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at reasonable rates, the application of the device would seem to be economical and desirable in every way; and it has been applied frequently, under conditions of the above nature, in and around Nevada City. It requires practically no watching, has no wearing parts, and

never wears out.

A DISSERTATION UPON THE ORIGIN, DEVELOPMENT, AND ESTABLISHMENT OF AMERICAN MINING LAW.

By A. H. RICKETTS, of the San Francisco Bar.

It would require great skill in gracefulness of style and power of artistic presentation to popularize an article on mines and mining and make it attractive to the general reader. And yet the products of mines and mining are more intimately interwoven with the joys and sorrows, the hopes and fears, the every day affairs and tragedies in human life and in human history, than all else except marriage and religion. Some have ascribed the high estimate in which gold and silver have been held, to the influence had upon mankind by a prehistoric people, inhabitants of the lost Atlantis. However that may be, it is certain that from the earliest mythic twilight of the historic period, universally, the human race have looked upon the possession of the precious metals as the highest temporal good. The student of Gibbon will be impressed with the potency of gold and silver in directing the varying fortunes of nations during the existence of the Roman Empire, and in our time it is not diminished.

In the spring of 1608, a yellow deposit was discovered in the neighborhood of Jamestown, Virginia, which was taken for gold, and a gold fever was developed. There was no thought, no discourse, no hope, and no work but to dig gold, refine gold, and load gold. A cargo of the 'gilded dirt” shipped to London turned out to be worthless. Sturdy Captain John Smith alone, not indulging in these dreams of imaginary wealth, scoffed at their infatuation "in loading such a drunken ship with gilded dirt." This disappointing experience seems to have chilled hope, and in the United States for nearly two hundred and fifty years no craze for gold hunting was aroused.

The discovery of the Gold Hill mines in North Carolina, in 1842, produced no very extensive interest.

The finding of the gold kernel in California by Marshall and its indirect bearing upon the course of events in the United States, and even upon the world at large, never will be fully discerned or appreciated until after the actors who participated in the scenes that followed that discovery have passed away. It is reserved for the philosophic historian of the future to point out the relation of cause and effect, and to present as a whole the consequences of what may be termed the sequences of the great movement of '49 upon the course of destiny. Certain it is, that any great popular movement that allures into its vortex great masses of men, and deflects largely the course of human thought from its channels of routine, will leave its impress upon the succeeding course of events. In fact it will largely determine what the course of events will be. It was as impossible for Europe to be after the Crusades what it was before, as that war after the invention of gunpowder should be carried on in the manner of the preceding ages.

The exodus to California in the time of the gold fever, followed as it was by the discovery of the gold of Australia, pushed forward the onward march of events with an intensity and a rapacity never before known. In a large sense it constituted an awakening of the human mind. It disclosed possibilities, developed energies, and promoted activities fraught with influences still affecting the destinies of the race. As the intended scope of this article is to present some considerations of a practical nature, and more especially some legal aspects to which the subject invites, we can now only briefly indicate, before passing to our main purpose, some of the more manifest outgrowths of the California gold excitement. It widened the scope of vision, and broadened and strengthened individual character. This is illustrated by the fact that the greatest soldiers of our late war had received an impress from life along the vitalizing influences of a society loosened from tradition. Grant, Sherman, Sheridan, Halleck, Hooker, Albert Sidney Johnston, and many others of martial achievement had lived in California.

It is not too much to say that a new species of literature blossomed from the fermenting influences of California life. Invention in mechanical art was stimulated and received an impulse, the bounding current of which is still headed toward the consummation of much for the comfort and in aid of the race.

The production of gold and silver gave staying power to the Government while engaged in a struggle for national life. It has built temples to science that are the admiration of nations that had long been in vigorous life when Isabella pledged her jewels in behalf of the Genoese adventurer. It has breathed civilization, vigorous and aggressive, into an empire of its own creation, and given as pledge for its perpetuation the means of universal mental development. It has reacted upon the sleepy provincialism of older communities, and taught them a broader sense of the immensity of our domain and the indissolvable links of a common destiny. It has demonstrated the possibility, under a free government, of the people by their own industry creating for themselves a safe means of commercial exchange, and thus enhancing the possibilities of industrial pursuits. It has been a crusade against blind tradition, an unreasoning adherence to the old, merely because it is old, more farreaching and infinitely more beneficial than all the religious crusades of mediæval times. All this has been done in the latter half of the nineteenth century, and by men many of whom will live to herald the dawn of the twentieth century.

Who shall say that mines and mining is not one of the impellant onward forces?

The purpose of the foregoing references has not been so much to point out the glories of material advancement, as to delineate in perspective that which is the crowning glory of all; that from which results law, order, liberty, protection to person and property, a sacred regard for the rights of others, joined with an absolute independence of individual effort in security, a security based upon reason and a sense of moral obligation. The aptitude of the American people for such achievement the American mining law amply proves, and the course of its advancement, the history of its growth, should be interesting as well to the student of law as to the miner whose welfare is dependent upon its due administration.

Let us examine with more or less detail the constituent elements out

of which the system has been evolved. These may be stated generally to be:

First-The customs and regulations of miners themselves.
Second-State and Federal legislation and Federal treaties.
Third-Spanish and Mexican law.

Fourth-Judicial decisions.

In the days of early mining in California and elsewhere, from the very necessity of the circumstances in which the miners found themselves, customs grew up which soon became a guide for all, or in mass meetings regulations were adopted concerning mining rights, and rules as to working them, which had the force of law in the locations where adopted, and constitute the American common law on mining for precious metals. These meetings were held at a known place in the district, upon previous notice that the meeting would take place for the purpose intended, either to establish the laws for the first time, or to alter or repeal those formerly established. One of the miners present acts as the presiding officer, another as Secretary, who keeps a record of the proceedings of the meeting, and afterwards hands the laws adopted to the Recorder elected, who records them, as directed, in a book kept for that purpose. The laws are adopted in the usual way of conducting public meetings, without much regard to Jefferson's Manual, but with the business tact of American instinct for public meetings. In regard to the notice for the meeting, there is a decision which may be given: "There is," says Mr. Justice Baldwin, in Gore vs. McBrayer (18 Cal. 588), "nothing in the point that the mining laws offered in evidence were passed on a different day from that advertised for a meeting of miners. We cannot inquire into the regularity of the modes in which local legislatures or primary assemblages act. They must be the judges of their own proceedings. It is enough that the miners agree, whether in public meeting or after due notice, upon their local laws, and that these are recognized as the rules of the vicinage, unless some fraud be shown, or some other like cause for rejecting the laws.”2

Senator Stewart, the author of the Act of 1866, in advocating its passage in the Senate, spoke in high praise of the regulations and customs of miners, and portrayed in glowing language the wonderful results that had followed the system of free mining, which had prevailed with the tacit consent of the Government. The Legislature of California, he said, had wisely declared that the rules and regulations of miners should be received in all controversies respecting mining claims, and when not in conflict with the Constitution or laws of the State, or of the United States, should govern their determination; and a series of wise judicial decisions has molded these regulations and customs into "a comprehensive system of common law, embracing not only mining law, properly speaking, but also regulating the use of water for mining purposes." The miner's law, he added, was a part of the miner's nature. He made it, he trusted it, and obeyed it. He had given the honest toil of his life to discover wealth, which, when found, was protected by no higher law than that enacted by himself under the implied sanction of a just and generous government.3

Most of the local rules and customs are easily recognized by those

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1 King v. Edwards, 1 Mont. 235.

* Yale on Mining Claims, 73. 'Jennison v. Kirk, 98 U. S. 453.

familiar with the Mexican law, the Continental Mining Codes, especially the Spanish, and with the regulations of the Stannary Convocation among the Tin Bounders of Devon and Cornwall, in England; and the High Peak Regulations for the lead mines in the county of Derby. General Halleck ascribed to them a more limited origin. In his introduction to the translation of De Fooz, he says: "But the miners of California have generally adopted as being best suited to their peculiar wants, the main principles of the mining laws of Spain and Mexico, by which the right of property in mines is made to depend upon the discovery and development; that is, discovery is made the source of title, and development, or working, the condition of the continuance of that title. These two principles constitute the basis of all our local laws and regulations respecting mining rights.*

These regulations are founded in nature, and are based upon equitable principles, comprehensive and simple, have a common origin, are matured by practice, and provide for both surface and subterranean work, in alluvium, or rock in situ.

The rules and regulations originally established in California have, in their general features, been adopted throughout all the mining regions of the United States. They were so wisely framed and were so just and fair in their operation that they have not to any great extent been interfered with by legislation, either State or National," and they are subject to the same rules of construction as statutes. But the rule, regulation, or custom to be valid must not only have been established but it must be in force in the district at the time the location is made. It does not, like a statute, acquire validity by the mere enactment, but from the customary obedience and acquiescence of the miners following its enactment. It is void whenever it falls into disuse and is generally disregarded.

It will be presumed that a party in possession of a mining claim holds in accordance with the local rules and customs of the district. All mineral locations made before the enactment by Congress of any law governing the subject are to be regulated by the local rules and customs in force when the location was made; 10 but if a mining claim, actually possessed and worked for several years, has been generally recognized as validly made, the claimant's title is good, though the mining rules in force when the location was made were not fully observed in making it. This is especially the rule as between co-tenants and those claiming through them." The Courts have always sustained rights that grew up under them, and the Code of Civil Procedure of California declares that "in actions respecting mining claims, proof must be admitted of the customs, usages, or regulations established and in force at the bar or diggings embracing such claim; and such customs, usages, or regulations, when not in conflict with the laws of this State, must govern the decision of the action.” 12 This is in terms a reenactment of Section 621

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of the "Practice Act" of California, and the views of the late Judge Sanderson announced upon this subject are as follows:

"At the time the foregoing became a part of the law of the land, there had sprung up throughout the mining regions of the State local customs and usages by which persons engaged in mining pursuits were governed in the acquisition, use, forfeiture, or loss of mining ground. (We do not here use the word forfeiture in its common law sense, but in its mining law sense, as used and understood by the miners, who are the framers of our mining codes.) These customs differed in different localities, and vary to a greater or less extent according to the character of the mines. They prescribed the acts by which the right to mine a particular piece of ground could be secured, and its use and enjoyment continued and preserved, and by what non-action on the part of the appropriator such right should become forfeited or lost, and the ground become, as at first, publici juris, and open to the appropriation of the next comer. They were few, plain, and simple, and well understood by those with whom they originated. They were well adapted to secure the end designed to be accomplished, and were adequate to the judicial determination of all controversies touching mining rights. And it was a wise policy on the part of the Legislature not only not to supplant them by legislative enactments, but on the contrary to give them the additional weight of a legislative sanction. These usages and customs were the fruit of the times and demanded by the necessities of the communities who, though living under the common law, could find therein no clear and well-defined rules for their guidance applicable to the new conditions by which they were surrounded, but were forced to depend upon remote analogies, of doubtful application and unsatisfactory results. Having received the sanction of the Legislature, they have become as much a part of the law of the land as the common law itself, which was not adopted in a more solemn form. And it is to be regretted that the wisdom of the Legislature in thus leaving mining controversies to the arbitrament of mining laws, has not always been seconded by the Courts and the legal profession, who seem to have been too long tied down to the treadmill of the common law to readily escape its thraldom while engaged in the solution of a mining controversy. These customs and usages have, in progress of time, become more general and uniform, and in their leading features are now the same throughout the mining regions of the State; and however it may have been heretofore, there is no reason why Judges and lawyers should wander, with counsel for the appellant in this case, back to the time when Abraham dug his well, or explore with them the law of agency or the statute of frauds, in order to solve a simple question affecting a mining right, for a more convenient and equally legal solution can be found nearer home, in the 'customs and usages of the bar or diggings embracing the claim' to which such right is asserted or denied."

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The extent of a mining district may be changed by those who created it, if vested rights are not interfered with." Miners are still permitted, in their respective districts, to make rules and regulations not in conflict with the laws of the United States, or of the State or Territory in which the districts are situated, governing the location, manner of recording, and amount of work necessary to hold possession of a claim. And a

13 Morton v. Solambo, 27 Cal. 528.

14 King v. Edwards, supra.

15 Erhårdt v. Boaro, 113 U. S. 527,

15

corporation interested in mining may be represented by any of its officers or agents at any meeting of miners called together to frame rules and regulations in their mining district.16 But in order that mining claims may be held and the Government title acquired, it is not essential that mining districts should be organized and local rules adopted, and in the absence of local rules a compliance with the public law will secure the claim."

In 1848 the treaty between the United States and Mexico, following the Mexican War, was ratified.18 By that treaty California, Arizona, New Mexico, Texas, and that part of Colorado south of the Arkansas River were ceded to the United States. That year gold was discovered in California, and soon thereafter began the exodus of the gold-seekers from the Eastern States and elsewhere to the Pacific Coast. The effect of the treaty was, of course, that the Government of the United States became the land owner of all that part of the ceded territory to which, under the treaty, some private right of ownership had not attached. Up to that time, and even until a later period, as we shall see, congressional legislation with regard to minerals had been sporadic and unimportant. There had been some legislation as to salt springs, the leasing of lead mines, and the sale in Michigan and Wisconsin of lands containing copper, lead, or other valuable ores, but no general scheme in regard to minerals. Our forefathers of the thirteen original colonies inherited the common law of England, and under that law all gold and silver mines (speaking in general terms) belonged to the crown. The citizens of that portion of Mexico ceded to the United States inherited the laws of Spain. Under the laws or ordinances of Spain certain rights were conferred upon the discoverer of gold and silver mines, and regulations were prescribed for working them. These ordinances, at the time of the cession somewhat modified by Mexican law, furnished an established system in relation to mines of gold and silver, and as before said, some of the features have been blended into the miner's customs and regulations.

On July 26, 1866, Congress passed the Act that was the first effort by the Federal Legislature to create and establish a system of Federal mining law." It marked a new era in the development of the American legislation, and yet it is a singular fact to note, in passing, that in its title, mines are not mentioned, nor the purpose of the Act disclosed. It reads: "An Act granting the right of way to ditch and canal owners over the public lands, and for other purposes." The explanation of it is an interesting fact in the history of congressional legislation. Mr. Gregory Yale explains it, as follows:

"The miners of California, and of the States and Territories adjacent thereto, have but a very inadequate idea of the imminent peril in which the pursuit in which they are engaged was placed at the commencement of the Thirty-ninth Congress. Two years ago there was a strong disposition in Congress and the East generally to make such a disposition of the mines as would pay the national debt. The idea of relieving the nation of the payment of the enormous taxes which the war has saddled upon us by the sale of the mines in the far distant Pacific

16 McKinley v. Wheeler, 130 U. S. 630.

17 Golden Fleece v. Cable, 12 Nev. 312.

189 U. S. Stats. at Large, 922.

19 14 U. S. Stats. at Large, 251.

Slope, about which few people here have any knowledge whatever, was the most popular that was perhaps ever started-compelling other people to liquidate your obligations, has been in all ages and all nations a highly comfortable and popular proceeding. There were some at the time of which I write who would not be satisfied with the sale of the mines. They held that even after the sale the Government should be made a sharer in the proceeds realized from them.

"The first bill on the subject was introduced in the Senate by Mr. Sherman of Ohio and in the House by Mr. Julian of Indiana. Both of these bills contain the most odious features. Sherman's bill went to the Committee on Public Lands, of which Mr. Stewart is a member. After much consideration it was understood that the committee would report adversely. Julian's bill received a much more favorable consideration in the House. In fact, the House went so far as to pass a resolution indorsing legislation substantially of the character contemplated in Julian's bill. After much canvassing, Mr. Conness and Mr. Stewart came to the conclusion that it was no longer safe to act on the defensive, and that it was necessary to determine what legislation would be acceptable, and to make a bold move to obtain it. The Secretary of the Treasury was then one of the strongest advocates of the sale of the mines, and appeared to be under the impression that it would yield a large revenue. The movement thus far had been encouraged by him, and it was thought that a partial success of his views would be more satisfactory to him than entire defeat. Mr. Conness accordingly suggested to him to have a bill prepared in his department, which would avoid the odious provisions of the other two propositions, and get some Senator to introduce it, assuring him that a liberal measure would receive the favorable consideration of the Pacific delegation. The result was that the Secretary had prepared the second bill, introduced by Mr. Sherman, which was a great gain on the first bill. This bill went to the Committee on Mines, of which Mr. Conness was Chairman and Mr. Stewart a member. After much discussion, these two Senators were appointed a committee to draft a substitute, which, after several weeks of close study, resulted in the reporting of a bill substantially the same as the one which is now the law. At this time it was not expected that it would be possible to do more than to get a report of the committee in favor of the measure, which it was thought would be an advanced affirmative position, from which the granting, selling, or other calamitous disposition of the mines could be successfully withstood. Upon making the report, however, it was determined to put on the boldest front possible, and try and pass it through the Senate. It came up on the eighteenth day of June, 1866, and at first had but two warm advocates-its authors. The discussion occupied the entire day, Mr. Stewart supporting the bill. Mr. McDougall first favored the bill, and then made a speech against it. Mr. Williams of Oregon was opposed to all bills of the kind. Nesmith contented himself with voting against it. Nye opposed it and said it would be good policy to let the whole subject alone, and not legislate upon it at all. This speech left his real position somewhat indefinite. In the course of the debate, however, it became manifest, from the remarks of Senators Sherman, Buckalew, and Hendricks, that the real merits of the bill were beginning to be appreciated by the Senate. The two authors of the bill congratulated themselves on this sign of progress, and resolved to try again.

"It was called up again on the twenty-eighth by Mr. Stewart, and was debated by Senators Stewart, Conness, Sherman, Hendricks, and others. After being amended slightly by Mr. Stewart, the bill passed the Senate. When it was first introduced, the bill had no friends in the House, but after it passed the Senate some of the Pacific delegation began to regard it favorably. It should have gone in the House to the Committee on Mines, of which Mr. Higby was Chairman; but Mr. Julian, who is an older member, and was then Chairman of the Committee on Public Lands, seized on the bill at once, and had it transferred to his committee. Then the struggle came to get it out of that committee. Mr. Stewart addressed himself to the members of it, and got every one of them but Julian, but he was intractable. He wanted his bill to go first, and would not let this supersede it. The House, too, was canvassed, and was found to be favorably disposed, but there was no way of getting at the bill. In the meantime, Higby had passed a bill from the Committee on Mines in regard to ditches. It contained only three provisions, and bore no resemblance to the bill in question, but it related to the same subject. When this bill came into the Senate, the mining bill was tacked on as a substitute, and was passed. It was then sent back to the House and went on the Speaker's table. In that condition it required a majority to refer it. To get that majority, Julian exerted all his strength, but failed. The bill was passed in the House without an amendment, and became a law. This accounts for its being entitled 'An Act granting the right of way to ditch and canal owners through the public lands, and for other purposes.' I have been particular about hunting up all the facts bearing upon this struggle, for the reason that the bill evolved from it is the most important, so far as California is concerned, that has ever been passed by Congress. The rules which have recently been proposed for the execution of the law, it is thought, will not meet the wants of the miners. If they do not, they will be amended. If difficulty should arise as to the authority to make such regulations under the law, a simple resolution, which can be passed any day, will be sufficient to legalize them. It is now thought best not to have the general subject opened again. It is far better to perfect the system which has been established as practical experience shall point the way, than to have any more agitation over it in Congress. The result of the whole fight is the grant of all the mines to the miners, with some wholesome regulations as to the manner of holding and working them, which are not in conflict with the existing mining laws, but simply give uniformity and consistency to the whole system. The escape from entire confiscation was much more narrow than the good people of California ever supposed. If either of the bills originally introduced had been passed, the Pacific States and Territories would have received a blow from which they would never have recovered. The Government could only have receded after the most irreparable and widespread damage had been done." 20

The first section of the Act of 1866 declared the mineral lands of the public domain to be free and open to exploration and occupation by all citizens of the United States and those who had declared their intention to become such. It established the first express right that ever existed for any and every citizen to go upon the public domain for the 20 Yale on Mining Claims, 10.

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purpose of mining. Up to that time the immense mining enterprises that had been carried on in California and elsewhere had been under the silent acquiescence rather than the direct sanction of the Federal Government. It will be observed that the right is limited to citizens and those who have taken the initiatory step to become such, in which respect the great republic was less liberal than Spain, for in that country the right was conferred upon natives" and all other persons whatsoever, though strangers to these, our kingdoms, who shall work or discover mines whatsoever, discovered or to be discovered; that they shall have them, and that they shall be their own in possession and property.' Under the Act a miner was enabled to acquire a fee simple title to his property. It assumed the existence of miners' customs or rules, and conferred the rights expressed, subject to such customs or regulations, when the same were not in conflict with the laws of the United States. It made no provision how a mining claim should be located. It provided, however, that no location thereafter should exceed 200 feet in length along the vein for each locator, with an additional claim for the discoverer; that no person should make more than one location on the same lode, and not more than 3,000 feet should be taken in one claim by any association of persons. The amount of surface ground was to be fixed by the local rules, and the extralateral right was given without regard to the position of the apex or top of the vein or lode appropriated. It made no mention of "end lines."522 No patent should issue for more than one vein or lode, which should be expressed in the patent.

There would seem to be no recognition or possibility of State legislation as to acquiring mines, although the fifth section provides that “in the absence of necessary legislation by Congress the local Legislature of any State or Territory might provide rules for working mines involving easements, drainage, and other necessary means to their complete development." It provided for a stay of proceedings until a final settlement of the rights of adverse claimants in Courts of competent jurisdiction. It made no mention of placer claims, nor of tunnel rights..

It will thus be seen that though the Act was a great step in advance, it was by no means complete, and on July 9, 1870, Congress passed another Act," which it declared to be a continuation of the foregoing Act, and annexing thereto six additional sections. It declared that placer claims should be subject to entry and patent upon like conditions provided as to lode claims. It also provided that in the absence of an adverse claim, where parties and their grantors had held and worked a claim equal to the period of the statute of limitations of the State or Territory within which the same was situated, that that ipso facto established a right to a patent thereto. It declared that no location of a placer claim thereafter made should exceed 160 acres for any one person or association.

In 1872 the foregoing legislation was superseded by a more elaborate Act, for May 10th of that year Congress passed another, in which it "showed its hand" by entitling the same "An Act to promote the development of the mining resources of the United States." 24 It enacted

21 Rockwell's Spanish Law, 122.

22 Eureka Case, 4 Sawy. 302. 23 16 U. S. Stats. at Large, 217. 24 17 U. S. Stats. at Large, 91.

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