Sullivan v. Iron Silver Mining Company (143 U.S. 431)/Opinion of the Court

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Concurring Opinion

United States Supreme Court

143 U.S. 431

Sullivan  v.  Iron Silver Mining Company

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

'Under the opinion 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 was 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 2333, Re. St. [1] 5 McCrary, 274, 16 Fed. Rep. 829. In this ruling was error, as has since been repeatedly determined by this court. Reynolds v. Mining Co., 116 U.S. 687, 6 Sup. Ct. Rep. 601; Mining Co. v. Reynolds, 124 U.S. 374, 8 Sup. Ct. Rep. 598; Noyes v. Mantle, 127 U.S. 348, 353, 8 Sup. Ct. Rep. 1132; Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 12 Sup. Ct. Rep. 543. In Noyes v. Mantle, this court, speaking of section 2333, used this language: 'The section can have 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 assingns; for, as already said, such locations, when pertected under the 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 sense of 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. Mining Co., 109 U.S. 550, 554, 3 Sup. Ct. Rep. 339.'

But, not withstanding 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 in 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 the patent. But a placer patent conveys to the patentee full title to all lodes or veins within the territorial limits not then known to exist; so it matters not what developments or discoveries were made by these defendants after the issue of the patent. Nothing 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 what 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 had 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 a 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 offered a mass of testimony, the scope of which was similar to that condemned as insufficient in the case of 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 may 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, so 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 in 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 case referred to this court said: 'There may be difficulty in determining 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 affirmed.


^1  For the full text of section 2333, see the concurring opinion of Mr. Justice FIELD, post, 436.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).