§ 6.10 - other Considerations

• Jurisdiction: Washington

§6.10 OTHER CONSIDERATIONS

Additional matters relevant to mineral interests include surface and underground access, trespass and unlawful detainer, unpatented mining claims, and considerations pertaining to environmental protection and conservation.

(1) Access: surface and underground

Access rights necessary to exploit a mineral estate to the extent that such rights are restricted to the property in which the mineral estate has been severed are subject to the same conditions that surround all other rights that are expressly or impliedly incident to the mineral estate. Access across lands intervening between a public way and the mineral estate is sometimes subject to special rules with respect to mineral properties. Contrary to the situation in many western states, however, mining in Washington does not have a clearly recognized status as a public or quasi-public use supporting a power of eminent domain. By statute first enacted over a century ago, Washington purports to grant a power of eminent domain to mining corporations to establish tram lines, but not to acquire a surface easement. See RCW 78.04.010.

Practice Tip: Presumably, if mineral exploitation is a private use in the constitutional sense, a private way of necessity can be acquired if the standards are satisfied. See Ch. 8.24 RCW. In Sherman Mining Co. v. Smith, 54 Wn.2d 607, 343 P.2d 735 (1959), the constitutional and statutory authority for a private way of necessity was asserted to acquire the right to tunnel through an adjoining property and thus avoid sinking a second shaft to reach a disconnected mineral property. The court refused to relax the normal rigid standards for private ways of necessity and refused to grant the underground access desired primarily for economic reasons.

Because of the large federal holdings in Washington and the erratic location of economic mineral deposits, access across federal lands can be a problem. Under the Unlawful Inclosures Act, 43 U.S.C. §§ 1061-1066, it is unlawful to prevent free passage over or through the public lands to any person entering for settlement or residence. This has been construed to include mineral prospectors. See Haynes v. United States, 101 F. 817 (8th Cir. 1900). The statute specifically provides that the Act applies to persons who have entered federal lands claiming title in good faith. 43 U.S.C. §1063. Presumably this would preclude access across private lands acquired from the government under the strength of the statute. In at least one case, however, an implied easement across private lands was found by reason of the Unlawful Inclosures Act. See United States v. Buford, 8 Utah 173, 30 P. 433 (1892). Exclusive of the statute, the federal government has claimed an easement, Leo Sheep Co. v. United States, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979), but it should be noted that the lands involved were patented to the Union Pacific Railroad in 1862, prior to enactment of so-called R.S. 2477, 43 U.S.C. §932 (discussed below).

In some instances, the statute under which the federal government reserved minerals guarantees access, and the regulations published under the statute regulate the incidence of the right of access. E.g., Homestead Act of 1916, 43 U.S.C. §299; 43 C.F.R. § 3814.1.

Under the Act of July 4, 1866, ch. 166, 14 Stat. 88, now codified at 30 U.S.C. §21, all lands "valuable for minerals" were reserved from sale except as otherwise directed by law. Under the Lode Law of 1866, all "mineral lands of the public domain, both surveyed and unsurveyed, [were] declared to be free and open to exploration and occupation." Act of July 26, 1866, ch...