CHAPTER I

Origin of American Mining Law

These, arriving in

The discovery of gold in California was made in 1848, and was immediately followed by the immigration to that part of the world of thousands and hundreds of thousands of men of every class, occupation, and extraction. the New Eldorado, found it to be a wild, unpopulated region, far removed from organized civilization; one in which, to a large extent, every man made his own law. Led by that instinct of proceeding collectively along orderly and definite lines, which is observed even in the lowest of animals and finds its highest development in the educated, thinking, untramelled American, they at once proceeded to establish customs and rules for their guidance. It was in these customs and rules that American mining law had its birth, and from which it has been developed. Upon what were these early and incipient laws modeled? Some presume to see in them the already existing mining laws and customs of Mexico and other countries; but a careful consideration indicates that they were mainly evolved by the newly made miners to meet the conditions in which they found themselves. The simple wisdom of these early customs and laws, and the extent to which they have become our present American mining law, is the grandest monument that can ever be raised to the nobility and sterling qualities of these pioneers.

The first step in the making of the law was the formulating of rules to be observed in the immediate vicinity of each camp. These were adopted in mass-meetings by the miners of the camp, who termed the area over which they should extend a district. As the States and Territories in which mining was carried on became organized, they, recognizing the marked similarity of the customs and rules of the various mining districtswhich has been called the American common law of mining

framed their mining laws upon the same, with the expressed or implied idea that where these customs and rules were not in conflict with the State and National laws, they would be accepted as evidence in controversies and would govern decisions. The National laws and regulations were subsequently framed along these lines.

In considering the mining law of today, it should be remembered that it is based on the customs and rules of the miners, and that in the absence of adverse statutes, regulations, or decisions, the ideas of practical miners will be taken and allowed to prevail, so far as can be consistently done. The present mining law is contained in the Federal Statutes or Acts of Congress, in the regulations and decisions of the General Land Office, in the State statutes, and in the decisions of the Federal and State courts, also to some extent in the remaining rules and customs of any still existent local mining districts.

The early prospectors and miners were really trespassers upon the public domain, appropriating it and its mineral contents without the sanction of any Federal law. Though they acted in most cases under district regulations and State laws, these were unable to confer to the miners any actual title to the ground which they were working, as the ownership was vested in the United States. The Acts of Congress of 1866 and 1870 were the first real attempts at providing laws for the protection of miners and the disposal of mineral land to them. The Act of May 10, 1872, superseding or extending the previous ones of 1866 and 1870, is the basis of our present law, and we are not concerned with the small differences of previous legislation, except in the case of claims located prior to the Act of 1872. This Act is part of the Revised Statutes (abbreviated R. S.). Amendments and subsequent Acts are termed Acts of Congress. These Federal Statutes, being the National laws on mining, are the highest and governing authority, and are in force throughout the public-land States except where provision to the contrary has been made by Congress.

The General Land Office or Land Department, as the office in charge of the disposal of the public lands, has the authority to make and enforce regulations for such disposal, subsidiary

to and consistent with the Federal Statutes. The United States mining laws as contained in the Federal Statutes and the mining regulations of the General Land Office are issued by that office under the title, 'United States Mining Laws and Regulations Thereunder'; they are found in this volume as Appendix B. Almost equally important with the regulations are the Decisions of the Land Department, known as the L. Ds. These contain the decisions and circulars of the General Land Office and Department of the Interior regarding public-land questions. The subject of mining law, mainly with regard to patents, occupies a large part of the 38 volumes now issued.

The State statutes being subordinate to the Federal Statutes and unable to increase or to take away, except by restriction, from the general rights conferred by the Federal Statutes, are mainly concerned with specifying how the details shall be performed to obtain the mining rights granted by the Federal Statutes. A digest of the more important points of these forms Appendix A of this work. A study of them indicates that the principal matters they take up are to specify the time within which to mark the boundaries and record the claim, the time within which to do the discovery work and its nature, how the claim shall be marked, details of the location certificate, etc.; that they are in the nature of regulations, rather than primary legislation; that they can be dispensed with-in fact, California for many years prior to 1909 had no State mining statutes, while Alaska has none today-with about the only difference of allowing wider latitude under the Federal Statutes in those details they restrict; and that by making the Federal Statutes more detailed, all necessity of State mining statutes would be done away with.

The customs and rules of the local mining districts, where any such customs and rules may remain or are being enforced today, are of similar purpose but less weight than the State statutes, with which as well as with the Federal Statutes they must harmonize. They should be complied with as consistently as possible, since the Federal Statutes recognize and give some weight to these local customs and rules. In the early days when mining was carried on in isolated and but little organized

communities far from the seat of government, the district regulations were a most important thing to secure order and justice to all, but as these communities were brought under organized and capable Territorial and State control and the mining laws were developed, the necessity of these regulations became less and less until now there appears to be no call for them except in such isolated communities as the remote mining districts of Alaska.

The decisions of the courts, the 'judge-made' law, interpreting and applying the mining statutes and customs, are found in the various court reports. These constitute, perhaps, the most important part of mining law, for, on account of the meagerness of the Federal Statutes-hardly more than suggestive in some cases the courts have found it necessary to make the law by their decisions as the different questions came into litigation. A few of the court decisions are at variance with each other or the general ideas that prevail in mining, but taken as a whole, they savor of an attempt to do justice to the miner along his own simple lines of reasoning, and not according to the technicalities and intricacies of law.

Connected with the subject of what is the mining law and where it may be found, are the standard text-books on mining law. These are as follows: Lindley on Mines (2 vol., 1903); Snyder's Mines and Mining (2 vol., 1902); Morrison's Mining Rights (14th Ed., 1910); Shamel's Mining, Mineral, and Geological Law (1907); Martin's Mining Law and Land Office Procedure (1908); Costigan's American Mining Law (1908); Ricketts' Manual of American Mining Law (1911).

The present law provides, (1) for the location of lode claims upon all mineral deposits of a vein or lode character; (2) for the location of placer claims upon mineral deposits which are essentially different from lode deposits, and of oil and gas lands; (3) for the location of veins or lodes within placer claims; (4) for the location of millsites to provide surface upon nonmineral ground for reduction of ores, etc.; (5) for the location of tunnel sites to cut and claim blind lodes. To these may be added the allied laws referring to coal lands and timber and

stone lands, and the extralateral-right law allowing the vein to be followed indefinitely on its dip.

The substance of these laws is that by making a location upon the public domain in conformity to the law, the miner acquires a right of possession to the ground he appropriates, which is called a 'possessory right.' He cannot be divested of his possessory right to the ground, except it be shown that he has not complied with the law, or that the ground is more valuable for some other purpose. On a lode or placer claim, by doing annually $100 worth of work tending to develop the claim, he preserves his possessory right from year to year. He can at any time, by having survey made, patent application filed, and $500 worth of improvements made, pay the purchase price of $2.50 per acre for placer claims and $5 for lode claims, and obtain an absolute or fee title-a title not dependent on conditions from the Government, that is irrevocable except in the case of fraud or serious error in the law.

The Act of May 10, 1872, comprehending nearly all of our present mining law, was coined from the customs and rules of the miners. For nearly twenty-five years these customs and rules had been developed and tested under strenuous conditions, before they were incorporated into the Federal Statutes. In this is seen the reason why the Act has so well stood through changing conditions to the present day. The framers were content with giving only the bare outline, the fundamentals of the law, leaving the details to the States and districts, and to the courts. Most of the questions have been solved as they arose by the courts, and mainly in this way has the mining law been built up. The tendency has been to require the Land Department to meet the new conditions arising that were not properly subject to court jurisdiction, instead of making new laws or statutes. The additions since the Act of 1872 have been few, and only those that were literally forced. It is recognized by all that much of the present law needs to be revised and added to, to meet the new conditions, but there are no well formed ideas as to how this is to be accomplished, and this is just the reason that the Act of 1872 has stood so long with but little addition.