It is a common assumption that a witness called to testify on scientific matters is on a somewhat different basis from the eye-witness to an event or transaction. We are not sure that this assumption is justified. Seldom is it possible in mining operations to disclose the facts in three dimensions so completely that they may be empirically observed and platted by the layman. The grouping and presentation of the facts in adequate perspective require an analysis of the origin of the ores and rocks, the rock alterations, the structural systems, and other facts. No one ever saw the vein or lode in the process of formation. The true nature of the event and of its physical results must be inferred inductively from circumstantial evidence. If it be conceded that it is necessary and right to call an eye-witness to an event involved in litigation, it is equally necessary where there are no eye-witnesses to call the persons best qualified to interpret the circumstantial evidence.
It is to be remembered that apex cases are only one kind of a vast variety of cases affecting mineral resources. At one time or another, and in some connection or another, practically every geologist of considerable experience has found it necessary to testify on geologic matters in court. The wide interest attaching to certain spectacular apex cases has led in some quarters to hasty criticism of the participation of geologists therein, without apparent recognition of the fact that the criticism applies in principle to many other kinds of litigation and to practically all economic geologists. This criticism also fails to take cognizance of the fact that, for every case tried, there are many settled out of court through the advice and coöperation of geologists. While there may be in the geologic profession, as in others, a very few men whose testimony can be bought outright, in general it must be assumed that geologists will appear on the witness stand only when, after careful examination, they are satisfied that there is a legitimate point of view to be presented.
Geologists and engineers understand more clearly than almost any other group the extent to which the complexities of nature vary from the conditions indicated in the simple wording of the law of extralateral rights. Almost to a man, they favor either modification or repeal of the law. On the other hand, the law has been in force since 1872, it has been repeatedly interpreted and confirmed by the courts, and a vast body of property rights has been established under it. Lawyers see great legal difficulties in the way of its repeal or serious modification. Mining men for the most part are not primarily interested one way or another, unless there is potential application of the extralateral-rights provision to their particular properties. Of those who are thus interested, some hope to gain and some fear they may lose in the application of the law. The general public naturally has little direct interest in the problem. There is thus no effective public sentiment favoring the repeal or modification of the law. It seems likely that for some time to come the law, in spite of its recognized defects, must be applied, and the best geological effort must be directed toward reaching interpretations which come most near to meeting its intent. To refuse to lend geologic science to the aid of justice because the law was improperly framed is hardly a defensible position. Presumably it will never be possible to frame laws with such full knowledge of nature's facts as to eliminate the necessity for scientific advice in their interpretation.
It has been suggested that the courts, and not the litigants, should employ the geologists. The practical objection to this proposition lies in the difficulty encountered by the judge in the proper selection of geologists. On the assumption that the judge would select only men in whom he had confidence, it is not likely that he would override their conclusions. The outcome of the case, therefore, would be largely predetermined at the moment the selection of experts was made. It is to be doubted whether courts can have the knowledge of the scientific field and of the requirements of the situation necessary to make the wisest selection of men to interpret the given condition. The competitive element would be eliminated. From a judicial standpoint, there seems to be an equally good chance of getting at the best interpretation of the facts by listening to presentations from different standpoints, with the accompanying interplay of criticism and questioning.
Another practical objection to appointment of experts by the court is the limitation of court costs, which would make it impossible to secure the highest grade men. So far as these men are public employees, such as members of the federal or state geological surveys, this might be arranged. For others, it might be suggested that they should be willing to sacrifice their energy and time in the interests of justice; but as long as human nature and conditions are what they are, it is perhaps futile to argue this question.
If it is right to apply science to practical affairs, in other words, if the profession of economic geology is a legitimate one, it seems inevitable that the application must be in some part directed by the geologist himself, in order to avoid mistakes and confusion. The contention that the scientist must isolate himself in a rarified atmosphere to avoid contamination from a non-scientific, commercial, or legal atmosphere, seems to the writer practically untenable, if we recognize any obligation on the part of science to the practical conduct of human affairs. The fact that the geologist in making these applications may occasionally find himself in a non-scientific atmosphere may be deplored from the standpoint of maximum creativeness in science, and from this standpoint there may be reason for limitation of time given to this kind of work,—but to stay out entirely on this ground is to deny his obligation to make his science helpful to his fellows. The problem cannot be solved by staying out. It calls rather for an especial effort on the part of the scientist to establish and maintain his standards of science and ethics in the applied fields. Some doubtless fail in this effort. Others are strengthened scientifically and ethically, and contribute important aid in raising general standards. The principle of non-participation in such activities for fear of lowering scientific standards may make the geologist's problem easier, but at the expense of non-fulfillment of duties. Such a course has for its logical consequence an abandonment of the application of his science to untrained men without the ethical anchorage of scientific achievement. In short, there may be legitimate criticism of individual geologists for their methods and ethics in the applied field, and this is desirable as an aid to maintaining and improving standards; but it is not a logical step from this to the conclusion that, to avoid unfortunate incidents, economic geologists must cloister themselves and thus deny the very implication of their title.
II
LAWS RELATING TO EXTRACTION OF MINERAL RESOURCES
Under this heading come a wide variety of laws and regulations,—national, state, and local,—affecting the manner in which mineral resources shall be mined or quarried. Such laws may specify the number of shafts or outlets, the use of safety and prevention devices, miners' compensation and insurance, and many other features. Most of these laws are framed for the purpose of conserving human life and energy, but they directly affect the mining or extraction of the mineral resources themselves. Geology plays but little part in relation to such laws.
Where the government retains ownership and leases or rents the resources, there are often provisions regarding the manner of mining and the quality and quantity of the material to be mined, in the interests of efficient operation and conservation. The geologist is often called into consultation both in framing and in dealing with the infraction of such provisions. It may be noted that the control thus exercised on the operator by government ownership is very much the same as that often exercised by the private fee owner. It is not unusual for fee owners of mineral rights to maintain a geological staff in order to follow intelligently underground developments, to see that the best methods of exploration and mining are followed, and that ores are either extracted or left in accordance with the best conservational practice.