Year: 1860

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 res
pect presume will ne .cr be disregarded Il
these views be correct, the owner of a min
ing claim has, in practical effect, a good
vested title Ia the property, and should be
so treated until his title is divested by the
exercise Of The hi isher right of the superior
proprietor His right and remedies, IN tie
meantime, are not trammcled by the con-
sideration that he higher right to reclaim
the property exists in another which right
may possibly, but will not probably, be eX-
ercised. His right to protect the property
for the time being, under the peculiar cir
cumstances Of the case, is as full aud per
feet as if he vas the tenant of the superior
proprietor for years OF for life.


We have seen 30 reason to change the
views W. then expressed. These views
are as applicable to this case rs to the one
then before the Court We can see no
reason or equity in allowing the plaintiff to
turn Of the defendant for doing that which
is 40 iuiury to the right conveyed by the
ataut t. A.varado. As Colonel Fremont
had no title to the mineral himself and
could only take it as any other individuals
( his Tenant has no such interest in the premi-
ses as viii enttlc him to recover. The de-
tendant occupies simply and solely for min
ing purposes under the general license OF
the Federal Government. 1t Is very true,
I hat la- &c
gress creating this license But the cir
cumstances are peculiar Had the Govern
mcnt simply permitted persons to occupy
Its lands for agricultural or mechanical, pur-
poses, when such occupancy could not i'm
pair, 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 rap
idly wasting away under the process of
mining, which in fact, removes all that is
Of any value in the estate itself We can.
not, under such circumstances, believe that
the Government intends to object. 1t must
be its will that the mineral should thus be
taken. And If this be its will, no one else
can complain.


/ For these reasons the Judgment is re-
verscd and cause remanded, and the Court
below directed to enter judgement for the
defendants the Mcrced Mining Company.


Chief Justice Terry said:


| concur in the judgement and the doc
trine Of my associate. /, however, express
no opinion as to the correctness of the for
mer ruling of this Court in Hicks vs. Bell
II is sufficient for the purposes Of this case
that the title to the gold did net pass by
the grant TO the lessor or plaintiff Wheth-
er the right to the mines Is vested in the
/ United States, or the State of California, is
a question of which the plaintiff has 10
concern.


To show how admirably the above con
illusions of law Of tho Supreme Court OF
/ 1898 compare with the opinion OF the Su-
preme Court IF 1859, and how rclisiously
the doctrirc Of stare decisis is observed by
the present Court, We quote the following
from the latter's recent decision


/ Assuming, then, in the first place, for the
purposes of this case that the mineral be-
longs to the United States--have the de-
PENDANTS any effectual license TO enter upon
the premises of the plaintiff and remove
it!


1t is sometimes said, in speaking of the
public lands, that there is general license
from the United States TO work the mines
which these lands contain. But this Ian
suage, though it las found its way into
some judicial decisions, is inaccurate, as ap-
piled to the action, or rather, want of action,
If the Government There is no license
in the legal meaning Of that term. \ IL
ccnsc to work the mines implies permission
to extract and remove the mineral. Such
license from an individual owner can be
created only by writing, and from the Gene
raj Government only by Act of Congress


Ii carries an interest III the land and arises
onl, from grant The mineral whether a
2 distinct possession or otherwise, constitutes
part If the reality, as much SO as growing
timber, and no interest in it can pass, ex.
? cept in the ordinary modes for the disposi
t ton Of land 1t is under the exclusive con
| troll of Congress equally with any other in
c terest which the Government possesses II
D land But Congress has adopted no -pe-
t cifc action Oh the subject, and has left tha
; matter to be controlled by its previous gene
! raj legislation respecting the public domain
t And it is from its want Of specific action
+ from its passiyeness, that the inference i
It drawn of a general license. The mos
J which can be said is that the Government
: has forborne to exercise its rights, but thi
d forbearance confers no positive right upol
It the miner, which would avail as protcc
d tion against the assertion of its claims t
e the mineral The supposed license from
? the General Government, then, to work tn
1t mines in the public lands, consists in it
1t simple forbearance. ANY other licens
i rests in mere assertion, and it is untrue il
ii fact and unwarranted In law 1t may b
:. and undoubtedly is, very convenient rule
n in determining controversies between partie
e on the public lands, where neither can hav
e. absolute rights, to presume a grant frOr
l. the Government, of mines, water privilege
s and the like, to the first appropriation bu
ri such a presumption can have no place fd
a. consideration against the superior propriC
ID tor. Prescriptions are INDUCED to suppl
7e the absence of facts, but never against a.


certained and established facts That ther
lie has been no grant from the Government