the payment of compensation to the injured | rules of conduct, are subject to legislative employés or their dependents should be ren- modification. And a plan imposing upon the dered secure, and the losses to individual em- employer responsibility for making compenployers distributed, by a system of compensation for disabling or fatal injuries irresation insurance, in which it was deemed im- spective of the question of fault, and requirportant that all employés of a given employer ing the employé to assume all risk of damshould be treated alike. Still further there ages over and above the statutory schedule, are reasons affecting the contentment of the when established as a reasonable substitute employés and the discipline of the force, ren- for the legal measure of duty and responsidering it desirable that all serving under a bility previously existing, may be made comcommon employer should be subject to a pulsory upon employés as well as employers. single rule as to compensation in the event N. Y. Central R. R. Co. v. White, 243 U. S. of injury or death arising in the course of 188, 198-206, 37 Sup. Ct. 247, 61 L. Ed. 667, the employment. These and other consider- L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; ations that might be suggested fully justified Mountain Timber Co. v. Washington, 243 U. the legislative body of the state in determin- S. 219, 234, 37 Sup. Ct. 260, 61 L. Ed. 685, ing that acceptance of the new system should Ann. Cas. 1917D, 642. rest upon the initiative of the employer, and that any particular employé who with notice of the employer's acceptance dissented from the resulting arrangement should be required to exercise his option by withdrawing from the employment. The relation of employer and employé being a voluntary relation, it was well within the power of the state to permit employers to accept or reject the new plan of compensation, each for himself, as a part of the terms of employment; and in doing this there was no denial to employés of (Argued Jan. 10 and 13, 1919. Decided March the equal protection of the laws within the meaning of the Fourteenth Amendment.

This disposes of all contentions made under the equal protection clause.

[8,9] It is argued further that there is a deprivation of liberty and property without due process of law in requiring employés, willingly or unwillingly, to accept the new system where their employer has adopted it. Of course there is no suggestion of a deprivation of vested property *in the present case, since the law was passed in April and took effect in September, while the plaintiff's injuries were received in the following December, after he had been notified of his employWhat plaintiff er's acceptance of the act. has lost, therefore, is only a part of his liberty to make such contract as he pleased with a particular employer and to pursue his employment under the rules of law that previously had obtained fixing responsibility upon the employer for any personal injuries the plaintiff might sustain through the negligence of the employer or his agents. But, as has been held so often, the liberty of the citizen does not include among its incidents any vested right to have the rules of law remain unchanged for his benefit. The law of master and servant, as a body of rules of conduct, is subject to change by legislation in the public interest. The definition of negligence, contributory negligence, and assumption of risk, the effect to be given to them, the rule of respondeat superior, the imposition of liability without fault, and the exemption from liability in spite of fault-all these, as

All objections to the act on constitutional grounds being found untenable, the judgment under review is Affirmed.

(249 U. S. 12)

BUTTE & SUPERIOR COPPER CO., Limit-
ed, v. CLARK-MONTANA REALTY
CO. et al. .

3, 1919.)
No. 598.

1. COURTS 382(5)-FEDERAL JURISDICTION -STATEMENT OF GROUNDS IN PLEADINGSCONSTRUCTION OF STATUTES.

Plaintiffs' statement of grounds of suit in federal District Court, founded on Montana statute relating to determination of adverse claims, which showed that controversy was over extralateral rights in mining claim and involved more than $3,000, and the construction of Rev. St. §§ 2322, 2324, 2325, and 2332 (Comp. St. §§ 4618, 4620, 4622, 4631), which are foundation of rights to mining claims, held to sufficiently show that jurisdiction of District Court was not rested on diversity of citizenship, and heuce decision of Court of Appeals was not final.

2. MINES AND MINERALS 29(5)—MINING LOCATION-DEFECTS-PARTIES ENTITLED TO

OBJECT.

Locator of mining claim, claiming rights conflicting with adjoining claim having priority of location, but subsequent patent, could not, having knowledge of the possession and working of the claim, base any rights on failure of prior locator to comply with a Montana territorial statute relating to declaratory statement.

3. MINES AND MINERALS
CONFLICTING
RIGHTS.

LOCATIONS

27(1), 38(17)PRIORITY

ΟΙ

Priority of right in mining claims is not determined by date of entries or patents of the re spective claims, but by discovery and locatior, which may be shown by testimony other than the entries and patents.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

4. MINES AND MINERALS PATENTS-PRESUMPTIONS.

In the absence from the record of an adverse suit, there is no presumption that anything was considered or determined on application for patent, except the question of rights

to the surface.

5. MINES AND MINERALS

ING LOCATIONS-PRIORITY.

44-LOCATIONS-| States District Court for the District of Montana by a bill filed therein by the appellees Clark-Montana Realty Company and Elm Orlu Mining Company against appellant Butte & Superior Copper Company, Limited, under a statute of Montana authorizing an action to be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.

27(1)-CONFLICT

A prior locator of a mining claim, after a valid discovery, has title to veins and lodes whose tops or apices are within location, though subsequent adjoining locator obtained a prior

patent.

6. APPEAL AND ERROR FINDINGS OF FACT.

The appellees (plaintiffs in the suit) obtained a decree in the District Court quieting their title and decreeing an accounting. Clark-Montana Realty Co. v. Butte & Supe1094(2)-REVIEW-rior Copper Co., 233 Fed. 547. The decree was affirmed by the Circuit Court of Appeals, 248 Fed. 609, 160 C. C. A. 509. To review the latter action this appeal is prosecuted.

In a suit involving extralateral rights in mining claim, finding of facts by District Court on conflicting evidence, approved by the Circuit Court of Appeals, will not be disturbed by the Supreme Court.

7. MINES AND MINERALS

DEED RIGHTS CONVEYED.

miss on the ground that the decree of the We are confronted with a motion to disCircuit Court of Appeals was final, the juris34-QUITCLAIM diction of the District Court having been, in legal effect, rested, it is asserted, upon diversity of citizenship. To judge of the motion requires a consideration of appellees' statement of their grounds of suit. An outline of them is only necessary.

Where owner of a mining location E., who also owned one-fourth interest in adjoining location B., quitclaimed to adjoining owner the onefourth interest, with its rights, together with all dips, spurs, angles, etc., the deed passed no interest that did not belong to that claim, and did not denude E. of extralateral rights that the law conferred on it. 8. EQUITY

427(1)-DECREE-SUIT TO DETERMINE MINING RIGHTS RESERVATION OF QUESTION.

In a suit to determine extralateral rights in adjoining mining claims, where the court found as a fact that apex of veins in dispute was in location of plaintiff, but the facts as developed were not clear as to where the apex passed out of such location, the court properly reserved such question.

Appeal from the United States Circuit Court of Appeals for the Ninth Circuit.

Suit by the Clark-Montana Realty Company and the Elm Orlu Mining Company against the Butte & Superior Copper Company. From a judgment of the Circuit Court of Appeals (248 Fed. 609, 160 C. C. A. 509), affirming a decree for complainants (233 Fed. 547), defendant appeals. Decree affirmed.

Messrs. William Wallace, Jr., of Helena, Mont., W. H. Dickson, of Salt Lake City, Utah, J. Bruce Kremer, of Butte, Mont., and William Scallon, of Helena, Mont., for appellant. Mr. John P. Gray, of Coeur d'Alene, Idaho, for appellees.

[1] At the outset we may say there is a diversity of citizenship, the parties being respectively corporations of Washington and Arizona, and it was so averred.

The predecessors of appellees (so run the allegations) on April 18, 1875, discovered a vein or lode of mineral-*bearing rock in the ground described as the Elm Orlu. Discovery was followed by location of the claim and other acts of its appropriation prescribed by the mining laws, proof of which was duly made; and such steps were taken that on December 30, 1882, application for patent was made and patent issued for the claim January 31, 1884. The locators and their successors in interest held, worked, possessed and actually occupied the claim continuously from the date of discovery for more than five years thereafter and during all that time were in the open, notorious, exclusive and uninterrupted possession of it.

The Clark-Montana Realty Company became the owner of the claim and entitled to its possession and of all veins, lodes or ledges having their tops or apices therein throughout their entire depth between the end lines of said claim extended northerly in their own direction. That company leased the claim to appellee, Elm Orlu Mining Company, which is occupying it by virtue of the lease. The appellant is the owner of the Black *Mr. Justice MCKENNA delivered the opin- Rock, Jersey Blue, Admiral Dewey and Silion of the Court.

A contest between mining claims as to the right to the ores that may be not only inside the surface lines of the claims but outside their vertical side lines-dip or extralateral rights. It was commenced in the United

ver Lode Mining Claims which adjoin the Elm Orlu claim on its north side. Their locations progressed to patent.

In the Elm Orlu claim there is a vein or lode known as the Rainbow lode, which crosses the west end line of the Elm Orlu

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

claim and proceeds in an easterly direction [tion that the construction and application of through it. It was upon this lode that the the designated sections of the Revised Statdiscovery of the claim was made. Its down-utes are involved, and, turning to them, we ward course through the side line of the claim find that they are the foundation of the drawn vertically is northerly and it extends rights to mining claims and express the condownward and passes below the surface of ditions of their acquisition and extent, and, appellant's claims. it would seem, are often the basis of controversies as to them and the solution of the controversies. And realizing this, we may suppose, appellees were at pains to set out the conditions and steps they observed, and The value of the Elm Orlu claim is given, lest there might be omission, and in remedy and it is averred that appellant has by means of it if there should be, they availed themof secret underground works in its posses- selves by appropriate allegations of section sion willfully penetrated the *Rainbow lode | 2332, R. S.; that is, they alleged that they and has extracted and is extracting large amounts of ore therefrom, the exact amount being unknown, but exceeding in value the sum of $50,000.

Appellant claims an estate or interest adverse to appellees' in the Rainbow lode, the exact nature of which claim is unknown to appellees, but it is false and groundless.

It is prayed that appellant declare its title and, when declared, that it be adjudged without merit; that appellees' title be established and appellant enjoined from further assertion of rights adverse to appellees, and for an accounting.

were in the actual, open, exclusive and uninterrupted possession of the Elm Orlu, working the same for more than five years (the period of limitation under section 2332) continuously from the date of discovery. And counsel admitted upon a question from the bench at the oral argument, that the allegation had jurisdictional purpose and that resort was had to the federal court that appellees might avail themselves of the pro

There is an averment, however, that re-visions of section 2332 and of Clipper Mining quires notice. It is as follows:

"That the jurisdiction of the United States District Court for the District of Montana over this suit is invoked and depends upon two grounds, to wit:

"(1) Upon the ground that the construction and application of sections 2322, 2324, 2325, and 2332 of the Revised Statutes of the United States (Comp. St. §§ 4618, 4620, 4622, 4631) are involved, and the amount in controversy exceeds in value the sum of three thousand ($3,000) dollars, exclusive of interest and costs, all of which will appear from the facts hereinafter set forth.

"(2)

The averment is explicit and, we may assume, had a purpose; but appellees do not wish to be taken at their word. The confidence they thought and expressed when invoking the powers of the court in the first instance and providing, we may assume, for review in case of an adverse decision-they now recant and urge that it should not be used to question or disturb their success or become an avenue of relief to their antagonist. This is not unusual and counsel has cited prior examples and the action of the

court therein.

The principle of decision which the court then announced is familiar. It is that the ground of jurisdiction in the District Court and ultimately in this court on appeal from the Circuit Court of Appeals is the statement of the suing party of his cause of suit. And there must be substance in it, not mere verbal assertion or the anticipation of defenses.

Taylor v. Anderson, 234 U. S. 74, 34 Sup. Ct. 724, 58 L. Ed. 1218; Hull v. Burr, 234 U. S. 712, 720, 34 Sup. Ct. 892, 58 L. Ed. 1557. Has appellees' statement these defects? As we have seen, there is a confident asser

Co. v. Eli Mining Co., 194 U. S. 220, 226, 24 Sup. Ct. 632, 48 L. Ed. 944, the Supreme Court of Montana having decided that a notice of location which failed to comply, as appellees' did, with a statute of Montana was defective. The allegation, therefore, was part of appellees' case-fortified the other allegations as grounds of suit and recoveryand made the suit one involving the construction and application of that section. The motion to dismiss is, therefore, denied.

On the merits the case is not of novelty.) It is the usual *one of priority of rights in a mineral-bearing vein. The averments of appellees we have given. They are met by appellant by denials, counter averments of 10cation and rights, not only by grounds of defense but of affirmative relief; prayers for recompense for trespasses upon its rights and that its title be quieted against the assertion of appellees.

In summary description of the controversies in the case we may say they center in the Rainbow lode, so-called-in regard to which the parties are in absolute antagonism both in averment and contention-and incidentally in other lodes.

Upon the issues thus joined the District Court made certain findings which were affirmed by the Circuit Court of Appeals. We take them up in their order as we shall thereby be able to separate the questions of law from the questions of fact.

[2-4] 1. The court found that the Elm Orlu was located before the Black Rock. Of this

finding there can be no doubt if the procedure of the law was observed in the location of the Elm Orlu. The steps in that procedure

1 Hickey v. Anaconda Mining Co., 33 Mont. 46, 81 Pac. 806.

and their order are well established. The tle and right to the veins in controversy? first of them is the discovery of mineral-bear- The District Court, and the Circuit Court of ing rock within the claim, and it must pre- Appeals affirming it, decided both issues cede location. The subsequent steps-mark- against appellant on the *grounds: (1) That ing the boundaries, posting notice, recording the Montana cases did not furnish the rule -are the declaration of title; the patent is of decision for the federal courts, the better the final evidence of it. Such steps being ob- reasoning being (for which cases were cited) served, the right is acquired under the Re- that as the Montana statute did not impose a vised Statutes to the vein on its course and forfeiture hence none resulted from defects dip to the extent that its top or apex is with- in the declaratory statement of the Elm Orlu. in the surface boundaries of the claim or (2) That the Elm Orlu people were in poswithin vertical planes drawn downward session of their claim, working the same-of through them. Lawson v. United States Min- which the Black Rock people had knowledge ing Co., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed.-and that hence the latter could not avail 65; Stewart Mining Co. v. Ontario Mining Co., 237 U. S. 350, 35 Sup. Ct. 610, 59 L. Ed. 989.

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-equivocal possession of the Elm Orlu and it

is elementary that such possession is notice 2 McBurney v. Berry, 5 Mont. 300, 5 Pac. 867; to all the world of the possessor's rights O'Donnell v. Glenn, 8 Mout. 248, 19 Pac. 302; Mc- thereunder. Simmons Creek Coal Co. v. DorGowan v. Maclay, 16 Mont. 234, 40 Pac. 602; Hickey an, 142 U. S. 417, 12 Sup. Ct. 239, 35 L. Ed. 1063.

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.

Pro

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.

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

spective underground conflicts are not the of the veins those herein are chosen to avoid subject of adverse claims.'"

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

confusion."