by either of the claimants or by any other person. But at the time plaintiff and his ássociates located it defendant, although not then actually occupying this ground, was in actual occupation of a contiguous claim of 160 acres known as the "Sampson claim," upon which it then was drilling and afterwards continued to drill a well for the discovery of oil, the well being 1,000 feet distant from the boundary line of the disputed claim. Defendant claimed the right of possession of five contiguous claims, including the "Rawley-Schley" and the "Sampson," under locations regularly made in all respects save discovery. Defendant pleaded and proved these facts, and also introduced evidence warranting a finding that its boring work on the "Sampson claim" tended to determine the oil-bearing character of the "Rawley-Schley claim." It was and is defendant's contention that by virtue of the act of 1903 one who has acquired the possessory rights of locators before discovery in five contiguous claims taken up as oil-bearing lands may preserve and maintain an inchoate right to all of them by means of a continuous actual occupation of one, coupled with diligent prosecution in good faith of a sufficient amount of discovery work thereon, provided such work tends also to determine the oil-bearing character of the other claims. "No location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." By section 2322 (sec. 4618) locators of mining locations on the public domain"so long as they comply with the laws of the United States, and with state, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins," etc. By section 2324 (section 4620): "The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be * *On each claim located readily traced. after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. On all claims located prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars' worth of labor shall be performed or improvements made by the tenth day of June, eighteen The superior court of the county, and, on hundred and seventy-four, and each year there-2 appeal, the Supreme Court of the state, over-after, for each one hundred feet in length along ruled this contention and gave judgment in favor of the plaintiff (Smith v. Union Oil Co., 166 Cal. 217, 135 Pac. 966), and the case was brought here by writ of error under section 237, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), prior to the amendment of September 6, 1916 (39 Stat. 726, c. 448 [Comp. St. § 1214]). It will be observed that both parties are in the position of prospectors or explorers upon the public domain-locators without discovery; and, in order to appreciate correctly what effect, if any, the act of 1903 has upon their rights, it is important to have in mind what is meant by "annual assessment labor," and the part it plays in the operations of miners under the mining laws of the United States. * By section 2319, Rev. Stat. U. S. (Comp. St. § 4614), all valuable mineral deposits in lands belonging to the United States are declared to be "free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States." By section 2320 (section 4615 it is declared: the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such loca tion." Section 2325 (section 4622) and sections fol lowing permit a patent to be obtained for a mineral claim, and regulate the procedure, By section 2325 the applicant for patent is re quired (among other things) to file "a cer tificate of the United States surveyor gen eral that five hundred dollars' worth of labor has been expended or improvements made up on the claim by himself or grantors," and, upon his compliance with this and other re quirements, if after publication of notice for 60 days no adverse claim is filed, or (section 2326 [section 4623]) such claim, having been filed, has proceeded to adjudication in a court of competent jurisdiction with result favorable to the applicant, upon a payment of $5 per acre and proper fees a patent is issued for the claim or such portion thereof as has been decided to be in the rightful possession of the applicant. By section 2329 (section 4628) placer claims are made subject to entry and patent under like circumstances and con 346 ditions and upon similar proceedings as are provided for vein or lode claims; the purchase price of placer claims being fixed by section 2333 (section 4632) at $2.50 per acre. 901, 88 C. C. A. 83; Hanson v. Craig, 161 Fed. 861, 863, 89 C. C. A. 55; s. c., 170 Fed. 62, 65, 95 C. C. A. 338; Gemmell v. Swain, 28 Mont. 331, 335, 72 Pac. 662, 98 Am. St. Rep. 570; New England, etc., Oil Co. v. Congdon, 152 Cal. 211, 92 Pac. 180; Whiting v. Straup, 17 Wyo. 1, 19, 23, 95 Pac. 849, 129 Am. St. Rep. 1093; Phillips v. Brill, 17 Wyo. 26, 38, 95 Pac. 856.1 Under this legislation petroleum for many years was regarded as a mineral, although not specially mentioned as such, and claims to oil lands were disposed of by the Land Department under the provisions of law relating to placer claims, with a single excep- And it has come to be generally recognized tion afterwards overruled. Union Oil Co., 23 that while discovery is the indispensable fact L. D. 222, decided August 27, *1896; Union and the marking and recording of the claim Oil Co. (on review) 25 L. D. 351, decided No dependent upon it, yet the order of time in vember 6, 1897. It was in order to obviate which these acts occur is not essential to the the effect of the former of these two deci- acquisition from the United States of the exsions that Congress passed the act of Febru-clusive right of possession of the discovered ary 11, 1897 (29 Stat. 526, c. 216 [Comp. St. minerals or the obtaining of a patent there§ 4635]), which declared: "That any person authorized to enter lands under the mining laws of the United States may enter and obtain patent to lands containing petroleum or other mineral oils, and chiefly valuable therefor, under the provisions of the laws relating to placer mineral claims" -with a proviso saving petroleum land theretofore filed upon, claimed or improved as mineral but not yet patented. See House Rep. No. 2655, 54th Cong. 2d Sess.; 29 Cong. Rec. pt. 2, p. 1409; Burke v. Southern Pacific R. R. Co., 234 U. S. 669, 678, 34 Sup. Ct. 907, 58 L. Ed. 1527. [1] Aside from the suggested effect of the act of 1903, it is clear that in order to create valid rights or initiate a title as against the United States a discovery of mineral is essential. Section 2320, Rev. Stat.; Waskey v. Hammer, 223 U. S. 85, 90, 32 Sup. Ct. 187, 56 L. Ed. 359. Nevertheless, section 2319 extends an express invitation to all qualified persons to explore the lands of the United States for valuable mineral deposits, and this and the following sections hold out to one who succeeds in making discovery the promise of a full reward. Those who, being qualified, proceed in good faith to make such explorations and enter peaceably upon vacant lands of the United States for that purpose are not treated as mere trespassers, but as licensees or tenants at will. For since, as a practical matter, exploration must precede the discovery of minerals, and some occupation of the land ordinarily is necessary for adequate and systematic exploration, legal recognition of the pedis possessio of a bona fide and qualified prospector is universally regarded as a necessity. It is held that upon the public domain a miner may hold the place in which he may be working against all others having no better right, and while he remains in possession, diligently working towards discovery, is entitled-at least for a reasonable time-to be protected against forcible, fraudulent, and clandestine intrusions upon his possession. Zollars v. Evans (C. C.) 5 Fed. 172, 173; Crossman v. Pendery (C. C.) 8 Fed. C93, 691; Johanson v. White, 160 Fed. for, but that discovery may follow after location and give validity to the claim as of the time of discovery, provided no rights of third parties have intervened. Mining Co. v. Tunnel Co., 196 U. S. 337, 345, 348–352, 25 Sup. Ct. 266, 49 L. Ed. 501; Weed v. Snook, 144 Cal. 439, 443, 77 Pac. 1023. In the California courts the right of a locator before discovery while in possession of his claim and prosecuting exploration work is recognized as a substantial interest, extending not only as far as the pedis possessio but to the limits of the claim as located; so that if a duly qualified person peaceably and in good faith enters upon vacant lands of the United States prior to discovery but for the purpose of discovering oil or other valuable mineral deposits, there being no valid mineral location upon it, such person has the right to maintain possession as against *violent, fraudulent, and surreptitious intrusions so long as he continues to occupy the land to the exclusion of others and diligently and in good faith prosecutes the work of endeavoring to discover mineral thereon. Miller v. Chrisman, 140 Cal. 440, 447, 73 Pac. 1083, 74 Pac. 444, 98 Am. St. Rep. 63 (case affirmed 197 U. S. 313, 25 Sup. Ct. 468, 49 L. Ed. 770; Weed v. Snook, ubi supra; Merced Oil Mining Co. v. Patterson, 153 Cal. 624, 625, 96 Pac. 90; s. c., 162 Cal. 358, 361, 122 Pac. 950; McLemore v. Express Oil Có., 158 Cal. 559, 562, 112 Pac. 59, 139 Am. St. Rep. 147. To what extent the possessory right of an explorer before discovery is to be deduced from the invitation extended in section 2319, to what extent it is to be regarded as a local regulation of the kind recognized by that section and the following ones, and to what extent it derives force from the authority of the mining states to regulate the possession of the public lands in the interest of peace Two recent acts of Congress contain recognition of the status of a bona fide occupant of oilbearing lands in the public domain prior to discovery. Act June 25, 1910 (36 Stat. 847, c. 421, § 2 [Comp. St. § 4524], first proviso); Act March 2, 1911 (36 Stat. 1015, c. 201 [Comp. St. §§ 4637, 4637a]). See Consolidated Mutual Oil Co. v. United States, 245 Fed. 521, 524, 527, 529, 157 C. C. A. 633. *348 $350 and good order, are questions with which we are not now concerned. Nor need we stop to inquire whether the right is limited to the ground actually occupied in the process of exploration, or extends to the limits of the claim. These questions and others that suggest themselves are not raised by the present record, which concerns itself solely with the rights asserted by the defendant under the act of 1903. Whatever the nature and extent of a possessory right before discovery, all authorities agree that such possession may be maintained only by continued actual occupancy by a qualified locator or his representatives engaged in persistent and diligent prosecution of work looking to the discovery of mineral. rell v. Lockhart, 210 U. S. 142, 147, 28 Sup. [3] After this brief review of the mining [2] But, by the provisions of the Revised Statutes above cited, a discovery of mineral by a qualified locator upon unappropriated public land initiates rights much more substantial as against the United States and all the world. If he locates, marks, and records And it is important to observe that in his claim in accordance with section 2324 and these acts of Congress, as in the practice of the pertinent local laws and regulations, he miners, "assessment work" had nothing to has, by the terms of section 2322, an exclu- do with locating or holding a claim before sive right of pos*session to the extent of his discovery. On the contrary it was the conclaim as located, with the right to extract dition subsequent prescribed by Congress to the minerals, even to exhaustion, without be performed in order to preserve the expaying any royalty to the United States as clusive right to the possession of a valid minowner, and without ever applying for a pateral land location upon which discovery had ent or seeking to obtain title to the fee; sub- been made. McLemore v. Express Oil Co., ject, however, to the performance of the an- 158 Cal. 559, 563, 112 Pac. 59, 139 Am. St. nual labor specified in section 2324, for upon Rep. 147. Hence the declaration in the act his failure to do this the claim is open to re- of 1903 that where oil lands are located as location by others at any time before replacer mining claims "the annual assessment sumption of work upon it by the original lo- labor upon such claims may be done upon any one of a group of claims lying contiguIf not content to rest upon the right confer-ous and owned by the same person," indired by section 2322, the qualified locator may obtain a patent for his claim by complying with the conditions prescribed by sections 2325 and 2326. cator. cates simply the legislative purpose that the necessary assessment work if done upon one of the group should have the same effect as if properly distributed among the several claims; that is to say, the effect of preserving the exclusive right of possession and enjoyment conferred by section 2322 with respect to unpatented claims based upon a previous discovery of oil. But, even without patent, the possessory right of a qualified locator after discovery of minerals upon the claim is a property right in the full sense, unaffected by the fact that the paramount title to the land is in the United States (Rev. Stat. § 910 [Comp. "Group assessment work" did not originate St. § 1533]), and it is capable of transfer by with the act of 1903. From an early periconveyance, inheritance, or devise (Forbes v. od the economy of operating contiguous Gracey, 94 U. S. 762, 763, 767, 24 L. Ed. 313; mines or claims by a single system was recogBelk v. Meagher, 104 U. S. 279, 283, 285, 26 nized. In section 5 of the act of May 10, 1872, L. Ed. 735; Del Monte Mining Co. v. Last (17 Stat. 92, c. 152), now section 2324, Rev. Chance Mining Co., 171 U. S. 55, 78, 18 Sup. Stat., it was provided with respect to the Ct. 895, 43 L. Ed. 72; Elder v. Wood, 208 annual labor that "where such claims are U. S. 226, 232, 28 Sup. Ct. 263, 52 L. Ed. 464). held in common, such expenditure may be Actual and continuous occupation of a val- made upon any one claim." Questions as to id mining location based upon discovery is the precise meaning of *this naturally arose, not essential to the preservation of the pos- and it was determined that it applied only sessory right. The right is lost only by to contiguous claims, and that the work abandonment, as by nonperformance of the must be done for the common benefit or for annual labor required by section 2324. Belk the purpose of developing all the claims. v. Meagher, 104 U. S. 279, 283, 284, 26 L. Ed. Sme.ting Co. v. Kemp, 104 U. S. 636, 655, 26 735; Black v. Elkhorn Mining Co., 163 U. S. L. Ed. 875; Jackson v. Roby, 109 U. S. 440, 445, 450, 16 Sup. Ct. 1101, 41 L. Ed. 221; Far-444, 3 Sup. Ct. 301, 27 L. Ed. 990; Chambers v. Harrington, 111 U. S. 350, 353, 4 Sup. Ct. [plication of the doctrine was a great bur428, 28 L. Ed. 452; Anvil Hydraulic Co. v. Code, 182 Fed. 205, 206, 105 C. C. A. 45. It is plain that the draftsman of the act of 1903 had this settled rule in mind, for the bill as introduced, with enacting clause in the same form as finally passed, had this proviso: "Provided, that said labor will benefit or tend to the development of such contiguous claims." By committee amendment in the House the words "benefit or" were struck out, and after the word "development" the following were inserted, "or to determine the oil bearing character," presumably regarded as peculiarly appropriate to oil lands. House Rep. No. 2657, 57th Cong. 1st Sess.; Senate Rep. No. 2756, 57th Cong. 2d Sess.; 36 Cong. Record, pt. 1, p. 83; pt. 2, pp. 1561, 1682. The committee report contains this explanation of the object of the bill: "The law now requires that upon each mining claim there shall be performed each and every year at least $100 worth of work. The courts have held with reference to lode-mining claims that this annual labor may be done upon any one of a group of mining claims, provided the said work tends to benefit the entire group, but the Land Department of the government seems to be of opinion that the annual labor upon placer-mining claims must be done upon each of said claims. There is good reason for this holding when applied to the ordinary placer claim containing deposits of gold, because in such case the gold lies upon the surface or near the surface, and general development work being upon and near the surface does not tend to benefit other claims than the one upon which the work is actually done, but in the case of oil-mining claims the situation is different. It is necessary to bore wells for great depths in order to determine whether or not oil exists in paying quantities. These wells are expensive, and it is the opinion of the committee that the industry itself will be more benefited by permitting the owner to spend his means in sinking a single well in order to demonstrate the possibilities of the property than it would to require him to distribute his means among several claims. In other words, it is better that $500 should be spent in one place until the character of the oil deposit has been demonstrated than it is to require the same amount of money to be spent in five different places." [4] The argument for plaintiff in error, while conceding the general rule to have been established that assessment work could avail nothing except when performed upon or for the benefit of a claim in which a discovery of mineral already had been made, insists that the difficulty and great expense attendant upon the sinking of wells to make discovery of oil made it evident that the ap den upon the oil miner; and that this, uaving been brought to the attention of Congress was the moving cause of the enactment of the act of February 12, 1903. This contention finds no support in the enacting clause, and but little in the proviso. It gives to the somewhat indefinite language of the proviso an effect that would greatly enlarge instead of confining the meaning of what precedes, and would render the statute a radical departure from the previous policy of the mining laws. The legislative history of the act, as well as its phraseology, fails to support the contention. Nor is there great force in the suggestion that with respect to oil claims upon which discovery already had been made there was no need to encourage the doing of work tending to determine their oil-bearing character, because this would already have been established by the antecedent discovery. It hardoil upon several contiguous claims does not ly is necessary to say that *the discovery of render it wholly unimportant that assessment work thereafter done by the common owner upon one of the claims, in order to be credited to him as if it had been distributed among the several claims, shall be of general benefit to the group. This is the object of the act, and except as the proviso specifically declares "determination of oil-bearing character" to be of benefit to the contiguous claims, little is added to the effect of section 2324, Rev. Stat., respecting group assessment work. But we cannot declare a determination of the "oil-bearing character" of a claim upon which oil already has been discovered to be a matter so idle as to require us to seek a strained construction of the statute. In our opinion the act shows no purpose to dispense with discovery as an essential of a valid oil location or to break down in any wise the recognized distinction between the pedis possessio of a prospector doing work for the purpose of discovering oil and the who has made a discovery and performs anmore substantial right of possession of one nual development work to maintain his right to the mineral until patent is obtained. Hence the Supreme Court of California did not err in overruling the contention that by force the act discovery work upon the "Sampson claim" having a tendency to determine the oil-bearing character of the contiguous "Rawley-Schley claim" conferred upon plaintiff in error inchoate rights in the latter claim, of which it was not in possession and upon which it had made no discov. ery. Judgment affirmed. (249 U. S. 472) gave two reasons for refusing the request. SOUTHERN PAC. CO. v. STATE OF ARI- The first of these was that the company had contracted for the transportation of another show, under an agreement not to carry a ZONA. (Submitted March 13, 1919. Decided April 14, second one within 30 days, which had not 1919.) No. 238. 1. COMMERCE 33 POWER TO REGULATE "INTERSTATE COMMERCE" TRANSPORATION OF SHOW WITHIN STATE. The transportation of a traveling show between two points within a state is not "interstate commerce," though the show had come into the state over the lines of another carrier and expected later to leave the state; no contract for transportation out of the state having as yet been entered into. expired; and the second, that the company was not a common carrier of shows and would not make the customary contract with Campbell, but would serve him only at certain published interstate rates, which it regarded as applicable. These were many times greater than had been charged for the same show and than had been the customary charge by the Southern Pacific and other companies for similar service. Upon receiving this refusal, an application by the owner of the shows to the Arizona [Ed. Note.-r'or other definitions, see Words Corporation Commission for relief, resulted and Phrases, First and Second Series, Interstate Commerce.] 2. COURTS 396(3)-ERROR TO STATE COURT -FEDERAL QUESTION-HOW RAISED. in an order to the Southern Pacific Company and the Arizona Eastern Railroad Company, operating a connecting line, to show cause why they should not publish, on one day's notice a special rate, designated in the order of the Commission, for e transportation of the shows between the points named. The reasonableness of the required rate is not 2-CONSTITUTIONAL LAW contested, and the order permitted the South242-EQUAL PROTECTION OF THE LAWS-DECISION OF STATE COMMISSION-CONTRACT BY CARRIERS. A federal question, not asserted in the answer filed in the state court, or even in the assignment of error in the Supreme Court, cannot be considered. 3. CARRIERS An order of the state Corporation Commission, requiring a railroad to transport a show at a special rate and providing that the company might enter into a contract for the transportation on terms similar to existing contracts with other shows, does not deprive the carrier of its right to contract as private carrier for the transportation of traveling shows, and thereby deprive it of equal protection of the laws. In Error to the Supreme Court of the State of Arizona. Suit by the State of Arizona against the Southern Pacific Company to recover a fine for violation of an order of the Arizona Corporation Commission. Judgment for plaintiff was affirmed by the state Supreme Court, and defendant brings error. Affirmed. See same case below, 165 Pac. 303. Mr. Wiley E. Jones, of Phoenix, Ariz., for the State of Arizona. ern Pacific Company to make the special Thereupon the state of Arizona instituted this suit in a Superior Court of that state to recover the amount of the fine. In its answer to the complaint of the state, the Southern Pacific Company alleged: That the proposed movement of the shows was "interstate in character" because they were engaged in a tour, beginning at the city of El Paso, Texas, and designed to extend through the states of Arizona and New Mexico into the state of California, of which tour the movement from Tucson to Phoenix was a part; that in its necessary operation the order would require the company to accept a rate lower than its published, interstate rate would be a direct burden upon interstate commerce; and that, for these reasons, the order for the transportation was in contravention of the provisions of article Mr. Justice CLARKE, delivered the opin- 1, section 8, of the Constitution of the United ion of the Court. An agent for Campbell's United Shows applied to the Southern Pacific Company to transport 18 cars, carrying a carnival show equipment, including employés and animals, from Tucson, via Maricopa, to Phoenix, Ari zona. In reply to this application the company States, and the fine for contempt was unlawfully imposed and void. The judgment of the superior court was in favor of the state, the company appealed to the Supreme Court of Arizona, which affirmed the judgment, and the case is here on writ of error. [1] The only claim of error argued in this For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *475 |