Clary v. Hazlitt

Searls, C. Action to recover damages for trespass upon mining claims, and for injunction against defendants to restrain them from similar trespasses.

Plaintiff bases his action upon a patent issued to him for the locus in quo, as a placer mining claim under the provisions of chapter vi. of title 22 of the Revised Statutes of the United States.

Plaintiff’s claim is known as the Ellis Placer Mining Claim, and within the exterior limits thereof there is a regularly defined lode of gold-bearing quartz rock in place, which was known to exist at the time of plaintiff’s application for patent; and his application did not include an application for the lode.

The patent to plaintiff contained the usual reservation in such cases, viz.: “That should any vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, be claimed or known to exist within the above-described premises at the date hereof, the same is expressly excepted and excluded from these presents.”

The land upon which the alleged trespasses were committed consisted of this quartz lode, which was located by the grantor of defendants in 1879 under the name of the California Queen Mine, and work by said defendants upon the quartz lode as situated and located constitutes the supposed trespasses complained of.

Defendants had judgment and plaintiff prosecutes this appeal.

The question in the case upon which the decision must turn is, whether by his patent to the Ellis Placer Mining Claim the plaintiff acquired title to said quartz lode or vein?

Section 2333 of the Revised Statutes of the United States provides as follows: “Where a vein or lode such as is described in section 2320 is known to exist within the boundaries of a placer claim, an application for a patent of such placer claim, which does not include an application for the vein or lode claim, shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof”

[288]The preceding portion of the same section provides that the applicant for a patent being in possession of a placer claim and also of a vein or lode claim, included within the boundaries thereof, may upon application therefor and upon paying, five dollars per acre for the lode claim therein, obtain patent for the whole. '