5 Or. 104 | Or. | 1873
By the Court,
The claims upon the gold-bearing quartz lode in controversy, were located and taken up in the year 1865 in accordance with the provisions of the act of the Legislative Assembly of the State of Oregon, approved October 24, 1864, and the acts amendatory thereof. They were “opened up” and operated under the State laws for a number of months prior to the passage of the aet of Congress of July 26, 1866, commonly called the “Mining Act.” This act was the first direct and positive recognition on the part of the General Government of the right of the citizen to explore the public domain for the precious metals, and to denounce and operate mines when found. Anterior to the passage thereof, the General Government, in carrying out a policy redounding to the public good, tacitly consented to
That the General Government has the exclusive right to control the mines has never been seriously questioned; the principle being conceded that mines of precious metals belong to the eminent domain of the political sovereignty, as well under the laws of Spain as by the common law of England and public law of the United States.
All the reported cases in California and Nevada lead to the conclusion that the non-action of the General Government raised such a presumption of license to those engaged in mining for the precious metals as to give them a standing in the courts to assert their rights and redress their wrongs against all persons except the General Government. The right of mining for the precious metals is a franchise, and the attending circumstances raise the presumption of a general grant from the sovereign of the privilege. (Conger v. Weaver, 6 Cal. 548; Merced Mining Company v. Fremont, 7 Id. 327; Hill v. King, 8 Id. 338; McKeon v. Brisbee, 9 Id. 142; Partridge v. McKinney, 10 Id. 183; State v. Moore, 12 Id. 70; Curtis v.Sutler, 15 Id. 263; Hughes v. Devlin, 23 Id. 506; Horn v. Jones, 28 Id. 202; Pralus v. Jefferson G. and S. Mining Co., 34 Id. 559; Correa v. Frietas, 42 Id. 340.)
Accepting this as a postulate, it follows that the General Government itself could not equitably interfere with or abridge the rights of the miner. We are of opinion that “there are equitable circumstances connected with these
Whatever difference of opinion may exist as to the tenure by which mining claims were held prior to the passage of this act of Congress, it is clear that, by the act, the General ’ Government extended to all in possession of mining claims, and to all subsequently locating and denouncing mines containing the precious metals, a guarantee of protection in their occupancy so long as the mines are operated and worked. The lode in controversy was, when “claimed,” situate upon surveyed lands belonging to the General Government. Pursuant to instructions, the lands were sold as agricultural lands, and patented to Ish on August 11, 1870. The application to purchase was made subsequent to the passage of the act of 1866, and at a time when the possession of the appellant was open and notorious. Thus the adverse interest of Ish, if any interest he has, did not accrue until after the passage of the said act, and was therefore in violation of the guarantee of occupancy created by the first section thereof. But Ish obtained no interest in the mining, claims on the lode by the patent. True, by the patent he obtained a given quantity of agricultural lands, and the lode is situate upon said lands, but the known deposits of precious metals did not pass by the patent, for they are expressly reserved from sale under the pre-emption and other land acts. The only law under which patent to mining claims, either lode or placer, can be obtained, is the act of 1866, -and the amendments thereto. The fact that the claims of the appellant were not segregated and listed as mineral lands, cannot avail, the respondent. Segregation, when required, must be made by the surveyor; and to ■hold that the failure of the surveyor to fully discharge his duty could operate to defeat the rights of the appellant, would be violative of the plainest principles of justice. Moreover, the returns of the surveyor are not conclusive as to the character of the lands, for the Commissioner of the
Before leaving “this case it becomes necessary to allude to the prayer of the complaint, and to express our views in relation to the proper relief to be afforded. The prayer asks for a decree of the Circuit Court declaring the defendant a trustee for the plaintiff; that the defendant be required to execute a good and sufficient deed to the plaintiff of the land included within the boundaries of the claims, and also for a perpetual injunction inhibiting the defendant from setting up any title to-said claims.
Inasmuch as Ish never obtained title to the lode, he cannot be decreed to be trustee for the plaintiff, nor can he execute a deed conveying to the plaintiff the legal title. The proper relief to be granted is an injunction order perpetually enjoining and inhibiting Ish, and all persons claiming, or to claim by or through or under him, from asserting any title to the lode, and also from in any manner interfering with the plaintiff in entering upon and working the claims thereon.
Decree reversed.