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ment, by which the extent of ground they could severally hold for mining was designated, their possessory “right to such ground secured and enforced, and con"tests between them either avoided or determined. "These rules bore a marked similarity, varying in the "several districts only according to the extent and "character of the mines; distinct provision being made "for different kinds of mining, such as placer mining, quartz mining, and mining in drifts or tunnels. They "all recognized discovery, followed by appropriation, "as the foundation of the possessor's title, and develop"ment by working as the condition of its retention. "And they were so framed as to secure to all comers "within practicable limits absolute equality of right "and privilege in working the mines. Nothing but "such equality would have been tolerated by the miners, who were emphatically the law-makers, as respects mining upon the public lands in the state. "The first appropriator was everywhere held to have, "within certain well-defined limits, a better right than "others to the claims taken up; and in all controversies,

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except as against the government, he was regarded "as the original owner, from whom title was to be "traced. . . . These regulations and customs were "appealed to in controversies in the state courts, and "received their sanction; and properties to the value "of many millions rested upon them. For eighteen years, from 1848 to 1866, the regulations and customs "of miners, as enforced and molded by the courts and "sanctioned by the legislation of the state, constituted the law governing property in mines and in water on the public mineral lands."1

This exposition of the law governing mining rights, as it existed in the early history of the mining industry in the west, leaves nothing to be added by the author. The decision stands as a forensic classic. Judge Field was a part of the history of which he wrote. He served

1 Jennison v. Kirk, 98 U. S. 453; cited in N. P. R. R. v. Sanders, 166 U. S. 620, 17 Sup. Ct. Rep. 671.

as an alcalde during the chaotic period antedating the admission of California as a state. He served his state in its first legislatures, and was the author of many of its early laws. As chief justice of its supreme court, his was the task to solve the great and overshadowing questions which arose over land titles in a new state coming into the union under peculiar and novel conditions, and he carried to the supreme bench of the United States not only the practical knowledge acquired by personal contact with the mining communities, but a trained judicial mind.

These local systems are said to have constituted the American common law of mines,1 and their binding force has been recognized from the beginning by the legislation of the states and by a uniform line of decisions in the state and territorial courts.2

45. Federal recognition. The federal judiciary followed the rules thus adopted. Congress has always recognized their binding force.*

The land department of the government and the supreme court of the United States have uniformly acted upon the rule that all mineral locations were to be governed by the local regulations and customs in force at the time of the location, when such location was made prior to the passage of any mineral law made by congress.5

1 King v. Edwards, 1 Mont. 235.

Carson City G. M. Co. v. North Star M. Co., 83 Fed. 658, 667.

Sparrow v. Strong, 3 Wall. 97; Del Monte M. Co. v. Last Chance

M. Co., 171 U. S. 55, 62, 18 Sup. Ct. Rep. 895.

St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Chambers v. Harrington, 111 U. S. 350, 4 Sup. Ct. Rep. 428; Golden Fleece v. Cable Cons., 12 Nev. 313; King v. Edwards, 1 Mont. 235.

5 Glacier Mt. S. M. Co. v. Willis, 127 U. S. 471, 8 Sup. Ct. Rep. 1214; Broder v. Natoma Water Co., 101 U. S. 274; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. Rep. 301; Chambers v. Harrington, 111 U. S. 350, 4 Sup. Ct. Rep. 428.

2 46. Local rules as forming part of present system of mining law. -To a limited extent, local regulations have still a place in our legal system. They are permitted to have controlling force in certain directions and under certain restrictions; but they are gradually becoming superseded by statutory enactments in the various states and territories, which, of course, are but another form of expressing local rules. In many parts of the mining regions the right to supplement congressional laws by the adoption of local codes is not exercised. In other places we still find the right asserted. In this aspect district laws and regulations, as well as state and territorial enactments, form an integral part of the present system, and will be dealt with in their appropriate place. The purpose of this chapter has been largely historical, and enough has been said to show the origin, development, scope, and legal status of local rules to enable us to award them their proper place in the evolution of the existing system.

47. Federal legislation during the second period. -On March 3, 1849, congress passed an act creating the department of the interior,' and thereupon the supervision of mineral lands was transferred to the general land office in that department.

The act of September 26, 1850,2 ordered the mineral lands in the Lake Superior district in Michigan to be offered at public sale, in the same manner, at the minimum, and with the same rights of pre-emption, as other public lands, but not to interfere with leased rights.3

This is the extent of affirmative action by congress during the second period touching its mineral lands, Public Domain, p. 308.

19 Stats. at Large, p. 395. • Id., p. 472.

with the exception of the act providing for a district and circuit court for the district of Nevada, approved February 27, 1865.1

Section nine of this act provided:

"That no possessory action between individuals in "any of the courts for the recovery of a mining title "or for damages to any such title shall be affected by "the fact that the paramount title to the land on which "such mines lie is in the United States, but each case "shall be adjudged by the law of possession."

The same provision is perpetuated in the Revised Statutes.2 This act was the first formal recognition by congress of the possessory rights of mineral occupants of the public lands.

In all general laws granting the right of pre-emption to settlers upon public land, mineral lands were reserved from their operation. The act of September 4, 1841, excepts from its operation all lands on which are situated any "known salines or mines." Whenever, upon the admission of a new state into the union, the provisions of this general pre-emption law were extended to it, this reservation was emphasized, if not enlarged. Thus, by the act of congress passed March 3, 1853, it was provided that all the public lands in the state of California, whether surveyed or unsurveyed, excepting mineral lands, should be subjected to the provisions of the act of 1841; and it was further provided that no person should obtain the benefits of the act by a settlement or location on mineral lands.

In grants to the several states, and in aid of the construction of railroads, similar reservations were made. The language of the reservation is not always precisely 13 Stats. at Large, p. 440.

Rev. Stats., § 910.

the same, but there is no departure from the established policy, that mineral lands were uniformly reserved for the use of the United States, or to be disposed of by such special laws as congress might see fit to enact.

In another portion of this treatise the extent and operation of the several excepting clauses contained in the different classes of grants will be considered. Sufficient historical data has here been given justifying the conclusion reached by the courts in announcing the doctrine that, prior to 1866, it had been the settled policy of the government in disposing of the public lands to reserve the mines and mineral lands for the use of the United States. Prior to that date, the uniform reservation of mineral lands from survey, from sale, from pre-emption, and from all grants, whether for railroads, public buildings, or other purposes, fixed and settled the policy of the government in relation to such lands.1

48. Executive recommendations to congress.Colonel Mason, in August, 1848, had made a graphic and interesting report to the war department, announcing officially the discovery of gold, giving a glowing account of the extent and richness of the deposits. He recommended the establishment of a mint at San Francisco, the survey of the districts into small parcels, and their sale at public auction to the highest bidder.

On December 2, 1849, President Fillmore, in his annual message to congress, referred to the subject in the following terms:

"I also beg leave to call your attention to the propriety of extending at an early day our system of land

1 Silver Bow M. and M. Co. v. Clarke, 5 Mont. 378, 410; Ivanhoe M. Co. v. Keystone Cons. M. Co., 102 U. S. 167; U. S. v. Gratiot, 14 Peters, 526; Morton v. State of Nebraska, 21 Wall. 660; Jennison v. Kirk, 98 U. S. 453, 458; Deffeback v. Hawke, 115 U. S. 392, 401, 6 Sup. Ct. Rep. 95.