The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1916-11-16

more spirited discussion and against
which q greater amount Of criticism
has been aimed than the extra lateral
right or law of apex, or dip right' as
Ii Is variously termed. 1t has become
quite popular to present the arraign-
ment of charges that can legitimafely
be made against the practical opera
ton of this right and there is scarce
~ meeting of Importance connected
with the mining industry where some
one does not add to this volume OF
condemnation. In all this discussion
IL is rare to find word of commenda-
ton; not only are the advantages
which flow from the exercise OF this
right ignored, but in the general de-
nlnnd for its abolition we find very
little well considered thought given to
the serious results of such action and
few suggestions as to what steps
should be taken to minimize the grave
consequences that are bound to fol-
low such a radical and far reaching
change in our mining law. We are
too prone to assume that legislation
Ii a panacea for all defects in existing
laws and not enough attention Is PAID
to the evils which inevitably flow
from half baked remedial statutes.
Judging from the published remarks
of many who have criticized the extra
lateral right, the opinion seems to be
quite prevalent that all that Is neces-
sary to be done to cure the Ills that
are inherent in the law of apex Is for
congress to pass statute abolishing
it.
Comparative Treatment.
In discussion of this character 1t
is interesting to know whether other
systems of mining law have similar
features and what has been the result
of their operation. 1t has been err
roneously assumed by many that the
extra Nateral right is a unique burden
suffered by the United States alone.
An examination of the laws of other
countries shows that this Is not a
fact. Naturally we can not expect to
find in other countries an extra lat
eral law identical in all respects with
our own. 1t Is the fundamental prin-
ciple underlying this law that Is vital,
namely, the right to mine on and pur-
size a vein in depth beneath surface
ed by the mine operator. In other
words, the right to follow the vein In
depth is Independent of and is not
measured by surface ownership, hence
pursuit. 1t is usually described as
being opposed in principle to the COM
mon law idea of ownership of land,
where the owner of the surface Is en-
beneath. AS Judge Lindley has point
ed out in his treatise on the law of
mines, the common law recognized the
right of severance and frequently the
surface owner conveyed to another
the right to mine vein or mineral
hearing stratum that penetrated or lay
beneath his surface However, the
extra lateral right as we ordinarily
conceive of 1t has an element that did
not exist in the common law. In the
exercise of the extra lateral right the
vein may be pursued indefinitely in
depth beneath the surface of adjoin-
ing owners who have nothing to say
about the exercise of this right I'M
derneath their ground and are pow
erless to prevent 1t. The right has
been created by statute or custom be-
fore their surface ownership attached
aud the vein has been reserved and
carved out of their estate. 1t Is the
statutory or customary origin of the
right giving it an indefinite sweep in
depth and the fact that it is not at all
dependent upon conveyance from pri-
waite owners of everything surface nor
for It's measurement upon the vertical
boundaries of such surface ownership
that distinguishes the extra lateral
right from the common law severance
of minerals from the surface.
We have no definite information as
TO whether an extra lateral right was
exercised in ancient times. The ex-
listing record of these ancient mining
laws is meagre and great part of the
mining was carried on as a sovereign
venture so that the question of extra
lateral pursuit would seldom arise 1t
is only when there are adjoining pri-
waite ownerships that a situation is
created where the question becomes
important.
Under the democratic control of
Athens the silver-lead mines of Mt.
Laurion were leased in small adioin-
ing areas to individuals. One might
expect to find the extra lateral right
a feature of the ancient Greek min
ing law were 1t not for the fact that
these were flat lying contact deposits
occupying horizontal beds and hence
unsuited to the exercise of any dip
right.
SPAN and Spanish America peru
and Mexico).
The fabulous wealth of the mines
worked under Spanish rule, particu-
larly in her possessions in the new
world, stimulates our interest in her
mining laws.
III H.