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If the facts developed on the trial are, in legal effect, the same as charged in the petition, the ruling of this court on the demurrer would be the law of the case made. The portion of the petition so construed is as follows:

"That the said bonds offered to this plaintiff were due absolutely July 1, 1901, and that the bonds offered to plaintiff would come in before those of the defendant and his associates, that plaintiff would hold a preferred place on the list, that plaintiff might depend upon the coupons being promptly met, and that she would be honorably dealt with in every respect. That the said defendant further stated and represented

that he knew the bonds offered to the plaintiff to be good,” etc.

The petition counted on written statements claimed to have been made to her by the defendant. The proof at the trial rested upon a letter written by the defendant, of date June 27, 1899, the material statement of which pertaining to the question now to be decided is as follows:

"I gave Ben a sample bond to send you, and explained to him fully all about the security. The bond issue is arranged so that one-tenth of the whole falls due each year, and the maturity of each bond is stated on its face. This is all in the hands of the trust company, and the provisions and recitals of all the bonds must be met, whether we will or not. The numbers of the bonds given Ben are No. 114 to No. 150, both inclusive, and they are all two-year bonds, due absolutely July 1, 1901, while we have the option of paying them before that date, should we be in shape to do so. Whatever bonds I or my associates (who put up the money) hold come in after yours. Indeed, you may be said to hold the preferred place on the list. The coupons on these (due 1st January and 1st July), you may depend upon it, will be promptly met, and you will be honorably dealt with in every respect."

It is thus manifested that the proof is materially different from the version given in the petition. The plaintiff was distinctly advised by this letter that the bonds issued were arranged so that one-tenth of the whole would fall due each year, and that the maturing period was stated on their face. She was further advised that all this (the bonds we presume) was in the hands of the trust company, and that the conditions as expressed on the face of the bonds would have to be met, nolens volens. This was coupled with the information that the bonds the plaintiff would get were numbered from 114 to 150, inclusive, and that they would mature absolutely July 1, 1901. Thus she was advised that in their numerical order there were 113 bonds preceding hers, the time of the maturity of which appeared on their face. She was, therefore, further advised that there was nothing on the face of the bonds indicating that they were preferential in character over the antecedent numbers. Of the statement that "whatever bonds I or my associates (who put up the money) hold come in after yours” it is sufficient to say that there is no allegation in the petition that in fact the defendant and his associates held any such bonds; nor is it alleged that the statement, if it had been in its terms an affirmation of the fact, was in fact false, followed with the appropriate ad damnum clause. Concededly this action is one for fraud and deceit. As such it must be predicated upon existing facts, and not of matters possibly to arise. The representation made must be alleged to have been false, and that the party to whom it was made was misled thereby, to her injury. “Relief can no more be administered upon facts proved but not alleged than upon facts alleged but not proved." Phelps v. Elliott (C. C.) 35 Fed. 461; Newham v. Kenton, 79 Mo. 382-385; Harrison v. Nixon, 9 Pet. 503, 9 L Ed. 201; Boone v. Chiles, 10 Pet. 209, 9 I.. Ed. 388; Reed v. Bott, 100 Mo. 66, 12 S. W. 347, 14 S. W. 1089; Hoester v. Sanımelmann, 101 Mo. 619, 14 S. W. 728; Cella v. Brown, 144 Fed. 754, 75 C. C. A. 608.

The plaintiff's ground of relief is, therefore, reduced to the statement contained in the letter that “indeed, you may be said to hold the preferred place on the list.” Taken in its connection, can this be held to amount in law to a positive, or even implied, assurance that the bonds from 114 to 150 were preferential in character? It is apparent from her testimony that the plaintiff is a woman of unusual intelligence, keenly appreciative of the import of business terms, and that she was especially alive in giving her testimony to keep prominent the essential qualities of a cause based on fraudulent representations and deceit. Clearly enough the statement last above quoted, taken in its connection, amounted to nothing more than the expression of a mere opinion, drawn from the data furnished the plaintiff in the letter, that it might be said she would hold the preferential place on the list. She was plainly enough advised, by the terms of the bonds, that they were a part of a series maturing at given dates, all of which would have to be paid according to the "letter of the bond.” Inasmuch as they were expected to be paid as they matured, she would hold the preferential place as to after-maturing bonds, for her bonds would be paid before succeeding installments would become due.

No one can be heard to say that, because of his or her inaptness in comprehending on examination the ordinary import and common acceptation of the terms employed in a written proposal, they must be made to mean more or other than what they express.

This must be so held where no other means were employed to induce the acceptance of the proposition than the language contained in the writing. The petition does not even aver that the plaintiff's bonds were not preferential as to other bonds, whereby damage resulted to her. The averment in this respect is simply that when the bonds matured and were presented payment was refused, whereupon she instituted an action in the proper court for the collection of the same against the company, which resisted payment through the defendant acting in its behalf; that the bonds had not only been dishonored by the company, but they were in fact at maturity of no value; and that she was unable to collect the same or any part thereof. The proof at the trial showed that when the bonds matured she did bring action and obtained judgment, but had been unable to collect the same because of the insolvency of the company. Resort to an action against the defendant, predicated upon fraud and deceit, would seem to be an afterthought. Unless her failure to collect resulted from the fact that the defendant represented in the letter that she “may be said to hold the preferred place on the list," this statement is quite immaterial. As already suggested, our conclusion is that the reasonable and natural construction to be placed upon the letter is that the representation as to priority of the plaintiff's bonds amounted to nothing more than that they would be paid promptly at maturity and be out of the way before succeeding installments became due.

Error is assigned of the action of the court in excluding the statement, made in the deposition of Ben Kimber, to the effect that in his conversation with the defendant, who sought his assistance in inducing his mother, the plaintiff, to accept the bonds, he stated, in effect, that the bonds were perfectly good, and in all probability they would be taken up within three or four months. In the first place, the petition throughout alleges that the representations made to her by the defendant were in writing, and as above stated these representations were predicated of said letter written to her by the defendant. This did not admit of oral statements which the defendant may have made to a third party. Both he and his mother disclaimed in their depositions that he was acting as agent for her in the transaction. Furthermore, their testimony does not claim that said alleged statement was communicated to her before she accepted the bonds. And, even if the statement had been communicated to her, it would not constitute a proper predicate for the action of fraud and deceit under the first count of the petition. If it amounted to anything, it would only be of the character of a warranty, on which the second count of the petition was based, which was held by this court, when the case was here on demurrer, to be an insufficient ground of action.

It results that the judgment of the Circuit Court must be affirmed.

(157 Fed. 203.)

(Circuit Court of Appeals, Eighth Circuit. November 16, 1907.)



Asphaltum in lodes or veins in rock in place may be entered and patented by means of lode mining claims under section 2320, Rev. St. [U. S. Comp. St. 1901, p. 1424), and it may not be secured by means of placer claims under section 2329, nor under Act Feb. 11, 1897, c. 216, 29 Stat. 526 [U. S. Comp. St. 1901, p. 1434), regarding the entry of lands contain



The distinguishing test which determines whether or not a valuable mineral deposit may be secured by a lode claim or by a placer claim is the form and character of the deposit. If it is in a vein or lode in rock in place, it may be secured by a lode claim, and it may not be by a placer claim. If it is not in a vein or lode in rock in place, it may be secured In Error to the Circuit Court of the United States for the District of Colorado.

by a placer claim, and may not be by a lode claim. 3. SAME—CONSTRUCTION—"OTHER VALUABLE DEPOSITS" IN SECTION 2320, RE


The words “other valuable deposits” in the clause "mining claims upon veins or lodes of quartz, or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits" in section 2320, Rev. St. [U. S. Comp. St. 1901, p. 1421], includes nonmetalliferous, as well as

metalliferous, deposits. (Syllabus by the Court.)

J. M. Woy (A. L. Abrahams, on the brief), for plaintiff in error.

J. E. Robinson (Edward D. Upham, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.

SANBORN, Circuit Judge. This action involves the title and the right of possession of a lode or vein of asphaltum of the kind commonly called “gilsonite," upon which the grantors of the plaintiff, Webb, located a placer claim, and the grantor of the defendant, the American Asphaltum Mining Company, subsequently located two lode mining claims. The defendant applied for a patent, the plaintiff filed an adverse claim, and brought this action to determine the title. The case was tried by the court upon an agreed statement of facts and some extraneous testimony, and the court found for the defendant. The latter's objection to the consideration of the question whether or not this finding is sustained by the evidence would be well founded, were it not for the fact that the agreed statement discloses all the material facts, and the evidence which was taken was immaterial. Hence the issue of law arises in this court whether or not the agreed facts sustained the judgment, and that issue is dependent upon the true answer to the single question: May the right to the possession and to the title to a vein or lode of asphaltum in rock in place be secured by the location of a placer claim upon the land in which it is found ?

A vein or lode is mineral-bearing rock or other earthy matter in place in a fissure in rock, so that its boundaries are sharply defined by rocky walls in place. A lode location is the location of such a lode or vein in the manner prescribed by the acts of Congress. A placer location is the location in accordance with those acts of a tract of land for the mineral bearing or other valuable deposits upon or within it that are not found in lodes or veins in rock in place. It is a claim of a tract of land for the sake of loose deposits on or near its surface. Clipper Mining Company v. Eli Mining & Land Company, 194 U. S. 220, 228, 24 Sup. Ct. 632, 48 L. Ed. 944. The plaintiff in this case has made no claim of right or title under section 2333 of the Revised Statutes (U. S. Comp. St. 1901, p. 1433], and the statements and discussion herein have no relevancy to such a claim or to the proper construction of that section. By section 2319 of the Revised Statutes all valuable mineral deposits in lands belonging to the United States are declared to be free and open to exploration and purchase. By the second section of the act of July 26, 1866 (14 Stat. c. 262), the location and acquisition by means of a lode mining claim of any "vein or lode of quartz, or other rock in place bearing gold, silver, cinnabar, or copper" were authorized. By Act July 9, 1870, c. 235, 16 Stat. 217, Rev. St. § 2329, the act of 1866 was amended by adding section 12, which provided “that claims, usually called 'placers' including all forms of deposit, excepting veins of quartz or other rock in place" might be entered and patented. By the act of May 10, 1872, section 2 of the act of 1866 was repealed and authority was granted to qualified citizens to locate and acquire by means of lode mining claims "veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits.” Act May 10, 1872, c. 152, $$ 2, 9, 17 Stat. 91, 94, Rev. St. $ 2320.

The asphaltum here in controversy is a solid valuable mineral deposit commonly called “gilsonite,” which is found in a vein or lode in rock in place. But counsel for the plaintiff insist that it is not subject to location as a lode because it is not a metalliferous deposit. They say that while it falls within the literal meaning of the words "other valuable deposits” in section 2320, those words should be interpreted by the rules noscitur a sociis and ejusdem generis, and that, as all the deposits specified in that section bear metal, the intention of Congress must be presumed to have been to restrict the meaning of that term to deposits of the same kind. The rules that, where general words follow specific words, the former are presumed to treat of things of the same character as the latter, and that words and terms should receive the interpretation which the same or similar terms must have in the same or like relations, are persuasive, and the argument founded upon them might have proved convincing if other considerations could have been ignored. But the term "other valuable deposits” occurs in a general statute enacted to provide a comprehensive and complete system for the disposition of the mineral deposits in the lands of the United States. Separate sections or clauses of this general legislation may not be lawfully segregated from the body of the statutes upon this subject and interpreted without reference to the purpose and general effect of the other laws relating thereto, but all the parts of this legislation must be considered and construed together, to the end that, if possible, it may become and be a uniform and practical system of regulation and of action.

Section 2318 provides that all "lands valuable for minerals” shall be reserved from sale, except as otherwise expressly directed. Section 2319 declares that “all mineral deposits in lands” belonging to the United States shall be open to exploration and purchase. Section 2320 specifies the method by which “veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits” may be secured, and section 2329 provides that "claims for placers including all forms of deposit, excepting veins of quartz or other rock in place may be entered and patented.” The "mineral deposits” treated in this legislation include nonmetalliferous deposits, alum, asphaltum, borax, guano, diamonds, gypsum, resin, marble, mica, slate, amber, petroleum, limestone, and building stone, as well as deposits bearing gold, silver, and other metals, and the term "lands valuable for minerals” in the law means all lands chiefly valuable for any of these mineral deposits rather than for agricultural purposes. Northern Pacific Ry. Co. v. Soderberg, 188 U. S. 526, 534-537, 23 Sup. Ct. 365, 47 L. Ed. 575; Pacific Coast Marble Co. v. Northern Pacific R. R. Co., 25 Land Dec. Dep. Int. 233, 210. Thus it clearly appears that the plan of this legislation was to provide two general methods of purchasing mineral deposits from the United States

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