Iron Silver Mining Company v. Reynolds

The defendants' answer sets up three defenses: (1) The first consists of a specific denial of the several allegations of the complaint. (2) The second is this: that at the times charged in the complaint the defendant Reynolds was, and still is, the owner and in the actual possession of two lode mining claims, called, respectively, the 'Crown Point Lode' and the 'Pinnacle Lode,' adjoining on the north the Wells and Moyer placer claim, the veins of which lodes, in their course downward, dip into and underneath the exterior lines of the placer claim; and that in working and following § ch veins the defendant Reynolds, as owner, and the defendant Morrisey, under the license of Reynolds, entered underneath the exterior surface lines of the placer claim, following the veins as parcel of the premises embraced in the survey of their lode claims, and have not otherwise entered upon the premises described or claimed by the plaintiff, or ousted the plaintiff therefrom. (3) The third defense is this: that, at the time of the survey, entry, and patent of the said Wells and Moyer placer claim, a certain lode, vein, or deposit of quartz, or other rock in place, carrying carbonates of lead and silver bearing ore of great value, called the 'Pinnacle Lode,' and a certain other lode, vein, or deposit, carrying like minerals of great value, called the 'Crown Point Lode,' were known and claimed to exist within the boundaries, and underneath the surface, of the placer claim described in the complaint; and the fact that such vein or veins were claimed to exist, and did exist, within said premises, was known to the patentees of the placer claim at the times mentioned; and that in their application for a patent they were not included, but, by the patent issued upon such application, were expressly excluded therefrom.

To the answer the plaintiff replied traversing the defenses set up, and, for a further replication, alleged that at all times charged in the answer of the defendants it has been, and still is, the owner, and in actual possession, of the Rock lode mining claim and the Dome lode mining claim, which adjoin, immediately on the north side, the said Pinnacle and Crown Point mining claims; and that within their exterior boundaries there is a vein, lode, lead, and valuable mineral deposit of quartz, and other rock in place, bearing silver and lead, which, on its dip and downward course, enters into and underlies the land adjoining, a portion of which consists of ground covered by the said Crown Point and Pinnacle lode mining claims; and that any portion or part of any vein, lode, lead, or valuable mineral deposit which is found or developed underneath the surface of the Crown Point and Pinnacle lode claims is a part and portion of the said Rock and Dome lodes, veins, and mineral deposits.

This action was twice tried by the circuit court. On the first trial, the plaintiff below, which is also the plaintiff in error here, obtained a verdict in its favor. Being brought to this court, the judgment was reversed, and the cause remanded for a new trial. The case is reported in 116 U.S. 687, 6 Sup. Ct. Rep. 601. On the present trial, to establish its title, the plaintiff gave in evidence: (1) Three location certificates of the Wells and Moyer placer claim, made on the twenty-third of March, 1878. (2) A certificate showing application for a patent May 16, 1878. (3) A certificate of entry issued July 22, 1878. (4) The patent to Wells and Moyer from the United States, dated March 11, 1879, which contained the following conditions: First, that the grant was restricted within the boundaries 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 thereafter discovered within those limits, and which were not claimed or known to exist at the date of the patent; 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 of the patent, the same were expressly excepted and excluded from it; third proprietors of any vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, for the purpose of extracting and removing the ore from such vein, lode, or deposit, should the same, or any part thereof, be found to penetrate, intersect, pass through, or dip into the mining ground or p emises granted. (5) Deeds of conveyance from Wells and Moyer, the placer patentees, to Storms and Leiter, dated October, 1878, and from the latter to the plaintiff, dated March, 1880. The plaintiff then offered in evidence a patent of the United States for the Rock and Dome lode mining claims, and deeds conveying the title thereof from the patentees to the Iron Silver Mining Company, for the purpose of showing that the lode which, since the issue of the Wells and Moyer placer patent, has been ascertained to dip into and extend within the boundaries of the patented claim, has its top, apex, and outcrop within the Rock and Dome lode mining claims; and of tracing the right to that vein or lode from its top, apex, or outcrop into the territory in dispute in this action. The introduction of this evidence was objected to by the defendants, on the ground that there was no issue of the kind in the pleadings; and the objection was sustained by the court, to which ruling the plaintiff excepted.

On the trial, the defendants, though they gave in evidence their title to the Crown Point and Pinnacle lodes, admitted that they did not rely, in support of their title to the premises in controversy, upon the existence of any apex cropping out within the surface lines of the said lodes, which they could lawfully pursue and hold under their patents. The case was therefore limited to the single question whether the title of the plaintiff under the patent was affected by knowledge of the patentees, at the time of their application for a patent, that a lode or vein existed at the place in controversy within their placer claim. The question as tried was one of knowledge on the part of the placer patentees, or whether the premises in dispute were a known vein or lode, within the exception of the patent.

Section 2333, Rev. St., under which the patent issued, is as follows: 'Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode; and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings; and where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer claim, 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 deciaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but, where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof.'

The evidence offered by the defendants as to the knowledge of the patentees was of a vague, uncertain, and unsatisfactory character. It consisted principally of impressions, beliefs, and inferences on the subject, drawn from loose statements made or theories advanced by the patentees, or persons alleged to to have been interested in the claim, or the supposed motives of their conduct. The court, among other things, instructed the jury that it was unnecessary to state 'what circumstances may be sufficient to affect a patentee with knowledge as declared by the statute; for if, in any case, it appear that an application for a patent is made with intent to acquire title to a lode or vein which may exist in the ground beneath the surface of a placer claim, it is believed a patent issued upon such application cannot operate to convey such lode or vein;' and that 'that intention could be formed only upon investigagation as to the character of the ground, and the belief as to the existence of a valuable lode therein, which would amount to knowledge under the statute.' To this instruction the plaintiff excepted.

The jury found for the defendants, and upon their verdict judgment was entered, which is brought to this court for review.

F. W. Orvers and L. S. Dixon, for plaintiff in error.

T. M. Patterson, C. S. Thomas, R. S. Morrison, and G. W. Kretzinger, for defendant in error.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.