Mining Laws and Regulations from a Land Surveyor's Perspective Options

[Gene Kooper]

I am a land surveyor that specializes in mineral survey retracements and, when necessary dependent resurveys. By that, I mean that I retrace the original boundaries of U.S. mineral surveys and when corners have been obliterated or destroyed I will reset the corners. A mineral survey is originally surveyed by a U.S. [Deputy] Mineral Surveyor. In addition to abiding by the instructions issued to mineral surveyors by the General Land Office or BLM, the mineral surveyor was required to know and understand the federal mining laws, their amendments, promulgated regulations, state mining laws and local mining customs before beginning the mineral survey.

Since my job as a retracement surveyor is to follow in the footsteps of the original surveyor I must know and understand what the mineral surveyor was charged with knowing. As such, over the years I have also become an amateur historian of the evolution of mining laws and regulations thereunder. I thought this forum would be a good place to post some of my research over the years. My perspective is different from most/all on this forum. I start from the beginning and note how the mining laws have evolved to the present while you folks are focused on how to procure and protect your possessory right to the locatable minerals on the Public Lands. IMHO if someone wants to know why the laws and regulations are what they are, it is informative to see how they came about and the numerous changes made up to the present time.

A CAVEAT: My primary objective is to understand the mining laws, regulations, instructions, DOI Land Decisions, etc. issued since 1866 as they apply to the boundaries of patented mining claims. I am not a prospector and have only staked mining claims for my clients. However, I do photograph and collect stones (mineral survey corners). My avatar is a porphyry stone that marks Cor. No. 1 of the Mother Lode (Sur. No. 204), Cor. No. 1 of the Mater Lode (Sur. No. 15889) and Cor. No. 4 of the Towne Lode (Sur. No. 17327) at the London Mine in Mosquito Gulch (American Flats is in the background).

So with that disclaimer stated, I thought I would start with a reference list I compiled as a handout for my mineral survey retracement workshops, which is attached to this post. In the reference list is, "Mineral Survey Procedures Guide, 1980, John V. Meldrum, U.S. Bureau of Land Management." The guide was issued to all U.S. Mineral Surveyors upon receiving their first appointment as a mineral surveyor. The next post will begin with a discussion of Chapter I Mining Laws, which includes the federal mining laws, their amendments and state mining laws.

I believe the last two references will be of interest to several here (if you don't already have them as references). They are in my opinion good references for locating and staking mining claims.

• Digest of Mining Claim Laws, Robert G. Pruitt, Jr., Fifth Edition, 1996; and
• Mineral Law, Terry Maley, Sixth Edition, 1996, Mineral Land Publications.

Edit: Fixed some spelling and grammar errors.

[Gene Kooper]

To follow-up on Clay Diggins comments regarding the Act of February 27, 1865, I have attached the full text of the Act, "An Act providing for a District and a Circuit Court of the United States for the District of Nevada, and for other Purposes". In my opinion, I don't see this Act as being the first federal mining act.

While the Act does acknowledge the concept of possessory right to minerals, I believe its purpose was to declare that the courts of the United States have jurisdiction to determine possessory rights to minerals on the Public Lands. Federal courts are courts of limited jurisdiction. Section 9 of the Act is a single sentence and does not specify any requirements to hold possessory title to minerals. My position is that local customs, rules and "traditions" would be controlling as to the possessory rights to minerals in a particular mining district.

In a subsequent post on State mining laws, I will include a good reference on local mining laws, rules and regulations. As an example, on November 21, 1859 miners in the Central City/Black Hawk area passed the "By-Laws for the Government of Central Mining District". Among the officials created by Article 1 of the By-Laws was the official position of Stake Driver.

From the text of the By-Laws, "Art. 19. The Stake Driver shall mark all stakes with proper names and dates, (numbers to be cut in the stakes), and drive them as directed by the claimants; but not before ascertaining from the Recorder that said claims are proved to be stakeable, or that they have exposed the lode, discovered gold, and proved the same. The Stake Driver shall receive 50 cents for each stake, and 25 cents per mile one way; shall keep a record of each stake, number, date, parties names, name of lode and course, in a book kept for that purpose. The fees of the Stake Driver must be paid to the Recorder." The By-Laws also specified that, "Art. 2. All claims made by discovery shall be 200 feet long by 50 feet wide….".

Although the wording is slightly different, Sec. 1 of both the 1866 and 1872 mining laws acknowledge the authority of local mining district customs and rules. The 1866 Act states, "….and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States". The 1872 Act states, "….and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States". In other words, local customs and rules (as well as state/territorial laws) may impose additional requirements that the claimant must adhere to as long as they are not in conflict with the two federal acts.

It is important to recognize that the possessory right to minerals is based on the act(s) and regulations in force at the time the mining claim was located. Section 2 of the 1872 act states, "That mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver cinnabar, lead, tin, copper, or other valuable deposits heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location."


A comparison of the "experimental¹" lode law of 1866 and the 1872 Mining Law.

For those with an interest in the historical aspects of the differences between the 1866 and 1872 mining laws, I suggest the book, "A Commentary on the Mining Legislation of Congress…." by Edward P. Weeks, 1877 (in my reference list). The book can be downloaded from Google Books I included the table of contents as an attachment. Chapter 1 deals with the 1866 mining law sections repealed in the 1872 mining law.

The main difference between the 1866 Mining Law and the 1872 Mining Law's sections dealing with lode claims (other than claim dimensions) is that the 1866 Act's primary focus is with the "vein or lode", whereas the 1872 Mining Law is focused on the "claim". Under the 1866 Act, the patentee owns the lode with sufficient surface ground to be reserved to access the lode. In Colorado, the "50-footer law" of February 9, 1866 established the width to be 25 feet on each side of the vein or lode.

Section 3 of the 1872 Act (30 U.S. Code § 26 gives the claimant, "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically," going on to provide for rights extralateral to those surface lines and prohibiting entry "upon the surface of a claim owned or possessed by another."

To illustrate the difference, I ran into an interesting problem several years ago. Five adjoining and parallel patented lode claims (dimensions of 3000 ft. along the lode and widths of 50 feet) were intersected by a lode claim, senior in right with similar dimensions. The BLM's Master Title Plat shows the overlap areas as being owned by both the senior and each junior claim rather than solely by the senior claim. Under the 1866 Mining Law, when two claims cross each other the senior claim has title to the intersection of the veins or lodes, but the junior claim has title to his lode that lies within the exterior boundary of the senior claim that is not part of the intersection.

Is the BLM indicating that the conflicting surface ground, exclusive of the veins is jointly owned by the two patentees? I obtained the patents for the senior and junior claims and none of the patents exclude the area in conflict. Perhaps the BLM decided that the ownership of the areas in conflict are uncertain, and therefore, both claims are shown to have an ownership interest.

For lode claims located under the 1872 mining law, any cross lodes apexing within the senior claim's boundary belong solely to the senior claim. The junior claim's rights are extinguished at the point where the junior lode intersects the senior side lines. At certain times in the past, the General Land Office required the junior claim to have multiple discoveries (one on each side of the senior crossing claim) to verify that the lode continued through the senior claim.

My apology for spreading this thread out over time. I'll try and post something on state laws and regulations over the weekend. After I get the state laws and Colorado mining regulations posted, I'll respond to swizz's request to document the Colorado statutes that restrict the staking of mining claims to the claimant or a currently licensed Professional Land Surveyor in the thread started by GeoMatt.

¹ From Henry Norris Copp's serial publication, "Copp's Land Owner", Vol. 1, Page 47, 1875.

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