Thursday, October 22, 2015

Mining Law in 1865

In the earliest days of mining in Montana, from 1862 to 1864, each district had its own rules for the staking of mining claims. Generally these rules were focused on placer claims, and allowed claimants 200 feet long along a gulch, extending completely across the channel. In late 1864, the territorial legislature passed a new law governing mining claims, mostly copied from statutes then in force in California. This law - quoted below - governed the staking of the Cordova and other lodes in the Philipsburg area. The rules created a "lawyer's paradise", generating numerous tangled lawsuits relating to such issues as whether the Hope claim was on a vein that was a "spur" of the Comanche

In 1867, J Ross Browne reported to Congress on the Mines and Minerals West of the Rocky Mountains. By this time, a new Federal statute governed mining claims, which was hardly an improvement over the territorial law. Browne gave a colorful description of the interaction of geology and law in the Comstock district in a Harper's magazine article titled "Washoe Revisited". The Congressional Report the following year contained extensive critiques of the 1866 Federal mining law by W.S.Keyes and Rossiter Raymond. Keyes reported on the operation of the law in Montana, which he regarded as dysfunctional. Raymond's report is a treatise on the history of mining from ancient times to the present and the laws governing mining through time and in various jurisdictions. He is critical of the current mining law but not so scathing as Keyes.

My thanks to John Koerth for pointing out the problems generated by the use of the phrase "dips, spurs and angles" in early mining law. The federal Mining Law of 1872 improved matters somewhat by making claims wider and getting rid of the terms "spurs" and "angles". Most litigation after the 1872 act had to do with miners following a vein on the "dip". If a vein outcropped or apexed on a claim, the claimant could follow the vein down the dip outside the boundaries of the claim. Because of the way veins may complexly branch (much like a braid), it was often difficult if not impossible to determine which branch of the "braid" controlled an ore body. Faulting added additional complications, both geological and legal.

AN ACT relating to the discovery of gold and silver quartz leads, lodes, or ledges, and of the manner of their location. (Approved December 20, 1864.) 

Be it enacted by the legislative assembly of the Territory of Montana, That any person who may hereafter discover any quartz lead, lode, or ledge, shall be entitled to one claim thereon by right of discovery, and one claim each by pre-emption. 

SEC. 2. That in. order to entitle any person or persons to record in the county recorder s office of the proper county, any lead, lode, or ledge, either of gold or silver, or claim thereon, there shall first be discovered on said lead, lode, or ledge a vein or crevice of quartz or ore, with at least one well-defined wall. 

SEC. 3. Claims on any lead, lode, or ledge, either of gold or silver, hereafter discovered, shall consist of not more than 200 feet along the lead, lode, or ledge, together with all dips, spurs, and angles emanating or diverging from said lead, lode, or ledge, as also 50 feet on each side of said lead, lode, or ledge, for working purposes : Provided, That when two or more leads, lodes, or ledges shall be discovered within 100 feet of each other, either running parallel or crossing each other, the ground between such leads, lodes, or ledges shall belong equally to the claimants of said leads, lodes, or ledges, without regard to priority of discovery or pre-emption. 

SEC. 4. When any leads, lodes, or ledges shall cross each other, the quartz, ore, or mineral in the crevice or vein at the place of crossing shall belong to and be the property of the claimants upon the lead, lode, or ledge first discovered. 

SEC. 5. That before any record shall be made, under the provisions of this act, there shall be placed at each extremity of the discovered claim a good and substantial stake, not less than five inches in diameter, said stake to be firmly planted or sunken in the ground, extending two feet above the ground ; that upon each stake there shall be placed, in legible characters, the name of the lead, lode, or ledge, and that of the discoverer or discoverers, the date of discovery, and the name of each pre-emptor or claimant, and the direction or bearing, - as near as may be, of his or her claim ; said stake and the inscription thereon to be replaced at least once in twelve months by the claimants on said leads, lodes, or ledges, if torn down or otherwise destroyed. 

SEC. 6. Notice of the discovery or pre-emption upon any lead, lode, or ledge shall be filed for record in the county recorder s office, of the county in which the same may be situated, within fifteen days of the date of the discovery or pre-emption ; and there shall at the same time be an oath taken before the recorder that the claimant or claimants are each and all of them bona fide residents of the Territory of Montana ; and there shall be deposited in the recorder s office, either by the discoverer or some pre-emptor, a specimen of the quartz, ore, or mineral extracted or taken from said" lead, lode, or ledge, which said specimen shall be properly labelled by the recorder and preserved in his office. 

SEC. 7. That any person or persons who shall take up or destroy, or cause the same to be done, any of the said stakes, or who shall in anywise purposely deface or obliterate any part or portion of the writing or inscription placed thereon, shall be deemed guilty of a misdemeanor, and upon conviction thereof- before any court of competent jurisdiction, shall be punished by a fine of not more than 1,000 or imprisonment in the county jail not more than 90 days, or by both such fine and imprisonment. 

SEC. 8. "That the amount of ground which may be taken up upon any lead, lode, or ledge, in addition to the discovery claim, shall be limited to 1,000 feet along said lead, lode, or ledge in each direction from the discovery claim thereon. 

SEC. 9. All lead, lode, or ledge claims, taken up and recorded in pursuance with the provisions of this act, shall entitle the person recording to hold the same to the use of himself, his heirs and assigns ; and conveyances of quartz claims shall hereafter require the same formalities and shall be subject to the same rules of construction as the transfer and conveyance of real estate. 

SEC. 10. That if at any time previous to the passage of this net, claims have been taken up and recorded in the recorder s office of the proper county, upon any actual or proper lead, lode, or ledge of quartz, ore. or mineral, the owners or proper claimants o f said respective claim shall hold the same to the use of themselves, their heirs and assigns. 

SEC. 11. That the act relating to the discovery of gold and silver quartz lodes and the manner of their location, passed by the Idaho legislature and approved February 4, 1864, and all other acts, or parts of acts, inconsistent with this act, be, and the same are hereby, repealed. 

SEC. 12. This act shall take effect from and after this date. 

Again, by an act approved January 17, 1865, it was enacted that quartz mining claims 
and water rights " shall become part and parcel of the county records, and shall be evidence 
in any court or courts of competent jurisdiction ;" thus placing the titles to quartz claims on 
the same footing and making their transfer subject to the same formalities as those to real 

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