96 Cal. 33 | Cal. | 1892
This action was brought to recover the value of certain gold alleged to have been taken by respondents from the mining claim of appellant. The facts, briefly stated, are as follows: For many years prior to January 17, 1886, respondent Gillis was in the peaceable possession of, and claiming to be the owner of, a certain mining claim known as the Carrington claim. "Upon said date he sold and transferred to appellant, by bargain and sale deed, a portion of the Carrington claim designated as the Pine Tree mine. At the date of this transfer the co-respondent Rice was working upon a portion of the Carrington claim not included in the transfer to Stinchfield, known as the Rice vein, giving Gillis a certain percentage of ¿11 gold taken out for the
As between the owners of separate and intersecting veins, the ownership of the mineral contained within the space of intersection is determined according to the provisions of section 2336 of the Revised Statutes of the United States, which reads as follows: “Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purpose of the convenient working of the mine; and where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.”
From an examination of the record, it is apparent that
The deed of Gillis passed to the plaintiff the Pine Tree mine to the same extent and to the same effect that a patent from the United States would have passed it; that is, as against the grantor, he was vested with the, title to this mining claim, including every vein and every j part of every vein throughout its depth which had its apex within the surface boundaries of the claim, subject to the provisions of the Revised Statutes of the United States heretofore quoted.
It is insisted that the West vein is not a vien, hut a crossing. The court finds this “ crossing ” to be a “single small vein dipping to the west, and having-its apex in the Pine Tree mine.” If this crossing, as it is termed, is a vein, and the court has so found it to be, its size is immaterial when considered with reference to the legal rights attached to the ownership. A “ single small vein ” is weighed and measured by the same law, and entitled to the same consideration before the court, as the mother lode, and very often is far more valuable in the eyes of its owner. In the case of Jupiter Mining Co. v. Bodie Con. Mining Co., 11 Fed. Rep. 675, Circuit Judge Sawyer, said: “A vein or lode authorized to be located is a seam or fissure in the earth’s crust filled with quartz, or with some other kind of rock in place, carrying gold, silver, or other valuable mineral deposits named in the statute.
By reason of the views of the court hereinbefore expressed, the finding that neither Gillis nor his grantor made a location of the Carrington claim prior to the deed to Stinchfield is immaterial, and if material, the evidence disclosed by the record is too weak to support it. The facts as to the erection of a barricade or bulkhead by the parties between the works of the respective mines are immaterial to the questions here involved, conceding them to be as claimed by respondent. (Stockton v. Garfrias, 12 Cal. 315.)
Let the judgment and order be reversed, and the cause remanded for a new trial.
Harrison, J., and Paterson, J., concurred.
Hearing in Bank denied.