CHAPTER III. STATUS OF LAND AS TO TITLE AND POSSESSION. ARTICLE I. INTRODUCTORY. II. MEXICAN GRANTS. III. GRANTS TO STATES FOR EDUCATIONAL AND INTERNAL VIII. NATIONAL PARK AND FOREST RESERVATIONS. IX. HOMESTEAD AND OTHER AGRICULTURAL CLAIMS. X. OCCUPANCY WITHOUT COLOR OF TITLE. ARTICLE I. INTRODUCTORY. 112. Only public lands subject to appropriation under the mining laws. 2112. Only public lands subject to appropriation under the mining laws.-The mineral character of a given tract of land having been ascertained as a present fact, according to the rules enunciated in a preceding chapter, it becomes necessary to determine the status of the land as to title and possession before any legal right of appropriation under the mining laws can be asserted and maintained by the mineral claimant. Only public mineral lands can be entered under the mining laws. Land to which any claim or right of others has legally attached does not fall within the definition of "public land." While under the system in vogue on the continent of Europe, in Mexico, and the South American republics, mining privileges may be acquired in lands of private proprietors under certain restrictions and governmental regulations, no such right exists in this country, and lands held in private ownership can not be invaded.' The land sought to be entered upon as mineral land must be free, open, public land, and not legally reserved, appropriated, dedicated to any other use or purpose, or otherwise legally disposed of. As to whether a given tract of land sought to be entered as mineral is free and open to acquisition under the mining laws, is sometimes a difficult question to solve. To enable us to intelligently deal with this subject, it will be necessary to examine the various methods by which the government parts with its title to its lands, its obligation under treaties of cession, the nature and extent of grants previously made, and the reservations of certain parts of its territory made for public purposes, pursuant to special laws. ARTICLE II. MEXICAN GRANTS. 114. Ownership of mines under Mexican law. 121. Grants sub judice. 115. Nature of title conveyed to 116. Obligation of the United 119. Claims to mines asserted un- 120. Status of grants considered with reference to condition of title. 123. Grants of the first and third classes. 124. Grants of the second class commonly called "floats." 125. Grants confirmed under the California act. 126. Grants confirmed by direct action of congress. 127. Grants which have been, or may be, finally confirmed under the act of March 3, 1891, situated in Colorado, Wyoming, Utah, Nevada, New Mexico, or Arizona. 128. Conclusions. 114. Ownership of mines under Mexican law.Under the laws in force in Mexico at the date of the 1 Biddle Boggs v. Merced M. Co., 14 Cal. 376. treaty of Guadalupe Hidalgo, mines, whether in public or private property, belonged to the supreme government.1 No interest in the minerals of gold and silver passed by a grant from the government of the land in which they were contained, without express words designating them. Such grant only passed an interest in the soil distinct from that of the minerals." The interest in minerals was conveyed through the operation of the mining ordinances, or by proceedings upon denouncement, when a mine, once discovered and registered, had been abandoned and forfeited." Mining rights under the Mexican laws were held upon conditions not affecting the title to the land as derived under the ordinary conveyances; and such rights might be acquired and held by others besides the owner of the land under the ordinary grants, and were terminable when, by their use, the minerals contained in the soil were wholly removed.1 In other words, there was a severance of the title to the minerals from the title to the land. The minerals, particularly gold, silver, and quicksilver, were jura regalia, and were considered to belong to the supreme government in virtue of its sovereignty. This was substantially the law of the ceding country at the date of the ratification and exchange of the treaty. 115. Nature of title conveyed to the United States by the treaty.-By the treaty of cession, all of the property theretofore belonging to Mexico within the limits defined by the compact between the two nations passed to the United States." The government of the United States was based upon different theories from that of the ceding country. By the 1 Castillero v. United States, 2 Black, 17. 2 Fremont v. Flower, 17 Cal. 199. 3 Fremont v. Flower, 17 Cal. 199; United States v. San Pedro etc. Co. 17 Pac. 407; United States v. Castillero, 2 Black, 17. 4 Castillero v. United States, 2 Black, 17. 5 Fremont v. Flower, 17 Cal. 199. operation of the treaty, none of the Mexican theories of government were ingrafted upon the American system. The ownership conferred by the cession was not an incident of sovereignty, and the United States hold the minerals and the lands in which they are found just as they hold any other public property which they acquired from Mexico.1 No foreign government could, by treaty or otherwise, impart to the United States any of its sovereign prerogatives; nor have the United States the capacity to receive or power to exercise them. Every nation acquiring territory by treaty or otherwise must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it." 116. Obligation of the United States to protect rights accrued prior to the cession. It is a matter of political history that within the territory ceded, particularly within the area now comprising the states of California and Colorado and the territories of New Mexico and Arizona, and to a limited extent, perhaps, in other states, rights were asserted to a large number of tracts of land by title derived from the ceding nation. These tracts varied in area from comparatively few acres to immense bodies of land, in some instances embracing principalities within their claimed boundaries. Most of these claimed grants were either grants for colonization or for the purposes of stock-raising and agriculture. A very few were for mines. claimed to have been acquired under the mining ordinances. Most of them were inchoate-that is to say, something remained to be done to either perfect and establish the title or to fix the boundaries. Many were spurious and fraudulent. As to all these asserted rights, the treaty of Guadalupe Hidalgo imposed upon the government of the United States the obligation to protect titles acquired under Mexi 1 Fremont v. Flower, 17 Cal. 199. can rule. This obligation was imposed upon our government by international law independent of treaty stipulation.2 4 These rights were consecrated by the law of nations." A right of any validity before the cession was equally valid afterwards. The duty of providing the mode of securing these rights and of fulfilling the obligations imposed upon the United States belonged to the political department of the government. Congress might either itself discharge that duty or delegate it to the judicial department. 2117. Adjustment of claims to Mexican grants in California. With reference to Mexican grants in California, congress provided for the appointment of a board of land commissioners, to whom all persons claiming lands by virtue of any right or title derived from the Spanish or Mexican government were required to present their claims. The action of the commissioners was subject to review by the United States district court, and the right to appeal to the supreme court of the United States was given. Under this act most of the Mexican land grants in California were adjudicated, and patents issued for such as were ultimately confirmed. A similar method had been pursued with reference to grants claimed in the territory ceded by Spain and France." The government of the United States, when it came to consider this statute, was not without large experience in a somewhat similar class of cases arising under the treaties for the purchase of Florida from Spain and the territory 1 Peralta v. United States, 3 Wall. 434; Knight v. U. S. Land Assn., 142 U. S. 161. 2 Strother v. Lucas, 12 Peters, 410. 3 United States v. Moreno, 1 Wall. 400; 1 Wharton's Internat. Dig., 4. 4 United States v. Moreno, 1 Wall. 400; Interstate L. Co. v. Maxwell L. G. Co., 139 U. S. 569. 5 Astiazaran v. Santa Rita L. & M. Co., 148 U. S. 80; De la Croix v. Chamberlain, 12 Wheat. 599; Chouteau v. Eckhart, 2 How. 344; Tameling v. U. S. Freehold Co., 93 U. S. 644. 6 Act of March 3, 1851, 9 Stats. at Large, 631. Public Domain, 375. |