McLaughlin v. Powell, No. 4084

No. 4084 | Cal. | Jul 1, 1875

By the Court, McKinstry, J.;

It was not suggested at the argument that lands valuable because of cinnabar or quicksilver ores, are not “mineral lands” within the meaning of the act of Congress, and we shall assume that they are.

The defendant’s objection to the patent, that it was “ irrelevant,” was properly overruled. It is not necessary to decide whether it was for the plaintiff, who relied on the patent, to prove that the land in controversy was not one of the excepted tracts, because an examination of the record shows us no motion for nonsuit was made.

The court below refused to permit the defendant to introduce evidence tending to prove that the land, the possession of which is sued for, was within the exception. If the plaintiff was not required to prove that the land was not within the exception, we are convinced that the defendant was entitled affirmatively to establish that it was within it.

The exception contained in the patent, introduced by the plaintiff, is part of the description, and is equivalent to an exception of all the subdivisions of land mentioned, which were “mineral” lands. In other words, the patent grants all of the tracts [named in it which are not mineral lands. If all are mineral lands, it may be that the exception is void; but the fact cannot be assumed, as by its terms the exception is limited to such as are mineral lands, and does not necessarily extend to all the tracts granted.

We think the defendant should have been allowed to prove that the demanded premises were mineral lands.

Judgment and order reversed, and cause remanded for a new trial.