This is a writ of error to circuit court for the district of Colorado, which brings here for review a judgment of that court in an action to recover possession of a part of a vein or lode of mineral deposit.
The plaintiff below, the Iron Silver Mining Company, alleged that it was the owner of 193.43 acres of land, conveyed by the United States by patent to its grantors, and seeks to recover of defendants a part of the land thus patented. It is described in the petition as mining land and a mining claim. The patent under which plaintiff claims, which was introduced in evidence, purports to be for placer mines, and it takes two pages of printed matter to describe the courses, distances, and corners. As the law does not permit any one claim to cover more than 20 acres in locating placer mining claims, it is obvious that under the ruling of this court in Smelting Co. v. Kemp, 104 U.S. 636, a number of these claims, amounting at least to 10, have been consolidated into one patent, which was issued to Wells and Moyer, the patentees.
The defendants asserted a right to the vein or deposit in which they were working under lode claims called the 'Crown Point' and 'Pinnacle' claims, which were older than that of plaintiff. Defendants also set out another defense in the following language: 'That at the time of the survey, entry, and patenting of the said Wells and Moyer placer claim, a certain lode, vein, or deposit of quartz or other rock in place, carrying carbonates of lead and silver-bearing ore, and of great value, called the 'Pinnacle Lode,' and a certain lode, vein, or deposit carrying like minerals of great value, were known and claimed to exist within the boundaries and underneath the surface of said placer claim, survey lot No. 281; and that the fact that such vein or veins were claimed to exist and did exist as aforesaid within said premises was known to the patentees of said claim at all the times hereinbefore mentioned; and that in the application for patent for said placer claim the said vein or veins so known to exist were not included, and were, in the patent issued upon such application, expressly excluded therefrom. And, further, in the said patent it was expressly and in terms reserved that the premises in and by such patent conveyed might, by the proprietor of any such vein or lode of quartz or other rock in place bearing mineral or ore as aforesaid, be entered for the purpose of extracting and removing the ore from such lode, vein, or deposit, should the same, or any part thereof, be found to penetrate, intersect, pass through, or dip into the premises by such patent granted.'
The case was tried by a jury, and a verdict rendered for plaintiff, under a charge from the court which required such a verdict at their hands.
The case here must be decided on the correctness of the action of the court in giving that charge, and in refusing to give instructions asked by defendants.
The full charge of the court, which was duly excepted to, is as follows: