Dissenting Opinion: Field, Harlan, Brown, JJ. that the term, as used in the acts of Congress, is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rocks." And this court in Iron Silver Mining Co. v. Cheesman, 116 U. S. 529, 534, followed this citation by observing: "This definition has received repeated commendation in other cases, especially in Stevens v. Williams, 1 McCrary, 480, 488, where a shorter definition by Judge Hallett, of the Colorado Circuit Court, is also approved, to wit: 'In general it may be said that a lode or vein is a body of mineral, or mineral body of rock, within defined boundaries, in the general mass of the mountain."" To constitute, therefore, a known lode, within the meaning of the statute, a belt or zone of mineralized rock lying within boundaries clearly separating it from the neighboring rock, must not only be ascertained, but must be so far developed or defined as to be capable of measurement. A right to a lode can only be initiated by location, and the statute declares that no location can be made until the discovery of a lode or vein bearing metal. And to embrace the lode within the patent of a placer claim the applicant must, if it be known, pay for it at the rate of five dollars per acre. But he cannot pay any sum, or offer to pay so as to be effectual, until he can ascertain the number of acres contained in the lode claim desired, that is, until the ground can be measured. Nor could the officers of the land department accept any sum from the applicant until such measurement, upon a mere speculative opinion as to the extent of the supposed lode. In Sullivan v. Iron Silver Mining Co., 109 U. S. 550, this question was considered by the Circuit Court, but was not passed upon by this court, it not being deemed to necessarily arise on the pleadings. The plaintiff in that case had brought an action upon a patent for a placer claim. The defendant had located within it a lode claim after the patent was issued, and he set up in defence that the lode was known to the patentee at the time of the application for the patent, and not having been embraced in it was by the statute excluded from the patent. The plaintiff demurred to this answer, and the court held it was insufficient in not averring that the lode had been dis Dissenting Opinion: Field, Harlan, Brown, JJ. covered and located or recorded at the time of the application. But this court, without passing upon the necessity of such location or record, held that as a matter of pleading it was sufficient to aver that the lode was known to exist by the patentee at the time of his application for a patent, and was not included in his application, observing that, by the elementary rules of pleading, facts may be pleaded according to their legal effect, without setting forth the particulars that lead to it. The question as to what constitutes a known lode remained, therefore, unaffected by that decision. For the reasons stated above it would seem that not merely must a discovery of mineral be made to constitute a known lode within the meaning of the statute, but that such development of its extent must be made as to enable the applicant to comply with the law in tendering the requisite price. The Circuit Judge, Mr. McCrary, who rendered the judgment of the Circuit Court, thus reversed on a point of pleading, felt that the construction placed by him upon the statute was the only one which made it consistent with itself or practicable in application. "The first thing," he observes, "that strikes us as important in the construction of this language [of section 2323] is that we are referred back to section 2320 for a description of the vein or lode which is referred to, and which is not to pass to the patentee, unless he has complied with this provision of the statute: Where a vein or lode, such as is described in section 2320.' What sort of vein or lode is described in section 2320 ? "By reference to that section, we see that it relates entirely to vein or lode claims, and the description which it contains is a description of the metes and bounds of a vein or lode claim, not the lode simply, but a lode claim; one that has been located, which has boundaries, which has been developed; it gives us its dimensions; it declares it shall have been located; it says it shall be a claim in which there has been a discovery of mineral, etc. "I am of the opinion that a vein or lode that has never been claimed, that has not been located, that has not been Dissenting Opinion: Field, Harlan, Brown, JJ. marked out by metes and bounds, and in which there has been no actual development, or, to use the language of the statute, discovery of a vein or lode within the limits of the claim located,' is not a vein or lode such as is described in section 2320. The description must refer to these things; the section describes nothing else, and to its description we are plainly referred. It follows that the language must refer to a vein or lode which has been located, which has boundaries, which has a locality, which has had some sort of development, or else it cannot be such a vein or lode as is described in section 2320." 5 McCrary, 274, 277, 278. The case of Noyes v. Mantle, 127 U. S. 348, does not, when properly understood, militate, as supposed, against this view. The court in its language there used had reference to the rights of parties other than the applicant for the placer pat ent, when it said that the statute did not apply to lodes or veins within the boundaries of a placer claim which had been previously located under the laws of the United States, and were in the possession of the locators, and could apply only to lodes or veins not taken up and located so as to become the property of others. The statute has reference to cases where the same person, association or corporation is in possession both of the placer claim and of the vein or lode within its boundaries. In such cases, if the lode claim is known to the applicant to exist, he must designate it in his application; but it cannot, of course, be known to him to exist, whatever his conjectures may be, until the lode is discovered and located so as to enable him to state its existence and extent in his application for a patent of the placer claim, and to tender the price per acre required. If there be any variance between these views and those expressed in Iron Silver Mining Co. v. Reynolds, 124 U. S. 374, 384, as to the manner in which knowledge of the existence. of a lode within the boundaries of a placer claim may be obtained, it is because of a more careful consideration of the subject in later years than formerly, and of larger experience in mining cases. As stated above, there can be no location of a lode or vein. Dissenting Opinion: Field, Harlan, Brown, JJ. until the discovery of precious metals in it has been had. And then it is not every vein or lode which may show traces of gold or silver that is exempted from sale or patent of the ground embracing it, but those only which possess these metals in such quantity as to enhance the value of the land and invite the expenditure of time and money for their development. No purpose or policy would be subserved by excepting from sale and patent veins and lodes yielding no remunerative return for labor expended upon them. Such exceptions would only be productive of embarrassment to the patentee, without any benefit to others. In a suit brought by the United States to cancel certain placer claims against the plaintiff in this case, alleging, among other things, that the patents were obtained by false and fraudulent representations, that the land contained no known veins or lodes of quartz or other rock in place bearing gold or silver or other metals, the court, speaking of the evidence in the case as insufficient to sustain the allegation, said: "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." United States v. Iron Silver Mining Co., 128 U. S. 673, 683. See to the same purport Deffeback v. Hawke, 115 U. S. 392, 404, and Colorado Coal Co. v. United States, 123 U. S. 307, 328. In the case at bar, as stated above, the alleged location of the lode of the defendant was not preceded by the discovery of any precious metals within it. There was, therefore, in fact no lode to locate, and of course no location initiated or measurement possible. (Rev. Stat. 2320.) No weight ought to be given to a defence resting upon such a basis. The court below should have insisted upon proof of the discovery of mineral in the alleged lode claim of the defendant, or have directed a verdict as moved in favor of the plaintiff. And when the motion was refused, if the views I have expressed of Dissenting Opinion: Field, Harlan, Brown, JJ. what constitutes a known lode within the meaning of the statute, and as to the knowledge of such lode at the time of the application for the patent, be correct, the instructions requested should have been given, and their refusal was error for which the judgment should be reversed. Much of the evidence received at the trial was also subject to serious objections. To show that the alleged lode of the defendant was known to exist before the patent was issued, the court below allowed evidence, against the objection of the plaintiff, to be introduced, 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 evidence that parties in the neighborhood believed that there was a vein or lode lying under those placer claims, and also evidence of conversations in 1877 with one Stevens, who only 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 underlying all the ground where he had men at work, although the ground thus loosely designated was not shown to have covered the premises in controversy. 1. At the outset of the trial the deposition of one Leonhardy was introduced in which he was allowed to testify in regard to lode claims located in the vicinity of the placer claim of the plaintiff and the placer claim of Wells and Moyer, against the objection of the plaintiff that the testimony was not competent or relevant. He stated that he knew of a "great many holes having been sunk there" between 1860 and 1880. And he referred to the claim of the Oro La Plata and to the Pennsylvania claim, and was allowed to give testimony as to the character of the dump of the former, and also of the underground workings of the latter, and of the kind of vein that it disclosed. He was also permitted to speak of adjoining mines, called the Rock and Dome mines, and how long he had known them, and of his examination of their workings. Testimony of the same general character, though less full in detail, in reference to the same and other claims in the vicinity of the placer claim, was given by other witnesses. It would seem that the court below, in admitting evidence |