Paterson v. Ogden

McFARLAND, J.— This is an action to quiet title to an alleged quartz-mining claim called the Gem Mine. Judgment was for defendants, and plaintiffs appeal from the judgment and from an order denying their motion for a new trial.

The contest is only about that part of the alleged Gem ' Mine which lies in the west half of the southwest quarter of section 3, township 2 north, range 14 east, M. D. M. On November 2, 1881, respondents’ predecessor in interest, John McNamee, made homestead entry as agricultural land at the United States land office at Stockton, California, of land which includes the west half of the southwest quarter above mentioned. On February 5, 1889, he commuted the said *45 homestead entry to cash entry No. 9753, and paid the United States government therefor; and on November 24, 1890, the government issued to him a patent for said land. After the said homestead entry, and after the land had been returned by the United States surveyor-general as agricultural land, J. N. Paterson, appellants’ predecessor in interest, located what is called the Gem Mine. At the time when McNamee made his final proofs no protest or adverse claim was made by Paterson, or any other person.

It is well settled that issuance of a United States patent for land as agricultural in character is a judgment by a tribunal having jurisdiction that such is the character of the land, which cannot afterwards be collaterally attacked.

(Gale v. Best, 78 Cal. 235 , 1

and Saunders v. La Purissima Gold Mining Co., 125 Cal. 159 , and the authorities cited in those two cases; also, Richards v. Wolfling, 98 Cal. 195 , and Wight v. Dubois, 21 Fed. 695 .) The patent, therefore, conveyed the land to McNamee, and was an adverse adjudication of any asserted right of appellants’ grantor to the land as a mining claim. In the case at bar the patent to McNamee contained the following clause: “Subject to the right of a proprietor of a vein or lode to abstract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted as provided by law.” We have not been referred to any law authorizing the insertion of this clause; and it was held in Cowell v. Lammers ( 10 Saw. 246 ), 21 Fed. 200 , that a reservation of mineral land in an agricultural patent is void. But waiving that question, the court below in the case at bar correctly construed the clause as only subjecting the patented land “to the right of the proprietor of a vein or lode, the top or apex of which lies outside of the west half of the southwest quarter of section 3 aforesaid, but which penetrates into the land on its dip or downward course, to abstract and remove his ore thereform as provided by law.” It does not give any right to enter and mine upon the surface within the patented lands. These views make it unnecessary to consider the express finding that at the time of the patent no part of the lands was “known valuable mineral land, but on the contrary all of the *46 lands embraced within the west half of the southwest quarter of said section 3 were at that time, and now are, agricultural lands.”

In answer to the claim by appellants of title under the statute of limitations by adverse possession since the date of the patent, the court finds expressly that there was no such adverse possession; and the evidence is clearly sufficient to support that finding, irrespective of the further finding that appellants had not paid any of the taxes levied on any part of said land. The above views dispose of the controlling questions in the case adversely to appellants’ contention; and there are no other points necessary to be noticed.

The judgment and order appealed from are affirmed.

Lorigan, J., and Henshaw, J., concurred.

1

12

Am.

St. Rep.

44.