Yew v. Choate

By the Court, Sawyer, J. It was held in Ah See v. Crippen, 19 Cal. 497, and we think correctly, that the sixty-fourth section of the Revenue Act of 1860 does not refer to mines contained in lands which are the private property of individuals, but only to mines in the public lands of the State or United States. The provisions of the Revenue Act of 1861 are substantially the same upon this point as those of the Act of 1860, and must receive the same construction. If, then, the fee of the land upon which the plaintiff was mining was in his landlord, that decision is decisive of this case, and the plaintiff is not liable to pay the license sought to be collected.

The plaintiff is mining upon lands patented to his lessors as school lands, under the Act of April 16, 1859. Section eight qorovides that “ nothing in this Act shall be construed so as to authorize or confirm the location or purchase of any of the mineral, swamp, or overflowed lands in this State as school lands.” (Laws 1859, p. 340.) The question is, do the allegations of the complaint show a title in fee in the plaintiff’s lessors"? It appears from the averments of the complaint, that under a lease from the patentees, and with their permission, the plaintiff is working several men, and taking out gold [567]to the value of from twenty-five to thirty dollars per day. The defendant, a collector of the foreign miners’ license tax, insists that it appears from the foregoing allegations of the complaint that the lands referred to are mineral lands, and that the patent is therefore void. All lands containing gold are not necessarily mineral lands within the meaning of the section under consideration. Probably there is very little land within the basin formed by the Sierra Nevada and Contra Costa ranges of mountains that does not contain more or less of the precious metals. It may turn out that much of the land now regarded as suitable only for pasturage and agricultural purposes contains sufficient quantities of gold to justify the expense of extracting it by mining; yet, in the present state of our knowledge upon the subject, it could not be called mineral lands. It is not easy in all cases to determine whether any given piece of land should be classed as mineral lands or otherwise. The question may depend upon many circumstances: such as whether it is located in those regions generally recognized as mineral lands, or in a locality ordinarily regarded as agricultural in its character. Lands may contain the precious metals, but not in sufficient quantities to justify working them as mines, or make the locality generally valuable for mining purposes, while they are well adapted to agricultural or grazing pursuits; or they may be but poorly adapted to agricultural purposes, but rich in minerals; and there may be every gradation between the two extremes. There is, however, no certain, well defined, obvious boundary between the mineral lands and those that cannot be classed in that category. Perhaps the true criterion would be to consider whether upon the whole the lands appear to be better adapted to mining or other purposes. However that may be, in order to determine the question, it would, at all events, be necessary to know the condition and circumstances of the land itself, and of the immediate locality in which it is situated. It is the duty of the officers of the Government having the matter in charge, before making a grant, to ascertain these facts, and to determine the problem whether the lands are