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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