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This system does not seek to regulate or control mines or mining within lands held in private ownership, except such only as are acquired directly from the government under the mining laws, and then only forming a muniment of the locator's or purchaser's title. It does not require the payment of tribute or royalty as a condition upon which the public mineral lands may be explored or worked. As heretofore observed, it treats the government simply as a proprietor holding the paramount title to its public domain, with right of disposal upon such terms and conditions, and subject to such limitations, as the law-making power may prescribe. With the exception, perhaps, of lands containing deposits of coal and some of the baser substances, the system is practically confined in its operation to those states and territories lying wholly or in part west of the hundredth meridian, embracing the states of California, Colorado, Oregon, Washington, Nevada, Idaho, Montana, North Dakota, South Dakota, Wyoming, Utah, the territories of Arizona, New Mexico, and the district of Alaska. These comprise the precious-metal-bearing states and territories of the public domain. This system, as thus defined and limited, is the subject of this treatise.

This system is by no means symmetrical or perfect. It is one of the most difficult branches of the law to even logically arrange for the purpose of treatment, and the embarrassments surrounding its philosophical exposition are almost insurmountable. It has received attention in a fragmentary way at the hands of eminent writers, who are most logical and instructive when discoursing upon its imperfections and apparent absurdities. The courts are not harmonious with regard to rules of interpretation. No one tribunal has exclusive jurisdiction to determine questions arising under it. Its proper interpretation does not always involve federal questions, conferring upon the federal courts jurisdiction. It has thus come to pass that the

1 By act of congress all lands in Oklahoma are declared to be agricultural.

courts of last resort in several of the states and territories, in construing the same law, have reached diametrically opposite conclusions; and in many of its most important features we have conflicting theories enumerated by different courts of equal dignity and equal ability, until we are almost constrained to say that "chaos has come again."

It is not our purpose to condemn the system, but to endeavor to deal with it fairly as we find it. In the language of Judge Beatty,—

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"Nobody can pretend that it is perfect; but to our minds "it is a great improvement on the system which it dis'placed. We are willing to admit that cases may arise "to which it will be difficult to apply the law; but this "only proves that such cases escaped the foresight of congress, or that, although they foresaw the possibility of "such cases occurring, they considered that possibility so "remote as not to afford a reason for departing from the "simplicity of the plan they chose to adopt. So far the 'wisdom of the congressional plan has been sufficiently "vindicated by experience."1

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1Gleeson v. Martin White M. Co., 13 Nev. 442.

TITLE III.

LANDS SUBJECT TO APPROPRIATION UNDER THE MINING LAWS, AND THE PERSONS WHO MAY ACQUIRE RIGHTS THEREIN.

CHAPTER

I. "MINERAL LANDS" AND KINDRED TERMS DEFINED.;

II. THE PUBLIC SURVEYS, AND THE RETURN OF THE

SURVEYOR-GENERAL.;

III. STATUS OF LAND AS TO TITLE AND POSSESSION.

IV. OF THE PERSONS WHO MAY ACQUIRE RIGHTS IN PUBLIC MINERAL LANDS.

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