Trinity Gold Dredging & Hydraulic Co. v. Beaudry

223 F. 739 | 9th Cir. | 1915

WOEVERTON, District Judge.

[1] As to the patented claims there is, and can he, no controversy. But it is contended by appellant, based upon the recitation in the agreement that Beaudry was “the sole owner and in possession of” the mining claims, and the stipulation that Beaudry should make “a good and sufficient deed for all said properties, free from all incumbrances,” that he contracted to convey a perfect patent or fee simple title to all of said mining claims, whether designated as patented or unpatented, or as being held by receiver’s certificate, and that, by reason of the failure of Beaudry or of the defendant to secure the patents to a portion of said claims, they had breached the contract, for which complainant was entitled to rescind. This depends upon the nature of that species of real property commonly known as mining claims.

[2] Congress has provided how a mining claim can be acquired. In general, it may be acquired by a discovery of. mineral, particularly of gold, silver, or copper, and the like, upon the public lands, and by staking the same off or marking it upon the ground, so that the boundaries may be plainly designated and readily ascertained. The right of continuous occupation may be maintained by keeping up the assessment work prescribed by law, and this without incurring the obligation towards the government of buying and paying for the land. When an individual entitled to the benefit of the statute has made location in accordance therewith, and gone into possession, he is said to he the owner and in possession of the mining claim thus located. Such a claim, when perfected, is declared to be “property in the highest sense of that term, which may be bought, sold, and conveyed, and will pass by descent.” Sullivan v. Iron Silver Mining Co., 143 U. S. 431, 434, 12 Sup. Ct. 555, 556 [36 L. Ed. 214]. The usual mode of conveyance is by deed. In its accepted significance, a mining claim relates to — -

“that portion of the public mineral lands, which the miner takes up and holds in accordance with mining laws, local and statutory, for mining purposes.” Mt. Diablo Mill & Mining Co. v. Callison et al., 17 Fed. Cas. No. 9,886; Morse v. DeAdro, 107 Cal. 622, 40 Pac. 1018.

It is so recognized by Congress. Forbes v. Gracey, 94 U. S. 762, 766, 24 L. Ed. 313. It is separable from the fee, for Congress has provided for the existence of an exclusive right to the possession, while the paramount title to the land remains in the United States. Belk v. Meagher, 104 U. S. 279, 283, 26 L. Ed. 735.

“When a location is perfected, it has the effect of a grant by the United States of the right of present and exclusive possession.” Manuel v. Wulff, 152 U. S. 505, 511, 14 Sup. Ct. 651, 653 (38 L. Ed. 532).

It has been held, further, that the words “mining ground,” used in a deed, have a technical meaning, and refer to that interest which a mere occupant of the mine has in the same. Hale & Norcross Gold and Silver Mining Co. v. Storey County et al., 1 Nev. 104. And that a purchaser of a mining claim only acquires such right or title from his vendor as the latter had at the time of purchase. Waring v. Crow, 11 Cal. 367. A mining claim is therefore possessory only in character, where held by location simply, and the performance of the annual work necessary to entitle the locator to continue in possession. It is distinct and apart from a fee-simple or absolute title to the land, and is so considered and treated by those who have occasion to deal therewith.

In entering into the agreement for the option, and in all subsequent modifications thereof, the parties manifestly dealt with all unpatented mining claims specified therein in the light of this understanding of the significance of a mining claim. The agreement not only designated these mining claims as unpatented, or held by receiver’s certificate, as the case might be, but required the second party to pay all expenses for prospecting and examining the mines and the title to' said properties. And in the modification of date December 11, 1909, the second party further agreed to pay all expenses, fees, charges, and costs in connection with the contests in the United States Land Office, and to perform on each and every and all unpatented placer mining claims the annual assessment work, labor, and improvements required by law and the rules and regulations of the Department of the Interior to be done to maintain the possessory right and title thereto. Thus it appears that they were dealing with the possessory right and title to the claims, and not with the ultimate and fee-simple title to the land upon which the claims were located, and when it was stipulated that the final conveyance should be by deed, it was intended that the conveyance should be of the mining claims, and not of the ultimate title to the land, which was known to the parties to rest in the general government.

This conclusion is all the more apparent in consideration of the fact that the unpatented claims, including those standing at receiver’s receipt, were in actual contest by the government, when the latter modification was made and entered into. And, again, the payment of the final installment of the consideration, or any installment thereof, was in no way made dependent upon the outcome of the government’s contest. If it had been considered that such outcome was at all vital to the contractual relations of the parties, it is singular, to say the least, that no stipulation should have been made touching it at the time the plaintiff obligated itself to bear the expenses of the contests to protect the claims. The form of the deed was agreed upon, and- the executed instrument was placed in escrow, and so remains for delivery when the plaintiff shall have complied with the agreement; hut what the form is, whether quitclaim or warranty, is left without mention in the pleadings or elsewhere. This is a pertinent fact, with a bearing respecting the intendment of the parties, and we may reasonably assume that, if the deed in escrow were in form a warranty of title in fee, the plaintiff would have so stated in its bill of complaint. Furthermore, the bill nowhere alleges that the unpatented claims were not located upon mineral lands belonging to the government, and that such locations were not made in accordance with the laws and rules and regulations of the Department of the Interior. But it does show that the contest of the government was based upon the contention that the claims were of no value for mineral purposes because such minerals had become exhausted. The plaintiff had been in possession for a number of years, operating the mines, and, for all that appears, it may have exhausted them of their minerals, and thus been the instrument in defeating the issuance of .the patents.

Upon the whole, we conclude that it was the intendment of the panties with respect to the unpatented claims that the possessory title alone was being dealt with, and that Beaudry’s obligation extended only to a conveyance of his possessory title in such claims, and not to a fee simple or ultimate title, and that failure to- acquire the- patents because the minerals had been exhausted does not constitute a breach of the agreement for which a rescission may be had.

Affirmed.