thickness; that said gravel is of a hard nature, and in mining and extracting the same has to be detached from its position by the use of picks and gads, and when extracted is taken out to the surface and there washed, and in so washing gold is extracted therefrom."

The court then cites the definition given in the Eureka case of a vein or lode, various definitions of placers and says:

"That the bed of gravel mentioned in the findings, to the limited extent it has been prospected by the intervenors, 'descends or drops on an average of about 8 degrees,' does not of itself make the gravel deposit a lode with 'a top or apex,' nor contradict the theory that the channel was the channel of a mountain stream or torrent . . . the gravel bed with gold therein, as described in the findings, is a placer."

However, in a Nevada case, Jones vs. Prospect Mt. Tunnel Co., 31 Pac., 642, it was held that a deposit quite similar to that in the California case was within the lode provision of the statute. The description given in the case of the character of the deposit is as follows:

"A certain formation, which the defendant claimed to be the ledge, had been traced on its inclination outside the plaintiff's boundaries, and a large amount of work there done upon it. If this was the ledge, as the defendant claimed, it tended to show that its apex was outside those boundaries. According to the witnesses, it consisted of broken limestone, boulders, lowgrade ore, gravel, and sand, which appeared to have been subjected to the action of water. This was found at a depth of several hundred feet, and where there seems to have been no question that it was within the original and unbroken mass of the mountain. So far as was shown, the rock on either side was fixed, solid, and immovable. Mineral matter so situated, no matter where it was originally formed or deposited, is 'in place,' within the meaning of the law. The manner in which mineral was deposited in the places where it is found is, at the best, but little more than a matter of mere speculation; and to attempt to draw a distinction based upon the mode or manner or time of its deposit would be utterly impracticable and useless. The question was long ago settled by the courts. In Stevens vs. Williams, 1 Morr. Min. R., 557, Hallett, J., said: 'And when this act speaks of veins or lodes in place, it means such as lie in a fixed position in the general mass of country rock, or in the general mass of the mountain. As distinguished from the country rock, this superficial deposit may have been brought into its present position by the elements, or may have been washed down from above, or may have come there as alluvium or diluvium, from a considerable distance. Now, whenever we find a vein or lode in this general mass of country rock, we may be permitted to say that it is in place, as distinguished from the superficial deposit, and that is true whatever the character of the deposit may be. . . . It is in place if it is held in the embrace, is inclosed by the general mass of the country."""

But the deposit described in the Nevada case is similar in nearly all respects to that found in the California case, and the language of the decision of the Nevada court would undoubtedly include the mineral deposits found in the California case. Consequently, until passed upon by the United States Supreme Court, the legal status of ancient, buried placers is doubtful. It is one of those instances in which very plausible arguments can be adduced on each side. Such a formation is "in place" in the mass of the mountain as much as the most typical fissure vein ever found. The fact that such deposits are usually approximately horizontal makes no difference. On the other hand, the undoubted method of the origin of the deposit being originally sedimentary in nature, which is the way in which typical legal placers are formed, and the fact that deposition from solution (the vein-filling process) had nothing to do with their formation, would be strong arguments in favor of their being included under the placer provisions. It seems that the chances preponderate, if this matter ever comes before the Supreme Court that the buried placers will be held to come under the Placer Act.

After a valid placer location has been made the owner thereof has exclusive possession of the surface, and another person cannot legally go upon such location without the consent of the owner and prospect for unknown veins and lodes. If he does so, he is a trespasser, and cannot thus initiate any legal rights to any veins or lodes that he may discover in such placer location.

"Perhaps if the placer owner, with knowledge of what the prospectors are doing, takes no steps to restrain their work and certainly if he acquiesces in their action, he cannot after they have discovered a vein or lode, assert right to it, for generally a vein belongs to him who has discovered it, and a locator permitting others to search within the limits of his placer ought not thereafter to appropriate that which they have discovered by such search.” “4

The necessity for a discovery of mineral in placer ground, and of oil in land which is located under the same section of the statute, is discussed in Sierra, etc., Co. vs. Home, etc., Co., 98 Fed., 673, in which the court says:

"the difficulty with his location of Jan. 1, 1896, is that proof fails to show that he made, prior to the posting of a notice and marking of the boundaries, or subsequent thereto under that location, any discovery of mineral in or upon then and . . . Mere indications, however strong, are not, in my opinion

24 Clipper M. Co. vs. Eli Co., 194 U. S., 200.

sufficient to answer the requirements of the statute, which requires, as one of the essential conditions to the making of a valid location of unappropriated public land of the United States under the mining laws, a discovery of mineral within the limits of the claim." 25

On the same subject the United States Supreme Court says 26 in effect that there must be such a discovery made in relation to petroleum as to justify a prudent person in the expenditure of money and labor in exploration therefor. In this case the testimony as to discovery was that the locator saw "indications" of oil consisting of a spring where

"the oil comes out and floats over the water in the summer time when it is hot. In June, 1895, there was a little water with oil and a little oil with water coming out. It was just dripping over a rock about two feet high. There was no pool; it was just dripping a little water and oil, not much water."

Held that this evidence was not sufficient to overthrow the finding of the California court that there was no discovery.

25 The same question was before the court in Olive, etc., Co. vs. Olmstead, 103 Fed., 568, and the same decision was reached.

26 Chrisman vs. Miller, 197 U. S., 313.

XVIII

Water; common-law rules; water rights in Western States; tide lands; underground drainage of mines, etc.; percolating water; ice.

WATER

WATER is a mineral' and forms an important part of the

earth's crust. For our purposes water may be divided into two kinds: (1) that found on the surface in the forms of springs, streams, rivers, ponds, lakes, and the ocean; (2) subterranean water in the forms of underground streams, percolating masses, and stationary bodies in cavities or saturating porous strata. It is believed also that the original rock-material of the globe, such as is brought up by volcanic action, contains water as an original constituent which, during volcanic action, is given off as steam, and which in the later stages of expiring volcanism forms hot springs, geysers, etc. This interesting topic is more fully discussed elsewhere.2

The law relating to the different kinds of surface waters forms an extensive division which cannot be discussed here. It must suffice to give a few general principles necessary to a proper understanding of those rules which govern the second division, subterranean waters, with a somewhat fuller statement of the law as to the appropriation of water for mining, etc., in the Western States and Territories.

GENERAL LEGAL RULES CONCERNING SURFACE WATER AND SURFACE DRAINAGE

The ocean belongs to no individual or nation. It is a barren and unappropriated waste. Fish, or any other thing of value taken from the sea, belongs to the finder. The sea adjacent to the shores of a nation is held, according to the principles of international law, to belong to such nation, for the distance of a marine league (three miles) from low-water mark; this being the

1 See p. 55.

2 See p 77 et sq.

distance that could be commanded by cannon on the shore about the end of the eighteenth century, at which time a common doctrine or agreement on this subject seems to have been reached among civilized nations. But soon the range of artillery was much increased; and though the above-mentioned width of the shore belt is usually mentioned in treaties, a late writer 3 states his belief that this limit will be enlarged. The Institute of International Law has voted for a width of six miles. Fishing, or the taking of any other product of the sea, pearls, amber,

etc, is reserved within this belt to the adjacent nation. The beach is termed in law "tide lands," and is defined as land "uncovered at ordinary low tide and covered with water at ordinary high tide." The title to such land is in the State. In the United States this means the individual State in the case of those that have a boundary or boundaries of tide water, in the case of the Territories it means the United States."

The rule is different in Massachusetts, by virtue of a colonial ordinance, passed in 1747 and still remaining in force, which extends the title of the owner of land bounded by tide water from high-water mark to low-water mark, if this is not over 100 rods."

The same is true of New Hampshire, because it was once under the jurisdiction of Massachusetts. In Rhode Island the owners of land abutting on tidal waters have certain rights to wharf out over tide lands.

Consequently, any mineral or other rights in tide lands must come from the individual State adjacent, or, in the case of Territories bounded by the ocean, from the United States, and mining claims cannot be located on tide lands, wholly or partially. At present, Alaska is the only continental part of the United States under the territorial form of government that is adjacent to the ocean. The various insular possessions of the United States and the "Canal Zone" would all probably be held to come under this principle, subject, of course, to rights gained in any tide land previous to the acquisition by the United States of such possessions. The general laws for the disposition of mineral or

3 Oppenheim, "International Law," vol. i, p. 240.

4 Baer vs. Morran Bros., 153 U. S., 287.

5 Shively vs. Bowlby, 152 U. S., 1; Mann vs. Tacoma Land Co., 153 U. S., 273.

The case of Shively vs Bowlby, 152 U. S., 1, contains an elaborate review and discussion of

this subject. See also Gould on Waters, secs. 56-78.

7 Commonwealth vs. Alger, 7 Cush., 53, 76; Commonwealth vs. City of Roxbury, 9 Gray, 451.