Opinion of the Court.

ries. By this record evidence it appeared that the application for the placer patent was made on the 13th of November, 1878; that entry and payment were on the 21st of February, 1879; and that the patent was issued on January 30, 1880. The location certificate of the Goodell lode was dated March 10 and recorded March 11, 1879, reciting a location on February 1, 1879. After the introduction 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; and that in running such tunnel they intersected 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 distinct 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 instruction:

"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."

In other words, the court ruled that if the vein was

VOL. CXLIII-26

Opinion of the Court.

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 section 2333, the time at which the application is made. Its language is: "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." Iron Silver Mining Co. v. Reynolds, 124 U. S. 374; United States v. Iron Silver Mining Co., 128 U. S. 673, 680. There was therefore a technical error in this instruction of the court; but one which obviously wrought no injury to the substantial rights of the plaintiff, because there is not a scintilla of testimony, a suggestion even, that between the year 1877 and the time of 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 affecting 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 application.

The second matter is this: Was there a known vein at the time of the application for a patent, within the meaning of section 2333? It was not then a located vein or lode, and the case was evidently tried by the plaintiff upon the theory that unless it was a located vein it was not a known vein, but that, as we have seen, is not a correct interpretation of the statute. It is enough that it be known, and in this respect, to come within the intent of the statute, it must either have been known to the applicant for the placer patent or known to the

Opinion of the Court.

community generally, or else disclosed by workings and obvious to any one making a reasonable and fair inspection of the premises for the purpose of obtaining title from the government. The proof abundantly establishes that within the last description the vein was a known vein. The placer tract was a small one of fifty-six acres. The tunnel ran 400 feet underneath its surface. At its mouth there was a large dump of earth taken from it. No one had a right to enter that ground as placer mining ground, unless he had made such an inspection as to enable him to make affidavit that it was adapted to such mining. No examination could have been made without disclosing the existence of this tunnel. That was a fact upon the surface, obvious to the most casual inspection. No one could be heard to say that he had examined that ground in order to ascertain that it was suitable for placer mining, and in such examination had not discovered the existence of this tunnel. It was not a little excavation, with a few shovelfuls 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 examine 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 discharged fairly his duty to the government. Surely under the testimony the jury was warranted in finding that this was a known vein.

Opinion of the Court.

Another question is, whether this was such a 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 ore of great value, can be adjudged a known vein or lode within the meaning of the statute. As said by this court in the case of United States v. Iron Silver Mining Co., 128 U. S. 673, 683: "It is not enough that there may have been some indications by outcroppings on the surface, of the existence of lodes or veins of rock in place bearing gold or silver or other metal, to justify their designation as 'known' veins or lodes. To meet that designation 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." And, yet, in the case of Iron Silver Mining Co. v. Cheesman, 116 U. S. 529, 536, this court sustained an instruction as to what constitutes a lode or vein, given in these words: "To determine whether a lode or vein exists, it is necessary to define those terms; and, as to that, it is enough to say that a lode or vein is a body of mineral, or mineral-bearing rock, within defined boundaries in the general mass of the mountain. In this definition the elements are the body of mineral or mineral-bearing rock and the boundaries; with either of these things well established, very slight evidence may be accepted as to the existence of the other. A body of mineral or mineral-bearing rock in the general mass of the mountain, so far as it may continue unbroken and without interruption, may be regarded as a lode, whatever the boundaries may be. In the existence of such body, and to the extent 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 considerable 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

Opinion of the Court.

said, as a matter of law in advance, how much of gold or silver must be found in a vein before it will justify exploitation 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, testified 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 considered in determining whether the vein is one which justified exploitation and working. Beyond this the defendant produced Fred. G. Bulkley, a civil and mining engineer, who testified to an examination of the tunnel describing the various fissures and veins, and produced before the jury some of the ore taken from this vein. The jury, therefore, had before them samples of the ore from the vein, they were advised as to its dimensions, as to its general course and direction, and as to the actual results of several assays, and upon this testimony they found that it was a known vein.

If it be said that the conduct of the parties who ran the tunnel makes against the present contention, in that when they reached this vein they did not stop and develop it, but on the contrary proceeded with the tunnel, and even after they had finished their work therein did not immediately commence to develop it, a satisfactory answer is found in the testimony. It appears that there was a prevalent belief that a rich blanket