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Show LEGAL ASPECTS OF MINERAL RESOURCES EXPLOITATION 701 welfare. The renowned case concluded with the dictum that this royal prerogative could in fact be separated from the Crown by express grant. Thus it came about that most of the early American colonial charters contained outright grants of mineral land to the adventurers (as they were called in the charters) on the new continent. The royal largesse was restricted somewhat, however, by an accompanying perpetual reservation of a rental of one-fifth part of all gold and silver4 and, in Virginia, an additional one-fifteenth part of all copper mined.5 Restoration scholars may perhaps be able to explain what prompted Charles II years later to grant to the Duke of York all mineral lands in return for an annual rental of 40 beaver skins.6 This grandiose gesture has prompted the State of New York from 1786 to this day to assert ownership of gold and silver found in private property.7 The validity of this position seems not to have been tested.8 In the case of charters which contained rental reservations, it has remained unsettled as to whether the Colonies (and eventually the states) can assert the right to the royalty either as assignees of the Crown or by virtue of the Treaty of Peace.9 Although there was considerable variation in the way in which the new 4 See, e.g., Thorpe, American Charters, Constitutions and Organic Laws (1909) vol. 3, 1834 (Massachusetts) ; vol. 6, 3037 (Pennsylvania) ; vol. 7, 3786 (Virginia) . See also Note, 16 St. Louis L. Rev. 245 (1931). 5 7 Thorpe, supra note 4 at 3786. 6 3 Thorpe, supra note 4 at 1638 (Grant of the Province of Maine, 1664). 7 New York Public Land Law § 81. The state's claim extends to "all deposits of gold and silver in or upon private lands and lands belonging to the state heretofore or hereafter discovered within this state." With amendments as late as 19(52, the- code provides for granting permits to mine, royalties, etc. " Bl.ANCHARD AND Wf.EKS, THE LAW OK MlNFS. Minerals and Mineral Water Rm;hts 87 (1877) . v Id. at 89. states disposed of their public lands,10 there is little doubt that at least some valuable mineral land passed into private ownership shortly after the Revolution. When the Original Colonies ceded to the Federal government their claims to land west of the Alleghenies11 and as the United States later obtained its vast acquisitions in the Far West, a great public domain emerged with undreamed of wealth in mineral resources. It was there, of course, that the Federal mining law has had its principal application. The Continental Congress at an early date felt constrained to take up the problem of the disposition of the public lands. Although Thomas Jefferson's influence in an early report was apparent, the final plan reflected for the most part the earlier experience of the Colonies, particularly Massachusetts.12 The famous Land Ordinance of May 20, 1785,13 was to become the foundation of the American land system, and its basic principles-particularly the system of rectangular surveys-have continued in operation to the present day. It is natural that the concept of the royal mines found its way into the new Ordinance: "There shall be reserved ... one-third part of all gold, silver, lead and copper mines, to be sold, or otherwise disposed of as Congress shall hereafter direct." It is pure speculation whether this reservation reflected any definite national policy at all with respect to the mines. It can hardly have been intended to prevent monopoly or speculation because only a third of the mines was reserved, and the reserva- 10 See Treat, Origin of the Xational Land System under the Confederation, 1 Am. Hist. Assn. Rip. 231-39 (19O.r»), reprinted in Thf Pi bi k: Lands: Studies in the History of the Public Domain (Carstensen ed. 196-5) . "TREAT, Thf NATIONAL Land System 1-15 (1910). '- Id. "4 Journals of thf American Conk.kiss 520-22 (1785)'. |
