Mr. Justice FIELD, concurring.
I concur in the judgment of affirmance in this case, but, as I do not agree with all the views expressed in the opinion of the court, I have concluded to state my own separately.
The action is for the possession of certain mining ground known as the 'Kit Carson Lode,' situated in Colorado, and within the boundaries drawn down vertically from the surface of what is known there as the 'Wells and Moyer Placer Claim.' This placer claim was patented to Wells and Moyer March 11, 1879, upon an application made May 16, 1878, and an entry made July 22d, following. It is designated in the public surveys as 'Mineral Lot No. 281.' It embraces 193 acres and a fraction of an acre, which are fully described by metes and bounds both in the patent and the complaint in the action. The patent, among other conditions, contains the following:
'First. That the grant is restricted within the boundaries of said lot 281, and to any veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits thereafter discovered within those limits, and which were not claimed or known to exist at the date of the patent.
'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 of the patent, the same are expressly excepted and excluded from it.'
The defendants in answer to the action recited these exceptions to the patent, and set up 'that at the time of the location of said placer claim, and the survey thereof, and at the time of the application for said patent, and at the time of the entry of said land thereunder, and at the time and date of the issuing and granting of said patent, a lode, vein, or deposit of mineral ore in rock in place, carrying carbonates of lead and silver, and of great value, was known to exist, and was claimed to exist, within the boundaries and underneath the suface of said Wells and Moyer placer claim No. 281; and that the fact that said vein was 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 the said application for said patent by said patentees and grantors of said plaintiff did not include any application whatever for a patent of or to said lode or vein within its boundaries aforesaid.' The defendants therefore averred 'that the said failure tc include said vein or lode in said application amounted to a conclusive declaration by said patentees that they made no claim whatever to said lode or vein, or any part thereof, and that the same was expressly excepted and excluded from, and did not pass with, the grant of the premises by the patent.'
The defendants further allege that on the 1st of January, 1883, they, being then and now citizens of the United States, went upon the premises described in the complaint and sunk a shaft thereon, which uncovered and exposed said lode, vein, or deposit, and that thereupon they proceeded to locate the same as a lode claim by erecting at the point where they cut the said vein a notice, containing the name of said lode, to-wit, the Kit Carson lode, the date of the location, and their names as locators, and caused the surface boundaries of the claim to be marked by posts, and afterwards filed a location certificate containing the name of the lode, the names of the locators, the date of the 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 as near as might be. The defendants therefore claimed the right to occupy and possess the premises in full accordance with and by virtue of a full compliance with the requirements of the laws of the United States and of the state of Colorado; the said vein, lode, or deposit being a part and parcel of the unappropriated public mineral domain of the United States.