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 providing 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 provided the method of determining the exact measure of this right to mine in depth. Judge Field in the celebrated Eureka Case93 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. The interesting feature of this situation is the fact that in both Derbyshire 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.

85 4 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."

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 contained an interesting clause not found in the Act of 1872, providing 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." Congressional Globe, February 8, 1871.

89 This bill is set forth in Raymond, Mineral Resources (1872), pp. 496499, 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.

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. 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." 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 proposed 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. This bill

1 A similar situation has but recently arisen on the public domain in connection with the immensely valuable oil lands of California and Wyoming. 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 legislation was passed by Congress to improve the situation, the federal government 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 government 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 displayed 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.

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.1

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."

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 general 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 mining 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 understood 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.