This was an action of ejectment, brought November 15, 1887, by the executors of Philip Richards against Harriet Dower and others, in the superior court for the county of Nevada, in the state of California, to recover possession of two lots in the city of Nevada in that county, which the complaint alleged that Richards, in his lifetime, was the owner and in possession of.
The defendants, in their answer, alleged that Harriet Dower, of whom the other defendants were servants, was the owner and in possession, and entitled to the possession, of a quartz ledge and mine, called the 'Wagner Ledge,' situated partly upon and crossing the lots demanded; that Richards had no other right of possession than under a town-site patent granted by the United States to the city of Nevada in 1869; that the ledge was known to be a gold-bearing ledge, and was held and worked as such long prior and subsequent to that patent, and was by the laws of the United States excepted from that patent; and that Harriet Dower had located the ledge, and was engaged in working it, including 300 feet on either side thereof, under those laws. The laws relied on by the defendants were the acts of July 26, 1866, c. 262; March 2, 1867, c. 177, (14 Stat. 251, 541;) June 8, 1868, c. 53, (15 Stat. 67;) May 10, 1872, c. 152, (17 Stat. 91;) Rev. St. § 2392.
A jury trial was waived, and the case submitted to the superior court, which made findings of fact, in substance, as follows: A town-site patent for a tract including the two lots demanded was issued July 1, 1869, by the United States to the city of Nevada, which, before May 1, 1887, conveyed all its title in these lots to Richards, and that title was now vested in the plaintiffs as his executors. Before the issue of that patent, the Wagner ledge was known to exist as a gold-bearing quartz lode, but had never been located or marked out; and there was no proof that any local mining rules were in force in that district. For many years before 1869 it had been profitably worked, and many tons of gold-bearing rock extracted from it, by persons who were trespassers upon the public domain, and were not shown to have had more than a mere possessio pedis of certain shafts, tunnels, and dumps. In the winter of 1868-69, work on the ledge was abandoned, and no work was afterwards done by those persons, and the defendants did not claim under them. In 1884, Harriet Dower, being a citizen of the United States, and qualified to make a mining location, attempted to make a quartz mining location upon the ledge within the lots demanded, which, in manner and form, complied with the laws of the United States in respect to mining locations; and by virtue of her location she claimed the ledge, with 300 feet on each side thereof, and since did annual work thereon, as required by those laws, excavated the soil, sank shafts, erected buildings, and piled earth, sand, and debris across the surface of the lots. For more than a year before her attempted location, no annual work had been done by any one upon the ledge. On May 1, 1887, Richards was the owner and in possession, and entitled to the possession, of the lots, and the defendants wrongfully and unlawfully ejected him from the part claimed by them, and ever since wrongfully and unlawfully withheld the possession thereof from him and his executors.
Upon the facts so found, the court decided, as matter of law, that the plaintiffs were owners, and entitled to the possession, of these lots; that no part of them was subject to location as a mining claim at the date of Harriet Dower's attempted location; that the whole of the lots passed to Richards by the town-site patent and the subsequent conveyance; and that the plaintiffs were entitled to judgment against the defendants for the restitution of the part claimed by the latter, and for costs, and gave judgment for the plaintiffs accordingly. Upon a statement of the evidence, agreed to in writing by counsel, and cerfified by the judge, a motion for a new trial was made and denied. From the judgment for the plaintiffs, and from the order denying a new trial, the defendants, in accordance with the state practice, appealed to the supreme court of the state.