be acquired to such deposits.

78 See, Mining Laws of Australia and New Zealand, Veatch (1910). 79 A very interesting volume entitled, "The Law of the Apex," by Kenny has recently appeared, (1914), in which the author advocates the adoption of a similar plan of measurement in the United States in place of the present system of parallel end lines under the Act of 1872. There is considerable reason underlying the suggestion, for it doubtless affords a more logical division of the vein than any other system which could be devised, but the conception is based on ideal vein conditions and does not take into consideration geological complexities.

instead of one vein only as under the former act, and could follow any reef into unoccupied ground.so In 1866 the system of vertical boundaries was adopted because the extralateral system was "found to lead to disputes."

In other parts of Australia the locator along the apex of the vein had a preferential right to acquire "frontage claims" overlying the dip. This is analogous to the extension of the mine perimeter in the direction of the dip under the French law.

In Western Australia under existing law, individual leases are granted of areas necessary to work the reef to a depth of 3000 feet and if the mineral is gold the length along the outcrop of the reef shall not exceed 66 chains, and if mineral other than gold the distance along the outcrop shall not exceed 90 chains. This right to mine in depth is virtually equivalent to the exercise of an extralateral right.

Rhodesia. All property in minerals and mining rights in Rhodesia has been granted by the Crown to the British South Africa Company. The system of mining law in force there was adopted in 1903 and is largely copied from the American law.81 A "reef claim" is a parallelogram 150 feet in length along the course of the reef with a width of 600 feet at right angles to the length. A "block" is a group of not to exceed ten contiguous reef claims thus forming a parallelogram 1500 by 600 feet, the exact size of a lode claim under American law. The "extralateral right" is defined in the ordinance to be "the right of following a reef on its dip in any block beyond the limits of the vertical block." The "course of a reef" is defined to be a line on the surface marking the intersection of the center of the reef with such surface. If the reef were "blind," i. e., situated below the surface the points where it approached closest to the surface were projected vertically upward. This is the "course of the apex" or "lode line" of the American law. The miner had the

"extralateral right of pursuit of such portions of his discovery reef on its dip outside the limits of his vertical block as are comprised between vertical planes indefinitely extended and passing through the end lines of his block."82

Canada (British Columbia). The various provinces of Canada have adopted the vertical boundary system of mining law but

80 Here we have a provision similar to those contained in the Spanish Mining Codes already noted.

81 Mining Law of the British Empire, Alford (1906), p. 197.

82 The striking similarity of this law to the American Mining Law is evident. The trial of the first important case involving the extra

British Columbia in 1891 passed a mineral act, section 31 of which provided that:

"The lawful holders of mineral claims shall have the exclusive right of possession of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations," etc.88

The section also provided that if a location were laid crosswise of a vein instead of along its course the locator secured only so much of the vein or lode as it crossed and the side lines became the end lines for the purpose of defining extralateral rights. A location was deemed to be laid crosswise when the angle made by the center line of the location and the general course of the vein was greater than 45 degrees.

84

This section of the Act was repealed by Section 2 of the Amendment Act of 1892 which provided, that "The owner of a mineral claim shall be entitled to all minerals which may lie within his claim, but he shall not be entitled to mine outside the boundary lines of his claim continued vertically downward." Subsection b, preserves rights of locations under the former acts.85

As a result of this brief period during which the extralateral right was sanctioned, rights to a number of such mining claims became vested. The British Columbia reports indicate that several cases have arisen where these rights are involved.

Central and South America. Many of these countries, notably Uruguay, Venezuela, Nicaragua, and Honduras, have features copied from the Spanish law, either permitting a claimant to mine. on the vein into the subsurface of his neighbor and accounting to the latter for one half of the net proceeds of all ore extracted

lateral right feature of Rhodesian mining law to be brought to England was recently concluded in London. The Amalgamated Properties of Rhodesia brought suit against the Globe & Phoenix Gold Mining Company Ltd. for the recovery of approximately $1,000,000, alleged to have been wrongfully extracted from the John Bull claims. The case turned largely on geological facts and the usual array of expert talent characteristic of such cases was present. The writer is indebted to Mr. H. W. Turner for the clippings of the London papers reporting the proceedings.

83 This is identical in language with the Act of 1872, § 2322 U. S. Rev. Stats., from which it was unquestionably taken. The writer is informed that British Columbia first adopted the extralateral right in 1882.

84 $15, subd. a.

85 Centre Star Mining Company v. Iron Mask Mining Company (1898), 6 British Columbia Cases, 355; Martin, Min. Cases 267 note, and pp. 629-630, 681-682.

but subject to being stopped from further working whenever the neighbor reaches the trespass workings, or permitting a claimant to enter the subsurface of abandoned or unclaimed subsurface with the right to denounce an adjoining claim in such direction.

Of greater interest are the Mining Regulations of British Guiana of 1887 which give the right to follow veins throughout their entire depth where the apex is included within the surface boundaries of the claim but the right of such outside pursuit is confined between vertical end line planes. There was an additional privilege putting a premium on the one who first commences working on the vein extralaterally. Our federal mining Act of 1872 is clearly responsible for the main extralateral feature.85a

There are doubtless other parts of the world where the extralateral right or some modification of it has at some time been exercised.86

The attempt has been made to include in this article all the examples of the exercise of such a right that have come to the writer's attention. In many of the other countries such as China, Russia, etc., it has been quite customary to secure a concession to a mine which includes the entire vein and there would be no necessity for adjusting rights between adjoining owners. Sufficient examples have been presented to indicate that there has been a powerful tendency at work based on fundamental reason and natural law to segregate the mineral bearing vein from the surface, and to grant the vein to the miner. Instead of confining him to inflexible surface boundaries extended downward vertically, the tendency has been to make these boundaries more elastic so that he could, in the interest of economy and justice, follow down on his vein, which is the principal thing sought, and which has no logical relation to the overlying surface. The surface ownership was usually segregated from the underlying mineral and vested in another who might be devoting it to agricultural or other pursuits. This severance is in line with the highest economic use of natural resources and embodies the modern conception of conservation. The surface was frequently used for convenience in marking out a perimeter merely to place a limit on underground workings, but the perimeter

85a "Mines and Mining Laws of Latin America, published by the Bureau of the American Republics, April 1892.

86 Mr. Horace V. Winchell mentions Sweden as one of the countries where the extralateral right was operative for a time. Report of Meeting of the Mining & Metallurgical Society of America, December 1915. Reprint, Senate Document No. 233, 64th Congress 1st Session, p. 57.

could be varied or extended according to the nature of the deposit, and as underground development might indicate was most equitable and economic. Frontage claims also accomplished the same object.

The pure type of extralateral right has unquestionably given rise to a vast amount of litigation, and this fact has resulted in its abolition in most countries where it formerly existed.

In a subsequent article the writer plans to trace the growth and operation of the extralateral right in the United States and to call attention to some serious problems which must be solved in the event that it is abolished. Wm. E. Colby.

Berkeley, California.

Volume IV.

SEPTEMBER, 1916

Number 6

II. THE ORIGIN AND DEVELOPMENT OF THE EXTRALATERAL RIGHT IN THE UNITED STATES.

T

HE discovery of gold in California in January of 1848, brought about the birth of a distinctive American mining law. Theretofore, no general mining law was in force in the United States and the few Acts of Congress on the subject were local in character, applying only to the lead and copper deposits of the Middle West, and were not based on any well defined policy. The general tendency was to place mineral lands on the same basis as agricultural lands.1 There was no trace of any exercise of an extralateral right to be found in any of these early laws. ' The news of the finding of the fabulous gold fields of California spread around the world like wildfire and miners from every part of the globe flocked to the new Eldorado to share in its treasure. Miners came from the lead mines of Illinois and Wisconsin, from the copper mines of Michigan, from the gold mines of Virginia, Georgia and the Carolinas, from the tin mines of Cornwall, the lead mines of Derbyshire, the silver and copper mines of Germany, the silver and gold mines of Mexico and Peru, and in fact from every known mining community. They brought their varied experience and were joined by countless others who had no previous mining experience of any sort. It must be borne in mind that no general mining law was in force in this new territory. Colonel Mason, the military governor of California in 1848, issued

1 Those who are interested in the early history of mining law in the United States will find an excellent presentation in Lindley on Mines, (3rd ed.), §§ 28-36. See also Donaldson, The Public Domain (1883), pp. 306-309.

2 The fascinating history of the days of '49 is outlined in Lindley on Mines, (3rd ed.) chapter 3, §§ 40-40, and Crane, Treatise on Gold and Silver, pp. 54-62. Also see Browne, Mineral Resources, 1867, pp. 15-16, 38.