"constitute the basis of all our local laws and regulations "respecting mining rights."" 43. Dips, spurs, and angles of lode claims. With respect to lode, or "quartz," claims, as they were then locally termed, in contradistinction to gravel claims, the miners' rules and customs established a rule of property at total variance with the Mexican laws. We refer to the right to work the vein to an indefinite depth, regardless of the occupation or possession of the surface underneath which it might penetrate, and to hold in connection with the main vein, without regard to any inclosing surface boundaries, the "dips, spurs, angles, and variations" of the located vein. Neither the form nor extent of the surface area controlled the rights in the located lode. It did not measure the miners' rights, either to the linear feet upon its course or to follow the dips, angles, and variations of the vein. The lode was the principal thing, and the surface a mere incident." This departure from the rule of vertical planes drawn through surface boundaries may possibly be traced to the customs then in vogue among the lead miners of Derbyshire with reference to "rake veins." 4 We find no trace of such an innovation in any other of the contemporaneous mining systems. Under the early German codes of the sixteenth and seventeenth centuries, what may be called an inclined location (gestrecktfeld) was sanctioned, which gave the right to follow the vein to an indefinite depth, and to work within planes parallel to the downward course of the vein, thirty feet from the hangingwall and thirty feet from the foot-wall of the vein, forming a parallelopipedon. But this system had become obsolete long before the discovery of gold in California. 1 Introduction to De Fooz on the Law of Mines, p. vii. 2 Eureka Case, 4 Saw. 302-323. Johnson v. Parks, 10 Cal. 447. See, ante, 2 8. 5 Dr. R. W. Raymond - Mineral Resources, 1869, p. 195. Klosterman, in his treatise on the Prussian mining laws (Berlin, 1870), says that the abolition of inclined locations was brought about principally by the "interminable lawsuits inherent in the system." E This feature of the miners' rules and customs as adopted in California was embodied in the first mining legislation of congress, and was the basis of what is now termed the extralateral right under the existing system. A further discussion of this subject will be reserved for a succeeding chapter, where it will be dealt with in connection with the present laws. 44. Legislative and judicial recognition by the state.-California was admitted as a state of the union, September 9, 1850. The act of admission contained no reference to mineral lands, and the new state came into existence with the local systems in full force and operation in the mining districts. The legislature of the state in 1851 gave recognition to the existing conditions and the controlling force of the local system by inserting a provision in the civil practice act to the effect that the "customs, usages, or regulations, "when not in conflict with the constitution and laws of "the state, shall govern the decision of the action." As to the effect of this legislative declaration, and generally with reference to the attitude of the state and federal government, upon the subject of mineral lands in California, during this interesting period, the supreme court of California, speaking through Chief Justice Sanderson, thus announced its views: "The six hundred and twenty-first section of the prac"tice act provides that 'In actions respecting mining claims "proof shall be admitted of the customs, usages, or regu""lations established and in force at the bar or diggings "embracing such claims; and such customs, usages, or "regulations, when not in conflict with the constitution "and laws of this state, shall govern the decision of the ""action.' "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 Act of July 26, 1866. "(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 varied "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 appropria"tion 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 determi"nation 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 "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 re"sults. 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 contro"versies 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 or 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." Mr. Justice Field, who was the author of the provision of the California civil practice act referred to in the decision above quoted, and who is recognized as the "end of "the law" on mining subjects, in speaking for the supreme court of the United States, thus presents his views upon that branch of the law, as to which he was so peculiarly fitted to speak: "The discovery of gold in California was followed, as "is well known, by an immense immigration into the state, "which increased its population within three or four years "from a few thousand to several hundred thousand. The "lands in which the precious metals were found belonged to the United States, and were unsurveyed and not open "by law to occupation and settlement. Little was known "of them further than that they were situated in the Sierra "Nevada mountains. Into these mountains the emigrants "in vast numbers penetrated, occupying the ravines, gulches, "and canyons, and probing the earth in all directions for "the precious metals. Wherever they went they carried "with them that love of order and system and of fair deal"ing which are the 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 en"forced, and contests between them either avoided or deter"mined. These rules bore a marked similarity, varying "in the several districts only according to the extent and "character of the mines; distinct provision being made for "different kinds of mining, such as placer mining, quartz "mining, and mining in drifts or tunnels. They all recog"nized discovery, followed by appropriation, as the founda"tion of the possessor's title, and development by working "as the condition of its retention. And they were so framed "as to secure to all comers within practicable limits abso"lute equality of right and privilege in working the mines. Nothing but such equality would have been tolerated by "the miners, who were emphatically the law-makers, as 1 Morton v. Solambo M. Co., 26 Cal. 527. 66 respects mining upon the public lands in the state. The "first appropriator was everywhere held to have, within "certain well-defined limits, a better right than others to "the claims taken up; and in all controversies, except as "against the government, he was regarded as the original "owner, from whom title was to be traced. . . . These "regulations and customs were appealed to in controversies "in the state courts, and received their sanction; and prop"erties to the value of many millions rested upon them. "For eighteen years, from 1848 to 1866, the regulations "and customs of miners, as enforced and molded by the "courts and sanctioned by the legislation of the state, con"stituted the law governing property in mines and in water on the public mineral lands." 1 This exposition of the law governing mining rights, as it existed in the early history of the mining industry in the west, leaves nothing to be added by the author. The decision stands as a forensic classic. Judge Field was a part of the history of which he wrote. He served as an alcalde during the chaotic period antedating the admission of California as a state. He served his state in its first legislatures, and was the author of many of its early laws. As chief justice of its supreme court, his was the task to solve the great and overshadowing questions which arose over land titles in a new state coming into the union under peculiar and novel conditions, and he carried to the supreme bench of the United States, not only the practical knowledge acquired by personal contact with the mining communities, but a trained judicial mind. These local systems are said to have constituted the American common law of mines, and their binding force has been recognized from the beginning by a uniform line of decisions in the state and territorial courts. 2 45. Federal recognition. followed the rule thus adopted. The federal judiciary. 1 Jennison v. Kirk, 98 U. S. 453. |