8 248. Introductory.-As preliminary to the analysis and general exposition of the law regulating the manner in which mining rights in the public mineral lands may be held, enjoyed, and perpetuated, it is appropriate that we define with reasonable certainty the limit and extent of legislative power conceded to the several states and territories by the express or implied sanction of the general government. We have heretofore shown that the federal system of mining law is composed of three elements:

(1) The legislation of congress;

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

(3) Local rules and customs, or regulations established in different localities, not in conflict with federal legislation or that of the state or territory wherein they are operative.1

We have traced the evolution of this system through the different periods of our national history, from the embryotic stage, which had its genesis in the local rules and customs of the mining camps of the west, to the development of higher forms of law. While in this progressive development the primitive forms have not altogether disappeared, they have been relegated from the position of controlling importance to that of mere subordinate and subsidiary functions. It is entirely unnecessary to here retrace the steps by which the present results were obtained. In the early chapters of this treatise, we have endeavored to present such an historical review as will suffice for all practical purposes and enable the student to acquaint himself with the process of crystallization which has given us as a resultant the existing unique system. We are immediately concerned with the present practical operation of this system, and shall now consider the general nature and scope of state and territorial legislation supplemental to the congressional mining laws, a minor subsidiary element in the system, but in its particular sphere important.

249. Limits within which state may legislate.When it is recognized that the government simply occupies the status of a landed proprietor, holding the paramount title to its public domain, with the sole right of See, ante, title II, chs. i-vi, §§ 28-81.

See, ante, § 81.

disposal upon such terms and conditions and subject to such limitations as it may from time to time prescribe,1 and that the congressional mining laws are but a statement of such terms, conditions, and limitations, it follows necessarily that neither individuals nor states have the power to control, modify, or nullify any of such terms, conditions, or limitations.

If, by compliance with congressional law, an estate in public lands is granted, the state may not destroy or impair it. If no such estate in such lands is created by or under the authority of federal law, the state has no power to create or transfer it. After an estate is once granted, and a right of property becomes vested, it is subject to the general laws of the state the same as any other property, and congress has thereafter no power to affect the property by legislation; but we now speak only of the terms, conditions, and limitations under which estates, either equitable or legal, are carved out of the public lands by the act of the paramount proprietor.

5

If the state may prescribe any additional or supplemental rules, increasing the burdens or diminishing the benefits granted by the federal laws in lands of the public domain, it is simply because the government, as owner of the property, sanctions, expressly or by implication, the exercise of such powers.

At one period of the national history, the states as

1 See, ante, §§ 80, 81.

The exercise of the right of eminent domain, which involves the payment of compensation, is an exception to this rule. See, post, § 253 et seq.

3 Gibson v. Chouteau, 13 Wall. 92, 99; Irvine v. Marshall, 20 How. 558, 561; Van Brocklin v. State of Tennessee, 117 U. S. 151, 168, 6 Sup. Ct. Rep. 670.

4 Wilcox v. McConnel, 13 Pet. 498, 516. And see cases cited in Rose's Notes on U. S. Reports, vol. 3, p. 867.

Cone v. Roxana G. M. and Tun. Co. (U. S. Cir. Ct., Colo.), 2 Leg. Adv. 350, 352.

sumed the right to confer possessory rights in the public lands upon its citizens. The national government acquiesced in the assumed power for a number of years. It might have repudiated this intervention by the state, and dispossessed the occupants; but having failed to do so, certain possessory privileges were acquired, to the extent and under such circumstances that the government became, morally and in good conscience, bound to recognize them.1

This it did gracefully. But this was before the government, by legislative enactment, adopted any general laws expressly providing for the sale or disposal of its mineral lands in the precious-metal-bearing states. The legislative era succeeded the period of passive recognition, and with the passage of laws providing for the method of vesting legal or equitable estates in the public lands, the right of the states to legislate in this direction was no longer recognized, except to the extent that such power was conceded by the congressional laws.

State statutes in reference to mining rights upon the public domain must therefore be construed in subordination to the laws of congress, as they are more in the nature of regulations under these laws than independent legislation.2

State and territorial legislation, therefore, must be entirely consistent with the federal laws, otherwise it is of no effect. The right to supplement federal legislation conceded to the state may not be arbitrarily exercised; nor has the state the privilege of imposing conditions so onerous as to be repugnant to the liberal spirit of the congressional laws. On the other hand, the state may not by its legislation dispense with the performance of the conditions imposed by the national

1 See, ante, § 56.

Eberle v. Carmichael, 8 N. Mex. 169, 42 Pac. 95, 98.

law, nor relieve the locator from the obligation of performing in good faith those acts which are declared by it to be essential to the maintenance and perpetuation of the estate acquired by location. Within these limits, the state may legislate.1 Beyond them the state should not be permitted to go.2 And when the state has enacted such legislation its provisions must be complied with before any valid right to a mining claim can be perfected.3

250. Scope of existing state and territorial legislation-Subjects concerning which states and territories may unquestionably legislate.-Many of the states and territories have enacted codes, more or less comprehensive, supplementing congressional laws, while others have but few provisions. In the appendix will be found the legislation of this character now in force in each state and territory.

That a correct understanding of the general scope of the existing state and territorial legislation may be gleaned, we enumerate the subjects covered by such laws, indicating which states and territories have legislated upon such subjects, first considering those concerning which such legislation is unquestionably proper, within reasonable limits.

(1) Length of lode claims.Colorado,*

North Dakota,

'Sissons v. Sommers, 24 Nev. 379, 388, 77 Am. St. Rep. 815, 55 Pac. 899.

Id.

Belk v. Meager, 104 U. S. 279, 284; Garfield M. and M. Co. v. Hammer, 6 Mont. 53, 59, 8 Pac. 153; Purdum v. Laddin, 23 Mont. 387, 389, 59 Pac. 153; Copper Globe Min. Co. v. Allman (Utah), 64 Pac. 1019.

* Same as federal law; limit, fifteen hundred feet. Mills' Annot. Stats., § 3148.

5 Same as federal law; limit, fifteen hundred feet. Rev. Pol. Code, 1895, 1426; Id., 1899, § 1426.