in the statutes of the United States, is that portion of a vein or lode and of the adjoining surface, or of the surface and subjacent material, to which a claimant has acquired the right of possession by virtue of a compliance with the laws of the United States and the local rules and customs of miners. (Copp's United States Mining Decisions, 136, 142; Weeks on Mineral Lands, 118.) Independent of acts of Congress providing a mode for the acquisition of title to the mineral lands of the United States, the term 'mining claim' has always been applied to a portion of such lands to which the right of exclusive possession and enjoyment by a private person or persons has been asserted by actual occupa tion, or by compliance with local mining laws or rules or

customs.

"In the case now here the court below found that the defendant, the Santa Clara company, was the owner of two tracts of land, one being a portion of the Rancho Los Capitancillos, and consisting of eleven hundred and nine and sixty-seven one hundredths acres (the title whereto was derived through a patent from the United States), and the other containing three hundred and fourteen and sixty-eight one hundredths acres, being pueblo tract No. 2, formerly belonging to the city of San Jose. The court also found that the whole of said land is commonly known as the 'Guadaloupe mine'; and then proceeded to declare a lien in favor of plaintiff upon both tracts, and to decree that the fourteen hundred and twenty-four and fifty-five one hundredths acres should be sold to satisfy it.

"The lands directed to be sold were not a 'mining claim,' either in the popular sense of the words, or as the term has been employed in judicial decisions, or as it is used in the code. The Fremont grant is not a 'mining claim,' although many mines have been opened within its boundaries, and the owners of the grant may claim such mines to be their own. The right of the defendant, the Santa Clara company, to a portion of the Rancho Los Capitancillos, or to a portion of the

pueblo lands of San Jose, and to extract ores therefrom, in no way depended upon a claim to the possession made in recognition of and in conformity to local rules adopted by miners in a mining district, or in accordance with the usages or customs of a locality. The defendant derived its title, as would seem, from the Mexican or Spanish government to the larger tract; certainly so as to the pueblo land. We take notice that no patent, based upon 'mining claims,' could have been issued under any act of Congress for the whole or for eleven hundred and nine acres of the Rancho Los Capitancillos. The plaintiff could not acquire the statutory lien upon the lands of the Santa Clara Company, simply because the statute does not authorize it. It may be that the statute is not sufficiently comprehensive; indeed, it would, perhaps, be difficult to say why one class of materialmen,' or laborers, should have preference over another; why, for instance, the furnisher of seed, or the plowman, should not have a lien on the farm of him to whom the seed is supplied, or for whom the plowing is done. But the legis lature has seen fit to limit the benefit of the lien to particular classes, and we are not authorized to extend it to others."

In Bewick v. Muir, 83 Cal. 372, which respondent con. tends modifies and explains the law declared in Williams v. Santa Clara Min. Assn., supra, this court was called upon to decide whether the phrase "mining claim" of the lien law included mining claims after the possessory right of claim had matured into a perfect title by the issuance of a mineral patent from the United States; and this was all it was called upon to decide. This court said: "The words 'mining claim,' as used in the law, have no reference to the different stages in the acquisition of the government title. In our opinion it includes all mines, whether the title is inchoate, as in the case of a mining claim in its strict sense, or perfect, as in the case of a fee-simple title." Reference to the record in this last-named case discloses not only that the complaint pleaded that all the mining land and ground

CVII. Cal-40

described therein were mining claims, but that the court in its findings so declared. In the case at bar there is no such finding.

It follows, therefore, that the further expressions of the court in Bewick v. Muir, supra, were not only unneces sary to the decision, but were addressed to a condition neither involved in nor presented by the facts of the case. It is the invariable rule, well understood by the profession, that an opinion of this court becomes authority only upon the point decided, and that obiter dicta are of no binding force or effect. Indeed, such passing declarations have no weight whatever, except such as the cogency of the reasoning may entitle them to.

We must turn, therefore, to Williams v. Santa Clara Min. Co., supra, as containing the last authoritative expression of the court upon the question, we deem its reasoning to be unassailable and its conclusion determinative of the case at

bar.

As is there said, the legislature has seen fit to limit the benefit of the lien to particular classes, and we are not at liberty to extend it to others. To do so would not be construction, but judicial legislation.

The judgment appealed from is reversed, and the cause remanded.

MCFARLAND, J., and TEMPLE, J., concurred.

Hearing in Bank denied.

BEATTY, C. J., dissented from the order denying a hearing in Bank.

[No. 19514. Department Two. July 2, 1895.] W. H. HARRELSON, RESPONDENT, v. M. S. G. TOMICH ET AL., APPELLANTS.

MORTGAGE ORAL AGREEMENT FOR PAYMENT OF TAXES-FORECLOSURE —EVIDENCE.—In an action to foreclose a mortgage, evidence of a contemporaneous parol agreement between the parties to the mortgage, whereby the mortgagor undertook to pay the taxes which might be assessed or levied upon the mortgage or the debt secured thereby, is inadmissible, for the purpose of defeating the mortgagor's liability for interest on the debt.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial.

This action was brought to foreclose a mortgage upon property in Los Angeles county, given to secure a note for sixteen thousand five hundred dollars, with interest at the rate of eighteen per cent per annum. The defendants pleaded in their answer that, at the time and place when the note and mortgage were signed and delivered, it was understood between the plaintiff and the defendant, Maria S. G. Tomich, the mortgagor, as part of the same contract and the saine transaction as the making of the note and mortgage, that the mortgagor would pay and discharge all taxes and assessments which might be assessed or levied upon the money loaned, or upon the mortgage. In support of this allegation in the answer, evidence was offered by the defendants of an oral agreement of the nature pleaded in the answer, which offer was rejected. Further facts are stated in the opinion of the

court.

W. T. Williams, and Reymert & Orfila, for Appellants.

An agreement by the mortgagor to pay the mortgage tax releases the mortgagor from any obligation to pay the interest due upon the note. (Const., art. XIII, sec. 5; Burbridge v. Lemmert, 99 Cal. 493; Harralson v. Barrett, 99 Cal. 607.) Oral testimony is admissible where the

validity of the agreement is the fact in dispute. (Code Civ. Proc., sec. 1856.)

Albert M. Stephens, for Respondent.

The parol evidence was not competent to prove that the mortgagor was obligated to pay the mortgage tax. (Daw v. Niles, 104 Cal. 106.)

BRITT, C.-The controlling question here is whether it was competent for defendants to prove an alleged oral agreement entered into by the parties to the mortgage, for the foreclosure of which plaintiff prosecutes this action, and contemporaneously with such mortgage, whereby the mortgagor undertook to pay the taxes which might be assessed or levied upon the mortgage or the debt secured by the same; this for the purpose of defeating plaintiff's claim to interest on the debt. The court below excluded such evidence, and rendered judgment for plaintiff. Counsel agree that the question presented is substantially the same as that in Daw v. Niles, 104 Cal. 106, which case was yet pending in this court when the briefs were filed on the present appeal. That case having been since decided adversely to the views of defendants, on its authority the judgment and order appealed from should be affirmed.

HAYNES, C., and BELCHER, C., concurred.

For the reason given in the foregoing opinion the judgment and order appealed from are affirmed.

MCFARLAND, J., HENSHAW, J., Temple, J.