Arizona Paper - The Antecedent Mineral Discovery Requirement (with Discussion)

Apparently the widespread agitation for the codification of our mining laws has had its effect, and it is quite possible that Congress will take up the question during this present session. The greatest objection to our present statutes pertaining to metalliferous deposits seems to be directed against the law of the apex. Those who are not in favor of changing this law are very far in the minority and they apparently realize that it is useless to urge its retention. Next in importance to the repeal of the law of the apex, seems to be a widespread advocacy for the repeal of the law requiring discovery of mineral before a valid location of a mining claim can be made. To a lesser extent there appears to be a desire to have the law changed so as to allow patent for claims without mineral discoveries. The purpose of this article is to review the arguments in favor of the proposed change of the discovery requirement, to show some of the evils that may be expected to result therefrom, and to consider whether a system may be devised to correct the undesirable features of the present law in this respect and at the same time not expose the mining fraternity and the general public to the evils which would result from the repeal of this fundamental requirement. Under the law as at present framed, the validity of a mining location is dependent upon the fact of discovery of mineral within the boundaries of the land claimed. " * * * but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located" (Sec. 2,320, U. S. Rev. Stat.). All authorities agree that discovery is the source of the miners' title. Lindley, in his valuable work on Mines (3d Ed., Sec. 335), lays down the rule in part as follows: "Discovery is the initial fact. Without that no right can be acquired. * * * Such discovery must precede the location, or be in advance of intervening rights. The proof of recording and marking a claim will not authorize the court to presume a discovery." As is well stated by the U. S. Supreme Court in Erhard v. Boaro (113 U.S. 536):