tor of a tract of mining ground which has been derived through several locations should dispose of the same in parcels irrespective of the lines of such locations, the rights of his grantees would be measured by the terms of their deeds. In such cases section 2336 of the Revised Statutes of the United States has no application. That statute was not intended to limit or define the rights of a person in mere possession of a tract of mining ground where there is more than one vein, or to prescribe the effect of a conveyance by the locator of a claim of a portion of his location containing one of such veins. The object of the statute was to supplement the provisions of section 2332, and to prescribe rules under which different locations by different proprietors should be held, and to determine the rights of such proprietors in case of intersecting veins. At the date of the passage of that act, May 10, 1872, the Carrington claim was and had for many years been held as a single claim, without any adverse claim thereto, and it continued so to be held until the conveyance by Gillis to the plaintiff in 1886. The position of the proprietor of a mining claim who conveys a portion thereof, and retains the remainder, is analogous to the position of the United States after it has issued its patent for a location. As the United States as well as a subsequent locator, holds the unpatented claim subject to the prior rights of the patentee, as prescribed by section 2336, so the grantor of a portion of his claim, in the absence of any reservation in his deed, or proof of mining customs, holds the ungranted portion. subordinate to the rights of his grantee in the ground conveyed. The effect of the deed from Gillis to the plaintiff was to estop him and those claiming under him from questioning the title of the plaintiff to all the gold that might be found in the West vein, within the surface lines of his deed. The gold in controversy was found within the surface lines of this deed, and it was also found within the limits of the two walls forming the West vein, although the place at which it was found is also within the lines of the walls which form the Rice vein. This latter circumstance does not, however, relieve Gillis from the estoppel of his deed, for, as the deed contains no reservation, and as there was no evidence at the trial of any mining customs, effect must be given to the deed according to its terms, by holding that the entire West vein within the surface lines, even though intersected by another vein, passed to the plaintiff. In thus holding, we concede that, when mining ground is conveyed by deed without express limitation, the grantee takes subject to the characteristics of mining property given to it by prevailing customs and laws, and not with the absolute dominion which flows from a conveyance in fee of ordinary land. The mining land thus granted is still subject to all mining laws and customs which are applicable, but the provision of section 2336 that, when two veins intersect, "priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection," cannot possibly be applied to the case where A conveys part of his mining claim to B, for in such a case there is no "prior location." Therefore, in such a case, the ordinary rules which govern grants of land must of necessity apply; and, if the intersection takes place on part of the claim conveyed, the grantee takes all the mineral within the space of intersection. Whether the plaintiff would have been entitled to follow the West vein into the ground retained by Gillis, and to claim the gold found therein, or whether Gillis would have been entitled to any of the gold that might be found in the Rice vein, within the ground conveyed to the plaintiff, are questions which are not involved in this appeal, and upon which we do not express any opinion. All that we hold is that, inasmuch as the gold in question was within the ground conveyed by Gillis to the plaintiff, and in a vein whose apex was within the surface lines of that ground, it belonged to the plaintiff. Certain rulings of the court upon the admission of evidence to show the boundaries of the lands described in the deed from Gillis to the plaintiff are assigned as error; but we are of the opinion that the rulings were correct. The description in the complaint follows that in the deed from Gillis to the plaintiff, and, in addition to giving the length of each side of the ground, designated certain monuments as the corners of the tract conveyed. If these monuments can be ascertained, they will prevail over the designated measurements, and the evidence offered was for the purpose of pointing out upon the surface of the earth the monuments which had been agreed upon in the sale, and which were named in the conveyance. For this purpose the court was authorized to receive parol evidence in order to show the identity of the land so conveyed with that upon which the trespass had been committed. The judgment and order are affirmed. MCFARLAND, J., and VAN FLEET, J., concurred. GAROUTTE, J., concurring.-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. [No. 15828. In Bank.-April 5, 1895.] HARRIET M. FAIRCHILD, RESPONDENT, v. THE LANTS. PUBLIC SCHOOLS OF SAN FRANCISCO-VACATION OF TEACHERS-RULES of Board of EDUCATION.-The board of education of San Francisco may make all reasonable rules regulating vacations and leaves of absence for teachers, but can pass no rules in contravention of the statutory provisions securing to a teacher a position of the same grade and compensation, and a rule that when a teacher returns from her leave of absence, if there be no suitable vacancy, such teacher shall be assigned to the head of the day school substitute class, her compensation for which is much less than that which attached to the grade and position to which such teacher had been elected, is void. APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. The facts are stated in the opinion of the court. William Grant, for Appellant. Horace W. Philbrook, for Respondent. HENSHAW, J.-Appeal from judgment of superior court in mandamus and from order denying a new trial. Plaintiff was, and for more than ten years before the fourteenth day of September, 1892, had been, a principal teacher in the public schools of San Francisco, elected for no definite term. Upon that day she obtained a leave of absence until July 1, 1893. Upon the expiration of her leave of absence she reported for duty, and asked to be allowed to resume the position of principal of the Potrero school, which position she was filling at the time of her vacation. That position had been filled during her absence, by the election of another teacher to it. Her request was, therefore, refused, and she was assigned to the head of the day school substi tute class, under rule 124 of the board of education, which rule, so far as applicable to the case at bar, is as follows: "When a principal or assistant has been employed in the public schools of San Francisco for a period of not less than ten years the board may grant such principal or assistant a leave of absence for a period not exceeding one year, and the teacher to whom such leave is granted shall, at the expiration of the leave of absence, be entitled to a position of the same grade as he or she held when the leave was granted. When a teacher returns from a leave of absence, if there be no suitable vacancy, the teacher shall be assigned to the head of day school substitute class." This rule was in force at the time plaintiff obtained her leave of absence. The compensation allowed teachers in the day school substitute class is much less than that which attached to the grade and position to which plaintiff had been elected. Under this state of facts it is apparent that the case is parallel in its essential features with Kennedy v. Board of Education, 82 Cal. 483. The board of education in regulating vacations could pass no rules in contravention of the statutory provisions. Upon returning from her vacation plaintiff was entitled to enter upon the performance of the duties of a principal teacher, if not in her former school, at least in one of like grade. She was likewise entitled to receive the compensation belonging to her grade. To fill her position by election when she was in the enjoyment of her leave of absence, and to assign her, under less pay, to the substitute class, was but doing in another form what this court declared unlawful when Kate Kennedy, upon her return, was removed to a position in a school of lower grade at less salary. The board of education may make all reasonable rules regulating vacations and leaves of absence; but it cannot provide, as an implied condition to accepting such vacations, that the teacher shall run the risk of forfeit |