Full opinion text
At the January Term, 1858, Burnett, J. delivered the following opinion: On the 29th day of February, 1844, Governor Mieheltorena granted to Juan B. Alvarado, a tract of land known by the name of the “ Mariposas,” to the extent of ten square leagues. On the 10th of February, 1847, Alvarado conveyed his title, by warranty deed, to John 0. Fremont. The claim was presented to the Board of United States Land Commissioners, and finally confirmed by the decision of the Supreme Court of the United States, at the December Term, 1854. A survey was made in July, 1855, and a patent issued to Colonel Fremont, February 19th, 1856. On the 22d day of April, 1857, Colonel Fremont leased a part of the tract, being the premises in dispute, to the plaintiff, for seven years, at a monthly rent of one thousand dollars. In May, 1851, the defendant, then and ever since, a corporation for mining purposes, entered upon and took possession of the premises, and has continued in possession, working the quartz veins, and extracting the gold therefrom, and has expended, in the erection of machinery and other improvements, upwards of eight hundred thousand dollars. This action was brought by the plaintiff to recover possession of the property and damages for its detention since the date of the lease. By a stipulation between the Attorneys, the defendant was allowed to set up in defense any matter that could be the subject of a bill in equity. The plaintiff had judgment in the Court below, and the defendant appealed. The case presented by the record is one of the most important that has ever been considered by this Court, not' only in regard to the pecuniary value of the subject in controversy, but in reference to the consequences likely to flow from the decision. We have given to the case that careful consideration which its magnitude demanded. Under the view we have taken of this case, there are only two positions necessary to be examined : 1. Whether the title to the mineral passed to Col. Fremont ? 2. Whether, conceding that it did not, the defendant has the right to extract the gold, while the title in fee simple of the land is in the lessor of the plaintiff? If the gold in the premises in controversy now belongs either to the State or to the United States, it does not belong to Col. Fremont, and the effect must be the same upon the right of the the plaintiff to recover. If we concede, for the sake of the argument, that the “ United States could only occupy the position of any private proprietor, with the exception of an express exemption from State taxation; and that the mines of gold and silver on the public lands are as much the property of this State, by virtue of her sovereignty, as are similar mines in the lands of private citizens,” as held by this Court in the case of Hicks v. Bell, (3 Cal. 227,) then it follows that the gold found in the premises in controversy belongs to this State; provided, the title to the mineral did not pass to the grantee by virtue of the original grant. If the State, by virtue of her sovereignty, succeeded to the rights of Mexico in the mines of gold and silver in the public lands, then, upon the same principle, the State must have succeeded to the rights of Mexico to the mines in the lands of private proprietors. It would seem to be impossible to make any substantial distinction between the two cases. We cannot perceive any reason or principle for the distinction. The right of the State must be the same in both cases, for the reason that the right of Mexico, as to the mineral, was the same in both. But if we take the opposite theory to be true, that the property in the mineral did not pass to the grantee, but passed from Mexico to the United States, and did not vest in the State by virtue of her sovereignty, or otherwise, then the question arises, how did the title to the minerals pass from the United States to Col. Fremont? In examining the question, as to whether the title to the mineral passed from the United States to the grantee, we must take the decisions of the Supreme Court of the United States as conclusive upon this Court. The object of the Act of Congress of March 3d, 1851, was, as its title imports, “ to ascertain and settle private land claims in the State of California.” The purpose and scope of the Act were only to ascertain and settle private titles derived from Spain and Mexico; not to grant new, but to ascertain and settle or confirm the old titles. Hence, the decree was one simply of confirmation or rejection. To confirm is “to make firm or certain; to give new assurance of truth or certainty; to put past doubt.”— Webster. The confirmation must be of some title previously existing, and the confirmation only becomes conclusive evidence of that which it concedes existed before. Confirmation can only be matter of evidence. It makes certain, gives new assurance, puts past all doubt. The decision was only upon the validity of a pre-existing title. And when the title or claim was finally confirmed, and the patent issued, the final decree and the patent were only conclusive, between the United States and the claimant, as to the matters involved, and no more. The claimant presented Ms petition, setting forth Ms title, and praying for a confirmation of the same. When confirmed, he had only the title originally granted, with a “ new assurance ” of its validity. The effect of the patent was only such as the Act of March 3d, 1851, gave it. The patent could not go beyond the decree of confirmation, and the decree itself could not go beyond the original title. In other words, the decree could not vest in the grantee a title to that which was not included in the original grant. In the case of Fremont v. The United States, (17 How. 542,) the validity of his title was confirmed by the Supreme Court of the United States. The opinion was well considered, and distinctly settles positions from which certain conclusions must logically flow. Among the points substantially determined were these: 1. That the Governor had the power to make the grant. 2. That it conveyed to the grantee the title it purported to convey. 3. That the title was in fee. 4. That the grant contained conditions, but these were conditions subsequent. 5. That the definitive grant was “intended as the evidence that the conditions annexed to the grant have all been complied with.” 6. That “ the right to so much land, to be afterwards laid off by official authority, in the territory described, passed from the government to the grantee by the execution of the instrument granting it.” 7. That whatever interest remained vested in the grantee or his assigns at the date of the treaty, “ the United States are bound in good faith to uphold and protect.” The conditions annexed to the grant, including the approval of the Departmental Assembly, being conditions subsequent, their non-performance could only divest a title previously vested. And the effect of the definitive grant being only evidence that these conditions had been fulfilled, no title passed by it; but the title must have passed by the original grant, if it passed at all. And it was only such title as existed at the date of the treaty that the United States were bound to protect. They were not bound to make the original grant convey a title to property, which was not included in its terms when issued. In the case of Osborn v. Hendrickson, July Term, 1857, we held that “parol evidence could not add to the writing a description of property not embraced in it.” And so, if the original grant to Alvarado did not convey the title to the mineral, the subsequent confirmation and patent did not do so. This seems to be the result of the Act of March 3, lá51, and the decision of the Supreme Court. In the opinion, the Chief Justice says: “ The only question before the Court is the validity of the title. And whether there be any mines on this land, and, if there be any, what are the rights of the .sovereignty in them, are questions which must be settled in another form of proceeding, and are not subjected to the jurisdiction of the Commissioners or the x Court, by the Act of 1851.” From this it would seem to be clear that no new rights were subjected to the Commissioners or the Court; and, therefore, the effect of the decree and patent could not be to convey any additional title to the claimant. If, then, the title to the mineral was reserved by the laws of Mexico when the grant was made, and was still retained by Mexico up to the date of the treaty, this right must have passed to the United States, unless the General Government did not possess the capacity to receive it. The law existing at the time the grant was made entered into and formed a part of the grant, without any express stipulation to that effect. If, therefore, by the terms of the grant, as controlled by the existing law, the title to the mineral was reserved to the government of Mexico, that title passed out of Mexico and vested in the United States, or in the claimant; and if it vested in the United States it was either in their own right, or as Trustee for the future State. It is insisted by the learned counsel for the plaintiff, that “ upon the cession of the territory by Mexico to the United States, the sovereign right of Mexico to the mines ceased, and there was no sovereignty to take. The Mexican law of denouncement was gone, for the mines could only be denounced by virtue of her proprietorship. The necessary result was, that as far as concerned mines in granted lands, they went with the land, and became the property of the owner, for the law does not tolerate the want of an owner for any thing of value.” This position of the learned counsel is no doubt true, if we concede that the United States had no capacity to take, either in their own right, or as Trustee for the new State. But it is also clear, that if the United States had the capacity to take, in their own right, then the title remains in them, and the State has no more right to the mineral than to the land containing it. It must be conceded that there are certain inseparable incidents of sovereignty that must exist wherever sovereignty itself is found. Among these is the right to take private property for public purposes, the right of taxation, and the right to control navigable streams. These powers are necessary to the very existence of government. But it is equally true, that there are other powers that may belong to one government, under its own Constitution, that do not belong to another government, based upon different principles. For this reason, only so much of the common law is in force in this country as is consistent with our institutions. There are certain powers inherent in all governments; otherwise, they would not be governments at all. And it is equally clear, that these governments must differ from each other in certain other respects; otherwise, they would all possess the same powers. In the case of The Queen v. The Earl of Northumberland, (1 Plowden, 310,) the Court of Exchequer decided, after very full argument and great deliberation, that “ all mines of gold and silver within the realm, whether they be in 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.” (Id. 386.) In the argument, the counsel for the Queen based this prerogative upon these grounds: 1. That gold and silver were the most excellent of all things, and, for that reason, belonged to the Queen, as the most excellent of all persons. 2. The necessity of the thing, as the Queen could not maintain an army without treasure. 3. As an incident to the right to coin money. The last ground is the one given by Blackstone. (1 Com. 294.) “A twelfth branch of the royal revenue, the right to mines, has its original from the King’s prerogative of coinage, in order to supply him with materials.” This right of the Crown is, no doubt, the settled law of England, upon whatever reasons it may be predicated. (Bainbridge on Mines, 40.) The different reasons assigned by different writers for this right, seem not to have been satisfatory to those who sustain it. It is the settled law, and that would seem to be about all that can be said in its favor. But in deciding the question, whether the title to the mineral ■ in the premises in controversy, must, of necessity, be either in the United States or in the State of California, it becomes material to consider the reasons upon which this right of the Crown was based. For, though such is the positive law of England, the ground upon which such a rule is predicated may be wholly inapplicable to the nature and powers of our own government. If this right of the Crown be an inseparable incident of sovereignty, then the same right must belong either to the United States or to this State; but if, on the other hand, such right be not, in its own nature, an inseparable incident of sovereignty, then the mineral may, or may not, belong to either government, and may be the property of a private individual. The incidents of sovereignty are those powers of which a State cannot divest itself, without materially impairing its efficient action. All the powers necessary to accomplish the legitimate ends and purposes of government must be sovereign, and, therefore, must exist in all practical governments. If, then, we try the question by this test, is a gold mine a necesssary incident of sovereignty ? The first and second reasons assigned by the Queen’s counsel, in the case from Plowden, seem to have no force and no application; and the only ground to which this right can be referred with any apparent reason is the power of coinage. The State does not need the mine for the purpose of revenue, as the power of taxation is ample for that end. And it is difficult to perceive how the title to the mineral is a necessary incident to the • exclusive right of coinage. In practice, we see such a theory refuted every day. By the Constitution of the United States, the power to coin money, to regulate its value, and of foreign coin, is conferred upon the General Government; and the States are prohibited from making anything but gold and silver a lawful tender in payment of debts. These provisions, taken together, give all the power necessary to the Federal Government, without the ownership of the materials out of which the coin is made. And, as the State has no power to coin money, or regulate its value, she could have no claim to the mineral upon that ground. If we consider the positions established by the decision of the Judges, in the Earl of Northumberland’s case, and m that of the Saltpetre case, in 7 Coke, 13, it will be seen, that this right of the Crown was not considered as an inseparable incinont of sovereignty. In the first case, it was held, “ that a royal mine 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 Crown, but may be severed from it by apt and precise words,” (1 Plowden, 336, a.) And, in the second case, “ it was resolved, that this taking of saltpetre is a purveyance of it for the making of gunpowder, for the necessary defense and safety of the realm; and for this cause, as in other purveyances, it is an incident inseparable to the Crown, and cannot be granted, demised, or transferred, to any other, and cannot be converted to any use, than for the defense of the realm, for which purpose the law gave to the King this prerogative. And it is not like to the mines of gold and silver, for there the King hath an interest in the metal.” The right to royal mines was a personal prerogative of the Crown, like many others, and could be alienated at the pleasure of the King. The right was not, in its nature, an incident of sovereignty; because, such incidents cannot be transferred to an individual without materially impairing the' powers of the State. If these views be correct, there would seem to be no sufficient reason to sustain the position, that the title to the mineral is in this State. She cannot claim it on the ground of sovereignty, nor upon any other ground that we are aware of; and we are equally convinced, that the United States cannot claim this right upon the ground of sovereignty. But we can perceive no reason why the mineral could not belong to the United States, as well as to any other proprietor. The capacity to own the mineral is inherent in both the State and Federal governments. If they possess the capacity to own the land containing the mineral, then they can own the mineral itself. And if the title to the land can be in one party, and the title to the mineral in another, then the title to the premises in controversy may be in Col. Fremont, and the title to the mineral in the United States. It is true, that the general rule of the common law is, that he who owns the land, owns all that the land contains. But, notwithstanding this general rule, the proprietor of the land may sell it, reserving to himself the title to the mineral in the land. There is nothing in the common law, nor in the reason and nature of the case, to prevent parties from making such a transfer of property, subject to such a reservation. Without such a reservation, either express or by the terms of the law then existing, the right to everything contained in the land would necessarily pass by the deed. The title to the land in controversy was, before the date of the grant, in the Republic of Mexico. By the grant, the title to the land, with a reservation of the mineral to the government, passed to the grantee. This right of Mexico was a public right— a right of property in the nation; and, in the language of the Supreme Court of the United States, in the Fremont case, “passed with all other public rights, to the United States.” (17 How. 565.) It does not matter upon what ground the Republic claimed this ownership, nor in what manner she exercised such a right; while she could not transfer her functions to the United States, she could transfer her right of property in the public lands, and the right to minerals in the lands of individuals. The United States could receive this title to the minerals, and could enforce the right in any form, or by any proceeding consistent with the frame of the government, and the substantial rights of the landed proprietor. The mere change in the mode of asserting "or exercising the right, would not defeat the right itself, unless this change materially impaired the rights of the other party. The legislation of New York and Pennsylvania is not opposed to the view we have taken, but supports it. Those States claimed the mines of gold and silver within their respective limits, for the reason that the King of Great Britain had never granted them to individuals at the date of the treaty acknowledging our independence. The right of property in these mines, being in the King, passed to the States in which they were found. The Federal Government, under the old Confederation, could take no title. And this legislation is based upon the principle that the ownership of the mineral may be distinct from the title to the land, and that this right in the State was not.incompatible with her Constitution, or with her relation to the Federal Government, or with the rights of the landed proprietor. Our conclusion upon this branch of the case is, that the right to mines of gold and silver found in the lands of private persons was a personal prerogative of the British Crown, and not based upon any right incident to sovereignty3 that such a right is not incident to our governments, either State or Federal, but that the capacity to own land and all that it contains is possessed by both 3 that the capacity to own, and the fact of ownership, are distinct things 3 that the title to the gold, in the premises in controversy, in this case, was reserved by Mexico, and passed, by treaty, to the United States, and has not passed from them to the lessor of the plaintiff. The second and last position to be examined is, whether the defendant has the right to extract the gold, while the title in fee simple of the land is in Colonel Fremont. The learned counsel for the plaintiff insist that,-conceding the title to the mineral to be in the State, this fact cannot help the defendant. If this ground be correct, conceding the ownership to be in the State, it must be equally correct, if the ownership be in the United States. They insist that a party has no right to enter upon the land of another to search for gold, because the gold belongs to a third party 3 not even under a general license from the owner of the gold. It is conceded that the State, as the. owner, might protect the party licensed against a trespasser, in such a case. But wo cannot perceive the force of this reasoning. The right to the gold carries with it the right to search and dig, as necessary incidents, as was held in the case from Plowden. The ownership of the mineral would be of no value without the right to extract it. And this right in the government could only be exercised through its agents. The owner of the gold, whether a natural or artificial person, could do that by agent that could be done by the principal. The right to grant a license to another is not injurious to the owner of the land, but beneficial to the owner of the mineral. Of course, the party licensed could do no more than the proprietor of the gold could do. The only remaining inquiry is, whether the defendant, under the circumstances, has a license from the United States. This question was very fully considered by this Court in the case of the Merced Mining Co. v. John O. Fremont et als. decided at the last April Term. In that case, we said: “When we consider the current and the spirit of the legislation of both governments, taken in connection with the history and the known circumstances of the country, the conclusion is irresistible, that the mines are occupied and worked with the clear assent and encouragement of both governments. And while the terms of this license and the relation which the miner sustains to the superior proprietor may not be expressly laid down, and the duration of the estate not clearly designated by any positive law, and we may not, for these reasons, be able to give any exact definition of the precise nature of the right, yet one thing is well understood and indisputable: they are there by the clear license of both governments, and have such a title as will hardly be divested, even by the act of the superior proprietor. There are equitable circumstances connected with these mining claims that are clearly binding upon the conscience of the governmental proprietor, and that this Court must, with all due respect, presume will never be disregarded. If these views be correct, the owner of a mining claim has, in practical effect, a good vested title to the property, and should be so treated until his title is divested by the exercise of the higher right of the superior proprietor. His right and remedies, in the meantime, are not trammeled by the consideration that the higher right to reclaim the property exists in another, which right maj possibly, but will not Si probably be exercised. His right to protect the property for the time being, under the peculiar circumstances of the case, is as full and perfect as if he was the tenant of the superior proprietor for years or for life'.” We have seen no reason to change the views we then expressed. These views are as applicable to this case as to the one then before the Court. We can see no reason or equity in allowing the plaintiff to turn off the defendant for doing that which is no injury to the right conveyed by the grant to Alvarado. As Colonel Fremont had no title to the mineral himself, and could only take it as any other individual, his tenant has no such interest in the premises as will entitle him to recover. The defendant occupies simply and solely for mining purposes, under the general license of the Federal Government. It is very true, that there has been no express Act of Congress creating this license. But the circumstances are peculiar. Had the government simply permitted persons' to occupy its lands for agricultural or mechanical purposes, when such occupancy could not impair, but enhance, the value of the property, then the implication of a license would not be so strong as in the case of mineral lands, where the property is continually and rapidly wasting away under the process of mining, which, in fact, removes all that is of any value in the estate itself. We cannot, under such circumstances, believe that the government intends to object. It must be its will that the mineral should be thus taken. And if this be its will, no one else can complain. For these reasons, the judgment is reversed and cause remanded, and the Court below directed to enter judgment for the defendants.
Terry, C. J. delivered the following opinion : I concur in the judgment and the doctrine of my associate. I, however, express no opinion as to the correctness of the former ruling of this Court in Hicks v. Bell. It is sufficient, for the purposes of this case, that the title to the gold did not pass by the grant to the lessor of plaintiff. Whether the right to the mines is vested in the United States, or the State of California, is a question in which the plaintiff has no concern. Field, J. dissented. A rehearing having been granted, the case was again argued at the July Term, 1858. 8. W. Inge, for Appellant. 1. In California, the mines of gold and silver within her limits, whether in public or private lands, belong to the State, by virtue of her sovereignty. The proprietary right to the mines is incident to the sovereign rights of eminent domain and municipal jurisdiction, both of which are in the State. The State owns the precious metals, as she owns the flowed lands, by the same right, and upon the same principles, and as the original thirteen States owned them. (9 Por. 591; 10 Pet. 736 ; 3 How. 212; 17 Id. 542; 3 Kent, 425, 427, 401, Note 0; 1 Com. 220, and authorities referred to by Judge Heydenfeldt.) 2. California was admitted on an equal footing with the original States, and without these sovereign rights she would not be an equal, but an inferior. 3. It is too late now to deny the ownership of the State, as the Federal Government has always admitted it—by its legislation in some instances, its failure to legislate in others, and by its whole public policy on the subject. a. In the Act admitting California, the Federal right to the public lands is reserved, but no mention is made of the mines, although it was contended in debate that the omission of the mines was an abandonment of them to the State. b. By subsequent legislation and exercise of ownership over the public lands, carefully and expressly exempting the mines from the operation of her land laws, thereby leaving them to the control of the State. c. By the long acquiescence of the Federal Government in the case of Hicks v. Bell, in which this Court decided five years ago, (and have reaffirmed the same principle at almost every succeeding term up to this time,) that the mines were the property of the State. d. By its acquiescence in the operation of the same principle by the legislative department of this State, from the meeting of the first California Legislature to the adjournment of the last. (See Statutes of the State.) The only point of difference between the adverse counsel and myself in the oral argument was, as to the capacity of the Federal Government to take the proprietary right to the mines under the treaty, and to hold them in trust' for the new State; he contending that she could not, and hence they vested in Fremont by operation of law, and upon the principle that the common law will find an owner for everything of value. But, an examination of the case of Pollard’s Lessee v. Hagan, will show, that the United States may take and exercise the rights of eminent domain and municipal jurisdiction in the territories, and the rights of property incident thereto, until the creation of a State, whereupon those rights, sovereign and proprietary, vest in the new State. This point is expressly settled in the case of Goodtitle v. Kibbe, (9 How. 471,) which forever disposes of the question. The opinion of the Court overruling Stokes v. Barrett, (5 Cal. 86,) and Tartar v. Spring Greek Co. is correct. The Act of April 20th, 1852, did not give permission to all persons to work the mines on public land in the possession and enjoyment of another for agricultural purposes, as is said in the former case. The whole scope of the Act is to give a remedy to maintain and defend possession of the land. The proviso in Section 1, in regard to the mines, gave no right to the settler, but was intended to guard a pre-existing right in the public, to wit: a right to work the mines of precious metals, whenever and wherever found, in public or private lands. The only effect of the proviso is, by declaring the law, to relieve the Court from the necessity of inquiry upon that point. Without the proviso, the law would be precisely the same. Halleck, Peachy & Billings, and Gregory Tale, also, for Appellant. I. The Laws of Spain and Mexico recognize two distinct interests in land — an agricultural or pastural interest, and a mining interest. The first is described as a property in the surface, (la propiedad del suelo,) and the other as a property in the mineral, (la propiedad de la mina.) Both of these interests, in the substance of which the earth is composed, are considered as interests in land, or real estate, and as corporeal hereditaments ; and both belong to the class variously denominated in Spanish law, “bienes raíces,” “fundos,” “heredades,” “tierras,” “posesiones,” “predios,” which are the equivalents of the common law term, “land.” A mine is, in Spanish law, as much land as any other part of the earth’s substance. (Gamboa, Heathfield’s Translation, Vol. 1, p. 30; Vol. 2, pp. 258, 265; Lares, Derecho Admin. 87, 93; Rockwell’s Spanish and Mexican Law, 135; Recopilacion de Indias, b. 9, Tit. 27, Laws 31, 32, 34.) II. These rights, or interests in lands, were not only regarded as distinct in their nature, but they were acquired, held, and transferred, by separate and distinct titles. The first kind of interest, or a property in the surface or soil, was conveyed by the sovereignty to individuals, or to corporations, by deeds of purchase, by grant, or by gift; that is, for a pecuniary consideration, for services rendered, in colonization, or as a gratuity. So, also, of the second interest, or a property in mines; it was conveyed by registry of discovery, by denouncement for non-working, by sale, by contract, or by special gift. (Gamboa, Commentaries, Vol. 1, p. 139; Rockwell’s Spanish and Mexican Law, 50, 51, 72, 76, 170, etc.; Ordenanzas de Mineria, 69, 70, 72, 73, 79, 114; Escriehe, Dic. Verb. Mina.) III. Every grant or title of the property of the soil for pastural, agricultural, or domestic, purposes, was subject to the reserved rights of the government in the minerals found in the ground—the mining right and its incidents—which were paramount. So of a mining grant; it conveyed no rights to the surface or soil, other than those incident to the mine itself. The agricultural or pastural grant, (or title to the soil,) could not prevent or interfere with a mining grant, (or title to the minerals,) in the same parcel of land; nor could such grant, or title to the minerals, prevent or interfere with a grant, or title to the surface, for other purposes. As already stated, one was a surface property, and the other a subterranean property. (Lares, Derecho Adm. 87; Ordenanzas de Mineria, 75; Gamboa, Com. Vol. 1, p. 25.) IY. In order that the owner of one interest might exercise his rights of ownership without interfering with the rights of ownership of the other interest in the same land, regulations wore established for the exercise of these respective rights of property. Thus, there was the reserved right of entering upon land granted for agricultural purposes, to search and dig for minerals, and, if any were found, a reserved right to use a certain portion of the surface for the purpose of extracting and working the ores. But, in making such search for minerals in the ground, the vines, crops, fruit trees, buildings, etc. of the surface owner, were not to be injured; and if, in working mines so discovered, damage resulted to the surface owner, he was entitled to be remunerated by the mine-owner, or mine-worker, for such damages, after having it assessed in the manner provided by ordinance. In other words, all grants of land for agricultural, pastoral, or domestic, purposes, were subject to the reserved right of the government to the mines in such land, and to such portions of the surface appurtenant as might, in the discretion of the government, be necessary to their possession or working ; and all grants of mines, however made, carried with them only so much of the surface of the land, as, under the regulations of the government, was made an appurtenance thereto. These pertinencias, or appurtenances, were incident to the mines, and always went with them; they were of the same dignity as the right to the mines themselves, and were, in fact, regarded as a part of them. (Lares, Derecho Adm. 93; Ordenanzas de Mineria, 74, 75.) Y. The grant, (by the Mexican Government,) to Alvarado, of the Mariposa Bancho—whether it bo regarded as a sale, a grant in remuneration for services, or in colonization, or a pure gift—whether it was an inchoate or a complete title—whether a mere equity, or in full property—was a grant of the soil, or surface, (la propiedad del suelo,) and not a grant of the minerals in the ground, (lapropiedad de la mina;) it was a grant for agricultural, pastoral, and domestic, purposes, and not a mining grant, for digging ores and extracting minerals. It was, therefore, subject to the right of the government to such minerals as were, or might be, discovered in it, and to the appurtenances incident to such mines. This doctrine was established in Spain centuries ago. (Partida 2, Law 5, Tit. 15; 1 Gamboa, 17; Rockwell, 124.) It follows, then, that the property of the mines and their appurtenances, in the Mariposa tract, remained in the Mexican Government, and was not conveyed to Alvarado; he acquired by his grant, under the Mexican laws, no right or claim, to them. The title which he conveyed to Fremont was that which he had received from the Mexican Government, and none other. When California was ceded to the "United States, Fremont held a title, or claim, to the surface, of ten leagues of land, and the Mexican Government still retained the ownership of the mines in the ground covered by Alvarado’s grant, and of their appurtenances. This was the legal condition of the parties at the date of the cession. (Vide, also, Lares, Derecho Adm. 87.) YI. We now come to the question, in what manner was this property or ownership, which the Mexican Government then had in these mines, disposed of? When, and to whom was it conveyed ? or what became of it when the sovereignty was changed, and California passed from the Eepublic of Mexico to the United States? Two solutions have been given to this question. The first, that this property in the mines, belonging to the government of Mexico, passed, by the treaty of cession, “ with all other public rights, to the United States.” (Fremont v. United States, 17 How. 565.) The second solution is, that these minerals belonged to Mexico, not as public property — a right of property in the nation—but as a part of its jura regalia, which, on the admission of California as a State, pertained to the State in virtue of its sovereignty. The latter view is held in Hicks v. Bell, (8 Cal. 225,) and the former by Mr. Justice Burnett, in the opinion delivered in this case on the former hearing. 1. On the supposition that they passed to the United States: If the first solution be correct, we must next inquire whether the proj>erty in these minerals, which thus passed to the United States, remains so vested in them, or whether it has been conveyed to Fremont, and if so conveyed to Fremont, when and how was it passed by the United States to him ? Certainly not by the action of the Commission, for that tribunal could only confirm or reject the title which he had set forth in his petition, and which he had derived from Mexico; its decree could not go beyond the original title thus presented. It certainly was not passed by the decision of the Supreme Court, for Chief Justice Taney says, in that decision, “The only question before the Court is the validity of the title, and whether there be any mines on this land, and if there he any, what are the rights of the sovereignty in them, are questions which must be settled in another form of proceeding, and are not subjected to the jurisdiction of the Commissioners, or the Court, by the Act of 1851.” If, therefore, it passed at all, it must have passed by the ¡latent, which was issued in virtue of that Act. But if no new rights were subjected to the jurisdiction of the Commission, or the Courts, by that Act—if they could not entertain the question of a right to the minerals in this land, and if the patent was based on the final decree in that proceeding, and derived all its force and effect from the proceeding and final decree under the Act, how could it convey any additional title to the claimant? The effect of this final confirmation, and of the patent under it, was merely to give “ new assurances ” of the validity of the title which he already held—to make complete a title which may have been inchoate—to make legal what may have been only equitable— in fine, to perfect what Mexico had intended to perfect, but may have left incomplete. That the law of March 3d, 1851, was intended merely to confirm existing rights without conferring new ones—to give “new assurances” of validity to titles already held by claimants, and not to confer upon claimants property to which they had no title—is evident, not only from the words of the law itself, and the construction put upon it by the Supreme Court, hilt, also, from the entire tenor of the discussions in the United States Senate when the law was passed. Rot a single Senator regarded this law as conferring upon the claimants any new title to property, and all regarded the patent to be issued oil the final confirmation of the claim as simply evidence of such final confirmation. (Congressional Globe and Appendix, Vol. 23, pp. 427, 429; Fremont v. The United States, 17 How. 565.) We come to the question of the right of Fremont to eject, as a trespasser, any one who enters upon the land to search for or work these mines. There can be no question that the United States, or any one having a vested interest in the minerals in this land, has a right to search and dig for them, as necessary incidents to such property or vested interest; for, the ownership of the mineral would he worthless without the right to extract it. It has been decided, by the highest authority, that the owner of mines in the lands of another, has a right to enter and work them, “ without the concurrence of the owner of the surface.” (Rockwell, 520; Earl of Cardigan v. Armitage, 2 Barn. & Cres. 197; 3 Durnford & East, 414.) Moreover, the owner of the mines may license a third party, and the party licensed may do what the principal could, and no more. The granting of such a license would be no injury to the owner of the surface, ánd a benefit to the owner of the mineral. The right to give the license, therefore, cannot be denied. But has any such license been issued ? and, if not, how can the defendant in this case exercise a right which, by hypothesis, belongs to the United States, as principal, to whom the defendant does not hold the relation of agent ? So special license from the United States to the defendant is alleged in this case, nor is it pretended that any general license, or public dedication of the use of these mines, has been made by Act of Congress. Can the mere permissive use of them to-the public, since the acquisition of California, be construed as a general license ? Can this, of itself, be regarded as vesting in the public such an interest, or right of use in the minerals, as to carry with it the right to enter upon private land tor the purpose of searching and digging for them? It must be admitted that these questions are not without their difficulties, and, in order to obtain a proper solution, we must recur to the laws of Spain and Mexico. Philip II, after vesting in the crown all mines, “ wheresoever situate, and whether in public or private ground,” granted permission to all persons, whether natives or foreigners, to search for mines, and declared that “they shall be theirs in right of possession and property,” subject to the laws with respect to working, and the payment of duties. (Recop. de Castile, Law 4, Tit. 13, b. 6, and Law 5, Tit. 13, b. 6.) And in the Indies he authorized all his subjects “to work mines freely and without impediment, and making them common to all persons wheresoever situate.” (Recop. de Indies, Law 1, Tit. 19, b. 4.) When Mexico acquired her independence of Spain, it was considered that the new State was vested with all the rights of the crown of Spain, with respect to mines. The ownership of all ungranted mines was, therefore, regarded as vested in the nation, subject to the general right of the public to search and dig for them, “whether in public or in private ground,” as had already been granted by the crown of Spain, and the right of individuals to acquire private ownership in particular mines in the manner provided by the laws and ordinances in force. Moreover, the titles acquired by individuals wore considered as derived from the nation, and as of the same character as when derived from Spain, that is, conditional—limited titles—subject to denouncement and defeasance, and on defeasance they reverted to the nation. (Gamboa, Com. Vol. 1, p. 28, etc.; Rockwell’s Spanish and Mexican Law, 133, etc.; Lares, Derecho Adm. 91—93; Decretos, Oct. 7th, 1823, and March 11th, 1842; Ordinanzas de Mineria, 68, etc.) But it is said that this right of entry upon private lands for mining purposes, was conditional, upon the payment to the owner of the land, the damages consequent upon the entry, and that, without the payment of such damages, no right of entry existed. Neither the right of entry upon private lands, to search for mines, nor the title acquired by registry, or denouncement of mines, discovered in private lands, was conditional upon the payment of damages; nor did any forfeiture result from a refusal to pay such damages when properly assessed. When the “damages which immediately follows” to the surface of private lands had been assessed in the manner provided by the ordinances, and the mine-searcher or mine-owner refused to pay them, the remedy was by execution, as in any other case of judgment debt. (1 Gamboa, 133—135.) Such 'was the condition of this class of property in Mexican territory, and such the relative rights of the government, the people, and private individuals, respecting it, when the sovereignty of California was again changed, and the United States acquired it as “ ceded conquered territory.” (Cross et al v. Harrison, 16. How. 191.) Did this second change of sovereignty have an effect different from the first upon the relative rights of the government, the public, and individuals, with respect to mines, whether in public or private lands ? This question may be considered in two aspects: 1st, with respect to the rights of individuals inter se, and, 2d, with respect to the government as the-owner of ungranted mines, and the rights and uses which had been vested in the public by the former sovereignties. 1. A change of sovereignty does not, per se, affect the rights of individuals in their relations with each other. The relative rights of the individual land-owner, and the individual mine-owner, or mine-searcher, are, therefore, prima facie, the same after as before the conquest and cession. Any change of the laws regulating these rights does not affect the rights themselves. 2. If the governments of Spain and Mexico had granted, or dedicated to the public, certain rights and uses in minerals, lands, or other property, of such governments, the transfer of the title of such property to the United States, would not, per se, destroy these rights and uses. On the contrary, this title, or ownership, is still, prima facie, subject to these rights, and charged with these uses. Even admitting that they may be extinguished, it must be shown that they have ceased by the expressed will of the new sovereignty, or because they are repugnant to its constitution, institutions, or laws. We see nothing in the character of these rights and uses repugnant to the Constitution and laws of the United States, and certainly Congress has not expressly abrogated them. It is proper here to distinguish between the right to search for and dig minerals, the public use of them as the property of the government, and the right to acquire individual titles to them by certain acts, as registry, denouncement, etc. It is not claimed that the law respecting the acquisition of private ownership in mines continued after the change of sovereignty; that law would necessarily cease without some express provision continuing it in force. We now come to the consideration of the action of the United States, as the owner of the minerals in public and private lands in California, with respect to their use and enjoyment; and we hold that, as far as the gold mines are concerned, that action has been a virtual confirmation of the dedication, or grant, of them to the public, made centuries ago by Spain, and recognized by Mexico as its successor, without, however, the obligation to pay to the government any portion of the proceeds. Such dedications are recognized both by the common and civil law, and may be made by the government or by individuals; they are good, although there may be no grantee in esse capable, at the time, of taking them, and may ho made by parol, as well as by writing, or by deed; they may be inferred from long use, and from the action or inaction, speech or silence, of the original owner, and from the various circumstances of their use by the public. (Bouvior’s Law Dio. Verb. Dedication; Town of Pawlet v. Clark, Cranch, 292; McConnell v. Lexington, 12 Wheat. 582; Barclay v. Howell, 6 Pet. 498; City of Cincinnati v. White, Id. 431; New Orleans v. United States, 10 Id. 662; Mayor v. Hopkins, 13 La. 331; De Armas v. Mayor, 5 Id. 148.) The length of time which property, of any kind, has been used by the public is, sometimes, an important item as evidence of dedication by the owner, but only to establish a presumption, or to prove the intention. Where the intention itself is evident, time is not an important element. (Bouv. Law Dic. Verb. Dedication; Daniel v. North, 11 East, 376, and Note; Antones v. Esclava, 9 Pet. 527; Blair v. Odin, 3 Texas, 288.) If the right to search and dig for minerals in public and private grounds had been granted forever to the public by Spain, and such grant was recognized by Mexico, that right remained in the public, notwithstanding the cession of California to the United States, and its exercise must bo regulated by the State and the people; the Federal Government cannot interfere. So, also, with respect to these minerals, when discovered, and when the mines are worked; if the use, subject to certain restrictions, belonged to the public at the time of the cession, and has ever since been tacitly permitted by tlio United States, it is only subject to be regulated or restricted by the State or people, and not by the Federal Government. The transfer of the legal title in these minerals, to the United States, may have enlarged these uses by removing the former restrictions upon them, by no longer subjecting them to the former right to acquire a limited individual ownership in parts of them, and by exempting those who worked them from the former government dues; but it could not extinguish the uses themselves; it could not destroy the rights which the public had in them before the cession. And these rights and uses must now be regulated by the State and the people of California, and not by the Congress of the United States; for, as such powers are not granted by the Constitution to the Federal Government, they are necessarily reserved to the individual States, and can only be exercised by them. (New Orleans v. United States, 10 Pet. 736, 737; Alemany v. The United States, Opinion Board Land Com. 609.) Where a mine had been reduced to private ownership, under the mining ordinances, the public use of that mine ceased, (except the public right to enter and reopen an abandoned mine, and to denounce it for non-working,) so long as it continued to be private property. This right of denouncement, although a part of the grant by Spain to the public, ceased on the change of sovereignty by cession to the United States, for our laws do not recognize such a proceeding as the general denouncement and defeasance of titles to property. But it may be said, that this grant, or dedication, of all mines to the public use, is entirely inconsistent with the right granted to individuals of acquiring an ownership in any particular mine. There is no conflict in the two grants, or rather, in the two classes of rights, conferred by the same grant. As before remarked, the uses granted to the public—the right to search for, dig, and work, mines—were made subject to the ordinances which permitted the acquisition of a limited private ownership of mines; which ownership, however, was subject to defeasance, and to the right of the public to denounce it for non-compliance with the ordinances on the part of the owner. The general ownership of all mines in the Crown, or State, the general uses in the public, and the particular right in individuals to acquire certain conditional limited titles to mines, were all parts of the same general system, and the rights of neither one were inconsistent with those of the others. 2. On the supposition that the mines passed to this State: We will now consider the second solution, viz: That these minerals did not belong to Mexico, as public property, but as a part of its jura regalia, or as an essential appurtenance to its sovereignty, which could pass to the United States only to be held in trust for the future State, and which, on the admission of California into the Union, on the same footing as the original States, pertained to the State in virtue of its sovereignty. (Hicks v. Bell, 3 Cal. 225.) We think the premises of this argument untrue, its reasoning, to say the least, very unsatisfactory, and the conclusion entirely too broad. The argument assumes that these minerals belonged to Mexico as a part of its/tira regalia, or as necessary incidents to its sovereignty. On the contrary, we think, mines were regarded as public property; they were held by Spain as the property of the Crown, and by Mexico is the property of the nation, in precisely the same way as the surface of the public lands was held as property. Gold and silver mines wore held in no different manner from mines of lead, iron, quicksilver, plumbago, and other metals, or salt springs, ponds, reservoirs, etc. All these were the property, under Spain, of the Crown, and, under Mexico, of the nation—public property. (Gamboa’s Com. Vol. 1, p. 15, et seq.; Rockwell's Spanish and Mexican Law, 124, et seq.; Recopilacion de Castile, b. 6, Tit. 13, Law 5; Recopilacion de Indies, b. 4, Tit. 19, Law 1; Ordenanzas de Mineria, 68.) If, then, the right of Mexico to mines in public and private lands was a right of property, and not merely a jura regalia, essential to sovereignty, and, therefore, following the sovereignty wherever it went, did this property pass to the United States by the cession of California, to be held by them as property, or merely to be held in trust for the future State ? This must depend upon the nature and character of the property itself. If it was of such a character as not to bring it‘within the delegated powers of the Federal Government, it was simply held in trust by the United States for the future State of California. But we can see nothing, in the character of the property in mines, which would preclude the Federal Government from holding it, any more than in holding the property of the surface, or soil. Both, as already stated, were properties in land—in the substance of which the earth is composed. "We are, therefore, of opinion that the legal title to both was vested, by the treaty, in the United States, to be held as property, but subject, nevertheless, to the uses which had previously been granted to the public, and that these uses are under the exclusive direction and control of the State, and cannot be interfered with by the Federal Government, notwithstanding it is the holder of the legal title in all ungranted mines in the ceded territory at the time of the treaty. But the solution of this question is not necessary in this case; for admitting that the State has succeeded to all the rights of Mexico in the mines of gold and silver in California, whether as property or as jura regalia, we cannot perceive that it changes the relations of the parties to this suit. The position of the plaintiff is the same whether the title to these minerals was vested in the United States, or the State of California. On neither supposition is the title in him. If they passed to the State, they were charged with the same uses to the public as if they had passed to the United States, and in either case these uses are to be regulated by the State, the Federal Government having no such municipal power within the limits of a State of the Union. As these mines have never been reduced to private ownership, they are still open to the public, for neither the State nor the Federal Government has ever attempted to extinguish the rights and uses granted to the public by the former sovereignties; on the contrary, both have recognized and permitted them. Moreover, the State has passed laws to induce the public to invest capital in the working of these mines, by regulating, inter se, the rights of individuals who have thus invested. "VII. Much has been said about the hardships of the decision of the Court in this case upon individuals who have purchased lands in this State on the supposition that they thereby acquired a title to the minerals in the lands so purchased; and this point has been urged in a most earnest and emphatic manner. We are unable to perceive this alleged hardship. There are no titles to lands in this State which were not derived either from Spain, Mexico, or the United States. " ¡Neither of these have attempted, by their grants or patents, to convey titles to the minerals in the land. In the grants of land by Mexico, the minerals therein were reserved by law and by the uninterrupted usage of centuries; and the patents by the United States on these grants do not purport to convey anything more than was granted, or intended to be granted, by Spain and Mexico. This the subsequent purchasers were bound to know. But it said the decisions of this Court in Stokes v. Barrett, (5 Cal. 36,) and Tartar v. The Spring Creek Co. (Id. 396,) have induced purchasers to believe that by purchasing titles to land, "they also purchased titles to the mines in the land, and that thus having “ bought the lands, and invested their money,” under “ the rule of property ” thus established by judicial decision, “the rule must be stare decisis.” We are unable to perceive any substantial grounds for such an inference. There is nothing in either of the decisions above referred to, from which these purchasers had any right to infer that, in buying titles to lands in California, they also bought titles to the minerals in such lands. .On the contrary, we think, this Court had signified its opinion that the minerals were not included in such titles. In none of these cases was it intimated that a title to land, like this of Fremont’s, included the mines in the land. It has been held by this Court, that miners upon public land, were not authorized “ to invade for mining purposes a town lot, built upon and used as a tavern and stable yard,” or to divert a stream of water, to the injury of a mill-owner on the same stream, and it has affirmed a judgment for damages to such mill-owner; and it cannot be doubted, that this Court will hold miners upon private lands, responsible for all consequential damages done to the owner of the surface. It has already been shown that the Mexican laws recognized the right of the surface owner to such damages, and provided for their assessment and recovery. The repeal of the Mexican laws may have changed the remedy, but it has not destroyed the right. If our statutes are defective in this respect, they may be amended, or relief may be afforded by the equity side of the Courts. We, however', can perceive no difficulty in this matter. In the English law and system of pleading, a distinction is made between these different kinds of damages, and the different remedies to be applied. Thus, the injuries resulting from an unauthorized entry are direct, and the subject of trespass; but, if authorized, there is no trespass, and the injuries are consequential, as distinguished from direct, and the remedy is case. This distinction in pleadings does not exist with us; but it by.no means follows that our system allows no remedy in such cases. (Collier’s Law of Mines, 83; Scott v. Shepperd, 1 Smith’s Lead. Cases, 210; Rush v. Heinman, 1 Bos. & Pul. 404.) The grant to Alvarado was not as owner “ in fee,” for fees are not known to the Mexican law; it was as “owner in property” ■—dueño en propiedad—la propiedad del. A fee simple to land in England, does not necessarily include the mines in that land. (Barnes v. Mawson, 1 Maule & Sel. 82.) A may therefore hold a fee simple in land, and B a fee simple in mines beneath the same land. A may take livery of seizin of one, and B of the other; A may have a perfect estate of inheritance in one, and B in the other. The widow of A may be dowable of the land of A, and the widow of B, of the mines of B, in the same land. Notwithstanding the common idea of the English law, that property in land extends from the center of the earth to the heavens, it is well settled that this property need not be held by one person, or under the same title. The English law recognizes the same general division of property in land, as that established by the Spanish and Mexican law. (Rockwell, 520, 530, 534, 536, 537, 543, 548, 550; Comyn v. Kyneto, Coke Jac. 150; Jones v. Maunsell, 1 Douglas, 305; Stoughton v. Leigh, 1 Taunt. 402; Field v. Beaumont, 1 Swans. 304; Boyce v. Green, Batty, 508; Rowe v. Grenfel, Ryan & Moody, 396; Rowe v. Grenfel, 21 Eng. Com. Law, 470, 471.) The general rule of English law is not disputed; but the rule itself is, as already shown, by no means universal, even in England. Whole districts of country are not subject to it, and in other districts there are numerous exceptions which destroy its universality. Moreover, a title to land in England, with actual possession of the surface, is not always even prima facie evidence of title to minerals in the land. (Thierry’s Hist. Norman Conquest of England, passim; Collier on Mines, 18, et seq.) It is, therefore, not true that the Courts of England have recognized any such universal rule, as that the land-owner is the owner of everything on and in the land, and that an entry upon private lands fo