Biddle Boggs v. Merced Mining Co.

         This case presents but two questions for the consideration of the Court: 1. Did the right to the gold in the soil pass to Fremont by his patent from the United States; and, 2. Has he done anything whereby he is estopped from asserting that right against the defendant?

         Of these questions, I propose only to discussthe first.

         That Fremont, the plaintiff's grantor, is the legal owner of the locus in quo, is not denied; but, it is asserted that, under our political system, the gold and silver in the earth belong to the sovereign, even when the soil in which it is embedded may have become individual property. It is asserted that, by the common law of England, the title to the royal metals vested in the crown by right of sovereignty. To sustain this assertion, we are referred to two authorities--one at the beginning, and the other at the end, of reported cases: 1st of Plowden, and 3d of California. There never was any such doctrine known to the common law of England. The doctrine of that law was, cujus est solum, ejus est, ab imo usque ad coelum .

         In Hicks v. Bell, two things, distinct and separate in their nature, viz.: the sovereign right of eminent domain, and a personal prerogative of the King of Great Britain, are confounded. There are certain inherent rights, inseparable from the power of government that must necessarily attach to sovereignty wherever it exists. Such is the power to take private property for public use, known as the right of eminent domain. Of the samenature is the right to control navigable streams, although the freehold may be in a private individual. To the same class may possibly belong the power to coin money. All these are powers absolutely necessary to the very existence of civilized governmnt, and, consequently, they appertain to it wherever it exists. All that has been effected by the most jealous guardians of private rights has been to place a restriction upon the power of taking private property for public use, by making compensation a prerequisite to the taking. Now, among these inherent sovereign powers, we may reckon the power of taxation, or that power by which revenue for the necessary expenses of the government is created. The power to raise revenue is a general one, and attaches to all governments by virtue of sovereignty; but the particular sources of revenue are fluctuating, and vary with the will of each particular sovereign. The mines of gold and silver were once one of the sources of revenue of the government of Great Britain, and it would be as reasonable to claim tonnage and poundage, and the sale of monopolies to be inherent, indefeasible appurtenances of sovereignty, as to claim that the sovereignty of California invested her with a right to the mines of gold and silver within her limits. Appurtenances of sovereignty are those rights, privileges, and powers, of which the State cannot divest herself without self-destruction. Tried by this test, a gold mine cannot be an appurtenance of sovereignty.

         The distinction between this general power of eminent domain and the right of property in a particular source of royal revenue, is noticed by the English Judges in the " saltpetre case," reported in 7th of Coke, as early as the year 1608. The report says: " It was resolved that this taking of saltpetre is a purveyance of it for the making of gunpowder, for the necessary defense and safety of the realm, and for this cause, as in other purveyances, it is an incident inseparable to the crown, and cannot be granted, demised, or transferred, to any other, and cannot be converted to any use than for the defense of the realm, for which purpose only the law gave to the King this prerogative. And it is not like to the mines of gold and silver, for there the King hath interest in the metal. "

         Here we see the Judges draw a distinction between powers absolutely necessary for the general welfareand those rights of property in which the representative of the crown had a personal interest. In the latter category are classed mines of gold and silver. Now, what is there in common between the government of California and the representative of the sovereignty of England, from which we are to infer that every species of personal property conceded to the one attaches to the other? If it were true that the rights of property in the State of California were to be measured by the claims of the absolute sovereigns of Britain, she would be entitled to all the whale and sturgeon taken on the coast, or in her waters; to first fruits, and tithes, and to all the property wrecked upon her coast. These were all sources of the ordinary revenue of the British Crown, peculiar to it, exacted in early times by an absolute master, and yielded by an enslaved people.

         To sustain this claim upon the part of the State, it is not sufficient to show that this species of property was once vested in the sovereign of Great Britain, but it must appear that it vested in him by virtue of that, which alone the State holds in common with him, the quality of sovereignty. Now, the only sovereign power to whichthis right has ever been referred, is that doubtful one of the right of coinage. In the first place, it is difficult to perceive how the possession of bullion is necessary to the monopoly of coinage. If the proposition ever presented any difficulty to our inexperienced ancestors, the later experience of European and American governments has abundantly demonstrated, that the power of coinage in the government is entirely compatible with the private ownership of bullion. But if this right to the precious metal depends upon the right of coinage, it must come and go with that right. Now, it so happens, that the sovereign State of California possesses no such sovereign right. Cessante ratione, cessat lex .

         Although this royal prerogative of coinage may have been the subtle pretense, or excuse, for this claim to the private property of the subject, certain it is, that the funds from this source were not devoted to the creation of a circulating medium, but were mingled with those derived from escheats, fines, deodands, wrecks, etc. and constituted what was called the ordinary revenue of the Crown. When these resources were not sufficient to meet the expenses of the prince's householdand the wars he set on foot, the extraordinary measure of a subsidy aid or supply was resorted to. By degrees, these extraordinary sources of revenue, under the name of taxation, as being more equal, and as possessing the advantage of being self-imposed, have superseded the arbitrary and despotic sources of revenue known to earlier times. It is upon this happy change, that Mr. Stephen, the latest and ablest of the commentators upon the laws of England, congratulates his fellow subjects.

         " The decay," says he, " of the sovereign's private patrimony ought to be considered, as in some degree, compensatory for the burden of taxation. For, if every gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the Crown; was to be again subject to the inconveniences of purveyance and pre-emption, the oppression of forest laws, and the slavery of feudal tenures; and was to resign into his sovereign's hands all his royal franchises, of waifs, wrecks, estrays, treasure trove, mines, deodands, forfeitures, and the like, many would perhaps find themselves greater losers than by paying their quota of such taxes as are necessary to the support of government."

         Atthe January Term, 1858, Burnett, J. delivered the following opinion:

         On the 29th day of February, 1844, Governor Micheltorena granted to Juan B. Alvarado, a tract of land known by the name of the " Mariposas," to the extent of ten square leagues. On the 10th of February, 1847, Alvarado conveyed his title, by warranty deed, to John C. Fremont. The claim was presented to the Board of the United States Land Commissioners, and finally confirmed by the decision of the Supreme Court of the United States, at the December Term, 1854. A survey was made in July, 1855, and a patent issued to Colonel Fremont, February 19th, 1856. On the 22d day of April, 1857, Colonel Fremont leased a part of the tract, being the premises in dispute, to the plaintiff, for seven years, at a monthly rent of one thousand dollars. In May, 1851, the defendant, then and ever since, a corporation for mining purposes, entered upon and took possession of the premises, and has continued in possession, working the quartz veins, and extracting the gold therefrom, and has expended, in the erection of machinery and other improvements, upwards of eight hundred thousand dollars. This action was brought by the plaintiff torecover possession of the property and damages for its detention since the date of the lease. By a stipulation between the Attorneys, the defendant was allowed to set up in defense any matter that could be the subject of a bill in equity. The plaintiff had judgment in the Court below, and the defendant appealed.

         The case presented by the record is one of the most important that has ever been considered by this Court, not only in regard to the pecuniary value of the subject in controversy, but in reference to the consequences likely to flow from the decision. We have given to the case that careful consideration which its magnitude demanded.

         Under the view we have taken of this case, there are only two positions necessary to be examined:

         1. Whether the title to the mineral passed to Col. Fremont?

         2. Whether, conceding that it did not, the defendant has the right to extract the gold, while the title in fee simple of the land is in the lessor of the plaintiff?

         If the gold in the premises in controversy now belongs either to the State or to the United States, it does not belong to Col. Fremont, and the effect must be the same upon the right of the plaintiff to recover.

         Ifwe concede, for the sake of the argument, that the " United States could only occupy the position of any private proprietor, with the exception of an express exemption from State taxation; and that the mines of gold and silver on the public lands are as much the property of this State, by virtue of her sovereignty, as are similar mines in the lands of private citizens," as held by this Court in the case of Hicks v. Bell, (3 Cal. 227,) then it follows that the gold found in the premises in controversy belongs to this State; provided, the title to the mineral did not pass to the grantee by virtue of the original grant. If the State, by virtue of her sovereignty, succeeded to the rights of Mexico in the mines of gold and silver in the public lands, then, upon the same principle, the State must have succeeded to the rights of Mexico to the mines in the lands of private proprietors. It would seem to be impossible to make any substantial distinction between the two cases. We cannot perceive any reason or principle for the distinction. The right of the State must be the same in both cases, for the reason that the right of Mexico, as to the mineral, was the same in both.

         But if wetake the opposite theory to be true, that the property in the mineral did not pass to the grantee, but passed from Mexico to the United States, and did not vest in the State by virtue of her sovereignty, or otherwise, then the question arises, how did the title to the minerals pass from the United States to Col. Fremont?

         In examining the question, as to whether the title to the mineral passed from the United States to the grantee, we must take the decisions of the Supreme Court of the United States as conclusive upon this Court.

         The object of the Act of Congress of March 3d, 1851, was, as its title imports, " to ascertain and settle private land claims in the State of California." The purpose and scope of the Act were only to ascertain and settle private titles derived from Spain and Mexico; not to grant new, but to ascertain and settle or confirm the old titles. Hence, the decree was one simply of confirmation or rejection. To confirm is " to make firm or certain; to give new assurance of truth or certainty; to put past doubt." -- Webster. The confirmation must be of some title previously existing, and the confirmation only becomes conclusive evidence of that which it concedes existed before. Confirmation can only be matter of evidence. It makes certain, gives new assurance, puts past all doubt. The decision was only upon the validity of a pre-existing title. And when the title or claim was finally confirmed, and the patent issued, the final decree and the patent were only conclusive, between the United States and the claimant, as to the matters involved, and no more. The claimant presented his petition, setting forth his title, and praying for a confirmation of the same. When confirmed, he had only the title originally granted, with a " new assurance" of its validity. The effect of the patent was only such as the Act of March 3d, 1851, gave it. The patent could not go beyond the decree of confirmation, and the decree itself could not go beyond the original title. In other words, the decree could not vest in the grantee a title to that which was not included in the original grant.

         In the case of Fremont v. The United States, (17 How. 542,) the validity of his title was confirmed by the Supreme Court of the United States. The opinion was well considered, and distinctly settles positions from which certainconclusions must logically flow. Among the points substantially determined were these:

         1. That the Governor had the power to make the grant.

         2. That it conveyed to the grantee the title it purported to convey.

         3. That the title was in fee.

         4. That the grant contained conditions, but these were conditions subsequent.

         5. That the definitive grant was " intended as the evidence that the conditions annexed to the grant have all been complied with."

         6. That " the right to so much land, to be afterwards laid off by official authority, in the territory described, passed from the government to the grantee by the execution of the instrument granting it."

         7. That whatever interest remained vested in the grantee or his assigns at the date of the treaty, " the United States are bound in good faith to uphold and protect."

         The conditions annexed to the grant, including the approval of the Departmental Assembly, being conditions subsequent, their non-performance could only divest a title previously vested. And the effect of the definitive grant being only evidence that these conditions had been fulfilled, no title passed by it; but the title must havepassed by the original grant, if it passed at all. And it was only such title as existed at the date of the treaty that the United States were bound to protect. They were not bound to make the original grant convey a title to property, which was not included in its terms when issued. In the case of Osborn v. Hendrickson , 8 Cal. 31, we held that " parol evidence could not add to the writing a description of property not embraced in it." And so, if the original grant to Alvarado did not convey the title to the mineral, the subsequent confirmation and patent did not do so. This seems to be the result of the Act of March 3, 1851, and the decision of the Supreme Court. In the opinion, the Chief Justice says:

         " The only question before the Court is the validity of the title. And whether there be any mines on this land, and, if there be any, what are the rights of the sovereignty in them, are questions which must be settled in another form of proceeding, and are not subjected to the jurisdiction of the Commissioners or the Court, by the Act of 1851."

         From this it would seem to be clear that no new rights were subjected to the Commissioners or the Court; and, therefore, the effectof the decree and patent could not be to convey any additional title to the claimant.

         If, then, the title to the mineral was reserved by the laws of Mexico when the grant was made, and was still retained by Mexico up to the date of the treaty, this right must have passed to the United States, unless the General Government did not possess the capacity to receive it. The law existing at the time the grant was made entered into and formed a part of the grant, without any express stipulation to that effect. If, therefore, by the terms of the grant, as controlled by the existing law, the title to the mineral was reserved to the government of Mexico, that title passed out of Mexico and vested in the United States, or in the claimant; and if it vested in the United States it was either in their own right, or as Trustee for the future State.

         It is insisted by the learned counsel for the plaintiff, that " upon the cession of the territory by Mexico to the United States, the sovereign right of Mexico to the mines ceased, and there was no sovereignty to take. The Mexican law of denouncement was gone, for the mines could only be denounced by virtue of her proprietorship. The necessaryresult was, that as far as concerned mines in granted lands, they went with the land, and became the property of the owner, for the law does not tolerate the want of an owner for anything of value."

         This position of the learned counsel is no doubt true, if we concede that the United States had no capacity to take, either in their own right, or as Trustee for the new State. But it is also clear, that if the United States had the capacity to take, in their own right, then the title remains in them, and the State has no more right to the mineral than to the land containing it.

         It must be conceded that there are certain inseparable incidents of sovereignty that must exist wherever sovereignty itself is found. Among these is the right to take private property for public purposes, the right of taxation, and the right to control navigable streams. These powers are necessary to the very existence of government. But it is equally true, that there are other powers that may belong to one government, under its own Constitution, that do not belong to another government, based upon different principles. For this reason, only so much of the common law is in force in this country asis consistent with our institutions. There are certain powers inherent in all governments; otherwise, they would not be governments at all. And it is equally clear, that these governments must differ from each other in certain other respects; otherwise, they would all possess the same powers.

         In the case of The Queen v. The Earl of Northumberland, (1 Plowden, 310,) the Court of Exchequer decided, after very full argument and great deliberation, that " all mines of gold and silver within the realm, whether they be in lands of the Queen, or of subjects, belonged to the Queen by prerogative, with liberty to dig and carry away the ores thereof, and with other such incidents thereto, as are necessary to be used for the getting of the ore." (Id. 336.)

         In the argument, the counsel for the Queen based this prerogative upon these grounds: 1. That gold and silver were the most excellent of all things, and, for that reason, belonged to the Queen, as the most excellent of all persons. 2. The necessity of the thing, as the Queen could not maintain an army without treasure. 3. As an incident to the right to coin money.

         The last ground is the one given by Blackstone. (1 Com. 294.) " A twelfth branch of the royal revenue, the right to mines, has its original from the King's prerogative of coinage, in order to supply him with materials."

         This right of the Crown is, no doubt, the settled law of England, upon whatever reasons it may be predicated. (Bainbridge on Mines, 40.) The different reasons assigned by different writers for this right, seem not to have been satisfactory to those who sustain it. It is the settled law, and that would seem to be about all that can be said in its favor.

         But in deciding the question, whether the title to the mineral in the premises in controversy, must, of necessity, be either in the United States or in the State of California, it becomes material to consider the reasons upon which this right of the Crown was based. For, though such is the positive law of England, the ground upon which such a rule is predicated may be wholly inapplicable to the nature and powers of our own government. If this right of the Crown be an inseparable incident of sovereignty, then the same right must belong either to the United States or to this State; but if, on the other hand, such right be not, in its own nature, an inseparable incidentof sovereignty, then the mineral may, or may not, belong to either government, and may be the property of a private individual.

         The incidents of sovereignty are those powers of which a State cannot divest itself, without materially impairing its efficient action. All the powers necessary to accomplish the legitimate ends and purposes of government must be sovereign, and, therefore, must exist in all practical governments.

         If, then, we try the question by this test, is a gold mine a necessary incident of sovereignty?

         The first and second reasons assigned by the Queen's counsel, in the case from Plowden, seem to have no force and no application; and the only ground to which this right can be referred with any apparent reason is the power of coinage. The State does not need the mine for the purpose of revenue, as the power of taxation is ample for that end. And it is difficult to perceive how the title to the mineral is a necessary incident to the exclusive right of coinage. In practice, we see such a theory refuted every day. By the Constitution of the United States the power to coin money, to regulate its value, and of foreign coin, is conferred upon the General Government; and the States are prohibited from making anything but gold and silver a lawful tender in payment of debts. These provisions, taken together, give all the power necessary to the Federal Government, without the ownership of the materials out of which the coin is made. And, as the State has no power to coin money, or regulate its value, she could have no claim to the mineral upon that ground.

         If we consider the positions established by the decision of the Judges, in the Earl of Northumberland's case, and in that of the Saltpetre case, in 7 Coke, 13, it will be seen, that this right of the Crown was not considered as an inseparable incident of sovereignty. In the first case, it was held, " that a royal mine may, by the grant of the King, be severed from the Crown, and be granted to another; for, it is not an incident inseparable to the Crown, but may be severed from it by apt and precise words." (1 Plowden, 336, a .) And, in the second case, " it was resolved, that this taking of saltpetre is a purveyance of it for the making of gunpowder, for the necessary defense and safety of the realm; and for this cause, as in other purveyances, it is an incident inseparable to the Crown, andcannot be granted, demised, or transferred, to any other, and cannot be converted to any use, than for the defense of the realm, for which purpose the law gave to the King this prerogative. And it is not like to the mines of gold and silver, for there the King hath an interest in the metal."

         The right to royal mines was a personal prerogative of the Crown, like many others, and could be alienated at the pleasure of the King. The right was not, in its nature, an incident of sovereignty; because, such incidents cannot be transferred to an individual without materially impairing the powers of the State.

         If these views be correct, there would seem to be no sufficient reason to sustain the position, that the title to the mineral is in this State. She cannot claim it on the ground of sovereignty, nor upon any other ground that we are aware of; and we are equally convinced, that the United States cannot claim this right upon the ground of sovereignty. But we can perceive no reason why the mineral could not belong to the United States, as well as to any other proprietor. The capacity to own the mineral is inherent in both the State and Federal governments. If they possess thecapacity to own the land containing the mineral, then they can own the mineral itself. And if the title to the land can be in one party, and the title to the mineral in another, then the title to the premises in controversy may be in Col. Fremont, and the title to the mineral in the United States.

         It is true, that the general rule of the common law is, that he who owns the land, owns all that the land contains. But, notwithstanding this general rule, the proprietor of the land may sell it, reserving to himself the title to the mineral in the land. There is nothing in the common law, nor in the reason and nature of the case, to prevent parties from making such a transfer of property, subject to such a reservation. Without such a reservation, either express or by the terms of the law then existing, the right to everything contained in the land would necessarily pass by the deed.

         The title to the land in controversy was, before the date of the grant, in the Republic of Mexico. By the grant, the title to the land, with a reservation of the mineral to the government, passed to the grantee. This right of Mexico was a public right--a right of property in the nation; and, inthe language of the Supreme Court of the United States, in the Fremont case, " passed with all other public rights, to the United States." (17 How. 565.)

         It does not matter upon what ground the Republic claimed this ownership, nor in what manner she exercised such a right; while she could not transfer her functions to the United States, she could transfer her right of property in the public lands, and the right to minerals in the lands of individuals. The United States could receive this title to the minerals, and could enforce the right in any form, or by any proceeding consistent with the frame of the government, and the substantial rights of the landed proprietor. The mere change in the mode of asserting or exercising the right, would not defeat the right itself, unless this change materially impaired the rights of the other party.

         The legislation of New York and Pennsylvania is not opposed to the view we have taken, but supports it. Those States claimed the mines of gold and silver within their respective limits, for the reason that the King of Great Britain had never granted them to individuals at the date of the treaty acknowledging our independence. The right ofproperty in these mines, being in the King, passed to the States in which they were found. The Federal Government, under the old Confederation, could take no title. And this legislation is based upon the principle that the ownership of the mineral may be distinct from the title to the land, and that this right in the State was not incompatible with her Constitution, or with her relation to the Federal Government, or with the rights of the landed proprietor.

         Our conclusion upon this branch of the case is, that the right to mines of gold and silver found in the lands of private persons was a personal prerogative of the British Crown, and not based upon any right incident to sovereignty; that such a right is not incident to our governments, either State or Federal, but that the capacity to own land and all that it contains is possessed by both; that the capacity to own, and the fact of ownership, are distinct things; that the title to the gold, in the premises in controversy, in this case, was reserved by Mexico, and passed, by treaty, to the United States, and has not passed from them to the lessor of the plaintiff.

         The second and last position to be examined is, whetherthe defendant has the right to extract the gold, while the title in fee simple of the land is in Colonel Fremont.

         The learned counsel for the plaintiff insist that, conceding the title to the mineral to be in the State, this fact cannot help the defendant. If this ground be correct, conceding the ownership to be in the State, it must be equally correct, if the ownership be in the United States. They insist that a party has no right to enter upon the land of another to search for gold, because the gold belongs to a third party; not even under a general license from the owner of the gold. It is conceded that the State, as the owner, might protect the party licensed against a trespasser, in such a case.

         But we cannot perceive the force of this reasoning. The right to the gold carries with it the right to search and dig, as necessary incidents, as was held in the case from Plowden. The ownership of the mineral would be of no value without the right to extract it. And this right in the government could only be exercised through its agents. The owner of the gold, whether a natural or artificial person, could do that by agent that could be done by the principal. The right to granta license to another is not injurious to the owner of the land, but beneficial to the owner of the mineral. Of course, the party licensed could do no more than the proprietor of the gold could do.

         The only remaining inquiry is, whether the defendant, under the circumstances, has a license from the United States. This question was very fully considered by this Court in the case of the Merced Mining Co. v. John C. Fremont et als. , 7 Cal. 130, 317. In that case, we said: " When we consider the current and the spirit of the legislation of both governments, taken in connection with the history and the known circumstances of the country, the conclusion is irresistible, that the mines are occupied and worked with the clear assent and encouragement of both governments. And while the terms of this license and the relation which the miner sustains to the superior proprietor may not be expressly laid down, and the duration of the estate not clearly designated by any positive law, and we may not, for these reasons, be able to give any exact definition of the precise nature of the right, yet one thing is well understood and indisputable: they are there by the clear license of both governments, and have such a title as will hardly be divested, even by the act of the superior proprietor. There are equitable circumstances connected with these mining claims that are clearly binding upon the conscience of the governmental proprietor, and that this Court must, with all due respect, presume will never be disregarded. If these views be correct, the owner of a mining claim has, in practical effect, a good vested title to the property, and should be so treated until his title is divested by the exercise of the higher right of the superior proprietor. His right and remedies, in the meantime, are not trammeled by the consideration that the higher right to reclaim the property exists in another, which right may possibly, but will not probably be exercised. His right to protect the property for the time being, under the peculiar circumstances of the case, is as full and perfect as if he was the tenant of the superior proprietor for years or for life."

         We have seen no reason to change the views we then expressed. These views are as applicable to this case as to the one then before the Court. We can see no reason or equity in allowing the plaintiff to turn off the defendantfor doing that which is no injury to the right conveyed by the grant to Alvarado. As Colonel Fremont had no title to the mineral himself, and could only take it as any other individual, his tenant has no such interest in the premises as will entitle him to recover. The defendant occupies simply and solely for mining purposes, under the general license of the Federal Government. It is very true, that there has been no express Act of Congress creating this license. But the circumstances are peculiar. Had the government simply permitted persons to occupy its lands for agricultural or mechanical purposes, when such occupancy could not impair, but enhance, the value of the property, then the implication of a license would not be so strong as in the case of mineral lands, where the property is continually and rapidly wasting away under the process of mining, which, in fact, removes all that is of any value in the estate itself. We cannot, under such circumstances, believe that the government intends to object. It must be its will that the mineral should be thus taken. And if this be its will, no one else can complain.

         For these reasons, the judgment is reversed and cause remanded, andthe Court below directed to enter judgment for the defendants.

         JUDGES: Terry, C. J. delivered the following opinion. Field, J., dissented.

         OPINION

          TERRY, Judge

         A rehearing having been granted, the case was again argued at the July Term, 1858.

         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 19th 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. For 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 be 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, which 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 survey or 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 Alvarado, 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.

         It 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 point, 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, or 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 made 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. No 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 track by the government. Such survey could only be made under the former government by its officers, and could not be 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 boundaries 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.

         We 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: " 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 interest 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 them. 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, (13 Cal. 363,) 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 subsequently 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 different places within the exterior boundaries of the general tract, designated in his grant, as the varying prejudices, interests, or notions, of justice, of witnesses 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 would 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.

         Nor 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 charge of fraud--consisting, in the variance between 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. Fremont 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 in the nature of a bill to quiet title--to determine an estate held adversely to him--to remove what would otherwise be 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 and 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. The 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 premises, 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 any 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 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 apprised 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 other, 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 estoppels, 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, " 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 be 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 New 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 person. 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 estopped 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 clear," said the Court, " that the declarations thus made do not operate in the nature of an estoppel. A party is not to be estopped 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-- provided 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 be 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 prohibition 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 would 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 stopped 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 asserting 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 propose, 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 it 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.

See Moore v. Smaw, October Term, 1860.

         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 the 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 mines 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 lessening 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 occupation 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: " 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 either 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 upon 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 such 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 must be, as held in Stoakes v. Barrett, more specific legislation than any yet resorted to, before the invasion of private property can be permitted to search of it 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 damages 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 considered 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 the 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.