ful intrusion upon the premises, and by threats of violence if they should attempt to resume possession. As against the defendants, they were entitled to be reinstated into the possession of their claim. They could not be deprived of their inchoate rights by the tortious acts of others; nor could the intruders and trespassers initiate any rights which would defeat those of the prior dis coverers. The government of the United States has opened the public mineral lands to exploration for the precious metals, and, as a reward to the successful explorer, grants to him the right to extract and possess the mineral within certain prescribed limits. Before 1866 mining claims upon the public lands were held under regulations adopted by the miners themselves in different locali ties. These regulations were framed with such just regard for the rights of all seekers of the precious metals, and afforded such complete protection, that they soon received the sanction of the local legislatures and tribunals; and, when not in conflict with the laws of the United States, or of the state or territory in which the mining ground was situated, were appealed to for the protection of miners in their respective claims, and the settlement of their controversies. And although since 1866 congress has to some extent legislated on the subject, prescribing the limits of location and appropriation, and the extent of mining ground which one may thus acquire, miners are still permitted, in their respective districts, to make rules and regulations not in conflict with the laws of the United States or of the state or territory, in which the districts are situated, governing the location, manner of recording, and amount of work necessary to hold possession of a claim. Rev. St. § 2324. In all legislation, whether of congress, or of the state or territory, and by all mining regulations and rules, discovery and appropriation are recognized as the sources of title to mining claims, and development, by working, as the condition of continued ownership until a patent is obtained. And whenever preliminary work is required to define and describe the claim located, the first discoverer must be protected in the possession of the claim until sufficient excavations and development can be made, so as to disclose whether a vein or deposit of such richness exists as to justify work to extract the metal. Otherwise, the whole purpose of allowing the free exploration of the public lands for the precious metals would in such cases be defeated, and force and violence in the struggle for possession, instead of previous discovery, would determine the rights of claimants. It does not appear, in this case, that there were any mining regulations in the vicinity of the "Hawk Lode" which affect in any respect the questions involved here. Had such regulations existed they should have been proved as facts in the case. We are therefore left entirely to the laws of the United States and the laws of Colorado on the subject. And the laws of the United States do not prescribe any time in which the excavations necessary to enable the locator to prepare and record a certificate shall be made. That is left to the legislation of the state, which, as we have stated, prescribes 60 days for the excavations upon the vein from the date of discovery, and 30 days afterwards for the preparation of the certificate and filing it for record. In the judgment of the legislature of that state this was reasonable time. This allowance of time for the development of the character of the lode or vein, does not, as intimated by counsel, give encouragement to mere speculative locations; that is, to locations made without any discovery or knowledge of the existence of metal in the ground claimed, with a view to obtain the benefit of a possible discovery of metal by others within that time. A mere posting of a notice on a ridge of rocks cropping out of the earth, or on other ground, that the poster has located thereon a mining claim, without any discovery or knowledge on his part of the existence of metal there, or in its immediate vicinity, would be justly treated as a mere speculative proceeding, and would not itself initiate any right. There must be something beyond a mere guess on the part of the miner to authorize him to make a location which will exclude others from the ground, such as the discovery of the precious metals in it, or in such proximity to it as to justify a reasonable belief in their existence. Then protection will be afforded to the locator to make the necessary excavations and prepare the proper certificate for record. It would be difficult to lay down any rules by which to distinguish a speculative location from one made in good faith with a purpose to make excavations and ascertain the character of the lode or vein, so as to determine whether it will justify the expenditures required to extract the metal; but a jury from the vicinity of the claim will seldom err in their conclusions on the subject. This case, as appears by the record, is brought in the name of one of the locators, Erhardt, who owns only four-fifths of the claim. But, as a tenant in common with Carroll, he can maintain an action of ejectment for the possession of the premises, the recovery being not merely for his benefit, but for that of his co-tenant, who is equally entitled with him to the possession. It follows from what we have said that the judgment of the court below. must be reversed, and the case remanded for a new trial; and it is so ordered. (113 U. S. 537) ERHARDT v. BOARO and others.1 (March 2, 1885.) INJUNCTION TO STAY WASTe during SuiT TO DETERMINE Title. In cases where irremediable mischief is being done or threatened, going to the substance of the estate, such as the extraction of ores from a mine, it is proper to issue an injunction, though the title be in litigation. Appeal from the Circuit Court of the United States for the District of Colorado. Elihu Root, for appellant. T. M. Patterson and C. S. Thomas, for appellee. FIELD, J. This is a suit in equity ancillary to the action for the possession of the mining claim just decided. [Erhardt v. Boaro, ante, 560.] It is brought to restrain the commission of waste by the defendants pending the action. The bill sets forth the discovery by one Thomas Carroll, a citizen of the United States, while searching on behalf of himself and the plaintiff, also a citizen, for valuable deposits of mineral on vacant unoccupied land of the United States, of the outcrop of a vein or lode of quartz and other rock bearing gold and silver in valuable and paying quantities, the posting by him in his name and that of the plaintiff, at the point of discovery, of a notice that they claimed 1,500 feet on the lode, the intrusion of the defendants upon the claim, their ousting the locators, and other facts which are detailed by the record in the case decided, and the commencement of the action at law. It also alleges that the defendants were working the claim, and had extracted from it 150 tons, or thereabouts, of ore, containing gold and silver of the value of $25,000, and that about 100 tons remain in their possession on the premises. The bill prays for a writ of injunction restraining the defendants from mining on the claim, or extracting ore therefrom, or removing any ore already extracted, until the final determination of the action at law. The principal facts stated in the bill are supported by affidavits of third parties. The court granted a preliminary injunction, but, after the trial of the action at law, judgment being rendered therein in favor of the defendants, it dissolved the injunction and dismissed the bill. From the decree of the court the case is brought here by appeal. It was formerly the doctrine of equity, in cases of alleged trespass on land, 5. C. 8 Fed. Rep. 692, 860. not to restrain the use and enjoyment of the premises by the defendant when the title was in dispute, but to leave the complaining party to his remedy at law. A controversy as to the title was deemed sufficient to exclude the jurisdiction of the court. In Pillsworth v. Hopton, 6 Ves. 51, which was before Lord ELDON in 1801, he is reported to have said that he remembered being told in early life from the bench "that if the plaintiff filed a bill for an account and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he stated himself out of court as to the injunction." This doctrine has been greatly modified in modern times, and it is now a common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction pending legal proceedings for the determination of the title. Jerome v. Ross, 7 Johns. Ch. 315, 332; Le Roy v. Wright, 4 Sawy. C. C. 530, 535. As the judgment in the action at law in favor of the defendants has been reversed, and a new trial ordered, the reason which originally existed for the injunction continues. The decree of the court below must therefore be reversed, and the cause remanded, with directions to restore the injunction until the final determination of that action; and it is so ordered. 689. (113 U. S. 629) KANSAS PAC. RY. Co. v. DUNMEYER. 1. RAILROAD LAND GRANTS-LINE, WHEN FIXED. The line of definite location of a railroad, which determines the rights of railroad companies to land under land-grant acts of congress, is definitely fixed within the meaning of those acts, by filing the map of its location with the commissioner of the general land-office at Washington. 2. SAME-HOMESTEAD ENTRIES-PRE-EMPTIONS. Under the acts granting lands to aid in the construction of a line of railroad from the Missouri river to the Pacific ocean, the claim of a homestead or pre-emption entry, made at any time before the filing of that map in the general land-office, had attached, within the meaning of those statutes, and no land to which such right had attached came within the grant. 3. SAME-FAILURE TO COMPLY WITH STATUTE. The subsequent failure of the person making such claim to comply with the acts of congress concerning residence, cultivation, and building on the land, or his actual abandonment of the claim, does not cause it to revert to the railroad company, and become a part of the grant. The claim having*attached at the time of filing the definite line of the road, it did not pass by the grant, but was, by its express terms, excluded, and the company had no interest, reversionary or otherwise, in it. 4. SAME-ACT OF JULY 3, 1866. The act of July 3, 1866, 14 St. 79, which authorized the secretary of the interior to withdraw certain lands from sale, on filing a map of the general route of the road with him, did not reserve such lands from entry under the pre-emption and homestead laws. In Error to the Supreme Court of the State of Kansas. J. P. Usher and John F. Dillon, for plaintiff in error. No appearance for defendant in error. * MILLER, J. This is a writ of error to the supreme court of Kansas. The action was brought in that court on a covenant of warranty of title to two pieces of land in a deed of conveyance made by the company to Dunmeyer. The land was sold by the company to George W. Miller, to whom a certificate of sale was given, which afterwards came by assignments to Lewis Dunmeyer, to whom the company made a deed purporting to convey a good title. On 089. *632 this covenant for good title Dunmeyer brought the present action, alleging that the railroad company never had any title, and that the covenant was therefore broken. On this issue the case was tried. Several other defenses were set up; among them, that the covenant was not broken, because Dunmeyer was in possession when he bought the certificate issued to Miller and when he took his deed, and has never been disturbed or ousted; that Miller was in possession when he bought of the company and transferred possession to Dunmeyer, and that this has been held ever since; and that Miller's purchase was a compromise of disputed rights, and he and Dunmeyer are therefore estopped to maintain this action. But these and perhaps other points, decided against plaintiff in error, do not present questions of federal law which this court can review in a judgment of a state court. Two such questions are presented by this record, which are said to be of great importance as covering controverted titles to many thousand acres of valuable land. The sum involved in this suit is but little over $300, and while the plaintiff in error has been represented here by able counsel and by oral arguments at two different hearings, we have no aid from the defendant, either by counsel or brief. This is very much to be regretted, but is without remedy, and only devolves on the court the duty of more than ordinary care in its own examination of the case. The claim of title of the railroad company, which the supreme court of Kansas held to be no title, arises under two acts of congress granting land to the Union Pacific Railroad Company and its branches, namely, the act of July 1, 1862, (12 St. 489,) and the amendatory act of July 2, 1864, (13 St. 356,) and another act of July 3, 1866, (14 St. 79.) The land, the title to which is in controversy in this suit, is part of an odd-numbered section, and lies within 10 miles of the company's road, and the title of the company to it when it made the conveyance to Dunmeyer was perfect, under the grant found in the acts of congress mentioned, unless it came within some of the exceptions contained in the language of the grant. The supreme court of Kansas based its decision on the ground that it did come within the language of such an exception. That language is as follows: "Sec. 3. And be it further enacted, that there be, and hereby is, granted to said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure speedy transportation of the mails, troops, and munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five sections per mile, on each side of said railroad, on the line thereof, within the limits, of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed." An exception of mineral lands follows in a proviso which does not affect the present question. The record shows that on July 25, 1866, Miller made a homestead entry on this land which was in every respect valid, if the land was then public land subject to such entry. It also shows that the line of definite location of the company's road was first filed with the commissioner of the general land-office at Washington, September 21, 1866. This entry of Miller's, therefore, brought the land within the language of the exception in the grant as land to which a homestead claim had attached at the time the line of said road was definitely fixed. For we are of opinion that under this grant, as under many other grants containing the same words, or words to the same purport, the act which fixes the time of definite location is the act of filing the map or plat of this line in the office of the commissioner of the general land-office. The necessity of having certainty in the act fixing this time is obvious. Up to that time the right of the company to no definite section, or part of section, is fixed. Until then many rights to the land along which the road *636 finally runs may attach, which will be paramount to that of the company building the road. After this no such rights can attach, because the right of the company becomes by that act vested. It is important, therefore, that this act fixing these rights shall be one which is open to inspection. At the same time it is an act to be done by the company. The company makes its own preliminary and final surveys by its own officers. It selects for itself the precise line on which the road is to be built, and it is by law bound to report its action by filing its map with the commissioner, or, rather, in his office. The line is then fixed. The company cannot alter it so as to affect the rights of any other party. Of course, as soon as possible, the commissioner ought to send copies of this map to the registers and receivers through whose territory the line runs. But he may delay this, or neglect it for a long time, and parties may assert claims to some of these lands, originating after the company has done its duty-all it can do-by placing in an appropriate place, and among the public records, where the statute says it must place it, this map of definite location, by which the time of the vestiture of their rights is to be determined. We concede, then, that the filing of the map in the office of the commissioner is the act by which "the line of the road is definitely fixed" under the statute. Van Wyck v. Knevals, 106 U. S. 360; S. C. 1 SUP. CT. REP. 336. It is strongly argued, by counsel for plaintiff in error, that the language of the excepting clause in the third section of the act of 1862 is modified or repealed by certain expressions found in section 4 of the amendatory act of 1864. That section is intended to increase the grant of land made by the act of 1862 to double the quantity then granted. It does this by very peculiar language. It was evidently designed that the new grant should relate back for its date to that of the original grant, whereby it became retrospective as to all the lands added by the new act. It says that "five" in the old act shall read "ten," where the number of sections is mentioned; that "ten" shall read "twenty," where the limits within which the section may be found are described by miles. And it says that the term "mineral lands," in the exception in the grant, shall not be construed to mean coal or iron lands. Seeing, however, that this retrospective grant might affect rights already accrued or initiated, it is said in immediate connection, and in the same section, that "any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any pre-emption, homestead, swamp-land, or other lawful claim, nor include any government reservation or mineral lands, or the improvements of any bona fide settler, or any lands returned and denominated as mineral." It is difficult to see how this language, the main purpose of which was to prevent this retroactive grant from harming any kind of a claim to the lands granted which had taken effect before the statute was passed, can be construed as repealing the fundamental clause of the original act, in which the character of the grant and of its exceptions are fully defined. *This new provision may make other exceptions while enlarging the grant, and was undoubtedly intended to add further safeguards to the settler and further protection to the public. But how the clause can be supposed to narrow the original exception, or to be a substitute for that exception, or to repeal it, is not readily to be seen. It had no such purpose. It had a very different purpose, and clearly leaves the original section, which it changes as to the limit of the grant, to stand as to the exception, save as further exceptions are added. Another argument, which at first blush appears to rest on a stronger foundation, requires examination. The record shows that while the company did not file its line of definite location until about two months after Miller made his homestead entry, it did designate the general route of said road, and file a map thereof in the general land-office, July 11, of the same year, 1866, which was 15 days before Miller's homestead entry. This latter map was filed in the office of the register and receiver on the twenty-sixth of July, one day |