Claim and Property Rights in the Goldfields of the American West (Part 2)


Despite the fact that the various goldfields of the American West were without concrete laws governing mining claim and associated property rights, order did evolve out of the chaos of the gold camps. As we've already seen, this was an unwritten law that was accepted by each miner (or group of miners) first on scene. Again, as far as claims and property were concerned it was "first come, first served" in the early days of the camps.

Sealed with a Handshake

A couple of my mining comrades in arms, "Muskrat" and "Sniper," both expressed some good comments at the close of my previous post. To elaborate further on their thoughts, personal honesty and a sense of honor could be found quite readily among the miners of the 19th and early 20th Centuries. Back then, the spoken word and a firm handshake meant something and often sealed the deal between two parties. Lest you think I look back in time with my glasses tinted with too much rose color, the opposite was true as well. Yes, there were thieves, liars, con artists, and other types of dishonorable and dishonest men (and women) back in those days, but they were the exception...not the rule. Whether this fact remains true in our current century is up for debate. I'd like to think so, but I know better and so do you I suspect. A handshake on a deal nowadays could land you in hot water if there's no paperwork backing things up. Either way, the fact remains that unspoken or unwritten laws DID carry their weight in gold in the mining camps of the American West and a man's handshake was said to be as honorable as it was firm. "Muskrat" keyed in on this point and I thank him for that.


Current vs. Old Claim Woes

I can relate to "Sniper's" comments just as easily. He's had some issues with claim jumpers, or at least the evidence points in that direction. Sniper stated that he can't be on his claim 24/7 and he's absolutely correct. Not just from a practical or personal standpoint, but from a legal one. Current mining laws governing unpatented placer claims clearly state that a miner cannot build any sort of domicile on his or her claim, nor can he or she remain camped on that claim longer than two weeks at a pop (I am assuming the latter is still in effect). Aside from the increased fees and county taxes, one reason I let my last placer claim in Northern California lapse was that I was sick of finally getting out there from New Mexico once or twice a year and finding the place trashed and dug up. Now who does that sort of thing? Yep, claim jumpers. People who are NOT honorable and whose handshake is akin to the bite of a viper. The point I'm attempting to make here does not concern my former claim woes or "Sniper's" current ones. It has to do with the core of this series of posts. Back in the old mining camps and gold strikes of the West, you lived where you worked! You had to because the unwritten law of the day required your presence on your claim or it could become forfeit. More than that, your claim was your home, your immediate hunting ground, your source of water (if it existed nearby), and the fountain of your livelihood at that time and place. You either mined and made it work, or you walked away and opened the door for others to "jump" your claim. Nowadays it seems your claim will be jumped regardless.

 ("No man shall hold but one claim.")

 The "Real" Basis

Now back to the topic at hand. I'm not trying to make a case here for miners of the early gold camps creating unwritten claim and property laws in a total vacuum. There's no doubt that the Anglo-Saxon penchant for "self government" ran strong in the blood of American miners. After all, that was the basis for revolting against Britain and creating a new nation, minus the yoke of outside interference and control. It may come as a shock to some of you, but the "real" basis for the mining "law of the land" principle in American goldfields could be found in Spanish and Mexican mining statutes. To back this up, allow me to quote attorney Henry Halleck in 1860:

"The miners of California (and the West) have generally adopted as being best suited to their particular wants, the main principles of of the mining laws of Spain and Mexico, by which the right of property in mines is made to depend upon discovery and development. That is, discovery is made the source of claim and property title and development (or working a claim), the continuance of that title. These two principles constitute the basis of all our local laws and regulations regarding mining rights."


Halleck was a smart man and knew his stuff. He was backed up in this regard by Gregory Yale, who wrote an extensive treatise on mining law in 1867. Yale argued that giving American miners all the credit for deriving their "own" mining and property codes was exaggerated, to put it mildly. He went on to say that on closer examination, those unwritten or unspoken laws of the American gold camps could be "easily recognized" as coming from "other" mining traditions. These had originated in Spain and had crossed the Atlantic Ocean to Mexico and Central and South America, and from there to the California Gold Rush and elsewhere in the American West via Hispanic miners who had worked under those codes in their native countries. And despite any howls to the contrary, California was Mexican until the "Bear Flag" had been rather abruptly raised there. I rest my case in this regard and heartily agree with both Halleck and Yale on this point. Here's the ironic thing. In the California goldfields and elsewhere, miners of Hispanic descent were often forced off of claims and treated poorly. Not as badly as the Chinese were treated in mining camps, but not welcomed with open arms in many instances either. Hispanic miners of the Gold Rush period had prior mining experience and expertise and they shared that knowledge with the Anglo Argonauts. Despite their contributions they remained, for the most part, second-class mining citizens in the gold camps of the West. So it goes...

(A group of Hispanic gold miners back in the day.)

I'm not relaying this information to you to ruffle anyone's feathers or play race cards. Just stating facts that are noteworthy for any small-scale gold miner who loves mining history almost as much as mining itself. After all, white, black, brown, or yellow...we are all miners. That's what truly counts.

More to come...

(c) Jim Rocha 2018

Questions? E-mail me at jr872vt90@yahoo.com

Comments

  1. Thank you the write up was very informative. I have been on small scale minning claims in nevada and the claim owners are allowed to camp on there claim for the season of summer with camper trailers. This was a BLM claim. I am in the processes of filing a claim in northern california and the has occurred to me if i show up on my claim and some one is working in spite of the fact that I have posted the mining signs how would I be able to prosecute some one if they just up and walk away.
    Bernadette Lombardi

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    1. Well it sounds like the BLM has loosened up the length of a stay on a claim. 30 years ago I would camp for two weeks, pull out for a day, and then come back! You bring up a pertinent issue...what to do if someone is on your claim and mining. What your true legal recourse is I can't say honestly. Call the sheriff? Just politely inform the transgressors(s) that they are claim jumping and hope they'll leave peaceably? Good point Bernadette. I'll have to look into this for my next post.

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  2. Well Bernadette I have a couple of suggestions.
    First off, before you approach someone write down the plate # of their vehicle and a description.
    If there's more than one vehicle, and say somebody is just camping or swimming and you don't know who is driving what, then write down everything you can about the vehicles parked on your claim.
    I take pictures with my phone and that works very well.
    I also have video going on my phone and it stuck in my shirt pocket if I am walking up to talk to someone and want to capture their face as well as the conversation.
    This is After I have gotten the vehicle info. You just have to play this part by ear.
    I always engage in friendly conversation with someone before I let them know that I am the claim owner. I don't openly pack a weapon either. But again you have to play it by ear and your gut instinct.
    Also when I walk up to a vehicle I discreetly look for any mining gear.
    5 gallon buckets, shovels, etc.
    Those would be mining items.
    If they are obviously mining I will try to get them to tell me their name and talking about how the mining is going. This while the phone sitting in my pocket is recording everything of course.
    And I don't want to hear anything about having to inform someone they are being recorded.
    I don't worry about that if they are claim jumping.
    Two times this summer I encountered claim jumpers and when I informed them who I was and where they were, they gave me no guff about leaving the claim.
    Neither one had any gold to speak of and so we didn't have to get into it about any gold.
    Which is good. The last thing I want is to get hurt or hurt someone over some gold. But again you got to play these things by ear.
    Don't back down, but if the violators force the issue by refusing to leave and hand over any gold they have stolen, then the only thing that you can do is call the sheriff and tell them you need help.
    In my case I would have to leave and drive close to 15 miles back towards town to get cell service. That would give some claim jumpers plenty of time to leave, but that's why you get that vehicle info first.

    My claim is in a heavily used public recreation area.
    I encountered only two different people mining, but lots and lots of campers.
    I try to engage all the campers in some friendly conversation, while having a eye open for gold pans,shovels, etc.

    They almost always say, Oh no we aren't doing any mining. We're just camping or fishing.
    I always tell them to enjoy their stay and that I'm the mining claim owner and that I will be in the vicinity.
    Unfortunately I can't be there 24/7 all summer. I'm sure some of those people are sneaking a gold pan down to the creek.
    The panning doesn't worry me as much as dredgers sneaking in there.

    So for you Bernadette you have to consider how long it will take you to summon help.
    And if you are mining alone you could end up with bigger worries than just claim jumpers.
    If you're claim is in a remote area where most likely anybody that you encounter there will be a claim jumper, then you will have to be very cautious about how you approach that person.
    Out in the woods with just you and a person breaking the law mining on your claim, you know how that could end up.
    Hell these people are shooting cops today just for stopping them and trying to give them a ticket!

    Make sure you have the claim well marked. Especially at the easy access points.
    One more thing.
    If you pull up to your claim and there are men down there hollering and screaming and you also hear banjo music, then turn your vehicle around and get out of there as fast as you can and do not look back!

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    1. Good advice Sniper. It's always best to get the info you talk about and be courteous with possible claim jumpers. But as I said to Bernadette, I need to look into the legal aspects of how you handle these things. How to enforce them, etc.

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    2. Wow thank you for taking the time and sharing words of wisdom. There are a few things you brought to my attention that needed to be considered. All in all you really are out there on your own and respect with consideration is always a good thing to practice. The gathering of info. First and the outdoor hunting cameras are a good way to gather info. Once again thank you for your time its greatly appreciated.
      Bernadette lombardi

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    3. We are all on your side Bernadette!

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  3. Thank you for the kind words Jim.
    I guess the thing that bothers me most about today's mine claims is the fees. I have never met Uncle Sam digging along side me anywhere, yet he thinks he is "entitled" to a share that is much bigger than what I find. That claim with the cabin on it I have often told you about, has little gold on it. The cabin itself is nice and we have been using it for nearly 20 years now. I don't want the forest service tearing it down or burning it like they have so many others, but I now know filing a claim won't save the cabin. In fact I have been warned it could paint a bullseye on it. It shouldn't be that way.....
    I didn't know about the Spanish/Mexican mining laws until now. Very interesting!
    I think the reason Mexican and Chinese miners were not treated well is language. They were hard working and good at finding gold, yet outsiders couldn't understand what they were saying. Even the ones that could speak English spoke their own language to each other........gotta be up to something! Plotting against the rest of us.......gotta get them first! They know where the gold is and they aren't telling us....kill them before they kill us! .......
    Really, much of that still exists today. You don't trust those you don't understand. I think that is at the heart of racism.
    Anyway, Thanks for another thought provoking post! As always, good job!

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    1. Your point about the Feds not working alongside you is a good one. Another reason I dropped my last claim was the fee increase. Went from about 175 dollars to over a thousand! Gimme a break...

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