Hicks v. Bell , 3 Cal. 219 ( 1853 )

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

The objection that the record discloses that there was no actual possession, is not good, because it appears there was actual possession of a portion adjacent to the premises in dispute, and, as I understand it, constructive possession of the latter was claimed by the rules and customs of miners on that part of the river. Nor can it be determined that the jury were not properly informed as to what were these rules. The bill of exceptions does not pretend to set out all that occurred on the trial, but only such incidents as were subjects of dispute and exception.

The jurisdiction of the District Court is conferred and defined by the Constitution, and no statute can deprive it of its powers. Although the jurisdiction of mining claims is given to the Justices of the Peace, that of the District Court remains unaffected, if the amount in controversy exceeds two hundred dollars.

The main reliance in this case of the appellants is, that the land in question is the public land of the United States, and therefore the statutes of this State, which recognize the possessions of miners, which provide for their protection, and require mining claims to be decided according to the rules and regulations of bodies of miners, at each particular mining locality, are mere police regulations, and are invalid to confer any right, such as that of possession, or to enable the recovery thereof.

This position involves the decision of the question, to whom do the mines of gold and silver belong ? To arrive at a satisfactory solution, it is only necessary to examine a few of the leading authorities.

According to the common law of England, mines of silver and gold are termed royal mines, and are the exclusive property of the Crown.

Blackstone says, vol. 1, 'p. 294: “ A twelfth branch of the royal revenue, the right to mines, has its original from the king’s prerogative of coinage, in order to supply him with materials, and therefore those mines which are properly royal, and to which the king is entitled; when found, are only those of silver and gold. By the old common law, if gold or silver be found in mines of base metal, according to the opinion of some, the whole was a royal mine, and belonged to the king.” And he cites 2 Just. 577.-

In the case of The Queen and the Earl of Northumberland, cited from Plowden, it was decided that although the king grant lands and the mines which are in them, yet royal mines will not pass by so general a description.

It was further explicitly decided, in the same case, that all mines of gold and silver within the realm, though in the lands of subjects, belong to the crown; and this right is accompanied with full liberty to dig, and carry away the ores, and with all such incidents thereto, as are necessary to he used for getting them.

This case has never been overruled, and stands as the accepted exposition of the common law. For although Lord Hardwicke, in the case of Siddal v. Weston, 2 Atk. 20, seems to confine the royal right of entry to cases where the mine had already been opened, yet he does not question the royal ownership, and seems finally to decide the case upon a different reason. Even, however, his slight departure from the doctrine of the case in Plow-den, was subsequently disapproved and doubted as authority by Sir Wm. Grant, Master of the Bolls, in the case of Seaman v. Vaudrey, 16 Yesey, 393.

The rule, therefore, as laid down in the case from Plowden, may he considered as uncontradicted, and has the solemn sanction of being the concurrent decision of all twelve of the judges.

Blackstone, it will be seen, attributes the origin of the law to the right of coinage. Plowden says, that the reason is because gold and silver are most excellent things, and the law has appointed them to the person who is most excellent, and that was the king. It is, however, immaterial as to the reason for its origin ; the law has been settled beyond question, as it is declared by the earliest and most distinguished judges, and to this time has never been disputed. See Bambridge on the Law of Mines and Minerals, where the authorities are collected.

This doctrine of the law has been acted upon in some, and probably in many, of the States in the Union. In Pennsylvania, it was the subject of legislation as early as 1787. In that year, by an act establishing a land office, she reserves for the use of the Commonwealth, one-fifth of all gold and silver ore. See Dunlap’s Laws of Pennsylvania.

In New York, as early as 1789, an act of the legislature w'as passed, exempting the discoverers of gold and silver mines from paying to the people of the State as sovereign thereof, any portion or dividend of the yield, for the space of 21 years from the time of giving notice of the discovery; and forbidding the working of the same after the expiration of that term. See 1 Laws of New York, 124.

Again, in 1827, another act was passed, which declares that all mines of gold and silver discovered, or hereafter to be discovered, within this State, shall be the property of the people of this State, in their right of sovereignty. See 1 Revised Statutes, 281.

This was in effect but a re-enactment of the common law, which vested the right in the State government as the successor of the king.

It is hardly necessary at this period of our history, to make an argument to prove that the several States of the Union, in virtue of their respective sovereignties, are entitled to the jura regalia which pertained to the king at common law.

An analogous question to the one under consideration was fully discussed in the Supreme Court of the United States, in the case of Rowland’s lessee v. Hagan, 3 Howard. It was there held, in the case of a new State, that she was admitted into the Union upon the same footing as the original States, and possessed the right of eminent domain. Numerous other cases can he cited in which the decisions are uniform, that the United States has no'municipal sovereignty within the limits of the States.

In reference to the ownership of the public lands, the United States only occupied the position of any private proprietor, with the exception of an express exemption from State taxation. The mines of gold and silver on the public lands are as much the property of this State, by virtue of her sovereignty, as are similar mines in the lands of private citizens. She has, therefore, solely the right to authorize them to be worked; to pass laws for their regulation; to license miners; and to affix such terms and conditions as she may deem proper, to the freedom of their use. In her legislation upon this subject, she has established the policy of permitting all who desire it, to work her mines of gold and silver, with or without conditions; and she has wisely provided that their conflicting claims shall be adjudicated by the rules and customs which may be established by bodies of them working in the same vicinity.

According to this enactment, the case under consideration has been tried and decided, and for aught that is disclosed by the record, the decision is consonant with right and justice.

Judgment is affirmed.