26 Colo. 56 | Colo. | 1899
delivered the opinion of the court.
This is an action instituted by the appellee, plaintiff below, against appellant, the Mt. Rosa Mining, Milling & Land
Upon the trial it was admitted that the lode claims were formally and regularly located as provided by law, except as to the discovery of mineral therein; that affidavits M lieu of labor, for the years subsequent to their location, were properly filed by the owners; that by proper conveyances the plaintiff became, and was, the owner of whatever title had been acquired by virtue of such locations.
It was further agreed that the placer owned by the defendant was located some time prior to the location of the lode claims; that the application for a patent was not made until after their location; that the defendant, through proper conveyances, was the owner of the placer.
The only questions of fact that remained in dispute were whether or not a vein, or lode was discovered and known to exist in the Handy Andy and Newman claims, within the boundaries of the Mt. Rosa placer at the time appellant applied for patent for such placer, on August 18, 1892. The court, though sitting in the exercise of its equity jurisdiction, called a jury, to which it submitted these questions. Their answers were in the affirmative, and were adopted by the court as a part of its findings; and thereupon, and from a consideration of all the evidence introduced, the court found that the facts established were substantially these:
That the grantors of plaintiff, on March 18, and April 5, 1892, entered upon the land included within the exterior boundaries of the Mt. Rosa placer, and located respectively the Handy Andy and Newman lode mining claims, upon discoveries of mineral bearing rock in place, within the boundaries of said claims; and subsequently performed all acts necessary to complete a valid location of said claims; that by duly executed and recorded deeds of conveyance plaintiff became vested with all right, title and interest in and to the same; that on November 7,1892, the Mt. Rosa Mining, Mill
On the other hand, those provisions of the statute that give the locator of a placer the right to locate and patent all other forms of mineral deposit included within the surface boundaries of his claim, expressly excepts therefrom veins of quartz or other rock in place, known to exist within its limits. United States Rev. Stats, secs. 2329, 2333. Such lodes, therefore, are not the subject of a placer grant, and a placer location does not operate to confer the title, or possession thereof, upon the placer claimant, or withdraw them from subsequent location by others. In other words, the placer location gives a qualified possession of the ground located, that is to say, it confers upon the owner the exclusive right of possession of the surface area for all purposes incident to the use and operation of the same as a placer mining claim, and all unknown lodes or veins, but does not give right of possession to known lodes or veins within its limits. The right to the possession of such lodes or veins can be acquired only by locating them as lode claims. 1 Lindley on Mines, § 413; Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 Land
It has been uniformly held that a patent for a placer claim does not convey title nor right of possession to the patentee to any lodes known to exist therein at the date of application; that if he desires to obtain such title and possession, he must comply with the provision of section 2883, and patent them as lode claims. In Reynolds v. Iron S. M. Co., supra, Justice Miller, who delivered the opinion of the court, speaking upon this subject, said:
“We are of opinion that congress meant that lodes and veins known to exist when the patent was asked for should be excluded from the grant as much as if they were described in clear terms. It was not intended to remit the question of their title to be raised by some one who had or might get a better title, but to assert that no title passed by the patent in such case from the United States. It remains in the United States at the time of the issuing of the patent, and in such case it does not pass to the patentee. . He takes his surface land and his placer mine, and such lodes or veins of mineral matter within it as were unknown, but to such as were known to exist he gets by that patent no right whatever.” •
Since a patent conveys to the placer locator no other or different rights, than those acquired under the location, it inevitably follows from the doctrine thus announced, that he has no possession, and acquires no right to any lodes known to exist within his claim, by virtue of his placer appropriation.
In Aurora Lode v. Bulger Hill & Nugget Gulch Placer, supra, Secretary Smith, in discussing the rights acquired by the placer locator, said:
“ Such a location, in and of itself, does not establish any right in the claimant under it to the superficial area within its boundaries except as a placer claim or mine. Of its own force, it cannot operate to give title to or property rights in any veins or lodes within its boundaries. True, a placer mining claim becomes property as such by discovery and location, the same as a vein or lode claim, but it cannot and*61 does not of itself in any sense give title to or property rights in veins or lodes; nor can it, in my judgment, operate to preclude a subsequent lawful discovery and location of veins or lodes within its boundaries.”
And Mr. Lindley, in his admirable wort on mines, after an elaborate and thorough discussion of the question, deduces the following conclusions: “ (1) A perfected placer location does not confer the right to the possession of veins, or lodes, Avhich may be found to exist within the placer limits at any time prior to filing an application for a placer patent; (2) such lodes may be appropriated (a) by the placer claimant, or (6) by others, provided the appropriation is effected by peaceable methods and in good faith.”
While we recognize to its full extent the rule that precludes the initiation of a right through a trespass upon the lawful possession of another, we think, under the established facts in this case, appellant is not in a position to invoke its protection. The lodes in question Avere known to exist prior to the application for patent; and appellant, not having taken the necessary steps to obtain possession of them, they were open to location by others at the time they were located by the grantors of appellee. In making the locations, no right of appellant was invaded, and their validity, therefore, is in no way affected by the fact that they were made within the surface boundaries of a prior placer location.
In support of the second proposition it is urged by counsel for appellant, that the mere possessory title to mining claims is not sufficient to support the action provided for in section 255 of the civil code. This section enacts that:.
“ An action may be brought by any person in possession, by himself or his tenant, of real property, against any person Avho claims an estate therein adverse to him, for the purpose of determining such adverse claim, estate or interest.”
The estate acquired by the locator of a mining claim is an interest in real property, and although the paramount title remains in the government, the courts have universally recognized such interest as a freehold; and in all controversies
As was said in Hughes v. Devlin, supra, “Although the ultimate title in fee in our public mineral lands is vested in the United States, yet as between individuals, all transactions and all rights, interests, and estates in the mines are treated as being an estate in fee, and as a distinct and vested right of property in the claimant or claimants thereof, founded upon their possession or appropriation of the land containing the mine. They are treated, as between themselves and all persons but the United States, as the owners of the land and the mines therein.”
Such being the character of the locator’s title, it is obvious that the foregoing provisions of the code are as applicable to mining claims as to any other real property; and his right to avail himself of the remedy therein provided is too clear to admit of dispute. Dahl v. Raunheim, 132 U. S. 260; Perego v. Dodge, 163 U. S. 160; Noyes v. Mantle, 127 U. S. 348; Gillis v. Downey, 29 Cir. Ct. App. 286.
Another and more serious question is presented, and that is as to the amount of surface ground appellee is entitled to if any, under and by virtue of his lode locations. The court below awarded him the full amount claimed, to wit, 300 by 1,500 feet in each of the claims. It is insisted by counsel for appellant that he is entitled to only the mineral lodes, and not to any of the surface of the placer ground.
This precise question has never, to our knowledge, been discussed or determined by a court of final resort. It has, however, been passed upon by the land department, but its rulings are not uniform. In the case of the Shonbar Lode, 1 L. D. Int. Dept. 551; s. c. 3 L. D. Int. Dept. 388, Secretary Teller ruled that the lode claimant having failed to adverse the placer application for patent, he was restricted to his lode and twenty-five feet of surface on each side thereof.
The question was also involved upon the trial of the case of Campbell v. Iron S. M. Co. in the United States circuit court for this district, Judge Riner presiding. He entertained the view, and instructed the jury to the effect that a lode claimant, in case of a recovery, was entitled to no more than the vein or lode and fifty feet of ground, extending 1,500 feet in length.
We think this instruction correctly defines the amount of surface ground to which a lode located within the boundaries of a placer is entitled, under the provisions of section 2333. As was said in Reynolds v. Iron S. M. Co., supra, “this section made provision for three distinct classes of cases: (1) when the applicant for a placer patent is at the time in possession of a vein or lode included within the boundaries of his placer claim, he shall state that fact; and on payment
We think it is'manifest that the lode or vein referred to in the first and third provisions is the same thing; and that whatever a placer claimant would acquire by availing himself of the privilege accorded him by the first provision of the section, is reserved by virtue of the third provision; in other words, that the same extent of surface ground that is incident to such lode or vein, if located and' patented by the placer claimant, is reserved from the placer patent in case of his failure to claim and patent the same. If he elects to patent the lode he is required to take twenty-five feet on each side of the center of the vein and pay therefor at the rate of $5.00 per acre. This is a privilege accorded to him, which he may avail himself of or not, as he sees fit. If he elects to waive this privilege, he may do so in one of -two ways: either by expressly excepting the lode from his placer location and application for patent, or remain silent in regard to it. If silent, then by implication he declares that he makes no claim to such lode; and by such silence is bound to the same extent, and in the same manner, but no further than he would have been by an express declaration. By electing to make no claim to a known lode, or express declaration in regard to it, he must be understood as claiming, for placer purposes, the greatest possible area within the boundaries of his placer claim, and should be held to have relinquished only that which he might
An act on a particular subject must be construed as a whole. Section 2320 refers to the location of lodes not conflicting with any other class of mineral locations, while by section 2333 special conditions with reference to conflicts between the two classes of mineral claims are specially provided for ; and to that extent construing the act as a whole is a limitation or qualification of the provisions of section 2320, which relates, as stated, to the width of lode claims generally, and regulates the width of lode claims when made upon lodes within the boundaries of a placer, whether such lodes are located by the owner of the placer, or strangers to that title. By this construction, full force and effect is given to both of these sections, and the purpose of the statute is carried out. The government receives for its mineral lands the price fixed for lodes and placers respectively, and the superior right to the surface area of the placer claimant, acquired by his prior location or patent, is protected. It is the conclusion of a majority of the court that the limitation of the width of a lode claim in section 2333 is not only applicable to the placer
Chief Justice Campbell declines to express an opinion upon this question because, in his judgment, the stipulation entered into by counsel eliminates it from the case.
It follows that the court below erred in adjudging to appellee surface ground in excess of twenty-five feet on each side of the lodes in question. For this reason the judgment is reversed, and the case remanded, with directions to enter judgment in accordance with the views we have expressed.
Reversed.
