Sullivan v. Iron Silver Mining Co. , 12 S. Ct. 555 ( 1892 )

Me. Justice Beewee

delivered the opinion-of the court.

On the trial, the court took the case away from the jury, the only instruction it gave being as follows:

“ Under the opinión rendered by Judge McCrary in this case, it appears that the plaintiff is entitled to recover, the defendants’ location not having been made until .after the patent was issued, and we will enter'your verdict .for the plaintiff .in such form as counsel may present.”

.' In this the District Judge trying the case simply followed the opinion theretofore expressed by the Circuit Judge, to the effect that location ivas necessary before a vein or lode could be adjudged a known vein or lode within the exception in the patent, and the provision of section 23.33, Revised Statutes.' j(5 McCrary, 274.) In this ruling was error, as has since been repeatedly determined by this court. Reynolds v. Iron Silver Mining Co., 116 U. S. 687; Iron Silver Mining Co. v. Reynolds, 124 U. S. 374; Noyes v. Mantle, 127 U. S. 348, 353; Iron Silver Mining Co. v. Mike & Starr Mining Co., ante, 394. In Noyes v. Mantle, this court, speaking of .sec. 2333, used this language: “ The section can Ráye no application to lodes or veins within the boundaries -of a placer claim which •have been previously located under the laws of the United States, and are in possession of the locators or their assigns; for, as already said, such locations, when perfected' under th^ law, are the property of the locators, or parties to whom the locators have. conveyed their interest. As said in Belk v. Meagher, 104 U. S. 279, 283: ‘A mining claim perfected under the law is property in the highest sénse óf that term, which may be bought, sold, and conveyed, 'and will pass by descent.’ It is not; therefore,' subject to the disposal of the government. The section can apply only to lodes or veins not taken up and located so as to become the property of others..' If any are not thus'owned, and-are known to exist, the applicant for the patent, must include them in his application,- or he will be deemed to have declared .that he had no' right to them. Sullivan v. Iron Silver Mining Co., 109 U. S. 550, 554.”

But, notwithstanding the technical error- in this ruling, we cannot see that it wrought any prejudice to the ’ substantial rights of the plaintiff in error, for, upon all the facts an the case, the judgment was one which must necessarily have been rendered?’ It appears beyond dispute, in fact it is alleged in the answer, that defendants entered upon the premises in January, 1883; and not earlier, and' thereafter sank a shaft and did whatever work was done, and this, as appears by the pleadings and the testimony, was nearly four years after the issue of Jjae patpnt. But a placer, patent conveys to the pat-entee full-title to all lodes or .veins' within the territorial limits, hot then known to exist. So it matters not what developments -or discoveries were made by these defendants after- the issue of the patent. \Nbthihg then disclosed could limit the effect of the patent, or except from its scope any vein or lode within, its territorial limits. And, therefore, the 'testimony as to whát took-'place- after the issue, of. the patent, or as to the discoveries made thereafter, might properly have been excluded,.. and may now be wholly- rejected in considering what judgment ought to have been rendered.' - ■ '

The only other question -requiring. notice is-;this: After the plaintiff Rad finished its testimony, and the defendants had commenced offering theirs, the court intimated that it intended to direct a verdict for the plaintiff on the conceded fact that no location was made by the defendants until after the issue, of plaintiff’s patent, but at the same time notified the defendants that they could put in all the evidence they wished as to the existence of k lode, and the patentee’s knowledge of it, and, replying to counsel for plaintiff, who was' objecting to any further testimony, said: “Well, Mr. Owers, the theory upon which they proceed is that you never got this lode, [it] being known to you. Whether they made a valid location of it or not is another question ; but if it was known to the patentee at the time of the entry, whether located or» not, their position is, and they are going to maintain it in the\ Supreme Court if they can, that you never got title to it by means of your placer patent.”

And after that, defendants offeredta mass of testimony, the scope of which was similar to that condemned as insufficient in the case of Iron Silver Mining Co. v. Reynolds, supra. Its purport was that it was commonly believed that underlying all the country in that vicinity was a nearly horizontal vein'or deposit, frequently called a blanket vein; and that the parties who were instrumental in securing this placer patent shared in that belief, and obtained the patent with a view to thereafter 'developing such underlying vein. But whatever beliefs majr have been entertained generally, or by the placer patentees alone, there was up to the time the patent was obtained no knowledge in respect thereto. ' It was, sp far as disclosed by this testimony, on the part of everybody, patentees included, merely a matter of speculation and belief, • based not on any discoveries ifi ■ the placer, tract, or any tracings of a vein or lode adjacent thereto, but on the fact that' quite a number of shafts sunk 'elsewhere in the district had disclosed horizontal deposits of a particular kind of ore, which it was argued might be -merely parts of a single vein of continuous extension through all that territory. Such a belief is not the knowledge required by the section. In the cáse referred to this court' said: “ There may be difficulty in deter-. mining .whether such, knowledge in a given case was kad, but between mere'belief and knowledge there .is a wide difference. The court could not make them synonymous by its charge, and thus in effect incorporate new terms into the statute.” So, giving full weight to all the testimony offered by the defendants, both as to the workings and discoveries after the - patent, and the speculations and beliefs existing .prior to its issue, the court should have directed a verdict, as it did, for the plaintiff, and the only error was in giving a wrong reason for a correct instruction.

No substantial and prejudicial error appearing in the record, the judgment will be

Affirmed.