F 
 
 59 \ 
 
BANCROFT 
 LIBRARY 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
THE NEW PUBLIC LAND POLICY WITH 
 SPECIAL REFERENCE TO OIL LANDS 
 
 BY WM. E. COLBY 
 
 (REPRINTED FROM THE CALIFORNIA LAW REVIEW 
 FOR MAY, 1915.) 
 
'. R Y 
 
 California Law Review 
 
 Volume III. MAY, 1915 Number 4 
 
 The New Public Land Policy with Special 
 Reference to Oil Lands 
 
 THE sentiment of the people of the United States, as 
 reflected by the attitude of the President, of Congress and 
 of the Supreme Court of the United States with regard to 
 the disposal of certain of the lands of the public domain has in 
 the past few years undergone a vital and radical change. This 
 recent change is the outcome of a marked conflict of opinion as 
 to the appropriate manner of disposing of the remainder of the 
 public domain. 1 
 
 The public lands acquired by the federal government during 
 the past century by cession, purchase and conquest have amounted 
 to over one and a half billion acres. This immense empire 
 was, when acquired, an almost totally undeveloped wilderness 
 and in order to encourage and foster its settlement and devel- 
 opment, the government held out great inducements, not only 
 to its own citizens, but to the citizens of other countries who 
 were willing to transfer their allegiance and become pioneers. 
 Agricultural lands were given away to those who became actual 
 settlers and lands valuable for other purposes were sold at 
 nominal prices. Mineral lands were "declared to be free and 
 open to exploration and purchase." 2 This lavish policy, coupled 
 
 1 This new policy does not materially affect the disposition of 
 lands which are purely agricultural in character and which will con- 
 tinue to be disposed of in accordance with the provisions of the various 
 existing acts of congress providing for such disposal. As George 
 Otis Smith said before the Public Lands Committee of the senate at a 
 hearing on the Oil Lands Leasing Bill, "in the case of agricultural 
 lands there is the home on the land idea, which puts them in a class 
 by themselves". Neither is there any pronounced attempt at present 
 to materially change the policy of disposing of metalliferous lands. 
 
 2 2319 U. S. Rev. Stats. 
 
 24 
 
270 CALIFORNIA LAW REVIEW 
 
 with the wonderful discoveries in these lands of wealth of mine, 
 forest, water and water power available to all comers, has re- 
 sulted in the disposition by the federal government and the 
 passing into private ownership of by far the more fertile and 
 valuable half of this vast acreage. 
 
 Awakened by this rapid shrink.ige of the public domain 
 and the realization that if prompt action were not taken all 
 of the valuable public lands would pass into private ownership, 
 certain leaders in the creation of public opinion started a new 
 trend of thought, having for its basis certain fundamental ideas. 8 
 These were, briefly, the belief that the liberal policy of the gov- 
 ernment in holding out inducements to prospectors and pioneers 
 had, in the main, accomplished its purpose, and in many in- 
 stances the disposal of natural resources had far over-reached 
 the point where the greatest public good would be subsei"ved 
 by a continuation of that policy; that there were certain of 
 these resources so intimately associated with the future welfare 
 of the nation that it was for the best interests of the public 
 at large that these resources, viz: timber, coal, petroleum, water 
 power, phosphates, potash, etc. should be retained in public 
 ownership since their use could thus be best conserved and 
 
 3 Apropos of this subject, Secretary of the Interior, Franklin K. 
 Lane has the following to say: 
 
 " . . . . there exists a feeling in the West that its affairs and 
 needs have not been given that consideration at the hands of the 
 
 National Government which they merit they are urable 
 
 to understand why ways have not been found by which the grreat 
 bodies of coal and oil lands, of phosphate and potash lands, may 
 be developed, and waters of the mountains made available for 
 the generation of power and the redemption of the desert. There 
 is one very simple explanation for the existence of this feeling. 
 We have adventured upon a new policy of administering our 
 affairs and have not developed adequate machinery. We have 
 called a halt on methods of spoliation which existed, to the reat 
 benefit of many, but we have failed to substitute methods, sane, 
 healthful, and progressive, by which the normal enterprise of an am- 
 bitious people can make full use of their own resources. We abruptly 
 closed opportunities to the monopolist, but did not open them to 
 
 the developer we had put into force a new land policy, 
 
 which caused dismay and discontent Congress has always 
 
 been most generous as to the disposition of the national kinds. 
 .... out of the abuse of the Nation's generosity there came a 
 reaction against a policy that was so liberal as to be dangerous. 
 .... So there has slowly evolved in the public mind the concep- 
 tion of a new policy that land should be used for that purpose 
 to which it is best fitted, and it should be disposed of by the 
 Government with respect to that use. To this policy I believe the 
 
 West is now reconciled " Annual Report of the Secretary 
 
 of Interior (1913), pp. 1-3. 
 
THE NEW LAND POLICY 271 
 
 controlled; and that there was also imminent danger that they 
 might be monopolized to the detriment of the public. 4 The 
 idea of a public revenue to be derived from the leasing and sale 
 of these resources has also come into prominence. This is the 
 modern idea of conservation of natural resources. 5 
 
 One of the first of these resources to be conserved, as 
 having a most vital effect upon the future welfare of the nation, 
 were the forests. The assurance of a conserved supply of lumber 
 and the regulation of stream flow and its natural benefit to 
 the navigability of such streams were the controlling induce- 
 ments which have resulted in the withdrawal from disposal 
 and permanent reservation of millions of acres of timbered 
 lands now embraced within the "national forests" in the west- 
 ern states. 6 
 
 4 "The objects to be sought by amendment of the public land laws 
 are, first, purposeful and economical development of resources for 
 which there is present demand, with retention of such control as may 
 insure against unnecessary waste or excessive charges to the con- 
 sumer, and, second, the reservation of title in the people of all resources 
 the utilization of which is conjectural or the need of which is not 
 immediate." Geo. Otis Smith, Annual Report of the Director of the 
 U. S. ^Geological Survey, (1911), p. 9. These annual reports, 1908 to 
 date, contain much interesting information and forecast the change in 
 public land policy. 
 
 5 Of course, conservation in its broadest sense embraces a far 
 greater field and is applicable to the use of private as well as of public 
 resources. Conservation in this modern sense has been defined to be 
 "the utilization of lands for their greatest vahie". The Classification 
 of the Public Lands, by George Otis Smith, et al., Bulletin 537 U. S. 
 Geological Survey, p. 1. Another definition, credited to Dr. C. W. 
 Hayes, chief geologist of the U. S. Geological Survey, is "the utilization 
 of natural resources with a maximum efficiency and a minimum of 
 waste". Professor Van Hise has defined conservation of natural 
 resources to mean "that they should remain as nearly undiminished 
 as possible in order that this heritage of natural wealth may pass in 
 full measure to succeeding generations". The Conservation of Natural 
 Resources in the United States, by Chas. R. Van Hise (1910). 
 
 A more comprehensive definition, with special reference to public 
 
 lands, is the following: "National conservation is a policy of 
 
 primarily placing the remnant of the public domain, other than that 
 portion of it which is essentially agricultural in character, in a state of 
 reservation and subsequently dealing with it or its natural resources 
 in such a manner as will economically yield the best results to all the 
 people. Its principal aim is to obtain a maximum economic production 
 at a minimum of waste; to prevent individuals or aggregations of indi- 
 viduals from securing monopolies; and to exact some equivalent for 
 the privileges granted". Lindley on Mines, 3d ed., 200. Anyone 
 interested in the subject will find an excellent presentation of "Con- 
 servation Measures and their Effect on the Mining Industry" in 
 200-200c of this work. 
 
 Acts of March 3, 1891, 26 Stats, at L. 1103; June 4, 1897, 30 Stats, 
 at L. 1103; Feb. 1, 1905, 33 Stats, at L. 628; Mar. 4, 1907, 34 Stats, at 
 L. 1256; etc. 
 
272 CALIFORNIA LAW REVIEW 
 
 Public sentiment rapidly crystallized so that coal lands were 
 next deemed of such far reaching value to the public that their 
 conservation by retention of federal control was urged ipon 
 congress 7 and in rapid succession followed similar proposals as 
 to lands valuable for water power control 8 , asphalt, petro eum 
 oil and gas, nitrates, phosphates and potash. 9 Congress has 
 either already enacted legislation providing for the federal con- 
 trol of lands of this character or is expected to act shortly on 
 these subjects. The federal reclamation and irrigation of arid 
 lands in the West is also a part of this modern conservation 
 movement. 10 
 
 This comparatively sudden reversal of policy on the part 
 of the federal government and the termination of the oppor- 
 tunity for private interests to acquire these valuable lands very 
 naturally met with determined opposition. The constitutionality 
 of these conservation measures adopted by congress and the 
 action of the President in anticipating such legislative action 
 by withdrawing from private entry the lands in question pend- 
 ing the enactment of the desired statutes, has been seriously 
 questioned on every conceivable ground. 
 
 Of greatest immediate interest to California, as far as the 
 operation of the new public land policy is concerned, has been 
 the withdrawal of oil lands situated on the public domain within 
 the state. The California deposits of mineral oil are among 
 the most extensive and important deposits in the world and the 
 manner in which the federal government will administer these 
 withdrawn lands and provide for the extraction and disposition 
 
 7 Until July, 1906, the government had followed the policy o; dis- 
 posing of coal lands at the minimum prices prescribed in the statutes, 
 U. S. Rev. Stats. 2347. Thereafter it classified these lands, and has 
 disposed of them at appraised values, in many cases far in excess of the 
 statutory minimum. The Public Lands Committee of the senate 
 eliminated all reference to coal from the general leasing bill passed by 
 the house at the last session of congress, for the reason that the need 
 for new legislation for the mining of coal on the public lands is not so 
 great as that for the other minerals specified. Senate Report, No. 947, 
 63rd congress, 3rd session. 
 
 8 The executive withdrawal of lands valuable for water-power sites, 
 irrigation, etc. was authorized by congress, June 25, 1910, 36 Stats, 
 at L. 847. 
 
 9 These latter substances are considered of great general economic 
 value because of their use in the manufacture of fertilizers to renew 
 the productivity of worn-out agricultural lands. 
 
 10 Act of June 17, 1902, 32 Stats, at L. 388, amended June 25, 1910, 
 36 Stats, at L. 836. 
 
THE NEW LAND POLICY 273 
 
 of this oil is of vital interest to the future of this state. Because 
 of the arid character of the surface lands, vast areas of the 
 territory overlying the oil strata had remained a part of the 
 public domain. The discovery of the existence of this oil in 
 commercial quantities and the creation of a market for the crude 
 output resulted in a rush of locators to the oil fields commen- 
 surate with and in many respects similar to the congestion 
 and conditions resulting from new "strikes" or discoveries of 
 the gold fields. 
 
 The general placer law was the only operative mining law 
 permitting of the acquisition of these deposits. 11 Immediately 
 following the disclosure of the value of these public oil lands 
 there were the usual attempts to acquire them by indirection 
 and by distorting other land laws in the attempt to defeat the 
 mineral claimant. "Scrippers", i. e. those who attempted to 
 make selections of these oil lands in lieu of other lands under 
 an exchange system provided for by law, homesteaders, desert 
 entrymen, etc., all proceeding under laws providing for the 
 acquisition of agricultural lands, which laws expressly exclude 
 mineral lands from their operation, hastened to make filings, 
 in most instances lacking in good faith. Locators under the 
 mining laws even, claiming discoveries of gypsum cropping 
 on the surface, were also subject to the valid criticism of attempt- 
 ing to gain by subterfuge the valuable oil deposits which they 
 could not acquire directly without the expenditure of time and 
 money. These attempts were rendered possible by the physical 
 fact that the valuable oil-bearing sands lay at considerable 
 depths below the surface and could be reached only after drill- 
 ing to the depth of hundreds or even thousands of feet and 
 at great cost. In some instances it has taken wells of 4000 
 or 5000 feet in depth and the expenditure of over $250,000.00 
 to reach the oil. The courts early held that only actual dis- 
 coveries of oil by drilling would satisfy the statutory require- 
 ment of discovery essential to validate a mining claim and that 
 mere oil seepages or stains or other surface indications were 
 not sufficient. 12 
 
 11 2329-2333 U. S. Rev. Stats., a codification of the Federal 
 Placer Act of 1870. The act of Feb. 11, 1897, 29 Stats, at L. 526, pro- 
 vided that lands containing petroleum or other mineral oils could be 
 acquired under the laws relating to placer mineral claims. 
 
 "Nevada Sierra Home Oil Co. v. Home Oil Co. (1899), 98 Fed. 
 673, at p. 675; Miller v. Chrisman (1903), 140 Cal. 440, 75 Pac. 1083, 74 
 
274 CALIFORNIA LAW REVIEW 
 
 While this holding gave the fictitious agricultural claimants 
 a certain technical advantage over the bona fide mineral clai- 
 mants, yet the courts made short work of these subterfuges 
 and finally eliminated most of these pseudo filings from further 
 serious consideration. 13 The land department also came to the 
 rescue of the oil miners and withdrew from agricultural entry 
 large areas of land adjacent to the proven territory pending 
 classification by government geologists. 14 This peculiar situation 
 forced on government officials an early realization of the fact 
 that the placer mining laws with their rigid discovery require- 
 ment were a misfit when applied to the location of oil lands. 15 
 The courts of California and Wyoming aided the diligem oil 
 locator in a measure, by a liberal interpretation of the inchoate 
 right acquired by him in making his location prior to actual 
 discovery and held that such a locator, who in good faith was 
 prosecuting the drilling of his discovery well with reasonable 
 diligence, would be protected to the full extent of his boundaries 
 from clandestine or forcible invasion by others attempting to 
 locate subsequently. 16 Thus many of the serious problems which 
 confronted the oil locator in the early days of the field have 
 since been removed, so that the amount of litigation arising 
 from these original sources is becoming relatively unimportant. 
 
 Pac. 444, 98 Am. St. Rep. 63; s. c. (1905), 197 U. S. 313, 49 L. Ed. 77C, 
 25 Sup. Ct. Rep. 468. 
 
 13 Cosmos Exploration Co. v. Gray Eagle Oil Co. (1900), 104 Fed. 
 20, 112 Fed. 4, (1903), 190 U. S. 301, 47 L. Ed. 1064, 23 Sup. Ct. Rep. 
 692; Kern Oil Co. v. Clarke (1897), 30 L. D. 550, on review, 31 L. D. 
 288; State of California (1913), 41 L. D. 592; Hirshfeld v. Chrisman 
 (1911), 40 L. D. 112; see also Diamond Coal Co. v. United States 
 (1914), 233 U. S. 236, 58 L. Ed. 936, 34 Sup. Ct. Rep. 507; Washirgton 
 Securities Co. v. United States (1914), 234 U. S. 76, 58 L. Ed. 1220, 34 
 Sup. Ct. Rep. 72; Leonard v. Lennox (1910), 181 Fed. 760. 
 
 14 United States v. Midwest Oil Co. (1915), 35 Sup. Ct. Rep. 3d9, at 
 p. 315. Similar withdrawals from non-mineral acquisition have been 
 made as a measure of protection to surface locators under the mining 
 laws, of lands overlying deep seated deposits of copper ore in Arizona. 
 Report of Director of U. S. Geological Survey (1913), p. 154. 
 
 15 Classification of the Public Lands, Bulletin 537 U. S. 'Geological 
 Survey, p. 38; Report of Secretary of the Interior Lane (1913), p. 13. 
 
 "Weed v. Snook (1904), 144 Cal. 439, 77 Pac. 1023; Mercec Oil 
 Co. v. Patterson (1908), 153 Cal. 624, 96 Pac. 90; Miller v. Chrisman 
 (1903), 140 Cal. 440, 73 Pac. 1083, 74 Pac. 444, 98 Am. St. Rep. 63; 
 Borgwardt v. McKittrick Oil Co. (1913), 164 Cal. 650; Little Sespe 
 Cons. Oil Co. v. Bacigalupi (1914), 167 Cal. 381, 139 Pac. 802; Smith v. 
 Union Oil Co. (1913), 166 Cal. 217, 135 Pac. 966; Whiting v. Straup 
 (1908), 17 Wyo. 1, 95 Pac. 849. 
 
THE NEW LAND POLICY 275 
 
 In addition to this conviction that the placer laws were a 
 misfit, the land department was also influenced most forcibly 
 by the conservation movement which has already been com- 
 mented on and which is resulting in the establishment of the 
 new public land policy. The appreciation of the importance of 
 oil as a mineral fuel and source of heat and power, next to that 
 of coal, was accentuated by the magnitude of the discoveries 
 in the oil fields of California and Wyoming. Here was an asset 
 of vital concern to the future welfare of the nation found in 
 almost fabulous quantities on land which was in part still public 
 domain. The rapidity with which these lands were being lo- 
 cated and thus passing into private ownership, convinced the 
 public officials and leaders in conservation ideas that if prompt 
 action were not taken, most of the available territory would be 
 privately absorbed and as far as petroleum was concerned, the 
 new policy of government ownership and control would be im- 
 possible of accomplishment. 17 
 
 The importance of conserving a supply of this new fuel for 
 the requirements of the navy was also in the minds of the 
 interested officials though it had not at that time assumed the 
 importance which has since arisen through the more definite 
 determination to use fuel oil in the navy. 18 Acting on the sug- 
 gestion of his advisors in the land department, 19 President Taft 
 caused an executive order or proclamation to be issued on 
 September 27, 1909, withdrawing from all forms of disposal 
 and "in aid of proposed legislation affecting the use and dis- 
 position of the petroleum deposits on the public domain", over 
 three million acres of land in California and Wyoming which 
 included most of the territory known or thought by the Geolog- 
 ical Survey to be valuable for oil. 20 This sudden and sweeping 
 
 "See United States v. Midwest Oil Co. (1915), 35 Sup. Ct. Rep. 
 309, at p. 310; The Classification of Public Lands, Bulletin 537 U. S. 
 Geological Survey, p. 38. 
 
 18 At the request of the navy department, two naval petroleum 
 reserves were created in the California oil fields on Sept. 2, 1912, and 
 Dec. 13, 1912, estimated to contain 250,000,000 barrels of oil. Report of 
 Director of U. S. Geological Survey (1913), pp. 151-152. 
 
 19 The history of the origin and development of this proposal is 
 outlined by its chief sponsor, George Otis Smith, before the Public 
 Lands Committee of the senate at a hearing on the Oil Lands Leasing 
 Bill, 63rd congress, 3rd session, pp. 208-210. 
 
 20 Of course, much of the land withdrawn included private titles 
 which had already vested and which were consequently not affected by 
 the withdrawal. The net area of the public lands thus withdrawn could 
 
276 CALIFORNIA LAW REVIEW 
 
 action on the part of the executive in withdrawing practically 
 all of the remaining public lands possessing probable oil values 
 caused great consternation among the oil operators. It injected 
 a tremendous element of uncertainty into the operations of many 
 and resulted in a decided curtailment of expenditures looting 
 toward the making of discoveries. Many bona fide operators 
 were placed in the position of not knowing whether their ex- 
 penditures already made would be forfeited or not, and yet they 
 hesitated in the dubious experiment of continuing to "th-ow 
 good money after bad". President Taft himself was not con- 
 vinced of the unqualified legality of his act 21 , and in order to 
 place his power of withdrawal beyond question he urged congress 
 to give him positive statutory authority, which resulted in the 
 passage of the Act of June 25, igio. 22 Immediately after its 
 passage and acting under its authorization, he again caused 
 these same lands and additional lands which had been withdrawn 
 from time to time subsequent to the first withdrawal, to be with- 
 drawn. The validity of this later withdrawal in pursuance of 
 congressional sanction has not been seriously questioned. The 
 Withdrawal Statute expressly provided: 
 
 "That this act shall not be construed as a recognition, 
 abridgment, or enlargement of any asserted rights or ck.ims 
 initiated upon any oil or gas-bearing lands after any with- 
 drawal of such lands made prior to the passage of this Act" 
 Thus all question as to the validity of the original Taft with- 
 drawal of September 27, 1909, was left open for the determin- 
 ation of the courts. 23 The practically universal consensus of 
 
 only be estimated in a very general way, for the included location titles 
 were in all conditions varying from mere "paper locations" not 
 accompanied by actual possession, nor followed by any attempt at dis- 
 covery work, to locations where all the legal requirements had been 
 strictly complied with and discovery actually made. Until "court has 
 been held" and all of the underlying and essential facts disclosed, it will 
 be impossible to determine whether many of these private claims are 
 valid or not. The Government has instituted suits to test the val dity 
 of many of these private claims. 
 
 21 This doubt was expressed by the President in his message to 
 congress of January 14, 1910, and also in public speeches. 
 
 22 36 Stats, at L. 847. This act only provided for the withdrawal 
 of mineral lands containing coal, oil, gas and phosphates, but was 
 amended August 24. 1912, (37 Stats, at L. 497), in order to provide for 
 the withdrawal of lands valuable for potash, and in anticipation of the 
 fact that other minerals might later be found desirable to be included in 
 such reservations, the act was made operative as to all non-metallic 
 minerals. 
 
 23 In the recent Midwest decision by the Supreme Court of the 
 United States and hereinafter noted, the majority opinion states that 
 
THE NEW LAND POLICY 277 
 
 opinion among the oil operators and the lawyers of the West 
 who examined into the question, was that the first or executive 
 withdrawal was invalid. Acting on opinions of their legal ad- 
 visors to this effect, many operators located withdrawn lands, 
 or commenced diligent prosecution of work on lands already 
 located. 24 As a consequence, cases involving lands affected by 
 the first order of withdrawal began to arise, necessitating a de- 
 termination of the validity of this executive action. The land 
 department first passed on the question, deciding that the order 
 of September 27, 1909, was valid. 25 Then Judge Riner, federal 
 District Judge for Wyoming, in the now famous Midwest case, 
 sustained a demurrer to the bill of complaint filed by the United 
 States, holding that the withdrawal order was void. 26 This case 
 was taken to the Supreme Court of the United States and became 
 the test case on this question. Meanwhile on June i, 1914, 
 Judge Dooling, one of the federal District Judges in California, 
 decided 27 that the promulgation of the order in question was 
 "an encroachment upon the domain of Congress" and was there- 
 fore unlawful. 
 
 The Midwest case just referred to involved a tract of public 
 land in Wyoming which was take.n possession of by private in- 
 dividuals six months after its withdrawal under the order of 
 September 27, 1909. A well was drilled, discovery of oil made 
 and quantities of oil extracted. The federal government brought 
 suit to recover the land and for an accounting. The govern- 
 ment took an appeal from the District Court's ruling sustaining 
 the demurrer and dismissing the bill. The Circuit Court of 
 Appeals certified certain questions to the Supreme Court of the 
 United States which latter court ordered the entire record sent 
 up for consideration. The Supreme Court recently decided the 
 case in favor of the government, reversing the ruling of the 
 Wyoming federal District Court. 28 
 
 "The Act left the rights of parties .... to be determined by the 
 state of the law when the proclamation was issued". 
 
 24 The withdrawal act of June 25, 1910, expressly protected bpna 
 fide claimants of oil lands who were, at the date of any order of with- 
 drawal theretofore or thereafter made, diligently prosecuting work 
 leading to a discovery. 
 
 2 5 In re Lowell (1911), 40 L. D. 303. 
 
 26 No written opinion was filed in this case. 
 
 27 United States v. Midway Northern Oil Co. (May 29, 1914), 216 
 Fed. 802. 
 
 28 United States v. The Midwest Oil Company (Feb. 23, 1915), 35 
 Sup. Ct. Rep. 309. Five justices joined in the prevailing opinion, 
 
278 CALIFORNIA LAW REVIEW 
 
 The case was twice argued orally and several briefs were 
 filed by parties interested in other lands similarly affected. The 
 importance of this decision to the oil industry, as well as the 
 interesting character of some of the problems involved, will 
 justify a brief analysis of the case. 
 
 The single and controlling question was the validity of the 
 withdrawal order and the power of the President to make such 
 an order in the absence of positive congressional authorization. 
 Justice Lamar wrote the prevailing opinion and held that it was 
 unnecessary to determine as an original question whether the 
 President had this power because "of the legal consequences 
 flowing from a long continued practice to make orders like the 
 one here involved". He calls attention to the fact that su:h a 
 practice dates from an early period in the history of our gov- 
 ernment and that during the past eighty years a multitude of 
 executive orders have been made without express statutory auth- 
 ority, operating to withdraw every kind of land mineral and 
 non-mineral that would otherwise have been open to private 
 acquisition under existing acts of congress. Instances of at least 
 252 executive orders withdrawing public lands for military, Ind- 
 ian, and bird reservations were cited where there were no ex- 
 press statutes empowering the President to withdraw any of the 
 lands affected. He said that it was natural that the government 
 should retain for these purposes what it already owned, es- 
 pecially since no private right was, at the date of the withdrawal, 
 in existence to be injured, for prior to the initiation of some 
 right under public statute, no citizen had an enforceable interest; 
 that the President was in a position to know when the public 
 interest required such withdrawals and his action was subject 
 to disaffirmance by congress which had repeatedly acquiesced in 
 the practice; and that this was also the interpretation p'aced 
 upon the existence of the power by the law officers of the gov- 
 ernment at various times. 
 
 In answer to the argument that while there might be this 
 usage yet these instances of the exercise of this power did not 
 establish its validity, Justice Lamar said: 
 
 "But government is a practical affair intended for prac- 
 tical men. Both officers, lawmakers and citizens naturally 
 
 Justice McReynolds not participating. Three justices dissented. A 
 petition for rehearing was filed April 16, and denied April 19, 1915. 
 
THE NEW LAND POLICY 279 
 
 adjust themselves to any long continued action of the Ex- 
 ecutive Department on the presumption that unauthorized 
 acts would not have been allowed to be as often repeated 
 as to crystallize into a regular practice". 
 
 Therefore, usage itself shall be given weight in determining 
 the existence of a power. 29 Not that "the Executive can by his 
 course of action create a power" but "the long-continued prac- 
 tice, known to and acquiesced in by Congress, would raise a 
 presumption that the withdrawals had been made in pursuance 
 of its consent or of a recognized administrative power of the 
 Executive in the management of the public lands." The United 
 States, acting through congress, is the proprietor and owner of 
 the public domain, and conditions may arise requiring that, in 
 the public interest, the land be withheld from sale and this power 
 may be granted by implication to the executive just as might be 
 the case between a private owner and his agent. The attempted 
 distinction between reservations and withdrawals was held un- 
 availing. If permanent reservations made by the executive and 
 already noted are valid, then the lesser exercise of similar power, 
 involved in making a temporary withdrawal in aid of future 
 
 29 The best considered criticism of this doctrine is to be found in 
 Cooley's Constitutional Limitations 7th ed., Chapter IV, pp. 102-107, 
 from which the following extracts are taken: 
 
 "Where there has been a practical construction, which has been 
 acquiesced in for a considerable period, considerations in favor of 
 adhering to this construction sometimes present themselves to the 
 courts with a plausibility and force which it is not easy to 
 resist 
 
 "Great deference has been paid in all cases to the action of the 
 executive department, where its officers have been called upon, 
 under the responsibilities of their official oaths, to inaugurate a new 
 system, and where it is to be presumed they have carefully and 
 conscientiously weighed all considerations, and endeavored to 
 keep within the letter and the spirit of the Constitution. If the 
 question involved is really one of doubt, the force of their judg- 
 ment, especially in view of the injurious consequences that may 
 result from disregarding it, is fairly entitled to turn the scale in the 
 judicial mind. 
 
 "Where, however, no ambiguity or doubt appears in the law, 
 we think the same rule obtains here as in other cases, that the 
 court should confine its attention to the law, and not allow 
 extrinsic circumstances to introduce a difficulty where the lan- 
 guage is plain. To allow force to a practical construction in such 
 a case would be to suffer manifest perversions to defeat the evi- 
 dent purpose of the lawmakers. 'Contemporary construction . . . . 
 can never abrogate the text; it can never fritter away its obvious 
 sense; it can never narrow down its true limitations; it can never 
 enlarge its natural boundaries.' While we conceive this to be the 
 
280 CALIFORNIA LAW REVIEW 
 
 legislation, is lawful and examples were cited where this power 
 of withdrawal had also been exercised, and attention call* d to 
 the fact that in 1902 the senate specifically requested information 
 of the secretary of the interior as to the extent that public ands 
 had been withdrawn and the authority for such action. Con- 
 gress after receiving this information did not repudiate the prac- 
 tice and its silence was acquiescence, or equivalent to cor sent, 
 until revoked by subsequent congressional action. 
 
 An unusually vigorous dissenting opinion was written by 
 Justice Day and concurred in by Justices McKenna and Van 
 Devanter. 30 
 
 Justice Day quotes article four, section three, of the Consti- 
 tution of the United States, which empowers congress 
 
 ". . . to dispose of and make all needful rules and reg- 
 ulations respecting the territory or other property belonging 
 to the United States " 
 
 true and only safe rule, we shall be obliged to confess that some 
 of the cases appear, on first reading, not to have observed these 
 limitations. In the case of Stuart v. Laird, above referred tc, the 
 
 practical construction was regarded as conclusive 
 
 "It is believed, however, that in each of these cases an examin- 
 ation of the Constitution left in the minds of the judges sufficient 
 doubt upon the question of its violation to warrant their looking 
 elsewhere for aids in interpretation, and that the cases are not in 
 conflict with the general rule as above laid down. Acauies:ence 
 for no length of time can legalize a clear usurpation of prwer, 
 where the people have plainly expressed their will in the Constitu- 
 tion, and appointed judicial tribunals to enforce it. A power \s 
 frequently yielded to merely because it is claimed, and it rmy be 
 exercised for a long period, in violation of the constitutional pro- 
 hibition, without the mischief which the Constitution was des gned 
 to guard against appearing, or without any one being sufficiently 
 interested in the subject to raise the question; but these circum- 
 stances cannot be allowed to sanction a clear infraction o: the 
 Constitution. We think we allow to contemporary and pra:tical 
 construction its full legitimate force when we suffer it, where it is 
 clear and uniform, to solve in its own favor the doubts which arise 
 on reading the instrument to be construed." 
 
 It will be noted that the case of Stuart v. Laird (1803), 1 Cranch 
 299, 2 L. Ed. 115, adversely commented on by Cooley, is one Q- the 
 leading authorities on which the prevailing opinion in the Mic.west 
 case is based. The authorities discussed in the note on p. 107 of Cooley 
 are also of considerable interest in this connection as indicating that, 
 after all, the question is fundamentally a matter of opinion as to 
 whether it is best to "bend the Constitution to suit the law o:" the 
 hour" and yield "to considerations of expediency in expounding {-" or 
 whether "the success of free institutions depends upon a rigid adher- 
 ence to the fundamental law", whereas "by yielding to such influences 
 constitutions are gradually undermined and finally overthrown." 
 
 80 It is interesting to note that these latter two are western 
 appointees and together with the two federal District Judges below 
 
THE NEW LAND POLICY 281 
 
 and cites a previous decision of the Supreme Court which holds 
 
 that 
 
 "this implies an exclusion of all other authority over the 
 property which could interfere with this right or obstruct 
 its exercise". 31 
 
 He states that there is nothing in the Constitution suggesting or 
 authorizing any augmentation of executive authority said to arise 
 by implication from the tacit consent of congress in its long 
 acquiescence in such executive action of making the specified 
 withdrawals. Withdrawals have been made by the President in 
 the past and have the sanction of judicial approval but only 
 in cases (a) where congress has already declared its policy as 
 being an appropriate one for the use of public lands such as 
 military and Indian reservations, or (b) where grants of land 
 by congress are so conflicting that the withdrawal of the lands 
 affected is sustained until congress has had an opportunity to 
 clear up the ambiguity. 82 
 
 Taking up the Taft withdrawal, Justice Day calls attention to 
 the fact that congress had by specific statute 33 authorized the location 
 of lands valuable for oil under the placer mining laws. The sole 
 purpose for making the withdrawal was in anticipation that con- 
 gress might provide a better system for the disposition of such 
 lands and to preserve some oil lands in California as a basis of 
 naval supply in the future. It is not claimed that the President 
 had express authority from congress. Such withdrawals must 
 be limited to purposes which congress has itself recognized by 
 direct legislation or long continued acquiescence as public pur- 
 poses. It is conceded that the President might reserve tracts 
 for definitely fixed public purposes declared by congress, such 
 as military or Indian reservations, but the action here taken in 
 withdrawing a large part of the public domain from the opera- 
 tions of the public land laws is neither sanctioned by the Con- 
 stitution, nor conferred by congressional legislation, nor by that 
 
 who declared this order invalid, presumably reflect the western thought 
 and attitude toward this question. 
 
 81 Wisconsin etc. R. R. Co. v. Price County (1890), 133 U. S. 496, 
 504, 10 Sup. Ct. Rep. 341. 
 
 32 Justice Day entered into a rather elaborate review of the specific 
 withdrawals claimed to constitute the basis for the executive custom of 
 withdrawal held in the prevailing opinion to have ripened into implied 
 authority and classifies these withdrawals under either the one head- 
 ing or the other. 
 
 33 February 11, 1897, 29 Stats, at L. 526. 
 
282 CALIFORNIA LAW REVIEW 
 
 long acquiescence as to be the equivalent of a grant. The Pres- 
 ident's powers are defined by the Constitution which does not 
 confer upon him any power to enact, suspend or repeal law 3 of 
 congress, and the Supreme Court has refused to sustain vith- 
 drawals made by the executive in contravention of a policy for 
 the disposition of lands expressly declared in acts of congress. 34 
 In order to be valid, an executive withdrawal must either be 
 authorized by express congressional authority or clear impli- 
 cation of such authority. Justice Day calls attention to the 
 limited powers of the United States government vested definitely 
 by the Constitution in the three co-ordinate branches of the gov- 
 ernment and quotes from the famous case of Kilbourn v. Thomp- 
 son, to the effect that it is essential to the successful working 
 of this system that the respective functions of these branches 
 shall be broadly and clearly defined and that they shall not be 
 permitted to encroach upon the powers confided in the other 
 branches, but each "be limited to the exercise of the powers 
 appropriate to its own department and no other", 35 and concludes 
 the dissenting opinion with the following language: 
 
 "These principles ought not to be departed from in the 
 judicial determinations of this court, and their enforcement 
 is essential to the administration of the Government, as cre- 
 ated and defined by the Constitution. The grant of author- 
 ity to the Executive, as to other departments of the Govern- 
 ment, ought not to be amplified by judicial decisions. The 
 Constitution is the legitimate source of authority of all who 
 exercise power under its sanction, and its provisions are 
 equally binding upon every officer of the Government, from 
 the highest to the lowest. It is one of the great functions of 
 this court to keep, so far as judicial decisions can subserve 
 that purpose, each branch of the Government within the 
 sphere of its legitimate action, and to prevent encroachments 
 of one branch upon the authority of another. 
 
 In our opinion, the action of the Executive Department 
 in this case, originating in the expressed view of a sub- 
 ordinate official of the Interior Department as to the desir- 
 ability of a different system of public land disposal than that 
 contained in the lawful enactments of Congress, did not 
 justify the President in withdrawing this large body of land 
 from the operation of the law and virtually suspending, as he 
 necessarily did, the operation of that law, at least until a 
 
 34 Cases are cited involving withdrawals in aid of railroad grants 
 held to have been invalid for the foregoing reason. 
 
 as Kilbourn v. Thompson (1880), 103 U. S. 168, at p. 190. 
 
THE NEW LAND POLICY 283 
 
 different view expressed by him could be considered by the 
 Congress. This conclusion is reinforced in this particular 
 instance by the refusal of Congress to ratify the action of 
 the President, and the enactment of a new statute author- 
 izing the disposition of the public lands by a method essen- 
 tially different from that proposed by the Executive." 
 
 The foregoing analysis of the two opinions will indicate that 
 they are based respectively upon fundamentally different concep- 
 tions of governmental policy as embodied in the federal consti- 
 tution. 
 
 The prevailing opinion rests upon the conception that "gov- 
 ernment is a practical affair intended for practical men" and that 
 the federal Constitution should be construed accordingly. In- 
 stances where the executive branch of the government has with- 
 drawn lands in aid of governmental functions, either expressly or 
 impliedly sanctioned by congressional action, are held to consti- 
 tute a precedent and to create a power by implication which the 
 President admittedly did not possess originally under the terms 
 of the Constitution, and which gives him the authority to with- 
 draw immense tracts of public domain, in aid of contemplated 
 legislation, from the operation of existing acts of congress spec- 
 ifically providing for the private acquisition of such lands. To 
 reach so liberal a conclusion as to the existence of this executive 
 power, the majority of the court were unquestionably influenced 
 by the modern conservation policy and the pressing necessity 
 for immediate action in the effort to retain under public control 
 as large an area of valuable oil lands as possible. The fact that 
 no private interest existing at the date of the withdrawal was 
 affected, was also a potent consideration. Those who attempted 
 to secure private rights thereafter did so with full knowledge 
 of the executive withdrawal and acted at their peril. 
 
 On the other hand, the dissenting opinion is based on a 
 strict conception of the distinct spheres of action of the three 
 branches of the government and the danger of a centralization of 
 power in the executive resulting from its invasion of the legiti- 
 mate and exclusive functions exercised by the other branches. 
 Irrespective of the beneficial results to be attained by the con- 
 summation of federal conservation policies, the minority mem- 
 bers of the court were influenced by the bald proposition that the 
 executive in withdrawing all of the lands of the public domain 
 
284 CALIFORNIA LAW REVIEW 
 
 known or thought to be valuable for oil 36 was virtually nullifying 
 and suspending the operation of the last expressed will of con- 
 gress contained in its positive declaration that all lands valuable 
 for petroleum shall be free and open to exploration and purchase 
 by citizens under the placer mining laws. 
 
 The fact that the executive assumed this power as a -esult 
 of a conviction that new laws should be enacted is interesting 
 to note. If the executive can suspend the operation of existing 
 statutes on the theory that they are detrimental to the public 
 interests and can substitute his views for those last expressed 
 by congress, even if only temporarily, there may arise occasions 
 where this power might be exercised in hostility to what may 
 prove to be the public interest. It was to avoid just such con- 
 tingencies that the strict division of power as between the var- 
 ious branches of the government was originally conceived by 
 the framers of the Constitution. It would also be interesting to 
 know how long the executive could lawfully suspend the opera- 
 tion of statutes and continue such suspension in force in the 
 event that congress did not see fit to make the contemplated 
 changes in the existing law. Of course, the answer can be made 
 that congress has the power to nullify such executive action, since 
 it retains the fundamental and exclusive power to legislate on 
 such subjects, but it may be said with equal force that congress 
 is in session during a large portion of each year and can act in 
 the original instance on such contemplated proposals and, if 
 deemed expedient, authorize the executive to make necessary with- 
 drawals in the interim in order to preserve the status quo. This 
 is really the fundamental difficulty. Logically, congress is the 
 body contemplated by the Constitution to consider and originate 
 legislation and make radical changes in existing legislation af- 
 fecting the public lands, but as a matter of practical operation, 
 congress has become to a greater and greater degree an unwieldy 
 body, slow to consider and slower to act. From the very nature 
 of its organization, representing as it does such radically different 
 viewpoints on most of the problems presented for its consider- 
 ation, it is prone to debate rather than to legislate. This has 
 
 36 The withdrawal of September 27, 1909, "included not only all 
 known California oil lands .... but also the Wyoming lands." George 
 Otis Smith, in Senate Public Lands Committee hearings on Oil Lands 
 Leasing Bill, p. 209. 
 
THE NEW LAND POLICY 285 
 
 resulted in the executive stepping in and usurping, to a degree, 
 certain of the functions unquestionably vested exclusively in 
 congress by the federal Constitution if interpreted in the spirit 
 which actuated its framers. This has become notably conspic- 
 uous in the case of the last few administrations where the ex- 
 ecutive branch of the government has formulated to a large 
 degree the legislative program, prepared to the letter the actual 
 bills proposed for passage, and employed all available political 
 pressure to insure their passage in their original form. 
 
 We are, therefore, confronted with an actual condition which 
 has by force of circumstances compelled a material deviation 
 from the policy outlined by the framers of the federal Constitu- 
 tion and the decision in the Midwest case is but a recognition of 
 this change and of the exercise of increased powers by the ex- 
 ecutive in the attempt to secure a greater flexibility of action and 
 more expeditious results than it is at present possible to obtain 
 from the ponderous and slow-acting legislative branch of the 
 government. 
 
 The decision in the Midwest case is, therefore, of far reaching 
 importance, since it sanctions a material enlargement of federal 
 executive power and places a positive stamp of approval on the 
 new public land policy. Of course, congress still has control 
 over the ultimate disposition of these oil lands and may not ac- 
 cept the proposed executive policy as to future legislation, but 
 the trend of recent events practically insures adoption of the 
 new policy either in whole or in large part. 
 
 The upholding of the validity of the Taft oil withdrawal adds 
 materially to the importance of the policy which will control 
 the future disposition of public oil lands. As already pointed 
 out, the conservation policy now generally accepted involves the 
 idea of a permanent reservation of title in the federal government 
 and the disposal of the oil under a leasing system on a royalty 
 basis. 37 A bill having this object and fostered by the admin- 
 istration was before the last congress but in the press of other 
 legislation failed of passage. 38 A similar bill is likely to be en- 
 
 37 Legislation of this character has been urged for a number of 
 years by the department of the interior. See the Annual Reports of 
 the Secretary of the Interior, and of the Director of the U. S. Geo- 
 logical Survey for the past few years. 
 
 38 The fact that these oil lands have been withdrawn for over five 
 years and that congress has not acted yet as to their ultimate disposi- 
 
286 CALIFORNIA LAW REVIEW 
 
 acted during the sixty-fourth session of congress. 39 In his re- 
 port to the Public Lands Committees of congress 40 Secretary Lane 
 states that this bill does not propose any change in the laws 
 governing the disposition of agricultural lands in general ; that, 
 instead of conducting a "gigantic land lottery under goverr.ment 
 auspices" as heretofore, in which a few individuals and corpora- 
 tions have acquired the best oil and coal lands for little or nothing 
 and have then sold the product back to the public at arb trary 
 prices, the proposed leasing system is open to all comers who 
 wish to prospect and develop these mineral resources on fair 
 terms so as to afford a fair return to the lessee and eliminate 
 to a degree the element of speculation. 41 He points out the fact 
 that the oil lands in private ownership are now largely operated 
 under the leasing system and that though the federal government 
 early abandoned a system of leasing lead mines, the adverse con- 
 ditions there encountered do not exist today in the case of oil 
 and coal lands. 42 
 
 tion is evidence of the difficulty of securing prompt action from this 
 
 body on most subjects. 
 
 "The West no longer urges a return to the hazards of the 'land 
 is land' policy. But it does ask action. It is reconciled to the 
 Government making all proper safeguards against monopoly and 
 against the subversion of the spirit of all our land laws, which is in 
 essence that all suitable lands shall go into homes, and all other 
 lands shall be developed for that purpose which shall make them 
 of greatest service. But it asks that the machinery be promptly 
 established in the law by which the lands may be used. And this 
 demand is reasonable." Annual Report of Secretary of the Interior 
 Lane for 1913, p. 3. 
 
 39 H. R. 16136. An act providing for the leasing of coal lar ds in 
 Alaska became a law Oct. 20, 1914. U. S. Stats. Ann., Jan. 1915 supp. 
 p. 6. By private resolution, 37 Stats, at L. 1346, the secretary of the 
 interior was authorized to continue the operations of the Owl Creek 
 Coal Co. in Wyoming, which he did by formal lease. See Report of 
 the Secretary of Interior (1912), pp. 10-11. 
 
 40 63rd congress, 3rd session. 
 
 41 In a letter dated May 1, 1914, addressed to the chairman of the 
 Public Lands Committee of the house, Secretary Lane writes: "The 
 measure deals with the principal fuel and fertilizer minerals found in 
 the public lands, classes of deposits in which the people generally are 
 particularly interested, and which should be so handled as to insure 
 general use at reasonable rates. It would be unwise to permit these 
 resources to be monopolized or gathered into private ownership of a 
 few for speculative purposes". 
 
 42 "The leasing method of disposition is about as fair a disposition 
 as we can expect to make of the publicly owned lands, not simply from 
 the standpoint of economics, but especially from the standpoint of the 
 public interests in the control of some of these minerals that must be 
 considered as absolutely necessary to the industrial life of today." 
 
THE NEW LAND POLICY 287 
 
 The proposed law passed the House and as finally amended in 
 the senate Committee on Public Lands, provided for a prospec- 
 tor's permit giving an exclusive right for a maximum period of 
 two years to prospect for oil and gas upon a maximum of 640 
 acres of public land situated not less than two nor more than 
 ten miles from any producing well, or a maximum of 2560 acres 
 when situated over ten miles from such a well. Drilling opera- 
 tions were to be commenced within six months, 500 feet to be 
 drilled in one year and 2000 feet in two years. The applicant must 
 comply with certain formalities of marking the ground and post- 
 ing notices, and the drilling operations must be carried on as pre- 
 scribed. Upon establishing a discovery of valuable deposits of 
 oil or gas the permittee becomes entitled to a patent for one-fourth 
 of the area embraced within the permit. 
 
 All other deposits of oil and gas on the public domain are 
 subject to lease by the secretary of the interior through competi- 
 tive bidding, each tract not to exceed 640 acres and such leases 
 to be conditioned upon the payment of a royalty of not more than 
 one-eighth, payable in oil or gas, and a rental of not less than 
 one dollar per acre per annum payable in advance to be credited 
 against the royalties as they accrue for that year. The term of 
 such leases is to be twenty years with preferential right of re- 
 newal for successive periods of ten years. The maximum lease- 
 hold or leaseholds that can be held by a single lessee in any area 
 of fifty miles square is 640 acres. 43 
 
 In order to protect those oil miners who were affected by 
 the executive withdrawals, it is provided that claimants of land 
 in which oil was discovered, or drilling operations were in actual 
 progress, January i, 1914, and the claim to which land was 
 initiated prior to July 3, 1910, may, within six months after the 
 passage of the act or within sixty days after the final determin- 
 ation of the right to a patent, relinquish the land to the govern- 
 ment and receive a lease therefor upon substantially the same con- 
 ditions as other lessees, except that no annual rental is prescribed 
 aside from the royalties, and it is further provided that where 
 claimants in good faith located lands prior to withdrawal thereof 
 and continued to occupy the same, and since July 3, 1910, have 
 
 Hearings on Oil Land Leasing Bill, Public Lands Committee of senate, 
 63rd congress, 3rd session, pp. 216-217. See also Classification of Public 
 Lands, Bulletin 537 U. S. Geological Survey, pp. 47-50. 
 
 43 There were many regulative provisions of lesser importance. 
 
288 CALIFORNIA LAW REVIEW 
 
 diligently prosecuted work looking toward a discovery and have 
 discovered oil prior to the passage of the act, that such claim 
 may pass to patent under the mining laws. 44 
 
 The secretary is authorized to dispose of the surface of these 
 lands insofar as the surface is not necessary for the use of the 
 lessee. 45 One of the most important provisions of all, requires the 
 payment to the respective states wherein the leased premises are 
 situated of fifty per cent of all moneys received from royalties and 
 
 44 On March 2, 1911, congress passed an act to cure a questionable 
 situation arising in numerous cases where an individual acquired more 
 than 20 acres of located land prior to discovery of oil, (36 Stats, at L. 
 1015). This act was amended August 25, 1914, 38 Stats, at L. 708, to 
 authorize the secretary of the interior to enter into agreements with 
 claimants of producing oil land so as to provide for the disposition of 
 the oil pending final determination of the title of the land where this 
 was questioned by the government. 
 
 A curative act applicable to phosphate lands located prior to with- 
 drawal was approved January 11, 1915, and provides for their patenting 
 under the placer laws. Where a lode claim conflicts, no placer patent 
 is to be issued until the adverse lode claim is abandoned, presumably 
 to get rid of any possible claim of an extralateral right. 
 
 45 This policy of severing the surface from the subsurface mineral 
 deposits and disposing of each separately has already been provided 
 for by congress. The importance of this step was recognized ty the 
 director of the U. S. Geological Survey, who in his annual report for 
 1911, p. 10, said: "The first step, both in principle and practice, in any 
 amendment of the land laws, appears to be that of making possible by 
 legislation the separation of surface and mineral rights whenever the 
 two estates have values which can be separately utilized". See also 
 Bulletin 537, U. S. Geological Survey, Classification of Public Lands, 
 pp. 46-47. The Act of July 17, 1914, 38 Stats, at L. 509, provides for 
 the issuance of patents under the non-mineral laws of the United 
 States for the surface of withdrawn lands containing phosphate, nitrate, 
 potash, oil, gas, or asphaltic deposits, with a reservation to the 
 United States of such deposits, together with the right to pros- 
 pect for, mine and remove the same under appropriate federal laws. 
 The right to occupy the necessary surface for mining operations is 
 also reserved and payment for anv damages to crops and improvements 
 incident to such operations provided for. Agricultural entries of surface 
 lands overlying coal deposits are permitted in the Acts of March 3, 
 1909. 35 Stats, at L. 844, and June 22, 1910, 36 Stats, at L. 583, amended 
 April 30, 1912, 37 Stats, at L. 105, and April 14 1914, 38 Stats, at U 335. 
 The Act of August 24, 1912, 37 Stats, at L. 497, provides for the agri- 
 cultural entry of the surface of oil and gas lands in Utah. The Act 
 of February 27, 1913, 37 Stats, at L. 687, provides for the selection by 
 the state of Idaho of the surface of oil and phosphate lands. This 
 policy of severing the surface from the mineral rights and treating each 
 as distinct properties is unquestionably the ideal system of land and 
 mining law, for the surface and the underlying minerals can in most 
 cases be disassociated and the surface used for agricultural or other 
 non-mineral pursuits with of course the reservation of the right to use 
 enough of the surface as may be essential to mining operations and 
 provision made for the payment of damage suffered by the surface 
 
THE NEW LAND POLICY 289 
 
 rentals, 46 the other half going into the reclamation fund. This 
 provision is inserted in order to appease the strong western senti- 
 ment antagonistic to the permanent retention by the federal govern- 
 ment of the proprietary control of these immense areas of land 
 wealth. 47 That this sentiment has a valid basis is apparent from 
 the mere statement of the fact that millions of acres of land 
 containing fabulous values of timber, coal, oil, water-power etc. 
 are to be administered by the federal government to the exclu- 
 sion of the states within which these resources exist, whereas 
 all of the eastern states and most of the states of the middle 
 west do possess and exercise this exclusive sovereign control 
 over all of the lands and resources within their respective bor- 
 ders, and enjoy the salutary results flowing from such complete 
 exercise of sovereignty. These western states are facing a ser- 
 ious curtailment of sovereign power which places them on a dis- 
 tinct plane of inequality. Here again, if this federal policy is to 
 become a permanent one, as there is every reason to believe, our 
 primary conceptions of the status of the western states which were 
 to be admitted to the Union upon terms of exact equality with 
 all the other states and were to enjoy equal privileges must suffer 
 a profound adjustment to harmonize with these new conceptions. 
 
 claimant. This separation of these rights is in line with true conserva- 
 tion, since it permits of "the utilization of lands for their greatest 
 value". Many of the continental systems of mining law provide for 
 this severance and it is unfortunate that the United States should not 
 have earlier recognized its ultimate importance. 
 
 46 As to this proposal, Secretary Lane says: "Inasmuch as the 
 title to these oil or other lands would remain in the Government and 
 be excluded from State taxation, it would seem to be fair that a certain 
 percentage of the royalties received should go to the States within 
 which the revenues are raised". Report to Public Lands Committee of 
 Congress. 
 
 The Senate Committee on Public Lands reports: "This is 
 deemed a just recognition of the rights of the States in and about 
 the public domain situated within their borders and the right of a 
 State to receive therefrom some revenue and benefit to go toward 
 maintenance of State Government". Report on H. R. 16136, p. 7. 
 
 47 This western attitude is strongly voiced by Justice Henshaw who 
 wrote the opinion in Deseret Water, Oil, etc. Co. v.' State of Cali- 
 fornia (1914), 167 Cal. 147, a case decided in bank and where the follow- 
 ing language appears: 
 
 "But here we desire to point out that while the state of Cali- 
 fornia was admitted as a sovereign state of the Union upon equal 
 terms with all the other states, and while it has been judicially 
 declared that an essential part of that equality is the disposition of 
 the public lands within the state, to the end that the revenues by 
 taxation therefrom and the control over them may be vested in the 
 state, we have in California a withdrawal by the United States from 
 sale and a placing in reserves of one-third of the area of the 
 
290 CALIFORNIA LAW REVIEW 
 
 This is a question of the interpretation to be placed on the pro- 
 visions of the federal Constitution which bear on the creation of 
 new states, their status and relation to the other states. If we 
 take the decision in the Midwest case as evidence of the recent 
 trend of opinion entertained by a majority of the federal Supreme 
 Court, we can almost certainly conclude that when this basic 
 question of State v. Federal Rights is presented to that court 
 for decision, it will not consider itself bound by strict letter, but 
 will interpret the Constitution broadly and in the light of the 
 recent public attitude toward conservation problems in general, 
 and will again recognize the doctrine that "government is a prac- 
 tical affair intended for practical men". 48 The question is, after 
 all, an eminently practical one, involving as it does profound econ- 
 omic and social problems, and not only a readjustment of the 
 relations of the individual toward the resources of the public 
 lands, but also a readjustment of the respective spheres within 
 which the state and the federal governments shall operate. 49 
 
 This new public land policy certainly marks a decided step 
 in the direction of centralization of power in the federal gevern- 
 
 whole state an area greater than the combined territory of New 
 Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, 
 New Jersey, and Maryland. Not this alone, but we have in these 
 withdrawals a refusal upon the part of the United States to yield 
 to the state of California control over its natural sources of 
 wealth. Its forests, its mines, its oil-bearing lands, its power 
 sites and possibilities, have been withheld by the United States, 
 which proposes to exercise over them, and is exercising over them, 
 the "municipal sovereignty" which the supreme court of the United 
 States in Pollard's Lessee v. Hagan declared not to exist. If at the 
 time of the proposed cession of its lands by Virginia, Congress 
 had declared its intent to be that which it has actually executed in 
 the state of California, little doubt can be entertained as to the jnswer 
 which Virginia would have made. It is indeed a departure from 
 the accepted construction of these constitutional provisions to have 
 it said that the United States may, as here, withdraw from state 
 use one-third of the area of a sovereign state, forever deny to the 
 state the sovereign power of taxation and control over these lands, 
 and develop and exploit them under its own rules and regulations 
 for the enrichment of its own treasury." 
 
 48 In fact the Supreme Court of the United States in the case of 
 Light v. United States (1911), 220 U. S. 523, 31 Sup. Ct. Rep. ^85, 55 
 L. Ed. 570, has already intimated that congress may, in the fullness of 
 its power of disposal over the public lands, and acting for the nation 
 as proprietor and owner, withhold from sale and settlement and place 
 in a state of permanent reservation such lands as it mav in the exercise 
 of its discretion, deem necessary for national and public purposes. 
 
 49 The fact that these problems are largely social and economic and 
 are tendencies represented on the one hand by advocates of "col- 
 lectivism" or "advanced socialism" as opposed to the more conservative 
 
THE NEW LAND POLICY 291 
 
 ment which was not within the contemplation of its framers, 
 but which policy its proponents contend, with considerable reason, 
 can be more satisfactorily and efficiently administered through 
 national rather than state control. 50 
 
 Wm. E. Colby. 
 Berkeley, California. 
 
 "individualists", was presented in a clear analysis of these opposing 
 views by Judge Curtis H. Lindley in April, 1910, at a meeting of the 
 San Francisco Bar Association in an address entitled "Conservation of 
 Natural Resources and its possible Effect on Mining, Irrigation and 
 Hydro-Electric Industries". He said: 
 
 "It is manifest that we are on the eve of a new dispensation, a 
 new order of things, and that it is time we should examine into the 
 prospective operation of these 'policies' when crystallized into 
 statutory enactments at the hands of the national legislative body. 
 .... The subject is a monumental one; presenting, in my judg- 
 ment, some of the greatest problems which are to be solved by the 
 present generation of lawyers, judges and constructive statesmen." 
 
 50 Hon. Walter L. Fisher, when secretary of the interior, had the 
 following to say on this general subject: 
 
 "..... the ordinary citizen of these [western] states are not at 
 all concerned over Federal usurpation or unjust treatment. They 
 recognize that the Federal Government has full legal power to 
 dispose of the public domain as wise policy may direct. 
 
 "They do not fear Federal usurpation, but seek Federal co-opera- 
 tion in supplementing State and local powers, so that the natural 
 resources shall be utilized for the public benefit primarily of the 
 locality in which these resources are situated, and thus ultimately 
 for the benefit of the Nation as a whole. They suspect that the 
 real purpose of those who urge the turning over of the Federal 
 domain to the States is that they may escape the longer and the 
 stronger arm of the Federal Government and may take advantage 
 of the more limited resources and governmental facilities of the 
 individual States. While some States have undoubtedly wisely 
 conserved certain of the lands and natural resources turned over to 
 them by the Nation, the story has too often been the acquisition 
 of these lands and resources by special interests or individuals 
 without adequate recognition of the public interest. There is no 
 policy which it would be wise for any State to adopt with respect 
 to these matters in the adoption and enforcement of which it can 
 not be supplemented and assisted rather than retarded by the 
 retention in Federal hands of the powers and the property now 
 held by the Nation. It is precisely this policy of practical 
 co-operation which should be put into effect. 
 
 "There is no real conflict between the Nation and the States 
 upon this subject. In fact, there can be no real solution of these 
 aspects of the problem until the interests and the functions of the 
 Nation and the States are co-ordinated and they are working 
 together for the same essential ends." Report of the Secretary of 
 the Interior (1912), pp. 20-21. 
 
292 CALIFORNIA LAW REVIEW 
 
 A similar policy has been suggested in Great Britain with reference 
 to some of these same resources particularly coal. This has been 
 entitled the "Nationalization of Minerals" and means 
 
 "the acquisition by the State of the whole of the minerals of 
 the country whether worked at the present time or not, and the 
 holding of them for the benefit of the community." Even the 
 "Nationalization of Land" has been proposed. 
 
 Lacking the public domain of this country the movement then is 
 seriously handicapped since it means exclusively condemnation and 
 purchase of private rights or confiscation. Final Reports of the Royal 
 Commission on Mining Royalties, pp. 46-47, 1893. 
 
HE FREEDOM OF THE MINER AND ITS 
 INFLUENCE ON WATER LAW 
 
 BY WILLIAM E. COLBY 
 
 REPRINTED FROM 
 
 LEGAL ESSAYS IN TRIBUTE TO ORRIN KIP McMuRRAY 
 (UNIVERSITY OF CALIFORNIA PRESS 1935) 
 
THE FREEDOM OF THE MINER AND ITS 
 INFLUENCE ON WATER LAW 
 
 BY WILLIAM E. COLBY 
 
 REPRINTED FROM 
 
 LEGAL ESSAYS IN TRIBUTE TO ORRIN KIP McMuRRAY 
 (UNIVERSITY OF CALIFORNIA PRESS 1935) 
 
THE FREEDOM OF THE MINER AND ITS 
 INFLUENCE ON WATER LAW 
 
 BY WILLIAM E. COLBY 
 
 MINING HAS HAD A PROFOUND INFLUENCE Oil the laWS and Social 
 usages of the communities throughout the world where min- 
 ing has flourished. The available record of the mining laws 
 of different countries throughout the ages establishes the fact that there 
 is a remarkable uniformity of underlying principle in these usages and 
 customs. In very ancient times mining was carried on as a sovereign 
 venture or concession and as a consequence laws governing mining in 
 those days were practically non-existent. It was only with the advent 
 of the autocratic democracy created by the Athenians that individual 
 mining assumed any considerable importance. The silver mines of 
 Laurium were divided into small tracts and leased to individuals or 
 groups of citizen adventurers. 1 
 
 Under Roman rule there was a partial emergence of the right of the 
 individual to mine on his own account. The Romans were not as a rule 
 skilled in the art of mining. They therefore found it more expedient to 
 allow the peoples whom they had conquered to continue mining oper- 
 ations in accordance with local customs and to exact a tribute or royalty 
 from them. Certain Roman emperors, in order to increase this flow of 
 wealth into Roman coffers, distinctly encouraged the leasing of min- 
 ing claims by individual adventurers. 
 
 In the tide "De Metallariis" of the Code of Justinian was found the con- 
 stitution of Valentinian, by which any one was permitted, and invited, to 
 become an aurilegulus, and to work for his own profit, on the condition of 
 rendering a certain metallic canon, and of selling the produce to the fisc in 
 preference to others. 2 
 
 GERMANY : Out of the darkness and welter of the Middle Ages, impor- 
 tant institutions, social and governmental, were born and many of their 
 essential principles can be traced down to the present day. During 
 these medieval times mining became of increasing importance, par- 
 ticularly in the Germanic states. The German miners were exception- 
 
68 William E. Colby 
 
 ally proficient in the art of mining and their services vere in demand 
 in many parts of the civilized world. The first edition of Agricola's 
 comprehensive treatise, De Re Metallica, was published in Germany in 
 1555 and is a veritable encyclopedia of the then existing phases of the 
 mining industry. 3 
 
 In this same medieval period the miner acquired a considerable 
 measure of freedom (Bergbaufrciheit, to use the German expression). 
 This is all the more remarkable when we remember the bondage 
 which the feudal system at that time imposed upon he farmer and 
 ordinary laborer, who were serfs in every sense of the word. Writers 
 differ as to just how this mining freedom came about. Some contend 
 that the miners themselves threw off the shackles of serfdom, 4 but the 
 more conservative view is that the miners constituted a skilled class 
 with special knowledge of an art, the practice of which brought large 
 royalties to the overlords and feudal rulers. In order to attract and en- 
 courage miners to work in a particular area that they might thus re- 
 ceive the royalties paid on the metals mined, these overlords vied with 
 one another in issuing liberal charters under which the miners op- 
 erated. 
 
 The princes of Germany imitated the policy of the Romtn emperors, and 
 invited adventure by indefinite liberty of search on terms which gave to the 
 adventurers a strong interest in their success. This liberty (the Freier^ld- 
 rung of the German mines) is indicated obscurely in the Iglavian mine 
 laws of the thirteenth century; more distinctly in those of Wenceslaus the 
 Second; and the system received its full development in the fifteenth and 
 sixteenth centuries. By the general practice of that country, every one is 
 entitled to a provisional right of search within certain limhs. 5 
 
 Medieval mining was largely carried on in uncultivated and moun- 
 tainous districts, on lands claimed by the overlords. 
 
 While the miners' right to enter upon this waste land and stake out 
 and work mining claims was, in the Middle Ages, largely controlled 
 by charters issued by the local rulers, it is also true tha; the provisions 
 of these charters were based upon and chiefly reflected the customs and 
 usages of the miners themselves. 6 This is true also of mining in other 
 parts of the world. The miner, having developed a special art, the suc- 
 cessful exercise of which he alone could carry on, was able to impose 
 
The Freedom of the Miner and Water Law 69 
 
 customs and usages of his own making upon his superiors in power, 
 who accepted this measure of dictation because of the financial bene- 
 fits accruing to them through payment of royalties. 
 
 One of the conspicuous rights asserted by these early miners in the 
 Middle Ages was freedom to go upon "common" or "wastrel" lands 
 and to stake out claims, the right to work which was recognized both 
 by charter and by custom as the miners' individual property. 7 The free 
 miners in Germany, France, and Great Britain not only had a right to 
 mine on these lands, but also were entitled to the use of rights of way, 
 timber, fuel, and water, space for buildings, and refineries. They were 
 exempted from various tolls, taxes, and duties, from military service, 
 from obligations of a servile tenure or condition, and from disability 
 and forfeiture by reason of alienage. They were also provided with 
 local officers and courts for the administration of justice. There was 
 special protection of person and property. 8 As long as the miner com- 
 plied with the usages and customs of the district, he had the right to 
 mine his own claim to the exclusion of all other persons and the right 
 to the product of his industry subject only to payment of the royalty. 
 
 Upon the discovery of a vein or other mineral deposit, he is entitled, as 
 of right, to a grant of a certain measured space of ground for the purpose of 
 pursuing his discovery; and the ceremony of bounding this area is an- 
 nounced by three consecutive proclamations. The demand made upon the 
 Bergmeister, or other local officer of the sovereign, cannot be refused unless 
 there be conflicting claims, in which case the first finder, and not the first 
 claimant, is entitled to preference. The interest of the concessionary is per- 
 manent, assignable, and transmissible; but is subject to the obligation of 
 continual working, of payment of the tenth or other proportion, and of a 
 small fixed quarterly rent. 9 
 
 Ordinarily, it is true, he exercised this right under the general terms 
 of a charter or other proclamation issued by the ruler in control of the 
 land in question, and the important point to bear in mind is that the 
 overlord, by granting this free right to go upon waste lands and stake 
 out claims, had yielded up the ordinary privilege of an owner of real 
 property to select and designate the particular person who might ac- 
 quire such rights; in other words, the right of personal selection of the 
 individual grantee was waived. The overlord no longer dictated and 
 determined who the particular individual should be who might mine 
 
TO William E. Colby 
 
 a specific parcel of his land. This right of free mining subsequently 
 spread into other parts of the world and eventually was exercised on 
 our own federal public domain in the mining regions of the West fol- 
 lowing the discovery of go 1 d. 10 
 
 As soon as the door was thrown open so that qualifie d miners could 
 freely locate individual claims on waste lands, it became essential to 
 determine their respective rights as among themselves in order to pre- 
 vent inevitable conflict. Virtually all systems of mining law in which 
 the individual or claim system of location prevails, early recognized as 
 a cardinal principle the superior right of the first locator or appropri- 
 ator in time. This is variously referred to as the "Doctrine of Priority" 
 or "Law of the First Finder." 11 Qui prior est in tempos, potior est in 
 jure, was the Roman wording of this equitable doctrin:. 
 
 The same principle of "prior appropriation" was quite naturally ap- 
 plied by the Germanic miners in their customs govern :ng the acquisi- 
 tion of water for use in the mines. Most mining operations require a 
 considerable use of water and the greater number of mines are not so 
 situated that the use of this water can be enjoyed through the ordinary 
 exercise of a riparian right. The water, in order to be beneficially en- 
 joyed, must of necessity be diverted from the stream and conducted to 
 the nonriparian mining land where it is needed. 
 
 The early German mining law, which in the majority of its main 
 principles resembles the original German general law, from the begin- 
 ning guaranteed to the mine operator free use of the flowing water. 12 
 
 The necessity of the use of water for mining purposes, and the 
 fact that mining first occurred in uncultivated and unc ivided districts 
 (MarJ(s) and in royal and feudal forests, explain two later facts: (i) 
 that the free use of water and pasturage was given to the mine oper- 
 ators as well as to the members of the Mark Association and (2) that 
 the right to the free use of water continued in special recognition of 
 the economic importance of mining when mining entered upon 
 ground which had already become private property and when the gen- 
 eral law enacted into statute no longer recognized a free use of flowing 
 water. The older mining rules (Bergfreiheiten) permit no doubt. Thus 
 we read in the Bergfreiheit for the silver mine at Fischbach of the year 
 1426 (Lori, p. 27) : 
 
The Freedom of the Miner and Water Law 71 
 
 All our forests and waters, wherever situate and suitable for mining pur- 
 poses, shall at all times be free and open. . . . 
 
 The Bergfreiheit for Fischbachau for the year 1446 (Lori, p. 32) 
 granted the miners "dwelling and pasturage," for their cattle, also 
 wood, water, roads, and pathways "if the same are of use and con- 
 venience." 
 
 In the Bergfreiheit for Kutzbuchel, Ratenberg, etc. 1459, Section 8, 
 it was provided : 
 
 We allow, grant and confirm the mines and minerals wherever the same 
 may be found and worked, in the herein mentioned dominions and assizes, 
 together with forests, mining claims [Hiittslegen], pathways, roads, water 
 and stone and all other things as are usually appurtenant to mines. 
 
 Compare Section 8 of the Bergfreiheit for Lam (Lori, p. 65). Berg- 
 freiheit of The Duchy of Braunschweig for Gittelde, Grund, and Zel- 
 lerfeld of 1532 (Calvor, p. 218) : 
 
 From the beginning to all our subjects throughout our domain and 
 duchy all our mining roads, ways, and footpaths shall be free and open, 
 together with water for smelters and stamp mills and all other works, ac- 
 cording to the mining law and custom from time immemorial. 
 
 Bergfreiheit of the Mar\ Brandenburg of the year 1539 (Wagner, 
 p. 421): 
 
 We give and grant to them herewith the right and privilege to enjoy, 
 have and use our forests and water. We concede and grant for ourselves, 
 our heirs and our sovereignty to each and all of them, our lands and estate 
 and the right to go upon the mines, mills, forests and waters, to ride or drive 
 upon now and forever more. 
 
 Bergfreiheit ojNassau-Katzenemb of the year 1559 (Brassert, p. 9) : 
 
 Those who come to dwell among us for mining purposes shall hold freely 
 and unhindered in common, water, pasturage, streets, footpaths and roads 
 (excepting fisheries and hunting grounds), according to the mining 
 custom. 
 
 Bergfreiheit ofKurtrier of the year 1564 (Brassert, p. 101) : 
 
 We grant to the miners in the designated district the right to use the 
 water, pasturage, to hunt rabbits, to shoot and fish, and therefore that all 
 roads, water, pasturage and foot paths shall be free, except that we reserve 
 to ourselves certain hunting grounds and fishing waters. 
 
72 William E. Colby 
 
 These examples show that, as a part of the Bergfreihe^ten (free min- 
 ing privileges), the free use of flowing water was maintained for 
 mining, or at least that in the common Marf^ (district) and in the 
 manors the right to the free use of water, which had existed from time 
 immemorial in favor of mining, was recognized and declared ap- 
 plicable. 
 
 Just as the right to mine minerals found in open lane, was acquired 
 by the individual miner by priority of location, so the custom similarly 
 arose of acquiring the use of water for mining purposes by prior ap- 
 propriation. Neither the lord of the manor nor the owner of the 
 ground had any right to dispute the acquiring of such right to the use 
 of water by the miner. This right of the miner to appropriate water 
 establishes the fact that the owner of land riparian to the flowing water 
 did not have an exclusive use of such water but had i.o yield to the 
 miner. 
 
 The one who received a grant of the right to use w ter had either 
 to dam up the water or divert it within a period of ore half-year. If 
 this was not done, or if the water conduits were allowed to deteriorate 
 for a half-year, then, after such fact had been established, other persons 
 might be granted the water. These provisions were not applicable to a 
 proprietor of a mine which produced its own water, for he did not 
 need to obtain a grant of a water right : they applied only to such users 
 of water as required a grant. 
 
 All those waters which were discovered by means of tunnels, shafts, 
 prospect works, or ditches, were to be granted by the Bergmeister to 
 those who had appropriated them or taken possession of them, but 
 always with the restriction, namely, that such grant of such water 
 should not interfere with the mine or the mine workings of the district, 
 and that the miners might at all times use the same for the dressing of 
 ores, if the necessity arose. 13 
 
 Wells and springs as a general rule were not objects of grant by the 
 Bergmeister. The right to the use of water in creeks and rivers for 
 mining purposes, on the contrary, was acquired by appropriation and 
 grant. If the use of the water had already been granted "o a third per- 
 son, and the latter had constructed special works for the use of the 
 same, nevertheless, mining took precedence. If no appropriation and 
 
The Freedom of the Miner and Water Law 73 
 
 grant of the water in streams and rivers had occurred, either according 
 to law or to custom, nevertheless, according to the Bergfreiheiten and 
 the common mining laws, mining had the preferential right to the use 
 of such water. Water in streams and rivers, in contrast to mine waters, 
 could only be acquired for mining purposes by appropriation and 
 grant of the Bergmeister. 1 * 
 
 The other mines and newly discovered claims, of whatever sort they may 
 be, whether old workings or newly discovered, which are situated within 
 the boundaries of our Niederoester lands and therein opened up, together 
 with rivers, coal lands, and forests, are to be granted by our mining author- 
 ities, representing us, and by no one else. 15 
 
 The flowing brooks and waters are not to be granted or given as ex- 
 clusive property to anyone, but such waters are always to be used for 
 those purposes which chiefly promote and maintain mining, such as 
 Heintzen (bucket pumps) and Kunsten (Hertwig, Bergbuch, p. 249, 
 defines these as machines for raising or pumping water out of mines), 
 regardless of stamp mills, lumber mills, hydraulic machines, etc. 18 
 
 If a water power is still open to appropriation and we have no right our- 
 selves to build a stamp mill upon it, and such water power does not inter- 
 fere with other stamp mills, then our Oberbergmeister may grant such 
 water power to the next one who makes application therefor, etc. 17 (This 
 coincides in the main with the Schlackenwalder Tinn ordinance.) 
 
 In conformity with the tradition of his office (Oberbergmeister) and 
 that which we permit him to do, the Oberbergmeister shall grant and 
 confirm to those who desire to develop them, mines, tunnels, water 
 powers, stamp mills, smelter works, forges (Hammer), saw mills, and 
 the like. 18 
 
 The provisions of the Prussian Allgemeines Landrecht, although 
 somewhat obscure, reflect the foregoing provisions and customs con- 
 cerning the use of water in brooks and rivers for mining purposes. The 
 material portions of the Landrecht entitle one to conclude that the 
 old law was intended to be retained, as is evidenced by the following 
 provisions (Part II, Tit. 16, Sec. 80) : 
 
 Washworks (dressing works) and stamp mills, as well as ditches and 
 water conduits on the surface, are not included in the location of a mine, 
 but must be separately appropriated and granted. (Waters of operating 
 
74 William E. Colby 
 
 mines [mine waters], for the use of which, according to the German min- 
 ing law, the mine proprietor does not require a grant, constitute an ex- 
 ception.) 
 
 Even Section no: "Ponds and mills must also give \vzy to mining, if 
 it is necessary for the further prosecution thereof," accords with the 
 former law, since the latter law prescribed the compensation to be paid 
 to the one who was formerly entitled to the water. Section 109, accord- 
 ing to which the owner of the soil is obliged to surrender to mine pro- 
 prietors, "the water necessary for the operation of mine engines, stamp 
 mills, dressing works and smelters," does not follow the old law since, 
 under the new law, according to Section 112, there mu<t be compensa- 
 tion for every surrender of a water right. 
 The Austrian Mining Law of May 23, 1854, Section 105, provides: 
 
 Surface waters which are necessary for carrying on mining must even 
 against the will of the owner be surrendered to the Reviei stollner even by 
 other mine owners, so far as water police regulations and other public con- 
 siderations do not stand in the way and the desired surrender of the water 
 results in greater national economic advantages . 
 
 In respect to mine waters, the same law in Section 128 materially fol- 
 lows the older law. Such waters are reserved to the mine owner for 
 mining and smelting purposes, but may, however, under certain pro- 
 visions be granted to third persons "for any purpose whatever." The 
 mine owner is not responsible for any changes in the quantity of the 
 mine water flowing out of the mine. 
 
 The mining law of the Kingdom of Saxony dated May 22, 1850, 
 similarly prescribes, in Section 216, that rights to the use of water may 
 be acquired for mining purposes by dispossession proceedings. A spe- 
 cial chapter (IX) contains very explicit provisions concerning the use 
 of mine water. If the mine owner does not use the waters discovered 
 in the course of his mining operations, the Bergamt must grant the 
 same to other mine proprietors for mining purposes. If the mine pro- 
 prietor in whose workings the waters were discovered does not make 
 use of his right of priority, the law then looks upon these mine waters 
 as being the common property of all mine proprietors. In the event of 
 a grant to one of the latter, the former cannot thereafter enforce his 
 right of priority. This is a variation from the older law. In the event 
 
The Freedom of the Miner and Water Law 75 
 
 of a conflict among various miners, the greatest politico-economic 
 value decides, where conditions are equal, but the priority o the ap- 
 plication must also be considered. For other than mining purposes 
 only a temporary use may be permitted, with the provision that the 
 waters must again be surrendered for mining purposes without com- 
 pensation (Sec. 252). 
 
 The foregoing mining laws cited clearly reflect the older German 
 law. The Prussian Allgemeines Berggesetz of June 24, 1865, nas en " 
 tirely broken away from this precedent for it recognizes no appropria- 
 tion and grant of flowing water, nor a compulsory surrender of the 
 use of the water for mining purposes. 
 
 FRANCE : The impress of these Germanic usages upon the mining law 
 of France is quite apparent. 
 
 Smirke 20 comments on the fact that Charles the Sixth and Louis the 
 Eleventh, in the fifteenth century promulgated a system for the gov- 
 ernment of the mines of France, "evidently founded on the practice in 
 Germany." He further states that these edicts emphasize "general lib- 
 erty of search for minerals in all uncultivated places" and "rights of 
 way and water." With some modifications in later reigns, these edicts 
 formed the groundwork of the general mining law of France. Still 
 later Napoleon's Mining Code of 1810 was adopted, which provided 
 that: 
 
 Streams of water which are found within reach or which can be brought 
 to these establishments without detriment to their use by the inhabitants 
 etc., may be granted to those having mining concessions. 21 
 
 ENGLAND: As already noted, the English mining law received its im- 
 press from the Germanic. At the same time it must be recognized that 
 the mining usages and customs in certain of the mining districts of 
 England are of great antiquity. 22 The great mass of English mining 
 law in the Middle Ages represents usage pure and simple. 23 
 
 The following authorities establish the fact that the law of prior 
 appropriation which prevailed in the mining districts in Germany also 
 prevailed in the mining districts of the British Isles. 
 
 In Derbyshire, the miners were "entitled to rights of way . . . from 
 the mine to the nearest running stream, spring, or natural pond; and 
 to use the water from such stream, spring or pond for mining pur- 
 
76 William E. Colby 
 
 poses." 24 They had the right to "running water to wash their ore 
 withal" "and also shall have the next water to their several uses" and 
 "all Miners within the King's Field ought to have the next Wood 
 and Waters of the King's Land." 25 
 In Cornwall, 
 
 Bounders (claim stakers) are entitled by custom to the free use of the water 
 over the whole of the district within their bounds; and to the right of di- 
 verting that water into other streams. Indeed "streaming for tin," which is 
 a process for obtaining grain tin by means of washing, is almost always a 
 necessary part of their operations; and for this purpose, "streamers for tin" 
 usually secure a conduit of water from the nearest stream. Bounders may, 
 moreover, carry an adit for the passage of water through other men's 
 bounds in waste lands without leave. 26 
 
 . . . the right of every tinner to divert water for the use of nis tin bound is 
 affirmed in the charters of Edw. i, "divertere aquas sicut consueve- 
 runt. . . ," 27 
 
 The right to the use of, and to divert and foul water and water 
 courses for the purposes of mining is affirmed in the charters of John 
 and Edward 28 
 
 In the tinner's charters this right is merely confirmed as having al- 
 ready existed time out of mind. It appears as the right of "diverting 
 streams." 29 "Et divertere aquas ad operationem eorum.' 3< 
 
 These customs were later enacted into statutes : 
 
 The course of streams may be altered for mining purposes under the 
 Inch Act, 22 and 23 Viet. c. 43. So the Duke of Cornwall, and persons act- 
 ing under his authority, may take, use, and divert water for mining pur- 
 poses under the Act, 7 and 8 Viet. c. 105. So streams may l>e diverted and 
 used for mining purposes under the Irish Act, 46 Geo. 3 c. 71, And streams 
 may be employed for mining purposes under the Irish Act, 23 and 24 Viet, 
 c. i5 4 . 31 
 
 BRITISH COLONIES : In more recent times, in other parts of the British 
 Empire, similar rights have been recognized. The mining laws of the 
 Malay Peninsula provided as follows : 
 
 58. (i) It shall be lawful for the Warden to issue to any person who is 
 working or is about to work any land for mining by virtue of any legal tide, 
 a license to divert, make use of and deliver such water as is therein men- 
 tioned, in such places, by such means, in such manner, in such quantities 
 and on such conditions as he may think fit. 32 
 
The Freedom of the Miner and Water Law 77 
 
 Natal had similar provisions : 
 
 70. Water rights shall be granted to the registered holder of a prospecting 
 or mining claim, or machine stand. 88 
 
 The mining laws of the Orange Free State of South Africa similarly 
 provided for "mining water rights" to be used by the holder of a "myn- 
 pacht" or mining claim. 34 
 
 The mining laws of the Transvaal Colony contained the following 
 provision : 
 
 115. It shall be lawful for every holder of a mynpacht or claim or parts 
 thereof to obtain on application to the Resident Magistrate a certificate of 
 special registration of his mynpacht or claim or parts thereof, together with 
 any mining water rights, rights of way, rights of leading water, etc. 35 
 
 In all the Australian States the holder of a "miner's right" has the 
 privilege of entering upon any Crown lands for the purpose of pros- 
 pecting and may secure in his own right certain claims and the use of 
 water therefor. 36 
 
 The mining laws of Queensland, Australia, provided that the holder 
 of a miner's right shall be entitled : 
 
 (3) To take or divert water from any natural spring, lake, pool, or stream 
 situate in or flowing through Crown lands, and to use such water for min- 
 ing purposes and for his own domestic purposes 37 
 
 Similarly, the laws of Tasmania provided that a mining lessee might 
 take and divert water 
 
 . . . from any spring, lake, pool or stream situate or flowing upon or 
 through, or bounded by, any Crown lands in such manner as shall be pre- 
 scribed by such water right and Regulations, in order to supply water for 
 mining and domestic purposes to such person. 88 
 
 Under the Gold Mining Ordinance of 1867 (Part X), the Water 
 Clauses Consolidation Act, and the Placer Mining Act of 1891 (Sec. 
 64) of British Columbia, the right to divert and use water for mining 
 was granted to the first appropriator. 39 
 
 SPAIN : King Charles the Third of Spain ordered a study to be made of 
 the mining laws of the world, and Gamboa's famous Comentarios a 
 las Ordenanzos de Minas, published in the year 1759, sets forth the 
 result of this research. Gamboa states that the mining laws of Germany 
 formed the basis of the new Spanish ordinances. 
 
78 William E. Colby 
 
 The "Royal Ordinances for the Miners of New Spain ' promulgated 
 by the King of Spain in 1783 provided that water might be "taken from 
 the river, brook or pool" for washing ores (XLVII) ar d that owners 
 of mines might establish their refining plants near and "freely make 
 use" of the waters of a river or brook (LII). 40 
 
 These ordinances of Spain became the mining law of the Spanish 
 possessions in South and Central America, and in Mexico. We find 
 that either these ordinances, with modifications, are still in force in the 
 South and Central American Republics or that new codes patterned 
 upon these have been adopted. 
 
 The Argentine Republic has the following: 
 
 Mines, by reason of the benefits which the public derives from their 
 proper operation, are privileged property. Under the same principle a 
 number of easements are created in favor of the mines. . . . These easements 
 are substantially governed by the same rules which are observed in all coun- 
 tries since the days of the Roman law. The owner of a mine has always, for 
 instance, the right of way through the lands of his neighbor, or the right to 
 use the water which he needs for his works. 41 
 
 In the Mining Laws of the Republic of Colombia, Chapter XIV, 
 entitled "Waters for Mines," these provisions are given : 
 
 Art. 205. The discoverer of the first mine found in any locality has a 
 preferential right, over all other subsequent discoverers, to take the water 
 necessary in the judgment of experts for an ordinary installation, and for 
 the persons thereof; and he can enforce this right at any time whatsoever, 
 even though he has not worked the mine and even though, to make such 
 right effective, it may be necessary to suspend work in an establishment in- 
 stalled on a mine discovered subsequently (to the first mine). 
 
 Art. 206. Oiher discoverers acquire a life right, subordinated to that of 
 prior, and preferential to that of subsequent discoverers, in strict order in 
 point of time. (Italicized by the author.) 42 
 
 In the Honduras Republic we find the following: 
 
 The mining industry shall have "the right to use the wcods and waters 
 extant in public or vacant lands." 43 
 
 In Mexico the law reads : 
 
 Art. 93. Should there occur the denouncement [location or appropria- 
 tion] of some current of water for power or for the washing of metals, said 
 denouncement shall be admitted and substantiated with the same proce- 
 dure employed in the denouncement of mines both in the case in which the 
 
The Freedom of the Miner and Water Law 79 
 
 same water may have been previously utilized for said purpose, if it be 
 denounced as abandoned or deserted and when it has no known owner. . . . 
 
 The ownership of a current of water or water fall shall be lost and may 
 be adjudged to the party denouncing, whenever it shall not have been 
 utilized during twenty-six consecutive or interrupted weeks inside of one 
 year previous to the denouncement. The water which may have been util- 
 ized in reduction works cannot be denounced unless the works themselves 
 are abandoned. 44 
 
 . . . Whatever may have been the general law throughout the Republic 
 of Mexico on the subject of water, it is reasonably certain that in the State of 
 Sonora [Mexico] the doctrine of appropriation, as now recognized, was to 
 some extent in force by custom. 45 
 
 In Nicaragua the law states : 
 
 Sec. 20. Authorization can be given to the owners either of a mine or of 
 a reducing or smelting establishment, to take advantage ... of the waters 
 of some river or water course running in the neighborhood of their prop- 
 erty. 46 
 
 Title XIII of the Mining Ordinances of Peru provides for acquisi- 
 tion of water rights for mines. 47 
 In Uruguay, 
 
 Art. 19 of the Code of Mining Laws authorizes "the use of the natural 
 water running" in the vicinity of the mine. 48 
 
 UNITED STATES : The mining regions of the western United States have 
 been no exception to the general rule that has been here developed. In 
 the very early days of mining in California, the miners adopted as a 
 part of their rules and customs the right of prior appropriation of water 
 for use in operating the mines. The conditions which surrounded these 
 pioneer adventurers were virtually the same as the conditions con- 
 fronting the miners of the Middle Ages. The mining regions were un- 
 occupied, uncultivated, waste lands constituting the "Public Domain." 
 There were no mining laws applicable. The miners were technically 
 trespassers. The federal government remained inactive, so that the 
 miners were compelled to make their own laws. Their rules, usages, 
 and customs bear a striking resemblance to those which arose centuries 
 earlier in Germany, England, and other parts of the world. The right 
 of the discoverer or first finder of the mineral was everywhere recog- 
 nized. The same necessities resulted in giving a superior right to the 
 
8o William E. Colby 
 
 first appropriator of water from a flowing stream. Qui prior est in tern- 
 pore, potior est in jure* 9 was made applicable to water rights as well as 
 to mining claims. Pomeroy has made in The Law of Riparian Rights 
 (1887) an excellent statement of 
 
 . . . the origin of the peculiar doctrines concerning water rights as settled 
 in the Pacific communities. Water was an indispensable requisite for carry- 
 ing on mining operations; a permanent right to use cer:ain amounts of 
 water was as essential as the permanent right to occupy a certain parcel of 
 mineral land. The streams and lakes were all on the public domain. For 
 their advantageous employment it was often necessary to divert water from 
 its natural bed, and to carry it through artificial channels, "ditches" or 
 "flumes," sometimes of great length and constructed at a i enormous cost. 
 There were no riparian owners or occupants except the miners, and the 
 streams could be put to no beneficial use except for purposes of mining. 
 From all these circumstances, and from the very necessities of the situation, 
 it universally became one of the mining customs or regulations that the 
 right to use a definite quantity of water, and to divert it if necessary from 
 these streams and lakes, could be acquired by prior appropriation (Sec. i5). 50 
 
 As with the customs and usages which had developed in Europe in 
 the Middle Ages, a failure to use the water for periods of time that 
 varied in different mining districts resulted in a forfeiture of the ap- 
 propriation right just as a failure to work the mining claim resulted 
 in its forfeiture. The right to mine the claim rather than ownership 
 of the fee simple was of outstanding importance in the early days, and 
 the right to use the water in connection with such mining was what 
 counted. The Supreme Court of California recognized these "cus- 
 toms of the diggings" at a very early date. The fact of priority con- 
 trolled "the right to divert the streams from their natu-al channels" as 
 well as "the privilege to work the mines." 51 
 
 The Supreme Court of the United States also gave its sanction to 
 this principle of priority, and we find set forth in Justice Fields' inimi- 
 table style a picture of the conditions which confronted the miner on 
 the public domain in the early days. 52 He directs attention to the fact 
 that this doctrine of prior appropriation was, after eighteen years, dur- 
 ing which the miners occupied the public domain under sufferance, 
 finally recognized by Act of Congress. This Act of 1866 provided that 
 
 Whenever, by priority of possession, rights to the use of water for min- 
 
The Freedom of the Miner and Water Law 81 
 
 ing . . . have vested and accrued, and the same are recognized and acknowl- 
 edged by the local customs, laws and decisions of the courts, the possessors 
 and owners of such vested rights shall be maintained and protected in the 
 same. 83 
 
 The doctrine of prior appropriation as applied to water rights was 
 codified in Sections 1410-1422 of the Civil Code of California. The doc- 
 trine spread all over the West wherever mining was carried on. It ob- 
 tained such a firm foothold in many of the states and was so well suited 
 to the semi-arid conditions of those states, as well as to the necessities 
 of the mining industry, that the riparian doctrine was repudiated, and 
 today the doctrine of prior appropriation created by the miners con- 
 trols exclusively the acquisition and tenure of water rights in those 
 states. The history of the origin and development of this prior appro- 
 priation doctrine has received such adequate and comprehensive treat- 
 ment by text writers that it would be out of place to present the subject 
 here. 5 * In other western states, notably California, Oregon, and Wash- 
 ington, a dual system has grown up, the law of these states recogniz- 
 ing both the riparian and appropriation doctrines. In California the 
 riparian doctrine has the ascendancy in spite of the fact that it was in 
 California that the miners originated the appropriation idea as ap- 
 plicable to water; in Oregon, by judicial interpretation, the riparian 
 doctrine has been relegated to a subordinate position. In California, 
 the conflict between these two doctrines and the supremacy given the 
 riparian doctrine in the famous case of Lux v. Hoggin 69 Cal. 255 fur- 
 nishes one of the most picturesque and stirring incidents in the annals 
 of California litigation. 55 
 
 The authorities cited herein were collected in a research which was 
 by no means exhaustive; there are doubtless many other authorities 
 for the free right of the prior appropriator to use water for min- 
 ing purposes, that might be added to this formidable list. These ex- 
 amples, however, at least serve to establish the main thesis of this 
 article, namely : that the doctrine of prior appropriation of water has 
 been almost universally in force in the important mining regions of 
 the world, and that it even antedates the extant records. 
 
NOTES TO COLBY ESSAY 
 
 1 Demosthenes in some of his orations describes in great detail th 2 laws governing 
 these operations. Man and Metals, by T. A. Rickard (1932), contains an excellent and 
 authoritative chapter on "The Athenians and Their Silver Mines." 
 
 2 Smirke, Stannaries of Cornwall (1843), p. 81 Appendix. See also Hoover's transla- 
 tion of Agricola's De Re Metallica, fn., pp. 83-84, and Man and Meials, Chap. XI, on 
 "The Law of the Mines and the Freedom of the Miner." 
 
 8 A splendid English translation was published by Herbert C. Hoover in 1912. In a 
 footnote to Agricola's Book IV dealing with the Germanic mining laws, pp. 82-86, Mr. 
 Hoover has given a comprehensive and valuable comment on comparative mining law. 
 
 4 Chas. H. Shinn, Mining Camps (1885). 
 
 5 Smirke, op. cit., 83 Appendix. Also see Arundel Rogers, The Lau's of Mines, Min- 
 erals, and Quarries (ed. 2), p. 53. 
 
 6 "The mining laws of the Middle Ages do not create, but rather recognize and estab- 
 lish, the customs of miners previously existing. . . ." Ibid., 52. 
 
 T See Rickard, op. cit. Chap. XI; Alford, Mining Law of the British Empire. 
 8 Smirke, op. cit. 84, 85, 88. 
 
 Ibid., 83 Appendix. It was not the land so much as the necessary- privilege of working 
 the mine that was granted. Mander's Derbyshire Mining Glossary (1^34), p. 57. 
 
 10 That the Germanic mining laws founded on custom were adopted by other coun- 
 tries, notably England, France, Spain, Russia, etc., see Smirke, op. cii. 85-95 an d not c 
 "g" p. 94; Alford, op. cit. 12; Walmesley, Guide to the Mining Laws of the World, p. 22. 
 The last-named concludes that the American mining law, which originated in the min- 
 ers' customs of California, "is probably Germanic in origin." p. 163 
 
 11 The rights of "der erste Finder" are mentioned in a decision nude in the mining 
 district of Joachimsthal, December, 1606, being the thirty-sixth decision in a digest of 
 six hundred Germanic mining decisions, published in 1636 A.D. (Sechs Hundert Bergt 
 Urthel, pp. 4, 10). 
 
 12 Probably the most comprehensive and authoritative exposition of :he Germanic law 
 of waters used for mining purposes is to be found in an article the title :o which as trans- 
 lated is "The Right of a Mine Owner to the Use of Flowing Water, etc.," by Dr. H. 
 Achenbach, in the Zeitschrift fur Bergrecht for the year 1870, p. 76. D". Achenbach was 
 for many years co-editor of this Journal of Mining Law and published several treatises on 
 mining law. He was also Privy Counselor of Mining at Berlin. Most c f the material on 
 Germanic law in this essay is derived from this source and from Hertsvig's Bergbuch 
 and the Seeks Hundert Bergt Urthel published in Germany in 1636. The writer takes 
 this opportunity of expressing his profound appreciation of the masterly work of the 
 late Walter J. Aschenbrenner in translating the old Germanic material which forms the 
 basis of this portion of this essay. He would also express his great debt t D his wife, Rachel 
 Vrooman Colby, for unfailing assistance in translations and similar makers. 
 
 13 Joachimsthaler Bergordnung, 1548, Part II, Art. 104. 
 
 14 Kursachsische Bergwerl(everfassung, pp. 97, 101, LXXIII. 
 
 15 Nieder-Oesterreichische Bergordnung, 1553, Art. 9 (Ur 'sprung der Bergwerkf, 
 p. 168). 
 
 16 Appendix to Joachimsthaler Bergordnung, 1548, to Art. 104 (Ebcnd., p. 102). 
 
 C82] 
 
The Freedom of the Miner and Water Law 83 
 
 17 Kurkolnische Bergordnung, 1669, Part IX, Art. 4 (Brassert, p. 642). 
 
 18 Op. cit., Part II, Art. 3 (Brassert, p. 536). Compare Bergrechtsspiegel, Part II, Chap. 
 IV, Sec. 4, p. 195; also Hertwig, Bergbuch, sub voce "Walter." 
 
 19 See monograph of Beyers, in Brassert, pp. 105, 286, 300. 
 
 20 Op. cit. 85. 
 
 21 Halleck, De Fooz on the Law of Mines, p. 232. 
 
 22 Rogers, op. cit. 457; Alford, op. cit. 10. 
 
 23 Lewis, The Stannaries, p. 82. 
 
 24 MacSwinney on Mines (ed. 3), p. 751. 
 
 25 Mineral Laws of Derbyshire (1734 ed.), p. 8. 
 
 26 MacSwinney, op. cit. 438; also 439. 
 
 27 Bainbridge on Mines and Minerals (ed. 5), p. 144. 
 
 28 Rogers, op. cit. 462. 
 
 29 Lewis, op. cit. 163. 
 
 30 Stannary Charters of 1201 A.D. (Lewis, p. 238). 
 
 31 MacSwinney, op. cit. 438439, 408409. 
 
 32 Alford, op. cit. 77. 
 S3 Ibid. 165-166. 
 **lbid. 176. 
 
 35 Ibid. 195. 
 
 36 Ibid. 210. 
 
 37 Ibid. 236. 
 
 38 Ibid. 259. 
 
 39 Martin's Mining Cases, I: 10, 64, 422, 460. 
 
 40 Rockwell's Spanish and Mexican Law, pp. 341, 343. 
 
 41 Mines and Mining Laws of Latin America (Bureau of the American Republics, 
 Bulletin No. 40, April, 1892), p. 10. 
 
 42 Chas. Bullman, Mining Laws of the Republic of Colombia (1892), p. 78. 
 
 43 Ibid. 167. 
 
 44 Mexican Mining Code of 1884. Mines and Mining Laws of Latin America (1892), 
 p. 198. 
 
 40 Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339, 343. 
 
 46 Mines and Mining Laws of Latin America (1892), p. 234. 
 
 47 Ibid. 260. 
 
 48 Ibid. 279. 
 
 49 In a rare pamphlet entitled "Jure Aquarum Metallicarum," published in Germany 
 in 1730, the author quotes this Latin maxim as does the Supreme Court of California 
 (5 Cal. 159, 161) in support of the doctrine of prior appropriation. 
 
 50 John Norton Pomeroy, The Law of Riparian Rights (1887). 
 
 81 Irwin v. Phillips, 5 Cal. 140, 147. Yale, Mining Claims and Water Rights, pp. 
 159, 161. 
 
 52 Atchison v. Peterson, 87 U. S. 507, 510-515. 
 
 53 Statutes at Large, 253. 
 
THE AJSJSSSWJPfl&lBXS OF MINING AND METALLURGICAL ENGINEERS . 
 [SUBJECT TO REVISION] 
 
 Governmental Control of the Production and 
 Sale of Mineral Resources 
 
 By WM. E. COLBY, San Francisco, Cal. 
 
 (San Francisco Meeting, October, 1929) 
 
 Increasing governmental control of human activities seems inevitable. 
 Within the present generation railroad rates and the public sale of water, 
 gas, and electricity have been subjected to rigid regulation. The field 
 of control is slowly but surely being enlarged, and it is the object of this 
 paper to outline in brief space this tendency toward increased, govern- 
 mental regulation, as far as mineral resources are concerned. 
 
 Our dual form of government complicates the problem. We must 
 deal not only with the powers of the Federal Government, but also with 
 those of the individual States. In order to approach this question intelli- 
 gently we must have some conception of the respective powers and juris- 
 diction of the States and the United States, respectively, over mineral 
 lands and mineral production. 
 
 Starting with the Federal Government we find it never owned any 
 public domain within the States that formed a part of the thirteen original 
 colonies and, for historical reasons, the same is true of Tennessee and 
 Texas. The Mid-Western States were erected out of the public domain 
 which was acquired by the United States through cession from the origi- 
 nal States or by purchase from foreign nations. Congress early in the 
 last century -adopted a policy of leasing public lands containing lead de- 
 posits in a portion of this Mid-Western territory, but later abandoned 
 that policy and disposed of such public lands, mineral and non-mineral, 
 outright so that they long since have practically all passed into private 
 ownership and become subject to the general jurisdiction of the respec- 
 tive State governments. In the great public domain lying west of the Mis- 
 sissippi river, and in portions of some of the Southern States, the Fed- 
 eral Government adopted a new mineral land policy following the dis- 
 covery of gold in California. (Acts of Congress of 1866, 1870, and 1872.) 
 The mineral lands within these States instead of being disposed of on the 
 same basis as agricultural lands, as occurred in the Mid-Western States, 
 were segregated from agricultural lands and sold under special laws in- 
 tended to encourage mining, giving the miner the free right to locate and 
 work these mineral lands without paying any royalty to the Federal Gov- 
 ernment. A miner could also obtain at slight expense a complete title, 
 or patent, covering his mineral deposits. This condition existed until the 
 early part of the present century. Then came the great conservation 
 movement, which had for its object the permanent retention and control 
 by the Federal Government of certain natural resources that still existed 
 
^ GOVERNMENTAL CONTROL OF MINERAL RESOURCES 
 
 on the public domain, and that were considered important enough, and 
 so intimately bound up with the future progress and welfare of the Na- 
 tion as to justify the Government in refusing any longer to grant to its 
 citizens complete title to the land containing such resources. The dynamic 
 force of Roosevelt added to that of other leading conservationists brought 
 about national reservation of forests, together with deposits of coal, oil, 
 and gas, phosphates, potash, sodium, etc. Lands valuable for development 
 of water power were also included. Over these lands so withdrawn and 
 permanently reserved from private sale, Congress exercises sovereign 
 control. In so far as these mineral deposits are found on the public do- 
 main they have been nationalized. Congress has, from time to time, passed 
 laws providing for the leasing of these deposits by private individuals, 
 usually on a royalty basis, and usually with specific limitations designed 
 to prevent monopolistic control. As a result of this conservation legisla- 
 tion we may safely assert that the nationalization of these particular min- 
 eral deposits, in so far as they still exist on the public domain, is com- 
 plete, and that the Federal Government has and is exercising full and 
 exclusive power to determine the manner in which these minerals shall 
 be extracted and marketed. 
 
 An outstanding example of this exclusive dominion and control over 
 the reserved lands is the comparatively recent action of the Secretary of 
 the Interior in carrying into effect the President's policy of canceling 
 all oil and gas prospecting permits where the development requirements 
 had not been fully met, and in refusing to issue new permits until the 
 present over-production has been checked. 
 
 In so far as the lands containing these designated minerals had 
 already passed into private ownership, the Federal Government has 
 parted with its power to control the extraction and disposition of 
 such minerals. The Federal Government has not seen ft to include 
 the ordinary metallic minerals and certain non-metallic minerals 
 within its conservation program, and while it has the power to con- 
 trol the output and even the manner of disposal of such of these 
 minerals as are still situated on the public domain, it has not exer- 
 cised such power, and there does not seem to be any strong prob- 
 ability that it will do so in the near future. 
 
 Congress retains, at all times, the right "to regulate commerce 
 with foreign nations and among the several States, etc.," so that 
 within the limitations of this power Congress can still exercise a 
 certain incidental control over interstate and foreign shipments of 
 mineral products. In view of the fact that Congress cannot levy any 
 tax or duty on articles exported from any State, this power to reg- 
 
WM. E. COLBY > 
 
 ulate commerce has little direct bearing- on the matter except as a 
 means of preventing the States from interfering with and prohibiting 
 either interstate or foreign shipments. 
 
 The Eastern States, which were a part of the original Colonies, 
 and Tennessee, which attained statehood with complete ownership 
 of all public lands within its borders, have long since disposed of 
 most of their public lands to private individuals. The same is true 
 of the federal public domain in those States that were carved out 
 of the Middle Western territory. Texas, entering the Union as an 
 independent sovereignty, controls all the public lands within its bor- 
 ders, and still retains quite extensive public land holdings, and is 
 therefore unique in that it has the complete power of determining 
 how the mineral resources contained in these public lands may be 
 acquired and disposed of. All of the States created out of the public 
 domain received from the Federal Government considerable grants 
 of public land, the proceeds from which were to be devoted to educa- 
 tional purposes. Although most of these grants reserved minerals, 
 the courts ruled that this reservation referred to minerals known to 
 exist at the time the grant became effective. Minerals subsequently 
 discovered in these lands belong to the States and their grantees. 
 Practically all the States have "squandered this patrimony" by sell- 
 ing such lands as fast as possible for ridiculously small sums. Two 
 or three States that had the foresight to recognize the potential value 
 of the grants and retain the fee ownership are now reaping the reward 
 of their sagacity, and are deriving a substantial revenue from this 
 source. The remaining States have little in the way of mineral lands 
 to administer. Over this insignificant remnant their control is as 
 complete as is that of the United States over its federally owned 
 public domain. Many of the States have now passed laws providing 
 for the leasing of these rather limited areas of State owned lands con- 
 taining minerals. 
 
 Any power that the States may possess to regulate the output and 
 disposition of minerals found within their borders must, therefore, 
 with this slight exception of State owned lands just noted, be 
 founded upon control other than State oAvnership. Such authority 
 arises out of what is commonly known as the "police power," a power 
 that has been reserved almost exclusively to the States. This power 
 only in exceptional cases has been delegated to the Federal Govern- 
 ment. The recent prohibition amendment affords one of the out- 
 standing exceptions. The police power reserved to the States is so 
 all-embracing in its operation, and its scope is expanding so steadily 
 
4 GOVERNMENTAL CONTROL OF MINERAL RESOURCES 
 
 with changing conditions, that some of the courts have refused to 
 define it in detail, preferring to let each case where it is invoked be 
 decided upon its own special circumstances. The Supreme Court of 
 the United States has said : 
 
 "* * * in a general way the police power extends to all the great public 
 needs. It may be put forth in aid of what is sanctioned by usage, or held 
 by the prevailing morality or strong and preponderant public opinion to 
 be greatly and immediately necessary to the public welfare." 
 
 While usually directed to matters affecting the public health, 
 convenience, morals, safety and welfare, "in its broadest sense as 
 sometimes defined, it includes all legislation and almost every func- 
 tion of civil government." (115 U. S. 516, 520.) It is founded upon 
 the "law of necessity." 
 
 The most extensive exercise of the police power of the States with 
 respect to mineral resources situated within their borders is legisla- 
 tion regulating the manner of working and operating mines in the in- 
 terest of employees (Plymouth Coal Co. v. Pennsylvania, 232 U. S. 
 531, 540). The regulations pertain to the safety and health of under- 
 ground miners and other mine and mill employees. These regulations 
 govern almost every detail of mining, especially underground opera- 
 tions, and include safety requirements affecting hoisting, blasting, 
 use of explosives and electricity, for the prevention of fire, providing 
 secondary exits, ventilation, etc. Any reasonable regulation designed 
 to promote the welfare of such industrial workers has been upheld. 
 Such laws are usually administered through State Industrial Acci- 
 dent Commissions. 
 
 Another form of State legislation affecting mines, and growing out 
 of the extremely broad interpretation of the States' police power, is 
 compulsory insurance, also designed to protect the industrial worker 
 and promote the general welfare of these citizens and the community 
 in which they reside. 
 
 The obligations required by State laws impose a serious burden 
 not only upon industry generally, but upon the mining industry in 
 particular, because of the greater risk to life and limb that usually 
 accompanies mining operations. When we also take into considera- 
 tion the taxing power of the State, which is an inherent attribute of 
 sovereignty, we cannot fail to recognize the fact that the State exer- 
 cises a power and control over the mining industry so drastic and 
 far-reaching that any unreasonable exercise of this power is certain 
 to prove disastrous to all those mining operations in which the mar- 
 gin of profit is uncertain, and to create a serious embarrassment even 
 for mines enjoying a more profitable status. State legislation of this 
 
WM. E. COLBY 
 
 character, namely, industrial accident regulation, compulsory insur- 
 ance, and mine taxation, reaches the entire mining industry within 
 the borders of the State. 
 
 Comparatively little State legislation, however, designed to directly 
 control the output and sale of minerals already reduced to possession, has 
 been upheld as valid by the Supreme Court of the United States. This 
 Court has, almost invariably, declared attempts by the States to regulate 
 such matters to be an invalid exercise of legislative authority because of 
 the restrictions of the Federal Constitution, particularly the clause pro- 
 hibiting the taking of private property without due process of law. States 
 have attempted ineffectually to regulate the selling price of coal and, more 
 recently, to fix the price of gasoline (Williams v. Standard Oil Co., U. S. 
 Supreme Court Opinions, 73 L. Ed. 141, January 2, 1929). In the latter 
 case the Court held that the "State legislature is without constitutional 
 power to fix prices at which commodities may be sold, services rendered, 
 or property used, unless the business or property involved is 'affected with 
 a public interest.' " Public interest was defined to mean something more 
 than large and widespread dealings in the commodity, but it must, in addi- 
 tion, be devoted to a public use. It is of interest to note that Justice 
 Holmes dissented in this case. We must not confuse such cases, how- 
 ever, with certain decisions upholding the power to fix prices of vital 
 commodities such as coal and gasoline during the stress of war. Illus- 
 trating the border line of the exercise of the police power, we have a 
 recent decision by the Supreme Court of the United States upholding a 
 municipal ordinance compelling oil companies to bury all tanks for the 
 storage of petroleum products within city limits. (Standard Oil Co. v. 
 Marysville, U. S. Supreme Court Opinions, 73 L. Ed. 445, May 20, 1929). 
 On the other hand, State statutes have been held unconstitutional that 
 tend to prevent or curtail the transportation of natural gas out of the 
 State (Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229, 255), or that 
 give preference to the use of natural gas found within the borders of the 
 State. (Pennsylvania v. West Virginia, 262 U. S. 553.) Both these deci- 
 sions were based upon the principle that the States have no power to 
 interfere with or prohibit interstate commerce. 
 
 There are, however, certain mineral products possessing peculiar char- 
 acteristics that have justified the courts in upholding certain State legis- 
 lation designed to control directly the mining of such products. The out- 
 standing examples are oil and natural gas, which have been held to con- 
 stitute a special class because of the vagrant, fluctuating, uncertain, mi- 
 gratory, fugitive, and transitory nature of these substances occurring, as 
 they usually do, in underground deposits, reservoirs or pools having a 
 more or less indefinite situs beneath the surface of land, the surface of 
 
GOVERNMENTAL CONTROL OF MINERAL RESOURCES 
 
 which may be divided into many different ownerships. A special law has 
 been evolved to control the relationships and rights that usually exist as 
 between the owners of the surface overlying such deposits. The common 
 law conception that the surface owner owned everything vertically be- 
 neath his surface even to the center of the earth, and thai he could do 
 as he saw fit with anything that he might find or develop within its boun- 
 daries has given way before these new and unusual conditions. It became 
 evident that one owner by drilling into the common pool and allowing the 
 gas or oil to run to waste, might inflict great damage and hardship on 
 other surface owners overlying the pool that might later desire to make 
 a conservative and beneficial use of these community minerals. The appli- 
 cation of the old common law rule also shocked the public conscience, 
 and was distinctly inimical to the public interest, as soon as the public 
 became dependent upon a normal and continuous supply of oil and gas 
 for light, heating, and power. Not only was there a community of private 
 interest to protect but the public interest intervened as well. These con- 
 ditions have led to the passage by many of the States of egislation de- 
 signed to safeguard and conserve their resources of oil ar.d gas against 
 unreasonable waste. It is quite evident that such legislation could only be 
 upheld as a valid exercise of the police power. Legislation of this char- 
 acter received the approval of the Supreme Court of the United States in 
 the comparatively early case of Ohio Oil Company v. Indiana, 177 U. S. 
 190 (April 9, 1900). A statute of Indiana made it unlawful to allow 
 either gas or oil to escape into the open air without being confined within 
 safe receptacles and enforced the plugging of all open or abandoned wells. 
 It w r as urged by the oil companies that this was the taking of private 
 property without adequate compensation. The Court held that all of the 
 surface proprietors have a co-equal right to take oil and gas from a com- 
 mon subteranean source of supply, and that the legislative power "can be 
 manifested for the purpose of protecting all of the collective owners, by 
 securing a just distribution, * * *". The statute was upheld as a valid 
 exercise of legislative power to prevent the waste of the common property 
 of the surface owners. The reasoning of the Court is based largely upon 
 the correlative and community rights of the overlying surface owners. 
 
 The much more recent case of Walls v. Midland Carbon Co., 254 
 U. S. 300 (decided December 13, 1920), held that a statute of Wyom- 
 ing prohibiting the wasteful burning of natural gas for the manufac- 
 ture of carbon where the gas wells are within ten miles of any 
 incorporated city, was a legitimate exercise of the police power. The 
 court said that absolute dominion of the surface did not give unlim- 
 ited dominion beneath of such minerals as oil and gas. The Court 
 held that it was "for the State to determine, not only if any conserva- 
 
WM. E. COLBY 7 
 
 tion be necessary, but the degree of it", and it was not required to 
 "stand idly by while these resources were disproportionately used, 
 or used in such a way that tended to their depletion, having- no power 
 of interference". (P. 324.) 
 
 Another case of similar import is Lindsley v. Natural Gas Co., 
 220 U. S. 61 (March 13, 1911). Here was involved a subterranean 
 supply of mineral water valuable for the natural carbonic acid gas 
 it contained. One of the overlying owners started pumping exten- 
 sively and extracting carbonic acid gas without making any use of 
 the water. A New York statute made such an excessive and wasteful 
 use of mineral water unlawful. The Court held that the State had 
 the power reasonably to conserve the interests of all who had the 
 right to tap the underlying common supply. The foregoing cases have 
 encouraged the passage of additional State legislation affecting such 
 mineral deposits, and have furnished the precedent for many similar 
 decisions since rendered by State and Federal courts. 
 
 The existence of oil and gas in extensive underground reservoirs 
 or pools with many diversified overlying surface ownerships has 
 brought about not only the reckless waste resulting from lack of 
 proper control of the wells when drilled a waste that, as we have 
 seen, may be prevented or minimized by appropriate State legislation 
 but it has also resulted in serious overproduction. The fact that 
 producing wells deplete the total content of the pool impels adjoining 
 owners, even against their normal desire, to drill offset wells in order 
 that they too may secure the advantage of their surface ownership 
 before the common pool becomes too far depleted. Such drilling 
 frequently resolves itself into a "race of diligence" as between pro- 
 ducers that seek to tap the common source first and secure the great- 
 est output. This uneconomic condition is still further aggravated 
 where the surface ownerships have become numerous through inten- 
 sive subdivision. In recent years, pools of oil and gas of immense 
 value have been found underlying surface ground that had already 
 been subdivided into comparatively small town lots belonging to 
 numerous private owners. Naturally, each lot owner would seek to 
 profit by this sudden vision of wealth, and wells were drilled without 
 regard to proper spacing on individual lots at large expense and at 
 great economic loss. State legislation regulating the drilling of wells 
 under such circumstances has been upheld as constitutional by lower 
 Federal Court. (Marrs v. City of Oxford, 24 Fed. (2nd), 541 S. C. on 
 appeal, 32 Fed. (2nd) 134; Oxford Oil Co. v. Atlantic Oil Co., 16 Fed. 
 (2d) 639, S. C. on appeal, 22 Fed. (2nd) 597. 
 
GOVERNMENTAL CONTROL OF MINERAL RESOURCES 
 
 The grave necessity of regulating and controlling such conditions 
 and of preventing overproduction or waste has resulted in the ap- 
 pointment of a Federal Oil Committee of Nine, consisting of three 
 representatives of the Federal Government, three representatives of 
 the American Petroleum Industry, and three members of the Section 
 on Mineral Law of the American Bar Association. After giving the 
 matter exhaustive consideration this committee has rendered a report 
 replete with suggestions that are vital to the welfare of the petroleum 
 and natural gas industries. It starts with the wisely expressed pre- 
 mise that "true conservation does not mean the withholding from 
 present use of the nation's natural resources. It does mean that those 
 resources should be drawn upon without waste, and in orderly 
 response to the economic needs of the country." It recogrizes petrol- 
 eum and natural gas as irreplaceable and indispensable natural re- 
 sources justifying, from the viewpoint of the public interest, the 
 employment of every legitimate and constructive measure that will 
 conserve the supply. It recognizes the intensely competitive drilling 
 of oil pools as the primary reason for overproduction. It points out 
 the fact that the resulting dissipation and inefficient use of the gas 
 energy originally existing in the pool means that the chief agency in 
 producing oil has also been lost. Because of this loss of gas pressure, 
 and decrease in mobility of the oil itself resulting from the absence 
 of gas, only a portion of the total oil content of the pool can be 
 recovered as compared with what might be recovered if gas and oil 
 were extracted in the proper ratio. The extensive storage af oil above 
 ground necessitated by this overproduction means increased and 
 otherwise avoidable capital expenditure in the providing of tanks and 
 reservoirs and also loss due to evaporation consequent upon storage 
 above ground. The natural and logical method of meeting the diffi- 
 culty is to develop and operate each pool as a unit. Since this is 
 ordinarily impracticable, the alternative plan of development under 
 a common agreement entered into by those interested in each 
 pool or field is advised. The report is accompanied by complete 
 drafts of proposed Federal and State legislation intended to remedy 
 the evil. The Federal legislation is designed to insure the coopera- 
 tion of the United States and to remove the anti-trust ban, which 
 now exists on voluntary agreements between oil operators. The 
 State legislation is intended to encourage community owners of oil 
 and gas fields to enter into agreements providing for economic and 
 concerted operation and regulation of output and to compel coopera- 
 tive action in the absence of voluntary agreement. 
 
WM. E. COLBY 
 
 In the opinion of the committee, voluntary action cannot be ex- 
 pected to meet the difficulty because of the natural disinclination to 
 sacrifice personal interests. It is suggested that "the State under the 
 police power may adjust and regulate these conflicting rights in a 
 community property". The solving of the problem is to be found in 
 "compulsory co-operative development and operation of oil pools". 
 The opinion is expressed that this exercise of the police power will 
 be upheld as valid because the fact of community interest of the 
 private owners of the surface overlying the common property justifies 
 reasonable regulation and the public also has an interest in the con- 
 servation of irreplaceable and indispensable natural resources. "If 
 the police regulation is reasonable, it will survive the impairment of 
 contract provision as well as that of due process", and suspension of 
 drilling obligations under existing leases even can be upheld. (Mote 
 On the point that the police power of the States is broad enough 
 when properly exercised to justify the courts in abrogating contracts 
 and destroying property rights to this extent without compensation, 
 see Sutter-Butte Canal Co. v. Railroad Commission of Cal., 49 U. S. 
 Supreme Court Reporter 325.) This committee has rendered a 
 monumental service to the industry and to the public by pointing the 
 way to the only possible settlement of the question (Note The three 
 members of this committee, who are also members of a sub-commit- 
 tee of the Section on Mineral Law of the American Bar Association, 
 recommend to that association that all "irreplaceable" minerals, as 
 well as oil and gas, be made the subject of similar legislation). 
 
 California has taken the lead in carrying out this policy and has 
 adopted legislation of the character recommended (Cal. Stats. 1929, 
 Chap. 535). This Act declares unlawful the unreasonable waste of 
 natural gas, and if it appear that gas is being produced from any well 
 in quantities exceeding a reasonable proportion with respect to the 
 amount of oil being produced from such well, the State Oil and Gas 
 Supervisor is empowered to take action to compel a reasonably pro- 
 portioned production, and, if necessary, to apply to the courts for an 
 injunction to compel observance of his order. The Act authorizes 
 this State official to approve agreements between interested parties 
 in any oil or gas field having for their purpose co-operative develop- 
 ment on a unit basis, and it also provides for the re-pressuring of a 
 field through the return of natural gas into the sub-surface. The 
 legislation was made effective by the Director of Natural Resources 
 on September 1, 1929. This was followed by an action brought in 
 the name of the State for an injunction to control the unreasonable 
 waste of natural gas in the Santa Fe Springs oil-field, where nearly 
 
10 
 
 GOVERNMENTAL CONTROL OF MINERAL RESOURCES 
 
 half a billion cubic feet of gas is reported to go to waste every day. 
 This action is to be followed by others affecting other fields. The 
 total amount of natural gas wasted in one year in California alone is 
 said to be over two hundred billion cubic feet, equivalent in heat 
 units to over 25,000,000 barrels of fuel oil or over 10,000,COO tons of 
 coal. Assuredly such an enormous wastage of an irreplaceable 
 resource so vital to the welfare of the community justifes control 
 and regulation by the State. Agreements contemplated by the Act 
 have been tentatively entered into between some of the larger operat- 
 ing companies. The success of such agreements will depend upon the 
 co-operation of independent companies and those possessing smaller 
 interests, who naturally are disinclined to make material sacrifices 
 which they assert will benefit the larger companies. The Dutcome is 
 of profound importance and is being awaited with intense interest by 
 the entire petroleum industry of the United States. The basic features 
 of the Act, namely, the power of the State to prevent ur reasonable 
 wastage of natural gas, is conceded to be a lawful exertion o: authority. 
 The repeated decisions of the Supreme Court of the United States on 
 this very question have placed this matter definitely at rest. 
 
 This California statute is a long step in the direction of bringing 
 about unit control or, at least, cooperative action in developing gas 
 and oil fields. It differs from previous legislation on the subject in 
 that it goes far beyond the direct prevention of waste of gas and oil 
 and the customary regulations providing for approved drilling of a 
 field such as proper spacing of wells and the shutting of:' of water, 
 etc. It looks to the future and imposes a duty on the owners of oil 
 and gas wells to produce only a reasonable proportion of gas to the 
 amount of oil issuing from the same well or wells, even -.hough the 
 excess production of gas is utilized and not wasted in the ordinary 
 sense. The State Oil and Gas Supervisor is given the authority to 
 determine, in the first instance, what is an unreasonable production 
 or waste. An appeal from his order lies to a Board of Commissioners ; 
 and if such orders are not complied with, the Director of the Depart- 
 ment of Natural Resources has the power to institute proceedings in 
 court to enjoin such production as is taking place in violation of his 
 orders. A serious question arising in connection with this particular 
 Act is whether this plenary authority delegated to the State Oil and 
 Gas Commissioners and Supervisor will be upheld. The fact that 
 the aggrieved party has his day in court would seem to relieve the 
 Act of the objection that there has been a delegation of judicial power 
 to administrative officers. While the feature of this legislation de- 
 signed to compel the interested parties to enter into cooperative 
 
WM. E. COLBY 11 
 
 agreements may be criticised as requiring affirmative action of an 
 intricate nature, the alternative of a complete shutdown to prevent 
 gas wastage would seem to furnish the answer. However, anyone 
 who ventures to prophesy what the courts will say, so often loses any 
 claim to be a prophet, that dogmatic prediction is dangerous. This 
 type of legislation seems to afford the only possible basis for the 
 solving of this vital problem, which has .been testing the ingenuity 
 of our best minds, and is in line with the highest type of conserva- 
 tion that looks to the future. 
 
 The late Judge Curtis H. Lindley, in commenting on our mining 
 law in general, has said in his masterly 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 exposi- 
 tion are almost insurmountable. It has received attention in a fragmen- 
 tary way at the hands of eminent writers, who are most logical and 
 instructive when discoursing upon its imperfections and apparent absurdi- 
 ties." Lindley on Mines (3rd Ed. sec. 81). 
 
 Reference has been made elsewhere to American mining law as 
 a "crazy patchwork." We started with the common law idea of 
 vertical boundaries in the Eastern and Mid-Western States. In 1807 
 Congress passed a Leasing Act for lead mines that was repealed in 
 1850. Other than this, we had no Federal mining law of any conse- 
 quence in force in these States. Then came the Mining Acts of 1866, 
 1870, and 1872, which confirmed and crystallized the customs and 
 usages that, in the absence of any other law, had been put in force 
 by the miners themselves in the mining districts of the West. With 
 these came the dip right, or, as we now term it, the extralateral right, 
 which is the only feature of that period of American mining law which 
 operates to segregate minerals from the overlying surface, if we ex- 
 cept severance accomplished through private agreement. Within the 
 present century Congress has passed a series of Acts providing for 
 the severance of the surface from underlying mineral deposits. The 
 disposal of minerals such as coal, oil, gas, asphaltic, phosphate, 
 nitrate, potash and sodium is provided for under leasing laws, where- 
 as, in certain instances, the surface may be patented as agricultural 
 land. Unquestionably this principle of severance of minerals from 
 the surface is the ideal system of law. It is characteristic of most of 
 the mining and land laws of other advanced nations, and permits of 
 the greatest utilization of land and mineral resources. It is unfortu- 
 nate that the United States should not earlier have recognized its 
 ultimate importance. In line with this policy of severance is Presi- 
 
12 GOVERNMENTAL CONTROL OF MINERAL RESOURCES 
 
 - 
 
 dent Hoover's recent proposal that "the surface rights of the remain- 
 ing unappropriated, unreserved public lands should, subject to certain 
 details for protection of homesteaders and the small stockmen, be 
 transferred to the State governments for public school purposes, and 
 thus be placed under State administration". This policy, if carried 
 out, would inaugurate, as far as this remnant of the Federal public 
 domain is concerned, the severance feature and the carving out of 
 the mineral deposits from the overlying surface. Unless surrounded, 
 however, with carefully drawn reservations, such a policy is likely 
 to work a great hardship on the miner, especially the prospector. It 
 is even dubious whether reservations designed to safeguard the miner 
 would protect him when it came to the practical operation of such 
 legislation. Experience has demonstrated that it is impossible, except 
 in a broad and general way, to classify public lands and segregate 
 mineral from non-mineral lands. Recent discoveries of immensely 
 valuable metallic and non-metallic mineral deposits underlying the 
 surface of desert areas, with little or no surface indications, is proof 
 of the fact that our present technical knowledge is insufficient to ade- 
 quately meet the situation. The future hope of the mining industry, 
 so far as the discovery of new mines is concerned, rests largely in 
 this remnant of the public domain. If control of the surface of these 
 lands is transferred to the respective States, will there not be a strong 
 tendency on their part, which would not be true of the Federal gov- 
 ernment under existing conditions, to resent any invasion of these 
 surface rights? Will not this dual control result in a rivalry greatly 
 to the disadvantage of the mining industry? To have surface and 
 subterranean rights administered by distinct sovereignties does not 
 seem wise. We have already had an example of this in a small 
 way as a result of the passage of the Stock Raising Homestead Act 
 (39 U. S. Statutes at Large, 862, December 29, 1916). 
 
 While this Act was designed by Congress to reserve to the legiti- 
 mate miner and prospector the right to any minerals found within 
 such homesteads, and to protect him completely, nevertheless, the 
 practical operation of the Act has been quite the reverse and it has 
 operated to discourage the miner from prospecting or attempting to 
 develop minerals found within such private surface holdings. Not only 
 has the miner in many instances had to defend and maintain already 
 vested rights by annoying and expensive litigation, but the very fact 
 that there is a hostile and unfriendly human element involved deters 
 most prospectors from making the attempt to explore and find min- 
 eral within such areas. The loss to the mineral industry arising from 
 conditions such as these, while unknown and not subject to definite 
 
WM. E. COLBY 13 
 
 calculation, is unquestionably serious. Before what remains of the 
 prospector's proper field of operations, even though it be only the 
 surface, is passed over to the control of the States, which would not 
 be benefited by or sympathetic with his efforts and which are infin- 
 itely more powerful politically and otherwise than were the stockmen, 
 the whole plan should be most carefully considered from the miner's 
 standpoint. President Hoover himself says that his "suggestions are, 
 of course, tentative, pending investigation of the full facts * * *" 
 There is, however, another phase of this problem of governmental 
 control of mineral resources as to which we are all in hearty agreement 
 with President Hoover. A number of years ago Judge Lindley delivered 
 an inspiring address before the Bar Association in San Francisco on 
 "Conservation of Resources." He pointed out the fact that as a result 
 of recent legislation affecting the mining, irrigation and hydro-electric 
 industries we were "at the parting of the ways * * * on the eve 
 of a new dispensation, a new order of things," with individualism as a 
 possible course on the one hand, and collectivism or advanced socialism 
 on the other. There is no gainsaying the fact that governmental control 
 is inevitable, and the necessity for governmental control of human 
 activities is increasing daily. This is just as true of the field 
 of mineral development as of other industries. However, there 
 is a happy medium between drastic governmental paternalism and com- 
 plete freedom of individual operation. President Hoover has pointed 
 out to us in his "American Individualism" that this primary force of 
 individual initiative which has brought our social system to the forefront 
 among the nations of the world is just as important to preserve and 
 maintain today as at any time in our national history. Under the able 
 leadership of this extraordinary man there is little likelihood of any 
 serious danger threatening, for the present, at least, this "most precious 
 possession of American civilization".