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Opinion of the Court.

Rochereau, 21 Wall. 130; Brooks v. Missouri, 124 U. S. 394; French v. Hopkins, 124 U. S. 524; Chappell v. Bradshawo, 128 U. S. 132; Clark v. Pennsylvania, 128 U. S. 395; Hale v. Akers, 132 U. S. 554; Manning v. French, 133 U. S. 186; Giles v. Little, 134 U. S. 645; County of Cook v. Calumet & Chicago Canal Co., 138 U. S. 635.

The cases cited by the plaintiff in error, of Green v. Van Buskirk, 5 Wall. 307, and 7 Wall. 139; Crapo v. Kelly, 16 Wall. 610; Factors and TradersIns. Co. v. Murphy, 111 U. S. 738; and Crescent Live Stock Co. v. Butchers' Union, 120 U. S. 141, are not applicable to the present cases.

The state court gave to the decisions of the Circuit Court of the United States all the effect which they could possibly have, namely, the conclusive settlement of the liability of the towns on the bonds to Marshall and Ilsley, as bona fide purchasers. The right of action of the towns depended upon sustaining the Marshall and Ilsley judgments as conclusive and not to be reviewed by the state courts. It was an essential element of the suits of the towns to show that they had been legally compelled to pay the bonds, in suits by bona fide holders of them. In pursuance of that claim, the state court held that the judgments of the Circuit Court of the United States were valid and conclusive in favor of the towns in the present suits. There was no question before the Circuit Court of the United States as to the liability of the towns to the Plainview company upon the bonds. The decisions of the Circuit Court of the United States held that Marshall and Ilsley, as bona fide purchasers of the bonds, acquired rights which were superior to those of the Plainview company. The judgments in the present suits are founded on the fact that the wrongful acts of the Plainview company enabled Marshall and Ilsley to acquire those rights.

The contention that the act of March 3, 1881, impaired the obligation of a contract is raised for the first time in this court. The records do not show that any such proposition was set up in, or considered by, the state court. Butler v. Gage, 138 U. S. 52.

No Federal question was involved in Tarrington v. Town

Opinion of the Court.

of Plainview, 27 Minnesota, 224; but the bonds were held invalid on grounds independent of the act of March 3, 1881. That decision was made in October, 1880, before the act of March 3, 1881, was passed, and was followed by the state court in the present cases.

The act of 1881 had no bearing upon the question of the validity of the bonds, and the state court gave to that act no effect on that question; so that these cases fall within the principle of N. 0. Water Works Co. v. La. Sugar Refining Co., 125 U. S. 18, 38, 39, because the state court decided them just as if the act of March 3, 1881, had not been passed. There was a perfect right of action in the towns against the Plainview company before the act of 1881 was passed; and such liability of the Plainview company was what the plaintiff in error assumed by proceeding under the act of 1881. That statute did not impose, and was not the cause of, such liability, but simply allowed the plaintiff in error to contract to assume such liability. The act of 1881 does not affect any prior contract. It merely declares that, if the Plainview company was liable to the towns for having obtained and disposed of the bonds, the plaintiff in error, if it should purchase the property and franchises of the Plainview company, must assume the liability of that company to the towns; and the plaintiff in error accepted and acted under the terms of the statute, on the express condition that it should be liable to the towns if the Plainview company were so liable.

The Plainview company could have raised no such question based on the act of 1881 as the plaintiff in error now seeks to raise. The bonds had been declared void by the state court, as between the Plainview company and the towns, in a suit to which the town of Plainview and the Plainview company were parties. The company had made the bonds, which were invalid in its hands, valid in the hands of bona fide purchasers, by transferring them. This took place before the act of 1881 was passed, and a right of action arose at that time in favor of the towns and against the Plainview company. Such right of action was made fruitless by the purchase of the property and franchises of the Plainview company by the plaintiff in

It was necessary for the legislature to authorize the

error.

Opinion of the Court.

sale and purchase, in order to make them valid, and, as a condition of such purchase, the statute imposed the liability in question on the plaintiff in error. The liability expressly covered all demands, claims and rights of action against the Plainview company arising out of its having “obtained and disposed of” the bonds and coupons purporting to have been issued by the towns. Therefore, the only question in the present suits left to be determined by the state court was whether, as the Plainview company had disposed of the bonds and coupons to bona fide purchasers, who had enforced them against the towns, a cause of action was created thereby in favor of the towns against the Plainview company. Inasmuch as, if these suits had been between the towns and the Plainview company, no Federal question would have been presented, there can be none in the present suits.

This court has jurisdiction only when the state court has given effect to a legislative enactment which impairs the obligation of a prior contract. No such thing exists in the present cases. The act of 1881 did not attempt to render invalid any contract between the towns and the Plainview company. Although the plaintiff in error was held liable by the state court by virtue of the act of 1881, that did not raise a Federal question, because the liability was one assumed voluntarily by the plaintiff in error. The liability of the Plainview company must first be established, before the act of 1881 can have any effect. The Supreme Court of Minnesota held the bonds invalid by reason of provisions in the constitution of the State, which were in force at the time of the passage of the act of 1877; and it did not hold them invalid by reason of the act of 1881. Bethell v. Demaret, 10 Wall. 537; West Tenn. Bank v. Citizens' Bank of La., 13 Wall. 432, and 14 Wall. 9; Delmas v. Ins. Co., 14 Wall. 661, 666; Tarver v. Keach, 15 Wall. 67; Stevenson v. Williams, 19 Wall. 572; N. 0. Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18, 35.

Moreover, the liability of the Plainview company to the towns, which is sought to be enforced in the present suits against the plaintiff in error, was founded on tort, and did not arise out of any contract relations. That liability was what

Syllabus.

was assumed by the plaintiff in error; and no question can arise as to the impairment by the act of 1881 of the obligation of any contract. The writs of error must be

Dismissed.

MR. JUSTICE BREWER did not sit in these cases or take any part in their decision.

IRON SILVER MINING COMPANY V. MIKE AND STARR GOLD AND SILVER MINING COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF COLORADO.

No. 2. Argued November 20, 23, 1891. – Decided February 29, 1892.

The term “known vein" Rev. Stat. § 2333 refers to a vein or lode whose

existence is known, as contradistinguished from one which has been appropriated by location. The title to portions of a horizontal vein or deposit, generally called a “ blanket vein,” may be acquired under the

sections of the Revised Statutes concerning veins, lodes, etc. In ejectment for the possession of a mine, the plaintiff claimed under a placer

patent, issued January 30, 1880, on an application made November 13, 1878, and entry and payment made February 21, 1879. The defendant claimed under a location certificate of a lode issued to one Goodell, dated March 10, and recorded March 11, 1879, reciting a location February 1, 1879. The defendant, to maintain its claim, offered the testimony of several witnesses, which this court holds to establish 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 seventy-five to seventy-eight feet from its mouth, of about fifteen 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. At the trial 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. Held, (1) That this vein was a known vein at the time of the application for

the placer patent;

Statement of the Case.

66

(2) That the plaintiff was bound to know of the existence of the tunnel,

and what an examination of it would disclose; (3) That it was a question for the jury whether there was sufficient

gold or silver within the vein to justify exploitation, and to be properly a known vein or lode” within the meaning of Rev.

Stat. § 2333; (4) That the time at which the vein or lode within the placer must be

known in order to be excepted from the grant of the placer patent is the time at which the application for that patent was made; but that the plaintiff suffered no injury from the error in the instruction of the court below in that respect, as the facts which implied knowledge at the time of the entry and payment existed

also at and before the date of the application; (5) That the neglect of the parties who ran the tunnel to at once develop

the vein was of no account, as it appeared that there was a prevalent belief that a rich blanket vein was underlying the entire

country, and this was the object of pursuit by all; (6) That the admission of evidence respecting that blanket vein was

immaterial, as the attention of the jury was directed by the court to the vein disclosed by the tunnel as the known vein upon which the rights of defendant rested.

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EJECTMENT. The plaintiff in error was plaintiff below, and claimed under a placer patent issued January 30, 1880, on an application made November 30, 1878, and entry and payment made February 21, 1879. The defendant claimed under a location certificate of a lode dated March 10, and recorded March 11, 1879, reciting a location February 1, 1879. This case was argued with No. 3 (post, 430) on the 25th and 26th of March, 1890; and on the 26th and 27th, No. 7 (post, 431) was argued. On the 10th of November, 1890, the court made the following order:

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It is ordered that these cases be reargued before a full court, and then as one case. And the attention of counsel is specially directed to the discussion of the following questions:

First. What constitutes “ lode or vein” within the meaning of sections 2320 and 2333 of the Revised Statutes ?

Second. What constitutes a “known lode or vein " within the meaning of section 2333 ?

Third. In what manner must the existence of such lode or vein be indicated to enable the applicant for a placer patent

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