*388 On application to file stipplemental transcript and on petition for rehearing.
Chief Justice Campbelldelivered the opinion of the court.
1. After the petition of plaintiff in error for a rehearing was presented, it asked leave to file a supplemental record to bring up proceedings in the district court which occurred subsequent to final judgment, in which, for the first time, alleged errors of that tribunal are called to our attention.
These proceedings were attacked by motions below upon which the rulings were against plaintiff in error. The objections and exceptions thereto were not preserved by a bill, as required by our practice, and for this reason alone they might now be disregarded. But, in addition to this, some of the matters embodied in the supplemental transcript were within the knowledge of plaintiff in error at, and prior to, the trial below, and all of them before the original bill of exceptions was approved and signed by the trial judge, and long before the original transcript was lodged in this court. They were, therefore, as well known to plaintiff in error before the cause was argued and submitted in this court, and before the original opinion was handed down, as they were when this application was made. It is clear that the request should be denied. Our practice precludes a party, upon a petition for a rehearing, to raise new questions. Lamar Co. v. Amity Co., 26 Colo. 370; Orman v. Ryan,, 25 Colo. 383; Water Co. v. Irrigation Co., 24 Colo. 322.
2. The petition for a rehearing is based upon three propositions: (a) the court erred in holding *389that the secretary of the interior in the matter of the protest against Searl’s application for a patent did not decide that the ground was not placer ground, and that said judgment of the land department was not conclusive; (b) there was error in holding that, as matter of fact, the evidence in the court below did not show that the lode claims located by the plaintiff in error were known lodes at the time of the location, and that there was further error in holding that a lode location cannot be made within the limits oí an existing placer location except upon a known lode or vein; (c) the court misconstrued the effect of the decisions in the cases of Aurora Lode v. Bulger Hill and Nugget Gulch Placer, 23 L. D. 95, and The Mt. Rosa M. M. & L. Co. v. Palmer, 26 Colo. 56.
(a) We can add nothing under this head to what is contained in the foregoing opinion. No authority is cited and no argument now made which were not before us upon the original hearing. The authorities already referred to clearly refute the position of plaintiff in error. The decision of the land department in the case at bar was precisely the same in principle as that considered in the case of Beals v. Cone, supra; and plaintiff in error concedes that if this court still adheres to the doctrine of that case, as it does, the present contention falls.
In this connection we may add that, if the position of plaintiff in error is sound, it has no standing in this court; for the first decision ever made by the land department with respect to the mineral character of the Searl placer was in favor of the placer claimant in a contest between him and a townsite claimant. See 7 Copp’s Land-Owner, 36. Such being the first decision of the land department, if, as plaintiff in error contends, it is res adjudicata as to *390the mineral character of the placer claim, the controversy is ended, and plaintiff in error cannot reopen that question.
(b) Where in the original opinion it is intimated that plaintiff in error admits that the trial court rightly determined that the Searl placer was an existing valid location at the time of the attempted location of the lode claims, it was not our intention to say that the admission was voluntary, but only that the finding, having been made upon conflicting evidence, under the established rule in this jurisdiction the plaintiff in error, as well as the court, for the purposes of this review, is concluded by it. The transcript does not purport to contain all of the evidence.
The abstract recites that certain evidence was introduced in behalf of the plaintiffs tending to establish their cause of action, and certain other testimony in behalf of the defendant to establish its defenses. In such circumstances we cannot investigate to ascertain on which side the preponderance of the evidence is. Indeed, there has never been any serious contention that the findings of fact of the trial court were not sustained by the evidence.
In the case of The Fannie Rawlings M. Co.v. Tribe, ante p. 302, decided at this term, it was said: “Ap-“ pellate courts must assume, in the absence of specific and unambiguous findings of fact to the contrary, that the lower court intended to find those facts which are responsive to the issues made by the pleadings, and essential to the judgment rendered.” Let this rule be applied to the case at bar. The defendant alleged, and the plaintiffs denied, that the lode claims were known to exist before application for a placer patent. The findings were that the locators of the lode claim had not the right to go upon the *391territory included within the placer location for the purpose of prospecting and locating lodes. Possibly, we have not hitherto made sufficiently prominent the fact that a patent for the placer was applied for long before an attempt was made to locate the lode claims, the original application in the year ,1878 or 1879, the exact date being immaterial. An amended application was made in the year 1882, which was rejected by the secretary of the interior in November, 1890, and it was not until after this last date that the locators of the lode claims made an entry upon the placer location.
It may be true, as counsel for plaintiff in error says, that a belief existed in Leadville that this territory was underlaid with mineral, but, so far as we are able to determine, there does not seem to have been any knowledge of that fact, so far as the territory in controversy is concerned, until after the entry by defendant’s grantors. At all events, .the application for a placer patent was made eleven or twelve years before the alleged right to the lode claims was initiated. Before it can be said that a lode is known to exist, there must be actual knowledge, as distinguished from supposition dr surmise. Sullivan v. Iron Silver M. Co., 142 U. S. 431. And’in order to uphold the judgment we shall assume, as very properly we may, that the trial court, as a matter of fact, found that the lodes were not known to exist until after the application for a patent was made. Indeed, we do not see what other finding could possibly be made when it is considered that the locators of the lode claims did not enter upon the placer claim to prospect until years after its owners had applied for a patent. And for aught that appears to the contrary—which is the contention of defendants in error in argument—the *392lodes may have been discovered and their existence thus first become known only by sinking a shaft to a depth of several hundred feet beneath the surface, and that the entry by the lode locators was forcible and against the will of the placer claimant.
(c) Counsel insists that we have misconstrued the decisions in the cases of the Aurora Lode and the Mt. Rosa company upon which we commented in the former opinion. We have given attentive consideration to their argument in that behalf and after carefully re-reading the opinions are satisfied that we have not misconceived their effect. In the syllabus of the Aurora case it Js said that the location of a mining claim “does not operate to give title or right of possession to veins or lodes within its limits, or preclude the right of discovery and location thereof by others.” This language seems to be taken substantially from what is said in the opinion of the secretary of the interior at page ioi of the official report. The statement, removed from its proper setting, may be broad enough to include unknown as well as known veins or lodes; but, considered, as it should be in connection with the context, it is clear that the secretary intended it to apply only to known lodes, for he expressly says, in speaking of the general rulé if the veins or lodes were “not known to exist at that date (i. e., when patent for placer claim is applied for), the placer patent will carry the title to them.”
This cammean nothing else than that, if lodes or veins are not known to exist within the limits of a placer location at the time when patent for the latter is applied for, they belong to the placer claimant, and one may not thereafter make an entry upon the placer claim for the purpose of discovering and locat*393ing them. But if the decision of the secretary of the interior in this case can, by any canons of construction, be considered authority for the contention of plaintiff in error here, that a prospector may, without restriction, within the limits of a prior valid placer claim, prospect for, and thereafter lawfully locate, lodes not known to exist at the time of the application for a placer patent, its binding effect would seem to be overcome by the" decision of the supreme court of the United States in Bennett v. Harkrader 158 U. S. 441, and in many other decisions of that and other courts.
The learned counsel for plaintiff in error were permitted, amici curies, to file a brief in the Mt. Rosa case, and we then had the benefit of their learning and research, and the record in the case at bar was before us when that opinion was prepared by Mr. Justice Goddard. It was with full knowledge of the issues herein and as particularly applicable to the argument of this plaintiff in error made in that case, which is the same as it is here, that the following language found on page 61 was used:
“While we recognize to its full extent the rule that precludes the initiation of a right through a trespass upon the lawful possession of another, we think, under the established facts in this case, appellant is not in a position to invoke its protection. The lodes in question were known to exist prior to the application for patent; and appellant not having taken the necessary steps to obtain them, they were open to location by others at the time they were located by the grantors of appellee. In making the locations, no right of appellant was invaded, and their validity, therefore, is in no way affected by the fact that they *394were made within the surface boundaries of a prior placer location.”
We then had in mind, as we do now, the distinction between the facts of that case and the case at bar. There it was unquestioned that the lode claims were known to exist within the limits of the placer location before an application for patent for the latter was made. In the case at bar, as we have seen, the findings of fact of the trial court, which upon this review are conclusive upon us, are that the lode claims were not known to exist until long after the application for the placer patent was filed. The distinction is vital and the rule in the two cases is different.
In Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U. S. 55, the court, in making answer to questions certified to it by the United States circuit court of appeals of the eighth circuit, said that “the lines of a junior lode location may be laid within, upon or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extra-lateral rights not in conflict with any rights of the senior location.” And this answer, plaintiff in error now contends, is authority for its contention to which we have just referred. With this we cannot agree. Mr. Justice Brewer, who wrote the opinion in that case, expressly recognizes the fact that no rights can be initiated as the result of a trespass, and on page 79 of the opinion says that the form in which the question is put excludes any impairment or disturbance of the substantial rights of the prior locator; and he quotes with approval thé statement from 1 Lindley on Mines, §363, that “A subsequent locator may not invade the surface territory of his neighbors and include within his boundaries any *395part of a prior valid and subsisting location. But conflicts of surface area are more than frequent.”» While the learned judge was speaking of lode claims, the principle is just as applicable to a placer claim to the extent of the surface rights which belong to it. So long, therefore, as lode claims are not known to exist within the limits of the prior placer claim at or before the time of the application for placer patent, it is unlawful for one to go within its limits for the purpose of prospecting for, and with the hope of discovering and locating, them.
The application to file a supplemental record and the petition for a rehearing are each denied.
Mr. Justice Steele dissents.