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S. Comp. Stat. 1901, p. 1433, and § 2859 of | § 709, U. S. Rev. Stat., U. S. Comp. Stat. the Revised Statutes of Utah, both of which 1901, p. 575." sections are copied in the margin.‡ Adopting the finding of the trial court that the Uhlig claims were valid locations, attention was called to the fact that those claims were located on January 1, 1889, while the Yes You Do was located more than eight years thereafter; viz., on January 1, 1898. A mining claim was declared to be a possessory right and real estate under the statutes of Utah, and it was held that one Mayberry, the locator of the Levi P. claim, not having instituted a suit to recover possession of the premises in dispute within seven years after the location of the Uhlig claims, was barred of all right to such premises by the terms of § 2859 of the Revised Statutes of Utah, and that his right to contest the title of the defendants to the conflict areas "was also waived by his failure to adverse the application for a patent of the Uhlig Nos. 1 and 2." The court added: "In view of these facts the plaintiff, even if J. Fewson Smith, Jr., had not been a deputy United States mineral surveyor, as the location of the 'Yes You Do' was not made until eight years after the possession of the Uhlig Nos. 1 and 2 was begun, could not avail himself of any rights which the said Mayberry may have had."

This latter ruling of the supreme court of Utah forms the basis for the first of two grounds of a motion to dismiss this writ of error, which motion will now be passed upon.

The first is, in substance, that, assuming that there was a Federal question determined by the supreme court of Utah, its decision was not necessary, and whether it was or not, jurisdiction does not exist, because there was another ground upon which the decree of the trial court was affirmed, non-Federal in its nature, and broad enough to maintain the judgment; viz., the ruling of the bar of the statute of limitations. The second ground is thus stated:

"That under the decision of the supreme court of the state of Utah, this court has no jurisdiction to hear and determine the question raised under § 452, U. S. Rev. Stat., for the reason that the plaintiff in error has not brought himself within the provisions of

Section 2332, U. S. Rev. Stat.

"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 working 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; but nothing in this chapter shall be deemed to impair any lien'

We are of opinion that neither of the grounds urged in support of the motion to dismiss are tenable. As to the first, it is true that the supreme court of Utah decided that, even although J. Fewson Smith, Jr., had been qualified to locate the Yes You Do claim, the location was invalid because made more than seven years after the location of the Uhlig Nos. 1 and 2, when, it was held, the bar of the statute of limitations was operative. But this amounted to saying that, even although the plaintiff was entitled to adverse the Uhlig claims, he could not be heard to rebut the evidence for the defendants as to the possession under the Uhlig locations, by evidence as to the possession taken and had under the Levi P. location. Plainly, we think the ruling denied to the grantee of the Yes You Do, under the hypothesis that they existed, rights asserted by him under § 2324 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 1426), authorizing the relocation of forfeited claims. It is evident from the record that the finding of the trial court as to the time when possession was taken of the Uhlig Nos. 1 and 2 claims, and the duration of possession, was based entirely upon the evidence introduced on behalf of the owners of those claims. The trial court treated as irrelevant and immaterial evidence tending to show that the premises in dispute were embraced in the Levi P. location, and that possession of that claim was held and retained from a time at least contemporaneous with the initiation of the Uhlig locations, and almost up to the location of the Yes You Do, as a relocation of the Levi P. Under such circumstances a decision that the bar of the seven years' statute of limitations was operative, upon the assumption that the locator of the Yes You Do was entitled to adverse conflicting locations, amounted to deciding that Lavagnino could not show that the premises in dispute were unoccupied mineral lands of the United States at the time of the location of the Yes You Do, and, as bearing upon the validity of the relocation of the Levi P., the facts as to the location, possession under, and forfeiture of the Levi P. claim. The necessary effect of which may have attached in any way whatever to any mining claim or property, thereto attached prior to the issuance of a patent."

Section 2859, Utah Rev. Stat.

"No action for the recovery of real property, or for the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, grantor, or predecessor, was seized or possessed of the property in question within seven years before the commencement of the action."

this ruling, as before stated, was, we think, | cited. to deny to the locator of the Yes You Do the protection of the relocation provisions of § 2324 of the Revised Statutes, if that section justified the claim of right based upon it.

As to the second ground, the record clearly shows that the trial court considered that the plaintiff was specially claiming rights under § 2326 of the Revised Statutes, authorizing an adverse of an application for a patent to mineral lands, and the supreme court of Utah necessarily acted upon that assumption in the opinion by it delivered. The motion to dismiss is, therefore, overruled.

The question then is, Did the supreme court of Utah err in affirming the decree of

the trial court?

As we have seen, the supreme court of Utah, in part, rested its conclusion upon the want of power in a deputy mineral surveyor to make the location in question, in consequence of the prohibition contained in § 452

of the Revised Statutes. A consideration of that subject, however, will be unnecessary if it be found that even if a deputy mineral surveyor was not within the restriction of the section referred to, nevertheless, the rights asserted under the Yes You Do location in the adverse proceeding were not paramount to the rights arising from the Uhlig location. We, therefore, come at once to a consideration of that question, and, of course, in doing so assume, for argument sake, that the section of the Revised Statutes relied upon and the rules and regulations of the Land Department did not regulations of the Land Department did not prohibit a deputy mineral surveyor from making a location of mineral land. And, moreover, in considering the question which we propose to examine, we concede, for the sake of argument, that the Levi P. location, of which the Yes You Do purported to be a relocation, was prior in date to the location of the Uhlig Nos. 1 and 2, and that there were areas in conflict between them. With all these concessions in mind, the question all these concessions in mind, the question yet remains whether Smith and his transferee, in virtue of the location of the Yes You Do, stood in such a relation as to enable

them, or either of them, to successfully adverse the application for patent made by the owners and possessors of the Uhlig locations. It is undoubted that this court in a number of cases has declared that the rights of a subsisting senior locator of mineral land are paramount to those of the owner of a junior location, so far as said junior location conflicts in whole or in part with the prior location. Clipper Min. Co. v. Eli Min. & Land Co. 194 U. S. 220, 226, 48 L. ed. 944, 949, 24 Sup. Ct. Rep. 632, and cases

It is elementary, also, that the power conferred by § 2324 of the Revised Statutes, to relocate a forfeited mining claim, does not place the locator in privity of title with the owner of the prior and forfeited location. The statute merely provides that when a forfeiture has been occasioned, "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 location."

The question then is, where there was a conflict of boundaries between a senior and junior location, and the senior location has been forfeited, has the person who made the relocation of such forfeited claim the right, in adverse proceedings, to assail the title of the junior locator in respect to the conflict area which had previously existed between that location and the abandoned or

forfeited claim?

involves, necessarily, deciding that, as to the To say that the relocator had such right senior locations, the junior could acquire no area in conflict between the junior and the present or eventful right whatever, and that, on the abandonment or forfeiture of the senior claim, the area in conflict became, without qualification, a part of the public domain. In other words, the proposition must come to this: that as the junior locator had acquired no right whatever, present or possible, by his prior location, as to the conflicting area, he would be obliged, to initiate in respect thereto a new right, in order to obtain a patent for such area, to initiate in respect thereto a new right, accompanied with a performance of those acts which the statute renders necessary to make a location of a mining claim.

The deductions just stated are essential to sustain the right of the relocator of a forfeited mining claim to contest a location existing at the time of the relocation, on the ground that such existing location embraced an area which was included in the forfeited and alleged senior location, for the following reasons: If the land in dispute between the two locations, which antedated the relocation, did not, on forfeiture of the senior of the two locations, become unqualifiedly a part of the public domain, then the right of the junior of the two would be operative upon the area in

the

conflict on a forfeiture of the senior location.

If it had that effect it necessarily was prior and paramount to the right acquired by a relocation of the forfeited claim.

But we do not think that the deductions which we have said are essential to sustain

the right of the relocator to adverse, under the circumstances stated, can be sustained consistently with the legislation of Congress in relation to mining claims. Indeed, we think such a construction would abrogate the provisions of § 2326 of the Revised Statutes, which is as follows:

"Sec. 2326. Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving 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 in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon 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 of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor general, whereon the register shall certify the proceedings and judgment roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever."

This section plainly recognizes that one who, pursuant to other provisions of the Revised Statutes, has initiated a right to a mining claim, has recorded his location notice, and performed the other acts made

necessary to entitle to a patent, and who makes application for the patent, publishing the statutory notice, will be entitled to a patent for the land embraced in the location notice, unless adverse rights are set up in the mode provided in the section. Thus clearly providing that if there be a senior locator possessed of paramount rights in the mineral lands for which a patent is sought, he may abandon such rights and cause them in effect to inure to the benefit of the applicant for a patent by failure to adverse, or, after adversing, by failure to prosecute such adverse.

It cannot be denied that under § 2326, if, before abandonment or forfeiture of the Levi P. claim, the owners of the Uhlig locations had applied for a patent, and the owners of the Levi P. had not adversed the application, upon an establishment of a prima facie right in the owners of the Uhlig claims, an indisputable presumption would have arisen that no conflict claims existed to the premises described in the location notice. Gwillim v. Donnellan, 115 U. S. 45, 51, 29 L. ed. 348, 350, 5 Sup. Ct. Rep. 1110. And the same result would have arisen had the owner of the Levi P. adversed the application for a patent based upon the Uhlig locations, and failed to prosecute, and waived such adverse claim.

In both of the supposed instances the necessary consequence would have been to conclusively determine in favor of the applicant, so far as the rights of third persons were concerned, that the land was not unoccupied public land of the United States, but, on the contrary, as to such persons, from the time of the location by the applicant for the patent, was land embraced within such location, and not subject to be acquired by another person. And this result, flowing from the failure of the owner of a subsisting senior location to adverse an application for patent by the owner of an opposing location, or his waiver, if an adverse claim is made. must, as the greater includes the lesser, also arise from the forfeiture of the claim of the senior locator before an application for patent is made by the conflicting locator, and the consequent impossibility of the senior locator to successfully adverse after the forfeiture is complete.

Of course the effect of the construction which we have thus given to § 2326 of the Revised Statutes is to cause the provisions of that section to qualify §§ 2319 and 2324 (U. S. Comp. Stat. 1901, pp. 1424, 1426), thereby preventing mineral lands of the United States which have been the subject of conflicting locations from becoming, quoad the claims of third parties, unoccupied mineral lands by the mere forfeiture of one of such locations.

In text books (Barringer & A. Mines & Mining, p. 306; Lindley, Mines, 2d ed. pp. 650, 651), statements are found which seemingly indicate that, in the opinion of the writers, on the forfeiture of a senior mining location, quoad a junior and conflicting location, the area of conflict becomes, in an unqualified sense, unoccupied mineral lands of the United States, without inuring in any way to the benefit of the junior location. But, in the treatises referred to, no account is taken of the effect of the express provisions of Rev. Stat. § 2326. Moreover, when the cases to which the text writers referred, as sustaining the statements made, are examined, it will be seen that they were decided either before the passage of the adverse claim of statutes of 1872, or concerned controversies between the senior and junior locators, or depended upon the provisions of state statutes. How far such statutes would be controlling, we are not called upon to say, as it is not claimed that there is any statute in Utah in any way modifying the express provisions of § 2326.

As the issue raised by the complaint in this action concerned only the conflict areas, and, on the trial, the invalidity of the Uhlig locations, in respect to the premises in dispute, was attempted to be established solely by proof that the Levi P. was an antecedent location, and embraced the grounds in conflict, it follows, from the opinion which we have expressed, that, at the time when Smith located the Yes You Do claim as a relocation of the Levi P. claim, the land embraced within the location notices of the Uhlig claims, and upon which the Yes You Do overlapped, was not unoccupied mineral lands of the United States, and was conse

2.

Amendment to the Constitution of the United States does not wholly deprive a state of the power to confer jurisdiction on its courts to administer the estates of absentees, irrespective of the fact of death, by a special and appropriate proceeding distinct from the general law for the settlement of the estates of decedents.

Fixing the period of a person's absence

from his last domicil within the state which will be sufficient, under Pa. Laws 1885, p. 155, to authorize the administration of his property by the special proceeding provided by that statute at seven or more years, is not so unreasonable as to render the statute repugnant to the due process of law clause of the 14th Amendment to the Constitution of the United States.

3. Notice by publication of the special proceeding provided by Pa. Laws 1885, p. 155, for the administration of the estates of absentees, satisfies the requirement of the due process of law clause of the 14th Amendment to the Constitution of the United States.

4.

The safeguards for the protection of the property of an absentee in case of his return, afforded by Pa. Laws 1885, p. 155, providing a special proceeding for the administration of the estates of absentees, satisfy the requirement of the due process of law clause of the 14th Amendment to the Constitution of the United States, where that statute authorizes the revocation of the administration at any time on proof that the absentee is in fact alive, and in such event permits him to recover the shares of his estate received by the distributees, and provides that until the latter shall give security for refunding their shares with interest in case the supposed decedent shall be alive, no distribution shall be made, and that in case of inability to give such security the money shall be invested under the control of the court, and the interest only paid to the distributees.

[No. 165.]

1905.

quently not subject to be relocated by Smith, Argued March 6, 1905. Decided May 29, even under the mere hypothesis which we have indulged in, that, as a deputy mineral

N

surveyor, he was not debarred from making IS ERROR to the Supreme Court of the

the location. For this reason the judgment of the Supreme Court of Utah was right, and it must therefore be affirmed.

IN

State of Pennsylvania to review a judgment which reversed a judgment of the Superior Court of that state, which had affirmed a judgment of the Court of Common Pleas of Berks County in favor of plaintiff in an

Mr. Justice Brewer concurs in the re-action to recover arrears of interest which sult.

Mr. Justice McKenna dissents.

(198 U. S. 458) }

MARGARET CUNNIUS, now Margaret Smith, Piff. in Err.,

v.

READING SCHOOL DISTRICT.

Constitutional law-due process of law-validity of proceeding for administration of estates of absentees.

1. The due process of law clause of the 14th 25 S. C.-46.

had been paid during her absence from the state to the administrator appointed to administer her estate as an absentee. Affirmed. See same case below, 206 Pa. 469, 98 Am. St. Rep. 790, 56 Atl. 16.

The facts are stated in the opinion.
Mr. Caleb J. Bieber for plaintiff in er-

ror.

Messrs. Frederick W. Nicolls (by special leave) and William Rick for defendant in error.

Mr. Justice White delivered the opinion of the court:

The legislature of Pennsylvania, in 1885,

adopted a law "relating to the grant of letters of administration upon the estates of persons presumed to be dead, by reason of long absence from their former domicil." Briefly, and in substance, the act provided that upon application made to the register of wills for letters of administration upon the estate of any person supposed to be dead | on account of absence for seven or more years from the place of his last domicil within the state, the register of wills shall certify the application to the orphans' court, and that said court, if satisfied that the applicant would be entitled to administration if the absentee were in fact dead, shall cause the fact of the application to be advertised in a newspaper published in the county once a week for four successive weeks, giving notice that on a day stated, which must be two weeks after the last publication, evidence would be heard by the court concerning "the alleged absence of the supposed decedent, and the circumstances and duration thereof." After providing for a hearing in the orphans' court, the statute empowers that court, if satisfied by the proof that the legal presumption of death is made out, to so decree, and cause a notice to be inserted for two successive weeks in a newspaper published in the county, and also, when practicable, in a newspaper published at or near the the place beyond the state where, when last heard from, the supposed decedent had his residence. This notice requires the absentee, if alive, or any other person for him, to produce to the court, within twelve weeks from the date of the last insertion of the notice, satisfactory evidence of the continuance in life of the absentee. If, within the period of twelve weeks, evidence is not produced to the court that the absentee is alive, the statute makes it the duty of the court to order the register of wills to issue letters of administration to the party entitled thereto, and such letters, until revoked, and all acts done in pursuance thereof and in reliance thereupon, shall be as valid as if the supposed decedent were really dead. Power is further conferred upon the orphans' court to revoke the letters at any time on proof that the absentee is in fact alive, the effect of the revocation being to withdraw all the powers conferred by the grant of administration. But it is provided that—

"All receipts or disbursements of assets, and other acts previously done by him" (the administrator), "shall remain as valid as if the said letters were unrevoked, and the administrator shall settle an account of his administration down to the time of such revocation, and shall transfer all assets remaining in his hands to the person as whose administrator he had acted, or to his duly

authorized agent or attorney: Provided, Nothing in this act contained shall validate the title of any person to any money or property received as widow, next of kin, ot heir of such supposed decedent, but the same may be recovered from such person in all cases in which such recovery would be had if this act had not been passed."

It is further provided that before any distribution of the estate of such supposed decedent shall be made to the persons entitled to receive it, they shall give security, to be approved by the orphans' court, in such sum as the court shall direct, conditioned that if the absentee "shall, in fact, be at the time alive, they will, respectively, refund the amounts received by each, on demand, with interest thereon; but if the person or persons entitled to receive the same is or are unable to give the security aforesaid, then the money shall be put at interest on security approved by said court, which interest is to be paid annually to the person entitled to it, and the money to remain at interest until the security aforesaid is given, or the orphans' court, on application, shall order it to be paid to the person or persons entitled to it."

After affording remedies in favor of the absentee in case the issue of letters should be subsequently revoked, the statute provides that the costs attending the issue of letters or their revocation shall be paid out of the estate of the supposed decedent, and that the costs arising upon the application for letters which shall not be granted shall be paid by the applicant. Public Laws 1885, p. 155.

The plaintiff in error, Margaret Cunnius, now Margaret Smith, whom we shall hereafter refer to as Mrs. Smith, prior to and at the time of the passage of this act, was domiciled in the state of Pennsylvania. In virtue of her right of dower in certain real estate of her husband, which passed to him from his deceased mother's estate, she became entitled to the annual interest during her life on the sum of $569.61. This debt was assumed by John M. Cunnius, who acquired the real estate from which the right of dower arose, and was in turn assumed by the Reading school district, in consequence of its acquisition from John M. Cunnius of the property. The school district paid the interest as it accrued to Mrs. Smith, at her domicil in the city of Reading, up to the 1st of April, 1888. In that year she left her domicil in the city of Reading, and for nearly nine years-up to March, 1897-she had not been heard from. At that date her only son, who resided in Reading, alleging the absence of his mother for the period stated, and the fact that she had not been heard from, and the consequent presumption

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