Main Lib. 
 
 LIBRARY 
 
 OF THE 
 
 UNIVERSITY OF CALIFORNIA. 
 
 01 FT OF 
 
 Accession 1.Q.3..5..7.1... Class 
 
f 
 
 M 
 
 
 '%* 
 
"(historical Sfcetcb 
 of fBMnino Haw 
 in.,,.. 
 California 
 
 f. 
 
 jfwm 
 
 of tbe 
 
 JSencb an5 3Bat 
 
 of California 
 
OF THE 
 
 UNIVERSITY 
 
 OF 
 
John F. Davis 
 
HISTORICAL SKETCH 
 
 OF THE 
 
 Mining Law in California 
 
 BY 
 
 JOHN F. DAVIS 
 
 
 
 
 Los Angeles, Gal, 
 
 COMMERCIAL PRINTING HOUSE 
 
 1902 
 

 [Reprinted, by permission of the publishers, 
 
 from "History of the Bench and Bar of California 11 
 
 published by the Commercial Printing House, 
 
 Los Angeles, Cal., 1901.] 
 
HISTORICAL SKETCH OF THE 
 MINING LAW IN CALIFORNIA 
 
 One of the most interesting chapters in Pliny, who wrote 
 his Natural History shortly after the time of Christ, is that 
 in which he describes the different methods of mining opera- 
 tions in vogue in his time. 
 
 "Gold is found in our part of the world," says this classi- 
 cal author, "not to mention the gold extracted from the earth 
 in India by the ants, and in Scythia by the griffins. Among 
 us it is procured in three different ways : the first of which is 
 in the shape of dust, found in running streams, the Tagus in 
 Spain, for instance, the Padus in Italy, the Hebrus in Thracia, 
 the Pactolus in Asia, and the Ganges in India. Indeed, there 
 is no gold found in a more perfect state than this, thoroughly 
 polished as it is by the continual attrition of the current. 
 
 "A second mode of obtaining gold is by sinking shafts 
 or seeking it among the debris of the mountains, both of 
 which methods it will be well to describe.. The persons in 
 search of gold in the first place remove the 'segutilum,' such 
 being the name of the earth which gives indication of the 
 presence of gold. This done, a bed is made, the sand of which 
 is washed, and according to the residue found after washing, 
 a conjecture is formed as to the richness of the vein. Some- 
 times, indeed, gold is found at once in the surface earth, a 
 success, however, but rarely experienced. Recently, for in- 
 stance in the reign of Nero, a vein was discovered in Dal- 
 
 103571 
 
6 History of the Bench and Bar of California. 
 
 matia, which yielded daily as much as fifty pound weight of 
 gold. The gold that is thus found in the surface crust is 
 known as 'talutium,' in cases where there is auriferous earth 
 beneath. The mountains of Spain, in other respects arid and 
 sterile, and productive of nothing whatever, are thus con- 
 strained by man to be fertile, in supplying him with this pre- 
 cious commodity. 
 
 "The gold that is extracted from shafts is known by some 
 persons as 'canalicium,' and by others 'canaliense.' It is 
 found adhering to the gritty crust of marble, and altogether 
 different from the form in which it sparkles in the sapphirus 
 of the East, and in the stone of Thebais and other gems, it 
 is seen interlaced with the molecules of the marble. The 
 channels of these veins are found running in various direc- 
 tions along the sides of the shafts, and hence the name of the 
 gold they yield, 'canalicium.' In these shafts, too, the super- 
 incumbent earth is kept from falling in by means of wooden 
 pillars. The substance that is extracted is first broken up and 
 then washed, after which it is subjected to the action of fire 
 and ground to a fine powder. This powder is known as 
 'apitascudes,' while the silver which becomes disengaged in 
 the furnace has the name of 'sudor' given to it. The im- 
 purities that escape by the chimney, as in the case of all 
 other metals, are known by the name of 'scoria.' In the 
 case of gold, this scoria is broken up a second time and melted 
 over again. The crucibles used for this purpose are made 
 of 'tasconium,' a white earth similar to potter's clay in ap- 
 pearance, there being no other substance capable of with- 
 standing the strong current of air, the action of the fire, and 
 the intense heat of the melted metal. 
 
 "The third method of obtaining gold surpasses the labors 
 of the giants even. By the aid of galleries driven to a long 
 distance, mountains are excavated by the light of torches, 
 the duration of which forms the set times for work, the 
 workmen never seeing the light of day for many months to- 
 gether. These mines are known as 'arrugiae,' and not un- 
 frequently the clefts are formed on a sudden, the earth sinks 
 in, and the workmen are crushed beneath; so that it would 
 
Historical Sketch of the Mining Law in California. 7 
 
 really appear less rash to go in search of pearls and purples 
 at the bottom of the sea, so much more dangerous to our- 
 selves have we made the earth than the water. Hence it 
 is that in this kind of mining, arches are left at frequent in- 
 tervals for the purpose of supporting the weight of the moun- 
 tain above. In mining either by shaft or by gallery, barriers 
 of silex are met with, which have to be driven asunder by the 
 aid of fire and vinegar, or more frequently, as this method 
 fills the galleries with suffocating vapors and smoke, to be 
 broken to pieces with bruising machines shod with pieces 
 of iron weighing one hundred and fifty pounds; which done, 
 the fragments are carried out on the men's shoulders, night 
 and day, each man passing them on to his neighbor in the 
 dark, it being only those at the pit's mouth that ever see light. 
 In cases where the bed of silex appears too thick to admit 
 of being penetrated, the miner traces along the sides of it, 
 and so turns. And yet, after all, the labor entailed by this 
 silex is looked upon as comparatively easy, there being an 
 earth a kind of potter's clay mixed with gravel 'gangadia' 
 by name, which is almost impossible to overcome. This 
 earth has to be attacked with iron wedges and hammers, like 
 those previously mentioned, and it is generally considered 
 that there is nothing more stubborn in existence except, 
 indeed, the greed for gold, which is the most stubborn of all 
 things. 
 
 "When these operations are completed, beginning at the 
 last, they cut away the wooden pillars at the point where 
 they support the roof. The coming downfall gives warning, 
 which is instantly perceived by the sentinel, and by him only, 
 who is set to watch upon a peak of the same mountain. By 
 voice as well as by signals, he orders the workmen to be im- 
 mediately removed from their labors, and at the same mo- 
 ment takes flight himself. The mountain, rent to pieces, 
 is cleft asunder, hurling its debris to a distance with a crash 
 which it is impossible for the 'human imagination to con- 
 ceive; and from the midst of a cloud of dust, of a density 
 quite incredible, the victorious miners gaze upon this down- 
 fall of nature. Nor yet even then are they sure of gold, nor, 
 
8 History of the Bench and Bar of California. 
 
 indeed, were they by any means certain that there was any 
 to be found when they first began to excavate, it being quite 
 sufficient, as an inducement to undergo such perils and to 
 incur such vast expense, to entertain the hope that they will 
 obtain what they so eagerly desire. 
 
 "Another labor, too, quite equal to this, and one which 
 entails even greater expense, is that of bringing rivers from 
 the more elevated mountain heights, a distance, in many 
 instances, of one hundred miles, perhaps, for the purpose of 
 washing the debris. The channels thus formed are called 
 'corrugi' from our word 'corrivatio,' I suppose; and even 
 when these are once made they entail a thousand fresh 
 labors. The fall, for instance, must be steep, that the water 
 may be precipitated, so to say, rather than flow; and it is in 
 this manner that it is brought from the most elevated points. 
 Then, too, the valleys and crevasses have to be united by the 
 aid of aqueducts, and in another place impassable rocks have 
 to be hewn away and forced to make room for hollowed 
 troughs of wood, the persons hewing them hanging sus- 
 pended all the time with ropes, so that to a spectator who 
 views the operations from a distance, the workmen have all 
 the appearance, not so much of wild beasts as of birds upon 
 the wing. Hanging thus suspended in most instances, they 
 take the levels, and trace with lines the course the water is 
 to take; and thus, where there is no room, even for man to 
 plant a footstep, are rivers traced out by the hand of man. 
 
 "The water, too, is considered in an unfit state for wash- 
 ing if the current of the river carries any mud along with it. 
 The kind of earth that yields this mud is known as 'wrium/ 
 and hence it is that in tracing out these channels, they carry 
 the water over beds of silex or pebbles, and carefully avoid 
 this wrium. When they have reached the head of the fall, 
 at the very brow of the mountain, reservoirs are hollowed out 
 a couple of hundred feet in length and breadth and some ten 
 feet in depth. In the reservoirs there are generally five 
 sluices left, about three feet square; so that the moment the 
 reservoir is filled, the flood gates are struck away and the 
 torrent bursts forth with such a degree of violence as to roll 
 
Historical Sketch of -the Mining Law in California. 9 
 
 onward any fragments of rock which may obstruct its pas- 
 sage. 
 
 "When they have reached the level ground, too, there is 
 still another labor that awaits them. Trenches known as 
 'agogroe' have to be dug for the passage of water; and these, 
 at regular intervals, have a layer of ulex placed at the bot- 
 tom. 
 
 "This ulex is a plant like rosemary in appearance, rough 
 and prickly, and well adapted for arresting any pieces of 
 gold that may be carried along. The sides, too, are closed in 
 with planks, and are supported by arches when carried over 
 steep and precipitous spots. The earth carried onward in the 
 stream, arrives at the sea at last, and thus is the shattered 
 mountain washed away causes which have greatly tended 
 to extend the shores of Spain by these encroachments upon 
 the deep. It is also by the agency of canals of this descrip- 
 tion that the material, excavated at the cost of such immense 
 labor by the process previously described, is washed and 
 carried away, for otherwise the shafts would soon be choked 
 up by it. 
 
 "The gold found by excavating with galleries does not 
 require to be melted, but is pure gold at once. In these 
 excavations, too, it is found in lumps, as also in the shafts 
 which are sunk, sometimes exceeding ten pounds even. The 
 names given these lumps are 'palagae,' and palacurnae/ while 
 the gold found in small grains is known as 'baluce.' The 
 ulex that is used for the above purpose is dried and burnt, 
 after which the ashes of it are washed upon a bed of grassy 
 turf, in order that the gold may be deposited thereupon." 
 
 The glimpse given us by this chapter makes all the keener 
 our regret that the works of Theophrastus and Philo on 
 metals and that of Strabo on machines and methods of part- 
 ing metals, are unfortunately lost forever. Had the library 
 at Alexandria not been burned, who shall say that we might 
 not have found for our legal doctrine of the "extralateral 
 right" in quartz mining some more ancient prototype than the 
 earlier mining codes of Prussia or the customs of the lead 
 mines of Derbyshire? 
 
io History of the Bench and Bar of California. 
 
 DISCOVERY OF GOLD IN CALIFORNIA. 
 
 On the 4th day of May, 1846, Thomas O. Larkin, United 
 States consul at Monterey in an official letter to James Buch- 
 anan, then secretary of state, wrote as follows : "There is no 
 doubt but that gold, silver, quicksilver, copper, lead, sulphur, 
 and coal mines are to be found all over California, and it is 
 equally doubtful whether, under their present owners, they 
 will be worked." On the /th of July, 1846, sixty-four days 
 later, Commodore Sloat raised the American flag at Mon- 
 terey. 
 
 James W. Marshall made the discovery of gold in the race 
 of the sawmill at Coloma in the latter part of January, 1848. 
 Thereupon took place an incident of history which demon- 
 strated that Jason and his companions were not the only 
 Argonauts who ever made a voyage to unknown shores in 
 search of the golden fleece. The first news of the discovery 
 almost depopulated the towns and ranches of California and 
 even affected the discipline of the small army of occupation. 
 The first winter brought thousands of Oregonians, Mexi- 
 cans, Kanakas and Chilenos. The extraordinary reports 
 that reached the East were at first disbelieved, but when the 
 private letters of army officers and men in authority were 
 published an indescribable gold fever took possession of the 
 nation east of the Alleghanies. All the energetic and daring, 
 all the physically sound of all ages, seemed bent on reaching 
 the new El Dorado. The old Gothic instinct of invasion seemed 
 to survive and thrill in the fibre of our people, and the 
 camps and gulches and mines of California witnessed a social 
 and political phenomenon unique in the history of the world, 
 the spirit and romance of which have been immortalized in 
 the pages of Bret Harte. Before 1850 the population of 
 California had risen from 15,000, as it was in 1847, to 100,- 
 ooo, and the average annual increase for six years thereafter 
 was 50,000. 
 
 A COMMUNITY WITHOUT CIVIL LAW. 
 
 At the time of Marshall's discovery, the United States was 
 still at war with Mexico, its sovereignty over the soil of Cali- 
 
Historical Sketch of the Mining Law in California. 1 1 
 
 fornia not yet recognized by the latter. The treaty of Guada- 
 lupe Hidalgo was not concluded till February 2nd, the rati- 
 fied copies thereof not exchanged at Queretaro till May 3Oth, 
 and the treaty not proclaimed till July 4th, 1848. 
 
 On the 1 2th of February, 1848, ten days after the signing 
 of the treaty of peace, and about three weeks after the dis- 
 covery of gold at Coloma, Colonel Mason did the pioneers 
 a signal service by issuing as Governor the proclamation 
 concerning the mines, which at the time was taken as finality 
 and certainty as to the status of mining titles in their inter- 
 national aspect: "From and after this date, the Mexican 
 laws and customs now prevailing in California, relative to 
 the denouncement of mines, are hereby abolished." Al- 
 though, as the law was fourteen years afterwards expounded 
 by the United States Supreme Court (U. S. vs. Castellero, 
 2 Black, 18-371), the act was unnecessary as a precautionary 
 measure, still the practical result of the timeliness of the pro- 
 clamation was to prevent attempts to found private titles 
 to the new discoveries of gold on any customs or laws of 
 Mexico. 
 
 Meantime, and, in fact, until her admission into the Union 
 as a State, California was governed by military authorities 
 (Cross vs. Harrison, 16 How. U. S. 191). Except to provide 
 for the delivering and taking of mails at certain points on the 
 Coast, no federal act was passed with reference to California 
 in any relation; in no act of Congress was California even 
 mentioned after its annexation, until the Act of March 3rd, 
 1849, extending the revenue laws of the United States "over 
 the territory and waters of upper California, and to create 
 certain collection districts therein." Though in this act inci- 
 dentally the new acquisition is called a "territory," no act of 
 Congress was ever passed erecting a territorial form of gov- 
 ernment in California. The Act of March 3rd, 1849, not only 
 did not extend the general laws of the United States over 
 California, but did not even create a local tribunal for its en- 
 forcement, but provided that the District Court of Louisiana 
 and the Supreme Court of Oregon should be courts of 
 original jurisdiction to take cognizance of all violations of its 
 
12 History of the Bench and Bar of California. 
 
 provisions. Not even the Act of the 9th of September, 1850, 
 admitting California into the Union, extended the general 
 laws of the United States over the State by express pro- 
 vision. Not until the Act of September 28th, 1850, establish- 
 ing a District Court in the State, was it enacted by Congress 
 "that all the laws of the United States which are not locally 
 inapplicable shall have the same force and effect within the 
 said State of California as elsewhere within the United 
 States." 
 
 FREE MINING. 
 
 Though no general federal laws were extended by Con- 
 gress over the late acqusitions from Mexico* for more 
 than two years after the end of the war, the paramount title 
 to the public lands had vested in the federal government 
 by virtue of the provisions of the treaty of peace, and the 
 public land itself had become part of the public domain of 
 the United States. (The Supreme Court of California did 
 afterward, when first organized, in Hicks vs. Bell, 3 Cal., 219, 
 attempt by certain obiter dicta to put forth the doctrine of the 
 paramount title being in the State of California, but this 
 attempt at judicial legislation was soon after abandoned and 
 reversed.) The army of occupation, however, offered no 
 opposition to the invading army of prospectors. The miners 
 were in 1849 twenty years ahead of the railroad and the elec- 
 tric telegraph, and the telephone had not yet been invented. 
 In the parlance of the times, the prospectors "had the drop on 
 the army." In Colonel Mason's unique report on the situa- 
 tion which confronted him, discretion waits upon valor. "The 
 entire gold district," he wrote, "with few exceptions of grants 
 made some years ago by the Mexican authorities, is on land 
 belonging to the United States. It was a matter of serious 
 reflection with me how I could secure to the government 
 certain rents or fees for the privilege of procuring this gold; 
 but upon considering the large extent of the country, the 
 character of the people engaged, and the small scattered 
 force at my command, I am resolved not to interfere, but per- 
 mit all to work freely." It is not recorded whether the 
 resolute Colonel was conscious of the humor of his resolution. 
 
Historical Sketch of the Mining Law in California. 1 3 
 
 "Persons who have not given this subject special atten- 
 tion," said Senator Stewart of Nevada, addressing the United 
 States Senate in support of the Bill of 1866, "can hardly 
 realize the wonderful results of this system of free mining. 
 The incentive to the pioneer held out by the reward of a gold 
 or silver mine, if he can find one, is magical upon the san- 
 guine temperament of the prospector. For near a quarter 
 of a century a race of men, constituting a majority by far of 
 all the miners of the West, patient of toil, hopeful of success, 
 deprived of the associations of home and family, have de- 
 voted themselves, with untiring energy, to sinking deep 
 shafts, running tunnels thousands of feet in solid granite, 
 traversing deserts, climbing mountains, and enduring every 
 conceivable hardship and privation, exploring for mines, all 
 founded upon the idea that no change would be made in this 
 system that would deprive them of their hard-earned treas- 
 ure. Some of these have found valuable mines, and a sure 
 prospect of wealth and comfort when the appliances of 
 capital and machinery shall be brought to their aid. Others 
 have received no compensation but anticipation no reward 
 but hope. . ,>-:.; I assert, and no* one familiar with the 
 subject will question the fact, that the sand plains, alkaline 
 deserts, and dreary monuments of rock and sagebrush of the 
 great interior, would have been as worthless today as when 
 they were marked by geographers as the Great American 
 Desert, but for this system of free mining fostered by our own 
 neglect, and matured and perfected by our generous in- 
 action." 
 
 CALIFORNIA COMMON LAW OF MINES. 
 
 The prospectors and miners, were, then, at the start, 
 simply trespassers upon the public lands as against the gov- 
 ernment of the United States, with no laws to guide, restrain 
 or protect them, and with nothing to fear from, the military 
 authorities. They were equal to the occasion. "Finding 
 themselves far from the legal traditions and restraints of the 
 settled East," says the report of the Public Lands Commis- 
 sion of 1880, "in a pathless wilderness, under the feverish 
 
14 History of the Bench and Bar of California. 
 
 excitement of an industry as swift and full of chance as the 
 throwing of dice, the adventurers of 1849 spontaneously in- 
 stituted neighborhood or district codes of regulations, which 
 were simply meant to define and protect a brief possessory 
 ownership. The ravines and river bars which held the placer 
 gold were valueless for settlement or home-making, but were 
 splendid stakes to hold for a few short seasons and gamble 
 with nature for wealth or ruin. 
 
 "In the absence of State and Federal laws competent to 
 meet the novel industry, and with the inbred respect for 
 equitable adjustments of rights between man and man, which 
 is the inheritance of centuries of English common law, the 
 miners only sought to secure equitable rights and protection 
 from robbery by a simple agreement as to the maximum 
 size of a surface claim, trusting, with a well-founded confi- 
 dence, that no machinery was necessary to enforce their 
 regulations other than the swift, rough blows of public opin- 
 ion. The gold seekers were not long in realizing that the 
 source of the dust which had worked its way into the sands 
 and bars, and distributed its precious particles over the bed 
 rocks of rivers, was derived from solid quartz veins, which 
 were thin sheets of mineral material enclosed in the founda- 
 tion rocks of the country. Still in advance of any enactments 
 by legislature or congress, the common sense of the miners, 
 which had proved strong enough to govern with wisdom 
 the ownership of placer mines, rose to meet the question of 
 lode claims, and decreed that ownership should attach to the 
 thing of value, namely, the thin, sheet-like veins of quartz, 
 and that a claim should consist of a certain horizontal block 
 of the vein, however it might run, but extending indefinitely 
 downward with a strip of surface, on or embracing the vein's 
 outcrop, for the placing of necessary machinery and build- 
 ings. Under this theory, the lode was the property, and the 
 surface became a mere easement. 
 
 "This early California theory of a mining claim, consisting 
 of a certain number of running feet of vein with a strip of land 
 covering the surface length of the claim, is the obvious foun- 
 dation for the federal legislation and present system of public 
 
Historical Sketch of the Mining Law in California. 1 5 
 
 disposition and private ownership of the mineral lands west 
 of the Missouri River. Contrasted with this is the mode of 
 disposition of mineral-bearing- lands east of the Missouri 
 River, where the common law has been the one rule, and 
 where the surface tract has always carried with it all minerals 
 vertically below it. 
 
 "The great coal, iron, copper, lead, and zinc wealth east 
 of the Rocky Mountains, have all passed with the surface 
 titles, and there can be little doubt that if California had been 
 contiguous to the eastern metallic regions, and its mineral 
 development progressed naturally with the advance of home 
 making- settlements, the power of common law precedent 
 would have governed its whole mining history. But Cali- 
 fornia was one of those extraordinary historic exceptions 
 that defy precedent and create original modes of life and 
 law. And since the developers of the great precious metal 
 mining of the far West have for the most part swarmed out 
 of the California hive, California ideas have not only been 
 everywhere dominant over the field of industry, but have 
 stemmed the tide of federal land policy and given us a statute 
 book with English common law in force over half the land 
 and California common law ruling in the other." 
 
 "The discovery of gold in California/' says Justice Field, 
 speaking from, the Supreme Bench of the United States, "was 
 followed, as is well known, by an immense immigration into 
 the State, which increased its population within three or four 
 years from a few thousand to several hundred thousand. The 
 lands in which the precious metals were found belonged 
 to the United States, and were unsurveyed and not open 
 by law to occupation and settlement. Little was known of 
 them further than that they were situated in the Sierra Ne- 
 vada mountains. Into these mountains the emigrants in vast 
 numbers penetrated, occupying the ravines, gulches and can- 
 yons and probing the earth in all directions for the precious 
 metals. Wherever they went they carried with them the love 
 of order and system of fair dealing which are the prominent 
 characteristics of our people. In every district which they oc- 
 cupied they framed certain rules for their government, by 
 
1 6 History of the Bench and Bar of California. 
 
 which the extent of ground they could severally hold for 
 mining was designated, their possessory right to such ground 
 secured and enforced, and contests between them either 
 avoided or determined. These rules boie a marked simi- 
 larity, varying in 'the several districts only according to the 
 extent and character of the mines; distinct provision being 
 made for different kinds of mining, such as placer mining, 
 quartz mining, and mining in drifts or tunnels. They all 
 recognized discovery, followed by appropriation, as the 
 foundation of the possessor's title, and development by work- 
 ing as the condition of its retention. And they were so 
 framed as to secure to all comers within practicable limits 
 absolute equality of right and privilege in working the mines. 
 Nothing but such equality would have been tolerated by the 
 miners, who were emphatically the law-makers, as respects 
 mining upon the public lands in the State. The first appro- 
 priator was everywhere held to have, within certain well-de- 
 fined limits, a better right than others to the claims taken up; 
 and in all controversies, except as against the government, 
 he was regarded as the original ownej;, from whom title was 
 to be traced. * * * These regulations and customs 
 were appealed to in controversies in the State Courts, and 
 received their sanction; and properties to the value of many 
 millions rested upon them. For eighteen years, from 1848 
 to 1866, the regulations and customs of miners, as enforced 
 and moulded by the Courts and sanctioned by the legislation 
 of the State, constituted the law governing property in mines 
 and in water on the public mineral lands." 
 Jennison vs. Kirk, 98 U. S. 453. 
 
 ORIGIN OF RULKS AND REGULATIONS. 
 
 There is considerable difference of opinion whether these 
 rules and regulations were the spontaneous creation of the 
 miners of " '49 and the spring of '50." Mr. Gregory Yale, 
 in his valuable treatise on "Mining Claims and Water 
 Rights," contends that they are not, and claims that Senator 
 Stewart of Nevada, in his brilliant letter to Senator Ramsey, 
 of Minnesota, ascribes undeserved merit to the early miners 
 
Historical Sketch of the Mining Law in California. 17 
 
 in pronouncing them the authors of the local rules and cus- 
 toms. He does not, however, criticise the even more positive 
 language of Chief Justice Sanderson in the decision of the 
 case of Morton vs. Solambo Copper Mining Company, He 
 calls attention to the similarity between these rules and reg- 
 ulations and certain features of the Mexican ordinances, of 
 the Spanish Code, of the regulations of the Stannary Convo- 
 cations among the tin bounders of Devon and Cornwall, and 
 of the High Peak Regulations for the lead mines of Derby. 
 He says in the earlier days of placer digging in California 
 the large influx of miners from the western coast of Mexico 
 and from South America dictated the system of work to 
 Americans; that the latter, with few exceptions from the gold 
 mines of North Carolina and Georgia, and from the lead 
 mines of Illinois and Wisconsin, were almost entirely inexpe- 
 rienced in this branch of industry; that the Cornish miners 
 soon spread themselves through the State, and added largely 
 by their experience, practical sense, and industrious habits, 
 in bringing the code into something like shape. With all 
 deference due to any^ opinion expressed by Mr. Yale, it 
 appears to me that he has in this chapter failed sometimes to 
 distinguish between the practical work in mining taught the 
 pioneers by their Mexican, Chilenian and Cornish associates 
 and their comrades from the southern gold, and western lead 
 states, and the framing of -rules and regulations. The hints 
 and suggestions on the pan and rocker and long torn and 
 sluice do not necessarily include instructions on a code of 
 mining in a situation absolutely as novel to the persons from 
 whom they learned how to mine as it was to the pioneers 
 themselves. The mining land in North Carolina, Georgia, 
 Illinois and Wisconsin is all held under principles founded on 
 the common law of England. Nor is it necessary to hold 
 with Mr. Yale and General Halleck that the Mexican system 
 was the foundation for the rules and customs adopted, for in 
 the matter of lode claims that system is the direct antithesis 
 of the California system, the former recognizing vertical 
 planes through the exterior boundaries and the latter recog- 
 nizing the extra-lateral right. The mere fact that the Mexi- 
 
1 8 History of the Bench and Bar of California. 
 
 can system recognized discovery as the source of title and 
 development as the condition of holding it, need not cause us 
 to jump to the conclusion that in these respects the rules and 
 customs of Californians were a conscious imitation of the 
 Mexican system, especially when the two systems are so 
 radically dissimilar in other points. In a region where the 
 only title could be possessory, and possibly temporary, under 
 the law, what other arrangement in these respects than the 
 one adopted could have suggested itself to the pioneers? 
 May it not be simply another illustration of the fact that, 
 with the same problem and the same environment, the human 
 mind has in different ages often arrived at the same practical 
 solution. Even the idea of the story of the Jumping Frog 
 of Calaveras need not necessarily be deemed a conscious 
 imitation of its Boeotian prototype. 
 
 The California pioneers who were Americans did not have 
 to learn the science of organization from their foreign asso- 
 ciates. The instinct of organization was a part of their 
 heredity. Professor Macy, of Johns Hopkins University, 
 once wrote : "It has been said that if three Americans meet 
 to talk over an item of business, the first thing they do is to 
 organize." This trait is as characteristic as the one of peri- 
 odically saving the country by assembling in mass meeting 
 and passing resolutions. Californians were not the first 
 American early settlers upon the public domain of the United 
 States who were left for a time without statutory law, federal 
 or local. The institutional beginnings of more than one 
 western state, notably of Wisconsin and Iowa, furnish a most 
 interesting parallel, and the groundwork of their rules and 
 regulations, except with regard to' the extra-lateral right in 
 mining, are in many respects absolutely identical. The lead 
 miners of Dubuque who on the I7th of June, 1830, assembled 
 around an old cottonwool log, stranded on an island, and 
 appointed a committee of five miners to draw up regulations 
 for their government, would have been surprised to be told 
 in after years that the rules they framed had any other source 
 for their inspiration than the courage, the necessities and the 
 resourcefulness of intelligent frontiersmen. 
 
Historical Sketch of the Mining Law in California. 19 
 EARLY RULES AND REGULATIONS. 
 
 "In the early days of placer mining," says Mr. Hittell, 
 in his 'History of California/ Vol. 3, Page 252, "it was not 
 uncommon to fix the size of a claim at ten feet square; but 
 it was only in very rich ground that this quantity was found 
 to be sufficient. In poorer localities or where ground had 
 been once partially worked, the size was usually one hundred 
 feet square, though there were many variations according 
 to circumstances the idea in each case being to afford 
 every man a fair chance to accumulate wealth, and with this 
 object in view to give him as much ground as he could pos- 
 sibly use. The next provision and a remarkable and im- 
 portant one was that the claim could only be held while 
 it was being reasonably worked. It was usual to provide 
 that when a claim was taken up, stakes should be driven at 
 the corners or written notices of appropriation posted up 
 or an entry made in a record book open to the public; and 
 sometimes several of these modes or others equally effica- 
 cious in giving information were required; but in all cases 
 the fee of the land was regarded as belonging to the gov- 
 ernment, and no person could acquire any ownership beyond 
 the mere use for mining purposes, and that only while being 
 so used. A very common condition was that a certain 
 amount of work should be done within a specified time, 
 sometimes a certain amount every week during the mining 
 season; or otherwise that the claim should be liable to be 
 taken up by anybody else. So, also, if a person went away 
 from his claim without leaving his tools or some other 
 understood evidence of an intention of returning and resum- 
 ing work. Here, again, it was the same principle of the 
 equality of every man and his right to an equal chance with 
 his fellows ; on the one hand securing 'him in his possession and 
 the fruits of his labor, but on the other hand offering to each 
 of his fellows the same privilege, if he failed to make use of 
 them. The condition under which claims could be held and 
 the circumstances under which they could be forfeited, 
 together with the size of the claims and the manner of set- 
 tling disputes, constituted the chief points embraced in what 
 
2O History of the Bench and Bar of California. 
 
 were known as the mining laws or mining customs. There 
 were, of course, variations in different localities. In most 
 cases the first discoverer or locator of a mining region was 
 entitled to more ground than any other miner, generally to 
 twice as much; and in many cases, special provisions were 
 made about sales and purchase of claims and the authenti- 
 cation of bills of sale, which were the usual instruments by 
 which claims were, conveyed. 
 
 "Obviously no customs or laws could be adopted without 
 some kind of consensus or assent on the part of the mining 
 community. This was at first generally merely the agree- 
 ment of the particular company or camp, which might have 
 its own separate and distinct rules and regulations different 
 from all its neighbors; but by degrees meetings of the miners 
 of different camps and at length of whole neighborhoods 
 were held, until finally it became common to form what 
 are known as mining districts, embracing large tracts of ter- 
 ritory and to adopt laws applicable to and effective through- 
 out the whole territory so included. * * * And there 
 were a great many hundreds of them. Nearly every bar, 
 flat and gulch had its separate rules. Their jurisdictions 
 were ferequently changed, some consolidating into large 
 districts and others dividing into smaller ones the changes 
 being dependent chiefly upon the character as to homoge- 
 neousness or otherwise of the mining region embraced and 
 the convenience for the miners of access to a common place 
 of meeting." 
 
 DESCRIPTION OF RULES AND REGULATIONS. 
 
 Mr. Ross Browne, in his preliminary report on the Min- 
 eral Resources of the West, made in 1867 (p. 226), in describ- 
 ing the nature of these regulations, says : 
 
 "It is impossible to obtain, within the brief time allowed 
 for this preliminary report, a complete collection of the min- 
 ing regulations, and they are so numerous that they would 
 fill a volume of a thousand pages. There are not less than 
 five hundred mining districts in California, two hundred in 
 Nevada, and one hundred each in Arizona. Idaho and Ore- 
 
Historical Sketch of the Mining Law in California. 21 
 
 gon, each with its set of written regulations. The main 
 objects of the regulations are to fix the boundaries of the 
 district, the size of the claims, the manner in which claims 
 shall be marked and recorded, the amount of work which 
 must be done to secure the title, and the circumstances 
 under which the claim is considered abandoned and open to 
 occupation by new claimants. The districts usually do not 
 contain more than a hundred square miles, frequently not 
 more than ten, and there are in places a dozen within a 
 radius of ten miles. In lode mining, the claims are usually 
 two hundred feet long on the lode; in placers the size depends 
 on the character of the diggings and the amount of labor 
 necessary to open them. In hill diggings, where the pay 
 dirt is reached by long tunnels, the claim is usually a hundred 
 feet wide, and reaches to the middle of the hill. Neglect to 
 work a placer claim for ten days in the season when it can be 
 worked is ordinarily considered as an abandonment. The 
 regulations in the different districts are so various, however, 
 that it is impossible to reduce them to a few classes compre- 
 hending all their provisions." 
 
 The most succinct and accurate description of the rules 
 and regulations of the California miners, and especially of 
 the manner of marking the boundaries of the claims, both 
 placer and lode, is from the pen of Chief Justice Beatty 
 (Report Public Land Commission, p. 396) : 
 
 "When placer mining began in California there was no 
 law regulating the size of claims or the manner of holding 
 and working them, and local regulations by the miners 
 themselves became a necessity. They were adopted, not 
 because the subject was too complicated or difficult for 
 general regulation, but because they were needed at once 
 as the sole refuge from anarchy. The first and most impor- 
 tant matter to be regulated was the size of claims, and the 
 earliest miners' rules contained little else than a limitation 
 of the maximum amount of mining ground that one miner 
 might hold. That being determined, he was left to take 
 possession of his claim and work it as he pleased. It thus 
 
22 History of the Bench and Bar of California. 
 
 appears that the location of a mining claim was nothing 
 more nor less than the taking into actual possession of a 
 limited quantity of mining ground, and this was accom- 
 plished by simply marking its boundaries and going to 
 work inside of them. But in taking possession of their 
 claims miners sometimes failed to mark their boundaries 
 as distinct or to do as much work on them as later comers, 
 desirous of securing claims for themselves, thought essen- 
 tial to an actual possession. Hence arose disputes and vio- 
 lent conflicts. The next and final step in the development 
 of miners' law accordingly was the regulation of the mode 
 of marking the boundaries or otherwise designating the 
 locality and extent of claims and the quantum of work that 
 must be done to hold them. As a fence around a claim was 
 utterly useless, four stakes at the corners or two stakes 
 at the ends of the river boundary of a placer claim were 
 usually allowed to be a sufficient marking of its extent; 
 but, in this connection, a written notice, descriptive of the 
 claim and containing the name of the owner, was some- 
 times required to be posted on the ground and recorded 
 by the district recorder. Then, as it was frequently impos- 
 sible to continue work upon a claim on account of scarcity 
 or superabundance of water, and as miners were frequently 
 driven from the vicinity of their claims by the severity of 
 the winter season, the rules went on to prescribe the mini- 
 mum number of days' work per annum by which a claim 
 could be kept good, or the maximum of time during which 
 the miner might absent himself from his claim without 
 beng deemed to have forfeited or abandoned it. In rare 
 and exceptional instances miners may have attempted to 
 extend their regulations to other matters than those men- 
 tioned, but I risk nothing in saying that the above state- 
 ment embraces the essence of all the miiners' law of the 
 Pacific Coast relating to placer claims. After these regu- 
 lations had been some time in force came the discovery of 
 veins or lodes of gold bearing rock in place, and to them 
 the law of the placers was adapted with the least possible 
 change. 
 
Historical Sketch of the Mining Law in California. 23 
 
 "First The size of claims was regulated by allowing 
 so many feet along the vein. 
 
 "Second The mode of making out or designating the 
 claim was prescribed; and 
 
 "Third The amount of work necessary to hold it. 
 
 "The principal modification of the placer-mining law 
 as adapted to lode claims was upon the second point. The 
 placers were located as surface claims and were best marked 
 by stakes at the corners; notice and record, when required, 
 being deemed of minor importance. In lode claims these 
 conditions were reversed. The exact course or strike of 
 a lode was seldom ascertainable from the croppings at the 
 point of discovery; and as the claim \vas of so much of the 
 lode in whatever direction it might be found to run, with 
 a strip of the adjacent surface, taken for convenience in 
 working the lode and as a mere incident or appurtenance 
 thereto, it was found to be impracticable to mark the claim 
 by stakes on the surface, and hence the notice and record 
 came to play a more important part in designating the 
 claim. They came in fact to be all-important, locations 
 of lode claims being commonly made by posting a notice 
 in reasonable proximity to the point at which the lode was 
 discovered or exposed, stating that the undersigned claimed 
 so many feet of the vein extendng so far and in such direc- 
 tion or directions from the discovery point, together with 
 the amount of adjacent surface ground allowed by the rules 
 of the district. The notice so posted had the effect under 
 the rules of holding the ground described a certain length 
 of time, commonly ten days, within which time it was neces- 
 sary to have the notice recorded in the district records in 
 order to keep the claim good. This was all that was re- 
 quired under the head of marking or designating the local- 
 ity and extent of the claim, and it was thereafter held by 
 simply doing the prescribed amount of work. This was 
 the sum total of the California miners' law." 
 
 In view of the historical importance of the fugitive rec- 
 ords of the local rules and regulations of the various min- 
 ing districts, and as some of the provisions of many of 
 
24 History of the Bench and Bar of California. 
 
 them are, under our peculiar federal legislation, still in 
 force, I have, at the risk of being statistical, endeavored 
 to collate the names of the different districts and the dates 
 of adoption of the several codes of rules and regulations, 
 and to point out where authentic records thereof are ex- 
 tant. Where I have not specifically referred to the particu- 
 lar work from which the record is taken, it is in all cases 
 to be found in the invaluable collection of the local rules 
 and regulations of the miners of California contained in 
 the official Report of the United States Census for 1880, 
 Vol. XIV, pages 271 to 345, inclusive. The record is as 
 follows : 
 
 EARLY MINING DISTRICTS OF CALIFORNIA. 
 
 NEVADA COUNTY 
 
 Neveda courtly quartz regulations, December 20, 1852. Ex- 
 tend over all quartz mines and quartz mining property within 
 the county. 
 
 Gold Mountain mining district, December 30, 1850 ; con- 
 tinued March 17, 1851 ; amended September 29, 1851 ; last 
 amendment repealed October 5, 1851 ; regulations extended, 
 September 29, 1852; regulations extended December 15, 1853. 
 
 Union Quartz Mountain mining district, February 30, 1851 ; 
 amended May 24, 1851. 
 
 Kentucky Hill mining district, May I, 1851. 
 
 Prospect Hill mining district, May I, 1851. 
 
 Saunders Ledge mining district, June 6, 1851. 
 
 Day's Ledge mining district, October 21, 1851. 
 
 Lafayette Hill mining district, November 10, 1851- 
 
 Indian Springs Hill mining district, November 17, 1851. 
 
 Jefferson Hill No. i mining district, December 16. 1851. 
 
 Mary's Diggings mining district, December 31, 1851. 
 
 Rebecca's Hill mining district, January 3, 1852. 
 
 Weehawken Hill mining; district, June 16, 1852. 
 
 Rockwell Hill mining district, June 17, 1852. 
 
 Brooklyn Hill mining district, June 22, 1852. 
 
 Nebold Hill mining district, June 22, 1852. 
 
 Mount Olivet mining district, June 25, 1852. 
 
 Union Hill No. 2 mining district, June 25, 1852. 
 
 Buffalo Hill mining district (no date) ; transferred to book 
 of Township Recorder, June 15, 1852. 
 
 Caledonia Hill mining district, June 29, 1852. 
 
 Pecker's Hill mining district, June 29, 1852. 
 
 Poppysquash Hill mining district, June 30, 1852. 
 
 Pierce's Ledge (formerly Indian Hill) mining district, 
 July 22, 1852. 
 
 Sierra Nevada Hill mining district, August 10, 1852. 
 
 Blethen Hill mining district, August 21, 1852. 
 
 Mount Pleasant mining district, October u, 1852. 
 
 Constitution Hill mining district, October 12, 1852. Jumped 
 and called Iowa Hill, April 17, 1854. 
 
Historical Sketch o/ the Mining Law in California. 25 
 
 Cedar Hill mining district, October 17, 1852. 
 
 Washington Hill mining district, November 15, 1852. 
 
 Boston Hill mining district, November 21, 1852. 
 
 Norton's Hill mining district, December o. 1852. 
 
 Empire Hill No. i mining district, 1852. 
 
 'Kosciusko Hill mining district, January I, 1853. 
 
 Ben. Franklin Ledge mining district, January 28, 1853. 
 
 Jefferson Ledge mining district, February 25, 1853. 
 
 Pyrenees Hill mining district, September 23, 1853. 
 
 lone Ledge mining district, August 24, 1854. 
 
 Madison Quartz Ledge and Hill mining district, August 
 18, 1855- 
 
 Hoosac Hill mining district, (no date). 
 
 Rhode Island HilT mining district (no date). 
 
 Sebastopool Ledge mining district (no date). 
 
 Ashville Hill mining district. Same regulations as Cedar 
 Hill. 
 
 Oak Hill mining district. Same regulations as Cedar 
 Hill. 
 
 Sweetland mining district, 1850; amended in .1852; divided 
 into three districts with separate regulations (Hittell's His- 
 tory of California, Vol. Ill, page 260). 
 
 North San Juan Placer regulations, November 5, 1854, 
 (Ross Browne's Mineral Resources of the West, 1867, page 
 240.) 
 
 Albion Hill, Gold Hill No. 2, Independence Ledge, Ken- 
 tucky Fountain Ledge, Lewis' Lead, North Point Ledge, Oro 
 Fino Hill, Ohio Hill, Pine Hill Ledge, Quimbaugh Hill, Rich- 
 mond Hill, Squirrel Creek Hill, St. Louis Ledge, Texas Ledge, 
 and Trenton Ledge mining districts are all governed by the 
 county laws. 
 
 TUOLUMNE COUNTY 
 
 Jackass Gulch mining district (including Soldier Gulch), 
 1848; regulations put into writing in 1851. (Hittell's History 
 of California, Vol. Ill, page 257 ; Shinn's Mining Camps, page 
 237-) 
 
 Jacksonville mining district, January 20, 1850. (The Pub- 
 lic Domain. 1883, page 317; Hittell's History of California, 
 Vol. Ill, page 130.) 
 
 Jamestown mining district (no date) ; laws repealed and 
 new regulations adopted, 1853. (Hittell's History of Cali- 
 fornia, Vol. Ill, page 258.) 
 
 Springfield mining district, December, 1854. (Yale's Min- 
 ing Claims and Water Rights, page 84 ; Hittell's History of . 
 California, Vol. Ill, page 258; Shinn's Mining Camps-, pages 
 238-242.) 
 
 Shaw's Flat mining district (no date). (Hittell's Cal- 
 ifornia, Vol. Ill, page 259.) 
 
 Sawmill Flat mining district (no date). Hittell's Cal- 
 ifornia, Vol. Ill, page 259.} 
 
 Brown's Flat mining district (no date). Hittell's Cal- 
 ifornia, Vol. Ill, page 259.) 
 
 Jackson Flat and Tuttletown mining district, November. 
 1855. (Yale's Mining Claims and Water Rights, page 84; 
 Hindi's California, Vol. Ill, page 259; Shinn's Mining Camps, 
 pages 240-242.) 
 
 Columbia district placer regulations. (Ross Browne's Min- 
 eral Resources of the West, 1867, page 238.) 
 
26 History of the Bench and Bar of California. 
 
 New Kanaka Camp placer regulations. (Ross Browne's 
 Mineral Resources of the West, 1867, page 238.) 
 
 Tuolumne county quartz regulations, in force September 
 i, 1858, extending over and governing all quartz mining prop- 
 erty within the county. (Ross Browne's Mineral Resources 
 of the West, 1867, page 237.) 
 
 MARIPOSA COUNTY 
 
 Rules adopted at convention of quartz miners at Quartz- 
 burg, June 25, 1851. 
 
 Coulterville mining district, March 5, 1864. 
 
 AM ADO R COUNTY 
 
 Drytown mining district, June 7, 1851, consisting of al! 
 that portion of the then county of Calaveras south of the 
 divding ridge between the Cosumnes river and Dry creek, and 
 north of the Mokelumne river. 
 
 Volcano quartz mining district, February 6, 1858. J. Tul- 
 lock and F. Reichling the committee that drafted the code. 
 
 "Jackson and all other Veins of Metal District," February 
 7, 1863 ; amended May 22, 1863. 
 
 Puckerville (now Plymouth) mining district, February n, 
 1863. B. F. Richtmyer, secretary. E. S. Potter elected re- 
 corder ; new regulations adopted at store of F. Sheaver, May 
 
 23, 1863. 
 
 Clinton mining regulations. (Ross Browne's Mineral Re- 
 sources of the United States, 1868, page 73.) 
 
 Pine Grove mining regulations. (Ross Browne's Mineral 
 Resources of the United States, 1868, page 73.) 
 
 EL DORADO COUNTY 
 
 Grizzly Flat mining district. February 4. 1852; amended 
 February 26, 1853 ; none of the books containing records made 
 under the first laws are in existence; amended and name 
 changed to Mount Pleasant mining district. 
 
 French Town mining district, November 12,^1854; amended 
 January 3, 1858; amended April 6, 1859; amended March 20, 
 1863- 
 
 Smith's Flat mining district (no date of adoption given) ; 
 amended February 20, 1855 ; amended February 12, 1873. 
 
 Spanish Camp quartz mining district, April, 1862 ; name 
 changed to Agra district, June 14, 1866. 
 
 Diamond quartz mining district, February 14. 1863. 
 
 Plaoerville mining district, March 21, 1863. 
 
 El Dorado (Mud Springs) mining district, April 7, 1863. 
 
 Big Canyon quartz mining district, November u, 1865. 
 
 Henry's Diggings mining district, June, 1867. 
 
 Kelsey mining district, regulations adopted May 7, 1873 5 
 in conformity with the Mineral Law of Congress of May 
 10, 1872. 
 
 Greenwood mining district (no date). No written regula- 
 tions now in force. 
 
 CALAVERAS COUNTY 
 
 Angels mining district, July 20, 1855; amended March 
 
 24, 1860. Record of district mining locations burned in 1855. 
 Murphy's mining district, October 26, 1857. 
 
Historical Sketch of the Mining Law inCalifornia. 27 
 
 Lower Calaveritas mining district. November 7, 1857; 
 amended June 28, 1858 ; amended April 4, 1863. 
 
 San Andreas mining district, March, 1866; amended Arti- 
 cle XVI (no date). 
 
 Pilot Hill placer regulations. (Ross Browne's Mineral 
 Resources of the West, 1867, page 241.) 
 
 Copper Canyon regulations, adopted August 3, 1860. 
 (Ross Browne's Mineral Resources of the West. 1867, page 
 242.) 
 
 PLUMAS COUNTY 
 
 Warren Hill mining district, October 22. 1853. Creed 
 Haymond, secretary. 
 
 South Placer, quartz regulations. (Ross Browne's Min- 
 eral Resources of the United States, 1868, page 108.) 
 
 Canada Hill quartz regulations. (Ross Browne's Min- 
 eral Resources of the United States, 1868, page 108.) 
 
 Lone Star quartz regulations. (Ross Browne's Min- 
 eral Resources of. the United States, 1868, page 108.) 
 
 SIERRA COUNTY 
 
 Saint Louis mining district, July 6, 1856. 
 
 Gibsonville mining district, January 8, 1857. 
 
 Wet Ravine mining district (no date). 
 
 Trigaski Flat mining district. (Yale's Mining Claims and 
 Water Rights, page 75; Prosser vs. Parks, 18 Cal., 47.) 
 
 Sierra county quartz mining district, June 6, 1859. Extends 
 over all quartz mining claims in the county. 
 
 RUTTE COUNTY 
 
 Rich Gulch quartz mining district, November 15, 1851 f 
 further regulations May 22, 1852. 
 
 Con Cow mining district, August 28, 1880. 
 
 Oregon Gulch mining district, December 20, 1885 ; placer 
 regulations amended June 17, 1861 ; quartz regulations 
 amended August 13, (no year specified) ; both placer and 
 quartz regulations amended" February 3, 1872. 
 
 Helltown and Centerville mining district, October n, 
 1857; amended March 23, 1878. 
 
 Cherokee Flat mining district, November 19, 1861 ; amended 
 September 23, 1871. 
 
 Forbestown mining district, June 9, 1863. 
 
 Lovelock mining district, April 3, 1865; amended, prob- 
 ably, after May 10, 1872. 
 
 Greely Flat mining district, December 12, 1872. 
 
 Live Oak Flat mining district, July 5, 1872. 
 
 Megalia mining district, since May 10, 1872. Old laws of 
 the district lost and abrogated by custom and usage of the 
 miners. 
 
 Forks of Butte mining district, June i, 1878. 
 
 Inskip mining district, May 17, 1879. 
 
 Bangor quartz regulations. (Ross Browne's Resources of 
 the United States, 1868, page 162.) 
 
 Thompson's Flat mining district, 1851. The books were 
 lost in 1857. 
 
 Bidwell's Bar mining district, 1850; reorganized 1863. 
 Original regulations and records destroyed by fire, 1854: regu- 
 lations of second organization also lost. 
 
28 History of the Bench and Bar of California. 
 
 YUBA COUNTY 
 
 Upper Yuba mining district, April n, 1852. 
 
 Sucker Flat mining district, January 22, 1855; adjourned 
 meeting January 25, 1855; amended December 31, 1855; 
 amended February 10. 1868. 
 
 Ohio Flat mining district. March 8, 1856; laws adopted 
 March 15, 1856; amended November 12, 1857. By-laws 
 adopted May 15, 1858. 
 
 Odd Fellows mining district. On account of record book 
 containing laws having been destroyed, new regulations 
 adopted September 24, 1864. 
 
 Indiana Ranch quartz mining district, April 18, 1857 ; 
 amended November 7, 1857; amended March 13, 1864; 
 amended April 25, 1878 
 
 Brownsville mining district, April 7, 1860; amended April 
 
 7, 1862. 
 
 Empire mining district, January 22, 1863. 
 
 Dobbin's Creek mining district, March 26, 1864; approved 
 April 17, 1864. 
 
 Oregon Hill mining district (no date). First recording 
 February 17, 1864. 
 
 Brown's Valley mining district. February 14, 1852; re- 
 pealed and new regulations adopted February 14, 1853; 
 amended July 31, 1853; amended August 8, 1853; amended 
 January 4, 1864 ; amended January 2, 1865 ; amended January 
 
 8, 1866; amended January 7, 1867. (Ross Browne's Mineral 
 Resources of the United States, 1868, pages 155-156; Shinn's 
 Mining Camps, page 249.) Reorganized, May 3, 1870. (Tenth 
 Census of the United States, i88o,_ Vol. XIV. page 319.) 
 
 TRINITY COUNTY 
 
 East Fork of North Trinity, mining district, February 17, 
 1852. 
 
 Weaver Creek mining district. June 19, 1852. 
 Weaverville mining district, June 7, 1853- 
 Democrat Gulch mining district, September 3, 1856. 
 
 SISKIYOU COUNTY 
 
 Lower Humbug Creek mining district, April 7, 1855. 
 Oro Fino Diggings mining district, February 6, 1856. 
 Little Humbug Creek mining district, April 8, 1856. 
 Maine Little Humbug Creek mining district, October 8, 1856. 
 Hungry Creek Diggrngs mining district, October 24, 1857 ; 
 amended January 27, 1858. 
 
 Empire mining district, February 15. 1864. 
 
 PLACER COUNTY 
 
 Illinoistown mining district, March 21. 1863; amended Sec- 
 tion 4 (no date). 
 
 Dutch Flat mining district (no records to be found). 
 
 Auburn mining district (no date). The old mining laws 
 are lost or destroyed. 
 
 Yankee Jim's mining district. Copies of the old mining 
 laws are still in existence. 
 
 Bath mining district (no date). The old mining laws are 
 not to be found. 
 
Historical Sketch of the Mining Law in California. 29 
 
 Forest Hill mining district (no date). "The district is 
 bounded on the north by Shirt-Tail canyon, etc." The mining 
 laws have been burned. 
 
 Iowa Hill mining district (no date). The mining laws have 
 not been in use, nor has organization been kept up since 
 about 1865. 
 
 SACRAMENTO COUNTY 
 
 Folsom quartz mining district, January 22, 1857. Adopted 
 at the house of Colonel Russ on Prospect Hill, in the town 
 of Russville (Ashland), and "extend over all quartz mines 
 and quartz mining property within the county of Sacramento." 
 
 MONO COUNTY 
 
 Bodie mining district, July 10, 1860; amended at the Tay- 
 lor cabin, August 10, 1861 ; amended at Burnett's cabin, June 
 7, 1862; amended at Leach and Monroe's cabin, June 9, 1862; 
 amended November 12, 1862; amended at the house of J. 
 Elnathan Smith, Jr., March 4, 1864; amended at the house 
 of Biderman and Pooler, October 24, 1864, six members pres- 
 ent; amended at Wand & Barker's saloon, October 5, 1865, 
 one article being adopted by a vote of five to four; amended 
 at house of E. D. Barker, March 3, 1866; amended at house 
 of Robert Kernahan. March 4, 1867; amended at house of F. 
 Swenson, November 13, 1867 ; amended in sa'oon of J. C. Smith 
 at 7 P. M., December 30. 1876. 
 
 Blind Springs mining district, March 23, 1865 ; amended 
 May 4. 1865; amended July 8, 1865; amended November 18, 
 1865; amended November 25, 1865; amended March 20. 1875; 
 amended March 27. 1875. 
 
 Homer mining district. October o, 1879; "adopted United 
 States mining law of March 10, 1872." 
 
 CONTRA COSTA COUNTY 
 
 Marsh Creek mining district. May 27, 1865. 
 
 SAN BERNARDINO COUNTY 
 
 Borax Lake mining district, April 28, 1873. 
 Brier mining district. May 3, 1873. 
 Cajon mining district, March 19. 1874- 
 Upper Yreka Creek mining district (no date). 
 
 Some of the provisions of these rules and regulations, 
 outside of the. general provisions already referred to, are 
 interesting and instructive. 
 
 SOME CHARACTERISTIC PROVISIONS. 
 
 In the Helltown District, in Butte County, for instance, 
 all kinds of placer mining existed, and the rules and regu- 
 lations, among other things, define and prescribe as fol- 
 lows : 
 
3d History of the Bench and Bar of California. 
 
 "First Claims shall consist of four classes: (i) River 
 claims. (2) Bar, bench or flat claims. (3) Ravine claims. 
 (4) Hill claims. 
 
 "Second River claims shall be all that is drained, except 
 such parts of the ground as may be claimed previous to giving 
 notice of intention to drain such ground. 
 
 "Third Bar, bench or flat claims shall be one hundred 
 feet, facing the river, and shall extend at right angles across 
 >uoh bar, bench or flat, across the supposed channel to the 
 final raise of the bed-rock. 
 
 "Fourth Ravine claims shall extend one hundred and fifty 
 feet up or down the ravine, and not exceed forty feet in 
 width, and may be located in the center or on either side. 
 
 "Fifth Hill, deep or coyote diggings shall consists of 
 one hundred feet to the man, running crosswise of the hill, 
 through it, or to unlimited extent. 
 
 "Sixth Claims or river bars, benches or flats that may 
 be worked by the water from the river or creek shall be con- 
 sidered as wet diggings, and ravines that are dependent on the 
 rainy season for water shall be considered as dry diggings. 
 
 "Seventh Any one holding a claim or claims shall work 
 the same when workable as often as one day in each week, to 
 have them represented by another, or forfeit his right to them 
 unless prevented by sickness." 
 
 The following taken from the regulations of Little 
 
 Humbug Creek Mining District, in Siskiyou County, 
 
 throws a human side-light on life in the early mining 
 camps : 
 
 "Art. VII Resolved, That no person's claim shall be 
 jumpable on Little Humbug while he is sick or in any other 
 way disabled from labor, or while he is absent from his 
 claim attending upon sick friends." 
 
 The ease with which rules and regulations could be 
 repealed or amended is illustrated in the following: 
 
 "Sec. VIII The laws may be altered or amended at any 
 meeting by a majority present, provinding there shall have 
 been notice of 'such an alteration or amendment given in the 
 notice of the meeting calling it." Regulations of Ohio Flat 
 District, Yuba County. 
 
 "Article XII Any person at any time feeling aggrieved 
 by any of the above Rules and Regulations and desirous to 
 have said Rules and Regulations altered or amended, may 
 call a meeting of the miners by giving at least three days' 
 notice of such intention by placing up at least two notices 
 on the most jniblic places in Gibsonville." Regulations, Gib- 
 sonvillc District, Sierra County. 
 
 "Article XII No amendments or alteration shall be made 
 to these laws unless a meeting of the miners of this district 
 be called by notice posted in three public places within this 
 district, at least before such meeting takes place five days." 
 El Dorado (Mud Springs} District, El Dorado County. 
 
Historical Sketch of the Mining Law in California. 31 
 
 One of the gems in the collection is to be found among 
 the regulations of the Mariposa District, in 1851 : 
 
 "Resolved, That we consider all rights claimed in quartz 
 veins, subject to the debts of the claimants or owners, as ab- 
 solutely as may be other property. 
 
 "Resolved, . . . That a copy be furnished to our Sena- 
 tors and Representatives in Congress. 
 
 "Resolved, That for the full and faithful maintenance of 
 these Rules and Regulations in our county of Mariposa we 
 sacredly pledge our honors and our lives." 
 
 The humor of the last resolution consists not so much 
 in the bombastic yet earnest imitation of the Declaration of 
 Independence as in the stern sincerity of the omitted word. 
 The only reason they did not pledge their fortunes was be- 
 cause they did not have any! Fortunes were what they were 
 hunting. 
 
 In some districts the penal regulations were no less ex- 
 plicit than those for the location, holding and working of 
 claims: 
 
 "Article XII Any person who shall steal a mule, or other 
 animal of draught or burden, or shall enter a tent or dwelling 
 and steal therefrom gold-dust, money, provisions, goods, or 
 other articles amounting in value to one hundred dollars or 
 over, shall, on conviction thereof, be considered guilty of 
 felony, and suffer death by hanging. 
 
 "Article XIII Should any person wilfully, maliciously and 
 premeditatedly take the life of another, on conviction of mur- 
 der, he shall suffer death by hanging. 
 
 "Article XIV Any person convicted of stealing tools, 
 clothing or other articles, of less value than one hundred 
 dollars, shall be punished and disgraced by having his head 
 and eyebrows close shaved and shall leave the encampment 
 within twenty-four hours." Jacksonville District, 1850, 
 Tuolumne County. 
 
 One of the most instructive records of miners' meetings 
 is that of the meeting held Dec. 13, 1853, m tne Weaver- 
 ville District, in Trinity County: 
 
 "Dr. Ware explained the object of the meeting in a few 
 pertinent remarks. He said that McDermott told him on 
 yesterday that unless he gave up one-half of the water in the 
 creek aforesaid, that he, McDermott, would take a body of 
 men and take the water by force of arms and hold the same 
 until he and his men were whipped off the ground. His party 
 as above mentioned have taken possession of the water, and 
 are holding it by force of arms. In this dilemma Dr. Ware 
 calls upon his fellow-miners to assist him in defending his 
 rights, agreeable to the old miners' laws. They said that this 
 was a serious affair, but they were willing to defend the old 
 and established miners' laws and the right." 
 
32 History of the Bench and Bar of California. 
 
 A committee of five was appointed to investigate the 
 nature of the grievance and examine the law on the subject, 
 and a recess taken. The minutes then proceed : 
 
 "Pursuant to adjournment meeting met at i o'clock, were 
 called to order by the chairman, Mr. Cameron. Committee 
 reported as follows, having thoroughly investigated the laws 
 and customs of the miners of Weaver: We fully concur in 
 the opinion that Dr. Ware is fully entitled to all the water 
 in West Weaver, except four torn-heads, which is allowed 
 for the bed of the stream ; also that the burning of his reser- 
 voir, and the destruction of his dam and other property and 
 the taking of his water from his race by force of arms are 
 malicious acts, and should not be submitted to by those who 
 are in favor of law and order. 
 
 "On motion, the report was received and the committee 
 discharged. 
 
 "On motionj it was 'Resolved, That we assist Dr. Ware 
 in turning the water into his race and that we sustain him 
 to the last extremity in keeping it in the race.' 
 
 "On motion, the meeting then adjourned for the purpose of 
 carrying this resolution into effect." 
 
 At this interesting point the minutes end, and the reader 
 is left to imagine what usually takes place when an irresisti- 
 ble force meets an immovable object. 
 
 As a sample of regulations concerning the location of 
 quartz claims, that adopted for all the quartz mines in Nevada 
 County, Dec. 20, 1852, will suffice: 
 
 "Article II Each proprietor of a quartz claim shall here- 
 after be entitled to one hundred feet on a quartz ledge or vein ; 
 and the discoverer shall be allowed one hundred feet addi- 
 tional. Each claim shall include all the dips, angles and varia- 
 tions of the vein." 
 
 In other counties the length of a claim was usually 
 greater than in Nevada, but the dips, spurs, angles and varia- 
 tions always went with the ledge, and if not expressly set 
 forth in the rules and regulations \vere always included in 
 the "customs" of the district. This was also true of the use 
 of sufficient surface ground for the convenient working of 
 the claim. 
 
 THE DOCTRINE OF "CUSTOMS." 
 
 This doctrine of "customs," in its technical sense, as ap- 
 plied to early California mining operations, must not be con- 
 fused with the written "rules and regulations" of miners. 
 Though very serviceable to the early miner for obvious rea- 
 
Historical Sketch of the Mining Law in California. 33 
 
 sons, its possible and actual misuse at a later day often came 
 back to plague him. ''These (customs)," says Mr. Yale, 
 "grow up by self-creation, and are not the subjects of in- 
 vention or provision. They may be superseded when once 
 observed as obligatory, and the customs of one district may 
 have controlling force in another. They are not the ancient 
 customs of the common law, which, to have force, must be 
 immemorial, merely traditional, and not originating within 
 living memory. But they are the usages which grow out of 
 the regulations by practice, are appurtenant to them, and 
 must be regarded and enforced as an inherent part of them, 
 as explaining, enlarging and defining them. Their force is 
 greater because they are within living memory, and as no 
 generation has elapsed since they have existed, are as ancient 
 as circumstances will conveniently admit." Their growth in 
 a community where pen, pencil and paper were not exactly 
 implements of mining, where everyone knew his neighbor, 
 and where everyone knew what transpired in- camp each day, 
 was perfectly natural; and their recognition by courts into 
 whose presence the rules and regulations of the miners them- 
 selves came in the guise of custom, in the generic sense of 
 the word, was equally natural. 
 
 STATE LEGISLATIVE RECOGNITION. 
 
 In 1851 Stephen J. Field, then a member of the Assembly 
 from Yuba County, introduced into the legislature and 
 had passed what is commonly known as the Practice Act, 
 section 621 of which (since re-enacted as section 748 of the 
 Code of Civil Procedure) was as follows : "In actions re- 
 specting mining claims, proof shall be admitted of the cus- 
 toms, usages or regulations established and in force at the 
 bar or diggings embracing such claims; and such customs, 
 uses or regulations, when not in conflict with the constitution 
 and laws of this State, shall govern the decision of the 
 action." This was the first statute* to take notice of these 
 customs, usages and regulations, and its enactment recog- 
 nized and, in a sense, adopted them as the common law of 
 mines and mining in California. 
 
34 History of the Bench and Bar of California. 
 
 The act of April 13, 1860, relating to the conveyance of 
 mining claims, also expressly recognizes the "lawful local 
 rules, regulations or customs of the mines in the several min- 
 ing districts in this State." This is the only other statutory 
 recognition of these rules and customs in California before 
 the federal mining law of 1866. 
 
 "These usages and customs," said Chief Justice Sander- 
 son, in 1864, in construing Section 621 of the Practice Act, 
 in the case of Morton vs. Solambo Copper Mining Co., "were 
 the fruit of the times, and demanded by the necessities of 
 communities who, though living under common law, could 
 find therein no clear and well-defined rules for their guidance 
 applicable to the new conditions by which they were sur- 
 rounded, but were forced to depend upon remote analogies 
 of doubtful application and unsatisfactory results. Having* 
 received the sanction of the legislature, they have become as 
 much a part of the law of the land as the common law itself, 
 which was not adopted in a more solemn form." 
 
 STATE SUPREME COURT RECOGNITION AND CONSTRUCTION. 
 
 The State courts gave full recognition to the rules, regu- 
 lations and customs of miners, and a large body of our law 
 is made up of the judicial interpretation and application of 
 these rules and customs, a summary of the chief points of 
 which will not be amiss. The elastic construction given to 
 these rules and regulations and the sympathetic construction 
 given to the customs and usages were in accord with the 
 spirit of their creation, and effectively promoted justice in 
 the Arcadian days; but some of the principles then laid down 
 became in later days, under other circumstances, a very Pan- 
 dora's box of troubles. 
 
 To have the force of law, a regulation must be in force 
 at the time of the location. It does not, like a statute, ac- 
 quire validity by the mere enactment, but from the custom- 
 ary obedience and acquiescence of miners following its enact- 
 ment. It likewise becomes void by disuse; this disuse, how- 
 ever, must be general; it is not sufficient that the rule has 
 
Historical Sketch of the Mining Law in California. 35 
 
 been disregarded or violated by a few persons. Whether 
 it has fallen into disuse is a question of fact, and, therefore, 
 must go to the jury. 
 
 Where a regulation has fallen into disuse, a custom rea- 
 sonable in itself and generally observed, though contrary 
 to the regulation, may be proved. But the written rules are 
 presumed to be in force, and proof of a contrary custom must 
 be clear. The existence of mining regulations is a fact, and 
 must be proved as a fact. Judicial notice will not be taken 
 of them. Upon the person relying on them lies the burden 
 of proving them. This is done by producing the original 
 rules when in writing. When it is proved that the rules 
 were adopted and recognized, they become admissible in 
 evidence. The fact that the meeting at which they were 
 adopted was held upon a day different from that named in 
 the notice thereof, does not, in the absence of fraud, render 
 them inadmissible. And an alteration in one article of the 
 regulations after their adoption does not change the legal 
 effect of the other articles. 
 
 When the written regulations are deposited with some 
 authorized officer, or recorded in his office, they may not 
 be proved by parol evidence. Other evidence, however, be- 
 sides proof of the written record or of the acts of a miners' 
 meeting is admissible as tending to prove the existence of 
 a particular rule. This may be done by establishing a cus- 
 tom or usage in the district. The custom of recording claims 
 in a district, while not proving absolutely the existence of a 
 rule requiring such a record, tends to establish it. So on a 
 subject as to which the written rules, when proven, are 
 silent, a custom prevailing in the district may be proved; but 
 regulations or customs of another district are not admissible 
 to vary such a custom or the written rules. 
 
 The admissibility of mining regulations is not affected 
 by the shortness of the time that they have been in force. 
 The common law rule as to customs has no application on 
 this point. A single extract from the written rules of a 
 district may not be proved; the whole body of rules of a 
 district must be offered in evidence. 
 
36 History of the Bench and Bar of California. 
 
 When regulations have been proved, their construction, 
 like that of other writings, is for the court. But where good 
 faith is shown, a substantial compliance with them is suffi- 
 cient. There is a distinction between the local rule made 
 by a few miners within a district and a mining regulation 
 enacted by the whole district, or a custom in universal force 
 throughout the district. The former is not binding upon the 
 locator, unless he had actual notice of its existence or as- 
 sisted in its enactment. 
 
 Barringer and Adams on Mines, pp. 281-190, 290. 
 
 In an action for possession of a mining claim, where 
 plaintiff relied upon a location under certain written rules 
 adopted by the miners of the district, which contained no 
 requirements that notices should be posted on the claims at 
 the time of the location, defendant may prove a custom in 
 the district requiring such posting of notices. No distinction 
 is made by the statute (Practice Act, sec. 621) between the 
 effect of a "custom" or "usage," the proof of which must 
 rest in parol, or a "regulation," which may be adopted at a 
 miners' meeting and embodied in a written local law. The 
 custom or regulation must not only be established, but must 
 be in force. A custom reasonable in itself and generally 
 observed will prevail as against a written mining law which 
 has fallen into disuse. Whether the law is in force at any 
 given time is for the jury. 
 
 Harvey vs. Ryan, 42 Cal. 626. 
 
 FEDERAL SUPREME COURT RECOGNITION. 
 
 The Supreme Court of the United States gave full recog- 
 nition to the binding force of the local rules, regulations, 
 usages and customs before the sanction of federal statutory 
 enactment, and to the doctrine that they constitute the Amer- 
 ican common law of mines. 
 
 Sparrow vs. Strong, 3 Wall. 97, decided in 1865. 
 
 Jennison vs. Kirk, 98 U. S. 453, decided in 1878. 
 
Historical Sketch of the Mining Law in California. 37 
 
 EFFECT OF UNCERTAINTY OF TENURE. 
 
 The rules, regulations and customs of the miners were 
 the work of men who were prospectors, and were admirably 
 adapted for the mining operations that called them into 
 being. Each man and his partner or partners worked their 
 own claim. When the early placers were worked out, how- 
 ever, and the development of the mining industry demanded 
 not so much accessibility to the public domain as capital for 
 the successful exploitation of quartz mines, security of title 
 and a declaration of federal policy with reference to the pub- 
 lic mineral lands -became paramount. The uncertain char- 
 acter of the tenure of the land, too, reacted upon the mining 
 population, made their future uncertain and shifty, and pre- 
 vented the home-building so essential to the settling up and 
 development of the mining sections of the State. "Their 
 enterprises," says Ross Browne, "generally were undertaken 
 for the purpose of making the most profit in a brief time. 
 There was no proper care for a distant future; and without 
 such care no society is sound, no State truly prosperous. If 
 a claim could, by hastily washing, be made to pay $10 per 
 clay to the hand for three months, or $6 for three years by 
 careful washing, the hasty washing was preferred. If a fer- 
 tile valley that would have yielded a revenue of $5 per acre 
 for century after century to a farmer could be made to yield 
 $5 per day to a miner for one summer, its loam was washed 
 away, and a useless and ugly bed of gravel left in its place. 
 The flumes, the ditches, the dwellings, the roads and the 
 towns were constructed with almost exclusive regard to im- 
 mediate wants. * * * The claims were made small, so 
 that everybody should have a chance to get one; but the 
 pay-dirt was soon exhausted, and then there must be a move. 
 In such a state of affairs miners generally could not send for 
 their families or make elegant homes. Living alone and 
 lacking the influences and amusements of home-life, they 
 became wasteful and wild. Possessing no title to the land, 
 they did nothing to give it value, and were ready to abandon 
 it at any moment. The farmers, merchants, and other fixed 
 
38 History of the Bench and Bar of California. 
 
 residents of the mining counties were agitated and fright- 
 ened nearly every year by the danger of migration of the 
 miners to some distant place. One year it is Peru; another 
 it is British Columbia, Idaho, Reese River, Pahranagat or 
 Arizona; and it may next be Brazil, Liberia, or Central 
 Africa, for all we know." 
 
 EXECUTIVE RECOMMENDATIONS FOR CONGRESSIONAL ACTION. 
 
 Meanwhile congress steadily pursued its policy of "gen- 
 erous inaction." The great battle of whether California 
 should be admitted as a slave or a free state had to be 
 fought out, and all things else had to wait. It took longer 
 to admit California into the Union than to fight the Mexican 
 War. The executive branches of the government, however, 
 never lost sight of the necessity of some definite federal legis- 
 lative action. 
 
 On December 4, 1849, President Taylor, in his inaugural 
 message, after stating that he thought the establishment of 
 a branch mint in California would afford facilities to those 
 engaged in mining "as well as to the government in the dis- 
 position of the mineral lands," says: 
 
 "In order that the situation and character of the princi- 
 pal mineral deposits in California may be ascertained, I 
 recommend that a geological and mineralogical explora- 
 tion be connected with the linear surveys, and that the min- 
 eral lands be divided into small lots suitable for mining, and 
 be disposed of, by sale or lease, so as to give our citizens 
 an 'opportunity of procuring a permanent right of property 
 in the soil. This would seem to be as important to the suc- 
 cess of mining as of agricultural pursuits." 
 
 These recommendations, so simple and so just, were, 
 however, not the burden of the official report of Mr. Ewing, 
 the Secretary of the Interior, who had evidently had some 
 smattering of the Spanish code of mining, and according to 
 whom the division, disposition and management of the mines 
 would require much detail. It was due to the nation, he 
 
Historical Sketch of the Mining Law in California. 39 
 
 claimed, that this rich deposit of mineral wealth should be 
 made so productive, as, in time, to pay the expense of its 
 acquisition. He advocated the expediency of the govern- 
 ment furnishing scientific aid and directions to the lessees 
 and purchasers of the mines and establishing a mint in the 
 mines, so that the gold collected could be delivered into 
 the custody of an officer of the mint, and out of the amount 
 so collected and deposited a percentage could be deducted, 
 and the balance paid to the miner in coin, stamped bullion, 
 or in drafts on the treasury, at his option. "The gold in the 
 mine, after it is gathered, until brought into the mint, should 
 be and remain the property of the United States." 
 
 Senator Fremont, five days after the admission of Cali- 
 fornia into the Union, introduced the first federal mining 
 bill concerning the public lands of the new acquisition. The 
 bill was a complicated one, and, in principle, contemplated 
 the ganting of permits, by agents appointed by the govern- 
 ment, to work mines of limited and specified quantities, upon 
 the payment of a stipulated sum. The bill passed the Senate, 
 but failed of passage in the House. Snator_JF>1^h; chairman 
 ojrthe committee on public lands, in the course of the debate 
 on the^Fremont bill, offered_aj3ubstitute which championed 
 the principles of free mining, butTt was defeated in the Sen- 
 _ateT Both in the permit to be obtained under * the .bremonT 
 bill, and in the land to be acquired under the Felch bill, a 
 placer was limited to thirty feet square, and a quartz mine to 
 two hundred and ten feet square, the lines to be cardinal 
 points. 
 
 President Taylor died in the fall of 1850, and on Decem- 
 ber 2, 1850, President Fillmore, in his message to Congress, 
 said : "I also beg leave to call your attention to the pro- 
 priety of extending at an early day our system, of land laws, 
 with such modifications as may be necessary, over the State 
 of California and the territories of Utah and New Mexico. 
 The mineral lands of California will, of course, form an ex- 
 ception to any general system which may be adopted. Vari- 
 ous methods of disposing of them have been suggested. I 
 
40 History of the Bench and Bar of California. 
 
 was at first inclined to favor the system of leasing, as it 
 seemed to promise the largest revenue to the government, 
 and to afford the best security against monopolies; but fur- 
 ther reflection and our experience in leasing the lead mines 
 and selling lands upon credit, have brought my mind to the 
 conclusion that there would be great difficulty in collecting 
 the rents, and that the relation of debtor and creditor be- 
 tween the citizens and the government would be attended 
 with many mischievous consequences. I therefore recom- 
 mend that instead of retaining the mineral lands under the 
 permanent control of the government, they be divided into 
 small parcels and sold, under such restrictions as to quantity 
 and time as will insure the best price and guard most effec- 
 tually against combinations of capitalists to obtain monopo- 
 lies." The first glimmer of congressional action with reference 
 to the mineral lands in California was by the Act of March 
 3, 1853, "for the survey of public lands in California, the 
 granting of pre-emption rights therein, and for other pur- 
 poses," directing that "none other than township lines shall 
 be surveyed where the lands are mineral or are deemed unfit 
 for cultivation," excluding in express terms "mineral lands" 
 from the pre-emption act of September 4th, 1841, and further 
 interdicting "any person" from obtaining "the benefits of 
 this act by a settlement or location on mineral lands." 
 
 The Secretary of the Interior, Caleb B. Smith, in his 
 annual report for 1861 (The Public Domain, page 318), 
 called the attention of Congress to the subject in the follow- 
 ing words : 
 
 "The valuable and extensive mineral lands owned by the 
 government in California and New Mexico have hitherto 
 produced no revenue. All who chose to do so have been 
 permitted to work them without limitation. It is believed 
 that no other government owning valuable mineral lands has 
 ever refused to avail itself of the opportunity of deriving 
 a revenue from the privilege of mining such lands. They 
 are the property of the whole people, and it would be ob- 
 viously just and proper to require those who reap the ad- 
 
WNIVERSJT 
 
 Historical Sketch oj the Mining Law in California^ 
 
 vantages of mining them to pay a reasonable amount as a 
 consideration of the advantages enjoyed." 
 
 The Commissioner of the General Land Office, in his 
 annual report of 1862 (The Public Domain, page 318), after 
 a review of the area of the precious metal bearing territory 
 and the yield from the mines, gave the following opinion : 
 
 "An immense revenue may readily be obtained by sub- 
 jecting the public mines either to lease under quarterly pay- 
 ments or quarterly tax as seigniorage upon the actual product, 
 under a well-regulated 'and efficient system, which would 
 stimulate the energies of miners and capitalists by securing 
 to such classes an undisputed interest in localities so speci- 
 fied, and, when the conditions as to payment for the usu- 
 fruct are complied with, for unlimited periods, and while 
 effecting this beneficial result to them would relieve the 
 necessities of the Republic." 
 
 In 1863, the Commissioner of the General Land Office 
 again called attention to the mineral lands (The Public Do- 
 main, pages 318-319), recommending legislation for "open- 
 ing the mines and minerals of the public domain, the prop- 
 erty of the nation, to the occupancy of all loyal citizens, sub- 
 ject, as far as compatible with moderate seigniorage, to ex- 
 isting customs and usages, conceding to the discoverer for 
 a small sum a right to one mine, placer or lead (quartz), with 
 a pre-emptive right in the same district to an additional 
 claim, both to be held for the term of one year, for testing 
 the value." Collectors of internal revenue were to be the 
 collectors o>f the royalty. 
 
 In his message of December 6, 1864, President Lincoln 
 called the attention of Congress to the mineral lands : 
 
 "As intimately connected with and promotive of this ma- 
 terial growth of the nation, I ask the attention of Congress 
 to the valuable information and important recommendations 
 relating to the public lands . . . and mineral discov- 
 eries contained in the report of the Secretary of the Interior, 
 which is herewith transmitted." ^ u^x>-~v ^L "tLvJL^^ 
 
 The Commissioner of the GEfferalXandfe^e, in his 
 report for 1865, after referring to the fact that the organiza- 
 
42 History of the Bench and Bar of California. 
 
 tion of a bureau of mining was recommended in his last an- 
 nual report, and stating that there can be no sufficient reason 
 for withholding these mineral lands from the market (The 
 Public Domain, in 1883, page 319), says: 
 
 "Congress has not legislated with a view to securing an 
 income from, the product of the precious metals from the 
 public domain. It is estimated that two or three hundred 
 thousand able-bodied men are engaged in such mining oper- 
 ations on the public lands, without authority of law, who pay 
 nothing to the government for the privilege, or for perma- 
 nent possession of property worth, in many instances, mil- 
 lions to the claimants. 
 
 "The existing financial condition of the nation obviously 
 requires that all our national resources and the product of 
 every industrial pursuit, should contribute to the payment 
 of the public debt. The wisdom of Congress must decide 
 whether the public interest would be better promoted by a 
 sale in fee of these mineral lands, or by raising a revenue 
 from their annual product." 
 
 In the annual report of the Secretary of the Treasury for 
 the year 1865, the substitution of an absolute title in fee 
 for the indefinite possessory rights or claims under which 
 the mines were held by private parties was earnestly recom- 
 mended : 
 
 "The attention of Congress is again called to the impor- 
 tance of early and definite action upon the subject of our 
 mineral lands, in which subject are involved questions not 
 only of revenue, but social questions of a most interesting 
 character. Copartnership relations between the government 
 and the miners will hardly be proposed, and a system of 
 leasehold, (if it were within the constitutional authority of 
 Congress to adopt it, and if it were consistent with the char- 
 acter and genius of our people,) after the lessons which have 
 been taught of its practical results in the lead and copper 
 districts, cannot of course be recommended. 
 
 "After giving the subject as much examination as the 
 constant pressure of official duties would permit, the Secre- 
 tary has come to the conclusion that the best policy to be 
 
Historical Sketch of the Mining Law in California. 43 
 
 pursued with regard to these lands is the one which shall 
 substitute an absolute title in fee for the indefinite possessory 
 rights or claims now asserted by miners. The right to obtain 
 'a fee simple to the soil' would invite to the mineral districts 
 men of character and enterprise; by creating homes (which 
 will not be found where title to property cannot be secured), 
 it would give permanency to. the settlements, and, by the 
 stimulus which ownership always produces, it would result 
 in a thorough and regular development of the mines. 
 
 "A bill for the subdivision and sale of the gold and silver 
 lands of the United States was under consideration by the 
 last Congress, to which attention is respectfully called. If 
 the enactment of this bill should not be deemed expedient, 
 and no satisfactory substitute can be reported for the sale 
 of these lands to the highest bidder, on account of the pos- 
 sessory claims of miners, it will then be important that the 
 policy of extending the principle of preemption to the min- 
 eral districts be considered. It is not material, perhaps, how 
 the end shall be attained, but there can be no question that it 
 is of the highest importance in a financial and social point 
 of view, that ownership of these lands, in limited quantities 
 to each purchaser, should be within the reach of the people 
 of the United States, who may desire to explore and develop 
 them." 
 
 FIRST FEDERAL LEGISLATIVE RECOGNITION. 
 
 No action by Congress even indirectly recognized the j*^' 
 conditions under which the miners had taken possession of 
 the mines until the Act of February 27, 1865, providing for 
 a District and Circuit Court for the district of Nevada, the 
 ninth section of which provides as follows : 
 
 "No possessory action between individuals in any of the 
 courts for the recovery of a mining title, or for damages to 
 any such title, shall be affected by the fact that the paramount 
 title to the land on which such mines lie is in the United 
 States, but each case shall be adjudged by the law of pos- 
 
44 History of the Bench and Bar of California. 
 
 The only other two instances before the general law of 
 1866, where Congress recognized possessory rights or rules 
 of miners, or granted a fee in mineral lands, were local in 
 their character and application; one was section 2 of the 
 Act of May 5, 1866, (14 U. S. Stat. at Large, 43), concern- 
 ing boundaries of the State of Nevada; and the other was 
 the Act of Juy 25, 1866, (14 U. S. Stat. at Large, 242), com- 
 monly known as the Sutro Tunnel Act. 
 
 INTRODUCTION OF LODE LAW OF 1 866. 
 
 On May 28, 1866, Senator Conness, chairman of the com- 
 mittee on mines and mining in the United States Senate, re- 
 ported back to that body Senate bill No. 257, entitled "An 
 Act to regulate the occupation of mineral lands, and to ex- 
 tend the right of pre-emption thereto," and recommended 
 the passage of a substitute.. In his report, he took strong 
 grounds against all measures for the sale of the mines to 
 the highest bidders and for the taxation of those engaged 
 in working them. He claimed that it was the first duty of 
 Congress to set at rest all doubts and apprehensions affect- 
 ing mining property by the promulgation of a policy which 
 should give full and complete protection to all existing pos- 
 sessory rights upon liberal conditions, with full and complete 
 legal guarantees, and which should provide the most gener- 
 ous conditions looking toward further explorations and de- 
 velopments. He especially commends the features of the 
 bill recognizing the rules and regulations of the miners : 
 
 "Another feature of the bill recommended," says the re- 
 port, "is, that it adopts the rules and regulations of the 
 miners in the mining dstricts where the same are not in 
 conflict with the laws of the United States. This renders 
 secure all existing rights of property, and will prove at once 
 a just and popular feature of the new policy. Those 'rules 
 and regulations' are well understood, and form the basis of 
 the present admirable system in the mining regions; arising 
 out of necessity, they became the means adopted by the peo- 
 ple themselves for establishing just protection to all. 
 
Historical Sketch of the Mining Law in California. 45 
 
 "In the absence of legislation and statute law, the local 
 courts, beginning with California, recognize those 'rules and 
 regulations,' the central idea of which was priority of posses- 
 sion, and have given to the country rules of decision, so 
 equitable as to be commanding in their national justice, and 
 to have secured universal approbation. The California re- 
 ports will compare favorably, in this respect, with the history 
 of jurisprudence in any part of the world. Thus the miners' 
 'rules and regulations' are not only well understood, but have 
 been construed and adjudicated for now nearly a quarter 
 of a century. It will be readily seen how essential it is that 
 this great system, established by the people in their primary 
 capacities, and evidencing by the highest possible testimony, 
 the peculiar genius of the American people for founding em- 
 pire and establishing order, shall be preserved and affirmed. 
 Popular sovereignty is here displayed in one of its grandest 
 aspects and simply invites us not to destroy, but to put upon 
 it the stamp of national power and unquestioned authority." 
 
 LEGISLATIVE HISTORY OF THE BILL. 
 
 The legislative history of the passage of this bill, which, 
 after certain amendments went upon the statute-book as 
 the general lode mining law of July 26, 1866, under a very 
 anomalous title, is the history of a battle royal in the 'favor 
 of the lasting interests of the Western gold-producing 
 regions. I have taken the account of it from Yale's valua- 
 ble work on "Mining Claims and Water Rights," pages 10 
 to 12, but have not had the opportunity to verify from 
 the original official records the account there given. 
 
 "The miners of California," says Mr. Yale, writing in 
 1867, "and the States and Territories adjacent thereto, have 
 but a very inadequate idea of the imminent peril in which 
 the pursuit in which they are engaged was placed at the 
 commencement of the Thirty-ninth Congress. Two years 
 ago there was a strong disposition in Congress and the East, 
 generally, to make such a disposition of the mines as would 
 
46 History of the Bench and Bar of California. 
 
 pay the national debt. The idea of relieving the nation of 
 the payment of the enormous taxes which the war had sad- 
 dled upon us by the sale of the mines in the far distant Pacific 
 Slope, about which few people here have any knowledge 
 whatever, was the most popular that was perhaps ever started 
 compelling other people to liquidate our obligations, has 
 been in all ages and in all nations a highly comfortable 
 and popular proceeding. There were some at the time 
 of which I write who would not be satisfied with the sale of 
 the mines. They held that even after the sale the govern- 
 ment should be made a sharer in the proceeds realized from 
 them. The first bill on the subject was introduced in the 
 Senate by Mr. Sherman, of Ohio, and in the House by Mr. 
 Julian, of Indiana. Both of these bills contained the most 
 odious features. Sherman's bill went to the committee on 
 public lands, of which Mr. Stewart was a member. After 
 much consideration, it was understood that the committee 
 would report adversely. Julian's bill received a much more 
 favorable consideration in the House. In fact, the House 
 went so far as to pass a resolution endorsing legislation sub- 
 stantially of the character contemplated in Julian's bill. 
 After much canvassing, Mr. Conness and Mr. Stewart came 
 to the conclusion that it was no longer safe to act on the 
 defensive, and that it was necessary to determine what leg- 
 islation would be acceptable, and to make a bold move to 
 obtain it. The Secretary of the Treasury was then one of 
 the strongest advocates of the sale of the mines, and ap- 
 peared to be under the impression that it would yield a large 
 revenue. The movement thus far had been encouraged by 
 him, and it was thought that a partial success of his views 
 would be more satisfactory to him than an entire defeat. 
 Mr. Conness accordingly suggested to him to have a bill 
 prepared in his department, which would avoid the odious 
 provisions of the other two propositions, and get some 
 Senator to introduce it, assuring him that a liberal measure 
 would receive the favorable consideration of the Pacific del- 
 egation. The result was that the secretary had prepared the 
 
Historical Sketch of the Mining Law in California. 47 
 
 second bill, introduced by Mr. Sherman, which was a great 
 gain on the first bill. This bill went to the committee on 
 mines, of which Mr. Conness was chairman and Mr. Stewart 
 a member. After much discussion, these two Senators were 
 appointed a committee to draft a substitute, which, after 
 several weeks of close study, resulted in the reporting of a 
 bill substantially the same as the one which is now the law. 
 At this time it was not expected that it would be possible 
 to do more than to get a report of the committee in favor of 
 the measure, which it was thought would be an advanced 
 affirmative position, from which the granting, selling or 
 other calamitous disposition of the mines could be success- 
 fully withstood. Upon making the report, however, it was 
 determined to put on the boldest front possible, and try 
 and pass it through the Senate. It came up on the i8th 
 day of June, 1866, and at first had but two warm advocates 
 its authors. The discussion ' occupied the entire day, Mr. 
 Stewart supporting the bill. Mr. McDougall first favored 
 the bill, and then made a speech against it. Mr. Williams, 
 of Oregon, was opposed to all bills of the kind. Nesmith 
 contented himself with voting against it. Nye opposed it, 
 and said it would be good policy to let the~"wKole subject 
 alone, and not legislate upon it at all. This speech left his 
 real position somewhat indefinite. In the course of the 
 debate, however, it became manifest from the remarks of 
 Senators Sherman, Buckalew and Hendricks, that the real 
 merits of the bill were beginning to be appreciated by the 
 Senate. The two authors of the bill congratulated them- 
 selves on this sign of progress, and resolved to try again. 
 It was called up again on the 28th by Mr. Stewart, and was 
 debated by Senators Stewart, Conness, Sherman, Hendricks 
 and others. After being amended slightly by Mr. Stewart, the 
 bill passed the Senate. When it was first introduced, the 
 bill had no friends in the House, but after it passed the 
 Senate some of the Pacific delegation began to regard it 
 favorably. It should have gone in the House to the com- 
 mittee on mines, of which Mr. Higby was chairman; but Mr. 
 
48 History of the Bench and Bar of California. 
 
 Julian, who is an old member, and was then chairman of the 
 committee on public lands, seized on the bill at once, and 
 had it transferred to his committee. Then the struggle came 
 to get it out of that committee. Mr. Stewart addressed 
 himself to the members of it, and got every one of them but 
 Julian, but he was intractable. He wanted his bill to go 
 first, and would not let this supersede it. The House, too, 
 was canvassed, and was found to be favorably disposed, but 
 there was no way of getting at the bill. In the meantime, 
 Higby had passed a bill from the committee on mines in 
 regard to ditches. It contained only three provisions, and 
 bore no resemblance to the bill in question, but it related 
 to the same subject. When this bill came into the Senate, 
 the mining bill was tacked on as a substitute, and was passed. 
 It was then sent back to the House, and went on the Speak- 
 er's table. In that condition it required a majority to refer 
 it. To get this majority, Julian exerted all his strength, but 
 failed. The bill was passed in the House without amend- 
 ment, and became a law. This accounts for its being entitled 
 'An Act granting the right of way to ditch and canal-owners 
 through the public lands, and for other purposes.' I have 
 been particular about hunting up all the facts bearing upon 
 this struggle, for the reason that the bill evolved from it is 
 the most important, so far as California is concerned, that 
 has ever been passed by Congress. . . . The result 
 of the whole fight is the grant of all the mines to the miners, 
 with some wholesome regulations as to the manner of hold- 
 ing and working them, which are not in conflict with the 
 existing mining laws, but simply gave uniformity and con- 
 sistency to the whole system. The escape from entire con- 
 fiscation was much more narrow than the good people of 
 California ever supposed. If either of the bills originally 
 introduced had been passed, the Pacific States and Terri- 
 tories would have received a blow from which they would 
 never have recovered. The government could only have 
 receded after the most irreparable and widespread damage 
 had been done." 
 
Historical Sketch of the Mining Law in California. 49 
 
 The passage of this law was heralded by the press of the 
 whole Pacific slope as the greatest legislative boon conferred 
 upon it by Congress since the admission of California into 
 the Union. The passage of the bill certainly marked an 
 epoch in the history of the State. Probably the most just 
 and sensible comment upon it is that of the San Francisco 
 Bulletin in its issue of July 3ist: 
 
 "No measure of equal consequence to the material and, 
 we may add, to the moral interests of the Pacific States, 
 was ever before passed by Congress. * * *" The pas- 
 sage of the bill, whatever defects it may develop when more 
 critically examined and enforced, marks a change in the 
 public land policy equal in importance to the adoption of 
 the pre-emption and homestead system; indeed, its practical 
 effect will be to extend the now unquestionable benefits of 
 that system to the vast field of the mineral regions which 
 have hitherto been largely excluded from those benefits. 
 * * * It was one of the greatest evils of the negative 
 policy of Congress regarding the mineral lands that, while 
 it prevented our own people from acquiring titles to them, 
 it opened their treasures freely to the transient adventurers 
 from abroad, who only came to take them away without 
 leaving any equivalent. As a measure calculated to give 
 homogenity and fixedness to our population, security to 
 titles, and encouragement to capital and labor, the new min- 
 ing law is full of promise. We believe it will have the effect 
 also to stimulate exploration and production in the mining 
 districts. Its good features are apparent; its bad ones will 
 appear in time and can be easily remedied." 
 
 LODE LAW OF 1866. 
 
 The most salient features of the Lode Law of 1866 are 
 contaned in its first two sections: 
 
 "Sec. i. That the mineral lands of the public domain, both 
 surveyed and unsurveyed, are hereby declared to be free and 
 open to exploration and occupation by all citizens of the 
 United States, and those who have declared their intentions 
 to become citizens, subject to such regulations as may be pre- 
 
50 History of the Bench and Bar of California. 
 
 scribed by law, and subject also to the local customs or rules 
 of miners in the several mining districts, so far as the same 
 may not be in conflict with the laws of the United States. 
 
 "Sec. 2. That whenever any person, or association of per- 
 sons claim a vein or lode of quartz, or other rock in place, 
 bearing, gold, silver, cinnabar, or copper, having previously 
 occupied and improved the same according to the local cus- 
 toms or rules of miners, in the district where the same is sit- 
 uated, and having expended in actual labor and improvements 
 thereon an amount of not less than one thousand dollars, 
 and in regard to whose possession there is no controversy or 
 opposing claim, it shall and. may be lawful for said claimant, 
 or association of claimants, to file in the local land office a 
 diagram of the same, so extended laterally or otherwise as 
 to conform to the local laws, customs and rules of miners, 
 and to enter such tract and receive a patent therefor, granting 
 such mine, together with the right to follow such vein or 
 lode, with its dips, angles, and variations, to any depth, al- 
 though it may enter the land adjoining, which land adjoining 
 shall be sold subject to this condition." 
 
 The remaining sections, for the most part, prescribe 
 methods for giving effect to the -above, and in Section 4 it 
 is provided that "the surveyor-general may, in extending 
 the surveys, vary the same from rectangular form to suit 
 the circumstances of the country and the local rules, laws and 
 customs of miners; provided, that no location hereafter made 
 shall exceed two hundred feet in length along the vein for 
 each locator, with an additional cairn for discovery to the 
 discoverer of the lode, with right to follow such vein to any 
 depth, with its dips, variations and angles, together with a 
 reasonable quantity of surface for the convenient working 
 . of the same, as fixed by the local rules; and provided, further, 
 that no person may make more than one location on the 
 same ode, and no more than three thousand feet shall be 
 taken in any one claim by any association of persons." 
 
 This law of 1866 was more important as marking an era 
 in the land policy of the government than as an effective 
 means of settling mining titles. In fact, we are sometimes 
 tempted to believe that was the only good that came of it. 
 It banished forever the specters of governmental licenses, 
 7 leases, taxes on industry, royalties, and confiscation. The 
 miner drew a long breath. Where before he had been legally 
 a trespasser he was now free to explore and occupy the 
 public domain and had a free right to mine. All the rights 
 
Historical Sketch of the Mining Law in California. 51 
 
 which he had acquired under his system of local rules, regu- 
 lations and customs were explicitly recognized as property, 
 as the possessory right to mine, and were confirmed to him. 
 The local rules, regulations and customs which limited, de- 
 fined and accompanied all the rights he claimed were 
 adopted. And he could, whenever he desired, transform this 
 possessory right to mine (except as to placers) into a per- 
 petual estate in the mineral lodes themselves, together with 
 sufficient land, for the convenient working thereof. 
 
 The method provided for obtaining a patent was simple 
 enough. No provision, however, was made as to how a min- 
 ing claim should be located, no uniform rule established 
 as to what work should be done to hold possession of a claim. 
 Those matters, as well as the amount of surface ground, were 
 to be fixed by the local rules and customs. The extra-lateral 
 right was given without mention of top of apex of the vein 
 or lode. No mention was made of end lines. Were any 
 needed, and, if so, how must they be drawn? Was there 
 any relation between the surface granted for working and 
 the boundaries of the lode? If patent could issue for only 
 one lode, what comprised the lode? Ignorance of geology 
 sometimes on the part of the land department, sometimes 
 on the part of the judiciary, and sometimes on the part of 
 the miner, had more to do with the confusion that came of 
 the law of 1866 than perhaps any other cause. 
 
 ONE-LODE AND MANY-LODE THEORIES. 
 
 What is the lode? The fights between the champions of 
 the one-lode theory and the many-lode theory, both before 
 and after the passage of the act of 1866, have caused the 
 expenditure of millions of dollars in the most vexations liti- 
 gation. The incorporation of that one word "lode" into the 
 statute of 1866 brought with it all the undetermined con- 
 troversies concerning it. One of the main sources of the 
 lawsuits was the doubt whether the Comstock lode had at 
 its side a number of branches, or whether it was one of a 
 series of independent and parallel lodes within a distance 
 
52 History of the Bench and Bar of California. 
 
 of two hundred yards. The one-lode theory finally pre- 
 vailed. The definition of a lode given in the Eureka-Rich- 
 mond case (4 Sawy. 302), a case involving the construction 
 of rights accruing under the law of 1866, is as follows: "We 
 are of the opinion that the term [lode] as used in the acts 
 of Congress is applicable to any zone or belt of mineralized 
 rock lying within boundaries clearly separating it from the 
 
 7 neighboring rock. It includes * * * all deposits of 
 mineral matter found through a mineralized zone, or belt, 
 coming- from the same source, impressed with the same 
 forms, and appearing to have been created by the same pro- 
 cess." When the width of the Mother Lode of California 
 varies from that of a knife-blade to eight hundred feet, and 
 more, we realize what kind of an inconstant variable instead 
 of a straight line a surveyor has to deal with, something of 
 which the land department did not seem to have had the 
 slightest conception. 
 
 Under section three of the act no patent could in any 
 case issue for more than one vein or lode. As there was 
 nothing in the statute to prevent another from locating 
 within a certain distance of the original locator, there was 
 no legal method of preventing the presence of undesirable 
 neighbors. A blackmailer might locate an adjacent outcrop 
 of the same lode, and the original locator might have upon 
 his shoulders a suit involving all the horrors of a one-lode 
 and many-lode contest. The only alternative would be to 
 buy out the subsequent locator. The original locator might, 
 through ill-luck, locate some spur of a valuable lode and 
 thus attract to make a location in his immediate neighbor- 
 hood some one who would otherwise never dream of locat- 
 ing there. The latter might show by underground workings 
 his to be the lode proper and the original location only a 
 spur, and then, under some facile proof of local rule or cus- 
 tom giving him all "spurs" as well as dips, angles and varia- 
 tions, oust the prospector but for whose discovery he would 
 himself never have located. There being no provision for 
 
 -T side lines, this clause of the law of 1866 was also an open 
 
Historical Sketch of the Mining Law in California. 53 
 
 invitation to men with wealth and without conscience to 
 locate in the immediate neighborhood alongside of a valuable 
 ledge located by a man who was poor, offer him their own 
 price for his claim, and, if he refused to accept, deliberately 
 sink a shaft more or less vertical to take what did not belong 
 to them, and while they were enriching themselves offer to 
 give up the ledge upon' the geological proof of its owner- 
 ship which the law required and which they knew was utterly 
 beyond the financial power of their victim to supply. 
 
 RELATION OF SURFACE TO LODE. 
 
 The law of 1866 intended to carry out the idea of the 
 early rules and customs that the lode was the principal thing 
 and the surface a mere incident. It provided, however, that 
 the patent should issue, among other things, "upon the pay- 
 ment to the proper officer of five dollars per acre." That 
 word "acre" is the first shadow of the cloud no bigger than 
 a man's hand. If the statute had prescribed that the lode 
 was to be a gift, and that five dollars an acre must be paid 
 for any incident surface ground, or if it had placed a fixed 
 price upon every so many linear feet of lode, together with 
 so many dollars an acre on any incident surface ground, it 
 would have disclosed a more conscious purpose to keep the 
 two properties absolutely distinct. But to prescribe that 
 the mine should be paid for at five dollars an acre was to 
 bring an English common-law habit of thought unnoticed 
 into a strange environment. Inasmuch as there was no rela- 
 tionship whatever between the surface and the dimensions 
 of the lode, most of the district rules had no provisions what- 
 ever for the size of the tract of surface land to be used. By 
 custom or rules in most districts the miner simply used what 
 surface he needed and claimed a possessory right to only so 
 much as he actually occupied. The land department hon- 
 estly made an attempt to carry out this provision of the 
 law, and in doing so, while itself showing an ignorance of 
 the topography of the country in its instructions concerning 
 end lines, laid down a rule for the computaton of areas that 
 
54 History of the Bench and Bar of California. 
 
 would have required every deputy mining surveyor to be an 
 expert geologist. The instructions provided for the estab- 
 lishment of end lines at right angles to the ascertained or 
 apparent general course of the lode, and permitted the ap- 
 plicant to apply for patent to a lode without any inclosing 
 surface, the estimated quantity of superficial area in such 
 cases being equal to a horizontal plane, bounded by the given 
 end lines and the walls on the side of the lode. Why at right 
 angles, gentlemen? Simply to facilitate an arithmetical 
 calculation. 
 
 As a result of these instructions, patents were issued de- 
 scribing a small area of surface, which was occupied by the 
 miner in connection with his improvements, within which 
 area a portion of the lode was included, the remainder of 
 linear feet claimed being indicated by a straight line extend- 
 ing beyond the defined surface and in the direction and to the 
 extent claimed. The patents issued for the Idaho mine at 
 Grass Valley, and the Maximillian mine at Sutter Creek 
 are examples. The patents, like the statute, did not provide 
 for bounding planes at the end of the lode, they simply 
 ignored the difficulty. When the courts of last resort came 
 to construe these patents, however, they ignored the jealousy 
 with which the miner always divorced property in the lode 
 from any relation to the measurements of surface areas occu- 
 pied, ruled that both end and side surface lines were contem- 
 plated by the provisions of the law of 1866, and that the 
 miner under the patent was not permitted to follow the vein 
 on its strike beyond the surface boundaries. The cloud had 
 already grown considerably larger than a man's hand. Under 
 this ruling the direction of the surface end lines became of 
 enormous interest to the locator, because through them here- 
 after were to be drawn his end-line boundary planes. The 
 miner had been learning something of lode mining himself 
 in the meantime, and had come to realize the extreme impor- 
 tance to him of the direction of those end-line boundary 
 planes as the only means of saving the "rake" of his ore 
 shoots, while here was a land department placidly directing 
 
Historical Sketch of the Mining Law in California. 55 
 
 its surveyors to establish end lines at right angles to the 
 lode, in seeming utter geologic ignorance of the very exist- 
 ence of rake or ore-shoot. Under instructions from the land 
 department, and, in many instances, through the ignorance 
 of the miners themselves, patents were under the law of 1866 
 issued in many a fantastic shape, from that of a horseshoe 
 to that of an isosceles triangle, with heroic attempts in many 
 instances to draw the end lines not simply at right angles to 
 the general course of the lode, but at right angles to the local 
 trend at the respective- ends of the linear measurement on 
 the lode. In the case of such patents tHe resultant extreme 
 convergence, or unthinkable divergence of the end lines pro- 
 duced constrained the courts, although they granted extra- 
 lateral rights in all other ordinary cases of divergence, to deny 
 extra-lateral rights altogether. The same result took place 
 where the miner, through mistake, as in the case of the 
 Flagstaff mine in Utah, made his location across, instead 
 of with, the strike of his lode. 
 
 Under the decisions of the courts, the extent of the sur- 
 face tract became of an importance never dreamed of at the 
 time of the passage of the act. It is idle to speculate now 
 whether it was ever necessary at all on the part of the courts 
 to establish any relation between the surface and the extent 
 of the lode in 1 order to give the miner the full benefit of the 
 terms of the act. For good or for evil, the judicial legisla- 
 tion had been done. It is very doubtful whether the signifi- 
 cance of what had been done was fully realized at the time. 
 The size of the tract was still, however, under the terms of 
 the act, dependent upon the local rules and customs, and, 
 under the circumstances, the very facility with which these 
 could be changed or wiped out altogether, which had been 
 one of their main recommendations in the days of shifting 
 placer and early lode mining, now became one of the chief 
 dangers. Customs could be established to affect the very 
 size of the tracts asked to be patented. All provisions about 
 how a mining claim could be located at all were still depend- 
 ent on these transient and unstable rules and customs. It 
 
56 History of the Bench and Bar of California. 
 
 was one thing to recognize by law the locations already made 
 and the rights already accrued under these rules and cus- 
 toms operating naturally, but it was quite another thing to 
 make them the basis for future locations to be recognized 
 by the law. "What are these mining customs to which the 
 law pays such sweeping respect?" bursts out Dr. Raymond 
 in 1869 (Mineral Resources, page 221). 'They are edicts 
 passed at twenty-four hours' notice by mass meetings of 
 from five to five hundred men; it requires no more formali- 
 ties to abolish or amend them than it did to make them a 
 notice posted on a door, a 'mass meeting' next day, and the 
 thing is done. The records of titles are kept by an officer 
 called the recorder, not known to the law, nor answerable 
 for malfeasance in office, except that if he were known to 
 tamper with the books in his charge his life might be taken 
 by the party wronged. The records are kept in a few dis- 
 tricts in fire-proof offices and in suitable form, but more fre- 
 quently in small blank-books, pocket-books, or scraps of 
 paper, stowed away under the counter or behind the flour- 
 barrel or the stove of a store or bar-room." 
 
 NO UNIFORMITY OF CONDITIONS OF POSSESSION. 
 
 Moreover, there was no uniformity of the conditions 
 upon which possessory titles depended, especially in the mat- 
 ter of the necessary work to be done to hold the claim. This 
 again was all made to depend on the local rules and customs, 
 and they were, upon this subject, very lax and of all varieties. 
 The report of a committee made to the Senate of the State 
 of Nevada on February 23, 1866, as accurately described the 
 situation in California as that in Nevada: 
 
 "In one district the work required to be done to hold a 
 claim is nominal; in another exorbitant; in another abol- 
 ished; in another adjourned from year to year. A stran- 
 ger, seeking to ascertain the law, is surprised to learn 
 that there is no satisfactory public record to which he can 
 refer; no public officer to whom he may apply who is under 
 any bond or obligation to furnish him information or guar- 
 
Historical Sketch of the Mining Law in California. 57 
 
 antee its authenticity. Often in the newer districts, he finds 
 there is not the semblance of a code, but a simple resolution, 
 adopting a code of some other district, which may be a 
 hundred miles distant." 
 
 PLACER LAW OF JULY 9, 1870. 
 
 Obviously, the law of 1866 needed amending in many 
 particulars, if it was to be of any other practical good than 
 the declaration of a governmental policy. There was in the 
 statute no provision providing for the patenting of placer 
 claims. The first amendment was the statute of July 9, 1870, 
 providing for the patenting of placer claims. This amend- 
 ment consisted in adding six new sections to the Act of, 
 July 26, 1866. The first section of the amendment contains 
 the pith of the new Act : 
 
 'That claims usually called 'placers/ including all forms 
 of deposit, excepting veins of quartz, or other rock in place, 
 shall be subject to entry and patent under this act, under 
 like circumstances and conditions, and upon similar proceed- 
 ings as are provided for vein or lode claims; provided, .that 
 where the lands have been previously surveyed by the United 
 States, the entry, in its exterior limits, shall conform to the 
 legal subdivision of the public lands, no further survey or 
 plat in such case being required, and the lands may be paid 
 for at the rate of two dollars and fifty cents per acre; pro- 
 vided, further, that legal subdivisions of forty acres may be 
 subdivided into ten-acre tracts ; and that two or more persons, 
 or association of persons, having contiguous claims* of any 
 size, although such claims may be less than ten acres each, 
 may make joint entrv thereof; and, provided, further, that no 
 location of a placer claim hereafter made, shall exceed one 
 hundred and sixty acres for any one person or association . 
 of persons, which location shall conform to the United States 
 surveys; and nothing in this section contained shall* defeat 
 or impair any bona-fide pre-emption or homestead claim upon 
 agricultural lands, or authorize the sale of the improvements 
 of any bona fide settler to any purchaser." 
 
 The further sections of the amendment simply provide 
 for the effective carrying out of these purposes. The land 
 is patented under the "square location" theory, including 
 all contained within planes drawn vertically through the ex- 
 terior boundaries. No difficulties of construction have ever 
 been experienced under this law, or any of its amendments. 
 (The provisions of this amendment were by the Federal Act 
 of February u, 1897, expressly extended over public lands 
 
58 History of the Bench and Bar of California, 
 
 containing petroleum and other mineral oils, in order to 
 overcome the incorrect rulings of Secretary of the Interior 
 Hoke Smith, excluding such lands from its operation). 
 
 LAW OF MAY IO, 1872. 
 
 There was no amendment of the Lode Law of 1866 with 
 reference to lode claims, however, until the general mining 
 law of May 10, 1872, entitled "An Act to promote the devel- 
 opment of the mining resources of the United States." This 
 statute re-enacted, with. slight change, the provisions con- 
 cerning placer mines. The idea sleeping in that inadvertent 
 word "acre" had borne fruit, however, and in the matter of 
 lode claims the new law made a radical departure. The new 
 legislation was afterwards, 1878, codified in sections 2318 to 
 2346 inclusive, of the Revised Statutes, and in that form it 
 constitutes the present mining law of the United States with 
 reference to the public domain. 
 
 The salient features of the law are contained in three 
 sections and a portion of a fourth : 
 
 "Sec. 2319. All valuable mineral deposits in lands belong- 
 ing to the United States, both surveyed and unsurveyed, are 
 hereby declared to be free and open to exploration and pur- 
 chase, and the lands in which they are found to occupation 
 and purchase, by citizens of the United States and those who 
 have declared their intention to become such, under regula- 
 tions prescribed by law, and according to the local customs 
 or rules of miners in the several mining districts, so far as 
 the same are applicable and not inconsistent with the laws of 
 the United States. 
 
 "Sec. 2320. Mining claims upon veins or lodes of quartz 
 or other rock in place bearing gold, silver, cinnabar, lead, 
 tin, copper or other valuable deposits, heretofore located, shall 
 be governed as to length along the vein or lode by the cus- 
 toms, regulations, and laws in force at the date of their lo- 
 cation. A mining claim located after the tenth of May, eigh- 
 teen hundred and seventy-two, whether located by one or more 
 persons, may equal, but shall not exceed, one thousand five 
 hundred feet in length along the vein or lode ; but no location 
 of a mining claim shall be made until the discovery of the 
 vein or lode within the limits of the claim located. No claim 
 shall extend more than three hundred feet on each side of the 
 middle of the vein at the surface, nor shall any claim be lim- 
 ited by any mining regulation to less than twenty-five feet on 
 each side of the middle of the vein at the surface, except where 
 adverse rights existing on the tenth day of May, eighteen hun- 
 dred and seventy-two, render such limitation necessary. The 
 end lines of each claim shall be parallel to each other. 
 
Historical Sketch of the Mining Law in California. 59 
 
 "Sec. 2322. The locators of all mining locations heretofore 
 made or which shall hereafter be made, on any mineral vein, 
 lode or ledge, situated on the public domain, their heirs, and 
 assigns, where no adverse claim exists on the tenth day of May, 
 eighteen hundred and seventy-two, so long as they comply with 
 the laws of the United States, and with State, territorial 
 and local regulations not in conflict with the laws of the United 
 States governing their possessory title, shall have the exclusive 
 right of possession and enjoyment of all the surface included 
 within the lines of their locations, and of all veins, lodes, 
 and ledges throughout their entire depth, the top or apex 
 of which lies inside of such surface lines extended downward 
 vertically, although such veins, lodes, or ledges may so far 
 depart from a perpendicular in their course downward as to 
 extend outside the vertical side lines of such surface locations. 
 But their right of possession to such outside parts of such 
 veins or ledges shall be confined to such portions thereof as 
 lie between vertical planes drawn downward as above de- 
 scribed, through the end lines of their locations, so continued 
 in their own direction that such planes will intersect such ex- 
 terior parts of such veins or ledges. And nothing in this 
 section shall authorize the locator or possessor of a vein or 
 lode which extends in its downward course beyond the vertical 
 lines of his claim to enter upon the surface of a claim owned 
 or possessed by another. 
 
 "Sep. 2324. The miners of each mining district may make 
 regulations not in conflict with the laws of the United States, 
 or with the laws of the State or territory in which the dis- 
 trict is situated, governing the location, manner of record- 
 ing, amount of work necessary to hold possession of a min- 
 ing claim, subject to the following requirements: The loca- 
 tion must be distinctly marked on the ground so that its 
 boundaries can be readily traced. All records of mining 
 claims hereafter made shall contain the name or names of 
 the locators, the date of the location, and such a description of 
 the claim or claims located by reference to some natural ob- 
 ject or permanent monument as will identify the claim. On 
 each claim located after the tenth day of May, eighteen hun- 
 dred and seventy-two, and until a patent has been issued 
 therefor, not less than one hundred dollars' worth of labor 
 shall be performed or improvements made during each 
 year. . . . : 
 
 RADICAL DEPARTURE FROM LAW OF 1 866. 
 
 The expressions "all valuable mineral deposits and the 
 lands in which they are found." in section 2319, and "all the 
 surface included within the lines of their locations," and of 
 u all veins, lodes, and ledges throughout their entire depth, 
 the top or apex of which lies inside of such surface lines 
 extended downward vertically," in section 2322, disclose the 
 radical change, which leaves no question of the relationship 
 between surface and extent of lode, but in express language 
 
60 History of the Bench and Bar of California. 
 
 of the statute rivets them together. It is not merely that 
 "lead, tin or other valuable deposits" are added to the list 
 of minerals; that the maximum length of vein or lode is 1500 
 linear feet, and the maximum width of surface 300 feet on 
 each side of the middle of the vein; that the location must be 
 marked on the ground so that it can be readily traced; that 
 it is prescribed what the record shall contain when 
 recording is required under the local rules; that not less than 
 one hundred dollars' worth of labor shall be performed, or 
 improvements made on each claim each year. These 
 changes are important, and cured many of the troubles 
 encountered under the law of 1866, but their significance 
 is not to be compared with that introduced by the doctrine 
 of apex. There was now no longer any question of the 
 absolute dependence of the extent of the lode upon the 
 conformation of the surface lines. The language is (section 
 2320) : ''No claim shall extend more than three hundred 
 feet on each side of the center of the vein," not "no inciden- 
 tal surface shall extend," etc. "The end lines of each claim 
 shall be parallel to each other," and the courts have since 
 decided that the miner would lose all extra-lateral rights of 
 the lode on the dip unless the end lines are parallel. That 
 settled the question of a relation between surface and lode. 
 There could be no mistaking the size of the cloud now. 
 
 By this law all patentees of one-lode under the law of 
 i#66 became the owners of all other lodes within the surface 
 area of their claims, with the same extra-lateral rights as to 
 such adjacent lodes as could have been acquired under the 
 new law. The danger of blackmail, through lateral locations, 
 too, was removed to a distance of 300 feet. What, however, 
 were to be the rights of a locator on a lode whose width was 
 actually more than the six hundred feet allowed as the surface 
 width of a claim? Is the adherence to the doctrine of the rela- 
 tion of surface area to the lode to be so absolute as to actu- 
 ally shut off a portion of the lode itself, or in such case 
 is the effect of the courses of the boundary lines to be limited 
 simply to the question of the end-line planes? 
 
Historical Sketch of the Mining Law in California. 61 
 
 THE LAW OF THE APEX. 
 
 I am not going to discuss the doctrine of the apex or 
 attempt to point out any great number of new and important 
 'questions that have come up, and must yet necessarily come 
 up for construction under it, arising out of the geological 
 and other conditions that will have to be met. That would 
 mean an exposition of the law, instead of a history of it. 
 A full discussion of the law itself will be found in Dr. R. W. 
 Raymond's masterly monograph on "The Law of the Apex," 
 and Judge Curtis H. Lindley's conscientious and scholarly 
 treatise on "The Law of Mines." I am trying to point out 
 the historical fact that there was a change, and the historical 
 significance of that change. In other words, to obtain any 
 rights under the law of 1872, a prospector must not simply 
 find or attempt to locate a lode. The apex of that lode must 
 be within his surface boundaries, or he gets no rights what- 
 ever, and whenever, through his mistake, no matter how nat- 
 ural, the apex crosses any of the surface boundaries, he loses 
 rights that he would otherwise own. The position of the 
 apex with reference to the bounding lines becomes the touch- 
 stone of almost all his rights. 
 
 In view of these facts, it will not be without profit to note 
 some of the immediate difficulties that were inevitable from 
 the working of the law, when it is remembered that in the 
 early workings of a lode it is, in many instances, impossible 
 at once to determine the top or apex, course or strike, or 
 angle or direction of the dip, of the lode. The apex, as 
 intended to be understood in the Revised Statutes, is, 
 roughly speaking, the end or edge of the vein on or nearest 
 the surface. In the ideal lode the locator would have no 
 trouble, provided he get his apex inside his boundary lines 
 and his side lines follow the general course of the lode. This 
 general course, however, he cannot always determine ex- 
 actly, and, under the short time allowed for locating, espe- 
 cially if he must hurry to head off other possible locators, he 
 must often take for granted. The apices of a narrow lode, 
 especially in certain conformations of country, often deviate 
 
62 History of the Bench and Bar of California. 
 
 considerably from a straight line, and it is often easy at first 
 to mistake their course, which is such as to pass beyond the 
 side lines of a claim. We would then not have to look far 
 for complications. 
 
 SOME PROBLEMS OF LAW OF APEX. 
 
 Chief Justice W. H. Beatty, than whom no one in the 
 United States is more entitled to be listened to with the 
 highest respect in questions of this kind, early suggested a 
 number of such difficulties, many of which were not long 
 in coming. Writing upon this point in his testimony before 
 the public lands commission, November 21, 1879, while still 
 Chief Justice of Nevada, he said (Report, page 402) : 
 
 "Mining locators are granted the exclusive rights of pos- 
 session of their surface claims, and all veins, etc., the tops 
 or apexes of which lie inside of their surface lines extended 
 downward vertically, although such veins in their downward 
 course may extend beyond the side lines of the surface 
 claim. No locator, however, has the right to go outside of 
 vertical planes conforming to his end lines, notwithstanding 
 the true dip of his lode would carry him beyond. In every 
 patent of mining ground a right is reserved to other locators 
 to follow their lodes on their downward course into the , 
 ground SO 1 conveyed. (Revised Statutes, section 2322.) 
 
 "This being the law, the annexed diagram illustrates a 
 few of the numberless difficulties that will occur in applying 
 it to surface locations that have not been made in exact con- 
 formiity to the true and ultimately ascertained course of the 
 lode. The line O P represents the course of a lode extend- 
 ing due north and south, and is supposed to be drawn be- 
 tween its extremities at the depth of a thousand feet from the 
 surface. The dip of the lode is to the west, and the outcrop 
 appears at two points, x and 3;. The top of the apex of the 
 lode where it does not reach the surface is indicated by the 
 dotted line connecting x ad y and extending- beyond in 
 either direction. Long before any better means exist of 
 ascertaining the true course of the lode than is furnished by 
 
Historical Sketch of the Mining Law in California. 63 
 
 Jforth. 
 
64 History of the Bench and Bar of California. 
 
 its outcrop, A makes a location at x marked a a a a, and B 
 makes a location at y marked b b b b. In due time their 
 claims are patented. Then C discovers the lode at 2 and 
 makes his location c c c c, and later still D and E make 
 locations as indicated, north of A and south of B, respect- 
 ively. The straight dotted lines A a A 'm B6 and B 'b indi- 
 cate the sections of the lode the tops or apexes of which 
 are inside of the surface lines of A, B and C, respectively. 
 The dotted lines d a and e a and f b and g b show the sec- 
 tions of the lode which are included by vertical planes con- 
 forming to the end lines of A and B respectively. 
 
 "Now come the difficulties. According to my definition 
 of top or apex of a lode, and under what appears to me the 
 only admissible construction of the law, C, although he 
 locates after the patent to A and B, is nevertheless the owner 
 of all that section of the lode included by the lines A 'm and 
 B b, indefinitely prolonged, notwithstanding it is mainly 
 included from the very top in the prolongation of the end 
 lines of A and B. C is the owner because he has located the 
 top or apex, and A and B are not owners for the reason that 
 their claims do not include the top or apex of this section. 
 Supposing the lode to be valuable, it can readily be seen 
 what controversies will arise as the progress of development 
 begins to show the true course of the vein, and enlightens 
 the parties as to their boundary rights. Even without the 
 intervention of C, A and B would come in conflict at h in 
 regard to the widening section f h e. But in the case sup- 
 posed, C would restrict A to the line A'm as his southern 
 boundary, and B to the line B b as his northern boundary. 
 By this means A and B, being restricted by their end lines 
 from mining on the widening section A a d and e b B', would 
 be completely cut off A at 2000 and B at 3000 feet from the 
 surface. Then this further difficulty would arise, that the 
 entire top or apex of the lode being included in the various 
 surface locations of A, B, C, D and E, there would be no 
 means under the law by which the widening sections A 
 a d and g b B' could be located or granted. The only rem- 
 
Historical Sketch of the Mining Law in California. 65 
 
 edy would be to cancel the patents of A and B, and allow 
 them to readjust their surface lines. Before this, however, 
 another controversy would have arisen between B and C, and 
 still another between B and D, in regard to the excessive 
 claim of B on the course of the. lode, which it will be seen 
 extends to a length of about 1600 feet, whereas the law 
 allows him at the utmost but 1500 feet. These hints will 
 suffice to indicate the nature of the task which the commis- 
 sion have before them; and having no plan to suggest for 
 meeting the difficulties in their way, I take my leave of the 
 subject." 
 
 REASONABLE TIME NEEDED FOR MARKING. 
 
 In the provision for the marking of exterior boundaries 
 upon the ground, under the present provisions of the law of 
 1872, the rights of the discoverer of a vein are not fully pro- 
 tected. Unless he be given a reasonable time to mark his 
 boundaries upon the ground, either under a State statute, or 
 a local rule, or the decision of the Supreme Court of the 
 United States, he may make many mistakes vital to his inter- 
 ests. As a matter of fact, the trend of the California decisions 
 on this point is against him, though at the same time against 
 the trend of the decisions of almost all the other States and 
 territories except Oregon (Lindley, sections 339, 371, 372), 
 and of the Supreme Court of the United States (Erhardt vs. 
 Boaro, 113 U. S., 527). What is a reasonable time? Even 
 the decision of the United States Supreme Court favoring 
 a reasonable grant of time is for but a short grace at best. 
 A statute of this State was passed in 1897, the best point in 
 which was that the discoverer was granted sixty days after 
 his preliminary location in which to mark his boundaries, 
 but it contained other provisions, which were considered 
 cumbersome in practical working, and under pressure of the 
 sentiment in the mining counties, was repealed in the session 
 of 1899. As the marking of his boundaries is a, part of the 
 act of location, without which the act of location is not 
 complete, can the discoverer afford to wait, lest some one 
 else effect a complete location before him? It has been shown 
 
66 History of the Bench and Bar of California. 
 
 that unless he is given a reasonable time he may mistake the 
 position of his apex and the course of his vein. But how 
 much would be a reasonable time to ascertain the rake of his 
 pay shoots, in order that he might slant his end lines so as 
 to save as much of them .as possible? Many a mine has 
 developed a pay-shoot near either end, and that was all there 
 was of the mine, and unless the discoverer had a chance to 
 draw his end lines properly, he might lose the whole of it 
 in a few hundred .feet. Whatever is wanting in the law in 
 this respect can be cured by amendment of the statute itself. 
 
 ABOLITION OF RULES, REGULATIONS AND CUSTOMS ADVOCATED. 
 
 "The principal, the vital defect in the existing law," says 
 Chief Justice Beatty (Report, page 396), "is this permission 
 to make local rules. There are, I have reason to believe, 
 other important defects in the law, but as to most of these 
 there are more competent judges, and I leave it to them to 
 point out the evil and suggest a remedy. But as to- the prac- 
 tical workings of the local rules and customs of miners, when 
 allowed the force of law, I have very decided opinions, which 
 I feel that my means of knowledge justify me in stating with 
 some confidence in their correctness. I believe that the 
 whole subject of mining locations is an extremely simple 
 one,, which may easily, and certainly therefore ought to be, 
 regulated by one general law, the terms and existence of 
 which shall be established by public and authentic records, 
 and not left to be proved in every case by the oral testimony 
 of witnesses, or by writing contained in loose papers or mem- 
 orandum-books, such as are often dignified by the name of 
 'mining records.' I am convinced, moreover, that the taint- 
 ing of every mining title in the land at its very inception 
 with the uncertainty which results from the actual or possible 
 evistence of rules affecting its validity, perfectly authentic evi- 
 dence of which is nowhere to be found, is a stupendous evil. 
 Experience has demonstrated that such an uncertain state 
 of the law is a prolific source of litigation, and no experience 
 is required to convince any man of ordinary intelligence that 
 
Historical Sketch of the Mining Law in California. 67 
 
 it must have the effect of depreciating the value of all unpat- 
 ented claims by deterring the more prudent class of capitalists 
 from investing in them. That the subject is simple enough 
 to be embraced in one general law is proved by the fact that 
 the laws of the various districts, although differing in details, 
 are in substance identical, and are substantially contained in 
 the existing acts of Congress. 
 
 "What room is left, then, for any local regulations upon 
 the only points that the miners have ever assumed to regu- 
 late? Just this : The miners may : 
 
 "First Restrict themselves to smaller claims than the 
 Act of Congress allows. 
 
 "Second Require claims to be more thoroughly marked 
 than would be absolutely necessary to satisfy the terms of 
 the Act. I 
 
 "Third Require more work than the law requires. 
 
 "Fourth Provide for the election of a recorder and the 
 recording of claims. 
 
 "As to* the first three points, it may be safely assumed 
 that no such regulations will be adopted in any district here- 
 after organized. Mining districts are organized by those 
 who discover valuable ore bodies outside of the limits of 
 existing districts, and these first comers will be sure to take 
 all the law allows them to* take, and will do nothing on their 
 part to increase the difficulty of holding what they have got. 
 Later comers, not being able to deprive their predecessors 
 of rights already vested, will find their advantage in claiming 
 any new discoveries on terms as liberal as others have en- 
 joyed, and it will inevitably happen that the privileges of the 
 law will be in no wise abridged. Permission to abridge them 
 is therefore wholly superfluous. 
 
 "In some of the older organized districts the local rules 
 do restrict the size of claims; but in no case within my 
 knowledge do they exact as much as the statute in regard to 
 marking and working claims. Under the regulations restrict- 
 ing the size of claims in these old districts rights have vested 
 which ought to be protected; but in amending the law, with 
 
68 History of the Bench and Bar of California. 
 
 a view to its prospective operation in old as well as new 
 districts, nothing is to be gained by permitting miners any 
 longer to regulate either the size of claims or the mode of 
 marking them, or the amount of work to be done on them . 
 The only effect of such permission is to make the terms of 
 the law upon these important points everlastingly uncertain, 
 without the least prospect of its ever being improved. 
 
 'The fourth point at present left open to regulation by 
 the miners remains to be noticed. All the district rules with 
 which I am acquainted provide for mining recorders and the 
 recording of claims; but under existing legislation such rules 
 are worse than useless. The statute, it will be observed, does 
 not make any notice or record obligatory, or define their 
 effect. If the miners themselves made no regulation on the 
 subjecf, claims would be located by simple compliance with 
 the terms of the statute, which contains in itself ample pro- 
 vision for every essential to a location; i. e., size of claim and 
 marking and working. Under the statute the vein is located 
 by means of a surface claim, which not only can be, but must 
 be, marked on the ground. When this is done all that the 
 notice and record were ever intended or expected to accom- 
 plish is effected in a manner far more satisfactory and com- 
 plete. In place of a very imperfect and often misleading de- 
 scription of the claim, there is a plain and unambiguous notice 
 to the world of its exact position and extent. No> reason 
 exists, therefore, for retaining in the law a provision under 
 which it may be made obligatory, by local regulations, to post 
 and record a notice in addition to the marking of the ground. 
 The monuments on the ground do well and completely what 
 the notice and record do only imperfectly and in part. 
 
 "It may be asked why, if this is so, do the miners, who 
 ought to understand their own business, persist in requiring 
 a notice and record. The answer is, that marking locations 
 by such means has with a majority of miners become an 
 inveterate habit; and the custom, like many other customs, 
 outlives the causes which called it into existence. For twenty 
 years from 1852 to 1872 lode claims were located with- 
 
Historical Sketch of the Mining Law in California. 69 
 
 out reference to surface lines, and, as above explained, their 
 locality and extent could only be indicated by means of a 
 notice. Notice and record were therefore an essential part 
 of the system. Now, however, since the law has applied the 
 system of surface locations to lode claims, they have ceased 
 to be of any importance as independent and substantial re- 
 quirements. But the miners have generally failed to perceive 
 that there has been any radical change in the system of mak- 
 ing locations. They cannot divest themselves of the notion 
 that the surface is still a mere incident to the vein, and that 
 they must hold by means of their notice fifteen hundred feet 
 of the vein, wherever it is found to run, notwithstanding their 
 surface lines, as marked on the ground, may not include so 
 much. 
 
 "But another evil remains. In the nature of things there 
 must always exist the necessity in the assertion of any mining 
 title of proving compliance with the law prescribing the con- 
 ditions upon which it may be acquired; but there is no neces- 
 sity for leaving the terms and existence of the law itself to 
 be the subject of proof by evidence, the best of which is 
 always open to dispute. As long as there are local regula- 
 tions anywhere, and as long as there may be local regulations 
 everywhere affecting the validity of mining titles, no man 
 can ever know the law of his title until the end of a trial in 
 wnTch it is involved. In districts where the rules are in 
 writing, where they have been some time in force and gener- 
 ally recognized and respected, the law may be tolerably well 
 settled. But there is often a question whether the rules have 
 been regularly adopted or generally recognized by the miners 
 of a district. There may be two rival codes, each claiming 
 authority and each supported by numerous adherents; evi- 
 dence may be offered of the repeal or alteration of rules, and 
 this may be rebutted by evidence that the meeting which 
 undertook to effect the repeal was irregularly convened or 
 was secretly conducted in some out-of-the-way corner, or 
 was controlled by unqualified persons; customs of universal 
 acceptance may be proved which are at variance with the 
 
jo History of the Bench and Bar of California. 
 
 written rules; the boundaries of districts may conflict, and, 
 within the lines of conflict it may be impossible to determine 
 which of two codes of rules is in force; there may be an 
 attempt to create a new district within the limits of an old 
 one; a district may be deserted for a. time, and its records lost 
 or destroyed; and then a new set of locators may reorganize 
 it and relocate the claims. This does not exhaust the list 
 of instances within my own knowledge in which it has been 
 a question of fact for a jury to determine what the law was 
 in a particular district. Other instances might be cited, but 
 I think enough has been said to prove that local regulations 
 being of no use ought to be abolished. 
 
 "The magnitude of the evil resulting from the uncertainty 
 of mining titles will, perhaps, be appreciated when I say that 
 after a residence of seventeen years in the State of Nevada, 
 with the best opportunity for observing, I cannot at this mo- 
 ment recall a single instance in which the owners of really 
 valuable mining ground have, escaped expensive litigation, 
 except by paying a heavy blackmail." This defect in the law, 
 like the one concerning a want of a reasonable time to mark 
 boundaries in making a location, can be cured by an amend- 
 ment of the law itself, and, in this instance all that is neces- 
 sary is a provision that all future occupation, location, or 
 purchase of public mineral lands shall be governed by laws 
 of Congress, to< the exclusion of all local customs, rules and 
 regulations and State and territorial law. 
 
 THE EXTRA-LATERAL RIGHT AND THE SQUARE LOCATION. 
 
 A discussion of any remedy for the remaining source of 
 litigation resulting from the provisions of the statute would 
 bring to> the parting of the ways. Probably any system that 
 allows the miner the right to follow his lode on the dip outside 
 vertical planes drawn through the surface lines of his location 
 must bring in its train more or less litigation. Where the 
 miner who has sunk upon his lode has become the defendant 
 at the instance of some one who< has located upon his dip, 
 he ought generally without difficulty by means of his under- 
 ground workings to be able to prove his title to his lode, 
 
Historical Sketch of the Mining Law in California. 71 
 
 though the expense is often great on account of the neces- 
 sity of reopening old works. Where, however, he has opened 
 his mine through a vertical shaft and cross-cut to his lode, 
 he might, in such a case, be compelled to expend thousands 
 and thousands of dollars in work that is utterly useless to 
 him for all other purposes, simply to prove the identity of the 
 lode he is working beneath his neighbor's surface with the 
 one he located. He cannot escape the burden of this positive 
 proof for the judicial construction that has brought us the 
 law of the surface has brought with it the English common- 
 jaw accompaniment that each locator has the prima facie right 
 to all vertically beneath his surface.. Where another is min- 
 ing upon the dip of his lode, and he is seeking affirmative 
 relief against the conscious or unconscious trespasser, he may 
 not be able in the environment of his own operations to make 
 the satisfactory proof, but will have to push on, against his 
 other plans and interests, and do an immense amount of 
 ''dead" work until he breaks in upon the trespass. On account 
 of peculiar surface boundaries he might be compelled, on the 
 analogy of a bill of discovery, to> apply to the court for per- 
 mission to enter the works of the trespasser and, at his own 
 cost, make ruinously expensive upraises to the surface, a per- 
 mission in many jurisdictions impossible to obtain, in order 
 to prove the identity of the lode. I have made no mention 
 of the vexatious delays, delays which are sometimes used by 
 the scoundrelly corporation trespassing to manifest its con- 
 sciousness of guilt by efforts of reorganization and the like, 
 nor to the enormous damage often caused by the cessation of 
 operations in other portions of the mine rendered necessary 
 by the expense of the abnormal amount of dead work useful 
 alone for the purposes of the litigation. The expenses ren- 
 dered necessary by these cases and by those arising from mis- 
 takes in the location of the apex and of the strike of the lode 
 are mounting into millions. Only the wealthy, whether cor- 
 porations or individuals, can indulge in this luxury. 
 
 These considerations have brought despair to many min- 
 ing men and doubt a.s to advisability of any system providing 
 
72 History of the Bench and Bar of California. 
 
 for "the extra-lateral right." They point to the tranquility 
 under the English common law titles of the lead and copper 
 mines east of the Rocky mountains and of the placer mines 
 in our own State, where an exact adjustment of boundary 
 rights depends simply upon exact surveying. The increas- 
 ing familiarity of many of our prominent mining men with 
 the "square location" system of Mexico and its results has 
 had much to do with fostering a sentiment in its favor. The 
 agitation has already begun for the adoption of the system 
 of "square locations." As early as 1880, B. C. Whitman, of 
 Nevada, and Judge Hallett, of Colorado, openly advocated 
 it, and the public land commission urged it upon Congress, 
 while Chief Justice Beatty and Dr. R. W. Raymond, though 
 pointing out where the present law must be amended, stren- 
 uously contended for the extra-lateral right, at any rate until 
 the era of active prospecting shall have actually passed away 
 (Report public land commission, of 1880). 
 
 I do not intend to enter into the merits of the controversy 
 between the champions of the extra-lateral right and square 
 locations. In an article upon the history of miming law in 
 California we would be led too far apace. If, possibly under 
 conditions analogous to those that obtained in Prussia at the 
 time, the extra-lateral right shall ever be abolished, then its 
 abolition will be history, but not till then. The extra- 
 lateral right is, moreover, a vested right at present in all lode 
 patents fulfilling the conditions of the present law, and in 
 all the numberless locations duly made under the lode rules, 
 customs or regulations. No amendment can take that 
 vested right away. In all lode mines that at present exist 
 where compliance has been had with the condition of sub- 
 stantial parallelism of end lines, the extra-lateral right is 
 indefeasible, unless the abandonment of the possessory own- 
 ership by the owner shall throw the mine itself back into the 
 public domain. Any legislation on the subject, could at most, 
 then, only affect future locations. 
 
 After all, no* matter how honestly the advocates of the 
 two systems contend, the conclusions reached depend largely 
 
Historical Sketch of the Mining Law in California. 73 
 
 upon the point of view. The large mine operator, who buys 
 and opens, but who does not discover or locate mines, upon 
 whose shoulders falls the burden of the costs of litigation, 
 he, with his lawyers and his surveyors and his experts, usu- 
 ally leans toward the "square location." The prospector 
 and the discoverer feels in his every fibre, no matter what 
 fictitious sacredness judicial construction or the statute may 
 have thrown about the idea of the surface, that the lode 
 itself is the only real property, as it is the only thing he has 
 been hunting, and when he finds the lode his desire "to stay 
 with it till it reaches hell" is a passion that cannot be under- 
 stood by one who has never owned a lode mine and worked 
 in it, or who has never lived in a mining community. The 
 discoverer is not of the class that has usually had to bear 
 the costs of mighty law-suits, and therefore he loses no sleep 
 over the possible litigation. And, even if he does take the 
 chance of losing the mine, he is willing to do so with the 
 same cheerfulness with which he spent the greater part of 
 his life on the chance of finding it. As long as the la\v rec- 
 ognizes his right, he is willing -to take his chances of being 
 able to hold on to the lode. He has long learned to look 
 upon mining with the same game philosophy with which 
 John Oakhurst looked upon life, as at best an uncertain 
 game, and to "recognize the usual percentage in favor of 
 the dealer." 
 
 SUGGESTED AMENDMENTS OF LAW OF 
 
 The act of 1872, with further congressional amendment 
 putting all matters concerning location in the terms of the 
 act itself, abolishing all local rules, regulations and customs 
 and superseding all State and territorial enactments, arrang- 
 ing for the discoverer to have a reasonably liberal time within 
 which to mark his boundaries before he shall be bound by 
 them, and regulating effectively the performance of the work 
 necessary to hold the possessory right to the claim, will be 
 immensely improved. The mistakes incident to hurried loca- 
 tion and consequent ignorance of the details to give it effec- 
 
74 History of the Bench and Bar of California. 
 
 tiveness will be reduced to a minimum. The law has already 
 stood many a severe geological test. It has had to undergo 
 the test of the flat wavy veins of the neighborhood of Nevada 
 City. It may have to deal with lodes like the Royal Consol- 
 idated in Calaveras County, where one can walk down the 
 shaft, or with the abnormal width of the mother lode in some 
 portions of Amador County. The law that could stand 
 Carson City-North Star, South Scotia-New Idea, Wyoming- 
 Champion, Providence-Champion, Argonaut- Kennedy, and 
 many another problem already solved, will have no trouble in 
 California. The mountains and gulches of California will 
 probably never try it with anything so hard as Leadville. 
 
 CERTAIN STATE MINING LEGISLATION. 
 
 It would be manifestly beyond the scope of an article of 
 this kind to stop to point out all the different laws that were 
 passed and repealed in California with reference to the exclu- 
 sion of Chinese from the mines, and the attempts to levy and 
 collect a Foreigners' Tax. There would be no use in relating 
 the history of the enactment of any acts, whether in general 
 or codified form, providing under the law of eminent domain 
 for the condemnation of sites for tunnels, ditches, flumes, 
 pipes, and dumping places for working mines, or for outlets, 
 natural or otherwise, for the flow, deposit, or conduct of tail- 
 ings or refuse matter from the mines, for the reason that in 
 all instances where any attempt has been made under the pro- 
 visions of the act, the Supreme Court of this State has foiled 
 the attempt by holding that mining is not a public use. The 
 act establishing a system of mine bell signals introduced by 
 Senator Voorheis, of Amador and Calaveras Counties, and 
 approved March 8, 1893, cannot be said to belong to the 
 law of mining in California, in the sense in which I have been 
 discussing that subject. It is significant, however, as indi- 
 cating the immense strides in the industry of lode mining, 
 and the large scale of lode mining operations as distinguished 
 from its small beginnings, that such a system of bell signals 
 
Historical Sketch of the Mining Law in California. 75 
 
 was found necessary and convenient. Likewise, the act for 
 the protection of stockholders in mining companies, approved 
 April 23, 1880, and its amendment, more properly belongs to 
 the law of corporations than that of mining. The peculiar 
 associations, too, known as mining partnerships, which arise 
 where several owners of a mine engage in the actual working 
 of it, belong properly to a treatise on partnership, though 
 their law of today is but the statutory enactment of a distinct- 
 ive California common law, which, though in many respects 
 similar to the "cost-book system" of Cornwall and Devon, 
 blossomed out of the tenderest relationship of the days of 
 '49, the days of Tennessee and his "pardner." They spread 
 out int o all the states and territories, where went the Califor- 
 nia law of mining properly so-called, were early crystallized 
 in decisions of the courts, and enacted into statutes, which 
 were, with all their features distinctive from, ordinary part- 
 nership, re-enacted into the Civil Code, Sections 2511-2520, 
 in 1872. 
 
 HYDRAULIC MINING AND CALIFORNIA DEBRIS COMMISSION ACT. 
 
 One of the most interesting phases of the mining law in 
 California is the federal statute creating the California Debris 
 Commission, following the closing down of the hydraulic 
 mines in the Sacramento and San Joaquin watershed as a 
 result of the federal injunction in the test case of Woodruff 
 vs. The North Bloomfield. The act was the work of Mr. 
 Caminetti, of Jackson, then congressman from the Second 
 District, and deserves a more detailed notice than I shall be 
 able to give it in this article, as it is a unique example of 
 governmental intervention. The government had sold the 
 agriculturalists in the valley their land and the miners in the 
 mountains their placer claims, had given each patents with 
 equal covenants "to have and to hold," and had collected 
 from each side the fees for the land at the land office with 
 equal urbanity. It had been decided in the North Bloom- 
 field case that the debris from that mine, the result of mining 
 by the well-known hydraulic process, was injuring the lands 
 
76 History of the Bench and Bar of California. 
 
 adjacent to the navigable streams below. The magnitude 
 of the extent of hydraulic mining had been its undoing. The 
 choking up of the overtaxed channels of the rivers, the cov- 
 ering up of valuable adjacent lands, and the injury to navi- 
 gation brought all parties down upon the offending industry. 
 Private individuals invoked the doctrine " ut non laedas," 
 the State protested against interference with its water high- 
 ways, and the federal government, despite the covenant in 
 the deed, objected to the obstruction to navigation. The 
 bitter feeling engendered between the interests injured and 
 the industry was so great that for some years no effort was 
 made towards any rehabilitation of hydraulic mining. 
 
 In the decision of the Woodruff vs. North Bloomfielcl 
 case, brought by an individual, and the People vs. Gold Run 
 case, brought by the State, the hydraulic process in and of 
 itself had not been declared unlawful, but hydraulic mining 
 as theretofore conducted where it contributed or threatened 
 to contribute in a material degree to the filling up of river 
 channels, injuring navigation, or covering the lands adjacent 
 to the navigable streams with debris, was declared a public 
 nuisance and prohibited. Judge Sawyer, who decided the 
 Woodruff-Bloomfield case, realized the awful damage to en- 
 tire sections of the State by the closing down of these mines, 
 and left a fair opening, making certain suggestions of pos- 
 sible conditions under which the injunction might be dis- 
 solved. The North Bloomfield Company constructed the 
 suggested impounding works, and the United States then 
 brought its action for an injunction against the North Bloom- 
 field Company. The injunction was denied, the Court hold- 
 ing that by reason of the impounding works constructed the 
 light matter floating- over the dam was harmless, that danger 
 to be apprehended from the operation of the North Bloom- 
 field mine, with its impounding reservoirs as constructed and 
 used and intended to be used, was too remote to justify the 
 Court in issuing an injunction. 
 
 Thereafter, the California Debris Commission Act was 
 passed. The government could not afford to admit any 
 
Historical Sketch of the Mining Law in California. 77 
 
 moral responsibility, and it did not desire avowedly to pass 
 any legislation in aid of any special industry, but it could, on 
 the theory of aiding navigation, carry out a certain patrol 
 of the navigable streams. The Act was approved March i, 
 1893, and provides for the creation of a commission of three 
 members, to* be known as the California Debris Commission, 
 and to be selected by the President, by and with the advice 
 and consent of the senate, from officers of the Corps of 
 United States Army engineers, which commission has its 
 authority and exercises its powers under the supervision of 
 the chief of engineers and direction of the Secretary of War. 
 The jurisdiction of the commission with reference to hydraulic 
 mining extended to all such mining in the territory drained 
 by the Sacramento and San Joaquin Rivers. Hydraulic min- 
 ing, as defined in section eight thereof, directly or indirectly 
 injuring the navigability of said river systems carried on in 
 said territory other than as permitted under the provisions 
 of this act, was prohibited and declared unlawful. 
 
 It was made the duty of the commission to mature and 
 adopt such plans as would improve the navigability of all the 
 rivers comprising the system, deepen their channels, and pro- 
 tect their banks, with a view of making the same effective 
 as against the encroachment of, and damage from, debris 
 resulting from mining operations, natural erosion, or other 
 causes, and permitting mining by the hydraulic process to be 
 carried on, provided the same might be accomplished without 
 injury to the navigability of the rivers, or to the lands ad- 
 jacent thereto. The commission was also empowered to ex- 
 amine, survey and determine the utility and practicability of 
 storage sites for the storage of debris, with a view to the 
 ultimate construction of impounding dams and reservoirs, 
 and permitting hydraulic mining to be carried on behind 
 them. It prescribed a complete system for application of 
 those desiring to submit themselves to the jursdiction of 
 the commission, of the necessary notices, publication, exami- 
 nations, hearings, etc. The works are to be constructed 
 under the direct supervison of the commission, but at the ex- 
 
78 History of the Bench and Bar of California. 
 
 pense of the parties, and the permit to commence mailing 
 is not issued until after inspection and approval of the com- 
 pleted work. This permission may, for cause, be revoked, 
 or its terms modified from time to time. It will be noticed 
 how absolutely hydraulic mining is placed under the thumb 
 of the commission. The terms of the act contain, moreover, 
 the drastic provision that the petition to* the commission to 
 be permitted to mine 
 
 "shall be accompanied by an instrument duly executed and 
 acknowledged, as required by the law of the said State, 
 whereby the owner or owners of such mine or mines sur- 
 render to the United States the right and privilege to regu- 
 late by law, as provided in this act, or any law that may here- 
 after be enacted, or by such rules and regulations as may be 
 prescribed by virtue thereof, the manner and method in which 
 the debris resulting from the working of said mine or mines 
 shall be restrained, and what amount shall be produced there- 
 from," 
 
 Under the provisions of this act a number of permits have 
 been granted and a number of mines have started again. The 
 courts are being again appealed to, however, for injunctions; 
 the Red Dog hydraulic mine has already been closed down 
 by injunction from the Superior Court of Sutter County; the 
 Polar Star mine is closed clown under a temporary restrain- 
 ing order from the same court, and suits have been begun 
 and are threatened against many other mines operating under 
 the jurisdiction of the commission. 
 
 While this act was pending in congress there was being 
 crowded through the legislature of California an act intro- 
 duced by Attorney General Tirey L. Ford, then State sen- 
 ator from Sierra, Plumas and Nevada counties, which, as 
 Sections 1424 and 1425 of the Civil Code was approved 
 March 24, 1893, the terms of which are as follows: 
 
 "1424. The business of hydraulic mining may be carried 
 on within the State of California wherever and whenever the 
 same can be carried on without material injury to the navigable 
 streams, or the lands adjacent .thereto. 
 
 "1425. Hydraulic mining, within the meaning of this title, 
 is mining by means of the application of water, under pressure, 
 through a nozzle, against a natural bank." 
 
 Section 1424, it will be seen, is in direct conflict with 
 the provisions of the Debris Commission Act. It is also in 
 
Historical Sketch of the Mining Law in California. 79 
 
 conflict with the judicial interpretation given to the provis- 
 ions of that act, and is, therefore, probably nugatory in the 
 Sacramento and San Joaquin watershed, though in full force 
 and effect in the remainder of the State. Section 1425 will 
 be of value as defining the sense in which the words "hydrau- 
 lic mining" were used in California prior to its enactment 
 only in case it is really the codification of a definition actually 
 accepted at the time and before the federal act was passed. 
 
 The North Bloomfield Company, as has been seen, had 
 constructed its restraining works before the creation of the 
 commission and those restraining works had been decided 
 in a case by the United States against the Company in the 
 United States Circuit Court to be sufficient, and application of 
 the government for an injunction denied. It, therefore, did not 
 submit itself to the jurisdiction of the commission. Several 
 years after the act was passed the government again brought 
 an action against the North Bloomfield Company, adding 
 to the old allegations supplemental averments of the passage 
 of the Debris Commission Act, and the failure of the com- 
 pany to submit itself to* the jurisdiction of the commission 
 and secure from it a permit to conduct its mining operations 
 behind its dam. While conceding that the mine was being 
 operated without injury to the navigable streams, as found 
 at the former trial, Judge Ross nevertheless granted the in- 
 junction, holding that until the debris commission appointed 
 under the act should find that such mining can be carried on 
 without causing the prohibited injury, all hydraulic mining 
 within the territory drained by the Sacramento and San Joa- 
 quin River systems, is unlawful. This decision was after- 
 wards affirmed on appeal to the Circuit Court of Appeals. 
 Here was the constitutionality of the Act as a quasi-police 
 regulation upheld in favor of the government and against 
 a hydraulic mine. There is no doubt, moreover, of the con- 
 stitutional right of the government to appropriate money or 
 build dams to keep debris out of its navigable streams. 
 
 Such a test of the constitutionality of the measure on the 
 point indicated is, however, of no benefit to the miners. The 
 
8o History of the Bench and Bar of California. 
 
 single comforting obiter dictum in the whole decision of 
 Judge Ross is the following: "The power to absolutely 
 prevent the use of such waters for the objectionable purposes 
 necessarily includes the power to prescribe the terms and 
 conditions upon which they may be so used." (81 Fed. Rep. 
 254.) Taken in connection with the facts of the case, how- 
 ever, this language would simply mean : "The power to ab- 
 solutely prevent the use of such waters for the objectionable 
 purposes necessarily includes the power to prescribe the 
 terms and conditions without which they mav not be so used." 
 
 P*"^~ 
 
 The decision simply decides the constitutional right of the 
 government to protect the navigability of the streams by 
 closing down, through legislation, any hydraulic mine in 
 these watersheds which has not submitted itself to the juris- 
 diction of the commission. The miner will not be heard 
 to say in resistance that he is being deprived of his property 
 without due process of law. That is settled, but that is all 
 that is settled, by the judicial construction thus far given to 
 the Act. Is the working of the Act reciprocal? The miner 
 is bound with hooks of steel; but how about the farmer is 
 he likewise bound? Is the State of California bound? For 
 the purposes of any miner who desires to take his chances 
 under the act, the test of its constitutionality should be made 
 in some case brought against a company or person operat- 
 ing under a duly obtained permit from the commission, and 
 not in a case against a company or person not operating 
 under such permit. Moreover, the test should be made in 
 defending a case where a farmer attacks the Act on the 
 ground that some constitutional right of his is being 
 abridged, or where the people of the State of California (on 
 relation of the Attorney-General) attack it on the ground 
 that some of their constitutional rights are being abridged, 
 by the action of a miner operating under a duly obtained per- 
 mit from the commission. No other test will settle the point. 
 The permit of the commission is already a finality as far as 
 the miner is concerned. Is it a finality as far as the farmer 
 and the State are -concerned? To settle this point, the ques- 
 
Historical Sketch of the Mining Law in California. 8 1 
 
 tions to be presented by a farmer or by the State, under the 
 two sets of cases above set forth, are the following : Is, or 
 is not, the act contrary to the provisions of the fifth amend- 
 ment to the Constitution of the United States? Does, or 
 does not, the act, directly or indirectly, deprive any person 
 of property without due process of law? Is the State de- 
 prived by the Act of any right guaranteed to it in the Con- 
 stitution of the United States, or therein implied? It is con- 
 tended in behalf of the miner that neither the farmer nor the 
 State is deprived by the Act of any property or right with- 
 out due process of law; that, inasmuch as the commission has 
 complete jurisdiction to modify or revoke its permit at any 
 time, the farmer and the State are not necessarily deprived 
 by the Act of any "day in court" either may desire. Ob- 
 viously, unless the permit of the commission contemplated by 
 the Act is a finality as far as the courts are concerned, the 
 statute is an injury instead of a boon to the miner. If, how- 
 ever, the permit is such a finality, and the Act is declared 
 constitutional in such a case as the above, then the farmer 
 and the State will, instead of going intO' the courts, have to 
 submit to the jurisdiction of the commission equally with 
 the miner, and the present threatened interminable litigation 
 would be at an end. The sooner the question is conclusively 
 settled the better, if there is to< be any practical resumption 
 of hydraulic mining in the basins of the Sacramento and 
 San Joaquin Rivers. 
 
 In the basins of the Klamath and the Trinity, on the 
 other hand, hvdraulic mining is happily free. Nature, that 
 has handicapped the industry in one section of the State, has 
 favored it in another. These rivers are non-navigable, and 
 their banks for the most part precipitous. In these river 
 basins the only foe the industry has to contend with is the 
 occasional blackmailer. The courts have, however, miti- 
 gated the power of these people for evil in two well-consid- 
 ered decided cases. The rule of the decisions with reference 
 to hydraulic mining or navigable streams is separated 
 by a district cleavage from the rule with reference to non- 
 
82 History of the Bench and Bar of California. 
 
 navigable running streams. Judge Field, always the friend 
 of mining, in a decision of the Supreme Court of the 
 United States (Atchison vs. Peterson, 20 Wallace, 507), up- 
 held the refusal of the lower court (in Montana) to issue a 
 writ of injunction where a prior appropriator of water claimed 
 his water was injured by tailings from a hydraulic mine, 
 pointed out the extreme reluctance that should guide courts 
 in the issuance of this writ, and held that the question 
 whether, upon a petition or bill, asserting the prior rights of 
 the first appropriator have been invaded, a court of equity 
 will interfere to restrain the acts of the party complained of, 
 will depend on the character and extent of the injury alleged, 
 whether it be irremediable in its nature, whether an action at 
 law would afford adequate remedy, whether the parties are 
 able to respond for the damages resulting from the injury, and 
 other considerations. 
 
 Nor is the adjoining mine owner permitted to become a 
 dog in the manger. The Supreme Court of this State on 
 March 18, 1896, rendering its decision in the case of Jacob 
 vs. Day, (in Cal. 571), held that the use of water for the 
 purpose of carrying off the tailings, and the construction of 
 a ditch to aid therein, are as essential to the successful conduct 
 of hydraulic mining, as is the first use to which the water 
 is put in washing down the natural bank; and that the title 
 to an adjoining mine passes under patent from the United 
 States subject to the easement of the right of way for a ditch 
 used, in accordance with focal mining customs, as a tailrace 
 from a hydraulic mine across the patented ground prior to 
 the patent under the provisions of sections 2339 and 2340 
 of the Revised Statutes of the United States. That the ease- 
 ment for the tailrace of a hydraulic mine is not an easement 
 for drainage within the meaning of section 2338 of the Re- 
 vised Statutes of the United States, excluding easements for 
 drainage from the purview of the act of Congress; but it is 
 a right to the use of water for mining purposes and for the 
 construction of ditches for such purposes within the mean- 
 ing of sections 2339 and 2340 of said statutes. That an ease- 
 
Historical Sketch of the Mining Law in California. 83 
 
 ment must be used in such a manner as to impose as slight 
 a burden and damage as possible; but where a tailrace of a 
 hydraulic mine is an easement upon patented mining ground, 
 the fact that the running of tailings through the tailrace in 
 the ordinary course of mining caused a small portion of the 
 ground alongside of the ditch to cave down and wash away, 
 and caused the tailrace to cut farther into the bedrock, but 
 without material and appreciable injury to the plaintiff, does 
 not entitle the owner of the patented ground to an injunc- 
 tion. 
 
 While the. law of mining has through enactment and de- 
 cision gradually become settled, until there remains but com- 
 paratively few doubtful points to be still construed, and but 
 few amendments to better the legislation we already have, 
 mining itself in the great ledges of California is little more 
 than begun. It is true that, except where some ancient 
 river channel is occasionally found, the days of the plac- 
 ers are passing with the romance and the glamour of 
 the Pioneers. Quartz mining is destined, however, to 
 be a permanent industry of the State. New men, 
 new methods, and increased facilities for operations have 
 made of it a recognized business instead of a gamble. The 
 history of the law of mining in the future will more and more 
 partake of the general features incident to litigation growing 
 out of other industries, and the element of uncertainty will 
 be confined more and more to that element of uncertainty 
 found in all litigation; that which is produced by the shifting 
 sands of evidence, 
 
 -JOHN F. DAVIS. 
 
 Jackson, Cal., Dec. 9, 1901. 
 
14 DAY USE 
 
 RETURN TO DESK FROM WHICH BORROWED 
 
 LOAN DEPT. 
 
 This book is due on the last date stamped below, or 
 
 on the date to which renewed. 
 Renewed books are subject to immediate recall. 
 
 t^~C'D LD 
 
 
 J UNS Wfi0 
 
 
 SOMSfSSVia 
 
 
 n i A 
 
 
 - - . ..... 
 
 
 n 30 - 
 
 
 ^uw^ 
 
 
 ttCDQRC DBT 
 
 SEP I 774 
 
 
 
 MAR 1 3 19 
 
 
 REC.C1R. FEB2 o '80 
 
 
 
 
 
 
 
 
 U^^^ai, 
 
70050