rial to the risk, that is, in matters which are of
the essence of the contract.

or information. The applicant was required to answer yes or no as to whether he had been af We have seen that the application contains a flicted with certain diseases. In respect of some stipulation that it shall form a part of the con- of those diseases, particularly consumption, and tract of insurance; also, that the policy purports diseases of the lungs, heart and other internal to have been issued upon the faith of the repre- organs, common experience informs us that an sentations and answers in that application. Both individual may have them, in active form, withinstruments, therefore, may be examined to as-out at the time being conscious of the fact, and certain whether the contract furnishes a uniform beyond the power of anyone, however learned fixed rule of interpretation, and what was the or skillful, to discover. Did the Company exintention of the parties. Taken together, it can-pect, when requiring categorical answers as to not be said that they have been so framed as to the existence of diseases of that character, that leave no room for construction. The mind does the applicant should answer with absolute cernot rest firmly in the conviction that the parties tainty about matters of which certainty could stipulated for the literal truth of every statement not possibly be predicated? Did it intend to made by the insured. There is, to say the least, put upon him the responsibility of knowing ground for serious doubt as to whether the Com- that which perhaps, no one, however thoroughpany intended to require and the insured in-ly trained in the study of human diseases, could tended to promise an exact, literal fulfillment of possibly ascertain. all the declarations embodied in the application. It is true that the word "warranted" is in the application; and, although a contract might be so framed as to impose upon the insured the obligations of a strict warranty, without introducing into it that particular word, yet it is a fact, Beyond doubt, the phrase "other known not without some significance, that that word cause," in the fourteenth question, serves the was not carried forward into the policy, the double purpose of interpreting and qualifying terms of which control when there is a conflict all that precedes it in the same clause or senbetween its provisions and those of the applica- tence. For instance, the applicant was not retion. The policy upon its face characterizes the quired to state all the circumstances, within his statements of the insured as representations. recollection, of his family history, but those only Thus, we have one part of the contract appar-which rendered the proposed insurance more ently stipulating for a warranty, while another part describes the statements of the assured as representations. The doubt, as to the intention of the parties, must, according to the settled doctrines of the law of insurance, recognized in [343] all the adjudged cases, be resolved against the party whose language it becomes necessary to interpret. The construction must, therefore, prevail which protects the insured against the obligations arising from a strict warranty.

We shall be aided in the solution of these inquiries by an examination of other questions propounded to the applicant. In that way we may ascertain what was in the minds of the parties.

than usually hazardous and of which he had personal knowledge or of which he had information fairly justifying a belief of their existence. If he omitted to state circumstances in his “family history" of which he had no knowledge nor any information deserving attention, that omission would not avoid the policy, although it subsequently appeared that those circumstances if known to the Company, would have shown that the proposed insurance was more than usuBut it is contended that if the answers of the ally hazardous. Apart from other questions or assured are to be deemed representations only, clauses in the application, the tenth question the policy was, nevertheless, forfeited, if those would indicate that an incorrect or untrue anrepresentations were untrue in respect of any swer as to whether the applicant's "father, matters material to the risk. The argument is, mother, brothers or sisters had been affected that if the insured was, at the time of his appli- with consumption, or any other serious family cation or had been at any former period of his disease, such as scrofula, insanity, etc.," would life, seriously or in an appreciable sense, afflicted absolve the Company from all liability. Yet, with scrofula; asthma or consumption, his an- in the fourteenth question, the insured, being swer, without qualification, that he had never asked as to his family history and as to heredibeen so afflicted, being untrue, avoided the pol-tary predispositions-an inquiry substantially icy, without reference to any knowledge or belief he had upon the subject. The soundness of this proposition could not be disputed if, as assumed, the knowledge or good faith of the insured, as to the existence of such diseases, was, under the terms of the contract in suit, of no consequence whatever in determining the liability of the company. But is that assumption authorized by a proper interpretation of the two instruments constituting the contract? We think not.

Looking into the application upon the faith of which the policy was issued and accepted, we find much justifying the conclusion that the Company did not require the insured to do more, when applying for insurance, than observe the utmost good faith, and deal fairly and honestly with it, in respect of all material facts about which inquiry is made, and as to which he has or should be presumed to have knowledge

covering some of the specific matters referred to in the tenth question-was, as we have seen, only required to state such circumstances as were known to him, or of which he had information and which rendered an insurance upon his life more than usually hazardous. So, in reference to that part of the fourteenth question relating to the then physical condition of the applicant. Suppose, at the time of his application, he had a disease of the lungs or heart, but was entirely unaware that he was so affected. In such a case, he would have met all the requirements of that particular question, and acted in the utmost good faith, by answering, No, thereby implying that he was aware of no circumstance in his then physical condition which rendered an insurance upon his life more than usually hazardous. And yet, according to the contention of the Company, if he had, at any former period of his life, been afflicted with a

[34

[3

46]

to have been afflicted, that he knew or had rea-
son to believe, at the time of his application,
that he was or had been so afflicted.

It results from what has been said that the judg
ment must be reversed, with directions to set aside
the verdict, and for further proceedings consistent
with this opinion. It is so ordered.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.S.

HERBERT M. CARPENTER.

(Bee S. C., Reporter's ed., 847-350.) Indian lands-reservation by treaty.

1. Where land is reserved for the use of an Indian settlement or by location, under the Louisiana AgTribe by treaty, it cannot be taken up, either by ricultural College serip.

The entire argument in behalf of the Com-
pany proceeds upon a too literal interpretation
of those clauses in the policy and application
which declare the contract null and void if the 2. The treaty is notice that the land will be re-
answers of the insured to the questions pro-dians, and this purpose cannot be defeated by the
tained by the Government for the use of the In-
pounded to him were, in any respect, untrue. action of any officers of the land department.
What was meant by true and untrue answers ?
[No. 292.]
In one sense, that only is true which is conform-
able to the actual state of things. In that sense,

[347]

[348]

marked. A diagram and the field notes of the of the land containing the quarry could have
survey were duly returned, filed and recorded been taken up either by settlement or by loca-
in the General Land-Office, and in the office of tion under the Louisiana Agricultural College
the Surveyor-General of Minnesota. In Feb- scrip. The whole of such land was, by the
ruary, 1860, copies of them were transmitted by Treaty, withdrawn from private entry or ap
the Commissioner of the General Land-Office to propriation until the Government had deter
the Surveyor-General of the United States for mined whether any portion less than the whole
that State, with instructions to lay the same should be reserved. Its power of selection, if
down on the map of the State in his office and the whole was not retained, could not be re-
to respect them when the public surveys reached stricted by the action of private parties. So,
the locality, by closing their lines upon the res-in any view which can be taken, the entry of
ervation. At this time the land included in the Cluensen was void. It matters not whether the
reservation was not surveyed; but afterwards, land had been surveyed or not, the Treaty was
for some unexplained reason and in violation of notice that a part of the quarry would be re-
the instructions, it was surveyed with other pub- tained by the Government and that the whole
lic lands in its vicinity. In July, 1872, after this might be for the use of the Indians. This pur-
survey, the commissioner directed the Surveyor- pose and the stipulation of the United States
General to locate the reservation on the official could not be defeated by the action of any offi
plat in his office, from the field notes and plat cers of the land department.
of the original survey, and to transmit authen-
tic copies to the general and local land-offices;
or, if it should be impossible to locate it from
these data, to direct a re-survey of the tract, so
that it might be located and described upon the
official plats, and its boundaries respected in ac-
cordance with the Treaty.

In pursuance of these instructions, the Surveyor-General caused a re-survey of the quarry reserve and immediately marked it upon the of ficial plats in his office. Its boundaries, as resurveyed, correspond and are substantially coincident with the lines of the original survey and embrace the quarter section of land above described. Notwithstanding the reservation by the terms of the Treaty and its survey and appropriation to the purposes mentioned, one August Clucnsen, on the 15th of July, 1871, was permitted by the land officers of the district to locate upon the quarter section a piece of land scrip issued under the authority of the laws of the United States, known as Louisiana Agricultural College scrip, and to enter the section at that office with this scrip. On the 15th of May, 1874, a patent was issued to him pursuant to his entry. All the interest which he thus acquired, if any, was subsequently transferred, by divers mesne conveyances, to the defendant, Herbert M. Carpenter, who now claims to be the owner of the premises covered by the patent. The bill avers that all the provisions of the Treaty are still in force; that the Yankton Indians have always continued to visit and procure stone from [349] the quarry and have always desired and still desire so to do; and that the officers and agents of the Government, in all that they did in con

nection with the entry of the land and issuing the

patent, acted without authority of law and in
violation of the provisions of the Treaty. The
bill concludes with a prayer for a decree that
the patent and the entry on which it rests may
be vacated and for further relief. To this bill
the defendants demurred, for want of equity.
The demurrer was sustained and the bill dis-
missed; and the case comes here on appeal.

The court, therefore erred, in sustaining the demurrer. The decree must, accordingly, be reversed, with directions to overrule the demurrer, the defendant to have leave to answer; and it is so ordered.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

ROBERT C. CHAMBERS ET AL., Appts.,

v.

JAMES HARRINGTON ET AL.

(See S. C., Reporter's ed., 350-356.)
Review of proceedings to obtain patent of mineral
lands-requirement of statute-necessary work
on joint claims.

to obtain a patent for mineral lands of the United
1. In a proceeding under sections 2325 and 2326 R. S.,
States, if the amount in controversy is sufficient in
a case tried in a court of the United States, or the
proper case is made on a writ of error to a State
for review.
Court, the judgment may be brought to this court

2. Section 2324 R. S. requires that some work should
be done on every claim to mineral land in every
year, from the date of the discovery until the issue
of the patent.

3. When several claims are held in common and
are contiguous, the necessary work to keep them al
in value that which would be required on all the
alive, may be done on one of them; but it must equal
claims if they were separate or independent.
[No. 291.]

Argued Apr. 1, 2, 1884. Decided Apr. 14, 1884.

APPEAL from the Supreme Court of the Ter

ritory of Utah.

This action was brought in the District Court of the Third Judicial District of Utah Territory under section 2326, R. S., upon an adverse claim filed in the Land-Office of the United States at Salt Lake City by the plaintiffs, contesting the right of the defendants to a patent for a mining location called The Switzerland.

A judgment for the plaintiffs was rendered
by the district court. The defendants appealed
to the Supreme Court of Utah, where the judg-
ment was affirmed. Whereupon, the defendants
appealed to this court.

The action of the Government, in causing the
tract described to be marked on the official plats
in the land-offices as reserved from sale, was
clearly within the line of its duty under the
stipulations of the Treaty. The bill alleges that
the tract was a part of the Red Pipestone Quarry
mentioned in the 8th article. After the Treaty,
until the survey was made and the actual extent
of the reservation was thus designated, no part | Sutherland, for appellees.

The case is sufficiently stated by the court.
Messrs. S. Shellabarger, J. M. Wilson and
C. W. Bennett, for appellants.

Messrs. John R. McBride and J. G.

[850

151)

2]

Mr. Justice Miller delivered the opinion of the court:

This is an appeal from the Supreme Court of the Territory of Utah.

The case has its origin in a proceeding under sections 2325 and 2326 of the Revised Statutes, to obtain a patent for mineral lands of the United States.

This latter clause clearly shows that one meaning of the phrase "held in common " is where there are more owners of the claim than one, while the use of the word claims held in common, on which work done on one of such claims shall be sufficient, shows that there must be more than one claim so held, in order to make the case where work on one of them shall answer the statute as to all of them.

The first of these sections requires that, after
a discovery of a mine or lode and the steps re- It is not difficult, in looking at the policy of
quired to mark out and assert a claim to it, if the government in regard to its mineral lands,
the discoverer desires a patent, he shall give to understand the purpose of this provision.
notice of that fact, by a publication for sixty For many years after discovery of the rich de-
days, the nature of which is such as to call the posits of gold and silver in the public lands of
attention to the proceeding of anyone having an the United States, millions of dollars' worth of
adverse claim. Section 2326 requires of any these metals were taken out by industrious min-
person desiring to contest the claimant's right, ers without any notice or attention on the part
to file his adverse claim in the land-office, with of the government. The earliest legislation by
the particulars of it, under oath. It then de- Congress simply recognized the obligatory
clares: "It shall be the duty of the adverse force of the local rules of each mining locality
claimant, within thirty days after filing his claim in regard to obtaining, transferring and identi-
to commence proceeding in a court of compefying the possession of these parties.
tent jurisdiction, to determine the question of
the right of possession and prosecute the same
with reasonable diligence to final judgment, and
a failure to do so shall be a waiver of his ad-
verse claim." It is then provided that, on fil-
ing a copy of the judgment roll in the case, with
the register of the land-office, and making the
other requisite showing, a patent shall issue to
the successful party in the litigation.

It is now urged that such a judgment is not subject to review in this court, and the appeal should be dismissed.

Later, provision was made for acquiring title to the land where these deposits were found, and prescribing rules for the location and identification of claims, and securing their possession against trespass by others than their discoverers.

But in all this legislation to the present time, though by appropriate proceedings and the payment of a very small sum, a legal title in the form of a patent may be obtained for such mines, the possession under a claim established according to law is fully recognized by the Acts of Congress, and the patent adds little to the security of the party in continuous possession of a mine he has discovered or bought.

But it is apparent that the statute requires a
judicial proceeding, in a competent court. What
is a competent court is not specifically stated,
but it undoubtedly means a court of general ju- These mineral lands being thus open to the
risdiction, whether it be a State Court or a occupation of all discoverers, one of the first
Federal Court; and as the very essence of the necessities of a mining neighborhood was to
trial is to determine rights by a regular proced- make rules by which this right of occupation
ure in such court, after the usual methods, which should be governed as among themselves, and
rights are dependent on the laws of the United it was soon discovered that the same person
States, we see no reason why, if the amount in would mark out many claims of discovery and
controversy is sufficient in a case tried in a court then leave them for an indefinite length of time,
of the United States, or the proper case is made without further development and without act-
on a writ of error to a State Court, the judg-ual possession and seek in this manner to ex-
ment may not be brought to this court for re-
view, as in other similar cases. Belk v. Meagher,
104 Ú. S., 279 [XXVI., 735].

The only question on the merits of the case requiring much attention arises out of the requirement of section 2324 of the Revised Statutes, that some work should be done on every claim, in every year, from the date of the discovery until the issue of the patent. The language of the statute on the subject is this:

"On each claim located after the 10th day of
May, 1872 and until a patent has been issued
therefor, not less than $100 worth of labor shall
be performed or improvements made during
each year. On all claims located prior to the
10th of May, 1872, $10 worth of labor shall be
performed or improvements made by the 10th
day of June, 1874, and each year thereafter for
each one hundred feet in length along the vein
until a patent has been issued therefor; but when
such claims are held in common, such expendi-
tures may be made upon any one claim.'

It then provides for proceedings in favor of
co-owners who do their work or pay for it,
against those who do not, to forfeit their inter-
est in the claim.
111 U. S.

U. S., Воок 28.

clude others from availing themselves of the
abandoned mine. To remedy this evil, a mining
regulation was adopted, that some work should
be done on each claim in every year or it would
be treated as abandoned.

In the statute we are considering, Congress,
when it came to regulate these matters and pro-
vide for granting a title to claimants, adopted
the prevalent rule as to claims asserted prior to
the statute; and as to those made afterwards,
it required $100 worth of labor or improvement
to be made in each year on every claim.
Clearly, the purpose was the same as in the
matter of similar regulations by the miners,
namely to require every person who asserted
an exclusive right to his discovery or claim to
expend something of labor or value on it as ev-
idence of his good faith and to show that he
was not acting on the principle of the dog in
the manger.

When several claims are held in common, it is in the line of this policy to allow the necessary work to keep them all alive, to be done on one of them. But, obviously, on this one the expenditure of money or labor must equal in value that which would be required on all the claims if

[353]

they were separate or independent. It is equally
clear that in such case the claims must be con-
tiguous, so that each claim thus associated may
in some way be benefited by the work done on
one of them.

The principle is well stated by Judge Sawyer
in the ease of M. & M. Co. v. Callison, 5 Sawy.,
439.

19th of July, 1878, the owners of The Parley's Park claim were also the owners of two certain claims, called respectively The Central and Lady of the Lake The Central adjoining The Parley's Park, and Lady of the Lake adjoining The Central mining claim-and that, with a view to the future working and development of all three of said claims, the owners thereof located what is called the "main shaft" in The Lady of the Lake surface ground. That said shaft is in such proximity to said Parley's Park mining claim that work in it has a tendency to develop said claim, and said shaft was located and intended for the purpose of developing all of said claims.

was done in said year after July 19, 1878, and prior to the 15th day of September, 1879, in The Parley's Park surface ground, or within its limits, by the owners thereof."

We are of opinion that this brings the case clearly within the principles we have laid down, and the work was effectual to protect The Parley's Park claim against an intruder.

"Work done," he says, "outside of the claim, or outside of any claim, if done for the purpose and as a means of prospecting or developing the claim, as in cases of tunnels, drifts, etc., is as available for holding the claim, as if done within the boundaries of the claim itself. One general system may be formed, well adapted [354] and intended to work several contiguous claims I find that during said last named year, work or lodes; and where such is the case, work in was prosecuted in said shaft, and, by improvefurtherance of the system is work on the claims ments made thereat, exceeding in value $300, intended to be developed." In the case of Jack-and of not less than $2,000 in value. No work son v. Roby, decided at the present Term, 109 U. S., 440 [XXVII., 990], similar language is used. "It often happens that, for the development of a mine upon which several claims have been located, expenditures are required exceeding the value of a single claim, and yet without such expenditures the claim could not be successfully worked. In such cases it has always been the practice for the owners of the different locations to combine and work them as one general claim; and expenditures which may be necessary for the development of all the claims may then be made on one of them. *** In other words, the law permits a general system to be adopted for adjoining claims held in common and, in such case, the expenditures required may be made or the labor be performed, upon any one of them." That was a case of placer mining in which the tailings from one claim were carried by a flume and deposited on another which was contiguous, and it was held this latter claim was not aided but its development rather injured, by this work. This claim was not, therefore, kept valid by such work, and some remarks were made in the opinion which would not, perhaps, be strictly applicable to discoveries and works done in developing lodes or veins.

[355]

In the case before us, the appellees became successively owners of three claims contiguous to each other, supposed to be located on the same lode. These were, first, The Parley's Park claim; second, The Central; and third, The Lady of the Lake. They continued their work on The Parley's Park claim from 1872 until July 19, 1878, when they transferred it to The Lady of the Lake claim, and did no more work on the other until September 13, 1879, when one Cassidy, claiming that The Parley's Park claim was forfeited for want of work on it for more than a year, located a mining claim called The Accidental, which embraces the premises in dispute and which is part of The Parley's Park claim.

This claim of Cassidy, The Accidental, is the one on which appellants, who became its own

ers, now rely, and if the work done on The Lady

of the Lake is not work done in common on the
three claims of appellees, within the meaning
of the statute, the claim of the appellants must
prevail.

The finding of facts by the court below on
that point is as follows:

"5th. That, during the year beginning on the

By the Act of February 11, 1875, 18 Stat. at L., 315, section 2324 was so amended that work on a tunnel in a mine should be held to dispense with work on the surface and taken and consid ered as work expended on the lode, whether located prior to or since the passage of that Act.

We are not able to see that this affects the character of other work to be done or improve ments to be made according to the law as it stood before, except as it gives a special value to making a tunnel.

The questions raised on the admission of evidence to prove the existence and discovery of a lode by defendants were, we think, well decided [ and need no further comment.

The decree of the Supreme Court of Utah is affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. &

ANTON EILERS, Appt.,

v.

N. C. BOATMAN ET AL.

(See S. C., Reporter's ed., 356, 357.) Notice of claim for a mine-findings of fact.

1. In a contest for a mine under section 2326 of the Revised Statutes, whether the notice and description of the claim were sufficient to apprise othof fact. er prospectors of its precise location, is a question

2. On appeal, this court is required to accept, as Courts of the Territories.

true, the findings of fact made by the Supreme
[No. 297.]
Submitted Apr. 3, 1884. Decided Apr. 14, 1884.

APPEAL from the Supreme Court of the

Territory of Utah.

This action was brought in the Third District Court of Utah, by the appellant, to estab lish his alleged title to a certain mining claim. The court rendered judgment for the defendant. This judgment having been affirmed, on appeal, by the court below, the plaintiff appealed to this court.

2