61 Cal. 356 | Cal. | 1882
The statement on motion for a new trial in the above case presents the following state of facts: The plaintiffs on the trial introduced evidence showing that on the seventh day of December, 1876, the mining ground described in the complaint was a portion of the mineral land of the United States; that
Plaintiffs brought this action to quiet their title to the mining ground, and were nonsuited. Afterwards the Court below set aside the nonsuit and granted plaintiffs a new trial. From the order granting a new trial defendant prosecutes this appeal.
Defendant relies upon Section 2319 Revised Statutes, of the United States, in support of the appeal. That section reads as follows:
*358 “ All valuable mineral deposits in land belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase by citizens of the United States and those who have declared their intention to become such under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.”
The defendant’s argument is, that Wing Hung and his co-grantees were not citizens of the United States and had never declared, their intention to become such, and therefore they were excluded from the operation of the Act of Congress, by its express terms. But the answer to this argument is, that they did not take any steps to acquire the title under the Act of Congress; but the title was acquired by persons under whom they claim (Rose and Rehberg), who were citizens of the United States, and in all respects qualified to occupy and purchase under Section 2319, referred to above. They located the claim in December, 1876, in accordance with the local rules and customs of miners in that vicinity, and also according to, and having fully complied with, the provisions of the Acts of Congress relating to such locations. They also went into the possession and occupancy of the claim, and continued to occupy and possess the same until they sold to Wing Hung and others. The title, therefore, passed out of the United States, and was vested in Rose and Rehberg, who being the owners thereof, had a right to make any sale or disposition of the property not inconsistent with the laws of this State. By Article 1, Section 17, of the Constitution in force at that time, it was provided that “ foreigners who are, or who may hereafter become, bona fide residents of this State, shall enjoy the same rights in respect to the possession, enjoyment and inheritance of property as native-born citizens.”
It is admitted in tbe record in the case, that the grantors • of plaintiffs, although Chinese, were all of them bona fide residents of the State of California. It is very clear, therefore, that Wing Hung and his co-grantees were capable of taking by purchase the mining ground in controversy, and their grantors having acquired the title of the United States
But we might concede that Wing Hung and his associates had no right to take and hold the fee by purchase, and the result, so far as the present decision is concerned, would be the same. They could take and hold until “ office found.” “ Though an alien may purchase land, or take it by demise, yet he is exposed to the danger of being divested of the fee, and of having his lands forfeited to the State, upon an inquest of office found. His title will be good against every person but the State. * * * If the alien should undertake to sell to a citizen, yet the prerogative right of forfeiture is not barred by the alienation, and it must be taken to be subject to the right of the Government to seize the land. His conveyance is good as against himself, and he may, by a fine, bar persons in reversion and remainder, but the title is still voidable by the sovereign upon office found.” (2 Kent’s Com.- 61, 62.)
It is not pretended there has been an “ inquest of office,” or that any steps were ever taken on behalf of the Government to seize the land, or in any manner to test the right of Wing Hung and his co-grantees to hold the same; but the case simply shows that after there was a divestiture of the title of the United States by a valid location under the rules and customs of the vicinity by a locator, in accordance with the mining laws, and after an adverse possession and occupancy, long continued and still existing at the time, the defendant’s grantors attempted to acquire the title to the mining ground in controversy by a second location. We are of the opinion that they acquired no right or title by such location, and that the new trial was properly granted.
Order affirmed.
Sharpstein and Thornton, JJ., concurred.
