Brown v. '49 and '56 Quartz Mining Co.

         1. The defendants' claim is prior in date, and covers the dips, spurs, and branches of the lode.

         2. The lode itself belonging to defendants, the quartz rock detached from it, and lying contiguous thereto, must likewise belong to defendants. It is the quartz and the gold contained therein, and not the solid Mass. imbedded in the different formations of granite and other rock, which are taken up by the quartz miner.

         The fallen portion of the ledge was embraced by our notice. It is shown by the evidence, and is found as a fact by the Court, that the quartz ledge had, in several places, cropped above the surface. At the particular spot in question, it had fallen over. It is not contended by appellants that this rock, which we claimed and worked, was not originally part and parcel of the solid ledge; but they say, inasmuch as it had fallen over, it was not embraced by our notice.

         The word ledge or lead embraces it. The fallen portion was as much the ledge as that embodied in the bed rock.

         3. The gold was all " quartz gold," and was found mostly in the quartz and none in the surface earth, and consequently followed the quartz itself, as to its ownership. The gold we took was quartz gold; so shown by the evidence, and so found by the Court. In its findings the Court say: " All the gold bore the rough, scraggled appearance of quartz gold." We took it from the quartz ledge--from that portion of it which had fallen over. The evidence shows, that wherever the ledge comes to the surface, there is more or less decomposed quartz. This belongs to us. It is not contended that it does not, yet it is not particularly specified in our notice. It had become, from the same causes, as much detached from the solid ledge as that portion which had fallen over, and yet it is admitted that it was embraced by our notice. The rock from which we took the gold in question was part and parcel of the ledge--of the same thickness, and as easily traced. Its character had not changed merely becauseit had fallen over. It had not become separated from the ledge and lost: the evidence shows it had not, and the Court finds it had not. It had fallen, but still it hung and remained attached to the solid ledge, as much so as the branch of a tree which from the effects of a storm has fallen over and partially broken off.

         It is said that the respondents did not know of this fallen portion of the ledge at the time they posted their notice. It may be true; but how does this assist appellants? In taking up a ledge, parties are often ignorant of its condition and course. The evidence shows that a ledge often changes its course--takes a jump off five, ten, or fifteen feet. Sometimes it divides; yet by the decisions of this Court we are entitled to it. (Johnson v. Parks, 10 Cal. 446 .)

         That respondents intended to take up everything belonging to the ledge is clearly shown by their notice. It reads: " The ledge, with all its spurs and branches." If the word " ledge" does not include the fallen portion of the ledge, then the word " spur" does. Again, the respondents took up the " ledge and all its branches." If the word " ledge" does not embrace the fallen portion of it, the word " branches" does. It was something that had shooted out from the bed rock.

         4. The quartz is the matrix, and the gold the offspring or product; and as the fruit belongs to the owner of the tree, or the grain to the owner of the soil on which it is grown, so the gold goes with the quartz, and both belong to the same party.

         5. The custom of miners has established a rule, and that rule gives defendants the detached quartz and gold therein. But it is said that we cannot refer to the evidence establishing this custom, because the Judge did not find it as a fact. Admit that he has not, have the appellants been injured by it? Where the evidence conclusively establishes that the verdict must be the same if sent back, the Court will not disturb it.

         The Court finds that we were the prior locators; that we did not work beyond the limits of our ledge; that this fallen rock belonged to us, and was embraced by our notice; and that the gold we took was quartz gold. A finding of a Judge will be treated precisely as this Court would treat the verdict of a jury. (Mann v. Witbeck, 17 Barb. 388; Hoppe v. Robb, 1 Cal. 373 .)

         JUDGES: Baldwin, J., delivered the opinion of the Court. Field, C. J., and Cope, J., concurring.

         OPINION

         BALDWIN, Judge

         The question in this case, involving plaintiffs' title to recover, has been discussed by the counsel for the appellants with a great deal of scientific learning and with much ingenuity. The facts are, that the defendants, a corporation, in November, 1856, located and recorded the claims, covering a part of a quartz lode now in their possession. The defendants made some permanent and expensive improvements--a mill, tunnels, roads, etc. Subsequently to this, the plaintiffs took up four surface or hillside claims, by which they claimed the whole of the hillside, from the ravine to the quartz lode held by defendants. The plaintiffs commenced working their claims near the ravine, and worked up hill, until they approached within twenty or twenty-five feet of the solid ledge, worked by the defendants. They were stopped by defendants, who claimed the ownership of the ground above the point thus worked by plaintiffs. At the point approached by plaintiffs, the ledge had cropped above the surface or bed rock, and had fallen down the hill--but along the ledge the fallen masses remained in contact with the solid ledge. As the distance from the solid ledge increased, the blocks of detached rock became smaller, and the interstices between the blocks became greater, and the quartz itself more decomposed. The whole of this outcropping was covered with red earth, which also filled the interstices between the detached masses of rock. The quartz thus fallen, and the earth between the blocks of quartz, were filled with gold; but the whole of it was what is called quartz gold; and is distinguished from washed gold by having a rough, scraggly appearance. These masses of quartz were covered with earth to the depth of about three feet, in which there was little or no gold; and this earth was stripped off and thrown down the hillside. The defendants worked a narrow strip of ground, fifteen or twenty feet wide, and twenty or thirty feet long, on which these fallen masses of quartz were found. Some of the witnesses state, that they trailed the ledge distinctly as far as the defendants worked. For the gold taken by the defendants from the premises in dispute, this suit is brought.

         There is no question as to the priority of the defendants' location. The only question is, whether by their location and claim the defendants became entitled to this loose quartz rock and decomposed material, which was once, if not now, a part of the quartz ledge. The view taken of this matter by the learned Judge below, strikes us as sensible and just. In his findings, he says: " It certainly would be a very great hardship to the quartz miner--he having priority of claim--to adopt the reasoning of plaintiffs' counsel, and confine the quartz miner to the solid quartz actually embedded in the solid bed rock. It is shown by the evidence, this, in many cases, is but a small proportion of the real value of the ledge. Where the ledge comes to the surface, there is always more or less detached quartz rock, and always more or less decomposed quartz. In most cases, this portion is more highly prized than the solid ledge itself; for this reason, that it requires far less labor and expense to prepare it for working than the same quantity of the solid ledge, and oftentimes makes a much greater return in yield of gold.

         " In this case, the portion of the quartz in action is described as having the appearance as if the quartz ledge had been pushed up through the crevice in the bed rock above the surface of the bed rock; that the portion thus exposed above the surface had broken off and fallen down the hill. The ledge in the bed rock is about two feet in thickness, and the masses of quartz rock which had broken off and fallen down the hill were of about the same thickness--many of them, at least. The witnesses, some of them who worked in the taking away of the rock and earth, say they could trace the general thickness of the ledge as far as they did work.

         " It is argued by plaintiffs, that this doctrine would, by parity of reasoning, give to the defendants all the gold in the surface earth down as far as the ravine, a distance of four or five hundred feet, as it might be easily shown that all the gold in the surface earth had once been a portion of the ledge, and had become free gold by the decomposition of the quartz rock in which it had once been held. I think the reasoning could hardly reach to that extent; but would certainly give to the prior quartz miner all the gold in detached or decomposing quartz, so far as the general formation of the ledge could be traced. And I think it could make no difference whether the ledge had been thrown above the surface of the earth, and having fallen over, was laying flat upon the earth, or whether the ledge was still standing perpendicularly in the earth, or whether the ledge was still one solid Mass. of quartz rock, or had become entirely decomposed, and of no greater density than the ordinary earth around it. The Court is of opinion from the above that the defendants are not shown to have worked beyond the limits of their ledge of quartz; and having priority of right in time, they were entitled so to work, and having the right, could peaceably remove the sluice-boxes thereon."

         This principle, thus clearly stated and limited, gives the party appropriating a quartz lead the rights which, by his location, he evidently designed to take. It is a more simple rule than that invoked by the plaintiffs, and is calculated to prevent interference and litigation, and to ignore nice distinctions and subtle controversies, both as to rule and fact. Indeed, if the kind of quartz and the condition and quality of the rock in which it is, or in connection with which it be found, are to determine the right of the locator, it is scarcely possible to put a limit to the number of questions, or the amount or extent of litigation to which the principle would give rise. There is no reason in the nature of things why, as the right comes from appropriation, whenever the claim is defined, the appropriation should not as well take effect upon quartz in a decomposed state as in any other sort, or why the condition to which natural causes may have reduced the rock should give character to the title of the locator. Nor can we perceive why the appropriation of the ledge is any the less entitled to respect, from the fact that the rock has been broken instead of remaining in solid mass. The only question of fact was, whether this quartz rock, whether parted or not from its original connection, was a portion of the same quartz lode or claim taken up by the defendants; and the Court seems to find, on evidence before it, that it was. We think it not important whether it was upon the surface or beneath it, or in what condition the quartz was, if this were the true state of the case.

         The custom of miners is entitled in these anomalous cases to great, if not controlling weight, and though the Court does not expressly find this custom, the evidence strongly confirms the view taken by the Judge below.

         We do not think there is anything in the point that this testimony of custom in other districts was admitted improperly. We are not convinced that this proof was not proper under the facts. But the error, if one, was immaterial, as the case was tried by the Court, and the judgment placed on independent grounds, upon which it can stand.

         Judgment affirmed.