GOLD CREEK MINING CORPORATION, PETITIONER, VS. EULOGIO RODRIGUEZ, SECRETARY OF AGRICULTURE AND COMMERCE, AND QUIRICO ABADILLA, DIRECTOR OF THE BUREAU OF MINES, RESPONDENTS.

This
petition seeks to compel the respondents, as Secretary of Agriculture
and Commerce and as Director of the Bureau of Mines, respectively, to
approve petitioner’s application for patent for a certain mining claim
and prepare the necessary papers in relation thereto, and to forward
and submit said papers for the signature of the President of the
Philippines.

The petition alleges that petitioner owns the
Nob Fraction mineral claim, situated in the barrio of Gomok,
municipality of Itogon, sub-province of Benguet, Mountain Province, and
located on public lands by C L. O’Dowd in accordance with the
provisions of the Act of Congress of July 1, 1902, as amended by the
Act of Congress of February 6, 1905, and of Act No. 624 of the
Philippine Commission, relative to the location of mining claims; that
said claim was located on January 1929, and the original declaration of
location registered in the office of the mining recorder of Benguet,
Mountain Province, on January 7, 1929; that from March 16 to 17,1934,
an amended location on the premises was made, for which an amended
declaration of location was registered in the office of the mining
recorder on April 3, 1934; that petitioner by itself and its
predecessors in interest, has been in continuous and exclusive
possession of said claim from the date of location thereof; that prior
to August 9, 1933, petitioner filed in the office of the Director of
Lands an application for an order of patent survey of said claim, which
survey was duly authorized by the Secretary of Agriculture and Commerce
and performed by a mineral land surveyor in the former division of
mines, Bureau of Science, from August 9, 1933, to April 30, 1934, at
the expense of petitioner; that the return of the surveyor, the plat
and field notes of the claim and certificate that more than P1,600
worth of labor and improvements had been expended on said claim, were
approved by the Director of the Bureau of Science; that prior to
November 15, 1935, petitioner filed with the mining recorder an
application for patent, together with a certificate showing that more
than P1,600, worth of labor and/or improvements had been expended by
petitioner upon said claim, and with the plat and field notes above
mentioned; having previously posted a copy of such plat, together with
notice of said application for patent in a conspicuous place upon said
claim; and filed a copy of such plat and of such notice in the office
of said mining recorder, as well as an affidavit of two persons that
such notice had been duly posted; that prior to November 15, 1935, the
notice of petitioner’s application for patent was forwarded by the
mining recorder to the division of mines, so that the latter could
order the publication of said notice, as required by law; that the
publication of the said notice was made once a week for a period of
sixty days in the “Philippines Herald,” “El Debate,” and the Official
Gazette, commencing February 13, 1936; that the sum of P113.59 was
tendered to respondents, as payment for the purchase price of said
claim, the area of which is 4.5434 hectares; and that petitioner has
requested the respondents, as Secretary of Agriculture and Commerce and
as Director of the Bureau of Mines, respectively, to approve its
application for patent, and to prepare the necessary papers relative to
the issuance thereof and to submit such papers for the signature of the
President of the Philippines, but the respondents have failed and
refused, and still fail and refuse, to do so.

Petitioner
claims that it is entitled, as a matter of right, to the patent applied
for, having complied with all the requisites of the law for the
issuance of such patent.

Respondents, in their answer, admit
some allegations of the petition and deny others, and, by way of
special defense, allege that “petitioner was not and is not entitled as
a matter of right to a patent to the ‘Nob Fraction’ claim because the
Constitution provides that ‘natural resources, with the exception of
public agricultural land, shall not be alienated’; and that the
respondents are, not only under no obligation to approve petitioner’s
application for a patent to said claim and to prepare the necessary
papers in relation thereto, but, also, in duty bound to prevent the
issuance of said patent and the preparation of the aforesaid papers,
because they have sworn to support and defend the Constitution.”

This is one of several cases now pending in this court which call for
an interpretation, a determination of the meaning and scope, of section
1 of Article XII of the Constitution, with reference to mining claims.
The cases have been instituted as test cases, with a view to
determining the status, under the Constitution and the Mining Act
(Common wealthy Act No. 137), of the holders of unpatented mining
claims which were located under the provisions of the Act of Congress
of July 1, 1902, as amended.

In view of the importance of
the matter, we deem it conducive to the public interest to meet
squarely the fundamental question presented, disregarding for that
purpose certain discrepancies found in the “pleadings filed in this
case. This is in accord with the view expressed by the
Solicitor-General in his memorandum where he says that “the statements
of facts in both briefs of the petitioners may be accepted for the
purpose of the legal issues raised. We deny some of the allegations in
the petitions and allege new ones in our answers, but these
discrepancies are not of such a nature or importance as should
necessitate introduction of evidence before the cases are submitted for
decision. From our view of the cases, these may be submitted on the
facts averred in the complaints, leaving out the difference between the
allegations in the pleadings to be adjusted or ironed out by the
parties later, which, we are confident, can be accomplished without
much difficulty.”

Section 1 of Article XII of the Constitution reads as follows:

“Section
1. All agricultural, timber, and mineral lands of the public domain,
waters, minerals, coal, petroleum, and other mineral oils, all forces
of potential energy, and other natural resources of the Philippines
belong to the State, and their disposition, exploitation, development,
or utilization shall be limited to citizens of the Philippines, or to
corporations or associations at least sixty per centum of the
capital of which is owned by such citizens, subject to any existing
right, grant, lease, or concession at the time of the inauguration of
the Government established under this Constitution. Natural resources,
with the exception of public agricultural land, shall not be alienated,
and no license, concession, or lease for the exploitation, development,
or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for another twenty-five
years, “except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water
power, in which cases beneficial use may be the measure and the limit
of the grant.”

The fundamental principle of
constitutional construction is to give effect to the intent of the
framers of the organic law and of the people adopting it. The intention
to which force is to be given is that which is embodied and expressed
in the constitutional provisions themselves. It is clear that the
foregoing constitutional provision prohibits the alienation of natural
resources, with the exception of public agricultural land. It seems
likewise clear that the term “natural resources,” as used therein,
includes mineral lands of the public domain, but not mineral lands
which at the time the provision took effect no longer formed part of
the public domain. The reason for this conclusion is found in the terms
of the provision itself. It first declares that all agricultural,
timber, and mineral lands of the public domain, etc., and other natural resources
of the Philippines, belong to the State. It then provides that “their
disposition, exploitation, development, or utilization shall be limited
to citizens of the Philippines, or to corporations or associations at
least sixty per centum of the capital of which is owned by
such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government
established under this Constitution.” Next comes the prohibition
against the alienation of natural resources. This prohibition is
directed against the alienation of such natural resources as were
declared to be the property of the State. And as only “agricultural,
timber, and mineral lands of the public domain” were declared property
of the State, it is fair to conclude that mineral lands which at the
time the constitutional provision took effect no longer formed part of
the public domain, do not come within the prohibition.

This
brings us to the inquiry of whether the mining claim involved in the
present proceeding formed part of the public domain on November 15,
1935, when the provisions of Article XII of the Constitution became
effective in accordance with section 6 of Article XV thereof. In
deciding this point, it should be borne in mind that a constitutional
provision must be presumed to have been framed and adopted in the light
and understanding of prior and existing laws and with reference to
them. “Courts are bound to presume that the people adopting a
constitution are familiar with the previous and existing laws upon the
subjects to which its provisions relate, and upon which they express
their judgment and opinion in its adoption.” (Barry vs. Truax, 13 N. D., 181; 99 N. W., 769; 65 L. R. A., 762.)

It is not disputed that the location of the mining claim under
consideration was perfected prior to November 15, 1935, when the
Government of the Commonwealth was inaugurated; and according to the
laws existing at that time, as construed and applied by this court in
McDaniel vs. Apacible and Cuisia (42 Phil., 749), a valid
location of a mining claim segregated the area from the public domain.
Said the court in that case: “The moment the locator discovered a
valuable mineral deposit on the lands located, and perfected his
location in accordance with law, the power of the United States
Government to deprive him of the exclusive right to the possession and
enjoyment of the located claim was gone, the lands had become mineral
lands and they were exempted from lands that could be granted to any
other person. The reservations of public lands cannot be made so as to
include prior mineral perfected locations; and, of course, if a valid
mining location is made upon public lands afterward included in a
reservation, such inclusion or reservation does not affect the validity
of the former location. By such location and perfection, the land
located is segregated from the public domain even as against the
Government. (Union Oil Co. vs. Smith, 249 U. S., 337; Van Ness vs. Rooney, 160 Cal., 131; 27 Cyc., 546.)”

The legal effect of a valid location of a mining claim is not only to
segregate the area from the public domain, but to grant to the locator
the beneficial ownership of the claim and the right to a patent
therefor upon compliance with the terms and conditions prescribed by
law. “Where there is a valid location of a mining claim, the area
becomes segregated from the public domain and the property of the
locator.” (St. Louis Mining & Milling Co. vs. Montana
Mining Co., 171 U. S., 650, 655; 43 Law. ed., 320, 322.) “When a
location of a mining claim is perfected it has the effect of a grant by
the United States of the right of present and exclusive possession,
with the right to the exclusive enjoyment of all the surface ground as
well as of all the minerals within the lines of the claim, except as
limited by the extralateral rights of adjoining locators; and this is
the locator’s right before as well as after the issuance of the patent.
While a lode locator acquires a vested property right by virtue of his
location, made in compliance with the mining laws, the fee remains in
the government until patent issues?’ (18 R. C. L., 1152.) In Noyes vs. Mantle (127 U. S., 348, 351; 32 Law. ed., 168, 170), the court said:

“There
is no pretense in this case that the original locators did not
comply-with all the requirements of the 1aw in making the location of
the Pay Streak Lode Mining claim, or that the claim was ever abandoned
or forfeited. They were the discoverers of the claim. They marked its
boundaries by stakes, so that they could be readily traced. They posted
the required notice, which was duly recorded in compliance with the
regulations of the district. They had thus done all that was necessary
under the law for the acquisition of an exclusive right to the
possession and enjoyment of the ground. The claim was thenceforth their
property. They needed only a patent of the United States to render
their title perfect, and that they could obtain at any time upon proof
what they had done in locating the claim, and of subsequent
expenditures to a specified amount in developing it. Until the patent
issued the government held the title in trust for the locators or their
vendees. The ground itself was not afterwards open to sale.”

In a recent case decided by the Supreme Court of the United States, it was said:

“The
rule is established by innumerable decisions of this court, and of
state and lower Federal courts, that when the location of a mining
claim is perfected under the law, it has the effect of a grant by the
United States of the right of present and exclusive possession. The
claim is property in the fullest sense of that term; and may be sold,
transferred, mortgaged, and inherited without infringing any right or
title of the United States. The right of the owner is taxable by the
state; and is ‘real property,’ subject to the lien of a judgment
recovered against the owner in a state or territorial court. (Belk vs. Neagher, 104 U. S., 279, 283; 26 L. ed., 735, 737; 1 Mor. Min. Rep., 510; Manuel vs. Wulff, 152 U. S., 505, 510, 511; 38 L. ed., 532-534; 14, Sup. Ct. Rep., 651; 18 Mor. Min. Rep., 85; Elder vs. Wood, 208 U. S., 226, [317] 232; 52 L. ed., 464, 466; 28 Sup. Ct. Rep., 263; Bradford vs.
Morrison, 212 U. S., 389; 53 L. ed., 564; 29 Sup. Ct. Rep., 349.) The
owner is not required to purchase the claim or secure patent from the
United States; but so long as he complies with the provisions of the
mining laws, his possessory right, for all practical purposes of
ownership, is as good as though secured by patent.” (Wilbur vs. United States ex rel. Krushnic, 280 U. S., 306; 74 Law. ed., 445.)

The Solicitor-General admits in his memorandum that the decision in the
McDaniel case is determinative, of the fundamental question involved in
the instant case. But he maintains “that this decision is based on a
misapprehension of the authorities on which the court relied,” and that
it “is not well founded and should be abandoned.” We do not deem it
necessary to belabor this point Whether well-founded or not, the
decision in that case was the law when section 1 of Article XII of the
Constitution became effective; and even if we were disposed to overrule
that decision now, our action could not affect rights already fixed
under it.

Our conclusion is that, as the mining claim under
consideration no longed formed part of the public domain when the
provisions of Article XII of the Constitution became effective, it does
not come within the prohibition against the alienation of natural
resources; and the petitioner has the right to a patent therefor upon
compliance with the terms and conditions prescribed by law.

It remains to consider whether mandamus is the proper remedy in this case. In Wilbur vs. United States ex rel. Krushnic, supra,
the Supreme Court of the United States held that “mandamus will lie to
compel the Secretary of the Interior to dispose of an application for a
patent for a mining claim on its merits, where his refusal to do so is
based on his misinterpretation of a statute.” In the course of its
decision the court said: “While the decisions of this court exhibit a
reluctance to direct a writ of mandamus against an executive officer,
they recognize the duty to do so by settled principles of law in some
cases. (Lane vs. Hoglund, 244 U. S., 174, 181; 61 L. ed., 1066, 1069; 37 Sup. Ct. Rep., 552; and case cited.) In Roberts vs.
United States (176 U. S., 221, 231; 44 L. ed., 443, 447; 20 Sup. Ct.
Rep., 376), referred to and quoted in the Hoglund case, this court said:

”
‘Every statute to some extent requires construction by the public
officer whose duties may be denned therein. Such officer must read the
law, and he must therefore, in a certain sense, construe it, in order
to form a judgment from its language what duty he is directed by the
statute to perform. But that does not necessarily and in all cases make
the duty of the officer anything other than a purely ministerial one.
If the law direct him to perform an act in regard to which no
discretion is committed to him, and which, upon the facts existing, he
is bound to perform, then that act is ministerial, although depending
upon a statute which requires, in some degree a construction of its
language by the officer. Unless this be so, the value of this writ is
very greatly impaired. Every executive officer whose duty is plainly
devolved upon him by a statute might refuse to perform it, and when his
refusal is brought before the court he might successfully plead that
the performance of the duty involved the construction of a statute by
him, and therefore it was not ministerial, and the court would on that
account be powerless to give relief. Such a limitation of the powers of
the court, we think, would be most unfortunate, as it would relieve
from judicial supervision all executive officers in the performance of
their duties, whenever they should plead that the duty required of them
arose upon the construction of a statute, no matter how plain its
language, nor how plainly they violated their duty in refusing to
perform the act required.’ “

In the instant
case, we are not justified, upon the state of the pleadings, to grant
the relief sought by the petitioner. Considering, however, that the
refusal of the respondents to act on the application for a patent on
its merits was due to their misinterpretation of certain constitutional
and statutory provisions, following the precedent established by the
Supreme Court of the United States in Wilbur vs. United States ex rel. Krushnic, supra,
a writ of mandamus should issue directing the respondents to dispose of
the application for patent on its merits, unaffected by the prohibition
against the alienation of natural resources contained in section 1 of
Article XII of the Constitution and in Commonwealth Act No. 137. So
ordered.

Avanceña, C. J., Villa-Real, Imperial, and Diaz, JJ., concur.

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CONCURRING IN THE RESULT

LAUREL, J.:

This
is a case, as I understand it, of a mining claim whose location was
duly perfected under a law of the Congress of the United States prior
to the inauguration of our Commonwealth. This law of the Congress is
the Act of July 1, 1902, the first Congressional legislation that gave
us a cherished bill of rights.

I express the opinion that a
perfected location of a mining claim is an “existing right” within the
purview of section 1, Article XII, of our Constitution. It is a
substantial property right and permits the locator to take all the
necessary steps leading to the issuance of a patent. It is not
contingent or expectant because contingency or expectation is neither
property nor property right. It is a legal right in the sense that it
is recognized by law and acknowledged by the Constitution. And
recognition implies protection. I must, therefore, reject the
suggestion that by the interposition of the Constitution such a right
had been wiped out or frittered away notwithstanding the saving clause
therein contained and now to be referred to.

The saving
clause in the section involved of the Constitution was originally
embodied in the report submitted by the Committee on Nationalization
and Preservation of Lands and Other Natural Resources to the
Constitutional Convention on September 17, 1934. It was later inserted
in the first draft of the Constitution as section 13 of Article XIII
thereof, and finally incorporated as we find it now. Slight have been
the changes undergone by the proviso from the time it came out of
committee until it was finally adopted. When first submitted and as
inserted in the first draft of the Constitution it reads: “subject to
any right, grant, lease, or concession existing in respect thereto on
the date of the adoption of the Constitution.” As finally adopted, the
proviso reads: “subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government
established under this Constitution.” This recognition is not mere
graciousness but springs from the just character of the government
established: The framers of the Constitution were not obscured by the
rhetoric of democracy or swayed to hostility by an intense spirit of
nationalism. They well knew that conservation of our natural resources
did not mean destruction or annihilation of acquired property rights.
Withal, they erected a government neither episodic nor stationary but
well-nigh conservative in the protection of property rights. This,
notwithstanding nationalistic and socialist traits discoverable upon
even a sudden dip into a variety of the provisions embodied in the
instrument.

But while I regard the recognition and protection of
the right here invoked inevitable, I feel constrained to withhold my
assent to the invocation of the case of McDaniel vs.
Apacible and Cuisia ([1922], 42 Phil., 749), insofar as citation
thereof may imply unqualified acceptance of or adherence to the broad
rule that where there is a valid and perfected location of a mining
claim, the area covered is not only thereby segregated from the body of
the public domain but becomes the private property of the locator. My
opinion is that while the locator, under the circumstances, secures the
beneficial ownership or the dominium utile, the government retains the bare ownership or the dominium directum,
until the locator’s claim ripens tnto full ownership upon full
compliance with all the requirements of the law for the issuance of a
patent I, therefore, concur in the result.

---

 

DISSENTING

CONCEPCION, J.:

With regret, I have to dissent from the opinion of my learned
colleagues in this very important case now under advisement We are
concerned with the correct construction of a constitutional prohibition
in a matter directly related to the conservation of a great portion of
our national wealth: the mines.

Because of the refusal of
the respondents, the Secretary of Agriculture and Commerce and the
Director of the Bureau of Mines, to approve the application of the
petitioner, Gold Creek Mining Company, for the issuance in its favor of
the patent for or title to a mining claim, and to prepare the papers
necessary for the issuance of said patent and submit them for the
signature of the President of the Philippines, the petitioner seeks to
obtain from this court a writ of mandamus to compel the respondents to
do what they refused to do. Instead of granting or dismissing the
petition, the majority orders the respondents to act on the
application, which,—they rule,—is not affected by the prohibition
against the alienation of natural resources contained in section 1 of
Article XII of the Constitution and in Commonwealth Act No. 137.

This is the first point on which I disagree with the majority, for the
reason that, as alleged in the petition, the respondents refused to
approve the petitioner’s application and, on the other hand, that the
Solicitor-General pointed out in his memorandum that the statement of
facts contained in the briefs of the petitioner may be accepted for the
purpose of deciding the legal questions raised; and although there are
some discrepancies between the allegations of the parties, they are not
of such nature or moment as would require the introduction of evidence
before the case is submitted for decision. In my opinion, this court
should now dispose of the petition for mandamus on its merits, granting
or dismissing the same, instead of ordering the respondents to act on
the petitioner’s application, it being a fact that said respondents had
already acted by denying said application.

Now, considering
the petition on its merits, should we order the respondents to approve
the petitioner’s application for patent, or should we, on the contrary,
deny the remedy prayed for? In other words, should we hold that the
petitioner is entitled to the patent applied for, or on the contrary,
that it has not acquired such right?

Section 1 of Article XII of the Constitution provides as follows:

“All
agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, and other natural resources of the Philippines belong
to the State, and their disposition, exploitation, development, or
utilization shall be limited to citizens of the Philippines, or to
corporations or associations at least sixty per centum of the
capital of which is owned by such citizens, subject to any existing
right, grant, lease, or concession at the time of the inauguration of
the Government established under this constitution. Natural resources,
with the exception of public agricultural land, shall not be alienated,
and no license, concession, or lease for the exploitation, development,
or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years renewable for another twenty-five
years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water
power, in which cases beneficial use may be the measure and the limit
of the grant.”

The majority maintains that
the foregoing constitutional provision prohibits, the alienation of
natural resources and that the term “natural resources” includes
mineral lands of the public domain, but not the mineral lands which at
the time the provision became effective no longer formed part of the
public domain. The majority further states that the claim in question,
having been located prior to the inauguration of the Commonwealth, has
ceased to be land of the public domain and, therefore, does not fall
within the prohibition contained in the foregoing section which
expressly provides, that the natural resources shall not be alienated.

It is true that the mining claim in question was located prior to the
inauguration of the Commonwealth on November 15, 1935. It may be
conceded that a location, once made and perfected, operates to
segregate the land from the public domain, but this in no wise means
that the Government parts with the absolute ownership over the mining
claim by the mere fact of its location. Location should only be
understood as segregating the “land located from the public domain in
the sense that it is no longer open to location or susceptible of
appropriation by another, while the locator has not lost his right to
or abandoned the mining claim. To give a broader meaning and a greater
effect to the location of a mining claim is to contend—against the
express provisions of sections 36, 37 and 39 of the Act of Congress of
July 1, 1902, as amended by section 9 of another Act of Congress of
February 6, 1905,—that location is all that is necessary to acquire
absolute ownership over a located mining claim. This is not the law.
From the location of a claim to the issuance of the patent for or title
to the land, is a far cry. Location, without more, confers only the
right of possession. Thus section JJ6 of the Act of Congress of
February 6, 1905 refers to the “manner of recording, and amount of work
necessary to hold possession of a mining claim.” Section 39 of the same Act also speaks of the right of possession
of the claim, and the right to the issuance of a patent only arises
after the execution of certain works and acts prescribed by law, such
as the labor or improvements made each year (sec. 36); the full
description and identification of the land by means of plat and field
notes (sec. 37); the notice and publication of the application for a
patent by the locator, etc., etc. (sec. 37).

The same
majority states: “The legal effect of a valid location of a mining
claim is not only to segregate the area from the public domain, but to
grant to the locator the beneficial ownership of the claim and the
right to a patent therefor upon compliance with the terms and conditions prescribed by the law.” (Underscoring mine.)

Well, then: the Act of Congress does not fix any period within which
the conditions prescribed ought to be complied with. It does specify
the time for recording a claim in the registry, but it does not
determine the period within which to make the necessary annual labor or
improvements thereon. The law requires universal publication and notice
of the application for a patent for a determinate number of days, but
it fails to fix the date when said notice may be made and published.
The law requires that, if there be any claim adverse to the application
for a patent, the corresponding action should be instituted in the
proper court to determine who is entitled to the patent; but no period
is fixed within which the litigation should be decided. The law finally
requires the payment of a certain sum for every hectare of land covered
by the mining claim before the patent is issued; but it does not
prescribe the period within which to pay said sum, which is the price
for the alienation of the land by the Government in favor of the
applicant for the title or patent.

I now ask: Within what
time must the conditions prescribed by the law be complied with in
order that the locator may become entitled to the patent? I gather from
the majority opinion that, as long as the location of the mining claim
was perfected before the inauguration of the new Government of the
Philippines on November 15, 1935, the other conditions may be complied
with even after said date in order that the locator may acquire a fight
to the patent. I dissent on this fundamental point from the majority
opinion. I maintain that in prohibiting the alienation of natural
resources, save any existing right, the Constitution does not
refer to the eight of location or to the inherent right of possession,
or to any inchoate or contingent right which are only a means to bring
about another right; it refers only to the right to obtain a patent.
And inasmuch as this right cannot be acquired until after compliance
with all the conditions prescribed by law, it is evident that the
prescribed conditions should be complied with before the inauguration,
of the Commonwealth.

Was the petitioner entitled to the
issuance of the patent for the mining claim in question before the
inauguration of the Commonwealth on November 15, 1935? I hold that he
was not, because on said date, according to the very allegations of the
petition for mandamus, the publication in the newspapers of the
application for a patent for a period of 60 days as prescribed by law
had not been made, as said publication was only commenced on February
13, 1936. Neither was the payment of P25 per hectare made before the
inauguration of the new Government, that is, the Government had not
been paid the price for the alienation of the mineral land when Article
XII of the Constitution went into effect. Petitioner’s right,
therefore, to the patent had not matured before November 15, 1935,
wherefore, he falls squarely within the constitutional prohibition.

A similar thing has been provided for by Act No. 926, passed in
October, 1903, and Act No. 2874, passed in November, 1919, in relation
to public lands. Section 54, paragraph 6, of the first Act, and section
45, paragraph (b), of the second, provide that those who have
been in possession of agricultural lands of the public domain since
July 26, 1894, may acquire a perfect title of ownership; and it is
necessarily inferred that those who commenced their possession of such
lands after July 26, 1894 have no right to obtain title,
notwithstanding the fact that their possession may have been for 10, 20
or 30 years. This is exactly what the Constitution has provided: to fix
a time for determining those who have become entitled to the patent for
a mining claim.

Although the provisions of the Act of
Congress of 1905 are very clear and there in no better aid to
construction than the law itself, I nevertheless cite the following
authorities which support my points of view in this opinion.

“The
locator of a mining claim under the United States laws, prior to the
actual payment of the purchase-money and the issuance to him of the
receipt therefor by the Land Department, possesses a mere privilege to
purchase the property, and a constable’s sale of the mine before
payment only passes that privilege * • *.” (Hamilton vs. Southern Nev. G. & S. Min. Co., 33 Fed., 562.)

“* * * But he is not the owner of the land until he pays for it, and obtains the United States patent. It is a part of the public domain.
In the meantime the defendant is occupying it under a mere license from
the government, which may be revoked at any time by the repeal of the
act giving it. * * * His license under the statute to occupy and to
work it as mining ground is sufficient for that purpose until withdrawn
by Congress, without purchasing it. * * ?” (U. S. vs. Nelson, Fed. Cas. No. 15,864.) (Underscoring mine.)

“A prospector on the public mineral domain may protect himself in the possession of his pedis possessionis
while he is searching for mineral. His possession so held is good as a
possessory title against all the world, except the government of the
United States * * *.” (Crossman vs. Pendery, 8 Fed., 693.)

“A
possessory title, while it may not be divested by any one except the
United States, may be avoided by the default of its owner, either by
abandonment or by forfeiture for non-compliance with local regulations
or with the statutory requirements as to annual labor * * *.” (1 The
Law of Mines and Mining in the United States, Barringer & Adams,
318, 319.)

“Prior to the issuance of a patent the locator
cannot be said to own the fee simple title. The fee resides in the
general government, whose tribunals, specially charged with the
ultimate conveyance of the title, must pass upon the qualifications of
the locator and his compliance with the law. Yet, as between the
locator and everyone else save the paramount proprietor the estate
acquired by a perfected mining location possesses all the attributes of
a title in fee, and so long as the requirements of the law with
reference to continued development are satisfied, the character of the
tenure remains that of a fee. As between the locator and the
government, the former is the owner of the beneficial estate, and the
latter holds the fee in trust, to be convened to such beneficial owner
upon his application in that behalf and in compliance with the terms prescribed by the paramount proprietor.” (Lindley on Mines, 3d. ed., sec. 539, p. 1200.) (Underscoring mine.)

I therefore vote for the denial of the petition.