Vanderbilt Law Review


Charles Fairman

First Page



It was in the summer, about 1880. Miller, on the rounds of his circuit, had come to Omaha, where, in chambers, he was to hear counsel argue a mining case from Colorado. In the hall of the post office building, Miller saw Roscoe Pound (aetat circa 101 and already known to the Judge), and greeted him with the inquiry: "Well, sonny, how would you like to come with me while I hear a case?" Gladly the lad went along, and seated himself on the floor, Turkish-fashion, under the Judge's desk. The controversy concerned what was then a new and highly important matter under the federal mining law: did the claim in question constitute a "vein" as distinguished from a "placer"? "Placers" included "all forms of deposit, excepting veins* ..in place"; the owner was confined within the lines of his survey. "Veins," on the other hand, might be followed "throughout their entire depth," even though their course might "extend outside the vertical side-lines" of the surface location. Where the rock covering of the ore-bearing quartz had fallen away, it would be hotly contested whether this remained a "vein in place" which the owner was entitled to pursue. At the conclusion of the arguments as to how this particular location should be classified, Miller looked down and inquired, "Sonny, what do you say"? The boy had been following closely and was ready with his response: "Judge Miller, it was there, wasn't it"? Yes, said Miller, picking up the pithy reply--Sonny's right, it was still there: the vein remained "in place," even though the overlying rock had broken away. That was the sensible answer, and Miller adopted it.