Stinchfield

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 es-topped 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…

While I. do not think the decision in this case upon the former appeal is at all conclusive, as to the questions raised by the present appeal, still I concur in the judgment upon the ground that the facts do not bring the case within the provisions of section 2336 of the Revised Statutes of the United States. And when that statute does not apply, and there is no other law or mining custom applicable to the facts, I think the grantee of the surface ground must be held to take all the mineral at the point of intersection.