Smith v. Cooley

McKee, J. Plaintiff in the action out of which this case arises being the owner in fee'of a tract of land in El Dorado County known and described as the northwest corner of the northeast quarter of section 9, in township 10 north, range 9 east, Mount Diablo base and meridian, on the 26th of July, 1875, granted to the defendant an interest therein, by the following description, namely: “An undivided third interest in a certain piece of mining ground situated in White Oak Township, county of El Dorado, State of California, on the northwest quarter of the northeast quarter of section 9, township 10 north, [47]range 9 east, Mount Diablo base and meridian [said “mining ground” being also more particularly described by metes and bounds], together with the water rights, reservoirs, and tail race belonging to the same; and it is expressly conditioned that this instrument conveys no other rights, except a mining right, on the premises above to the said party of the second part, his heirs or assigns.”

After the execution and delivery of the grant, plaintiff and defendant, for about four years, worked the “ground” in partnership on the basis of two thirds to the plaintiff and one third to the defendant, but after the expiration of the four years plaintiff gave notice to the defendant that he would not be responsible for any expenses incurred in working the ground, and the defendant has since continued to work it for himself. Under these circumstances plaintiff commenced the action in hand for a partition.

Partition may be had of real property, held and occupied by several persons as coparceners, joint tenants, or tenants in common, according to their respective rights and interest in it, whether the estate which they own therein be an estate of inheritance, or for life or lives, or for years. (§ 752, Code Civ. Proc.) But in the land itself, described in the deed under which defendant derives his right, the defendant was not a coparcener, joint tenant, or tenant in common. The deed only vested in him a particular estate, i. e., the right of taking from the land any minerals or ores in place in it, to the extent of the interest in them granted to him.

A “mining right” upon a specific piece of ground is a right to enter upon and occupy the ground, for the purpose of working it, either by underground excavations or open workings, to obtain from it the minerals or ores which may be deposited therein. By implication the grant of such a right carries with it whatever is incident to it and necessary to its beneficial enjoyment. (Clark v. Duval, 15 Cal. 86; Cave v. Crafts, 53 Cal. 135.) In addition to that implication the grant, in this instance, conveyed an interest “ in the water rights, reservoirs, and tail race ” on the mining ground. But it did not convey the exclusive dominion of any portion of the ground so as to make the grantee a joint tenant or tenant in common with the grantor.