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50 Cal. 64

McLaughlin v. Powell

California Supreme Court

Decided July 1, 1875

California Supreme Court · decided 1875-07-01

<p>Appeal from the District Court, Fifteenth Judicial District, County of Contra Costa.</p> <p>Ejectment to recover the northeast quarter of section 29, township number one north, of range number one east, Mount Diablo base and meridian.</p> <p>The defendant, in his answer, set up that the plaintiff claimed the land under the grant made to the Central Pacific Railroad Company of California, and that the land was mineral land, and was, by the express terms of the grant, excepted from the operation of the same. On the trial the plaintiff offered in evidence a patent from the United States to the Western Pacific Railroad Company of California, dated May 31, 1870, conveying the demanded premises as a</p> <p>portion of the land granted by Congress to aid in the construction of a railroad, by the act of July 1, 1862, and the act amendatory thereof, passed July 2, 1864. By the terms of said acts the grant was limited to public land which was not mineral land, and which was not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim should not have attached at the time the line of said road should be definitely fixed. The following was the granting clause in the patent:</p> <p>“Now know ye, That the United States of America, in consideration of the premises and pursuant to the said act of Congress, have given and granted, and by these presents do give and grant unto the said Western Pacific Bailroad Company of California, and to its assigns, the tracts of land selected as aforesaid and described in the foregoing, yet excluding and excepting from the transfer by these presents, “all mineral lands,” should any be found to exist in the tracts described in the foregoing; but this exception and exclusion, according to the terms of the statute, shall not be construed to include iron land.</p> <p>“To have and to hold the said tracts with the appurtenances unto the said Western Pacific Bailroad Company of California, and to its assigns forever, with the exclusion and exception as aforesaid.”</p> <p>The defendant objected to the admission of the patent in evidence because it was irrelevant. The court overruled the objection. The plaintiff then deraigned title by mesne conveyances from said company, and rested. The defendant then offered to prove that the land was mineral land, containing large quantities of cinnabar and quicksilver, and that he had held the land as a mining claim since October, 1866, under the rules and regulations and customs of miners in the district where the land was situated. The plaintiff objected to the testimony as irrelevant, and the court sustained the objection.</p> <p>The plaintiff recovered judgment, and the defendant appealed from the judgment and from an order denying a new trial.</p> <p>The other facts are stated in the opinion.</p>

Cited by 6 later decisions (2 by the Supreme Court) — most recently June 1911

4 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1875-07-01

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By the Court, McKinstry, J.;

¶1It was not suggested at the argument that lands valuable because of cinnabar or quicksilver ores, are not “mineral lands” within the meaning of the act of Congress, and we shall assume that they are.

¶2The defendant’s objection to the patent, that it was “ irrelevant,” was properly overruled. It is not necessary to decide whether it was for the plaintiff, who relied on the patent, to prove that the land in controversy was not one of the excepted tracts, because an examination of the record shows us no motion for nonsuit was made.

¶3The court below refused to permit the defendant to introduce evidence tending to prove that the land, the possession *68of which is sued for, was within the exception. If the plaintiff was not required to prove that the land was not within the exception, we are convinced that the defendant was entitled affirmatively to establish that it was within it.

¶4The exception contained in the patent, introduced by the plaintiff, is part of the description, and is equivalent to an exception of all the subdivisions of land mentioned, which were “mineral” lands. In other words, the patent grants all of the tracts [named in it which are not mineral lands. If all are mineral lands, it may be that the exception is void; but the fact cannot be assumed, as by its terms the exception is limited to such as are mineral lands, and does not necessarily extend to all the tracts granted.

¶5We think the defendant should have been allowed to prove that the demanded premises were mineral lands.

¶6Judgment and order reversed, and cause remanded for a new trial.

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