Wilhelm v. Silvester
Before: Beatty, McFarland
Synopsis
Mining Claims—Location of Cross Ledge. —A subsequent location of a gold-bearing quartz lode crossing the claim of a prior locator of another lode confers no right upon the subsequent locator to any portion of the cross lode, which lies within the boundaries of the first location.
Id.—Construction of Revised Statutes.—Section 2322 of the Revised Statutes of the United States, giving to locators of quartz claims “the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines, extended downward vertically,” is not overcome or repealed, or in any way rendered nugatory by section 2336 regulating the intersection of two or more claims, which applies only to intersections consistent with all the provisions of section 2322.
Id.—Construction of Conflicting Sections.-—The rule of construction that, as between conflicting sections of the same statute, the last in order of arrangement will control, is to be invoked only as a last resort, and where the conflict is so sharp and complete as to leave no possible room for giving both effect; it cannot be applied where the provisions are capable of reconciliation.
Opinion — McFarland
McFarland, J. This case was submitted to the court below upon an agreed statement, which shows the following facts: Defendant’s grantor, in December, 1879, [359]discovered a gold-bearing quartz vein, which he called the New Idea Lode, and made a valid location thereof, including surface ground fifteen hundred feet long and six hundred feet wide. The New Idea Lode runs nearly north and south through the center of said surface ground, and the land on which the location was made was at the time public, unclaimed, and unoccupied public land of the United States. It is admitted that said location was a valid one, and that since then defendant and his grantor have complied with all the laws and customs necessary to continue the validity of said location. About a year afterwards, to wit, on December 4, 1880, the plaintiffs discovered a gold-bearing lode which commenced east and outside of the said New Idea claim, and thence ran westerly across said New Idea claim at nearly right angles, and intersected said New Idea Lode, and they attempted to locate a claim fifteen hundred feet long and six hundred feet wide across the said prior location of the defendant, and did the formal acts which are required by mining laws and customs in making valid locations, and have since done the necessary work, etc., to maintain said location. The said asserted location of plaintiffs is called the South Scotia Lode and Claim, and they contend that by said subsequent attempted location they have acquired the title to, and right of possession of, the said South Scotia Lode where it lies within the surface ground of said defendants’ New Idea claim. Defendants claim that the plaintiffs, by said attempted subsequent location, acquired no right whatever to any portion of the said South Scotia Lode which lies within the boundaries of defendants’ location. The plaintiffs brought this action to enforce their right to the South Scotia Lode within the limits of the said prior location of defendants. The court found in favor of defendants, and the plaintiffs appeal from the judgment.
We think that the decision of the superior court was right, and that the judgment should be affirmed. Section 2322 of the Revised Statutes of the United States, [360]
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