Central Eureka Mining Co. v. East Central Eureka Mining Co.

erty and from, an order denying their motion for a new trial. The plaintiff is the owner of the Summit Quartz Mine, situated in Amador County, and the controversy here is as to so much of the vein of ore having its apex within the surface lines of plaintiff’s location as lies within vertical planes drawn through" the end-lines of such location and those lines produced in their own direction, and underneath the surface of defendant’s land. This vein at the apex traverses plaintiff’s location, crossing both the southern and northern end-lines. In its downward course the vein descends into the earth at an angle approximately of sixty-five degrees eastwardly, and on suph downward course passes outside of a plane drawn down vertically through the east side-line of plaintiff’s surface location, and enters the adjoining land of defendants at a depth of 1,094 feet from" the collar of plaintiff’s shaft, and extends for a considerable distance therein. Plaintiff has already sunk its shaft to a depth of about two thousand feet, and was at the time of the commencement of this action engaged in removing the ore and mineral-bearing rock from said vein, at such depth of about two thousand feet.

The end-lines of plaintiff’s claim are not parallel, but converge in the direction of the dip of the vein.

Plaintiff’s title to the Summit Quartz Mine is derived from Hall McAllister, the patentee from the United States. The patent was issued November 25, 1873, and the final entry and payment were made on October 11, 1872, several months after the passage of the act of Congress of May 10, 1872, relative to the promotion of the development of the mining resources of the United States.

The application for the patent, based upon two locations made in the years 1863 and 1865, respectively, was filed on February 7, 1871, while the apt of July 26, 1866, commonly known as the “Lode and Water Law,’’ was in force, and was pending on May 10, 1872, awaiting the approval of the surveyor-general of the survey "which had already been made and submitted for approval. The patent subsequently issued upon said application purported to grant to the patentee the mining premises described therein, with the exclusive right of possession and enjoyment of 1165 56/100 linear feet of said vein (the length thereof on the apex between plaintiff’s end-lines) throughout its entire depth, although it might enter

from acquiring a greater length underneath the surface than he had apex at the surface, a grant of extralateral rights within converging end-line planes, as in this case, would be within the spirit and intent of the act of 1872, and therefore valid. This view is opposed to statements made in the opinions in the cases last cited, which appear to incline to the conclusion that extralateral rights are granted under the act of 1872 only when the end-lines are parallel. However, it is unnecessary to definitely decide this point in this ease, for we are satisfied that, as the locations upon which the patent was based were made prior to May 10, 1872, the requirement as to parallelism of end-lines was not applicable thereto. It was not until the passage of the act of 1872 that there was any such requirement, and it is not disputed that had the patent issued prior to the passage of such act, it would have conveyed the extralateral right between the converging end-planes. While the act of May 10, 1872, repealed the previous statutes regarding the location and patenting of mining claims of the character here involved, the framers thereof were very careful to manifest their intention that existing rights should not be affected by such repeal. By section 2322 of the Revised Statutes (one of the sections of said act), it was declared that “The locators of all mining locations heretofore made, . . . so long as they comply with the laws of the United States, and with state, territorial, and local regulations not in conflict therewith, shall have the exclusive right of possession and enjoyment of all the surface ¡included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of such surface locations, ’’ provided that their right of possession to such outside parts of such veins shall be confined between vertical planes drawn downward through the end-lines of their locations, continued in their own direction. It was further expressly provided in the act that “Such repeal shall not affect existing rights. Applications for patents for mining claims now pending may be prosecuted to a final decisioh in the general land office, but in such eases, where adverse rights are not affected thereby, patents may issue

in pursuance of the provisions of this act,” and further, “Nor shall this act affect any right acquired under said act” (the act of 1866), and still further, “Provided that nothing contained in this act shall be construed to impair in any way rights or interests in mining property acquired under existing laws.” In the face of such provisions, it cannot be held that it was the intention of Congress to deprive a previous locator by any new requirement of any existing right, unless such intention is very clearly manifested. So far as the particular requirement as to parallelism of end-lines is concerned, it would appear to be well settled that it has no application to locations made prior to the act of May 10, 1872. The objection of want of parallelism in end-lines, where the patent was issued subsequent to the passage of said act, based upon locations made prior thereto, has been several times disposed of by the simple statement that when the locations were made there was no law requiring such parallelism. (See Carson City G. and S. M. Co. v. North Star M. Co., 73 Fed. 597 , 599; 83 Fed. 658 , 669.) In Iron S. M. Co. v. Elgin M. and S. Co., 118 U. S. 196 , 208, the supreme court of the United States said, in effect, that a locator under the act of 1866 has in such a case extralateral right, notwithstanding the lack of parallelism. The question was fully considered and definitely decided by this court in favor of such right in Argonaut Min. Co. v. Kennedy M. and M. Co., 131 Cal. 15 . It was said therein that it would have been competent for Congress in the law of 1872 to have required parties who had equitable rights to patents to have made their end-lines parallel before a patent issued, on pain of losing all extralateral rights, but there were no such provisions in the act of 1872, and that the rights of locators under former laws were by said act expressly confirmed to them. The extralateral right was in that case confirmed, although the end-lines diverged, it being held that it could be determined as matter of law from the patent what portion of the vein between those lines, not exceeding at any depth the stated number of linear feet at the apex, was conveyed. Where the end-lines converge, as in this case, there can, of course, be no question as to the definiteness of the description of the extralateral right conveyed. By reason of such converging, the patentee is confined, within well-defined boundaries, to less on the dip below the surface than he had upon the surface.

It is sought to distinguish this case from the Argonaut ease and other cases relied on by plaintiff, by showing that in all these cases the applicant for a patent had made his application and paid his money thereon, prior to the passage of the act of May 10, 1872, and thereby had acquired an equity susceptible of enforcement against the government, while in the case at bar, although the locations and application for a patent had been made prior to May 10, 1872, the payment was not made or the survey finally approved by the surveyor-general until after that date. We find nothing in the report of the case of Carson City v. North Star etc. Co., 73 Fed. 397 , 599; 83 Fed. 658 , 669, showing that the money had been paid prior to May 10, 1872, and, so far as appears therein, the case was an exact parallel to this case.

We are, however, of the opinion that the distinction alleged is not at all material. We are not concerned here with the question as to how far a locator must have proceeded with his claim to put it beyond the power of the government to interfere with him in the enjoyment of the same. As we read the act of 1872, it seems very clear that it was the intention of Congress to preserve to the prior locator everything that his location would have given him had the act of 1872 not been enacted, except possibly the width of the claim on the surface. (See Lakin v. Roberts, 54 Fed. 461 .)

We have already referred to the various provisions upon this subject contained in the act of 1872, and it is unnecessary to here restate them.

The rights sought by the act to be. preserved were such rights as had been acquired under the prior acts, by the making of a valid location, even though those rights were not of such a nature that the government might not, if it had seen fit so to do, deprive the locator thereof, and the right to obtain a patent in accordance therewith, under the provisions of the act of 1872, was given for the reason that the previous laws as to the issuance of such patents were repealed, and there was no other law under which a patent could be issued for any such mining claim. It Was left to the land department to determine, as to any such alleged prior location, what the rights of the locator were under the previous acts, and, in accordance with the procedure laid down by the act of 1872, to issue a patent conveying the title of

the government so far as might be necessary to effectuate such rights.

The patentee did not waive or renounce any extralateral right by the acceptance of the patent. It is true that the patent did, in accordance with the express provisions of the act of 1872, purport to grant in addition to the vein or lode originally located the right to all other veins or lodes, the top or apex of which lay inside of the surface lines of the location extended downward vertically to their entire depth, although in their course downward they extended outside of the vertical side-lines. It might perhaps be contended with some force that as to these other veins and lodes, which were not embraced within the original location, and the right to which was for the first time given by the act of 1872, the requirement as to parallelism of end-lines might preclude any extralateral right. But the patent in terms also purported to grant the 1165 56/100 linear feet of the original vein, throughout its entire depth, between the end-lines continued in their own direction. By the acceptance of such a patent, there was no indication of any intent to waive or renounce any right to follow the vein between the end-lines given by the original location, for those rights were expressly confirmed thereby, and plaintiff bases its claim entirely thereon. We cannot see that the legal effect of such an acceptance was a waiver or renouncing of any such right. These particular rights the patentee was entitled to, even though his end-lines were not parallel, and the fact that the patent purported to also grant something else to which he may not have been entitled cannot affect his rights as to the original vein, which are also confirmed by the patent.

It is true that the patent recites on its face that it is issued in pursuance of the act of 1872, but it also recites that it is issued in pursuance of the act of July 26, 1866, and the act amendatory thereof, approved July 9, 1870, and, in conjunction with the public records in evidence, shows that it was issued upon locations made prior to May 10, 1872, and upon an application pending at that date.

The decision in the case of New Dunderberg M. Co. v. Old, 79 Fed. 598 , relied upon by appellants, does not sustain their claim. The Dunderberg owners claimed the right to follow their vein on its course, or strike, outside of and beyond

their patented boundaries and into a prior claim (the Frostberg). They claimed that they had this right under the act of 1866, but they had so; located their claim on the surface that the lode crossed both side-lines of the claim diagonally on its strike, and passed out of the claim more than three hundred feet before it entered the Frostberg claim, and had accepted a patent for this location. This patent did not purport to grant the extralateral right alleged, and could not under the law grant it upon the surface location, which had to be made under either act, for under both acts the locator was confined, in following the strike of his vein, within the surface boundaries he had thimself defined. To include the extralateral right sought in that case, it was necessary for the Dunderberg owners to go beyond their location, entry, and patent, and claim something not embraced therein at all. It was in regard to such a case that the circuit court of appeals said that the claimant w^s bound by his own location, entry, and application, and a patent in accordance therewith, and that his location and entry for a patent was a notice of abandonment of everything pot included therein. It was said: “A claimant who discovered and located a lode mining claim under the-act of 1866 renounces and abandons all rights and privileges to follow his lode on its course beyond the exterior lines of his patented claim when he located it upon the surface of the ground, enters it, and accepts a patent for it under the act of May 10, 1872.” Since the side-lines of the Dunderberg claim crossed the course of the strike of the vein, they were held to constitute end-lines, and it was held that under the express terms of the patent the owner of the claim was without right to the possession of the lode outside of those lines after he obtained his patent. This ease is in no way applicable here.

A question is raised as to the effect upon plaintiff’s extra-lateral right of a quitclaim deed made by plaintiff to the defendants Toman on December 31, 1898.

By this deed plaintiff purported to remise, release, and forever quitclaim unto the Tomans ‘‘All those certain lots, pieces, or parcels of land situate, lying, and being in the said county of Amador, state of California, and bounded and particularly described as follows, to wit: First, That portion of sections eight (8) and seventeen (17), township six (6) north,

range eleven (11) east, Mount Diablo base and meridian, lying north of the center of that certain wagon-road extending between the towns of lone and Volcano and known as the lone and Volcano wagon-road, and lying east of that certain patented mining ground known as the Summit Quartz Mine, and also east of that certain patented mining ground known as the Amador Consolidated Mine.” The second parcel described lay to the west of the Summit Quartz Mine, and is in no way here involved. By this deed the plaintiff further purported to remise and release the Tomans from all claims, bonds, and contracts made by the Tomans to it or its predecessors, and specially from any covenant contained in an agreement between the parties, dated October 23, 1897, and duly recorded.

The deed recited that it was made pursuant to a resolution of the board of directors adopted December 31, 1898. The making of the deed was subsequently ratified by two thirds of the stockholders.

The objection made by plaintiff when defendants offered this deed in evidence was sustained, and the deed excluded upon the ground, as stated by the court, that it did not purport to convey any portion of the mining ground of plaintiff.

Admittedly, the description in the deed does include the land of the Tomans adjoining plaintiff’s claim, through which the vein in controversy has its dip. Defendants, relying upon the well-recognized principle that a conveyance of land, in the absence of express reservation, carries not only the surface of the earth but everything under it and over it, including the minerals therein contained, claim that the effect of this deed was to convey to defendants the portion of the vein here in dispute. As the plaintiff was at the date of the deed the owner of such portion of said vein, such must be held to be the effect of the quitclaim deed if the description in the deed includes the same.

As has already been seen, the deed purported to convey only such portions of the sections of land as lay east of “that certain patented mining ground known as the Summit Quartz Mine and also east of that certain patented mining ground known as the Amador Consolidated Mine.” It is only by construing this language as referring exclusively to the lines

of the surface location that contention that this description included the vein can he upheld. As a matter of fact, the vein under the Toman surface was, so far as it lay between the converging end-line planes of plaintiff’s claim, as much a part of the Summit Quartz Mine, and of the patented mining ground known as such mine, as was the land within the surface lines of plaintiff’s location. (Tyler Min. Co. v. Last Chance M. Co., 90 Fed. 15 , 21; Empire State etc. Co. v. Bunker Mill etc. Co., 121 Fed. 973 -977; Davis v. Shepherd, 31 Colo. 141 .)

It had been by the United States government severed from the Toman land, and granted to plaintiff’s predecessor, as an integral part of the Summit Quartz Mine, and the agricultural patents of defendants’ predecessors contained a corresponding limitation upon the estate granted to them.

Unquestionably, it would have been conveyed by any instrument purporting to grant the Summit quartz-mining claim, or the Summit quartz-mining ground, for it was part and parcel thereof. The reasons which would require us to hold that the vein was conveyed by a deed purporting to convey the Summit Quartz Mining Claim or Mining Ground are equally applicable to a deed purporting to convey only lands lying east of such claim or ground, and forbid the conclusion that it was intended to convey any part of the mining claim or ground itself.

A very different ease would be presented if we were dealing with a deed which contained a description of a parcel of land simply by metes and bounds, or a deed which purported to convey all lands lying east of a certain defined surface line. We have no such deed here, but one which in terms limits its operation to such portions of the designated sections as lie east of the “mining ground’’ of plaintiff. Taking into consideration simply the character of plaintiff’s property, we are of the opinion that the deed did not purport to convey any portion of any vein that had its apex within the surface lines of plaintiff’s location, so far as it lay between the converging end-lines of plaintiff’s claim.

When we examine the deed in the light of the circumstances surrounding its execution, as disclosed by the evidence introduced by defendants, it is apparent that there was no intention to convey any part of the mining claim.

The resolution of the board of directors of plaintiff authorizing the execution of the deed, which is referred to in the deed, and the instrument of ratification signed by the stockholders of plaintiff, show that the object of the quitclaim deed was to free the land and title of the defendants from the effect of a contract made on October 23, 1897, by the Tomans and plaintiff, whereby the Tomans had agreed to sell and convey to plaintiff their lands adjoining plaintiff’s claim. It appears from the resolution of the board of directors that the Tomans, owning the agricultural lands lying east of plaintiff’s claim, had agreed to sell and convey to plaintiff, the owners of the Summit Quartz Mine, certain real property, the description being apparently the same as that in the quitclaim deed, and that it had been mutually agreed that the agreement should be canceled, the plaintiff to pay the Tomans one thousand dollars in consideration of such cancellation, and the president and secretary were authorized to execute on behalf of the corporation “a quitclaim deed of all the right, title, and interest of the corporation in and to the real property described in said contract of sale, and particularly described as follows.” Then follows the description contained in the deed. The ratification by the stockholders recites the execution to the Tomans of “a quitclaim deed conveying all their right, title, and interest of said corporation in and to the property described in said contract,” and ratifies such a deed.

It is very clear that it was not the intention of either directors or stockholders to remise or release or quitclaim any interest of plaintiff in or to anything that was not covered by the agreement of sale executed by the Tomans. The manifest object was to place the Tomans, so far as title was concerned, exactly where they were at the date of the execution of the agreement of sale. Only “the property described in said contract” was to be quitclaimed. The only property described in said contract of sale was property adjoining plaintiff’s mining claim. No part of such mining claim was included therein.

We are therefore of the opinion that there was no error in refusing to receive the deed in evidence for the reason that, quitclaiming only lands lying east of the “mining ground known as the Summit Quartz Mine,” it did not pur

port on its face to affect any; portion of plaintiff’s mining claim, and there is nothing in the surrounding circumstances shown by the evidence introduced by defendants, conceding that the language of the deed is such as to justify consideration of those circumstances, that would justify such a construction of the deed as would, make it a conveyance of any portion of plaintiff’s interest in its mining claim.

The judgment and order are affirmed.

Shaw, J., and Van Dyke, J., concurred.

Hearing in Bank denied.