Prosser v. Parks — 18 Cal. 47

Majority

p. 47

PROSSER et al. v. PARKS et al.

Headnote

English v. Johnson, (17 Cal.) that the quantity of ground a miner can claim by location or prior appropriation for mining purposes may be limited by the mining rules of the district, affirmed.

The mining rules of the district cannot limit the quantity of ground or the number of claims a party may acquire by purchase.

Appeal from the" Seventeenth District.

Ejectment for a piece of mining ground in Sierra county, fifteen hundred feet wide by twenty-eight hundred feet in length.

On the trial defendants introduced in evidence the miners’ laws of Trigaski’s Flat, .the district where the ground was situated ; and the sections pertinent to the point made are as follows :

“ Sec. 2. A claim shall consist of twenty-five feet front, and extend into the hill without limit, laid conformably to the established lines of Trigaski’s claims.

“ Sec. 3. Each person may hold one claim by preemption, and one claim by purchase, provided each purchased claim be represented during the working season.”

Upon this evidence plaintiffs asked the following instruction, to wit: “ The mining rules and laws which have been introduced in evidence in this case do not restrict miners in the quantity of min

p. 48

ing ground they may locate or purchase in the mining district of Trigaski’s Flat.” Refused by the Court, and the following instruction voluntarily given:

“ The mining laws in evidence in this case limit' the right of an individual to one claim of twenty-five feet by location or prior appropriation ; but mining laws cannot restrict the quantity of ground or number of claims which any party may purchase.”

Verdict and judgment for defendants. Plaintiffs appeal.

Vanclief & Pratt, for Appellants.

1. The Legislature cannot delegate to the miners of a district the power to make mining laws for that district. (Const, art. 4, sec. 1; Sedg. Stat. & Const. L. 166, 463 et seq.)

2. The mining laws introduced in evidence do not limit the quantity of ground a miner may locate or purchase.

H. I. Thornton, for Respondents.

Field, C. J. and Baldwin, J. concurring.

'This is an action for the possession of certain mining claims. On the trial of the case, the defendants introduced the mining rules of the district, upon the effect of which the Court gave the following instruction : “ The mining laws in evidence in this case limit the right of an individual to one claim of twenty-five feet by location or prior appropriation. But mining laws cannot restrict the quantity of ground or number of claims which a party may acquire by purchase.” The appellants contend that the first clause of this instruction is erroneous, and their counsel have placed on file a lengthy and ingenious argument in support of their position. The principle involved is not, however, an open question in this Court, and we are not inclined to entertain further discussion upon the subject. Our views are fully expressed in the recent case of English v. Johnson, and it is not our purpose to depart from those views.

Judgment affirmed.

p. 49

On petition for rehearing, Cope, J. delivered the opinion of the Court—Baldwin, J. concurring.

The petition for rehearing must be denied. The instruction of the Court was based upon a correct interpretation of the mining laws of the district, and we are unable to perceive any valid objection to it. Petition denied.