eral right; to Mr. Myron A. Folsom, of the Spokane bar; Messrs. Henry M. Hoyt, B. L. Quayle, and C. S. Chandler, of the San Francisco bar, all of whom are entitled to the author's grateful acknowledgment for their patient and intelligent assistance in many of the laborious details involved in the preparation and publication of the treatise. The author is also indebted to many members of the bar in the mining states and territories for valuable suggestions and criticisms, to each of whom he returns his sincere thanks. In submitting this edition to the profession the author also desires to express his sense of obligation to the publishers for their uniform kindness and consideration, and for their painstaking effort to present the treatise in a form commensurate with the importance and dignity of the subject.

San Francisco, May, 1903.

CURTIS H. LINDLEY.

PREFACE TO FIRST EDITION.

THE United States cannot be said to possess a National Mining Code, in the sense that the term is used and understood among the older nations of the earth.

The system of rules which sanctions and regulates the acquisition and enjoyment of mining rights, and defines the conditions under which title may be obtained to mineral lands within the public domain of the United States is composed of several elements, most of which find expression in positive legislative enactment. Others, while depending for their existence and application upon the sanction of the General Government, either express or implied, are in a measure controlled by local environment, and are evidenced by the expressed will of local assemblages embodied in written regulations, or rest in unwritten customs peculiar to the vicinage.

American mining law may therefore be said to be found expressed

(1) In the legislation of Congress;

(2) In the legislation of the various states and territories supplementing Congressional action, and in harmony therewith;

(3) In local rules and customs or regulations established in different localities not repugnant to Federal legislation, or that of the state or territory wherein they are operative.

This system, as thus constituted, is deemed national only in a restricted sense. As a rule of property, it has no application or force in many of the states of the Union.

Generally speaking, its operation is limited geographically to the area acquired by the General Government by cession from the original states, or by treaty with or purchase from foreign powers subsequent to the organization of the General Government, or perhaps, more logically stated, its operation is co-extensive with the area of the public domain, the primary

ownership and right of disposal of which resides in the General Government.

It does not seek to regulate or control mines or mining, within lands held in private ownership, except such only as are acquired directly from the Government under the mining laws, and then only forming a muniment of the locator's or purchaser's title, and measuring his rights.

It does not require the payment of either tribute or royalty as a condition upon which the public mineral lands may be explored or worked.

It treats the Government simply as a private proprietor holding the paramount title to its public domain, with right of disposal, upon such terms and conditions, and subject to such limitations, as the law-making power may prescribe.

The National Government acquired no rights of property within the present boundaries of the thirteen original states; nor in the states of Vermont, Kentucky, Maine, or West Virginia, which were severally carved out of territory originally forming a part of some one of the original states; nor in Texas, as by the terms of its admission into the Union the state retained all the vacant and unappropriated public lands lying within its limits, for the purpose of liquidating its debt contracted while it was an independent republic.

The entire area of Tennessee was originally public domain; but the United States donated the same to the state, after deducting the lands necessary to fill the obligations in the deed of cession of North Carolina.

In Arkansas, Illinois, Missouri, Iowa, Michigan, Minnesota, and Wisconsin, lands of the Government containing the baser metals (lead and copper) were ordered sold under special laws, prior to the discovery of gold in California.

By acts of Congress, passed at different times, Alabama, Michigan, Wisconsin, Minnesota, Missouri, and Kansas, were excepted from the operation of the general mining laws.

The system is inoperative in Oklahoma, as by Congressional law all lands within that territory are declared to be agricultural.

With the exception, perhaps, of lands containing deposits of coal, and some of the baser metallic substances, the system

is practically confined in its operation to those states and territories lying wholly or in part west of the one hundredth meridian, embracing the states of California, Colorado, Oregon, Washington, Nevada, Idaho, Montana, North Dakota, South Dakota, Wyoming, and Utah, the territories of Arizona and New Mexico, and the district of Alaska. These comprise the precious-metal-bearing states and territories of the "Public Domain."

As thus defined and limited, "American Mining Law" is the subject of this treatise.

While in the treatment of the subject, and in the discussion of the origin and growth of the system, as we understand it, we shall at times encounter the earmarks of an older civilization and find lodged in what we might term a primitive custom, the experience of ages; yet wherever its rules depart from the doctrine of the common law, the system, as such, is of recent birth and modern development. It is an evolution from primitive and peculiar conditions, a crystallization of usages which do not appeal to antiquity for either their force or wisdom.

It is the principal design of this work to treat of this system as it is at present constituted. But as it is in itself an evolution out of antecedent and somewhat complex conditions, some space will be devoted to a consideration of an historical nature concerning the policy of the Government in dealing with its mineral lands prior to the enactment of general laws affecting them, and to trace the growth of the system through its various stages of development.

As an appropriate introduction to a treatise of this nature, the author has inserted a chapter epitomizing the different systems of mining jurisprudence in force at different periods in the countries from which the United States acquired its public domain. We may reasonably expect to find in the growth and development of our own system the influence of those laws. It has also been deemed advisable to insert a brief review of the systems adopted in the states of the Union wherein the Federal Government acquired no property, and where the regulation. of the mining industry falls exclusively within the jurisdiction of state legislation.

This comparative review of the mining laws, foreign and state, will at least be of historical interest, if it should serve no other or higher purpose.

As state and territorial legislation supplementing the acts of Congress is permitted, if not in fact contemplated, by the federal laws, careful consideration will be given to these local statutes and the decisions of courts in construing them. The value of a decision as a precedent often depends on local conditions. The legitimate scope of this permissive local legislation is a fruitful subject of controversy.

The existing legislation of each state and territory supplementing the federal laws, together with references to legislation on cognate subjects, will be found in the appendix, with citations under each section indicating where the subject-matter has been discussed and generally treated in the text.

The appendix also contains the various acts of Congress upon the subject of mineral lands, and the regulations of the land department, with back references to the text; also such forms as in the author's judgment might be serviceable to the profession.

In citing authorities the author has adopted the rule of citing the case from the original report only; but in the table of cases will be found the date of the decision, and a citation to every standard report, including the "National Reporter" system, wherein the case appears.

Realizing the importance of a comprehensive and exhaustive index, the author has himself undertaken the work of its preparation.

While the treatise is in the main devoted to a consideration of the federal mining system, to meet the general expectation of the profession we deem it advisable to devote some space to cognate subjects, including rights and liabilities arising out of the conduct of mining ventures, mining partnerships, cotenancy, and obligations flowing from contractual relations.

The necessity for a comprehensive treatise on American mining law is conceded. The literature on this branch of jurisprudence is limited. Most of the works which have been presented to the profession, while possessing great merit, have