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IRON SILVER MINING Co. v. CAMPBELL.

(135 United States, 286; 10 S. C. Rep. 765. Supreme Court, 1890.)

'A lode patent, issued subsequent to the issue of a placer patent of a tract within whose metes and bounds the lode patent is located, is not conclusive evidence that the lode was such a known lode at the time of the issue of the placer patent as to authorize the issue of a later patent for the lode itself.

Where two parties have patents for the same tract of land, and the question in a judicial proceeding is as to the superiority of title under those patents, and the decision depends upon extrinsic facts not shown by the patents, it is competent to establish it by proof of those facts.

Land office can not pass on Known Lode.

The action of the land office in issuing a lode patent over the ground of an already patented placer does not bind the placer patentee to concede such lode to have been one of those excepted by the general terms of his placer patent. The word "Claim" as used in the mining acts, is used to refer to a title not yet perfected by patent.

Original patent not bound to adverse.

Where the land office

issues a second patent over ground already patented to another, as in case of a lode carved out of a placer, the holder of the prior patent is not bound to protest or adverse, and the question of the validity of the second patent depends upon the question of fact whether or not the lode was a known lode and as such excepted from the prior patent.

Error to the Circuit Court of the United States for the District of Colorado.

F. W. OWERS, ASHLEY POND, L. S. DIXON, and E. O. WOLCOTT, for plaintiff in error.

T. M. PATTERSON and C. S. THOMAS, for defendants in

error.

MILLER, J.

This is a writ of error to the Circuit Court of the United States for the District of Colorado. The action was brought in that court by Peter Campbell et al., plaintiffs, against the Iron Silver Mining Company, defendant, and was in the nature of an ejectment to recover possession of a mineral lode called the "Sierra Nevada Lode Mining Claim." The pleadings merely set up that the plaintiffs

1 McFeters v. Pierson, 24 Pac. 1076.

Iron S. M. Co. v. Mike Co. 143 U. S. 394; Same v. Sullivan, Id.431.

were the owners of said lode or claim, describing it, and that defendants had intruded upon their possession. The defendants denied that plaintiffs were the owners of the claim, and asserted their own title. The case was submitted to the court without a jury. The court made the following finding of facts and conclusions of law, on which it rendered a judgment for the plaintiffs.

"This cause coming on for trial before the court, and the parties appearing by their attorneys, and having, in open court and by their stipulation in writing filed with the clerk, waived a trial by jury, and the court, having duly heard and considered the evidence, oral and documentary, offered by the respective parties, and having duly deliberated thereon, finds the following facts and conclusions of law, viz.:

"That the defendant, the Iron Silver Mining Company, is a corporation created and organized and existing under and by virtue of the laws of the State of New York, and has complied with the laws of the State of Colorado so as to entitle it to do business and sue and be sued, in the State of Colorado.

"That the mining ground and property described in the pleadings in this action were a part of the public domain of the United States until the title thereof passed out of the United States by the issuing of patents as hereinafter set forth.

"That the said patent of the Sierra Nevada lode mining claim was issued to the said plaintiffs and their grantors and predecessors in interest at the time thereto stated, and, by duly executed and recorded deeds of conveyance, the title to the land mentioned and described in the said patent and the complaint in this action has been conveyed to, and is seized, owned, and possessed by, the said plaintiffs, and was so seized, owned, and possessed by them at the time of the commencement of this action.

"That on the 13th day of November, 1878, said William Moyer duly made application in the proper United States land office to be allowed to enter and pay for a patent for said William Moyer placer mining claim, being survey lot No. 300 and mineral entry No.-; that on the 21st day of February, 1879, said William Moyer was allowed to and did

make entry in said land office of the United States, and paid for the said placer claim, and that on the 30th day of January, 1880, the said William Moyer placer patent was issued to the said William Moyer for the tract of land described in said placer patent, and that, by virtue of duly executed and recorded deeds of conveyance, the said defend ant company has become the owner of, and seized of, all the right, title, and interest in and to the said tract of land described in and conveyed by the said placer patent.

"That the ground described in said patent of plaintiffs for the said Sierra Nevada lode claim is principally located or situated within the exterior boundaries of the tract of land described in said placer patent for the said William Moyer placer claim, and is a part of the same land, and the maps introduced in evidence, and contained in the bill of exceptions and record, correctly delineate the surface of the ground comprised within the exterior boundary lines of the said placer patent and the said lode patent, respectively. "And the court finds, as conclusions of law from the foregoing findings of fact, that it is conclusively presumed and found, from the face of said Sierra Nevada lode patent, that the said Sierra Nevada lode claim had been duly discovered, located, and recorded, and owned by the said patentees in said Sierra Nevada lode patent, and their predecessors in interest (the said plaintiffs), within the exterior boundaries of the said tract of land described in said William Moyer placer patent, before the time of the said application for the said placer patent, and the mining ground described in the said complaint and conveyed by the said lode patent is excepted out of the grant of the land described in and conveyed by the said placer patent.

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"And the court finds that the plaintiffs were at the time of the commencement of this action, and still are, the owners and seized of said tract of land described in said complaint, and called the Sierra Nevada Lode Mining Claim;' that the said defendant company wrongfully withheld, and still does wrongfully withhold, the possession thereof from the said plaintiffs.

"It is therefore ordered and adjudged that the plaintiffs have judgment against said defendant company for posses

sion of the mining ground in dispute, as described in the complaint herein, with costs to be taxed.

"And, forasmuch as the matters and things above herein set forth do not appear of record, and the said defendant tenders this its bill of exceptions, and prays that the same may be signed and sealed by the judge of this court, and pursuant to the statutes in such case made and provided, which is accordingly done this eighth day of July, 1885, being one of the judicial days of the May term of the said court, A. D. 1885, at the city of Denver, in said district. [Signed] Moses Hallett, Dis't Judge."

This finding of facts and conclusions of law is embodied in, and made a part of, a bill of exceptions. We think the correct practice in cases submitted to a court without a jury, is for the court to make its finding of facts and its conclusions of law a separate paper from pleadings or bills of exceptions.

The only thing of any consequence in the bill of exceptions containing a considerable amount of oral testimony, almost every word of which is objected to by one party or the other, is the two patents under which the adverse par ties claim title. From this and the finding of facts it appears that the patent under which the Iron Silver Mining Company claims was issued to William Moyer on his application, made in the proper land office, on the 13th of November, 1878, and bears date January 30, 1880, and that the one under which plaintiffs below claim bears date March 15, 1883. It is conceded that both patents cover the land in controversy. The Moyer patent, being the elder, is for fifty-six acres of placer mining land. The plaintiffs' patent, though of a later date, is for a vein or lode of mineral deposit which runs under the surface of the ground covered by defendant's patent.

The conclusion of law which controlled the judgment of the Circuit Court in the present case is that "it is conclusively presumed and found, from the face of the said Sierra Nevada lode patent, that the said Sierra Nevada lode claim had been duly discovered, located, and recorded, and owned by the said patentees in the said Sierra Nevada lode patent, and their predecessors in interest, the said plaintiffs, within the exterior boundaries of said tract of

land described in said William Moyer placer patent, before the time of the said application for the said placer patent; and the mining ground described in the said complaint, and conveyed by the said lode patent, is excepted out of the grant of the land described in and conveyed by the said placer patent." It is the soundness of this conclusion of the law from the facts found which we are called upon to review.

The real principle on which the plaintiffs relied to establish the superiority of their claim for the lode in controversy is that it was a known lode, within the meaning of the act of Congress on that subject' at the time of the application for the Moyer patent, and therefore, by the act of Congress on that subject, the title to it did not pass to the grantee in that patent. If the fact were proved that the Sierra Nevada lode was a known lode, within the limits of the placer patent obtained by Moyer, at the time of his application, the contention of the plaintiffs is sound. But notwithstanding, nearly all the testimony, particularly all the oral testimony found in the bill of exceptions, was introduced for the purpose of proving the existence of this lode, and that it was known to Moyer or his grantor; and in refutation of that proposition the court in its finding of facts makes no finding on that subject. It was obviously

the opinion of the court, and it is the ground on which defendants in error support its judgment here, that the patent issued by the Government is conclusive evidence that such vein was known so as to authorize the land department to issue a patent for it as being reserved out of the grant in Moyer's patent. It is very singular that the patent to Campbell and others for the Sierra Nevada claim makes no reference to this reservation in Moyer's patent, and no statement that the existence of the lode was known to anybody at the time the Moyer patent was applied for, or when it was granted.

There is nothing on the face of this patent 'to show that there was any contest before the land department on this question of the existence of the vein, and the knowledge of it, on which the validity of the patent is now supposed to rest. We have, therefore, the junior patent, which is held to 'Rev. St. U. S. § 2333.

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