# Sullivan v. Iron Silver Mining Company (143 U.S. 431)

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## Concurring Opinion

    Field
United States Supreme Court
143 U.S. 431
Sullivan v. Iron Silver Mining Company
Action of ejectment brought by the Iron Silver Mining Company against John L. Sullivan, John Ryan, Philip Harrington, Timothy Carroll, Richard Foley, K. C. Fisher, M. J. Stewart, Timothy Santry, C. J. O'Laughlin, and P. J. McNulty. A demurrer to the answer was sustained, (16 Fed, Rep. 829,) which on appeal was reversed by the supreme court, (3 Sup. Ct. Rep. 339.) On a new trial a verdict was directed for plaintiff, and judgment entered thereon. Defendants bring error. Affirmed.
STATEMENT BY MR. JUSTICE BREWER.
This was an action of ejectment, commenced in the circuit court of the United States for the district of Colorado on the 5th day of March, 1883, by the defendant in error. The complaint alleged that on the 1st day of January, 1883, plaintiff was the owner and in possession of a tract of land in Lake county, Colo., known as the 'Wells and Moyer Placer Claim,' consisting of 193 43-100 acres, the description of which was given in full; that while so in possession, and on the 2d day of January, 1883, the defendants entered upon a certain portion, which was fully described, being about 10 acres, and wrongfully seized and detained the same. In their answer the defendants set forth that the plaintiff held title to the placer claim by a patent from the United States, of date March 11, 1879, which contained these restrictions and exceptions:
'Frist. That the grant hereby made is restricted in its exterior limits to the boundaries of the said lot No. 281, as hereinbefore described, and to any veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits which may hereafter be discovered within said limits, and which are not claimed or known to exist at the date hereof.
'Second. That should any vein or lode of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits be claimed or known to exist within the above-described premises at the date hereof, the same is expressly excepted and excluded from these presents.'
They also averred that at the time of the location of the placer claim and the issue of the patent a vein or deposit of mineral ore in rock in place, of great value, was known and claimed to exist within the boundaries and underneath the surface of said placer claim, and that the patentee knew that said vein was claimed to exist, and did exist, within said premises; that the application for the patent did not contain any application for said vein or lode; and that on the 1st day of January, 1883, the defendants, citizens of the United States, went upon the premises and sunk a shaft thereon, and at the depth of more than 10 feet from the surface cut and exposed said vein or deposit, and proceeded afterwards to file a location certificate. A demurrer to this answer was sustained, and judgment entered for the plaintiff. The defendants took the case on error to this court, and here the judgment of the circuit court was reversed. Sullivan v. Mining Co., 109 U.S. 550, 3 Sup. Ct. Rep. 339. The case turned on the construction of the pleadings, and it was held that the 'allegation in the answer that the vein was known by the patentees to exist at the times mentioned is an allegation, in the very words of the statute itself, of the fact which the statute declares shall be conclusive against any right of possession of the vein or lode claim in a claimant of the placer claim only.' No opinion was expressed on the question, discussed by counsel, as to whether any other than a located vein or lode could be deemed to be a known vein or lode, within the meaning of the statute and the exception in the patent. On the return of the case to the circuit court a replication was filed, denying that there was at the time of the location of the placer claim, or the issue of the placer patent, any known vein, lode, or mineral deposit within the premises, and also denying that the defendants discovered or exposed any vein, lode, or mineral deposit of any kind whatever. On November 17, 1885, the case was tried before a jury, the verdict and judgment were for the plaintiff, and the defendants again bring the case here on error.
T. M. Patterson and C. S. Thomas, for plaintiffs in error.
Ashley Pond, L. S. Dixon, F. W. Ower, and James McKeen, for defendant in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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