BOTH TITLES INVALID IN LAW. .1. Proceedings before the Alcalde, against the Mining Ordinances, and void. 2. Alcalde without power to make a mining concession. 3. The alleged title to the mine, and title to the land, both to be taken as original grants by the President, at Mexico. 4. Both grants unauthorized and void.-The Junta, etc.— Paredes their powers. 5. Void, possession rot having been given before the conquest. 6. Void, because contrary to the form of the Government of California and Mexico. 7. Void, because made flagrante bello, and on the eve of conquest. II The claim is without foundation in law, both in respect of the mining title, and the grant of land. 1. Under the code of 1783, known as the Ordenanzas de Mineria, the mining law of Mexico in 1845, a mining title was to be obtained in the following manner : The applicant appeared before the proper deputation, and presented a written statement, setting forth his name, the names of his partners, if he had any, his residence, his profession and business, the distinguishing features of the place, hill or vein which he sought to have adjudicated to him. The deputation and their notary, if they had one, entered all these circumstances, with the hour of his appearance, in a book of registry which it was made their duty to keep; which being done, they returned him his written statement, with their certificate endorsed upon it for his due protection, and put up notices on the doors of the church, the public buildings, and other conspicuous places, for the public information. Within ninety days, he must have opened on the vein or veins, a WELL, one vara and a half broad at the mouth, and ten varas deep, and as soon as this had been done, and if no one appeared within the ninety days, and showed a better right to have the mine awarded to him, a member of the deputation, accompanied by their notary, if they had one, and if not, by two attesting witnesses, and the mining professor of the district, went in person, and inspected the direction of the vein, its dip, its hardness or softness, the greater or less firmness of its sides, and the nature of the metal, measured off the proper pertenencia, and caused large and strong stakes to be planted in the earth, as permanent marks of their boundaries, and then forthwith gave to the applicant, possession, in the name of the King; took an exact note of all these proceedings, added it to the original registry, made an authentic copy, and delivered it to him, as his formal title paper. (Ord. de Min., Title VI., secs. 4 and 5. Tit. VIII., sec. 11.) These proceedings are substantially the same as were observed before 1783, under the Code of Philip II., the subject of Gamboa's Commentary, down to and inclusive of the well; all after that is new, and was evidently suggested by the earnest recommendations of such an addition to the law, which are to be found in chap. xiii., secs. 11, 12 and 13, of Gamboa's work. It had been the law to give the possession as soon as the well was finished, and without any measurement of the corresponding pertenencia, and without in anywise determining its position, further than that it should always include the well, and be somewhere within a circle, described from the well as a center, with the diagonal of the pertenencia as a radius. Inside of these limits, and always adhering to his well, the miner might continue to shift his pertenencia about, as he pleased, and was not compelled to confine himself to a precise location, except by some subsequent order of a Judge, which might be granted at his own solicitation, or upon the requirement of his neighbors, and in the latter case would not be effectual to hem him in, absolutely, unless demanded on every side. This exceedingly peculiar arrangement is described as follows in Gamboa : "In another place he" (referring to Don Joseph Saenz, in his Treatise upon the Measurement of Mines,) "gives a mechanical illustration of this subject, by supposing a tambour frame to be taken, without any cross-piece, and made in the form of a parallelogram, twice as long as broad; which is the form of the discoverer's and of an ordinary mine. He then * * * fixes a nail in the table to represent the fixed stake," (which is the well,)-see Rockwell's Gamboa, chap. 9, secs. 19, 20, 21; chap. 13, secs. 3 and 4, et passim-" and by changing or varying the position of the frame in every possible way, first to one side and then to the other, first towards one corner, then towards another, |