not one acre in five thousand of what may be mineral is known to be such. The benefit of this law to the settlers is better understood when these facts are known.

The whole subject-matter of existing laws in relation to the sale or disposal of timber-bearing lands may be briefly stated, as follows: Timber lands in the States of Arkansas, Louisiana, Mississippi, Alabama, and Florida may be bought for cash by any persons in any quantities, or may be taken under the homestead and pre-emption laws.

In such parts of the States of Michigan, Wisconsin, Minnesota, and Missouri as contain public lands, which are at the same time agricul tural and timber lands, the title may be obtained only under the homestead and pre-emption laws.

There is no way provided by law for disposing of lands which are chiefly valuable for timber of commercial value in those States, as it must be conceded by all that the homestead and pre-emption laws apply only to lands valuable for agriculture.

In the States of California, Oregon, and Nevada, and in Washington Territory, timber lands can be bought by certain persons, under certain onerous conditions, in quantities not exceeding one hundred and sixty

acres.

In the States of Nevada (both the laws approved June 3, 1878, are applicable to this State) and Colorado, and in all the Territories except Washington, any person may cut and remove all the timber he may need for mining and domestic purposes from mineral land. This law, strictly observed, would not coufer any benefit upon one in one thousand of the inhabitants. There is no other law by or under which timber or timber lands can be procured in the States and Territories last above named.

The population of two States and seven Territories should not longer be compelled by the laws of the country to be trespassers and criminals on account of taking the timber necessary to enable them to exist, as is the condition to-day, and as it has been, according to law, ever since settlements were commenced, or since the policy of selling lands for cash has been abandoned by the government.

If the bill proposed by the commission should become a law, timber upon agricultural lands may be taken with the land, under the homestead law; timber or pasturage land may be taken under the law for sale of pasturage land, and also under pasturage homesteads; and timber may be taken from any land not classified as timber or agricultural land by all citizens and others requiring its use. Under the chapter of

the act referring specifically to the sale of timber, the timber upon alternate sections of the timber lands may be bought without the soil. These provisions, together with the law as it now stands in reference to the States of Arkansas, Louisiana, Mississippi, Alabama, and Florida, will place all the public timber land of the United States under laws for disposal to persons requiring it, excepting the timber upon alternate sections of the lands embraced under the classification of timber lands, and thas make it possible for all persons, in every part of the country, to get timber or timber land, and at the same time making some provision for the retention of the timber on a part of the land and the reproduction of it upon another small portion.

MINERAL LANDS.

The United States mining laws of 1866 and 1872 are directly descended from the local customs of the early California miners. Finding them. H. Ex. 46-III

selves far from the legal traditions and restraints of the settled East, in a pathless wilderness, under the feverish excitement of an industry as swift and full of chance as the throwing of dice, the adventurers of 1849 spontaneously instituted neighborhood or district codes of regula tions, which were simply meant to define and protect a brief possessory ownership. The ravines and river-bars which held the placer-gold were valueless for settlement or home making, but were splendid stakes to hold for a few short seasons and gamble with nature for wealth or ruin. In the absence of State or Federal laws competent to meet the novel industry, and with the inbred respect for equitable adjustments of rights between man and man, which is the inheritance of centuries of English common law, the miners only sought to secure equality of rights and protection from robbery by a simple agreement as to the maximum size of a surface claim, trusting, with a well-founded confidence, that no machinery was necessary to enforce their regulations other than the swift rough blows of public opinion. The gold-seekers were not long in realizing that the source of the dust which had worked its way into the sands and bars, and distributed its precious particles over the bed rocks of rivers, was derived from solid quartz veins, which were thin sheets of mineral material inclosed in the foundation rocks of the country. Still in advance of any enactments by legislature or Congress, the common sense of the miners, which had proved strong enough to govern with wisdom the ownership of placer mines, rose to meet the question of lode claims, and decreed that ownership should attach to the thing of value, namely, the thin sheet-like veins of quartz, and that a claim should consist of a certain horizontal block of the vein, however it might run, but extending indefinitely downward with a strip of surface, on or embracing the vein's outcrop, for the placing of necessary machinery and buildings. Under this theory, the lode was the property, and the surface became a mere casement.

This early Californian theory of a mining claim, consisting of a certain number of running feet of vein with a strip of land covering the surface length of the claim, is the obvious foundation of the Federal legislation and present system of public disposition and private ownership of the mineral lands west of the Missouri River. Contrasted with this is the mode of disposition of mineral bearing lauds east of the Missouri River, where the common law has been the one rule, and where the surface tract has always carried with it all minerals vertically below it.

The great coal, iron, copper, lead, and zinc wealth east of the Rocky Mountains, have all passed with the surface title, and there can be little doubt that if California had been contiguous to the eastern metallic regions, and its mineral development progressed naturally with the advance of home-making settlements, the power of common law precedent would have governed its whole mining history. But California was one of those extraordinary historic exceptions that defy precedent and create original modes of life and law. And since the developers of the great precious metal mining of the far West have for the most part swarmed out of the California hive, California ideas have not only been everywhere dominant over the field of industry, but have stemmed the tide of Federal land policy and given us a statute-book with English common law in force over half the land, and California common law ruling in the other.

Your commissioners have examined typical mining localities in all the far western States and Territories, studying the metalliferous deposits, the character and mode of developing the same, the titles on which ownership rests, and the lines of litigation which have governed the at

tacks upon and defense of mineral property. It has been our main purpose in this branch of inquiry to determine how well the laws now upon the Federal statute-book convey into private ownership portions of mineral-bearing public lands, and how well the grantees of the government are enabled to hold, enjoy, and develop their properties. While in a large class of cases your commission finds that the law conveys definite rights and protects the grantees, in a far larger class it simply bequeaths a piece of paper and a legal contest.

We find an extraordinary and characteristic difference between the mineral development east of the Missouri and that west. The first is almost absolutely exempt from litigation growing out of conditions of the government conveyance. The other is a history of the most frequent, vexatious, costly, and damaging litigation.

While the total litigation concerning mineral titles in the great copper and iron region of Lake Superior is represented by a single suit, which turned on a conflict between two titles granted respectively by the State and the Government, the dockets of the far western courts are cumbered with an excessive number of suits, involving many million dollars of value. In that region the invester of capital too often buys only a law. suit, with a possible mine thrown in, and finds himself forced to choose between an expensive legal defense of his rights or robbery. That the mineral industry advances and prospers in the face of the statutes is proof only of the wealth of the country, and the buoyant energy of the people.

There are two general features in the existing statutes which have provoked and directed the main lines of legal contest, and they are, first, the recognition by the law of the local customs and regulations; second, the attempted conveyance of a lode, ledge, or deposit of rock in place hearing mineral, as a thing separate from and independent of the surface tract of ground, with the permission to follow such lode or deposit on its dip, even when in the downward course it passes beyond the side lines of the surface claim.

The law leaves all the conditions as to location, notice, record of location and area of claim within certain wide limits to local regulations. That is to say, the government proposes to convey a portion of its public land, and bases the very origin and initiation of that conveyance on the acts of an official wholly outside its jurisdiction.

Title after title hangs on a local record which may be defective, mutilated, stolen for blackmail, or destroyed to accomplish fraud, and of which the grantor, the government, has neither knowledge nor control. In the testimony taken by your commission it was repeatedly shown that two or three prospectors, camped in the wilderness, have organized a mining district, prescribed regulations, involving size of claims, mode of location, and nature of record, elected one of their number recorder, and that officer on the back of an envelope or on the ace of spades, grudgingly spared from his pack, can make, with the stump of a lead pencil, an entry that the government recognizes as the inception of a title which may convey millions of dollars.

From such extreme cases, frequent as they have been, there is a wide range of organization to the duly-elected county recorder, but even that official, who represents the most favorable working of the system, is not responsible to the United States. He is neither bonded nor under oath. He may falsify or destroy his record; he may vitiate the title to milhons of dollars' worth of claims, and snap his fingers in the face of the government. All the local officers are made indirectly the agent of the

government at the critical stage of a vast class of transactions without an iota of responsibility or a syllable of instruction from the principal. It is true that the statute of 1872 does not make a record obligatory nor does it define its effect. Miners at their meetings might draw the provisions of their code without mention or requirement of record, but practically they exercise the privilege which the statute does not inhibit, and create a record. Having, as is universally the case, made the record a part of their code, the Federal law, having recognized and enforced the code, is thereafter bound as to its conveyances by the record with all its preposterous seeds of harm.

Such Federal law and such a state of affairs as the law plainly neces sitates would, it might be supposed, cure itself. The burden of litigation, the uncertainty of ownership, and the actual loss of property, should have long ago brought the mining people to a realization of the damage wrought by local records; but unfortunately the class of men who own our mines, fight the great costly lawsuits, and discover the absurdity of the law, are not the class who make the locations. The prospector's sole attempt is to follow the custom of other prospectors, make his location as other locations have been made since the golden days of early California, and sell out to a capitalist.

If the capitalists of London and New York, Chicago and San Fran. cisco, had anything to do with mine locations, they would clamor for a change.

The continuance of this early practice, which has survived not only its original necessity and usefulness, but every semblance of value, is perhaps due more than all other causes to the excited, sudden, and transient character of the industry. The immediate returns, the movements of the stock-board to-day, the swift conversion of bonanza into bullion, are the points which absorb men. Permanent ownership and security of tenure are less considered. Like a great wheel of fortune, the daziing prizes blind men to the sober legal conditions on which se curity depends, and, as a result, no branch of American enterprise has ever paid to litigation so great and so unnecessary a share of its gross returns.

One of the ablest jurists who has administered the mining laws, Chief Justice W. H. Beatty, of Nevada, argues conclusively that the local records are of no practical value, and hence there is absolutely nothing whatever to weigh against the crying evils which their contin uance entails. On page 398 of the book of testimony, he says:

It thus appears, if the foregoing statements are correct, that upon three out of four points, subject to local regulation by the miners they make no use of their privilege. and that the regulations which they do make on the fourth point (namely, record), having no reason to support them, are simply useless and vexatious. If this conclusion is well founded, my first proposition is established, that the whole subject of lode locations is so simple that it not only may be, but actually is, fully regulated by act of Congress. That the right of local regulation ought to be taken away if it is of no practical value, is a plainer proposition than the first. The interest of the public would be subserved by cutting off a source of endless litigation, and the mining communities would be especially benefited by the enhanced value of mining property. The magnitude of the evil resulting from the uncertainty of mining titles will, perhaps, be appreciated, when I say that after a residence of seventeen years in the State of Nevada, with the best opportunities of observing, I cannot at this moment recall a single instance in which the owners of really valuable mining ground have escaped expensive litigation, except by paying a heavy blackmail.

Besides the worse than useless permission to prescribe a record over which the government has no control, the law of 1872 leaves but two points which may be regulated by local organizations. It fixes the maximum dimension of the claim or thing granted, and it fixes the

minimum requirements of survey, development and payment upon which the claim may pass to the grantee.

Within these narrow limits is all the room left for local regulation. Miners may voluntarily limit their privilege of mineral pre-emption to an area less than the statute offers them, or they may require of themselves conditions more onerous than the law demands. With his eyes open the American citizen is somewhat unlikely to do either,

Your commission find that a large majority of the mining men consulted during the examination of the Western States and Territories clearly shared our conviction: first, that the local regulations are of no use; secondly, that they are a great positive harm; thirdly, that by Congressional enactment they should be promptly abolished as to all

future locations.

Accordingly, in the code of legislation submitted herewith, it is directly provided that "all future occupation, location, or purchase of pub. lic mineral lands shall be governed by laws of Congress, to the exclusion of all local customs and regulations and State and Territorial law" (section 172); and a mode of location is prescribed which requires all the acts necessary to pass title for public mineral lands from government to the purchaser, to be performed by the locator, his assign or agent, and the duly bonded and qualified officers of the United States.

The second great class of evils which our proposed law has sought to cure are those incident to the theory of the lode or ledge location. This outgrowth of the early Californian practice stands thus in the statute of 1872:

SEC. 2322. The locators of all mining locations heretofore made, or which shall hereafter be made on any mineral vein, lode, or ledge situated on the public domain, their beirs and assigns, where no adverse claim exists, on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with State, Territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, and ledges may so far depart from a perpendicular in their course downward as to extend outside of the vertical side lines of such surface locations; but their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges.

The grant therefore consists, first, of a definite surface tract, which, if properly marked, need never become a subject of dispute; and, secondly, of all veins, lodes, and ledges without limit as to depth or departure beyond the side lines of the surface location, whose tops or apices lie inside the prism of earth bounded by vertical planes through the exterior boundaries.

But the lodes which are to be followed are not definite or limitable, and in the book of testimony Judge Moses Hallett, of Colorado, in a clear exposition of the impossibility of describing or identifying a lode, which is the valuable thing granted, remarks:

It is safe to say that the greater part of the legal complications for which mines are torious over all other property, grows out of the practice of dealing with lodes as disticet and severable from the earth in which they may be found. In condemnation of that policy it is only necessary to say that very many lodes have not that character, and of those that are pretty well defined it is often difficult and sometimes impossible to distinguish one from another. If we can return to the common-law principle which gives to the owner of the surface all that may be found within in his lines extended downward vertically, we should avoid hereafter fully one-half the controversies that now embarrass the mining interests of the country.