
    COPPER STATE MINING CO. v. KELVIN LUMBER & SUPPLY CO. et al.
    (No. 184-3222.)
    (Commission of Appeals of Texas, Section B.
    Feb. 23, 1921.)
    1. Mines and minerals <&wkey;27(l) — Where plaintiff holds government claim by a valid location, others cannot gain right of possession.
    Where mining claim was located on United States government land, and plaintiff was in present possession by virtue of a previous valid location with which it was connected by a regular chain of transferees and proof of requisite annual exploration work, the subsequent effort of others to locate thereon was absolutely void and insufficient to support a claim of good faith or carry any right of possession and they were naked trespassers.
    2. Mines and minerals <&wkey;38(20) — Forfeiture of claim can be established .only by proof of failure to perform work requisite to continue location.
    Forfeiture of a mining claim on government land can only be established on clear and convincing proof that the former locator has failed to have the -work performed or the improvement made in the amount requisite to continue his location.
    3. Mines and minerals <&wkey;29(3) — Perfecting of claim on government land is tantamount to a grant of present and exclusive possession.
    Where the location of a mining claim on United States government land has been perfected, it is tantamount to a government grant of present and exclusive possession.
    4. Mines and minerals <&wkey;27(l) — After claim is located according to law, the government is foreclosed from dispositon of land to subsequent locator.
    Where a mining claim has been located on government land according to law, it belongs to locator or his assigns, and the government’s power of disposition to a subsequent locator is foreclosed in the absence of dear and convincing proof of former locator’s failure to perform work or make improvements in obedience to law.
    Opinion of Supreme Court.
    5. Courts <@=»7 — Action may be brought in one state for minerals unlawfully severed and converted in another.
    A suit to recover minerals unlawfully severed and 'converted in another state or the value of such minerals, where 'the petition is an independent cause of action for conversion distinct from that for trespass to the land, will lie in this state, and this right is not abridged or destroyed because it may be necessary to allege and prove right of possession.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by the Copper State Mining Company against the Kelvin Lumber & Supply Company and others. Judgment for plaintiff, and defendants appealed to the Court of Civil Appeals, which ordered the action dismissed (203 S. W. 68), and the plaintiff brings error.
    Judgment of the Court of Civil Appeals reversed and the cause remanded to that court.
    Jno. B. Wright, of Tucson, Ariz., and F. E. Hunter, of El Paso, for plaintiff in error.
    Riley M. Reed and Davis, Goggin & Harrington, all of El Paso, for defendants in error.
   SADLER, P. J.

This suit originated over a claim of title to ore which had been mined in Arizona and shipped into Texas for smelting. Plaintiff and defendant in error are both Arizona corporations. The plaintiff sued to recover the ore, or its value, and incidentally alleged that it had been mined in Arizona by Kidder and Burns from a claim owned by plaintiff; that defendant company had purchased from them and had delivered the. ore to a smelting company at El Paso, in the state of Texas.

The real issue presented by the pleading of the plaintiff and the reply of the defendant had relation to the title and ownership of the mineral, and the remedy sought to be enforced was a recovery of the property or its value. From a judgment for plaintiff, the defendant, Kelvin Lumber & Supply Company appealed;

The Court of Civil Appeals, 203 S. W. 68, first held that no error had been committed, and affirmed the judgment. On motion for rehearing, however, it set aside its former judgment of affirmance, and ordered the cause dismissed for want of jurisdiction in the Texas courts to hear and determine the action. It was held that the cause of action was not transitory, but that it involved the determination of the title to the mining claim, and, for that reason, the suit could not be maintained in the state court.

The opinion on rehearing is based upon the proposition that Kidder and Burns were not naked trespassers, but that they were in possession, holding peaceably and adversely the claim under a subsequent good faith location made by them.

We think it Unnecessary to add to the statement given in the primary opinion by the Court of Civil Appeals, further than to say: The trial court found that the plaintiff was the prior locator of the mining claim from which the ore had been extracted, and that it had performed the necessary work required as a condition subsequent-'to continue their present possession under the mining location.

The only evidence of a location in accordance with the mining laws of Arizona is that made by the plaintiff, to which it connects itself by regular chain of transfers and proof of the requisite annual exploration work, so as to give it the right of possession when Kidder and Burns endeavored to file. ■

The Court of Civil Appeals does not find against this finding of the trial court.

A suit for the recovery of personal property or its value may be brought in this state for minerals unlawfully severed and converted in another, where the petition is upon an independent cause of action for conversion of the personal property, distinct from that for trespass to the land. This right in our state- courts is not abridged or destroyed because it may be necessary in such an action to allege and prove right of possession to the mining claim located in the other state. 7 R. C. L. p. 1059, § 96; Ophir Silver Milling Co. v. Superior Court, 147 Cal. 467, 82, Pac. 70, 3 Ann. Cas. 340; Brady v. Brady, 161 N. C. 324, 77 S. E. 235, 44 L. R. A. (N. S.) 279; Notes 44 L. R. A..(N. S.) 267.

The land upon which the mining claim, in this instance, is located, belonged to the United States government, and at the time Kidder and Bums entered upon the claim, the plaintiff was in present possession by virtue of a previous valid location. The subsequent effort of Kidder and Burns to locate on the claim was absolutely void, and was not sufficient to support a claim in good faith, or to carry with it any right of possession. Belk v. Henry Meagher, 104 U. S. 279, 26 L. Ed. 735.

The court holds in the last cited case that—

“Mining claims are not open to relocation, until the rights of a former locator have come to an end. The right to the possession comes only from a valid location. If there is no valid location there can be no possession under it.”

In this view, Kidder and Burns were naked trespassers.

The forfeiture of a mining claim can only be established upon clear and convincing proof that the former locator has failed to have the work performed or the improvement made in the amount requisite to continue his location. Hammer v. Garfield Mining & Milling Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964.

Where the location of a mining claim upon land the title to which is in the United States government has been perfected, it is tantamount to a grant from the government of the right of present and exclusive possession. Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. 651, 38 L. Ed. 532.

After a mining claim has been located according to law, it is the property of the locator or his assigns, and the power of the government to make disposition to a subsequent locator is foreclosed, in the absence of clear and convincing proof of failure of the former locator to have work performed or improvement made in obedience to legal demands. Noyes v. Mantle, 127 U. S. 348, 8 Sup. Ct. 1132, 32 L. Ed. 168; Hammer v. Mining & Milling Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964.

We are therefore of the opinion that the judgment of the Court of Civil Appeals, dismissing this cause, should be reversed, the cause remanded to that court for disposition upon the other assignments, and so recommend.

Opinion of Supreme Court.

PHILLIPS, C. J.

We approve the holding in the-report of the Commission of Appeals, that the District Court of El Paso County had jurisdiction of the cause. We regard the decision of other questions as unnecessary on this appeal, and therefore express no opinion upon them.

The judgment of the Court of Civil Appeals is therefore reversed, and the cause remanded to that Court. 
      —nffnr other cases see same topic and KEY-N UMRER in all Key-Nnmbered Digests and Indexes
     
      igzsjFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes-
     