McLaughlin v. Powell

California Supreme Court July 1, 1875

McLaughlin v. Powell, 50 Cal. 64 (Cal. 1875)

1875 Cal. LEXIS 84

McKinstry

Opinion of the Court

By the Court, McKinstry, J.;

It 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.

The 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.

The 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.

The 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.

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

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

Reference

Full Case Name: CHARLES McLAUGHLIN v. WM. R. POWELL
Cited By: 7 cases
Status: Published
Syllabus: Gbant of Lands to Oentbal Pacifio Railboad Company of Galifobnia.— The Court assumes, for the-purposes of a decision, that lands containing cinnabar or quicksilver are mineral lands, within the meaning of the act of Congress passed July 1, 1862, granting lands to the Western Pacific Railroad Company of California to aid in the construction of a railroad. Patent to Railboad Lands as Evidence.—A patent to the Western Pacific Railroad Company of California, of land granted to said company by Congress to aid in building its railroad, is relevant evidence tending to prove the title of the company to the land granted, in an action of ejectment brought by the company or its grantee, without first proving that the land is not mineral. Ejectment to Recoveb Railboad Lands.—The question not decided, whether the plaintiff in ejectment, who relies on a patent to the Western Pacific Railroad Company, must prove that the demanded premises are not mineral lands, or are not within the exceptions contained in the grant. Evidence in Action' to Becoveb Railboad Lands.—If the plaintiff, in ejectment, relies on a patent to the Western Pacific Railroad Company of California, for land granted to aid in the construction of its railroad, which patent excepts from the transfer all mineral lands, the defendant may prove that the demanded premises are mineral lands. Exception in Patent.—A patent to the Western Pacific Railroad Company which excepts from the transfer “ all mineral lands, should any be found to exist in the tracts described,” does not convey lands which are mineral. Idem.—The fact cannot be assumed that all the lands described in such patent are mineral lands, as the exception does not necessarily extend to all the tracts granted.