conveyance by the United States carries all minerals, unless reserved expressly or by implication in the law or instrument purporting to pass the title.1

In countries from which the United States acquired its properties the contrary doctrine prevailed, and minerals did not pass to the grantee unless specially named in the instrument.2

281. Outline of the federal system-Scope of the treatise. It follows as a corollary from what has been heretofore stated, that the system of rules which sanctions and regulates the acquisition and enjoyment of mining rights, and defines the conditions under which title may be obtained to mineral lands within the public domain of the United States, is composed of several elements, most of which find expression in positive legislative enactment. Others, while depending for their existence and force upon the sanction of the general government, either express or implied, are, in a measure, controlled by local environment, and are evidenced by the expressed will of local assemblages, embodied in written regulations, or rest in unwritten customs peculiar to the vicinage.

American mining law may therefore be said to be found expressed :

(1) In the legislation of congress;

(2) In the legislation of the various states and territories supplementing congressional legislation and in harmony therewith;

(3) In local rules and customs, or regulations estab

1 Fremont v. Flower, 17 Cal. 199, 79 Am. Dec. 123; Barden v. N. P. R. R., 154 U. S. 288, 14 Sup. Ct. Rep. 1030; Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628.

Fremont v. Flower, 17 Cal. 199, 79 Am. Dec. 123; United States v. Castillero, 2 Black, 1; Halleck's Introduction to De Fooz on the Law of Mines, § 7.

lished in different localities, not in conflict with federal legislation or that of the state or territory wherein they are operative.

This system does not seek to regulate or control mines or mining within lands held in private ownership, except such only as are acquired directly from the government under the mining laws, and then only forming a muniment of the locator's or purchaser's title. It does not require the payment of tribute or royalty as a condition upon which the public mineral lands may be explored or worked. As heretofore observed, it treats the government simply as a proprietor holding the paramount title to its public domain, with right of disposal upon such terms and conditions, and subject to such limitations, as the law-making power may prescribe. With the exception, perhaps, of saline lands and lands containing deposits of coal and some of the baser substances, the system is practically confined in its operation to those states and territories lying wholly or in part west of the hundredth meridian, embracing the states of California, Colorado, Oregon, Washington, Nevada, Idaho, Montana, North Dakota, South Dakota, Wyoming, Utah, the territories of Arizona, New Mexico, and the district of Alaska.1 These comprise the preciousmetal-bearing states and territories of the public domain. This system, as thus defined and limited, is the subject of this treatise.

As to saline lands, the act of congress of January 31, 1901, placed them in the category of mineral lands, and authorized their entry and purchase under the laws relating to placers. This act applies to all public land states wherein there are unoccupied lands of the United States containing salt springs or deposits of salt in any form (Circ. Inst., 31 L. D. 131). The general mining laws are also in force in Florida, Mississippi, Louisiana, and Arkansas; but from a practical standpoint their operation in these states is not very extensive. By act Lindley on M.-8

This system is by no means symmetrical or perfect. It is one of the most difficult branches of the law to even logically arrange for the purpose of treatment, and the embarrassments surrounding its philosophical exposition are almost insurmountable. It has received attention in a fragmentary way at the hands of eminent writers, who are most logical and instructive when discoursing upon its imperfections and apparent absurdities. The courts are not harmonious with regard to rules of interpretation. No one tribunal has exclusive jurisdiction to determine questions arising under it. Its proper interpretation does not always involve federal questions, conferring upon the federal courts jurisdiction. It has thus come to pass that the courts of last resort in several of the states and territories, in construing the same law, have reached diametrically opposite conclusions; and in many of its most important features we have conflicting theories enumerated by different courts of equal dignity and equal ability, until we are almost constrained to say that "chaos has come again."

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It is not our purpose to condemn the system, but to

of congress all lands in Oklahoma were originally declared to be agricultural (26 Stats. at Large, p. 1026). On March 3, 1901, (31 Stats. at Large, p. 680,) congress extended the mining laws over the lands within the territory of Oklahoma ceded to the United States by the Comanche, Kiowa, and Apache Indians (Instructions, 31 L. D. 154). Porto Rico, the Hawaiian Islands, and the Philippines contain public lands of the United States, but the land laws have not been extended over them as yet (Op. Atty.-Gen., 29 L. D. 32; McFadden v. Mountain View M. Co., 97 Fed. 670). In Hawaii the land laws existing during the republic are continued in force (Act of April 30, 1900; Instructions, 30 L. D. 195). Congress has ceded to the territory of Porto Rico all the public lands for the use and benefit of the people of that island (Stats. 1st Sess. 57th Cong., p. 731). Congress has recently enacted a comprehensive mining code for the Philippine islands, a full discussion of which will be found in another portion of this treatise.

endeavor to deal with it fairly as we find it. In the language of Judge Beatty,

"Nobody can pretend that it is perfect; but to our "minds it is a great improvement on the system which "it displaced. We are willing to admit that cases may "arise to which it will be difficult to apply the law; but "this only proves that such cases escaped the foresight "of congress, or that, although they foresaw the possi"bility of such cases occurring, they considered that "possibility so remote as not to afford a reason for "departing from the simplicity of the plan they chose "to adopt. So far the wisdom of the congressional plan has been sufficiently vindicated by experience." 1

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Gleeson v. Martin White M. Co., 13 Nev. 442.