101 Cal. 358 | Cal. | 1894
Lead Opinion
This case was submitted to the court below upon an agreed statement, which shows the following facts: Defendant’s grantor, in December, 1879,
We think that the decision of the superior court was right, and that the judgment should be affirmed. Section 2322 of the Revised Statutes of the United States,
It is contended, however, by appellants that this positive language of said section 2322 is overcome, or repealed, or in some way rendered nugatory by the provisions of section 2336 of said Revised Statutes. That section is 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 purposes 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.” It will be observed, however, that this latter section does not undertake to give to any person Qthe right to make a valid location of a
Moreover, there is strong reason for thinking that such an intersection was the very one in the mind of Congress when it passed section 2336; for in that section, and speaking of the same subject, it says that: “where two or more veins unite, the oldest or prior location shall take the vein below the point of union,” and if the other kind of intersection was in the minds of the legislators at that time, they would not have used the word “below”; for “below” would not apply at all to a union on the strike of two veins, such as the appellants’ rights depend on in the case at bar. These views make the two sections under review entirely harmonious ; and the fundamental rule of construction is to reconcile apparently contradictory provisions of the statute where it can be reasonably done. And, if we look at the apparent intention of Congress, there would seem to be no possible reason for giving to the first locator all the veins within his surface lines, except those that happen to run in a particular way. Under appellants’ contention, if the course of a vein was such that it intersected with the original vein of the prior locator a few feet before it reached the end line, it would
We are aware that the supreme court of Colorado, in Branagan v. Delaney, 8 Col. 408, reached a different conclusion on this question; but, while we have the highest respect for the decisions of that court, we are not able to concur with its conclusion on the point under discussion. The opinion in that case went upon the theory that the two sections of the Revised Statutes above referred to are utterly inconsistent, and the court say: “We see no way out of the dilemma, except by the application of the arbitrary rule of construction suggested by the court in the case of Hall v. Equator etc. Co., reported in Morrison’s Mining Rights, 3d ed., page 282, that, as between conflicting statutes, the latest in date will prevail, and, as between conflicting sections of the same statute, the last in the order of arrangement
(After the foregoing opinion had been written, our attention was called to the case of Waterville Mining Co. v. Leach, decided by the supreme court of Arizona, 33 Pac. Rep. 418, in which that court reached the same conclusion as that heretofore stated. In the opinion of the court, delivered by Kibbey, J., there is an elaborate discussion of the subject, leading to the result that section 2336 does not conflict with nor does it in any way repeal any part of section 2322; that the former section had reference to mining rights existing prior to its passage; and that “Congress had in mind, at the time of the enactment of the law of 1872, that, as mining rights then stood, A’s lode might legally cross B’s lode on the strike.”)
The judgment is affirmed.
Harrison, J., Fitzgerald, J., Garoutte, J., and Paterson, J., concurred.
De Haven, J., dissented.
Concurrence Opinion
(concurring.)—I concur in the judgment and in the conclusion of the court as to the proper construction of sections 2322 and 2336 of the Revised Statutes. I think, however, that too much is conceded
The sum of the argument in favor of the construction thus imposed upon the statute—which is in effect a nullification of the express terms of section 2322, and a relegation of mining rights to the same condition of uncertainty and confusion in which they were before the act of Congress was passed—has been that section 2336 must be allowed some operation and effect; that its -only possible application is to veins which cross on their strike, because parallel veins never do intersect on their dip, and that if it is to be applied to veins which cross on their strike, the necessary inference is that Congress intended that the discoverer of a cross vein should have the right to lay his surface location across the surface location of the intersected vein. But in truth this conclusion is a perfect non sequitur. There is no proposition in geometry plainer or more easily demonstrable than this: that surface locations on cross veins may be so made as not to conflict, while at the same time the portions of the veins included in or covered by the respective locations will intersect in depth—in some cases within the surface lines of one or the other location extended downward vertically, and in other cases altogether without the surface lines of both locations. This results from the fact that veins generally, if not universally, descend into the earth, not vertically, but at a greater or less inclination or dip. This being so, and the law allowing the locator to follow his vein on its dip outside
Suppose, by way of illustration, a north and south vein dipping to the west, intersected by an east and west vein dipping to the north at the same angle. Assuming these veins to be perfectly regular in strike and dip, their intersection will be along a diagonal line descending into the earth from the point of intersection at the croppings (which for brevity I will call point A), and extending in its horizontal projection to the northwest. Now, suppose a location on the north and south vein, commencing three hundred feet or more north of point A, and extending to the north along the vein. It is evident that a full surface claim, fifteen hundred feet in length, and extending three hundred feet on each side of the croppings, may be located on the east and west vein without at all conflicting with the supposed location on the north and south vein, and it is equally evident that such location may be made to include point A, or altogether east of it or west of it. If made wholly to the east it will not include any part of the intersection at the surface or below the surface. If made to extend but a short distance west of point A it will include some of the intersection, but the diagonal of the line of intersection will carry it beyond the vertical plane of the west end line before the dip of the vein carries it beyond the south line of the other location. If made somewhat further to the west, the intersection will fall more or less within the surface lines of the north and south location, and will make a case for the application of section 2336. If made still further to the west, the line of intersection of the portions of the re
Of course, the hypothesis of two perfectly regular veins dipping at the same angle and crossing at right angles is one which will never be realized. But the very fact that veins, instead of being regular and uniform in strike and dip, are in every way irregular and eccentric, increases the possibility of intersections of cross veins under ground, outside of the lines of surface locations, and so far from diminishing the force of the illustration used, only proves how infinitely it might be varied.
If these views are correct, it follows that the only reason ever suggested for construing section 2322 against the plain import of its terms is based upon a geometrical absurdity; and the practice of miners in making, and of the land office in permitting, cross locations on the surface, is without any justification in the mining law.