Brown v. '49 & '56 Quartz Mining Co.

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

The question in this case, involving plaintiffs’ title to recover, has been discussed by the counsel for the appellants with a great deal of scientific learning and with much ingenuity. The facts are, that the defendants, a corporation, in November, 1856, located and recorded the claims, covering a part of a quartz lode now in their possession. The defendants made some permanent and expensive improvements— a mill, tunnels, roads, etc. Subsequently to this, the plaintiffs took up four surface or hill-side claims, by which they claimed the whole of the [159]hill-side, from the ravine to the quartz lode held by defendants. The plaintiffs commenced working their claims near the ravine, and worked up hill, until they approached within twenty or twenty-five feet of the solid ledge, worked by the defendants. They were stopped by defendants, who claimed the ownership of the ground above the point thus worked by plaintiffs. At the point approached by plaintiffs, the ledge had cropped above the surface or bed rock, and had fallen down the hill—but along the ledge the fallen masses remained in contact with the solid ledge. As the distance from the solid ledge increased, the blocks of detached rock became smaller, and the interstices between the blocks became greater, and the quartz itself more decomposed. The whole of this outcropping was covered with red earth, which also filled the interstices between the detached masses of rock. The quartz thus fallen, and the earth between the blocks of quartz, were filled with gold; but the whole of it was what is called quartz gold; and is distinguished from washed gold by having a rough, scraggly appearance. These masses of quartz were covered with earth to the depth of about three feet, in which there was little or no gold; and this earth was stripped off and thrown down the hill-side. The defendants worked a narrow strip of ground, fifteen or twenty feet wide, and twenty or thirty feet long, on which these fallen masses of quartz were found. Some of the witnesses state, that they trailed the ledge distinctly as far as the defendants worked. For the gold taken by the defendants from the premises in dispute, this suit is brought.

There is no question as to the priority of the defendants’ location. The only question is, whether by their location and claim the defendants became entitled to this loose quartz rock and decomposed material, which was once, if not now, a part of the quartz ledge. The view taken of this matter by the learned Judge below, strikes us as sensible and just. In his findings, he says: “ It certainly would be a very great hardship to the quartz miner—he having priority of claim—to adopt the reasoning of plaintiffs’ counsel, and confine the quartz miner to the solid quartz actually embedded in the solid bed rock. It is shown by the evidence, this, in many cases, is but a small proportion of the real value of the ledge. Where the ledge comes to the surface, there is always more or less detached quartz rock, and always more or less decomposed quartz. In most cases, this portion is more highly prized than the solid ledge itself; for this reason, that it requires far less labor and expense to prepare it for working than the same quantity of the