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Opinion of the Court.
of Plainview, 27 Minnesota, 224; but the bonds were held invalid on grounds independent of the act of March 3, 1881. That decision 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 N. O. Water Works Co. v. La. Sugar Refining Co., 125 U. S. 18, 38, 39, 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 plaintiff 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 hands, 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
Opinion of the Court.
sale and purchase, in order to make them valid, and, as a condition of such purchase, the statute 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, 10 Wall. 537; West Tenn. Bank v. Citizens Bank of La., 13 Wall. 432, and 14 Wall. 9; Delmas v. Ins. Co., 14 Wall. 661, 666; Tarver v. Keach, 15 Wall. 67; Stevenson v. Williams, 19 Wall. 572; N. O. Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18, 35.
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. That 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
MR. JUSTICE BREWER did not sit in these cases or take any part in their decision.
IRON SILVER MINING COMPANY v. MIKE AND STARR GOLD AND SILVER MINING COMPANY.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.
No. 2. Argued November 20, 23, 1891.- Decided February 29, 1892.
The term "known vein" Rev. Stat. § 2333 refers to a vein or lode whose existence is known, as contradistinguished from one which has been appropriated by location. The title to portions of a horizontal vein or deposit, generally called a "blanket vein," may be acquired under the sections of the Revised Statutes concerning veins, lodes, etc.
In ejectment for the possession of a mine, the plaintiff claimed under a placer patent, issued January 30, 1880, on an application made November 13, 1878, and entry and payment made February 21, 1879. The defendant claimed under a location certificate of a lode issued to one Goodell, dated March 10, and recorded March 11, 1879, reciting a location February 1, 1879. The defendant, to maintain its claim, offered the testimony of several witnesses, which this court holds to establish 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. At the trial 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. Held, (1) That this vein was a known vein at the time of the application for the placer patent;
Statement of the Case.
(2) That the plaintiff was bound to know of the existence of the tunnel, and what an examination of it would disclose;
(3) That it was a question for the jury whether there was sufficient
gold or silver within the vein to justify exploitation, and to be properly a "known vein or lode" within the meaning of Rev. Stat. § 2333;
(4) That the time at which the vein or lode within the placer must be known in order to be excepted from the grant of the placer patent is the time at which the application for that patent was made; but that the plaintiff suffered no injury from the error in the instruction of the court below in that respect, as the facts which implied knowledge at the time of the entry and payment existed also at and before the date of the application;
(5) That the neglect of the parties who ran the tunnel to at once develop the vein was of no account, as it appeared that there was a preva
lent belief that a rich blanket vein was underlying the entire country, and this was the object of pursuit by all;
(6) That the admission of evidence respecting that blanket vein was immaterial, as the attention of the jury was directed by the court to the vein disclosed by the tunnel as the known vein upon which the rights of defendant rested.
EJECTMENT. The plaintiff in error was plaintiff below, and claimed under a placer patent issued January 30, 1880, on an application made November 30, 1878, and entry and payment made February 21, 1879. The defendant claimed under a location certificate of a lode dated March 10, and recorded. March 11, 1879, reciting a location February 1, 1879. This case was argued with No. 3 (post, 430) on the 25th and 26th of March, 1890; and on the 26th and 27th, No. 7 (post, 431) was argued. On the 10th of November, 1890, the court made the following order:
It is ordered that these cases be reargued before a full court, and then as one case. And the attention of counsel is specially directed to the discussion of the following questions:
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
Statement of the Case.
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 discovered 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 placer claim is admissible to the jury, as tending to show the existence of such lode or vein within the boundaries of the claim? and
Sixth. Whether there was any legal evidence for the jury of the vein or lode claimed by the defendant in error in the first two cases, Nos. 6 and 7, [2 and 3] or by the plaintiffs in error in the third case, No. 16 ?
Counsel of the parties are requested to produce 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, [2 and 3] and defendant in error in No. 16,  and the position in it of the alleged lodes of the defendant in error in Nos. 6 and 7, [2 and 3] 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 involved.
The statutes referred to in this order and in the opinion of the court, post, will be found in the margin.1 The three
1 The court refers to the following sections of the Revised Statutes. "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 location. 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 hundred 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 than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the