lature of Nevada. On the day following, congress passed the law generally known as the "Lode and Water Law of "1866," to which we will now devote our attention. 5 Yale on Mining Claims and Water Rights, pp. 351-352. CHAPTER IV. THIRD PERIOD: FROM THE PASSAGE OF THE LODE LAW OF 1866 TO THE ENACTMENT OF THE GENERAL LAW 53. The act of July 26, 1866.-This act was entitled "An act granting the right of way to ditch and canal "owners through the public lands, and for other pur"poses." The title gives no clue to the scope of the act. As a matter of fact, the title belonged to another act which had passed the house, and for which the mining act was substituted in the senate, without any attempt to change the title, and in this form passed both houses.' It was the first general law passed under which title might be acquired to any of the public mineral lands within what are known as the precious-metal-bearing states and territories. While most of the provisions of this act have been repealed and superseded by subsequent legislation, it remains a muniment of title to many mining 1 Yale on Mining Claims and Water Rights, p. 12. properties, rights to which attached prior to its repeal. To this extent it is still operative.' 254. Essential features of the act.-No one has ever claimed that this act was a model piece of legislation. It is faulty and crude in the extreme, and the embarrassments surrounding its proper interpretation are still encountered in the courts, where property rights arising under it come in conflict with those acquired under the later laws. Yet the mining communities accepted it as being a step in the right direction. Mr. Yale says of it: "As the initial act to the legislation which must necessarily follow, it is more commendable as an acknowledgment of the justice and necessity which dictated it, and " its expediency as a means to the advancement of the material interests of the state and nation, than for the perfection of its provisions or their exact adaptation to the accomplishment of the object intended. We must not, however, find fault with the law on account of its "imperfections or the introduction of objectionable features "in the mode to be followed in acquiring title under it. "These imperfections can be remedied, the rights of the parties amplified in many particulars, and the system so changed as to work with more facility than now anticipated." 66 2 It is certainly due to Senators Stewart and Conness, the authors of the bill, to explain that at the time of its passage it was extremely difficult to secure the consideration of any measure touching the subject of mineral lands. Eastern sentiment was divided on questions of governmental policy, and the delegations from the western states were not harmonious. If future experience has shown defects to exist in the law, the authors and friends of the measure are entitled to the gratitude of those engaged in the mining. industry for the establishment of at least three important and beneficent principles: First-That all the mineral lands of the public domain should be free and open to exploration and occupation ; 1 The full text of the act will be found in the appendix. Second-That rights which had been acquired in these lands under a system of local rules, with the apparent acquiescence and sanction of the government, should be recognized and confirmed;1 Third That titles to at least certain classes of mineral deposits or lands containing them might be ultimately obtained. 255. Declaration of governmental policy. By the first of these provisions, the government, for the first time. in its history, inaugurated a fixed and definite legislative policy with reference to its mineral lands. It forever abandoned the idea of exacting royalties on the product of the mines, and gave free license to all its citizens, and those who had declared their intention to become such, to search for the precious and economic minerals in the public domain, and, when found, gave the assurance of at least some measure of security in possession and right of enjoyment. What had theretofore been technically a trespass became thenceforward a licensed privilege, untrammeled by governmental surveillance or the exaction of burdensome conditions. Such conditions as were imposed were no more onerous than those which the miners had imposed upon themselves by their local systems. That such a declaration of governmental policy stimulated and encouraged the development of the mining industry in the west, is a matter of public history. 256. Recognition of local customs and possessory rights acquired thereunder. As was observed in the preceding chapter, the federal government had practically acquiesced from the beginning in the system of local rules established in the various mining districts. That is to say, no overt act was done by the government to overthrow or repudiate the system. No attempt was made to interfere with mining upon the public domain. The process by 1 Jennison v. Kirk, 98 U. S., 453, 458; Blake v. Butte S. M. Co., 101 U. S. 274. 'Ivanhoe M. Co. v. Keystone Cons. M. Co., 102 U. S. 167, 173. which these primitive systems came to be recognized, first by the states, and then by the national government, was natural. When mineral discoveries were made in other territories and states, the system inaugurated in California was adopted to govern and regulate the new mining districts.1 Local legislatures and local courts followed the precedent set in California, by enacting and upholding laws confirming the right in the newly discovered mineral districts to establish rules governing the mining industry. As the supreme court of the United States said, before the act of 1866 was passed: "We can not shut our eyes to the public history which "informs us that under the legislation (state and territorial), "not only without interference by the national government, "but under its implied sanction, vast mining interests have "grown up, employing many millions of capital and con"tributing largely to the prosperity and improvement of "the whole country." 2 The unqualified legislative recognition of these local systems was a simple act of justice. Any other course would have involved a practical confiscation of property acquired and developed by the tacit consent of the government. That this act was such unqualified recognition has been abundantly established by the highest judicial authority.3 257. Title to lode claims.-It may seem strange that the first mining law under which title to mining property could be absolutely acquired was limited in its operation in this direction to lode, or vein, claims. All mineral lands, whatever the forms in which the deposits therein occurred, were thrown open to exploration; but only lode claims. could be patented. We are at a loss to understand the reason for this, unless it is accounted for by the state of the 1 St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 650. 2 Sparrow v. Strong, 3 Wall. 97, 104. 3 Jennison v. Kirk, 98 U.S. 453, 459; Broder v. Natoma Water Co., 101 U. S. 274; Chambers v. Harrington, 111 U. S. 350, 352; Titcomb v. Kirk, 51 Cal. 288. |