has only very recently attained a respectable scientific certainty), will be of assistance to the lawyer who may have charge of mining or other litigation involving geological features. Although such an outline of the science of geology as can be given herein must necessarily be confined to such parts thereof as have been or are likely to be invoked in litigation and the treatment of even these can only be a mere sketch still this and the various notes together with the bibliographies contained in the Appendix furnish the means by which, whenever the necessity arises, the lawyer can find in the text-books of geology, in the Government publications on this subject, and in the scientific articles in periodical literature, such information as to geological details as may be needed in his case, in the same way as he gets the details of the law of his case from the treatises and reports.

On the theory of ore deposits and similar principles that may be directly involved in litigation, the important original articles in scientific literature and the Government reports are cited in the same way as leading cases in the law are cited in support of a legal proposition. Beyond this, it would be impossible within the limits of this work to furnish a digest of the great mass of geological literature which has accumulated during a century of scientific investigation in the reports of the geological surveys of the various States, in the numerous publications of the United States Geological Survey, in the "proceedings" and "transactions" of scientific societies and associations, and in scientific periodicals; for this would require a number of volumes comparable to the great law digests. Fortunately, however, there are already in existence certain text-books, which by their full references to original papers and articles, together with some good indexes to Government and periodical literature on geology, render available for practical purposes of litigation all important geological literature. These are fully described in the bibliography given in the Appendix.

Of course, the larger part of geologic law is applied in mining litigation; but there are a number of interesting and sometimes important application of geological principles in other cases, such as concerning the establishment of ancient or obliterated boundaries, in cases arising under the United States land laws and the United States customs laws, and even one curious case in which the decision as to who was the owner of the article in dis

pute turned upon one of the fundamental conceptions of geology as to the constitution of the universe.1

SOURCES OF AMERICAN LAW RELATING TO MINING, ETC.

In order that those readers who have not had a legal education may comprehend the diverse origins and applications of the American law on our subject, it seems desirable to give a brief statement of the different sources from which such law is derived, and the peculiar territorial divisions of the United States with respect to the applications of such mining and other law as is hereinafter discussed.

As the sources of the American law in general, and therefore, of American mining law, we have: (1) Such principles of the common law of England as are considered by the courts to be applicable to political and social conditions in America. This is one of the two great legal systems that have developed in the history of civilization (the other being the Roman Civil Law); and it furnishes a number of fundamental principles of frequent application in mining and similar litigation. We have also (2) the laws enacted by the legislative bodies of the various States and Territories. Lastly (3), and for our purposes most important, we have the laws and statutes enacted by Congress concerning mining and mineral rights in land which originally belonged to the National Government. In all of the above instances the details -the great mass of the law are only to be found in the decisions of the higher courts of the individual States or the courts of the United States as the case may be. These either define and apply the "unwritten" rules of the common law, or interpret or apply to the infinite variety of cases that arise in litigation the general provisions of the statutes, either State or National.

TERRITORIAL DIVISIONS OF THE UNITED STATES WITH REFERENCE TO THE KIND OF MINING LAW IN FORCE THEREIN But these laws are not of uniform force or applicability, throughout the whole of the United States; they vary as follows:

I. The Thirteen Original States and, in addition, the States of Vermont, Kentucky, Maine, and West Virginia, which were

4 See p. 34 et seq.

carved out of territory originally forming part of some of the Original States. Tennessee and Texas are also included in this class. In this group of States the National Government did not at any time have any property rights in the land. Consequently, in these States, the United States laws regarding mining have no application; for, as we shall see later, the Federal mining laws only apply where the National Government originally owned the land. Such cases as arise therein are decided according to (1) the principles of the common law or (2) the statutes enacted by the respective State legislatures.

II. In the States of Arkansas, Illinois, Indiana, Iowa, Missouri, Michigan, and Wisconsin the land originally all belonged to the Government, and the mineral lands therein containing metals were ordered to be reserved from sale. Those containing lead and copper were ordered sold, and in some cases leased, under special laws enacted prior to the mining legislation that finally resulted from the discovery of the precious metals in California and Nevada. Practically all of the remaining land in this group. of States was disposed of as agricultural land before any national mining legislation, and so was not subject thereto.5 In addition, by laws enacted by Congress, at different times Alabama, Michigan, Wisconsin, Minnesota, Missouri, and Kansas were expressly excepted from the operation of Federal mining laws. The same result was reached in the case of Oklahoma by declaring all the land agricultural. In this group of States the common law and State legislation are, as in the case of the first group, the chief sources of law, with perhaps a few traces from Federal legislation on mining matters.

III. All the remaining territory of the United States in which, being acquired at different times by the National Government, the nation was the paramount proprietor of the mineral lands so that the laws governing the same are chiefly derived from Federal legislation, although common law, State legislation, and even local customs, are sources of some of the provisions of mining

5 Strictly speaking, this is not correct with reference to Tennessee the land of which was originally public domain. After deducting what was necessary to fulfil the obligations to North Carolina, according to the terms of its deeds of cession, the remainder of the public land was donated to the State of Tennessee.

5a This is only partially true of Arkansas in which considerable mineral land in the mountainous western portion of the State belongs to the National Government and is subject to National mining legislation.

law. This group comprises Arkansas, the Dakotas, and all the Rocky Mountain and Pacific States and Territories."

The provisions of the Federal mining laws were extended to the district of Alaska by the Acts of May 17, 1884, and June 6, 1900. Under an act of Congress passed July 1, 1902, and amended February 5, 1905, provision was made for the location of the mining claims in the Philippine Islands, "Upon land containing veins or lodes of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits"; and by another section provision is made for "entering" coal land, and in still another section for the sale of saline lands. In Porto Rico, according to information furnished by its governor, it is considered that the old Spanish mining laws have been repealed by various codes adopted since the American occupation, and that there is now no special mining law. Under section 357 of the Civil Code adopted in 1902, the owner of the surface is held to be the owner of everything beneath it. Mines on lands belonging to the Insular Government are exploited under a concession. During the Spanish occupation mining concessions and rights were acquired in the same mannner as in Mexico and Cuba. Any rights then acquired and maintained still exist; but "mining in Porto Rico is a feeble industry."

* Public land in Mississippi, Louisiana, and Florida is also subject to location as mining claims since July 4, 1876. See 31 L. D., 135 for a history of the legislation resulting thus.

II

Geology and its Subdivisions and Allied Sciences; definition of a Mineral; of Mine, Quarry, etc.

M

INING law is related in an especially intimate manner to the sciences of geology and mineralogy. Mining is carried on for the sake of the minerals, that are found in the earth's crust and that are desired by man for any reason. The concentration of such minerals into deposits or masses of sufficient richness to justify extraction, from their original state of wide dissemination in minute proportions in the substance of the earth's crust is the result of the action of agencies which together with accompanying phenomena and with the methods of formation of the associated strata are subject-matter belonging to the science of geology.

This justifies the definition of these and allied sciences and their subdivisions, largely for the purpose of an introduction to a bibliography of the best and latest books and articles thereon that are liable to be needed at any time in litigation for preparation on special scientific principles or facts that may have a decisive bearing on the decision of a case, involving heavy financial interests. A striking example of this is found in the late case of Grand Mammoth Co. vs. Central Co., fully explained in a later part of this book."

GEOLOGY AND ITS SUBDIVISIONS AND ALLIED SCIENCES

Geology is one of the broadest and most fundamental of the sciences, making use of the results of many of the others. Perhaps as good a definition of it as can be formulated is as follows:

Geology is the science that treats of the structure of the earth; of the various stages of development through which it has passed, and which have led to its present condition; of the extraordinary succession of living beings that have existed upon it, and of the

1 See p. 179 et seq.