The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1917-06-07

the discovery requirement of the min
ing law be abolished also. II these two
fundamental features--discovery and
leXtralateral right-are eliminated, the
system of American mining law built
up as a result of years of experience
and Intelligence of practical pioneer
miners will have been virtually emas-
culated Little more than an empty
shell will remains Many critics have
stated that the discovery requirement
is a feature characteristic of American
mining law exclusively. and that it Is
Il useless requirement, unnecessarily
suffered by the American miner. Both
statments are erroneous. The discov
cry requirement is characteristic Of
most of the systems of mining law in
the world. The elimination of the dis
Icovery feature from our law would
wipe out the simplest and most prae-
teal form of test as to whether land
is mineral or not. Such elimination
would destroy the simple test whereby
mineral lands are now practically and
easily classified under existing law so
that mineral locators are able readily
to defeat agricultural claimants desir,
ing to obtain the same lands. The al
tentative test would be to leave such
classification to an appropriate branch
of the federal government. Even this
alternative would be open to serious
objection. 1t would substitute the
opinion of mineral experts and repre-
sentatives of the federal government
as to mineral character of land in
place of the views of the practical
miner; it would mean aggravating de-
lays where mines We're discovered in
rugged or desert regions remote from
centers of travel: it would overturn a
fundamental pinciple embodied in our
mining laws by the pioneer miners, a
principle which was the heritage of
ages of mining experience and finally
it would tear down and destroy to a
4 large extent the great body of law that
has gradually been developed with in
! finite patience and practical wisdom
as result of judicial Interpretation
opera ting through more than half a
century, The law of discovery is now
well settled and understood and to
substitute for it an unknown and I'M
tried quantity would mean another
period of uncertainty and litigation
until a similar line of interpretative
decisions had been rendered with re.
spect to the new law. This super
structure of judicial Interpretation is
as important a part of the law, and is
as necessary for its satisfactory work.
ing as is the organic law. which it in
terprets 1t is even more important
be created overnight az it We're, while
the Interpretation and harmoniZing OF
ii, especially in its relation to other
laws, takes years to accomplish.
Another practical difficulty to which
the elimination of the eXtralateral
right will give rise is that in certain
Of the western states condemnation OF
private rights of way for mining pur-
poses is not permissible. The courts
of these states have not taken the
broader view followed in other states
where it is held that the public well
fare is so dependent upon the mining
industry that "a private mining opera
tor can exercise the right of con-
demna ton for rights of way for min
ing purposes The practical effect OF
the abolition Of the eXtralateral right
in those states which deny the miner
such a right of condemnation would
be to render him unable to operate as
one mine two separated segments OF
the vein underlying two separate par
cells of surface land where the inter
vening surface owner objected. Tn.
der existing eXtralateral law he has q
right to follow his vein on it's dip ir.
respective of surface ownership over
lying the dip. Another consequence OF
. the elimination of the eXtralatera
right would be to make the ownership
Of everything surface all important I'm
der existing law the eXtralateral claim.
ant frequently is willing to make g
material concession to his neighbol
when it comes to a dispute as to the
ownership of surface on a portion OF
his claim. If the surface in controver'
sly does not include any portion of the
, apex of the vein, the surface right fire.
quently does not assume sufficient i'm
portance to justify litigation, and con
, troversies are usually amicably set.
tied or the surface proprietor il
, bought out for comparatively small
, sum. If the right to the vein should
, become entirely dependent upon sur
, face ownership, it is obvious that sur
, face title becomes so vital that dis
, putes over surface would increase IL
. number and be contested more bitter
ly than in the past. Practically all o
a the states of the west have also leg
q islated ON the subject of mining law
4 supplementing the laws of congress
Most of these have embodied in thei
a legislation the eXtralateral provision
n of the federal statutes While actlol
q by congress aboishing the extralatera
a right would doubtless have the effec
a. of rendering these state statutes in
= narrative vet il would become neces