"laws, with such modifications as may be necessary, "over the state of California and the territories of Utah "and New Mexico. The mineral lands of California "will, of course, form an exception to any general "system which may be adopted. Various methods of disposing of them have been suggested. I was at "first inclined to favor the system of leasing, as it "seemed to promise the largest revenue to the government, and to afford the best security against monopo"lies; but further reflection and our experience in leasing the lead mines and selling lands upon credit, "have brought my mind to the conclusion that there "would be great difficulty in collecting the rents, and "that the relation of debtor and creditor between the "citizens and the government would be attended with many mischievous consequences. I therefore recom"mend that instead of retaining the mineral lands "under the permanent control of the government, they "be divided into small parcels and sold, under such "restrictions as to quantity and time as will insure the "best price and guard most effectually against combi"nations of capitalists to obtain monopolies."

On the day following, Hon. Thomas Ewing, then secretary of the interior, laid before congress an elaborate report concerning the discovery of gold in California, wherein he called attention to the fact that no existing law gave the executive power to deal with the mines or protect them from intrusion, and some legal provision was necessary for their protection and disposition. He recommended a transfer by sale or lease, reserving a part of the gold collected as seigniorage.

Nothing, however, came of these recommendations. Senator Fremont, on September 24, 1850, introduced a bill in the United States senate "to make temporary provision for the working and discovery of gold "mines and placers in California, and preserving order "in the mines," and contemplated a system of licenses

to be granted upon payment of a nominal monthly rental. This bill passed the senate, but not the house.1

49. Coal land laws-Mining claims in NevadaSutro tunnel act.-There were several minor attempts made to pass a general mining law applicable to the gold regions, but they met with no success. While all admitted something should be done, sentiment was divided on questions of policy.

3

Laws were passed regulating the sale and disposal of coal lands; one on July 1, 1864,2 and one on March 3, 1865; and two laws, special and local in their nature -viz., the act of May 5, 1866, concerning the boundaries of the state of Nevada, wherein it was provided that "all possessory rights acquired by citizens of the "United States to mining claims discovered, located, "and originally recorded, in compliance with the rules "and regulations adopted by miners in the Pah Ranagat and other mining districts in the territory incor"porated by the provisions of this act into the state "of Nevada, shall remain as valid, subsisting mining "claims; but nothing herein contained shall be so con"strued as granting a title in fee to any mineral lands "held by possessory titles in the mining states and 1.Yale on Mining Claims and Water Rights, pp. 340-349.

13 Stats. at Large, p. 343.

Id., p. 529. These two acts provided for the disposal of coal lands and the sale of town property upon the public domain. The act of March 3, 1865, § 2, contains the following proviso, with reference to the sale of town lots: "Provided, further, That where mineral veins are possessed, "which possession is recognized by local authority, and to the extent so "possessed and recognized, the title to town lots to be acquired shall be "subject to such possession and the recognized use thereof. Provided, "however, that nothing herein shall be construed as to recognize any "color of title in possessors for mining purposes as against the govern'ment of the United States."

14 Stats. at Large, p. 43.

"territories." The second was the Sutro tunnel act, approved July 25, 1866,1 which granted the right of way and other privileges to Adolph Sutro and his assigns to aid in the construction of a draining and exploring tunnel to the Comstock lode in the state of Nevada. This act conferred upon Sutro the right of pre-emption as to lodes within two thousand feet on each side of the tunnel, cut or discovered by the tunnel, excepting the Comstock lode and other lodes in the actual possession of others. The act also recognized the mining rules and regulations prescribed by the legislature of Nevada. On the day following, congress passed the law generally known as the "lode and water "law of 1866," to which we will now devote our attention.

114 Stats. at Large, p. 242.

'Yale on Mining Claims and Water Rights, pp. 351-352.

THIRD PERIOD:

CHAPTER IV.

FROM THE PASSAGE OF THE LODE LAW

OF 1866 TO THE ENACTMENT OF THE GENERAL LAW

53. The act of July 26, 1866. This act was entitled "An act granting the right of way to ditch and "canal owners through the public lands, and for other 66 purposes." The title gives no clue to the scope of the act. As a matter of fact, the title belonged to another act which had passed the house, and for which the mining act was substituted in the senate, without any attempt to change the title, and in this form passed both houses.1

It was the first general law passed under which title might be acquired to any of the public mineral lands within what are known as the precious-metal-bearing

1 Yale on Mining Claims and Water Rights, p. 12.

states and territories. While most of the provisions of this act have been repealed and superseded by subsequent legislation, it remains a muniment of title to many mining properties, rights to which attached prior to its repeal. To this extent it is still operative.2

54. Essential features of the act.—No one has ever claimed that this act was a model piece of legislation. It is faulty and crude in the extreme, and the embarrassments surrounding its proper interpretation are still encountered in the courts, where property rights arising under it come in conflict with those acquired under the later laws. Yet the mining communities accepted it as being a step in the right direction. Mr. Yale says of it:

"As the initial act of the legislation which must neces"sarily follow, it is more commendable as an acknowl"edgment of the justice and necessity which dictated it, "and its expediency as a means to the advancement of "the material interests of the state and nation, than for "the perfection of its provisions or their exact adapta"tion to the accomplishment of the object intended. We "must not, however, find fault with the law on account "of its imperfections or the introduction of objectionable "features in the mode to be followed in acquiring a title "under it. These imperfections can be remedied, the "rights of the parties amplified in many particulars, and "the system so changed as to work with more facility "than now anticipated." "

It is certainly due to Senators Stewart and Conness, the authors of the bill, to explain that at the time of its passage it was extremely difficult to secure the consideration of any measure touching the subject of mineral

'Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 62, 18 Sup. Ct. Rep. 895.

The full text of the act will be found in the appendix.

Yale on Mining Claims and Water Rights, pp. 9-10.

Lindley on M.—6