recognized their binding force.' The land department of the government and the supreme court of the United States have uniformly acted upon the rule that all mineral locations were to be governed by the local regulations and customs in force at the time of the location, when such location was made prior to the passage of any mineral law made by congress. 46. Local rules as forming part of present system of mining law. To a limited extent, local regulations have still a place in our legal system. They are permitted to have controlling force in certain directions and under certain restrictions; but they are gradually becoming superseded by statutory enactments in the various states and territories, which, of course, are but another form of expressing local rules. In many parts of the mining regions the right to supplement congressional laws by the adoption of local codes is not exercised. In other places we still find the right asserted. In this aspect district laws and regulations, as well as state and territorial enactments, form an integral part of the present system, and will be dealt with in their appropriate place. The purpose of this chapter has been largely historical, and enough has been said to show the origin, development, scope, and legal status of local rules to enable us to award them their proper place in the evolution of the existing system. 3 47. Federal legislation during the second period. -On March 3, 1849, congress passed an act creating the department of the interior, and thereupon the supervision of mineral lands was transferred to the general land office in that department. The act of September 26, 1850, ordered the mineral 1St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Chambers v. Harrington, 111 U. S. 350; Golden Fleece . Cable Cons., 12 Nev. 313; King v. Edwards, 1 Mont. 235. ? Glacier Mt. S. M. Co. v. Willis, 127 U. S. 471: Broder v. Natoma Water Co., 101 U. S. 274; Jackson v. Roby, 109 U. S. 440; Chambers v. Harrington, 111 U. S. 350. lands in the Lake Superior district in Michigan to be offered at public sale, in the same manner, at the minimum, and with the same rights of pre-emption, as other public lands, but not to interfere with leased rights.1 This is the extent of affirmative action by congress during the second period touching its mineral lands, with the exception of the act providing for a district and circuit. court for the district of Nevada, approved February 27, 1865.2 Section nine of this act provided: "That no possessory action between individuals in any "of the courts for the recovery of a mining title or for "damages to any such title shall be affected by the fact "that the paramount title to the land on which such mines "lie is in the United States, but each case shall be ad"judged by the law of possession." The same provision is perpetuated in the revised statutes. This act was the first formal recognition by congress of the possessory rights of mineral occupants of the public lands. In all general laws granting the right of pre-emption to settlers upon public land, mineral lands were reserved from their operation. The act of September 4, 1841, excepts from its operation all lands on which are situated any "known salines or mines." Whenever, upon the admission of a new state into the union, the provisions of this general pre-emption law were extended to it, this reservation was emphasized, if not enlarged. Thus, by the act of congress passed March 3, 1853, it was provided that all the public lands in the state of California, whether surveyed or unsurveyed, excepting mineral lands, should be subjected to the provisions of the act of 1841; and it was further provided that no person should obtain the benefits of the act by a settlement or location on mineral lands. In grants to the several states, and in aid of the construction of railroads, similar reservations were made. The Rev. Stats., 2910. 1 Public Domain, p. 308. language of the reservation is not always precisely the same, but there is no departure from the established policy, that mineral lands were uniformly reserved for the use of the United States, or to be disposed of by such special laws as congress might see fit to enact. In another portion of this treatise the extent and operation of the several excepting clauses contained in the different classes of grants will be considered. Sufficient historical data has here been given justifying the conclusion reached by the courts in announcing the doctrine that, prior to 1866, it had been the settled policy of the government in disposing of the public lands to reserve the mines and mineral lands for the use of the United States. Prior to that date, the uniform reservation of mineral lands from survey, from sale, from pre-emption, and from all grants, whether for railroads, public buildings, or other purposes, fixed and settled the policy of the government in relation to such lands.1 248. Executive recommendations to congress. Colonel Mason, in August, 1848, had made a graphic and interesting report to the war department, announcing officially the discovery of gold, giving a glowing account of the extent and richness of the deposits. He recommended the establishment of a mint at San Francisco, the survey of the districts into small parcels, and their sale at public. auction to the highest bidder. On December 2, 1849, President Fillmore, in his annual message to congress, referred to the subject in the following terms: "I also beg leave to call your attention to the propriety "of extending at an early day our system of land laws, "with such modifications as may be necessary, over the "state of California and the territories of Utah and New "Mexico. The mineral lands of California will, of course, Silver Bow M. & M. Co. v. Clarke, 5 Mont. 378, 410; Ivanhoe M. Co. v. Keystone Cons. M. Co., 102 U. S. 167; U. S. v. Gratiot, 14 Peters, 526; Morton v. State of Nebraska, 21 Wall. 660; Jennison v. Kirk, 98 U. S. 453, 458; Deffeback v. Hawke, 115 U. S. 392, 401. "form an exception to any general system which may be "adopted. Various methods of disposing of them have "been suggested. I was at first inclined to favor the sys"tem of leasing, as it seemed to promise the largest reve"nue to the government, and to afford the best security against monopolies; but further reflection and our expe"rience in leasing the lead mines and selling lands upon credit, have brought my mind to the conclusion that there "would be great difficulty in collecting the rents, and that "the relation of debtor and creditor between the citizens "and the government would be attended with many mis"chievous consequences. I therefore recommend that in"stead of retaining the mineral lands under the permanent "control of the government, they be divided into small "parcels and sold, under such restrictions as to quantity "and time as will insure the best price and guard most "effectually against combinations of capitalists to obtain monopolies." On the day following, Hon. Thomas Ewing, then secretary of the interior, laid before congress an elaborate report concerning the discovery of gold in California, wherein he called attention to the fact that no existing law gave the executive power to deal with the mines or protect them from intrusion, and some legal provision was necessary for their protection and disposition. He recommended a transfer by sale or lease reserving a part of the gold collected as seigniorage. Nothing, however, came of these recommendations. Senator Fremont, on September 24, 1850, introduced a bill in . the United States senate "to make temporary provision for "the working and discovery of gold mines and placers in "California, and preserving order in the mines," and contemplated a system of licenses to be granted upon payment of a nominal monthly rental. This bill passed the senate but not the house.1 49. Coal land laws - Mining claims in NevadaSutro tunnel act. There were several minor attempts made to pass a general mining law applicable to the gold regions, 1 Yale on Mining Claims and Water Rights, pp. 340-349. While all admitted some but they met with no success. thing should be done, sentiment was divided on questions of policy. Laws were passed regulating the sale and disposal of coal lands; one on July 1, 1864,' and one on March 3, 1865;" and two laws, special and local in their nature-viz: the act of May 5, 1866,3 concerning the boundaries of the state of Nevada, wherein it was provided that "all possessory rights acquired by citizens of the United States to mining "claims discovered, located, and originally recorded, in 'compliance with the rules and regulations adopted by "miners in the Pah Ranagat and other mining districts "in the territory incorporated by the provisions of this "act into the state of Nevada, shall remain as valid, sub"sisting mining claims; but nothing herein contained shall "be so construed as granting a title in fee to any mineral "lards held by possessory titles in the mining states and "territories." The second was the Sutro tunnel act, approved July 27, 1866, which granted the right of way and other privileges to Adolph Sutro and his assigns to aid in the construction of a draining and exploring tunnel to the Comstock lode in the state of Nevada. This act conferred upon Sutro the right of pre-emption as to lodes within two thousand feet on each side of the tunnel, cut or discovered by the tunnel, excepting the Comstock lode and other lodes. in the actual possession of others. The act also recognized the mining rules and regulations prescribed by the legis 113 Stats. at Large, p. 343. 2 Id., p. 529. These two acts provided for the disposal of coal lands and the sale of town property upon the public domain. The act of March 3, 1865, 22, contains the following proviso, with reference to the sale of town lots: "Provided, further, That where mineral veins are possessed, which "possession is recognized by local authority, and to the extent so possessed "and recognized, the title to town lots to be acquired shall be subject to "such possession and the recognized use thereof. Provided, however, "that nothing herein shall be construed as to recognize any color of title "in possessors for mining purposes as against the government of the "United States." |