New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-05-29
Court surreoderirg him up 50 siave, Archy - s.l'
a free resident Of California.

We have now another not ies, remarkable spe-
cinen Of the pecGlis,ities Of California jadicisi
proceedings in the case Of Bddle BOees, lessee Of
John C Fremont, against the MERGED Mining Com
pspv In this case, as in that Of Archy. Judge Bur
nett took the laboring oer. He delivered long
opinion. in which be he'd that Fremont. By the
.ssiermept TO him Of the Maripoea grant and the
eos6rmsGon Of that grant by the Supreme Court
Of the United States under the act of March 3,
Ia5I 10 s,certain and settle private LAID claims ia
the State of California, took no mere than was
riyeu 10 the original Mexican grantee; and as BY
the Mexican laws the title TO minerals did nos 60
with the land therefore the confirmation OF Ere
mont's title gave him 10 property IN the
minerals. But il those minerals do not BE-
long 10 him, TO whom do they belong
The Supreme Courtsf Californi, had formerly hed'
in The ca.e of Hicks 70. Bell g California Reports,
2y7l. on the strength of q case in Plowden, do
cidsd in Queen Elizabeths time, that tho State OF
California. BY virtue of her sovereignty, was the
owner Of 81 mines Of gold and silver IN the ota'e'
whether in public or private lands Judge bu''
nett. however. declares bis opinion that the right
Of the Crown. maintained in Plowden's case, was
not an incident Of sovereignty, bat mere per-
.onal prercgstve of the sovereign, and tait no
,uch right is itcident to our Governments, either
state or Federal. According to bis view, what
ever rights Mexico reserved from her land grants
passed by treaty to the United States, aud tnere
the propt rty in the Msriposa minerals still remans'
But Colonel Fremont being the owner of the land,
b. he not the right to recover possession a. against
the defendants no do not aege any lease or license
of occupancy under him Upon this point, Judge
Burnett concurs in former decision of the Court,
that under all the circumstances Ofthe case, the Mer
ced Mibipg Company, and other mining squatserr,
shall be presumed to be acting with the consent Of
the owners of the mineral in fact to have vested In
them all the rights Of the United States IN that re-
spect, including the right to work and dig aud TO
occupy the land for that purpose. "lt is very
strue, .ays JudgeBurnett "that there has been no
e1press act of Congress creating this license But
,he circumstances are peculiar, and peculiar cir
"cumstapces as in Archy scase, seem to hayegreat
weight with California Judges. How very peculiar
these circumstances are, the Judge proceeds to
| show. Had the Government simply permitted
"persoHs 20 occupy its LANDS for agricultural or me-
| "clancal purposes when such occupancy would not
"mpair but enhance the value ofthe property, then
"the implication of license would not be 80 strong
"as in the case Of mineral lands, where the property
sis continually and rapidly wasting away under the
process of mining which in fact remOrts al that's
"of any rQlue in the estate itself" Chief Justice
Terry, as in Arcbys case, cOncurred in the Judg-
ment, which ayJwedly strips the MaripOsa grant
of its entire value though he declined to express
any opinion ar to WHISTLER the minerals IN question
beloueed TO Calfornis or the United States. Judge
Field dssented
The next proceeding is petition for rehearlng'
| in which "Hey denfedt attorney for respondent,
| talks to the Court in style of freedom scarcely
| exceeded by the California newspapers in their
CONNIE ut. on the Arcby case. In this petition, the
| Court are reminded that in Stokes ys. Barrett %
Calfolnia Rep, 800 they expressly declared that in
the Gaze of Hicks vs. Bell they did not intend to go
further than to decide the right Of all citizens to dig
for gold upon the public lands; for although the
"Stste," such are the words of the Court, is the
"owner of the gold and silver found in the lands OF
"priyate individuals, Is well as the public lands,
"se TO authorize an nrdsiOn Of Pricote property IN
''order 10 ENJOY public franchise, 'eonld require
more specific legislation than any get resorted to-"
| This sane doctrine was again held in Tartor Vs.
| The Spring Greek Company g Cal Rep, 1860, and
these de csons have been considered as settling the
law Upon the faith of this announcement the law,
so the petition for rehearng ayers the people under
the judicial government of the Supreme Court
of California seeing that it would require specific
xha ,,.ta IN IN in
vasion, for mining purposes, OF private property
and knowing that the doctrine Of the sovereign
ownership of gold in private lands was an obsolete
preregative which no English sovereign had at
tempted to exercise for five hundred years, ana
which 20 State in the Union had ever undertaken
really to enforce bought and sold large tracts OF
mineral lands. They bought the lands and IN
vested their money. To tell them now, when
they ask you fer the protection you promised
them that such was not the law, and has not
:" been the law, leads to result which shocks the
"un,e of justice of al mankind "Under the
decision which the Court has announced in this
"ca.e, it has established the most complete sys-
Item Of unIegulated agraranism." 'If mans
deed to bis land will not protect him from the
"inva.on Of a mere naked trsspasser, what can
protect the possession of that trespasser against
" the n. 1t one that comes ," "He does not hold
"his (presumed) license to Minis in any particular
"piece of ground, and therefore he has not the
fright to hold single inch beyond the moment
he is using it, He certainly cannot exclude any
"one who has equal right to mine by equal license
:" from the Government. Thsse is iadeed IN this
de ci.on no right TO hold anything except By the