Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

This and two kindred cases bave been before us for consideration for some time. They have been twice argued, the reargument having been ordered by the court of its own motion; and on the second argument, at the like instance, very elaborate and complete models, maps, and photographs were prepared by the respective parties and presented for our examination. The fact is there was an earnest inquiry as to whether the court had not erred in its prior and repeated ruling that a known lode, as named in section 2333 of the Revised Statutes,1 is something other than a located lode; and also whether, in view of the disclosures made in this, as in prior cases, of the existence of a body of mineral underlying a large area of country in the Leadville mining district, whose general horizontal direction, together with the sedimentary character of the superior rock, indicated something more of the nature of a deposit like a coal bed than of the vertical and descending fissure vein in which silver and gold are ordinarily found, it did not become necessary to hold that the only provisions of the statute under which title to any portion of this body of mineral, or the ground in which it is situated, can be acquired, are those with respect to placer claims. Of course, such conclusions would have compelled a revising of some former opinions, and have wrought great changes in the status of mining claims in that district. Because of this we have been very careful, and the investigations in these directions have been earnest and protracted. would serve no useful purpose to state all the arguments which have been advanced and considered by us. It is enough to announce the results. Our conclusions are, first, in respect to the matter of the known vein, that the reasons so clearly stated by Mr. Justice FIELD, speaking for the court in the case of Noyes v. Mantle, 127 U. S. 348, 353, 8 Sup. Ct. Rep. 1132, are unanswerable, and forbid au adjudication that the term “known vein" is to be taken as synonymous with "located vein, and compel a reiteration of the declaration heretofore made,-that the term refers to a vein or lode whose existence is known, as contradistinguished from one which has been appropriated by location: and, as to the other matter, that the title te portions of this horizontal vein or deposit, "blanket vein," as it is generally called, may be acquired under the sections concerning veins, lodes, etc. The fact that so many patents have been obtained under these sections, and that so many applications for patents are still pending, is a strong reason against a new and contrary ruling. That which has been ac cepted as law and acted upon by that mining community for such a length of time should not be adjudged wholly a mistake, and put entirely aside, because of difficulties in the application of some minor provisions to the peculiarities of

It

99

1 For the text of this section in full, see the dissenting opinion of Mr. Justice FIELD, post, 550.

this vein or deposit. With this explanation of the reasons for the long delay in the decision of this case, we pass to the special matters in controversy.

The questions presented by the pleadings to be tried were whether there was a vein or lode within the territorial boundaries of the placer; and, if so, whether it was a known vein or lode, within the meaning of section 2333. The plaintiff, to maintain its case, offered in evidence simply its patent and other matters of record, together with parol proof of "boundaries. 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 75 to 78 feet from its mouth, of about 15 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 1st 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 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." Mining Co. v. Reynolds, 124 U. S. 374, 8 Sup. Ct. Rep. 598; U. S. v. Mining Co., 128 U. S. 673, 680, 9 Sup. Ct. Rep. 195. 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 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 gov ernment. The proof abundantly establishes that within the last description the vein was a known vein. The placer tract was a small one of 56 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 inspec tion 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 discov ered 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 igv.12s.c.-35

nore, 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 50 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.

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 U. S. v. Mining Co., 128 U. S. 673, 683, 9 Sup. Ct. Rep. 195: "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 Mining Co. v. Cheesman, 116 U. S. 529, 536, 6 Sup. Ct. Rep. 481, 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 min eral 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 mineralbearing 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

99

404

jority of such integral definite part must attend, aliter there is no elective assembly, but a majority of those present when legally met will bind the rest." In 1 Dill. Mun. Corp. (4th Ed.) § 283, the rule is thus stated: "And, as a general rule, it may be stated that not only where the corporate power resides in a select body, as a city council, but where it has been delegated to a committee or to agents, then, in the absence of special provisions otherwise, a minority of the select body, or of the committee or agents, are powerless to bind the majority or do any valid act. If all the members of the select body or committee, or if all the agents are assembled, or if all have been duly notified, and the minority refuse or neglect to meet with the others, a majority of those present may act, provided those present constitute a majority of the whole number. In other words, in such case, a major part of the whole is necessary to constitute a quorum, and a majority of the quorum may act. If the major part withdraw so as to leave no quorum, the power of the minority to act is, in general, considered to cease. This declaration has been quoted approvingly by this court in the case of Brown v. District of Columbia, 127 U. S. 579, 586, 8 Sup. Ct. Rep. 1314. In 2 Kent, Comm. 293, the author draws a distinction between what is necessarily a meeting of a representative and a constituent body in these words: "There is a distinction taken between a corporate act to be done by a select and definite body, as by a board of directors, and one to be performed by the constituent members. In the latter case, a majority of those who appear may act; but in the former, a majority of the definite body must be present, and then a majority of the quorum may decide." See, also, Ex parte Willcocks, 7 Cow. 402; Com v. Green, 4 Whart. 531; State v. Green, 37 Ohio St. 227; Launtz v. People, 113 Ill. 137; Gas Co. v. City of Rushville, 121 Ind. 206, 23 N. E. Rep. 72; Gosling v. Veley, 7 Adol. & E. (N. S.) 406, 4 H. L. Cas. 679.

* * *

In State v. Deliesseline, 1 McCord, 52, it is said "For, according to the principle of all the cases referred to, a quorum possesses all the powers of the whole body; a majority of which quorum must, of course govern. The constitutions of this state and the United States declare that a majority shall be a quorum to do business, but a majority of that quorum are sufficient to decide the most important question."

In Wells v. Rahway Co., 19 N. J. Eq. 402, we find this language: "A majority of the directors of a corporation, in the absence of any regulation in the charter, is a quorum, and a majority of such quorum, when convened, can do any act within the power of the directors.

And in Attorney General v. Shepard, 62 N. H. 383,384, the question was whether an amendment to a city charter had been properly adopted by the board of alder. men. All the members of the board were present but one. The ordinance was duly read and put to a vote, and declared by the chair to be passed. The yeas and nays were then called; three voted in the af

firmative, three refused to vote, and the chair declared the ordinance passed. The court held, Chief Justice DOE delivering the opinion, that the amendment to the charter was legally adopted by the board of aldermen. He said: "The exercise of law-making power is not stopped by the mere silence and inaction of some of the law-makers who are present. An arbitrary, technical, and exclusive method of ascertaining whether a quorum is present, operating to prevent the performance of official duty and obstruct the business of government, is no part of our common law. The statute requiring the presence of four aldermen does not mean that, in the presence of four, a majority of the votes cast may not be enough. The journal properly shows how many members were there when the vote was taken by yeas and nays; there was no difficulty in ascertaining and recording the fact; and the requirement of a quorum at that time was not intended to furnish a means of suspending the legislative power and duty of a quorum. No illegality appears in the adoption of the amendment."

Summing up this matter, this law is found in the secretary of state's office, properly authenticated. If we appeal to the journal of the house, we find that a majority of its members were present when the bill passed, a majority creating by the constitution a quorum, with author. ity to act upon any measure; that the presence of that quorum was determined in accordance with a valid rule thereto. fore adopted by the house; and that of that quorum a majority voted in favor of the bill. It therefore legally passed the house, and the law, as found in the office of the secretary of state, is beyond challenge.

With reference to the other question: The opinion of the circuit court seemed to be that the act cast upon the secretary of the treasury a special duty of classification in all cases of the importation of worsted cloths, and that unless he so acted in any particular case the duty remained as it was prior to the passage of the act. We quote its language: “This act, however, proceeds upon an entirely novel theory. It provides expressly for a classification in direct non-conformity to the facts. It authorizes an officer of the government who may find an import to be in fact an article which under the tariff laws pays one rate of duty to call it something else, which it is not, in order to enable the revenue officers to levy upon it a rate of duty which that other article, which it is not, pays. * * * I do not mean by that to suggest for one moment that, under the phraseology of this act, it is the duty of the secretary of the treasury to himself examine the packages of goods, to handle or see their contents; but, having been informed and advised as to the facts in the same way in which he is informed and ad vised upon any facts upon which he is required to pass, by the examination and report of such trustworthy subordinates as he may select, the final classification of the particular articles is one to be made by him."

We do not so construe the act. We un

$408

Case No. 3, between the same parties, presents the same questions, and the same judgment of affirmance will be entered therein.

Mr. Justice FIELD, dissenting.

I am unable to agree with my associates in the disposal of this case, (No. 2.) The decision, and the opinion upon which it is founded, will do much, in my judgment, to weaken the security of patents of the United States for mineral lands, and leave them open to attack and overthrow upon mere surmises, notions, and loose gossip of the neighborhood, which ought not to interfere with any rights of property resting upon the solemn record of the government.

The Iron Silver Mining Company, the plaintiff below and the plaintiff in error here, is a corporation created under the laws of New York, and the defendant, the Mike & Starr Gold & Silver Mining Com'pany, is a corporation also created under the laws of that state. The present action is in form one to recover an alleged mining lode claim a little over 10 acres in extent, lying within the boundaries of a placer claim known as the" William Moyer Placer Claim," of which the plaintiff is the owner; but it is in fact an action to determine the right of the defendant to a patent of the United States for that lode, under proceedings taken in assumed conformity with section 2326 of the Revised Statutes. It was commenced in a district court of Colorado, and on application of the plaintiff was removed to the circuit court of the United States.

The placer claim embraces 56 acres and a fraction of an acre, a full description of which, by metes and bounds, is given in the complaint. It is designated and known in the public surveys of mineral land as lot No. 300. A patent of the Unit. ed States for it was issued to William Moyer on the 30th of January, 1880. The application for the patent was filed in the local land-office on the 13th of November, 1878, and the claim was entered for patent and paid for on the 1st day of February, 1879.

The patent contains several express reservations or conditions, among them these two, (we quote their language from the instrument:)

"First. That the grant hereby made is restricted in its exterior limits to the boundaries of the said lot No. 300, as herein before 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.

The patentee, Moyer, on the 24th of February, 1880, executed a quitclaim deed of the premises to William H. Stevens and

Levi Z. Leiter; and, on the 6th of March following, these parties conveyed the same to the plaintiff, and by its direction, and at its cost, large and expensive works were subsequently erected on the premises for the development of the mine and the extraction of the precious metals.

was

The defendant in answer to the action, besides denying the right of the plaintiff to the possession of the premises, relies upon two defenses,-the acquisition of a lode claim known as the "Goodell Lode" from the original locators, and the acquisition of a lode claim known as the "Thomas Starr Lode." In stating the first defense it recites the exceptions stated to the patent, and sets up "that at the time of the location of said placer claim and the survey thereof, and at the time of the application for patent, and at the time of the entry of said land thereunder, and at the date of the issuance and granting of said patent, a lode, vein, and deposit of mineral, in quartz, and other rock in place, carrying carbonates of lead and silver, was known to exist and claimed within the boundaries of said William Moyer placer claim, survey No. 300, and that the fact that said vein was claimed and did exist within said premises was known to the said William Moyer, the patentee of said claim, at all the times herein before mentioned;" that said vein was known and claimed as the "Goodell Lode;" and that on the 1st day of February, A. D. 1879, Maurice Hayes, John Hayes, George C. Gardner, and R. E. Goodell, then citizens of the United States, went upon the premises and sunk a shaft and run a tunnel therein, which uncovered and exposed said vein, lode, and deposit; that they thereupon proceeded to locate the same as a lode claim, by putting up a notice containing the name of the lode, the date of the loca tion, and their own names as locators, and marked the surface boundaries by posts, and afterwards caused a location certificate to be filed in the office of the clerk and recorder of the county, contain. ing the name of the location, the names of the locators, the date of location, and the number of feet claimed in length on each side of the center of the discovery shaft, whereby the said locators became the owners of and entitled to the possession of said lode, the title to which afterwards by several mesne conveyances became vest. ed in the defendant.

*In stating the second defense the defendant sets up that the claim upon which it is now at work is a well-defined vein of quartz bearing silver and other valuable metals, and that the same was discovered by Maurice Hayes, John Hayes, and Thomas Starr on the 9th of November, 1877, and immediately afterwards, on the discovery of the lode, the locators caused a shaft to be sunk to the depth of more than ten feet below the surface, and within three months thereafter located the same by marking the boundaries with substantial stakes, and by filing in the office of the clerk and recorder of the county in which the claim is situated & certificate of its location, containing the name of the lode, the names of the loca

60

tors, the date of location, the number of feet in length claimed on each side of the center of the discovery shaft, and the general course and direction of the claim, and that in said location certificate and upon the location stake the same was called the "Thomas Starr Lode," and that afterwards, by various mesne conveyances, the property became vested in the defendant. No evidence was offered on the trial with reference to this Thomas Starr lode set up in the second defense, and no certificate of its location was produced; it may therefore be considered as out of the case. The controversy relates only to the Goodell lode claim set up in the first defense. The location certificate of this lode claim bears date on the 10th day of March, 1870, and recites that the claim was located on the 1st of February, 1879. The averment that its original locators, on the 1st of February, 1879. went upon the premises and sunk a shaft and run a tunnel there. on, which uncovered and exposed the vein, lode, and deposit, and that they thereupon proceeded to locate the same, was not supported by the evidence produced. The location of the claim was not preceded by the discovery of the existence of the precious metals within it. The statute of the United States respecting mining claims upon veins or lodes of quartz or other rock in place bearing gold and silver, declares that" no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. Rev. St. § 2320. One of the locators, John Hayes, was examined as a witness, and testified that he helped the surveyor to survey the lode claims-the Goodell and Gardner claimsand drive down the stakes; that afterwards he filed the certificate of location; that he knew the discovery shafts of the claims, and had been in them; that there was no discovery of any vein or lode of valuable mineral deposits within them; and that those shafts were sunk in 1879. And the tunnel alleged to have been then run was commenced and completed years before.

On the 11th of March, 1879, the locators filed with the county clerk and recorder of Lake county-the county within which the alleged lode lies-a location certificate of the lode claim, and on the 13th of April, 1881, the defendant, which had succeeded to their interest, made application for a patent for the same. The plaintiff below and in this court, the Iron Silver Mining Company, filed in the land-office its adverse claim to the application for a patent under assumed conformity with the provisions of section 2325 of the Revised Statutes, and this action is brought by that company to determine, as between the parties, the right to the possession of the land embracing this alleged lode, in pursuance of section 2326. The case was tried before a jury, and the only direct evidence offered to show the existence of a known vein or lode bearing gold or silver within the placer claim was contained in the testimony as to the tunnel run, called the "Mike Tunnel," and discoveries made in it. It was shown that the tunnel was commenced in January, 1877, and completed on

the 24th of April following. It extended 400 feet, but it disclosed within it only veins of decomposed porphyry and manganese iron. The statement that it intersected and crossed three veins is only correct in that they were veins of that character. There was no vein or lode of gold or silver bearing rock found in the tunnel, and there is an erroneous impression conveyed by the opinion of the court in that respect. The material evidence in the record as to what was found in the tunnel is given in the note below, from which it will appear, as stated above, that only veins of decomposed porphyry and manganese iron were found there. No gold ora silver was discovered in it, except in one instance, and then merely a trace of gold. at about 75 feet from the mouth of the tunnel, from which only three-quarters of an unce was obtained. This discovery did not establish the existence "of a lode, vein, or deposit of mineral in quartz or other rock in place carrying carbonates of lead and silver," as averred in the answer of the defendant. It did not of itself constitute a vein or lode in gold or silver bearing rock; it was loose gold, and was not sufficient, of itself, to induce further work upon the tunnel, or even to lead to a location of a mining claim in it. From the completion of the tunnel up to the time when this case was on trial, extending over eight years and a half, no work was done upon the tunnel, nor was any attempt made to use it, or to develop any pretended mine in it. By the law there must have been a location upon the vein in it, if there was one, before any right to such vein could be initiated, and, had such location been made, the right thus acquired was lost and forfeited by abandonment years before this action was commenced. But, as I shall show hereafter, the mere indication or presence of gold or silver is not sufficient to establish the existence of a lode. The mineral must exist in such quantities as to justify expenditure of money for the development of the mine and the extraction of the mineral. It would create surprise among miners to be told that if a trace of loose gold, such as is shown here, was found at any one spot in a tunnel leading to a placer claim, it would establish the existence of a vein or lode in the placer claim, and form the basis of a proceeding to despoil a purchaser from the patentee, years after the purchase, of a large portion of its mining property.

Evidence was also offered, against the objection of the plaintiff, to show that there were other lodes in the vicinity of the placer claim of the plaintiff, and also of the placer claim of Wells and Moyer; and also that parties in the neighborhood believed-not that they knew-that there was a vein or lode lying under those placer claims, and also of conversations in 1877 with one Stevens, who acquired his interest by purchase with one Leiter from the patentee more than a year after the patent was issued, as to his opinion of the existence of mineral at a place where he had at the time men at work, and “underlying all the ground there;" but it was not shown that the place thus loosely des