Concurring Opinion: Field, J. mining whether such knowledge in a given case was had, 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 MR. JUSTICE FIELD concurring. Affirmed. I concur in the judgment of affirmance in this case, but as I do not agree with all the views expressed in the opinion of the court I have concluded to state my own separately. The action is for the possession of certain mining ground known as the Kit Carson lode, situated in Colorado, and within the boundaries drawn down vertically from the surface of what is known there as the Wells and Moyer placer claim. This placer claim was patented to Wells and Moyer March 11, 1879, upon an application made May 16, 1878, and an entry made July 22, following. It is designated in the public surveys as mineral lot No. 281. It embraces 193 acres and a fraction of an acre, which are fully described by metes and bounds both in the patent and the complaint in the action. The patent, among other conditions, contains the following: First. That the grant is restricted within the boundaries of said lot 281, 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 Concurring Opinion: Field, J. other valuable deposits be claimed or known to exist within the above-described premises at the date of the patent, the same are expressly excepted and excluded from it. The defendants in answer to the action recited these exceptions to the patent and set up "that at the time of the location of said placer claim, and the survey thereof, and at the time of the application for said patent, and at the time of the entry of said land thereunder, and at the time and date of the issuing and granting of said patent, a lode, vein or deposit of mineral ore in rock in place, carrying carbonates of lead and silver, and of great value, was known to exist, and was claimed to exist, within the boundaries and underneath the surface of said Wells and Moyer placer claim, No. 281; and that the fact that said vein was claimed to exist, and did exist as aforesaid, within said premises, was known to the patentees of said claim at all the times herein before mentioned;" and "that the said application for said patent by said patentees and grantors of said plaintiff did not include any application whatever for a patent of or to said lode or vein within its boundaries aforesaid." The defendant, therefore, averred "that the said failure to include said vein or lode in said application amounted to a conclusive declaration by said patentees that they made no claim whatever to said lode or vein, or any part thereof, and that the same was expressly excepted and excluded from, and did not pass with, the grant of the premises by the patent." The defendants further alleged that on the 1st of January, 1883, they, being then and now citizens of the United States, went upon the premises described in the complaint and sunk a shaft thereon, which uncovered and exposed said lode, vein or deposit, and that thereupon they proceeded to locate the same as a lode claim by erecting at the point where they cut the said vein a notice, containing the name of said lode, to wit, the Kit Carson lode, the date of the location, and their names as locators, and caused the surface boundaries of the claim to be marked by posts, and afterwards filed a location certificate containing the name of the lode, the names of the locators, the date of the location, the number of feet in length claimed Concurring Opinion: Field, J. on each side of the centre of the discovery shaft, and the general course and direction of the claim as near as might be. The defendants therefore claimed the right to occupy and possess the premises in full accordance with and by virtue of a full compliance with the requirements of the laws of the United States and of the State of Colorado, the said vein, lode or deposit being a part and parcel of the unappropriated public mineral domain of the United States. A demurrer to this answer was sustained by the Circuit Court, and judgment being entered thereon, the case was brought here for review at October term, 1883. The demurrer was on the ground that the answer did not disclose any defence, because it showed that neither the defendants nor their grantors had discovered, located or recorded a lode or vein such as is described in section 2320 of the Revised Statutes, at or before the application for the placer patent, but that the defendants located their lode claim within the boundaries of the patented ground after the issue of the patent; and because the applicants for the placer claim were not required to apply for the vein or lode claim unless it had been duly discovered, located and recorded, and was owned by the applicants for the placer patent at the time of their application. This court reversed the judgment of the Circuit Court for the plaintiff on the demurrer, holding that it was sufficient as a matter of pleading, to bring an alleged lode or vein within the exception of the patent, to aver that it was known to the patentee to exist at the time of his applying for a patent, and was not included in his application. 109 U. S. 550. On the trial in the Circuit Court the plaintiff gave in evidence its patent, and to show the date of the location of the lode claim by the defendants produced the certificate of their location. This certificate is dated January 2, 1883, and alleges a location made on that day upon a discovery of the same date. To establish the existence of the lode claimed by the defendants, the testimony of four witnesses was introduced. One of them, Leonhardy, was allowed to testify, against the objection of the plaintiff, as to the existence of various lodes in the Concurring Opinion: Field, J. vicinity of the placer claim of William Moyer and the placer claim of Wells and Moyer, and of the character of their underground workings. He was also permitted, under like objection, to give the statements of one Stevens, made to him years before, as to the latter's opinion then of the existence of a large body of mineral wealth under the surface of the country "round about there," although his interest in the premises in controversy was only acquired by purchase with Leiter from the owners of the placer claim after they had applied for a patent, and the statements were not made in the hearing of such owners. Testimony of this character was, in my judg ment, clearly inadmissible. The testimony of Sullivan, one of the locators of the lode in suit, only went to the character of that lode, the extent to which a shaft had been sunk, its developments, and also as to the existence of other lodes in the vicinity of the placer claim. There was not a particle of evidence from any source showing that the vein or lode located by the defendants was known to exist at the date of the application for the placer patent, much less that its existence was brought to the knowledge of the patentee. Its location was nearly five years after the application for the placer patent, and nearly four years after the patent was issued. The existence. of the Mike tunnel and its extension within the boundaries of the Moyer placer claim (not the placer claim involved in this case) can have no bearing upon the questions presented, even if there had been at any time discovered within that tunnel valuable mineral of sufficient extent to justify the expenditure of time and money for its development. Upon the close of the testimony the court instructed the jury that the plaintiff was entitled to recover, the defendants' location not having been made until after the patent was issued, and directed them to find a verdict in its favor. They accordingly found such verdict, and the question before this court is as to the correctness of this instruction. Exceptions to the operation of the patent are founded upon section 2333 of the Revised Statutes, which is as follows: "Where the same person, association or corporation is in possession of a placer claim, and also a vein or lode included Concurring Opinion: Field, J. 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 twentythree 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 declaration 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 depos its within the boundaries thereof." This section, as this court has said on more than one occasion, makes provision for three distinct classes of cases: 1. Where one applies for a placer patent, who is at the time in the possession of a vein or lode included within its boundaries, he must state the fact, and then, on payment of the sum required for a vein or lode claim and twenty-five feet on each side of it at $5.00 an acre, and $2.50 an acre for the placer claim, a patent will issue to him covering both claim and lode. 2. Where a vein or lode, such as is described in a previous section of the Revised Statutes that is, of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits-is known to exist at the time within the boundaries of the placer claim, the application for a patent therefor, which does not also include an application for the vein or lode, will be construed as a conclusive declaration that the claimant of the placer claim has no right of possession to the vein or lode. |