The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1914-05-28


complex Of dumps. ore bins. roads,
shaft houses. derricks and whims. In
terspersed with hotels. saloons, offices,
stores and residences exhibited at Vir
gniia City.
But in the other mining districts
which were soon discovered and de-
veloped, with sanguine enthusiasm
kindled by the wonderful bonanzas OF |
the Comstock, the mere easement
granted to the surface Of a mining To-
cation was soon found to be an unsat-
isfactory protection to the locator.
One OF the most important Of these
districts-and the one which, l think,
had the most influence In bringing
about the act Of 1S72-was that OF
Reese River in Nevada, which was
characterized by numerous sharply
defined, narrow, frequently faulted
assure veins carrying very rich silver
ores, such as horn silver, ruby silver,
etc. The locator upon such vein
had hard work, at best, to prove Its
identity in depth, beyond fault
which had cut 1t off, and thrown 1t to
one side or the other. And he could
not prevent other adventures from
starting shafts or tunnels In his
neighborhood, and claiming as their
own any bunch of rich ore that they
might find His only way to establish
ownership was to push his own work
hn
workings of such alleged discoveries,
and then prove a practical continuity
of ore from his prior location on the
vein. Until that was proved, the hos
tile adventures were not trespassers;
they were simply exploring the public
domain. And after it was proved,
perhaps at great expense, he could
rarely recover damages for the ore
innocently taken by them. A writ of
ejectment, expelling them from the
Slopes they had, perhaps, exhausted
during the litigation, might be the only
fruit of his victory.
This situation, promoting the prac-
tice of deliberate robbery In the i'm
mediate vicinity Of every rich orr
body, was, of course, intolerable; and
1t is not surprising that the federal
court in Lander county, New, rendered
a decision, so constituting the act Of
1866 as to make 1t authorize lode To-
Gator to exclude prospectors from the
surface of his location. John H. Boalt
the judge who made that decision,
was a mining engineer as we'll as Il
lawyer and afterward became one Of
the leaders of the San Francisco bar
His opinion was acute and forcible
Undoubtedly the act ought to have
meant what he construed it to mean
But his view was overruled by higher
authority, though his arguments
r. nN+lccG had their weight in bringing
about the change inaugurated by the
act Of 1872.
1t is noteworthy that the act Of 1866
did not provide for placer mining
rights, or patents to placer claims, al
; though this was the earliest mining
industry upon the public domain. The
reason was that no special difficulty
had arisen as to such mining titles.
The general permission to explore and
occupy the public mineral lands, sub
ject to local regulations, was enough,
at that time, to satisfy that class of
miners. But in 1870 an act was pass
ed amending and supplementing that
Of 1866. by providing that claims usu-
ally called placers Including all forms
of deposit except veins of quartz or
other rock in place." should be subject
to entry and patent. This had two i'm
portant results: Cd 1t made placer
claims patentable as they had not
previously been; and (2) it included
with placer claims all deposits not
lodes, and included (as construed SUBJ
sequently by the courts) other miner
ais than gold, cinnabar, silver or cop
per specified In the original act. There
is reason to believe that both Of these
features though desirable In them
selves, were secured in furtherance OF
private nterprses-especially that of
the so-called diamond swindle,"
which was exposed in 1872. At least,
remember that the act Of 1870 formed
part Of the basis upon which this
scheme was presented to New York
capitalists.
The act Of 1872 was intended chief
ly to remedy the above mentioned de-
feet in that of 1866 by granting own
ership of the surface to lode locator.
Its authors thought they were graft
ing a new feature upon the result OF
long years of growth: but they were,
in fact planting new root altogether.
The act of 1872 was revolutionary. 1t
made the mining right an appurte-
nance to the surface location. instead
of granting an easement in the sur
face as an appurtenance Of the mining
right for the reward OF the discoverer
it substituted the luck Of the apex
possessor: and the title conveyed un-
der 1t was subject to doubt, and pos
sible defeat as the consequence Of new
geological discoveries so long as the
mining ground which 1t was supposed
to cover might continue to be worked.
The extra lateral right, supposed to
be simply continued by the act as a
legacy from the law of the lariat, suf-
fprel a cOnSidera bile change through