STEPHEN SPENCER and HARTWELL PRATT v. JOHN WINSELMAN and JOHN R. CLOW, 42 Cal. 479

By the Court, Wallace, J.: Spencer and another brought an action against Winselman and others for the recovery of certain mining grounds, alleging themselves to be owners and entitled to the possession of the premises sued for.

The defendants answered, denying the ownership of the plaintiffs, and alleging themselves to be the owners, and entitled to the possession of the premises. ■ While the cause was pending upon these issues, the parties stipulated in writing to submit the cause to arbitration, and the stipulation was entered as an order of Court pursuant to the statute. (Practice Act, Sec. 382.) An award having subsequently been made, and judgment entered in the judgment book pursuant to the statute, the defendants moved to vacate it upon several grounds, and, among others, upon the ground “that the matters, issues, and questions' submitted to arbitration by said agreement, and actually submitted to said arbitrators by the parties, involved questions of title to real property in fee and for life,” etc.

The motion having been sustained, this appeal is taken. The statute (Pr. Act, Sec. 380,) provides, in substance, that any controversy which might be the subject of a civil action, may be submitted to arbitration, “ except a question of title to real property in fee or for life.” In Merritt v. Judd, 14 Cal. 61, the question was before this Court as to the nature of the tenure by which mineral lands in this State were held.

It was urged, in argument, that the occupant of a mining claim is not thereby the owner of a freehold estate in the premises, and not being such owner had, consequently, no right to the fixtures there in controversy, but that the Federal Government is the owner of the soil. But the Court said: “From an early period of our State jurisprudence we have regarded these claims to public mineral lands as titles.

They are so practically. * * * Our Courts have given them the recognition of legal estates of freehold; and so, to all practicable purposes, if we except some doctrine of abandonment, not, perhaps, applicable to such estates, unquestionably they are; and we think it would not be in harmony with the general judicial system to deny to them the incidents of freehold estates in respect to this matter.” In Hughes v.

Devlin, 23 Cal. 501, the question again came before this Court in an action for a partition, and, in speaking of the tenure by which such property is held in this State, the Court said: “Although the ultimate fee in our public mineral lands is vested in the United States, yet, as between individuals, all transactions, and all rights, interests, and estates in the mines are treated as being an estate in fee, and as a distinct and vested right of property in the claimant or claimants thereof, founded upon their possession or appropriation of the land containing the mine.

They are treated, as between themselves and all persons but the United States, as the owners of the land and the mines therein,” etc. The case of Blair v. Wallace, 21 Cal. 318, relied upon by the* appellant, is not in conflict with these views. The controversy there grew out of a contract between the parties, and did not involve a question of title in the sense of the statute prohibiting its submission to arbitration.

It is not doubted that a party who is the admitted owner of a title in fee to real estate may contract to convey it to another, and that a controversy concerning the alleged performance or non-performance of such a contract may be the subject of arbitration under the statute; and this seems to have been the nature of the controversy submitted to arbitration in the case of Blair v. Wallace. Order affirmed.