boundaries; that the dip of said lodes is toward the Kempton claim occupied by the defendants, and that if there be any mineral vein or lode in the Kempton claim it is not one that has its apex within the limits of that claim, but is a part of the lodes apexing within the "Old Jordan" and Mountain Gem claims. The relief prayed for was a decree quieting plaintiff's title and restraining the defendants from mining and removing any ores or minerals. To this

demurrer, stating, as one of the grounds thereof, that the plaintiff had an adequate remedy at law. This demurrer was overruled, and thereupon the defendants filed an answer and subsequently an amended answer, setting forth their title to the Kempton mining claim, and also to a claim known as the Ashland mining claim, and alleging that there are lodes whose apices are within these claims; that on their dip they enter beneath the surface of the plaintiff's claims, and that it is upon them that defendants have been mining; that the Kempton claim was patented to their grantors and predecessors in interest on February 23, 1875. They further deny that the "Old Jordan" claim was located on December 17, 1863, or patented July 14, 1877; deny that the Mountain Gem claim was located on August 20, 1864, or that a patent had been issued on said alleged location. They further aver that if there be any lode

Statement by Mr. Justice Brewer: [2] *This suit was commenced in the circuit court of the United States for the district of Utah by the United States Mining Com-amended complaint the defendants filed a pany, claiming to be the owner of certain mining property, and praying that its title thereto be quieted and the defendant restrained from taking any ore therefrom. Jurisdiction was founded on diverse citizenship. In an amended complaint, filed June 2, 1902, it was alleged that the plaintiff is the owner and in possession of four mining claims known as the Jordan Extension, the Northern Light, the Grizzly, and the Fairview lode mining claims, the boundaries of each being given; that these mining claims are adjacent to each other and to certain other mining claims, all owned and worked by the plaintiff as one property for mining purposes; that beneath the surface of the claims above mentioned is a vein or lode of great value; that the defendants wrongfully claim to own said vein or lode and the ores and minerals therein contained; that they have, by means of secret underground works, obtained access thereto and have mined, extracted, and removed large quantities of valuable ores therefrom; that they threaten to continue such wrongful and unlawful invasion of the premises, and to continue to mine, extract, and remove ores and minerals; that the defendants are in possession of a mining claim adjacent to the four mining claims of plaintiff, known as the Kempton mining claim, United States lot 255, which was located in the year 1871, and, on information and belief, that the defendants pretend that the mineral deposits and ores under and beneath the surface of the four mining claims above mentioned are in and part of a mineral vein and lode belonging to and having its apex in said Kempton mining claim and on the dip of said alleged vein, which pretense the plaintiff charges to be contrary to the truth. The plaintiff further alleges that it is the owner and in possession of two certain mining claims, one named the Jordan Silver Mining Company's mine, but usually known as the "Old Jordan," located December 17, 1863; the other the Mountain Gem Lode and Mining claim located August 20, 1864, the boundaries of each of [3] which are given; *that in these two claims there is a lode, bearing silver and other metals, whose apex is within the surface

or vein in either the "Old Jordan" or the
Mountain Gem claims, that such lode or
vein is entirely distinct from those which
have their apices in the Kempton and Ash-
land claims. On the hearing the court de-
nied the application of the defendants to
set the case for trial as a law case before
a jury. At the same time it entered a de-
cree dismissing the plaintiff's bill. From
this decree the plaintiff appealed to the
circuit court of appeals (67 C. C. A. 587,
134 Fed. 769), which reversed the decree
of dismissal, and remanded the case with
instructions to enter a decree for the plain-
tiff in conformity with the prayer of the
bill. Thereupon, *on application of the de-[4]
fendants, the case was brought to this court

on certiorari.

Mr. Charles J. Hughes, Jr., argued the cause, and, with Messrs. Ogden Hiles and Charles C. Dey, filed a brief for petitioners:

In every case where there are conflicting and overlapping mining lode claims, and the owner of one of them applies for a patent to his claim, and the owners of the other conflicting and overlapping claims fail, after due notice, to adverse, as the phrase is, and the applicant obtains a patent for his claim,

from that fact there emerges an indisputa- | and specifically the Jordan and Mountain ble presumption that such claim is superior Gem claims. in right, is prior in valid location to the nonadversing conflicting claim, and that such claim has no right, either intralimital or extralateral, against such patented claim.

2 Lindley, Mines, 2d ed. § 783; Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683, 39 L. ed. 859, 15 Sup. Ct. Rep. 733; Bunker Hill & S. Min. & Concentrating Co. v. Empire State-Idaho Min. & Developing Co. 48 C. C. A. 665, 109 Fed. 538, 52 C. C. A. 222, 114 Fed. 420, 421; Creede & C. C. Min. & Mill. Co. v. Uinta Tunnel Min. & Transp. Co. 196 U. S. 337-355, 49 L. ed. 501-511, 25 Sup. Ct. Rep. 266; Jefferson Min. Co. v. Anchoria-Leland Min. & Mill. Co. 32 Colo. 182, 64 L.R.A. 925, 75 Pac. 1070.

court, that, when a patent is issued to a lode claim, there arises an indisputable presumption that no conflict claims exist.

Gwillim v. Donnellan, 115 U. S. 45, 29 L. ed. 348, 5 Sup. Ct. Rep. 1110; Lavagnino v. Uhlig, 198 U. S. 443, 455, 49 L. ed. 1119, 25 Sup. Ct. Rep. 716; Wight v. Dubois, 21 Fed. 696; Golden Reward Min. Co. v. Buxton Min. Co. 79 Fed. 874; Lee v. Stahl, 9 Colo. 211, 11 Pac. 77; Seymour v. Fisher, 16 Colo. 193, 27 Pac. 240; Jefferson Min. Co. v. Anchoria-Leland Min. & Mill. Co. 32 That the issuance of a patent to a mining Colo. 181, 64 L.R.A. 925, 75 Pac. 1070; lode claim conclusively establishes the priorCreede &C. C. Min. & Mill. Co. v. Uinta ity of the location of that claim over an Tunnel Min. & Transp. Co. 196 U. S. 337, overlapping or conflicting claim is a corol355, 49 L. ed. 501, 511, 25 Sup. Ct. Rep. 266. | lary of the proposition affirmed by this The doctrine of relation is not applicable. Eureka Consol. Min. Co. v. Richmond Consol. Min. Co. 4 Sawy. 302, 9 Morrison, Min. Rep. 592, Fed. Cas. No. 4,548; Morrison, Mining Rights, 12th ed. 128; Evans v. Durango Land & Coal Co. 25 C. C. A. 532, 49 U. S. App. 320, 80 Fed. 433; Gibson v. Chouteau, 13 Wall. 100, 20 L. ed. 536; Newhall v. Sanger, 92 U. S. 766, 23 L. ed. 770; Redfield v. Parks, 132 U. S. 249, 33 L. ed. 331, 10 Sup. Ct. Rep. 83; Hussman v. Durham, 165 U. S. 148, 41 L. ed. 665, 17 Sup. Ct. Rep. 253; Small v. Westchester F. Ins. Co. 51 Fed. 795; Hawkins v. Harlan, 68 Cal. 238, 9 Pac. 108; Grant v. Iowa R. Land Co. 54 Iowa, 677, 7 N. W. 113; Ellis v. Pomeroy Improv. Co. 1 Wash. 576, 21 Pac. 27.

A location certificate is in itself only prima facie evidence of its own existence and filing.

Uinta Tunnel Min. & Transp. Co. v. Creede & C. C. Min. & Mill. Co. 57 C. C. A. 200, 119 Fed. 169; Sullivan v. Hense, 2 Colo. 429; Consolidated Republican Mountain Min. Co. v. Lebanon Min. Co. 9 Colo. 344, 12 Pac. 212; Becker v. Pugh, 9 Colo. 592, 13 | Pac. 906; Meydenbauer v. Stevens, 78 Fed. 787; 2 Jones, Ev. § 521; Campbell v. Rankin, 99 U. S. 261, 25 L. ed. 435; Jantzon v. Arizona Copper Co. 3 Ariz. 6, 20 Pac. 93; Pollard v. Shively, 5 Colo. 309; 1 Lindley, Mines, 2d ed. §§ 391, 392; Roberts v. Wilson, 1 Utah, 292; Harvey v. Ryan, 42 Cal. 626; Moxon v. Wilkinson, 2 Mont. 421; Golden Fleece Gold & S. Min. Co. v. Cable Consol. Gold & S. Min. Co. 12 Nev. 312; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Flick v. Gold Hill & L. M. Min. Co. 8 Mont. 298, 20 Pac. 807.

The senior Kempton and Ashland patents conclusively prove and determine the priority of discovery and location of these claims over all overlapping and conflicting claims,

Lavagnino v. Uhlig, 198 U. S. 443, 445, 49 L. ed. 1119, 1121, 25 Sup. Ct. Rep. 716.

The notice required of application for patent is certainly sufficient process to be the foundation for a conciusive adjudication. Wight v. Dubois, 21 Fed. 696.

Therefore, when the patent is issued, every party who may once have had an adverse or conflicting claim is concluded thereby.

Creede & C. C. Min. & Mill. Co. v. Uinta Tunnel Min. & Transp. Co. supra.

Whether the patent is issued under § 2325 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 1429), without adverse claim filed, or under § 2326, after adverse claim has been filed, and the matter adjudicated in court, the effect after adjudication is the

same.

Jefferson Min. Co. Anchoria-Leland Min. & Mill. Co. supra.

The surface ground and the lode are not independent grants. It is not the purpose of the act to grant surface ground without a discovered lode. The lode is the principal thing and the surface ground is incident thereto. In conveying a segment of the earth located under the provisions of the act, it is the intention of Congress to convey a mine contained within that segment, as the substance of the grant.

Wolfley v. Lebanon Min. Co. 4 Colo. 116, 13 Morrison, Min. Rep. 282; Morrison, Mining Rights, 12th ed. 144.

A patent is conclusive evidence as to the limits of a location, and it cannot be assailed by showing that its actual boundaries were different from those described in the patent.

2 Lindley, Mines, 2d ed. p. 1389, § 778; Waterloo Min. Co. v. Doe, 56 Fed. 685. The conclusiveness of the Kempton and

207

Ashland patents of February 23d, and Sep-
tember 27th, 1875, against these conflict
claims, which are now asserted by the owner
of the Jordan and Mountain Gem claims, is
further confirmed by the exceptions in the
Jordan and Gem patents before set forth. |
These exceptions are of the part of the lode
within the conflict area, and of the extra-
lateral rights incident thereto. They are
good exceptions, because thereby it is cer-
tainly made known what is conveyed by the
patents, and what not. Each of them ful-
fils all the conditions and rules by which a
good exception is verified and proved, be-
cause: (a) It is in apt words. (b) The
thing excepted is a part of the thing pre-
viously granted. (c) It is of a part only
of the things previously granted; and not
of any other thing. (d) It is of a thing
which is separable from the thing granted;
and not an inseparable interest or incident.
(e) It is such a thing as that the party
who accepts may retain it. (f) It is of a
particular thing out of a general one; not
a particular thing out of a particular one.
(g) The thing excepted is certainly de-
scribed and set down.

4 Cruise's Dig. 271.
Party relying on deed containing excep-
tion must plead himself without the excep-
tion.

Maxwell Land Grant Co. v. Dawson, 151
U. S. 586-604, 38 L. ed. 279-285, 14 Sup.
Ct. Rep. 458.

The circuit court of appeals was bound to accept the determination of the circuit court, under the circumstances in this case.

Snider v. Dobson, 21 C. C. A. 76, 40 U. S. App. 111, 74 Fed. 758; Stuart v. Hayden, 18 C. C. A. 618, 36 U. S. App. 462, 72 Fed. 408; Warren v. Burt, 7 C. C. A. 105, 12 U. S. App. 591, 58 Fed. 106; Paxson v. Brown, 10 C. C. A. 135, 27 U. S. App. 49, 61 Fed. 883; McKinley v. Williams, 20 C. C. A. 312, 36 U. S. App. 749, 74 Fed. 102; Thallmann v. Thomas, 49 C. C. A. 317, 111 Fed. 283; Tilghman v. Proctor, 125 U. S. 136, 31 L. ed. 664, 8 Sup. Ct. Rep. 894; Davis v. Schwartz, 155 U. S. 631, 39 L. ed. 289, 15 Sup. Ct. Rep. 237; Alviso v. United States, 8 Wall. 337, 19 L. ed. 305; Harrell v. Beall, 17 Wall. 590, 21 L. ed. 692; Levis v. Kengla, 169 U. S. 234, 42 L. ed. 728, 18 Sup. Ct. Rep. 309; Lytle v. Arkansas, 22 How. 193, 16 L. ed. 306; Parker v. Phetteplace, 1 Wall. 684, 17 L. ed. 675; Tobey v. Leonard, 2 Wall. 430, 17 L. ed. 842; Albright v. Emery, 109 U. S. 651, 27 L. ed. 1064, 3 Sup. Ct. Rep. 426; Hewitt v. Campbell, 109 U. S. 103, 27 L. ed. 871, 3 Sup. Ct. Rep. 68; United States Trust Co. v. Mercantile Trust Co. 31 C. C. A. 427, 59 U. S. App. 330, 88 Fed. 152; Metropolitan Nat. Bank v. Rogers, 3 C. C. A. 666, 3 U. S. App. 406, 53 Fed. 778; Moline Plow Co. v. Carson, 18 C. C. A. 606, 36 U. S. App. 449, 72 Fed. 388; Colorado Fuel & Iron Co. v. Pryor, 25 Colo. 551, 57 Pac. 51; Hazeltine v. Brockway, 26 Colo. 297, 57 Pac. 1077; Springer v. Chicago Real Estate Loan & T. Co. 202 Ill. 27, 66 N. E. 850; Hardy v. Dyas, 203 Ill. 215, 67 N. E. 852; Boddie v. Brewer & H. Brewing Co. 204 Ill. 353, 68 N. E. 394; Bouton v. Cameron, 205 Ill. 69, 68 N. E. 800; Shea v. Teufert, 207 Ill. 225, 69 N. E. 872; Lurie v. Sabath, 208 Ill. 407, 70 N. E. 323; Polarek v. Gordon, 102 Ill. App. 358; Kochman v. O'Neill, 102 Ill. App. 475.

The exceptions in the Jordan and Gem patents must effectually exclude the pretensions of the respondent, there being no exception in the Kempton and Ashland patents, in favor of either the Jordan or Gem alleged senior locations. Such seniority of location, if it ever existed at all, must be deemed to have been waived or relinquished. Argentine Min. Co. v. Terrible Min. Co. 122 U. S. 478–486, 30 L. ed. 1140–1142, 7| Sup. Ct. Rep. 1356; 2 Lindley, Mines, 2d ed. § 782. A specific finding of fact is not required mineral-bearing lode. It is not a lode in to be made in a decree dismissing a bill. | While in many cases specific findings of fact are desirable as the bases of provisions in the decree, where the judgment is for the complainant, the general practice is to enter a decree of dismissal in the form adopted in this case, where, upon the merits, the finding is for the defendant.

2 Beach, Modern Law of Eq. Pr. § 806; Whiting v. Bank of United States, 13 Pet. | 6-14, 10 L. ed. 33-37; Craig v. Missouri, 4 Pet. 410-426, 7 L, ed. 903-908; Baker v. Cummings, 181 U. S. 117-125, 45 L. ed. 776-780, 21 Sup. Ct. Rep. 578; National Foundry & Pipe Works v. Oconto Water Supply Co. 183 U. S. 216, 234, 46 L. ed. 157, 169, 22 Sup. Ct. Rep. 111.

The limestone belt does not constitute a

fact, within the provisions of the United States statute, or within any reasonable construction which can be placed thereon. The ore bodies in conflict are not portions of the alleged broad lode, but are ore bodies which are parts of the Ashland fissure and Kempton bedded vein, having their apexes within the Ashland and Kempton claims.

Hyman v. Wheeler, 29 Fed. 347; Mt. Diablo Mill & Min. Co. v. Callison, 5 Sawy. 439, Fed. Cas. No. 9,886; Doe v. Waterloo Min. Co. 54 Fed. 935; Iron Silver Min. Co. v. Cheesman, 116 U. S. 529, 29 L. ed. 712, 6 Sup. Ct. Rep. 481; Cheesman v. Shreeve, 40 Fed. 787; Golden v. Murphy, 27 Nev. 379, 75 Pac. 625, 76 Pac. 29; North Noonday Min. Co. v. Orient Min. Co. 6 Sawy. 299; 1

Fed. 522; Wheeler v. Smith, 5 Wash. 704, 32 | the court will not hesitate, on a proper

showing, to protect the legal estate.
Stevens v. Williams, supra.

Pac. 784; Long v. Isaksen, 23 Land Dec. 357; Wheeler v. Smith, 23 Land Dec. 399; Grand Central Min. Co. v. Mammoth Min. Actions to quiet title, or to determine adCo. 29 Utah, 490, 83 Pac. 676; 11 American verse claims under § 3511, Utah Revised Encyclopedia, 560; Economical Geology, Statutes of 1898, may be of a legal or equiBingham Mining District, 1905, No. 38, Pro- table character, depending upon the pleadfessional Paper, pp. 242, 243; Le Conte, Ele-ings; but where there are both equitable ments of Geology, p. 257; Kemp, Ore Deposits of United States & Canada, pp. 44, 45; Emmons & Hayes, United States Geological Survey (1904), p. 238; Boutwell, Economic Geology of Bingham Mining District (1905), p. 251.

In order for a party in possession to maintain a bill of peace, for the purpose of quieting his title to land against a single adverse claimant ineffectually seeking to establish a legal title by repeated actions of ejectment, it is necessary for the bill to aver that complainant's title has been established at law; and where it appears from the bill that an action at law involving the same questions has been commenced, but has not been tried, it is a fatal defect.

Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U. S. 632-641, 47 L. ed. 626-632, 23 Sup. Ct. Rep. 434; 1 Dan. Ch. Pl. & Pr. Perkins, 3d Am. ed. 573; Pom. Eq. Jur. §§ 177, 248, 253; | Adams, Eq. 331; Bainbridge, Mines, 505; Irwin v. Davidson, 38 N. C. (3 Ired. Eq.) 311.

issues and issues of fact in the case, the court should first determine the equitable issue, and then submit the issues of fact to a jury upon proper instruction; and a failure to do so constitutes reversible error.

Park v. Wilkinson, 21 Utah, 285, 81 Am. St. Rep. 693, 60 Pac. 945.

The only ground of equity jurisdiction asserted by this bill is the right to an injunction; and that is no part of the original or concurrent equity jurisdiction of the court, but a part of its auxiliary jurisdiction merely.

1 Pom. Eq. Jur. § 177, p. 211.

Whenever, in a suit to quiet title to land, the legal title is disputed, and becomes an issue, the court will require that question to be tried by a jury, by appropriate pleadings and proceedings in that suit, as in a trial at law.

Curtis v. Sutter, 15 Cal. 260; Donahue v. Meister, 88 Cal. 124, 22 Am. St. Rep. 283, 25 Pac. 1096; Newman v. Duane, 89 Cal. 598, 27 Pac. 66.

This is nominally a suit in equity, but actually an action at common law, within the meaning of the 7th Amendment to the Constitution.

Parsons v. Bedford, 3 Pet. 433, 446, 447, 7 L. ed. 732, 736, 737; Fenn v. Holme, 21 How. 481, 16 L. ed. 198; Root v. Lake Shore & M. S. R. Co. 105 U. S. 207, 26 L. ed. 981. All other questions apart, the court be

In mining cases, where irreparable 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, and the legal title is in dispute, the modern practice is to require an action at law to be brought to try the legal title, and then to allow an ancillary action on the equity side of the court, in aid of the ac-low ought to have dismissed this bill sua tion at law, and for an injunction to preserve the property, pending the legal proceedings for the determination of the title. Earhardt v. Boaro, 113 U. S. 537, 538; 28 L. ed. 1116, 1117, 5 Sup. Ct. Rep. 565; Stevens v. Williams, 5 Morrison, Min. Rep. 453; Morrison, Mining Rights, 12th ed. 334,

sponte, according to the rule established by this court in numerous decisions.

Hipp v. Babin, 19 How. 271, 278, 15 L. ed. 633, 635; Parker v. Winnipiseogee Lake Cotton & Woollen Co. 2 Black, 545, 550, 17 L. ed. 333, 336; Lewis v. Cocks, 23 Wall. 466, 470, 23 L. ed. 70, 71; Killian v. Ebbinghaus, 110 U. S. 568, 573, 28 L. ed. 246, 248, 4 Sup. Ct. Rep. 232; Grand Chute v. Winegar, 15 Wall. 375, 21 L. ed. 175;

Allen v. Pullman's Palace Car Co. 139 U. S. 658,

662, 35 L. ed. 303, 305, 11 Sup. Ct. Rep.

682.

ing that he is the owner of property to A plaintiff who comes into court assertwhich others present claims, and asks to have his title quieted, must, as the very foundation of a decree in his behalf, prove that he does own it, and may succeed only upon the establishment of that title; and cannot do so upon the weakness of the defendant's title or the failure of the defend

207

ant to allege and affirmatively establish that | proceedings as will enable this to be accom-
he has a better right to the premises, title to
which is sought to be quieted, than the
plaintiff.