The Nevada journal., 1857-03-20
PROPERTY IN MINING CLAIMS.
Real or PersonalP

PROPERTY IN MINING CLAIMS.
Real or Personalp
Some time ago, we understood that
the legislature contemplated the pass
age of a. bill declaring the legal charac-
ter of mining claims whether they
should be considered real or personal
property. The attention of our legisla-
tors, however, has been SO much taken
up with extraordinary business, that, it
seems, nothing is to be done for the
common everyday wants of the commu
nifty. Considering the great wrong that
may be done to innocent parties, if this
question as to the nature of property in
mining claims is left open and uncertain
until formally settled by the Judiciary,
it seems highly expedient that the leg
islature should do something in the pre-
misses.
Property in mining claims, as it exists
in California, is not classified in the an
cicnt books Of the law; nor is its charec-
ter determined in the decisions of mod
ern courts. "Coke on Littleton don't
say any thing about it; nor does the all
comprehensive Blackstone give any
rules.by which we can come to salts
factory conclusion in the matter; nor
does chancellor Kent, or the voluminous
Story throw any very bright light upon
the subject. In the many thousands of
volumes of the decisions of courts, from
the Year Books of Edward the Second,
down to the first of Cal. Reports, there
are no ceases in point" which judge
might follow in deciding whether min
ing claim is rea, estate, or personal
chattel.
The tenure by which miner holds
his claim is, in its legal nature, an anom-
ally. 1t differs from all other tenures
known to the law, in the manner in
which it is created, the term of its dura-
ton, and the rights which are incident
to it. Under whom does miner hold
his claim +? Who is his grantor? What
interest has he in the property? And
how much of permanency or certainty
is there about his title? All these are
interesting questions, not merely for
pleasant speculation, but of great prac-
tical importance. The miner seems to
hold whatever of interest he has in his
claim under three-fold tenure. First,
under the Government of the United
States, which owns the land and all
there is in it; second, under the State
of California, which affords him the only
remedy he has to enforce his rights /;
and thirdly, under the miners of the dis
trict in which he works, by whose Gus
toms and regulations, he must be gov
erned in the location, working, &C., of
his claim. We are all sufficiently well
acquainted with the facts of the case,
and the circumstances under which a
miner claims the right to extract the
gold but the legal character of the in
terest which he has in his claim, and
whether or not it is permanent, fixed,
and immovable" enough to amount to
real estate, are matters which are doubt
full and undetermined. Some of our
courts have held mining claims to be
real estate others have held them to
be personal property; and others again
have decided that they are no property
at all.
This is question which is not mere
ly interesting to lawyers, who have to
indulge in the subtle distinctions of their
professions but one which affects the
substantial rights and interests of the
whole mining community. Every one
knows that the rules which govern real
and personal property, are, in many re-
spects, vastly different Every one
knows, for instance, that many requi-
rites are necessary to conveyance Of
real estate, which are not required in a
sale of personal property. If mining
claim be personal property, it may be
sold and transferred by simple delivery
if it be real property, it cannot be con.
veyed, except by deed acknowledged
recorded, &c. This is but single ex
ample of the many practical differences
between the two species of property.
Should this question, then, be settled
by the legislature or should it be lei
alone, until in the slow course of private
litigation, it finally reaches the Supreme
Court, and finds its solution there We
think it should be settled by the legis-
lature. II may be long tine before