The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1914-02-19
Revision of Mining Law-..Discovery
BY William z. Colby.

mine which he discovered and de-
nounced, and no one could have any
preference over him. Other persons
who came after the first discoverel
were entitled to take up claims "a'
they shall discover ore" They cOu't
not set up stakes unless they had frs
discovered ore. In Prussia and jr
Sweden, he who first discovered vein
layer, mass or bed of ore. had righ
to receive the concession in preference
to any third party. In England in the
lead mining districts of Derbyshire
where the right Of free mining ex-
listed, the discoverer of mine was
entitled as matter Of right to have
his claim allotted to him by the bar
master, but this could not be done It'll
ore be gotten in the same ground tc
free it wthal."
1t may seem strange that countries
like Spain ana France should have re-
quirements in their mining codes SO
similar to those of Germany. Germany
was the birthplace Of free mining, and
one would naturally expect the Roman
and civil law to have had greater in
fluence in moulding the mining insti-
tutions of these other countries Dor
dering on the Mediterranean. This IS
not the fact, however The German
states had made such a success Of
int ina n
a high degree, that all Of the other
European countries were compelled 70
look to it for enlightenment. In do
ing SO they also assimilated some Of
the ideas of free mining which had
there attained so vigorous a growth.
Gamboa in his famous Commentaries
on the Mining Ordinances of SPAIN
states that the king of Spain appointed
a commission to examine the mining
laws of the world with the idea Of sell
Getting those best suited to the devel-
opment of the provinces in the New
World, and that after exhaustive con-
those of Germany, with
their right of free mining were found
best adapted.
Extensive research confirms the con-
illusions of the foregoing authorities.
Discovery, as we are familiar with it,
sprang into existence contemporaries
ously with the assertion Of the free
miners right This was an early Ger
manic institution, similar in it's origin
to other examples of an exercise of
free and independent personal privi-
lege as opposed to the restraint of
despotc sovereignty which have been
handed down to us and become part
of our own institutions. The free min
ers right involved the privilege If
going out on land, usually wild and
uncultivated, even though owned by
some prince or royal owner Uhis be-
ing the equivalent of our public do
main), and discovering and locating
mining claim without the express
permission of such owner. This right
became so general and so we'll estab-
lished that the royal owners were fin
ally forced to recognize it as valid
custom. and thereby yielded up one Il
their prerogatives of ownership. In
short, the free miner decided for him
self what land he would locate, and
the ostensible owner OF ;.le land had
very little or nothing to say about VIM
should be allowed to work his mineral
lands. A discovery was essential in
order to identify the land claimed
stamp it with mineral character, and
segregate 1t from the great bulk of
surrounding land This free miners
right was confined to mineral land
and the burden of establishing it to be
mineral devolved on the free miner
and hence the necessity of discovery
which furnished his proof. 1t was the
simplest and most practical test. This
same institution of free mining some
what omdified by circumstances. can
be traced into the lead district of Der
byshire, England, and it was accom-
panied by the same requirement Of
discovery founded on the same neces-
stiles.
Origin Of American MINING Law.
While 1t Is impossible to state that
the so-called American mining law
which sprang up in the west following
the discovery Of gold, was directly pat
termed after the Germanic or Derby
shire prototypes it is certain that our
law In its genesis owes much to the
spirit and reason underlying these
other systems Of mining law with the,r
Tree miners right. Here in the west in
the early days the miners exercised
the same free right to go out on the
public domain to discover and loca 70
mining claims. The sovereign power
lid not undertake to assert its preros-
itive, as 1t might have done by desig
hating those who should be permitted
% work it's mineral lands, but it gave
'ull sway to the choice of the individ-
,al locators and passively allowed
hem to make their own rules and reg
ilations. This free miners right, first
embodied in the rules AMI customs of
he mining districts. was later crystal
lied and codified into the federal stat
ties. For the same reasons which
rave existed ever since the free min
RS right was first exercised, the prin-
'iple OF discovery was thus recognized
md incorporated into the American