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 Isley, 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, 1851, 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 [34: 869].
No Federal question was involved in Harrington v. Plainview, 27 Minn. 224; but the bonds were held invalid on grounds independent of the Act of March 3, 1881. That decis ion 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 New Orleans Water Works Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 38, 39 [31: 607, 614, 615], 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 pla atiff 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 bands, 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 error. It was necessary for the Legislature to authorize the sale and purchase, in order to make them valid, and, as a condition of such purchase, the stat ute 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, 77 U. S. 10 Wall. 537 [19: 1007]; West Tennessee Bank v. Citizens Bank of Louisiana, 80 C. S. 13 Wall. 432 [20: 514], and 81 U. S. 14 Wall. 9 [20: 514]: Delmas v. Merchants Mut. Ins. Co. 81 U. S. 14 Wall. 661, 666 [20: 757, 759]; Tarver v. Keach, 82 U. S. 15 Wall. 67 [21: 82]; Stevenson v. Williams, 86 U. S. 19 Wall. 572 [22: 162]; New Orleans Water Works Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 35 [31: 607, 613].
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. liability was what 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.
THE MIKE & STARR GOLD AND SIL- directed to the discussion of the following
VER MINING COMPANY.
(See S. C. Reporter's ed. 394–431.)
Meaning of the term "known" vein in Rev. Stat.
2333-time of knowledge-what is a "known"
vein or lode--applicant for placer patent
chargeable with notice-lodes or veins must be
clearly ascertained-question for jury-evi-
dence of vein or lode-sufficient testimony.
1 The term "known vein" as used in section 2333
of the Revised Statutes is not synonymous with
"located claim," but refers to a vein or lode
whose existence is known, as contradistinguished
from one which has been appropriated by loca-
2. The time at which the vein or lode within the
placer must be known in order to be excepted
from the grant of the patent is, by section 2333,
the time at which the application is made.
3. A known vein or lode within the intent of the
statute, must either have been known to the ap-
First. What constitutes a "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 to describe it, and tender the price for it per acre required by the government?
Fourth. Whether the existence of such lode or vein must be known, and its purchase applied for when the application is made for the placer patent, and whether a lode or vein will be excluded from the patent, which is discov ered after such application and before the patent is issued?
Fifth. Whether evidence of the existence of lodes or veins in the immediate vicinity of a plicant for the placer patent or known to the placer claim is admissible to the jury, as tendcommunity generally, or else disclosed by working to show the existence of such lode or vein ings and obvious to any one making a reasonable within the boundaries of the claim? and and fair inspection of the premises for the pur
pose of obtaining title from the government. An applicant for a placer patent is chargeable with notice of the existence of a tunnel thereon, running underneath the surface of the ground, and is also chargeable with notice of whatever a casual inspection of that tunnel would disclose. 5. To justify their designation as "known" veins or lodes, the lodes or veins must be clearly ascertained, and be of such extent as to render the land more valuable on that account, and justify their exploitation.
6. A lode or vein is a body of mineral, or mineral bearing rock, within defined boundaries; whether such a lode or vein exists is a question for the
7. The amount of the ore, the facility for reaching
and working it, as well as the product per ton, are all to be considered in determining whether the vein is one which justifies exploitation and working.
8. In this case the finding of the jury that there was on the placer claim a "known" vein within the scope of section 2333 was based upon sufficient testimony, and cannot be disturbed.
for the jury of the vein or lode claimed by the
Sixth. Whether there was any legal evidence
defendant in error in the first two cases, Nos. 6
and 7, or by the plaintiffs in error in the third
case, No. 16?
Counsel of the parties are requested to pro-
duce on the reargument models and diagrams
showing the position and form of the placer
claim of the plaintiff in error in Nos. 6 and 7,
and defendant in error in No. 16, and the po-
sition in it of the alleged lodes of the defend-
ant in error in Nos. 6 and 7, and plaintiffs in
error in No. 16, and also of the tunnel alleged
to run into the said claim, and also of the
adjoining land so far as may be necessary
to a full understanding of the questions in-
*In the course of the opinion the following sections of the Revised Statutes are referred to:
Sec. 2320. Mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits heretofore located, shall be governed as to length along the vein or lode by the customs, regulations and laws in force at the date of their loca tion. A mining claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hun dred feet in length along the vein or lode, but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more N ERROR to the Circuit Court of the Unit- than three hundred feet on each side of the middle
Argued March 25, 26, 1890. Ordered for reargument before a full bench, Nov. 10, 1890. Reargued Nov. 20, 23, 1891. Decided Feb. 29, 1892.
review a judgment for the defendant in an ac- twenty-five feet on each side of the middle of the
limited by any mining regulation to less than
tion brought by the Iron Silver Mining Com- vein at the surface, except where adverse rights
pany against the Mike & Starr Gold and Sil-existing on the tenth of May, eighteen hundred
ver Mining Company, to recover possession of and seventy-two, render such limitation necessa-
ry. The end lines of each claim shall be parallel to
a tract of land known as the William Moyer each other.
placer. Affirmed.
A reargument was ordered November 10, 1890, as follows:
NOTE.-A8 to ownership of mines; United States statute as to; right of support of surface, see note to United States v. Castillero, 17:448.
As to title to water by appropriation; common law rule; rule of mining states, see note to Atchison v. Peterson, 22:414.
Sec. 2325. A patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person, association or corporation authorized to locate a claim under this chapter, having claimed and located a piece of land for such purposes, who has, or have, complied with the terms of this chapter, may file in the proper land office an application for a patent, under oath, showing such compliance, together with a plat and field-notes of the claim or claims in common, made by or under the direction of the United States Surveyor General, showing accu
the existence of any known lode or vein at
or before the issue of the patent. The case
was tried before a jury in November, 1885,
which trial resulted in a verdict and judg-
ment for the defendant, and thereupon the
plaintiff brought the case here on error.
Mr. T. M. Patterson for defendant in
Mr. Justice Brewer delivered the opinion of the court:
Statement by Mr. Justice Brewer:
On the 20th of February, 1885, plaintiff in
error, plaintiff below, filed its complaint in
the District Court of Lake County, Colorado,
in which it alleged that on the 1st day of
January, 1884, it was the owner and in pos-
session of a certain tract of land, known as
the William Moyer placer, consisting of 56.69 Messrs. L. S. Dixon, Ashley Pond,
acres, the particular description of which James McKeen and Frank W. Owers for plain-
was given; and that on the 1st day of Decem-tiff in error.
ber, 1884, the defendant wrongfully entered
upon said premises, and ousted the plaintiff error.
from possession thereof, and still wrongfully
retained such possession. The defendant
answered that the patent for said placer was
issued on the 30th day of January, 1880, and This and two kindred cases have been be-
contained the following reservation: "That fore us for consideration for some time.
the grant hereby made is restricted in its ex- They have been twice argued, the reargu
terior limits to the boundaries of the said lot ment having been ordered by the court of its
No. 300, as hercinbefore described, and to own motion: and on the second argument, at
any veins or lodes of quartz or other rock in the like instance, very elaborate and com-
place bearing gold, silver, cinnabar, lead, plete models, maps, and photographs were
tin, copper, or other valuable deposits, prepared by the respective parties and pre-
which may have been discovered within sented for our examination. The fact is,
said limits subsequent to the date hereof, there was an earnest inquiry as to whether
and not claimed or known to exist at the the court had not erred in its prior and re-
date hereof. Second. That should any vein peated ruling, that a known lode, as named
or lode of quartz or other rock in place bear-in section 2333, of the Revised Statutes, is
ing gold, silver. cinnabar, lead, tin, copper, something other than a located lode; and
or other valuable deposits be claimed or also, whether, in view of the disclosures
known to exist within the above described made in this, as in prior cases, of the exist-
premises at the date hereof the same is ex-ence of a body of mineral underlying a large
pressly excepted and excluded from these
presents."
It also alleged that at the time of the location of the placer claim, and the survey thereof, and at the time of the application for patent, there was a known lode, vein, and deposit of mineral within the boundaries of said placer, called the Goodell lode, and that the patentee had knowledge of its existence. On the application of the plaintiff the case was removed to the Federal court, and there an replication was filed denying
rately the boundaries of the claim or claims, which
shall be distinctly marked by monuments on the
ground, and shall post a copy of such plat, to-
gether with a notice of such application for a pat-
ent, in a conspicuous place on the land embraced
in such plat previous to the tiling of the applica-
tion for a patent, and shall file an affidavit of at
least two persons that such notice has been duly
posted, and shall file a copy of the notice in such
and office, and shall thereupon be entitled to a
patent for the land in the manner following: The
register of the land office, upon the filing of such
application, plat, field-notes. notices, and affidavits,
shall publish a notice that such application has been
made for the period of sixty days in a newspaper
to be by him designated as published nearest to
such claim, and he shall also post such notice in his
office for the same period. The claimant at the
time of filing this application, or at any time there-
after, within the sixty days of publication, shall
file with the register a certificate of the United
States Surveyor General that five hundred dollars'
worth of labor has been expended or improve-
ments made upon the claim by himself or grantors:
that the plat is correct, with such further descrip-
tion by such reference to natural objects or per-
manen monuments as shall identify the claim, and
furnish an accurate description, to be incorporated
in the patent. At the expiration of the sixty days
of publication the claimant shall file his affidavit,
showing that the plat and notice have been posted
in a conspicuous place on the claim during such
period of publication. If no adverse claim shall
have been filed with the register and the receiver
of the proper land office at the expiration of the
area of country in the Leadville mining
district, whose general horizontal direction,
together with the sedimentary character of
the superior rock, indicated something more
of the nature of a deposit like a coal bed
than of the vertical and descending fissure
vein, in which silver and gold are ordi-
narily found, it did not become necessary to
hold that the only provisions of the statute
under which title to any portion of this
body of mineral, or the ground in which it
is situated, can be acquired, are those with
sixty days of publication, it shall be assumed that
the applicant is entitled to a patent upon the pay-
ment to the proper officer of five dollars per acre,
and that no adverse ciaim exists; and thereafter no
objection from third parties to the issuance of a
patent shall be heard, except it be shown that the
applicant has failed to comply with the terms of
this chapter.
Sec. 233. 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 fode, 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 hun-
dred 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 in-
clude 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.
respect to placer claims. Of course, such
conclusions would have compelled a revising
of some former opinions, and have wrought
great changes in the status of mining claims
in that district. Because of this we have
been very careful, and the investigations in
these directions have been earnest and pro-
tracted. It would serve no useful purpose
to state all the arguments which have been
advanced and considered by us. It is enough
to announce the results. Our conclusions are,
first, in respect to the matter of the known
vein, that the reasons so clearly stated by
Mr. Justice Field, speaking for the court in
the case of Noyes v. Mantle, 127 U. S. 348,
353 [32: 168, 170], are unanswerable, and
forbid an adjudication that the term "known
vein" is to be taken as synonymous with
→ located vein," and compel a reiteration of
the declaration heretofore made, that the term
refers to a vein or lode whose existence is
known, as contradistinguished from one
which has been appropriated by location;
and as to the other matter, that the title to
portions of this horizontal vein or deposit,
blanket" vein as it is generally called,
may be acquired under the sections concern-
ing veins, lodes, etc. The fact that so many
patents have been obtained under these sec-
tions, and that so many applications for pat-
ents are still pending, is a strong reason
against a new and contrary ruling. That
which has been accepted as law and acted
upon by that mining community for such a
length of time, should not be adjudged
wholly a mistake and put entirely aside be-
cause of difficulties in the application of
some minor provisions to the peculiarities of
this vein or deposit. With this explanation
of the reasons for the long delay in the de-
cision of this case, we pass to the special
matters in controversy.
and that in running such tunnel they inter-
sected 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 dis-
tinct walls of porphyry on either side, a vein
whose existence was obvious to even a casual
inspection by any one passing through the
tunnel.
With this general statement, we notice
the two or three matters which are the
special objects of contention; and, first, it
is said that the court erred in giving this in-
struction:
"If there was a lode in that territory, and it was known to Moyer as an existing lode at this time-and by this time I mean the first of February, 1879, or at the time these locations were said to have been made-and the lode had been previously discovered by the locators of these claims, then the placer patent is not sufficient to convey them. In other words, they are excepted by the terms of this statute from the provisions of the patent, and the owners of that title now have no right to them."
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In other words, 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 by the patent. Into this ruling the court was doubtless led by the language of the patent, which in terms exempts all veins or lodes known to exist at the date thereof; that is the date of the issue of the patent. In this respect there was error. The time at which the vein or lode within the placer must be known in order to be excepted from the grant of the patent is, by secThe questions presented by the pleadings tion 2333, the time at which the applicato be tried were, whether there was a vein or tion is made. Its language is: "An applilode within the territorial boundaries of the cation for a patent for such placer claim, placer; and if so, whether it was a known which does not include an application for the vein or lode within the meaning of section vein or lode claim shall be construed as a 2333. The plaintiff, to maintain its case, conclusive declaration that the claimant of offered in evidence simply its patent and the placer claim has no right of possession other matters of record, together with parol of the vein or lode claim.' Iron Silver Min. 401 proof of boundaries. By this record evidence Co. v. Reynolds, 124 U. S. 374 [31: 466]; it appeared that the application for the placer United States v. Iron Silver Min. Co. 128 patent was made on the 13th of November, U. S. 673, 680 [32: 571, 574]. There was 1878; that entry and payment were on the 21st therefore a technical error in this instrucof February, 1879; and that the patent was tion of the court; but one which obvi issued on January 30, 1880. The location cer- ously wrought no injury to the substantial tificate of the Goodell lode was dated March rights of the plaintiff, because there is not a 10 and recorded March 11, 1879, reciting a scintilla of testimony, a suggestion even, location on February 1, 1879. After the in-that between the year 1877 and the time of troduction of this testimony the plaintiff rested, and by it a prima facie title to the whole placer claim was established. The location of the Goodell lode was some months after the application for the placer patent. The defendant, to maintain its claim, offered the testimony of several witnesses, testimony which established beyond any doubt 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;
entry and payment there was any work done
or discovery made on the placer ground in
respect to the Goodell lode or in the tunnel.
Everything that was done had been done in
1877; everything that was known at the time
of the patent was known in 1877; so that the
error of date in the charge was one not af
fecting the substantial rights of the plaintiff.
If at the time of the entry there was a known
vein, there was the same vein and the same
knowledge in 1877, and before the appli-
cation.
The second matter is this: Was there a
known vein at the time of the application
for a patent, within the meaning of section | ore of great value, can be adjudged a knowL
2333? It was not then a located vein or lode, vein or lode within the meaning of the
and the case was evidently tried by the plain- statute. As said by this court in the case of
tiff upon the theory that unless it was a United States v. Iron Silver Min. Co., 128 U.
located vein it was not a known vein, but S. 673, 683 [32: 571, 575]: "It is not enough
that, as we have seen, is not a correct inter- that there may have been some indications
pretation of the statute. It is enough that it by outcroppings on the surface, of the ex-
be known, and in this respect, to come within istence of lodes or veins of rock in place
the intent of the statute, it must either have bearing gold or silver or other metal, to
been known to the applicant for the placer justify their designation as 'known' veins or
patent or known to the community generally, lodes. To meet that designation the lodes
or else disclosed by workings and obvious to or veins must be clearly ascertained, and be
any one making a reasonable and fair inspec- of such extent as to render the land more
tion of the premises for the purpose of ob- valuable on that account, and justify their
taining title from the government. The exploitation." And, yet, in the case of Iron
proof abundantly establishes that within the Silver Min. Co. v. Cheesman, 116 U. S. 529,
last description the vein was a known vein. 536 [29: 712, 714], this court sustained an
The placer tract was a small one of fifty-six instruction as to what constitutes a lode or
acres. The tunnel ran 400 feet underneath vein, given in these words: "To determine
its surface. At its mouth there was a large whether a lode or vein exists, it is necessary
dump of earth taken from it. No one had a to define those terms; and, as to that, it is
right to enter that ground as placer mining enough to say that a lode or vein is a body
ground, unless he had made such an inspec- of mineral, or mineral bearing rock, within
tion as to enable him to make affidavit that defined boundaries in the general mass of
it was adapted to such mining. No exami- the mountain. In this definition the ele-
nation could have been made without dis- ments are the body of mineral or mineral
closing the existence of this tunnel. That bearing rock and the boundaries; with either
was a fact upon the surface, obvious to the of these things well established, very slight
most casual inspection. No one could be evidence may be accepted as to the existence
heard to say that he had examined that of the other. A body of mineral or mineral
ground in order to ascertain that it was suit-bearing rock in the general mass of the
able for placer mining, and in such exami- mountain, so far as it may continue unbroken
nation had not discovered the existence of this and without interruption, may be regarded
tunnel. It was not a little excavation, with
a few shovelsful of dirt at its entrance. The
pile of dirt was evidence which no one could
ignore, that it was a long tunnel, running
far into the earth. It was in mining ground,
as all this territory was believed to be, and,
therefore, an excavation likely to disclose
veins. As an applicant for a placer patent
was chargeable with notice of the existence
of the tunnel, so, also, was he chargeable
with notice of whatever a casual inspection
of that tunnel would disclose. He would
not be heard to say, I did not enter and ex-
amine this tunnel, and, therefore, know
nothing of the veins apparent in it. The
government does not permit a person to thus
shut his eyes and buy. If there be a vein or
lode within the ground, it is entitled to
double price per acre for it and the adjacent
fifty feet, and, with such interest in the price
to be paid, it rightfully holds any applicant
for a placer patent chargeable with all that
would be disclosed by a casual inspection of
the surface of the ground or of such a tunnel.
The applicant must be adjudged to have
known that which others knew, and which
he would have ascertained if he had dis-
charged fairly his duty to the government.
Surely under the testimony the jury was
warranted in finding that this was a known
vein.
Another question is, whether this was such ■ vein bearing gold, silver, cinnabar, lead, or other valuable deposit as that a discoverer could obtain title thereto under sections 2320 and 2325. It is undoubtedly true, that not every crevice in the rocks, nor every outcropping on the surface, which suggests the possibility of mineral, or which may, on subsequent exploration, be found to develop
as a lode, whatever the boundaries may be.
In the existence of such body, and to the ex-
tent of it boundaries are implied. On the
other hand, with well defined boundaries,
very slight evidence of ore within such
boundaries will prove the existence of a lode.
Such boundaries constitute a fissure, and if
in such fissure ore is found, although at con-
siderable intervals and in small quantities,
it is called a lode or vein.".
It is, after all, a question of fact for a
jury. It cannot be said, as a matter of law
in advance, how much of gold or silver must
be found in a vein before it will justify ex-
ploitation and be properly called a "known"
vein. In this case the only testimony offered
upon this question was that by the defendant.
John Hayes, one of the parties who dug this
tunnel, testitied that his brother was the
territorial assayer of Colorado at the time;
and that he assayed the ore from this vein
several times, and got from a trace to three
quarters of an ounce of gold. Three quarters
of an ounce would be fifteen dollars a ton.
That of itself may not be decisive as to
whether the vein justified exploitation. And
yet the proofs filed in the Land Department,
under which the patent to this entire placer
claim was obtained, show no such amount of
mineral. What is sufficient to obtain title
from the government is certainly sufficient
to demand consideration by a jury. We are
told by counsel for defendant that the Father
de Smet mine at Deadwood produces ore that
runs less than five dollars to the ton, yet is
of immense value and constantly worked,
because of the large quantity of this low
grade ore. So, here, the amount of the ore,
the facility for reaching and working it, as
well as the product per ton, are all to be
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