width" which was only another way of expressing the same idea that there was no limitation on the right to follow the vein in depth. Other regulations granting the same right to follow a certain length of vein indefinitely in depth were expressed in language which varied in each case. This diversity of expression to convey the same general idea of a right to follow down on the vein indefinitely and also the varying length of vein awarded to the locator in different districts, argue strongly against any idea of a definite prototype which influenced the drafting of these regulations.

The resemblance of many features of these regulations to the provisions of other systems of mining law is merely confirmation of the fact that if intelligent persons are confronted with a state of affairs creating a situation which demands regulation by a set of rules, they will frequently arrive at results similar in their broader aspects. Dictates of common sense will usually direct the adoption of rules based on equitable considerations. It seems quite certain that the pioneer miners of California proceeded along similar lines and met the situation which confronted them by adopting laws governing their mining operations, similar in many respects to other laws which had been evolved elsewhere under like circumstances. The similarity was a coincidence rather than the result of a deliberate recognition of pre-existing laws."

Berkeley, California.

Wm. E. Colby.

44 Walmesley in "The Mining Laws of the World" (1894), p. 163 says: "The California system was probably not due to Mexican influence. The principle of possessory tenure, dependent upon continued work, is probably German in origin, and passed from Germany to other countries. Together with all the other peculiarities of the California system, it was adopted under the pressure of the peculiar circumstances of the case, a great rush of population to the gold-fields, more people than room for them, no courts, no surveyors, and an overwhelming necessity for simple right of property, based on priority and possession, and determinable by mere tape-line measurement, without surveying. These causes adequately explain the whole result." The basis of most of Walmesley's statements is the testimony given by Dr. Rossiter W. Raymond before the Royal Commission on Mining Royalties. (Third Report: England).

The presence here of foreigners in large numbers from all parts of the world lends weight to the idea that in a broad way, at least, certain fundamental principles may have been suggested by them to the original framers of these local codes, who may have thus been confirmed in their codification of similar ideas.

W

The Extralateral Right: Shall It

Be Abolished?

IV. CONCLUSION.

GROWTH OF OPPOSITION.

HEN the first concerted attempt to abolish the extralateral right was made is uncertain. The Act of 1866 was adopted without serious opposition to this feature.1 It is true that Julien in the House of Representatives attacked this idea of granting a right "allowing one man to run half a mile under the land of another" but he did this because of his bitter opposition to the bill as a whole and not because he had any special information on the subject. Instead of representing mining sentiment in the West, he was the chief exponent of the plan which had taken such a strong hold in the East of selling or leasing the mines to the highest bidder and devoting the proceeds toward liquidating the national debt. His opposition to the extralateral feature was due to his general attitude of hostility to the desire

unsus

1 William M. Stewart who has been so frequently and unjustly charged with forcing the federal mining Acts of 1866 and 1872 upon an pecting public took a leading part in the Comstock litigation during the early 60's. it was his plan to induce the different companies on the lode to put an end to otherwise certain litigation by defining their surface lines or the boundaries of their claims accurately and finally. When the boundary lines were determined it was to be stipulated that planes should be drawn perpendicular to these lines, extending indefinitely downward and that the mining operations of all companies should be confined within the limits of the planes bounding their respective claims..... Now this was substantially a relinquishment of the cherished but litigious principle which allowed a locator to follow the dips of his ledge indefinitely, and a substitution of the often-decried Spanish or Mexcan system of allotment. . . .. Unfortunately, the trustees of the Choller Company could not be persuaded to adopt Mr. Stewart's views, and he was reluctantly obliged to abandon his project and continue the fight." This role of Senator Stewart as champion of the vertical boundary system will surprise many who have ignorantly charged him with having originated the extralateral right idea in America. Comstock Mining & Miners by Lord Monograph, IV U. S. G. S., p. 145.

The Eureka mining district of Nevada on February 27, 1869, adopted a resolution declaring that the mineral in that district was found in the form of deposits rather than in true fissure veins or ledges and "Whereas this deficiency in the law may give rise to expensive litigations," square claims with vertical boundaries were adopted. Tenth U. S. Census, Vol. XIV, pp. 551-2.

of the West to have the long exercised right of free mining on the public domain recognized by positive legislation.

When the bill to amend the Act of 1866 was introduced in Congress in 1870 and 1871 and was finally enacted in 1872, no comment whatsoever was made on the extralateral feature during the course of the reported debates. Other provisions of the bill were extensively debated and altered but the section conferring the extralateral right remained unchanged and was not even criticised.2

Decided opposition to this feature of the mining law was definitely expressed, however, before the Act of 1872 had been in force many years. By Act approved March 3, 1879,3 Congress authorized the appointment of a Commission to investigate the operation of the public land laws of the United States and make "such recommendations as they may deem wise in relation to the best methods of disposing" of such lands. A consideration of public mineral lands and the laws governing their disposition naturally came within the scope of the investigation of this Commission. This Commission made an elaborate report in 1880.*

Commenting on the creation of a new class of public lands in the United States; viz., mineral lands, resulting from the discovery of gold in California, the report states that the army of prospectors who roamed over the mountain ranges in quest of speedy wealth were not agriculturalists in search of homes but were composed of persons who desired to obtain title to mines.

"As the region was a wilderness, and the authority of the general government was but imperfectly extended over the country, the miners framed for themselves regulations for their own government-crude, it is true, but in a general way securing justice. Under these local regulations or laws possessory rights to mineral lands were acquired which were afterwards confirmed by statutory law, and thus this second

2 There may have been some discussion in committee but these proceedings were not reported and the fact that the elaborately worded apex section granting the extralateral right remained unchanged throughout all this discussion when other features of the bill were being radically amended and, as finally adopted in 1872, the fact that this section was identical in language with the corresponding section of the bill that had been introduced in the previous session of Congress, leads to the conclusion that there was then no serious opposition to the extralateral right.

320 Stats. at L. 394.

4 Pub. Land. Com. Rep. (Washington, 1880), 690 pp.

class of lands was practically recognized in the administration of land affairs."

The Commission pointed out that if this land had been in private ownership the prospector would have been barred

"and the mining industry which has so rapidly grown up in that country would have been delayed for years, perhaps for centuries.

"Free exploration and the right to acquire property in mines by discovery led to the establishment of the great mining industries of the West. . . . . Thus a wise system of administering affairs relating to mining lands must recognize the importance of discovery in which poor men can engage. . .

5

"The United States mining laws of 1866 and 1872 are directly descended from the local customs of the early California miners."

Investigating the operation of these mining laws which spread from California throughout the West and which "have stemmed the tide of Federal land policy and given us a statute book with English common law in force over half the land and California common law ruling in the other," the Commission called attention to the fact that east of the Missouri, mineral development was almost exempt from litigation growing out of conditions of the government conveyance of mineral lands while in the west it was "a history of the most frequent, vexatious, costly, and damaging litigation."

"There are two general features in the existing statutes which have provoked and directed the main lines of legal contest, and they are, first, the recognition by the law of the local customs and regulations; second, the attempted conveyance of a lode, ledge or deposit of rock in place bearing mineral, as a thing separate from and independent of the surface tract of ground, with the permission to follow such lode or deposit on its dip, even when in the downward course it passes beyond the side lines of the surface claim."8

Pointing out the magnitude of the evil of allowing the mining communities the right of local regulation, the Commission urged that this source of endless litigation should be promptly abolished by Congressional enactment.

5 Id., pp. XIX-X.

6 Id., p. XXXII.

7 Id., p. XXXIV.

8 Id., p. XXXV.

Taking up the second great class of evils, "those incident to the theory of the lode or ledge location," the Commission makes the following comment:

"It has proved in practice and in law that a lode or ledge is an absolutely indefinite thing, and the act of following this formation whose nature and limits can not be fixed beyond the locator's surface ground and under the surface ground of another owner, is the most frequent and vexatious cause of litigation."

This right to follow a lode into the ground of another works "a minimum of mischief in the case of a well defined fissure vein of regular course and dip."

"With such a defined fissure vein, by spending many thousand dollars and provided his cloud of expert witnesses are not tripped up by clever cross-examination, and the judge is impartial, and the jury are not corruptly influenced against him, after many months and perhaps years, during which his enterprise has been hand-cuffed with injunctions and himself reduced to poverty, the owner might derive whatever hollow comfort he could from a victory which left him ruined."9 "From this somewhat favorable working of the law" the Commission went on with the examination of other classes of cases involving complex vein occurrences and pointed out the impossibility of reconciling these with the practical workings of the law of apex.

"Your Commission, after a review of the lines of mining contests and a consideration of the complex nature of ore deposits, are unanimous in the conviction that any attempt on the part of the United States to convey such deposits as individual things beyond the vertical planes bounding the surface claim, must always end in a history of intolerable injustice."

It therefore recommended a repeal of the extralateral right and the substitution of the common-law system of vertical boundaries in its stead.10

The Commission submitted to Congress a draft of a proposed

9 This is rather a sorry picture and while somewhat overdrawn would indicate that some at least of the Public Land Commission had come in contact with extralateral litigation.

10 Pub. Land Com. Rep. (Washington, 1880), pp. XXXVII-XLI. The fact that this commission included in its number such eminent men as Clarence King, Thomas Donaldson, J. W. Powell and J. A. Williamson, gave this report more than ordinary weight.