Iron Silver Min Co v. Mike Starr Gold Silver Min Co

• Decision Date: 29 February 1892
• Docket Number: 3,Nos. 2,s. 2
• Citation: 12 S.Ct. 543,143 U.S. 430,36 L.Ed. 201,143 U.S. 394
• Parties: IRON SILVER MIN. CO. v. MIKE & STARR GOLD & SILVER MIN. CO
• Court: U.S. Supreme Court

143 U.S. 394

12 S.Ct. 543

143 U.S. 430

36 L.Ed. 201

IRON SILVER MIN. CO. v. MIKE & STARR GOLD & SILVER MIN. CO.

Nos. 2, 3.

February 29, 1892.

[Statement of Case from pages 394-398 intentionally omitted] On the 20th February, 1885, plaintiff in error, plaintiff below, filed its complaint in the district court of Lake county, Colo., in which it alleged that on the 1st day of January, 1884, it was the owner and in possession of a certain tract of land, known as the 'William Moyer Placer,' consisting of 56.69 acres, the particular description of which was given; and that on the 1st day of December, 1884, the defendant wrongfully entered upon said premises, and ousted the plaintiff from possession thereof, and still wrongfully retained such possession. The defendant answered that the patent for said placer was issued on the 30th day of January, 1880, and contained the following reservation: 'That the grant hereby made is restricted in its exterior limits to the boundaries of the said lot No. 300 as hereinbefore described, and to any veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, which may have been discovered within said limits subsequent to the date hereof, and not claimed or known to exist at the date hereof; second, that should any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, be claimed or known to exist within the above-described premises at the date hereof, the same is expressly excepted and excluded from these presents.'

It also alleged that at the time of the location of the placer claim and the survey thereof, and at the time of the application for patent, there was a known lode, vein, and deposit of mineral within the boundaries of said placer, called the 'Goodell Lode,' and that the patentee had knowledge of its existence. On the application of the plaintiff the case was removed to the federal court, and there a replication was filed denying the existence of any known lode or vein at or before the issue of the patent. The case was tried before a jury in November, 1885, which trial resulted in a verdict and judgment for the defendant, and thereupon the plaintiff brought the case here on error.

Mr. Justice FIELD, Mr. Justice HARLAN, and Mr. Justice BROWN, dissenting.

Ashley Pond, L. S. Dixon, E. O. Wolcott, F. W. Owers, and James McKeen, for plaintiff in error.

T. M. Patterson and C. S. Thomas, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

This and two kindred cases have been before us for consideration for some time. They have been twice argued, the reargument having been ordered by the court of its own motion; and on the second argument, at the like instance, very elaborate and complete models, maps, and photographs were prepared by the respective parties and presented for our examination. The fact is there was an earnest inquiry as to whether the court had not erred in its prior and repeated ruling that a known lode, as named in section 2333 of the Revised Statutes,¹ is something other than a located lode; and also whether, in view of the disclosures made in this, as in prior cases, of the existence of a body of mineral underlying a large area of country in the Leadville mining district, whose general horizontal direction, together with the sedimentary character of the superior rock, indicated something more of the nature of a deposit like a coal bed than of the vertical and descending fissure vein in which silver and gold are ordinarily found, it did not become necessary to hold that the only provisions of the statute under which title to any portion of this body of mineral, or the ground in which it is situated, can be acquired, are those with respect to placer claims. Of course, such conclusions would have compelled a revising of some former opinions, and have wrought great changes in the status of mining claims in that district. Because of this we have been very careful, and the investigations in these directions have been earnest and protracted. It would serve no useful purpose to state all the arguments which have been advanced and considered by us. It is enough to announce the results. Our conclusions are, first, in respect to the matter of the known vein, that the reasons so clearly stated by Mr. Justice FIELD, speaking for the court in the case of Noyes v. Mantle, 127 U. S. 348, 353, 8 Sup. Ct. Rep. 1132, are unanswerable, and forbid an adjudication that the term 'known vein' is to be taken as synonymous with 'located vein.' and compel a reiteration of the declaration heretofore made,—that the term refers to a vein or lode whose existence is known, as contradistinguished from one which has been appropriated by location; and, as to the other matter, that the title to portions of this horizontal vein or deposit, 'blanket vein,' as it is generally called, may be acquired under the sections concerning veins, lodes, etc. The fact that so many patents have been obtained under these sections, and that so many applications for patents are still pending, is a strong reason against a new and contrary ruling. That which has been accepted as law and acted upon by that mining community for such a length of time should not be adjudged wholly a mistake, and put entirely aside, because of difficulties in the application of some minor provisions to the peculiarities of this vein or deposit. With this explanation of the reasons for the long delay in the decision of this case, we pass to the special matters in controversy.

The questions presented by the pleadings to be tried were whether there was a vein or lode within the territorial boundaries of the placer; and, if so, whether it was a known vein or lode, within the meaning of section 2333. The plaintiff, to maintain its case, offered in evidence simply its patent and other matters of record, together with parol proof of boundaries. By this record evidence it appeared that the application for the placer patent was made on the 13th of November, 1878; that entry and payment were on the 21st of February, 1879; and that the patent was issued on January 30, 1880. The location certificate of the Goodell lode was dated March 10 and recorded March 11, 1879, reciting a location on February 1, 1879. After the introduction of this testimony the plaintiff rested, and by it a prima facie title to the whole placer claim was established. The location of the Goodell lode was some months after the application for the placer patent. The defendant, to maintain its claim, offered the testimony of several witnesses, testimony which established beyond any doubt that in 1877, and more than a year before any proceedings were initiated with reference to the placer patent, the grantors of defendant entered upon and ran a tunnel some 400 feet in length into and through that ground which afterwards was patented as the placer tract, and that in running such tunnel they intersected and crossed three veins, one of which was thereafter, and in 1879, located as the Goodell vein or lode. The vein thus crossed and disclosed by the tunnel was from 75 to 78 feet from its mouth, of about 15 inches in width, with distinct walls of porphyry on either side,—a vein whose existence was obvious to even a casual inspection by any one passing through the tunnel.

With this general statement, we notice the two or three matters which are the special objects of contention; and, first, it is said that the court erred in giving this instruction:

'If there was a lode in that territory, and it was known to Moyer as an existing lode at this time,—and by this time I mean the 1st of February, 1879, or at the time these locations were said to have been made,—and the lode had been previously discovered by the locators of these claims, then the placer patent is not sufficient to convey them. In other words, they are excepted by the terms of this statute from the provisions of the patent, and the owners of that title now have no right to them.'

In other words, the court ruled that if the vein was known to the placer patentee at or before entry and payment, although not known at the time of the application for patent, it was excepted from the property conveyed by the patent. Into this ruling the court was doubtless led by the language of the patent, which in terms exempts all veins or lodes known to exist at the date thereof,—that is, the date of the issue of the patent. In this respect there was error. The time at which the vein or lode within the placer must be known in order to be excepted from the grant of the patent is, by section 2333, the time at which the application is made. Its language is: 'An application for a patent for such placer claim, which does not include an application for the vein or lode claim, shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim.' Mining Co. v. Reynolds, 124 U. S. 374, 8 Sup. Ct. Rep. 598; U. S. v. Mining Co., 128 U. S. 673, 680, 9 Sup. Ct. Rep. 195. There was therefore a technical error in this instruction of the court, but one which obviously wrought no injury to the substantial rights of the plaintiff, because there is not a scintilla of testimony, a suggestion even, that between the year 1877 and the time of entry and payment there was any work done or discovery made on the placer ground in respect to the Goodell lode or in the tunnel. Everything that was done had been done in 1877; everything that was known at the time of the patent was known in 1877; so that the error of date in the charge was one not affecting the substantial rights of the plaintiff. If at the time of the entry there was a known vein, there was the same vein and the same knowledge in 1877, and before the application.

The second matter is this: Was there a known...