28 Colo. 362 | Colo. | 1901
delivered the opinion of the court.
One of the defenses interposed as a special plea to the effect that defendant and his grantors had held and occupied the mill site uninterruptedly down to the time of the location of the lode claim for a period equal to the statute of limitations of this state, which defense was based on the provisions of section 2332, of the Revised Statutes of the United States, which' is as follows: “Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state or territory where the same may be situated, evidence of such possession and working of the claims for such period shall be, sufficient to establish a right to a patent thereto under this chapter, in the absence of.any adverse claim:
To this plea a demurrer was interposed and sustained. The object of this section was to permit a party applying for patent to make a prima facie case before the land office by proving that the claim upon which the application for patent was made had been in the possession of himself and grantors for a period equal to the statute of limitations of the jurisdiction in which the claim was situated, provided no adverse claim was interposed. In other words — proof of possession for the statutory period in the absence of any adverse claim was to be taken by the land department as equivalent to an establishment in detail of all the facts necessary to constitute a valid location. The statute, therefore, is not available in an action brought in support of an adverse against an application for patent, for its language necessarily implies that possession in the applicant for the statutory period is of no avail as against an adverse claim based upon a conflicting location — McCowan v. McLay, 40 Pac. Rep., 602 — ex
This question, however, is not material. If it be necessary to plead the statute in question, in order to take advantage of its provisions, defendant was not prejudiced by the action of the court in sustaining the demurrer, for the reason that he established (by testimony which was undisputed) that all acts necessary to constitute a valid location of his mill site had been performed.
A plea of defendant was also interposed to the effect that the land described in the complaint was not, at the time it was located as a lode claim, subject to location, for the reason that it was then actually occupied for a mining purpose by the defendant. On motion of plaintiffs this plea was stricken out. It is urged by counsel for defendant that title to a mining claim cannot be initiated by a trespass. The lode claim was discovered without the lines of the mill site; its boundaries as fixed did embrace a portion of the latter. These facts appear from the pleadings. In such circumstances the act of the plaintiffs in projecting the boundaries of their claim so as to include a part of the mill site was not a trespass, and the motion to strike was well taken.
The mill site was located in 1860, and ever since that date, down to the time of the location of the lode claim, in 1895, was in the uninterrupted possession of the defendant and his grantors, who had erected a three stamp mill thereon, about the time of the location, which was subsequently enlarged .and has been operated from the ^ime of its construction. Over $16,000 has been expended by defendant and his grantors in the way of improvements. The jury found that the vein of the lode claim intersected the mill site. There is no question that a vein was dis
On this record counsel for defendant contend: (a) That a mill site of the class under consideration need not necessarily be located upon non-mineral ground; (b) that as against the mill site, the ground in controversy could not be held as a mining claim unless it appears that it contains mineral sufficient in quantity and quality to justify extraction; (e) that under the district rules of Enterprise Mining District, defendant has a vested right to the mill site.
(&) The definition of a vein, as given by the trial court, is a general one frequently adopted in contests between conflicting lode claims. Like all general rules, it must be reasonably applied, for cases will arise, under peculiar facts, which create an exception. A mill site is a mining location; but the land which may be taken for that purpose is of a special character. The statute contemplates that title to lands for mill sites may be secured which are prima facie mineral, but which, in fact, are non-mineral; so the question presented is, what is the test by which to determine whether land so claimed is non-mineral or not, when a contest arises between a mill site location and a lode claim subsequently located. Where lands designated as mineral have been claimed and located as agricultural, it has been held that the mere presence of gold in placer deposits, or the existence of a vein within the limits of the land so claimed, would
Contests have frequently arisen between placer and subsequenl lode locations involving the question of whether or not the placer embraced within its limits “known: lodes,” which, under the provisions of section 2333 Rev. Stats. U. S., are excepted from, placer patents. In such cases it has been held that a “known lode” is one known to exist at the time of application for patent, and to contain mineral in such quantity and quality as to justify expenditures for the purpose of extracting them. Montana Central Ry. Co. v. Migeon, 68 Fed., 811; Iron Silver M. Co. v. Mike and Starr G. & S. M. Co., 143 U. S., 394; 12 Sup. Ct. Rep., 543; Brownfield v. Bier, 39 Pac. Rep., 461.
In many other cases the question as to what constitutes mineral lands as between the different classes of locations which may be made upon lands of that character, has been presented for determination, either before the courts or the land department, and as to grants previously made, the holding has uniformly been that it is not every crevice or out-croppdng on the surface whicb suggests the possibility of mineral that can be adjudged a “known vein” or lode, within the meaning of the statute, but that in addition to this fact, it must appear that such lands embrace veins known at the time of the grant thereof to be sufficiently valuable for minerals to justify expenditures for their extraction. Iron Silver, etc., Co. v. Mike and Starr, etc., Co., suppra; Dower v. Richards, 151 U. S., 658; 14 Sup. Ct. Rep., 452; Davis v. Weibbold, 139 U. S., 507; 11 Sup. Ct. Rep., 628; Deffeback v. Hawke, 115 U. S., 392.
These decisions are based upon the proposition that one claiming land as a mining location from which to extract minerals must establish, as against a prior location of another class, that the ground so claimed is valuable to operate as a mine, and un
In the circumstances of this case there is also presented for determination this further proposition, namely: As of what date must the mineral character of the mill site be ascertained ? When the validity of a grant depends upon certain conditions, it is the rule that such conditions are those existing as of the date the grant took effect. Davis v. Weibbold, supra; Mon Central Ry. Co. v. Migeon, supra; U. S. v. Reed, supra; Brownfield v. Bier, supra.
Under the rules of the land department, where the application is for patent for a mill site only, as in this instance, there must be a mill or reduction works on such .premises. Le Neve Mill Site, 9 L. D., 460; 1 Lindley, sec., 524. A mill site claimant would certainly have a reasonable time after taking the necessary steps to legally locate his claim, within which to commence the erection of reduction works thereon. If not commenced within a reasonable time, then his rights would attach
(c) The district rules of Enterprise Mining District, passed in 1860-61, provided for the location.of mill sites without respect to the character of the land upon which they might be locaed. The territorial legislature, in 1868, declared that all rights to any portion of the public domain acquired prior to the seventh day of November, 1861, should be determined by the local law of the district in which such tract was situate, as it existed on the day such rights were acquired, or as thereafter may have existed — See. 3609 Mills Ann. Stats. When congress passed the present law relating to mining claims, all rights to such lands were recognized to the extent that they had attached or been acquired under local rules or customs not inconsistant with the laws of the United States — Sec.2319 Eev. Stats. H. S. The same act, as already noticed, provided that mill sites could only be legally located upon non-mineral lands — Sec. 2337 Eev. Stats. TJ. S.— hence, the rules of the district relating to the location of mill sites and the acts of the territorial legislature must yield to the act of congress, in so far as they relate to the location of such sites upon mineral lands, for in this particular, they were incc:>
By supplemental brief filed on the part of appellant, two further propositions are ádvaneed: (1) That the court erred in refusing to instruct the jury to the effect that the location of a mining claim must be upon the unappropriated public domain of the United States, and that plaintiffs having failed to offer any evidence on that point, they are not entitled to a verdict. (2) The court erred in refusing to instruct the jury that if it appeared from the evidence that defendant and his grantors were in the actual possession of the mill site at the time of the location ■of the Zara lode, claiming to own the same, and operating the mill by using water from the creek through a ditch across the mill site that such use and occupation would give defendant the better right to the premises in dispute.
All the acts necessary to constitute a valid location of the lode claim were put in issue by the answer. The court instructed the jury, in substance, that a location of a mining claim must be made upon unoccupied public domain, but as there was no testimony offered on the part of plaintiffs to prove that their location was upon unappropriated mineral lands, the court should have given the instruction requested by defendant, and advised the jury that in the absence of evidence on this point, the plaintiff could not recover.
The next proposition is based upon the theory that as defendant had established a vested right to the use of water flowing in the creek upon which his mill site is situate, and across which a ditch is constructed for the purpose of utilizing such water, he was entitled to hold the ground in controversy, for the reason that the grant of the water carried with it all incidentals necessary to its complete enjoyment, and therefore, the land upon which the mill was situate, it being the means through which such water is beneficially used.
In support of this proposition, sections 2339 and 2340 Rev. Stats. U. S. are relied upon, which provide, in substance, that
The theory of counsel for defendant is, that privileges and appurtenances properly belonging to the thing granted pass with it, and therefore, the right to the use of water being established sufficient land passed with that right upon which to beneficially apply the water so appropriated. It is true that the grant of a particular piece of property, in the absence of any limitation, carries with it those appurtenances necessary to the beneficial enjoyment of the property granted, which it is within the power of the grantor to convey. An appurtenance is that which belongs to something else as an adjunct or appendage of such moment that the thing to which it attaches cannot be enjoyed without its use. It is therefore limited to that which is necessary to the enjoyment of the principle thing granted. Nichols v. Luce, 24 Pick., 102. The appurtenance which could pass by virtue of the grant to a right to the-use of water would be that necessary to its utilization, so that it could be applied to the purpose for which it was appropriated. The right might become appurtenant to that in connection with which it was beneficially used, but the latter could not be appurtenant to such right. It might as well be argued that because a vested right to the use of water had been acquired for irrigation purposes, that there attached to such right as an appurtenance, land upon which to apply the water, as to say, as in this instance, there passed with the water right land in connection with which such water was utilized. The appurtenance attached to the water right of defendant is the right of way for the ditch through which the water is diverted. That is not in controversy. The laws of the United States protect this
The judgement of the district court is reversed and the cause remanded for a new trial, in harmony with the views herein expressed.
Reversed and Remanded.