the claimant must show, 1, that the land is public; 2, that it contains minerals; and 3, that he entered bona fide for the purpose of mining them; and if he can show this, he can, after having entered, hold against all the world but the government to whom the land belongs. The title by which mining claims are held is that of possession. But this is regulated and defined by usage and local and conventional rules, and must be in accordance with those rules.2 And when the miners of a neighborhood have met and agreed upon a set of rules upon the subject, the courts do not inquire into the forms of holding such meeting, but adopt these as the law of that vicinity, provided they are not in conflict with the general laws of the State. Thus these rules, among other things, may fix the quantity of ground which any one miner may claim under his location for mining purposes, though they cannot limit the number of claims which any one may acquire and hold by purchase. And if he takes up a larger quantity than that fixed by the rules, though he cannot hold it against another wishing to locate the same for mining purposes, his possession will be good as to all others.5 So they may fix the mode of making a location of a mining right, which is generally done by posting upon the premises a notice of the requisite form; and the right of one miner, it seems, may be lost and acquired by another, if such notice is taken down by the first occupant and replaced by the second, if he take actual possession accordingly. But where one took up a claim for himself and another in their joint names, and posted notice accordingly, he could not, by taking down this notice and posting notices in the names of others, deprive his original co-tenant of his property in the mining right. The title to the land in the mean time, however, remains in the public unchanged. Under the Mexican law, a conveyance of land by the government did not carry the precious metals within 1 Lentz v. Victor, 17 Cal. 274. 2 Attwood v. Fricot, 17 Cal. 43; McGarrity v. Byington, 12 Cal. 426; Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 208. 3 Gore v. McBrayer, 18 Cal. 588; English v. Johnson, 17 Cal. 118. 4 Prosser v. Parks, 18 Cal. 47. English v. Johnson, 17 Cal. 118. 6 Gore v. McBrayer, 18 Cal. 588; Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 207; Johnson v. Parks, 10 Cal. 446. it, unless expressly granted; whereas, by the law of California, such a conveyance, whether by the State or the United States, to private owners, carries the minerals, unless the same are expressly reserved in the grant. By the English common law, mines of gold and silver belonged to the crown, as an incident to the royal prerogative.2 In the grant of the English colonies in New England, the crown reserved onefifth of the precious metals; and mines were leased by the colonial government to such as discovered them, subject to this reservation. In New York, these metals belong to the people as successors of the sovereignty.4 * NOTE. The legislation and course of decisions, some of which have been cited above, under which this branch of the law in California has received a practical and intelligible form, owes much of its character and consistency to the late Chief Justice of that court, now transferred to a court of wider jusisdiction, who has had the rare privilege of taking a prominent and leading part in adapting the infant institutions of that vast Commonwealth to its growing wants and rapid development, and in ingrafting upon the vigorous stock of the American common law a system of rules and principles suited to the peculiar condition in which a great people, born as it were in a day, found themselves, upon assuming the character of an independent State. 1 Moore v. Smaw, 17 Cal. 199. 33 Dane, Abr. 187. 2 Co. Lit. 4 a; Plowd. 813. ♦ Willard, Real Estate, 50. See Wms. Real Prop. 14, note. SECT. 4. Of destroying or suspending Uses, and of their Application. SECT. 5. Uses applied in the several States. 9. Remedy by subpoena contrived. 10. Cestui que use not recognized by law. 11. What may be conveyed to use. 12. Who may be feoffees to use. 13. Rules created by equity as to property in uses. 14. May be created without writing, except of rents and the like. 15. Of uses raised by equity, resulting uses. 16. No use implied where one is expressed in deed. 17. No use results, if a consideration is paid. 18. Parol declaration of use enforced, if for a consideration. 19. Rules of law as to real property applied to uses. 20. How uses were devisable before the statute of wills. 21. How uses might be alienated. 22. How a use might be severed from the legal estate. 23. Forms and incidents of the transfer of uses. 24. Rules as to legal estates not affected by those of uses. 25. Rules of conveyance of uses, unlike those at law. 27. Only remedy of cestui que use in chancery. 28. How uses may be lost. 29. Baron Gilbert's explanation of privity and confidence. [*91] 1. THE next class of interests in real property to be considered, in the proposed order of arrangement, are not only of an incorporeal character, but are, from their nature, to be traced to a different source from any of those which have thus far been treated of, except what may have been embraced under mortgages. With this single exception, the estates which have been examined had their origin and derived their qualities and incidents from the common law; whereas that class which is now to be treated of was derived from the rules and principles which prevail in courts of equity. And this diversity of origin gave rise to the terms "legal" and "equitable," by which the two classes of estates are distinguished. Under the latter are embraced Uses, which are to form the subject of the present chapter. 2. Before entering into the details of the law applicable to uses, it seems proper briefly to notice their history and general character. They lie at the foundation of the whole system of trusts, enter essentially into the forms and effect of modern conveyancing, are constantly applied in framing and carrying out family settlements; and though no longer existing as a distinct species of property, they are made to play too important a part in the law of real property as a system to be passed over without a somewhat extended examination. The history of their rise, the attempt to suppress them by legislative enactments, and the final moulding and blending of their qualities and incidents into the common law, present a remarkable illustration of the irresistible power of the common will of a people to make for itself such amendments in the existing laws as their necessities demand, independent of the recognized system of legislation through which a State is governed. The common law, in its feudal elements, had little reference to trade or commerce. The relation of lord and vassal recognized no ownership in land beyond an oc[*92] cupancy and possession by some* acknowledged pro prietor, who was to perform the requisite feudal services belonging to the same. And it was, as has heretofore been stated, by slow degrees only that land became alienable at all. When, therefore, commerce began to develop itself, and to stimulate the awakening spirit of the English people, it is not surprising that ingenuity was quickened to devise some means by which real estate should receive the quality of convertibility in some more flexible form than that which had hitherto been known to the feudal law. This was aided by the ingenuity of English ecclesiastics in their attempts to evade the laws against mortmain, which the barons and other landed nobility had procured to be enacted to counteract the grasping cupidity of the Church at that day. In a superstitious age, among a people whose passions were under little restraint, and who were taught to believe that expiation for sin might be made by acts of consecration of worldly possessions to the advancement of the Church, it had become customary to transfer lands to ecclesiastical establishments for religious uses, till attempts were made to prevent this, first by the 36th chapter of Magna Charta, in 1217, and afterwards by the statute 7 Edw. I., De Religiosis, in 1279, prohibiting the conveyance of lands in mortmain, under the penalty of forfeiting the same to the crown or the chief lord of the fee, under whom the lands had originally been held. The mode in which it was attempted to evade these laws was this: There had from an early period been a high officer in the kingdom with judicial powers and functions, under the name of Chancellor,1-an office which was early filled by an ecclesiastic. As a judicial officer, he drew many of his rules and notions of chancery law from that of Rome. Prior to the time of Augustus, the Romans had, by a variety of independent laws, excluded many classes of persons from taking property as heirs, which term included as well those who took by devise as by descent. Among these, for instance, women were excluded by the Voconian law.2 Hence it became customary, in order to evade these laws, [*93] for persons wishing to constitute others as their heirs who could not take property by direct appointment to give the same to some one qualified to take as heir, with a request that he would restore the inheritance, or some principal part of it, to the one who was the real object of the donor's 1 1 Camp. Lives of Chancellors, 30. VOL II. 2 1 Brown, Civil Law, 304; Thrupp, Hist. Tracts, 220. 25 |