The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1914-02-19


the land. which It is now within his
power to make, but he must look else
where for the determination of the
controversy. Who shall decide whe-
ther the land is mineral or agriculture
al in character and how? Those who
advocate the adjustment of this test
overlook the fact that an agricultural
claimant may file on the same land
They must offer some substitute which
will not only work as well as the test
which they seek to supplant, but 10
justify the change, they should offer
"a better test. 1t may be that they
have such test in mind, though 1t is
impossible that they can have one
which has Withstood the wear and
tear of centuries as has the one they
would discard--one which was created
by the miners themselves.
Classification by Government.
1t has been suggested that the gov
eminent shall determine whether any
particular tract of land Is mineral or
non mineral. This means an intensive
classification of the millions of acres
comprising the public domain While
this land is being classified, what is to
be the status of mineral filings? And
after it has been classified, what like
lihood is there that in innumerable in
stances the actual character will be
properly determined? Prospecting will
then have become lost art. With the
greatest respect and admiration for
the splendid work that has been and
will be accomplished by the govern
ment biologists, the writer feels that
they would be the last to. claim that
they could perform such miracles. But
it may be urged that the determnia- :
tion shall be made by the government
after the claim is filed on by the min
era claimant. One can imagine the
delay and intervening uncertainty of
title which would result if some pros
pector in remote part Of the public
spector of his desire to acquire title
to claim and had to await the ar
rival and inspection and confirmation
of report of the government agent.
The writer has personal knowledge of
Il case where the applicant had to wait
two years for the government inspect
ors report on patent application for
Il lode mine existing in remote and
mountainous region of California.
This instance is not cited by way Of
complaint, but merely as evidence of
what will inevitably be the condition
if the burden Of classifying the char
acter of the land is shifted from the
prospecotr to the government. j
means abandoning the right of the
miner to determine for himself by dis
covery. the character of the land he
seeks to acquire and compelling the
government to assume the burden.
And who is to pay the expense of such
government inspection and determin-
alton? When the government inspect
or arrives on the ground will he not
in all probability. in the great majority
of cases, base his determination J1
the character of the land on the same
evidences that the prospector and min
er himself ordinarily accepts as a suf-
ficient discovery?
Legal Protection Of Discoverer.
Under the present law the inspector
knows that as soon as he has made his
discovery he is entitled to his ground
and can enforce his right in the courts
where the long line Of we'll considered
decisions on the question Of discovery
will be followed. When discovery has
been abolished, however he can have
no such assurance. The protection OF
the courts based on long establihsed
precedent is no longer his. The de-
termination of the character of the
land will rest elsewhere, and the miner
will have sacrificed one Of his strong
est safeguards. founded on centuries
of mining experience.
The element of discovery is firmly
established in our system of mining
law as is evident from the following
expressions of opinion by the supreme
court of the United States:
Discovery is the all-important fact
upon which title to mines depends
dawson V. United States NJ. Co., 2O7
U. S. /, 49,.
1.-THE whole scope of the chapter
(Chap of Title 32, Rev. Stat.) is the
acquisition of title from the United
States to mines and mineral lands, the
discovery of the mineral being, as
stated. the initial fact Without tina t
no rights can be acquired" (Creede
and Cripple Creek NJ. & NJ. Co. V. Uni
ia T, NJ. q T. Co., 1876 U. s., 337, 345).
in all legislation. whether Of con-
greSs or of the state or territory, and
by all mining regulations and rules,
discovery and appropriation are recog-
niZed as the sources of title to mining
claims, and development, by working,
as the condition of continued owner
ship. until patent Is obtained. And
whenever preliminary work is requir-
ed to define and describe the claim 10.
Gated, the first discoverer must be pro-
tected in the possession of the claim
until sufficient excavations and devel-
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