When the location of a mineral lode or vein, properly made, is
perfected under the law, the lode or vein becomes the property of
the locators or their assigns, and the government holds the title
in trust for them.
Where a location of a vein or lode of mineral or other deposits
has been made under the law, and its boundaries have been
specifically marked on the surface so as to be readily traced, and
notice of the location has been recorded in the usual books of
record within the district, that vein or lode is "known to exist"
within the meaning of that phrase as used in Rev.Stat. § 2333,
although personal knowledge of the fact may not be possessed by the
applicant for a patent for a placer claim.
Page 127 U. S. 349
Bill in equity to quiet title. Decree of perpetual injunction
against defendants, from which they appealed to the supreme court
of the territory. The decree and judgment being affirmed there,
they appealed to this Court. The case is stated in the opinion.
MR. JUSTICE FIELD delivered the opinion of the Court.
This is a suit in equity to determine the adverse claims of the
defendant below, appellant here, to a certain quartz lode mining
claim, known as the "Pay Streak Lode," in Summit Valley Mining
District, in the County of Silver Bow, in the Territory of Montana.
The plaintiffs below assert title to the claim as grantees of
Daniel Zinn and John O. McEwan, who discovered and located it on
the 23d of April, 1878, under the provisions of the Act of Congress
of May 10, 1872, which are reenacted, in the Revised Statutes, Tit.
32, c. 6.
The defendant below asserts title to the lode claim under a
patent of the United States issued to him on the 23d of April,
1880, for a placer mining claim, which includes that lode within
its boundaries. The application for the patent was made December
14, 1878. Several interrogatories touching matters in issue were
submitted to a jury called by the court, though sitting in the
exercise of its equity jurisdiction. Their findings in answer to
the interrogatories were, with one exception, adopted by the court.
The excepted finding gave an erroneous date to the application of
the defendant for the patent, and was therefore set aside. The
court thereupon found the fact as to the date as it appeared from
the evidence. Upon the facts thus established, the court rendered
its decree. They were substantially these: that on and prior to
December 14, 1878, a vein or lode of quartz bearing gold and silver
was known to exist in the
Page 127 U. S. 350
ground in controversy; that its existence could have been
readily ascertained by any person examining the ground with an
honest purpose to inform himself of the fact; that in the month of
April, 1878, Zinn and McEwan, the grantors and predecessors in
interest of the plaintiffs, discovered in the ground a vein or lode
of quartz bearing gold and silver, and they posted a notice
claiming the ground, and the vein or lode which it included; that
at the same time they marked off the ground by stakes, so that its
boundaries could be readily traced; that they named the claim in
their notice of location as the "Pay Streak Lode," and within
twenty days after its discovery filed in the proper office of the
county a notice of their claim, and of its location, such as was
usual where lode claims were located in that mining district; that
in July, 1881, they conveyed to the plaintiffs all their interest
in the claim; that in August, 1881, before the commencement of this
suit, the plaintiffs caused a survey of the claim to be made and
its boundaries marked so as to be readily traced; that they then
relocated the claim, of which notice within twenty days thereafter
was filed in the recorder's office of the county, and that they
were in its possession at the commencement of this suit. The jury
did not find that the existence of a vein or lode in the ground in
controversy was known to the defendant at the time of his
application for a patent, and reported that they were unable to
agree on this point. The district court, in which the suit was
brought, did not consider that this want of a finding on the
question of knowledge by the defendant affected the position of the
plaintiffs, and it rendered a decree adjudging that the right of
possession to the lode claim was in them, and that the defendant
had no title, estate, or interest therein, and that he be enjoined
from asserting or claiming any as against them. The supreme court
of the territory affirmed the decree, holding that the title to the
lode mining claim had passed to the grantors of the plaintiffs by
their discovery and location under the statute, and that the
subsequent patent to the defendant of a placer claim did not affect
their title to the lode claim, for that title was not then subject
to
Page 127 U. S. 351
the disposition of the government. The court also held that the
lode claim was known to exist within the meaning of the statute
when it had been located pursuant to its requirements, whether
knowledge of its existence was possessed or not by the defendant at
the time he made his application for a patent. These rulings
constitute the only matters meriting consideration in this
Court.
Section 2322 of the Revised Statutes, reenacting provisions of
the Act of Congress of May 10, 1872, 17 Stat. 91, declares that the
locators of mining locations previously made or which should
thereafter be made on any mineral vein, lode, or ledge on the
public domain, their heirs and assign, where no adverse claim
existed on the 10th of May, 1872, shall have the exclusive right of
possession and enjoyment of all the surface included within the
lines of their locations, so long as they comply with the laws of
the United States, and with state, territorial, and local
regulations not in conflict with those laws governing their
possessory title. There is no pretense in this case that the
original locators did not comply with all the requirements of the
law in making the location of the Pay Streak lode mining claim, or
that the claim was ever abandoned or forfeited. They were the
discoverers of the claim. They marked its boundaries by stakes so
that they could be readily traced. They posted the required notice,
which was duly recorded in compliance with the regulations of the
district. They had thus done all that was necessary under the law
for the acquisition of an exclusive right to the possession and
enjoyment of the ground. The claim was thenceforth their property.
They needed only a patent of the United States to render their
title perfect, and that they could obtain at any time upon proof of
what they had done in locating the claim, and of subsequent
expenditures to a specified amount in developing it. Until the
patent issued, the government held the title in trust for the
locators or their vendees. The ground itself was not afterwards
upon to sale. The location having become completed in April, 1878,
antedates by some months the application of the defendant for a
patent for his placer claim. That patent was subject to the
conditions of § 2333 of the Revised Statutes, which is as
follows:
Page 127 U. S. 352
"Where the same person, association, or corporation is in
possession of a placer claim and also a vein or lode included
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 twenty-three 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 deposits
within the boundaries thereof."
This section was before us for consideration in
Reynolds v.
Iron Silver Mining Co. at October term, 1885,
116 U.
S. 687, and also at the present term,
124 U. S. 124 U.S.
374. As stated by the Court at both times, it makes provision for
three classes of cases:
1. When 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 claim and twenty-five feet one 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 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.
Page 127 U. S. 353
3. Where the existence of a vein or lode in a placer claim is
not known at the time of the application for a patent, that
instrument will convey all valuable mineral and other deposits
within its boundaries. 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 assigns, for, as already said,
such locations, when perfected 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,
104 U. S. 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. Iron Silver Mining Company, 109 U.
S. 550,
109 U. S.
554.
When can it be said that a vein or lode is "known to exist"
within the meaning of the section? In
Reynolds v. Iron Silver
Mining Company, when first here, the Court said that it might
not be easy to define the words "known to exist," and as it was not
necessary to determine whether the knowledge must be traced to the
applicant for the patent, or whether it was sufficient that it was
generally known, and what kind of evidence was necessary to prove
this knowledge, it was better that the questions should be decided
as they arise. When the case was here a second time, the Court said
that the language of the section appeared to be sufficiently
intelligible in a general sense, and yet it became difficult of
interpretation when applied to the determination of rights asserted
to such veins or lodes, from the possession or absence of knowledge
at the time application is made for a patent, and that if a general
knowledge of their existence were held sufficient, the inquiry
would follow as to what would constitute such knowledge, so
Page 127 U. S. 354
as to create an exception to the grant notwithstanding the
ignorance of the patentee. These suggestions indicated the
difficulties of some of the questions which might arise in the
application of the statute, but in the present case, we think that
difficulty does not exist. Where a location of a vein or lode has
been made under the law and its boundaries have been specifically
marked on the surface, so as to be readily traced, and notice of
the location is recorded in the usual books of record within the
district, we think it may safely be said that the vein or lode is
known to exist, although personal knowledge of the fact may not be
possessed by the applicant for a patent of a placer claim. The
information which the law requires the locator to give to the
public must be deemed sufficient to acquaint the applicant with the
existence of the vein or lode.
A copy of the patent is not in the record, so we cannot speak
positively as to its contents, but it will be presumed to contain
reservations of all veins or lodes known to exist, pursuant to the
statute. At any rate, as already stated, it could not convey
property which had already passed to others. A patent of the
government cannot, any more than a deed of an individual, transfer
what the grantor does not possess.
Judgment affirmed.