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.
*315A 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 *316myself 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 *317in 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 *318property. 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 *319acquired 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 *320mines 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 de*321cided, 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 *322them, “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.
*3231. 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, *324of 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, *325they 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, *326to 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; *327for 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 ” *328thus 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 *329fee 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 for mining purposes is an invasion of private rights —a trespass. Nor has any such universal rule been adopted by the American States. (Kent’s Com. Vol. 3, p. 378, Note; N. Y. Revised Stat. Vol. 1, p. 322.)
Other authorities might be referred to, showing that this division of property in land—that one person may have a property in the surface, and another a property in the minerals under the surface—is recognized in the United States as well as in England, or in Spain and Mexico.
To resume the argument in behalf of Appellant, our points are:
1. The laws of Spain and Mexico recognize two distinct inter*330ests in land: an agricultural or pastural interest, and a mining-interest.
2. These interests were held and transferred by distinct titles.
3. All grants for agricultural, pastural, or domestic, purposes, were subject to the reserved rights of the government to the minerals in the land, and the use of so much of the surface as might be required for the working of these minerals.
4. Grants of mines carried with them, as incidents appurtenant, the use of certain portions of the surface, but did not prevent a grant of that surface to individuals for agricultural, pastural, or domestic, purposes.
5. The laws of Spain and Mexico regulated the enjoyment of these separate intorestsdn the same land, so that the exercise of the one ownership should not interfere with that of the other.
6. The grant to Alvarado was a grant of the surface, for agricultural, pastural, and domestic, purposes, and did not convey to him any right to the minerals in the land.
7. The patent issued by the United States to Fremont, neither conveyed, nor was intended to convey, anything more than what the Mexican Government had conveyed, or had intended to convey, to Alvarado.
8. The King of Spain granted permission to all persons to search for mines and to work them freely and without impediment, making them common to all, wheresoever situate, and whether in public or private ground.
9. These grants to the public included the right to acquire individual ownership in particular mines, according to the ordinances, and the uses thus granted to the public were limited by the reserved right of the crown to confer such individual ownerships.
10. These general grants did not separate the mines from the royal patrimony,, for the legal title still remained vested in the crown, the grants being in use and not in property; but grants to individuals, or titles acquired by individuals, in particular mines, were both in property and possession, the crown retaining only its alto dominio, or right of eminent domain; on denouncement and defeasance of these private ownerships, the legal title reverted in the crown.
11. These several interests in mines—the legal title in the *331crown, the right of the public to search for and work ungranted mines, the right of the crown to confer, and of individuals to acquire, private ownerships, with the right of eminent domain still remaining in the crown—wei-e perfectly consistent with each other, and were all defined and regulated by the mining ordinances.
12. When Mexico became an independent State, she recognized these general grants, adopted the same system of property in mines, and continued in force the same general laws relating thereto, the republic or sovereignty of the nation, being regarded as succeeding to the rights and obligations of the crown of Spain.
13. If the legal title to the mines in California passed from Mexico to the United States, and is still vested in the United States, it was, nevertheless, subject to certain rights and charged with certain uses in the public, which rights and uses must be regulated by the State, and do not come within the constitutional powei’s of the Federal Government, after California was admitted into the Union on an equal footing with the original States.
14. If the legal title to these mines has passed to the State of California, by virtue of its sovereignty, it is, nevertheless, subject to the same rights, and charged with the same uses in the public, as if it were still vested in the United States.
15. On neither of these suppositions is the title to the mines in the plaintiff, as the owner or lessee of the land under the granito Alvarado, and the patent to Fremont; and, on either supposition, certain uses in these mines are in the public.
16. In either case, the entry of defendant was authorized, and not a trespass, and, although he may be liable to consequential damages, he is not liable to direct damages, and cannot be ejected.
17. Even admitting that the United States patent vested in plaintiff’s lessor a fee simple title, which, by the English common law, would carry with it the presumption of ownership of everything in the land, this presumption is, according to the decisions of English Courts, rebutted by the fact that plaintiff has never been in the possession and enjoyment of these mines, and, therefore, he cannot recover in this suit.
18. The English common law, and the English Courts, recog*332nize distinct ownerships in the surface of the earth and in mines under the surface, both of these interests being regarded as real estate, as corporeal hereditaments, as land; the adoption of the English common law in California, therefore, does not render these distinct ownerships, or interests in land in this State, inconsistent or incompatible, nor does it make the owners of land in California necessarily, and of consequence, the owners of the minerals in that land.
19. The decision of this case, on the former hearing, is consistent with the character of plaintiff’s title, and the rights of the parties, as defined by the Mexican laws, from which they were derived, and as recognized by the laws of the United States, and of this State, under which they are to be enjoyed, and by which they are to be protected and enforced.
Misha Cook, also, for Appellant, argued the ease orally.
Seydenfeldt and Baldwin, for Respondent.
1. The ownership of mines claimed by government appertains to sovereignty, prerogative, or eminent domain. (Rockwell, Preface, 23, 49, 55, 112—115, 122, 129,131, 132, 149, 152; 1 Blac. 249, et seq.; Plowden, 336; Hicks v. Bell, 3 Cal. 219; Bainbridge, 40.)
2. The claim to mines was seized by sovereigns for revenue purposes, contrary to the existing law at the time of seizure. (Rockwell, 23,124—127,141,150,156, 161, 370, 392,407; 1 Blac. 240, et seq. to 295.)
3. United States have no local sovereignty; no prerogative rights; no eminent domain; no rights of revenue, except those granted by the Constitution. (New Orleans v. United States, 10 Pet. 735, 736; Pollard v. Hagan, 3 How. 220, 223, 225, 229; 1 McLean, 347; U. S. Const.; Smith’s Com. Sec. 180, et seq.; Opinion of Com’r Hall.)
4. If the United States had title, it is divested by her patent. Every grant is taken most strongly against the grantor, except the sovereign. The United States is but an individual proprietor. (Bainbridge on Mines, 11 -; Hicks v. Bell, 3 Cal. 219; 18 How. 40; Act to Settle Private Land Claims, etc. Secs. 13,15; Wood’s Dig. 753; 2 Blac. Com. 19, and Note; Bourne v. Taylor, 10 East, 205.)
*3335. The Mexican system did not divest title—required discovery, denouncement, trial, and indemnity. (Rockwell, 115,127, 38, 50, 51, 53, 162—164, 166—170, 377, 384; United States v. Fremont, 17 How. 565.)
6. The Mexican law was political—passed away with the conquest; that system is contrary to the policy of our government; there was at its expiration no sovereign to take; the prerogative was abolished; the subject of it followed the lex natural. ( United States v. Fremont, 17 How. 564; People v. Folsom, 5 Cal. 373; 1 Pet. 543.)
7. State licenses cannot be implied to enter upon private property. (Lyddal v. Weston, 2 Atkyns, 19; Stokes v. Barrett, 5 Cal. 36 ; Tartar v. Sp. C. W. & M. Co. Id. 396.)
8. Apart from the claims of the Crown, the property in minerals is prima facie in the owner of the fee. (Collyer on Mines, 2, 3; 2 Blac. 18.)
9. A deed is equally necessary to the conveyance of a right to dig for minerals. (Bainbridge, 74—86; 2 Blac. 121; Brewer v. Hill, 2 Aust. 413; Hewlins v. Shippan, 5 B. & C. 229; Wood v. Leadbitter, 13 M. & W. 838; Perry v. Fitzhow, 8 Q. B. 757; Bryan v. Whistler, 8 B. & C. 288; Cocker v. Cooper, 1 C. M. & R. 418; Wallis v. Harrison, 4 M. & W. 538.)
B. W. Perley, also, for Respondent.
I. The United States, in the various acquisitions she has made of territory, from the old States, and from foreign governments, has never claimed either as sovereign, or as proprietor, any right to the mines within the limits of a private grant.
In support of this proposition, I quote from the argument of Mr. Robert J. Walker before the United States Circuit Court of the District of Columbia, in Walker v. Eldridge: “ How, what has been the uniform policy of the United States, with regard to mines on the lands of individuals embraced in territories ceded to the United States by some one of our own States, or by foreign governments ?
These cessions were mainly as follows:
1. By Hew York to the United States, in 1781.
2. By Virginia, of the Horthwest Territory, in 1784, embracing all the present States of Indiana, Illinois, Michigan, Wis*334consin, and also Ohio, except the western Connecticut reserve in that State.
3. Cession by Massachusetts, in 1785.
4. The western reserve of Ohio, ceded by the State of Connecticut to the United States, in 1786. This cession, embracing nearly one-fourth of the State of Ohio, included, not only all the territory, but all the jurisdictional claims of the State of Connecticut within the limits of that reserve.
Mow, in all these five great States formed out of the northwestern territory, neither whilst States or territories, did the United States ever claim any mine on any tract of land which had become private property preceding the cession, whether by a prior French or British grant, or by grants made by Virginia or Connecticut; yet, in all these cases of cession, (unlike the Mexican treaty,) there was a transfer to the United States, not only of the public domain, but of jurisdiction, also; yet, these States contained most valuable mines of coal, iron, copper, lead, and other minerals. In many of these cases, these mines were upon private grants, where the previous government, or sovereignty, reserved rights over mines quite as stringent as those of Mexico.
5. Cession by South Carolina to the United States, in 1787.
6. Cession by Uorth Carolina, in 1789.
This was a cession of soil, sovereignty, and jurisdiction; it included the whole of the present State of Tennessee, over whose public domain Congress exercised its disposing power for many years. By the cession, all previous valid grants to individuals were confirmed. Some of these grants emanated from Great Britain, and some from the State of Uorth Carolina.
Many of these previous private grants included mines of coal, iron, copper, and gold; yet, such mines on private grants were never claimed by the United States, but when mines were located on the public domain, of which the United States became a proprietor, in selling these lands which they transferred, as ‘ public lands/ always so designated in all the Acts of Con» gress, this government always claimed the right to sell the mines also, not as mines, distinct from the lands, but as included in the term, ‘pmblic lands.’
In no instance has Congress ever claimed any mine on any private grant, nor on public lands by any separate title to the *335mines, but only as proprietor of the lands, as public lands, and as well in regard to public as private lands, the mining laws of the ceding country have never been supposed to apply.
7. Cession by Georgia to the United States, in 1802.
This cession, including a transfer of soil and jurisdiction, embraced the whole area included within the present States of Alabama and Mississippi, north of the 31st parallel.
This cession confirmed previous Georgia titles, as also many grants conveying millions of acres, which had emanated from the government of Spain, as also from the British Government of West Florida.
These lands included in some of the confirmed grants, contained valuable mines of coal, iron, and gold, but still no claim to such mines on private grants was ever made by the United States, nor was any relinquishment of them deemed necessary.
Yet, wherein could the right to mines embraced within such British or Spanish grants differ from the right to mines included within the present Mexican grants; these grants were confirmed by Boards of Commissioners created by Congress, or when perfected by the cession from Georgia, recognized by the Board of Commissioners; yet Congress never claimed the right to any such mines included in such grants, perfect or imperfect.
8. Treaty of 1803, ceding Louisiana to the United States.
This was professedly a concession of soil and sovereignty; as to the rights of property the grantees were similar to those in the Mexican treaty. Under the Louisiana treaty, many millions of acres covered by Spanish grants were held to be confirmed by Boards of Commissioners, or by the treaty itself, or by the laws of nations.
These Spanish grants, thus confirmed or recognized, included most valuable mines of coal, iron, copper, and lead, located in Louisiana proper, Arkansas, Missouri, Iowa, and Minnesota, yet the United States, during a period of more than half a century, have never pretended to claim any mine on the grant of an individual. Yet these Spanish grants, so far as mines are concerned, rested on the same reserved rights to the mines in the government of Spain, as is now claimed in regard to mines to have been vested in the government of Mexico.
9. The treaty of 1819, by which the United States acquired Florida and Oregon from Spain.
*336Some of these lands held under former Spanish grants, contained mines of coal, iron, copper, and gold; yet it never occurred to Mr. Adams, who negotiated the treaty, nor to President Monroe, nor to Secretary Crawford, nor to the American Government, that Congress, as successor to the eminent domain, could claim any of these mines on private grants.
This discovery, as an original suggestion, was reserved for Mr. Ewing, the Secretary of the Interior, in 1849; but it received no response from Congress, nor was ever renewed by Mr. Ewing or any of his successors. It never was applied to California, as it never had been applied under any preceding cession during a period of three-fourths of a century. This right to mines on private grants could never be claimed except by Congress, and no such claim having been made in regard to such mines in California, although their attention was especially called to the subject, any such claim, if it ever could have been made, must be regarded as abandoned, especially in regard to perfect Mexican grants, which required no confirmation from any Board of Commissioners.
And is it not strange, if the new doctrine had any foundation in fact, that it never occurred to the first great Secretary of the Treasury, Alexander Hamilton ? Our land system was organized by this great man, under the Constitution. Our public domain, received by cessions from Massachusetts, New York, Connecticut, South Carolina, Virginia, and North Carolina, embraced an area larger than all the original Atlantic States. It was known to be rich in a great variety of mines. It was covered by State grants, by British grants, and by French and Canadian grants; yet in putting into operation our land system, it never occurred to Mr. Hamilton, nor to President Washington, nor to Congress, to claim mines on the lands of individuals; yet that was a period when our wealth and numbers were small, when we were assuming the State debts incurred in the war of the Eevolution, and when a resort to every practicable source of revenue was required to sustain the public credit and maintain the government; yet it never occurred to the men of the revolution to commit this spoliation upon private rights, by claiming under some regal or sovereign prerogative, or right of eminent domain, the mines on the lands of individuals.”
*337II. By the civil law, mines within the boundary of a private grant, originally belonged to the owner of the land; afterwards, the mines were seized upon under various pretenses by the sovereigns of Spain, and claimed as royal prerogatives, and Mexico, adopting the despotic ordinances of the Spanish Kings, claimed the right to mines in the same manner, as part of her jura regalia, alto dominio, or right of eminent domain. (Rockwell on Mines, 114, 115, 124, 126.)
III. All these prerogative laws of Spain, Mexico, etc. in regard to mines, being inconsistent with the public policy of the United States and with the rights of its citizens, were annulled by the conquest. The civil law became necessarily revived, and the ownership of the mines followed the grant. (Ordinanzas de Mineria, 1783, Tit. 1, Arts. 1, 2, 9; Rockwell, 112; Escriche Diccionario, Vol. 2, Minas, 593 ; Decree of 1805; Escriche, Tit. 2, 596; Law of April 11th, 1849; Zamora Legislacion, Ultramarina, Suplt. Vol. 6, p. 183; Tit. 6, Art. 14, Ordinanzas de Mineria; Rockwell, 53; Ordinanzas de tierras y aguas, Ed. 1851, p. 31.)
IY. On the acquisition of California, the United States took the public land as proprietor, and not as sovereign. All the mines of gold and silver on the public lands, became the property of the government, and passed, not as mines, separate and distinct from the land, but as public land, and all mines on private grants passed to the owners of the grants.
Y. The State of California, on her admission into the Union, did not, and could not, acquire any of the sovereign prerogatives of Spain or Mexico, in mines, either on public lands or on private grants; neither was she capable of acquiring any of the royal prerogatives of the King of England at common law.
California having acquired her pretended sovereign right through the United States, could not take any greater right than the United States had capacity to take and hold for her in trust. The mines, or rather the power to grant mines, was a “royalty,” a seignorage of the King of Spain and among the regalia, a right appertaining to the eminent domain. The United States could neither claim nor exercise any such authority, and the case of Pollard’s Lessee v. Hagan, (3 How.) must be overruled before any such right can be successfully maintained.
*338The Federal Government could not add to its powers by treaty or compact; it could not acquire or exercise any of the royal prerogatives of Spain or Mexico in mines or the granting of mines on private property, and it follows that any sovereign right of the State of California, deduced through this source, must inevitably fail, for if the United States could not acquire it, it is too clear for controversy that they could not hold it in trust for the State of California, or for any other purpose whatever.
Can the State of California exercise any of the royal prerogatives of the King of England at common law ? Can she claim the mines of precious metals by virtue of any authority derived from this source? I maintain that she cannot, and that the common law has no bearing or influence whatever on this subject. The whole sovereignty of the State of California is vested in the people, and all the powers of the government are derived from the Constitution, which is the fundamental law. All power not granted, is withheld. The common law was not adopted as a part of the Constitution; it was made “the rule of decision,” by a legislative Act, passed April 13,1850, so far as it was not repugnant to, or inconsistent with, the Constitution of the United States, or the Constitution or laws of the State of California.
The territory "of California was never under the jurisdiction of England. English law was never extended over it until the passage of the Act of 1850; and then, only as a'“rule of decision” in civil or criminal cases, and not as the foundation of any political or governmental powers.
This territory was a province of Mexico, and was governed by the civil and Mexican laws at the time of the conquest. The United States, on acquiring the territory, did not introduce the common law, for neither their government nor their Courts have any common law jurisdiction. The State cannot derive any common law authority from, or through, the United States. She must rely upon her own legislative act, and the question then arises: Can the government of a State .acquire, by mere legislative act, any .of the attributes of royalty, or any political or sovereign prerogatives ? If it can, it might assume royal and kingly powers, and overthrow the Constitution altogether. For the prerogatives of the King, see 7 Coke, 16; 11 Id. 88; Hale’s Hist. P. *339C. 192; Carter, 90. The same prerogative of the King which gave him the precious metals, also gave him the mines of copper, tin, iron, and lead, wherever they were found intermixed with the royal metals.
In the opinion delivered in this case, Mr. Justice Burnett, in considering the reserved rights of Mexico to the mineral in private property, says: “ This right of Mexico was a public right— a right of property in the nation.”
I think that no authority can be found in support of this last proposition, and that all authority contradicts it. If the doctrine could be sustained, the clear and unavoidable result would be, as I shall show hereafter, to yield up to the grantee all the gold in his grant. The argument and deduction is this:
The right of Mexico in the mineral, says Judge Burnett, was not a right of sovereignty; therefore, it did not pass to the State of California on her admission into the Union. It was a right of property in the nation, and as such, passed to the United States, but as the United States did not, on the admission of California into the Union, reserve anything but the “public lands,” her right must have passed to the grantee; but, if this is not so, her right of property unquestionably passed to the grantee, on the issuing of the patent, conveying all her right, title, and interest, to the land, without reservation. The rights of Mexico in the mineral, both on the public lands and on private grants, were not mere rights of property, but wore political and sovereign rights, and the United States did not succeed to these rights of sovereignty, as they wore annulled by the conquest.
The case of Hicks v. Bell. (3 Cal.) ought to be overruled, as far as it has any bearing on the case before the Court, for the following reasons:
1. Because there was no question before the Court as to the right of the State of California to the gold on private grants. It was a contest between the parties as to the right to a mining claim on the public land of the United States. The learned Judge who delivered that opinion, says: “The gold and silver on the public lands are as much the property of the State, by virtue of her sovereignty, as are similar mines on the lands of private citizens.”
Row, the case before the Court did not call for an opinion on *340that point. It was not the question argued, or upon which the Court had a right to pronounce a judgment.
2. Because it is not only wholly unsustained by any authority, but is absolutely suicidal in its reasoning.
The learned Judge further says, in his opinion: “ That the several States of the Union are entitled to the jura regalia, which pertained to the King at common law.”
The proposition is fallacious. The States not only have none of the prerogatives of the King of England at common law, but they are totally destitute of all the higher attributes of sovereignty. The great powers of war and negotiation, of regulating commerce with foreign nations and among the several States, of coining money, of fixing the standard of weights and measures, of establishing rules of naturalization, of establishing post-offices and post-roads, of granting letters of marque and reprisal, and patents for useful inventions, of punishing piracies on the high seas and offenses against the law of nations, are not possessed by the States.
They can enter into no alliance or confederation, they cannot coin money, emit bills of credit, pass any bill of attainder, or make any law impairing the obligation of contracts; in fact, the States possess scarcely any sovereign powers whatever, and the idea put forth by the learned Judge in - the above extract from his opinion, that the States possessed all tho jura regalia of the King of England, has no foundation.
The King claimed the royal metals: 1st, because they were the most excellent of things, and he was the most excellent of persons ; 2d, because the treasure was necessary to support his fleets and armies; and, 3d, as an incident to his prerogative of coinage. Mono of these reasons have the slightest applicability to State sovereignty, for the State can neither maintain fleets nor armies, nor coin money.
It is said, in the opinion, that “it is immaterial as to the reason for the origin of the law.” But Lord Coke says: “ The reason of the law is the life of the law, and when the reason of any particular law ceases, so does the law itself.” (7 Coke, 69.) The maxim containing this principle is as old as the common law
If—cessante ratione legis, cessat ipsa lex.
YI. By the Act of Congress, approved September 9th, 1850, *341admitting California into the Union, she was admitted on the express condition that she should do no act whereby the title of the United States to the public lands should be impaired or questioned, and by yielding up all right in the public lands, she thereby relinquished all right to the mines on those lands, and every right of property appendant or appurtenant thereto, and the title of the United States has been distinctly recognized in all subsequent legislation.
The terms “ public lands,” have been construed for more than half a century, both by the States and by the Federal Government, in all the ordinances admitting new States into the Union, as including mines as part of the lands, and thus holding the mines on the lands by the same title as a proprietor.
But the State of California has not only relinquished all right to the gold mines by the ordinance admitting her into the Union, she has also acknowledged the title of the United States to all the mines within her limits by direct legislation. (Act 13th April, 1850, Secs. 6,14.)
The power of Congress to dispose of the mines on the public lands, by virtue of its right of primary disposal of the lands, is fully admitted, but this gives Congress no right to dispose of private lands, nor to regulate the use that shall be made of such lands, nor the products thereof. It has, in fact, been denied by high authority, that Congress could legitimately make any disposal of the mines on the public lands separate and distinct from the lands; much less could it make any disposal of the mines on the lands of an individual, which never became public lands.
Uo such power is granted by the Constitution, nor can it fairly be deduced from the power to dispose of the public lands.
If the lands were never public lands, the power of Congress never could attach to them in any matter whatever; neither can Congress prohibit the owners from using the mines on their own lands, in any manner they may think proper.
The right of the United States in the public lands was distinctly admitted by the State of California in Art. 9th of her Constitution.
Also, by the Act of 1850, prescribing the mode of maintaining and defending possessory actions on the public lands of the United States, and in all subsequent amendments to that Act.
*342Also, by the Act of May, 1852, authorizing the location of school land warrants on the five hundred thousand acres of land granted to the new States by the Act of Congress of September 4th, 1841.
Also, by the Act of April 30th, 1857, authorizing the location and patenting of school lands.
Also, by the Act of April 28th, 1855, to provide for the sale of the swamp and overflowed lands.
By all these Acts, and by the. Constitution, the right of the United States in the public lands is clear and unquestionable. And it is equally clear that the right to the soil carries with it the right to the mines, and that this right was never questioned before by any of the new States.
VII. The State of California has never authorized, by her legislation, any right to mine except on the public lands; and, if she had,1 by express enactment, authorized an invasion of a private grant for mining purposes, such act would be unconstitutional and void. (Stokes v. Barrett, 5 Cal. 39; Tartar v. S. C. Water Co. Id. 399; Burdge v. Underwood, 6 Id. 46; Fitzgerald v. Urton, 5 Id. 309.)
The grant is an executed contract, (2 Blac. Com. 359,) and is protected by the treaty, by the law of nations, and the Constitution of the United States, and any State law authorizing a party to enter on a private grant to dig for gold, would be in direct violation of the Constitution, and void for the following reasons: 1st, as a law impairing the obligation of contracts; 2d, as depriving a citizen of property without due process of law; 3d, as taking private property for public use without just compensation; 4th, as repugnant to that clause of the Constitution of the United States declaring treaties the supremo law of the land.
VIII. If it could be maintained that the United States ever acquired any right in the mines within the limits of the grant to Fremont, it could only have been a proprietary, and not a sovereign, right, and by issuing the patent without any reservation, such right would clearly pass to the patentee.
Upon a superficial investigation of this matter, it may seem to make no difference in what capacity the United States became entitled to the gold on the public lands; but, it is really *343a question of the greatest importance, especially when considered in connection with the views advanced by the Appellant’s counsel in this case, for if it could be maintained, that the right of the United States in the gold was a mere right of sovereignty, the inevitable result would be, that such sovereignty, on the coming in of California, would pass to her, because the United States have no constitutional capacity to exercise municipal sovereignty, or eminent domain, within the limits of a State. (3 How. 223.)
The question is also important in two other respects :
1. If this was a right of sovereignty in Mexico, therisfhe gold on a private grant never could have passed as property to the United States.
2. If, however, the gold on a private grant was a right of property in Mexico, and as such passed to the United States, the question arises, as to the effect of a patent as between the government and the patentee.
It only remains to consider, under this proposition, the force and effect of a patent, without reservation of the mineral.
A patent is a record of the highest character. It imports absolute verity. It is the superior and conclusive evidence of legal title. It cannot be assailed collaterally, either at law or in equity. Hothing passes a perfect title to public lands, with the exception of a few cases, but a patent. (Wilcox v. Jackson, 13 Pet. 498.) The whole legislation of the government of the United States in reference to public lands, declares the patent to be conclusive evidence of legal title. (Bagnell v. Broderick, 13 Pet. 436.)
Even if a patent is obtained from the government by fraud, a stranger or third party cannot set it up, for it is a question exclusively between the government and the grantee.
Such being the nature and effect of a patent, the precise point to be determined, is this :
Will a patent, where there is no exception of the minerals, conve)' mines of gold and silver on the land to the patentee ?
This question was passed upon by Mr. Justice Clayton, in the case of the State of Georgia v. Canatoo, (a Cherokee Indian,) reported in the National Intelligencer of October 24th, 1843, and cited in 3 Kent’s Com. 378.
*344This ease appears fully to sustain my proposition, but it cannot be doubted, that on general principles, a patent from, the United States, would not only convey the land, but everything it contained. There is no common law rule binding upon the United States, making an exception in case of precious metals.
If the land embraced in Fremont’s patent had been public land, acquired by the United States from Mexico, and had then been sold to Fremont by the United States, and a patent issued to him for the land, without any mention being made of the mineral, it cannot be questioned that the mineral would have passed with the soil, and as a part of it.
The same result is produced by the issuance of a patent in this case.
It does not, on its face, purport to be a mere relinquishment of such a title as Alvarado had, but it contains present words of grant, conveying to John C. Fremont and his heirs, the land embraced within the patent, without any exception or reservation whatever.
And this is not, in any way, inconsistent with the Act of Congress, of March 3d, 1851. The 15th Section provides, that the patent shall be conclusive between the United States and the claimant.
Conclusive of what? Conclusive that the United States has no right, title, or interest, of any kind, in and to the land embraced within the patent, or to anything the land contains.
When Fremont’s case was before the Supreme Court of the United States, it was argued by Mr. Cushing, and the argument is repeated and insisted on, with peculiar force and earnestness, by Mr. Justice Burnett, in his opinion, that Fremont could take no other, nor any greater or better, title than Alvarado had. The language of the Judge is as follows:
“ 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 patent were only conclusive between the United States and the claimant, as to the matters involved, and no more. The claimant presented his petition setting forth his title, and praying for a confirmation of the same. When *345confirmed, he had only the title originally granted, with a new assurance of its validity.”
The doctrine thus laid down cannot, as I respectfully insist, be maintained. The confirmation and patent to Fremont conveyed to him a different title altogether from that possessed by Alvarado, and this is obviously a correct logical deduction from the opinion of the Supreme Court of the United States, in 17 Howard. The grant to Alvarado contained conditions of a most stringent character; he was prohibited, on the face of the grant, from either selling the land or mortgaging it; he was required to build a house on it, and make a settlement, within a year. The penalty of forfeiture was attached to any breach of the conditions, and, by the Mexican law in force at the time the grant was made, no foreigner could acquire or hold any real property in the Republic, and any transfer to a foreigner was absolutely void. The Mexican law of denouncement was also in force and attached to the grant in the hands of Alvarado.
Every one of the conditions of this grant were broken by Alvarado—none of the conditions were complied with. By the Mexican law, a right of forfeiture had accrued to the government, and it was clear, that if the country had been regained by Mexico, she could have enforced the forfeiture, and it was contended by Mr. Cushing, that this was a public right which passed to the United States, and that they could now enforce the forfeiture; but the Court confirmed the grant, and the patent was issued without any reservation of the mineral.
Fremont then took the grant, free from all the conditions which attached to it in the hands of Alvarado; in this respect he took a different title from that of Alvarado; but there is another great and important distinction between the title of Alvarado and that convoyed to Fremont by the patent. In the hands of Alvarado, the gold mines in the lands covered by the grant, wore subject to the Mexican laws of denouncement, but whoever asserted or claimed that these laws remained in force after California was acquired by the United States ? The counsel of Appellant do not assert it; it is not asserted by Judge Burnett. These were political laws, and were annulled and abrogated by the conquest.
IX. The right of Col. Fremont to the ten square leagues of land' *346embraced within his patent, is a right protected by the treaty, by the law of nations, and the Constitution of the United States; and if, under the pretense of digging for gold, he can be divested of the possession of a single square foot within the area of his patent, he may on the same principle be divested of his entire grant.
The 8th and 9th Articles of the treaty provide that property of every kind in the territory, shall be “inviolably respected,” and that all Mexicans then domiciled in California or elsewhere, their heirs and vendees, shall be maintained and protected in the free enjoyment of their liberty and property.
“The term ‘property/ as applied to lands, comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract; those which are executory as well as those which are executed.” (Soulard v. United States, 4 Pet. 511.)
A treaty is the “ supreme law of the land.”
In this case the treaty is an executed contract, and a rule for the Court.
“ Whenever a right grows out of, or is protected by, a treaty, it prevails against all laws or decisions of the Courts of the States, and whoever has a right under the treaty is protected.” Ware v. Hilton, 3 Dall, 199.
“A treaty is paramount to the provisions of the Constitution or the laws of a State.” (Gordon v. Kerr et als. 1 Wash. C. C. 322; United States v. Percheman, 7 Pet. 51.)
S. W Inge, for Appellant, in reply.
Upon the cession of California, all public rights of property were transferred to the United States, and all private rights of property remained inviolable, both by the laws of nations and the treaty, in the private owner. PTo rights of property pertaining to the Mexican Government in the ceded territory were annulled by the cession; all such passed to the new sovereign; the right of the Mexican Government to the mines, in public as well as private land, passed, of course, with all other public rights to the United States. There is certainly no want of capacity in the Federal Government to own gold mines in the territories; such ownership is not inconsistent with the public *347policy of the United States, or the rights of its citizens, and is a necessary result of the transfer of the sovereignty and jurisdiction of the country by Mexico. In the Fremont Case, (17 How. 565,) the Court say: “ the right which the Mexican Government reserved to control this survey, passed with all other public rights to the United States.” The ownership of the mines was as much a public right of the government of Mexico, as the right “ to control this survey.”
Upon no hypothesis can Fremont claim title to them now. If they passed to the State upon her admission, he can show no right under the State; if they did not pass, but continued the property of the Federal Government, notwithstanding the admission of the State, he can show no right under the Federal Government. He is entitled to nothing, except what was confirmed to him by the Supreme Court; all his rights are founded thereupon, and none not embraced in the decree were conveyed to him by the patent; and the Court in the Fremont Case, (17 How.) say mines are not within its jurisdiction; that under the Act of 1851 it could only confirm his title to the land. This is a conclusive answer to his claim of the minerals.
Whether the United States acquired the mines mixed or separately, it is certain that they commenced to treat them as interests separate and distinct from the land. In their first Act in relation to California, the distinction is broadly made, and has been since preserved throughout all subsequent legislation. The Act for the admission of California, contains certain provisions which prominently show this distinction. The debates upon that Act also prove that the public lands and mines were considered as separate interests, which it was not the policy of the government to confound. And more than all, the Supreme Court, in confirming Fremont’s claim to land, recognize and establish the distinction.
The same distinction may be seen in the debates of the California Convention. All the laws, written or unwritten, of Mexico, upon this subject, sanction and enforce the distinction, affording careful protection to the separate rights of the miner and the proprietor of the land or soil.
The position that California has never authorized by her Legislature any right to mine, except on the public lands, *348evinces a singular misapprehension in regard to the legislation of the State. California has never made a discrimination in her legislation between the mines in public and private land. Upon certain conditions, she has authorized foreigners to work the mines in this State, from which the inference is clear, that American citizens were permitted to work them without conditions : that is to say, without paying the tribute which was exacted from foreign miners. All the right of the State in the mines has been conferred, with or without conditions, upon the public, and no distinction has ever been made between mines upon public and private land. The license of the State to the public is coextensive with the right of the State, and if the State owns the mines upon private land, the right of the public to work them is as indisputable, as the right to work the mines on public land.
The mines did not pass by the patent to the patentee.
1. The United States did not own the mines, when the patent was issued, and therefore could not convey what she did not own.
2. If the ownership continued in her after California became a State, it remains in her now, Congress never having disposed of it to Fremont.
Section 3, of Article 4, of the Federal Constitution, prescribes as follows:
“ The Congress shall have power to dispose of, and make all needful rules and regulations, respecting the territory or other property belonging to the United States."
The grant of this power to Congress is exclusive. Fío property of the United States can be disposed of except by the authority of an Act of Congress.
At the October Term, 1859, the cause was again argued by g. W. Inge and Misha Cool:, for Appellant.
Ilydenfeldt and Botts, for Eespondent.
The argument of Inge only, was reported, and is substantially as follows:
The record in this case presents three points:
1. Fraud in the survey of Fremont’s grant, and the procurement of his patent.
*3492. Estoppel.
3. The mineral question.
The opposing counsel concur in asserting that we are mere naked trespassers, without title or color of title, who have intruded upon the property of Fremont. They say that a trespasser who intrudes upon the land of another cannot defend himself by saying that the title of the true owner is fraudulent, nor can he say that the true owner is estopped by declarations made years ago prejudicial to his own title.
We have never intruded upon Fremont's land. Our mining location was made when the land was vacant and unclaimed by Fremont or any other person, under the encouragement of both the Federal and State legislation. At the time, and for years before, and after, Fremont, in the most solemn manner, asserted his claim to a tract of land many miles remote from our location, and that his grant could never interfere with our claim and possessions. All of Fremont’s rights to any particular and defined tract of land, are derived and date from his survey in 1855, four years subsequent to our mining location. Our title is as good against Fremont and all the world, as any other mineral title, and we have the same standing in a Court of Justice, to raise any and all questions in our defense which may be conceded to any other owner of a mining claim.
A title to property may exist unevidenced by a patent. The government may make a direct legislative grant of its public property, land, or minerals, which would be final, conclusive, and perfect, without a patent. A patent is one form of conveyance; any other may be adopted by the government with the same effect. A patent evidences the will and intention of government to grant, and from that it derives its potency. Under the legislation of the two governments, the miner has a title to his claim, as perfect and irrevocable, as the patentee to his land. The miner’s title dates from his location and appropriation to himself, under the laws, of that which was before open and common to all, and endures so long as he may continue his possession. It can only terminate by his own will, evidenced by an abandonment of his possession. Our title dates from our location and appropriation in 1851, and was a subsisting, perfect, title, when the survey of Fremont was thrown over us in 1855. Instead of *350our being trespassers upon his land, he is the trespasser upon our mining claims.
Having shown that we occupy a standing in Court to raise the question of fraud and estoppel, I proceed to inquire whether we have established those defenses. What does the record show in support of the allegations of fraud against Fremont’s title ?
It shows that all the principles prescribed in the opinion of the Court, confirming his grant, relative to the mode and manner of the survey afterwards to be made, were violated; that the survey was made clandestinely, the officers making the same, being ashamed or afraid to avow their object; that the survey was made under the influence and at the dictation and according to the direction of Fremont; that in making the same the tract originally claimed by him of grazing land in the valley of the Mariposa River, many miles distant from our location, was abandoned; and his quantity of ten square leagues carved out of the rugged and barren mountains by running irregular, eccentric, zig-zag, lines, in such a manner as to include the richest veins of minerals in the State, and to cover our prior mining location; that after having thus procured his survey, the same was transmitted to the authorities at Washington, to whom Fremont represented that the land embraced in the survey was the same confirmed to him by the Court, and which he had always claimed, and that it embraced exclusively grazing land, not mineral, and that the officers of the government being deceived by the misrepresentations, caused the patent to be issued. This in substance constitutes the fraud practiced in the execution of the survey, and in the procurement of the patent. I admit that a patent procured from the Federal Government, without either mistake or fraud, is conclusive, as a general rule, of all it purports to convey, viz : the title of the government to the public lands, not minerals; but the decisions of the Federal Courts abundantly show that prior equities will be protected against a patent procured by fraud; that, indeed, any good title will be protected against such a patent. (Gaines v. Nicholson et als. 9 How. 364; Bagnell et als. v. Broderick, 13 Pet. 450.)
I proceed to the consideration of the estoppel pleaded by us in bar of the action. What does the record show in support of this plea ? That in 1847, Fremont derived, by assignment from *351Alvarado, a grant to a certain tract of land in the valley of Las Mariposas, of ten square leagues in extent; that in the year 1849, he caused a survey and location of his grant to he made by one Von Schmidt, the map whereof was afterward attached to his petition to the Board of Land Commissioners, in which he averred that the identical tract of land described in the said map of Von Schmidt, was the land claimed and owned by him, under the assignment to him from Alvarado. This is record declaration number one, by Fremont, that the land claimed and owned by him, was grazing land, in the valley of Las Mariposas, and did not reach within many miles the mines, subsequently located and appropriated by us, in the year 1851, as the map of Von Schmidt embraced land of that character, and stopped short of us by many miles. In 1852, when Fremont’s claim was pending before the Board of Land Commissioners, an order was made by the Board, directing another survey of his claim, which was immediately thereafter carried into execution by the United States Surveyor-General, which survey conformed to the previous one of Von Schmidt, and embraced the grazing lands of Las Mariposas’ Valley, and did not reach within many miles of our location. This is record declaration number two, to the same effect. One was made before, and the other after, our location. Upon these maps Fremont’s claim was based before the Land Commission; upon these maps his case was argued and submitted; and upon these maps the identical land described therein was afterwards confirmed to him by the Board of Land Commissioners. The decree of confirmation was acquiesced in and accepted by him, and under and by virtue of this decree he continued to claim and hold this land up to the year 1855, when he abandoned his original and proper location, and procured the survey upon which his patent is founded.
Upon this record I might safely rest, but it appears from the affidavit of Shaw & Clark, that Fremont’s attention was called to our location before we commenced the expenditure of money; that he then disclaimed all claim of title thereto, and declared that his land was that described in the map of Von Schmidt, and that his claim could, therefore, never interfere with us. It appears that constantly afterwards, up to the date of the survey in 1855, he continued to disclaim title to our location, and thus *352encouraged us to go on in our expenditures. ( Welland Canal Co. v. Hathaway, 8 Wend. 480; 19 Id. 557; Cowen & Hill’s Notes, Part 1, Note 225.)
As to our right to the minerals. The grant to Alvarado, which is the origin of Fremont’s rights, was a land grant under the Mexican colonization law of 1824. It is admitted on the other side, that the Governor had no power to concede any right to the minerals, and, therefore, the grant to Alvarado can embrace no such right. Alvarado could convey to Fremont no more than the grant of Micheltorena had conveyed to him, and the grant contained no mineral rights. Upon our acquisition of the country, Fremont held no more under his assignment than the right to a certain unknown quantity of land, to be after-wards located within certain exterior boundaries mentioned in the grant, and subject to this right of location, all the territory mentioned within those boundaries, passed to the United States. He had what is familiarly known in the law books, as a “floating claim,” to a certain quantity of public land; in other words, a mere right of location. His rights were not enlarged by our acquisition of the country. At the date of the treaty, the mines belonged to the Mexican nation. What became of them after-wards? In the language of the Chief Justice of the Supreme Court, confirming this claim, all the public rights of Mexico passed by the treaty to the United States. Among those rights is included the ownership of the mines, to which the United States acquired the same ownership and. control possessed by the former sovereign. In what character did she acquire those rights? As proprietor simply, or as sovereign? The 5th Article of the treaty answers that question. That article embraces all the rights ceded, or to speak more correctly, by operation of that article we derive all our rights, for no property of any class is mentioned eo nomine. It extends our boundary lines to the southward and westward, so as to include the former Mexican territories of Hew Mexico and California, and spreads our sovereignty and jurisdiction over those territories.
It is simply an extension of our sovereignty and jurisdiction, and contains no cession of property. Therefore, the rights which we derive are necessarily incidental to sovereignty, and were afterwards held as they were originally received in our *353character as sovereign. Thus the right of Mexico to the mines in California passed by the 5th Article of the treaty to the United States, as incidents to the rights of eminent domain, and municipal jurisdiction over the coded territory. Upon the admission of California into the Union the rights hold in trust by the Federal Government for the embryo State vested in her, as it is well settled that the Federal Government cannot hold or exercise rights of eminent domain, or municipal jurisdiction within the limits of a State, except in the single case mentioned in the 8th Section of the 1st Article of the Constitution. The principles of constitutional law applicable to this subject, have been clearly and ably expounded in the case of Pollard’s Lessee v. Hagan, and the subsequent one of Goodtitle v. Kibbe.
In the Act of the Legislature, passed April 20,1852, relative to the mines, there is a clear assumption of State ownership. It provides that the precious metals found within the possession of persons occupying public land for grazing or agriculture, shall be open to the public. The next Act, passed by the succeeding Legislature on the 22d January, 1853, goes still further, and contains a clear and distinct declaration of State ownership; imposes a tax upon mining claims, and provides, that in default of its payment the Sheriff shall sell the claim and execute a deed to the purchaser, conveying to him the title of the State. Subsequently, at every succeeding session of the Legislature, Acts have been adopted taxing foreign miners, and otherwise exercising acts of ownership over mining property and mining interests, which are emphatic declarations of State ownership.
There are but two parties who can pretend to have any interest, either as sovereign or proprietor, in the mines: the State of California and the Federal Government. The first has always claimed and exercised ownership over them—the latter has abandoned them. When the clause in the Act admitting California into the Union, which provides that she should do no act whereby the title of the United States to the public lands should be impaired or questioned, was under consideration, it was contended by the ablest lawyers in the American Senate, that unless the mines were also embraced they would be forever lost to the Federal Government. They contended, justly and earnestly, that the term “ land.” neither, under the common or civil law. *354included mines, which were the property of the sovereign; (see 1 Cruise’s Dig. 38, Title 1, Estates and Fee Simple, Sec. 2); that mines were an exception, and, perhaps, the only one, and for that reason more prominent, to the maxim of the common law, cujus est solus ejus est usque ad ccelum.
I am therefore justified in saying, that California was admitted with a full knowledge that by and under the Act of admission, all the mines of gold and silver vested in the new sovereign. California is bound by the Act of admission “never to lay any tax or assessment, of any description whatsoever, upon the public domain of the United States.”
But she has taxed mining claims. Has the government of the United States ever objected to her exercise of that power ? Ho objection is made to her exercising’ every act of ownership over the mines; and why? Because she is the owner, and the United States admits her ownership.
The various Acts of the Legislature, before referred to, and the decisions of this Court, have been known to the Federal Government for years, and yet no step has been taken on their part to assert a counter-claim to the mines.
Is not this long acquiescence in our claim of ownership to the mines conclusive upon the United States? Conceding for argument that the mines did not pass to the State of California on her admission into the Union, where is the ownership now ?
How does Fremont derive title from the United States ? It has been the established law of England for centuries, that a grant by the crown does not convey the ores of gold and silver unless they are expressly named. The same rule applies to our government, State and Federal.
Are the mines expressly named in the patent to Fremont ? The application of this principle would settle the question, but I take higher ground, and contend that if they had been expressly named in the patent, he would be as destitute of right as he is now. Ho principle is better settled, than that no right of property can be derived from the Federal Government, except by the direct exercise of the legislative power of Congress. (See. 3, Art. 4, of the Federal Constitution.)
It is not claimed or pretended that Congress ever passed but one Act on this subject, the Act of 3d March, 1851.
*355That Act has been judicially determined by the Supreme Court of the United States, and it has been held that it does not touch the mines.
Field, C. J. delivered the opinion of the Court—Cope, J. concurring.
In 1844, Micheltorena, then Governor of California, issued to Juan B. Alvarado a grant of a tract of land, known as “Las Mariposas,'” to the extent of ten square leagues, lying within designated boundaries embracing a much greater quantity. In 1847, Alvarado conveyed, for a valuable consideration, his interest in the tract to John Charles Fremont. In January, 1852, Fremont presented his claim, under the grant, to the United States Board of Land Commissioners for confirmation, and, in December of the same year, the claim was confirmed. On appeal to the United States District Court, the decision of the Board was reversed; but on appeal to the Supreme Court of the United States, the claim was adjudged to be valid, and the cause was remanded to the District Court for further proceedings. In pursuance of the mandate of the Supreme Court, a final decree of confirmation was entered in June, 1855. In July following, the specific quantity designated in the grant—ten leagues—was surveyed and segregated from the general tract embraced within the exterior boundaries of the grant, under the direction of the Surveyor-General of the United States for California, and the survey was subsequently approved by that officer. Upon this survey and the decree of confirmation, a patent was issued on the part of the United States to Fremont, bearing date on the I9th of February, 1856, signed by the President, and countersigned by the Acting Recorder of the General Land Office at Washington. The patent refers to the proceedings before the Land Commission, the appeals, and the judgments—both of the District and of the Supreme Court, the final decree of confirmation, the survey thereunder, and its approval, and, in terms, grants the land, with the specific description of the approved survey, to Fremont and his heirs and assigns forever. This patent includes the premises occupied by the defendant, and, after its receipt, Fremont leased them to the plaintiff for the period of seven years, at the monthly rent of one thousand dollars. *356For their recovery, the lessee brings the present suit. These premises contain ledges of gold-bearing quartz, and the defendant entered into their possession in May, 1851, and between that period and the issuance of the patent to Fremont, erected thereon, at great expense, machinery and mills for excavating and crushing the rock, and extracting the gold, and has continued in the occupation of the premises, working the quartz-veins and extracting the gold, ever since. The lease, in terms, covers these various works, which are, as the complaint alleges, fixed to the soil and a part of the freehold.
To resist a recovery, the defendant relies upon three grounds : 1st, fraud in the survey of the Alvarado grant and the procurement of the patent by Fremont •, 2d, estoppel from the declarations and conduct of Fremont, and, 3d, a license from the government to enter upon the premises and extract the gold. It was stipulated between the parties, previous to the trial, that the defendant might have any affirmative relief which it would be entitled to upon filing a cross bill to the action, or an original bill setting up the facts contained in the answer; and might set up any equitable defense which it would be entitled to set up in a Court of Chancery to the case made in the complaint.
The effect of the first clause of the stipulation we conceive to be this: that if the facts alleged in the answer, and established by the proofs, could, in any proceeding at law or in equity, be urged by the defendant against the prosecution of the present action, they may he urged in this case without regard to the form of the action, or the character of the pleadings. As to the second clause of the stipulation, the parties appear to have construed it to mean that the defendant might, upon the development of the proofs, without reference to the allegations of the answer, interpose any defense which a Court of Equity would sustain to the case set forth in the complaint.
We shall, for the determination of the appeal, follow this construction, liberal as it is, without considering an objection which might be, but is not, taken, that the Court cannot properly, even upon the consent of parties, pass upon questions not raised by the written allegations of the pleadings.
As to the charge of fraud in the survey, and the procurement of the patent, the answer sets forth that the grant to Alvarado, *357which is the basis of the claim of Fremont, was issued upon a petition for agricultural and grazing land, of the extent of ten square leagues, to be located within exterior boundaries embracing over one hundred; that neither in the petition nor in the grant was any particular description given of the specific quantity granted; that no surveyor location of this quantity was attempted until 1849, when a survey was made of the ten leagues by Fremont in the valley of the Mariposas, and a map of the same published to the world; that the lines of this map do not approach, within a distance of two miles, the premises in controversy; that this map was annexed to the petition of Fremont presented to the Board of Land Commissioners for the confirmation of his claim, and that by the decree of the Board, the claim was confirmed to the land described in it; that until the decision of the Supreme Court, in December, 1854, Fremont persisted in claiming the land thus designated, and disclaimed ownership in, or title to, the mineral lands in controversy, but that after that decision, and in July, 1855, he “caused and procured” another survey to be made, which includes these lands; that this survey was approved by the Surveyor-General, and that the same was fraudulent in this: that it was made clandestinely, by the agents of Fremont, who carefully concealed from the defendant his intention to include the mineral lands and veins in controversy, knowing that the grant to Avarado, qualified and controlled by the petition of Alvarado, called only for grazing and agricultural lands, and that, under the decision of the Supreme Court, he was entitled to a location upon none other.
The answer contains no other allegations of fraud in the last survey, than this concealment, and the variance from the original survey made in 1849; but, when the cause was called for trial, the defendant filed an affidavit, to the effect that he expected to prove by the Attorney-General of the United States and the Commissioner of the Land Office at Washington, that, in procuring his patent a fraud was perpetrated upon the government by Fremont, in misrepresenting the quality and character of the lands embraced in the survey, and by several other witnesses, that the survey was made and concealed at the time from the defendant and all others claiming adversely to Fremont.
*358It was, therefore, admitted, for the purpose of preventing a continuance, that the several witnesses named would, if present, respectively testify, as stated in this affidavit, and that their testimony should be considered as actually given on the trial, or as offered and overruled by the Court as improper. The testimony thus assumed, was offered, and, for all the purposes of this case, must be deemed as actually before the Court. That portion which relates to the alleged clandestine survey, was met on the trial by counter proof, and negatived. The Court passed upon the ¡Doint, and found against the charge; and its finding, in this respect, is fully warranted by the evidence. But even were this not so, we are unable to perceive that it would make any difference. There was no obligation resting either upon Fremont or the Surveyor-General, to give notice of the survey to the defendant, or any one else, and it is of no consequence how secretly or how openly the survey was made. That portion of the charge which relates to the alleged misrepresentation of the quality and character of the land, is conclusively answered by the proceedings in the Supreme Court of the United States, to which reference is made in the record, and in the argument of counsel. The alleged misrepresentation consists in the fact, that the land is mineral, whereas, it is said in argument, (for nothing of the kind appears in proof,) that it was represented to be exclusively grazing and agricultural. The fact that the land contained mines of gold and silver was before the Supreme Court, and constituted one of the grounds upon which the Attorney-General based his argument against the confirmation of the claim. To his objection on this head, the Court said in its opinion: “In relation to that part of the argument which disputes his right, upon the ground, that his grant embraces mines of gold or silver, it is sufficient to say, that under the mining laws of Spain, the discovery of a mine of gold or silver did not destroy the title of the individual to the land granted. 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 decided in another form of proceeding, and are not subjected to the jurisdiction of the Commissioners or the Court, by the Act of 1851.” (17 How. 565.) That the land claimed by Fremont was mineral, *359or believed to be mineral, was thus well known to the government, as is manifest from the argument of the Attorney-General and the decision of the Court; and in the face of these public acts, the charge of misrepresentation as to its quality and character, falls to the ground. The entire charge of fraud, then, rests upon the simple fact, that the official survey, obtained by Fremont, differs entirely from his own original survey. That this private survey—accompanying his petition to the Land Commissioners —was not binding upon the government, is too clear for argument.
In Smith v. The United States, (10 Pet. 334,) the Supreme Court says : “ The laws of the United States give no authority to an individual to survey his grant or claim to lands; he may mark lines to designate the extent and bounds of his claim, but he can acquire no rights thereby.”
In United States v. Hanson, (10 Pet. 199,) a private survey was considered and rejected, as being of no force or validity. In Les Bois v. Bramell, (4 How. 449,) in speaking of a survey of one Mackay, the Court said: “ It was a private one, made at the instance of the inhabitants of St. Louis, and not binding on any one;” and in Mackay v. Dillon, (4 How. 421,) of the same survey : “ It was in its nature a private survey, not binding upon the United States.” In Glenn v. The United States, (13 How. 256,) in referring to surveys offered in evidence, the Court said: “ The surveys produced to us are private ones, and of no value in support of the claim.”
It is true, the decree of the Land Commission confirmed the claim of Fremont to the land described in his survey, but that decree was reversed by the District Court, and when the case was remanded to the District Court, from the Supreme Court, it was accompanied with directions to take further proceedings in conformity with the opinion of the latter Court. In that opinion, allusion is made to the form of the survey, which was to follow. “ Some difficulty,” says the Court, “ has been suggested as to the form of the survey. The law directs that a survey shall be made, and a plat returned, of all claims affirmed by the Commissioners. And as the lines of this land have not been fixed by public authority, their proper location may be a matter of some difficulty. Under the Mexican Government the survey was to be *360made or approved by the officer of the government, and the party was not at liberty to give what form he pleased to the grant. This precaution was necessary, in order to prevent the party from giving it such a form as would be inconvenient to the adjoining public domain, and impair its value. The right which the Mexican Government reserved to control this survey passed, with all other public rights, to the United States ; and the ■ survey must now be made under the authority of the United States, and in the form and divisions prescribed by law for surveys in California, embracing the entire grant in one tract.”
Upon filing the mandate of the Supreme Court, the District Court, in entering the final decree of confirmation, in June, 1855, conformed to the opinion of that Court, and ordered that the land be surveyed according to its direction. It is upon this decree, and in pursuance of it, that the survey, which is the subject of complaint, was made and approved by the Surveyor-General of the United States for California. Mo other or previous survey has any standing in Court, or can, in any respect, affect the rights of the grantee. That Fremont “ caused and procured ” the survey to be made, does not imply the use of any improper influences for that purpose. That he applied to the proper officers to make the survey, is no doubt true; but, that he employed any means to improperly control their action, there is no evidence, and that the survey was made secretly, or concealed after it was made, is, as we have already observed, contradicted by the testimony.
The grant to Alvarado passed a present and immediate interest to ten square leagues, to be afterward surveyed and laid off within the exterior limits of the general tract by the government. Such survey could only be made under the former government by its officers, and could not bo made by the grantee himself. This right of survey passed, with all other public rights, to the government of the United States, upon the cession of the country, and is now to be exercised by its officers, and in conformity with its laws. By the legislation of Congress, the subject of surveys is intrusted to the Executive Department of government, and is not left to the direction or control of the grantee. The action of that department in the location of confirmed grants, when the quantity granted is without specific *361boundaries, lying within a larger tract, is conclusive and binding upon him. It may be true, that under the recent decision of the Supreme Court in the Fossat case, the United States District Court possesses jurisdiction to control the location made upon its decree, while the proceedings for confirmation are pending before it; but, subject to this qualification, the action of the department in the case mentioned is a finality with the claimant.
Wo have considered at length the charge of fraud interposed to the recovery, to show its groundless character; but the true answer to objections of this and the like nature, if capable of being established to their full extent, is, that they are inadmissible in an action of ejectment to impeach the patent. In the case of Moore et al. v. Wilkinson, decided in this Court at the April Term, we had occasion to consider how far the conclusiveness of a survey and patent could be questioned in an action of ejectment. In that case, the defendants, claiming to be pre-emptioners of the premises in controversy, under the laws of the United States, offered parol evidence to show that the four leagues, as surveyed and patented to the plaintiff, were different from the tract designated in the grant upon which the patent issued, and the map,, to which the grant made reference, and that a correct location of the tract, as granted, would not include the premises in suit. The Court below excluded the evidence, and in sustaining its ruling, we said: 1“ The government has provided a Board for the determination of the validity of claims to lands held under Mexican grants, and a system for the survey and location of the lands upon the recognition and confirmation of such claims. The survey and location are to follow the decree of confirmation. The approval of the survey by the proper officers is the determination—the judgment of the appropriate department of government, that the survey does conform to such decree. That determination or judgment is not the subject of review by the Judiciary. It is conclusive upon the Courts, in actions of ejectment, as the adjudication of a competent tribunal, upon a subject within its exclusive jurisdiction. The patent, which is the final document issued by the government, is conclusive evidence, of the validity of the original grant, and of its recognition and. confirmation, and of the survey and its conformity with the-confirmation, and of the relinquishment to the patentee of all the-*362interest of the United States in the land. It cannot be attacked collaterally, even for fraud, whether charged to have existed in ,the procurement of the original grant, or in the proof of its execution, or in the making of the survey. For these matters the right of interference rests only with the government. Individuals can resist the conclusiveness of the patent only by showing that it conflicts with prior rights vested in thern.^/ And this brings us to the inquiry whether the defendants possess any such prior rights. The 15th Section of the Act of Congress of 1851, provides that the final decree of confirmation and patent shall be conclusive between the United States and the claimants only, and shall not affect the interests of third persons. If conclusive between the United States and the claimants, it must be equally so between persons holding under either of those parties; and, in Waterman et al. v. Smith, we held that the third persons mentioned in the Act, were those, whose titles were, at the time, such as to enable them to resist successfully any action of the government respecting it. The patent took effect by relation, at the date of the presentation of the petition of the patentee to the Board of Land Commissioners, in March, 1852. At that time the pre-emption" laws of the United States, under which the defendants assert their acquisition of rights, were not extended to California. Any rights which they possess were subseqiiently acquired, and must be subordinate to the result of the proceedings then pending by the grantees before the tribunals and officers of the United States. Those proceedings had for their object the recognition of the grantees' claim, and the determination of its location with such precision as to leave no room for subsequent dispute and litigation. If settlers, after steps taken for confirmation, could, by location, acquire such rights to the premises as to authorize them to compel a patentee, in every suit for the recovery of his land, to establish the correctness of the action of the officers of government in their survey and location, the patent, instead of being an instrument of quiet and security to the possessor, would become a source of perpetual and ruinous litigation, and the settlement of land titles in the country be delayed a quarter of a century. The patentee would find it established in different suits, to the utter destruction of his rights, that his land should have been located in as many *363different places within the exterior boundaries of the general tract, designated in his grant, as the varying prejudices, interests, or notions, of justice, of Avitnesses and jurymen might suggest.”
The views here expressed are applicable to the case at bar, and are conclusive of the point that the defendant cannot—treating this as an action of ejectment—set up fraud in the survey or the procurement of the patent, to defeat the action of the plaintiff. We do not here express any opinion as to the rights of the defendant. These we shall hereafter consider. If it be assumed, for the present, that they are vested so as to avail the defendant against the assertion of any claim of the government respecting the premises in controversy, it Avould only follow that the patent was inoperative to that extent—not that it was void. The rights of the defendant would, in that case, be effectually protected by the provisions of the 15th Section of the Act of 1851, and the patent would be like a second deed to premises previously granted, and pass, as to the property, no interest.
Eor would the facts set up in the answer, as fraudulent, if presented in an original or cross bill, avail the defendant in avoiding or resisting the patent. The effect of the matters alleged by way of estoppel, we shall hereafter consider. We now speak of the chai’ge of fraud—consisting, in the variance betAveen the private and the official survey, and the alleged concealment of the latter. Misrepresentation to the government of the quality and character of the land is not averred in the answer, and if it were, the allegation would not change the case. The charge of misrepresentation and concealment, as we have seen, are without foundation in fact, and the change in the survey was the act of the government, and not of the patentee. These matters, then, would give the defendant no title to relief in a Court of Equity.
But there is another and a fatal objection to any equitable suit of the nature supposed. Eremont is not a party to this action, and he would be a necessary party to any proceeding to avoid or set aside his patent, on the ground that it was issued through fraud or misrepresentation. His rights cannot be determined or impaired in any side suit between third parties.
The proceeding by bill in equity, which an individual is allowed to take, to set aside a patent, or control its operation, is *364in the nature of a bill to quiet title—to determine an estate held adversely to him—to remove what would otherwise he a cloud upon his own title; or is in the nature of a bill to enforce a transfer of the interest from the patentee, on the ground that the latter has, by mistake or fraud, acquired a title in his own name, which he should in equity hold for the benefit of the complainant. The individual complainant must therefore possess a title superior to that of his adversary, and, of course, to that of the government through whom his adversary claims, or he must possess equities which will control the title in his adversary’s name.
Thus, in Gaines et al. v. Nicholson et al. (9 How. 364,) the plaintiffs, as Trustees of schools and school lands, of a township in Mississippi, claimed the 16th Section of the township, as appropriated for the use of schools, under certain acts of Congress. By provisions contained in a treaty with the Choctaw tribe of Indians, certain lands were reserved to several members of the tribe, and, among others, to one Wall—to be located in entire sections, and to include their residence and improvements at the time. Wall conveyed his interest in the section reserved to him to parties, who, representing that he resided upon the 16th Section of the township at the date of the treaty, and had his improvements thereon, obtained a patent from the President of the United States, and then brought ejectment against the tenant of the Trustees in possession of the premises. The Trustees, thereupon, filed a bill to stay the proceedings at law, and prayed for a temporary injunction in the first instance, and, afterwards, a perpetual injunction, alleging that the representation as to the residence and improvements of Wall—upon which the patent was issued—was false and fraudulent. The Court below decreed a perpetual injunction, and directed the patentees to relinquish their interest to the Trustees. The Appellate Court, after stating the facts of the case, and referring to the alleged false and fraudulent misrepresentation, says :
“This is the ground set forth by the complainants upon which to invoke the equitable interposition of the Court, to set aside and annul the patent, and remove the incumbrance from their title, and to stay the proceedings at law. And, undoubtedly, if the facts thus charged have been established by the proceedings *365and proofs, a right to such equitable interposition for the relief sought has been made out, and the decree of the Court below should be upheld.”
Here the Trustees asserted a title, which upon their allegation, was superior to that of the government at the time the patent issued, and though the suit is stated in the opinion of the Court to be to set aside and annul the patent, it was, in fact, as appears from the pleadings and judgment, only to stay proceedings at law and remove the cloud upon the title. In that particular case, the effect of the suit, had the decree been sustained, would have been the same upon the rights of the patentees, as if it had been brought to annul the patent absolutely. But, in many cases, the effect would be «very different. A decree annulling a patent destroys it absolutely; a decree setting aside, or restricting its operation to the premises in controversy, still leaves it unimpaired in other respects. To annul a patent absolutely, proceedings can only be taken by the government, or some individual in its name, and that by scire facias, or by bill, or information. Individuals can maintain no proceedings to that effect, the question being one exclusively between the sovereignty issuing the patent, and the patentee. Thus in Jackson v. Lawton, (10 Johns. 24,) where two patents were issued for the same premises, Kent, C. J. said:
“ The elder patent must, therefore, be impeached and set aside, before we can acknowledge any title set up under the younger patent; and the question is, whether it can be impeached by parol proof in this suit ? Letters patent are matter of record, and the general rule is, that they can only be avoided in chancery, by a writ of scire facias, sued out on the part of the government, or by some individual prosecuting in its name. This is the settled English course, sanctioned by numerous precedents; and we have no statute or precedent establishing a different course.” And, again:
“ If the elder patent, in the present case, was issued by mistake, or upon false suggestions, it is voidable only; and unless letters patent are absolutely void on the face of them, or the issuing of them was without authority, or was prohibited by statute, they can only be avoided in a regular course of pleading, in which the fraud, irregularity, or mistake, is directly put in issue. *366The principle has been frequently admitted, that the fraud must appear on the face of the patent, to render it void in a Court of law; and that when the fraud or other defect arises on circumstances dehors the grant, the grant is voidable only by suit. The regular tribunal for this purpose is chancery, founded on a proceeding by scire facias, or by bill, or information. It would be against precedent, and of dangerous consequences to titles, to permit letters patent (which are solemn grants of record) to be impeached collaterally by parol proof in this action."
In Field v. Seabury et al. (19 How. 332,) the point was presented, whether, when a grant or "patent of land, or legislative confirmation of titles to land, has been made by the sovereignty or legislative authority only having the right to make it, there being no provision in the patent by law to inquire into its fairness as between the grantor and grantee, or between third parties, a third party could raise in ejectment, the question of fraud as between the grantor and grantee, and thus look beyond the patent or grant; and the Court, after stating that it was not aware that such a proceeding was permitted in any of the Courts of law, said further: “ In England a bill in equity lies to set aside letters patent obtained from the King by fraud, (Att’y-Gen’l v. Vernon, 277, 370; the same case, 2 Ch. Rep. 353,) and it would, in the United States; but it is a question exclusively between the sovereignty making the grant and the grantee."
But it is unnecessary to pursue this point further, for even if the defendant possessed a title to the jtremises, no matters are shown, as we have already observed, which would authorize any equitable interference of the Court with the claim of the plaintiff on the ground that the survey was made and the patent procured by fraud.
"We pass to the. second ground of defense, that of estoppel. The only matters alleged in the answer by way of estoppel are the private survey of Fremont in 1849, and his presentation of the same to the Board of Land Commissioners, as embracing and identifying the tract he claimed; and subsequent public and repeated disclaimers by him at the time the defendant took possession of the premises in controversy in 1851, and, afterwards, up to July, 1855, of any title or claim to the property, and of *367any title or claim to any land within the exterior bounds of the grant to Alvarado, except that designated in his survey.
Upon these declarations, the answer avers the defendant acted, and was induced to make valuable and permanent improvements upon the premises in controversy and adjacent property, at an expenditure of upwards of eight hundred thousand dollars; and insists that the plaintiff is thereby estopped from asserting any title under Fremont. Other matters are, also, urged by way of estoppel, not alleged in the answer, and which, but for the stipulation of the parties, would not be considered by the Court. In the affidavit for a continuance, to which we have already referred, it was stated that the defendant expected, by several witnesses named, to prove that from the time possession was taken of the premises, to that date, Fremont knew of the claim of the defendant to the property, and its occupation and improvement, and never set up any title to the same until July, 1855, or forbid the occupation and improvement. To prevent the continuance, it was admitted that the witnesses, if present, would testify as stated, and that their testimony should be deemed as actually given, or as offered and overruled as improper.
The Court passed upon these matters, and found that up to July, 1855, Fremont claimed the premises in his survey, and made the representations and disclaimers alleged, to the property in controversy, but that it was not shown that he willfully made them, or intended to deceive or defraud the defendant, or to influence its conduct, but that they were made “ without any fraudulent intent and before the final location of his claim, and when it was unknown where the lines thereof would be fixed,” and that he knew of the occupation and improvements of the defendant-from the time possession was taken, without forbidding the same, or claiming the premises, until July, 1855.
It is undoubtedly true that a party will, in many instances, be concluded by his declarations or conduct, which have influenced the conduct of another to his injury. The party is said, in such cases, to be estopped from denying the truth of his admissions. But to the application of this principle with respect to the title of property, it must appear, first, that the party making the admission by his declarations or conduct, was ap*368prised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge, and, fourth, that he relied directly upon such admission, and will be injured by allowing its truth to be disproved.
These qualifications in the application of the doctrine will be found fully sustained by the authorities. There must be some degree of turpitude in the conduct of a party before a Court of Equity will estop him from the assertion of his title—the effect of the estoppel being to forfeit his property and transfer its enjoyment to another. “In all this class of cases,” says Story, speaking of equitable estoppels, “the doctrine proceeds upon the ground of constructive fraud, or of gross negligence, which, in effect, implies fraud. And, therefore, where the circumstances of the case repel any such inference, although there may be some degree of negligence, yet Courts of Equity will not grant relief. It has, accordingly, been laid down by a very learned Judge, that the cases on this subject go to this result only, that there must be positive fraud, or concealment, or negligence, so gross as to amount to constructive fraud.” (1 Story's Equity, Sec. 391.)
“In order to the introduction of this equity,” says Adams, in his treatise on the doctrine of equity, “ it is essential that there be intentional deceit in the defendant, or, at all events, that degree of gross negligence which amounts to evidence of an intent to deceive.” (Side page, 151.)
In Commonwealth v. Moltz, (10 Barr, 531,) the Supreme Court of Pennsylvania, after citing several cases in which the doctrine of equitable estoppel was applied, said :
“In all these cases, there is some ingredient which would make it a fraud in the party to insist on his legal right.” (Per Sergeant, J. in Crest v. Jack, 3 W. 238.) And, again: “ To the constitution of this species of estoppel, at least three ingredients seem to be necessary: first, misrepresentation, or willful silence by one having knowledge of the fact; second, that the actor, having no means of information, was, by the conduct of the *369other, induced to do what otherwise he would not have done, and, thirdly, that injury would ensue from a permission to allege the truth. And these three things must appear affirmatively.”
In Copeland v. Copeland, (28 Maine, 539,) the Supreme Court of Maine, in considering the nature of these estojipels, after quoting the language of Lord Denman, in Pickard v. Sears, (6 Adolph. & Ellis, 469,) “that where one, by his words or conduct, willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter, a different state of things, as existing at the same time,” said,1 “in this position, thus established, it must be observed, that several things are essential to be made out in order to the operation of the rule: the first is, that the act or declaration of the person must be willful, that is, with knowledge of the facts upon which any right he may have must depend, or with an intention to deceive the other party; he must, at least, it would seem, be aware that he is giving countenance to the alteration of the conduct of the other, whereby he will be injured, if the representation be untrue; and the other must appear to have changed his position by reason of such inducement.”
In Whitaker v. Williams, (20 Conn. 104,) the Supreme Court of Connecticut, in considering the same subject, said: “ The doctrine that one shall not bo permitted to retract representations, in which is included conduct, by which he has induced another to adopt a particular course of action, supposes, and is to be understood with the qualification, which is, indeed, a part of the principle itself, that the one by whom such representations were made, had a knowledge of his rights. In laying down this qualification, we speak of the principle generally, and would not be understood to say that there may not be cases where there is such culpability on the part of the person making such representations, or such particular circumstances or consequences attending them, that he would not be permitted to set up the want of such knowledge.”
In Delaplaine v. Hitchcock, (6 Hill, 16,) the Supreme Court of Hew York, per Bronson, J. said: “The mouth of a party will sometimes be closed after he has omitted to speak at the proper time, and has thus been the occasion of misleading a third per*370son. But there is no such thing as an estoppel in pais for neglecting to speak or act, where the party did not know the facts which, if known, would have made it his duty to speak or act. An estoppel in pais, is a moral question. It can only exist where the party is attempting to do that which casuists would decide to be a wrong; something which is against good conscience and honest dealing." (8 Wend. 483; 3 Hill, 215, 220.)
In Brewer v. Boston & Worcester Railroad Corporation, (5 Met. 479,) the demandant brought a writ of entry to recover a parcel of flats appurtenant to his upland. The case was submitted to the Court on a statement of facts, from which it appeared that the demandant, and one Tolman, under whose wife the tenants claimed, had agreed by parol upon a dividing line between the flats appurtenant to their respective lands, and in the language of the statement, “ the demandant always claimed to own the flats lying northeasterly of said line, and exercised various acts of ownership on the same. He stated to the agent of tenants, before they purchased the land and flats of said Tolman and wife, that the land which he claimed lay northeasterly of said line, and that he did not claim the land southwesterly of said line, and he has also made similar representations to others. After the tenants purchased of Tolman and wife, they proceeded, with the knowledge of the demandant, to fill up said land lying southwesterly of said line, and to erect buildings and fences thereon, and exercise other acts of ownership on the land; and the demandant was frequently present and saw said improvements, and pointed out the said line, and never expressed any dissent to said proceedings, nor gave any notice to the tenants that he had any claim to the said land."
Upon this statement of facts it was agreed by the parties that if the Court should determine that the demandant was entitled to the flats, he should recover in conformity to certain lines, unless the Court should determine that the demandant was es-topped as against the tenants from claiming the same. The Court adjudged a recovery in favor of the demandant, stating in its opinion that it decided the case on the ground that the demandant had acted fairly, under a mistake, and that he had made no declarations contrary to his honest belief at the time, or with any intention to deceive the tenants. “And we think it *371clear,” said the Court, “ that the declarations thus made do not operate in the nature of an estoppel. A party is not to be es-topped to prove a legal title to his estate, by any misrepresentation of its locality, made by mistake, without fraud or intentional deception, although another party may be induced thereby to purchase an adjoining lot, the title to which may prove defective; for he may require a warranty; and it would be most unjust that a party should forfeit his estate by a mere mistake.” These authorities are sufficient to show the correctness of the qualifications we have placed upon the application of the principle of equitable estoppel. They might be multiplied to an almost indefinite extent. Tested by them, the matters set up can have no operation by way of estoppel. Fremont’s claim, under the Alvarado grant, was to no specific tract. It was only an interest to a specified quantity, to be afterwards surveyed and laid off by the officers of government. Fremont evidently thought otherwise. He believed he could himself make the segregation. He, therefore, made the survey in 1849, which he annexed to his petition. He asserted his claim to that specific tract. The Board affirmed his claim to that tract, and it would appear a subsequent survey in 1852 was made under its decree, in conformity with it. Had the matter there rested, the present case would never have existed. But the decree of the Board was reversed by the District Court, and with the decree, the survey under it fell, as a matter of course. Fremont sought a reversal of that decree in the Supreme Court, and obtained its" reversal, but that reversal was accompanied with a direction that the survey should be made in a particular form. The District Court entered in June, 1855, a final decree in pursuance of that direction. The only authoritative and official survey was made under that decree. That survey gave precision to Fremont’s claim, and attached his title to the land it embraced. That survey covers the premises in controversy, and from its approval Fremont has asserted his right to them. From that approval his title to the land became perfect. The previous representations and disclaimers were clearly made under a misapprehension of his rights. It would be most unreasonable to hold that he intended to abandon all title to any land outside of his own private survey, or the survey under the decree of the Board— *372provided the government should finally locate his claim on another and different portion within the exterior boundaries of his general tract.
The representations—under the circumstances, and the law governing the location of land claims under floating Mexican grants—could not be more than an expression of an opinion as to what ought to be its location, or the expression of a desire where it should be located. The defendant knew that the claim was a floating one—it is so averred to be in the answer—and evidently labored under the same mistake as to the right of the claimant to make the location as Fremont. The law was as well known to the company as to him; and both must bo presumed to have known it, although, in fact, both were equally mistaken in its rule. To give the declarations and disclaimers made under these circumstances, the effect of an estoppel, operating, as it would, to deprive .Fremont of his estate in the premises, and transfer it to the defendant, would be, in the highest degree, inequitable and unjust. There is no proof of any intention to deceive, nor of any facts from which such an intention can be justly inferred. The Court passed upon the question, and found against the charge, and thus swept out the only basis upon which it could rest. The defendant has no title to the land; that vested absolutely in Fremont by the final decree and approved survey, evidenced, as they are, by the patent under the signature of the President of the United States. Whether, notwithstanding the title to the land is in Fremont, the defendant has a right to its use and occupation, as a mining corporation, for the purpose of extracting the precious metals, is another question, which we shall hereafter consider. To the land, the company 'has no title; it does not claim under the pre-emption laws of the United States, and if it did, the claim would be untenable, as mineral land is expressly exempted from pre-emption by the legislation of Congress.
But there is another and perfect answer to the application of the doctrine of estoppel in this case. The ground of complaint is, that Fremont represented that the premises were public land —not covered by his claim—and thus induced the defendant to enter upon the same and occupy and improve them as such. Suppose this were so—and that the land was public—no prohibí*373tion existed against a subsequent acquisition of the title from the superior proprietor. The defendant could not acquire by mere occupation—we speak now of the land, not the mineral—any rights which could control the action of the government. It could only hold so long as the superior proprietor permitted; and if that proprietor saw proper to give the land to Fremont, or to any other person, it could interpose no valid objection. The government could not be estopped from asserting its title and disposing of it, to whomsoever and whenever it thought proper. The pre-emption laws not extending to mineral lands, the defendant was at best but a mere tenant at sufferance.
By the patent the government is estopped from asseriing title to the premises, and if the position of counsel were tenable, Fremont is estopped from asserting title against the defendant. It would follow that the defendant would have—by merely occupying the land as public land—rights superior to both, and' that, too, in the face of an express prohibition of the sale by the government of the mineral lands. It requires no argument to show the groundlessness of the position.
We pass to the consideration of the last ground of defense—the right of the defendant as a mining corporation to the possession and use of the land for the purpose of extracting the precious metals. If it possess such a right against the true owner, it must be upon the ground that the mineral does not pass with the soil as an incident to it, but belongs either to the United States or to the State of California, and that the defendant has an effectual license to enter upon the premises and extract the same.
In Hicks v. Bell, (3 Cal. 219,) this Court held, that the mines of gold and silver belong to the State by virtue of her sovereignty. On the other hand, in this very case which we are now considering, Mr. Justice Burnett expressed the opinion that they belong to the United States by their succession to the rights of Mexico. And in the argument upon the rehearing, the position taken in both of these cases was attacked by many weighty considerations. We do not purpose, however, to pass definitely upon the question; it is not essential to the determination of this appeal that we should. The question is one of great magnitude and importance, and we purpose to postpone its consideration until *374it can be presented to a full bench. The situation of one of the Justices of this Court as former counsel of the Respondent, necessarily excludes him from a participation in its decision in this action. We shall not, therefore, inquire whether or not the mineral passes with the soil. We shall assume with reference to its ownership the position most favorable for the defendant, that it belongs to the General Government or to the State, for if the ownership is not in one or ■the other, the case of the defendant is closed, and the defense left without any semblance of reason.*
Assuming, then, in the first place, for the purpose of this case, that the mineral belongs to the United States—has the defendant any effectual license to enter upon the premises of the plaintiff and remove it ?
It is sometimes said, in speaking of the public lands, that there is a general license from the United States to work the mines which these lands contain. But this language, though it has found its way into some judicial decisions, is inaccurate, as applied to the action, or, rather, want of action, of the government. There is no license in the legal meaning of that term. A license to work the mines implies a permission to extract and remove the mineral. Such license from an individual owner can be created only by writing, and from the General Government only by Act of Congress. It carries an interest in the land, and arises only from grant. The mineral, whether a distinct possession or otherwise, constitutes part of the realty, as much so as growing timber, and no interest in it can pass, except in the ordinary modes for the disposition of land. It is under the exclusive control of Congress, equally with any other interest which the government possesses in land. But Congress has adopted no specific action on the subject, and has left that matter to be controlled by its previous general legislation respecting the public domain. And it is from its want of specific action, from its passiveness, that the inference is drawn of a general license. The most which can be said is, that the government has forborne to exercise its rights, but this forbearance confers no positive right upon the miner, which would avail as a protection against the assertion of its claims to the mineral. The supposed license from the General Government, then, to work the *375mines in the public lands, consists in its simple forbearance. Any other license rests in mere assertion, and is untrue in fact and unwarranted in law.
It may be, and undoubtedly is, a very convenient rule, in determining controversies between parties on the public lands, where neither can have absolute rights, to presume a grant, from the government, of mines, water-privileges, and the like, to the first appropriator; but such a presumption can have no place for consideration against the superior proprietor. Presumptions are indulged to supply the absence of facts, but never against ascertained and established facts. That there has been no grant from the government is certain, for its records and legislation are public and open to examination, and its forbearance as to the public lands would not, as we have observed, avail against the assertion of its claims, much less confer rights capable of enforcement in reference to other lands.
But even if this forbearance were entitled to the slightest consideration as a legal objection to the assertion of the title of the government, which we do not admit, it could only be so in those cases where it has been accompanied with such knowledge, on its part, of the working of the mines and the removal of the mineral, as to have induced investigation and action, had this been intended or desired. Such knowledge must be affirmatively shown by those who assert a license from forbearance. This knowledge may be affirmed with reason as to mines on the public lands; but it is not shown—nor can it be—that the government ever knew that parties claimed, under its permission and authority, to enter upon private land held by title paramount to its own, and to extract and remove the mineral. ¡Nor do we admit that the United States—holding, as they do, with reference to the public property in the minerals, only the position of a private proprietor, with the exception of exemption from State taxation, having no municipal sovereignty or right of eminent domain within the limits of the State—could, in derogation of the rights of the local sovereign to govern the relations of the citizens of the State, and to prescribe the rules of property and its mode of disposition, and its tenure—enter upon, or authorize an entry upon, private property for the purpose of extracting such minerals imbedded in the soil, which could only be done by *376lessening or destroying the value of the inheritance. The United States, like any other proprietor, can only exercise their rights to the mineral on private property, in subordination to such rules and regulations as the local sovereign may prescribe. Until such rules and regulations are established, the landed proprietor may successfully resist, in the Courts of the State, all attempts at invasion of his property, whether by the direct action of the United States, or by virtue of any pretended license under their authority. The defense resting upon such alleged license must consequently fail.
The claim of a license from the State with reference -to the mines, assuming that she possesses title to the mineral, is based on her affirmative acts, and not on mere forbearance. By her legislation she has authorized the issuance of licenses to certain classes of persons; has provided for the introduction of proof of particular customs, usages, and regulations, in actions respecting mining claims; has levied taxes upon canals and ditches, constructed for the express purpose of conducting water to be used in mining for gold ; and, in a great variety of instances, has expressed her recognition of a license in the miner to use whatever right she possessed. But this license very justly inferred, from the general course of her legislation, is restricted to the public lands. This has been expressly adjudged by this Court in repeated instances.
In Stoakes v. Barrett, (5 Cal. 36,) the Court said : “ We held in the case of Hicks et al. v. Bell et al. that the mines of gold and silver in this State were the property of the State, and that the policy of her legislation permitted all persons to work for these metals. We did not, in that case, intend to go further than to decide the right of all citizens to dig for gold upon the public lands; for although the State is the owner of the gold and silver found in the lands of private individuals as well as the public lands, yet to authorize an invasion of private property, in order to enjoy a public franchise, would require more specific legislation than any yet resorted to.”
In Tartar v. The Spring Creek Co. (5 Cal. 396,) the Court said : “ The current of decisions of this Court go to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such *377occupation to acquire the right of undisturbed enjoyment against all the world but the true owner.
In evidence of this, acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recovery of mining claims; recognizing canals and ditches which were known to divert the water of streams from their natural channels for mining purposes, and others of like character.
This policy has been extended equally to all pursuits, and no partiality for one over another has been evinced, except in the single case where the rights of the agriculturist are made to yield to those of the miner, where gold is discovered in his land. This exceptional privilege is, of course, confined to public lands, as we held in Stoakes v. Barrett et al. at the last January-Term;” and after referring to some previous decisions, the Court observed that t “ It results from the consideration we have given the case, that the right to mine for the precious metals can only be exercised upon public lands—that although it carries with it the incidents to the right, such as the use of wood and water, those incidents must also be of the public domain, in like manner as the lands—that a prior appropriation of cither to steady individual purpose establishes a quasi private proprietorship, which entitles the holder to be protected in its quiet enjoyment against all the world but the true owner, except in the single case provided to the contrary by the statute which I have already adverted to.”
In Fitzgerald v. Urton, (5 Cal. 309,) the Court said: “ The Legislature of our State, in the wise exercise of its discretion, has. seen proper to foster and protect the mining interests as paramount to all others. In permitting miners, however, to go uponi public lands occupied by others, it has legalized what would otherwise have been a trespass, and the act cannot be extended by-implication to a class of cases not specially provided for.”
But it is contended by the learned counsel of the defendant that these decisions, in limiting the license to the mines on the public lands, proceeded upon a misapprehension of the legislation of the State. We do not think so. The first statute respecting the mines was passed in 1850, and provides for the issuing of licenses to foreign miners. There is nothing in that act restricting in express terms the license to mine to the public lands, but *378such must evidently have been the intention of the Legislature, as by the 14th Section, it is provided that it shall be the duty of the Governor, so soon as he shall be officially informed of the passage of a law by Congress assuming the control of the mines of the State, to issue his proclamation requiring all collectors of licenses to foreign miners to stop the issuance of licenses. The legislation anticipated, manifestly had reference to the public lands. (Ses. Laws of 1850, Ch. 97.) In the following year the law was repealed, and, in the same year, the Practice Act was passed, the 621st Section of which provides that, “in actions respecting mining claims, proof shall be admitted of the customs, usages, or regulations, established and in force at the bar or diggings, embracing such claim, and such customs, usages, or regulations, when not in conflict with the Constitution and laws of this State, shall govern the decision of the action.” In 1852, the act in relation to possessory actions was passed. That act authorized suits by settlers on the public lands, for the purposes of cultivation or grazing, to maintain actions for interference with, or injuries done to, their possessions, with a proviso, that if the lands thus occupied include mines of the precious metals, the possession should not preclude entry upon the same as fully and unreservedly as it might have been made but for the possession.
There are other Acts of a similar character, but we do not see anything in them which directly asserts a right to mines- on private lands. The first Act relating to mining licenses refers, as we have seen, to the public lands. The subsequent Acts relating to such licenses do not contain the provision of the first, but -in their passage the Legislature only adopted a municipal regulation to govern the conduct of a certain class of persons, for the purpose of raising revenue from them, and did not undertake to dispose of any proprietary interest which she may have possessed in the mines. The Possessory Act applies only to public-lands, and the provision as to the introduction of customs and usages in suits for mining, determines nothing beyond the admissibility of certain kinds of evidence.
The premises in controversy in the present case being private property, it follows that there is no pretense for the justification of the defense of a license from either the General or State Government. If the mineral belong to either government, there *379must be, as held in Stoakes v. Barrett, more specific legislation than any yet resorted to, before the invasion of private property can be permitted in search of it or for its extraction. What that specific legislation should be in such case, it is unnecessary to determine. It is but reasonable to say that it should embody provisions for the protection of the rights of the landed proprietor, and furnish ample indemnity against the damage arising from the injury to his possessions.
The doctrine of an unlimited general license—put forth in" many instances, and advocated by the defense—is pregnant with the most pernicious consequences. If upheld, it must lead to the spoliation of landed estates, under the pretense of mining, without possibility of protection or redress on the part of the owner. There is gold in limited quantities scattered through large and valuable districts, where the land is held in private proprietorship, and under this pretended license the whole might be invaded, and, for all useful purposes, destroyed, no matter how little remunerative the product of the mining. The entry might be made at all seasons, whether the land was under cultivation or not, and without reference to its condition, whether covered with orchards, vineyards, gardens, or otherwise. Under such a state of things, the proprietor would never be secure in his possessions, and without security there would be little development, for the incentive to improvement would be wanting. What value would there be to a title in one man, with a right of invasion in the whole world ? And what property would the owner possess in mineral land—the same being in fact to him poor and valueless just in proportion to the actual richness and abundance of its products ?
There is something shocking to all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields and gardens, cut down his timber and occupy his land, under the pretense that he has reason to believe there is gold under the surface, or if existing, that he wishes to extract and remove it.
We have thus gone over all the grounds taken by the defendant, and in none of them do we find any valid objection to the recovery of the plaintiff. In passing upon the case, we have extended the greatest indulgence to the defendant. We have con*380sidered matters not brought in issue by the pleadings, and which, because not presented by any written allegations, were not entitled to notice. We have done so, partly, because argument was allowed upon them before the Court without objection, but, principally, because we have hoped to thus put at rest forever the controversy between these parties. We do not intend, however, to allow this indulgence to be drawn into a precedent for permitting the loose practice thus adopted. If parties consent that defenses, other than those alleged in their answers, may be set up, they must be presented by regular written allegations, in a properly traversable form, or we shall not regard them.
Judgment affirmed.
Baldwin, J. having been counsel for the Respondent did not sit in the case.
See Moore v. Smaw, October Term, 1860,