McKeon v. Bisbee

Terry, C. J., delivered the opinion of the Court—Burnett, J., concurrring. [142] This was an action to recover possession of a mining-claim, the plaintiff alleging title and prior possession. The defendant set up a title by purchase at a sale under execution. A demurrer to the answer, on the ground that the facts stated constituted no defence, was sustained by the Court below, and a judgment rendered in favor of plaintiff. The question presented is, whether a mining-claim, is liable to seizure and sale under execution. By our statute, “ all goods, chattels, money, and other property, real and personal, of the judgment-debtor, not exempt by law,” is liable to execution. /‘ihppgvty is the exclusive right of possessing, enjoying, and . disposing of a thing; it is “ the right and interest which a man has in lands and chattels, to the exclusion of others;” and the term is sufficiently comprehensive to include every species of estate, real or personal. (17 Johns., 283; 14 East., 370.) ' '"The Legislature have, by a series of enactments, recognized the right of the miner to take and occupy, for mining purposes, a portion of the public domain, and have provided a remedy by action against all who trespass on his possession. “By this appropriation he acquires a vested interest in the exclusive occupation and enjoyment of the land, as against all the world, subject only to the right of the government by whose license and permission his possession was acquired; and his right to protect the property, for the time being, is as full and perfect as if he was the tenant of the superior proprietor for years, or for life.” (Merced Mining Company v. Fremont, April Term, 1857.) He has, in addition to the right of exclusive possession and enjoyment, the right of absolute disposition; and may sell, transfer, or hypothecate, without let or hindrance from any one. Contracts for the sale of such interests have been frequently recognized and enforced by the Courts. We think the interest of a miner in his mining-claim is property, and not having been exempted by law, may be taken in execution. Judgment reversed, and cause remanded for further proceedings.