218. Classification of states.-Many of the states of the union have enacted laws governing the mining industry. These states may be grouped into three classes:

(1) Those states wherein the federal government acquired no public mineral land, and for that reason were not included in the scope of federal mining legislation;

(2) Those states which are public land states, but are exempted from the operation of the congressional mining laws, either for the reason that the mineral lands therein were sold under special laws prior to the enactment of general laws on the subject of mining, or because congress has by later laws in terms excluded them from the operation of these general laws;

(3) Those public land states and territories wherein the federal system is in full force, and wherein supplemental state and territorial legislation is authorized by the expressed terms of the federal laws.

219. First group.-In states falling within the first group, such as the thirteen original states, and those carved out of the territory claimed by them, it is quite manifest that no federal legislation touching mining tenures is possible, and that such regulations as are found must be sought in the laws of the several states. The individual states

comprised within this group, being the paramount proprietors of their mineral lands, could alone prescribe the terms upon which mining rights could be acquired thereon. To this class the states of Tennessee and Texas may be added.

In most of these states there is no distinction between the method of acquiring mineral lands and lands that do not fall within this designation. Some of them, particularly those where coal mining is carried on extensively, have elaborate systems in the nature of police regulations, prescribing the manner in which mines shall be worked, providing for their official inspection, proper ventilation, means of escape in case of accident, and provisions looking to the protection of the miners. Pennsylvania,' Kentucky,' West Virginia, and Tennessee1 have more or less elaborate codes, confined, however, to regulating the manner of working the mines. No mining legislation of a general character is found in Delaware, New Jersey, Georgia, Connecticut, Massachusetts, North Carolina, Rhode Island, Vermont, or Maine.

Some of the states, such as Massachusetts, Kentucky, and Tennessee," regard the industry of mining as in the nature of a public use, and permit private property to be condemned for purposes of rights of way and drainage.

South Carolina has enacted some special legislation affecting phosphatic deposits in navigable waters, marshes, and creeks belonging to the state, and providing for a system by which licenses may be granted to extract them upon payment of royalties to the state; but no distinction is made between the method of acquiring mineral lands and other lands, or in the tenures by which they are held. Of all the states found within the first group, New York 'Brightley's Purdon's Digest, 1894, vol. xi., pp. 1340 to 1386.

2 Laws 1891-92, p. 54; 1894, p. 55; Gen. Stats. 1887, p. 267; Id., p. 1130. 3 Laws 1893, ch. 22, p. 54; 1891, ch. 15, p. 22; 1891, ch. 35, p. 60; 1891, ch. 82, p. 209; 1889-90, p. 161.

Laws 1887, ch. 206, p. 336; Code 1884, p. 75, 327 et seq.; Laws 1891, p. 293; Whitney's Land Laws, p. 335.

Pub. Stats., 1882, ch. 189, 22 19 to 28.

6 Code 1884, 1854, p. 328.

7 Rev. Stats. South Carolina, 1893-94, vol i., pp. 36-38.

* Laws 1894, vol. i., ch. 317, p. 589 et seq.; Id., vol. ii., ch. 745, p. 1852.

8

and Texas' are the only ones having anything like a general mining code.

New York.-New York has from the earliest period of its history asserted its ownership of mines of the precious metals by virtue of its sovereignty. A history of the legislation in this state would serve no useful purpose in this treatise. Briefly stated, the existing laws contain the following declaration as to the state's ownership.

The following mines are the property of the people of the state in their right of sovereignty:

(1) All mines of gold and silver discovered or hereafter to be discovered;

(2) All mines of other metals discovered, or upon lands owned by persons not being citizens of the United States;

(3) All mines of other metals discovered upon lands owned by a citizen of the United States, the ore of which on an average shall contain less than two equal third parts in value of copper, tin, iron, and lead, or any of these metals;

(4) All mines and all minerals and fossils, discovered, or hereafter to be discovered, upon lands belonging to the state."

It is not our purpose to either analyze or criticise this law, but simply to outline it. As will be observed, its fundamental theory bears a striking analogy with that of the civil law. Citizens of the state discovering mineral upon lands of the state are required to give notice of the discovery to the secretary of state. The simple filing of this notice inaugurates the right to work. There are no statutory provisions fixing the area or extent of the property which may be worked under this notice; nor is there any direction as to marking of boundaries. The discoverer

1 Sayle's Civil Digest, Sup. 1888-93, tit. 64b, art. 3361b.

2 Laws 1894, vol. i., ch. 317, p. 589.

3 For review of the New York mining laws, see Dr. Raymond's monographs-Trans. Am. Inst. M. E., vol. xvi., p. 770, and vol. xxiv., p. 712; Eng. & Min. Journal, vol. Iviii., p. 560.

is exempted from paying any royalty for the term of twentyone years, and after the end of that period he or his personal representative shall be preferred in any contract for the working of such mine made with the legislature or under its authority.

Mining corporations are authorized to condemn property for the purpose of mining easements, under certain conditions and restrictions.

Texas.- Texas has a general mining law,' which in the main follows the congressional laws, with the exception that no extralateral right is conferred, and the miner is not granted anything beyond vertical planes drawn through his surface boundaries. Patents are issued if applied for within five years, the price being twenty-five dollars per acre for lode claims, and ten dollars per acre for placer claims. Prior to patent, one hundred dollars must be expended on each claim annually, and fifty dollars per claim per annum must be paid to the state treasurer, the amount of such payments to be credited upon the purchase price when patent is obtained. The state after patent exacts no royalty, and does not concern itself with the manner of working the mines. After title passes from the state, the tenure by which mining property is held is the same as other property.

? 20. Second group. In the states of Arkansas, Illinois, Missouri, Iowa, Michigan, Minnesota, and Wisconsin, lands of the government containing the baser metals (lead and copper) were ordered sold under special laws prior to the discovery of gold in California. The precious metals are not found in any appreciable quantities in any of these states. By acts of congress, passed at different times, Alabama, Michigan, Minnesota, Wisconsin, Kansas, and Missouri' were excepted from the operation of the federal mining laws.

1 Sayle's Civil Digest Sup., tit. 61b., art. 33616.

2 22 Stats. at Large, p. 487.

317 Stats. at Large, p. 465.

419 Stats. at Large, p. 52.

The extent of the power of these states over the mining industry is limited to regulating the manner in which mines may be worked with regard to the safety of the miners; that is to say, police regulations such as are found in Pennsylvania.' This power has been exercised in Illinois, Iowa, Kansas, and Missouri," where codes more or less elaborate are found. With these exceptions, there is no mining legislation of any importance found in any of the states in this group.

21. Third group. This group includes what may be generally called the precious-metal-bearing states and territories, and will be fully considered when dealing generally with the federal system, as by that system supplemental state and territorial legislation is permissive. This local legislation, where found, is essentially a part of the national law, as administered in the respective local jurisdictions. These state and territorial laws, to a large extent, supplant the local rules and customs, and in some of the states and territories are quite elaborate, embodying so many elements that they demand individual treatment in another portion of this work, after we shall have laid the foundation therefor.

It may be of historical interest to note that it was at one time held in California that the mines belonged to the state, in virtue of her sovereignty, and that the state alone could authorize them to be worked. The doctrine was asserted that the several states of the union, in virtue of their respective sovereignties, were entitled to the jura regalia which pertained to the king at common law.

In support of this view, the rules followed in the states of New York and Pennsylvania were cited. Of course, in

1 Brightley's Purdon's Digest, 1894, vol. ii., p. 1340 et seq.

2 Starr & Curtiss's Revision, 1885, p. 1618 et seq.; Starr & Curtiss's Sup.,

1885-92, p. 872; Laws 1895, p. 252 et seq.

3 Acts 1894, p. 95; Acts 1890, p. 71; Revision 1888, 22449 et seq.

+ Gen. Stats. 1889, vol. i., ? 3835 et seq.; Laws 1895, p. 312; Laws 1893, p. 270.

5 Rev. Stats. 1889, vol. ii., 3 7031 et seq.; Laws 1895, p. 225.

6 Hicks v. Bell, 3 Cal. 219.