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]

In a previous post I made this distinction between the two mining laws with respect to lode claims, "the 1866 Act's primary focus is with the vein or lode, whereas the 1872 Mining Law is focused on the claim." Robert Stewart Morrison was a Colorado attorney specializing in mining law. He began his practice in Georgetown, CO and later moved his office to Denver. He is perhaps most noted for authoring a horn book on mining rights (15 editions between 1874 and 1917).

I found this passage regarding "cross veins" in, "Mining Rights in Colorado: Containing Acts of Congress, statutes of Colorado, Mining District Rules, Local Customs, Practice in Location and Patenting of Claims, Forms, Decisions, etc.", 2nd Edition, 1875, pages 27-29. Being a geologist and surveyor, I was amused at an attorney accurately depicting the reality of "vein ore deposits". I believe that those who have staked their own lode claims will find the humor in the Sisyphean nature of tracing the apex of a lode.

The leading idea of the Mining Acts of Congress is that a lode is a straight vein whose course can be readily ascertained and indicated by a straight line or a series of straight lines; and that occasionally such a vein is crossed by another in a similar straight line, merely requiring the right of way to give each lode its proper claim; but, in fact, a lode is never a straight line; and is seldom to be traced, without confusion for more than a few feet; and in its course other veins are absorbed into it; and off-shoots (not only spurs, but, perhaps, better developed veins than itself) run from it in all tortuous directions; and in its extension down ward, it invariably dips laterally, and often shows a fork of which both parts approach the surface; and it will divide, and may, or may not, unite at another point; and it will abut suddenly upon country rock and so be thrown far to one side; and instead of showing distinct lines, mineral veins are as irregular, as disproportioned in length and width, as much intermingled, as uncertain to segregate from each other, as are the veins of the hand, or the veins on a block of marble.

It is as the result of these natural facts, that the same lode is so often claimed at various openings by as many sets of claimants, by equally honest and valid or invalid locations.

If this irregularity were once admitted in any case the remedy might be obvious, but the practical difficulty consists in compelling such admission; with our present superficial mining, and our present knowledge of mineral deposits, the question whether two claims are upon the same or separate veins, or whether there is a junction or crossing is always a disputed fact upon which parties will stand, and witnesses will disagree.

But the greatest objection to the land office practice, under the Mining Acts is to the granting of overlapping patents. A glance at the plat of any late patent in a well developed district will introduce the subject to the reader; three or four surveys, partly crossing, partly parallel and intersecting at all angles are frequently seen, so that unless the plat is colored, the eye can scarcely distinguish one from another; only the rigid application of the rule of preference to prior patents can ever relieve this matter from difficulty; for while the words of a patent always except the surface of previous surveys, they still proceed upon the supposition that each survey indicates a separate vein.

The theory that each survey covers a distinct vein, or that a survey covers any vein at all or that its centre or discovery shaft is sunk on a vein, is all bare assumption—these points depend upon underground developments, and not on diagrams or surface surveys.

The marking of surface boundaries at the outstart and the increased width and relocations under the new Act, will however, greatly relieve these difficulties; even at present proper precautions upon full information as to the facts will give all desirable certainty in any particular case, though in reaching such certainty, many titles may have to be rejected as clouded, or supporting claims must be bought in.

It may very well be that the ephemeral nature of lodes/veins was a major reason for changing the 1866 Mining Law only 6 years after its passage. From my own experiences conducting underground mine surveying and geologic mapping, tortuous is an understatement for tracing the course of a vein. I was once asked to extrapolate the vein structures to the surface and found to my client's dismay that the veins actually tied themselves into knots!