Mining law

California Gold Rush handbill

Just after the discovery of gold at the sawmill in Coloma, both John Sutter and James Marshall attempted to control the mining territory by demanding rent from the men who wished to mine there, and for a short while they were successful. But as more men showed up to mine and gold was found in locations across the western foothills that extended for hundreds of miles both north and south from the original discovery site, it quickly became understood that all men were free and each had as much right as any other to work mining ground. So it was that one of the first things done was to formulate rules and regulations for the government of miners and the mines. At first these rules had to do mostly with the size and manner of working individual mining claims and often differed according to circumstances and location.

Sutter’s Mill, TC Russell

One of the first rules adopted was to establish the size of a claim, or the amount of ground a man could work, and next was to determine what constituted occupancy. All men were to be regarded equally and perhaps there was no more absolute equality among men than in the early days of the gold rush. A man might be superior in intellect, enterprise, courage or manners and thereby looked up to by others, but under the mining laws and in practice he was no better. Education, family connections, wealth, dress, or any of the ordinary distinctions of society disappeared and counted for nothing in the mines. All men started at the same level. Equality in ownership and in all other respects was the foundation on which mining law was based.

Panning for gold

In the very early days the size of a claim could be fixed as small as ten feet square, but this only worked in very rich areas and could rise to one hundred feet square in poorer areas or in places that had been previously worked. There were many variations to this principle with object to give every man a fair chance to accumulate wealth by granting him as much ground as he could use. But these claims could only be held while they were being reasonably worked. Usually a man had to do a certain amount of work per week or someone else could take the claim. If a man had to leave the land for some reason then he needed proof that he planned to return and continue working the claim. Leaving his mining tools onsite was usually sufficient. Each man then had the equal right to make use of the fruits of his claim by his work, but on the other hand each of his fellow miners had the same rights to those fruits if the first man failed to make use of the land.

Gold mining

There were perhaps as many variations to these rules as there were mining districts. But in almost all cases once a claim was taken up stakes were driven in the corners of the property, or written notices posted, or an entry was made in the public record, or any combination of the three were required. But in all cases the land belonged to the government and men could acquire no ownership save that used for mining and then only while that mining was being done. In many cases special provisions were made pertaining to the sale of claims and the authentication of the bill of sale, the usual method of conveying claims.



  1. In Montana, the same thing happened in just about the same order except no one owned the land the original prospectors found gold on. Even among the Indians, it was disputed territory among three tribes — the Blackfeet, the Crow, the Bannack. Probably others, too. There were no federal mining laws until 1866, so with each new discovery prior to that, men were on their own to make their own rules.

    I thoroughly enjoy your Gold Rush Tales, John. Keep ’em coming!

    • Carol, this article is just the start of things. There are seven more posts on mining law. Just like in Montana, men got together and made rules for their area and when things changed they changed the laws. Gradually these laws became more universal and evolved into the federal laws. Some of the changes in California we would consider quite impossible now.

      But you’ve hit on one really interesting point right off and that is who owned the land. Mining started around the the sawmill at Coloma. Sutter actually bought the property from the Indians so he did own it and had a right to charge rent. But he owned only a tiny bit of what would become the gold country. Wouldn’t all that land have been Indian land too?

      Most of the early miners who did very well, Bidwell on the Feather River, Weber on the Stanislaus, Reading on the Trinity, Sheldon and Daylor at Hangtown, all used Indians both on their ranchos and in mining. But after the killings at Murderer’s Bar and the reprisals by the miners, relations naturally soured and many of the Indians went higher into the mountains. Somehow most of the land in the mines became federal land and a lot of it still is. And the Indians, well a hundred and fifty years later they got a government backed gambling business. Hmmmmm.

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