MINING LAW them vested in her. But in the case of Moore v. Smaw, decided in 1861, this prin ciple was expressly overruled.1 The court admitted that the United States held certain rights of sovereignty over the territory which was later embraced within the limits of California, only in trust for the future state, and that such rights at once vested in the new state upon her admission into the Union. But as the court proceeded to point out, "the ownership of the precious metals found in public or private lands was not one of those rights. Such ownership stands in no different relation to the sovereignty of the state than that of any other property which is the subject of barter and sale." When gold was discovered in California in 1849, there was immediately an immense immigration into that region. Though the land there was unsurveyed and not open to settlement, the miners immediately pro ceeded to stake out claims and search for the precious metal. Their numbers were soon so large that measures had to be taken to preserve order. 'The miners ac cordingly proceeded to draw up an informal code of rules. These rules varied in the different mining districts, but on the whole were very similar. As Justice Field has concisely stated,2 " 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 practicable limits, absolute equality of rights and privileges in working the mines." Attempts were made from time to time to show that mining on government lands was carried on under an implied license. But the government consistently refused to bind itself by such an admission, and always held when the question arose that no such license had been given. But that fact made no practical difference, as mining was carried 117 Cal. 199.
- Jennison v. Kirk. 98 U. S. 453.
239
on under ordinary circumstances, with no hindrance on the part of the government. It was not until 1866 that the government took any formal action in the matter. In that year a law was passed whereby the general policy of the government, as it had hitherto existed, was entirely changed.1 Mr. Justice Field has thus summarized the act; "In the first section it was declared that the mineral lands of the United States were free and open to occupation by citizens of the United States, and those who had declared their intention to become citizens, subject to such regulations as might be pre scribed by law, and the local customs or rules of miners in the several mining dis tricts, so far as the same were not in conflict with the laws of the United States. In other sections it is provided for acquiring the title of the United States to claims in veins or lodes of quartz-bearing gold, silver, cinnabar, or copper, the possessory right to which had been previously acquired under the customs and rules of miners. In no provision of the act was any intention manifested to interfere with the possessory rights previously acquired, or which might be afterwards acquired; the intention ex pressed was to secure them by a patent from the government." 2 In 1872 a complete revision of the law was made which, with minor changes made subsequently, remains the law of to-day .* The principal changes made pertained to the size of the claims that might be located. Under the statute of 1866 the discoverer was allowed to take four hundred feet along the lode, two hundred feet being allowed each associate. Not more than three thousand feet might be taken by any association of persons. By the act of 1872 mining claims of certain specified minerals, "whether located by one or more persons, may equal but shall not exceed one thou-
114 St. at L. 251. ' Jennison v. Kirk. 98 U. S. 458. • U. S. Rev. St. 2318 to 2352.
