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came, and entering an appearance only for the purpose of his motion, moved to set aside and annul the judgment of reversal, and to dismiss the appeal, (1) because no citation has been issued or served; and (2) because the value of the matter in dispute did not exceed $2,500. As to the last ground of the motion, it is sufficient to say that the decree appealed from was for more than $2,500, and it charged the property of the appellants with the full amount. Upon the face of the record, therefore, our jurisdiction is complete. Such being the case, we are not willing to consider extrinsic evidence at this late day for the purpose of ascertaining whether the actual value of the property from which the collection aust be made is sufficient to pay the whole debt or not.
The allowance of the appeal by the court while in session and acting judicially at the term in which the decree was rendered, constituted a valid appeal, of which the appellee was bound in law to take notice. The docketing of the cause in time perfected the jurisdiction of this court. The giving of the bond was not essential to the taking, though it was to the due prosecution, of the appeal. It was furnished and accepted in this case before the cause was docketed here. Had this not been done we would have given the appellants leave to supply the omission before dismissing the appeal. All this was decided, on full consideration, in Peugh v. Davis, 110 U. S. 227; S. C. 4 SUP. CT. REP. 17.
It has also been decided that if an appeal was allowed in open court during the term in which the decree was rendered, a citation was required, as matter of procedure, if the security was not furnished until after the term; but in Railroad Co. v. Blair, 100 U. S. 662, it was said: "Still an appeal, otherwise regular, would not probably be dismissed absolutely for want of a citation, if it appeared, by clear and unmistakable evidence, outside of the record, that the allowance was made in open court at the proper term, and that the appellee had actual notice of what had been done."
The citation is intended as notice to the appellee that an appeal has been taken and will be duly prosecuted. No special form is prescribed. The purpose is notice, so that the appellee may appear and be heard. The judicial allowance of an appeal in open court at the term in which the decree has been rendered is sufficient notice of the taking of an appeal. Security is only for the due prosecution of the appeal. The citation, if security is taken out of court, or after the term, is only necessary to show that the appeal which was allowed in term has not been abandoned by the failure to furnish the security before the adjournment. It is not jurisdictional. Its only purpose is notice. If by accident it has been omitted, a motion to dismiss an appeal allowed in open court, and at the proper term, will never be granted until an opportunity to give the requisite notice has been furnished, and this, whether the motion was made after the expiration of two years from the rendition of the▾ decree or before. Here, before the cause came on for final hearing, notice was given the appellee, by order of the court, that the appeal taken in open court was being prosecuted, and that a reargument at an appointed time was desired. In response to this notice the appellee declined to appear, not because he had not been served with a citation, but because no appeal had been perfected. Had he complained of a want of citation, the omission might have been supplied if, on consideration, it should have been deemed necessary. But the order which was served on him to appear and argue the cause if he saw fit was of itself the legal equivalent of a citation for all the purposes of this appeal.
The motions are denied.
(115 U. S. 45)
GWILLIM v. DONNELLAN and another.
(May 4, 1885.)
MINING CLAIMS-PRIOR LOCATION-RIGHTS OF PARTIES.
If a discoverer has himself perfected a valid location on account of his discovery, no one else can have the benefit of his discovery for the purposes of location adverse to him, except as a relocator after he has lost or abandoned his right.
In Error to the Circuit Court of the United States for the District of Colorado.
Enoch Totten and C. H. Toll, for defend
E. T. Wells, for plaintiff in error. ants in error.
*WAITE, C. J. This is a suit begun July 7, 1881, under section 2326 of the Revised Statutes, to determine the rights of adverse claimants to certain mining locations. Donnellan and Everett, the defendants in error here, and also the defendants below, were the owners of the Mendota claim or location, and Gwillim, the plaintiff in error here, and the plaintiff below, the owner of the Cambrian. The two claims conflicted. The defendants applied, under section 2325, Rev. St., for a patent of the land covered by their location, and the plaintiff filed in due time and in proper form his adverse claim. To sustain this adverse claim the present suit is brought, which is in form an action to establish the right of the plaintiff to the premises in dispute, and to the poss ssion thereof as against the defendants, on account of a "prior location thereof as a mining claim in the public domain of the United States."
The question in the case arises on this state of facts:
Upon the trial the plaintiff gave evidence tending to show that Isaac Thomas, on the sixteenth of May, 1878, discovered in the public domain, and within the premises described in the complaint, a vein of rock in place, bearing gold and silver, and sunk a shaft to the depth of 10 feet or more, to a well-defined crevice, and located the premises under the name of the "Cambrian Lode," and performed all the acts required by law for a valid location. The plaintiff got his title from Thomas. In the answer of the defendants they set up title under the Mendota claim, located, as they allege, November 19, 1878. The plaintiff, in presenting his case to the jury, stated in effect that, after the location of the claim by Thomas, and before his conveyance to the plaintiff, one Fallon instituted proceedings to obtain a patent from the United States for another claim, including that part of Thomas' claim wherein was situated the discovery shaft sunk by him; that no adverse claim was interposed, and Fallon accordingly entered his claim and obtained a patent therefor; and, before any new workings or developments done or made by Thomas upon any part of his claim not included in this patent, the defendants entered therein and located the same as a mining claim in the public domain. Upon this statement the court "ruled that inasmuch as that part of the claim of said Thomas, wherein was situated his discovery shaft, had been patented to a third person, the plaintiff was not entitled to recover any part of the premises, and instructed the jury to find for the defendants." This instruction is as
signed for error.
Thomas made his location as the discoverer of a vein or lode within the lines of his claim. He made but one location, and that for 1,500 feet in length along the discovered vein. All his labor was done at the discovery shaft. There was no claim of a second discovery at any other place than where the shaft was sunk.
Section 2320 of the Revised Statutes provides that "a mining claim located after the tenth of May, 1872, * * * shall not exceed one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." Section 2322 gives "the locators of all mining loca
tions, * so long as they comply with the laws of the United States, and with the state, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, * * the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface location." The location is made on the surface, and the discovery must be of a vein or lode, the top or apex of which is within the limits of the surface lines of such location. A patent for the land (ocated conveys the legal title to the surface, and that carries with it the right to follow a discovered vein, the apex of which is within the limits of the grant downwards, even though it may pass outside the vertical side lines of the location. The title to the vein depends on the right to the occupancy or the ownership of its apex, within the limits of the right to the occupation of the surface. This right may be acquired by a valid location and continued maintenance of a mining claim, or by a patent from the United States for the land. To keep up and maintain a valid location $100 worth of labor must be done, or improvements made, during each year until a patent has been issued therefor. Section 2324. By section 2325 it is provided that a patent may be obtained for land located or claimed for valuable deposits. To accomplish this, a locator, who has complied with all the statutory requirements on that subject, may file in the proper land-office an application for a patent, under oath, showing such compliance, together with a plat and field notes of his claim, made by or under the direction of the surveyor general of the United States, showing accurately the boundaries of the claim, which must be distinctly marked by monuments on the ground. He must also post a copy of his plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to filing his application for a patent, and he must also file an affidavit of at least two persons that such notice has been duly posted. A copy of the notice must be filed in the land-office. Upon the filing of such papers the register of the land-office is required to publish a notice that the application has been made, for the period of 60 days in some newspaper to be by him designated as published nearest to the claim, and he must also post a similar notice for the same time in his own office.
If no adverse claim shall have been filed with the register and receiver of the proper land-office at the expiration of the 60 days of publication, it shall be assumed that the applicant is entitled to a patent, and that no adverse claim exists; and thereafter no objection from third parties to the issue of the patent shall be heard, except to show that the applicant has failed to comply with the law. Where an adverse claim is filed within the time, all proceedings upon the application in the land-office, except in reference to the publication and proof of notice, are to be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It is then made the duty of the adverse claimant to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and prosecute the same to final judgment. After such judgment shall have been rendered, the party entitled to the possession of the claim, may, without further notice, file a certified copy of the judgment roll with the register of the land-office, together with the certificate of the surveyor general that the requisite amount of labor has been expended, or improvements made thereon, and the description required as in other cases. When this has been done, and the proper fees paid, the whole proceedings and the judgment roll must be certified to the commissioner of the general landoffice, and a patent shall issue for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it
appears from the decision that several parties are entitled to separate and distinct portions of the claim, each party may pay for his portion of the claim, together with the proper fees, and file the certificate and description by the surveyor general, and then the register must certify the proceedings and judgment roll to the commissioner as in the preceding case, and patents shall issue to the several parties according to their respective rights. Section 2326.
A valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located. If, when one enters on land to make a location, there is another location in full force, which entitles its owner to the exclusive possession of the land, the first location operates as bar to the second. Belk v. Meagher, 104 U. S. 284. *To entitle the plaintiff to recover in this suit, therefore, it was incumbent on him to show that he was the owner of a valid and subsisting location of the lands in dispute, superior in right to that of the defendants. His location must be one which entitles him to possession against the United States, as well as against another claimant. If it is not valid as against the one, it is not as against the other. The location is the plaintiff's title. If good, he can recover; if bad, he must be defeated. location on account of the discovery of a vein or lode can only be made by a discoverer, or one who claims under him. The discovered lode must lie within the limits of the location which is made by reason of it. If the title to the discovery fails, so must the location which rests upon it. If a discoverer has himself perfected a valid location on account of his discovery, no one else can have the benefit of his discovery for the purposes of location adverse to him, except as a relocater after he has lost or abandoned his prior right. Belk v. Meagher, supra.
In this action the plaintiff must recover on the strength of his own title, not on the weakness of that of his adversary. The question to be settled by judicial determination, so far as he is concerned, is as to his own right of possession. He must establish a possessory title in himself, good as against everybody. If there had not been a patent to Fallon, it would have been competent for the defendants to prove on the trial that when Thomas entered, Fallon held and owned a valid and subsisting location of the same property, and was the first discoverer of the lode, the apex of which was within the surface lines of Thomas' claim. Had this been done the location of Thomas would have been adjudged invalid, because the land on which his alleged discovery was made was not open to exploration, it having been lawfully located and claimed by Fallon. The admission made by the plaintiff at the trial, and on which the court acted in instructing the jury to find for the defendants, is the equivalent of such proof. It showed that after May 16, 1878, and before November 19, 1878, Fallon had applied for a patent of the land on which Thomas' alleged discovery was made, and where he had sunk his discovery shaft;* that Thomas set up no adverse claim, and that in due time Fallon got his patent; and this because, under the law, the United States had the right to assume that no adverse claim existed. Having failed to assert his claim he lost his title as against the United States, the common source of title to all. The issue of the patent to Fallon was equivalent to a determination by the United States, in an adversary proceeding to which Thomas was in law a party, that Fallon had title to the discovery superior to that of Thomas, and that consequently Thomas' location was invalid. This barred the right of Thomas to apply to the United States for a patent, and of course defeated his location. From that time all lands embraced in his location not patented to Fallon were open to exploration and subject to claim for new discoveries. The loss of the discovery was a loss of the location. It follows that the court did not err in its instructions to the jury, and the judgment is consequently affirmed.
(115 U. S. 1)
UNION PAC. RY. Co. v. MYERS. (No. 291.)1
In Error to the Circuit Court of the United States for the District of Kansas.
SAME v. CITY OF KANSAS. (No. 461.)
In Error to the Circuit Court of the United States for the Western District of Missouri.
SAME v. KNUTH. (No. 810.)
In Error to the Circuit Court of the United States for the District of Nebraska.
SAME v. HARWOOD. (No. 980.)2
In Error to the Supreme Court of the State of Kansas.
SAME v. MURPHY. (No. 824.)
In Error to the Supreme Court of the State of Texas.
(May 4, 1885.)
1. REMOVAL OF CAUSES-RAILROAD COMPANIES ESTABLished under NATIONAL LAWS. Corporations of the United States created by and organized under acts of congress, like the Union Pacific Railroad Company and the Texas & Pacific Railroad Company, are entitled as such to remove into the circuit courts of the United States suits brought against them in the state courts, under and by virtue of the act of March 3, 1875, on the ground that such suits are suits "arising under the laws of the United States."
2. SAME-TRIAL AND APPEAL Pending WHEN PETITION FILED-INQUEST of VALUATION. A trial before a municipal officer, which was in its nature an inquest of valuation and assessments, not having the character of a suit, and an appeal taken therefrom, before the filing of a petition for removal, is not good grounds for denying such a petition.
8. SAME-WIDENING STREETS OF A CITY-RIGHTS OF COMPANY-FEARS OF INJURY TO CITY BY ADVERSE DECISION OF FEDERAL Court.
The indirect effect upon the general proceedings for widening the streets of the city of Kansas, in case a federal court should decide that said city could not widen streets in the railroad company's grounds, or that the valuation of its property was too small, or assessments for benefits against it too large, furnishes no good reason to deny the railroad company its right to remove the causes under the act of March 3, 1873.
WAITE, C. J., and MILLER, J., dissenting.
John F. Dillon, for plaintiffs in error, in Nos. 291, 461, 810, and 980. W. Hallett Phillips, for defendants in error, in Nos. 291, 461, 810, and 980; and W. H. Munger, for defendants in error, in No. 810.
W. D. Davidge, for plaintiffs in error, in Nos. 610, 797, and 824. W. H. Phillips and A. H. Garland, for defendants in error, in Nos. 610, 797, and 824.
*BRADLEY, J. The principal question involved in these cases is whether at suit brought in a state court against a corporation of the United States may be removed by such corporation into the circuit court of the United States, on the ground of its being a corporation organized under a law of the United States. The plaintiff in error in four of the cases is the Union Pacific Railway Company, and in the other three cases is the Texas & Pacific Railway Company. They contend that they have such a right of removal, either under the removal act of July 27, 1868, (15 St. 227,) now forming section 640 of the Revised Statutes, or under the act of March 3, 1875, entitled "An act to de
1 S. C. 16 Fed. Rep. 292.
28. C. 2 Pac. Rep. 605.