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CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE

CIRCUIT AND DISTRICT COURTS.

WOODSIDE et al. v. CICERONI. 1
(Circuit Court of Appeals, Ninth Circuit. February 13, 1899.)

No. 450.
1 FEDERAL COURT8—JURISDICTION-CITIZENSHIP-FRAUD.

A citizen of California, not entitled to sue adverse claimants of mining rights in his land in a federal court, conveyed the property to an alien. The grantee was a laborer, without means, and he agreed to pay only $600 as the price, though the land was worth $1,800; and he paid only $10 down, giving a mortgage for the balance. Shortly afterwards be sued In a federal court to quiet title. Held, that the facts did not show that the transfer was simulated for the purpose of conferring jurisdiction on

the federal court. 2. SAME-AMOUNT IN CONTROVERSY-SUITS TO QUIET TITLE.

In a suit to quiet title, it is not the value of defendant's claim that constitutes the amount in controversy; it is the value of the whole of the

real estate to which the claim extends. 3. MINING RIGHTS-CONVEYANCES-CONSTRUCTION PROPERTY CONVEYED.

In the first part of a deed there were a bargain, sale, and conveyance of the right to enter upon land for mining purposes only, and to prospect and mine the same. Then followed a provision that the prospecting and mining should be done with as little damage as possible. It was then provided that, "for the purposes aforesaid," a right of way was granted across the land, which was then described, and following the description, without break or punctuation, were the words, “together with the mines, of gold therein contained.” Heldy that the last-quoted clause was a part

of the description, and not a grant of the mines. 4 SAME-CONDITIONS SUBSEQUENT.

A deed conveyed the right to enter on land for mining purposes only, and to prospect and mine the same, “if (the grantee) should discover any gold in quartz suitable for mining." Held, that the quoted clause was

not a condition subsequent. & SAME-REVOCABLE LICEYSES.

Nor was the deed a grant of a mere license, revocable at the will of the grantor. SAME-INCORPOREAL HEREDITAMENTS.

On the contrary, an incorporeal hereditament was conveyed; the deed containing apt words of conveyance of such a right, and reciting a suffi. cient consideration, which had been paid, and the grant being to the grantee and his heirs and assigns forever. Rehearing denied March 2, 1899.

83 F.-1

7. SAME—ABANDONMENT-Exclusive Rights.

A grant of the right to enter on land for mining purposes only, and to prospect and mine the same, not being exclusive, the grantor and his subsequent grantees, also, had the right to prospect and mine on the same land. Hence no presumption could arise of abandonment of the rights first granted, from the fact that similar rights were exercised by

the grantor and his subsequent grantees. 8. SAME-ADVERSE USER.

Nor would such use of the premises by the grantor and his subsequent grantees be adverse to the first grantee, where he was not excluded

from the exercise of his rights. 9. SAME-ABANDONMENT.

The mere failure of the first grantee to exercise his rights would not
extinguish them.
Appeal from the Circuit Court of the United States for the Northern
District of California.

J. P. Langhorne, for appellants.
W. E, F. Deal and Edmund Tauszky, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT, Circuit Judge. On September 27, 1884, Joseph Hocking executed to John W. Anderson a conveyance, of which the following is a copy:

"This indenture, made the 27th day of September, A. D. 1884, between Joseph Hocking, party of the first part, and John W. Anderson, the party of the second part, witnesseth that the party of the first part, for the consideration of one dollar, and other valuable considerations, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell, and convey to the party of the second part, and to his heirs and assigns, forever, the right to enter on the following described tract or parcel of land for mining purposes only, and to prospect and mine the same, if he should discover any gold in quartz suitable for mining. Said prospecting and mining of said land to be done with as little damage to the surface of the land for agricultural purposes as a proper mining thereof will permit, and for the same purposes the party of the first part hereby grants the right of way across the tract of land hereinafter described. Said tract of land being situated in Tuolumne county, California, and being the S. 42 of S. E. 14, and S. E. 14 of S. W. 14, and N. W. 44 of S. E. 44, section No. 30, in township No. 1 north, range No. 15 east, M. D. M., together with the mines of gold therein contained. In witness whereof, the party of the first part has hereunto set his hand and seal this day and year,” etc.

On the same day, Joseph Hocking sold and conveyed to John Rocca the land which is described in the foregoing deed, reserving therefrom the rights which had been granted by the deed to Anderson, in the following words:

“Less the right to enter on said land, and to prospect and mine for gold, if any be hereafter discovered thereon, this day granted to J. W. Anderson.".

On April 23, 1896, Antonio Ciceroni, who had succeeded to the interest of John Rocca, commenced the present suit against the personal representatives and widow of John W. Anderson to quiet the title of the complainant to the said property. The complaint alleged that the complainant was the owner of, and in the possession of, said real estate, and that the defendants, without right or title,

claimed an estate or interest therein adverse to him. The defendants, answering the bill, set up their rights under the conveyance from Hocking to Anderson. Upon the testimony taken upon the issues, the court decreed that the complainant was the owner of the premises, and that the claims of the defendants were invalid and without right.

Upon the appeal to this court, the jurisdiction is challenged upon the ground that the transfer to Ciceroni was collusive for the purpose of conferring jurisdiction upon this court. It was shown that Ciceroni was an alien, and as such entitled to bring a suit in the United States court, whereas his grantor was a citizen of California, and had no such right. It was shown, moreover, that Ciceroni was a laborer, without means; that the price which he agreed to pay for the land was $600, of which he paid but $10 in cash, giving his note and mortgage for $590; and that the true value of the land was in the neighborhood of $1,800. We think that the evidence falls short of showing that the transfer was not an absolute conveyance. There is no evidence whatever that any right was reserved to the former owner, or that there was an understanding or agreement that the property was to be reconveyed to him. Much reliance is placed on the fact that the evidence shows that the complainant did not know that the suit had been commenced until two weeks after the bill was filed; but this is undoubtedly a mistake in the testimony. When he testified that he did not know, when he bought, that suit had been brought, be evidently meant that he did not know of the adverse claims against the title; for it appears that the bill was signed and sworn to by the complainant in person. The fact that the price which he agreed to pay for the land was less than its value may be accounted for by the fact that the title was beclouded by the defendants' claim. The title was uncertain, and was about to be involved in litigation.

It is contended, also, by the appellants, that it is not shown that the value of the subject in controversy is sufficient to confer jurisdiction. The bill alleged that the value of the land exceeded $2,000. The testimony of two witnesses was taken to show this. One testified that it was worth $2,500. The other testifica, in substance, that, owing to the possibility that a certain ore vein on neighboring premises extended through the premises in controversy, the latter had a speculative value of $2,500. No evidence was taken to contradict these witnesses. We think this evidence is sufficient to show that the value is as alleged in the bill. But it is urged that the subject in controversy is not the whole of the real estate, but only the interest therein which was conveyed to Anderson, and that no evidence was taken, and the court is without information concerning the value of that interest. If the interest so conveyed to Anderson were confined to any defined portion of the real estate, there can be no doubt that the matter in controversy would be limited to that portion, and the value thereof would be the amount involved. But the rights granted under the deed to Anderson cover the whole of the land. No portion of it is exempt from the privilege of right of way, and the right to prospect and mine, which he thereby acquired. Such being the case, the claim of the defendants affects the right of

the complainant to the enjoyment of the whole of his estate. In a suit to quiet title, or to remove a cloud therefrom, it is not the value of the defendant's claim which is the amount in controversy, but it is the whole of the real estate to which the claim extends. It would be impossible, for instance, to estimate the value of an interest claimed under a forged or fraudulent instrument. It is the property to which such an instrument relates that is the subject of the controversy. In Smith v. Adams, 130 U. S. 175, 9 Sup. Ct. 569, the supreme court said:

"Thus, a suit to quiet the title to parcels of real property, or to remove a cloud therefrom, by which their use and enjoyment by the owner are impaired, is brought within the cognizance of the court, under the statute, only by the value of the property affected. Alexander y. Pendleton, 8 Cranch, 462; Piersoll v. Elliott, 6 Pet. 95; Stark v. Starrs, 6 Wall. 402; Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495."

The decision of the case upon its merits involves the construction of the deed from Hocking to Anderson. What is the nature of the rights which were conveyed by that instrument? The appellants contend that the clause, “together with the mines of gold therein contained,” is to be read as a portion of the subject granted, and that it imports a grant of all the mines of gold in the premises described in the deed. Upon consideration of the whole instrument, and not unmindful of the rule that the words of a grant are to be construed most strongly against him whose words they are, we think that the clause referred to is intended to be a portion of the description of the premises over which a right of way is granted, and not a grant of the mines of gold therein. There are in the first part of the deed a bargain, sale, and conveyance of the right to enter upon the lands for mining purposes only, and to prospect and mine the same. Then follows the provision that the prospecting and mining shall be done with as little damage as may be. Then it is provided that, "for the purposes aforesaid," a right of way is granted "across the tract of land hereinafter described.” The words, "together with the mines of gold," etc., are a portion of the description of the land across which the right of way is given. They follow the description, without break or punctuation, and belong to the clause which begins with, "Said tract of land being situate," etc.

It is contended by the appellee that the clause,"if he should discover any gold suitable for mining," imposes a condition upon the rights of the grantee, and renders the deed a conveyance upon condition subsequent, and that, inasmuch as no such discovery was made within a reasonable time, he acquired only a personal license. We do not think, however, that those words create, or were intended to create, a condition of the grant. As they are used, they are superfluous words, and mean no more than that the right granted may be exercised by the grantee at his will. He was authorized in any event, and at all times, to prospect for mines on the property; and he was authorized to mine quartz, if he should find any suit. able for mining. Of its suitableness for mining purposes he was to be the judge. His right to continue to prospect was not to depend upon his success in finding ore suitable for mining. In that respect it resembled a profit à prendre, of hunting or fishing, which is a cor

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