CHAPTER V. FOURTH PERIOD: FROM THE ENACTMENT OF THE LAW OF MAY 10, 1872, TO THE PRESENT TIME. 268. The act of May 10, 1872.-On May 10, 1872, congress passed a law entitled "An act to promote the deIvelopment of the mining resources of the United States," which, while re-affirming the policy of the government as to the exploration, development, and purchase of its mineral lands by its citizens, or those who had declared their intention to become such, yet, particularly with respect to lode claims, it made a radical departure. This act is practically embodied in the revised statutes of the United States, and, to all intents and purposes, constitutes the present system. It is printed in full in the appendix, where will also be found the various sections of the revision. embodying its terms. It is not our purpose here to deal with it analytically. The entire treatise will practically be devoted to a discussion and exposition of it. It is our present purpose to simply outline its salient features, draw attention to the changes in the law made by the act, and give it its proper place in the history of mining legislation. 2 69. Declaration of governmental policy. - With reference to the declaration of governmental policy, it embodies the spirit of the preceding enactments, making such changes in expression as was necessitated by substituting one enactment embracing all classes of mineral lands for two practically separate ones dealing with two distinct. classes. The act of 1866, declared that the mineral lands of the public domain should thenceforward be free and open to exploration and occupation by all citizens and those who had declared their intention to become such, and granted the privilege to the claimants of a vein, or lode, of obtaining title to the mine. The act of 1870 extended like privileges to the owners of placers and other forms of deposit. The act of May 10, 1872, declares that all mineral deposits in land belonging to the United States are hereby open to exploration and purchase, and the lands in which they are found to occupation and purchase. The language in italics, particularly the last sentence, "the lands in which "they are found," seems to foreshadow the intent of the act in its radical departure from the method theretofore in vogue of locating lode claims. As a declaration of policy, however, we can see no essential difference in the spirit of the old and that of the new. The latter was, to all intents and purposes, a reaffirmance of the former. Let us briefly examine and discuss the changes made by the act in other respects, bearing in mind that it is not our present intention to critically discuss the latter law in all its aspects. We simply wish to invite attention to the principal modifications of the old system, and enumerate the salient features of the new. 270. Changes made by the act - Division of the subject. We can best deal with the subject by distributing it into three distinct heads: (1) Changes made with regard to lode claims; (3) New provisions affecting both classes of claims. We will discuss these in the order enumerated. 271. Changes made with regard to lode claims.The act of 1866 left the manner of locating these claims to local regulation, limiting the linear extent of each individual claim to two hundred feet, except in case of the discoverer, and to a maximum of three thousand feet to an association of persons. We have seen that under the local rules locations were made of the vein and a given number of linear feet on its course was claimed; also, that prior to patent the locator could follow that vein, wheresoever it might run, to the extent claimed. His surface ground was for the convenient working of his lode, and its extent was regulated entirely by local custom. His right to the vein in length or depth was not dependent upon the form or extent of the surface ground. When he applied for and received a patent, he received title to but one lode, and could only follow that on its course to the extent which it was included within his surface lines. While end lines were implied, his right to pursue the vein in depth was not based upon their substantial parallelism. The new law changed all this. As was said by Judge Beatty, "Disagreeable as the awakening may be, it is "time we are opening our eyes to the fact that a new sys"tem has been introduced."1 Under the act of 1872, the miner locates a surface which must be so defined as to include the top, or apex, of his lode. Failing in this, he obtains nothing. If he mistakes the course of his vein, it is his loss. He can only hold the vein on its course to the extent that the top, or apex thereof, is found within his boundaries. He may thus acquire a superficies fifteen hundred feet in length by six hundred feet in width, if local regulations do not restrict these measurements. In other words, under the old law he located the lode. 1 Gleeson v. Martin White M. Co., 13 Nev. 442, 459. Under the new, he must locate a piece of land containing the top, or apex, of the lode. While the vein is still the principal thing, in that it is for the sake of the vein that the location is made, the location must be of a piece of land including the top, or apex, of the vein. If he make such a location, containing the top, or apex, of his discovered lode, he will be entitled to all other lodes having their tops, or apices, within their surface boundaries. His end lines must be parallel and crosswise of the vein; otherwise, he cannot pursue his lode or lodes on their downward course beyond vertical planes drawn through his surface side lines. The law, in terms, does not so state; but this is the interpretation reached by the courts. The foregoing states the essential differences in theory between the two acts. By this act of 1872 there was also granted to the owners of "one-lode " patents, or locations, all lodes other than the one originally located, with the right to follow them in depth. It may also be observed that the act of 1866 applied to claims upon lodes, or veins, of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper. With ref erence to claims located prior thereto, the act of 1872 added to the list of metallic substances named, lead, tin, and "other valuable deposits." The act also contained rules for the determination of controversies between claimants of cross lodes and those uniting on the dip, and other minor details, all of which will be considered at the proper time. 2 72. Changes made with regard to other claims.No radical changes in the method of acquiring title to placers and other forms of deposit not in place were made by the act; but the quantity of ground which might be be acquired by an individual was limited to twenty acres. The act is silent as to the quantity which might be taken by an association of persons. Judge Hallett was of the 1 1 And, perhaps, these side lines produced, as in such case the side lines perform the functions of end lines. opinion that the one-hundred-and-sixty-acre limitation in this respect, contained in the act of 1870, remained unrepealed. Be that as it may, the revised statutes re-enacted this provision of the act of 1870.2 Provisions were also made for obtaining title to lodes known to exist within placers, and reserving such lodes from the operation of the placer patents, where they were not claimed by the placer applicant, a subject upon which the act of 1870 was silent. 273. New provisions affecting both classes of claims. -The act of 1872 went beyond the preceding legislation in many details. It fixed the amount of annual work to be performed in order to maintain the integrity of locations made both before and after the passage of the act. It provided for the marking of the boundaries of claims, prescribed the contents of records, where local rules required record, and the conditions under which forfeiture might be worked. The proceedings to obtain patent, and the method of asserting and determining adverse claims, were much more elaborate than in the preceding act, as well as much more satisfactory. 74. Tunnels and mill sites.-The act also provided a method of acquiring title to non-mineral land for the purpose of a mill site, either in connection with a located lode, or where used by the owner of a mill or reduction works. It also incorporated a provision with reference to tunnels as a means of discovering blind lodes, and securing certain rights on the discovered lodes to the locator and projector of the tunnel. These subjects will be fully discussed in their appropriate place. 275. Legislation subsequent to the act of 1872.— Several amendments were made to the original act and some supplemental legislation of a minor character is to be noted St. Louis Smelting Co. v. Kemp, 21 Fed. Cases, 205. 2 Rev. Stats., 2. 2330. |