Field, C. J. and Cope, J. concurring.
Ejectment for a mining claim.—Conceding, for the purposes of the decision, that a partnership for the purchase of mining claims is a partnership for dealing in land, and that the agreement must be in writing, within the Statute of Frauds, in order to entitle the several partners to any interest or share in the land purchased by one, still it seems to us that the appellants cannot avail themselves of this principle to defeat the plaintiff’s action.
It appears that the plaintiff, Gore, and defendant McBrayer and others, verbally agreed to prospect for quartz, and to be equally interested in claims taken up, and that McBrayer discovered this lead or claim, and located it by putting up a written notice with j plaintiff’s name and others on it, and thus making claim to the lead. This process seems to be the usual mode recognized among miners to indicate the taking up of a claim of this sort—as, in fact, an appropriation or proof of appropriation of the claim. As the title comes from appropriation made in accordance with the mining rules and customs, and as it is not necessary that a party should personally act in taking up a claim, or in doing the acts required to give evidence- of the appropriation, or to perfect the appropriation, it would seem that such acts as this are valid to give title to the claimant, if done by any one for him or with his assent or approval. Indeed, we suppose that the assent would be presumed when the name of a party is used in taking up a claim, or what is the same thing, inserted in a notice which is the external, manifestation of the purpose to appropriate—upon the principle. *588that a party is presumed to assent to a deed or other act plainly for his benefit. Any recognition of the authority of the person acting for such claimant, or adoption of the act evidenced by the notice or claim, would be sufficient to give it validity—certainly, if nothing had intervened between the notice and the adoption or recognition to alter the relations of the parties to the claim. But it is enough to say, that in this case the agreement operate'd as the authority from Gore to McBrayer to take up this claim or any other, and to use his (Gore’s) name for that purpose. It is as if Gore had made McBrayer his agent to take up the claim for him and in his name; and, upon the performance of the act, Gore’s title, so to speak, vested, and he was the owner, subject to the rules of the vicinage, of the claim, or his share of it. We do not see what the statute of frauds has to do with such a case. The title to the land is in the United States; the right to mine and to use and hold possession of the claim inures by a sort of passive concession of the Government to the discoverer or appropriator. No writing is necessary to give the miner.a title ; but whatever right he has originally comes from the mere parol fact of appropriation, unless indeed, the rules or the customs prevailing in the vicinage, or recognized among miners, make a written notice necessary, and unless, further, this notice be a writing within the meaning of the rule applicable to real estate titles. If this be so, then the plaintiff would have the required written 'evidence of title—his name having, with his consent, been inserted in the notice. However this may be, we consider that all that the plaintiff was required to do to give him all the right to be derived from an appropriation of this claim,- was to authorize it to be taken in his name, and then the consequent act of the defendant in making the claim in plaintiff’s name and for his use in the notice perfected his right. The right of Gore having attached in this way, his claim was like any other fixed right, and could not be divested by the mere act of the agent or associate McBrayer, in taking down the notice. and putting up • other notices with other names. (See McGarrity v. Byington et al., 12 Cal. 426, for the principle of this case.)
2. There is nothing in the point that the mining laws, offered in: evidence were passed on "a different day from that advertised for a. *589meeting of miners. We cannot inquire into the regularity of the modes in which these local legislatures or primary assemblages act. They must be the judges of their own proceedings. It is enough that the miners agree—whether in public meeting or after due notice—upon their local laws, and that these are recognized as the rules of the vicinage, unless some fraud be shown, or some other like cause for rejecting the laws. It is not necessary to consider the other points. The instructions asked were abstract, in the view we have taken of the case. After the notice containing the name of- Gore, he became a tenant in common of the mine, and might bring this action to vindicate his title against any one who excluded him and denied his right. We think the circumstances do not make out a partnership, but only a tenancy in common.
Judgment affirmed.
Upon a petition for rehearing, the opinion of the Court, per the same Justices, was as follows:
Petition for rehearing.
The error of the ingenious argument of the appellant’s counsel has been exposed in the opinion reviewed by the petition. It is in supposing that a writing is necessary to vest or divest a title on taking up a mining claim. The title is in the Government; if a written contract is needed to divest it, the Government would have to execute it. But, subsidiary to the Government’s paramount title is the permissive claim of the locator. This comes from a mere parol fact, evidenced in the present case by a notice; this notice is a mere advertisement of this parol fact. A verbal authority is sufficient to authorize an agent to make the entry, or to get up the notice. Ho title is divested out of the Government by this process, but a right of entry given under the Government. When acting for himself, or for any other who authorized the act, these acts confer this permissive title to the public mineral land, and the statute of frauds has no application to this class of cases. It is not a mode of vesting, or transferring title from the owner of the fee or holder of the title, but a mere mode of showing that the locator has availed himself of the Government’s concession of the privilege of occupying and using the ground. This right may be exercised through an *590agent or servant; whenever the appropriation is made by an agent having authority from a principal to make it, the act is complete and title vests in the principal, and the agent, by his mere act, cannot subsequently divest it. If the local law were that any man might take up a mining claim by advertising the fact in a newspaper, and A agreed to take up a claim for B, and did advertise the claim in the paper, we apprehend he could not afterwards be heard to say he had no written authority, for if allowed to dispute his own act, the answer would be that it required no written instrument to impart authority to make the advertisement in the name, or even to use the signature of the principal.
Rehearing denied.