*1 REYNOLDS v. IRON MINING SILVER CO.

Syllabus. has been found such It is the' that, clear against party.” upon counter-claim, defendant’s showed that he had no valid of action cause the no valid could against plaintiffs, judgment them. be rendered the the verdict, against Notwithstanding have been for should the the against defendant, judgment the counter-claim of the former. plaintiffs, therefore, are of ¥e opinion, the on cause

The actioro judgment favor of defendant in the should he amd alleged affirmed, plaintiffs’ petition cause on jiodgment defendant, favor of action answer cou/nter-claim,% set his way up hy reversed, should he cause remanded with directions a enter to de- judgment plaintiffs for on the counter-clmm the latter. fendant REYNOLDS & Another v. IRON SILVER MINING

COMPANY. ' ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR- THE DISTRICT OF COLORADO. January 4, Submitted 1886. Decided March 1, 1886. procuring In a placer mine- claim under 2333 of the Revised § Statutes, where claimant is also in of a lode or vein included within the boundaries his both, shall cover if' known, pays he makes this per twenty-five aero for $5 feet on each side (cid:127) per of his and $2.50 acre for the remainder his claim. no vein exist,

Where such or lode is known to for placer claim' carry shall all such veins or lodes may within its boundaries which be after- wards found exist under its surface. But a vein or known to the surface included in such is not patent, possession, in claimant’s and not mentioned in the claim issues, on which the vein or lode remains the" the title such else, States, previously United unless and does not . to some one conveyed pass to the patentee, thereby who acquires no interest in lode. remaining title United States in the veins thus known to exist and referred to in patentee gr,.-ntee claimed and his have - veins,- dispossess any no peaceable possession one in of such latter whether the have not. Term, October isss.

Opinion of the Court. In such ejectment, case the applies rule which to actions of all actions namely,.that recover applies, of real estate can title, strength recover on the his and not on the own weakness defendant’s title.

The facts in the which make the case are stated opinion the court.

Mr. T. M. Patterson, Mr. and Mr. R. S. Mor C. S. Thomas rison for in error. plaintiffs

Mr. G. G. and Mr. for defendant Butler Symes Hugh error. delivered the of the court. opinion Justice Miller

Mr. This is a writ of error to the Circuit Court for the District of Colorado, which here review a of that brings for judgment court in an action to recover of a of a part lode of mineral deposit. the Iron Silver below, plaintiff Mining Company, alleges

that it the owner of was one hundred and ninety-three -fVV (cid:127) aeres of land, United States conveyed by its and seeks to recover of defendants a grantors, of the land part thus It is described patented. petition land mining and a claim. The under which mining claims, which was introduced in evidence, to be purports for placer and it mines, takes two matter to pages printed describe the courses, distances, corners. As the law does not per mit one claim to cover more than acres twenty locating claims, is obvious that under the of this ruling court in v.Co. 104 U. Smelting S. Kemp, 636, a number of claims, these at least to ten, have amounting been consolidated into one which was issued to "Wells and Moyer, the patentees. The defendants below

. asserted a the vein or deposit in working claims called Crown Point Pinnacle claims, which were older than that of plaintiff. MINING CO. IRON SILVER v.

REYNOLDS Court. oí'the Opinion defence in- also out another Defendants following set language: “ That at the entry, time survey, patenting .the lode, vein, certain said Wells Moyer deposit carbonates lead and other rock carrying place, quartáror lode,- called Pinnacle value, and of ore, silver-bearing great like a certain lode, carrying minerals deposit, or. and claimed to exist within the were known value, great of said boundaries and surface underneath^the fact vein or lot No. and that that such veins 281, survey were claimed to and did within exist aforesaid said was" of said claim at all tne premises known patentees times hereinbefore mentioned, and application'for. said claim the vein or so said veins known-to exist were not issued included, were, And- further, excluded therefrom. application, expressly *3 in the said it was and in terms.reserved, expressly the in and premises the by patent conveyed might, by such vein or lode of proprietor or other in rock quartz or place, mineral ore as bearing aforesaid, be entered for the.pur and pose ore from such extracting removing’the lode, or should the same or deposit, thereof be found to any part or penetrate, intersect, into the pass through, dip premises by such patent granted.”

The case was tried and a by verdict rendered lor jury; under a plaintiff, the such a charge court, required verdict at their hands.

The case be here must decided on the correctness of the action of the court in in and giving chargé, refusing . instructions defendants give asked by

The full of the court, which was charge to, duly excepted as follows: “ The evidence tends to that the lode in was prove controversy known to Wells and of the Moyer, at States, United grantees the time made -for the they application placer patent, claims title; also that William Ik Stevens, one of the of Wells and and a of the grantees Moyer, grantor plain tiff, of the existence of knew the lode time at the application

VOL. cxvi—4á 69Q TERM; OCTOBER

Opinion of Court. was made Wells and for the Moyer placer patent,, procured such; .to with a view made title to acquiring b.e his, himself and associates to described, and territory prob and with a view intention title to the lode now ably acquire in in this action. to have Assuming placer patent dispute been with obtained intention on the of the knowledge part is, whether stated, patentees, in 'question any right terest theTod'e in was in controversy .by conveyed patent. That is a of some when difficulty presented by oq' behalf of one who has shown some interest the lode, right or an-Intention to claim the same to local law according the acts of But here the defendants show no Congress.. right or title lode assume place controversy. They to follow the lode on its without the side line right dip and, the Pinnacle under the location, Wells and Moyer placer n To that it is essential that location. have the top apex within their location direction of the general A small location. lode is segment top apex the Crown Point but it location, within extends not with shown but across so location, it, as to convert the. side length claim lines, lines of the into the end and to limit the direction in which it be to the enclosed may pursued those space lines. The within the not’ side lines of place controversy either of defendants’ within the locations,'nor extensions of those other lines. No which defendants ground perceived upon title or assert in contro may right place be intruders, therefore are to as naked versy, regarded to such intruders, plaintiff’s placer may give (cid:127) advised to find recovery. .jury is with value the ore from the removed plaintiff, *4 defendants.” ground by

This was delivered to the after a refusal to charge jury give asked of the instructions defendants: any following to “1. A claim does not title to vein placer pass any to or lode then known or claimed exist.

“(cid:127) lodes, or 2. If the Pinnacle and Crown Point their vein it is defendants have followed into the alleged upon the Wells and were known at time of Moyer placer, -ground CÓ; MINING IRON «. SILVER REYNOLDS of the Court. Opinion vein the was not then granted issue of Wells.and patent, Moyer in, the and the Wells and Moyer patent, was from) (or excepted recover. is not entitled to. . plaintiff “ title.' .his own recover on must strength 4. The plaintiff the If plaintiff the vein not conveyed difference whether it no then makes under which n recover cannot not; or the defendants have plaintiff title. defendants’ on the weakness of from the believe the evidence If the plaintiff’s jury “ of the Wells the of the locations entry at. time and grantors, reason to knew or had presume and Moyer placer or of ore carrying precious underneath was deposit then the excepted, in rock in same specially metals was place, was never of their and property, from grant patent, from been excluded or its having grantors, plaintiff can be committed no trespass government; grant recover, cannot if thereon against plaintiff, was the vein so the vein upon trespass alleged cannot recover. known, then plaintiff “ federal 6. It intention of the was not the government title to known claims to obtain owners of permit the same or veins mineral ore lodes by embracing appli-. unless claims to such specially cations desig patents The in-a nated as lode-veins exceptions applications. most are be construed patentees, 'strongly but also those- include not known, and the lodes exceptions within the date of if, to exist at the claimed patent; therefore, believe the evidence that you deposit within the boundaries of the Wells and claims was Moyer placer valid known, was claimed subsisting grounds therein at time date of application, entry, whether it is then defendants or of the property for in e Tent immaterial, either there has been no government to its ousting injury property, you find for should the defendants.” conflict in between instructions asked principle and those the court is dis-

refused marked given by easily case. cerned, presents only question *5 ' 692" OCTOBER' TERM,

Opinion of the Court.' Its fourth of the primary presented by form.is defendants’ “ that must recover on namely, bequests, plaintiff strength his title.” of own This is the fundamental on which principle all of' actions or actions to recover ejectment of possession real estate rest. Even recovers on plaintiff proof in it is because the absence possession, -priority title any else this is evidence of a title one in in I? any plaintiff. there the rule that in an to action to recover any exception posses- must sion of land the recover on the plaintiff of his strength own and that the defendant in can title, lawfully say until no show some have to title, you you disturb right itme, has not out to us. been pointed n of this remainder fourth was a further prayer statement “ the same rule as case hand. If the vein applied is not to conveyed plaintiff by which it no difference claim, then makes whether they defendants .have title or cannot not; recover on the any title.” weakness defendants’ n There not in the record or claim of any pretence title in out that plaiptiffs to except growing Wells placer patent If that no title Moyer. gave controversy had none. There no assertion plaintiffs them of prior or claim to that vein, nor discovery, possession, other it, than that is found beneath the right surface of this patent. While court refused to he did give instruction, in- that the struct the defendants were naked jury trespassers, “ as to such that, added intruders the plaintiff’s placer might He had right recovery.” give previously be a would said some a case difficulty had shown some or interest where defendants in the lode right claim the same or an intention local laws and according If this the acts of made difference defend- Congress. ants’ then it to us appears “ did to claim the an intention locus show ac- quo and the acts of local laws were cording Congress,” Point and claims, under the Crown Pinnacle working the vein on and were established, legally pursuing v. IRON MINING CO. REYNOLDS SILVER Opinion oí the Court. But court held that evi- were located.

these claims *6 it when it out of dence showed they pursuing passed side It the claim instead of the lines. would lines of the end as this to be sufficientto enable that such seem ought of its title. to the upon proof them plaintiff put court in affirms to that the effect the however, It is fair, say for a mine the (this doctrine that gives patent) under its to or lode known surface, title to a vein the though time of assertion of claimant the' patentee' original of to the and issue and not disclosed claim land patent, claim, in the or mentioned officers, patent, original not a title. one having superior the lode in evidence tends to The court says prove of to Wells and was known Moyer, grantees controversy at the for the United time made States, application also that Stevens, under claims a. title, Wells and and of knew of' of Moyer grantee grantor plaintiff, was made the existence of the lode at the time the application with made, for to be patent, procured the intention to title to the lode now in dispute. acquire the court

Yet, while the is not mentioned patent, held that for the of this suit the title to it was conferred purposes that instrument. by to,

It us to the that such is appears proposition opposed of the acts of rules which it the' different policy Congress in lode, to to titles mines, applies granting statute; fissure and to of the mines; express language the reservations itself. an of

It is not further than examination necessary go lands 6 of the Revised Statutes concerning public Chapter of 10, act is 1872, see this difference. An May Congress citizen ac which the foundation of the system existing to the lands United States containing quires right to 2336 found in its are metals, provisions precious §§ inclusive. if not 2328, exclusively, relate' sections, mainly, These toup § and, fix or veins, other.things,

to mineral lodes among be quantity land amount or which may acquired TERM, 69é ÓCTÓBER oí the Court. Opinion one the maximum of feet its along length n 300' feet in width on each side of to further limi it, subject tations under acts and the State rules legislatures, district. The for this when price- sought five dollars as measured acre, the surface lines of the' per and these lines must conform the course necessarily of.-the vein and The owner of surveys. Congressional one these veins follow it outside of the may perpendicular extension the side lines of the but not outside of its end lines.

Placer claims, with declared 2329, are to include beginning § all' other forms mineral veins deposits, except quartz other rock be entered on similar place, may proceedings as those for vein or lode claims. The provided surveys these shall conform as near as be to may Congressional surveys, include each acres may claim.twenty area, superficial *7 but,when the location cannot be made conform.to sub legal be made as lands. division, may upon unsurveyed The most of the law reference to the mat- important part ter'in hand is found the Revised which Statutes, § is as follows: “ Sec. 2333. Where the same association or person, corpora- a tion is in and claim, also a vein or placer included within boundaries thereof, shall be application a made for for the with the claim, statement placer that it or lode, includes such vein and in such case a patent shall issue for the claim, placer subject provisions such vein or chapter, lode, including five payment dollars acre for claim, such vein or lode and per twenty-five of surface on each side thereof. The remainder of feet claim placer claim, placer embracing any lode claim, shall be for at the rate two dollars paid cents acre, with all costs of fifty per together proceedings;' and where a vein or lode such as is described in section twenty- three hundred and is known to exist within twenty the boun- daries of a an a for such application hncl which does not .placer include an for the vein or lode shall be construed as conclusive declaration MINING

REYNOLDS v. IRON SILVER CO. (cid:127) Opinion of the Court. claim has no the claimant posses-

.that claim; or lode sion-of the vein the existence of a in a claim is not vein or lode known, for the shall ‘all valuable mineral and claim other de- convey boundaries within the thereof.” posits of the act of These Congress varying provisions regards and their the two classes are of mineral deposits surroundings difference their character. founded ofisthe well known in 2.320are loads or mentioned found the.sur veins, fissures § in the case of the and defined rock, are described rounding decided others, Iron Silver Co.v. Cheesman recently Mining said the stat in this court, ante, mines, Placer by though are those .ute to include all other mineral matter, deposits which this mineral is found softer material generally which and not the rocks be surface, covers the earth’s among one is made available this vein neath. The by following into in the bowels of the earth, its case stony detaching it to surface, it to the melt crushing, bringing subjecting which the metal is other ing, by precious separated processes from the ore of it is a In the the more usual other, part. is to take the soft matter in which the way earthy particles mineral are filtration the one loosely separate mingled, from the other. considered that It is clear very Congress than the vein of was more valuable mineral-bearing quartz and it when a surface placer deposit, accordingly, latter Avas fixed the of the former at and of the asked, $5 price area of the acre, as $2.50 per superficial represented reason limited the It also for the same surATey. quantity from the claimant could obtain former, gov single *8 than half of what he could ob ernment some to less cases, tain of the latter. counsel, in was not re done, by special suggested

This source, to the revenue government gard mineral too much of this rich into public falling prevent to the exclusion of the hands of others. one successful explorer, of But that both these classes mineral had shown experience of the same be found within survey superficial deposits might for section such a area; makes specific provision TERM, (cid:127)OCTOBER 1885. Opinion of the Court. ease.' There was no a in base of for a difficulty lode or for this must both the include surface necessarily which it was and the vein it. measured, beneath But in the case of a mine whose there placer deposits superficial, be under it a of far more value than the might twenty of acres mineral. surface

A man of the existence of a vein, who could, cognizant if to it a he established his secure a lode, limited right if he it, claim, could cover with a would part there- placer increase the vein over what he could quantity get by a claim, lode double the amount, cases, some making State or local laws, he regulated by might quadruple it. also had to deal with the that a vein Congress possibility be discovered under the of a surface might claim after placer the claimant had his received patent.'

What did, do, intended Congress the presence these is, we It made think, very plain. suggestions, provision for three distinct classes of cases: for a When is at the time in placer applicant jxatent included of a vein or lode within the boundaries of possession fact, his he shall state that and on claim, payment the sum for a vein claim feet-on each twenty-five required side for the it, acre, $5 $2.50 remainder of the per his shall cover both. ’ 2. It where no enacted that such vein or lode is known to ex- ist at the time the a for, applied claim shall all valuable mineral and other carry deposits be found xvithin the boundaries thex-eof. may.

3. But ixxcase where the for the applicant placer patent not in of such lode or vein within the boundaries his but such vein exist, is known it is not referred to or xnentioned in the claim or then the shall he construed as conclusive declaration claimant mine has no the vein claim.

It is this latter class of cases to which the one before us be- longs. " ” It not be to define the words easy known to may *9 CO. MINING v. IRON SILVER

REYNOLDS Opinion of Court. must be to the

this Whether this traced act. knowledge apply it sufficient that it was cant for the whether is what kind evidence is known, necessary generally of It we here is need not prove perhaps -knowledge, inquire. better be decided as arise. that these should they questions not court all this kind here, do arise because the took They from on evidence that defendants were jury ground trespassers. said,

-It was there that the evidence charge, known to exist vein was when the was made by. Wells and but that knew and that one of Moyer, it, Stevens, knew and interest,. it, parties procured applica- tion be made for the with the intent secure placer patent this lode. There was here no question sufficiency character of the as to the existence testimony knowledge but it was told that was all immaterial be- jury cause in event the carried the any patent against’ n defendants. itself declares that it subject following -conditions: it That is restricted to lodes, veins, or other mineral- which are not claimed or known quartz, at the

bearing date of the patent.

2. That should such vein or lode be claimed or known premises to exist within the described at the date of the patent, the same is excluded from it. expressly

It is said that this is void because there part was no law which authorized its because it insertion, with conflict of the claimant of mine rights the acts Congress. on

Without effect deciding acceptance .without of a with such clause, protest exceptions granting their insertion act of the officers who voluntary instrument, execute the is sufficient to that these condi- say tions the intent of the statute. give expression

We are meant that lodes and veins opinion Congress to exist known when the was asked for should be ex cluded as much if were described grant 1885, TERM, OCTOBER

Dissenting Waite, Opinion : C. J. It clear terms. was not intended to remit the their *10 title raised to be some one who had or a better by. might get. assert no but to that title title, in such passed by patent case from the United It States: remains in the United States at the time of the it issuing the. case. do'es not He takes his surface land and pass patentee. his mine, such lodes or veins of mineral matter within it were unknown, but to such as were known to exist he no whatever. The title gets by right remaining in his the United to this States, vein, existence grantor, which was he has no known, such interest in it as-authorizes him to disturb one else in the any and- peaceable possession of that vein. itWhen is once shown that'the .vein was known to exist at the time he title to the it is placer, acquired vein, shown he no title or interest in that his acquired patent. Whether defendant has or is title, a mere it trespasser, " certain that he is in and that is a sufficient defence possession,

against one has no title never had all, any. who reversed, the Circuit Court is and. the case The'judgment of to that with instructions to set court, rema/nded aside new verdict and trial. grant a Waite Chief-Justice dissenting. Mr.

I am unable this The facts briefly agree judgment. are stated these: The holds under Mining Company for a claim. Within the boundaries as located on the surface extended downwards, vertically is a vein or .lode. The existence of vein or lode was.known when the holds was Company Mining issued, it had it .nor has been located as a then, now, Jiut vein or lode claim. nor has Neither Morrissey Reynolds titló to or claim the lode within the boundaries of the claim. are mere intruders, They having wrongfully, and without worked an law, any authority adjoining claim under the surface claim of the Mining and taken mineral the lode. Company Under 'these to me circumstances seems the Mining Company v: VAN SLYKE.

WATERVILLE Syllabus. com- is not whether has the better . right. vein, the lode or nor it' has the owns whether right pany in- but whether as a mere "take mineral therefrom, better the exr truder it has the right possession.- By 2333 the of Rev. Stat. patent, under/ provision press § it no holds, .company gives or lode claim within the boundaries of the placer patent, - no such claim exists. There is a lode but as yét Quite either to claim it.

no one claimed or attempted has if different arise would Morrissey Reynolds questions to locate a lode claim within the boundaries attempting n placerpatent upon a lode to exist was known when for. In the court applied my charge was-right; opinion should affirmed. and the be judgment *11 v. WATERVILLE VAN SLYKE. -

ERROR THE CIRCUIT COURT OF THE UNITED STATES FOR TO THE KANSAS. DISTRICT OF March January 25, 1886. 1, Submitted Decided review, brought here from a Circuit Court for which.,the When a case is $5000, controversy dismissed, is less than be although' matter will ac- companied by opinion by judges of division of holding a certificate court, presents that certificate proper unless a case for the consideration of this court- layr question present proposition Each so certified must a clear and distinct respond, proposition to which the court and not a of mixed .can law facts. While such a accompany statement must the certificate as to show that case, judges question applicable point on which the dif- law - clearly question fered must be distinct of law stated. where, judges sitting, procedure This is meant to meet a case two a clear arises, law, case on proposition distinct material to the decision which, enable they may make such a certificate as will differing opinion, reality more than one such question. court to If in decide ; occurs, apparent it is they may be embraced in the certificate decision, presented with all its that the ease is to this court whole law, and of not be entertained. propositions of fact ease will Such case, accordingly and it dismissed.