before closing this historical review. A brief enumeration of these acts is all that will be here required.

The act of February 18, 1873,' excepted Michigan, Wisconsin, and Minnesota from the operation of the general mining laws.

The acts of March 1, 1873, and June 6, 1874, extended the time for the performance of annual labor on claims located prior to the act of 1872; and the act of January 22, 1880, fixed a uniform, time for the performance of labor upon all claims located subsequent to the act of 1872.5

The act of March 3, 1873, excepted Missouri and Kansas, and that of March 3, 1883,' exempted Alabama from the operation of the general mining acts. The act of January 12, 1877,8 in relation to salines; the act of June 3, 1878, in relation to timber cutting; and an act passed on the same day," commonly known as "the stone and timber act," and the amendment to the latter act, passed August 4, 1892," are the only other enactments during the period that are worthy of note.

Some of these acts have performed a temporary purpose; others, to some extent, form a part of the existing system, and, as such, will be again referred to in treating of the different subjects to which they relate.

With reference to the revised statutes, approved June 22, 1874, it may be said that, in the main, they were a mere revision and consolidation of the general laws existing and in force on December 1, 1873. The existing system of mining law, with the exception of a few acts passed since December 1, 1873, is found codified or consolidated into the

117 Stats. at Large, p. 465; C. M. L. 23. 217 Stats. at Large, p. 483; C. M. L. 23. $18 Stats. at Large, p. 61; C. M. L. 23.

421 Stats. at Large, p. 61; C. M. L. 24.

5 McGinnis v. Egbert, 8 Colo. 41; Slavonian M.Co. v.Vacavich, 7 Saw. 217. 619 Stats. at Large, p. 52. 71 Land Decisions, p. 656. 19 Stats. at Large, p. 221.

9 20 Stats. at Large, p. 88. 10 Id., p. 89.

"Sup. R. S., vol. ii, p. 65.

revised statutes. In treating of this system in the future we will simply refer to the sections of the revised statutes, unless the subject under discussion necessitates a reference to the original act.

76. Local rules and customs since the passage of the act.-Subject to the limitations enumerated in the act the miners of each mining district may make regulations not in conflict with the laws of the United States or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, and amount of work necessary to hold possession. While this privilege is thus granted, it is not universally exercised. Generally, in California the district organizations are things of the past; and we believe it is the case in other states and territories. The mining laws themselves are, under ordinary conditions, sufficient for all practical purposes. Yet we do encounter districts which still possess a potential existence. Therefore, local rules must be dealt with as a part of the existing system, though much limited in their scope.

They have performed their part in the scheme of evolution, and have, for the most part, disappeared, to be replaced by higher forms of legislation.

As to the state and territorial legislation, the tendency in later years has been in the direction of individual mining codes, more or less comprehensive. While the existing federal laws largely dispense with the necessity for local regulation and circumscribe the field within which states may legitimately act, yet we find individual codes in some instances re-enacting many of the provisions of the federal laws and supplementing them with numerous provisions, some of which are subject to the criticism of being in conflict with the paramount law. The force and effect of this class of legislation will receive due attention when the subjects to which they relate are under discussion.

280. Conclusions deduced from preceding chapters. -In the preceding chapters we have given a short synopsis of such foreign mining laws as might reasonably be supposed to have exerted an influence on our system. We have also traced the origin and gradual development of the body of substantive law which now governs the acquisition and enjoyment of mining rights upon the public domain of the United States, and have endeavored to show the relationship which the several states have occupied in the past, and now occupy, with reference to public mineral lands within their respective boundaries. From the general review, we are permitted to deduce the following general conclusions:

Mines in the United States are not ranked as the property of society, the working of which is to be confided to the federal government. Mining with us is not a public "utility." It is simply a private industry, to be fostered and encouraged, as all other economic industries are fostered and encouraged; but the exploitation and development of mines are no more governmental functions than is the cultivation of the soil or the business of manufacturing. The United States is the paramount proprietor of the public mineral lands, holding them not as an attribute of sovereignty, but as property acquired by cession and purchase. As such paramount proprietor, it has the same

G

right of dominion and power of alienation as is incident to absolute ownership in individuals. By thre term "pub"lic lands," we mean such as are subject to sale or other disposal under general laws. Land to which any claims or rights of others have attached does not fall within the designation of "public land.""

Whenever a tract of land has once been legally appropriated for any purpose, from that moment it becomes severed from the mass of public lands.3

While in the various treaties of cession and purchase through which territory was acquired and added to the national domain the federal government recognized and obligated itself to protect the rights and equities of grantees of the ceding nation or state, and by virtue of its federated system of government held certain property in trust for future states, the great mass of the acquired territory falls within the designation of "public lands," and passed to the United States untrammeled by either the tradition, laws, or policy of the ceding power, or by compact with the new states."

As such absolute owner, the government might, at its pleasure, withhold its lands from occupation or purchase, lease them for limited periods, donate them to states for educational or other purposes, and to individuals or corporations to aid in the construction of railways and other internal improvements, sell or otherwise dispose of them absolutely or conditionally, and prescribe the terms and conditions under which private individuals might acquire permanent ownership, or the right of temporary enjoyment.7

Lux v. Haggin, 69 Cal. 255.

Newhall v. Sanger, 92 U. S. 761; Barden v. N. P. R. R., 145 U. S. 535, 538; Mann v. Tacoma Land Co., 153 U. S. 273, 284.

3 Wilcox v. McConnel, 13 Peters, 498.

Tide lands-Shively v. Bowlby, 152 U. S. 1; Lands under navigable waters-Pollard's Lessee v. Hagan, 3 How. 212.

5 Pollard's Lessee v. Hagan, 3 How. 212.

U. S. v. Gratiot, 1 McLean, 454; S. C., 14 Peters, 526.

Black v. Elkhorn M. Co., 163 U. S. 445.

The regalian doctrine of ownership in the crown of the royal metals, wheresoever found, based upon the theory that these metals were a prerogative of the crown, which prevailed in England, France, Spain, and Mexico, was never recognized in this country. A grant or conveyance by the United States carries all minerals, unless reserved expressly or by implication in the law or instrument purporting to pass the title.'

In countries from which the United States acquired its properties, the contrary doctrine prevailed, and minerals did not pass to the grantee unless specially named in the instrument."

281. Outline of the federal system - Scope of the treatise. It follows as a corollary from what has been heretofore stated, that the system of rules which sanctions and regulates the acquisition and enjoyment of mining rights, and defines the conditions under which title may be obtained to mineral lands within the public domain of the United States, is composed of several elements, most of which find expression in positive legislative enactment. Others, while depending for their existence and force upon the sanction of the general government, either express or implied, are, in a measure, controlled by local environment, and are evidenced by the expressed will of local assemblages, embodied in written regulations, or rest in unwritten customs peculiar to the vicinage.

American mining law may therefore be said to be found expressed:

(1) In the legislation of congress;

(2) In the legislation of the various states and territories supplementing congressional legislation and in harmony therewith;

(3) In local rules and customs, or regulations established in different localities not in conflict with federal legislation or that of the state or territory wherein they are operative.

Fremont v. Flower, 17 Cal. 199; Barden v. N. P. R. R. 154 U. S. 288; Davis v. Weibbold, 139 U. S. 507.

Fremont v. Flower, 17 Cal. 199; United States v. Castillero, 2 Black, 1; Halleck's Introduction to De Fooz on the Law of Mines, ? 7.