17 Cal. 199 | Cal. | 1861
Lead Opinion
Cope, J. concurring.
The records in these cases present for consideration the question whether a patent of the United States for land in California, issued upon a confirmation of a claim held under a grant of the former Mexican Government, invests the patentee with the ownership of the precious metals Avhich the land may contain. In the first case the complaint alleges that in March, 1860, the plaintiff was seized in fee and possessed of a tract of mineral land situated in Butte county, by virtue of a grant issued by Pio Pico, Governor of California, to Dionisio and Maximo Fernandez, on the twelfth of June, 1846, and a patent of the United States, issued on the fourteenth of October, 1857, pursuant to the Act of Congress of March 3d, 1851, for the settlement of private land claims in California; and that whilst thus seized the defendant entered upon the premises, and extracted and removed from the same large quantities of gold, of the value of four hundred dollars, “ which gold Avas a part and parcel of the said premises, and as such, Avas and is the property ” of the plaintiff; and concludes Avith a demand for damages to the amount of the alleged value of the gold thus extracted and removed. To the complaint the defendant demurred, upon various grounds, the substance of Avhich is, that the title of the plaintiff, as disclosed therein, was of such a character as to vest in him only the OAvnership of the soil, Avithout any interest in the minerals of gold and silver Avhich it contained.
In the second case the complaint alleges, that on the nineteenth of February, 1856, the plaintiff Avas seized in fee and possessed of certain premises situated in Mariposa county, and has been thus
The answer of the defendant admits the several allegations of the complaint, except as to the ownership of the plaintiff of the gold and gold-bearing quartz; and avers, that though the plaintiff is seized in fee of the premises, “ he has not now and never has had any ownership of, or property or interest in the gold or gold-bearing quartz contained in the soil thereof; and in the first count that they are “ the absolute and exclusive property of the State of California ; ” and in the second count that they are in like manner “ the absolute and exclusive property of the United States.”
The case was presented to the Court below upon an agreed statement of facts, and appears to be an amicable suit for the purpose of determining the question whether the precious metals passed to Fremont with the land in which they are contained under the patent of the United States. The agreed statement relates principally to the grant to Alvarado, under which Fremont claimed the land in Mariposa, the confirmation of his claim, and the proceedings following such confirmation, and the patent issued to him. The grant was the subject of elaborate consideration by the Supreme Court of the United States in the case of Fremont v. The United States, (17 How. 542) and in the report of the case it is set forth at length, together with the petition upon which it was made. It is sufficient for the present case to state, that the grant was issued to Alvarado in 1844 by Micheltorena, the then Governor of California; that it was of a tract of land known as “ Las Mariposas,” to the extent of ten square leagues; that Alvarado conveyed his interest in the tract to Fremont in 1847; that the validity of the grant was determined
At the time the grants to the Fernandez and to Alvarado were issued, it was the established doctrine of the Mexican law that all mines of gold and silver in the country, though found in the lands of private individuals, were the property of the nation. No inter
Upon the separation of Mexico from Spain, the mines, which until that period were vested in the Spanish crown, passed to and vested in the Mexican nation. Upon this subject Lares, a distinguished Mexican writer, says:
“ The Mexican nation, having been declared free and independent of the Spanish Government, and of every other power, the seigniory of the King of Spain over the mines absolutely terminated, in like manner as terminated all the dominion and sovereignty which he might have exercised over the territory of the nation. What are, then, the principles recognized at present by legislation in regard to the mines ?
“ The legislator has not occupied himself at all in making a formal declaration upon the matter, like that which was made in France, in 1791, nor upon a regulation, complete and definite, like that of 1810; but in those partial provisions which he has made upon the branch of mining, he has recognized in a manner implied, but clear and evident, the principle that the mines belong to the nation—declaring expressly that to it alone does it appertain to grant this class of property. Thus it is that in the decree of the General Congress of October 7th, 1823, enabling foreigners to make with the owners of mines contracts for every kind of supplies, even to the extent of acquiring in ownership shares in the operations which they supply, he reminds them that they have to remain subject in everything to our ordinances ‘ for the working of the mines, and to the other obligations and charges under which the nation grants the ownership of such parcels of ground to every citizen.
“ Two principles, each most important, the legislator recognizes in this notable disposition—the first, that the ordinances of mining are in force, and by them must be regulated the working of the mines; the second, that it is the nation which grants the ownership of the mines. But how could the nation grant that which it has*216 not ? And how would it be able to give to one that which it might have acknowledged to belong to another ? The law, therefore, has not recognized the property of the ‘ mine ’ to be in the owner of the field, but has made it to consist in the grant which the nation makes to him who registers or denounces it in conformity with the ordinance.
“ The same was the conception of the Decree of March 11th, 1842, which empowered foreigners to acquire real property. In speaking of the mines, it empowers them to acquire in ownership those of which they should be the discoverers, in conformity to the ordinance upon that branch. Here, again, is seen united the ownership with the grant, through the medium of the discovery, in the terms which the ordinance prescribes.
“ There is, therefore, no doubt that our legislation, like the French, distinguishes the property of the soil from that of the mine; recognizes that only the nation can grant the latter property; and establishes that the grant is made in the manner which is determined in the Ordinance of 1783.” (Lares' Derecho Administrativo, 91, 93.)
The minerals thus vested under the Spanish monarchy in the crown—and after the separation of Mexico, in the nation—did not pass, as wo have already stated, by the ordinary grant of land, without express words of designation. Such grant transferred only an interest in the soil distinct from that of the minerals. The interest in the minerals was 'conveyed, through the operation of the mining ordinances, by registry of discovery, or by proceedings upon denouncement when a mine once discovered and registered had been abandoned or forfeited.
We do not understand that this conclusion is controverted by the defendants; but two positions are advanced by them which, though inconsistent with each other, would, if sustained, be equally availing against the claims of the plaintiffs—1st, that the minerals of gold and silver, which passed by the cession, were held by the United States in trust for the future State, and that upon the admission of California the ownership of them vested in her; and 2d, that the minerals remain the property of the United States, and did not pass by their patents.
The first position finds support in the decision of Hicks v. Bell, (3 Cal. 219) where this Court held that the mines of gold and silver found in the public lands are the property of the State by virtue of her sovereignty; and assumed that similar mines in the lands of private citizens also belonged to her by the same right. That decision has not met the approbation of the profession or V retained the approbation of the distinguished Judge who delivered it. The question as to the ownership of the minerals was not raised by counsel, and its determination was not required for the
In Hicks v. Bell, the Court states correctly that, according to the common law of England, mines of gold and silver were the exclusive property of the Crown, and did not pass in a grant of the King under the general designation of lands or mines; but it assumes that this right of the Crown—this regalian right—vested in the State. “ It is hardly necessary,” in the language of the opinion, “ at this period of our history to make an argument to prove that the several States of the Union, in virtue of their respective sovereignties, are entitled to the jura regalia which pertained to the King at common law.” It is in this assumption that the error of the decision consists. Under the general designation of jura regalia are comprehended not only those rights which pertain to the political character and authority of the King, but also those rights which are incidental to his regal dignity, and may be severed at his pleasure from the Crown and vested in his subjects. It is only to certain rights of the first class that the States, by virtue of their respective sovereignties, are entitled. It is to the second class that the right to the mines of gold and silver belongs.
In the great case of The Queen v. The Earl of Northumberland, (1 Plowden, 310) which was argued before the Barons of the Exchequer and all the Justices of England, it was held by their unanimous judgment, “ that by the law all mines of gold and silver-within the realm, whether they be in the lands of the Queen or of subjects, belong to the Queen by prerogative, with liberty to dig. and carry away the ores thereof, and with other such incidents-thereto'as are necessary to be used for the getting of the ore ;” and also, “ that a mine royal, either of base metal containing gold or silver, or of pure gold and silver only, may, by the grant of the King, be severed from the Crown, and be granted to another, for it is not an incident inseparable to the Grown, but may be severed from it by apt and precise words.” This case was decided in 1568,,
No reasons in support of the prerogative are stated in the resolution of the Judges, and those advanced in argument by the Queen’s counsel would be without force at the present time. Onslow, the Queen’s solicitor, says Plowden, “ alleged three reasons why the King shall have mines and ores of gold and silver within the realm, in whatsoever land they are found. The first was, in respect to the excellency of the thing, for of all things which the soil within this realm produces or yields, gold and silver is the most excellent, and of all persons in the realm, the King is, in the eye of the law, most excellent. And the common law, which is founded upon reason, appropriates everything to the person whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all other; and because gold and silver are the most excellent things which the soil contains, the law has appointed them (as in reason it ought) to the person who is most excellent, and that is the King. * * The second reason was, in respect of the necessity of the thing. For the King is the head of the Weal-public and the subjects are his members; and the office of the King, to which the law has ajjpointed him, is to preserve his subjects; and their preservation consists in two things, viz: in an army to defend them against hostilities, and in good laws. And an army cannot be had and maintained without treasure, for which reason some authors, in their books, call treasure the sinews of war; and, therefore, inasmuch as 'God has created mines within this realm, as a natural provision of treasure for the defense of the realm, it is reasonable that he who has the government and care of the people, whom he cannot defend without treasure, should have the treasure wherewith to defend them. * * The third reason was, in respect of its convenience to the subjects in the way of mutual commerce and
It would be a waste of time to show that none of the reasons thus advanced in support of the right of the Crown to the mines can avail to sustain any claim of the State to them. The State takes no property by reason of “ the excellency of the thing,” and taxation furnishes all the requisite means for the expenses of Government. The convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coin
.The right of the Crown, whatever may be the reasons assigned for its maintenance, had in truth its origin in an arbitrary exercise of power by the King, which was at the time justified on the ground that the mines were required as a source of revenue. The same regalian right was recognized on the continent, as in England, and of its origin, Gamboa in his commentary on the mining ordinances of Philip II, thus speaks: “ Upon the breaking up of the Roman Empire, the Princes and States which declared themselves independent, appropriated to. themselves those tracts of ground in which nature has dispensed her most valuable products with more than ordinary liberality, which reserved portions or rights were called rights of the Grown. Among the chief of the valuable products are the metallic ores of the first class, as those of gold and silver and other metals proper for forming money, which it is essential for sovereigns to be provided with in order to support their warlike armaments by sea and land, to provide for the public necessities, and to maintain the good government of their dominions.”
It follows from the views we have thus expressed, that the first position advanced by the defendants cannot be sustained; that the gold and silver which passed by the cession from Mexico were not held by the United States in trust for the future State; that the ownership of them is not an incident of any right of sovereignty; that the minerals were held by the United States in the same manner as they held any other public property which they acquired from Mexico; and that their ownership over them was not lost, or in any respect impaired by the admission of California as a State.
The second position of the defendants is, that if the minerals did not vest in the State by her admission into the Union, they remained the property of the United States notwithstanding their patents to the Fernández and to Fremont. This position is not based upon any language of the patents; for it is admitted that their terms of grant would operate in case of a conveyance of an individual, to pass all the interest which the grantor could possess
The construction given by the United States to their patents, • ever since the organization of the Government, has uniformly been to the same effect. In several of the States, particularly those carved out of territories ceded by Virginia, North Carolina and Georgia, and out of the territory acquired by the treaty with France in 1803, and by the treaty with Spain in 1819, the title to a large portion of the lands is held under patents from the United States. Some of these patents were issued upon a sale of lands ; some of them upon a donation of lands ; and some of them upon a confirmation by Boards of Commissioners of previously existing grants of the former Governments. They were issued to extensive tracts in the Territories of Louisiana, Mississippi and Florida, and in many cases, they embraced lands in which minerals of gold and silver and other metals existed. Yet in no instance, whether the patents were issued upon a sale or donation of lands, or upon a confirmation of a previously existing grant, have the United States asserted any right to the mines as being reserved from the operation of the patents. They have uniformly regarded the patent as transferring all interests which they could possess in the soil,
Judgment affirmed.
Moore v. Smaw.
Note.—Mr. Halleck, in his introductory remarks to his translation of De Fooz’s work on the “ Fundamental Principles of the Law of Mines,” thus defines registry of discovery and denouncement;
“ 1. Registry of discovery (registro de mina nueva). In order to acquire the ownership of a mine newly discovered, the party must present a written application to the proper authority of the district where the mine is situate, (and if there he none in that district, then in the nearest one) setting out certain particulars in regard to himself and the mine he wishes to register; whereupon notices are posted up in certain public places; the mine must be opened and worked to a certain depth williin a certain specified period; and after due inspection by the proper officers, the possession is given, and the limits or extent of the pertenencias are fixed. These proceedings, known as the registry, constitute the concession; and the right or title thus acquired to the mine and its appurtenances remains in the party making thp registry, his heirs and assigns, forever, unless forfeited or defeated fi,r non-user, or for non-compliance with the conditions attached by law to its continuance.*217 “2. Denouncement of an old mine (denuncio de mina abandonada). The proceedings by which the ownership of an old mine is acquired are the same as those of making registry of a mine newly discovered, except that instead of adducing proof of discovery, evidence must be given of the abandonment by the former owner, or that for some other reason the mine has become subject to denouncement (o considerador algún otro motivo denunciáble). The former owner, if he be known, and the occupants of the adjacent mines must be duly notified, and public notices given in the manner prescribed. At the expiration of the proper time, and on the hearing of the case, the mine may be declared vacant, and the possession of it given to the denouncer, who thus becomes the next owner. There is, therefore, no essential difference between registry and denouncement; indeed, the new title acquired to the mine denounced results from the act of registry. Gamboa, therefore, very properly considers the two acts as virtually the same—one name being applied to a newly discovered mine, and the other to an old one. Moreover, the term denouncement is not unfrequently applied to the act of making known the discovery of a new mine; and even when used with respect to an old one, it is properly applicable only to that part of the proceedings by which the mine is alleged, proved, and declared vacant; those by which the new ownership is acquired being, in fact, an act of new registry.”
Concurrence Opinion
I concur in the judgment in this case for the reasons given by the Chief Justice.