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Show 706 HISTORY OF PUBLIC LAND LAW DEVELOPMENT within the meaning of the act since it was an essential phase of the whole lead-mining process and (2) that the 5-year limitation on leases in the 1807 Act did not prevent renewals from time to time. In the second case, United States v. dear/2 the government contended that the defendant had knowingly entered mineral land without a digging permit. Damages for trespass as well as an injunction against waste were requested. Gear's defense was that the 1807 Act had been repealed by implication by several public land acts, particularly the Law of 1834,33 with the result that the land was subject to preemption. The Court, three justices dissenting, found no basis for the contention that the 1807 Act had been repealed and overruled the defendant's demurrer. Apart from the issue of repeal by implication, the Gear case is significant as the first decision to establish that unauthorized mining on the public domain is an actionable trespass. It is in-ticularly the law of 1834,33 with the result only a few years later as a precedent in the Far West. Although leasing might have been successful in the lead mines, a number of factors contributed to its ultimate collapse. In the first place, the failure of the Federal government to provide adequate administration of the program was apparent at all stages. Second, the illegal transfer of a large portion of the Wisconsin mines to private ownership as agricultural land produced an unfortunate land ownership pattern. Third, the prolonged litigation in the Gear case left years of uncertainty as to the validity of the leasing system after the 1834 Act. Finally on July II, 1846,34 Congress authorized the sale of the mines in the Upper Mississippi Valley and in Arkansas at public auction at $2.50 per acre during the 32 3 Howard (U.S.) 120 (1845). 33 4 Stat. 686 (1834). 34 9 Stat. 37 (1846). first year and thereafter subject to preemption rights. Previously leased properties were not to be sold until after the expiration of the leases. The Period of Sale Except for the 1829 Act which authorized the sale of the Missouri lead mines,*-"1 the policy of the Federal government during the period 1785-1846 had been to administer land which contained salines or known mines on a basis quite different from the treatment of agricultural lands. This is evidenced by the great variety of public land acts which reserved mineral lands from sale under the general laws and which denied preemption rights to occupants of mineral lands. A change in this policy began with the 1846 Act which authorized the sale of the lead mines in Illinois and Wisconsin.36 This was followed by two statutes in 1847 creating the Lake Superior Land District in northern Michigan37 and the Chippewa Land District in northern Wisconsin.38 In these statutes, jurisdiction over the public lands was transferred from the War Department to the Treasury. The latter was instructed to make a geological examination and survey of the public lands in these areas. The President was authorized to "expose for sale" at no less than §5.00 per acre lands reported to the General Land Office to contain "copper, lead, or other valuable ores ..." Preemption rights were granted in the Lake Superior lands to persons in possession as lessees or permittees of the government and to other occupants who had previously discovered mines (provided past rentals were paid). Preemptors were entitled to purchase at the rate of $2.50 per acre.3" In the Chip- M4 Stat. 364 (1829). 3119 Stat. 37 (1846). 37 9 Stat. 146 (1847). :1>9Stat. 179 (1847). 39 9 Stat. 472 (1850). |
