APPLICATION FOR REHEARING.
(January Term, 1888.)
Long, C. J.The defendant has filed a petition for rehearing, assigning therein 12 reasons why the same should be granted.
The first, second, third, and fifth points made are but a repetition of those urged both in the oral argument and in the printed briefs, and already fully considered and determined. They present no new consideration, and are fully met by the opinion.
The fourth proceeds upon a misapppreliension of the consideration stated in the opinion of the court. The court does not ignore what is claimed in the petition to be the well-established rule “that when there is any conflict between monuments and landmarks named in a description of property, and the courses and distances given, the latter must give way to the former,” but on the contrary, from a careful consideration of the evidence, finds there is no such conflict, and so no reason for the application of any such rule.
As to the sixth point, the court takes the statement of George "William Ballou, president of the defendant company, as to the date of organization, to-wit, January 28, 1880, as being the truth; and presents facts, circumstances, and information given to him as president, before the conveyance was made to defendant, sufficient, as we think, to constitute notice.
As to the matter presented under the eleventh specification, it would seem, if the defendant is not an innocent purchaser, the ease should be considered on its original facts, independently of any presumptions arising from the patent. If defendant occupies the position of an innocent purchaser, buying and receiving conveyance for value without notice, he cannot be affected by the fraud, and that ends the' inquiry about it as to that branch of the ease. But we do not think the defendant is in position to be protected from inquiry, and to hold notwithstanding the fraud alleged and proven. Under the authorities already cited, it is not necessary that defendant should have knowledge before purchase of each and every fact necessary to be proven to make out a ease on final trial. A familiar illustration of this principle is where bidders at a public sale are notified in general terms of some outstanding equity in a third party, without stating the evidence which will support the claim when brought into court. Under such circumstances, the purchaser is not bound to buy. He may do so, but if he does so, he assumes the risk. This is not a case, as it has impressed itself upon us, where mere doubt is cast upon the survey, but rather one where the evidence clearly proves it wrong, and willfully so.
The other questions raised on the petition relate to' ruling on the supplemental bill, and may be considered. The averments of the bill and answer clearly make an issue as to the right to the precious metals, especially of the Big copper mine. "Nothing appears in the record to show the exact points considered below, but it must be assumed all matters in issue were determined. The defendant in the issues does not place its possession and right to mine upon any claim under the mining laws of the United States, but does assert its right under the grant. It is not apparent how this issue, clearly on the face of the record, could be ignored. To have decided against the complainant would have estopped her by a solemn judgment from claiming the precious metals. The adjudication would constitute a bar to any future assertion of right to such minerals. The supplemental bill does not seem to have been in any way carried out of the record in the court below. An issue is made upon it by the defendant, and it is thereby treated as properly in the case. It is urged the court should reconsider its position as to the legal effect of the confirmation. The language of the eighth reason in the petition for rehearing indicates some misapprehension as to the point decided. It is the intention of congress in the confirmatory act relating to the grant of Ramirez ■only which is passed upon. That the title to mines under the Mexican law at the date of the Ramirez grant did not pass by an agricultural grant is, it seems to us, so well established that it is beyond doubt. If the distinction between the construction w'hich should be placed upon a public grant, and that which is given to a private grant from one individual to another, stated in the opinion, is correct, there can be but little doubt as to the construction which then, under such a rule, must be given to the act of confirmation. If it be true, as said by an eminent authority, “according to the common law of England mines of gold and silver were the exclusive property of the crown and did not pass under a grant by the king under a general designation of lands,” it would seem the rule of construction heretofore stated is correct.
Blackstone has said: “A grant made by the king shall be taken most beneficially for the king and against the party receiving the grant. ” The supreme court of the United States has also said: “Public grants are to be construed strictly.” Devlin on Deeds lays down the rule, and supports it with á very large number of citations, that the grant of the sovereign is to be construed strictly against the grantee. In the case of Bridge v. Bridge, 11 Pet. 536, cited in the original opinion which we are asked to reconsider, the principle above stated is clearly announced. Such able lawyers as Mr. Webster and Mr. Greenleaf were in the case, and the opinion was delivered by Chief Justice Taney, who commences his opinion as follows: “ The questions involved in this case are of the gravest character, and the court have given to them the most anxious and deliberate consideration. * * * ” Considering the question of the construction to be applied, the able chief justice proceeds: “It would present a singular spectacle if, while the courts in England are restraining within the strictest limits the spirit of monopoly, and exclusive privileges in the nature of monopolies, * * * the courts of this country should be found enlarging these privileges by implication, and construing a statute more unfavorably to the public and to the rights of the community than would be done in a like case in an English court of justice. But we are not left to determine for the first time the rules by which public grants are to be construed in this'country. The subject has already been considered in this court, and the rule of construction above stated fully established. In the case of U. S. v. Arredondo, 6 Pet. 738, the leading cases on this subject are collected together by the learned judge who delivered the opinion of the court, and the principle recognized that in grants by the public nothing passes by implication. The rule is still more clearly and plainly stated in the case of Jackson v. Lamphire, 3 Pet. 288.” The same question was before the supreme court of the United States as lately as 1883, in the case of Slidell v. Grandjean, 111 U. S. 437, 4 Sup. Ct. Rep. 475, where it was said by Justice Field, who delivered the opinion of the court: “It is also a familiar rule of construction that where a statute operates as a grant of public property to an individual, or the relinquishment of a public interest, and there is a doubt as to the meaning of its terms, or as to its general purpose, that the construction should be adopted which will support the claim of the government, rather than that of the individual. Nothing can be inferred against the state. As a reason for this rule, it is often stated that such acts are usually drawn by interested parties, and they are presumed to claim all they are entitled to. The rule has been adopted and followed in this court in many instances in the construction of statutes of this description. ” And then come citations as follows: Bridge v. Bridge, 11 Pet. 420-536; Railroad Co. v. Litchfield, 23 How. 66-88; Minot v. Railroad Co., 18 Wall. 206. And the court continues: “ The rule is a wise one; it serves to defeat any purpose concealed by a skillful use of terms to accomplish something not apparent on the face of the act* and thus sanctions only open dealing with legislative bodies.”
Bearing in mind that, under the law, before confirmation of his grant Ramirez had no right to .the precious metals under his agricultural grant, and applying the principle of strict construction to the confirmatory act, it seems to be perfectly clear that the mines of gold and silver did not, under the confirmatory act, pass to him, and especially so in view of the express declination of the surveyor general to act on his application for the mine.
The petition for rehearing is overruled.