and their order are well established. The tle and right to the veins in controversy? It is, however, provided by section 2322, R. S., that there must be not only compliance with the laws of the United States, but with "state, territorial and local *regulations" and appellant asserts that the location of appellees' predecessors did not comply with the territorial statute of Montana and that, therefore, though the location preceded that of appellant, it was destitute of legal sufficiency. And it is contended that the Supreme Court of Montana has decided in several cases 2 that the requirements of the state statute are imperative and that one of these cases, Baker v. Butte City Water Company, was affirmed by this court. Butte City Water Co. v. Baker, 196 U. S. 119, 25 Sup. Ct. 211, 49 L. Ed. 409. Yosemite Mining Co. v. Emerson was concerned with a regulation of the state of CalIt is further contended that "from the day ifornia which prescribed the manner of the when final entry of the Black Rock was made, location of a claim. The regulation had not certainly from the day when patent therefor been conformed to and the validity of the issued, the patentee's title not only to the sur- location was attacked on that ground by a face of the claim, but to every vein or lode, subsequeut locator who had had notice of the the top or apex of which was found within claim, he contending that there was forfeithe boundaries thereof became unassailable." ture of it. The contention was rejected and The following is the relevant chronology: we said, that to yield to it would work great The location of the Elm Orlu, following discov-injustice and subvert the very purpose for ery of mineral, was made April 18, 1875, the which the posting of notices was required, declaratory statement thereof recorded on which was, we further said, "to make known the 22d of that month; the location of the the purpose of the discoverer to claim title Black Rock was made November 6, 1875, the to the" claim "to the extent described and declaratory statement recorded the 13th of to warn others of the prior appropriation." the same month. The entry for patent of the The comment is obviously applicable to the Black Rock was made November 24, 1880, asserted defects in the declaratory statement and patent issued February 15, 1882; the of *appellees. It, like the California requireElm Orlu made final entry December 30, ment, had no other purpose than "to warn 1882, and patent issued January 31, 1884. others of the prior appropriation" of the claim, and such is the principle of constructive notice. It-constructive notice is the law's substitute for actual notice, and to say that it and actual notice are equivalents would seem to carry the self-evidence of an axiom. Besides, in this case there was unequivocal possession of the Elm Orlu and it is elementary that such possession is notice to all the world of the possessor's rights thereunder. Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. 239, 35 L. Ed. 1063. The other contention of appellant is, as we Such being the order of procedure of the parties, which acquired the title? Or, to express the issue in conformity to the contentions of appellant, was there defect in the location of appellees by reason of the Montana statute and did the prior issue of patent to appellant give impregnability to its ti 2 McBurney v. Berry, 5 Mont. 300, 5 Pac. 867; O'Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302; McGowan v. Maclay, 16 Mont. 234, 40 Pac. 602; Hickey v. Anaconda Mining Co., 33 Mont. 46, 81 Pac. 806; Baker v. Butte City Water Co., 28 Mont. 222, 72 Pac. 617, 104 Am. St. Rep. 683. have said, that the title not only to the sur- [the Circuit Court of Appeals. The inevitable face of its claim but to every vein whose top consequence is that appellees have title to the or apex was found within it became impreg- veins or lodes whose tops or apices are withnable by the issue of patent to it. We need in the Elm Orlu. This consequence appelnot follow the details of counsel's argument lant admits at the very beginning of its arguto sustain the contention-its reliance is on ment, and says that one of the vital questhe dates on which entries for the patents tions in the case is the priority of the claims were made, the Black Rock entry preceding and that if the Elm Orlu had priority over that of the Elm Orlu. It is, however, admit- the Black Rock the appellees would be entited that by the issue of the patent to the tled to all the Rainbow lode between the Elm Orlu "it was thereby conclusively ad- planes designated by the court and would be judicated or determined that at the time of also entitled "to all ores within the interfinal entry the applicants were entitled to a section spaces of that vein with the Jersey patent to that claim." But the admission is Blue vein and the Creden vein." combined with the declaration that "to authorize the courts to give effect to a mining patent as of a date anterior to the final entry, it must be made to appear that prior to that date there was a valid location [italics counsel's] upon which the patent issued." And to establish that appellees' was not a valid location appellant relies upon the asserted defect in the declaratory statement. With that defect we have dealt and have decided that it had not the consequences ascribed to it. We may say, however, that priority of right is not determined by dates of entries or patents of the respective claims, but by priority of discovery and location, which may be shown by testimony other than the entries and patents. In the absence from the record of an adverse *suit there is no presumption that anything was considered or determined except the question of the right to the surface. Lawson v. United States Mining Co., supra. The relevancy of that case is resisted. Appellant urges that by the application of the Black Rock for patent appellees were "confronted with the necessity of either adversing or suffering the consequence of a failure to do so," and the consequence is said to be that the Elm Orlu was made subordinate in time and right to the Black Rock. We cannot assent. The application of the Black Rock for patent did not show a surface conflict and the doctrine of the Lawson Case is that on an application for a patent only surface rights are determined, and Lindley is quoted for the proposition that "an application for a patent invites only such contests as affect the surface area. * We state the admission not in estoppel of appellant, but only in concentration of attention upon the question for decision. In its solution there are in dispute many elements of importance. Among these necessarily is the question: In which of the claims do the veins apex, course and dip? In the question there is complexity and grounds for diversity of judgment, and the District Court felt and expressed them after hearing and estimating the testimony and the admission of the parties. It is true, as we have seen, there was some overlapping of the lines of the claims. If, however, a conflict was thus indicated the Black Rock secured the advantage. The ground within the overlapping lines was included within the Black Rock patent and expressly excepted from the application of the Elm Orlu for its patent. And no part of the decree was determined by it. [5, 6] 2. The District Court found from the testimony that the Elm Orlu was of prior location and right and in this was confirmed by The court (Judge Bourquin) said that the chief contesting claims, the Elm Orlu and the Black Rock, "have a common side line for 850 feet of the Elm Orlu east and of the Black Rock west end." And further said: "It is now admitted that the Rainbow vein at the apex crosses the Elm Orlu west end line, courses easterly, crosses the common side line and branches in the Black Rock, one strand crossing the Black Rock north side line, and one coursing easterly a disputed distance; that the Pyle strand of the Rainbow at some depth in the Elm Orlu diverges from the south side of the said vein and coursing easterly unites with the Rainbow at the Black Rock 1,100 level; that the Jersey Blue vein at the apex crosses the Black Rock west end line and courses easterly a disputed distance, it and the Rainbow converging on strike and dip to union or crossing; that the Creden vein at some depth in the Elm Orlu near the Black Rock west end diverges from the north side of the Rainbow, courses northwesterly under both claims, and unites with or is cut off by the Jersey Blue. Very large ore bodies are in the Rainbow under both claims, at places bisected on strike by the common side line, and both parties have mined them under both claims. From various names * Pro spective underground conflicts are not the of the veins those herein are chosen to avoid subject of adverse claims.'' 99 confusion." And to all other elements of decision, presented in a trial *which occupied 16 days, the court gave a painstaking consideration and in estimate of them found the issues in favor of appellees, and carefully adjudged the rights of the contestants according to the lines of their respective properties and the relation of the mineral veins to them. The Circuit Court of Appeals affirmed the findings, saying, by Circuit Judge Gilbert: "The appellant does not assert that the find- [ other case the conveyance was of land in conings of fact are unsupported by competent evi- flict between two claims which were in litigadence, but contends that they are contrary to tion, and in execution of the intention of the the weight of the evidence. The trial court parties the deed was interpreted to convey made its findings after an evidently careful and "not merely the surface ground in conflict, painstaking investigation of the testimony and the exhibits, and after a personal inspection of as contradistinguished from the mineral the mining properties. We have examined the wealth beneath, but with this surface ground record sufficiently to see that the findings are all underlying minerals" except one vein all supported by the credible testimony of repu- which had been excluded. table witnesses. Upon settled principles, which this court has always recognized, findings so inade upon conflicting testimony are conclusive upon this appeal." In the case at bar the conveyance was of an undivided one-fourth interest in and to the "mining claim known as the 'Black Rock' quartz lode mining claim." It passed no rights or interest that did not belong to that claim or would not appertain to it. Or, to put it in another way, the deed passed the rights and interests that were derived from the United States by the location of that claim and conveyed by the patent to the locators. It was not intended to convey any of the rights of the Elm Orlu and denude it of the extralateral rights that the law conferred upon it. In other words, the contention of appellant would make the deed a conveyance of the Elm Orlu as well as of the Black Rock. We do not stop to specialize either the contests of or the judgments on particular veins. Their relative locations and the have said. But an earnest and special conrights in them are disposed of by what we test is made on the finding of the court in regard to a vein designated as the Pyle strand. The District Court said, as we have seen, "that the Pyle strand of the Rainbow at some depth in the Elm Orlu diverges from the south side of the said vein and, coursing easterly, unites with the Rainbow at the Black Rock 1,100 level." 3 And the court decreed the appellees to be the owners of and entitled to the possession of it throughout its entire depth as far as its apex was within the Elm Orlu, but expressly reserved the question of the point where the apex passes out of the Elm Orlu. In other words, in the language of the Circuit Court of Appeals, "the court left to future development the question of how far the Pyle apex continued in the appellees' location, and to what extent beneath the Black Rock it united with the Rainbow in such position as to be controlled by the apex in the Elm Orlu." This action of the District Court is attacked by appellant. It admits, however, that the Pyle strand in its downward course unites with the Rainbow at or about a point which would be intersected by a vertical plane passed through the easterly end line of the Elm Orlu extended northerly in its own direction, but denies that the apex or any portion of the apex is within the Elm Orlu and asserts that where its apex is found is altogether conjec And we said in Lawson v. United States Mining Co., supra, of the conclusion of the Circuit Court of Appeals in such case-and the concession is as great as appellant is entitled to "that if the testimony does not show that it [the conclusion of the court] is correct, it fails to show that it is wrong, and under those circumstances we are not justified in disturbing that conclusion. It is our duty to accept a finding of fact unless clearly and manifestly wrong." The findings accepted, the conclusions of law must be pronounced to be of necessary sequence. [7] One of the defenses of appellant is that on October 29, 1906, the Clark-Montana Realty Company, then being the owner of an undivided one-fourth interest in the Black Rock claim, executed and delivered to the " "9 The deed is urged as an estoppel and appellant insists that it "operates to grant the fractional interest in 'all earth, rock and ores' found within the exterior limits of the Black Rock claim extended downward vertically," citing therefor Montana Mining Co. v. St. Louis Mining & Milling Co. of Montana, 204 U. S. 204, 27 Sup. Ct. 254, 51 L. Ed. 444, and Bogart v. Amanda Consolidated Gold Mining Co., 32 Colo. 32, 74 Pac. 882. The cited cases are distinguishable from that at bar. In Montana Mining Co. v. St. Louis Mining & Milling Co. the land was conveyed "together with all the mineral therein contained," and the words were distinguished from those conveying extralateral rights and considered as a subject of the grant. In the The formal finding of the District Court is as follows: "That the Pyle strand of the Rainbow vein diverges from the south side of the latter vein in the Elm Orlu claim, and there and for some indefinite distance easterly has its apex in the Elm Orlu claim.” tural and that "for aught that appears from | 2. CoURTS 385(7)-SUPREME COURT-APPEAL FROM DISTRICT COURT-SUBORDINATE the evidence, it may have its apex in the ANCILLARY PROCEEDING. Black Rock and, indeed, this is probably the case." And it is urged that a situation is presented not of the weight of evidence, but of the absence of evidence, or, to quote counsel, the decision is "one which finds no support whatever in the testimony." But manifestly these are but assertions-attacks on the estimate of the testimony made by the District Court and Circuit Court of Appeals and the conclusion it justifies. [8] It is further said that issue was made upon the title to the Pyle strand and that it was the duty of the court to definitely pass upon it and to decide for appellant, but that "instead of entering such a decree, the court so framed, and intentionally so framed, its decree that it would not be a bar to a new suit which appellees might thereafter bring against this appellant to quiet title to all of the vein below the plane of union between it and the Pyle strand, if by further development they discovered additional evidence in support of their contention that the Pyle strand did apex in the Elm Orlu at the point of alleged forking and at its apex continued thence easterly to and across the east end line of the Elm Orlu." It is true the apex of the Pyle strand was found to be within the Elm Orlu, but all else as to the vein was reserved and, in the circumstances, properly reserved. There was simply retention of the case for supple mentary proceedings, as the Circuit Court of Appeals observed, to carry out the decree and make it effective under altered circumstances. Joy v. St. Louis, 138 U. S. 1, 47, 11 Sup. Ct. 243, 34 L. Ed. 843; Union Pacific Ry. v. Chicago, etc., Ry. Co., 163 U. S. 564, 603, 16 Sup. Ct. 1173, 41 L. Ed. 265. Decree affirmed. (249 U. S. 134) The main action being appealable directly to the Supreme Court from the District Court. under Judicial Code, § 238 (Comp. St. § 1215), as a case in which the law of a state is claimed to contravene the national Constitution, a subordinate proceeding not merely ancillary to but in effect a part of the main cause, taken for purpose of carrying into effect the decree of the Supreme Court reversing the final decree in the main cause, and at the same time to give effect to a reservation of jurisdiction by the Dis trict Court, as contained in that final decree, is likewise so appealable. 3. APPEAL AND ERROR 1197-SUPREME COURT REVERSAL- PROCEEDINGS BELOW AFTER REMAND. The mandate of the Supreme Court, on reversing decree of District Court enjoining, as confiscatory, enforcement of rates prescribed by Railroad Commission, containing a provision authorizing further proceedings, the District Court can, after remand, determine liability of the railroad company on its injunction bond. The clauses of the final decree of the District Court, whereby it, on enjoining enforcement of rates, prescribed by Railroad Commission, and vacating the injunction bond and releasing the sureties, retained jurisdiction for purpose of making such further orders as might become necessary, coupled with mandate of Supreme Court, permitting further proceedings in conformity to its opinion and decree and according to right and justice, empowered the District Court to set aside so much of its final decree as released the railroad and its sureties from liability previously incurred under such bond, irrespective of whether the reversal of the decree, in respect of its main provisions granting injunction, had the effect of reversing also the portion discharging liability on bond. 5. INJUNCTION 235-BOND-CONDITIONS BREACH OR FULFILMENT. The condition of the bond of a railroad company in suit to enjoin rates prescribed by Railroad Commission-that if it should be eventual ARKADELPHIA MILLING CO. V. ST. decided that the order inhibiting the enforcement of such rates should not have been made, complainant should refund-does not require (Submitted Dec. 17, 1918. Decided March 3, express adjudication that the order should not 1. COURTS 1919.) Nos. 92-95. 385(7)-SUPREME COURT-APPEAL FROM DISTRICT COURT "STATE LAWS." Orders of State Railroad Commission, fixing rates, are "state laws," within Judicial Code, § 238 (Comp. St. § 1215), allowing appeal directly from District Courts to the Supreme Court in a case in which the law of a state is claimed to contravene the national Constitution. [Ed. Note.-For other definitions, see Words and Phrases, State Law.] have been made, but it is enough that complainant fails in its burden of proof that the rates were inadequate. 6. INJUNCTION 239-BOND-EXTENT LIABILITY. OF Claims for overcharges after the final decree of injunction, afterwards reversed, in suit by railroad company to enjoin enforcement of rates prescribed by Railroad Commission, are not recoverable on the injunction bond, nor against the sureties; obligation of the bond, given on granting of temporary injunction, conditioned to refund if it should eventually be decided that the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes order inhibiting the enforcement of the rates | Commission in the exercise of legislative auought not to have been made, expiring when the suit was brought to a final conclusion. 7. INJUNCTION 260-WRONGFUL INJUNCTION-RECOVERY IN INJUNCTION SUIT. thority of the state, cannot be set aside by the court on the ground of discrimination, unless it amounts to a denial of the equal protection of the laws guaranteed by the Fourteenth Amend ment. Claims for overcharges by railroad company between final decree enjoining enforcement of rates, prescribed by Railroad Commission, and reversal thereof, though not recoverable on the bond given on issuance of temporary injunction, may be allowed by the court against the railroad company under the inherent power of the court, so long as it retains control of the subject-matter and the parties, to correct that which has wrongfully been done by virtue of its process. 8. CARRIERS 18(6)-REGULATION OF RATES -RESTRAINING ENFORCEMENT-RELIEF TO SHIPPER. A shipper, though not a party to suit by railroad to enjoin enforcement of rates prescribed by Railroad Commission, but coming in by intervention before the master, to whom, after reversal of the decree of injunction, reference was made for purpose of determining damages, is in a position to invoke the principle of restitution of overcharges during the continuance of the injunction; the Railroad Commission, in defending the rates, representing all shippers. 9. REFERENCE 48-ORDER-QUESTION DETERMINABLE INJUNCTION BOND-RESTITU TION. 13. CONSTITUTIONAL LAW 42-PERSONS WHO MAY RAISE QUESTION OF CONSTITU BY TIONALITY. A rough material rate, working no discrimination against railroad companies, being applicable on all roads alike, cannot be complained of by one of them as denying equal protection of the laws, because of any possible discrimination therein against small shippers. 14. COMMERCE 34-RATES APPLICABLE "INTERSTATE COMMERCE." Objection that order of reference was made under a rule of the court that related only to damages recoverable on injunction bond, given by railroad in suit to enjoin enforcement of rates prescribed by Railroad Commission, and Decree for complainants in separate suits furnished no foundation for decree against the by the St. Louis Southwestern Railroad Comrailroad on the theory of restitution of the ex-pany and the St. Louis, Iron Mountain & cess charges between permanent injunction and Southern Railway Company against the Railreversal of that decree, not recoverable on the road Commission of Arkansas and two shipbond, is without weight; the railroad having pers, to enjoin enforcement of rates prescribbeen fully heard on the merits, and there being ed by the Commission, having been reversed no question about the facts. by the Supreme Court, and its mandate hav10. JUDGMENT 565-CONCLUSIVENESS ing gone down, the District Court made a JUDGMENT WITHOUT PREJUDICE. reference to determine damages, on which there intervened the Arkadelphia Milling Company, Joseph F. Hasty and others, part That the reversal by the Supreme Court of the decree enjoining enforcement as confiscatory of rates prescribed by the Railroad Commission was without prejudice did not depriveners as J. F. Hasty & Sons, and the Southern Cotton Oil Company. Exceptions to the report the Supreme Court's decree of conclusiveness as to past transactions, and so did not, as leaving of the master in favor of the claims of the the rights of the parties still in doubt, render interveners were sustained by the District it improper for the District Court to award Court as to claims of the Arkadelphia Milling damages against railroad, either on the basis of Company and J. F. Hasty & Sons, and overa breach of injunction bond or on the basis of ruled as to claims of the Southern Cotton Oil restitution, but only prevented the decree from Company, and decree was made accordingly, being a bar to future injunction suits on a from which the first two claimants and the showing of changed conditions. Railway Companies appeal. Reversed on apAc-peals of claimants, and modified and affirmed on appeal of Railway Companies, and cause remanded. 11. INTEREST 39(4) OVERCHARGES CRUAL. Interest on overcharges by carrier, wrongfully made and without consent of shipper, runs from the date when made; the damage being then complete. 12. CARRIERS 18(1)-RATES-FIXING COMMISSION-REVIEW BY COURT-DISCRIMI NATION. A rough material rate, constituting part of a general schedule established by a Railroad A shipment of rough material from forest to milling point, both within the state, is not interstate commerce, rendering state rates inapplicable thereto, though followed by forwarding of finished products to points outside the state, where it would eventually be sold not being known till after material was manufactured and stored, and this though previous experience indicated that 95 per cent. of it must be marketed outside the state. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] Appeals from the District Court of the United States for the Eastern District of Arkansas. Messrs. W. E. Hemingway, G. B. Rose, D. H. Cantrell, J. F. Loughborough, and V. M. Miles, all of Little Rock, Ark., for appellants in 92 and 93 and appellees in 94 and 95. Messrs. J. M. Moore and George A. McConnell, both of Little Rock, Ark., for appellees in 92 and 93 and appellants in 94 and 95. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
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