76 P. 901 | Cal. | 1904
Plaintiff upon the tenth day of April, 1899, made a mining location called the Los Angeles Quartz Mine, which location included within its boundaries a portion of the mining ground claimed by defendant. Upon trial of their conflicting rights judgment passed for defendant, and plaintiff appeals.
It appears that on the fifteenth day of April, 1882, a patent was issued by the United States government to the California Iron Mining and Smelting Company, for the Pitt River Iron Ore Mine. By mesne conveyance the defendant became the grantee of the patentee's interest in the mining property under *95 the patent. On the third day of October, 1898, the commissioner of the land department of the United States rendered his decision in relation to a certain mining application, and caused this respondent to be notified of an error in the description of its mining patent. This error consisted in an erroneous length given to the line connecting the Pitt mine to a government corner, so that if this connecting-line alone were considered it would place the claim about a quarter of a mile from its actual location upon the ground. Defendant took immediate steps to have this error corrected according to the instructions contained in the commissioner's letter. A new official survey of the mine was had and a new application for a correct patent was filed in the United States land office, together with a conditional conveyance of the mine to the United States, dated the thirteenth day of February, 1900, the condition of the conveyance being the issuance to the defendant herein of a new and correct patent for the Pitt River Iron Ore Mine. It was long after the issuance of the patent, and during the pendency of these proceedings to correct the error contained in it, that appellant filed his adverse mining location and commenced this suit.
Notwithstanding the erroneous length given to the tying-line in the patent, the patent itself contains a sufficient description of the Pitt River Iron Ore Mine so that the property intended to be conveyed can be definitely ascertained from the remaining description given in the patent, which is absolutely correct. It appears that the new survey, which followed the old, and which was made for the purpose of correcting this erroneous description, is identical in all respects with the old survey, saving in the one matter of the length of the tying-line. All the courses and distances of the boundary-lines, their lengths and direction, the locations of the corner monuments, the bearing trees, are found in the patent precisely as in the field-notes of the survey, and they agree in every detail. There are therefore references in the patent description to artificial monuments and to natural monuments to which the Pitt River Iron Ore Mine was tied, and by means of which its exact locus on ground can be positively determined. In making the new survey all but one of the old corners was found and identified; the configuration of the *96 ground is the same, and the limestone point or peak is a prominent natural object to which the claim is tied in both instances. Moreover, it was admitted upon the trial that both surveys were the same upon the ground, and there is thus conclusively established the fact that the property surveyed under the old survey and described in the patent is the same property surveyed under the new survey and now claimed by respondent.
The erroneous connecting-line which appellant insists should exclusively control in the location of this land, and which, as will hereinafter be shown, is in no wise controlling, was itself not even a surveyed line, and is not entitled, therefore, to the consideration which a surveyed line should carry. The line is, according to the field-notes, a "calculated" line, and was computed after running nearly five miles of traverse over rough country and after crossing two rivers by triangulation while running the traverse. By subdivision 2 of section
It thus appearing that there was a sufficient description within the patent itself, by which the situs of the patented land could be accurately established, the land covered by the patent was not open to location at the time when appellant entered upon it. It becomes unnecessary, therefore, to consider further matters established, as that appellant's entry was with full knowledge of defendant's possession and claim of ownership. Nor can any weight be attached to appellant's objection that no proof was made showing that the Pitt River Iron Ore Mine Co. was located or its boundaries marked upon the ground, or that location notice was recorded, or that any discovery of mineral had ever been made within the limits of the claim, etc. All of these matters are completely disposed of and conclusively eliminated by the issuance of the patent itself. As is said inSt. Louis Smelting Co. v. Kemp,
As to the other findings of the court objected to, none of them affect, or could affect, appellant's rights, since under the finding of title in defendant already discussed plaintiff's location was absolutely void. *100
The judgment and order appealed from are therefore affirmed.
McFarland, J., and Lorigan, J., concurred.