Ames v. Empire Star Mines Co., Ltd.

110 P.2d 13, 17 Cal. 2d 213, 1941 Cal. LEXIS 254

• Court: California Supreme Court
• Decided: January 31, 1941
• Docket: Sac. 5246
• Status: Published

Opinions

TRAYNOR, J.

This controversy is between the owners of mining property, known as the Pennsylvania and Jefferson mines, upon whose land there is the outcropping of a gold-bearing quartz vein, and the owners of non-mineral surface ' land, known as the Ames Tract, beneath the surface of which this vein dips. The latter, as plaintiffs, brought suit for an injunction to prevent defendants, the owners of the Pennsylvania and Jefferson mines, from following and mining this vein some 500 to 1,000 feet beneath the surface of the plaintiffs’ land, and for an accounting of minerals previously extracted. Plaintiffs appeal from a judgment of the superior court in favor of defendants.

The controversy turns upon the priority of title to the subsurface of the plaintiffs’ land. Defendant mine owners claim the right to mine extralaterally beneath the plaintiffs’ land by virtue of the Mining Act of Congress of July 26, 1866 (14 Stats. at Large 251), which recognized and legalized the right of miners, in accordance with existing miners’ rules and regulations, to follow a vein which had its apex upon the surface of their land as it dipped down extralaterally beneath the surface of adjoining government land. Plaintiffs trace their title back to the Railroad Grant Act of July 25, 1866 (14 Stats. at Large 239), by which Congress provided for land grants to the California and Oregon Railroad, later the Central Pacific Railroad, but expressly excepted mineral lands from the terms of the act. Plaintiffs contend that since this act was passed one day earlier than the Mining Act, the railroad received a fee-simple title to the entire tract, surface and subsurface, so that the Mining Act passed the next day could in no way operate to confer upon the owners of adjoining mines the right to mine extra-laterally beneath the land granted to the railroad.

On June 14, 1880, the Central Pacific Railroad, pursuant to its legislative grant, secured a patent to the Ames Tract which transformed it from a “float” to an established title by the definite location of the railroad line. The patent stated that the Ames Tract was agricultural land, and plaintiffs contend that this patent conclusively determined the character of the land as non-mineral, and related the title back to the date of the Railroad Grant Act of July 25, 1866. A patent to the Pennsylvania claim was secured by the defendants’ predecessors in interest on August 18, 1880, pursuant to the Mining Act of July 26, 1866. In 1872, Congress passed another act relating to mines which provided that a mining claim, to secure extralateral rights, could equal but not exceed 1500 feet along the vein or lode. Plaintiffs assert that since the defendants’ patent was secured subsequent to the passage of this act, it is subject to the provisions thereof, and therefore that the owners of the Pennsylvania claim, which is 1540 feet along the vein or lode, are precluded from claiming any extralateral rights. No patent was ever secured to the Jefferson claim, which was apparently located at the same time as the Pennsylvania claim, abandoned, and subsequently relocated. The defendants show that they now in effect have full title to it. They also present in evidence the deed of the Ames Tract to the plaintiffs from one Ebert, the immediate predecessor in title, which contains a reservation by him, as grantor, of the right to follow the Jefferson vein beneath the surface of the Ames Tract and to mine therefrom. This right was subsequently conveyed by Ebert to the defendants.

Between the Ames Tract and the Pennsylvania and Jefferson mines there is a narrow strip of school land granted to the State of California under the Act of Congress of March 3, 1853 (10 Stats. at Large 244), and this grant also excepted mineral lands from its terms. Subsequent to its final survey in 1867, part of this land was conveyed to the defendants, the residue remaining in the hands of the state as school land. Plaintiffs contend that the state acquired a fee simple in this land, including the subsurface, so that defendants could have no extralateral rights therein and were thus effectively cut off from the Ames Tract.

Defendants have presented evidence in the form of testimony of old settlers, abstracts of title, patent records, deeds, and government reports and surveys to prove the original location of both the Pennsylvania and Jefferson claims in accordance with the miners’ rules and regulations prior to 1863; the working of these claims, including the subsurface of the Ames Tract, prior to 1866; the securing of a patent to the Pennsylvania mine in 1880, with a continuous chain of title to this mine culminating in the present defendants; and the securing of full rights by defendants as against all existing claims on the Jefferson mine.

Plaintiffs contend, however, that defendants have not properly established the original location of the Pennsylvania and Jefferson claims, nor compliance by their predecessors in title with the miners’ rules and regulations necessary to secure extralateral rights, nor what the rules and regulations were, maintaining that most of the evidence introduced by the defendants in these regards is inadmissible as hearsay.

It is clear that Congress intended by the Mining Act of July 26, 1866, to recognize and give legal validity to all existing mining claims in accordance with local rules, customs, and regulations, including extralateral rights in those lands to which such rules and regulations applied. (Lindley, Mines [3d ed.], secs. 40-46; Jennison v. Kirk, 98 U. S. 453 [25 L. Ed. 240]; St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636 [26 L. Ed. 875]; Morton v. Solambo C. M. Co., 26 Cal. 527.) According to defendants’ evidence the Pennsylvania and Jefferson mines clearly fall within the compass of the act, for prior to its passage their owners located and mined the vein running extralaterally under the Ames land. Under the act they acquired legal title to such extralateral rights provided such rights had not been previously conveyed away by the government, for the Mining Act could not, of course, operate to divest private owners of existing vested rights. (Lindley, Mines [3d ed.], sec. 611; Amador Medean Gold M. Co. v. South Spring Hill Gold M. Co., 36 Fed. 668 [13 Sawy. 523]; Davis v. Wiebbold, 139 U. S. 507 [11 Sup. Ct. 628, 35 L. Ed. 238].)

The plaintiffs contend that the government had previously conveyed away such rights. They cite the Railroad Grant Act of July 25, 1866, enacted one day earlier than the Mining Act, which conferred upon the California and Oregon Railroad, later the Central Pacific Railroad, title to land over which the railroad agreed to construct a line in the future. They argue that since in pursuance to this act the Central Pacific Railroad did locate on certain land, including the Ames Tract, and secure a patent thereto, the full title in fee simple passed to the railroad as of July 25, 1866, and they regard the legal title as having accrued from that date. (Wisconsin Central R. R. Co. v. Price County, 133 U. S. 496 [10 Sup. Ct. 341, 33 L. Ed. 687]; Deseret Salt Co. v. Tarpey, 142 U. S. 241 [12 Sup. Ct. 158, 35 L. Ed. 999]; Jatunn v. Smith, 95 Cal. 154 [30 Pac. 200].) It is their contention that the full title to the Ames Tract was conveyed away prior to the passage of the Mining Act of July 26, 1866, so that the latter could in no way confer upon the adjoining mines extralateral rights in the Ames Tract.

This argument might seem persuasive except for one vital factor. The Railroad Grant Act of July 25, 1866, upon which the plaintiffs rely for their original title, specifically excepted from its operation all mineral lands. The terms of the act make it clear that Congress did not intend to vest in the railroad title to any mineral lands of the United States. (Barden v. Northern Pacific R. R. Co., 154 U. S. 288 [14 Sup. Ct. 1030, 38 L. Ed. 992]; United States v. Sweet, 245 U. S. 563 [38 Sup. Ct. 193, 62 L. Ed. 473]; Broder v. Natoma Water & M. Co., 101 U. S. 274 [25 L. Ed. 790]; Northern Pacific R. R. Co. v. Sanders, 166 U. S. 620 [17 Sup. Ct. 671, 41 L. Ed. 1139]; McClintock v. Bryden et al., 5 Cal. 97 [63 Am. Dec. 87].) The subsurface of the Ames Tract being clearly mineral could not pass under the terms of the act but remained in the government, and the Pennsylvania and Jefferson mines received full extralateral rights to mine therein by virtue of the Mining Act of July 26, 1866. (Ibid.)

Plaintiffs cite Davis v. Weibbold, supra, and Amador Medean Gold Mining Co. v. South Spring Hill Gold Mining Co., supra, to uphold their proposition that the Railroad Grant Act of July 25, 1866, passed full title to the railroad at that time as against any subsequently accruing mining claims. These cases, however, hold only that at the time of final and definite location of agricultural or townsite land full title therein passes to the grantee as against any mineral rights not then known to exist but coming into being at a later time. In the present case there was no final and definite location of the Ames Tract by the railroad until the securing of the patent in 1880. Under the act of July 25, 1866, it had merely a “floating grant” whereby it might secure title to land on which it subsequently located. When the Ames Tract was finally and definitely located in 1880 its subsurface not only was known to be mineral but was subject to the vested extralateral rights of the adjoining mines. The holdings of the Amador-Medean and Davis cases thus clearly have no application here.

The patent which definitely located and established the railroad’s claim stated that the Ames Tract was agricultural land. Plaintiffs reason that this statement is conclusive as to the nature of the land since the time for coming in and attacking the patent has long since expired, and conclude that since the title to the land secured by the patent relates back to the date of the Railroad Grant Act, the full legal title to the Ames Tract had vested in the railroad before the conferring of extralateral rights upon the mines. The act alone, however, cannot be the source of title to any mineral lands. As Justice Field stated in Barden v. Northern Pacific R. R. Co., supra, the Railroad Grant Act of July 25, 1866, when it excepted mineral lands meant that title to all mineral lands was to remain in the United States, and no rights to such lands could in any way pass to the railroad. The patent issued to the railroad by virtue of the act could legally affect only non-mineral land, and the theory which relates the title back to the date of the act cannot extend to “all mineral lands” excepted from the act in express terms. It follows that title to such mineral lands could be acquired as against the railroad subsequent to the enactment of the Railroad Grant Act, and at any time up to the date of the patent. (Barden v. Northern Pacific R. R. Co., supra; Northern Pacific R. R. Co. v. Sanders, supra.)

Hence, the contentions advanced by plaintiffs can be resolved into the theory that the patent to the railroad is conclusive as to the agricultural character of the land. In support thereof they cite Burke v. Southern Pacific R. R. Co., 234 U. S. 669 [34 Sup. Ct. 907, 58 L. Ed. 1527]; West v. Standard Oil Co., 278 U. S. 200 [49 Sup. Ct. 138, 73 L. Ed. 265]; Davis v. Wiebbold, supra. These cases, however, concern the rights of a mining claim coming into existence after the securing of the agricultural patent. They stand for the proposition that the patent is conclusive as to the character of the land as against mining claims subsequently located. Such a patent, however, issued merely on the basis of an ex parte hearing on behalf of the claimant to the land can in no way abrogate the existing vested extralateral rights of parties who had nothing to do with the proceedings. (Lawson v. U. S. Mining Co., 207 U. S. 1, 16 [28 Sup. Ct. 15, 52 L. Ed. 65]; U. S. Mining Co. v. Lawson, 134 Fed. 769, 775, ; Clark-Montana R. Co. v. Butte etc. Co., 233 Fed. 547, 556; Butte etc. Co. v. Clark-Montana R. Co., 248 Fed. 609, 615 [160 C. C. A. 509]; Lindley, Mines [3d ed.], sec. 730, p. 1785.) It is well established that the government cannot convey away land which it no longer owns and that a patent cannot cut off previously existing vested rights in the patented property. (Reynolds v. Iron Silver Mining Co., 116 U. S. 687 [6 Sup. Ct. 601, 29 L. Ed. 774]; Noyes v. Mantle, 127 U. S. 348, 353, 354 [8 Sup. Ct. 1132, 32 L. Ed. 168]; Wright v. Roseberry, 121 U. S. 488, 518-520 [7 Sup. Ct. 985, 30 L. Ed. 1039]; Leavenworth Lawrence & Galveston R. R. Co. v. United States, 92 U. S. 733 [23 L. Ed. 634]; St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636, 641 [26 L. Ed. 875]; Davis v. Wiebbold, 139 U. S. 507, 518, 519 [11 Sup. Ct. 628, 35 L. Ed. 238].) This principle is further supported by the California cases (Van Ness v. Rooney, 160 Cal. 131 [116 Pac. 392]; Chicago Quartz M. Co. v. Oliver, 75 Cal. 194 [16 Pac. 780, 7 Am. St. Rep. 143]; Brown v. Luddy, 121 Cal. App. 494 [9 Pac. (2d) 326]) and by cases in other jurisdictions (Butte City Smokehouse Lode Cases, 6 Mont. 397, 401 [12 Pac. 858]; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378, 415 [5 Pac. 570]; Talbott v. King, 6 Mont. 76 [9 Pac. 434]; Kansas City etc. Co. v. Clay, 3 Ariz. 326 [29 Pac. 9]; Loney v. Scott, 57 Or. 378 [112 Pac. 172, 173, 32 L. R. A. (N. S.) 466]).

The patent secured by the railroad in 1880 was issued under the authority of the Railroad Grant Act of July 25, 1866, and could in no way apply to mineral land title to which had been previously vested in others. Any authority it might acquire in the passage of time as to the nature of the land, despite the limitations of the act, could operate only against subsequently located claims. (Van Ness v. Rooney, supra; Brown v. Luddy, supra.) Thus, the patent which determined that the Ames Tract was agricultural applied only to the surface of the land and to that portion of the subsurface not already subject to existing extralateral rights. (Lindley, Mines [3d ed.], sec. 613, p. 1462.) Whatever claims plaintiffs advance to the subsurface mineral land of the Ames Tract would have to date from the issuance of the patent and not from the date of the Railroad Grant Act, and by the time of the issuance of the patent the extralateral rights Of the Pennsylvania and Jefferson mines in the Ames Tract had already fully vested by virtue of the Mining Act of July 26, 1866. There can be no objection to having the title to the surface in one person and the title to the subsurface in another, a practice recognized at common law and widely followed today. (Lindley, Mines [3d ed.], sec. 812.)

For the same reasons the state did not, as plaintiffs contend, acquire a fee simple to both the surface and subsurface of the strip of school land intervening between the Ames Tract and the mining properties cutting off any extralateral rights the latter might claim in the former. When the act of March 3, 1853 (10 Stats. at Large 244), made a grant of certain sections of each township to the state for school purposes, it expressly excepted all mineral lands. The land in question was still unsurveyed and the sections of land to be granted therefore still undetermined. Following the survey in 1867, no title could pass from the United States to the state to land determined to be mineral. (West v. Standard Oil Co., 278 U. S. 200 [49 Sup. Ct. 138, 73 L. Ed. 265]; United States v. Sweet, supra; Barden v. Northern Pacific R. R. Co., supra; Northern Pacific R. R. Co. v. Sanders, supra; Ivanhoe M. Co. v. Keystone Consol. M. Co., 102 U. S. 167, 175 [26 L. Ed. 126].) The mineral subsurface then subject to the vested extralateral rights of the adjoining mines, could therefore not pass to the state under the terms of the grant.

Even if, as plaintiffs contend, the certification by the Register of the United States Land Office on March 7, 1871, that there was no claim or filing on this land other than that of the state had the effect of a patent establishing the complete title of the state, its determination could be effective only against subsequently located mining claims and not against existing vested extralateral rights therein. Saunders v. La Purisima etc. Co., 125 Cal. 159 [57 Pac. 656], cited by plaintiffs concerned not only a subsequent claim but one with respect to the surface of the land. In contrast West v. Standard Oil Co., 278 U. S. 200 [49 Sup. Ct. 138, 73 L. Ed. 265], indicates that these certificates issued by the registrars of local land offices were unauthorized and of no binding effect.

Plaintiffs argue further that the Mining Act of 1872, by restricting future mining claims asserting extralateral rights to a maximum of 1500 feet along the vein, precludes the patent to the Pennsylvania mine, secured at a later date, from encompassing extralateral rights based, upon a greater length. The mining patent cannot thus be limited by that act, however, when issued in pursuance to the earlier act of July 26, 1866, on the basis of an earlier location. (Lawson v. United States Min. Co., 207 U. S. 1 [28 Sup. Ct. 15, 52 L. Ed. 65]; Carson City etc. Min. Co. v. North Star Min. Co., 73 Fed. 597; affd. 83 Fed. 658 [28 C. C. A. 333]; Pennsylvania Consol. Min. Co. v. Grass Valley etc. Co., 117 Fed. 509.) The plaintiffs themselves declare that a patent properly issued and in conformance with the provisions of an Act of Congress relates the title back to the date of that act. Furthermore, the additional length of the claim resulted from the consolidation of three original claims, the lines of which need not be shown to establish the validity of an existing patent to the consolidated claim on collateral attack. (St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636 [26 L. Ed. 875]; Tucker v. Masser, 113 U. S. 203 [5 Sup. Ct. 420, 28 L. Ed. 979]; Peabody Gold Min. Co. v. Gold Hill Min. Co., 111 Fed. 817 [49 C. C. A. 637].)

Defendants can establish their extralateral rights in the Ames Tract as owners of the Jefferson mine as well as of the Pennsylvania mine. While the Jefferson mine was never patented and was subsequently abandoned and relocated so that it might be said to constitute a mining claim coming into existence after the issuance of the patent to the Central Pacific Railroad for the Ames Tract (Burke v. Southern Pacific R. R. Co., supra), the deed of the Ames land to the present plaintiffs from Ebert, their immediate predecessor in title, specifically reserved to Ebert, his successors and assigns, the right to follow the Jefferson vein beneath the Ames land and to mine therefrom. By mesne conveyances, defendants succeeded to the rights of Ebert under this reservation, by virtue of which they clearly have the right to follow the vein of the Jefferson mine beneath the surface of the plaintiffs’ land.

As for plaintiffs’ contention that regular performance of annual labor is necessary to maintain a good title, it is well established that title to a mining claim does not terminate upon a failure to perform annual labor. The intervention of a third party and a relocation of the ground must occur before any forfeiture can take place. (Lindley, Mines [3d ed.], sec. 651; Wilbur v. Krushnic, 280 U. S. 306 [50 Sup. Ct. 103, 74 L. Ed. 445]; Belcher etc. Co. v. Deferrari, 62 Cal. 160, 163; Emerson v. McWhirter, 133 Cal. 510 [65 Pac. 1036].) Hence there are no grounds for attacking the validity of the Pennsylvania claim on this basis. The plaintiffs are precluded from taking advantage of any forfeiture and subsequent relocation of the Jefferson claim because of the reservation of mining rights in their deed to the Ames Tract from Ebert.

It remains to consider plaintiffs’ contention that the defendants have failed to prove the original location of the mining claims, their continued existence, compliance with the miners’ rules and regulations, or what these rules and regulations were. The trial court found that the defendants’ evidence established all these things; the question here turns on whether such evidence is hearsay as plaintiffs contend. Defendants introduced properly authenticated copies of deeds and other instruments now of record in the County Recorder’s Office in Tuba County, patent records on file in the official records in the General Land Office in Washington, D. C., printed official reports of the “Mineral Resources” of the Public Domain of the West, published under authority of Congress, and other historical material. This evidence was supplemented by the oral testimony of two old settlers that both the Pennsylvania and the Jefferson mines were in operation on the present location in the early 1860’s. The case of Kent v. Snyder et al. (1866), 30 Cal. 666, which mentions in its statement of facts the location of the Jefferson claim by its original owners corroborates the existence of this claim prior to 1866.

It is a well established exception to the hearsay rule that evidence of common reputation existing previous to the controversy may be introduced to prove the existence of boundaries and facts of a public or general interest more than thirty years old. (Code Civ. Proc., sec. 1870.) The original location of a mine, particularly on government land, is within the scope of this exception (Muller v. Southern Pacific Branch Ry. Co., 83 Cal. 240 [23 Pac. 265]; Simons v. Inyo Cerro Gordo etc. Co., 48 Cal. App. 524 [192 Pac. 144]). Recitals in ancient deeds (Wilson v. Snow, 228 U. S. 217 [33 Sup. Ct. 487, 57 L. Ed. 807]; Garbarino v. Noce, 181 Cal. 125 [183 Pac. 532, 6 A. L. R. 1433]), and statements in official documents kept as part of the regular function of the office by some department of the government or authorized by the legislature are likewise recognized exceptions to the hearsay rule. (Code Civ. Proc., secs. 1920, 1924; Chesapeake & Delaware Canal Co. v. United States, 250 U. S. 123 [39 Sup. Ct. 407, 63 L. Ed. 889].)

The evidence introduced by the defendants is admissible to prove the proper location and existence of the mining claims under these exceptions to the hearsay rule. The patent records containing abstracts of title to the mining claims, recitals as to the location of these claims in several ancient deeds, verified statements as to the location and possession of the mines, a copy of the articles of incorporation of the early Pennsylvania Mining Corporation, a certified copy of the minutes of meetings of the Quartz Miners of Brown’s Valley, descriptions of the claims by metes and bounds, the Register’s final certificate of entry of the patent, and the field notes of survey and report of the United States Deputy Mineral Surveyor on the Pennsylvania mine are clearly records kept in the usual course of business by the General Land Office and thus admissible as official documents. (Culver v. Uthe, 133 U. S. 655 [10 Sup. Ct. 415, 33 L. Ed. 776]; Galt v. Galloway, 29 U. S. 332 [7 L. Ed. 876]; People v. Hagar, 52 Cal. 171.) So, too, the official report of the Mineral Resources of the Public Domain of the West being published under the direct authority of Congress as an official report to the Secretary of the Treasury falls into the category of an official document, the contents of which are admissible to show the location and working of the mines in pursuance to the miners’ rules and regulations then in existence. In addition, since these locations may be proven by evidence of general reputation previous to the controversy there is no reason why the defendants cannot introduce the History of Tuba County by Chamberlain and Wells (1879) for such a purpose. (Code Civ. Proc., sec. 1936.) Thus, the finding by the trial court that a valid location was made is a legitimate finding of fact supported by admissible evidence. (Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100 [45 Pac. 1047]; Gruwell v. Rocca, 141 Cal. 417 [74 Pac. 1028]; Harris v. Kellogg, 117 Cal. 484 [49 Pac. 708]; Colman v. Clements, 23 Cal. 245; Adams v. Crawford, 116 Cal. 495 [48 Pac. 488].)

The judgment is affirmed.

Shenk, J., Edmonds, J., Ward, J., pro tem., Peters, J., pro tem., and Gibson, C. J., concurred.