FEDERAJ,. REPOlt'rER,

vol. 54.

in this case shCYWs' that many years prior to the attaching oftllegrant to ,any particu.lar lands the tract in eo'ntroven;y was · mining ground, was ascertained by the land department tQllemw,eral i:p. character,and was patented as such to the defendants under the laws of· the United states relating to the disposal of mineral lands. True, the bill alleges ,that the eVidenoe upon which those' proceedings were M,d, was false' and fraudulent" and that the omcers of the land department were thereby deceiv:ed as, to the true character ..of the land. If so, the patent can be, annulled at the suit of the· government ; but as long as the government is content to let its patent stand, by which it, in effect, solemnly declares that, due investigation of the facts by the omcers to whom under the law such ,investigation iscoIlll)litted, the land was,at and prior to the time when the grant to the railroad company became effective, mineral land, and subject to disposal under the laws relating to mineral lands, the company, which claims only under a grant which in terms excepts from its operation mineral lands, is not in a position . to call in question the facts upon which the mineral patent is based. Those facts, including the question of the character of the land, which lay at ,the foundation of the proceedings, were open to contest in the land department on the part of any and every person claiming an adverse interest therein, and an opportunity to make such contest was .afforded by the, published notice required by the .statute referred to in the principal opinion. For these reasons J agree that the judgment of the circuit court be aflirmed.
COLORADO CENT. CONSOLIDATED MIN. CO. v. TUROK.

(OJrcu1t Court of" Appeals, Eighth Circuit.

Febl.'uary 6, 1893.)

No. 421. APPEAL-RltVIEW.....:MA'l"1'ERS NOT APPARENT ON THB RECORD.

a

In an action ot ejectment a reviewing court cannot consider or make computations upon a map which is merely Introduced by counsel in argu· ment, but is not made a part of thereeord.

BAKE-MINING CLAIMS.

In an action of ejectment to recover certron minlng grounds as between the owners of adjol.D1ng cla.1ms one of the lssue'J made by the pleadings was as to the point at which the.vein passed out ot the slde line ot one claim and Into :tho other, but at the trial this issue was n()t pressed" and the court, with the acquiescence ot counsel, charged the jury that plaintUr claimed 600 feet Illong the vein, and that the parties had apparently submitted that the case should be determined upon the point whether there was not one broad vein, having an outcrop in both locatioos. A recovery was had ot the 600 teet. Held, that defendant was estopped from claiming on writ of error that the recovery was for more than was waranted by the evidence relating to the exact point at which the vein crossed the 'boundary line between the claJ.ms.

B. MINES AND MINING--ADJOINING CLAIMS. It appearing In that the vein in its dip passed through the side lines ot plaintlff's claim into detendant's cla.lm, the fact that the jury

failed to find the exact depth at which th'd vein crossf'd the line was no ground for reversal, since the question of ownership and possession, which was the only one in Issue, depended entirely upon the location and width of the apex of the vein.

COLORADO CENT. CONSOLIDATED MIN. CO. V. TURCK.

.263

4.

SAME.

Whf>n the apex of a vein passes out of the side Une of a claim into aD adjoining claim, the latter,though junior in date, gives to its owner tile right to follow the vein in ita dip underneath the senior olaim. _,

In Error to the Circuit Court of the United States for the District of Colorado. Action by John Turck aJ:!:ainst the Colorado Central Consolidated Mining Company to possession of a lode or vein known as the "Aliunde Tunnel Lode No.2," situated in the Argentine mining district, Clear Creek county, Colo. There' was a verdict and judgmentfor plaintiff, and defendant sued out a writ of error. The judgment was heretofore affirmed, (50 Fed. Rep. 888, 2 C. C. A. 67,) and defendant now petitions for a rehearing. Denied. Charles J. HUJ:!:hes, Jr., and R. S. Morrison, for plaintiff in error. Willard Teller, for defendant in error. Before CALDWELL, Circuit Judge, and SHIRAS and THAYER, District Jtidges.

THAYER, District The contention of counsel that the trial court awarded the defendant in error 15 feet more territory than he was entitled to· under admissions contained in the pleadings, rests wholly upon the assumption that the record before us shows the exact location of the Harris shaft with reference to the point fixed by the lower court as the place where the apex of the Colorado Central lode crosses into the Aliunde olaim. We have made a careful examination of the printed record, and we are unable to find any testimony which would enable us to say that the point of departure of the lode, as fixed by the trial court, is less than 150 feet southwestwardly from the Harris shaft. On the argument of the case in this court a map was produced, for the purpose of illustra· tion, as we understand, which purports to be drawn on a given scale. By reference thereto, and assuming it to be in all respects accurate, we might perhaps ascertain the approximate distance from the Harris shaft southwestwardly to the point of departure in question. But there is to identify the map as a part of the record evidence in the case. even if we felt justified in relying upon computations of distances which we might make with the aid of such map. With their superior knowledge of the testimony produced in the trial court, (much of which has not been incorporated into the printed record,) counsel may be able to say with great confidence that the Harris shaft is only 135 feet to the northeast of the point fixed by the trial court as the place where. the Colorado Central lode crosses into the Aliunde claim, but such fact is not apparent from the record lodf!ed in this court. Furthermore, we do not think that the plaintiff iu error is in a position to urge l!lUccessfully in this court that the verdict and judf!IDent are excessive in the respect claimed in the petition for a rehearinf!. In the course of its charge, the trial court used the following language:
"And now, with reference to the territory claimed by plalntUr, of course It III only In 80 far as he holds the top and outcrop of the lode, or of that which he claims as exhibttt!d in his own works, and extended down from the

FEDERAL REPORTER,

vol. 54..

Aliunde worldngs to tho lowest levels. You nlllRt be of that opinion in order to find fot, him that he has this1:opand apex distinctly In bis temtory, and the extent of it towards the eastward is a questiop,fol' yoUr Formerly it was made quite a point,-the place where it,comes into the location of the .Aliunde No, 2; that is to say, the witnesses were given their BOme estimates and calculations. as: to tlieexact place in Which it came. In this trial we have not had anything of that. The ex.tent to. ;wlW$ claims is, I 600 feet from the west end of the Colorad..o Central location, going eastward along the llrie of the two locations l\OOfee't'; 'wh!&h is not far from the Johnson upraise,-perhaps a little east of that upraIse. .That is correct'l Mr" Teller: East, your honor.. The Court: Ido .nQtsee tbM the parties have drawn this question much in issue in this trtal, ap.d,apparently they submit that you shall determine the case upon the point whiCh they have contested, whether this wbich the plainti1! has in his territotY is the top and apex. of a distinct lode, or only part of the general top and apex of a broad lode eXtelllded far beyond that to the north."

It appears, therefore, that the jury were advised, in substance, that the exact Doint where the Colorado Central vein or lode crossed i,Ato claim had. not been treated as a material point then in controversy; that both pa.rties had apparently consented or agreed that, in lieu of fixing the exact point of departure of the vein cCl.lJimed by the in error, the jury should rather consider the. more important question whether the whole space between, the porphyry walls was not in fact. so broken up and permef\ted, throughout with vein matter as to cOllstitute it a single lode, ,with its apex partly within the limits of both. claims. No was taken to this portion of the charge, nor is it emin either of the of error. The jury must have what was thus said by the court as a direction to find in favo,. . f. ,th.e defendaD.t. in error to the full extent, or substantially to . . the fAll extent, claimep in the complaint, if they found in his favor on the other more imnortant issue as to the width of the lode, which the parties had annarentlvmade the vital issue on which the verdict should. depend. We think, therefore,. that the plaintiff in error is in no position to attack the verdict: or judgment on the ground that they are excessive. thoue:h' it .be. true that the defendant in error has r,ecovereda few feet, more or less, along the lode than his proof of an apex would seem to warrant. A timely exception should trial CO'llrt if it erred in assum· have been taken to the ing that there was no material controversy between the parties as to the extent of the recoverv. . . Neither are we able to attach much importance to the sugges· tion of counsel that the judgment should have boon reversed because the jury failed to fix the depth beneath the surface at which the alleged Aliunde vein passes underneath the side lines of the Colorado .Central claim. According to the view entertained by this court, that is a question which will only become material,. if at all, when there ,shall be an accounting between the parties as to the .amount of Qre extracted from the alleged vein. The suit at bar' is an action to recover a mining lode on the ground that the lode has its true apex or outcrop within the Aliunde side lines. Whether in its descent the lode. passes outside of those side lines at a depth "of. about three hundred feet beneath the surface," as alleged' in the complaint, or ata depth of only 150 feet, aB the evi91).

COLOHADO CEI\T. CONSOLIDATED MIN. CO. V. TURCK.

265

dence tended to show, is, in our opinion, a question which the trial court was under no obligation to submit to the determination of the jury. The question of ownership and right of possession, which was the sole question before the jury, depended upon the location and width of the apex of the alleged vein, and in no sense upon the depth at which it passed underneath the Colorado Central side lines. Although it is alleged in the complaint that the lode sued for has a pitch of about 60 degrees to the northwest, and at a depth of about 300 feet beneath the surface enters the Colorado Central claim, yet we do not regard these allegations as so far material that they must be proven precisely as laid. Whether, in an accounting suit, to be hereafter brought, the defendant in errol' will be estopped by this allegation, and by the verdict and judgment, from claiming any ores which lie at a depth of less than 300 feet below the surface, is a question which we do not care to discuss at this time. It is sufficient to say at present that tb.e plaintiff in error was not· prejudiced, so far .as we can see, by failure of the jury to :fix the exact depth beneath the surface at which the vein in controveJ;Sy enters its territory. Weare furthermore asked to grant a rehearing with respect to the question whether the jury was not entitled to determine as to the existence or nonexistence of independent veins which in their descent became united within the side lines of the Colorado Central claim. In support of this request the petition for a rehearing calls to· our attention and quotes certain testimony, which unfortunately is not found in the printed record on which the case was submitted. Counsel have apparently overlooked the fact that in making up the record for this court some of the testimony produced in the lower court was by agreement suppressed or merely summarized. With reference to the contention that the trial court improperly withdrew the last-mentioned issue from the consideration of the jury, we deem it sufficient to say that the point was considered at some length in our previous decision, and on further reflection we find no occasion for receding from the views then expressed. As we formerly remarked, the evidence to establish the existence of an independent vein within the side lines of the Colo-. rado Central (if its single or broad lode theory was rejected) depended wholly on developments in the Herrick and O'Mally raises, and the shaft sunk in the Jim Hall tunnel, the precise location of which latter shaft is not disclosed by the present record. If we concede that the thread of vein matter followed in the Herrick raise was followed practically to the slide or wash, and that the outcrop was within the side lines of the Colorado Central,and if we furthermore concede that the perpendicular raise in the O'Mally workings, disclosed vein matter practically to the surface of the country rock, and was also within the Colorado Central teITitory, yet there was no evidence to establish the continuity or extent of the vein between these points, Not only was there no evidence to establish the continuity of the alleged vein, (which fact, under certain circumstances, might, no doubt, have been established by inference,) .but the developments lower down, particularly in the

FEDERAL REPORTER,

vol. 54.

'cross·cut, in our judgment, demonstrated that no connectionw;h/Ltever existed between the two or seams of vein matter which had been followed to the slide in the Herrick and o'¥aUy raises. We must also again call attention to the fact that of vein matter found. in the O'Mally raise had not been followed downward below the second level to establish Its connection with any of the lower workings. To these suggestions the reply. is made that the evidence to establish the existence and outcrop of the vein on which the Aliunde location rests was equally vague and unsatisfactory. We are compelled, however, to dissent from that view, and for the following reasons: The ,apex of the Aliunde vein was established with reasonable certainty at three or fOUf points within the limits of that claim, as counsel for the pla,iritn:rin error fully concede. There was.also considerable testimonywhich, in our opinion, showed the continuity and identity of 'th:«t Ali'\lD.de vein, and its general direction, within the side lines of c1fl.im, between the several. points where the vein had been trooi:l4:to the surface of the country rock. The vein in question had also been followed downward to a great depth, and it seems to have maintained a well-defined pitch and strike throughout the several We are, of the opinion, therefore, that the finding of thejury..in favor of the existence of the Aliunde vein rests upon much more satisfactory evidence than that which was Olfiered and relied upon to establish the existence of a similar vein with an outcrop within the territory of the Colorado Central. The defendant company undoubtedly did much to discredit its contention that the developments in the Herrick and O'Mally raises were sufficient to establish the existence of a continuous and well·defined vein between those points, which had its apex within the side lines of the Coloroo(l Central claim, by its persistent contention throughout the trial that there were no well·defined separate veins between the two porphyry walls, because the whole intervening space between those walls had been broken up, and was in fact a single lode, .having a single, broad ootcrop or apex. But, be this as it may, we .think that upon the state of facts disclosed by the present record, together with all the legitimate inferences that might be , drawn therefrom, the jury would not have been warranted in find· ing that the defendant company held the apex of an independent vein, which in its descent united with and became an integral part of the AliuJlde vein. We are of the opinion that a finding of that nature, based upon the evidence which is before this court, would have rested upon no substantial foundation, and could not have been sustained. The trial court committed no, elTor, therefore, in withholding that issue from the jury. Marshall v. Hubbard, 117 U. S. 415, 419, 6 Sup. Ct. Rep. 806, and citations. Finally, we must .correct the false impresl3ion which counsel seem to entertain, that we have misconceived or failed to consider the question intended to be presented by the twelfth and thirteenth in· structions. We fully understood counsel to contend that the Colorado Oompany, by virtue of its prior location, could lawfully lay claim,to all ores within its, side lines and end lines, which formed

PJ{ESS V. DAVIS.

267

a part of the lode on which its location rested, even though the apex of such lode in the course of its strike to the southwest had eventually crossed into the Aliunde territory, and had been there discovered and located upon by the proprietor of the latter claim. We intended to overrule that contention, and we think we did do so with sufficient certainty in our previous decision. It is true that we made some reference to the vein having "forked 88 it entered the disputed territory," but in using that expression we merely referred to a theory which was stated in the original brief filed by counsel for the plaintiff in error. In so far as the application of the rule of law which we announced is concerned, it is obviously immaterial whether the lode became divided as it entered the die.puted territory or did not so divide. In either event, we think it follows that, as the Colorado Central claim had been laid rather obliquely to the general course of the outcrop, the owners of that claim lost the vein when they lost the outcrop. This view was distinctly enunciated in our previous decision, the authorities were cited on which we predicated our opiuion, and we find nothing in the petition for a rehearing which is calculated to change our views. In conclusion, it may not be out of place to remark that the question whether a locator on the dip of a vein may be ousted by a subsequent locator on the apex, 88Suming both claims to be laid side by side and "along the vein or lode," does not seem to be presented by the record now before us, and we· have expressed no opinion on that point. It follows from what has been said that no sufficient cause has been shown for further argument, and the petition for a rehearing is accordingly denied.
PRESS v. DAVIS at al. (Circuit Court of Appeals, SeVenth Circuit. February 18, 1893.)

No. 75.

APPEAL-REVIEW-WAIVER Oll' OB,JECTION.

Rev. St. f 700, which declares that, when there is a epactal finding in a case in which a jury has been waived, the review of the judgment "may extend to the determination of the suffi.c1ency of the facts found to support the judgment," does not authorize a reversal of a judgment for alleged errors in the findings, Where no objection was taken or exception reserved in the trial court.

In ElTor to the Circuit Court of the United States for the Northern District of lllinois. Assumpsit by Isaac Davis and others against Whiting G. Press. Plaintiffs· obtained judgment. Defendant brings error. Affirmed. Lewis H. Bisbee, for plaintiff in elTor. John C. Black, for defendants in error. Before WOODS, Circuit Judge, and BUlrn' and JENK.INS, Diamet Judges. PER CURIAM. In this case the right of trial by jury wall waived, and upon a special finding of facts the court gave judg-