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lands. Eastern sentiment was divided on questions of governmental policy, and the delegations from the western states were not harmonious. If future experience has shown defects to exist in the law, the authors and friends of the measure are entitled to the gratitude of those engaged in the mining industry for the establishment of at least three important and beneficent principles :

First-That all the mineral lands of the public domain should be free and open to exploration and occupation. Second-That rights which had been acquired in these lands under a system of local rules, with the apparent acquiescence and sanction of the government, should be recognized and confirmed; 1

Third-That titles to at least certain classes of mineral deposits or lands containing them might be ultimately obtained.

55. Declaration of governmental policy.-By the first of these provisions, the government, for the first time in its history, inaugurated a fixed and definite legislative policy with reference to its mineral lands. It forever abandoned the idea of exacting royalties on the products of the mines,2 and gave free license to all its citizens, and those who had declared their intention to become such, to search for the precious and economic minerals in the public domain, and, when found, gave the assurance of at least some measure of security in possession and right of enjoyment. What had theretofore been technically a trespass became thenceforward a licensed privilege, untrammeled by governmental surveillance or the exaction of burdensome conditions. Such 'conditions as were imposed were no more onerous than

Jennison v. Kirk, 98 U. S., 453, 458; Blake v. Butte S. M. Co., 101 U. S. 274.

Ivanhoe M. Co. v. Keystone Cons. M. Co., 102 U. S. 167, 173.

those which the miners had imposed upon themselves by their local systems. That such a declaration of governmental policy stimulated and encouraged the development of the mining industry in the west, is a matter of public history.

2 56. Recognition of local customs and possessory rights acquired thereunder. As was observed in the preceding chapter, the federal government had practically acquiesced from the beginning in the system of local rules established in the various mining districts. That is to say, no overt act was done by the government to overthrow or repudiate the system. No attempt was made to interfere with mining upon the public domain. The process by which these primitive systems came to be recognized, first by the states, and then by the national government, was natural. When mineral discoveries were made in other territories and states, the system inaugurated in California was adopted to govern and regulate the new mining districts.1

Local legislatures and local courts followed the precedent set in California, by enacting and upholding laws confirming the right in the newly discovered mineral districts to established rules governing the mining industry. As the supreme court of the United States said, before the act of 1866 was passed:

"We cannot shut our eyes to the public history which "informs us that under the legislation (state and terri"torial), not only without interference by the national "government, but under its implied sanction, vast min"ing interests have grown up, employing many millions "of capital and contributing largely to the prosperity "and improvement of the whole country." 2

1 St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 650.

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Sparrow v. Strong, 3 Wall. 97, 104. See, also, Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. Rep. 895.

The unqualified legislative recognition of these local systems was a simple act of justice. Any other course would have involved a practical confiscation of property acquired and developed by the tacit consent of the government. That this act was such unqualified recognition has been abundantly established by the highest judicial authority.1

57. Title to lode claims. It may seem strange that the first mining law under which title to mining property could be absolutely acquired was limited in its operation in this direction to lode, or vein, claims. All mineral lands, whatever the forms in which the deposits therein occurred, were thrown open to exploration; but only lode claims could be patented. We are at a loss to understand the reason for this, unless it is accounted for by the state of the industry at the time the act was passed. Placer mining, which had occupied the attention exclusively of the early miners of California, was on the decline, and the quartz, or lode, mining was in the ascendency. The auriferous quartz veins of California were being developed to an important extent. Nevada, with its great Comstock lode, was attracting the attention of the civilized world. Much expensive litigation had arisen there, and the necessity for some law giving a degree of certainty to mining titles was urgent. In addition to this, important quartz veins of great value had been discovered in other portions of Nevada, and in Colorado,

2

'Jennison v. Kirk, 98 U. S. 453, 459; Broder v. Natoma Water Co., 101 U. S. 274; Chambers v. Harrington, 111 U. S. 350, 352, 4 Sup. Ct. Rep. 428; N. P. R. R. Co. v. Sanders, 166 U. S. 620, 17 Sup. Ct. Rep. 671; Titcomb v. Kirk, 51 Cal. 288.

The surveyor-general for the state of Nevada, in his report for 1865, expressed the belief that one fifth of the output of the Comstock, estimated up to that date by Mr. J. Ross Browne at forty-five millions of dollars, was spent in litigation. (Mineral Resources of the West, 1867, p. 32.)

Idaho, Montana, and other of the precious-metal-bearing states and territories. All these facts considered, it is safe to assume that the lode-mining industry was the one which was uppermost in the public mind, and which was most in need of national statutory regulation. At all events, until the passage of the placer law of 1870, no ultimate title to any mineral lands could be acquired, except to a "vein, or lode, of quartz or other rock in "place, bearing gold, silver, cinnabar, or copper."

The method of obtaining this title provided for in the act was simple; but the nature of the thing granted, the relationship of the surface and its boundaries to the lode, the extent of the dip or extralateral right, and some of the terms used in the act were, and still are, matters of serious contention and controversy.

The historical importance of the act of July 26, 1866, consists in the establishment of the three important principles enumerated in section fifty-four.

258. Relationship of surface to the lode. - Under local rules, as well as under the act of 1866, the lode was the principal thing, and the surface was in reality an incident.1 The manifest purpose of section two of the act of 1866 was a conveyance of the vein, and not the conveyance of a certain area of land in which was the vein.2 Nowhere in the act of 1866 was there any express limitation as to the amount of land to be conveyed. Obviously, the statute contemplated the patenting of a certain number of feet of the particular vein claimed by the locator, no matter how irregular its course. No pro

1 Johnson v. Parks, 10 Cal. 447; Patterson v. Hitchcock, 3 Colo. 533, 544; Wolfley v. Lebanon, 4 Colo. 112; Walrath v. Champion M. Co., 63 Fed. 552.

2

* Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 63, 18 Sup. Ct. Rep. 895; Calhoun G. M. Co. v. Ajax G. M. Co., 59 Pac. 607, 612, 27 Colo. 1, 83 Am. St. Rep. 17.

vision was made as to the surface area, leaving the land department in each particular case to grant so much of the surface "as was fixed by local rules" or was, in the absence of such rules, in its judgment necessary for the convenient working of the mine.1

While in some districts the precise quantity of surface allowed in connection with a lode was fixed by local rules, in many others no fixed quantity was mentioned. The lode only was located, the claims being staked, if at all, at the ends only. The notice of location usually called for so many feet on the vein, and a misdescription as to its course did not vitiate the location. The locator had a right prior to patent to follow it wherever it ran.2

Neither the form nor extent of the surface area claimed controlled the rights on the located lode. It did not measure the miner's rights either to the linear feet upon its course or to follow the dips, angles, and variations of the vein.3

The local rules fixed no bounding planes across the course of the vein, and end lines were not in terms provided for, although they were, according to the decision in the Eureka case, implied. But there was no implication that they should be parallel.*

Under the local rules, there was no question raised as to any side lines, for there were none provided for.5

A locator could hold but one lode, or vein, even if his

'Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 63, 18 Sup. Ct. Rep. 895.

Johnson v. Parks, 10 Cal. 447; Larned v. Jenkins, 113 Fed. 634. Eureka Case, 4 Saw. 302, 323, Fed. Cas., No. 4548; Golden Fleece G. and S. M. Co. v. Cable Cons. Co., 12 Nev. 312, 328.

Eureka Case, 4 Saw. 302, 319, Fed. Cas., No. 4548; Iron S. M. Co. v. Elgin, 118 U. S. 196, 208, 6 Sup. Ct. Rep. 1177.

5 Carson City G. M. Co. v. North Star M. Co., 83 Fed. 658, 666. Eureka Case, 4 Saw. 302, 323, Fed. Cas., No. 4548; Eclipse G. and 8. M. Co. v. Spring, 59 Cal. 304; Walrath v. Champion M. Co., 63 Fed. 552; Calhoun G. M. Co. v. Ajax G. M. Co., 59 Pac. 607, 612, 27 Colo. 1, 83 Am. St. Rep. 1.

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