§ 6.3 - Lands and Mineral Resources

• Jurisdiction: Washington

§6.3 LANDS AND MINERAL RESOURCES

It simply is impossible to understand mineral resources without a firm grasp of certain real property and mineral concepts and their historical roots.

(1) English history

Generally speaking, American real property law is derived from the English common law. Several aspects of historic English practices stand out as special rules pertaining to mineral resources.

Under the feudal system, the Crown retained ownership of gold and silver deposits and at various times asserted a partial interest in base metal deposits. In addition, and perhaps originating prior to full development of the feudal system, there were areas of mineable deposits in which mining rights could be obtained by discovery and appropriation, independent of any incidents of the feudal system. This was particularly true regarding the lead mines of Derbyshire and the tin mines of Cornwall. In addition, the Crown claimed royal prerogatives in mineral deposits underlying the beds of navigable streams. See generally 1 LINDLEY ON MINES §§3-8 (3d ed. 1914).

Under the feudal system, except for the sovereign rights, the common law rule was that ownership in fee carried with it cujus est solum, ejus est usque ad coelum et ad inferos —ownership to the heavens and to the center of the earth. Under this rule the ownership of minerals in place followed the ownership of the land, but the same rule did not necessarily apply to fugitive minerals, such as oil and gas.

(2) Washington history

All lands in the state of Washington are derived from a common grantor, the federal government, which acquired title in the Oregon Compromise of 1846. Because of the fixation of the federal government on the subject of mineral values, starting in the late 1840s, much of the law in regard to minerals and mineral rights arises out of federal land policies expressed in several hundred separate statutes affecting the retention or disposition of minerals by the federal government. Obviously, a summary of these statutes is beyond the scope of this chapter and is reason, in part, that mineral resources counsel is left to a handful of experienced attorneys. However, Appendix D, available on the CD accompanying this deskbook, includes a chronology of selected federal statutes.

The starting point in evaluating the right to minerals pertaining to any given tract of land requires tracing of the actions taken by the federal government. This aspect of property law continues to...