554 



MINING LAW. 



The lode was what was claimed and subse- 

 quently acquired by patent. The locator was 

 entitled to claim along the lode the number of 

 feet that the local laws permitted. The surface 

 was not conveyed to the locator ; he merely 

 acquired an easement to occupy it with struct- 

 ure's necessary for the working of his mine. 



On July 9, 1870 a new act was passed re- 

 lating more particularly to water-rights and 

 placer claims; and on March 3, 1873, one relat- 

 ing to coal-lands. On May 10, 1872, the general 

 mining act was passed, which repealed sections 



I, 2, 3, 4, and 6 of the act of 1866, and was 

 subsequently codified as title xxxii, chapter 6, 

 of the Revised Statues of the United States. 

 But a single act of any importance has been 

 passed since then, and this is the act of Feb. 



II, 1875, relating to tunnels on mining-claims. 

 The Existing Law. The act of 1872 is now a 



part of the organic law of the United States, 

 and is the only specific mining law existing 

 therein. It supersedes all local customs, rules, 

 and regulations, and all State or Territorial 

 laws in conflict with it, but is expressly limited 

 to claims located after May 10, 1872, and mokes 

 no attempt to interfere with any mining claims 

 theretofore granted. It ingrafted upon the ju- 

 risprudence of the country the so-called " doc- 

 trine of the apex," which is totally foreign to 

 all known systems of jurisprudence and of 

 doubtful expediency. This innovation has led 

 to much litigation and uncertainty and has 

 made the working of the law generally unsat- 

 isfactory. The following are some of the more 

 important provisions of the law : 



Title xxxii of chapter 6 of the Ee vised Statutes of the 

 United States contains twenty-eight sections, and cm- 

 bodies parts of the acts of 1S66 and 1872, chiefly the lat- 

 ter. The first section expressly reserves mineral lands 

 from sale under pre-emption, and the second gives all 

 citizens of the United States, or those intending to be- 

 come citizens, full privilege of free and open explora- 

 tion and purchase of mineral lands belonging to the 

 Federal Government under the rules prescribed by law 

 and the local rules and customs of the mining districts 

 not inconsistent with the laws of the United States. 

 The third section limits the size of the claim to 1,500 

 feet along the vein or lode, and prohibits the location 

 until a " discovery." of the vein or lode is made with- 

 in the limits of the claim located, and it limits the 

 width to 300 feet on each side of the middle of the 

 vein at the surface. It also provides that no mining 

 regulation shall so limit any claim as to be less than 

 twenty-five feet on each side of the middle of the vein 

 at the surface except where adverse rights existing at 

 that date render such limitation necessary. The fourth 

 section defines what is proper proof of citizenship. The 

 fifth provides that locators shall have the right of pos- 

 session and enjoyment " of all the surface included 

 between the lines of their locution, and of all veins, 

 lodes, and ledges, throughout their entire depth, the 

 top or apex of which lies inside of such surface lines 

 extended downward vertically, although such veins, 

 lodes, or ledges may so far depart from a perpendicu- 

 lar in their course downward as to extend outside 

 the vertical side-lines of such surface locations." It 

 confines the right of possession of such extra-lateral 

 portions to suoh parts of the vein or lode as lie be- 

 tween vertical lines drawn downward through the 

 end-lines of the location so continued in their own di- 

 rection that such planes will intersect such exterior 

 parts of such veins or ledges. This is the famous 



"apex" section, and is a departure from the rule of 

 the common law and of the Spanish codes. By it the 

 lode is made the principal thing ; hence, as the loca- 

 tion seldom covers the apex from one end-line to the 

 other, and as deposits constantly vary in character, 

 and are seldom or never continuous, the uncertainty 

 of this section is obvious. For a full discussion of the 

 legal aspect of this section, see Dr. Raymond's "Law 

 of the Apex" ("Transactions: American Institute of 

 Mining Eegineers," vol. xii), various articles by the 

 author of this article, in the " School of Mines Quar- 

 terly," vols. vii and viii, and Morrison's u Mining 

 Eights in Colorado" (Denver, 1887). The sixth sec- 

 tion regulates the location of tunnels, and the seventh 

 provides for the location of mining claims and the an- 

 nual labor necessary to hold them, defining certain 

 specific prerequisites, such as distinctly marking the 

 location on the ground, what the record shall contain, 

 reference to some natural object or permanent monu- 

 ment, etc. It provides that one hundred dollars' worth 

 of annual labor must be expended upon each claim 

 for each 100 feet along the vein until the patent is is- 

 sued. It allows the various mining districts to make 

 further rules and regulations not in conflict therewith, 

 and it gives a remedy to one co-owner for the failure 

 of another to contribute his proportion of the expenses 

 required by the act. 



The eighth section concerns the formalities neces- 

 sary for obtaining a patent, and vests the administra- 

 tion of the law, so far as the granting of patents is 

 concerned, in the hands of the General Land-Office. 

 An appeal lies therefrom to the Secretary of the In- 

 terior (see LANDS, PUBLIC). 



The ninth section relates to adverse claims to a 

 particular location, and defines what proceedings are 

 necessary for an adverse claimant to take, in order to 

 determine his claim. It requires the adverse claim- 

 ant, within thirty days after filing his claim with the 

 register of the particular mining-district in which it 

 is situated, to begin proceedings in a court of compe- 

 tent jurisdiction to determine the right of possession. 

 Failure to do this works a forfeiture of the adverse 

 right. After judgment, the law provides for the issue 

 of the patent or patents to the proper party (or parties, 

 if there be such who are entitled to separate and dif- 

 ferent portions of the claim), on their filing with the 

 register of the Land Office a certified copy of the 

 judgment-roll of the court, and a certificate of the 

 Surveyor-General, that the requisite amount of work 

 has been done upon the claim, and upon pavment of 

 five dollars per acre, as required by law. The tenth 

 and eleventh sections refer respectively to the way in 

 which vein or lode claims shall be described, and to 

 the prosecution to final decisions of applications made 

 prior to the act, provided no adverse rights then ex- 

 isted. The next five sections, taken partly from the 

 act of July 9, 1870, and partly from that of May 10, 

 1872, relate solely to placer mines. The first of these 

 sections, No. 2,329, defines placers, and subjects them 

 to entry and patent as other mineral lands. The next, 

 No. 2,330, limits all placer claims to 160 acres, to two 

 or more persons" or associations of persons, and pro- 

 vides for subdivision of legal subdivisions of forty 

 acres, into ten-acre tracts, and permits joint entry to 

 two or more persons or associations having contigu- 

 ous claims of any size, reserving all rights of bona-jide 

 pre-emption or homestead claims upon agricultural 

 lands. The next section, No. 2,331, requires that, 

 where placer claims are located upon unsurvcyed 

 lands, they shall be located as nearly as possible in 

 conformity with the general system of public lands, 

 and shall 'not include more than 20 acres for each in- 

 dividual claim, and provides also certain limitations 

 in cases where the claim can not be laid out to con- 

 form to the legal surveys. Section 2,332 is in effect a 

 statute of limitations in favor of such persons or asso- 

 ciations as have held and worked their claims prior 

 to the act, and gives them the benefit of the local stat- 

 ute of limitation of the State or Territory where the 

 claim is situated on giving evidence of their posses- 



