GIFT OF
-/>/-C-Ut
f^C
WILLIAM EDWARD COLBY
ATTORNEY AT LAW
MILLS BUILDING, SAN FRANCISCO
June 6, 1918.
MR. J, C. ROWELL,
Librarian, University of California.
Berkele:/, California.
Dear Mr. Rowell:
As per your recent request I am
furnishing you herewith a bound, copy of my articles
entitled "The Extralateral Right 11 . You will note
that this is a reprint of a series of articles
published in the California Law Review.
Very truly yours,
The Extralateral Right
Shall It Be Abolished?
WM. E. COLBY
(Reprint of a Series of Articles published in the
California Law Review, 1916-1917.)
377447
CONTENTS
I. COMPARATIVE TREATMENT. Vol. IV, No. 5, pp. 361-388
Germany and Austria pp. 363-370
France pp. 3 70-374
England pp. 374-379
Spain and Spanish America pp. 379-384
Italy p. 384
Belgium p. 384
Australia pp. 384-386
Rhodesia p. 386
Canada pp. 386-387
Central and South America pp. 387-388
II. HISTORICAL TREATMENT. Vol IV, No. 6, pp. 437-452.
The Origin and Development of the Extra-
lateral Right in the United States pp. 437-452
The Federal Mining Act of 1866 pp. 452-464
III. HISTORICAL TREATMENT (Continued). Vol. V. No. i.
The Federal Mining Act of 1872 pp. 18- 36
IV. CONCLUSION. Vol. V, No. 4, pp. 303-330.
Growth of Opposition pp. 303-308
The Extralateral Right Principle is Ideal
in Theory pp. 308-309
The Main Reason for Eliminating the
Extralateral Right pp. 309-312
Practical Difficulties of Revision pp. 312-319
A Suggested Remedy pp. 319-321
Most Countries Recognize Severance of
Minerals from Surface pp. 321-323
Law of Apex Based on Principle of
Severance pp. 323-324
The Only Logical Alternative is to Sever
Minerals from Surface pp. 324-330
: --'"-="" : - *'"** /f//
California Law Review
Volume IV. JULY, 1916 Number 5
The Extralateral Right: Shall It
Be Abolished?*
THERE is no feature of the American mining law that has
provoked more spirited discussion and against which a
greater amount of criticism has been aimed than the extra-
lateral right, or "law of apex," or dip right, as it is variously
termed. It has become quite popular to present the arraignment
of charges which can legitimately be made against the practical
operation of this right and there is scarcely a meeting of
importance connected with the mining industry where some one
does not add to this volume of condemnation. In all this dis-
cussion, it is rare to find a word of commendation and not only
are the advantages which flow from the exercise of this right
ignored, but in the general demand for its abolition we find very
little well considered thought given to the serious results of such
action and few suggestions as to what steps should be taken to
minimize the grave consequences which are bound to follow such
a radical and far reaching change in our mining law. We are
too prone to assume that legislation is a panacea for all defects
in existing laws and not enough attention is paid to the evils
which . inevitably flow from "-half baked" remedial statutes.
Judging from the published remarks of many who have criticized
the extralateral right, the opinion seems to be quite prevalent that
all that is necessary to be done to cure the ills that are inherent
in the "law of apex" is for Congress to pass a statute abolishing it.
It is not the purpose of this article to attempt to demonstrate
that the extralateral right feature should be retained in our
mining laws. It may well be that should the right be abolished, a
satisfactory solution of the difficulties which must be met can
* There are several bills to amend our mining laws pending before
the present Congress. One of these would abolish the extralateral
right without any provisions to relieve the serious consequences of
such action. This discussion is prompted by this proposed revision.
362 CALIFORNIA LAW REVIEW
be reached. But this article is written in the hope that it may
correct some of the misinformation which has been circulated
concerning the subject and unfortunately generally accepted, and
also to point out a few of the problems which must inevitably be
dealt with in a satisfactory way if we are to avoid placing our-
selves in a worse position than we now occupy.
With this object in view, the subject will be presented in the
following manner:
First: From a comparative standpoint, treating of the
existence of the extralateral right in the mining laws of other
countries.
Second: From a historical standpoint, treating of the
origin, growth and development of the right in the United
States.
Third: From an analytical standpoint, setting forth the
arguments for and against the right and the consequences
which must follow its abolition.
I. COMPARATIVE TREATMENT
In a discussion of this character it is interesting to know
whether other systems of mining law have similar features and
what has been the result of their operation. It has been errone-
ously assumed by many that the extralateral right is a unique
burden suffered by the United States alone. An examination of
the laws of other countries shows that this is not a fact.
Naturally we cannot expect to find in other countries an extra-
lateral law identical in all respects with our own. It is the
fundamental principle underlying this law that is vital, 1 viz : the
right to mine on and pursue a vein in depth beneath surface
ground that is not owned or controlled by 'the mine operator. In
other words, the right to follow the vein in depth is independent
of and is not measured by surface ownership, hence it is termed
the right of extralateral pursuit. It is usually described as being
opposed in principle to the common law idea of ownership of
land, where the owner of the surface is entitled to everything
situated vertically beneath. As Judge Lindley has pointed
out in his treatise on the Law of Mines 2 the common law
1 "The application of the term 'extralateral' to this right is of
comparatively recent origin and the right existed long prior to this
designation." Lindley on Mines, 3d Ed. 568.
2 Lindley on Mines, 3d Ed. 568.
EXTRALATERAL RIGHTS 363
recognized the right of severance and frequently the surface
owner conveyed to another the right to mine a vein or mineral
bearing strata that penetrated or lay beneath his surface. How-
ever, the extralateral right as we ordinarily conceive of it has an
element that did not exist in the common law. In the exercise of
the extralateral right the vein may be pursued indefinitely in
depth beneath the surface of adjoining owners who have nothing
to say about the exercise of this right underneath their ground
and are powerless to prevent it. The right has been created by
statute or custom before their surface ownership attached and
the vein has been reserved and carved out of their estate. It is
the statutory or customary origin of the right, giving it an
indefinite sweep in depth and the fact that it is not at all dependent
upon conveyance from private owners of overlying surface nor
for its measurement upon the vertical boundaries of such surface
ownership that distinguishes the extralateral right from the com-
mon law severance of minerals from the surface.
We have no definite information as to whether an extra-
lateral right was exercised in ancient times. The existing record
of these ancient mining laws is meager and a great part of the
mining was carried on as a sovereign venture so that the question
of extralateral pursuit would seldom arise. 3 It is only when there
are adjoining private ownerships that a situation is created where
the question becomes important.
Under the democratic control of Athens the silver-lead mines
of Mt. Laurion were leased in small adjoining areas to individuals.
One might expect to find the extralateral right a feature of the
Ancient Greek mining law were it not for the fact that these were
flat lying contact deposits occupying horizontal beds and hence
unsuited to the exercise of any dip right. 4
Germany and Austria. The first recorded appearance of the
extralateral right, so far as the writer is aware, was in the year
1249, and is contained in a code of mining law proclaimed for the
mining town of Iglau by the King of Bohemia. By its terms the
discoverer of a mine "shall have by right in that which is com-
monly called the roof (hanging wall of vein), three and a half
3 Those interested in the subject of Ancient Mining Laws will find
an excellent note at pp. 82-86 of Hoover's translation of Agricola, De
Re Metallica.
4 See Hoover's Agricola, p. 83 footnote.
364 CALIFORNIA LAW REVIEW
Lehen (an ancient Germanic measure) and in that which is
called foot (wall of vein), one Lehen, in height and depth in
equal proportions." In the event of a dispute between two adjoin-
ing claimants the matter was submitted to an impartial jury of
four and if necessary to determine whether a trespass was com-
mitted or not the two workings were required to be connected.
Many will recognize in this the litigation work which has become
such a pronounced feature of our modern extralateral cases. 5
It is in the mining districts of the various states that after-
wards became merged in the Germanic and Austrian Empires that
the extralateral law or right to follow the vein indefinitely in
depth had its earliest and most complete development. The right
was founded on ancient custom and its origin is lost in the
obscurity which surrounded the early beginnings of mining in
those regions. It later became crystallized and confirmed in the
charters and proclamations issued by the various kings and rulers
of these states. There is a remarkable similarity running through
these various laws in force in the different districts and while
details differ they give evidence of having been impressed with the
same ideas which were doubtless traceable to a common origin. 6
The extralateral right in force in these Germanic States was
complex in the extreme. 7 There were two general classes of
mining claims. The L'dngenfeld, sometimes called the Gestrecktes-
5 The writer acknowledges his indebtedness to Mr. Herbert C.
Hoover for the permission to use the foregoing information which Mr.
Hoover collated from Geschichte des Bergbaues, etc., Vol. II, pp. 14-35
(1838) by Kaspar von Sternberg; Dr. J. A. Tomaschek. Das Alte
Bergrecht von Iglau, pp. 3-10 (1897), and Geschichte der Bohmischen
und Mahrischen Bergwerke by J. T. Perthner, (Wien, 1780).
6 In this respect these mining laws bear a striking resemblance to
the miners' rules and regulations which sprang up in the Western
States following the discovery of gold in 1848. They were founded on
custom and as they spread through the other mining regions from
their source in California they were modified in details but retained
similar fundamental principles.
7 The writer is indebted to his wife, Rachel Vrooman Colby, and to
Mr. W. J. Aschenbrenner for invaluable assistance in the translation of
the Germanic authorities which form the source for this presentation.
Some idea of the difficulties encountered in translating the Old German
works may be gained from the fact that ten different German dic-
tionaries devoted exclusively to mining terms were consulted. The
German works consulted are: Die Vermessung der Langenfelder, by
von Hatzfeld, Oberbergamtsmarkscheider in Bonn, published in Zeit-
schrift fur Bergrecht, (1899), Vol. 40, pp. 418-441; Commentar uber
das Bergrecht, by Chr. G. H. Hake (1823); Anleitung" zu den Rechten
und der Verfassung bey dem Bergbaue im Konigreiche Sachsen, by
Kohler (1824); De jure Quadraturae Metallicae, by S. A. W. Herder
EXTRALATERAL RIGHTS
feld or Streichendesfeld, because the claims were measured along
the strike of the vein by long measure or Langenmasz, was the
class of mining claim which exercised the extralateral right. The
Geviertefeld or Seifenfeld or Quadratmasz, was a squared claim
which was bounded by vertical planes passed through its exterior
surface lines. The latter class of claims was employed to cover
placer deposits and mineral deposits of great width with no regular
strike or dip and also flat or bedded veins called Flotze which
dipped at an angle of 20 or less, measured from the horizontal. 8
The measuring or squaring (Vierung) of the Ldngenfeld 9 and
of its extralateral right was an involved process. There was first
a temporary or superficial measurement to fix approximately the
boundaries so that other prospectors might know what ground
was free to locate. When demand was made by a claimant or his
adjoining owners, and the mine workings sufficiently extended to
enable the measurements to be made, the formal squaring took
place which established the boundaries definitely and finally. The
surveyor first determined the main strike of the vein and marked
this line out on the surface. The discovery shaft was the cus-
tomary starting point and an attempt made to average the natural
changes of the strike of the vein, usually resulting in an
assumed middle line from which the lateral measurements of the
surface boundaries were made. 10 An equal distance was thus meas-
ured each way along the top or apex of the vein from the dis-
covery point and the two terminal or end points of the length taken
on the vein marked. These L'dngenf elder varied in length in different
mining districts. As a rule the Fundgrube or discoverer's claim
was 42 Lachters in length and adjoining claims or Maszen 28
Lachters.. The total legal width of the claim on the surface was
(1839). These are the recognized authorities on the German extra-
lateral right. Other authorities too numerous to mention were also con-
sulted. There has been very little material descriptive of the Germanic
extralateral right published in English. Raymond in his excellent
review of the mining laws of the world appearing in Mineral Resources,
1869, Part II, "Relations of Government to Mining/' pp. 173-250 mem-
tions it briefly, p. 195.
8 In some districts the angle was 12 and in others 15.
9 The measuring of the claim was called the "Vierung" or squaring
of the claim because the unit of measurement was usually a "Lehen",
an ancient measure which was a square measuring 7 "Lachters" each
way.
10 This is somewhat analagous to the "lode line" of American
mining locations.
366 CALIFORNIA LAW REVIEW
usually 7 Lachters, 11 which was divided either equally on each
side of the vein, or the entire width could be taken on one side in
special districts. The measurements were usually made from the
walls of the vein, leaving the vein free in the middle, though in
earlier times they were made from the middle of the vein. This
was called the squaring of the claim and must not be confused
with the squaring of the vein itself which was a distinct measure-
ment. The squaring of the claim resulted in a definition of the
surface area which the claimant was entitled to control. 12
After a squaring of the claim on the surface had taken place
it was necessary to determine what was the measure of the right
to mine on the vein extralaterally. The longitudinal limits of this
extralateral right were variously determined. There seems to have
been a lack of explicit legal regulation of the manner in which this
should be done and few data are found in the literature on this
subject so that in practice much doubt and many conflicting views
arose as to which legal principles should apply. 13 The procedure
of measurement varied with the conception of the principle adopted
in each case. The measurement most commonly employed was to
pass a vertical plane through each marked end point of the vein
at the linear extremities of the claim and at right angles to the
general line of strike or average course of the vein, and extended
into depth. These parallel planes constituted the longitudinal
boundaries or end line planes of the Langenfeld, between which
the vein could be worked extralaterally and to infinite depth. 1 *
11 A "Lachter" is 67.5 inches. Hoover's Agricola, note, p. 78.
12 Those who are familiar with the early mining history in the
Western states of the United States will appreciate that this funda-
mental idea, so prominent in the measuring of the claim in Germany, of
having the right to a certain length of vein which should control the
laying out of the surface boundaries was quite widely accepted as
being in force here. (Lindley on Mines, 59, 573). Later the courts held
that the actual position of the vein did not control the boundaries and
the locator was only entitled to whatever length of vein he included
within his surface lines. (Flagstaff Min. Co. v. Tarbet (1878), 98 U.S.
463, 25 L. Ed. 253). In Germany the vein remained the controlling
element until a formal squaring of the claim had taken place which
might not be for several years. In the United States the surface
boundaries became the prime factor and the acquisition of the vein
was subordinated to those boundaries.
13 It is interesting to note that also in England the mining laws of
Derbyshire and in the United States the mining Act of 1866 both failed
to prescribe any rule for establishing the longitudinal or end boundaries
of the extralateral segment of vein that attached to a mining claim.
14 It is a striking coincidence that under the Act of 1866 where no
specific provision was made for measuring the extralateral right the
EXTRALATERAL RIGHTS
Another measurement employed in some instances was called
the Ball or Waterdrop method. This limitation was ascertained
by passing vertical planes through the lines which would be
established if we imagine the path of a ball or drop of water
running down the plane of the inclined vein from each of the end
points of the claim. If the strike of the vein changed materially
in depth this would naturally produce curved or bent bounding
planes. Another method consisted in ascertaining the end points
of the lode at the surface by measuring out the length of the
claim in both directions from the discovery point, following the
lode in all its windings and variations, for this purpose, and then
projecting these end points downward from level to level using
the true dip of the vein to determine the projection. By connect-
ing this series of projected end points the longitudinal boundary
of the extralateral right was ascertained. There were still other
methods used for determining the end boundaries but in modern
times the measuring of these at right angles to the main or aver-
age line of strike became the general rule. 15
The squaring of the vein or lode itself added to these complica-
tions. This squaring was considered much more important and
was given preference over the squaring of the claim, for the latter
had more to do with fixing surface boundaries. The square of the
vein or deposit accompanied the lode in depth in all its variations
and directions and at an equal distance therefrom. If we imagine
two planes, one on each side of the vein and equidistant from it and
following it in all its undulations and turnings in both strike and
dip into unlimited depth we have the artificial limits within which
the miner could mine and follow his main vein and if his claim
was the senior in time he was entitled to any other veins or por-
tions of veins which happened to exist between these artificial
American courts arrived independently at the same general result. Mr.
Justice Field in Eureka, etc. Co. v. Richmond, etc., Co. (1877), 4 Sawyer
302, Fed. Cas. No. 4548, said: "Lines drawn vertically down through
the ledge or lode, at right angles with a line representing this general
course (of the vein) at the ends of the claimant's line of location, will
carve out, so to speak, a section of the ledge or lode, within which he
is permitted to work, and out of which he cannot pass." And Mr.
Justice Temple in Argonaut Min. Co. v. Kennedy Min., etc., Co. (1900),
131 Cal. 15, 28, 63 Pac. 148, 82 Am. St. Rep. 317, used the following
language: "Planes through the lode at the end lines of the location
at right angles to the general course would impose the required limita-
tion upon the rights of the locator along the lode."
15 Zeitschrift fur Bergrecht, Vol. 40 (1899), pp. 430-431.
368 CALIFORNIA LAW REVIEW
bounding planes. If at any particular place in the main vein it
became necessary to ascertain where these imaginary boundaries
would fall, a point was taken on the wall of the vein and a straight
line passed through it conforming to the general dip of the wall of
the vein at that place and there was also passed through the same
point and at right angles to the dip line a straight line conforming
to the general strike of the vein at that place. At the point of
intersection of these dip and strike lines a third line perpendicular
to both the others was erected and extended out into the country
rock away from the wall of the vein for the lawful distance and the
extremity of this line would give the position of one of the imagin-
ary bounding planes of the Langenfeld at that particular point. In
other words the width of the territory within which the miner was
permitted to work in his extralateral mining was measured from
each wall of the vein out into the country rock and at right angles
to the wall. This distance was commonly 3^2 "Lachter" in the
hanging and the same distance in the foot, i. e., on each side of the
vein. In some districts the entire width could be taken on one side
of the vein. The total width varied from 7 even up to 500
"Lachter" in some cases. Usually where the width was great it
was measured from the vein on a horizontal plane instead of per-
pendicularly from the walls of the vein. The intersection, branch-
ing, faulting, pinching out of lodes within these imaginary planes
and the consequent conflicts which arose between junior and senior
extralateral claimants gave rise to the innumerable law suits and
vexations litigation which finally resulted in the abolition of this
class of claims.
In the case of the Geviertefelder or squared claims with
vertical boundaries, mining was sometimes confined within these
vertical limits to a particular vein or bedded deposit with the
right to mine a specified distance into the hanging and foot walls
and the right to mine on underlying or overlying veins granted
to other claimants. Complications naturally arose in such cases
when the identity of the particular deposit was doubtful or
destroyed, etc., and claimants of other deposits contested the right
to continue mining.
There is a general impression that the extralateral right is a
thing of the past in Germany. It is true that in many of the
mining districts the extralateral right was abolished commencing
in the early part of the nineteenth century and that the general
mining law of June 24, 1865, operated to abolish it completely, but
EXTRALATERAL RIGHTS 369
existing vested rights were recognized. Owners of these Ldngen-
felder carrying extralateral rights were given the privilege of
changing to Geviertef elder or claims with vertical boundaries. In
spite of the fact that the procedure for making the change was
simple, many Ldngenf elder claimants either did not desire to make
the change or were unable to do so because their claims were so
situated with reference to one another that it was impossible to
readjust them. As a consequence, there are still in existence in
Germany today thousands of claims possessing extralateral rights
and complicated cases involving the exercise of these rights are
of not infrequent occurrence. As one of the writers on this
subject states, "This is the inevitable result of the characteristic
legal nature of the Ldngenf eld and its dependence on the changes
of the deposit." 16 It is his opinion that while these claims may
have had some usefulness under simple mining conditions, the
incalculable changes in strike and dip of the mineral deposits gave
rise to an excessive number of controversies and finally brought
about the abolition of the law granting these rights so far as
concerned initiating new rights.
This action of the Germanic States in "abolishing the extra-
lateral form of claim after it had been in operation for over six
centuries is cited as one of the strongest arguments in favor of
similar action being taken by the United States. While there are
the same general underlying reasons here for such a change, any-
one familiar with the German form of extralateral right with its
much greater complexities and its earlier indefiniteness with
regard to its longitudinal measurement in depth will appreciate
that there was far greater justification for such action in Germany.
The American extralateral law with all its complexities is compara-
tively simple. Here we have surface claims the boundaries of
which are defined and which only depend in a minor degree upon
the position of the mineral deposit. Subsequent development
showing that the claim does not conform to the position of the
vein will not necessitate readjustment of boundaries. 17 Under the
Germanic law, the surface boundaries of the claim were usually
16 Zeitschrift fur Bergrecht (1899), p. 419. The measuring of Lang-
enfelder, by von Hatzfeld, Mining Surveyor General in Bonn. There
are ten mining districts in this jurisdiction where there are extensive
mining operations being carried on in these Langenfelder there being
over 3000 in the jurisdiction of this Surveyor General alone.
"Harper v. Hill (1911), 159 Cal. 250, 113 Pac. 162.
370 CALIFORNIA LAW REVIEW
dependent upon the ascertained position of the apex which might
take years to establish, and meanwhile the claim was for its
greater part a "float." Provision was made for a temporary ascer-
tainment of boundaries but this only added to the complexity as
the temporary survey yielded to the later permanent measurement.
The rules for ascertainment of boundaries in the event the vein
pinched out or split into branches or was faulted were also so
involved that there is not space to discuss these complex and intri-
cate features. Anyone familiar with the many intricacies and
indeterminate features connected with the ascertainment of the
Germanic extralateral right will appreciate that the American
law with its definitely fixed surface boundaries and well defined
extralateral planes passed through parallel end lines is simple by
comparison.
France. The extralateral right does not appear to have
obtained a pronounced hold on the mining law of France
though it existed there in a modified degree in the early days of
mining under customary rights. 18 Aguillon says this system of
granting inclined locations was abandoned in France in i8io. 19
However, while the mining law of the Empire, April 2ist, 1810,
provided that in general the limits of a mining concession were
to be fixed by vertical planes passed through a perimeter laid out
on the surface, 20 there was nothing in the act to prevent their
being inclined according to the formation of the deposit. The
concessions may be granted by beds, i. e. following bedded and
inclined deposits but this was not considered as regular. 21 Con-
cessions of this character were granted in conformity to the "pre-
judices and very unfortunate customs" of one of the mining
districts that of Jemmapes. 22
While the extralateral right did not appear in France except
in the cases noted, yet it is clear that the fundamental principle
underlying this right, viz : the severance of the mineral from the
surface was one of the prime characteristics of French mining law.
18 The writer is indebted to his wife for a portion of the translation
of the material which forms the basis for this discussion.
19 Legislation des Mines, Etrangere (1891), Vol. II, p. 48.
;0 The Act itself provides that vertical bounding planes must be
adopted "unless the circumstances and localities require another mode
of limitation," Title IV, Section I, rule 29.
L Halleck's De Fooz on the Law of Mines (1860), p. 120.
22 Exposition of the Law of 1810 by Count Regnault de Saint Jean-
D'Angely. De Fooz, appendix C, pp. 250-251.
EXTRALATERAL RIGHTS 37*
The philosopher Turgot in a periodical of i^6g, 2Z urged that
each land owner as a matter of natural equity should have the
right to mine on his own ground and then to pass underneath in
the subsoil of his neighbor without the latter' s consent and become
the owner of the material which he extracted therefrom. 24 Dupont
criticizes this system as an application to the mining industry of
the celebrated doctrine of laissez faire which would result in the
most complete anarchy a true subterranean war. 25 Curvelier
criticizes the system as Utopian. 26
Practically all of the French philosophers and statesmen who
have expressed themselves on the subject agree that there is noth-
ing in common as far as ownership of the surface and of the
mineral underneath is concerned. De Fooz says : The "nature of
things", the "general principles of right", and "general utility" do
not permit the surface to be confounded with that which is
beneath. The surface may be divided ad infinitum and this renders
its culture easier and more productive but mines are not divisible
like the surface and their occurrence has nothing in common with
the configuration of the surface. 27 Jousselin says mines have a
conformation of their own which in no way depends upon the
character of the surface and can be worked to advantage when
they are treated in mass or in sections of certain extent, without
reference to surface boundaries. 28 A vein which forms a mine may
extend into the depth of the earth a considerable distance beneath
surface properties infinitely divided among the surface owners.
Which one of these surface owners ought to have the property in
the vein? It is necessary in order to work mines to advantage to
treat mines in mass, or in sections of definite extent determined
by the position and character of the beds or veins. 29 Mirabeau
concluded one of the most famous debates on the fundamental
principles of a true property in mines which took place in the
French Chamber of Deputies in 1791 by saying: "The oblique
direction of a mine may in a short distance pass underneath a
23 Memoire au Conseil d'Etat.
2 *Naudi-er, Legislation des Mines (1877), p. 38.
25 Dupont, Legislation des Mines (1862), Vol. I, p. 5.
26 Curvelier, Legislation Miniere (1902), p. 5.
27 Halleck's De Fooz, p. 10.
28 Traite des servitudes d'utilite publique.
29 Report of Count Girardin on the Law of 1810. De Fooz, p. 10,
note 2, and Appendix D, p. 259.
372 CALIFORNIA LAW REVIEW
hundred different properties. We already know too well the
scourge of war upon the surface of the globe; there is no need of
adding to it the scourge of a subterranean war." 30 He also
argued that the proprietary right of the surface owner could not
possibly apply to minerals several hundred feet in depth. "They
cannot be a complement to the soil, and are moreover, by their
course, unfit to be included in a partition of the surface." He
pointed out the fact that the surface proprietor seldom had the
capital to develop a mine and if he did he might find the valuable
part of the vein to be under his neighbor's property. 31 The surface
overlying a mine may be fertile or barren, cultivated or unculti-
vated and the owner thereof has done absolutely nothing towards
the acquisition, increase or creation of the mineral wealth con-
cealed thereunder. 32 De Fooz, therefore, concludes that as a
matter of art, of right, and of interest the regalian doctrine ought
to prevail over the narrow principle of private ownership and that
mines and the outcrops of mines, i. e., the points where they rise
to the soil belong to the nation rather than to the surface pro-
prietor. 33
Napoleon at first opposed this idea because he interpreted
article 552 of his famous Civil Code to grant to the proprietor of
the surface everything beneath and the doctrine of a national
property in mines would violate this principle of private ownership
which he had already promulgated. The counter arguments
advanced in the Council of State and already noted finally pre-
vailed and in order to avoid the acknowledgment of defeat the
Emperor resorted to a fiction, entirely his own, 34 "that mines are
a new property; the right of working them forms a new wealth;
and the property of mines does not exist prior to their concession."
The famous French Law of Mines of April 2ist, 1810, was the out-
come. 35 The surface proprietor was recognized, however, for he
30 De Fooz, p. 10, note 4 and p. 13.
31 Foreign Mining Laws, Vol. II, Part I, Transactions of the Min-
ing Association and Institute of Cornwall (1888), pp. 35-36.
32 Compte, de la Propriete, De Fooz, p. 11, note 6.
33 p. 13.
34 A "real property separated from the surface is a conception abso-
lutely new, which emanated from the genius who consolidates and
aggrandizes each day the destinies of France." Report of Count Stan-
islas Girardin, Appendix D, Halleck's De Fooz, p. 266.
35 De Fooz, pp. 37-42.
EXTRALATERAL RIGHTS 373
was paid a small royalty or rental depending upon the area of sur-
face required for successful operation.
As a result of the careful analysis of underlying principles and
searching debate which preceded the adoption of the French
Mining Law by the Chamber of Deputies, it is ideal from a theo-
retical standpoint. The mineral deposit is a property distinct
from the overlying surface and the Council of Mines determines in
each case, from the evidence produced, whether it should give
preference in the granting of a concession to the discoverer, or the
proprietor of the surface or to another applicant. The person or
company best qualified to undertake the venture usually received
the concession. The extent of the concession, within a maximum
limitation, depended upon the character of the deposit and was
determined largely by economy of operation. A perimeter was
marked out on the surface and the concessionaire operated on the
vein or mineral deposit within vertical planes passed through this
perimeter. The owners of the surface within the perimeter con-
tinued to cultivate or use the surface except such portions as were
required for actual mining operations and for which portions com-
pensation was paid. Other veins or bedded deposits within the
perimeter might be excluded and granted to other parties, as the
concession usually carried the right to mine only on one particular
deposit or vein. When a concessionaire had mined to the limit of
his concession an extension of the perimeter was usually granted
him since economy of operation justified such a course. It will be
apparent that these advantages of granting concessions to those
best qualified to undertake the venture and of making the extent
of the concession dependent solely upon the character and occur-
rence of the deposit which was consequently not forced into
claims of uniform and unvarying size and likely to be unsuited to
the particular deposit is perfect in conception. This system
embodies a fundamental feature of the extralateral right, viz: the
right to mine on the vein without acquisition of surface ownership.
While the other characteristic feature of indefinite pursuit of the
vein in depth is lacking, the right to extend his perimeter in that
direction was invariably granted to the concessionaire whose work-
ings were most favorably situated for economic mining.
While this system is ideal, considered from most angles, yet
like many ideal systems its successful operation depends upon ideal
circumstances. In a country like France, thickly populated and
374 CALIFORNIA LAW REVIEW
with mining confined to comparatively well defined areas such a
paternalistic surveillance as is exercised by the Council of Mines
and the Engineers of Mines probably yields the best results, but
in the Western part of the United States where the mining dis-
tricts are sparsely settled and largely in remote and rugged
regions, such a system would be impossible of administration.
Walmesley says that the principal objection to the French system
is "too much State control." 36 It is an interesting commentary on
the urgent demand for a change in our mining laws to note that in
1889 a Commission of Deputies reported to the Chamber on the
subject of revision of the French Mining law that the main object
of legislation should be to free the mine owner of state control as
much as possible; that England and the United States are in the
almost complete possession of a law as wise in its simplicity as
that which they indicate as the perfection of mining law; that
everywhere the power of the State in such matters is being
restrained; and that everywhere greater belief is being placed in
private enterprise and industrial liberty and that it is a remark-
able fact that the more this faith increases the more mineral
wealth is developed. 37 The policy of severing the mineral from the
surface and disposing of each separately is a most desirable
feature, however, and it is regrettable that it was not adopted in the
United States in the infancy of mining here. 38
England. In the main, the law of England on the subject of
mines did not recognize any severance of the vein from the sur-
face. The surface owner was entitled to everything found ver-
tically beneath his surface, except royal mines, i. e. mines of
precious metals, and these latter were of little importance in Eng-
land. There were some noteworthy exceptions, however.
In Derbyshire there existed a local mining law which was the
outgrowth of ancient customs and regulations adopted by the
miners themselves. It marked a wide departure from the ordi-
nary conception of common law property rights. Under this law
3 Mining Laws of the World (1894), p. 50.
37 Walmesley, Mining Laws of the World, p. 52.
38 The severance of mineral from the surface and the policy of dis-
posing of each separately has recently been adopted by the Federal
Government in the case of public lands valuable for oil, coal, phos-
phates, nitrates, potash, gas, and asphaltic deposits, etc. See 38 Stat. at
L. 509; 35 Stat. at L. 844; 36 Stat. at L. 583; 37 Stat. at L. 105; 38 Stat.
at L. 335; 37 Stat. at L. 497; and 37 Stat. at L. 687.
EXTRALATERAL RIGHTS 375
the miner had a right to enter upon privately owned lands within
certain districts to "dig, delve, subvert, mine, turn up all manner
of Grounds, Lands, Meadows, Closes, Pastures, Moors or Marshes
for Lead-ore .... dwelling-houses, Highways, Orchards or
Gardens excepted/' 39 The first finder (discoverer) of a vein was
entitled to two meers or measures along the vein and the lord who
owned the ground to one meer and each locator thereafter to one
meer. These meers were linear measurements along the apex of
the vein at the surface and in different districts varied from 27, 29,
31, to 32 yards in length. Meer stakes at each end served to mark
the possession. The width of the claim was a quarter cord or
quarter meer measured either from the skirts (walls) of the vein
or, according to the contention of the owner of the land, from the
center of the vein. 40 Within this width the miner had the right to
erect necessary mine buildings, store ore and waste, but all of this
width that he did not need for these purposes belonged to the owner
of the surrounding land for "it is not the land, but the necessary-
privilege of working the mine that is granted the miner." 41 Some
have questioned whether an extralateral right was granted by these
customs and while there is no explicit language contained in any
of the Articles to indicate that such is the fact, nevertheless their
examination leads to the unquestionable conclusion that such a
right did exist. The Articles provide for litigation work, inspec-
tion of adjoining mines to ascertain if a trespass has been com-
mitted, and penalty for trespass on another claimant's forefield.
The descriptions of dialling (surveying) to ascertain whether a
claimant had reached the limit of his possession also indicate the
existence of the right. From these descriptions it is evident that
the longitudinal limit of the extralateral right in depth is measured
by vertical planes passed through each end of the claim at right
39 Houghton, Rara Avis in Terris or The Compleat Miner (1681),
p. 14. For additional information regarding these unique laws see: The
Compleat Mineral Laws of Derbyshire, Steer (1734); A Collection of
Scarce and Valuable Treatises on Mines, etc., Payne (1738); The
Miner's Guide, Hardy (1748); The Rhymed Chronicle by Manlove, etc.,
Tapping's edition (1851); Fodinae Regales, Pettus (1670); Bainbridge
on Mines and Minerals, 6th ed. (1900); MacSwinney on Mines, 3rd ed.
(1907).
40 It is interesting to note that the identical dispute as to the
measurement of the width of the claim existed in Germany. Hake,
Bergrecht, p. 146.
41 Mander's Derbyshire Miners' Glossary, p. 56.
376 CALIFORNIA LAW REVIEW
angles to the general course of the vein. 42 The whole matter is set
at rest, however, by the testimony of the barmasters or head min-
ing officials given before the Royal Commission on Mining
Royalties in 1891. The barmaster 43 of the wapentake of Wirks-
worth or Low Peak in Derbyshire was asked what the owner of
the surface received in payment from a claimant who staked out
a claim on it for the purpose of prosecuting mining and his
answer was, "Nothing at all .... The mining customs do not
recognize the surface land at all; the mining laws recognize the
veins so far as the grantor goes, but every man has as much
room as is necessary for dressing (treating ore) in the field." 44
The barmaster of the High Peak when asked how far under-
ground a miner might go as distinguished from the surface he
required, answered, "he can go underground as far as he likes. Q.
Can he drive his lode as far as he likes? Yes." 45 The Derby-
shire extralateral right is the purest form of this right that exists.
A certain length of vein is laid out on the surface and the miner
has the right to follow this vein to unlimited depth between vertical
planes passed through the ends of the claim at right angles to the
course of the vein. 46 The vein was the principal thing and the
surface an incident. In this respect, our Act of 1866 closely
resembles the Derbyshire right. 47
There has been considerable speculation as to the origin of the
42 Houghton, Compleat Miner, pp. 94-101; Hardy, Miner's Guide
(1749), pp. 142-150. As already noted, this is the same measure of the
extralateral right that has been generally adopted in Germany and also
in the United States under the Act of 1866, where in both cases the law
was silent as to how this right should be measured.
43 In Germany the "Bergmeister" and in early mining in France the
"bourgmestres" performed similar functions.
44 Third Report of the Royal Commission on Mining Royalties,
p. 52.
15 Id., p. 54.
48 The Derbyshire rake-veins to which this measure was applied
were, comparatively speaking, ideal veins, being nearly perpendicular,
their hade or inclination being only one foot in ten and their course
generally following a straight line. Mineralogy of Derbyshire, Mawe,
pp. 32-33. Treatise on Ore Deposits, von Cotta (Trans, by Prime, p.
431.) The flat-veins of Derbyshire were taken up by claims 14 yards
square. Houghton p. 2.
47 The writer is the fortunate possessor of a rare work a 1 so edited
by Houghton (1694) entitled "Articles to Establish and Confirm Laws,
Liberties, & Customs of Silver & Gold Mines in America . . . . "
in which Houghton proposes that Parliament make mining laws sub-
stantially similar to those of Derbyshire applicable to the English
colonies in Africa and America. In view of the strikingly similar
miners' customs which eventually sprang up in the Western United
EXTRALATERAL RIGHTS 377
Derbyshire extralateral right. Hoover 48 believes that the law of
this district is of Saxon importation. Blavier 49 says that the bye-
laws of Derbyshire resemble the mining laws of Saxony. Smirke 50
states that many of the mining terms of ordinary use in Derby-
shire correspond almost exactly with the Plait Deutsch terms of
the German mines and that there is no difficulty in accounting for
this when authentic records indicate the frequent importation into
England and employment of German miners from 1271 down to
the 1 8th century. 51 This view seems quite reasonable though
Lewis in his work on the Stannaries intimates that the laws of the
Derbyshire lead miners are customs dating back to a time beyond
the memory of man and notes that Pliny refers to the fact that the
lead miners in the interior of Britain are governed by certain
rules of their own making. 52 This would antedate even Germanic
influence. There is no question but that the Germanic impress is
pronounced. That the extralateral right was an importation is
doubtful, for if lead mining and customs dated back to the days
of the Romans the exercise of that right had probably already
taken place. It is the normal and natural way of mining on veins
as steep in dip and as ideal in occurrence as are the rake veins of
Derbyshire. The early miners with simple methods would pay
little attention to surface rights which were comparatively value-
less, except such limited portions as were required for their mining
operations, and would merely stake out lengths of apex on the
surface. There is no resemblance between the extralateral right
of Saxony with its artificial planes in the hanging and foot walls
of the vein accompanying it on the dip down into infinite depth
and with a right to everything found between these planes, and
the Derbyshire right to follow the vein only, subject to the condi-
tion that if the vein branched and the separation continued for the
distance of half a nicer, the branches were pronounced as two dis-
tinct veins. So long as the Rither, 53 or strip of country rock lying
States upon the discovery of Gold in 1848 this proposal is little short
of prophetic.
48 Hoover's Translation of Agricola, note p. 77.
49 Jurisprudence des Mines, Vol. 1, p. 18.
50 Stannaries of Cornwall (1843) p. 94 note g.
51 See also Mander's Glossary of Technical Terms of Derbyshire
Miners (1824) which notes a large number of words of Saxon and
Teutonic origin and Raymond, Mineral Resources 1883-4, p. 996.
52 The Stannaries (1908) pp. 82-83.
53 The Saxon influence is seen even here for the word Rither is
derived from the Saxon word "wrythan." Mander's Glossary, p. 60.
378 CALIFORNIA LAW REVIEW
between the two veins "may be taken down by firing on the side, it
is to be taken and reputed but for one vein, but in case the Rither be
so thick that it cannot be taken by firing on the one side, and the
Veins go so asunder, for half a Meer in length, then they are service-
able to the Miner, as two distinct Veins," and each was required to
be taken up in a separate claim. 54 The fact that in both Derby-
shire and Germany the longitudinal or end limits of the extra-
lateral right in depth were vertical planes at right angles to the
general course of the vein might support the view of common
origin were it not for the fact that this is the natural and obvious
limit and that no other mode of measurement is logical under the
circumstances unless we invoke the parallel end line measurement
of our federal act of 1872.
The lead miners in the forest of Mendip also mined under old
customs which were not as complete in detail as the Derbyshire
laws but similar in many respects and undoubtedly contemplating
extralateral rights. The extent of the miner's or grovier's right to
mine on the vein was ascertained by his standing "to the girdle or
waste" in his groof or mine working and heaving his "hacke" or
pickaxe "two ways after the rake" or vein. In modern language
the miner stood waist deep in his discovery shaft and threw his
pickaxe in each direction along the apex of the vein both for-
ward and backward "as the chyne or rake goeth." This determined
the extent of his boundaries. 55
The lead deposits of Alston Moor were also another center of
free mining with "liberties and Customs" similar in some respects
to those just noted. 56
In the famous Forest of Dean only male persons born in the
hundred of St. Briavels and who had worked a year and a day in
B* Houghton, Article XXXIV, p. 37.
55 Smirke in his work on the Stannaries, p. 127, note c, makes the
comment that this is a curious instance of the "Hammerwurf" of
Teutonic antiquity and (p. 128, note e) has its parallel" in the arrow
flight of the Bohemian "montani" and in numerous instances cited by
Grimm, Alterthiimer, etc. In the Dean Forest (p. 132) "the pit (mine
working) shall have such liberty and franchises that no man shall come
within so much space the miner may stand and cast so far from him
redding (ridding?) and stones with a bale, as the manner is; and shall
have his marks pertaining to the said pit." The Laws and Orders of
the Mendip Miners, commonly called Lord Choke's Laws are also found
in a work on the County of Somerset by Billingsby (1797)) p. 23 seq.
66 Lewis, pp. 79-80; Smirke pp. 124-5; The Mining Districts of
Alston Moor (1833), Sopwith, p. 19.
EXTRALATERAL RIGHTS 379
a coal or iron mine were Free Miners and entitled to take up or
"gale" these mines in the forest. 57 These Free Miners met at the
"Speech House" and regulated the operation of their own laws
and customs. In galing or granting the right to mine the gaveller
(mine official) fixed a starting point and no other limit was
assigned. No gale could be granted to another within 100 yards
of this starting point. This distance was later increased till it
reached 1000 yards. Since contiguous claims had no definite
boundaries it became a matter of contention, or a "race of dili-
gence" as our federal court has expressed a similar situation here,
as to which miner could first obtain possession of the intervening
ground by extending his workings. 58 These workings might be
carried to an indefinite extent "as far as the vein extends"
unless interrupted by another working. 59 Because of this great
uncertainty as to ownership Parliament intervened and a Com-
mission was appointed in 1838 which awarded definite boundaries
to all legitimate claimants, and followed the ancient customs as
far as possible, confining a claimant to one vein or bed and "under-
lying or other veins not so awarded or galed may be galed to
other parties." 60
Spain and Spanish America (Peru and Mexico). The fabulous
wealth of the mines worked under Spanish rule, particularly in her
possessions in the New World, stimulates our interest in her min-
ing laws.
While we would naturally expect Spanish laws to reflect the
influence of the civil law, we find little impress on her mining code
from this source. In making an analytical study of the Spanish
mining laws one is struck by the similarity of many of the pro-
visions to those of the early Germanic mining codes, especially the
57 Dean Forest Award, Sopwith (1841); Laws of Dean Forest, Wood
(1878).
58 "When parties under different gales were approaching each
other, they might proceed until their mattocks should meet." Fourth
Report, Dean Forest Commissioners, p. 8.
59 Early Germanic mining claims were also unmeasured areas, the
only regulation being one which forbade too close an approach to a
neighboring claim, Lewis, 163 note 4.
60 Sopwith, 167, 202. Free Miners also worked quarries of stone in
the Forest of Dean, the lines of each gale or claim being parallel and at
right angles from that side of the hill where the work first commenced.
The Miner could not work laterally outside of those boundaries "but
he may depart from the original horizontal line to suit the dip of the
stone. The application of these rules is termed squaring the hill."
Fifth Report of Dean Forest Commissioners, p. 73.
380 CALIFORNIA LAW REVIEW
right of free mining, i. e., the right of the individual to go upon
crown lands or even lands belonging to others and upon making a
discovery of mineral becoming entitled as a matter of right to the
possession of a mining claim including the discovery. But the
similarity is accounted for when we learn that in framing the min-
ing ordinances of Spain "recourse was had to the laws of
Germany." 61
Article 5 of the Spanish mining ordinances of 1559 referred to
by Gamboa as the "old ordinances," provides that,
"Whereas, by not designating the limit and space which
the Mines that shall thus be discovered are to have, there may
result great confusion, differences and lawsuits; and the first
discoverer may pretend that his Mine and the right which by
discovery may belong to him, cover and include the whole
extent and continuation of the metallic vein, and that in the
whole of such extent and continuation no person can interfere
to prospect, search or work, from which may result great
embarrassment and inpediment to the discovery, and working
and development of said Mines,"
therefore, the article provides, the Mine or pertenencla to
which a discoverer is entitled shall have definite surface boundaries,
viz : 100 varas long and 50 varas wide. 62
This provision would seem to have eliminated the exercise of
any extralateral right and this is further borne out by Article 29
which provided that if Mines are staked out on the sides of another
mine whose boundaries are already defined, because it appears that
the vein inclines from the latter and may enter these side claims,
the Court shall protect these side claimants and shall not permit
the person who owns the mine from which the ore inclines, to
follow the vein into these adjoining claims.
However, Article 30 also provided that if the boundaries of
the mine from which the ore inclines are not already defined by
the official survey and staking or if the ground into which the ore
dips is not already claimed, then in either case the owner of the
mine "shall be at liberty to continue to follow the said ore although
61 Comentarios a las Ordenanzas de Minas, Gamboa (1759), p. 6;
See also Heathfield's translation (1830) p. 8. These Commentaries by
Gamboa constitute the classic work on mining law in Spanish. See also
Smirke, Stannaries of Cornwall, p. 84 note z, where he states that,
"The German system of jurisprudence on the subject of mines has met
with general acceptance throughout the Continent of Europe, having
been adopted in Russia; in the countries around the Baltic; in Spain;
and in the extensive settlements of the latter country in America."
62 Mining Laws of Spain & Mexico, Halleck (1859), p. 13.
EXTRALATERAL RIGHTS 381
he may go outside of his pertenencia." 63 This latter provision
clearly recognizes a limited exercise of the extralateral pursuit. 64
Ordinance XXX of the Spanish Mining Code of 1584, referred
to by Gamboa as the "new ordinances", provided that if the ore
in any mine shall be continuous with the ore of any other mine "and
the two mines shall become one, in the depth; the miner who shall
have first sunk and made his way into the other mine," shall be
entitled to the ore until the owner of the adjoining mine compels
him to establish his boundaries. If it is found that he is outside
of his true boundaries he must withdraw, but he is still entitled to
the ore he has mined from the other's pertenencia, "inasmuch as he
has acquired a right to it by the care and diligence used in work-
ing with more activity than his neighbor." The ordinance also
provided that if a person took a pertenencia contiguous to the
mine of another and there is no vein disclosed therein or if there
is one and it contains no ore, but the claimant works "merely with
the intention of profiting by the ore of his neighbor when he shall
get within his boundaries" he acquires no rights "even though his
neighbor's ore should take its course within his pertenencia; and
our mining judges and justices shall determine it so, and shall not
allow or permit such mines, not being upon a vein or ore, to be
worked." 65 It is quite evident that the foregoing provisions create
and protect a modified form of extralateral pursuit.
Gamboa comments that "Of all the ordinances contained in the
new code, or the old law, there are none more difficult, or which
have been more frequently the subject of litigation in the courts
than this." 66 He states that when the vein extends outside the per-
tenencias of adjoining owners into unclaimed ground, each owner
is entitled to work freely through the virgin ground upon the dip
of the vein beyond his own limits and whenever the workings of
rival claimants in this common ground meet a guarda-raya or
boundary monument should be established beyond which neither
could pass. 67 Cases of this character gave rise to extensive litiga-
tion and a famous contest arose in the mining district of Guan-
63 Halleck, pp. 29-30.
64 See, Heathfield's Gamboa, pp. 17-43.
65 Heathfield's Gamboa. pp. 14-15.
66 Id. pp. 17-18.
67 Id. p. 25. Gamboa notes that this provision of the new ordinance
repeals the policy of the old ordinance of confining a miner to his
own boundaries but that this new provision is based on the desire of
the sovereign to increase the amount of his royalties and also to reward
industry and diligence, pp. 31-32.
382 CALIFORNIA LAW REVIEW
axuato where Count de San Pedro del Alamo insisted that the
underlay (dip) of the vein which apexed in his Santa Anita mine
"was infinite in extent", that "the vein was his property,
as far as it extended upon the underlay as being one and the
same vein: and that as, when the vein, being what is called
a deep vein, proceeds perpendicularly downward, the miner
may work on to the antipodes, or to the infernal regions, as
Amaya says ; so, if the vein be inclined, its whole extent upon
the underlay is granted to the miner."
The proprietors of an adjoining mine who had first occupied the
vein in dispute outside their boundaries in common ground,
insisted that the ordinances contemplated such mining and that
boundary marks were to be erected underground wherever their
workings met. This latter view was upheld by a decree of the
royal audiencia in 1749.
The miners of this district had previously contended that the
surface limits alone were to be within prescribed boundaries but
insisted that the miner might work to an unlimited extent under-
ground, whereupon in 1739 an order was issued that the property
of the vein is not granted to an indefinite extent on the underlay
and that the underground limits of the mine must correspond
vertically with the surface boundaries. The only exception is that
already noted which permits a miner to follow a vein into unclaimed
ground. 68
The early Spanish mining laws applicable to Peru provided that
"if the principal vein of a mine should take its course without
another's limits, it may be followed up without any impediment."
If a vein divided before taking its course within the boundaries of
a neighboring mine, the owner was required to select one of the
branches as his principal vein which he could follow into his neigh-
bor's ground. Gamboa notes that these regulations conform to the
practice in the mines of Germany. 89
The ordinance of 1783 materially changed the Spanish mining
law. 70 Article I of Title VIII states that uniformity of size of
surface claims cannot be observed underground and at the same
time equality between claimants preserved, for the inclination of
the vein with the plane of the horizon makes the amount of vein
3 Id. pp. 26-31.
69 Id., pp. 42-43. See also, Gazophilatium Regium Perubicum,
Escalona (1675) Lib. II, Part II, Cap. I.
70 These ordinances are set forth in full in Halleck's Mining Laws
of Spain & Mexico, pp. 189-315.
EXTRALATERAL RIGHTS 383
material included within the pertenencia greater or smaller and it
may well happen that when a miner after great expense and labor,
reaches the boundaries of his claim where the vein begins to be
rich, an adjoining owner, who has placed himself at that point with
more cunning than labor, may compel him to stop working further
"so that from this arises one of the greatest and most frequent
causes of litigation and dissension among miners." 71 As a result,
the new code provided that each miner is entitled to 200 Castillian
varas which are called de medir (long or running measure) along
the, thread, direction or course of the vein taken on a level. To
square the claim a rectangle was formed by taking 100 varas on
each or either side of the vein, if the vein were vertical, and this
width increased as the dip of the vein might flatten till the claim
attained a maximum width of 200 varas for veins dipping at an
angle of 45 or less. The ordinances voiced the opinion that by
the time the vertical boundaries of the claim were reached the vein
will have been considerably exhausted.
Article 14 referring to the permission granted under the former
law of 1584 to enter another mine and continue following the vein
until the owner of the other mine can extend his workings so as
to stop the adverse entry, states that it is "the most fruitful cause
of the bitterest law suits, dissensions and disturbances among
miners" and the adverse entry occurs more often through fraud
or accident rather than as the result of merit or industry. There-
fore, entering the pertenencia of another is prohibited.
Article 15 provides for an exception, however, and if a miner
pursuing his working fairly and following his vein reaches the
pertenencia of another or discovers there a vein undiscovered by
the adjoining owner, he shall be obliged to give such adjoining
owner immediate notice and thereafter share equally with him all
that he may extract from the adjoining pertenencia and for failure
to give such notice of invasion of the other's territory he lost all
right to the ore taken out and also paid double its value as a
penalty. The other owner could stop this invasion at any point
that his own workings encountered the invader's.
Article 16 continued the right to follow the vein into unclaimed
71 In the light of the present day criticism of the extralateral right,
it is amusing to note that 'this ordinance attributes excessive litigation
to the inflexible vertical boundary system. Dissatisfaction with existing
conditions and enthusiastic conviction that a change will result in
complete relief, is a common characteristic which is not confined to
the present day.
384 CALIFORNIA LAW REVIEW
adjoining territory but compelled the denouncing of a new adjoin-
ing pertenencia covering the vein.
Article 17 confirmed each owner to that portion of the vein
included within his boundaries and specifically denied the right
either to the discoverer of the vein or to the owner of the apex to
"claim it in its whole extent, or wherever it may happen to be."
This was the mining law in force in Mexico from 1783 up to
the time of the discovery of gold in California. Raymond 72 makes
the comment that
"this law is remarkable for an attempt to reconcile the two
systems of square and inclined locations by an elaborate grad-
uation of the size and shape of the surface claim according to
the dip of the vein."
He points out the impossibility of administering such a law in
accordance with the facts, for an opening 10 yards deep was
required to determine the dip of the vein which was then errone-
ously assumed to follow a uniform course and dip. 73
The ordinances of 1783 have long since been superseded by
mining codes which have abolished the graduated forms of claims.
Italy (Neapolitan States). Article 15 of the Act of 1826 per-
mits the worker of a mine which has been opened on one property
to follow it into an adjoining property without the owner of the
latter being able to prevent him; but in this case the latter has a
right to be compensated, such compensation to be mutually agreed
on or fixed by the arbitration of a judge. Apparently this right
was only applicable to mines worked under private grants. 74
Belgium. The mining laws of Belgium are based on the French
code. In Liege adventurers appear to have had rights under cer-
tain circumstances of following seams and beds. 75
Australia. The local court regulations of Maldon of March 6,
1857, provided that the width of a claim should be 100 feet on each
side of the line of the reef with the dips and angles of all reefs
72 Mineral Resources (1869), p. 196.
"Id., p. 198.
Walmesley, Mining Laws of the World (1894) p. 106. The
author makes the comment that this "right seems to be analogous to
that which is recognized by the law of the United States of America."
The mining laws of the various states of which Italy is composed vary
materially, so each must be studied by itself. In Piedmont the resem-
blance to the mining law of France is marked, while the Austro-Hun-
garian influence, which is essentially Germanic in character, is evident
in Venetia. Walmesley, pp. 95, 109.
75 Walmesley, p. 120. See also De Fooz.
EXTRALATERAL RIGHTS 385
within the boundary and the right to follow them to whatever
distance they might dip. 76
In New South Wales the mining regulations of August 5, 1858,
provided that:
"Miners occupying any portion of a quartz reef or vein
shall be entitled to follow and work it in any direction that
such reef or vein may take Provided .... that when
any reef, vein or bed of quartz shall lie nearly horizontal, or
at a less angle with the horizon than 20, 77 the holder of any
claim shall be only entitled to follow such reef, vein, or bed of
quartz in the direction of the dip, for a distance not exceeding
50 yards from the point where they commence to sink in
search of any such reef, vein, or bed of quartz/' 78
These extralateral provisions were probably patterned after the
miners' customs of California, since California miners are known
to have taken a leading part in this early mining in Australia. The
use of the terms "dip and angles" is similar to language employed
here by the early miners. Where the vein was inclined, the limits
of a claim were determined by establishing a base line passed
through the "peg" or discovery point on the apex of the vein and
"another point visible and as distant as possible on the known line
of the reef" or in case the position of the reef (vein) was not
sufficiently known, an arbitrary point was selected and from this
base line right angled lines were extended out in the direction of
the dip of the vein. This method of denning boundaries within
which the miner could work is almost identical with the plan which
was later adopted on the Comstock lode for the settlement of dis-
putes over boundaries. 79
In 1862 the regulations were altered so that a claim had a width
of 100 yards and the owner was entitled to all veins found therein,
76 Law of Gold Mining in Australia and New Zealand, Armstrong
(1901).
77 If this provision was not suggested by the Germanic extra-
lateral law, it is at least the strongest kind of circumstantial evidence,
for in most of the mining districts of Germany veins that dipped at an
angle of less than 20 were termed Flotze and no extralateral right
could be acquired to such deposits.
78 See, Mining Laws of Australia and New Zealand, Veatch (1910).
79 A very interesting volume entitled, "The Law of the Apex," by
Kenny has recently appeared, (1914), in which the author advocates the
adoption of a similar plan of measurement in the United States in place
of the present system of parallel end lines under the Act of 1872. There
is considerable reason underlying the suggestion, for it doubtless affords
a more logical division of the vein than any other system which
could be devised, but the conception is based on ideal vein conditions
and does not take into consideration geological complexities.
386 CALIFORNIA LAW REVIEW ,
instead of one vein only as under the former act, and could follow
any reef into unoccupied ground. 80 In 1866 the system of vertical
boundaries was adopted because the extralateral system was
"found to lead to disputes/'
In other parts of Australia the locator along the apex of the
vein had a preferential right to acquire "frontage claims" overlying
the dip. This is analogous to the extension of the mine perimeter
in the direction of the dip under the French law.
In Western Australia under existing law, individual leases are
granted of areas necessary to work the reef to a depth of 3000
feet and if the mineral is gold the length along the outcrop of the
reef shall not exceed 66 chains, and if mineral other than gold the
distance along the outcrop shall not exceed 90 chains. This right
to mine in depth is virtually equivalent to the exercise of an extra-
lateral right.
Rhodesia. All property in minerals and mining rights in
Rhodesia has been granted by the Crown to the British South
Africa Company. The system of mining law in force there was
adopted in 1903 and is largely copied from the American law. 81 A
"reef claim" is a parallelogram 150 feet in length along the course
of the reef with a width of 600 feet at right angles to the length.
A "block" is a group of not to exceed ten contiguous reef claims
thus forming a parallelogram 1500 by 600 feet, the exact size of a
lode claim under American law. The "extralateral right" is defined
in the ordinance to be "the right of following a reef on its dip in
any block beyond the limits of the vertical block." The "course
of a reef" is defined to be a line on the surface marking the inter-
section of the center of the reef with such surface. If the reef
were "blind," i. e., situated below the surface the points where it
approached closest to the surface were projected vertically upward.
This is the "course of the apex" or "lode line" of the American law.
The miner had the
"extralateral right of pursuit of such portions of his discovery
reef on its dip outside the limits of his vertical block as are
comprised between vertical planes indefinitely extended and
passing through the end lines of his block." 8
Canada (British Columbia). The various provinces of Canada
have adopted the vertical boundary system of mining law but
80 Here we have a provision similar to those contained in the
Spanish Mining Codes already noted.
81 Mining Law of the British Empire, Alford (1906), p. 197.
82 The striking similarity of this law to the American Mining Law
is evident. The trial of the first important case involving the extra-
EXTRALATERAL RIGHTS 387
British Columbia in 1891 passed a mineral act, section 31 of which
provided that:
"The lawful holders of mineral claims shall have the
exclusive right of possession 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," etc. 83
The section also provided that if a location were laid crosswise
of a vein instead of along its course the locator secured only so
much of the vein or lode as it crossed and the side lines became
the end lines for the purpose of defining extralateral rights. A
location was deemed to be laid crosswise when the angle made by
the center line of the location and the general course of the vein
was greater than 45 degrees.
This section of the Act was repealed by Section 2 of the
Amendment Act of 1892 which provided, 8 * that "The owner of a
mineral claim shall be entitled to all minerals which may lie within
his claim, but he shall not be entitled to mine outside the boundary
lines of his claim continued vertically downward." Subsection b,
preserves rights of locations under the former acts. 85
As a result of this brief period during which the extralateral
right was sanctioned, rights to a number of such mining claims
became vested. The British Columbia reports indicate that several
cases have arisen where these rights are involved.
Central and South America. Many of these countries, notably
Uruguay, Venezuela, Nicaragua, and Honduras, have features
copied from the Spanish law, either permitting a claimant to mine
on the vein into the subsurface of his neighbor and accounting
to the latter for one half of the net proceeds of all ore extracted
lateral right feature of Rhodesian mining law to be brought to England
was recently concluded in London. The Amalgamated Properties of
Rhodesia brought suit against the Globe & Phoenix Gold Mining
Company Ltd. for the recovery of approximately $1,000,000, alleged
to have been wrongfully extracted from the John Bull claims. The
case turned largely on geological facts and the usual array of expert
talent characteristic of such cases was present. The writer is indebted
to Mr. H. W. Turner for the clippings of the London papers reporting
the proceedings.
83 This is identical in language with the Act of 1872, 2322 U. S.
Rev. Stats., from which it was unquestionably taken. The writer is informed
that British Columbia first adopted the extralateral right in 1882.
84 15, subd. a.
85 Centre Star Mining Company v. Iron Mask Mining Company
(1898), 6 British Columbia Cases, 355; Martin, Min. Cases 267 note, and
pp. 629-630, 681-682.
388 CALIFORNIA LAW REVIEW
but subject to being stopped from further working whenever the
neighbor reaches the trespass workings, or permitting a claimant
to enter the subsurface of abandoned or unclaimed subsurface with
the right to denounce an adjoining claim in such direction.
Of greater interest are the Mining Regulations of British
Guiana of 1887 which give the right to follow veins throughout
their entire depth where the apex is included within the surface
boundaries of the claim but the right of such outside pursuit is
confined between vertical end line planes. There was an addi-
tional privilege putting a premium on the one who first com-
mences working on the vein extralaterally. Our federal mining
Act of 1872 is clearly responsible for the main extralateral
feature. 85 *
There are doubtless other parts of the world where the extra-
lateral right or some modification of it has at some time been
exercised. 86
The attempt has been made to include in this article all the
examples of the exercise of such a right that have come to the
writer's attention. In many of the other countries such as China,
Russia, etc., it has been quite customary to secure a concession to
a mine which includes the entire vein and there would be no neces-
sity for adjusting rights between adjoining owners. Sufficient
examples have been presented to indicate that there has been -a
powerful tendency at work based on fundamental reason and
natural law to segregate the mineral bearing vein from the surface,
and to grant the vein to the miner. Instead of confining him to
inflexible surface boundaries extended downward vertically, the
tendency has been to make these boundaries more elastic so that he
could, in the interest of economy and justice, follow down on his vein,
which is the principal thing sought, and which has no logical rela-
tion to the overlying surface. The surface ownership was usually
segregated from the underlying mineral and vested in another who
might be devoting it to agricultural or other pursuits. This sever-
ance is in line with the highest economic use of natural resources
and embodies the modern conception of conservation. The surface
was frequently used for convenience in marking out a perimeter
merely to place a limit on underground workings, but the perimeter
ssa "Mines and Mining Laws of Latin America, published by the
Bureau of the American Republics, April 1892.
86 Mr. Horace V. Winchell mentions Sweden as one of the countries
where the extralateral right was operative for a time. Report of
Meeting of the Mining & Metallurgical Society of America, December
1915. Reprint, Senate Document No. 233, 64th Congress 1st Session,
p. 57.
EXTRALATERAL RIGHTS 437
could be varied or extended according to the nature of the deposit,
and as underground development might indicate was most equitable
and economic. Frontage claims also accomplished the same object.
The pure type of extralateral right has unquestionably given
rise to a vast amount of litigation, and this fact has resulted in its
abolition in most countries where it formerly existed.
In a subsequent article the writer plans to trace the growth and
operation of the extralateral right in the United States and to call
attention to some serious problems which must be solved in the
event that it is abolished. Win. E. Colby.
Berkeley, California.
Volume IV. SEPTEMBER, 1916 Number 6
II. THE ORIGIN AND DEVELOPMENT OF THE EXTRALATERAL
RIGHT IN THE UNITED STATES.
THE discovery of gold in California in January of 1848,
brought about the birth of a distinctive American mining
law. Theretofore, no general mining law was in force in
the United States and the few Acts of Congress on the subject
were local in character, applying only to the lead and copper de-
posits of the Middle West, and were not based on any well defined
policy. The general tendency was to place mineral lands on the
same basis as agricultural lands. 1 There was no trace of any exer-
cise of an extralateral right to be found in any of these early laws.
The news of the finding of the fabulous gold fields of Cali-
fornia spread around the world like wildfire and miners from every
part of the globe flocked to the new Eldorado to share in its
treasure. Miners came from the lead mines of Illinois and Wis-
consin, from the copper mines of Michigan, from the gold mines
of Virginia, Georgia and the Carolinas, from the tin mines of Corn-
wall, the lead mines of Derbyshire, the silver and copper mines of
Germany, the silver and gold mines of Mexico and Peru, and in
fact from every known mining community. They brought their
varied experience and were joined by countless others who had no
previous mining experience of any sort. 2 It must be borne in mind
that no general mining law was in force in this new territory.
Colonel Mason, the military governor of California in 1848, issued
1 Those who are interested in the early history of mining law in the
United States will find an excellent presentation in Lindley on Mines, (3rd
ed.), 28-36. See also Donaldson, The Public Domain (1883), pp. 306-309.
2 The fascinating history of the days of '49 is outlined in Lindley on
Mines, (3rd ed.) chapter 3, 40-40, and Crane, Treatise on Gold and Silver,
pp. 54-62. Also see Browne, Mineral Resources, 1867, pp. 15-16, 38.
438 CALIFORNIA LAW REVIEW
a proclamation abolishing "the Mexican laws and customs now
prevailing in California relative to the denouncement of mines." 3
His action was unnecessary, however, since the Supreme Court of
the United States later held * that the Mexican law relating to the
acquisition of mining property was not operative in California
because of the absence of any mining officials required by the Mex-
ican law.
This situation is important to bear in mind, for one would
naturally suppose that the mining laws which developed in this
territory would have borne the distinct impress of the Mexican and
Spanish mining laws which were, theoretically, at least, in force
throughout the greater part of the West while it remained under
the sovereignty of Mexico. As a matter of fact, with the excep-
tion of a small amount of placer mining for gold in the vicinity of
Los Angeles 5 and mining for quicksilver at New Almaden, 6 Santa
Clara County, there was no mining of any noteworthy character
being carried on in this vast and largely unexplored domain. This
accounts for the absence of Mexican mining deputations with
whom mining claims were required to be registered under Mexi-
can law.
With the Mexican law of mines inoperative, with no existing
congressional legislation on mines applicable, with state govern-
ment in the West either non-existent or in its infancy, the field was
open for the adoption of that form of mining law which might best
fit the new conditions. As already noted, there had been no
federal mining law of any consequence in the older portions of the
United States which might serve as a pattern. The common law
of England which was in force in most of the Eastern states had
little bearing on mining problems. As a consequence, those who
came from other parts of the United States, and who constituted
the major part of the army of gold seekers, 7 and even those who
had previous experience in the mines of the Middle West and
Georgia, brought with them little knowledge of a suitable mining
8 Yale, Mining Claims (1867), p. 17.
* United States v. Castellero (1862), 67 U. S. 17-371, 17 L. Ed. 360.
5 Browne, Mineral Resources (1867), pp. 13-14, 38; Crane, Gold and
Silver, p. 54.
6 United States v. Castellero, supra, n. 4.
7 Josiah Royce says "The effective majority in all the chief communi-
ties was formed of Americans. . . ." Royce, California, p. 225. They were
"educated, intelligent, civilized and elevated men of the best classes of
society." California Herald (New York) Jan. 16, 1849.
EXTRALATERAL RIGHTS 439
code. There were, however, thrown into this melting pot of na-
tions, foreigners who arrived with a knowledge of the mining laws
in force in other parts of the world. Germans, Cornishmen, Mex-
icans, Peruvians, came from countries in which complete mining
codes were operative. It would be strange indeed if these experi-
enced miners did not take an active part in the councils which
followed and to some degree, at least, influence the shaping of the
laws which emerged from this chaotic condition.
Going out into the wild and uninhabited mountains and canons
of the Sierras, these pioneers found no laws in force or which
could be made applicable to the new conditions they had to meet.
The necessities of the situation and the absence of any effective
sovereign authority to impose laws and enforce obedience on this
army of gold seekers, who suddenly overran the rugged slopes of
the Sierras like a swarm of ants, brought about one of the most
remarkable and purely democratic governmental institutions in the
history of the world. Wherever there was a mining center of any
importance a meeting was called and the miners of the vicinity
assembled, organized a mining district, elected officers and adopted
a brief and usually rather crude code of laws by which the district
was to be governed. These district rules and regulations consti-
tuted the miners* laws and customs 8 and were mainly devoted to
the regulation of mining, though in the early days before the State
had assumed the effective administration of justice, these laws
frequently dealt with other civil rights and the punishment of
crimes. 9
8 "A special kind of law, a sort of common law of the miners, the
offspring of a nation's irrepressible march, lawless in some senses, yet
clothed with dignity by a conception of the immense social results mingled
with the fortunes of these bold investigators, has sprung up on the Pa-
cific Coast, and presents in the value of a 'mining right' a novel and
peculiar question of jurisdiction for this Court." Sparrow v. Strong (1865),
70 U. S. 97, 18 L. Ed. 49.
9 The following extracts are taken from editorials of the Evening
Picayune of San Francisco :
"The rules by which the rights of discoverers are defined and pro-
tected among those concerned in mining operations, have thus far, we
believe, been as much respected as legislative enactments would be. (De-
cember 11, 1850).
"The fact was, and still is, in respect to the great mass of American
citizens engaged in practical mining, that they have very little care for
the creation, support, or character of any government in the State. The
rules of their mutual adoption, by which their rights of property are pro-
tected, answer quite well the purposes for which they would desire any
legislation, and their own mode of securing justice under those rules, is
probably more instant and certain than such as would be prescribed by
440 CALIFORNIA LAW REVIEW
It would be out of place here to discuss in detail the nature
of these interesting rules. 10
For present purposes it is sufficient to quote the following
classic and concise statement of the situation by the Supreme Court
of the United States speaking through Justice Field : 1X
"The discovery of gold in California 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 Nevada mountains. Into these
mountains the emigrants in vast numbers penetrated, occupy-
ing the ravines, gulches and canons, and probing the earth in
all directions for the precious metals. Wherever they went,
they carried with them that love of order and system and of
fair dealing which are the prominent characteristics of our
people. In every district which they occupied they framed
certain rules for their government, by 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 bore a marked similarity, varying in the several
districts only according to the extent and character of the
mines; distinct provisions 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 working as the condition of its retention. And
they were so framed as to secure to all comers, within prac-
ticable limits, absolute equality of right and privilege in work-
ing the mines. Nothing but such equality would have been
laws of the legislature. . . ." (December 14, 1850).
". . . . for the present we know of no class of people who are better
able to regulate the disposition of the mineral lands of California than the
miners themselves, at any rate they have done very well so far." (Janu-
ary 31, 1851).
10 Those who are interested in the subject will find these miner's laws
elaborately treated in Lindley on Mines, Chapter 3 ; Browne, Mineral Re-
sources, (1867), pp. 226-264; Yale, Title to Mining Claims, etc., (1867), pp.
58-88; Bancroft's Handbook of Mining (1861), pp. 189-203; Morton v.
Solambo M. Co. (1864), 26 Cal. 527, 532-533; Shinn, Mining Camps (1885) ;
Royce, California (1886). A veritable mine of original information is to
be found in Vol. XIV of the Tenth U. S. Census (1885), which gives
in full the miner's rules of most of the districts of the West. This invalu-
able compilation was made through the wise foresight of Clarence King,
who was prominently identified with the mining industry.
njennison v. Kirk (1878), 98 U. S. 453, 457-458, 25 L. Ed. 240.
EXTRALATERAL RIGHTS 441
tolerated by the miners, who were emphatically the law-
makers, as respects mining, upon the public lands in the State.
The first appropriator was everywhere held to have, within
certain well-defined 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 owner, from
whom title was to be traced."
The Supreme Court of California had earlier commented on
this unique condition, saying : 12
"Courts are bound to take notice of the political and social
condition of the country, which they judicially rule. In this
State the larger part of the territory consists of mineral lands,
nearly the whole of which are the property of the public. No
right or intent of disposition of these lands has been shown
either by the United States or the State governments, and
with the exception of certain State regulations, very limited
in their character, a system has been permitted to grow up
by the voluntary action and assent of the population, whose
free and unrestrained occupation of the mineral region has
been tacitly assented to by the one government, and heartily
encouraged by the expressed legislative policy of the other. If
there are, as must be admitted, many things connected with
this system, which are crude and undigested, and subject to
fluctuation and dispute, there are still some which a universal
sense of necessity and propriety have so firmly fixed as that
they have come to be looked upon as having the force and
effect of res judicata. Among these the most important are
the rights of miners to be protected in the possession of their
selected localities, and the rights of those who, by prior ap-
propriation, have taken the waters from their natural beds,
and by costly artificial works have conducted them for miles
over mountains and ravines, to supply the necessities of gold
diggers, and without which the most important interests of
the mineral region would remain without development. So
fully recognized have become these rights that without any
specific legislation conferring or confirming them, they are
alluded to and spoken of in various acts of the Legislature in
the same manner as if they were rights which had been
vested by the most distinct expression of the will of the law-
makers. . . ."
The main objects of the regulations were to fix the boundaries
of the districts, the size of the claims, the manner in which the
claims were to be marked and recorded, the amount of work which
was required to keep the title alive and the circumstances under
i2Irwin v. Phillips (1855), 5 Cal. 140, 146.
442 CALIFORNIA LAW REVIEW
which the claim was to be considered as abandoned or forfeited. 18
As far as the regulation of mining was concerned they became
"the law of the land." Their observance was general and the
Legislature of the State of California recognized them as being of
controlling effect in the absence of congressional or state action. 14
Other Western states and territories also gave them similar
recognition and the courts upheld them as being of controlling
force. 15
Water rights necessary for working placer claims also became
a subject of considerable importance as the placer mining in-
creased and many districts had rules governing the acquisition of
these rights. 16
The early mining, following the discovery of gold, was, for a
considerable time, confined to the placers. There was an abund-
ance of virgin ground and the gold in the form of dust or nuggets
when separated from the gravels required no further treatment but
became the medium of exchange and to a great extent took the
place of coin. On the other hand, quartz mining involved the
more difficult extraction of vein material and treatment of the ores
when extracted. A quartz mine took time to develop in order to
determine whether the quantity and grade of the ore available
justified the great expense of erecting a mill. The mining regions
were remote from centers of civilization and the lack of facilities
for making mining machinery and the prohibitive cost of transport-
ing it to the mines when made, also tended to delay quartz mining.
This accounts for the fact that many months elapsed before it
assumed any considerable importance.
13 Browne, Mineral Resources (1867), p. 226; Yale, Mining Claims
(1867), p. 61.
14 Section 621 of the California Practice Act of 1851 provided that:
"In actions respecting '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, usages or regulations, when not
in conflict with the Constitution and laws of this State, shall govern the
decision of the action."
15 "A series of wise judicial decisions moulded these regulations and
customs into a comprehensive system of common law, embracing not only
mining law (properly speaking), but also regulating the use of water for
mining purposes. The same system has spread over all the interior states
and territories where mines have been found, as far east as the Missouri
river." (Remarks of Senator Stewart before the U. S. Senate, June 18,
1866). Appendix No. 1, 70 U. S. 778.
16 See: Wiel, Water Rights in the Western States, 66-91. The doc-
trine of prior appropriation as applied to water is not the unique creation
of the miners of the West as many have supposed. This doctrine had
EXTRALATERAL RIGHTS 443
There is some difference of opinion as to when quartz mining
began in California. There is no doubt but that in 1850 rich out-
crops of gold-bearing quartz had been discovered and located. 17
The Morgan Mine on Carson Hill in Calaveras County is re-
ported to have been discovered in February, 1850, and over two
million dollars taken out in a little over a year. The ore was so
rich that much of it was treated in hand mortars. The remainder
was ground in arrastras, as most of the miners employed by the
owners were Mexicans and this was the old Spanish method of
treating ore. 18
In Mariposa County on the Jackson lode, fifteen Cornish miners
were employed and a steam quartz mill was erected in September,
1850, having been purchased in San Francisco in May. 19
"Highgrade" quartz showing free gold was found at Gold Hill
near Grass Valley in Nevada County in October, 1850. Other
discoveries were made immediately following this one. A
quartz mill was erected at Grass Valley by two Germans during
this same year. 20
It is quite evident that quartz mining had become common by
the end of 1850, and these reports of the earliest operations are
particularly interesting to those seeking the source of our quartz
mining laws, as indicating that Germanic, Cornish and Spanish in-
fluence were each intimately associated with this early quartz
mining.
Following closely on the discovery of quartz veins which could
been in force in the mining districts of the Germanic states for centuries.
The writer has collected considerable interesting material on this subject
from original sources which he hopes to present at some future time.
17 Browne, Mineral Resources (1867), p. 20.
18 Browne, Mineral Resources (1868), p. 59. The ore in this mine near
the outcrop was so fabulously rich that a band of ruffians under the leader-
ship of Billy Mulligan drove the owners away by force and worked it
themselves until ejected by Court. Cases involving this mine were ap-
pealed to the Supreme Court of the State on six different occasions and
in none of these cases was the question of extralateral rights raised, indi-
cating that there are other prolific sources of litigation. The first suit
which is reported was brought upon a contract of limited partnership
entered into March, 1850, in Alabama and which contemplated the erection
of a quartz mill which appears to have been .accomplished in the Fall of
1850 at Carson Hill in order to treat ores from the Morgan Mine. Ross v.
Austill (1852), 2 Cal. 183. This mine was subsequently acquired by James
G. Fair and is now owned by one of his heirs.
19 Gregory Yale states in his work on "Titles to Mining Claims, Etc."
(1867), that he was one of the victimized shareholders in this company
p. 58, note.
20 Crane, Gold and Silver, pp. 59, 122.
444 CALIFORNIA LAW REVIEW
be profitably worked, we find that district rules and regulations
were adopted governing their acquisition. The earliest set of rules
of which we have any record was adopted December 3<Dtli, 1850,
by the Gold Mountain Mining District, Nevada County, California.
These provided that "thirty by forty feet shall constitute a full
claim." 21 On February 3Oth, 1851, the neighboring Union Quartz
Mountain Mining District adopted an identical provision and in
May, 1851, claims sixty feet square were authorized on Kentucky
Hill. 21a These rules were doubtless patterned after placer district
regulations which in many instances allotted a small, rectangular,
superficial area to each claimant. 22 There was clearly no attempt
to confer an extralateral right or right to follow a vein indefinitely
on its downward course. 28
The first appearance of the extralateral right in any district
regulations that has come to the writer's attention is to be found
in those adopted June 6th, 1851, in the Saunder's Ledge Mining
District also situated in Nevada County. Article 3rd of these
local laws states that "One hundred feet on the ledge with the
dips and angles shall constitute a claim." 24 Here we have a typical
grant of the right expressed in its simplest form. If there were
only an opportunity to examine the miners who attended that
meeting and ascertain the reason which prompted the selection of
this form of measurement, the question as to the origin of our
extralateral right might be easily solved. Did they have in mind
the mining laws of Germany or Derbyshire, England, or merely
the simple idea that the vein and not the surface ground was the
thing of value which they were seeking to acquire a right to and
that to divide it up into segments along its length was the only
obvious way to apportion it? Probably this question will never
be conclusively answered. The time has long since elapsed when
any persons who took part in that meeting can be interviewed and
21 Vol. XIV, Tenth U. S. Census (Mining Laws), p. 30.
siald. pp. 332-333.
22 In his report of 1867 on Mineral Resources, p. 231, J. Ross Browne
states that the early quartz regulations were framed "under the influence
of persons familiar only with small claims customary in the placers."
23 This is explained in part, at least, by Mr. Arthur Foote of Grass
Valley who has informed the writer that the ledge on Gold Mountain
where the earliest regulations were framed is flat lying and the exercise
there of an extralateral right would be much less appropriate than on veins
with a steeper dip.
24 Vol. XIV, Tenth U. S. Census, p. 334.
EXTRALATERAL RIGHTS 445
unless some diary or other private records exist, of which there is
no great likelihood at this late date, the matter will be left to
speculation and conjecture.
Reasoning from the facts presented on the face of the provision
itself, there is considerable circumstantial evidence to sustain the
generally accepted view that the source of this regulation is to be
found in the mining law of Derbyshire. The linear measurement
of one hundred feet is practically the same as that of the Derby-
shire claims which varied from twenty-seven to thirty-two yards
in length. 25 The words "dips and angles" are old English terms
such as would naturally be used in Derbyshire and the simple man-
ner of marking off lengths along the ledge is peculiar to the Derby-
shire extralateral right which is one of the purest and simplest
forms of this right. On the other hand, we have ample evidence
that German miners were already mining in this vicinity and that
they had constructed a quartz mill at Grass Valley. 26
If these miners from Germany were responsible for the adop-
tion of the extralateral right in Saunder's Ledge Mining District,
they could only have suggested the general idea, for the Germanic
extralateral right was of an entirely different character, giving the
right to mine between parallel planes 27 following the vein in depth
on each side with all of its turnings and variations. 28
25 See : 4 California Law Review, 375.
26 The writer has read many of the published diaries of "Forty-niners"
and local newspapers of that period and finds ample evidence to support
the statement that skilled miners from Germany were in California in con-
siderable numbers by 1850. He possesses a curious little book entitled,
"The German Emigrants or Voyage to California," published about 1851
in Germany which contains the following interesting statement: "In the
Spring of the year 1851, there was an unusual stir and bustle in the village
of Joachimsthal. [This is the famous silver mining district of the Middle
Ages and our word "dollar" is derived from this valley or Thai, so inti-
mately .associated with silver.] The rage for emigration and a restless
longing to try their luck beyond the seas, had attained a height bordering
on frenzy. . . . The excitement was daily gaining ground to such an extent,
that the agent of an American Emigration Company was welcomed and
honored as a special messenger sent by Providence."
27 Strictly speaking, these are not true planes since they conform to all
of the rolls and curvatures of the vein. They are, properly speaking, sur-
faces, but the use of the latter term might lead to confusion with the
surface of the ground.
28 Though mining claims to which the extralateral rights attached were
abolished in most of the Germanic States by the time of the gold rush to
California, yet all vested rights were recognized and thousands of the
oldest and best known mines in Germany were still entitled to, and did
exercise this right, as many of them have continued to up to the present
time. 4 California Law Review, 368-369.
446 CALIFORNIA LAW REVIEW
It is a noteworthy coincidence that on June 7th, 1851, on the
day following the Saunder's Ledge meeting, the quartz miners of
Drytown Mining District, Amador County, "Resolved, 3rd: That
the size of a claim in quartz veins shall be two hundred and forty
(240) feet in length of the vein without regard to the width to the
discoverer or company and one hundred and twenty (120) feet in
addition thereto for each member of the company, etc." 2g On
June 25th, 1851, or only nineteen days after the Saunder's Ledge
rules were adopted, the miners of Mariposa County met at Quartz-
burg and framed a set of local laws which provided:
"That all quartz veins now owned or occupied in the
County of Mariposa, or which may be hereafter discovered or
claimed, shall be governed by the following rules, to-wit: The
interest of a party making a discovery of quartz shall be five
hundred feet in length, and the entire width of the vein, be that
more or less. The interests of all persons claiming subse-
quently to the discovery shall be two hundred and fifty feet in
length, and the entire width of the vein." 30
Here we have a distinct use of language to convey the same
idea of an extralateral grant. The phrases "without regard to the
width" and "the entire width of the vein, be that more or less,"
are clearly to remove any idea of lateral limitation from the pre-
scribed linear measurement. Here again one might argue that the
influence of the Derbyshire law is evident, for in Derbyshire the
discoverer of any "new Rake or vein" was entitled to two "meers"
or measures of length along the vein. 31 While both the Spanish-
Mexican and Germanic laws rewarded the discoverer with addi-
tional ground, so that this feature of mining law had become quite
universally accepted throughout the world, yet it was only in
Derbyshire that two full claims were allowed him.
On October ist, 1851, the Day's Ledge Mining District in Ne-
vada County adopted by-laws, article first of which provided that
"Claims shall be fifty feet along the course of the ledge, with its
29 Vol. XIV, Tenth U. S. Census, p. 271. In adopting these resolutions
"it was urged that fifty feet of a vein which probably had no bottom, was
quite enough to satisfy any reasonable man." Gold-bearing quartz was
first discovered in Amador Creek in February, 1851. A mill was erected
but proved a failure till an experienced German miner came upon the
scene. The historian says "the number of talented men in this convention
was noted although it was not unusual for such bodies in the early fifties
to be composed of men who might have sat in legislative halls with credit
to themselves and all concerned." History of Amador County (1881), pp.
145-146.
so Id., p. 272.
81 4 California Law Review, 375.
EXTRALATERAL RIGHTS 447
dips, breadths, and angles/' 32 Following in rapid succession in
1851, and particularly in 1852, and even as late as 1855, new mining
districts were formed in Nevada County, most of which provided
that claims should be one hundred feet along the ledge with the
"dips and angles." Some of the regulations added the words
"breadths," others "depths" 33 and it is particularly noteworthy that
the Grass Valley Quartz Mining District regulations of December
2oth, 1852, used the language "dips, angles and variations" of the
vein, 34 which is the identical language later adopted by Congress in
the first general mining act of i866. 35 The regulations of Grizzly
Flat Mining District of El Dorado County passed February 4th,
1852, provided that "One hundred and fifty feet in length and the
dip or inclination of said lead to any depth and its width consti-
tute one claim." 36 The use of the term "spurs" appears in the
local rules of Angel's Mining District, Calaveras County, adopted
July 2Oth, 1855, which granted one hundred feet on the length of
a vein and, "all the dips, spurs or angles." 37 This also is of in-
terest, for the Sutro Tunnel Act passed by Congress July 25th,
i866, 38 uses the terms "dips, spurs and angles" as applied to the
veins that might be encountered by the tunnel and these terms
were in common use in written conveyances of quartz claims. 39
Other terms which are distinctly Cornish in origin and also in
use in Derbyshire are found, such as "slides" meaning cross fis-
sures, 40 "Fitters" which is undoubtedly a corruption of the Old Eng-
32 Vol. XIV, Tenth U. S. Census, p. 334.
ss Id. pp. 330-345.
S* Id. p. 330.
35 This language was carried by the Nevada County miners to the
Comstock and vicinity and adopted by Senator Stewart in framing the Act
of 1866.
36 Id. p. 275. The word "lead" is an old English term from which the
word "lode" was derived and both were in common use in Cornwall and
to some extent in Derbyshire. (Bullion M. Co. v. Croesus M. Co. (1866),
2 Nev. 168, 176, says lode is "a Cornish word nearly synonomous with
vein.") De la Beche says in his masterly work on the Geology of Corn-
wall, (1839), that lode "is a leading body traversing rocks" and "is a term
employed in Cornwall and Devon for a mineral vein." (pp. 285 note, 343).
The widespread use of this term in the early days of mining here estab-
lishes the influence of miners from England.
37 Id. p. 285.
38 14 U. S. Stats. 242.
39 As a matter of fact, the term "spurs" was in common use in the
early days of quartz mining. The writer has a copy of a record of a
location of the Morgan Mine on Carson Hill dated October 12, 1850, calling
for a certain length of the main ledge "with the branches or spurs of said
ledge."
40 De la Beche, Geology of Cornwall, p. 313 ; Tapping, Customs ot
Derbyshire, (1851), p. 31.
448 CALIFORNIA LAW REVIEW
lish term "Flitters," meaning fragments of the vein, indicated that
the influence of miners from England in framing these regulations
was very decided. "Flatt" diggings are mentioned in the rules of Mt.
Pleasant Mining District of El Dorado County. 41 This is an un-
usual term used in the laws of Derbyshire. 42 The wording of the
extralateral grant became very complex in the case of later regu-
lations and we find the terms "dips, angles and spurs, offshoots,
outcrops, depths, widths and variations" used to express this idea. 43
One hundred linear feet along the ledge was during the fifties
the commonest length in California for a quartz claim, but during
the early sixties two hundred feet along the ledge or lead became
the rule for the newer districts. 44 A few districts were formed
from time to time in which square measurement of quartz claims
with vertical boundaries was adhered to, but these were in the
small minority. In surface width no lateral measurement what-
ever was specified in the earlier regulations, leaving the acquisi-
tion of sufficient surface area for convenient working of the lode
to the individual locator. In fact, most of the early rules expressly
prescribed a certain length of claim "without regard to width." In
the late fifties and early sixties a definite width was usually pre-
scribed but this varied from fifty feet in some districts to six hun-
dred feet in total width in others. The latter measurement was
designated in El Dorado Mining District, El Dorado County, April
7th, 1863, 44a and is noteworthy because the Mining Act of 1872
adopted this as the maximum width for lode claims. Probably
two hundred and fifty feet "on each side of the center of the
lead" 45 became the commonest lateral measurement in California.
The mining regulations of the various districts of Nevada are
of special interest to us because it is generally conceded that Sen-
ator Wm. M. Stewart, who represented Nevada in Congress, in
framing the Act of 1866 was profoundly influenced by the miners'
Vol. XIV, Tenth U. S. Census, p. 275.
42 See Mander's Glossary of Derbyshire Mining Terms, etc. (1824),
p. 12.
"Vol. XIV, Tenth U. S. Census, 310-311, 500.
44 "Quartz claims are usually two hundred feet long following the
course of the lode." Hittel, Resources of California, (1866).
44 Vol. XIV, Tenth Census, p. 312.
45 This language is also of interest because the Act of 1872 provides
that lode claims shall not "extend more than three hundred feet on each
side of the middle of the vein at the surface." U. S. Revised Stats., 2320.
EXTRALATERAL RIGHTS 449
regulations of his state. He was ably assisted by Senator Conness
of California. As mining spread from California into the other
parts of the West, the miners carried with them to the new "dig-
gings" the same general ideas, organized mining districts and
adopted rules and regulations similar to those existing in Cali-
fornia. As might be expected, coming at a later period when many
of the divergent views which sprang up simultaneously in different
parts of the pioneer camps of California had become harmonized,
the rules adopted in other Western States and territories con-
formed in a remarkable degree to a general type. This is par-
ticularly true of Nevada. Most of its district regulations were
adopted between the years 1859 and i866. 46 With very few excep-
tions these rules prescribed claims of two hundred feet in length
on the lead or ledge, which, as we have seen, had become the pre-
vailing length of lode claims in mining districts of California of
the same period. 47 The extralateral grant in the Nevada regula-
tions was also described in the same language that had originated
in California. 48 The miner was entitled to his two hundred feet
along the vein together with all its "dips, spurs and angles." The
term "variations" was also added in some instances as well as other
words such as "strings and feeders" to express the idea of the all-
inclusiveness of the grant. In Nevada the extralateral feature
was practically universal, a notable exception being in Eureka
*6Vol XIV, Tenth U. S. Census, pp. 508-554.
47 In Arizona claims of two hundred feet in length were quite common
but the majority of the districts specified three hundred feet. Vol. XIV,
Tenth U. S. Census, pp. 247-266. The districts of Utah, formed in 1863-
1864, prescribed two hundred feet as the lawful length in any district noted.
Id. pp. 614-625. In Colorado the customary length was one hundred feet.
Colorado was further removed from the influence of the Pacific Slope and
had elaborate regulations of a unique type providing for tunnel claims and
possessing many features not found in the regulations of other states. Id.
pp. 365-472. Neither were the words "dips, spurs, angles and variations,"
etc., commonly used in Colorado though they were used in all of the other
States noted. The width of lode claims in these States varied as in Cali-
fornia. Colorado already showed the tendency toward narrow claims now
characteristic of that State and as early as August 21st, 1862, the rules
of Bevan Mining District, Summit County, provided that lode claims shall
be "twenty-five feet wide on each side of the wall rock of the crevice of
said lode." Id. p. 462; see also p. 466. The Castle Dome District regula-
tions of Yuma County, Arizona, in 1862, provided for a width of one
hundred yards on each side of the vein which is the same width specified
in the Act of 1872 passed by Congress ten years later.
48 This is quite natural, for miners from California migrated, in large
numbers, to Nevada and particularly to the Comstock Lode and vicinity.
Lord, Comstock Mining and Miners, U. S. G. S. (1883); Browne, Mineral
Resources, (1867), p. 27.
450 CALIFORNIA LAW REVIEW
Mining District, where in 1869 the miners attempted to abolish the
extralateral right and prescribed that, because of the peculiar
nature of the deposits, claims should be one hundred feet square
in order to avoid "expensive litigations." 49
During most of this period, from 1850 to 1866, the state and
territorial governments as already noted were satisfied to allow the
miners to determine for themselves the laws which controlled their
acquisition and working of mining claims. California did not
legislate on the subject at all, except to approve of what the miners
had done.
The legislature of Idaho, February 4, 1864, passed an act pro-
viding : 49a
"That any quartz claim shall consist of two hundred feet
in length along the lead or lode, by one hundred feet in
breadth, covering and including all dips, spurs and angles,
etc."
This right was later expressly confined to the one lode claimed.
The act was silent as to placers. 50
A statute of Arizona effective January ist, 1865, provided that:
"Every mining claim or pertenencia is declared to consist
of a superficial area of two hundred yards square, to be meas-
ured so as to include the principal mineral vein or mineral de-
posits, always having reference to and following the dip of the
vein so far as it can or may be worked, etc."
The act was quite comprehensive and somewhat complex and
shows very strong influence of the Mexican-Spanish laws, many
terms of the latter being employed. It expressly excluded placer
mining from its operation. 51
A statute of Oregon of October 24, 1864, provided:
Section I. "That any person or company of persons es-
tablishing a claim on any quartz-lead containing gold, silver,
copper, tin or lead, or a claim on a vein of cinnabar, for the
purpose of mining the same, shall be allowed to have, hold
and possess the land or vein, with all its dips, spurs and angles
for the distance of three hundred feet in length and seventy-
five feet in width on each side of such lead or vein."
This statute also provided that only one claim on each lead
Vol. XIV, Tenth U. S. Census, p. 551.
* 9a Browne, Mineral Resources, (1667), pp. 248-249.
so Act of January 12, 1865 ; Vol. XIV, Tenth U. S. Census, p. 135.
61 Browne, Mineral Resources, (1867), pp. 249-257; Yale, Mining
Claims, p. 84.
EXTRALATERAL RIGHTS 451
or vein could be held by location and expressly left the acquisition
of title to placer claims to the miners' local laws. 52
The territorial legislature of Washington on January 29th,
1863, adopted the following statute:
Section I. "That the extent of a quartz mining claim shall
not exceed two hundred feet of the lead, including all the dips,
spurs and angles embraced within said two hundred feet."
The territorial legislature of Montana on December 26th, 1864,
enacted the following :
Section III. "Claims on any, lead, lode or ledge, either of
gold or silver, hereafter discovered, shall consist of not more
than two hundred feet along the lead, lode or ledge, together
with all dips, spurs and angles emanating or diverging from
said lead, lode or ledge, as also fifty feet on each side of said
lead, lode or ledge, for working purposes, etc."
The amount of ground which could be taken up on the
lode was limited to one thousand feet in each direction from
the discovery claim.
Colorado on November 7th, 1861, adopted a statute limiting
the length of a lode claim to one hundred feet. By Act of March
n, 1864, sixteen such claims could be consolidated under one dis-
covery and on February 9th, 1866, the length of a claim for each
person was changed to fourteen hundred feet. 53
New Mexico, on January i8th, 1865, passed an act which from
the evidence at hand, appears to have limited claims to two hun-
dred feet for each person of the length of the lode "of its entire
width, including all its dips, openings, spurs, angles and variations,
with a right to follow such vein to any depth, etc." and a total
limit of one thousand five hundred feet for a company claim. 54
A Nevada statute approved February 27th, 1866, provided that:
Section 23. ". . . No person shall be entitled to hold by
location more than two hundred feet of any one ledge except
by virtue of discovery of the same, for which he shall be en-
titled to hold two hundred feet additional .... No claim
shall, in the aggregate, exceed in extent two thousand feet on
any one ledge."
Section 24. "Any location made on a ledge by authority
52 Vol. XIV, Tenth U. S. Census, pp. 200-201. Yale says this Oregon
statute "is a mere transcript of the miners' laws regulating claims upon
lodes, noticed as in force in California, and which may be found else-
where." Yale, Mining Claims, p. 84.
53 Morrison's Mining Rights, (14th ed.) p. 21; 1 Copp's Land Owner, 84.
" Vol. XIV, Tenth U. S. Census, p. 184.
452 CALIFORNIA LAW REVIEW
of this act shall be deemed to include all the dips, spurs, angles
and variations of said ledge.
"The locators of any ledge shall be entitled to hold one
hundred feet on each side of the same, etc. . . ."
This act expressly provided that placer mining should be "sub-
ject to such regulations as the miners in the several mining districts
shall adopt." 55
It is quite evident that these state statutes were based on the
local miners' laws and were merely declaratory of the existence of
an extralateral right on quartz veins which right, as has been ob-
served, had already been fully developed in the various mining dis-
tricts by the miners themselves.
The Federal Mining Act of i866. 56
During all these years the Federal Government had remained
silent on the question of the disposition of these mineral lands. 57
55 Browne, Mineral Resources, (1867), pp. 242-245.
56 14 U. S. Stats, at L. 251.
57 ". . . . this system of free mining fostered by our neglect, and ma-
tured and perfected by our generous inaction." Remarks of Senator Stew-
art, Appendix No. 1, 70 U. S. 779. There was indirect recognition of these
possessory rights of miners in a number of earlier Congressional statutes :
An Act of Congress establishing federal courts for the District of Ne-
vada approved February 27, 1865, provided : 9, "That no possessory action
.... for the recovery of a mining 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 possession."
13 Stats, at L., 440.
An Act of Congress of March 3, 1865, regulating the sale of town
lots provided : 2, "That where mineral veins are possessed, which posses-
sion is recognized by local authority, . . . town lots . . . shall be subject to
such possession .... Provided, however, that nothing herein shall be
construed as to recognize any color of title in possessors for mining pur-
poses as against the government of the United States." 13 Stats, at L. 529.
An Act of Congress of May 5, 1866, concerning the boundaries of the
State of Nevada provided that : "All possessory rights ... to mining claims
discovered, located and originally recorded, in compliance with the rules
and regulations adopted by miners in .... Nevada, shall remain as valid,
subsisting mining claims; but nothing herein contained shall be so con-
strued as granting a title in fee to any mineral lands held by possessory
titles in the mining states and territories." 14 Stats, at L. 43.
Treaty with Peru: Art. XIV. "Peruvian citizens shall enjoy the
same privileges, in frequenting mines, and in digging or working for gold,
upon the public lands situated in the State of California, as are, or may be
hereafter, accorded by the United States of America to the citizens or
subjects of the most favored nation." 10 U. S. Stats, at L. 926, 932. July
26, 1851.
Treaty with Tabeguache Indians : Art. III. "The right of any citi-
zen of the United States to mine without interference or molestation in
any part of the country hereby retained by said Indians [in Colorado],
where gold or other metals or minerals may be found, is hereby also con-
ferred and guaranteed." 13 U. S. Stats, at L. 673, 674. Oct. 7, 1863.
EXTRALATERAL RIGHTS 453
They were a part of the public domain and Congress was alone
empowered by the Federal Constitution to dispose of the territory
belonging to the United States. 58 Acquiescence in the extensive
mining operations of these years was presumed because of this
failure to act and what would otherwise have been a clear trespass
on the part of the horde of invading miners was recognized by the
courts as establishing a right through sufferance. 59
There had been various attempts to induce Congress to legis-
late on the subject of these mineral lands and there were plans to
lease them, reserving a royalty for the government, 60 and also to
sell them outright at public auction to the highest bidder, thus
enabling the government to pay off a portion at least of the vast
debt inherited from the Civil War. 61 The miners of the West were
jealous of any interference with the authority and control over the
mining regions which they had been exercising for so many years. 62
But the day arrived when action by Congress could no longer be
prevented, and Senator Stewart of Nevade and Senator Conness of
Treaty with Shoshonee-Goship Indians: Art IV. "It is further
agreed by the parties hereto that the country of the Goship tribe [in Mon-
tana] may be explored and prospected for gold and silver, or other min-
erals and metals ; and when mines are discovered they may be worked, and
mining and agricultural settlements formed and ranches established wher-
ever they may be required." 13 Stats, at L. 681, 682. Oct. 12, 1863. See also
Miners License Tax (1865), 13 U. S. Stats, at L. 473, and Bullion Tax
(1864), 13 U. S. Stats, at L. 271-272.
58 U. S. Const. Art. IV, 3, subd. 2.
59 "We cannot shut our eyes to the public history, which informs us
that under this legislation (in re the State of Nevada recognizing the
validity and binding force of the rules, regulations and customs of the
mining districts) and not only without interference by the national gov-
ernment, but under its implied sanction, vast mining interests have grown
up, employing many millions of capital, and contributing largely to the
prosperity and improvement of the whole country." Sparrow v. Strong
(1865), 70 U. S. 97, 104, 18 L. Ed. 49. "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. Until 1866, no legislation was had looking to a sale of the mineral
lands." Jennison v. Kirk (1878), 98 U. S. 453, 458-459, 25 L. Ed. 240.
60 When Senator Stewart's bill came before the Senate it contained a
clause providing for payment to the government of a royalty of three per
cent of the output of the mines. This was eliminated' before the bill was
finally passed. See Congressional Globe Debates of 1866.
61 See Yale, Mining Claims, pp. 340-354.
62 Whereas ; since the discovery of gold in California it has been the
policy of the General Government and of the different state and Terri-
torial legislatures upon the Pacific slope (except the last legislature of this
state) not to interfere with the laws and regulations of the miners in the
different districts, but to permit them to enact such laws as to them
seemed proper and just in regard to the government of the mines, such
laws having always when tested been sanctioned and approved by the
highest judicial tribunals, and,
454 CALIFORNIA LAW REVIEW
California, realizing that they must take affirmative action if they
would forestall adverse legislation by those of the Eastern States
who were not in sympathy with the Western problems, prepared
and introduced the bill generally known as the mining Act of
i866. 63
This act established the free right to mine on the public domain
and legalized what had theretofore been a technical trespass. Sen-
ator Conness stated in his report on the bill as chairman of the
Committee on Mines and Mining :
"By this bill it is only proposed to dispose of the vein
mines It is not proposed to interfere with, or impose
any tax upon, the miners engaged in working placer mines, as
those mines are readily exhausted, and not generally remuner-
ative to those engaged in working them (It is) an act
to provide for investing the miners of the country with the
fee simple to their vein mines
Whereas ; under this liberal policy the development of mineral wealth
upon the Pacific Slope has been unparalleled in the history of the world,
and possessing the utmost confidence in the intelligence in the mining
population of this state, and their capacity for creditably continuing the
time honored custom of enacting their own laws for the government of
the mines free from legislative interference and,
Whereas; believing as we do that no general mining laws could be
enacted that would meet the requirements of the different districts, as the
varied character, size and location of the ledges in the different districts
require different laws and believing that the action of the last legislature
of this state, will have a tendency to bring about what we are so anxious
to avoid viz : Congressional interference by still more general legislation ;
and,
Whereas; many of the provisions of the state mining law are utterly
impracticable in the Reese River Mining District besides placing upon us
additional burthens in increased expenses and trouble in locating and
recording our claims, therefore
Resolved, that the state mining law is utterly impracticable in many of
its provisions, obnoxious and burthensome to the mining population gen-
erally, and especially so to the miners of Reese River District, where the
peculiar formation and close proximity of the ledges render many of its
provisions totally impracticable.
Resolved, that the last legislature of this state, in taking from us the
right so long considered sacred, viz : that of enacting our own laws for the
government of our mines, was guilty of a gross usurpation, or at least,
abuse of power, unparalleled in the legislative, executive, or judicial history
of the Pacific Slope.
Resolved, that we are in favor of the unconditional repeal of said law,
and will vote for no person for either branch of the Legislature not
pledged to vote and work for its repeal. (Adopted by mines of Nevada,
March 30, 1866.)
63 The threat of drastic legislation by opponents and the thrilling con-
test over the adoption of the Stewart bill, which finally passed, as well as
the reason for its peculiar title, "An Act granting a right of way to ditch
and canal owners, etc.," is dramatically set forth by Yale in his work on
Mining Claims, pp. 9-12.
EXTRALATERAL RIGHTS 455
"The mass of the people living in the mines feel that the
mines should be left free and open to and within the reach
of the hardy explorer and adventurer without tax or impost
whatever They also fear all systems of sale lest any
which should be adopted might result in monopoly
They, nevertheless, will readily acquiesce in any plan which
shall confirm existing rights at reasonable rates An-
other feature of the bill recommended is, that it adopts the
rules and regulations of miners in the mining districts 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 re-
gions ; arising out of necessity, they became the means adopted
by the people themselves for establishing just protection to all.
"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 its natural justice, and to
have secured universal approbation. The California reports
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
beeen 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 empire and 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
Hon. E. F. Dunne of Nevada in a letter to Dr. R. W. Raymond (Dec.
20, 1869) described the situation as follows: "Fortunately, the mining
interest was ably represented in Congress, led by Senators Stewart of
Nevada and Conness of California, both thorough masters of the subject.
They grappled the question with all their power, knowing it was a matter
of life or death to the regions they represented, and, after a desperate
struggle, defeated the highest bidder plan, and achieved a complete victory
for the principles most anxiously desired by the miners, namely, the
recognition of their mining laws, and the right of the discoverer of a mine
to purchase the title from the government at a reasonable price. No matter
how . defective the bill may be in detail ; no matter how many points it
leaves entirely untouched; the miners will ever be grateful for its pass-
age, for in that, to them, memorable session, it was not a question of
detail nor perfection, but a struggle between two great conflicting principles,
and the policy desired by the miners prevailed." Raymond, Mineral
Resources (1870), p. 423.
456 CALIFORNIA LAW REVIEW
and unquestioned authority." 64
The language of Senator Wm. M. Stewart in advocating the
passage of the lode law of 1866 cannot be improved upon, for it is
the best evidence of his own mental operations and gives us the
reasons which controlled him in framing the Act and embodying in
it the extralateral grant, already a part of the miners' law. The
following liberal quotation is therefore pardonable:
"To extend the pre-emption system applicable to agricul-
tural lands to mines is absurd and impossible. Nature does
not deposit the precious metals in rectangular forms, de-
scending between perpendicular lines into the earth, but in
veins or lodes, varying from one foot to three hundred feet in
width, dipping from a perpendicular from one to eighty de-
grees, and coursing through mountains and ravines at nearly
every point of the compass. In exploring for vein mines, it
is a vein or lode that is discovered, not a quarter section of
land marked by surveyed boundaries. In working a vein
more or less land is required, depending upon its size, course,
dip, and a great variety of other circumstances, not possible
to provide for in passing general laws. Sometimes these veins
are found in groups, within a few feet of each other, and
dipping into the earth at an angle of from thirty to fifty de-
grees, as at Freiberg, Saxony, or Austin, in Nevada. In such
case a person buying a single acre in a rectangular form would
have several mines at the surface, and none at five hundred
or a thousand feet in depth. With such a division of a mine,
one owning it at the surface, another at a greater depth,
neither would be justified in expending money in costly ma-
chinery, deep shafts and long tunnels, for the working of the
same. Nor will it do to sell the land in advance of discovery,
for this would stop explorations, and practically limit our
mining wealth to the mines already found for no one would
'prospect' with much energy upon the land of another, and
land speculators never find mines. The mineral lands must
remain open and free to exploration and development; and
while this policy is pursued our mineral resources are inex-
haustible. There is room enough for every prospector who
wishes to try his luck in hunting for new mines for a thou-
sand years of exploration, and yet there will be plenty of
mines undiscovered. It would be a national calamity to adopt
any system that would close that region to the prospector.
"The question then presents itself, how shall the Govern-
ment give title, so important for permanent prosperity, and
avoid these intolerable evils ? I answer, there is but one mode,
and that is to assure the title to those who now or hereafter
64 Browne, Mineral Resources, 1867, pp. 219-220.
EXTRALATERAL RIGHTS 457
may occupy according to local rules, suited to the character of
the mines and the circumstances of each mining district. In
the increasing agitation of the subject by the introduction into
Congress of bills which miners regard as a system of con-
fiscation, and which tend to destroy all confidence in mining
titles, we now need statutes which shall continue the system
of free mining, and hold the mineral lands open to the explor-
ation and occupation, subject to legislation by Congress and
local rules ; something which recognizes the obligation of the
Government to respect private rights which have grown up
under its tacit consent and approval, and which shall be in
harmony with the legislation of 1865, protecting possessory
rights, irrespective of any paramount interest of the United
States. The system will be in harmony with the rules of
property as understood by a million men, with the legislation
of nine States and Territories, with a course of judicial deci-
sions extending over nearly a quarter of a century, and finally
ratified and confirmed by the Supreme Court of the United
States; in harmony, in short, with justice and good policy."
Appendix No. i, 70 U. S., 779, 780.
During the course of the debate in the Senate Senator Stewart
said:
"He 65 evidently has not read it (the bill), and has fallen into
the popular prejudice of supposing that land is to be sold in
rectangular form between perpendicular lines. It has been
explained that this cannot be done. A vein pitches into a hill,
and a perpendicular line would cut it up into pieces. He
speaks of that. This bill provides for selling the vein and
following it into the earth, with its natural dips and angles/' 66
Senator Conness also added :
"I desire to say to him, (Senator Williams of Oregon)
in this connection, that vein mines do not enter the earth by
perpendicular lines, but on the contrary, have what are called
dips or slants running by oblique lines into the earth ; that they
follow each other regularly in that respect; and that the cus-
tom now, and the habit everywhere, and the law, first
determined by necessity, by the fact, next by the population
obeying that necessity, next by the local courts affirming that
necessity by their decisions, is that the miner is authorized to
follow every vein according to its dips and angles and varia-
tions. This whole bill is based upon the principle of confirm-
65 Referring to the writer of a letter read by an opponent of the bill
in which the writer stated that it would be absurd to sell quartz mines by
subdivisions with vertical boundaries because lode mines did not conform
to such surface allotments. See Congressional Globe, June 18, 1866, pp.
3451-2.
66 Congressional Globe, June 18, 1866, p. 3452.
458 CALIFORNIA LAW REVIEW
ing what has grown out of necessity, the wisest system, per-
haps, that could possibly be devised, which is the work of the
people themselves. Would the senator want to enter the
earth by perpendicular lines so that a man who owned a
claim today, after he had descended 50 ft. of it, should leave
it to the ownership of another man tomorrow?" 67
The Act was quite universally approved in the West. The
Sacramento Union of June 23, 1866, said:
" . . . . this bill has been framed with a more intelligent
regard for the interests of the people of the Pacific Coast than
any other previous measure that we can now recall, and it is
probable that its provisions can be executed without inflicting
injury upon the rights which accrued under the policy hitherto
pursued by the government."
Governor McCormick of Arizona, in his annual message
delivered to the legislature October 8th, 1866, said:
"The act of Congress to legalize the occupation of mineral
lands, and to extend the rights of pre-emption thereto, adopted
at the late session, preserves all that is best in the system
created by miners themselves, and saves all vested rights under
that system, while offering a permanent title to all who desire
it, at a mere nominal cost. It is a more equitable and prac-
ticable measure than the people of the mineral districts had
supposed Congress would adopt, and credit for its liberal and
acceptable provisions is largely due to the influence of the
representatives of the Pacific coast, including our own intelli-
gent delegate. While it is not without defects, as a basis of
legislation it is highly promising, and must lead to stability
and method, and so inspire increased confidence and zeal in
quartz mining." 68
The Virginia Enterprise, the leading journal of the State of
Nevada, on July 13, 1866, said editorially:
"The Bill proposed nothing but what already exists, except
giving a perfect title to the owners of any mine who may
desire it."
When we come to analyze the Act of 1866 we find that it is
just what its author and others claimed for it, merely a confirma-
tion of miners' rules and regulations with the added feature of
67 Id. p. 3234. This language of Senator Conness is strikingly similar
to arguments of some of the French Statesmen in the Chamber of
Deputies when the French mining law of 1810 was under consideration.
Halleck's translation of De Fooz on the Law of Mines had already been
published (1860) on the Pacific Coast and the Senator had undoubtedly
read it. See 4 California Law Review, 371-372.
68 Browne, Mineral Resources (1867), p. 225.
EXTRALATERAL RIGHTS 459
affording an opportunity to the miner of securing a title in fee
simple to his mining claim through issuance of a patent.
Section one of the Act confirmed what had theretofore been
tacitly accepted as the fact, that mineral lands of the public domain
were free to prospectors and miners, subject to statutory regula-
tion and "also to the local customs or rules of miners in the several
mining districts" etc.
Section two provided that when "a vein or lode of quartz, or
other rock in place, bearing gold, silver, cinnabar or copper/' has
been taken up "according to the local customs or rules of miners
in the district where the same is situated" and not less than one
thousand dollars expended thereon, 69 the claimant might "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 "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, although it may enter the
land adjoining, which land adjoining shall be sold subject to this
condition." 71
Section three is concerned with the detailed procedure for
acquiring a patent.
Section IV provided .... "that no location hereafter
made shall exceed two hundred feet in length along the vein
for each locator, with an additional claim for discovery to the
discoverer of the lode, with the right to follow such vein to
any depth, with all its dips, variations and angles, together
69 The Reese River and other district laws of 1863 provided that
"Whenever one thousand dollars shall have been expended" on a claim, it
"shall be deemed as belonging in fee to the locators thereof and their
assigns" etc. Senator Stewart is supposed to have modeled the Act of
1866 upon the Reese River district regulations and the fact that this
precedent in the Reese River rules exists is at least corroborative evidence
to support this view. Vol. XIV Tenth U. S. Census, pp. 525, 533, showing
that this same principle and amount had been adopted in Placer County,
California, in 1863, and in the Genoa Mining District, Nevada, during or
prior to 1860. See Bancroft's Handbook of Mining (1861), p. 203. The
same principle is to be noticed in Grass Valley, Nevada County, in 1852.
Vol. XIV Tenth U. S. Census, p. 330. See also pp. 310-11.
70 The Sutro Tunnel Act, 14 U. S. Stats. 242, of July 25, 1866, passed
by Congress one day prior to this main lode Act of 1866 used the language
"dips, spurs and angles" as applied to the Comstock lode and veins which
might be intersected by the tunnel.
71 Julien, who bitterly opposed the passage of this act in the House,
said of this extralateral feature " . . . . this bill overturns the common
law of the world, by allowing one man to run half a mile under the land
of another." Congressional Globe (July 23, 1866), p. 4050.
460 CALIFORNIA LAW REVIEW
with a reasonable quantity of surface for the convenient work-
ing of the same, as fixed by local rules; and provided further,
that no person may make more than one location on the same
lode, and not more than three thousand feet shall be taken in
any one claim by any association of persons. 72
The balance of the sections of the act related to mining matters
of subordinate importance and to rights of way for ditches and
canals on the public domain, etc.
It is quite clear that the act did not interfere materially with
the operation of the miner's rules and customs and instead of
abridging the powers of these local law-making bodies, the act
repeatedly places the stamp of approval on their functions and
existence 73 It is true that the act did prescribe what should be
the lawful maximum length of a lode claim thereafter made but it
has already been pointed out that this limitation of "two hundred
feet in length along the vein for each locator" 74 had been adopted
almost universally throughout the West in the mining districts and
by the state and territorial legislatures, as the linear measure-
ment for lode claims except in the older districts, where one
hundred feet had been the rule. The limitation of "one location
on the same lode" for each locator was also a rule in force in
nearly all the districts and also adopted by the legislatures. The
"additional claim for discovery to the discoverer" was also a
universally accepted regulation. The granting of "the right to
follow such vein or lode, with its dips, angles and variations, to any
depth" was not as we have seen, the creation of a new right, 75 but
72 All of these provisions were already in force in a vast majority of
the mining districts, excepting possibly the last limitation of 3000 feet as
the maximum length for a company. Even this was foreshadowed in local
rules for a maximum length of 2400 feet had already been prescribed. Vol.
XIV Tenth U. S. Census, p. 616. And see also similar legislation in Mon-
tana, (Act of Dec. 26, 1864, limiting length to 1000 feet in each direction
from the discovery claim) ; Colorado, (Act of Mar. 11, 1864, limiting
length to sixteen 100 foot claims, and Act of Feb. 9, 1866, limiting length
of a claim to 1400 feet) ; Nevada, (Act of Feb. 27, 1866, limiting length of a
claim to 2000 feet) ; and New Mexico, (Act of Jan. 18, 1865, limiting the
length of a company claim to 1500 feet).
73 During the course of the Senate debate on this bill, Senator Stewart
said: "All there is in this bill is a simple confirmation of the existing con-
dition of things in the mining regions, leaving everything where it was,
indorsing the mining rules." Congressional Globe (June 18, 1866) p. 3234.
74 In the bill as originally drafted, this length was 300 feet. Con-
gressional Globe (June 18, 1866), p. 2225.
75 The anathema that has been heaped upon the f ramers of the Law of
Apex is amusing to one familiar with the real facts underlying its origin.
"The Law of Apex, this monumental blunder of experimental legislation"
. . . . "begotten in bland self-complacent ignorance by a group of opulent
EXTRALATERAL RIGHTS 461
was language taken bodily from the miners' rules and regulations
themselves, and which had already become the "law of the land"
throughout the entire West except in a few mining districts adher-
ing to the square surface claim with vertical boundaries. The dis-
tricts where the extralateral right was not in force were the rare
exception, and the words "dips, spurs, angles and variations" had
long since become common mining parlance 76 and were employed
every day in conveyances of interests in lode claims. 77 As already
noted, the legislatures of most of the Western States and Terri-
tories had, prior to the passage of the Act of 1866, also enacted
statutes along the lines of the local miners' laws, and the extra-
lateral right had become so thoroughly a part of the mining law
of the West, that in 1866 to have disassociated the idea of extra-
lateral right from lode mining would have been unthinkable. 78 If
Senator Stewart, on whose head so much uninformed abuse has
been undeservedly heaped, had in 1866 urged Congress to abolish
the extralateral right, instead of urging its acceptance, not only his
Nevada constituents, but the first mining community he happened
to pass through on his return from Washington would undoubtedly
mechanics" .... guilty of "foisting upon the mining public of a great
domain your ill-advised and flimsy statutes," so writes a critic in Economic
Geology, Vol. I, No. 6 (July, 1906), p. 572 et seq. Usually this crime is
charged on Senator Stewart who framed the Act and took a leading part
in the Comstock litigation. As late as the issue of June 10, 1916, the
Mining & Scientific Press (p. 850) contains a letter from a correspondent
in which he refers to "the principle of the extralateral right as having been
evolved from the brain of a capable, brilliant lawyer and through his
remarkable ability and powers of persuasion made to serve his ends," and adds
"it has continued on its pernicious course nearly 50 years." The shades of
the pioneers of 1851 would resent such credit being given to a lawyer
fifteen years later, for in many of the mining camps, lawyers were
expressly prohibited from practicing. "No lawyer shall be permitted to
practice law in any court in the district under penalty of not more than
fifty nor less than twenty lashes and be forever banished from the dis-
trict." (By-laws of Dec. 10, 1860, Union Mining District, Clear Creek
County, Colorado. Vol. XIV Tenth U. S. Census, p. 373. See also, p. 411).
This is one original sin which the lawyers cannot be charged with. They
usually frame most legislation but the democratic mining camp usurped this
privilege in the case of the extralateral right.
76 See Bullion Mining Co. v. Croesus Mining Co. (1866), 2 Nev. 168,
176. Mark Twain wrote: "I have been through the California mill, with
all its dips, spurs and angles, variations and sinuosities. I have worked
there at all the different trades known to the catalogue." American
Stationer.
77 Congdon's Mining Laws and Forms (1864), p. 168, San Francisco,
uses the words "dips, spurs and angles" in standard form of mining deed.
78 As Senator Conness said in the Senate debate on the part of the bill
conferring extralateral rights: "That simply is no change; it is the law of
the mines now." Congressional Globe (June 18, 1866) p. 3234.
462 CALIFORNIA LAW REVIEW
have met him with a delegation, politely described in the pioneer
days as a "neck-tie party," or at least they would have carried a
rail and a goodly supply of tar and feathers. To have ignored the
extralateral right in those days would have meant to unsettle the
title to virtually all of the countless thousands of lode claims
which had already been acquired throughout the West. If any sin
was committed in perpetuating the extralateral right, the pioneer
miners of the West, and the legislatures of the Western States and
Territories, and not Senator Stewart, were primarily responsible.
All that he added to the laws created by these pioneers, was the
privilege of securing a fee simple title through patent. Whether
they accepted even this desirable feature or not remained entirely
optional with them, for they might continue to hold their claims
under the possessory title afforded by their locations exactly as
they had been doing up to that time under their own local laws. A
very few districts had to change their rules and recognize that
quartz locations made after the passage of the act 79 must conform
to the prescribed two hundred foot length along the lode for each
claimant, but as we have seen, this had already become the univer-
sally accepted length and most of the state and territorial laws
had already anticipated the federal act, so this limitation was not
an innovation. The extralateral right as already noted, had also
become a characteristic feature of practically all of the mining
districts and the Act of 1866 in recognizing it, continued the grant
of the right in the identical language employed by the great
majority of the local regulations and western legislatures so that
few districts had to change their laws in this respect. 80
It is not the province of this article to discuss the workings of
the Act of 1866 and the interpretation placed by the courts on the
rights conferred by the Act. The very excellent treatises on the
subject of mining law are referred to for this information. 81 It is
interesting to note in passing, that the Act of 1866 did not pre-
scribe the manner of determining the direction of the end bound-
79 Claims located prior to the passage of the Act were governed by the
local laws as to length. 1 Copp's Land Owner, p. 83.
80 "Usually a quartz claim follows the lode as deep into the earth as it
may go", (p. 184) .... "quartz claims ordinarily follow the lode, with its
dips and angles, to the full extent of its depth," (p. 186). Hittell, Hand
Book of Mining for the Pacific States (1861).
81 Lindley on Mines (3rd ed. 1914), 53-61, 566-577a; Costigan on
Mining Law (1908), pp. 14-18, 415-417; Morrison's Mining Rights (14th ed.
1910), p. 198.
EXTRALATERAL RIGHTS 463
aries of the length of vein located. Naturally the ascertainment of
the longitudinal limits of the segment of vein carved out in depth,
became important. The land department issued instructions pro-
viding that when not agreed upon between adjoining claimants nor
fixed by local rules, the end lines "shall be drawn at right angles
to the ascertained or apparent general course of the vein or lode." 82
It is strange that none of the district regulations seem to have pro-
vided the method of determining the exact measure of this right
to mine in depth. Judge Field in the celebrated Eureka Case 83
stated the proposition as if it were one already generally accepted,
that,
"Lines drawn down through the ledge or lode at right
angles with a line representing this general course at the end
of the claimant's line of location will carve out, so to speak, a
section of the ledge or lode within which he is permitted to
work and out of which he cannot pass."
This view was later upheld in the Argonaut-Kennedy case. 84 The
interesting feature of this situation is the fact that in both Derby-
shire and in Germany the laws granting the extralateral right were
equally indefinite regarding these end bounding planes and in each
country the generally accepted custom was to lay out the end line
planes at right angles to the general course of the vein. 85
The Act of 1866 was also found wanting in other respects. The
fact that no lateral surface width for a claim was prescribed by its
terms gave rise to great confusion and resulted in applications for
patents for claims of all conceivable shapes. 86 The restriction that
only one lode or vein could be owned in a claim also gave rise to
endless disputes and litigation. 87
No one had claimed that the Act of 1866 was perfect. It was
hastily prepared to forestall contemplated drastic legislation which
would have seriously crippled the mining industry in the West and
82 Yale, Mining Claims, p. 360.
83 (1877), 4 Sawy. 302, Fed. Cas. 4548.
84 Argonaut Mining Co. v. Kennedy Mining Co. (1900), 131 Cal. 15, 63
Pac. 148, affirmed on other grounds in Kennedy Mining Co. v. Argonaut
Mining Co. (1903), 189 U. S. 1, 47 L. Ed. 685. This decision was the first
to definitely determine the extent of the extralateral grant, and was
rendered fifty years after the right was initiated. See also pp. 99, 52, Lord
U. S. G. S. Monograph IV.
8 M California Law Review, 366, 375-6, n. 13 and 14, 378, n. 42.
86 See Lindley on Mines, 59.
87 Senator Stewart remarked in the debate on the Act of 1872 : "Now,
for want of a more definite rule the whole region is in litigation. Every
man who goes West to locate a claim finds so much local legislation which
is uncertain that he is discouraged ; he finds the neighborhood in litigation."
464 CALIFORNIA LAW REVIEW
was generally recognized as being crude and incomplete, though "a
step in the right direction." Senator Stewart later prepared a bill
calculated to remedy the objections to the Act of 1866 already
noted, and which passed the Senate, February 8th, 1871, but failed
in the House for lack of time. 88 This bill contained many of the
features of the subsequent Act which was adopted in 1872. It con-
tained an interesting clause not found in the Act of 1872, pro-
viding not only that the end lines should be parallel but also that
they should be "at right angles with the general course of the
vein." 89
A discussion of the Federal Act of 1872 which superseded the
Act of 1866 and which is the mining law now in force in the
Western States is appropriately reserved for separate presentation.
Wm. E. Colby.
Berkeley, California.
The various objections to the Act of 1866 and a detailed discussion of its
shortcomings as well as recommendations for curative legislation are to be
found in Raymond, Mineral Resources (1870), pp. 421-444.
88 Senator Stewart in the debate that preceded its passage in the
Senate said: "This bill makes no change in the principles of legislation
heretofore had as to mining claims, except that it limits in certain instances
the rights of miners to make laws for themselves and defines the shape
of their claims more definitely. It is a bill that has been sent out five or
six times in various forms through the mining states and territories." Con-
gressional Globe, February 8, 1871.
89 This bill is set forth in Raymond, Mineral Resources (1872), pp. 496-
499, and is followed by an interesting comment by Raymond, pp. 499-502.
Dr. Raymond had already prepared a draft of a bill along similar lines.
Mineral Resources, (1870), pp. 442-444. Hon. E. F. Dunne of Nevada, at
Raymond's request, had also prepared a bill providing that the owner of a
patented claim might follow his vein into the tract adjoining and "shall be
entitled to all mineral within twenty feet of the walls of said vein." (Id.
p. 436). This is the only suggestion of the adoption in America of the
Germanic form of extralateral right that has come to the writer's attention.
California Law Review
Volume V NOVEMBER, 1916 Number 1
The Extralateral Right: Shall It
Be Abolished?
I
The Extralateral Right: Shall It
Be Abolished?
III. THE FEDERAL MINING ACT OF 1872.
It was generally recognized that the law of 1866 was a long
step in the right direction, inasmuch as it gave explicit federal
sanction to mining on the public domain and thus set at rest any
question as to what attitude the government would take toward the
miners who were for eighteen years prior to its passage technical
trespassers. 1 Everyone recognized that the Act of 1866 had been
hastily prepared and passed to meet an emergency and thus forestall
legislation hostile to the mining interests. Senator Stewart himself
in urging the bill of 1871 in the Senate referred to the bill "as
an amendment to the law of 1866 that was passed through in rather
a crude state." 2 In the next Congress Senator Stewart was again
the leader in framing the bill which during that session became the
Act of 1872 and was its most active champion. A draft of a pro-
posed act had previously been sent through the mining districts for
criticism and the discussion had covered a period of two or three
years.
The bill which had passed the Senate in 1871 was reintroduced
in the next session of Congress and passed the House. 3 This bill
X A similar situation has but recently arisen on the public domain in
connection with the immensely valuable oil lands of California and Wyom-
ing. Oil miners had gone on the public lands, though in this case at the
invitation of the government, and expended fortunes in some instances in
developing oil. The placer mining law was plainly unsuited to these novel
conditions, where discovery of the oil lying at great depth required large
capital and considerable time. Many claimants failed to comply with all
of the technical requirements of this law and while certain remedial legisla-
tion was passed by Congress to improve the situation, the federal govern-
ment has more recently treated these operators as trespassers and now
seeks not only to eject them from these lands but also to recover the value
of the oil theretofore extracted. This reversal of the liberal policy adopted
by Congress in 1866 is due to the growth of the idea that the best interests
of the public demands the reservation and control by the federal govern-
ment of all natural resources which are vital to the future welfare of the
nation and that this new policy is especially applicable to lands containing
petroleum which is in demand for use in the navy. 3 California Law
Review, 272-291.
2 Congressional Globe, Feb. 6, 1871, p. 978.
3 Dr. Raymond in commenting on this bill said : "In its main features
it is an eminently wise and salutary measure. Senator Stewart has dis-
played both courage and judgment in its preparation, and has given new
proof of intelligent, earnest devotion to the true interests of the mining
industry. Raymond, Mineral Resources (1872), p. 502.
EXTRALATERAL RIGHTS 19
left the length of lode claims the same as under the Act of 1866 but
provided for a maximum width of three hundred feet on each
side of the middle of the vein at the surface and prescribed that
the end lines should be parallel and at right angles with the general
course of the vein. 4
After the bill had passed the House, the Senate Committee on
Mines and Mining evidently did its real work. The various
features of the law that required changing were extensively
debated. There appeared before this Committee representatives of
the mining interests of the West.
Senator Alcorn of Mississippi had charge of the bill as chairman
of the Committee and while disclaiming any special knowledge
of the subject, yet, as a matter of accomodation, stood sponsor for
the measure when it came before the Senate, saying:
"This bill has been considered by the Committee with great
care, each section of the bill has been discussed, and the
result is that the report embodies the intelligence brought to
the Committee by various persons who appeared before it in
the interests of the mining districts As to its
practical working, I will only say that it is in conformity
with what seems to be the settled policy of the Government
with regard to mining." 5
Senator Stewart, who was the real advocate of the bill
in its revised form the form which was substituted for the
House bill, already passed by that body, outlined the gen-
eral situation leading up to its framing as finally presented
for passage. His years of experience with actual conditions
4 Congressional Globe (Jan. 23, 1872), p. 533. Mr. Sargent representing
California, who had charge of this bill in the House, urged its passage
saying : " . . . . The bill does not make any important changes in the min-
ing laws as they have heretofore existed. It does not change in the
slightest degree the policy of the Government in the disposition of the
mining lands Now, although the legislation of 1866 was extremely
imperfect in the machinery, which since that time we have been trying to
improve so that it might be easier for miners to avail themselves of the
benefits intended to be conferred upon them by law, yet it showed to
observers that the system was correct This bill simply oils the
machinery a little; it does not change the principles of the law; it does not
change the tenures; .... Congressional Globe, Feb. 6, 1871, p. 978.
In urging the passage of the Placer Act of 1870, Sargent had used the
following language in describing the origin of these mining laws: "The
original title or possession depended upon mining laws a code originally
written, modified afterward by custom a code as well settled and under-
stood by our courts and by the miners themselves as is the Common Law of
England by the Courts of the United States a code eminent for its wisdom,
perfected by long experience, and admirably adapted to the conditions and
necessities of the people among whom it originated."
5 Congressional Globe, April 16, 1872, p. 2460.
20 CALIFORNIA LAW REVIEW
in the mining districts of the West and his active interest in
mining legislation, ever since he took the leading part in secur-
ing the adoption of the Act of 1866, add immeasurably to the
weight of his views, which were as follows :
" .... In the first instance the miners legislated
for themselves. Congress finally in 1866 passed a bill em-
bodying many of the principles of this bill, and from that time
to this the Land Office has been operating under it, and for the
last three years we have been attempting to codify it and bring
it into a shape that will be satisfactory and more certain and
correct abuses. Last year a bill was introduced here and
passed which was quite similar to this. A bill has passed the
House which is similar to the one that passed here last winter.
Since its passage by the House the Delegates from the Terri-
tories and those familiar with mining rules have had a great
many meetings over this bill in connection with the Committee
on Mines and Mining, and the result is a codification, which is
the best they can do. I believe it will meet with universal
favor. It is a very important bill to be passed to prevent liti-
gation and give certainty to mining enterprises. It provides
for a very large district of country where there are important
interests dependent upon it which are now in a very uncertain
condition involving litigation. This is the best we can get
with all the experience we can bring to bear. It is no one
man's work, but it is the work of a great many men interested
in this business " 6
When the bill as amended in the Senate came up in the House
for re-passage, Representative Sargent of California made the fol-
lowing comment :
". . . . the variations from the bill as passed by the
House are very trifling 7 In the Senate the
Committee on Mines and Mining and the Delegates and
members of the House from the mining Territories and States,
aided that Committee in perfecting the bill and improving its
machinery. The bill is now entirely satisfactory to every
Delegate and every member of the mining States and Terri-
tories, as well as to the Committee on Mines and Mining of
this House." 8
The bill as amended passed without any great opposition. In
fact the main debate and criticism came from Western members
of Congress who were not entirely satisfied with some of the
changes made in the original bill by the Senate amendments. The
Id. p. 2457.
7 As a matter of fact they were not as trifling as Mr. Sargent would
have led his colleagues to believe.
a Id. p. 2897.
EXTRALATERAL RIGHTS 21
right of free mining was not seriously challenged and the subject
of the extralateral right which was again confirmed by the new act
was not mentioned in the debates in Congress, an indication that no
objections of consequence had as yet been made against the con-
tinued exercise of this right. 9
The Act of i872, 10 again confirmed the right of free mining on
the public domain that had already been recognized in the Act of
1866. While the Act of 1872 was intended to limit the operation
of the miners' rules and regulations and make the mining law
throughout the West more uniform by prescribing in greater
detail the specific acts of location, yet the first section of the act
expressly provided that mineral lands might be acquired
"under regulations prescribed by law, and according to the
local customs or rules of miners, in the several mining dis-
tricts, so far as the same are applicable and not inconsistent
with the laws of the United States."
In this connection the following was said during the Senate
debate on the bill :
Mr. Trumbull (of Illinois).
" .... as I understand, it adopts as law the regu-
lations which the miners may make, which may be as various
as the mines."
Mr. Stewart.
"Allow me to say that the old law (Act of 1866) adopts
them. One of the difficulties is that they have legislated too
extensively since the adoption of that law. This curtails their
power of legislation, cuts it down to to a very small extent,
takes away most of it, takes anything that can be prejudicial,
and prescribes the rule so that their legislation cannot interfere
with it. That is the main object of the bill."
Section 2, provided that quartz or lode claims theretofore
located should be
"governed as to length along the vein or lode by the customs,
regulations, and laws in force at the date of their location.
9 When the Placer Act of 1870 was before the House, Julien of Ohio,
who had bitterly opposed the passage of the Act of 1866, could not resist
the opportunity to vent again his hostility, and speaking of the extralateral
grant of the latter Act said: "I admit that there may be a hardship in
allowing a man to discover and hold a lode or vein of mineral which can
be traced to the land of another from which he is debarred. There is hard-
ship in that ; but there is far greater hardship in the law as it now stands,
recognizing the right everywhere to pursue a vein or lode on the land of
another, inasmuch as it breeds interminable litigation and never can be
resorted to as a method of settling titles to these lands." Congressional
Globe, March 17, 1870, p. 2029.
10 U. S. Stats, at Large, p. 91 et seq.
22 CALIFORNIA LAW REVIEW
A mining claim located after the passage of this Act, 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 "
As already noted, when the bill to amend the Act of 1866 passed
the Senate in the previous session of Congress, and when the bill,
which, as afterwards amended, became the Act of 1872, was
reintroduced in the next session and first passed the House, it left
the length of the lode claims unchanged, that is, two hundred
feet along the vein for each locator and a maximum length of
three thousand feet in one claim for an association of persons.
The reasons for making this change were stated by Senator
Stewart in the course of the debate on the bill to be as follows :
" .... In the Act of 1866 it is true that the locator
was confined to two hundred feet, and two hundred feet ad-
ditional for the discoverer of the lode, making four hundred
feet. It allowed him to unite in companies until they got three
thousand feet. In practical operation it is thought by the
Delegates generally, and that is the experience, that three
thousand feet is longer than can be worked at one place con-
veniently, but fifteen hundred feet makes a very reasonable
claim. The practice under the other law was for them to put
in fictitious names and buy them out, and you could not pre-
vent them doing it. This matter was discussed considerably;
we had several meetings on this point and the committee
thought it was best to let them do directly what was reason-
able, and not have them do anything indirectly. 11 It is a matter
to which I am not especially wedded, but it was the result of
three or four meetings of all the parties interested as to which
plan should be adopted, and this was the one which was
selected."
Mr. Cole, (one of the Senators from California).
"I have heard the Senator's explanation, and it is not
satisfactory to me at all, because I know by the rules of
miners claiming the mines upon these ledges for a long time,
11 It is worth noting that this same act amended the Placer Act of
1870 by reducing the amount of ground that an individual could locate from
160 acres to 20 acres and by providing that an association of eight persons
was necessary to locate 160 acres in one claim. Revised Stats., 2330. This
change gave rise to the same use of fictitious names or "dummies" in the
case of placers, that Senator Stewart points out had occurred in the case
of lodes, in order that an individual might acquire indirectly what the law
prohibited him from acquiring directly. It is strange that this defect in the
lode law should have been remedied by the same statute that injected it
into the placer law. It was due to the fact that Mr. Cole of California,
who evidently did not believe in large claims and who had objected to the
increase of length of lode claims from 200 feet to 1500 feet, insisted on
reducing the placer area an individual might locate from 160 to 20 acres.
See Congressional Globe.
EXTRALATERAL RIGHTS 23
two hundred feet was the limit to which they restricted each
other, and to allow persons now to obtain title, each individual
to fifteen hundred feet upon the 1r de, is certainly a very great
leap forward. It is in my judgment too much of an exten-
sion/' 12
Mr. Casserly: "Does the Senator (Stewart) consider
that there is no danger of abuse in allowing so great a
quantity?"
Mr. Stewart "None in the world." 13
Another clause of Section 2 provided that "no claim shall
extend more than three hundred feet on each side of the middle
of the vein at the surface," and no mining regulation was permitted
to reduce the width to less than twenty-five feet on each side of the
vein. This provision was an attempt to bring uniformity out of the
chaotic condition previously existing under the Act of 1866, which
had only prescribed a uniform linear measurement along the vein
and had left the determination of the surface area accompanying
the vein to be determined by local laws. The Act of 1866 had
granted a certain length of lode, but the shape and size of the
surface area of the claim were incidental, while the Act of 1872
granted a surface area of prescribed dimensions containing the
lode. 14 The intention of the miners under their earlier regulations
prior to 1866, judging from the phraseology of the rules and their
lack of regard for lateral surface measurements, was undoubtedly
to secure to the locator a certain length of lode irrespective of the
surface containing it. 15 The courts later held, however, that a
patent granted under the Act of 1866 conveyed rights only to the
length of lode actually included in the surface boundaries of the
claim as patented, and the fact that greater number of linear feet
along the lode was claimed under the rules and regulations of
miners did not give the claimant any right to any portion of the
length of the lode outside of his surface lines. 18 The Act of 1872
cleared up this objectionable situation by emphasizing the surface
and prescribing a definite and conventional surface area which was
theoretically, at least, to include the middle of the vein at the sur-
12 Congressional Globe, April 16, 1872, p. 2458.
13 Id. p. 2462.
"Lindley on Mines, 71; Gleeson v. Martin White M. Co. (1878), 13
Nev. 442.
15 " .... the claim was of so much of the lode in whatever direction it
might be found to run, with a strip of the adjacent surface, taken for con-
venience in working the lode and as a mere incident or appurtenance
thereto." Beatty, Report of Public Land Commission (1880), p. 397.
16 This situation and its development is comprehensively treated in
Lindley on Mines, 58-60.
24 CALIFORNIA LAW REVIEW
face. As was stated by Dr. Raymond in his comment on the Act
of 1872:
"The section giving absolute title to a certain surface and
and all veins 'topping' within vertical lines drawn from the
boundaries of that surface-claim, is necessary to prevent
special litigation." 17
This surface provision of the Act of 1872 was but the adoption
of a stereotyped form of surface measurement for lode claims
that had been in existence for centuries in the Germanic and Derby-
shire lode mining laws. Under these latter laws a specified surface
width on each side of the vein at the surface was the prescribed
mode of laying out lode claims. 18 Whether these foreign laws
served as a model in this respect is doubtful. There is nothing in
the Congressional debates on the bill which gives us information
on this point and the hearings of the Committee on Mines and
Mining where the source of the provision might have been noted are
not available. It has already been mentioned that many of the
mining district regulations prescribed the maximum width of lode
claims which should be measured "on each side of the center of
the lead," and that in some of them as well as in the territorial
legislation of Arizona a maximum total width of six hundred feet
or two hundred yards for each claim had been prescribed. 19 It
is probable that this provision of the Act of 1872 was patterned
after these local laws.
A very interesting feature of Section 2 of the Act of 1872 was
the concluding provision of that section providing that "The end
lines of each claim shall be parallel to each other." The Act of
1866 was silent on the subject of end lines of lode locations and as
a consequnce end lines of locations made under the Act were
seldom parallel and often broken and of varying length. As Justice
Field stated in the Eureka case, 20 end lines or rather end line
planes at right angles to the general course of the vein were implied
under the Act of i866. 21 A careful search of local rules and state
17 Raymond, Mineral Resources (1873), p. 453.
18 4 California Law Review, pp. 365-6, 375.
19 Id. pp. 448-450.
20 (1877), 4 Sawy. 302; Fed. Cas. 4548.
21 The Germanic and Derbyshire laws were equally silent on this sub-
ject of the manner of making end line measurements and yet each of these
laws was interpreted to impliedly confer extralateral rights between end
line planes at right angles to the general course of the vein. Even under
the Spanish mining ordinances of 1783, the surface claim was a rectangle
with end lines, theoretically, at least, at right angles to the course of the
vein. See 4 California Law Review, pp. 366-7, 375-6, 383.
EXTRALATERAL RIGHTS 25
and territorial legislation fails to disclose any which provided that
the end lines of locations should be either at right angles to the
general course of the vein or that they should be parallel, except
the territorial laws of Arizona which called for lode locations with
a surface two hundred yards square and the right to follow the
vein on its dip. Attention has been called to the fact that the bill
introduced in Congress in 1871 and the similar bill as originally
introduced in the next session, which eventually, as amended,
became the Act of 1872, provided that the end lines should be
parallel "and at right angles with the general course of the vein,"
thus adopting what had theretofore been commonly accepted as the
legal longitudinal limitation of the segment of vein located. Why
the right angle end line provision was eliminated from the bill
as finally adopted and only the requirement of parallelism retained
does not appear in the debates and was probably determined upon
at the unreported hearings in Committee. Evidently the idea was
to permit the locator to lay out his parallel end lines in any
direction and thus enable him to follow down on a valuable ore
shoot in the vein which might trend or rake away from the true
dip or perpendicular. If this was the intention, it was "putting the
cart before the horse," for it is rarely that the locator at the
time of location has any idea where ore shoots exist in the piece of
vein he locates and much more rarely that he knows their trend.
End lines might after location be readjusted as to direction and in
this manner the locator might be enabled to include within his
extralateral sweep a valuable ore shoot subsequently discovered and
to follow it down. In practice, however, by the time the facts are
discovered, contiguous locations on the apex of the vein will
usually prevent such readjustment. It would seem to have been
preferable to have retained the right angle end line requirement,
for under such a rule end lines of locations placed along the apex of
a vein would be more nearly uniform in direction, and conflicting
extralateral rights in depth much less frequent. Of course, a
decided change in the direction or course of the vein at the surface
would have produced underground conflicts if the requirement of
end lines at right angles to the local course of the vein were strictly
followed. But the language of the earlier mining bill called for
right angle measurement to be made from "the general course of
the vein." If this wording had been retained in the Act as finally
passed it would certainly have materially lessened the litigation
directly traceable to the extralateral right provision. By laying
26 CALIFORNIA LAW REVIEW
out a base line on the surface representing the general course of
the vein, as was done on the Comstock lode and also for a time
in Australia, then projecting the end lines of the various
claims taken up along the vein at right angles to this base line,
and thus measuring the extent of each locator's right to follow the
vein extralaterally down on its dip, there would have been afforded
the most scientific and harmonious measure of this right possible
to devise. 22
Section 3 of the Act of 1872 is as follows : 23
"That 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 as-
signs, where no adverse claim exists at the passage of this
act, so long as they comply with the laws of the United States
and the state, territorial, and local regulations, not in conflict
with said laws of the United States, governing their posses-
sory 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 perpen-
dicular in their course downward as to extend outside the
vertical side-lines of said surface locations; provided, that
their right of possession to such outside parts of said veins
or ledges shall be confined to such portions thereof as
lie between vertical planes drawn downward as aforesaid,
through the end-lines of their locations, so continued in their
own direction that such planes will intersect such exterior
parts of said veins or ledges. And provided further, that
nothing in this section shall authorize the locator or pos-
sessor 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."
This section is identical with Section 3 of the bill which passed
the Senate in 1871. It merely confirms in more elaborate and ex-
plicit language the right which had been created by the early
miners, subsequently written into their local regulations and state
and territorial legislation, and later recognized in the Act of 1866.
The only point of material difference was the extension of this
right under the Act of 1872 to "all veins" which were found to
22 See "The Law of Apex" (1914) by Kenney, a volume devoted to an
expostion of this interesting principle. Also see 4 California Law Review,
p. 385.
2 * See U. S. Revised Stats., 2322.
EXTRALATERAL RIGHTS 27
apex within the surface of each location. The Act of 1866 had
confined the extralateral right to the one main vein. This had
given rise to so much uncertainty and litigation that it was
deemed best to extend the right to all veins occurring in the
surface area located, thus removing the temptation to trespass
on another's claim in the attempt to discover or locate a secondary
vein which might exist therein. 24
The use of the words "top" or "apex" with reference to the
veins found in the surface location, appears to have been the
first use of these terms in this relation. 25 The miners' regulations
the state and territorial legislation and the Act of 1866, all pro-
vided for the location of a specific "length along the vein." It
was taken for granted that this meant that the location should
include the outcrop or "top or apex" of the vein or that portion
of its upper or terminal edge lying nearest the surface. 26 With
the appearance of these terms in the Act of 1872 came into exis-
tence the expression the "Law of the Apex," which has since been
extensively used to describe the extralateral right feature of the Act.
The use of these terms, however, did not change the character
of the extralateral right one iota; they were merely descriptive
of a portion of the vein which it had always been assumed must
form the basis of the location.
This discussion is concerned only with those portions of the
Act which have a direct bearing on the extralateral right. Sec-
tion 4 granted a unique tunnel right which included the right
to such veins or lodes as might be discovered in the tunnel. 27
Aside from a provision contained in Section n applicable to
veins found to exist in placer claims and Section 14 which pro-
vided that priority of title should govern where veins intersected
or crossed each other and also where they united in depth, the
Act was devoted to other subjects than the extralateral right.
24 "The law of 1866 was fatally deficient .... in failing to prohibit
prospecting within the surface-lines of an already located claim" but the
amendment of 1872 may be considered ample to remedy this defect. Ray-
mond, Mineral Resources (1874), p. 513. See also Raymond, Mineral Re-
sources (1870), pp. 433-436.
25 Stevens v. Williams (1879), Fed. Cas. No. 13,414. For a complete
discussion of these terms, see Lindley on Mines, 305-313.
26 The Derbyshire and Germanic laws only called for a certain length
of vein and there was no attempt to define the portion of the vein to be
located. It was assumed that this would be the top or upper edge of the
vein.
27 This provision was included for the protection of certain Colorado
miners. Senator Stewart in Congressional Globe (1872), pp. 978-9.
28 CALIFORNIA LAW REVIEW
Looking at the Act of 1872 broadly we see that the funda-
mental principles created by the miners under their own laws
and customs, later embodied in state and territorial legislation and
eventually crystallized in the Act of 1866, were not materially
altered by the Act of i872. 28 The basic right of free mining
was retained unchanged and the extralateral right was again
confirmed, though in more elaborate language. With the excep-
tion of the parallel end line provision which supplanted the implied
right angle end line measurement under the previous law and the
grant of all veins found apexing in the surface location, the extra-
lateral right remained the same in substance. As already noted,
the surface area obtainable under the new act was described with
great detail. The adoption of the basic features of the miners*
laws, and the elaborate provision contained in the Act govern-
ing acquisition of the surface claim rendered the local rules and
regulations of the mining districts practically obsolete. Though
the Act recognized such local laws and customs as did not conflict
with the federal Act their value was largely a thing of the past.
They had served their important purpose and they gradually died
a natural death.
The Act of 1872 was generally considered a great improve-
ment over the imperfect and incomplete Act of i866. 29
It was later codified and became a part of the federal Re-
vised Statutes, 30 and is, with a few minor additions and modifi-
cations, the mining law in force today governing the acquisition
of mineral lands on the public domain. The extralateral right
feature of the Act has remained unchanged. It is not the purpose
of this article to present the detailed interpretation of this extra-
28 "It (the Act of 1872) recognized the essential principles found in the
miners' regulations." Charles J. Hughes, Jr., Address on "The Evolution
of Mining Law." XXIV, Reports of American Bar Association (1901),
p. 344.
29 Judge Beatty said in the Gleeson v. Martin White M. Co. case,
supra, n. 14, referring to the Act of 1872: "Nobody can pretend that it is
perfect; but to our minds it is a great improvement on the system which
it displaced."
Dr. Raymond in commenting on the Act, wrote: "It embodies much
that I have advocated in former reports, and I think it will be approved by
the large body of practical miners in the United States, who whatever
criticisms they may make upon particular provisions, must agree in com-
mending the tone which mining legislation has assumed, and the character
of the protection offered to their property." After making some minor
criticisms of features of the law, he added : "Nevertheless it is certain that
the present law is a great advance on anything we have had." Raymond,
Mineral Resources (1873), p. 454.
3o8 2319-2337.
EXTRALATERAL RIGHTS 29
lateral grant, gradually built up by court decisions. This may be
found in the leading works dealing with the subject of mining
law. 31
Before taking up the concluding phase of this discussion, which
will be a consideration of the proposed abolition of the extra-
lateral right, it may be worth while to sum up briefly the evidence
bearing on the origin of the extralateral right in the United
States.
If the miners' rules and regulations were patterned after mining
laws of other countries we have no direct evidence bearing on
the question. There were men, however, who would have been
likely to have possessed some information on this subject if it
had existed. Senator Wm. M. Stewart who, as we have seen,
not only took the leading part in framing the Act of 1866, but also
did more than anyone else in drafting the Act of 1872, had spent
years in the mining districts and associated with other Senators
and Congressmen from the West who aided in moulding this legis-
lation and, as the debates reported in the Congressional Globe of
that period show, were, many of them, originally miners them-
selves. Senator Stewart also met with delegations of miners
from the Western States and Territories and discussed extensively
all of the features of the mining law.
Stephen J. Field had grown up with the mining dis-
tricts. He represented the miners in the California State legis-
lature in 1851, and secured the enactment of the section of the
Practice Act making the customs, usages and regulations of the
"bar or diggings" govern in actions respecting mining claims.
He had previously been an alcalde and later went from the
supreme bench of the State to the Supreme Court of the United
States. As Judge Lindley has said in his eloquent tribute to
Justice Field, he had "the practical knowledge acquired by per-
sonal contact with the mining communities" and "was a part of
the history of which he wrote/' 32
Justice Wm. H. Beatty was for years a district judge in the
mining regions of Nevada and became the Chief Justice of the
Supreme Court of that state and later, up to the date of his
recent death, was Chief Justice of the Supreme Court of Cali-
31 Lindley on Mines, 581-615; Costigan, Mining Law, pp. 417-452;
Barringer & Adams Law of Mines, pp. 437-470; Morrison, Mining Rights,
(14th ed.), pp. 192-219; 1 California Law Review, pp. 336-358.
a 2 Lindley on Mines, 44.
30 CALIFORNIA LAW REVIEW
forma. He was greatly interested in the miners' rules and regu-
lations and thoroughly conversant with their history.
These three men were pre-eminently qualified to discuss the
evolution of the mining law of the West ; each of them was deeply
interested in its origin and development and they were con-
stantly in direct contact with the pioneer miners and discussed
problems arising out of the mining industry. One or the other
of these men would surely have learned of the source of these
local laws if this source were directly traceable to mining laws
of other countries. On the contrary, we nowhere find in their
remarkably lucid and complete presentations of the history and
development of these laws any reference whatsoever to any foreign
mining law as furnishing the basis for these early customs and
regulations.
Senator Stewart in his famous speech in the United States
Senate advocating the passage of the Act of 1866, described the
exciting emigration to California following upon the discovery
of gold, saying:
"Upon the discovery of gold in California, in 1848, a large
emigration of young men immediately rushed to the modern
Ophir. These people, numbering in a few months hundreds
of thousands, on arriving at their future home found no
laws governing the possession and occupation of mines but
the common law of right, which Americans alone are edu-
cated to administer. They were forced by the very neces-
sity of the case to make laws for themselves. The reason
and justice of the laws they formed challenge the admiration
of all who investigate them. Each mining district, in an area
extending over not less than fifty thousand square miles,
formed its own rules and adopted its own customs. The
similarity of these rules and customs throughout the entire
mining region was so great as to attain all the beneficial re-
sults of well-digested, general laws. These regulations were
thoroughly democratic in their character, guarding against
every form of monopoly, and requiring continued work and
occupation in good faith to constitute a valid possession." 33
Nowhere in his entire eloquent appeal for recognition of the
principles established by the miners themselves, with its many
detailed references to the democratic origin of these rules, does
Senator Stewart mention their having been patterned after mining
laws of other countries.
3370 U. S. 777, Appendix.
EXTRALATERAL RIGHTS 31
In his classic description of the gold rush to California,
Justice Field, speaking of the pioneers, says :
"Wherever they went, they carried with them that love
of order and system and of fair dealing which are the promi-
nent characteristics of our people. In every district which
they occupied they framed certain rules for their government,
by which the extent of ground they could severally hold
for mining was designated/* etc ..... They were so
framed as to secure to all comers,, within practicable limits
absolute equality of right and privilege in working mines.
Nothing but such equality would have been tolerated by the
miners, who were emphatically the lawmakers, as respects
mining, upon the public lands in the State." 34
Justice Field above all others should have known whether these
laws were of foreign origin and yet he makes no reference to
any such source.
Justice Beatty while Chief Justice of the Supreme Court of
Nevada was requested by the Public Land Commission to give
his views on the mining laws. 35 From his comprehensive and
illuminating reply the following is quoted : 86
"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 them-
selves became a necessity. They were adopted, not because
the subject was too complicated or difficult for general regu-
lation, but because they were needed at once as the sole
refuge from anarchy. The first and most important matter
to be regulated was the size of claims, and the earliest min-
ers' rules contained little else than a limitation of the maxi-
mum amount of mining ground that one miner might hold."
He outlined the addition of other requirements to the placer
rules and then added :
"After these regulations 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 placer was adapted with the least
possible change."
It is quite clear that Justice Beatty did not have in mind any
thought but that the lode mining regulations were founded on
the placer rules that had just been established and that it was
a natural step from the one to the other. 37 If he had entertained
v. Kirk (1878), 98 U. S. 453, 457-8.
35 Report of the Public Lands Commission (1880), pp. 395-402.
36 Id. p. 396.
37 J. Ross Browne entertained the same view, for in his report of 1867
on Mineral Resources, p. 231, he states that the early quartz regulations
were framed "under the influence of persons familiar only with small
claims customary in the placers."
32 CALIFORNIA LAW REVIEW
any idea that the local lode laws were patterned after any sys-
tem of mining law imported by miners from foreign countries,
he would certainly have mentioned a fact of such unusual in-
terest.
The mere failure of these three distinguished men, who were
admittedly pre-eminent in their knowledge of the subject with
which they were so intimately associated, to mention the fact
that our lode mining law had a foreign origin, does not, of
course, prove conclusively that it did not have some such basis.
However, all fair minded persons must admit that such foreign
influence if it actually existed must have been kept a profound
secret, otherwise one or the other of these men would certainly
have learned of it and called attention to it.
The main support for the idea that our lode law and its extra-
lateral right was derived from foreign sources is to be found in
Yale on "Legal Titles to Mining Claims, etc." Speaking of the
origin of these rules and regulations he says : 38
"The real mining code, as far as it can be traced by legal
ear marks, has sprung from the customs and usages of the
miners themselves, with rare applications of common law
principles by the Courts to vary them. Most of the rules
and customs constituting the code, are easily recognized by
those familiar with the Mexican ordinances, the Continental
Mining Codes, especially the Spanish, and with the regula-
tions of the Stannary Convocations among the Tin Bound-
ers of Devon and Cornwall, in England, and the High Peak
Regulations for the lead mines in the county of Derby.
These regulations are founded in nature, and are based upon
equitable principles, comprehensive and simple, have a com-
mon origin, are matured by practice, and provide for both
surface and subterranean work, in alluvian, or rock in situ.
In the earlier days of placer digging, in California, the large
influx of miners from the western coast of Mexico, and from
South America, necessarily dictated the system of work to
Americans, who were almost entirely inexperienced in this
branch of industry, with few exceptions from the gold mines
of North Carolina and Georgia, and from the lead mines of
Illinois and Wisconsin. The old Californians had little or
no experience in mining. The Cornish miners soon spread
themselves through the State, and added largely by their
experience, practical sense, and industrious habits, in bring-
ing the code into something like system. The Spanish-
American system which had grown up under the practical
(1867), pp. 58-9.
EXTRALATERAL RIGHTS 33
working of the mining ordinances for New Spain, was the
foundation of the rules and customs adopted.
"Senator Stewart has ascribed undeserved merit to the
early miners in pronouncing them the authors of the local
rules and customs But they were not the
spontaneous creation of the miners of 1849-50. Historical
accuracy ascribes a different origin to them. They reflect
the matured wisdom of the practical miner of past ages,
and have their foundation, as has been stated, in certain
natural laws, easily applied to different situations, and were
propagated in the California mines by those who had a
practical and traditional knowledge of them in their varied
form, in the countries of their origin, and were adopted, and
no doubt gradually improved and judiciously modified by the
Americans. This self-evident fact can be admitted without
detracting from our national pride."
Yale also gives General Halleck's opinion of their origin. 39
"General Halleck ascribes to them a more limited origin,
otherwise agreeing in the statement made. In his introduc-
tion to the translation of De Fooz, he says: 'But the min-
ers of California have generally adopted, as being best suited
to their peculiar wants, the main principles of the mining
laws of Spain and Mexico, by which the right of property
in mines is made to depend upon discovery and development;
that is, discovery is made the source of title, and develop-
ment, or working, the condition of the continuance of that
title. These two principles constitute the basis of all of our
local laws and regulations respecting mining rights/ (De
Fooz, S) 7.)"
He concludes with a statement which more nearly embodies
what is probably the real truth of the matter as far as the origin
of these laws is concerned.
"An examination of the mining codes of different nations,
tracing them back to remote antiquity, and through modern
legislation, tested by the philosophical principles of compara-
tive law, would, probably, result in the conclusion that they
have a common origin, maintaining certain general equitable
principles upon which all are agreed, and differing only in
the details which a diversified ownership, the peculiarities of
race, and condition of locality necessitate."
It seems quite certain that both Mr. Yale and General Hal-
leck are mistaken in attributing the origin of these rules and
regulations to Spanish influence. As already pointed out, the
Spanish-Mexican mining laws were inoperative and unknown in
39 Id. p. 71.
34 CALIFORNIA LAW REVIEW
this new region at the time the early miners' laws were framed. 40
The requirements of discovery and development were universal
requirements and were not characteristic of Spanish law alone.
Direct Germanic influence is also doubtful and the complex
Germanic form of extralateral right is so different from the
simple form of this right which developed in this country that
the Germanic extralateral right could only remotely have sug-
gested the idea here. 41
Many writers attribute the source of our mining laws to
Cornish influence. This idea does not seem well founded, for
no extralateral right was exercised in the tin mines of Corn-
wall or Devonshire and the ancient right of tin bounding or
right of staking out a mining claim on waste land had almost
ceased to be exercised. 42 Most of the lode mining in Cornwall
and Devon was carried on under leases from the Duke of Corn-
wall. 43 The fact that the Duke of Cornwall had the right to
these mines and in leasing them, naturally, gave the lessee the
right to follow the veins down indefinitely in depth and thus
severed them from the surface, may have had something to do
with the idea expressed in the early regulations here, that the
vein was the principal thing and the surface a mere incident.
It cannot be denied, however, that the Cornish influence was
pronounced. The early and widespread use in the miners' regu-
lations of the term "lead" or "lode" and the appearance in these
local rules of such terms as dips, spurs, angles, slides, fitters
(flitters), leaders, dial (survey), offshoots is quite positive evi-
40 4 California Law Review, pp. 437-8; Hon. Charles T. Hughes, Jr., in
his interesting article on "The evolution of Mining Law" (Vol. XXIV,
Report of American Bar Association, p. 343) in summing up his views, has
this to say on the Spanish influence: "The early miners, in their mountain
gulches, in their humble cabins, at their primitive assemblages, unfamiliar
with the history of mining laws and regulations in the old world, and
even with the Spanish regulations which had prevailed in the very territory
which they occupied, seized upon the aptest, wisest and most beneficial
principles which could have been adopted, and by vigorous, strenuous, inde-
pendent, but respectful assertion of their rights, secured their recognition
at the hands of the general government, to the incalculable enrichment and
advantage of the entire nation."
41 Aguillon in his "Legislation des Mines, fitrangere" (1891), Part II,
p. 292, in commenting on the American extralateral right, says: "It is, one
realizes, the system of defining the claim by the ancient law, notably the
German system of Langenfelder or Gestrektefelder."
42 "Through the scarcity of wastrel land it (in bounding) has, how-
ever, become more or less obsolete." (Vol. II, Part I, p. 32) Transactions
of the Mining Association of Cornwall.
43 Bainbridge on Mines & Minerals (5th ed.), pp. 121, 133-134; Mac
Swinney, The Law of Mines etc. (3rd ed.), pp. 176-177.
EXTRALATERAL RIGHTS 35
dence that Cornishmen supplied a large part of the mining
vocabulary.
The resemblance of the extralateral right which was created
by the miners here to the similar simple form of that right
existing in Derbyshire, England, has led many to claim a direct
relationship. This is doubtful, and unless some direct proof of
Derbyshire influence can be adduced, the weight of evidence
seems rather opposed to this view. If the Derbyshire influence
had been pronounced, we would expect the Derbyshire term
"rake," meaning vein, to have supplanted the Cornish "lode," and
yet the word "rake" does not appear in any of the regulations.
If we examine the regulations themselves, the simplicity of
the language employed, and the variations of expression used in
the different districts to describe the same right, lead to the con-
viction that instead of being knowingly patterned after other
mining codes, these local laws were merely the direct outgrowth
of the necessities of the hour. It became necessary to appor-
tion the placer ground among the increasing number of miners
flocking into the mining districts and small square or rectangular
areas of surface were naturally adopted as the size of claim to
which each miner was entitled. But when veins became important
it was equally natural for the miner to apportion the vein in
short lengths and disregard the surface as something unimport-
ant, for the vein was the thing of value. To follow the vein
down on its dip to the extent that the miner owned of length
was also a natural and normal sequence, for the miner was
the discoverer of the top of the vein and why should he give
up to another the vein on its dip when that other had nothing
to do with finding it? Probably some such line of thought in
the minds of these pioneers resulted in the adoption of their
early rules regulating lode claims, including the extralateral right.
That they did not have in mind any definite laws as a pattern
granting the extralateral right to the locator, is further borne
out by the fact that the extralateral right first appeared in the
Saunders' Ledge regulations on June 6, 1851, in Nevada
County, where the words "dips and angles" were employed to
describe the right and one hundred feet in length on the ledge
constituted a claim while, on June 7, 1851, only the day fol-
lowing, the miners of Drytown Mining District, Amador County,
adopted regulations establishing the length of claims to be two
hundred and forty feet in length of the vein "without regard to
36 CALIFORNIA LAW REVIEW
width" which was only another way of expressing the same
idea that there was no limitation on the right to follow the
vein in depth. Other regulations granting the same right to
follow a certain length of vein indefinitely in depth were ex-
pressed in language which varied in each case. This diversity
of expression to convey the same general idea of a right to
follow down on the vein indefinitely and also the varying length
of vein awarded to the locator in different districts, argue strongly
against any idea of a definite prototype which influenced the
drafting of these regulations.
The resemblance of many features of these regulations to
the provisions of other systems of mining law is merely confir-
mation of the fact that if intelligent persons are confronted with
a state of affairs creating a situation which demands regulation
by a set of rules, they will frequently arrive at results similar
in their broader aspects. Dictates of common sense will usually
direct the adoption of rules based on equitable considerations.
It seems quite certain that the pioneer miners of California pro-
ceeded along similar lines and met the situation which con-
fronted them by adopting laws governing their mining opera-
tions, similar in many respects to other laws which had been
evolved elsewhere under like circumstances. The similarity was
a coincidence rather than the result of a deliberate recognition
of pre-existing laws. 44
Wm. E. Colby.
Berkeley, California.
44 Walmesley in "The Mining Laws of the World" (1894), p. 163 says:
"The California system was probably not due to Mexican influence.
The principle of possessory tenure, dependent upon continued work, is
probably German in origin, and passed from Germany to other countries.
Together with all the other peculiarities of the California system, it was
adopted under the pressure of the peculiar circumstances of the case, a
great rush of population to the gold-fields, more people than room for
them, no courts, no surveyors, and an overwhelming necessity for simple
right of property, based on priority and possession, and determinate by
mere tape-line measurement, without surveying. These causes adequately
explain the whole result." The basis of most of Walmesley's statements is
the testimony given by Dr. Rossiter W. Raymond before the Royal Com-
mission on Mining Royalties. (Third Report: England).
The presence here of foreigners in large numbers from all parts of the
world lends weight to the idea that in a broad way, at least, certain funda-
mental principles may have been suggested by them to the original framers
of these local codes, who may have thus been confirmed in their codification
of similar ideas.
The Extralateral Right: Shall It
Be Abolished?
IV. CONCLUSION.
GROWTH OF OPPOSITION.
WHEN the first concerted attempt to abolish the extralateral
right was made is uncertain. The Act of 1866 was
adopted without serious opposition to this feature. 1 It
is true that Julien in the House of Representatives attacked this
idea of granting a right "allowing one man to run half a mile
under the land of another" but he did this because of his bitter
opposition to the bill as a whole and not because he had any
special information on the subject. Instead of representing mining
sentiment in the West, he was the chief exponent of the plan which
had taken such a strong hold in the East of selling or leasing
the mines to the highest bidder and devoting the proceeds toward
liquidating the national debt. His opposition to the extralateral
feature was due to his general attitude of hostility to the desire
1 William M. Stewart who has been so frequently and unjustly charged
with forcing the federal mining Acts of 1866 and 1872 upon an unsus-
pecting public took a leading part in the Comstock litigation during the
early 60's. " .... it was his plan to induce the different companies on
the lode to put an end to otherwise certain litigation by defining their sur-
face lines or the boundaries of their claims accurately and finally
When the boundary lines were determined it was to be stipulated that
planes should be drawn perpendicular to these lines, extending indefinitely
downward and that the mining operations of all companies should bo
confined within the limits of the planes bounding- their respective
claims Now this was substantially a relinquishment of the cherished
but litigious principle which allowed a locator to follow the dips of his
ledge indefinitely, and a substitution of the often-decried Spanish or Mex-
can system of allotment Unfortunately, the trustees of the Choller
Company could not be persuaded to adopt Mr. Stewart's views, and he was
reluctantly obliged to abandon his project and continue the fight." This
role of Senator Stewart as champion of the vertical boundary system will
surprise many who have ignorantly charged him with having originated
the extralateral right idea in America. Comstock Mining & Miners by
Lord Monograph, IV U. S. G. S., p. 145.
The Eureka mining district of Nevada on February 27, 1869, adopted a
resolution, declaring that the mineral in that district was found in the form
of deposits rather than in true fissure veins or ledges and "Whereas this
deficiency in the law may give rise to expensive litigations," square claims
with vertical boundaries were adopted. Tenth U. S. Census, Vol. XIV,
pp. 551-2.
304 CALIFORNIA LAW REVIEW
of the West to have the long exercised right of free mining on
the public domain recognized by positive legislation.
When the bill to amend the Act of 1866 was introduced in
Congress in 1870 and 1871 and was finally enacted in 1872, no
comment whatsoever was made on the extralateral feature during
the course of the reported debates. Other provisions of the bill
were extensively debated and altered but the section conferring
the extralateral right remained unchanged and was not even
criticised. 2
Decided opposition to this feature of the mining law was
definitely expressed, however, before the Act of 1872 had been
in force many years. By Act approved March 3, i879, 3 Congress
authorized the appointment of a Commission to investigate the
operation of the public land laws of the United States and make
"such recommendations as they may deem wise in relation to the
best methods of disposing" of such lands. A consideration of
public mineral lands and the laws governing their disposition
naturally came within the scope of the investigation of this Com-
mission. This Commission made an elaborate report in i88o. 4
Commenting on the creation of a new class of public lands in
the United States ; viz., mineral lands, resulting from the discovery
of gold in California, the report states that the army of prospectors
who roamed over the mountain ranges in quest of speedy wealth
were not agriculturalists in search of homes but were composed
of persons who desired to obtain title to mines.
"As the region was a wilderness, and the authority of
the general government was but imperfectly extended over
the country, the miners framed for themselves regulations
for their own government crude, it is true, but in a general
way securing justice. Under these local regulations or laws
possessory rights to mineral lands were acquired which were
afterwards confirmed by statutory law, and thus this second
2 There may have been some discussion in committee but these proceed-
ings were not reported and the fact that the elaborately worded apex
section granting the extralateral right remained unchanged throughout all
this discussion when other features of the bill were being radically amended
and, as finally adopted in 1872, the fact that this section was identical in
language with the corresponding section of the bill that had been introduced
in the previous session of Congress, leads to the conclusion that there was
then no serious opposition to the extralateral right.
320 Stats, at L. 394.
*Pub. Land. Com. Rep. (Washington, 1880), 690 pp.
EXTRALATERAL RIGHTS 305
class of lands was practically recognized in the administration
of land affairs."
The Commission pointed out that if this land had been in
private ownership the prospector would have been barred
"and the mining industry which has so rapidly grown up in
that country would have .been delayed for years, perhaps for
centuries
"Free exploration and the right to acquire property in
mines by discovery led to the establishment of the great min-
ing industries of the West Thus a wise system of
administering affairs relating to mining lands must recognize
the importance of discovery in which poor men can en-
gage 5
"The United States mining laws of 1866 and 1872 are
directly descended from the local customs of the early Cali-
fornia miners/' 6
Investigating the operation of these mining laws which spread
from California throughout the West and which "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," 7 the Commission called attention
to the fact that east of the Missouri, mineral development was
almost exempt from litigation growing out of conditions of the
government conveyance of mineral lands while in the west it
was "a history of the most frequent, vexatious, costly, and dam-
aging litigation."
"There are two general features in the existing statutes
which have provoked and directed the main lines of legal
contest, and they are, first, the recognition by the law of the
local customs and regulations; second, the attempted con-
veyance of a lode, ledge or deposit of rock in place bearing
mineral, as a thing separate from and independent of the sur-
face tract of ground, with the permission to follow such lode or
deposit on its dip, even when in the downward course it
passes beyond the side lines of the surface claim." 8
Pointing out the magnitude of the evil of allowing the mining
communities the right of local regulation, the Commission urged
that this source of endless litigation should be promptly abolished
by Congressional enactment.
5 Id., pp. XIX-X.
e Id., p. XXXII.
7 Id., p. XXXIV.
s Id., p. XXXV.
306 CALIFORNIA LAW REVIEW
Taking up the second great class of evils, "those incident to
the theory of the lode or ledge location," the Commission makes
the following comment:
"It has proved in practice and in law that a lode or ledge
is an absolutely indefinite thing, and the act of following
this formation whose nature and limits can not be fixed be-
yond the locator's surface ground and under the surface
ground of another owner, is the most frequent and vexatious
cause of litigation."
This right to follow a lode into the ground of another works
"a minimum of mischief in the case of a well defined fissure vein
of regular course and dip."
"With such a defined fissure vein, by spending many
thousand dollars and provided his cloud of expert witnesses
are not tripped up by clever cross-examination, and the judge
is impartial, and the jury are not corruptly influenced against
him, after many months and perhaps years, during which his
enterprise has been hand-cuffed with injunctions and himself
reduced to poverty, the owner might derive whatever hollow
comfort he could from a victory which left him ruined." 9
"From this somewhat favorable working of the law" the Com-
mission went on with the examination of other classes of cases
involving complex vein occurrences and pointed out the impossi-
bility of reconciling these with the practical workings of the law
of apex.
"Your Commission, after a review of the lines of mining
contests and a consideration of the complex nature of ore de-
posits, are unanimous in the conviction that any attempt on
the part of the United States to convey such deposits as
individual things beyond the vertical planes bounding the
surface claim, must always end in a history of intolerable
injustice."
It therefore recommended a repeal of the extralateral right
and the substitution of the common-law system of vertical boun-
daries in its stead. 10
The Commission submitted to Congress a draft of a proposed
9 This is rather a sorry picture and while somewhat overdrawn would
indicate that some at least of the Public Land Commission had come in
contact with extralateral litigation.
10 Pub. Land Corrt. Rep. (Washington, 1880), pp. XXXVII-XLI. The
fact that this commission included in its number such eminent men as
Clarence King, Thomas Donaldson, J. W. Powell and J. A. Williamson,
gave this report more than ordinary weight.
EXTRALATERAL RIGHTS 307
Public Land law which contained among other provisions the
following :
"Section 169. Any mining claims located after the
day of 1880, shall be bounded as to surface by straight
lines, and all right to minerals contained therein shall be
confined within vertical planes passing downward through
said straight boundary lines."
"Section 170. A mining claim located after day of
may equal but shall not exceed a square of feet
on the side, and the same may be in any shape, so that
neither length nor breadth shall exceed feet, nor the
aggregate area exceed that of the square hereinbefore first
described/' 11
Concerning the area of the common law mining claim the
Commission made no recommendation since it had not received
u a full expression of popular opinion," and that question was
remitted to the legislative judgment of Congress. 12
Assuming that it were desirable to abolish the extralateral
right, this was the most favorable time to have eliminated it.
The Act of 1872 had been in force only eight years and to have
wiped out the law of apex at that time would have resulted in
infinitely less hardship and readjustment than must inevitably
follow if that right be abolished after the Act has been in force
for nearly half a century. Since this report of the Public Land
Commission was issued, the attempt to repeal this feature of the
mining law has been urged at intervals. 13 In recent years this
sentiment has increased to such a marked degree, and the abolition
of the right is now advocated by so many distinguished mining
authorities and leading mining associations 14 that the subject de-
mands serious consideration. 15 Most of this agitation, however,
has thus far been entirely too much engrossed with partisan con-
demnation of the law of apex, while but slight consideration has
been given to the principles underlying the origin and exercise
n Id., p. LXXVIII.
12 Id., p. XLI.
13 See the files of the Mining & Scientific Press and Engineering &
Mining Journal.
14 Senate Document No. 233 (64th Congress, 1st Session). Report of
Meeting of the Mining & Metallurgical Society of America in collaboration
with the American Mining Congress, the American Institute of Mining
Engineers, etc.
15 There were several bills introduced in the 64th Congress, providing
either for the outright repeal of the extralateral right or profoundly
amending the mining law in many respects.
308 CALIFORNIA LAW REVIEW
of the right and those features which furnish some measure of
justification for its existence ; and, most important of all, prac-
tically no thought has been directed to the consequences which
must inevitably flow from an outright repeal. These conse-
quences are exceedingly vital and far reaching and, unless the
anti-extralateral advocates can furnish some practical solution
which will minimize the mischief, the advocacy by many of them
of outright repeal of the extralateral and discovery features of
the mining law without a corresponding readjustment of our public
land laws all along the line to meet this sweeping change, is going
to produce results which will be most detrimental to the mining
industry.
THE EXTRALATERAL RIGHT PRINCIPLE is IDEAL IN THEORY.
It is generally conceded that the fundamental principle of the
extralateral right is ideal in theory. The statements of those who
have analyzed the situation surrounding the occurrence of lode
or vein deposits and who have pointed out the lack of any essential
relation between veins or mineral deposits in depth and the over-
lying surface amply support the principle of severance. 16 All that
one has to do is to picture a vein dipping at an angle into the
earth and visualize the result of vertical planes passed through
surface boundaries cutting off the right to mine on the vein in
depth at various points. Take the case where there are several
veins dipping either parallel to each other or at varying angles
and realize the complex condition that would result if overlying
surface ownership controlled and vertical planes were projected
downward to chop these veins up into segments of varying size
and at different depths. Then conceive of the ideal condition
under the extralateral law where the apex proprietor can follow
a certain length of vein down indefinitely on its dip no matter
where it leads. The practical result where veins are controlled
by surface ownership and chopped up into segments of varying
size and at varying depth is to bring about an attempt to consoli-
date the right to mine on the vein and thus sever the under-
ground rights from the surface rights and make them independent
of one another. Only by this means can veins be most economi-
cally operated. The intent of the extralateral law was to ac-
16 4 California Law Review, pp. 371-374, 388; 4 California Law Review,
pp. 456-458.
EXTRALATERAL RIGHTS 309
complish this result in the first instance and avoid the necessity
of subsequent consolidation, and hence the extralateral law is
based on the fundamental conception of economic operation.
But, unfortunately, though the extralateral law is ideal in
theory, it is far from ideal in practical results. If veins were
ideal, with regular width and dip and strike, the extralateral law
would work to perfection and no one could seriously advocate
any change. Veins are, however, so complex in their occurrence
with branches, faults, splits, junctions and every conceivable varia-
tion in strike and dip and width, and degree of mineralization,
that no matter how well the law of the extralateral right may
become settled, there will always be disputes arising over these
physical vagaries. 17
The candid investigator must admit that because of this situa-
tion the extralateral law is open to serious objection. Just how
serious these objections are and whether they justify such drastic
action as an outright repeal of this feature of the law will next
be considered.
THE MAIN REASON FOR ELIMINATING THE EXTRALATERAL RIGHT.
If we analyze the arguments advanced by those who advocate
abolishing the extralateral right, we find that they practically all
resolve themselves into the objection based on an excessive amount
of litigation. 18
It has been assumed by most of these critics without investi-
17 "We propose to abolish the law of apex not because the theory is
objectionable but because the question of physical fact gives rise to never
ending litigation." Victor G. Hills, in Transactions of American Institute
of Mining Engineers, Dec. 1916, p. 2200.
18 A critical examination of the statements made by those who are
opposed to the retention of the extralateral right as reported at the meet-
ing of the Mining & Metallurgical Society of America (Dec. 16, 1915) dis-
closes that the main reason advanced for the repeal of the law was "con-
tinuous litigation," "uncertainties of title and litigation," "vexatious and
most burdensome litigation," etc. See Senate Document No. 233 (64th
Congress, 1st Session) ; also Bull. No. 91, Vol. VIII, No. 12, Mining &
Metallurgical Society of America. See also the expressions of opinion con-
tained in Transactions of the American Institute of Mining Engineers, Vol.
XLVIII, pp. 368-371, in paper entitled "Why the Mining Laws Should Be
Revised," by Horace V. Winchell.
Aguillon in Legislation des Mines Etrangere (1891), Vol. II, p. 292,
mentions the historical lawsuits which have arisen in America through the
right to follow mineral deposits downward indefinitely under adjoining
surface.
"The law of the apex has proved more productive of expensive litiga-
tion than economical mining." Annual Report of Director of U. S. G. S.
(1911), p. 15.
310 CALIFORNIA LAW REVIEW
gation that extralateral litigation is a common occurrence in the
various mining camps and has become a great burden which is
seriously hampering the mining industry. A careful examination
of the statistics leads one to believe that the real situation has
been exaggerated. There has been much expensive litigation but
it must also be borne in mind that because of the magnitude of
the interests involved, such mining cases attract more than their
due share of public attention. 19 Taking into consideration the
immense importance of the mining industry and the fact that
its operations are spread over such a vast territory in the West,
the wonder is, not that there are so many extralateral cases aris-
ing, but that there are comparatively so few. A careful analysis
of the law reports and tabulation of all extralateral cases appear-
ing therein 20 indicates that during the years 1870-1916 inclusive,
in all of the western states there has been an average of less
than three extralateral cases per annum which have been reported. 21
The reported cases do not, of course, include all the extralateral
cases which have arisen within this period, but they do include
the more important cases and afford a very reliable criterion of
the proportion of cases arising in the various years. The tabula-
tion indicates that the maximum of reported cases was reached
in the year 1902 when ten cases were reported. 22 Since 1902 the
number of reported cases has steadily decreased so that for the
past decade, excluding duplications of the same case, extralateral
litigation has not averaged two reported cases a year. During
the years 1908 and 1911 there were no extralateral cases whatever
reported.
The federal extralateral decisions of the trial courts usually
find their way into the reports because of their importance. The
extralateral decisions in the state trial courts are not found in
19 In a similar way, because criminal trials are heralded with head lines
in the daily press, it is little wonder that the erroneous idea is prevalent
that the legal profession devotes the greater part of its time to criminal law.
20 The writer acknowledges his indebtedness to Mr. Herbert C. Hoover
for permission to use material which was tabulated at his request by Mr.
Robert M. Searls of the San Francisco Bar. Mr. W. J. Aschenbrenner,
also of the San Francisco Bar, has continued this tabulation to date.
21 This estimate does not include the decisions on appeal from lower
courts where the same case is reported below, since these appellate decisions
would represent a duplication of cases already considered.
22 Many of these arose out of the Heinze-Anaconda battles in Mon-
tana and most of the remainder were connected with the Cour dAlene crop
of litigation.
EXTRALATERAL RIGHTS 311
the reports but these cases are of such magnitude that they often
reach the state appellate courts. The tabulation, therefore, in-
cludes practically all of the extralateral cases which have arisen
during the past forty-five years, except the few cases which were
not carried beyond the state trial courts. It is, of course, im-
possible to arrive at the exact number of these unreported cases
and determine the percentage they bear to the reported cases, but
judging from actual information obtained in many of the impor-
tant western mining states, it is doubtful if the number of these
unreported cases arising in the state courts would much exceed
twenty-five per cent of the total number of reported cases. This
would increase the average number of extralateral cases arising
during the past forty-five years to slightly in excess of three cases
per annum. Even assuming that the average number of unreported
cases were equal in number to the cases actually reported, the
total annual average would be less than six cases, with the past
decade showing a material decrease even in this small number.
It would hardly seem that these few cases arising in the en-
tire West, especially where an industry of such magnitude and
importance as that of lode mining is involved, would justify the
extravagant statements that have been made by some who urge
the abolition of the right. 23 It must be remembered that this
charge of excessive litigation is the main reason urged for re-
pealing the "law of apex."
The deductions of the writer as to the comparatively small
amount of extralateral litigation which has arisen, when we con-
sider the vast number of lode mines being operated throughout
the West under the extralateral law, is corroborated by an in-
dependent line of investigation made by Charles H. Shamel, the
author of "Mining, Mineral & Geological Law." Proceeding along
entirely different lines, he examined the syllabuses of all of the
cases reported in Morrison's Mining Reports which contain all
of the important mining decisions reported in the United States
during the past half century. He arrived at the following result:
23 The comparative infrequency of extralateral cases is illustrated by
the fact that no extralateral case has yet appeared in the reports from
Alaska, and thus far only one has been reported from Arizona. In Cali-
fornia, which was the birthplace of the law of apex, the reported cases
have averaged one for each three-year period during the past forty-five
years. During the past decade there has been no reported case arising in
California. Two unreported cases have been tried and decided in Cali-
fornia during that period.
312 CALIFORNIA LAW REVIEW
"I confess that I was surprised at the actual figures. The
total number of syllabuses in the 22 volumes of decisions is
5,808, of which the number concerning the apex law is 115.
The apex cases are only about 1.9 per cent of the whole
Instead of causing 99.9 per cent of mining litigation, as Dr.
Raymond has somewhere stated, it has caused much less than
its proportionate share of the trouble. Facts are stubborn
things. The chief, the constantly reiterated, the convincing
argument, against the apex law is based on a gross mistake
as to the facts in the case." 24
Hon. Charles S. Thomas, one of the United States senators
from Colorado, who, as an eminent mining attorney is well quali-
fied to speak on the subject of mining litigation, corroborates this
view as to the ratio of extralateral cases as compared to general
mining litigation. He says :
"Now the vast amount of mining controversy and I am
speaking of numbers of actions has not been apex litigation.
They have been the most expensive and the most far reach-
ing. They have perhaps resulted in the greater proportion
of injustice; but the conflicting (surface) locations have pro-
duced that multitude of cases, a small percentage of which
perhaps reach the Court of Appeals, but whose aggregate has
burdened the prospector and locator with an expense almost
unbearable." 25
It is not therefore an excessive amount of litigation which
can be legitimately charged to the extralateral right, for the actual
number of cases arising is surprisingly small insignificant even,
when compared with the vast number of claims exercising this
right but rather, the only valid charge on this score which can
be made, is the great expense incident to such few cases as arise. 26
Valid criticism must be based on expensive litigation and not on
the ground of excessive litigation.
PRACTICAL DIFFICULTIES OF REVISION.
The advocates of the repeal of the law of apex have given but
little consideration to the serious consequences which will in-
24 "Should the Apex Law be now Repealed?" Transactions of the
American Institute of Mining Engineers, Vol. XLVIII, p. 312.
25 Senate Document No. 233 (64th Congress, 1st Session), p. 65.
26 The vast amount of costly litigation arising in the oil fields of Cali-
fornia is strong proof that the vertical boundary system is not immune
from this evil. Shamel cites the famous litigation involving vertically
bounded zinc deposits in New Jersey, lasting for nearly half a century.
Transactions of American Institute of Mining Engineers, Vol. XLVIII,
p. 347.
EXTRALATERAL RIGHTS 313
evitably result unless other features of our public land law are
simultaneously profoundly amended.
The greatest practical difficulty which will follow from abol-
ishing the extralateral right and confining a locator to the mineral
found within the vertical boundaries of his location, is the fact
that only in those locations which embrace the apex of the vein
can a discovery of mineral be readily made. Discovery of mineral
within the boundaries of the location is the most vital essential
of our existing mining law. 27
Locations which include the apices or upper portions of the
veins within their boundaries could still readily meet this impor-
tant requirement of discovery, but surface locations overlying the
dip of the vein at considerable distances from the apices or upper
terminal edges of the veins could meet the discovery requiremnet
only after the locators had expended considerable labor and time
in sinking shafts to encounter the vein in depth. As the vein
dipped further into the earth it would be increasingly difficult
to make a discovery within the vertical boundaries of the overlying
locations and finally at great depth the expense of sinking of such
shafts would be absolutely prohibitive. It would be necessary
under existing discovery requirements to sink vertical shafts on
each surface location in order to perfect a discovery on each claim
and there would be a consequent economic waste resulting from
the expense of unnecessary duplication of such shafts. Under
the extralateral law as it now exists a discovery on the apex of
the vein is sufficient and the vein may be developed to great depth
by a single shaft advantageously situated.
The consistent advocates of the abolition of the extralateral
right cheerfully concede that this practical difficulty is a serious
one and they are therefore forced to urge that the discovery re-
27 "Discovery is the all-important fact upon which title to mines de-
pends." Lawson v. United States Mining Co. (1907), 207 U. S. 1, 13,
52 L. Ed. 65, 28 Sup. Ct. Rep. 15. Discovery is the initial fact without
which no rights to mineral lands can be acquired. Creede and Cripple
Creek M. and M. Co. v. Uinta T. M. & T. Co. (1905), 196 U. S. 337, 345,
49 L. Ed. 501, 25 Sup. Ct. Rep. 266. Discovery is the source of title to
mining claims and the first discoverer must be protected in the possession
of his claim. "Otherwise, the whole purpose of allowing free exploration
of the public lands for the precious metals would in such cases be defeated,
and force and violence in the struggle for possession, instead of previous
discovery, would determine the rights of claimants." Ehardt v. Boaro
(1885), 113 U. S. 527, 535, 28 L. Ed. 1113, 5 Sup. Ct. Rep. 560.
314 CALIFORNIA LAW REVIEW
quirement of our mining law be abolished also. 28 Those who are
familiar with the main features of our existing mining law will
at once appreciate that if these two fundamental features dis-
covery and extralateral right are eliminated, that our system of
American mining law built up as a result of the years of exper-
ience and intelligence of the practical pioneer miners will have
been virtually emasculated. Very little more than an empty shell
will remain.
Let us pause for a moment to examine critically just where
this radical alteration will lead. Many critics have stated that
the discovery requirement is a feature characteristic of American
mining law exclusively and that it is a useless requirement un-
necessarily suffered by the American miner. Both of these state-
ments are erroneous. The discovery requirement is characteristic
of most of the systems of mining law in the world. 29
The elimination of the discovery feature from our law would
wipe out the simplest and most practical form of test as to
whether land is mineral or not. As the writer has already pointed
out in an article discussing the proposal to abolish the discovery
requirement, 30 it would be a grave mistake to eliminate this salu-
tary provision from our law. Such elimination would destroy
the simple test whereby mineral lands are now practically and
easily classified under existing law so that mineral locators are
able to readily defeat agricultural claimants desiring to obtain
the same lands. The only alternative test that has been suggested
would be to leave such classification to an appropriate branch of
the Federal Government. Even this alternative would be open
to serious objection. It would substitute the opinion of mineral
experts and representatives of the Federal Government as to
mineral character of land in place of the views of the practical
miner; it would mean aggravating delays where mines were dis-
28 "You cannot abolish the extralateral right without abolishing the
right of discovery. They are all tied up together." Transactions of Ameri-
can Institute of Mining Engineers, Vol. XLVIII, p. 383.
29 "Discovery in all ages and all countries has been regarded as con-
ferring rights or claims to reward. Gamboa, who represented the general
thought of his age on this subject, was of the opinion that the discoverer
of mines was even more worthy of reward than the inventor of a useful
art. Hence, in the mining laws of all civilized countries the great con-
sideration for granting mines to individuals is discovery." Lindley on
Mines, p. 335.
30 "Revision of the Mining Law Discovery," 3 California Law Review
191; Mining & Scientific Press (Feb. 7, 1914), Vol. 108, p. 246.
EXTRALATERAL RIGHTS 315
covered in rugged or desert regions remote from centers of travel ;
it would overturn a fundamental principle which was embodied
in our mining laws by the pioneer miners, a principle which was
already the heritage of ages of mining experience ; and finally it
would tear down and destroy to a large extent the great body of
law that has gradually been built up with infinite patience and
practical wisdom as a result of judicial interpretation operating
through more than half a century. The law of discovery is now-
well settled and understood and to substitute for it an unknown
and untried quantity would mean another period of uncertainty
and litigation until a similar line of interpretative decisions had
been rendered with respect to the new law. This superstructure
of judicial interpretation is as important a part of the law and
is as necessary for its satisfactory working as is the organic law
which it interprets. It is even more important in one sense, for
the organic law may be created "overnight" as it were, while the
interpretation and harmonizing of this organic law, especially in
its relation to other laws, necessarily takes years to accomplish.
Another practical difficulty to which the elimination of the
extralateral right will give rise and which must not be overlooked
is the fact that in certain of the western states condemnation
of private rights of way for mining purposes is not permissible. 31
The courts of these states have not taken the broader view
followed in other states where it is held that the public welfare
is so dependent upon the mining industry that a private mining
operator can exercise the right of condemnation for rights of way
for mining purposes. 32
The practical effect of the abolition of the extralateral right
in those states which deny the miner such a right of condemna-
31 Inspiration Consolidated Copper Co. v. New Keystone Copper Co.
(1914), 16 Ariz. 257, 144 Pac. 277; Consolidated Channel Co. v. Central
Pacific R. R. Co. (1876), 51 Cal 269; Lorenz v. Jacob (1883), 63 Cal. 73;
Amador Queen Mining Co. v. Dewitt (1887), 73 Cal. 482, 15 Pac. 74,
County of Sutter v. Nicols (1908), 152 Cal. 688, 694, 93 Pac. 872; Const,
of New Mexico, 22; Const, of North Dakota, Art. 1, 14; Const, of South
Dakota, Art. VI, 13; Const, of Washington, Art. 1, 16, Art. XII, 10.
32 People v. District Court (1888), 11 Colo. 147, 17 Pac. 298; Baillie v.
Larson (1905), 138 Fed. 177; Ellinghouse v. Taylor (1897), 19 Mont. 462,
48 Pac. 757; Dayton Gold and Silver Mining Co. v. Seawell (1876), 11
Nev. 394, 408; Overman Silver Mining Co. v. Corcoran (1880), 15 Nev. 147;
Byrnes v. Douglass (1897), 83 Fed. 45; Strickley v. Highland Boy Gold
Mining Co. (1906), 200 U. S. 527, 50 L. Ed. 581, 26 Sup. Ct. Rep. 301.
For an excellent discussion of these divergent holdings, see Lindley on
Mines, 253-264.
316 CALIFORNIA LAW REVIEW
tion would be to render him unable to operate as one mine two
separated segments of the vein underlying two separated parcels
of surface land owned by him where the intervening surface
owner objected. Under existing extralateral law he has the right
to follow his vein on its dip irrespective of surface ownership
overlying the dip. 33
Another consequence of the elimination of the extralateral
right would be to make the ownership of overlying surface all
important. Under existing law the extralateral claimant fre-
quently is willing to make a material concession to his neighbor
when it comes to a dispute as to the ownership of surface of a
portion of his claim. If the surface in controversy does not
include any portion of the apex of the vein, the surface right fre-
quently does not assume sufficient importance to justify litiga-
tion and controversies are usually amicably settled or the surface
proprietor bought out for a comparatively small sum. If the
right to the vein should become entirely dependent upon surface
ownership, as is the result where no extralateral right exists, it
is obvious that surface title becomes so vital that surface dis-
putes would materially increase in number and be contested far
more bitterly than in the past. The inevitable result would be to
create an additional crop of surface litigation to take the place
of extralateral litigation.
Practically all of the states of the West have also legislated
on the subject of mining law, supplementing the mining laws of
Congress. Most of these have embodied in their legislation the
extralateral provisions of the federal statutes. While action by
Congress abolishing the extralateral right would doubtless have
the effect of rendering these state statutes on the same subject in-
operative, yet it would become necessary for each state to wipe
this legislation off its statute books and harmonize its laws
with the enactments Congress might see fit to substitute therefor.
The writer does not pretend to assert that these obstacles are
insuperable, but calls attention to them for the purpose of showing
that the repeal of the extralateral law is going to be attended by
far-reaching results. No attempt has been made to exhaust the
field of objectionable consequences which will flow from such a
33 Lindley on Mines, 568.
EXTRALATERAL RIGHTS 317
repeal and as a matter of fact many serious results would only
become apparent years after the experiment had been put in
operation.
Unavoidable and expensive litigation is admittedly a valid ob-
jection to the continued existence of the extralateral right. But
we are not confronted by the simple situation which existed prior
to the adoption of this right to follow the vein into the depth.
If we could erase the slate and start anew in the light of our
present day experience, there would be little room for argument
that the vertical boundary system, while opposed to the natural
economics of mining, would obviate much expensive litigation
and on the whole be desirable. But, unfortunately, we can not
start anew and we are confronted with the practical situation
that during the past sixty-seven years there have been thousands
upon thousands of claims located and patented under the law
granting extralateral privileges with which we must reckon, as
it is inconceivable that any rights already vested will be destroyed.
To have two fundamentally opposed systems of mining law
operating side by side, one based on the principle of severance
of mineral from the surface and the other based on surface
ownership carrying with it the right to everything situated ver-
tically beneath, would not tend to a simplification of our mining
laws nor to their ready understanding by those who would avail
themselves of their benefits, but would inevitably add an increasing
number of problems to be litigated in the courts. 34
The fact that the primary questions involved in the interpre-
tation of the extralateral feature of the Mining Act have largely
been set at rest by the Supreme Court of the United States is
reflected by the diminishing number of cases involving extralateral
rights which are presented to the courts each year, and this in
spite of the continually increasing number of locations and oper-
ating mines where such questions might be raised. There are
questions of extralateral right law still undetermined but these
are becoming fewer in number each year. Most of the important
34 "The apex theory of tracing title to a lode has led to much litigation
and dispute and ought not to have become the law, but it is so fixed and
understood now that the benefit to be gained by a change is altogether
outweighed by the inconvenience that would attend the introduction of a
new system." From President Taft's Speech at Conservation Congress,
Minneapolis, Sept. 5th, 1910.
318 CALIFORNIA LAW REVIEW
questions have been adjudicated. Because there are still some
problems awaiting determination is not a valid reason for wiping
out the great framework of judicial construction of the apex
statute which has been built up during half a century. 35 Time
will serve to eliminate virtually all of the questions of strict law
which may arise over this subject but we cannot, of course,
eliminate the questions of fact as to continuity and identity of vein
occurrences which arise wherever complex vein conditions exist.
Such extralateral questions will continue to arise and the great
expense incident to the trial of these problems is admittedly a
grave objection to the continued operation of the law of apex.
But these cases will arise in any event in connection with rights
already vested and a repeal of existing law will not eliminate
any extralateral rights which came into existence theretofore.
Many of those who favor revision of our mining laws seem
to have the idea that if a particular law gives rise to litigation
all that has to be done to remedy the situation is to amend the
law or substitute a new law in its place and that litigation will
cease automatically if the proper kind of a substitute law is
devised. Unfortunately, such an ideal result is seldom if ever
attained in actual experience. Until the expression of ideas by
means of language has been reduced to an exact science and all
people think in the same terms, it is not possible for radical leg-
islation to be enacted which will not in its turn have to run the
gauntlet of attack based upon every conceivable ground that human
ingenuity can devise. 36 The disposition of public mineral lands
presents a complex problem and the dovetailing of such a law
in with all the other public land laws is no easy task. In in-
numerable instances a new law must come in conflict with rights
that have vested under the older mining law which it will sup-
plant and we are certain to have a new crop of litigation that will
35 "Xhe large number and wide range of the decisions show that the
value of mining laws depends on their status as established by the
courts " Annual Report of Director of the Bureau of Mines (1915),
p. 35.
38 "They [the elements of decision contained in the mining statute] are
simple enough in expression but the contests of interest and ingenuity,
induced or justified by physical conditions, have given rise to much litiga-
tion, and quite a body of jurisprudence has been erected in the exposition
of the rights conferred by the statute. The number and fullness of the cases
spare us much discussion." Stewart Mining Co. vs. Ontario Mining Co.
237 U. S. 350, 357-8.
EXTRALATERAL RIGHTS 319
unquestionably persist for years. The vital question is whether
the benefits to be derived from a change in the law will eventually
outweigh the hardships and uncertainties of this unavoidable
period of statutory interpretation and readjustment.
A SUGGESTED REMEDY.
As a matter of fact the situation can be met in another way
and valid criticism based on the expense of extralateral trials
overcome to a large extent by reform in the present objectionable
methods of handling such cases. 37 It is admitted that the reform
would have to be radical but it is worth considering, for the extra-
lateral right is bound to be the subject of adjudication in the
future, as in the past, at least, as far as existing vested rights are
concerned.
In each state there should be a provision added to its laws
whereby a judge, specially qualified to try extralateral cases, could
be called in to sit where such rights are involved. To the average
judge an extralateral suit is like so much Greek and a large por-
tion of the trial is taken up with educating the court on the
elementary principles involved. Most of the mining laws of other
countries recognize the fact that mining cases involve technical
problems that can not be satisfactorily and intelligently adjudi-
cated by the regular courts and, consequently, in practically all
foreign countries a special tribunal is established to try mining
cases. 38 In some countries jurors, even, are required to be ex-
perienced in mining.
Another objectionable feature which can be readily improved,
is the present method of employment by each side of an army
of experts.' 39 Practically all extralateral cases resolve themselves,
37 As Charles Shamel says : "The fault lies not with the apex law, but
with the existing- instruments and methods of legal procedure." Trans-
actions of American Institute of Mining Engineers, Vol. XLVIII, p. 34.
38 Any one who was familiar with the trial of mining cases in the
federal courts before judges like Hawley or Hallett, who thoroughly un-
derstood these technical mining problems, will appreciate the great saving
of time and expense which would result from the trial of technical cases
by a specially qualified judge.
39 The employment of experts in extralateral litigation is not an un-
mitigated evil. In many cases ore bodies of considerable value have been
encountered as a direct result of litigation work or suggestions of the ex-
perts .and in many mines the geological conditions are slighted and but
poorly understood until an extralateral suit is instituted and then the first
scientific information of value is obtained concerning a mining camp.
320 CALIFORNIA LAW REVIEW
sooner or later, into a battle between opposing experts. This
results in great expense as well as confusing exaggeration of
structural details of minor importance. In a great majority of
cases justice could be as readily obtained by a board of experts,
one to be selected by each side and a third by the judge of the
court, the expense to be shared equally by each party. These ex-
perts could examine the properties involved and make a report
on the geological occurrences. They would agree on most facts,
and where there was a difference of opinion litigation work could
be ordered to further develop the points of difference. This plan
would eliminate much of the expense and time consumed in such
trials. The court would accept the facts agreed on as proven
and confine the trial to disputed issues. This plan or some other
framed along similar lines would do much to remove the stigma
of an excess of expensive litigation to which the extralateral right
is now properly subject. It would tend to minimize the existing
evil which will still continue to abide with us in the case of all
existing claims and would obviate a plunge into untried dangers
and hazards which are bound to follow a radical change in our
present law.
If it is litigation we wish to avoid, then why not also take
up the question of compelling all locations in the future to con-
form to legal subdivisions. 40 By requiring lode claims to be
located in conformity to public land surveys as is now required
in the case of placers and also by registering all locations in the
land offices, it will readily be seen that a vast amount of litiga-
tion arising by reason of conflicting surface rights would be elimi-
nated. An amendment of the mining law as suggested would
eliminate ten- fold as many cases as would be eliminated by
abolishing the extralateral right. But by each of these remedies
the advantage of economic operation of the ore deposit as a
geological unit would be sacrificed. The vein on its dip into the
earth has nothing in common with the surface and to parcel it
out by surface area and vertical boundaries is a structural misfit
and so would be the forcing of lode locations into rectangular
surface areas conforming to the public land surveys. Such re-
forms are ideal from the standpoint of minimized litigation but
40 This is not a novel suggestion. See Transactions of American Insti-
tute of Mining Engineers, Vol. XLVIII, p. 422.
EXTRALATERAL RIGHTS 321
intensely impractical from the standpoint of the most economic
mining of the ore deposits.
MOST COUNTRIES RECOGNIZE SEVERANCE OF MINERALS FROM
SURFACE.
One vital point must not be overlooked in this discussion.
Most of the mining laws of other countries recognize severance
from the surface itself of minerals lying underneath the surface. 41
The owner of the surface does not usually own the minerals lying
in depth beneath his surface but a separate property exists in
these underlying minerals which the state may grant to another
person. As a result there is no serious conflict between the sur-
face owner and the individual who is entitled to work the mineral
deposits beneath the surface. The law of ownership of lands
acquired on the public domain of the United States, on the con-
trary, only recognizes such severance to a limited extent.
Recent legislation by Congress does permit agricultural entry
of lands valuable for coal, oil, gas, phosphates, nitrates, potash
and other non-metallic minerals. 42 "Known lodes" are also ex-
cepted from placers 43 and "known mines" from townsites. 44
The agricultural patentee is further safe-guarded in this coun-
try by a statute of limitations, which provides
"that suits to vacate and annul patents thereafter issued shall
only be brought within six years after the date of issuance
of the patent. 45
Not only does this statute of limitations operate to cut off a min-
ing claimant's opportunity to acquire mineral already known to
exist in patented agricultural ground but rulings of the Supreme
Court of the United States and of various state courts have thrown
additional protection around agricultural claimants so that after
their bona fide entry on land under non-mineral public land laws
41 Severance of underlying minerals from the surface and their segre-
gation into distinct titles is characteristic of the laws of France, Belgium,
Holland, Spain, Austria, Germany, portions of Italy, Greece, Norway,
Sweden, portions of Russia, Canada, Australia, Japan, and most of Spanish
America.
42 See 3 California Law Review, p. 288, n. 45, in article entitled, "The
New Public Land Policy."
4; > U. S. Rev. Stats., 2333.
** U. S. Rev. Stats., 2392.
45 As to patents theretofore issued, the period of limitation was five
years after the passage of the Act. Act of Congress approved March 3,
1891, 26 Stats, at L. 1093, 8. See Lindley on Mines, 784.
322 CALIFORNIA LAW REVIEW
has been made, it is difficult for a mineral claimant to make a
valid adverse entry on the same land. 48
In other words, when the United States grants non-mineral
title to land it is usually in practical effect an outright grant of
all that the land contains. There is no dual ownership contem-
plated except in the few limited cases noted. Anyone who recog-
nizes these advantages which the agricultural claimant now
possesses in this country as against those desiring to acquire the
mineral existing in the same lands, will appreciate to some degree,
at least, the hardship which is going to result to the miner if the
extralateral right is abolished without the simultaneous enact-
ment of legislation designed to offset this difficulty. The in-
evitable result of an outright elimination of the extralateral right
will be to feed all existing agricultural patents which have veins
dipping beneath them with all such extralateral segments of such
veins situated vertically beneath these agricultural patented lands,
since such segments will fall by gravity into and become merged
with the ownership of the overlying surface lands. 47
Some may argue that this is a desirable result. It is doubtful
whether the mine operator and prospector will enthuse over such
an outcome. To allow minerals to pass into agricultural owner-
ship is not going to facilitate the extraction of minerals from the
soil. These two fundamental industries have many points of
difference. The destruction of soil by actual removal thereof or
deposit thereon of tailings, necessary in so many instances in
actual mining operations, and the destruction of vegetation result-
ing from reduction and smelting processes has made the average
agriculturist apprehensive and difficult to persuade that mining
in his immediate vicinity is always for his best interests. Neither
has the agriculturist any adequate conception of the true value
of a mine and is inclined to place on the mineral existing within
his ground an exorbitant and exaggerated price based on gross
output. He does not take into consideration the vicissitudes of
* See Lindley on Mines, 206-208, 77.
47 While there is a difference of opinion on the subject, the weight
of reason and views of the text writers support the contention that a miner
who locates the apex of a vein within ground that is open to location, even
though his location is made later in time than the date of the patent to
agricultural land which overlies the dip of the vein, may follow his vein
extralaterally underneath the prior patented agricultural surface. Lindley
on Mines, 612.
EXTRALATERAL RIGHTS 323
mining operations and the difficulties which must be overcome
before a mine can be put on a paying basis. The abolition of
the extralateral right will further fortify the farmer in this posi-
tion and make him increasingly hard to deal with. With the extra-
lateral right in existence, the agricultural surface owner can now
be usually induced, for a small consideration, to part with any
claim he may assert to underlying mineral rights, for he is aware
of the right of the lawful apex proprietor to follow the vein and
penetrate beneath his land without his consent. It will be quite
a different matter to deal with him when he realizes that he has
become the actual and undisputed owner of the vein situated
vertically beneath his surface.
THE EXTRALATERAL RIGHT is BASED ON THE PRINCIPLE OF
SEVERANCE.
The main exception in the public land law of the United States
existing today which takes the place of severance in other coun-
tries, is the right of the owner of a valid lode location embracing
the apex of a vein to follow the vein extralaterally underneath
adjacent surface. In other words, the extralateral feature of
American mining law operates to segregate mineral deposits in
the nature of lodes or veins from the surface land overlying the
dip of such veins or lodes. 48 The practical result of abolishing
the right to follow a vein extralaterally and confining the locator
to his vertical boundaries and of also abolishing the discovery
requirement would be that agricultural claimants could readily
file on and enter upon land overlying the dip of the vein. Under
our existing land laws there is no way to prevent such action
unless the Land Department can be persuaded to withdraw the
land from agricultural entry pending its classification which would
be manifestly impossible in every instance, as well as interfering
with bona fide acquisition of agricultural titles. With the extra-
lateral law in force, the locator can locate a claim embracing the
apex of the vein and make a valid discovery on the portion of
48 "The Act of 1866 was in effect a proclamation severing veins and
lodes of the character specified from the body of the public domain. It
was the announcement of a governmental policy, whereby ledges within
the earth were to be considered as distinct entities, and to be dealt with
as such in administering the public land system. This policy has never
been entirely changed. In the main it is as much a part of /he existing
system as it was of the one which it succeeded." Lindley on Mines, 568.
324 CALIFORNIA LAW REVIEW
the vein which is nearest to the surface. This serves to carve out
the vein on its dip beneath agricultural land and it is usually
immaterial whether the agricultural claimant acquires title to the
surface overlying the dip or not. Abolish the extralateral right
and it becomes difficult and in many cases impossible to discover
mineral within the vertical boundaries of claims overlying the dip
of the vein. Agricultural claimants might be first on the ground
and under the land laws as now interpreted they could prevent
prospective locators 'from coming on the ground for the purpose
of making a discovery. As already pointed out, discoveries per-
fected by sinking shafts to encounter the vein in depth, even if
made without opposition, become economically wasteful and un-
desirable.
THE ONLY LOGICAL ALTERNATIVE is TO SEVER MINERALS
FROM SURFACE.
After giving this subject serious consideration for a number
of years it is the writer's deliberate opinion that, if any change
is to be made in existing law and if conditions are to be im-
proved rather than made worse, instead of abolishing the extra-
lateral right principle, it should be carried even further by amend-
ment of our public land laws providing for the severance from
surface lands of all minerals except superficial deposits. Surface
lands could be disposed of under existing laws providing for the
acquisition of agricultural and other non-mineral titles except that
the mineral should be permanently reserved from such surface
grants. As the law now stands, and as has already been noted,
only minerals known to exist at the date of the agricultural grant
are reserved and even such minerals become the property of the
surface proprietor by virtue of the existing statute of limitations
and also the additional protection thrown by the courts about a
surface proprietor in possession.
By reserving minerals from agricultural lands and allowing
the miner the right of entry for purposes of prospecting under re-
strictions with the added requirement that the surface proprietor
be compensated for damage, the interests of both the miner and
the agriculturist would be conserved. In all the important min-
ing countries of the world this segregation has taken place and
this is the reason why in such countries the extralateral principle
is not essential, whereas, in the United States, without such segre-
EXTRALATERAL RIGHTS 325
gation or severance of minerals from the surface, the extralateral
right has a most powerful additional reason for existence. With
severance of minerals and segregation of agricultural and mineral
interests, the element of discovery also, now so vital in the mining
law of the United States, would assume secondary importance.
Discovery instead of being of prime importance, as of necessity
it must be under existing law where no segregation of minerals
from the surface exists, could be made a secondary requisite,
only required after the mineral locator had plenty of time in
which to make a discovery, taking into consideration the difficulty
of so doing in particular cases. If the principle of severance
is incorporated in a revised public land law, a vertical boundary
system for the acquisition of mineral lands could be simultaneously
adopted without resulting in great hardship to the miner, for the
agricultural surface claimant could no longer claim the underlying
minerals. The surface perimeter within which the miner could
work should be so adjusted as to give him as much opportunity
as possible to mine in depth on the vein. This would in effect
be an adoption of the French system of mining law. However, a
radical change of this sort would unquestionably result in in-
creased supervision of mining operations by the Federal Govern-
ment and conversely a material sacrifice of individual control over
such operations. 49 It might even result in permanent reservation
by the Federal Government of all minerals, both metalliferous as
well as non-metalliferous, and their disposition under a leasing
system. This would be in line with the new public land policy
as evidenced by recent acts of Congress and of the executive
branch of the government which have been upheld by the United
States Supreme Court. 50
Whether such segregation is at this late day practical is a
question that can only be determined after it has been thoroughly
considered from every standpoint. As already noted, the Federal
Government has provided for such severance in the case of lands
containing coal, oil, gas, phosphate and similar minerals and it
may be that the experience derived from the practical develop-
ment of such lands will aid in determining this serious problem
when applied to the metalliferous minerals.
49 This is conspicuous in the administration of the French mining law.
4 California Law Review, pp. 373-374.
50 3 California Law Review, pp. 269-291.
326 CALIFORNIA LAW REVIEW
The suggestion that severance of minerals from the surface
will solve many of the difficulties standing in the way of the out-
right abolition of the extralateral right is not new. The logic
of the situation has caused others to advocate the change. 51
The severance of surface title from the underground minerals
would also discourage speculators and blackmailers who now
fraudulently seek to acquire title to surface lands under agricul-
tural laws in order to levy tribute upon the bona fide mining
operator. There are many problems that would have to be care-
fully considered if such a material change were made in our
51 "The one great thing which would do away with all of our troubles
on the discovery question, and also a lot of other mining law troubles, is
the divorce of surface and mineral titles The use of the surface
and the extraction of minerals do not, except to a limited extent, naturally
belong together, and any law which persists in keeping the two inseparable
must be full of injustice and trouble brooding." Victor G. Hills in Trans-
actions of American Institute of Mining Engineers, (Dec. 1916), p. 2202.
An able paper entitled "The Segregation and Classification of the
Natural Resources of the Public Domain," by Frederick F. Sharpless ap-
pears in the Transactions of the American Institute of Mining Engineers,
Vol. XX, pp. 386-400. The author points out the many advantages of
segregating the surface from the mineral title and calls attention to the
fact that: "In nearly all of the Provinces of Canada, there are three dis-
tinct rights in every parcel of land timber rights, mineral rights and
agricultural rights In Australia, the segregation of surface from
mineral rights has been the custom in most of the colonies for many
years While segregation of surface from mineral rights would not
cure all existing difficulties connected with our present mining laws, it
would, because of the very different nature of these rights, simplify the
application of remedies."
After the main report of the Public Land Commission had been sub-
mitted to Congress, Maj. J. W. Powell, one of the Commission, qualified
his approval of the report by adding a provision in the case of certain
agricultural lands classified by the commission as pasturage lands, that
"all subterranean mining property and rights for mining purposes, are
hereby severed from the surface property," and that in the case of all
such patents issued, the same reservation should be inserted and the
property "shall be servient to the easements necessary for discovering
and working mines therein." He also urged that in the case of mineral
lands every patent should have inserted the following clause: "Except and
excluding from these presents all surface property rights, provided that
there shall be dominant in the property conveyed in this patent the ease-
ments on the surface property necessary for discovering and working
mines therein."
The Commission had recommended that lands more valuable for min-
eral than agricultural purposes should be classified as mineral lands and
subject to sale and entry only under mineral laws. Major Powell argued
that since one-half of the mineral lands in the western United States were
forest lands from which, under the Commission's recommendation, the
timber alone was to be sold to timber claimants, thus leaving such lands
open to mineral exploration, and since the other half of the mineral lands
were largely pasturage lands, that this severance recommended by him
would quite thoroughly protect the mining industry.
EXTRALATERAL RIGHTS 327
mining law, but the experience of other countries which have
successfully operated their mines under laws based on this prin-
ciple would afford great assistance in framing such legislation. 52
The complex problem here presented is surrounded with pro-
found difficulties and no matter in which direction we turn, we
are confronted with unknown quantities and untried conditions.
Any critic who ventures to prophesy with any degree of assurance
that, by abolishing the extralateral right and also the time-honored
principle of discovery, the millenium in mining operations will
be attained, has closed his eyes to these uncertainties and is acting
on blind faith. The writer does not claim to have received any
information from an inspired source and is free to confess that
the more the situation is studied the graver its uncertainties be-
come. It will take a master mind to hew the way and devise
a substitute law which will work in harmony with our other land
laws and which will not bring chaos in its wake.
A commission composed of the best talent available has been
proposed but legislation to bring about this result failed at the
last session of Congress. It is certain that if revision is desirable
it should not take place piece-meal and without due consideration
of its effect on other land laws. 53
52 "An enlightened public sentiment concerning our mineral land policies
can be formed only in the light that is afforded by knowledge of the kin-
dred systems of the progressive peoples of the earth." United States Sen-
ator Thomas J. Walsh, Transactions of American Institute of Mining En-
gineers, Vol. XLVIII, p. 411.
53 The provisions of the proposed Revision Commission Bill were ex-
plained at length in Transactions of the American Institute of Mining
Engineers, Vol. XLVIII, pp. 405-411. Unquestionably, the plan there urged
of general revision rather than "tinkering or patchwork revision" cannot
be successfully controverted. Writing of the present laws, Edmund H.
Kirby there says (p. 406) :".... Their various parts are so interdepen-
dent that it is practically impossible to correct individual faults without
revising the laws as a whole."
There were several bills introduced in the 64th Congress having for
their object the revision of the mining law. One in particular (Senate 42)
provided for an outright repeal of the extralateral right without any at-
tempt to revise other features of the law so as to minimize the hardships
that would inevitably result. The opinion of the Department of the In-
terior was requested and Secretary Lane on Jan. 21, 1916, wrote the Chair-
man of the Senate Committee on Public Lands as follows: "It is certainly
undesirable to attempt revision by partial and piecemeal methods. The
entire mining field should be surveyed and the existing mining statutes
revised only after thorough examination in all particulars. This can be
best accomplished by a commission such as is contemplated. In view of the
probable creation of such a commission, whose duties will include con-
sideration of the very matters included in the present bill, Senate 42, I
deem it inadvisable to make any comment upon the merits of the proposed
328 CALIFORNIA LAW REVIEW
The writer feels justified in asserting that the following sum-
marized statements are amply supported by the facts presented
in the course of this discussion:
1. The extralateral right principle has existed in one form
or another in many of the mining laws of the world but in nearly
all instances this feature has been eventually abolished because
of the litigation and uncertainty which it produced.
2. The extralateral right was adopted as a part of the mining
law of the West by the pioneer miners when they made their
earliest quartz locations in 1850 and 1851 and it became the al-
most universal custom and usage of the miners throughout the
mining districts to exercise "dip rights/' 54
measure, and would suggest that the matters there involved be left to the
careful study and consideration of such commission. I accordingly recom-
mend at this time that Senate 42 be not enacted."
54 Dr. Rossiter W. Raymond, who was intimately associated with the de-
velopment of the mining law of the public domain, has contributed many
learned and illuminating articles on the general subject and particularly on
"The Law of the Apex" (Transactions American Institute of Mining En-
gineers, Vol. XII, p. 387) which descriptive phrase as well as the term
"extralateral," he introduced into the literature of American mining law.
He calls attention to the fact that "the term 'extralateral' could not have
been applied under the Act of 1866," for the reason that the locator was
entitled to a certain length of vein without regard to any. width of surface
ground. (Transactions of American Institute of Mining Engineers, Vol.
XLVIII, p. 302). In other words, the miner's surface claim was not re-
stricted under the Act of 1866 by lateral boundaries and hence extralateral
pursuit of the vein would necessarily be a misnomer. The "dip right" as
applied to this early appearance of the right to follow down indefinitely
on the vein is technically a more accurate use of terms. ("The 'dip right*
of the early miner was the forerunner of the modern extralateral right."
Lindley on Mines, 566). However, this differentiation of terms is more
or less academic, for as a matter of fact, most of the early local rules
and customs of the mining districts (See 4 California Law Review, pp.
448, 449, n., p. 47) and many of the territorial legislatures (See id., pp. 450-
452) prescribed a definite lateral surface boundary limitation for lode
claims and even in those districts where no such limitation was imposed,
the location and occupation of all the available surface territory in the
vicinity of important mines necessarily resulted in a definite lateral surface
limitation for each lode claim and under such circumstances it is not a
misuse of words to apply the term "extralateral" to the right that the
miner exercised even in the earliest days. The same may be said of the
use of the phrase "the law of the apex." Dr. Raymond points out (Trans-
actions of American Institute of Mining and Engineering, Vol. XLVIII,
p. 302; also Vol. XLIV, p. 61) that the word "apex" first appeared in the
Act of 1872. As a matter of fact the apex or upper terminal edge of the
vein was just as essential and its possession constituted the prime basis
of the miner's right to follow the vein down on its dip in the early 50's
and under the Act of 1866 as under the Act of 1872, which expresslj
called it by name. All of the extralateral cases decided under the Act of
1866 bear out this statement.
No attempt has been made in the course of this discussion to keep
EXTRALATERAL RIGHTS 329
3. The legislatures of practically all of the western states and
territories had by statute declared the extralateral right to be the
mining law in force in their respective jurisdictions when Congress
passed the Act of 1866 which adopted and crystallized this miner's
law without material alteration.
4. The Act of Congress of 1872, which is still in force,
further codified and confirmed this miner-made law, changing it
only in minor respects and leaving the fundamental principle of
extralateral pursuit substantially as the miners had originally
adopted it.
5. The law of discovery is not only handed down to us by
the pioneer miners of the West but is also a heritage of cen-
turies of mining experience throughout the world.
6. To abolish the extralateral right will result in forcing the
abolition of the principle of discovery as applied to lode mines
as well, and these are two of the most vital features of our
mining law.
7. With the extralateral right repealed, the only important
feature of our law which has the effect of severing the under-
lying mineral from the surface will have been eliminated and with
the principle of discovery eradicated, the simple and practical
test, now thoroughly understood, will no longer be available to
the prospector and locator, and unless some substitute is fur-
nished he will find himself at the mercy of the agricultural claimant
or the unscrupulous speculator.
8. The alternative suggested of leaving classification of lands
to government agents will shift the initiative in determining min-
eral character from the individual locator, as it exists at present,
and will be a long step in the direction of complete government
control of metalliferous mining.
9. The logical solution based on world experience is to sever
all mineral except superficial deposits from the surface and dis-
pose of the minerals and the surface separately.
10. Whether a workable system based on this principle of
severance can be devised at this late day which will not result
this refinement of terms in mind for it would serve no practical purpose
and would merely result in confusion. The expressions "extralateral right,"
"law of apex," and "dip right" have been used to convey the. same general
idea of a right to follow a certain length of vein on its dip into the earth
indefinitely.
330 CALIFORNIA LAW REVIEW
in producing greater confusion and more litigation by reason of
new and untried problems and conflict with innumerable rights
vested under the former system, is a question which would tax
the wisdom of Solomon.
ii. In any event, revision, if attempted, must be general and
not piecemeal and should be enacted only as the result of the most
careful deliberation by a commission composed of the best talent
available. 55
Wm. E. Colby.
Berkeley, California.
55 On April 4, 1917, Senator Smoot introduced in the United States
Senate (S. 104) a bill "To provide for a commission to codify and suggest
amendments to the general mining laws," with power "to hold public hear-
ings in the principal mining centers in the Western United States and
Alaska," etc., and to "consider the laws and experience of other countries
with respect to disposition and development of mines and minerals" and
"within one year" to submit to the President a report and "a tentative code
of mineral laws."
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