Callahan v. James

SHAW, J.—

This is an action by the plaintiff for a decree determining the title to a certain mining claim situated in the town of Groveland, and known as the Rhode Island Mining Claim. Judgment in the court below was given for the plaintiff; the defendants’ motion for a new trial was denied, and from the judgment and order the defendants appeal.

The plaintiff claims title to the mining claim under a mining location originally made in the year 1854, by one Reid, and relocated by Reid and one Austin January 1, 1876. The plaintiff obtained a conveyance of the mine from Reid and the successor of Austin in 1896. The defendant James deraigns his title from the patent issued for the townsite of Grove-

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land under the federal laws (U. S. Rev. Stats., sees. 2387, et seq.), and a deed from the patentee of the townsite to Laurence Murray, dated September 5, 1879, purporting to convey to Murray lot 8 of block 6, as designated on the official map of the townsite, of which lot the mining claim is a part. The date of the original entry of the townsite was October 3, 1877, and the patent was issued February 10, 1886. It appears from the findings that the mining location was duly made on January 1, 1876, by Reid and Austin, and that their title became vested in the plaintiff March 26, 1896.

1. The appellants claim that the decision is against law, because there is no finding that at the time of the entry of the townsite in 1877, or at any time thereafter, the land embraced in the mining claim was known to contain minerals of such extent and value as to justify expenditure for the purpose of extracting them, citing in support of the proposition that this is necessary

Richards

v.

Dower,

81 Cal. 44;

Smith

v.

Hill,

89 Cal. 122; Lindley on Mines, sec. 176; and a number of decisions of the United States supreme court. These decisions, however, are not applicable to the case as shown by the findings. At the time of the entry of the townsite, in 1877, section 2329 of the U. S. Revised Statutes (U. S. Comp. Stats. 1901, p. 1549) relative to townsite entries provided, that “no title shall be acquired, under the foregoing provisions of this chapter, to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws.” It will he observed that this section prevents the townsite entry from carrying title to two classes of mining claims. The first class need not be characterized by possession in any person. It is sufficient if in fact the property is a known mine of gold, silver, cinnabar, or copper. It is to this class of mining claims that the decisions above cited refer. They are in effect that it is not sufficient that there he in fact a mine of gold, silver, cinnabar, or copper, unless at the time of the townsite entry it is known to be such. The other class of mining claims referred to in the section consists of any valid mining claim or possession held under existing laws. The claim under consideration in this case belongs to this class. The court finds that Reid took exclusive possession of the mining claim in the year 1854, and discovered valuable