[304]*304At the January Term, 1858, Burnett, J. delivered the following opinion:
On the 29th day of February, 1844, Governor Mieheltorena 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 0. Fremont. The claim was presented to the Board of 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 to recover 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 [305]*305to 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 the plaintiff to recover.
If we 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 we take 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 [306]*306give 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 Ms petition, setting forth Ms 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 certain conclusions 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.”
[307]*307The 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 have passed 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, July Term, 1857, 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, lá51, 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 x 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 effect of 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.
[308]*308It 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 necessary result 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 any thing 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 as is 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, belong 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. 386.)
In the argument, the counsel for the Queen based this preroga[309]*309tive 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 satisfatory 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 incident of 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 necesssary 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 [310]*310does 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 m 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 incinont 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, 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 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 [311]*311reason 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 the capacity 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, in the 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 land[312]*312ed 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 of property 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 sovereignty3 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 3 that the capacity to own, and the fact of ownership, are distinct things 3 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, whether the 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 3 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.
[313]*313But wo 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 grant a 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 O. Fremont et als. decided at the last April Term. 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 maj possibly, but will not
Si [314]*314probably 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 defendant for 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, and the Court below directed to enter judgment for the defendants.