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the same compensation as is allowed to the marshal for his attendance upon the District Court.

Sec. 6. And be it further enacted, That the said commissioners, when sitting as a board, and each commissioner at his chambers, shall be, and are, and is hereby, authorized to administer oaths, and to examine witnesses in any case pending before the commissioners, that all such testimony shall be taken in writing, and shall be recorded and preserved in bound books to be provided for that purpose.

SEC. 7. And be it further enacted, That the secretary of the board shall be, and he is hereby, authorized and required, on the application of the law agent or district attorney of the United States, or of any claimant or his counsel, to issue writs of subpoena commanding the attendance of a witness or witnesses before the said board or any commissioner.

Sec. 8. And be it further enacted, That each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government, shall present the same to the said commissioners when sitting as a board, together with such documentary evidence and testimony of witnesses as the said claimant relies upon in support of such claims; and it shall be the duty of the commissioners, when the case is ready for hearing, to proceed promptly to examine the same upon such evidence, and upon the evidence produced in behalf of the United States, and to decide upon the validity of the said claim, and within thirty days after such de cision is rendered to certify the same, with the reasons on which it is founded, to the district attorney of the United States in and for the district in which such decision shall be rendered.

SEC. 9. And be it further enacted, That in all cases of the rejection or confirmation of any claim by the board of commissioners, it shall and may be lawful for the claimant or the district attorney, in behalf of the United States, to present a petition to the District Court of the district in which the land claimed is situated, praying the said court to review the decision of the said commissioners, and to decide on the validity of such claim; and such petition, if presented by the claimant, shall set forth fully the nature of the claim and the names of the original and present claimants, and shall contain a deraignment of the claimant's title, together with a transcript of the report of the board of commissioners, and of the documentary evidence and testimony of the witnesses on which it was founded; and such petition if presented by the district attorney in behalf of the United States, shall be accompanied by a transcript of the report of the board of commissioners, and of the papers and evidence on which it was founded, and shall fully and distinctly set forth the grounds on which the said claim is alleged to be invalid, a copy of which petition if the same shall be presented by a claimant, shall be served on the district attorney of the United States, and if presented in behalf of the United States, shall be served on the claimant or his

attorney; and the party upon whom such service shall be made shall be bound to answer the same within a time to be prescribed by the judge of the District Court; and the answer of the claimant to such petition shall set forth fully the nature of the claim, and the names of the original and present claimants, and shall contain a deraignment of the claimant's title; and the answer of the district attorney in behalf of the United States shall fully and distinctly set forth the grounds on which the said claim is alleged to be invalid, copies of which answers shall be served upon the adverse party thirty days before the meeting of the court, and thereupon, at the first term of the court thereafter, the said case shall stand for trial, unless, on cause shown, the same shall be continued by the court.

SEC. 10. And be it further enacted, That the District Court shall proceed to render judgment upon the pleadings and evidence in the case, and upon such further evidence as may be taken by order of the said court, and shall, on application of the party against whom judgment is rendered, grant an appeal to the Supreme Court of the United States, on such security for costs in the District and Supreme Court, in case the judgment of the District Court shall be affirmed, as the said court shall prescribe; and if the court shall be satisfied that the party desiring to appeal is unable to give such security, the appeal may be allowed without security.

SEC. 11. And be it further enacted, That the commissioners herein provided for, and the District and Supreme Courts, in deciding on the validity of any claim brought before them under the provisions of this act, shall be governed by the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the Supreme Court of the United States, so far as they are applicable.

SEC. 12. And be it further enacted, That to entitle either party to a review of the proceedings and decision of the commissioners herein before provided for, notice of the intention of such party to file a petition to the District Court shall be entered on the journal or record of proceedings of the commissioners within sixty days after their decision on the claim has been made and notified to the parties, and such petition shall be filed in the District Court within six months after such decision has been rendered.

SEC. 13. And be it further enacted, That all lands, the claims to which have been finally rejected by the commissioners in manner herein provided, or which shall be finally decided to be invalid by the District or Supreme Court, and all lands the claims to which shall not have been presented to the said commissioners within two years after the date of this act, shall be deemed, held, and considered as part of the public domain of the United -States; and for all claims finally confirmed by the said commissioners, or by the said District or Supreme Court, a patent shall issue to the claimant upon his presenting to the general land office an authentic certificate of such

confirmation, and a plat or survey of the said land, duly certified and approved by the surveyor-general of California, whose duty it shall be to cause all private claims which shall be finally confirmed to be accurately surveyed, and to furnish plats of the same; and in the location of the said claims, the said surveyor-general shall have the same power and authority as are conferred on the register of the land office and receiver of the public moneys of Louisiana, by the sixth section of the act "to create the office of surveyor of the public lands for the State of Louisiana," approved third March, one thousand eight hundred and thirty-one: Provided, always, That if the title of the claimant to such lands shall be contested by any other person, it shall and may be lawful for such person to present a petition to the district judge of the United States for the district in which the lands are situated, plainly and distinctly setting forth his title thereto, and praying the said judge to hear and determine the same, a copy of which petition shall be served upon. the adverse party thirty days before the time appointed for hearing the same. And provided, further, That it shall and may be lawful for the district judge of the United States, upon the hearing of such petition, to grant an injunction to restrain the party at whose instance the claim to the said lands has been confirmed, from suing out a patent for the same, until the title thereto shall have been finally decided, a copy of which order shall be. transmitted to the commissioner of the general land office, and thereupon no patent shall issue until such decision shall be made, or until sufficient time shall, in the opinion of the said judge, have been allowed for obtaining the same; and thereafter the said injunction shall be dissolved.

SEC. 14. And be it further enacted, That the provisions of this act shall not extend to any town lot, farm lot, or pasture lot, held under a grant from any corporation or town to which lands may have been granted for the establishment of a town by the Spanish or Mexican government, or the lawful authorities thereof, nor to any city, or town, or village lot, which city, town, or village existed on the seventh day of July, eighteen hundred and fortysix; but the claim for the same shall be presented by the corporate authorities of the said town, or where the land on which the said city, town, or village was originally granted to an individual, the claim shall be presented by or in the name of such individual, and the fact of the existence of the said city, town, or village on the said seventh July, eighteen hundred and fortysix, being duly proved, shall be prima facie evidence of a grant to such corporation, or the individual under whom the said lot-holders claim; and where any city, town, or village shall be in existence at the time of passing this act, the claim for the land embraced within the limits of the same may be made by the corporate authority of the said city, town, or village.

SEC. 15. And be it further enacted, That the final decrees rendered by the said commissioners, or by the District or Supreme Court of the United States, or any patent to be issued under this act, shall be conclusive between

the United States and the said claimants only, and shall not affect the interests of third persons.

SEC. 16. And be it further enacted, That it shall be the duty of the commissioners herein provided for to ascertain and report to the Secretary of the Interior the tenure by which the mission lands are held, and those held by civilized Indians, and those who are engaged in agriculture or labor of any kind, and also those which are occupied and cultivated by Pueblos or Rancheros Indians.

SEC. 17. And be it further enacted, That each commissioner appointed under this act shall be allowed and paid at the rate of six thousand dollars per annum; that the secretary of the commissioners shall be allowed and paid at the rate of four thousand dollars per annum; and the clerks herein provided for shall be allowed and paid at the rate of one thousand five hun dred dollars per annum ; the aforesaid salaries to commence from the day of the notification by the commissioners of the first meeting of the board.

SEC. 18. And be it further enacted, That the secretary of the board shall receive no fee except for furnishing certified copies of any paper or record, and for issuing writs of subpoena. For furnishing certified copies of any paper or record, he shall receive twenty cents for every hundred words, and for issuing writs of subpoena, fifty cents for each witness; which fees shall be equally divided between the said secretary and the assistant clerk. APPROVED, March 3, 1851.

THE COMMON LAW

IN RELATION TO MINES AND MINERALS.

CHAPTER I.

ON ROYAL MINES.

ACCORDING to the law of England, the only mines which are termed royal, and which are the exclusive property of the crown, are mines of silver and gold. (a) And this property is so peculiarly a branch of the royal prerogative, that it has been said, that though the King grant lands in which mines and all mines in them, yet royal mines will not pass by so general a

are,

description. (b)

This prerogative is stated to have originated in the King's right of coinage, in order to supply him with materials. (e) It may be observed, however,

(a) 2 Inst. 577.

(b) Plowd. 336.

(e) 1 Black. Comm. 294.

that the right of coinage in the earlier periods of European society was not always exclusively exercised by the crown, that the same reason might apply to other metals, as copper and tin, and that in those rude times, the prerog ative was perhaps as likely to have its origin in the circumstance of those rare and beautiful metals having always been among the most cherished objects of ambition, and which were, therefore, appropriated to the use of the crown, like the diamonds of India, in order to sustain the splendour and dignity of its rank. (1)

Whatever reason may be assigned for this right of the crown, and of whatever value that right may be, it has been long decided, not only that all mines of gold and silver within the realm, though in the lands of subjects, belong exclusively to the crown by prerogative, but that this right is also accompanied with full liberty to dig and carry away the ores, and with all other such incidents thereto as are necessary to be used for getting them. (a)

This right of entry is disputed by Lord Hardwicke in a case where there was a grant from the crown, of lands with a reservation of all royal mines, but not of a right of entry. The Lord Chancellor said he was of opinion that there was by the terms of the grant no such power in the crown, and that by the royal prerogative of mines, the crown had even no such power; for it would be very prejudicial if the crown could enter into a subject's lands, or grant a license to work the mines; but that when they were once opened, it could restrain the owner of the soil from working them, and could either work them itself, or grant a license for others to work them. (b)

This doctrine was, however, declared by Sir W. Grant, M. R., (c) to be liable to considerable doubt, as being inconsistent with the resolutions of the judges in the case just cited from Plowden. It may, therefore, be assumed that the latter case which was solemnly decided by all the twelve judges, has never been overruled; and Lord Hardwicke's case was decided also upon other grounds-viz., upon there not being a sufficient probability of there being royal mines at all, to disturb the possession of a purchaser. (d)

(a) The Queen and Earl of Northumberland, Plowd., 310. 336.

(b) Lyddal v. Weston, 2 Atk. 20. (d) See chap. xii.

(c) Seaman v. Vaudrey, 16 Ves. 393.

(1) Much more singular reasons however, for the right of property are given in Plowden's reports; we are there told that this right was considered by the Solicitor General of that day to exist in respect of the excellency of the thing, that the common law appropriated every thing to the persons whom it best suits, as common and trival things to the common people, and because gold and silver were most excellent things, the law had appointed them, to the person who is most excellent, and that was the king. And, finally we are entertained by Plowden himself with an alchemical theory on the origin and transmutation of all metals, which was no doubt designed to throw light upon the subject, but which, it must be admitted, leaves the law of the case in the same condition, however much that of the metals may have been changed. Plowd. 338. 9.

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