The plaintiffs had no actual possession of anything but the tunnel. Had they any constructive possession? There is no way by which such possession could be acquired other than by their own acts in marking out the boundaries of their claim, in accordance with some mining regulation, or by holding some conveyance, lease or other instrument made by a party professing to have right, and defining the limits of the claim. (Hicks v. Bell , 3 Cal. 224; Attwood v. Fricot , 17 Id. 42; English v. Johnson, Id. 109.)
The mere incorporationof the plaintiffs, of course, created no right of property. It created a new being, distinct from the individuals who composed it, and capable of acquiring and holding property. When thus created, it could only acquire rights of property in the same mode as an individual. (Grant on Corporations, 1-4.)
Nor did any right of property, vested in any of the individual members, pass to or become vested in the company by its incorporation, or by its declaration of the purpose for which the corporation was created.
It is not proven that Allen Oliver, John Oliver and J. D. Lyons were the only persons working the claim at the time of the incorporation. But if this were so, it would not follow that the rights of those persons passed to the corporation without assignments, and by mere force of the certificate.
The notice posted by the corporation does not in any manner define the extent of the claim to which it refers; but on the contrary, distinctly repudiates the boundaries now claimed. It claimed the channel through Table Mountain, with all its dips and angles; and this channel, if there be one, as contended by plaintiffs, is many miles in length. Instead of apprising any oneof the boundaries of any claim, it asserted its indefiniteness.
It is true, it refers to the claim held and occupied by the Experimental Tunnel Company since its location in June 12th, 1852; but the claim of the Experimental Company in June, 1852, was that specified in its notice, which also was indefinite, and was not from that day held or occupied by that company at all--for notice is not occupation.
The plaintiffs are, on their own showing, claimants of 4,500 feet measured along the base of the mountain; that is, nine hundred feet to the man; their claim having been taken up in the absence of any mining law whatever, by six persons. Such a claim, I submit, they could not hold as against persons entering under the mining laws adopted in January, 1855--in other words, against the defendants in this case--but their claim would be reduced to eighteen hundred feet, being three hundred feet to the man, and being so reduced, would not extend to the defendants' claim.
I am not aware that this Court has ever decided that in the absence of mining laws, a person may mark out and hold any amount of mining ground, and that his claim cannot be reduced by the subsequent adoptionof mining laws. On the contrary, there are strong intimations the other way, and the case of English v. Johnson seems to be directly against it. The doctrine is unreasonable, and in conflict with the whole theory of our mining claims.
It is true, as sometimes said by the Court, mining laws cannot divest existing rights. But how can a right exist which has no foundation in law or custom--no other foundation, indeed, than the will of the person asserting it? I speak now of a right supposed to result, not from actual possession, for that is founded on law, but from a constructive possession, such as is contended for here. How, in the absence of rule or limit, furnished either by law or by mining regulations, which have the force of law, can there be any such thing as constructive possession?
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. and Norton, J. concurring.
OPINION
COPE, Judge
On petition for rehearing, Cope, J. delivered the opinion of the Court--Field, C. J. and Norton, J. concurring.
We are asked by the counsel for the respondent to modify certain portions of the opinion delivered by us in this case On looking at the mining rules of the Table Mountain District, we find that an error was committed in saying that claims previously located were excluded from their operation. The rules contain a provision to that effect, but they also provide that persons holding such claims shall have one week to establish their boundaries in the manner therein required. A construction of these provisions is unnecessary for the purposes of this appeal, and we refer to the matter to guard against misapprehension, to which the language of the opinion would probably lead.
The counsel objects to that portion of the opinion relating to the mode of determining the reasonableness of a claim in the absence of local regulations limiting the extent. He understands us to have said that in such case recourse must be had to general usage previously established, and argues that under this rule there would be no means of imposing a limitation upon persons whose claims were located anterior to the existence of customs of a general nature fixing the quantity. We think the opinion does not warrant the view taken of it, but it is proper to say that while a general custom, whether existing anterior to the location of the claim or not, may be given in evidence upon the question of extent, a mere local regulation stands upon a different footing. The former results from the general sense of the mining community as to what is just and reasonable in that respect, and in connection with the particular circumstances of the case may be safely relied on in arriving at a conclusion. The latter owes its origin to the will and discretion of a few individuals, and operating directly upon the location sought to be limited, would be an improper and unjust criterion of action; as in many cases its effect would be to deprive persons of property to which, prior to its adoption they had a valid legal right.
Rehearing denied.