fession and occupation may be considered and treated with all the distinction due to so noble a profession.

According to Escriche, the laws of Spain passed prior to 1821 and the laws of Mexico passed since that date have not changed the fundamental principles laid down in the ordinances of the 22d of May, 1783, in relation to the ownership of mines and the manner of acquiring title thereto; hence these ordinances have been in force in Mexico since the date of their passage in 1783, the Mexican mining laws passed since the year 1821 not having essentially changed the spirit thereof.

From the foregoing it is manifest that under the laws and royal ordinances of Spain, from very early times down to the date of the independence of Mexico, and under the mining laws of Mexico down to the publication of the new edition of Escriche (1869) the miner could acquire no absolute title or fee in any mine discovered by him in any part of the Mexican territory, the usufruct thereof being all that was granted him by the government, and this under such regulations, instructions, and conditions as were imposed by law; and when these conditions were not complied with, the right to work the mine was lost, and could be acquired by any one else who might undertake to comply with the conditions and regulations inseparable from the privilege of working mines. The Spanish and Mexican Governments, in granting lands in Mexico, never in terms reserved the minerals contained therein, for the reason that under the constitutional laws they were reserved by and for the government. For this reason, in the many grants of land made by Spanish and Mexican authorities in Sonora, as well as in California, no mention is made of minerals.

Pastoral and mining pursnits were separate branches of industry, and in a certain sense independent of each other. Both were cherished and protected by the govern ment. To the grazier and agriculturist was granted so much of the soil as he had means to occupy and improve, together with such appurtenances thereto as were necessary to make the occupation of the soil possible and the use thereof valuable; and to the miner were granted the minerals he might discover in the soil and the usufruct of the mine in which they were found. But to neither of these parties was the grant unconditional. To the grazier were granted lands on condition that he occupied them usefully to himself and to the government, and the abandonment thereof was followed by a forfeiture of title, in which case the land reverted to the government to be regranted to a more industrious applicant. To the miner was granted the exclusive right to work the mine he might have discovered, on condition that he observe certain rules and regulations established by law and paid to the government a certain portion of the products of the mine'; a violation of these conditions was also followed by a forfeiture of such title as he possessed, the usufruct of the mine reverting to the government to be regranted to a more vigilant and "honest miner."

The objects of the government in granting lands for settlement were the increase of the wealth and population of the country, the spread of the holy Catholic faith, and the extension of the power of the Spanish monarchy; and the motive that induced the granting of privileges to miners was that the royal treasury might be supplied with American gold. No grants of lands or mines were ever made by the Government of Spain or Mexico for speculative purposes. It is true that lands were sometimes granted as a reward for distinguished services, but in all other cases on condition of occupation. From a careful consideration of the foregoing laws and ordinances, as well as of the usages and customs of Spain and Mexico, I am forced to the conclusions:

First. That the grantee of land under the Spanish and Mexican Governments acquired no title to the minerals contained in the granted land.

Second. That the title to the minerals contained in the tract granted remained in the government notwithstanding the grant of the land.

Third. That under the Spanish and Mexican laws and ordinances any one had a right to "dig" in search of minerals, under certain conditions, on his own lands or on those belonging to individuals or private persons.

Fourth. That the Government of the United States under the treaty of 1853 for the purchase of a portion of the territory of Sonora succeeded to all the rights and obligations of the Mexican Government in relation to the ceded territory at the date of the treaty.

The result of these conclusions necessarily is: That since our government succeeded to all the rights and obligations of the Mexican Government in relation to the ceded territory it is bound by the treaty to recognize and confirm all rights, titles, and privileges which had been granted by that government to private individuals prior to the cession of the territory, and to carry out the intentions of the Mexican Government. toward those having ownership in lands and mines precisely as if there had been no change of sovereignty.

It is therefore clear to my mind that any one has at present a right to prospect for minerals on such portions of the ceded territory as may have been granted by the Mexican Government to private individuals, and a right to work any mines that may be found on said lands, under no more onerous conditions than the reasonable ones imposed by the mining laws of Mexico. See Article XIV, Title VI, Ordinances May 224, 1783, heretofore cited.

Testimony of William Ashburner, of San Francisco, Cal.

WILLIAM ASHBURNER, who resides in San Francisco, testified, October 11:

I have lived in San Francisco since 1860; I have been through the Sierra Nevada Mountains a great deal, and am very familiar with them.

Question. Give us a little account of the timber, and the way in which the timber is destroyed.-Answer. The timber on the plains of California and near the coast range of the Sierra Nevada Mountains is very scarce indeed. It consists mostly of cak, of no great value except for fuel. When you reach the foot-hills it becomes larger and there is more of it; as you rise to an altitude of two thousand or twenty-five hundred feet the evergreen sets in, and from until you reach the very summits of the Sierra Nevadas the timber is very thick. On the summits themselves there is a smaller pine, which is of peculiar growth, being almost Alpine in its character. For a range of perhaps thirty or forty miles in width, extending very nearly the whole length of California, is a region very thickly timbered, and it is very valuable. In the neighborhood of towns and settlements the destruction of timber has been enormous, both for the purpose of building and sale. In the lower foot-hills and for mining purposes a great deal of it has been wasted by burning and clearing up agricultural lands. This has occurred in the central portion of California, and also in the northern part as far south as Kern County. They would claim the timber for agricultural purposes, and it would be wasted. I think it would be for the best interest of the government if they should provide for the sale of it at a certain price, allowing the people to buy it for certain purposes. If they wished to use the timber for building or saw-mill purposes, they should have that privilege. No wanton destruction of it should be tolerated, and should be made even a criminal offense; because if the waste goes on for fifty years as it has been during the past twenty-five years it would seriously affect the climate of California. The rain and snow fall in the mountains, even if it was as great as it is now, would be dissipated much more rapidly, and the usefulness of the water would consequently be much impaired.

Q. Can the government dispose of this timber in small quantities to actual settiers-A. I think men would settle on 160 acres, but not at the present time; but they would before long, because probably in twenty-five or thirty years the timber will be much more valuable than it is now. In the mountains it is being destroyed by fire, and I would put very severe restrictions over its use. The sheepherders go through the mountains, and are very careless in building their fires, which catch in the timber and rage through the mountains for weeks, and i do not know but for renths, during the summer, as soon as the woods become dry, and they continue frequently until the rain. Some years ago there was a great deal of difficulty in the great tree groves of Mariposa County. At that time fires annually used to run through these groves. They were started by the sheepherders, and perhaps by the Indians, but that has been stopped without any difficulty. There have not been any fires there for six or seven years. Some little care is exercised by the persons in the neighborhood, but it is very slight indeed; yet it is sufficient to stop the fires. I would recommend that the government make reservations of the big trees and the redwood groves. There are several localities I cannot indicate at this time which are almost inaccessible now for saw-mill purposes. They could be reserved without doing any injury to any parties. They are on government lands. If the destruction of the redwood and big trees is allowed to go for a few years there will be none existing. There are the Calaveras grove, the Mariposa groves, the Fresnel groves, several in the Visalia district (extending over a very extensive area, as much as twenty miles in length). There are several saw-mills in these, cutting the big trees; and, in addition to this, there are several small groups containing a very small number of trees. The Mariposa grove has 365 trees in it. The Visalia grove has several thousand. I would recccamend the reservation of all the big-tree groves. The timber in these groves is not Very good, the trees are so very old, and if they were destroyed entirely they would Lever grow again. I would not only recommend the reservation of the big trees, but al-o the reservation of other species of sequoias. They exist in other places, although I'm not familiar enough with the localities to tell off-hand where they are. There a maps, however, in this land office that will show you.

Q. Are not these irrigable lands, which are valuable for agriculture only by irrigaten, somewhat extensive? What would you do with them?-A. They are very extensive indeed. In the San Juan country there are thousands of acres that can be made available only by irrigation. I do not feel myself competent to suggest any change of the laws. This question is a very complicated one. I believe the experiments of the Indian government have proven that irrigation works have not been remunerative to those who built them. Whether in this State the State government of general government should build these ditches and sell the water is something I cannot express my opinion about. Individuals are not able to take out the streams for irrigation purposes; it is simply out of the question for them to do it. There is a

great deal of land that by irrigation could be made exceedingly valuable, more valuable than any other land in the State. I have seen that very frequently in Nevada. You know what the general nature of the soil is there. It is a barren wilderness but nearly all of that soil can be made to bloom and blossom like a garden. There are some valuable farms there, which have been made so entirely by irrigation. They produce a very large and valuable crop.

Q. You recognize that there is a large body of land valuable only for pasturage purposes; what system of disposition should the government adopt for these lands ?—A. I think they should be sold as ordinary lands. I do not think it is judicious to allow very much holdings on these lands by priyate individuals unless they pay for them and pay taxes upon them.

Q. How many acres will support a beef?-A. I cannot say. If you could irrigate this land it would take very few acres; but if you cannot irrigate it, it would take a good many more acres to support a beef than it would by irrigation. It seems to me that eight or ten acres would be equivalent to one acre under ordinary circumstances. There is a great deal of difference in different portions of these pasturage lands. I see very large ranches devoted to small bands of cattle all through the State, particularly in the central and southern portions. The grass dries up with the wet immediately after the rain and the cattle then live upon the burr clover. They lick it up from the soil. After the first rain, when the rain drives the seed into the soil again, from that time until the grass grows up again the cattle lead a very precarious existence.

Q. If a man was allowed to select this land would he not control large areas of it by controlling the water?-A. If the pasturage lands were thrown open to settlers the persons who located upon them would secure the streams of water (whatever streams there might be), and thus inevitably control a very much larger portion than they selected. I cannot suggest any remedy for this unless the government will take control of the water courses and springs.

Q. With reference to some comprehensive plan of irrigation, how would it do to survey the land in tracts covering all the water, so as to give the water privileges to the greatest possible number of tracts?-A. That would be best, if it could be done; but would not that under the present law inevitably compel a change in the land system. Q. It would change the forms and the tracts to be surveyed?-A. You would have the price graded then. I see no objection to that being done provided there was not a uniform price for the land; otherwise a very large amount would remain in the hands of the government indefinitely and never be sold. The pasturage lands, I think, should be sold according to their value, with reference to their producing power and their proximity to water.

Q. In disposing of timber land and pasturage land in the several portions of the country some of it might also be mineral lands. Should the right to prospect and discover mines be abridged and the land sold for pasturage, farming, and other purposes?— A. I think so, sir. I think in California that we have had a very fair chance to prospect the whole State. We have been engaged in that business for twenty-five years; and when land is taken up for agricultural or mining purposes it should be devoted to that only. Persons who have no rights interfere with the rights of another; I should put mining and agricultural rights on the same footing.

Q. Would you not sever the subterranean rights from the surface rights and let the government dispose of the surface rights for pasturage or timbering purposes, reserving the mining land?-A. If you did that, it would be returning to that principle of other governments that all minerals belong to the crown. They are there especially reserved and worked under the authority of the government. If that were done, it would work a complete change in the whole system. Individually, I see a great many advantages in the government reserving rights over the minerals, for the reason that they can control the manner in which it should be worked. Take the Comstock, for instance. It has not been worked very scientifically. The waste of precious metals there has been very great, and this seems to be the case with most of the precious-metal mines in the United States. There are many mines in California that have not been worked judiciously and carefully. They might be producing to-day, had they been worked under some system, whereas they have been abandoned, and probably will remain so for an indefinite time. So far as the government does not claim any right over the mines, I see no reason why a special reservation should be made in favor of the miner. I think at the time that the reservation of the mineral lands was made, which I find was very shortly after the discovery of gold in California, that all lands within five miles of any known mineral belt were reserved for mineral purposes. That I think was very judicious at the time it was done, for the reason that California was not considered to be of any value for agricultural purposes; it was valuable for its mineral only; it was a mining territory. The discovery of gold brought people here, but their only object was mining for gold. That time is now past, and in connection with the mines there are small agricultural settlements in the mountains, and the value of these agricultural places is quite as great for agriculture as they would have been for mines. I think the prohibition on these reserved lands should be removed, and I think they

should be taken up according to the desire of the locator, either as agricultural or mineral lands.

Q. Please give a statement of the facts relating to the Spanish claims in this country which are supposed to arise from their non-settlement. Have you any remedies to suggest for this state of affairs?-A. I have never had any experience with these claims, not being a landholder, and all that I know about them has been learned from personal observation. I have never had any personal experience with them at all. I can merely say that in my opinion they exercise a very injurious influence upon the settlement of California. I wish to say a word in regard to this hydraulic mining. There has been a great deal said in regard to its injurious effect upon the agricultural lands of California and upon the harbors. Undoubtedly the mining streams which flow down into the valleys and which receive the tailings and debris from mines have been filled up, but most of this work was done in the early history of mining in California. The material which is now being washed down in the greatest quantity is very much heavier and consists of very much larger rocks and coarser gravel than the surface dirt which was washed down ten or twelve or twenty years ago; and in my opinion a very large proportion of it remains within a short distance of the mines; but the floods of winter scour the rivers and bring down now, and will continue to bring down for years to come, accumulations of past washings. If we take in consideration the value of the gold produced by direct washing and the value of the land that is being injured, the one is out of all proportion to the other. I consider that the annual production of gold here, from what is known as the hydraulic mining of California, does not average less than $11,000,000 per year, while the amount of land which is being directly injured is very small in comparison to this. Should hydraulic mining in the mountains of California be stopped it would render not less than one hundred thousand people homeless and destroy their means of support as well as destroying eight or nine counties. It is probable that not less than $100,000,000 are invested in hydraulic mining in this State alone. I also consider that the amount of damage done by mines of this kind has been very much exaggerated, and that the effects of the winter rains upon the loose soil on the steep hillsides plays a very important part in helping to fill up the streams which flow through the valleys. Frequently in the winter season I have seen streams on which there is no mining whatever flowing down toward the valleys with the water yellow and almost as thick as cream from the dirt being washed down from the hillsides. I consider that the mud in the streams of the Sacramento and the San Joaquin Valleys is largely due to cultivation of the soil and the removal of the chaparral and grass which naturally cover them. This is especially the case with pasturing, for the streams in the coast range, where there is no mining in the winter season, are always heavily charged with vegetable and mineral matter in suspension. In Fresnal and Napa Counties there are large tracts which have been filled up by means of the ground washing down during the winter season when the torrents are frequent.

Testimony of G. F. Allardt, San Francisco, Cal., on the effect of mining debris on the agricultural lands and navigable waters of California.

To the honorable the United States Land Commissioners:

GENTLEMEN: My name is George F. Allardt. I am a civil and hydraulic engineer by profession; have been actively engaged as such for twenty-six years, and in this State since 1858. My business office is in San Francisco.

For several years past I have made a special study of the subject of mining débris and its effect upon the harbors, rivers, and agricultural lands of the State. In 1878 I had occasion to make a reconnaissance of the Bear River country and its hydraulic mines; this year I made a detailed instrumental survey of the Yuba River and its tributaries, extending from its mouth at the city of Marysville up to the head of the hydraulic mining belt in the Sierras. In this connection I have also surveyed and otherwise examined all the hydraulic mines located on the water-shed of the Yuba and depositing their tailings into the same or its tributaries. I am enabled, therefore, to submit a few leading facts and figures relating to this important matter that may tend to disprove many of the random statements and positive misrepresentations that have been made to your honorable committee, either by parties grossly ignorant of the subject or by parties holding large interests in hydraulic mines.

One of your informants states, for example, "that the value of te farming lands destroyed by hydraulic mining, when compared with the value of the mines, is not over 2 per cent.," and in the next sentence he declares "that the débris of the mines is, on the whole, beneficial to farming lands."

Now, from accurate surveys made by the State engineer of California, it has been ascertained that over eighteen thousand (18,000) acres of valley land on the Yubaland that was once the finest bottom land in the State-have been utterly destroyed

and buried beneath the mining débris, so that now this vast area has been transformed into a barren desert of sand and slickings, alternating with impenetrable jungles of willow swamps. Probably as much if not more of equally good land has been similarly destroyed on Bear River.

Although these lands have been exposed to sunshine and rain for years they produce not a blade of grass, nothing but willows and kindred semi-aquatic plants that derive their nourishment chiefly from the stratum of water percolating underneath the surface, and not from the soil itself.

This gentleman further says "fully 95 per cent. of the tailings are lodged in the cañons (gorges) or near the mines, and the remaining 5 per cent. finds its way down the lower portions of the mining rivers." The reverse of this percentage would be nearer the truth, would in fact be remarkably near the truth. From the beginning of hydraulic mining down to the present time the enormous aggregate of 162,000,000 of cubic yards of material has been sluiced out of the hydraulic mines into the Yuba and its tributaries, while the amount now retained in the river above the valley, or lodged in the cañons, will not exceed 12,000,000 cubic yards. This we have from actual surveys.

Thus, 150,000,000 cubic yards of solid material have passed the foot-hills and have been deposited on the bottom lands of the Yuba into the waters of the Feather and Sacramento Rivers, the bays of Suisun and San Pablo, and finally into the Bay of San Francisco. (One company alone, the Excelsior Hydraulic Mining Company at Smartsville, admit in a published circular that they have sluiced 1,800,000 cubic yards into the Yuba.)

To present to the mind this enormous mass of 150,000,000 cubic yards of material in a more familiar form, it may be stated that such a mass deposited on a farm of 160 acres would cover it to a depth of 581 feet; or, if spread evenly one foot in depth, would cover 93,000 acres or 145 square miles of land, and absolutely destroy the same for agricultural or any other purposes.

The bed of the Yuba at Marysville is now filled up to the level of the streets of that city, where prior to the era of hydraulic mining there was a well-defined channel of clear water from 20 to 25 feet in depth. The authorities of Marysville have just closed a contract amounting to upwards of $50,000 for raising its levees and protecting the city from the further encroachments of the mining débris.

The Feather and Sacramento Rivers have shoaled in a lesser degree, but still sufficiently to almost destroy their usefulness as highways of commerce. A resurvey of Suisun Bay recently made under the direction of the United States Coast Survey Department has developed the fact that tules are now growing at points where fifteen years ago there was several fathoms of water.

The complete filling-up of this bay is a mere question of a few short years, after which San Pablo Bay will become the next settling reservoir, to be followed, finally, by the rapid shoaling of San Francisco Bay, and the eventual destruction of its harbor. This result is sure to follow, the laws of nature make them enevitable, unless, indeed, hydraulic mining be discontinued or unless some adequate works be constructed for arresting the tailings before they reach the valleys or enter the navigable waters of the State.

On this head our survey has given us sufficient data to warrant the belief that such works are not only feasible, but entirely within the bounds of a reasonable expenditure of money.

Your informant further avers "that of the material deposited in the rivers the farmers contribute 12 and 15 yards where the miners contribute one yard," an assertion so palpably absurd as scarcely to admit of argument. The farming lands of California are exceptionably free from wash, the soil being generally of a resisting and tenacions character with a comparatively level surface. Moreover, nearly all the farming lands adjacent to the rivers actually lie below the plane of the present river banks, hence "farming débris," if any there be, must run up hill to enter the rivers.

As to the few scattering farms in the foot-hills or on the mountains, their aggregate area is too insignificant to cut a figure in the case. Indeed, I have failed to discover any material wash in any one of them, and I have seen them nearly all in the course of my explorations.

The same may be said of the washings from wagon-roads. One of your informants says, "the cutting of wagon-roads along mountain sides is a fruitful source of sediment, large masses of earth being washed down from them during winter rains." Now, I have traveled hundreds of miles over these mountain roads, observing them closely, but have found no slides or washings originating from them worthy of mention. It is evident that if the roads were subject to slides or washings to any extent they would soon become impassable, while in point of fact they are, almost without exception, in a very fair condition. And tendency to slides or wash is promptly checked by the owners if they are toll-roads, or by the authorities if county roads. Now, as to the present condition of the Yuba and its hydraulic mines. It is admitted that during the dry season 17,000 miner's inches of water are used daily by the