This action was brought by plaintiff against defendants to quiet his title to a quartz mining claim known as the “Five Pines Mine” located in Trinity County, and for an injunction restraining defendants from trespassing on or extracting ore therefrom. Plaintiff proved a valid location of the mine by one Edwin Baker on August 26, 1895, and a conveyance by said locator to plaintiff; that the claim consisted of a piece of land fifteen hundred feet long by six hundred feet wide located partly in section 20 and partly in section 29, township 35 north, range 7 west, M. D. M., about half the surface ground of said claim lying in each of said sections; that the annual work and labor required by law to be done had been performed on said claim each year after its location, and that the claim embraced valuable gold-bearing ore and contained no deposits of coal or iron.

The defendants asserted title to that portion of the mining claim located in section 29 as successors in interest under a patent issued by the United States to the Central Pacific Railroad Company, dated February 14, 1896. This patent purported to convey to said railroad company some two hundred thousand acres of land in various sections, townships, and ranges in California, including all of said section 29. The descriptive calls in the patent are followed by the granting clause whereby the United States grants to the Central Pacific Railroad Company “all the tracts of land described in the foregoing, yet excluding and excepting all mineral lands should any such be found in the tracts aforesaid, but this exclusion and exception according to the terms of the statute shall not be construed to include coal and iron lands.”

Judgment was entered in favor of plaintiff declaring him to be the owner and entitled to the possession of the mining ground in question against every one except the government of the United States; that defendants had no right or title to any part thereof, and enjoined them from trespassing upon the property. Defendants moved for a new trial, which being denied, this appeal is taken solely from the denial of said order.

The judge of the superior court of Trinity County—Hon. J. W. Bartlett—before whom this cause was tried, in ordering judgment for plaintiff filed a written opinion in which he set forth so clearly the questions involved in the suit with accurate declarations of law bearing on them, that we quote from it extensively.

After referring to the facts, as we have recited them above, including the terms of the patent to the Railroad Company and the exceptions contained therein, the opinion of said superior judge proceeds:

The affirmance of this appeal might be rested upon the legal principles announced in this opinion of the trial judge and further consideration of the matter made unnecessary if it were not that some points and authorities cited by appellant here are to be noticed, as well as some decisions other than those referred to by the trial judge to be cited.

The principal claim of the appellants is that the patent of the government to the railroad company was conclusive of the fact that the land was such as was patentable under the grant; that as land which was mineral in character (save coal and iron lands) could not be granted, the issuance of the patent, accompanied by the presumption that the land department had done its duty, .conclusively established that the lands as described in the patent were non-mineral in character, and the exception and reservation of mineral land contained therein amounted to nothing.

As a general proposition, and as applied to the disposition of its public lands by the government of the United States, the rule contended for by appellants is undoubtedly true. The land department is vested with special power to determine the claims of different persons to public lands it is authorized to dispose of. The duty is cast upon it to determine the character of the public lands as to whether it is mineral land reserved under the provisions of. the general law from sale, or agricultural or other land of which it may make disposition. The determination of this question of the character of the land being given to the land department, the general rule is that the issuance of a patent is a conclusive determination that the land is agricultural or such other character as might be disposed of under the general law providing for the disposition of public lands and not mineral land reserved from sale, and the effect of the issuance of a patent to the land as agricultural land is to transfer to the patentee all mineral deposits which may be subsequently discovered within its boundaries but which were not known to exist at the time the patent was issued. While this is the general rule as to vesting in the patentee of agricultural land the title to all mineral deposits, the existence of which were unknown when the patent was issued, the rule is equally established that mineral deposits known to exist in the land at the time the patent was issued do not pass under it.

In this state this was held to be the rule in cases involving patents issued to railroad companies under the same general act of Congress making such grants and which explicitly excluded and excepted from the operation thereof grants of mineral lands and with similar express exclusion and exception in a patent as to mineral land should any be found in the premises granted.

The first case, McLaughlin v. Powell, 50 Cal. 64 , was ejectment, plaintiff deraigning title under a patent of the United States to the Western Pacific Railroad Company of California issued in 1870. This patent, as does the one here, excluded and excepted mineral land should any be found to exist on the tracts described in the patent. Defendant offered to prove that a portion of the land described in the patent and of which plaintiff sought to recover possession was mineral land and that he had held it as a mining claim since 1866. The trial court refused to permit him tp do so and the court reversing the cause for this refusal said: “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 the 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 land 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.”

In Chicago Quartz M. Co. v. Oliver, 75 Cal. 194 , [ 7 Am. St. Rep. 143 , 16 Pac. 780 ], the action was brought by plaintiff to quiet its title to a quartz mining claim to which the defendant asserted title as successor in interest under a patent issued to the Central Pacific Railroad Company in 1870 and which patent contained a provision, as in the patent involved here, excepting and excluding all mineral land, should any be found in the patented premises. The trial court found that the Chicago Quartz Mining Company’s quartz mine was valuable gold-bearing mineral land and had been notoriously known and frequently worked as such ever since 1861, and thereupon made a decree in favor of plaintiff quieting its title. On appeal here the same point was made as is urged now that the patent was conclusive and not subject to collateral attack. In affirming the judgment, this court discussed the acts of Congress under which these grants to the railroad company were made and the duty of the land department relative to issuing patents thereunder. In connection therewith it said: “In the original act (granting lands to railroads in aid of the construction of their roads) all mineral lands are expressly ex- eepted from its operation and in the Amendatory Act it is enacted that the grant shall not include mineral lands or any lands returned and denominated as mineral lands. ‘Whatever is included in the exception is excluded from the grant; and it therefore often becomes important to ascertain what is "excepted in order to determine what is granted.’ (Leavenworth etc. R. R. C. v. United States, 92 U. S. 733 , [ 23 L. Ed. 634 ].) It is not claimed that the officers on whom was devolved the duty of issuing the patents to the lands granted could add anything to the grant. But it is claimed that the patent is conclusive evidence that the grant included all the land covered by the patent. The supreme court of the United States has said: ‘A patent may be collaterally impeached in any action and its operation as a conveyance defeated by showing that it had no jurisdiction to dispose of the lands; that is the law did not provide for selling them, or that they had been reserved from sale or dedicated to special purposes or had previously been transferred to others.’ (Smelting Co. v. Kemp, 104 U. S. 636 , [ 26 L. Ed. 875 ].) This is quoted approvingly in the opinion of the court delivered by Field, J., in Wright v. Roseberry, 121 U. S. 488 , [7 Sup. Ct. 985, 30 L. Ed. 1039 ].)” And following the rule announced in McLaughlin v. Powell , it was held that such a patent only grants lands which are non-mineral in character; that the exception of mineral lands in the patent is part of the description and equivalent to an exception therefrom of all lands that were mineral and that the Chicago Quartz Mining Company had a right to show that the land that it claimed was known mineral land at the time of and long prior to the issuance of the patent to the railroad company, and was land within the exception in the patent.

Aside from the cases in our court dealing particularly with patents under grants of Congress to railroad companies, the rule appears to be general that mineral deposits do not pass under a patent issued for land subject to disposal or sale where, at the time of the issuance of the patent, such mineral deposits are known to exist. (Reynolds v. Iron Silver Min. Co., 115 U. S. 687 , [6 Sup. Ct. 601, 29 L. Ed. 774 ]; Davis’s Admr. v. Weibbold, 139 U. S. 507 , [11 Sup. Ct. 628, 35 L. Ed. 238 ]; Kansas Min. & Mill Co. v. Clay, 3 Ariz. 326 , [ 29 Pac. 9 ]; Loney v. Scott, (Ore.), 112 Pac. 173 .)

In Reynolds v. Iron Silver Min. Co., 115 U. S. 687 , [6 Sup. Ct. 601, 29 L. Ed. 774 ], a patent was granted for a placer mine within the boundaries of which when the patent was issued a quartz mine was known to exist. Speaking of the effect of the grant to the placer claim patentee under this circumstance, the court said: “He (the placer claim patentee) takes his surface land and his placer mine and such lodes or veins of mineral matter within it as were unknown, but as to such as were known to exist he gets by that patent no right whatever. The title remaining in his grantor, the United States, to this vein, the existence of which was known, he has no interest in it as authorizes him to disturb any one else in the peaceable possession and mining of that vein. When it is once shown that the vein was known to exist at the time he acquired title to the placer it is shown that he acquired no title or interest in that vein by his patent. Whether the defendant has title or is a mere trespasser, it is certain that he is in possession and that it is a sufficient defense against one who has no title at all nor ever had one.” It was therefore held that no title to the quartz ledge passed to the placer claim patentee, but the title thereto remained in.the United States government. In the case of Davis’s Admr. v. Weibbold, 139 U. S. 507 , [11 Sup. Ct. 628, 35 L. Ed. 238 ], it was likewise held that as to known mineral land no title passed to the patentee. And to the same effect are the other authorities referred to by us.

Certain California cases are cited by appellant under which they claim that the patent to the railroad company is conclusive against the attack of respondent. These are particularly: Gale v. Best, 78 Cal. 235 , [ 12 Am. St. Rep. 44 , 20 Pac. 550 ]; Saunders v. La Purisima etc. Co., 125 Cal. 159 , [ 57 Pac. 656 ]; Patterson v. Ogden, 141 Cal. 43 , [ 99 Am. St. Rep. 31 , 57 Pac. 443 ], and Jameson v. James, 155 Cal. 275 , [ 100 Pac. 700 ]. But an examination of these cases shows that the attack on the patent was made by junior claimants. As to such claimants it is clear, as pointed out in those- authorities, that the patent to the land as agricultural land is conclusive.

But the plaintiff here is not a junior claimant. He had made a valid mining location and initiated his title to his mining claim in the quarter section in question nearly six months before the issuance of the patent to the railroad com pany, and as the law is that mineral deposits whose existence are known when the patent is issued do not pass under it, the patent was ineffectual to transfer any title to the appellants as to the mining claim of the respondent.

As- to the right of the respondent to have his title quieted as against defendants we have no doubt. Respondent was in possession of his mining claim under a valid location made prior to the issuance of the patent under which appellants claim and was, therefore, in privity with the United States. He is the equitable owner of the mining claim and while the government holds the legal title it holds it in trust for him to issue a patent therefor if he should elect to obtain one upon his complying with the provisions of the law entitling him to such issuance. Under such circumstances, while respondent’s- title to the mining claim is only an equitable one and though the legal title is in the government, he is entitled to have such equitable title quieted against appellants who, though they acquired no title whatever to the mining claim of respondent .under the patent to the railroad, are nevertheless asserting title to it against respondent.

The order appealed from is affirmed.

Henshaw, J., and Melvin, J., concurred.

Hearing in Bank denied.