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consin, the old Californians had little or no experi"ence in mining. The Cornish miners soon spread "themselves through the state, and added largely, by "their experience, practical sense, and industrious hab"its, in bringing the code into something like system. "The Spanish-American system which had grown up "under the practical working of the mining ordinances "for New Spain, was the foundation of the rules and 66 customs adopted. . . . They reflect They reflect the matured "wisdom of the practical miner of past ages, and have "their foundation, as has been stated, in certain nat"ural laws, easily applied to different situations, and "were propagated in the California mines by those "who had a practical and traditional knowledge of "them in their varied form in the countries of their origin, and were adopted, and no doubt gradually improved and judiciously modified, by the Ameri

Halleck aptly states the main source and underlying theory of these local regulations:

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"The miners of California have generally adopted, "as being best suited to their peculiar wants, the main "principles of the mining laws of Spain and Mexico, by which the right of property in mines is made to depend upon discovery and development; that is, discovery is made the source of title, and development, "or working, the condition of the continuance of that "title. These two principles constitute the basis of all our local laws and regulations respecting mining rights."'1

843. Dips, spurs, and angles of lode claims.With respect to lode, or "quartz," claims, as they were then locally termed, in contradistinction to gravel claims, the miners' rules and customs established a rule of property at total variance with the Mexican laws. We refer to the right to work the vein to an indefinite depth, regardless of the occupation or possession of the

Introduction to De Fooz on the Law of Mines, p. vii.

surface underneath which it might penetrate, and to hold in connection with the main vein, without regard to any inclosing surface boundaries, the "dips, spurs, "angles, and variations" of the located vein. Neither the form nor extent of the surface area controlled the rights in the located lode. It did not measure the miners' rights, either to the linear feet upon its course or to follow the dips, angles, and variations of the vein.1 The lode was the principal thing, and the surface a mere incident.2

This departure from the rule of vertical planes drawn through surface boundaries may possibly be traced to the customs then in vogue among the lead miners of Derbyshire with reference to "rake veins." s

We find no trace of such an innovation in any other of the contemporaneous mining systems. Under the early German codes of the sixteenth and seventeenth centuries, what may be called an inclined location (gestrecktfeld) was sanctioned, which gave the right to follow the vein to an indefinite depth, and to work within planes parallel to the downward course of the vein, thirty feet from the hanging-wall and thirty feet from the foot-wall of the vein, forming a parallelopipedon.* But this system had become obsolete long before the discovery of gold in California.5

This feature of the miners' rules and customs as adopted in California was embodied in the first mining legislation of congress, and was the basis of what is

1 Eureka Case, 4 Saw. 302-323, Fed. Cas., No. 4548. Johnson v. Parks, 10 Cal. 447.

See, ante, § 8.

* Dr. R. W. Raymond-Mineral Resources, 1869, p. 195.

5 Klosterman, in his treatise on the Prussian mining laws (Berlin, 1870), says that the abolition of inclined locations was brought about principally by the "interminable lawsuits inherent in the system.”

Act of July 26, 1866.

now termed the extralateral right under the existing system.

A further discussion of this subject will be reserved for a succeeding chapter, where it will be dealt with in connection with the present laws.

244. Legislative and judicial recognition by the state.-California was admitted as a state of the union, September 9, 1850. The act of admission contained no reference to mineral lands, and the new state came into existence with the local systems in full force and operation in the mining districts.

The legislature of the state in 1851 gave recognition to the existing conditions and the controlling force of the local system by inserting a provision in the civil practice act to the effect that the "customs, usages, or "regulations, when not in conflict with the constitution "and laws of the state, shall govern the decision of "the action."

As to the effect of this legislative declaration, and generally with reference to the attitude of the state and federal government, upon the subject of mineral lands in California, during this interesting period, the supreme court of California, speaking through Chief Justice Sanderson, thus announced its views:

"The six hundred and twenty-first section of the practice act provides that 'In actions respecting min"ing claims proof shall be admitted of the customs, "'usages, or regulations established and in force at "the bar or diggings embracing such claims; and ""such customs, usages, or regulations, when not in "conflict with the constitution and laws of this state, "shall govern the decision of the action.'

"At the time the foregoing became a part of the law "of the land, there had sprung up throughout the min"ing regions of the state local customs and usages by "which persons engaged in mining pursuits were

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governed in the acquisition, use, forfeiture, or loss "of mining ground (we do not here use the word forfeiture in its common-law sense, but in its mining"law sense, as used and understood by the miners, who are the framers of our mining codes). These customs "differed in different localities, and varied to a greater or less extent, according to the character of the mines. "They prescribed the acts by which the right to mine "a particular piece of ground could be secured and "its use and enjoyment continued and preserved, and "by what non-action on the part of the appropriator "such right should become forfeited or lost, and the "ground become, as at first, publici juris and open to "the appropriation of the next-comer. They were few, plain, and simple, and well understood by those with "whom they originated. They were well adapted to secure the end designed to be accomplished, and were "adequate to the judicial determination of all contro"versies touching mining rights. And it was a wise policy on the part of the legislature, not only not to "supplant them by legislative enactments, but, on "the contrary, to give them the additional weight "of a legislative sanction. These usages and cus"toms were the fruit of the times, and demanded "by the necessities of communities who, though "living under the common law, could find therein

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no clear and well-defined rules for their guid"ance applicable to the new conditions by which they "were surrounded, but were forced to depend upon "remote analogies of doubtful application and unsatis"factory results. Having received the sanction of the "legislature, they have become as much a part of the "law of the land as the common law itself, which was "not adopted in a more solemn form. And it is to be

regretted that the wisdom of the legislature in thus "leaving mining controversies to the arbitrament of "mining laws has not always been seconded by the "courts and the legal profession, who seem to have "been too long tied down to the treadmill of the com"mon law to readily escape its thraldom while engaged "in the solution of a mining controversy. These cus

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"toms and usages have, in progress of time, become more general and uniform, and in their leading fea"tures are now the same throughout the mining regions "of the state; and, however it may have been hereto"fore, there is no reason why judges or lawyers should "wander with counsel for the appellant in this case "back to the time when Abraham dug his well, or explore with them the law of agency or the statute of frauds, in order to solve a simple question affecting a mining right; for a more convenient and equally "legal solution can be found nearer home in the 'cus"❝toms and usages of the bar or diggings embracing "the claim' to which such right is asserted or de"nied."'1

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Mr. Justice Field, who was the author of the provision of the California civil practice act referred to in the decision above quoted, and who was recognized as the "end of the law" on mining subjects, in speaking for the supreme court of the United States, thus presents his views upon that branch of the law, as to which he was so peculiarly fitted to speak:

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"The discovery of gold in California was followed, as is well known, by an immense immigration into "the state, which increased its population within three "or four years from a few thousand to several hundred "thousand. The lands in which the precious metals were found belonged to the United States, and were unsurveyed and not open by law to occupation and 66 settlement. Little was known of them further than "that they were situated in the Sierra Nevada moun"tains. Into these mountains the emigrants in vast "numbers penetrated, occupying the ravines, gulches, "and canyons, and probing the earth in all directions "for the precious metals. Wherever they went they "carried with them that love of order and system and "of fair dealing which are the prominent characteris"tics of our people. In every district which they "occupied they framed certain rules for their govern

Morton v. Solambo M. Co., 26 Cal. 527.