(40 Sup.Ct.) latter were persuasive, but it was not without noticeable infirmities, among them the following: The defendant testified that no ore was ever mined upon any of the lode claims, and that "there was no mineral exposed to the best of my [his] knowledge which would stand the cost of mining, transportation and reduction at a commercial profit." In the circumstances this tended to discredit the asserted discoveries; and of dicated his view by saying, "My idea is that you can't take advantage of any discoveries made since the placer locations, and I don't believe there can be any dispute about that," counsel for the defendant responded, "No, your honor, there is none," and on another occasion counsel said, "We are undoubtedly limited to proving that there was a discovery of mineral in place on each of our lode claims prior to the location of the placer claims." In all particulars other than dis-like tendency was his unexplained statecovery the regularity and perfection of the lode locations were conceded. Closely connected with the controversy over lode discoveries was another over the applicability and effect of section 2332 of the Revised Statutes (Comp. St. § 4631), but it will be passed for the moment and separately considered later. As to the placer claims, it was shown that they were based upon adequate discoveries of placer gold within their limits, and counsel for the defendant announced, "We don't deny this ground is of placer character." Their boundaries were properly marked, and the requisite notices were posted and certificates recorded. The only questions respecting their validity that were presented and need present mention were, first, whether at the time the placer locations were made the lode locations had become valid and effective claims, thereby precluding any adverse location of the same ground, and next, if the lode locations had not then become valid and effective, whether the placer locations were initiated and made through wrongful intrusions or trespasses upon any actual possession of the lode claimant. The defendant, as is admitted in his brief in this court, did not claim that any lode or vein was or should be excepted from the placer claims, but only that they were of no effect for the reasons just indicated. #299 *The evidence bearing upon the presence or absence of lode discoveries 4 was conflicting. That for the plaintiffs tended persuasively to show the absence of any such discovery before the placer claims were located, while that for the defendant tended the other way. Separately considered, some portions of the $300 ment, referring to the claims grouped in this patent application, that "some of them have not a smell of ore, but they can be located and held on the principle of being contiguous to adjacent claims"-an obviously mistaken view of the law-and his further statement, referring to vein material particularly relied upon as a discovery, that he "would hate to try to mine it and ship it." As respects the initiation and working of the placer claims, the plaintiffs' evidence indicated that the locators entered openly, made placer discoveries, performed the requisite acts of location, excavated several shafts in the "wash" from 35 to 57 feet in depth, ran drifts from the bottom along the bedrock, and mined a considerable amount of placer gold; and that these acts covered a period of between two and three months. None of this was contradicted; and there was no evidence that the locators met with any resistance or resorted to any hostile, fraudulent or deceptive acts. But there was evidence of such ownership of buildings, comparatively recent prospecting, and maintenance of a watchman, on the part of the lode claimant as made it a fair question whether he was in actual possession when That he was the placer locators entered. in possession of the buildings and the ground where they stood was made certain, but that he had any actual possession beyond that was reasonably debatable under the evidence. The buildings were all on the same claim and covered only a part of it. One was a mill formerly in use but then dismantled and stripped of its machinery. All had been used in connection with mining operations upon other claims, but the operations had then been suspended. The buildings were The following extracts from Chrisman v. Miller, 197 U. S. 313, 322, 25 Sup. Ct. 468, 470 (49 L. Ed. not disturbed by the placer locators, nor was 770), show what constitutes an adequate discovery: there any attempt to appropriate them. A "The mere indication or presence of gold or sil-watchman was in charge, but so far as apver is not sufficient to establish the existence of a lode. The mineral must exist in such quantities pears he made no objection to what was as to justify expenditure of money for the develop- done. Although a witness for the defendant ment of the mine and the extraction of the mineral." "Where minerals have been found and the evi dence is of such a character that a person of ordi nary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met." "The facts which are within the observation of the discoverer and which induce him to locate, should be such as would justify a man of ordinary prudence, not necessarily a skilled miner, in the expenditure of his time and money in the development of the property." and in his employ, he was not interrogated upon this point. Of course, ownership of the buildings did not in itself give the lode claimant any right in the land or prevent others from entering peaceably and in good faith to avail themselves of privileges accorded by the mineral land laws; but the presence of the 5 The lode claimant at that time was either the liquidator of the Glasgow & Western Exploration Company or the company itself. were therefore invalid." And the court in charging the jury said: "The burden is on the plaintiffs in the first instance to show that when they went on these claims to locate the placers the ground was open to location, and that there was at the time no valid, subsisting location where their discoveries were made." It therefore is plain that the burden of proof was dealt with and carried in a manner which does not admit of criticism by the defendant. [17] It is objected also that the court refused to direct verdicts for the defendant. But what has been said sufficiently shows that, in our opinion, the evidence presented several disputable questions of fact which it was the province of the jury to determine. This was the view not only of the judge who presided at the trial but of another judge who in overruling the motion for a new trial said: Even if the lode claimant was in actual possession of all, it still was a disputable question under the evidence whether there had not been such acquiescence in the acts of the placer locators in going upon the ground, making placer discoveries and marking their locations as gave them the status of lawful discoverers and locators rather than wrongful intruders or trespassers, that is to say, the status of explorers entering by permission and then making discoveries. See Crossman v. Pendery (C. C.) 8 Fed. 693. The questions of fact to which we have adverted were all submitted to the jury under a charge which was comprehensive, couched in plain terms, and in substantial accord with the legal principles hereinbefore stated. And, while the defendant criticizes some portions of the charge, we think they neither included nor omitted anything of which he rightfully can complain. As has been said, the jury returned general verWere we less satisfied than we are upon the dicts for the plaintiffs, and also special ver- point we should hesitate to disturb the condicts finding that no lode had been discov-curring conclusions of those judges. ered within any of the lode locations before the placer ones were made. [16] But it is objected that the court, instead of requiring the plaintiffs to take the burden of proving the absence of essential lode discoveries, subjected the defendant to the burden of proving that there were such discoveries. This is not in accord with the record. It there appears that the plaintiffs undertook at the outset to establish the absence of any lode discovery and persisted in that course, a large, if not the larger, part of their case in chief being directed to that point. When they rested the defendant moved that the evidence produced by them "as to the absence of lodes, or the failure or inability of the witnesses to find or discover *302 lodes or mineral-bearing *rock in place" with- "I think that not only is there substantial evidence to support the verdict, but the preponderance is upon that side." *303 [18] *It is urged that the court erred in not holding that the placer claimants had admitted the validity of one of the lode locations by relocating the ground as a lode claim. A short statement of what was done will show, as we think, that it did not involve any such admission. After the placer claimants made their placer discovery a representative of theirs posted on the ground a notice stating that they had relocated it as a lode claim. The next day he substituted another notice stating that they had located it as a placer claim. The first notice did not accord with their discovery and the other did. Nothing was done or claimed under the first and all the subsequent steps were in accord with the other. Evidently the first was posted by mistake and the other as the true notice. No one was misled by the mistake and it was promptly corrected. In these circumstances, the first notice was of no effect and no admission could be predicated of it. Zeiger v. Dowdy, 13 Ariz. 331, 114 Pac. 565. [19] The further objection is made that no probative force was given to recitals of discovery in the recorded notices of location of the lode claims. The notices were admitted in evidence and no instruction was asked or given respecting the recitals. In one nothing is said about discovery, and what is said in the other two is meager. But, passing this, the objection is not tenable. The general rule is that such recitals are mere ex parte selfserving declarations on the part of the locators, and not evidence of discovery. Creede & Cripple Creek Mining Co. v. Uinta Tunnel Mining Co., 196 U. S. 337, 352, 25 Sup. Ct. (40 Sup.Ct.) 266, 49 L. Ed. 501; Lindley on Mines (3d Ed.) § 392; Mutchmor v. McCarty, 149 Cal. 603, 607, 87 Pac. 85; Strepey v. Stark, 7 Colo. 614, 619, 5 Pac. 111; Magruder v. Oregon & California R. R. Co., 28 Land Dec. 174. This rule is recognized and applied in Nevada. Fox v. Myers, 29 Nev. 169, 186, 86 Pac. 793; Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co., 36 Nev. 543, 560, 138 Pac. 71. The defendant, conceiving that the section could be invoked in the absence of a mineral discovery, requested the court to instruct the Jury that if the lode claimant held and worked the lode, claims for a period of two #304 [20] Complaint is made because the defend-years-the local prescriptive period for adverse possession, Rev. Laws 1912, § 4951before the placer claims were initiated, such holding and working were the full equivalent of all that was essential to the validity of the lode claims, including discovery. That request was refused and others were then presented which differed from it only in that they treated discovery as essential by coupling it with holding and working. These were also refused, but no complaint is made of this-obviously because the jury were told that under the evidence the lode claims should be regarded as valid, if only the requisite discoveries were made at any time before the placer claims were initiated. The jury, as we have seen, found as matter of fact that there was no such discovery. ant was not permitted on the cross-examination of a witness for the plaintiffs to show the contents of certain assay reports. In his examination in chief the witness told of taking twelve samples from openings made by the lode claimant in the lode locations and of having the samples assayed. Seven of the assay reports were produced at the plaintiffs' request and put in evidence. They attributed to one sample a mineral value of sixty-three cents per ton and to the other six only a trace of mineral. In cross-examining the witness the defendant called for the remaining reports or their contents, but the plaintiffs objected and the objection was sustained. In other respects the cross-examination proceeded without restriction and included a full interrogation of the witness about the points from which each of the twelve samples was taken. This interrogation disclosed that one of the reports put in evidence covered a sample taken from an opening made after the location of the placer claims; and because of this that report was stricken out at the defendant's request and with the plaintiffs' consent. Near the close of the trial the court recalled its prior ruling and announced another more favorable to the defendant. The witness was then recalled and, after some further examination, three of the remaining reports were put in evidence. They attributed to one sample a mineral value of one dollar and thirty-four cents per ton and to the other two only a trace of mineral. Thus of the twelve reports all but two were produced. These two, like the one stricken out, covered samples taken from openings made after the placer claims were located. The defendant did not call for them when the witness was recalled or reserve any exception to the new ruling, and it is more than inferable from the record that he acquiesced in it. Of course, there is no merit in the present complaint. [21] What we have said sufficiently disposes of all questions other than that before *305 mentioned respecting the applica*bility and effect of section 2332 of the Revised Statutes, which provides: [ing of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim." "Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state or territory where the same may be situated, evidence of such possession and work The effect which must be given to section 2332, Rev. St., in circumstances such as are here disclosed-whether it substitutes something else in the place of discovery or cures its absence-is the matter we have to consider. That the section is a remedial provision and designed to make proof of holding and working for the prescribed period the legal equivalent of proof of acts of location, recording and transfer, and thereby to relieve *306 against possible loss or destruction of the usual means of establishing such acts, is attested by repeated rulings in the land department and the courts. But those rulings give no warrant for thinking that it disturbs or qualifies important provisions of the mineral land laws, such as deal with the character of the land that may be taken, the discovery upon which a claim must be founded, the area that may be included in a single claim, the citizenship of claimants, the amount that must be expended in labor or improvements to entitle the claimant to a patent, and the purchase price to be paid before the patent can be issued. Indeed, the rulings have been to the contrary. The view entertained and applied in the land department is shown in the following excerpt from a decision by the Secretary of the Interior: "One purpose of section 2332, clearly shown in the history of the proceedings in Congress attending its consideration and passage there, was to lessen the burden of proving the location and transfers of old claims concerning which the possessory right was not controverted but the record title to which had in many instances been destroyed by fire or otherwise lost because of the insecurity and difficulty necessarily attending its preservation | gin, related to "gold mines" which had been during the early days of mining operations. worked for many years. 4 "The section was not intended as enacted, nor as now found in the Revised Statutes, to be a wholly separate and independent provision for the patenting of a mining claim. As carried forward into the Revised Statutes it relates to both lode and placer claims, and being in pari materia with the other sections of the Revision concerning such claims is to be construed to gether with them, and so as, if possible, that they may all stand together, forming a harmo-able in adverse suits (Upton v. Santa Rita nious body of mining law." Barklage v. Rus- Mining Co., supra, and cases cited). The latsell, 29 Land. Dec. 401, 405, 406. ter view has received the approval of this court. Reavis v. Fianza, supra; Meagher, supra. Belk v. ing the section has been as to whether it is The only real divergence of opinion respectavailable in an adverse suit, such as these are, or is addressed merely to the land department. Some of the courts have held it available only in proceedings in the department (McCowan v. Maclay, 16 Mont. 234, 40 Pac. 602), and others in greater number have held it avail The views entertained by the courts in the mining regions are shown in Harris v. Equa *307 tor Mining Co. (C. C.) 8 *Fed. 863, 866, where the court ruled that holding and working a claim for a long period were the equivalent of necessary acts of location, but added that "this, of course, was subject to proof of a lode in the Ocean Wave ground, of which there was evidence"; in Humphreys v. Idaho Gold Mines Co., 21 Idaho, 126, 140, 120 Pac. 823, 40 L. R. A. (N. S.) 817, where the section was held to obviate the necessity for proving the posting, etc., of a location notice, but not to dispense with proof of discovery; in Upton v. Santa Rita Mining Co., 14 N. M. 96, 89 Pac. 275, where the court held that the section should be construed in connection with other provisions of the mineral land laws, and that it did not relieve a claimant | (Argued January 30, 1920. Decided March 22, coming within its terms from continuing to do the assessment work required by another section; and in Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419, where the section was held 1. COURTS 394(25)—OverrulinG OF OBJECnot to change the class who may acquire mineral lands or to dispense with proof of citizenship. 1920.) No. 208. TION TO ADMISSION OF PRIVATE ACT INVOLV- As respects discovery, the section itself indi- under a private act against another power comIn a suit by a power company organized cates that no change was intended. Its words, pany subsequently organized under the general "have held and worked their claims," pre-law to quiet title, the private act was admissible suppose a discovery; for to "work" a mining in evidence, whether valid or invalid, as it claim is to do something toward making it was the foundation of the equity asserted in productive, such as developing or extracting the bill, and the overruling of an objection an ore body after it has been discovered. thereto did not necessarily involve any right Certainly it was not intended that a right to under the federal Constitution. a patent could be founded upon nothing more than holding and prospecting, for that would subject nonmineral land to acquisition as a mining claim. Here, as the verdicts show, there was no discovery, so the working relied upon could not have been of the character contemplated by Congress. We conclude that the defendant was not receive the benefit of section 2332 in the abentitled to any instruction whereby he could sence of a discovery, and therefore that the District Court rightly refused to give the one in question. The Circuit Court of Appeals held that the instruction should have been given, and in this we think it erred. Judgments of Circuit Court of Appeals re versed. Judgments of District Court affirmed. (252 U. S. 341) HIAWASSEE RIVER POWER CO. v. CAR- 2. COURTS 396(4)—ASSERTION OF FEDERAL Assuming that a right under the federal Constitution was properly claimed in the trial court, where the claim was not presented to or was no basis for a review by the federal Supassed upon by the state Supreme Court, there preme Court. The defendant places some reliance upon the decisions of this court in Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735, and Reavis v. Fianza, 215 U. S. 16, 30 Sup. Ct. 1, 54 L. Ed. 3. COURTS 396(5)—ASSERTION OF FEDERAL RIGHT COMES TOO LATE IN PETITION FOR WRIT 72, but neither contains any statement or sug- Constitution was not presented to or passed Where a claim of a right under the federal upon by the state Supreme Court, it was too late to present the matter in the petition for a writ of error and in the assignment of errors filed in the federal Supreme Court. *308 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) 4. COURTS 396(4)—FAILURE TO SET UP FED-|ment of privileges and immunities and equal Where no federal question was set up in the state Supreme Court, the omission was not cured by the allowance of a writ of error by the Chief Justice of that court. *343 upon by the *Supreme Court of the state. The only basis for the contention that it was so presented is the fact that, when the CarolinaIn Error to the Supreme Court of the State the trial in the superior court the private Tennessee Company offered in evidence at of North Carolina. law as its charter, objection was made to its admission "on the ground that the same was in terms and effect a monopoly and a void exercise of power by the state Legislature which undertook to provide it, it being opposed and obnoxious to the bill of rights and the Constitution and in violation of the Fourteenth Amendment," and that the Mr. Julius C. Martin, of Asheville, N. C., for defendant in error. *342 Mr. Eugene R. Black, of Atlanta, Ga., for admission of this evidence is among the plaintiff in error. many errors assigned in the Supreme Court of the state. The law, whether valid or invalid, was clearly admissible in evidence, as it was the foundation of the equity asserted in the bill. No right under the federal *Mr. Justice BRANDEIS delivered the Constitution was necessarily involved in opinion of the Court. that ruling. The reference to the "bill of rights and the Constitution" made when objecting to the admissibility of the evidence was to the state Constitution and the point was not again called to the attention of that court. Compare Hulbert v. Chicago, 202 U. S. 275, 279, 280, 26 Sup. Ct. 617, 50 L. Ed. 1026. The claim of invalidity under the state Constitution was specifically urged in that court as a reason why the Carolina-Tennessee Company should be denied relief and the claim was passed upon adversely to the plaintiff in error; but no reference was made in that connection to the Fourteenth Amendment. The Carolina-Tennessee Power Company, a public utility, was incorporated by a private law of North Carolina with broad powers, including that of taking by eminent domain riparian lands of and water rights in any nonnavigable stream of the state. It filed locations for two hydro-electric plants on the Hiawassee river and proceeded to acquire by purchase and by condemnation the lands and water rights necessary for that development. Thereafter the Hiawassee River Power Company was organized under the general laws of the state and threatened to locate and develop on that river hydro-electric plants which would necessarily interfere with the development undertaken by the Carolina-Tennessee Company. The latter brought in the superior court of Cherokee county a suit in the nature of a bill to quiet title. The case was tried in that court with the aid of a jury. Many issues of fact were raised and many questions of state law presented. A decree entered for the plaintiff below was reversed by the Supreme Court of the state and a new trial was ordered. Carolina-Tennessee Power Co. Hiawassee River Power Co., 171 N. C. 248, 88 S. E. 349. The second trial resulted also in a decree for plaintiff below which was affirmed by the state Supreme Court. 175 N. C. 670, 96 S. E. 99. The case comes here on writ of error. Suit by the Carolina-Tennessee Power Company against the Hiawassee River Power Company. A decree for plaintiff was affirmed by the Supreme Court of North Carolina (175 N. C. 670, 96 S. E. 99), and defendant brings error. Dismissed for want of jurisdiction. [2-4] If a general statement that the ruling of the state court was against the Fourteenth Amendment were a sufficient specification of the claim of a right under the Constitution to give this court jurisdiction (see Clarke v. McDade, 165 U. S. 168, 172, 17 Sup. Ct. 284, 41 L. Ed. 673; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 248, 22 Sup. Ct. 120, 46 L. Ed. 171; Marvin v. Trout, 199 U. S. 212, 217, 224, 26 Sup. Ct. 31, 50 L. Ed. 157), still the basis for a review by this court is wholly Vlacking here. For the Fourteenth Amendment was mentioned only in the trial court. In the Supreme Court of the state no mention was made of it in the assignment of errors; nor was it, so far as appears by the *344 record, otherwise presented to or *passed up[1] The federal question relied upon as giv- on by that court. The denial of the claim ing jurisdiction to this court is denial of was specifically set forth in the petition for the claim that the private law incorporating the writ of error to this court and in the the Carolina-Tennessee Company is invalid, assignment of errors filed here. But obbecause it conferred upon that company viously that was too late. Chicago, Indianbroad powers of eminent domain, whereas apolis, etc., Ry. v. McGuire, 196 U. S. 128, the general law, under which the Hiawassee 132, 25 Sup. Ct. 200, 49 L. Ed. 413. The Company was later organized, conferred no omission to set it up properly in the Supreme such right; the contention being that there- Court of the state was not cured by the alby the guaranty of the Fourteenth Amend-lowance of the writ of error by its Chief For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
