débris which was swept down into the lowlands [of California by hydraulic mining], a protest was raised by the farmers dwelling there, who claimed that their farms were being ruined, and it soon became a question which should survive, the farmer or the miner; for in places the gravels and sand from the washings choked up streams and accumulated to a depth of 70 or 80 feet. The question was settled in 1884 in favor of the farmer by an injunction issued by the United States Circuit Court which caused many of the hydraulic mines to suspend operations, and at a later date this was extended by state legislation adverse to the hydraulic mining industry. Owing to this setback, hydraulic mining fell to a comparatively unimportant place in the gold-producing industry of California, while at the same time quartz mining increased. The passage of the Camietti law now permits hydraulic mining, but requires that a dam shall be constructed across the stream to catch the 'tailings.' 27 "Dredging' consists in taking the gravel from the river with some form of dredge. * The gravel, when taken from the river, is discharged onto a screen, which separates the coarse stones, and the finer particles pass over amalgamated plates, tables with riffles, and then over felt. ** In arid regions, where the gold-bearing sands are largely the product of disintegration, and water for washing out the metal is wanting, a system known as 'dry blowing' is resorted to." 28 * * The author should also have mentioned "booming," where the water is dammed up from time to time and let out in a flood to cut away the gravel. Where quicksilver has been used, the amalgam is taken and treated as in the case of a clean-up at a stamp or rotary mill. 27 The refuse which goes over the tail end of the sluice box or is otherwise washed down. 28 Prof. Heinrich Reis' Economic Geology of the U. S. 346–349. CHAPTER IX. DEFINITIONS OF MINING LAW TERMS. 82. Definition of "valuable mineral deposits." 34. Definition of "placer." 35. Definition of "apex" of veins. 36. Definition of "course" or "strike" of veins. 37. Definition of "dip" of veins. 38. Definition of "mining claim" or "location.” In addition to defining practical mining terms, it is desirable to define some of the mining law terms as a preparation for the discussion of specific mining law problems. VALUABLE MINERAL DEPOSITS. 32. Lands are mineral if they contain recognized minerals in such quantities that they are more valuable for mining purposes than for agricultural, and the mineral deposits in such lands are valuable within the meaning of the federal statute if, when taken up first for mining, they have such value that the locator cannot be called irrational in locating and working them, or if, when taken up first for agriculture, they can be mined at a profit. The federal statute throws open to exploration and purchase "all valuable mineral deposits in lands belonging to the United States." 1 By "valuable mineral deposits" is meant, in the first place, deposits known to be mineral at some time prior to the issuance of a United States patent. "It is plain, from this brief statement of the legislation of Congress, that no title from the United States to land known at the time of sale to be valuable for its minerals of gold, silver, cinnabar, or copper can be obtained under the pre-emption or homestead laws, or the townsite laws, or in any other way than as prescribed by the laws specially authorizing the sale of such lands, except in the states of Michigan, Wisconsin, Minnesota, Missouri, and Kansas. We say 'land known at the time to be valuable for its minerals,' as there are vast tracts of public land in which minerals of different kinds are found, but not in such quantity to justify expenditures in the effort to extract them. It is not to such lands that the term 'mineral' in the sense of the 1 Rev. St. U. S. § 2319 (U. S. Comp. St. 1901, p. 1424). statute is applicable. In the first section of the act of 1866 no designation is given of the character of mineral lands which are free and open to exploration. But in the act of 1872, which repealed that section and re-enacted one of broader import, it is 'valuable mineral deposits' which are declared to be free and open to exploration and purchase. The same term is carried into the Revised Statutes. It is there enacted that 'lands valuable for minerals' shall be reserved from sale, except as otherwise expressly directed, and that 'valuable mineral deposits' in lands belonging to the United States shall be free and open to exploration and purchase. We also say 'lands known at the time of their sale to be thus valuable,' in order to avoid any possible conclusion against the validity of titles which may be issued for other kinds of land, in which, years afterwards, rich deposits of mineral may be discovered. It is quite possible that lands settled upon as suitable only for agricultural purposes, entered by the settler and patented by the government under the pre-emption laws, may be found, years after the patent has been issued, to contain valuable minerals. Indeed, this has often happened. We, therefore use the term 'known to be valuable at the time of sale,' to prevent any doubt being cast upon titles to lands afterwards found to be different in their mineral character from what was supposed when the entry was made and the patent issued." 2 What is a "mineral deposit" depends somewhat upon the meaning of "mineral." "It is not easy in all cases to determine whether any given piece of land should be classed as mineral land or otherwise. The question may depend upon many circumstances, such as whether it is located in those regions generally recognized as mineral lands, or in a locality ordinarily regarded as agricultural in its character. Lands may contain the precious metals, but not in sufficient quantities to justify working them as mines, or make the locality generally valuable for mining purposes, while they are well adapted to agricultural or grazing. pursuits, or they may be but poorly adapted to agricultural purposes, but rich in minerals; and there may be every gradation between the two extremes. There is, however, no certain well-defined, obvious boundary between the mineral lands and those that cannot be classed in that category. Perhaps the true criterion would be to consider whether upon the whole the lands appear to be better adapted to mining or other purposes. However that may be, in order to determine the question, it would, at all events, be necessary to know the condition and circumstances of the land itself, and of the immediate locality in which it is situated. It is the duty of the officers of the government having the 2 DEFFEBACK v. HAWKE, 115 U. S. 392, 404, 405, 6 Sup. Ct. 95, 29 L. Ed. matter in charge, before making a grant, to ascertain these facts, and to determine the problem whether the lands are mineral or not." The fact is that the term "mineral deposits" cannot be considered apart from the word "valuable," and that the full term "valuable mineral deposits" is not used in any technial mineralogical sense, but, like the term "fixture" in the law of real property, has a flexible meaning according to the circumstances of the given case, and particularly to the situation. of the contending parties. 5 In Lynch v. United States, where the question of the right of the defendant to cut certain timber on public lands depended upon whether the land was "mineral and not subject to entry under existing laws of the United States except for mineral entry," or whether it was agricultural, the United States Circuit Court of Appeals, Ninth Circuit, said that the classification of the land as mineral by commissioners appointed under the act of Congress of February 16, 1895, was not conclusive, but was of the same effect as the return of mineral lands made by the surveyor general; and the court accordingly considered the evidence of the actual use to which the land had been put. A verdict against the defendant because of the nonmineral character of the land, the verdict being based on testimony that the region had been prospected, and, though float was found over it, no mineral-bearing veins had been discovered, and that small tracts near defendant's mill, and also adjoining the land from which defendant cut the timber, were cultivated to crops, was allowed to stand. The court said: "Was the land mineral, and subject to entry as such under the laws of the United States, or was it agricultural land? The question of the character of land is always one of fact, and what evidence is more satisfactory than the actual use to which it has been placed by those who occupied it and made it a means of livelihood? It may not be conclusive evidence, since there are many instances where valuable mineral deposits have been found in ground devoted to other than mining purposes, and where such deposits were not supposed to exist. But nevertheless this testimony as to the actual use of the land tends to establish its character and clearly is relative and material for that purpose." 8 Ah Yew v. Choate, 24 Cal. 562, 567. In conveyances and leases of land "mineral" is generally used in the commercial sense of any inorganic substance found in nature, having sufficient value, separated from its situs as part of the earth, to be mined, quarried, or dug for its own sake, or its own specific purposes. Hendler v. Lehigh Valley R. Co., 209 Pa. 256, 58 Atl. 486, 103 Am. St. Rep. 1005. 4138 Fed. 535, 71 C. C. A. 59. Act Cong. June 3, 1878, c. 150, 20 Stat. 88 (U. S. Comp. St. 1901, p. 1528). 28 Stat. 683, c. 131. Lynch v. United States, 138 Fed. 535, 540, 71 C. C. A. 59. COST.MIN.L.-8 The same court, in the earlier case of United States v. Rossi, involving the same timber act, where the verdict below was in favor of the defendants, avoided passing on an instruction below about mineral lands, because a proper exception to it was not saved. The trial court, after telling the jury that "the law includes as mineral lands, not only those tracts on which mineral has actually been discovered, and which has been or can be legally located as mining locations, but also all other lands lying in reasonably close proximity to or in the general neighborhood of such tracts, and all such neighboring lands as have the general characteristics of mining lands, even if mineral has not been actually discovered therein," instructed them further as follows: "Much has been said as to the quantity of mineral that must be found in ground to constitute it mineral land. The laws themselves fix no limits. They do not even say that it must be more valuable for mineral than for other purposes. It is therefore a subject for conjecture, -one upon which opinions may and do differ. But I feel justified in saying to you that ground containing only a trace of mineral-a color -or containing it in such small quantities that a miner would not expect it ever to prove profitable, cannot be held mineral land; but when it contains sufficient to encourage the miner to claim and locate it in good faith as mining ground, and to work and develop it in the reasonable expectation of finding paying quantities, even if it never proves valuable, it is, within the law, mineral land. The question may arise, how are we to know the miner's opinions on these questions? My answer is, by his actions-by what he does, whether or not he located the ground and continues to occupy it and develop it. I may add in this connection that an occasional location here and there over a country, which is not developed and not worked, is just such evidence as constitutes the entire country a mineral district; but the mining operations carried on must be such as to indicate that those who do locate claims and who carry on the work have faith in the country. I mean by that that you cannot make the mere appearance of mineral in a country the excuse for claiming the whole country to be mineral. There must be something substantial back of it in order to justify the claim. that a country is mineral. Now, in this particular case you must judge of the country by what has been produced there, by what has been done, and from all that conclude whether or not the men who are engaged in mining in good faith look upon that as mineral country. I do not know any better rule or test than the judgment of men who are engaged in mining. If that class of men deem a country a mineral 8133 Fed. 380, 66 C. C. A. 442. 9 United States v. Rossi, 133 Fed. 380, 382, 66 C. C. A. 442. |