fringed. The common law of England was formed for the exclusive benefit of agricultural interests by an agricultural people to whom the surface was the only thing of value, and all rights were subordinated to those of the surface proprietor. But, as we shall see, even in England there were certain districts where mining interests prevailed early in history. In these we find that coincident with the growth of the common law in general there was the growth of a common law of mining for such districts which recognize the fact that the vein, the deposit of ore, was the principal thing, and which gave the owner of the vein the right to follow his section of the same to whatever depth that he could do so under mining conditions, even though this carried him. beneath the surfaces of adjacent proprietors.

The districts in question were in the county of Derby in England, where

"It is admitted that from the earliest historic times the miners residing in this county have continued in the uninterrupted exercise and enjoyment of various mining privileges, yet both ill-defined and repugnant to the common law. Attempts have been made at various times by the landowners to stop the trespasses of the miners upon their private lands, and so successful were the former in their resistance, that the miners, in the sixteenth year of the reign of Edward I (1287), petitioned that King to redress their grievances. He accordingly issued a warrant or commission directed to the sheriff of Derbyshire, signifying that the King has assigned Reginald of the Ley, and William of Meynall, to inquire, by the oaths of good and lawful men of the county, concerning the liberties that the miners claimed to have in those parts.

"This commission was solemnly executed at Essenburn, now Ashburn, by a jury, who by their inquisition returned that the miners claimed, by no charter, but by immemorial custom, and that their rights and titles to these mines should be preserved to them. On that return the King admitted their rights, and they have quietly enjoyed certain of their privileges ever since." 4

By the reign of Victoria these customs had become indefinite and uncertain, so that they were reënacted in statutory form as 15 & 16 Viet., Chap. CLXIII, by which it was enacted:

"Sec. 1st. It is lawful for all subjects of this realm to search for, sink and dig mines, or veins of lead ore, upon, in or under all manner of lands, of whose inheritance they may be, churches, churchyards, places for public worship, burial grounds, dwelling houses, orchards, gardens, pleasure grounds

4 Thomas Tapping, "The Derbyshire Mining Customs," London, 1854, p. 6

and highways excepted. . . Provided always that nothing herein contained shall prevent or hinder the miner from following and working his vein, and searching for and getting lead ore under such excepted places as aforesaid, at a lower depth than fifteen yards from the surface." 5

In Germany a similar right of extralateral pursuit of a mineral vein existed. Here all valuable minerals belonged to the sovereign and leases must be obtained from him before mining could be carried on, even by owners of the surface. The provisions of these leases are stated by Dr. Raymond as follows: 6

'Mining leases covered a certain area of the surface and a space below the surface, either bounded by vertical planes or by surfaces parallel with the dip of the vein. The first was called a square location (Gevierdtfeld), and the second an inclined location (Gestrecktfeld). The practice of following to any distance outside of the vein leased the 'dips, spurs, and angles,' was unknown; and I am unable to discover any traces of it in ancient or modern times except in the mining customs of this country. The possessor of an inclined location was generally allowed to work about 30 feet in the hanging wall, and the same distance below the foot wall (Vierung viertehalb Lachter ins Hängende, und viertehalb Lachter ins Liegende). Within these limits all the ore discovered might be extracted by the lessee. In case of veins crossing the elder location took precedence, but could only maintain the right to a zone of 30 feet on each side of its vein. In cases of doubtful controversy the matter was compromised by a union of the two mines. The simple square location was applied to beds, masses, and even to true veins, when they possessed a dip of not more than 15 degrees below the horizontal plane. The size of this kind of location varied with the locality and the circumstances, such as the number of associates or stockholders, etc. A frequent size seems to have been about 200 feet square with the discovery shaft in the center."

These provisions have been superseded in Germany by later laws under which mining rights are bounded in depth by vertical planes.

The same problem was solved in a different way by the Spanish laws regulating mining in Mexico. The claim was made wider according as the vein departed more from the perpendicular. The law states the reasons for the making of this provision and the details of the same so well that the sections directly concerned are worthy of reproduction.

5 Ibid., p. 8.

Cong.).

"Mineral Resources," 1869, Washington, p. 195 (Ex. Docs. No. 50 to No. 82, 3rd Sess. 40th

MINING ORDINANCES OF MEXICO ENACTED BY ORDER OF HIS MAJESTY, THE KING OF SPAIN, AT MADRID, 1783

CHAPTER VIII.

PROPERTIES, INTERMEDIATE SPACES, AND MEASURES

SECTION 1. Experience having shown that the equality of the mine measures established on the surface cannot be maintained under ground, where in fact the mines are chiefly valuable, it being certain that the greater or less inclination of the vein upon the plane of the horizon must render the respective properties in the mines greater or smaller, so that a true and effective impartiality which it has been desired to show toward all subjects, of equal merit, has not been preserved; but, on the contrary, it has often happened that when a miner, after much expense and labor, begins at last to reach an abundant and rich ore, he is obliged to turn back, as having entered on the property of another, which later may have denounced the neighboring mine, and thus stationed himself with more art than industry. This being one of the greatest and most frequent causes of litigation and dissension among miners, and considering that the limits established in the mines of these kingdoms, and by which those of New Spain have been hitherto regulated, are very confined in proportion to the abundance, multitude, and richness of the metallic veins which it has pleased the Creator of His great bounty to bestow on those regions, I order and command that in the mines where new veins, or veins unconnected with each other, shall be discovered, the following measures shall in the future be observed.

SEC. 2. On the course and direction of the vein, whether of gold, silver, or other metal, I grant to every miner, without any distinction in favor of the discoverer, whose reward has been specified, 200 yards, called measuring yards, taken on a level, as hitherto understood.

SEC. 3. To make what they call a square, that is, making a right angle with the preceding measure, supposing the descent or inclination of the vein to be sufficiently shown by the opening or shaft of ten yards, the portion shall be measured by the following rule.

SEC. 4. Where the vein is perpendicular to the horizon (a case which seldom occurs, a hundred level yards shall be measured on either side of the vein, or divided on both sides, as the miner may prefer.

SEC. 5. But where the vein is in an inclined direction, which is the most usual case, its greater or less degree of inclination shall be attended to in the following manner.

SEC. 6. If to one yard perpendicular the inclination be from three fingers to two palms (85° 25′ to 63° 20′ from the horizontal), the same hundred yards shall be allowed for the square (as in the case of the vein being perpendicular.)

SEC. 7. If to the said perpendicular yard there is an inclination of 2 palms and 3 fingers, the square shall be of 1124 yards (= Dip 60° 39′) 2 palms and 6 fingers, the square shall be of 125 yards (= Dip 58° ) 2 palms and 9 fingers, the square shall be of 137 yards (= Dip 55° 30′) 3 palms and 0 fingers, the square shall be of 150 yards ( Dip 53° 08′) 3 palms and 3 fingers, the square shall be of 162 yards (= Dip 50° 55')

3 palms and 6 fingers, the square shall be of 175 3 palms and 9 fingers, the square shall be of 187 4 palms and 0 fingers, the square shall be of 200

yards (= Dip 48° 50′) yards (= Dip 46° 50′) yards (= Dip 45° )

so that if to one perpendicular yard there correspond an inclination of four palms, which are equal to a yard, the miner shall be allowed two hundred yards on the square on the declivity of the vein, and so on with the rest.

SEC. 8. And supposing that in the prescribed manner any miner should reach the perpendicular depth of two hundred yards, without exceeding the limits of his portion, by which he may commonly have much exhausted the vein, and that those veins which have greater inclination than yard for yard, that is to say, of forty-five degrees, are either barren or of little extent, it is my sovereign will that although the declivity may be greater than the above-mentioned measures, none shall exceed the square of two hundred level yards; so that the same shall be always the hundreds as declared above.

SEC. 9. However, if any mine owner, suspecting a vein to run in a contrary direction to his own (which rarely happens), should choose to have some part of his square in a direction opposite to that of his principal vein, it may be granted to him, provided there shall be no injury or prejudice to a third person thereby.7

There has been considerable dispute as to whether or not these laws or customs of other countries that have just been mentioned directly suggested to the California miners their rules giving the right to follow the vein extralaterally. It is, of course, possible that miners who were familiar with these customs or laws in England, Germany, or the Spanish possessions might have come to California and secured their recognition there. But it is more probable that the similarity only arose from similar industrial conditions producing similar effects in human customs and laws in distant countries; for there is an inherent injustice in the idea that the miner who has had the courage to spend his time and money and develop a valuable mine by following a vein, it may be, hundreds or thousands of feet before he finds enough mineral to return his expenditure should lose the benefit of his endeavors by the vein going on the incline outside the boundaries of his claim into the territory of a person who has located the adjoining ground and then simply stood aside and waited for the other to determine whether or not mineral existed in the vein in paying quantities. It is true that this rule has

7 Congdon, "Mining Laws and Forms," 3d ed., San Francisco, 1864, p. 110; "Mineral Resources," 1867, p. 260.

been much criticized in late years; but I will defer a discussion of its advantages or disadvantages until later.

But there is no question whatever that the rules and customs of the early California camps were the origin of the apex and many other features of Federal legislation, when the latter was tardily enacted.