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.1 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.2 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.3 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. 2115. 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.* Fremont v. Flower, 17 Cal. 199, 79 Am. Dec. 123; Lockhart v. Johnson, 181 U. S. 516, 524, 21 Sup. Ct. Rep. 665. Fremont v. Flower, 17 Cal. 199, 79 Am. Dec. 123; United States v. San Pedro etc. Co., 4 N. Mex. 225, 17 Pac. 407; United States v. Castillero, 2 Black, 17. Castillero v. United States, 2 Black, 17. Fremont v. Flower, 17 Cal. 199, 79 Am. Dec. 123. The government of the United States was based upon different theories from that of the ceding country. By the operation of the treaty, none of the Mexican theories of government were grafted 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 which 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 'Fremont v. Flower, 17 Cal. 199, 79 Am. Dec. 123. 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 Mexican rule.1 This obligation was imposed upon our government by international law independent of treaty stipulation.2 These rights were consecrated by the law of nations.3 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. In the larger sense, however, all the lands ceded were "public lands" until congress placed them in a state of reservation to abide the investigation into the nature and extent of the title asserted by parties claiming under grants from the ceding nation.® 117. Adjustment of claims under 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 Peralta v. United States, 3 Wall. 434; Knight v. U. S. Land Assn., 142 U. S. 161, 12 Sup. Ct. Rep. 258. 'Strother v. Lucas, 12 Peters, 410. United States v. Moreno, 1 Wall. 400; 1 Wharton's Internat. Dig., § 4. ⚫ United States v. Moreno, 1 Wall. 400; Interstate L. Co. v. Maxwell L. G. Co., 139 U. S. 569, 11 Sup. Ct. Rep. 656. 'Astiazaran v. Santa Rita L. & M. Co., 148 U. S. 80, 13 Sup. Ct. Rep. 457; De la Croix v. Chamberlain, 12 Wheat. 599; Chouteau v. Eckhart, 2 How. 344; Tameling v. U. S. Freehold Co., 93 U. S. 644. Lockhardt v. Johnson, 181 U. S. 516, 21 Sup. Ct. Rep., 665. See Baca Float No. 3, 30 L. D. 497. 'Act of March 3, 1851, 9 Stats. at Large, p. 631. 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.1 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 of Louisiana from France. In the latter case, particularly, a very much larger number of claims by private individuals existed to the soil acquired by the treaty, some of whom resided on the lands which they claimed, while others did not, and the titles asserted were as diverse in their nature as those arising under the cession from Mexico.2 118. Adjustment of claims under Mexican grants in other states and territories.-As to claimed Mexican grants situated within the territory of New Mexico, congress, on July 22, 1854, passed an acts providing, among other things, that the surveyor-general for that territory should examine into and report to the interior department upon the status of private land claims within his jurisdiction. The provisions of this act were extended to Colorado by the act of February 28, 1861,* and to Arizona by the act of February 24, 1863.5 1 Public Domain, p. 375. Botiller v. Dominguez, 130 U. S. 238, 9 Sup. Ct. Rep. 525. 10 Stats. at Large, p. 308. 4 12 Stats. at Large, p. 172. Some of the grants so reported upon under these acts were presented to congress, and were confirmed. But by far the greater proportion awaited the passage of some general law providing a uniform method of adjustment. Such a law was passed March 3, 1891.1 This act created a court of private land claims, consisting of a chief justice and four associate justices, to which tribunal all persons claiming lands within the limits of the territory derived by the United States from the republic of Mexico, and now embraced within the territories of New Mexico and Arizona, and the states of Nevada, Colorado, Wyoming, and Utah, were called upon to submit their claims.2 The object for which this court was created has in the main been accomplished. Its existence has been prolonged from time to time, June 30, 1903, being now fixed as the date of its formal dissolution. A large number of claimed grants were submitted to it. It confirmed some, and rejected others. The act creating this tribunal may be said to have been drawn on lines parallel to the one passed for California, but, in one respect at least, it made a radical innovation. The California act made no mention of or reference to mineral lands distinctively. The law now under consideration contains the following provision: "No allowance or confirmation of any claim shall "confer any right or title to any gold, or silver, or "quicksilver mines, or minerals of the same, unless the 66 grant claimed effected the donation or sale of such "mines or minerals to the grantee, or unless the grantee "has become otherwise entitled thereto in law or equity; "but all such mines and minerals shall remain the property of the United States, with the right of working 126 Stats. at Large, p. 854. The California act required all classes of claimed grants to be presented, whether perfect or inchoate. The act of 1891 leaves it optional with the owner of a perfect grant to present it or not, as he sees fit. 3 Act of April 28, 1902, Stats. 1st Sess 57th Cong., p. 170. |