Home A - Z FAQ Art Prints Online Library Discussion Forum Muir Weather Maps About Search
Online Library: Title Author California Geology History Indians Muir Mountaineering Nature Management

Next: 22. First White Woman in Bear ValleyContentsPrevious: 20. Bear Valley

The Call of Gold (1936) by Newell D. Chamberlain


In October, 1859, climaxing one of the most intense legal battles in the entire State, participated in by the greatest legal talent of the day, the Supreme Court of California rendered their final decision. It was in favor of Fremont and Boggs and in addition to confirming the findings of Judge Burke, at the conclusion of the famous trial in 1857, it declared that Fremont was the legal owner both by Court decree and by Act of Congress and that he had full right to mine the premises from the center of the earth to the heavens above.

The personnel of the Supreme Court had changed since the decision of January, 1858. Baldwin, who had been counsel for Fremont, had replaced Burnett, so did not sit on the case. Terry had resigned September 12, and on the following day, had fought a duel with U. S. Senator Broderick, whom he accused of stating, “I once said Terry was the only honest Judge on the Supreme Bench but now I take that back”. Probably the real cause was much deeper and of a political nature. Broderick was wounded and died a few days later. With the resignation of Terry, Stephen J. Fields became Chief Justice and W. W. Cope was appointed Associate Justice.

Chief Justice Fields read the decision and Associate Justice Cope concurred. It was proven a masterpiece in the clear interpretation of certain laws and has greatly aided in the untangling of many legal problems throughout the Nation. The decision clearly defined the question of estoppel and gave in detail what must be proven to a Court before it will prevent or estop a person from changing prior admissions in order to protect his own property.

Owing to many erroneous stories about Fremont having secured title to his grant by deceit and fraud, it is worthwhile to give in detail parts of the final decision, which clearly show that he was entitled to all that he received. There is no telling how many thousands of dollars, maybe even running into millions, which were stolen from his property in the many years pending the perfection of his title and of which there was no possibility of recovery. And during these years of litigation, even though he had possession of but part of his property, he was required to pay taxes on its entirety and these were now amounting to over $16,000 per year.

The Court said: “Any right the defendant may have against Fremont as to the possession and use of the land, must be based upon the ground that the mineral does not pass with the soil as an incident to it, but belongs either to the United States or the State of California and that the defendant has an effectual license to enter upon the premises and extract the same.

“Such license from an individual owner can be created only by writing and from the General Government only by Act of Congress. But Congress has adopted no specific action on the subject and has left the matter to be controlled by its previous general legislation respecting the public domain. The supposed license from the General Government consists in its simple forebearance.

“The United States—holding as they do with reference to the public property in the minerals, only the position of a private proprietor with the exception of exemption from State taxation, having no municipal sovereignty or right of eminent domain within the limits of the State—cannot, in derogation of the rights of the local sovereign to govern the relations of the citizens of the State and to prescribe the rules of property and its mode of disposition and tenure, enter upon or authorize an entry upon private property, for the purpose of extracting mineral.

“The general course of legislation in this State authorizes the inference of a license from her to the minerals, to enter upon lands and remove gold, so far as she has any right, but the license is restricted to public lands.

“The premises in controversy in the present case, being private property, it follows that there is no pretence for the justification of the defense of a license from either the General or State governments. If the mineral belongs to either government, there must be more specific legislation than any yet resorted to, before the invasion of private property can be permitted in search of it for extraction.

“The doctrine of unlimited general license, put forth by the defense, is pregnant with the most pernicious consequences. If upheld, it must lead to the spoliation of landed estates, under the pretence of mining, without possibility of protection or redress on the part of the owner. There is gold in limited quantities scattered through large and valuable districts, where the land is held in private proprietorship and under this pretended license, the whole might be invaded and for all useful purposes destroyed, no matter. how little remuneration the product of mining.

“The entry might be made at all seasons, whether the land was under cultivation or not and without reference to its condition, whether covered with orchards, vineyards, gardens or otherwise. Under such a state of things, the proprietor would never be secure in his possessions, and, without security, there would be little development, for the incentive to improvement would be wanting.

“There is something shocking in all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields, cut down his timber and occupy his lands, under the pretence that he has reasons to believe there is gold under the surface, or if existing, that he wishes to extract and remove it.”

Thus, Colonel Fremont, after being forced into litigation covering over seven years and costing him several hundred thousands of dollars, had finally become victor in a legal decision, which also benefited thousands of other property owners throughout California but who did not participate in the costs.

The foregoing decision in favor of Fremont was the beginning of hard feeling, which culminated in tragedy, between Chief Justice Fields and former Chief Justice Terry, who had given a previous decision in favor of the Merced Mining Company.

Chief Justice Fields was a brother of Cyrus W. Fields, famous as the projector of the first cable across the Atlantic. He was appointed in 1863 by President Lincoln as Justice of the U. S. Supreme Court, which position he held with marked distinction and honor for over thirty-four years.

On August 17th., 1889, he was eating breakfast in a railroad eating house at Lathrop, California, in company with U. S. Deputy Marshall David Nagle, who had been delegated to see that no harm befell him, when Judge Terry and his wife entered. Mrs. Terry noticed Fields and immediately left the dining room presumably to get her satchel, in which she carried her famous pistol. Meanwhile Terry crossed the room to where Judge Fields sat and slapped him in the face. Nagle ordered him to stop, but Terry again raised his hand to strike and Nagle shot him through the head killing him instantly.

At the trial, Nagle was acquitted when it was shown that Terry was armed with a dagger, which he intended using; and that Mrs. Terry took it from his body, when she flung herself upon him under the pretense of kissing him as he died. Terry was a brilliant man and had a remarkable life, but had made many mistakes. He married Mrs. Hill, contestant in a notorious suit against millionaire Sharon and when this suit had reached the U. S. Supreme Court, Justice Fields decided against her. This was perhaps the immediate cause of the tragedy, but undoubtedly the first breach between the two men, occurred over the Fremont case in Mariposa County.

Next: 22. First White Woman in Bear ValleyContentsPrevious: 20. Bear Valley

Home A - Z FAQ Art Prints Online Library Discussion Forum Muir Weather Maps About Search
Online Library: Title Author California Geology History Indians Muir Mountaineering Nature Management