Under date of December 28, 1906, the Secretaries of the Interior, Agriculture, and War issued certain rules and regulations applicable to the law thus enacted. These rules purport to regulate the examination of ruins and the gathering of objects of antiquity under permits issued by the respective Secretaries having jurisdiction; they provide for the granting of permits for such examination of ruins and gathering of objects of antiquity, determine how long they shall be operative, authorize the apprehension and arrest of persons who appropriate, excavate, or destroy any historical or prehistorical ruins or monuments or any object of antiquity on lands under the supervision of said Secretaries, and provide that: "Every collection made under the authority of the act and of these rules and regulations shall be preserved in the public museum designated in the permit and shall be accessible to the public." It will be observed that under the Arizona law permits for exploration or excavation of prehistoric ruins must be obtained from the " 'University of Arizona and from the board of supervisors of the county wherein the same is to be undertaken," while under the act of June 8, 1906, supra, such permits applicable to the lands of the United States are granted by the Secretaries of the Interior, Agriculture, and War under their respective jurisdictions. The Legislature of Arizona seems to have been proceeding on the theory that prehistoric ruins and the objects of antiquity found in them, or imbedded in the soil are not the exclusive property of the owner of the land or of the finder, but that the sovereign has some proprietary interest in them or right to control their disposition. On the other hand, Congress has proceeded on the theory that such ruins or articles belong to the owner of the fee or to the finder, and that as proprietor of the land constituting the public domain the United States either owns these things or at least has the right to say who shall go upon its lands to search for them and to impose conditions on their disposition when giving permits for exploration or excavation of the lands of the United States. The underlying question is one of ownership of the prehistoric ruins or articles referred to. In some countries it seems to be the practice for the sovereign to exercise dominion or control over such things as against the owner of the land, but the rules of property prevailing in the United States, coupled with our system of constitutional restrictions on legislative interference with property rights, do not permit it here. The ruins of prehistoric buildings or structures affixed to the soil are, under the common law of real property, part of the land and belong to the owner of the land. The fact that a building or structure may have been affixed to the land for 10,000 years instead of for 10 years does not make it any the less a part of the real estate. In respect of articles which are or once were personal property found in such ruins or imbedded in the soil, the rules are not so well settled but are clear enough to dispose of the case in hand. Such articles do not seem to come within any definition of treasure-trove and the ancient English law of treasure-trove, even if applicable in the United States, can have no bearing here, and it is only with respect to treasure-trove that any question of ownership by the sovereign as against the owner of the soil or the finder has arisen. With respect to ancient relics, the controversy has usually been between the owner of the fee and the finder. (See South Staffordshire Water Works v. Sharman, 65 L. J. Q. B. 460; Ferguson v. Ray, 44 Ore. 557; Burdick v. Chesebrough, 94 App. Div. 532; vol. 7, No. 8, p. 160, Law Notes; Goodard v. Winchell, 17 L. R. A. 788; Oregon Iron Co. v. Hughes, 47 Ore. 313.) In Elwes v. Briggs Gas Co. (33 ch. D. 562), the remains of a prehistoric boat discovered in the course of excavation by a lessee, were held to belong to the owner of the realty. In the Staffordshire Water Works case, supra, it was said: "The possession of land carries with it in general by our law possession of everything which is attached to it or under the land and, in the absence of a better title elsewhere, the right to possess it also and it makes no difference that the possessor is not aware of the thing's existence. "The general principle is that where anyone is in possession of house or land which he occupies and over which he manifests an intention of exercising control and preventing unauthorized interference, and something is found in that house or on that land by a stranger or a servant, the presumption is that the possession of the article found is in the owner of the locus in quo." The general rule is that the finder of lost property is entitled to it as against all the world except the real owner and that ordinarily the place where it is found does not make any difference, but articles imbedded in the soil as distinguished from those lying loose upon the surface are usually not treated as lost or abandoned articles and are therefore held to belong to the owner of the fee as against the finder, and the principle to be derived from the decisions is that prehistoric articles imbedded in the soil or found in ancient relics belong to the owner of the land or to the finder, but whether the owner of the land or to the finder, the rule excludes the sovereign and in this case, the State of Arizona. If the prehistoric ruins or articles are part of the land or belong to the proprietor of the soil, such things on the public domain are the property of the United States and a part of that domain. If such articles may become the property of the finder, still the United States has power to exclude the trespassers from its domain and to permit entry thereon on such conditions as it chooses, including one that articles of prehistoric interest found by the permittee on its land shall be disposed of as it directs. Its power to deal with the public domain is clear. Section 3 of Article IV of the Constitution provides that "Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or the property belonging to the United States." Van No State may interfere with that right or embarrass its exercise. Brocklin v. Tennessee (117 U. S. 151); Gibson v. Chouteau (13 Wall. 92). Congress may deal with such lands precisely as a private individual may deal with his farming property. United States v. Midwest Oil Co. (236 U. S. 459). If the question of title to prehistoric articles found on or in the soil is affected in any way by the fact that the owner of the land manifests an Intention to exercise control and prevent interference, the statutes of the United States and regulations thereunder relating to prehistoric ruins and articles on the public domain add that element to this case. I am of the opinion that prehistoric ruins in Arizona on land forming part of the public domain of the United States are the property of the United States; that prehistoric articles imbedded in the soil of or found on land owned by the United States are the property of the United States if not of the finder and that the State of Arizona has no proprietary or sovereign right to interfere under the State statute above referred to with such disposition of those articles as is provided for under the acts of Congress relating thereto. Respectfully, The SECRETARY OF THE INTERIOR. WILLIAM D. MITCHELL, O |