History of California, Volume VI, Part 44

Author: Bancroft, Hubert Howe
Publication date: 1885-1890
Publisher: San Francisco, Calif. : The History Company, publishers
Number of Pages: 816

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In this way the extreme borders of California were early made known, and restless dreamers began to

A new gold lake was sought in 1851 by a party from Downieville, guided by Deloreaux. Some of the deluded ones opened Forest City Diggings. Hittell's Mining, 25-6.

3+ Two brothers had worked it until the Indians killed one and drove the other with his tale to the valley. Bristow's Rencounters, MS., 9-10. Another version ascribes it to Joaq. Miller and a brother of Gov. McDougal. Vallejo Recorder, Sept. 10, 1871. Alta Cal., May 1, 1851, instances one report of its discovery. A similar cabin story is credited to two Germans far up on the American North Fork, who never could find their way back to it. Dutch Flat Eng., Oct. 2, 1867.

35 S. J. Pioneer, July 19, 1879, says that a mill was erected 16 years later to crush the so-called ore. An expedition from Yreka penetrated to it in 1858 by way of Goose Lake. S. F. Bulletin, Sept. 16, 1858.

36 See account of early mining on Trinity River and the search for its mouth at Trinidad. Cottonwood Creek, which had been the first pathway for Trinity miners of 1848-9, received a disappointed influx in 1850. In 1848 a party had proposed to seek Trinidad Bay. Californian, March 29, 1848; Palmer's Voy., 22-9.

37 A calculation proved clearly on paper that each member of the formed company would secure at least $43,000,000. Nevertheless, these members evinced a self-sacrificing willingness to share with others by selling stock. Eight vessels were announced for the bluffs, but ere inany miners had de- parted the bubble burst. Annals S. F., 312-14, states that the exhibited sand was speckled with brass filings. See reports on treasure and excitement in Alta Cal., Jan. 9-18, etc., 1851; Placer Times, etc .; Polynesian, vii. 154, etc .; Frignet, Voy., 180-3.

38 Cal. Courier, Sept. 27, 1850, mentions an exped. by sea to the Umpqua. Lambertie, Voy., 222-3.

CALIFORNIA TOO SMALL.

look beyond for the sources to which mystery and distance lent additional charm, enhanced by increas- ing dangers. Large numbers sought Lower Cali- fornia and Sonora at different times,39 particularly Frenchmen and Mexicans embittered by the persecu- tion of the Anglo-Saxons. A similar feeling prompted many among those who in 1852-3 hastened to the newly found gold-fields of Australia. 40 In 1854 nearly 2,000 men were deluded by extravagant accounts in the Panamá journals to flock toward the headwaters of the Amazon, on the borders of Peru.41 In the opposite direction British Columbia became a goal for wash-bowl pilgrims, who, often vainly scouring the slopes of Queen Charlotte Island in 1852,42 found in 1858, upon the Fraser River, a shrine which drained California of nearly twenty thousand sturdy arms, and for a time cast a spell upon the prospects of the Golden Gate. 43 Thence the current turned, notably between 1861-4, along the River of the West into wood-clad Washington, over the prairie regions of Idaho, into silver-tinted Nevada, and to the lofty table- lands of Colorado.

Other spirit-stirring mirages rose in due time to lend their enchantment, even to ice-bound Alaska and the bleak shores of Patagonia, some conjured by unscrupulous traders, others by persons really self- deceived." Although California has become more

39 In 1852, 1834, etc. The French, in connection with Raousset, the Spanish Americans by government invitation. The placer mines here proved of comparative small value.

" The convict element mostly joined the thousand and more who sailed.

41 Where 25 lbs of gold could daily be obtained by any one.

42 Three vessels sailed thither in March.

43 See Hist. B. C., this series; also journals for the summer and autumn of 1858.

" Nearly every excitement was fostered in some way by business men to create a demand for goods, and for stage and steamer service. The Gold Lake and other rushes were traced partly to vague utterances. The absence of some well-known digger from his camp, or the unusual plethora of some hitherto thin purse, as revealed at the store, would set the neighborhood agog. The least favorable discovery on the part of those who set themselves to watch and track the suspected miner might empty the camp. A rush below Sacramento in June 1855 was caused by the filled pockets of a pair of trousers left probably by some dying miner. Hittell's Mining, 28. The streets of Yreka were once staked off and partly overturned, owing to the salting

396

ANATOMY OF THE MINES.

settled and sedate, with industrial and family ties to link them to one spot, yet a proportion of restless, credulous beings remain to drift with the next current that may come. They may prove of service, however, in warning or guiding others by their experience. Excitements with attendant rushes have their value, even when marked by suffering and disappointment. They are factors of progress, by opening dark and distant regions to knowledge and to settlement; by forming additional markets for industries and stimu- lated trade; by unfolding hidden resources in the new region wherewith to benefit the world, while estab- lishing more communities and building new states. Each little rush, like the following of a wild theory or a dive into the unknowable, adds its quota to knowledge and advancement, be it only by blazing a fresh path in the wilderness. Local trade and condi- tions may suffer more or less derangement, and many a camp or town be blotted out,45 but the final result is an ever-widening benefit.

The sudden development of mining in California, by men new to the craft, allowed little opportunity for introducing the time-honored regulations which have grown around the industry since times anterior to cunei- form or Coptic records. Even Spanish laws, which gov- erned the experienced Mexicans, had little influence,

trick of a wag. Yreka Union, July 3, 1875. Many another town was actually uprooted or shifted by diggers. No place was sacred before the pick and pan; farms, dwellings, and even cemeteries were burrowed. Thus suffered the grave-yard at Columbia, and the Indian burial-place near Oroville; the brick-yard at San Andreas came to grief. Who has not heard, besides, of the expeditions to Cocos Island in quest of buried pirate treasures ? See, for instance, Alta Cal., Oct. 19, 1854.

45 This was especially observed after the Fraser excitement, from which interior towns suffered greatly. One feature of the rushes was that they car- ried off foremost the least desirable classes, leaving steady and industrious family men; and brought out much unproductive hidden.capital to promote enterprise. See, further, Durbin's Stat., MS .; Garniss' Early Days, MS., 19- 20; Henshaw's Events, MS., 10; S. F. Elevator, May 14, 1869; West Shore Gaz., 15; Carson's Appeal, June 1866; Grass Valley Direct., 10-11; Letts' Cal., 101- 2; Overland, May 1873, 393, etc .; Yuba Co. Hist., 42-3; Browne's Min. Res., 15-18; Nevada Jour., Aug. 3, 1855; S. F. Bulletin, Nov. 21, 1861; Apr. 5, 1865; Oct. 14, 1878; Hittell's S. F., 271-3; Tuthill's Cal., 334, etc .; Annals S. F., 403-5.

397

LAWS AND REGULATIONS.

owing to the subordinate position held by this race, and to the self-adaptive disposition of the Anglo-Sax- ons. In the course of time, however, as mining as- sumed extensive and complicated forms, in hydraulic, quartz, and deep claims, European rules were adopted to some extent, especially German and English, partly modified by United States customs, and still more transformed here in accordance with environment and existing circumstances. In truth, California gave a moulding to mining laws decidedly her own, which have acquired wide-spread recognition, notably in gold regions, where their spirit, as in the golden state, per- meates the leading institutions.

The California system grew out of necessity and experience, based on the primary principle of free land, to which discovery and appropriation gave title. At first, with a large field and few workers, miners skimmed the surface at pleasure; but as their number increased the late-coming and less fortunate majority demanded a share, partly on the ground that citizens had equal rights in the national or paternal estate, and superior claims as compared with even earlier foreign arrivals on the spot.46 And so in meetings, improvised upon the spot, rules were adopted to govern the size and title to claims and the settlement of disputes. On the same occasion a recorder was usually elected to register the claims and to watch over the observ- ance of the resolutions, although frequently officers were chosen only when needed, custom and hearsay serving for guidance.

The size of claims varied according to the richness of the locality, with due regard for its extent, for the num- ber of eager participants composing the meeting, and the difficulty of working the ground; so that in some districts they were limited to ten feet square; in others they covered fifty feet along the river, while in poorer regions one hundred or more feet were allowed; and this applied also to places involving deep digging,

46 At least until the government should issue regulations.

398

ANATOMY OF THE MINES.

tunnels, and other costly labor, and to old fields worked anew. The discoverer generally obtained the first choice or a double lot.47 Claims were registered by the recorder, usually for a fee of $1, and frequently marked by stakes, ditches, and notices.48 Possessory rights were secured by use, so that a certain amount of work had to be done upon the claim to hold it, varying according to the depth of the ground, the nature of the digging, whether dry or with water accessible, and the condition of the weather.4 For a long time holders were, as a rule, restricted to one claim, with no recognition of proxies,50 but the trans-

47 While 10 feet square prevailed in many rich diggings, this the lowest rec- ognized size was frequently made the rule at other places, owing to the clamor of numerous participants. Instance at Weber, in Kelly's Excur., ii. 24. In Willow Bar district 27 feet were conceded to the discoverer of a rich gulch and 18 feet to other, with indefinite depth. Unbound Doc., 50. At Jackass Gulch, near Sonora, the claim of 10 feet square often yielded $10,000 from the surface dirt. In reworking this ground, the limit was extended to 100 feet. At Jacksonville the rule was 50 feet along the river; in Garrote district 50 yards along the creek and 75 yards in the gulches; at Montezuma, Tuol- umne, three squares of 100 feet each for surface claims; 150 feet in width for tunnel claims; 100 by 300 for deep shaft claims. For such claims with costly work, double claims were at times granted. Quartz claims will be considered later. See also special later rules in different districts in Hittell's Mining, 192-6. Existing holders were frequently respected in their claims, but new- comers must accept a smaller size.

48 At times the recorder had to inspect the claim and mark the corner stakes, or affix a tin plate with the number to the claim stake, as at New Kanaka and Copper Canon. The stakes and notices, with the owner's name and limits, were required in some camps to be of prescribed form, boxed for protection, painted, or cut, etc. The inscriptions were frequently peculiar, both in grammatic aspect and in force of expression, as 'Clame Notise. Jumpers will be shot.' In Jamestown a ditch one foot wide and one deep must be cut round the claim within three days. A common rule was to mark possession by leaving old tools in the claim, and woe to the man who disturbed them.

49 At New Kanaka one full day's work in three was required, unless the owner could prove sickness. In case of temporary absence, claim notices had to be renewed every month or oftener. At dry diggings the term was reduced by half when water could be had; as at Jackass Gulch, where an absence of 5 days during washing time forfeited the claim. At Pilot Hill, Calaveras, work to the value of $25 per week was in 1855 required from each company holding a shaft or tunnel claim. At North San Juan, Nevada co., an hydraulic centre, an expenditure of $500 secured the claim for two years. At Shaw Flat claims over 24 feet in depth could be held without work from Dec. Ist to May Ist, owing to the effects of the rains. In many places work must be begun within three days after staking a claim. River claims could be left untouched during winter, and dry ravine claims during summer, with- out forfeiture.

50 Cal., Miscel. Pap., 34. Owners of different claims could unite to work one. This led frequently to the formation of companies with fictitious members, as Frignet, Voy., 105-8, points out. At Shaw Flat the abuse was

399

COURTS AND CLAIMS.

fer of claims,51 like real estate property, soon sprang into vogue, with the attendant speculation. Disputes were settled in certain cases by appeal to a meeting,52 but generally by the recorder, alcalde, or a standing committee.53

For the settlement of important questions, meetings were held at stated periods. In Nevada miners as- sembled from every district in the county late in 1852 to frame laws for quartz mining. Claims were ex- tended to 100 feet on the ledge, including " all dips, angles, and variations," a Germanic form of inclined location, adopted in England and the United States. The Spanish law limited placer and quartz mining alike to perpendicular sides within the surface lines of the claim, and this simpler rule has strong advocates in the United States. 54 The Nevada miners further decided that work to the value of $100 had to be done

checked by declaring that part of a company could not hold the claims of the whole. The incorporation of companies is outlined in Id., 182-3. While inembers of a company shared alike, nuggets were often assigned to the finder, if found before entering the cradle. Brooks' Cal., 77. Mush Flat, Placer co., allowed a hill, flat, and ravine claim to one holder by preemption, or occupation, and any number by purchase.

51 Often by verbal agreement, but more safely by deed, under the rules of the district, as shown by McCarron vs O'Connell, 7 Cal. 152; Jackson vs Feather River Water Co., 14 Cal. 23. The title could be sold under execu- tion. Mckeon vs Bisbee, 9 Cal. 139. To this many objections were raised. Alta Cal., March 25, 1856; Sac. Union, March 9, 1855; S. F. Bulletin, March 7, 1857; Nev. Journal, Jan. 18, 1856. Legislation was demanded to remedy the looseness prevailing in mining titles. Miners' words were all sufficient in early days. Simpson's Cal., 67. Midst the friendship pervading camps, rules were of course waived or stretched, and jumping claims was widely overlooked, especially where only foreigners were injured. The restriction to one claim has been maintained in many districts till late times. Dean's Stat., MS., 4.

52 Or miners' jury specially summoned, and responding if the case seemed to deserve it.

53 Or by any member of the committee. They were sworn by the justice of the peace. Decision of jury or arbitrator was final, cost being paid as in legal cases. The average fee of an arbitrator was $2. This according to Springfield rules. At Sawmill Flat each disputant was advised to choose two arbitrators, the four selecting a referee. At Montezuma Camp the recorder was president of this improvised court of four arbitrators. Appeal could be made to a meeting. Brown Valley, Yuba, held semiannual meetings to de- cide different questions; claims not represented were forfeited. Shinn, Mining Camp, 220-6, instances a case at Scott Bar, near the Oregon border, where two strong parties narrowly avoided a bloody battle over a rich gravel claim, and sent to S. F. for lawyers, the winners paying the cost.

54 See my chapters on mining in Hist. Mex., iii., vi .; Hist. Nevada, Cal., etc., this series; Rockwell's Sp. Mex. Laws, 514, etc.

400

ANATOMY OF THE MINES.

within 30 days, and reported yearly, to hold the claim until a company was organized. The erection of a mill worth $5,000 entitled it to a title-deed.55

A defect in these spontaneous regulations was the lack of uniformity, which, however, was largely neces- sary, owing to the varied nature of the field. To a certain extent it was due to the pressure of partici- pants, but throughout equity was the guiding prin- ciple; and so courts lent their approval by basing decisions on the customs of the district, and the gov- ernment displayed a spirit of the utmost liberality by abstaining from interference. This was more than the miners had counted upon. Under Spanish laws, the crown asserted its clain on the mineral wealth by exacting a royalty, and it was widely expected that the United States would proclaim its rights in similar manner. Indeed, Governor Mason, Senator Frémont, and others proffered suggestions for the lease or sale of claims, the issue of licenses, or the imposition of a tax on miners.56 A royalty need not appear objec-

55 Guaranteeing perpetual proprietorship. The above work, equivalent to 20 full days' labor, must be repeated till then each year. The Sacramento miners required the recorder to certify to the 20 days of annual work. They excluded foreigners who had not declared their intention of becoming citizens from holding claims. Sierra county extended claims to 200 feet on the lode by 500 in width. Other points in the regulations concerned the form of con- veyance, rights of adjoining holders, abandonment of riparian rights, for- eigners, assessments, etc. The regulations of Columbia District, Tuolumne, among the most complete, considers in 18 articles the extent of the district, size of claims, limitation of one claim to each holder, term of forfeiture, non- diversion or absorption of water without consent, exclusion of certain for- eigners, laying over of claims during disadvantageous periods, recorder's duties, right to run water and tailings across adjoining claim so long as no injury done. According to the regulations of Mush Flat, unremunerative work to the amount of $1,000 upon a claim entitled the holder to discontinue work for a year. Several prospect claims could be held if in different locali- ties. Concerning the formation of camps and districts and local government, I refer to my chapter on birth of towns; Capron's Cal., 231; Borthwick's Cal., 125, 155-7; Woods' Sixteen Mo., 125-48; Helper's Land, 152-3; Alta Cal., March 21, 1832; Jan. 13, 25, 1853, etc.

56 The latter was Fremont's idea. Mason thought that licenses to work lots of 100 yards square could be issued from $100 to $1,000 a year, under a superintendent; or better, to survey and sell 20 or 40 acre tracts, or levy a percentage on the gold found. The sec. of the int. recommended, Dec. 3, 1849, that, as the sovereignty in mineral lands had passed to the U. S., they be leased or sold on condition that the gold pass through the mint for levying a percentage. Surface deposits might be leased. By this means the wealth could be protected from the foreign intruders. The latter point was especially

401

THE MINES BEFORE CONGRESS.

tionable, especially if regulated in favor of citizens; but the sale or lease of claims, as tending to favor speculators and monopolists, to the prejudice of poor men-this raised a general outcry. The legislature joined in protesting and recommending free mining, and Benton and Seward led in urging upon congress the adoption of a liberal policy. They gained at the time only a delay, but this sufficed. Before the next session took place, the operations of the free system presented so favorable an aspect, and local regulations appeared so satisfactory, that interference was deemed unwise.57 Indeed, the government allowed no land surveyors within the mining region to impede the industry. Notwithstanding the occupation and trans- fer of claims, there was no real possessory right, so that the same piece of land might be enjoyed by sev- cral parties, for placer digging, quartz working, tailing, and fluming,58 and water could be led away from its channel by the first claimant for any purpose.53 Farms

urged by the sec. of state, and the president also favored the sale of lots. Congress. Globe, 1848-9, p. 257, etc .; 1849-50, ap. 22-3, and index ' mines;' Id., 1850-1, 4; Cal. Past and P., 187-9; U. S. Gov. Doc., Cong. 31, Sess. 2, Sen. Doc., 1, p. 11; H. Ex. Doc., 1, p. 27-8; Universal, Nov. 30, 1850, etc .; Poly- nesian, v. 190; Taylor's Eldorado, i. 191; Crane's Past, 23-30. Mason in- structed an officer to inspect the gold-fields, and report on measures for regulations, etc., and he threatened at one time to take military possession if the miners did not help him in arresting deserters. The miners saw the Irishism, if the governor did not, for without his deserters caught-or even with them, for that matter-where was the force to come from to impose regulations on 10,000 moving miners, buzzing about 500 miles of wilderness like bees? U. S. Gov. Doc., Cong. 31, Sess. 1, H. Ex. Doc., 17, 477, 554-6, 561, 580-1; Brooks' Four Months, 15, 206. The Mexican custom of 'denounc- ing' mines was abolished by Mason's order of Feb. 12, 1848. Unbound Doc., 318, 408-11; S. D. Arch., iv. 325; Californian, Feb. 23, 1848; S. J. Arch., ii. 49, 69.

57 The president so regarded it, and withdrew his former recommendation. Message, Dec. 2, 1851; Cong. Globe, 1831-2, 18, etc .; U. S. Gov. Doc., Cong. 32, Sess. 1, H. Ex. Doc., 2, p. 15, etc .; Cal. Jour. Ho., 1850, 802, etc .; Id., Ass., 1852, p. 829-35; Id., Sen., 1852, 583-92; Pac. News, Apr. 26, May 11, 1850; Sac. Transcript, Feb. 14, 1851; Alta Cal., Aug. 13, 29, Sept. 29, 1851; Jan. 28, March 3, July 17, Dec. 11, 1852; Ryan's Judges, 79; Crane's Past, 23; Ca- pron's C'al., 231. The people would rise against officers who might lease or sell land, it was declared. "Riley upheld local regulations, and the legislature conferred jurisdiction in mining claims upon justices of the peace, to be guided by miners' meetings.

58 Jones vs Jackson; O'Keefe vs Cunningham, 9 Cal. 237, 589. Any damage inflicted upon a neighbor by subsequent occupants of the tract must be paid for.

59 Subsequent claimants may deviate and use it on condition of returning it. Ditching companies can, therefore, by priority carry away and sell the HIST. CAL., VOL. VI. 26

402

ANATOMY OF THE MINES.

established in the mining region were, therefore, apt to be encroached upon by miners, without further consideration than payment of damage to crop and buildings. Mining was paramount to all other inter- ests in early days,60 and its followers could wash away roads and soil, undermine houses, and honey-comb or remove entire towns. 61 In course of time agriculture assumed the ascendency, and with the opening of land to actual settlers, the ownership in fee-simple embraced the soil and everything embedded, to the exclusion of intruders. 62

Those we have injured we hate; so it was with Mexicans and Americans in California; we had un- fairly wrested the country from them, and now we were determined they should have none of the bene- fits. The feeling bred by border war and conquest, and the more or less defiant contempt among Anglo-

water. McDonald and Blackburn vs Bear River and Auburn Water and M. Co., 13 Cal. 220; Irwin vs Phillips, 5 Cal. 140; Sims vs Smith, 7 Cal. 148; Butte Canal, etc., vs Waters, etc., 11 Cal. 143. This was contrary to English ripa- rian rules, which were agitated in later years for irrigation purposes, as will be shown in my next vol.

60 Instance decisions in Nims vs Johnson, 7 Cal. 110; Gillam vs Hutchinson, 16 Cal. 153; Lentz vs Victor, 17 Cal. 271; Irwin vs Philips, 5 Cal. 145; Hicks vs Bell, 3 Cal. 227. In course of time, miners were forbidden to approach too close to buildings. An act of Apr. 25, 1855, protected crops and improve- ments till after harvest. Even town lots could be mined so long as residences and business were not injured, and many camps and settlements were moved more than once. No patents were issued to land in this region in early days, and so long as it was not formally withdrawn, miners might bring proof for gaining entry. See comments, in Sac. Union, Dec. 8, 1854; Sept. 20, 1855; Alta Cal., Nov. 3, Dec. 21, 1852; Hayes' Mining, ii. 206-48; Sac. Transcript, Jan. 14, 1851; Wood's Pioneer, 98-9.

61 Instance cases in Shinn's Mining Camps, 262 et seq. Often barren places were enriched with valuable soil, but oftener good land was ruined by barren débris. This question belongs to my later vol.

62 Such holdings under Mexican grants did exist, and contrary to the usage of most countries, and of Mexico itself, the United States permitted no intrusion upon them even for minerals. See Fremont vs Flower. Folsom, Bidwell, and Reading were among other tract owners in the mining region. Land in the mining region was too long withheld from sale to farmers, for most of it was valueless for mining. Conventions met to consider the respect- ive interests, and the legislature gave them attention. Cal. Jour. Ass., 1853, p. 865; Id., Sen., 649; Hayes' Mining, ii. 201, etc .; Cal. Politics, 207-74; Land Off. Rept, 1855, 141; Sac. Union, March 16, July 13, Aug. 9-10, 1855; Jan. 28, Feb. 14, Apr. 22-3, 1856; Alta Cal., Dec. 8-11, Dec. 25-31, 1852; May 28, Aug. I, Nov. 2, 12, 1853, with convention proceedings. Peachy, on Mining Laws, 1-86; Savage's Coll., 43-4.

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History of California, Volume VI, Part 44

Author: Bancroft, Hubert Howe Publication date: 1885-1890 Publisher: San Francisco, Calif. : The History Company, publishers Number of Pages: 816

Author: Bancroft, Hubert Howe
Publication date: 1885-1890
Publisher: San Francisco, Calif. : The History Company, publishers
Number of Pages: 816