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79 In Richter v. Union etc. to recover back the consideration." Co.,80 a case involving the point, the court said in the course of the opinion:

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"But the action is not for a breach of the orginal contract, but upon an obligation growing out of the failure to perform it. the statute could not begin run until he, (the plaintiff), made his election to rely on the contract and to sue for the money paid to the defendant under it."

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It will be observed that a court may appreciate the distinction between contract and quasi contract and still hold that the legislature intended to cover quasi contract by the "contract" or the phrase "contract express and implied."81 But can a court properly so hold in face of the sections of the Civil Code providing that "An obligation arises either from: (1) The contract of the parties; or (2) The operation of law." .

"A contract is either express or implied; an express contract is one the terms of which are stated in words and an implied contract is one the existence and terms of which are manifested by conduct?"82

From the foregoing pages it appears that the conventional term "implied contract" embraces the mutually exclusive ideas of tacit contract and quasi contract. The Civil Codes use the objectionable term, but in the sense of tacit contract alone. The cases in California, Montana and the Dakotas are not in agreement. In Montana the true principles have been clearly understood, lucidly expounded, and correctly applied. The South Dakota decisions are sound. In the single case where an appreciation of the distinction was necessary to the decision, the North Dakota Supreme Court has gone wrong. The California courts fail to discriminate between the two obligations, and the cases are involved in contradictions and inconsistencies.

Many obligations quasi ex contractu, as those arising from judgments and official or statutory duties, do not bear the remot

79 96 Cal. 154. 30 Pac. 1114, 129 Cal. 367, 62 Pac. 39. Compare Nevada Min. Co. v. Farnsworth, 89 Fed. 164 (C. C. Utah); Tabor v. Big Pittsburg etc. Co., 14 Fed. 636 (C. C. Colo.) See Woodward, Quasi Contracts, §§ 260-262.

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est superficial resemblance to the true principle. It was fully appreciated by the Roman jurists,83 but common lawyers have been slow to grasp it. Does not the explanation lie in this? The early common law exalted procedure over substantive law. suitor could not bring his grievance within an existing writ or formula he was turned away remediless. Some cases of quasi contract received legal sanction in the action of assumpsit, before the recognition of the validity of simple contracts. In the course of time assumpsit became the remedy for practically all breaches of contract as well as for breaches of duty other than tort. Looking at the form rather than the substance, the common law came to regard assumpsit as an action ex contractu and all matters cognizable in assumpsit as contracts. This furnishes a good illustration of the truth of a remark attributed to Lord Mansfield, "nothing in law is so likely to mislead as a metaphor." JOSEPH L. LEWINSOHN.

University of North Dakota.

83 See Maine's Ancient Law, 3rd ed., p.332; Scott's cases on Quasi Contracts, pp. 1-3.

84 See Keener, Quasi Contract, pp. 14-16; Ames, History of Assumpsit, Harv. Law Rev. Vol. II, pp. 1, 53; Jenks, Short History of English Law, Chap. 10; Schaeffer v. Miller, supra.

with Respect to Discovery*

Much has been written of late regarding the proposed revision of the United States Mining Statutes. There seems to be a strong current running in the direction of such revision and the probabilities are that Congress will, in the near future, be urged to radically amend the existing law, if not adopt an entirely new system.

It is, therefore, of the utmost importance that such action should be taken only after mature deliberation. The proposed changes and the reasons underlying such changes, should be subjected to the most searching scrutiny, while the probable effect on the mining industry of the laws to be substituted for those now existing should receive the most careful and critical consideration. That the general excellence of the existing law has been a material factor in the wonderful development of our mineral resources must be generally conceded. The results have abundantly justified the sagacity of the framers of the act, and for this reason, if we have outgrown the system or if some of its provisions require amendment, it would seem that the burden is on the critics to establish beyond a reasonable doubt that what they offer as a substitute will accomplish the results claimed. Unless they can practically guarantee that what they offer will materially improve existing conditions, the move will be a dangerous one and may have a disastrous effect on mining in general. Most of the criticism aimed at the existing law is of a superficial character and throws but little light on actual conditions.

The object of this comment is to call specific attention to some of the important details which, so far as the writer is aware, have not been satisfactorily treated by the advocates of revision. The two most radical changes proposed are the abolition of

*AUTHOR'S NOTE.-A portion of the material used in this article has been prepared for and permission to publish given by the Carnegie Institution of Research, Washington, D. C. The author is also indebted to his wife, Rachel Vrooman Colby, for valuable aid in translation of foreign authorities on mining law.

the extralateral right, and the doing away with the necessity of making a discovery. Those who advocate the first change are consistent in recommending the second. If the right to follow a vein down on its dip underneath adjoining ground is denied, and vertical side boundaries are to control, then obviously discovery on claims overlying the dip of the vein and situated several hundred feet from the apex would only be possible after great expenditure of time and labor. A shaft would have to be sunk from the surface of such outlying claims to intersect the vein in depth if the requirement of discovery on each separate claim be retained.

Is it wise that we should wipe out this existing discovery requirement? Let us examine the underlying reasons and anticipate if possible the consequences which must inevitably result from its abolition. Some un-informed critics of the present law have referred to its discovery requirements as being 'an impossibility of mining law originating in America.' No one at all conversant with the origin of the discovery requirement in the mining laws of the world could possibly stand sponsor for such a statement. As Judge Lindley, in his classic work on the 'Law of Mines,' has said:

Sec. 335. DISCOVERY THE SOURCE OF THE MINER'S TITLE. -Discovery in all ages and all countries has been regarded as conferring rights or claims to reward. Gamboa, who represented the general thought of his age on this subject, was of the opinion that the discoverer of mines was even more worthy of reward than the inventor of a useful art. Hence, in the mining laws of all civilized countries the great consideration for granting mines to individuals is discovery.

The right of a discoverer of a mine to have the preference in the concession is recognized in the mining law of nearly every country of continental Europe. In Germany in the Middle Ages, in the famous mining district of Joachimsthal, free prospectors' licenses (Frei Schurfen) were granted, but they gave rise to so much quarreling that they were finally abolished. Thereafter it was declared that:

"The mining regions shall be free to every miner, who shall have the right to prospect therein according to his opportunity, without the necessity of securing previous permission. Whoever, thro' the grace of God, first discovers a vein

shall be termed 'the first discoverer' and he shall have the first discoverer's right, viz: a Fundgrube (discoverer's claim). The Mining Director shall grant the location to no

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one else. Locators of claims (Massen) adjoining the discoverer's claim had 14 days within which to discover and expose a vein in such adjoining locations.1 These regulations are typical of those which governed in other mining regions of Germany and Austria.

In more modern times in Germany the discovery of a vein must be followed by its regular denunciation. The actual discoverer has, for one week after his discovery, the prior claim. As in our American law, the discovery point must lie within the claim as laid out.2

The French and Belgian law of mines, while not giving the discoverer an absolute preference to the concession of a mine, placed him in the list of preferred applicants. The Spanish and Mexican laws were still more liberal, for they secured to the discoverer an absolute right of property in the mine which he discovered and denounced, and no one could have any preference over him. Other persons who came after the first discoverer were entitled to take up claims "as they shall discover ore." They could not set up stakes unless they had first discovered ore. In

1 The foregoing information is found in "Speculum Juris Metallici," by Sebastian Span. It is one of the most comprehensive treatises on mining law of the early Germanic period and was published in 1698.

2 In this connection it is interesting to note the following criticism of the French mining law and the proposal that France adopt the very feature of discovery which it is suggested that we now discard: "The principal objection that is taken to the French System of mining law seems to be that there is too much State control, especially in the matter of granting concessions, it being left to the pleasure of the State whether the mine should be granted or not and to whom it should be granted; whilst in other countries the discoverer (as in Germany) is entitled to a grant of the concession.

The report of a Commission of the Chamber of Deputies proposed the following alterations: The recognition of the right to the concession of the discoverer, who proves the existence of a bed of mineral substance. This is practically an adoption of the German system of institution of ownership. They also remark that England and the United States are almost in complete possession of a law as wise in its simplicity as that which they indicate as the perfection of mining law; that everywhere the regalien right is being assailed; that everywhere the power of the State in such matters is being restrained; and that everywhere greater belief is being placed in private enterprise and in industrial liberty, and that it is a remarkable fact that the more this faith increases the more mineral wealth is developed.'

Walmesley, Guide to the Mining Laws of the World, pp. 50-52. 3 'Modern German Codes,' by Raymond, 'Mineral Resources,' 1869.

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