VI Development of a common law" of mining in California; historical sketch of the right to pursue the vein indefinitely on its dip; mining laws of England, Germany, Mexico, with reference to similar rights. DEVELOPMENT OF A "COMMON LAW" OF MINING IN GOLD CALIFORNIA OLD was discovered in California in January, 1848, the province being then held by the United States by right of conquest, which was afterward ratified by the treaty of Guadalupe Hidalgo, proclaimed July 4, 1848. Then immediately began the historical rush of gold-hunters whose unparalleled success in finding the precious metal poured into the channels of commerce of the United States and of the world a flood of gold that has produced profound industrial and political effects. But all the hunting and digging of this stupendous treasure was done without any direct sanction of law until 1866, before which year all of the richer placer deposits had been exhausted and much gold had been mined out of the mother lode. During all of this time prospectors and miners were technically trespassers upon the public land belonging to the United States, and there were absolutely no statutory or even common-law principles or rules to define and guide mining and mining rights. But this strenuous activity in seeking and mining gold could not be conducted without some kind of law other than the primitive rule of "might makes right." Very early the miners, realizing this, made laws for themselves in the shape of rules, regulations, and customs governing the digging of gold in the various districts. Though these rules and customs differed somewhat in the different districts as to details, there were general features common to all. Two of these are of special importance as they were substantially incorporated in the United States mining laws enacted later. They were: (1) discovery and working gave right to the mineral; and (2) in the case of mineral found in veins, the discoverer had the right to pursue his vein to any depth although it conducted him under the surface of another claim. The system which grew up regulating mining operations was a true example of the development of a "common law" from custom. No better way of enabling the reader to realize the spirit of those pioneer times and the motives of the creators of this system can be found than to give a portion of the speech of the Hon. William M. Stewart, senator from Nevada, in the United States Senate on June 18, 1866, the subject under consideration being the first mining law, usually known as the statute of 1866.1 It is a vivid picture of the circumstances and activities of the Treasure Search such as would be impossible for any one to paint who had not himself seen and taken part in the events described. The senator said: "Upon the discovery of gold in California in 1848, a large emigration of young men immediately rushed to that modern Ophir. These people, numbering in a few months hundreds of thousands, on arriving at their future home found no laws governing the possession and occupation of mines but the common law of right, which Americans alone are educated to administer. They were forced by the very necessity of the case to make laws for themselves. The reason and justice of the laws they formed challenge the admiration of all who investigate them. Each mining district, in an area extending over not less than fifty thousand square miles, formed its own rules and adopted its own customs. The similarity of these rules and customs throughout the entire mining region was so great as to attain all the beneficial results of well-digested, general laws. These regulations were thoroughly democratic in their character, guarding against every form of monopoly, and requiring continued work and occupation in good faith to constitute a valid possession. . . . "The Legislature of California, at their following session, in 1851, had under consideration the subject of legislating for the mines; and after full and careful investigation wisely concluded to declare that the rules and regulations of the miners themselves might be offered in evidence in all controversies respecting mining claims, and, when not in conflict with the constitution of laws of the State or of the United States, should govern the decision of the action. A series of wise, judicial decisions molded these regulations and customs into a comprehensive system of common law, em- · bracing not only mining law (properly speaking), but also regulating the use of water for mining purposes. The same system has spread over all the interior States and Territories where mines have been found as far east as the Missouri River. The miner's law is a part of the miner's nature. made it. It is his own bantling, and he loves it, trusts it, and obeys it. 1 Congressional Globe, 1st session, 39th Congress, pp. 3225 et seq. He has given the honest toil of his life to discover wealth which, when found, is protected by no higher law than that enacted by himself under the implied sanction of a just and generous Government. Miners as a community devote three fourths of their aggregate labor to exploration, and consequently are, and ever will remain, poor, while individuals amass large fortunes, and the treasury of the world is augmented and replenished. "Senators who have not given this subject special attention can hardly realize the wonderful results of this system of free mining. The incentive to the pioneer held out by the reward of a gold or silver mine, if he can find one, is magical upon the sanguine temperament of the prospector. For near a quarter of a century a race of men, constituting a majority by far of all the miners of the West, patient of toil, hopeful of success, deprived of the associations of home and family, have devoted themselves, with untiring energy, to sinking deep shafts, running tunnels thousands of feet in solid granite, traversing deserts, climbing mountains, and enduring every conceivable hardship and privation, exploring for mines, all predicated upon the idea that no change would be made in this system that would deprive them of their hard-earned treasure. Some of these have found valuable mines and a sure prospect of wealth and comfort when the appliances of capital and machinery shall be brought to their aid. Others have received no compensation but anticipation, no reward but hope. "While these people have done little for themselves, they have done valuable service for this Government. They have enhanced the value of the property of the nation near 100 per cent., as I shall hereafter show, and they have converted that vast unknown region, extending from British Columbia on the north to Mexico on the south, and from the eastern slope of the Rocky Mountains to the western decline of the Sierra Nevada, into the great gold and silver fields of the United States, surpassing in richness and extent the mines of any other nation on the globe. I assert, and no one familiar with the subject will question the fact, that the sand plains, alkaline deserts, and dreary mountains of rock and sage brush of the great interior would have been as worthless to-day as when they were marked by geographers as the great American desert but for this system of free mining fostered by our neglect and matured and perfected by our generous inaction. No miner has ever doubted the continued good faith of the Government, but has put his trust in its justice and liberality, traversing mountain and desert, as incessantly and as hopefully as the farmer of the West has plowed his field. What he now occupies he has discovered and added to the wealth of the nation. . . . "To extend the preemption system, applicable to agricultural lands, to mines is absolutely absurd and impossible. Nature does not deposit the precious metals in rectangular forms descending between perpendicular lines into the earth, but in veins or lodes varying from one foot to three hundred feet in width, dipping from a perpendicular from one to eighty degrees and coursing through mountains and ravines at nearly every point of the compass. In exploring for vein mines, it is a vein or lode that is discovered, ́ not a quarter section of land marked by surveyed boundaries. In working a vein more or less land is required, depending upon its size, course, dip, and a great variety of other circumstances not possible to provide for in passing general laws. Sometimes these veins are found in groups, within a few feet of each other, and dipping into the earth at an angle of from thirty to fifty degrees, as at Freiburg, in Saxony, or Austin, in Nevada. In such case a person buying a single acre in a rectangular form would have several mines at the surface and none at five hundred or a thousand feet in depth. With such a division of a mine, one owning it at the surface, another at a greater depth, neither would be justified in expending money in costly machinery, deep shafts, and long tunnels for the working of the same. Nor would it do to sell the land in advance of discovery, for this would stop explorations and practically limit our mining wealth to the mines already found; for no one would prospect with much energy upon the land of another, and land speculators never find mines. The mineral lands must remain open and free to exploration and development; and while this policy is pursued our mineral resources are inexhaustible. There is room enough for every prospector who wishes to try his luck in hunting for new mines for a thousand years of exploration, and yet there will be plenty of mines undiscovered. It would be a national calamity to adopt any system that would close that region to the prospector. "The question then presents itself, how shall the Government give title, so important for permanent prosperity, and avoid these intolerable evils? I answer, there is but one mode, and that is to assure the title to those who now or hereafter may occupy according to local rules suited to the character of the mines and the circumstances of each mining district. The importance of the legislation of this kind is daily increasing by the agitation of the subject, by the introduction of bills looking to what the miners regard as a general system of confiscation, destroying all confidence in mining titles, and by the absolute necessity of some system guaranteeing to capitalists security for their investment." It was largely through the efforts of Senator Stewart that the Act of 1866 was passed, instead of a proposed measure, by which all mineral lands were to be sold for the purpose of raising money to pay the enormous national debt created by the Civil War then just ended. In Jennison vs. Kirk, 98 U. S., 453, Justice Field says in regard to the circumstances attending the growth of this common law of miners: "Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches, and cañons, and probing the earth in all directions for the precious metals. Wherever they went, they carried with them the love of order and system and of fair dealing which are prominent characteristics of our people. In every district which they occupied they framed certain rules for their government by which the extent of ground they could severally hold for mining was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined." RIGHT TO PURSUE THE VEIN INDEFINITELY ON ITS DIP A cardinal feature of nearly all of these miners' rules and regulations was the right they gave the miner to pursue his vein indefinitely into the earth, although in its downward course it passed beneath the surface of other claims. As an example, we give the quartz regulations of Tuolumne Co., Calif., adopted September 1, 1858.2 Article Second: "Provided that the right to 150 feet herein granted on each side of the vein shall not be deemed to conflict with or detract from the right of any subsequent locator who may discover a vein outside of said 150 feet to follow his vein through such ground." In the Territory of Arizona this provision attained to the dignity of a statutory provision, it being enacted therein, January 1, 1865: "Every mining claim or pertenencia is declared to consist of a superficial area of 200 yards square, to be measured so as to include the principal mineral vein or mineral deposit, always having reference to and following the dip of the vein so far as it can or may be worked with all the earth and minerals therein." This principle of allowing a vein to be followed to any depth on its dip, even though it entered the ground of other proprietors, was afterward incorporated by Congress into the United States mining laws; and it has provoked so much discussion that it will be of interest to examine briefly the mining laws of other countries with reference to the existence of similar rights. MINING LAWS OF OTHER COUNTRIES ON SIMILAR RIGHTS The principle of the common law of England which gives the surface proprietor the exclusive use of all minerals beneath the surface, except the regalian rights to the precious metals, has been so firmly fixed in the jurisprudence of all English-speaking peoples that the devotees of this system have been filled with immeasurable astonishment for forty years that their sacred formula Cujus est solum ejus est usque ad coelum3 should be in 2 Browne, "Mineral Resources," 1867, p. 237, (Ex. Docs. Nos. 25 to 49, 2nd Sess. 39th Cong.). 3 To whomsoever the soil belongs, he owns also to the sky and to the depths. |