MINES AND MINING. A mine is an ex cavation in the earth for the purpose of ob taining minerals.
Mines of gold and silver belonged, at com mon law, to the sovereign ; 1 Plowd. 310; 3 Kent 378, n. ; Moore v. Smaw, 17 Cal. 222, 79 Am. Dec. 123 ; and it has been said that, though' the king grant lands in which mines are, and all mines in them, yet royal mines (q. v.) will not pass by so general a descrip tion ; Plowd..336. In New York the state's right as sovereign was asserted at an early day, and reasserted by the legislature as late as 1828; 3 Kent 378, n. In Pennsylvania the Royal Charter to Penn reserved one-fifth of the precious metal as rent, and the pat ents granted by Penn usually reserved two fifths of the gold and silver. An act passed in 1843 declared that all patents granted by the state pass the entire estate of the com monwealth. In California, after much dis cussion, it seems to be finally settled that minerals belong to the owner of the soil and not to the government as an'incident of sov ereignty ; Moore v. Smaw, 17 Cal. 199, 79 Am. Dec. 123 ; Merced Min. Co. v. Boggs, 3 Wall. (U. S.) 304, 18 L. Ed. 245 ; Castillero v. U. S., 2 Black (U. S.) 17, 17 L. Ed. 360. In Moore v. Smaw, 17 Cal. 199, 79 Am. Dec. 123, Field, C. J., upon thorough examination of the subject, rejected the doctrine of sov ereign' title as an assertion of personal pre rogative of the British crown, neither ap plicable to our institutions nor a necessary incident of sovereignty in the larger sense. The prerogative title of the sovereign was in Oregon treated as conceded ; Gold Hill Quartz Min. Co. v. Ish, 5 Or. 104. It was held that in Maryland the mines passed by royal grant to Lord Baltimore, subject to a reservation of one-fifth of gold and silver found and that the entire title passed to the state, the interest of the proprietor by con fiscation, and that of the king by conquest; Shoemaker v. U. S., 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170. The same prerogative right was very early asserted in New Jer sey ; Board of Chosen Freeholders of Mid dlesex County v. Bank, 30 N. J. Eq. 323, note. It is said that the question is not of prac tical importance since the title to mineral lands generally in the United States is de rived from public grants, and the right to minerals therein is regulated by. law ; Barr.
& 'All. Mines 179. As to mineral lands and claims and their location under the United States laws, see LANDS, PUBLIC; Barr. & Ad. Mines ch. 6. See Judge Dallas's note to Bainbr. Mines 37.
Minerals in the beds of navigable waters below low water mark are owned by the state against which an appropriator without a grant is a trespasser, although he has a good title against any one else; Barr. & Ad. Mines 180. See State v. Phosphate Co., 3,2 Fla. 82, 13 South. 640, 21 L. R. A. 189 ; Coo saw Mining Co. v. South Carolina, 144 U. S. 550, 12 Sup. Ct. 689, 36 L. Ed. 537; State v. Guano Co., 22 S. C. 50. The same rule ap plies to minerals found under highways ; Smith v. City Council of Rome, 19 Ga. 89, 63 Am. Dec. 298 ; St. Anthony Falls Water Power Co. v. Bridge Co., 23 Minn. 186, 23 Am. Rep. 682 ; Matthiessen & Hegeler Zinc Co. v. City of La Salle, 117 III. 411, 2 N. E. 406, 8 N. E. 81; Lyman v. Arnold, 5 Mas. 195, Fed. Cas. No. 8,626. See 14 A. & E. Ry. Cas. 486.
Where lands are taken under the right of eminent domain, strictly only a right of way passes, but it is sometimes held that the ap propriator may use minerals taken there from for making or repairing the road-bed ; Stokely v. Bridge Co., 5 Watts (Pa.) 546; at least those above grade which must be ex cavated; Evans v. Haefner, 29 Mo. 141; but the better opinion is said to be that no such right exists and that minerals remain the property of the owner of the soil ; Barr. & Ad. Mines 186; Smith v. Holloway, 124 Ind: 329, 24 N. E. 886;•Lyon v. Gormley, 53 Pa. 261. See 24 A. & E. Ry. Cas. 142.
All mineral lands of the general govern ment, both surveyed and unsurveyed, are free and open to exploration and occupation, subject to such regulations as may be pre scribed by law, and also to local customs or rules of miners when not in conflict with the laws of the United States. R. S. § 2319. See Forbes v. Gracey, 94 U. S. 763, 24 L. Ed. 313 ; LANDS, PUBLIC.