[No. 18315. In Bank.-April 5, 1895.]

A. W. STINCHFIELD, RESPONDENT, v. J. N. GILLIS ET AL., APPELLANTS.

MINES--CONVEYANCE BY OWNER OF TWO CLAIMS HELD AS ONE-INTERSECTION OF VEINS-TITLE OF GRANTEE-ESTOPPEL BY DEED.Where the dividing line between the original locations of two mining claims has been disregarded by one who has become the owner of both of them, and he has sold and conveyed a portion thereof in a deed of conveyance not purporting to be made in accordance with the lines or claim of any previous location, but as a conveyance of a tract of mining ground carved out of the entire tract by metes and bounds agreed upon between the parties, the grantor is estopped by his deed from questioning the right of his grantee to all of the gold found within the surface lines of the deed, irrespective of the depth below the surface at which it is found and such grantee has title to the gold found at the place of intersection of two veins falling within the surface lines of the deed. ID.-CONSTRUCTION OF REVISED STATUTES-PRIORITY OF LOCATION OF INTERSECTING VEINS-EFFECT OF DEED.-Where the proprietor of a tract of mining ground which had been derived through several locations disposes of the same in parcels, irrespective of the lines of the locations, the rights of his grantees are measured by the terms of their deeds. Section 2336 of the Revised Statutes of the United States providing that when two veins intersect, priority of title shall govern as to the ore or mineral contained within the space of intersection, has no application to a conveyance of part of a mining claim, in respect to which there is no priority of location, and was not intended to limit or define the rights of a person in possession of a tract of mining ground where there is more than one vein, or to prescribe the effect of a conveyance by the locator of a claim of a portion of his location; but the sole object of that section is to supplement the provisions of section 2332, and to prescribe rules under which different locations by different proprietors should be held, and to determine the rights of such proprietors in case of intersecting veins.

ID. DESCRIPTION-BOUNDARIES-PAROL

EVIDENCE-MONUMENTS— IDENTITY OF LAND.In the description of the boundaries in a conveyance, monuments designated as the corners of the tract conveyed. which can be ascertained, will prevail over designated measurements, and parol evidence offered for the purpose of pointing out upon the surface of the earth the monuments which had been agreed upon in the sale, and which were named in the conveyance, is admissible to show the identity of the land conveyed with that upon which the trespass was committed.

APPEAL from a judgment of the Superior Court of Tuolumne County and from an order denying a new trial.

The facts are stated in the opinion of the court.

F. W. Street, and J. F. Rooney, for Appellants.

The deed from defendant Gillis to plaintiff conveyed to the latter the same title he would obtain by a United States patent to the Pine Tree mine and no more. (Stinchfield v. Gillis, 96 Cal. 37.) A patent to Stinchfield of the Pine Tree mine would convey to him all veins, lodes, and ledges having their apexes upon the Pine Tree mine throughout their entire depth, with the right to follow the same beyond the vertical side lines of the location, but if any such veins, lodes, or ledges intersected any vein, lode, or ledge having its apex on the Carrington or other mine, then the ore at such point of intersection would belong to the mine that was located prior to the Pine Tree mine. (U. S. Rev. Stats., secs. 2322, 2336; Champion Min. Co. v. Consolidated etc. Min. Co., 75 Cal. 78; Stinchfield v. Gillis, supra.) The Carrington mine, being a separate and independent location made prior to the location of the Pine Tree mine, the ore contained within the space of intersection of the Rice and West veins was as much a part and portion of the Carrington mine as was any part of the surface or of any part or portion of any vein or lode having its apex on the Carrington mine, and the ore contained within the space of intersection of the veins in controversy never constituted any portion of the Pine Tree mine, and hence was not conveyed to plaintiff. (U. S. Rev. Stats., sec. 2336.) The facts found, upon which the respondent claims an estoppel in pais, are not sufficient to constitute either an equitable or legal estoppel on Gillis. (Boggs v. Merced Min. Co., 14 Cal. 367; Dean v. Parker, 88 Cal. 288; Leonard v. Flynn, 89 Cal. 535; 23 Am. St. Rep. 500; Bigelow on Estoppel, 3d ed., 483, 484.) The description of the land conveyed by the deed from Gillis to Stinchfield being clear and specific, parol evidence was inadmissible to show the boundaries of the lands described in the deed. (Osborn v. Hendrickson, 7 Cal. 282; Donahue v. McNulty, 14 Cal. 41218; Dent v. Bird, 67 Cal. 652; Frink v. Roe, 70 Cal.

316; Pierson v. McCahill, 21 Cal. 122-29; Bell v. Morse, 6 N. H. 205.)

1. M. Kalloch, F. P. Otis, and Wheaton, Kalloch & Kierce, for Respondent.

HARRISON, J.-Upon the former appeal in this case (96 Cal. 33) it appeared that the Carrington mine was a single claim held by the defendant Gillis, of which he had sold a portion to the plaintiff, and it was held that by virtue of his deed to the plaintiff Gillis was estopped from questioning the right of his grantee to all of the gold found within the surface lines of the deed, irrespective of the depth below the surface at which it was found. After the case went down to the superior court for another trial the defendants amended their answers, presenting issues to the effect that the tract of ground which was sold to the plaintiff was known as the Pine Tree claim, and was distinct from that known as the Carrington claim, which was retained by Gillis, and had been located subsequent to the location of the Carrington claim; that upon these facts they were entitled to the gold found at the place of intersection of the Rice vein and the West vein, although that place of intersection was within the surface lines of the grant to the plaintiff. Upon the issues thus presented, the court found that for nearly fourteen years prior to the sale to the plaintiff the mining ground held by the defendant Gillis, including that sold to the plaintiff, as well as that retained by himself, had been held and claimed by him as a single mining claim, and was known and designated as the "Carrington" claim, and that during this time no Pine Tree mine or claim had existed; that prior to the sale and conveyance to the plaintiff, Gillis had pointed out to him the boundaries of the Carrington claim, and told him that the ground so sold and conveyed was a part of that claim; that before the execution of the deed Gillis and the plaintiff went together upon the ground and marked off and agreed upon the

portion of the claim to be sold to the plaintiff, and established visible monuments at each of the four corners, and agreed upon the dividing line between the portion to be sold to the plaintiff and the portion to be retained by the defendant, and established and agreed upon permanent monuments marking said dividing line; that the ground was conveyed according to these monuments, and in the conveyance to the plaintiff was designated as the Pine Tree mine for the purpose of distinguishing it from the remaining part of the Carrington claim retained by Gillis. In 1854 the Carrington claim was located for one thousand feet in length, and one hundred feet on each side of the vein, and in 1859 or 1860 T. E. Carrington, then being in possession of the Carrington claim, posted notices on the Pine Tree vein, adjacent thereto on the east, claiming three hundred feet along said vein. Carrington remained in possession of this property until some time in 1870, when he moved away from the county, leaving the whole of the mining ground in charge of one Stoker, and instructed him to do the assessment work thereon. Stoker took possession of the entire ground in which the Carrington and Pine Tree veins lay, and held it for Carrington as one claim until June, 1872; and during this time the entire ground was held and known as the Carrington claim, and all the assessment work that was done upon the ground was done as and for the Carrington claim. In June, 1872, Carrington sold to the defendant Gillis his interest in the mining ground-including in the deed of conveyance claims on all sides of the Pine Tree mine, but not mentioning any claim or mining ground by that name and upon the execution of this deed Stoker turned over to Gillis the possession of all the ground that he had been holding for Carrington; and Gillis remained in possession thereof until his conveyance to the plaintiff in 1886. Upon these facts the court rendered judgment in favor of the plaintiff. The defendants have appealed.

We are of the opinion that the additional facts presented upon this appeal do not take the case out of the

principles under which the decision of the former appeal was given. The mining ground held by Carrington, of which Gillis took possession under his deed of June, 1872, must be considered as a single claim, irrespective of the original locations of the different parts of the claim. Whatever distinction may have been at one time observed between the original location of the Carrington mine and that of the Pine Tree mine, it was disregarded by Carrington during a large portion of the time these claims were held by him, and after he left the county the entire mining ground, which included them both, was treated as one claim, not only while Stoker held them, but also during all the time that Gillis held them until his conveyance to the plaintiff. That conveyance did not purport to be made in accordance with the lines or claim of any previous location, but was a conveyance of a tract of mining ground carved out of another tract known as the "Carrington" claim by metes and bounds agreed upon between the parties, and which they both treated as a part of the Carrington claim, but which, for the sake of convenience, was designated in the conveyance as the Pine Tree claim. Under these facts the conveyance from Gillis to the plaintiff must have the same effect as though the entire ground held by him previous to the conveyance was held by mere possession, or under a patent from the United States, or as if the two veins were a part of the same location. At the former appeal herein it was held that if the locator of a mining claim should convey a portion of his claim without any reservation in his deed of conveyance, his grantee would be entitled to all the gold that might be found within the ground conveyed in any vein whose apex was within the surface lines of his deed; so, if a locator should convey to A the east half of his claim, and afterward should convey the west half to B, each of his grantees would in the same manner be entitled to all of the gold found in any vein which was entirely within the surface lines of his conveyance; and, on the same principle, if the proprie