19 Cal. 491 | Cal. | 1861
Baldwin, J. and Cope, J. concurring.
The sixty-fourth section of the Revenue Act of 1860 declares that no person who is not a citizen of the United States, or who has not previously declared his intention to become such, (Californian Indians excepted) shall be allowed “ to take gold from the mines of this State, or hold a mining claim therein,” without a license as subsequently provided by the act. The plaintiff is a Chinaman, and, of'course, is not a citizen of the United States, or entitled to become such under any existing legislation of Congress, and was engaged in mining upon the Mariposa estate, the property of Fremont and others, under a lease from the owners. The defendant is Sheriff of Mariposa county, and the property in controversy was seized by him in the enforcement of the license tax, claimed of the plaintiff under the section in question. The point for determination is, whether the section refers to mines contained in lands which are the private property of individuals, as well as to those in the public lands of the State, or of the United States. We are clearly of the opinion that it refers only to mines in the public lands. The owners of the Mariposa estate derive their title under a grant of the former Mexican Government and a patent from the United States issued upon its confirmation. That patent invested the patentee with the ownership of the precious metals which the land may contain. It transferred to him all interests which the United States possessed in the soil, and everything imbedded in or connected therewith. (Moore v. Smaw, and Fremont v. Flower, 17 Cal. 200.)
By force of this instrument, therefore, the owners possess whatever “ mining claims ” exist upon the estate, and their rights in that respect can neither be enlarged nor diminished by any license from the State. They hold such claims independent of the section in question, and may extract the gold themselves, or allow others to extract it, upon such terms as they may judge most advantageous to their interests.
Judgment affirmed.