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to rule that in no circumstances may one, the provisions of this chapter, including before application for a patent of a placer such vein or lode, upon the payment of five claim, go upon the ground within its ex- dollars per acre for such vein or lode claim, terior boundaries for the purpose of locat- and twenty-five feet of surface on each side ing a lode, it went too far; yet, as general thereof. The remainder of the placer claim, language in an opinion must be taken in or any placer claim not embracing any vein connection with the facts in the particular or lode claim, shall be paid for at the rate case, the ruling here should be limited to of two dollars and fifty cents per acre, tothe facts disclosed by the record, and no pre-gether with all costs of proceedings; and judicial error was committed. For, under where a vein or lode, such as is described in the authorities, a prospector may not enter section twenty three hundred and twenty, upon a prior placer location for the purpose is known to exist within the boundaries of of prospecting for, or locating, unknown a placer claim, an application for a patent lodes or veins; and to uphold the judgment we must presume that the evidence before the trial court showed that the veins or lodes upon which the defendant's grantors based their locations were unknown when they entered upon the Searl placer for the purpose of prospecting."

The law under which these locations were all made is to be found in chap. 6 of Title 32, Rev. Stat. Section 2319 (U. S. Comp. Stat. 1901, p. 1424) of that chapter reads: "All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase."

Section 2320 (U. S. Comp. Stat. 1901, p. 1424) provides for the location of mining claims upon veins or lodes.

for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof."

It will be seen that § 2322 gives to the owner of a valid lode location the exclusive right of possession and enjoyment of all the surface included within the lines of the location. That exclusive right of possession forbids any trespass. No one, without his consent, or, at least, his acquiescence, can rightfully enter upon the premises or disturb its surface by sinking shafts or otherwise. It was the judgment of Congress that,

By 2322 (U. S. Comp. Stat. 1901, p. in order to secure the fullest working of 1425) it is provided that

"The locators of all mining locations

on any mineral vein, lode, or ledge, situated on the public domain, shall have 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."

the mine, and the complete development of the mineral property, the owner thereof should have the undisturbed possession of not less than a specified amount of surface. That exclusive right of possession is as much the property of the locator as the vein or lode by him discovered and located. In Belk v. Meagher, 104 U. S. 279, 283, 26 L. ed. 735, 737, it was said by Chief Justice Waite that "a mining claim perfected under the law is property in the highest sense

And by 2329 (U. S. Comp. Stat. 1901, of that term;" and in a later case (Gwillim p. 1432):

"Claims usually called 'placers,' including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims."

v. Donnellan, 115 U. S. 45, 49, 29 L. ed. 348, 349, 5 Sup. Ct. Rep. 1110, 1112) he adds:

"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

Section 2333 (U. S. Comp. Stat. 1901, p. and exclusive possession of the lands locat1433) is as follows:

tion operates as bar to the second."

ed. If, when one enters on land to make a "Where the same person, association, or location, there is* another location in full corporation is in possession of a placer force, which entitles its owner to the exclaim, and also a vein or lode included with-clusive possession of the land, the first locain the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to

In St. Louis Min. & Mill. Co. v. Montana Min. Co. 171 U. S. 650, 655, 43 L. ed. 320, 322, 19 Sup. Ct. Rep. 61, 63, the present Chief Justice declared that "where there is

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a valid location of a mining claim, the area | valuable for placer mining, and this last secbecomes segregated from the public domain, tion is the provision which Congress has and the property of the locator." Nor is made for such a case. That a lode or vein, this "exclusive right of possession and en- descending as it often does to great depths, joyment" limited to the surface, nor even may contain more mineral than can be obto the single vein whose discovery antedates tained from the loose deposits which are seand is the basis of the location. It extends cured by placer mining within the same lim(so reads the section) to "all veins, lodes, its of surface area, naturally gives to the and ledges throughout their entire depth, surface area a higher value in the one case the top or apex of which lies inside of such than the other, and that Congress appreciat surface lines extended downward vertical-ed this difference is shown by the different ly." In other words, the entire body of prices charged for the surface under the two ground, together with all veins and lodes conditions. Often the existence of a lode or whose apexes are within that body of ground vein is not disclosed by the placer deposits. becomes subject to an exclusive right of Hence ground may be known to be valuable possession and enjoyment by the locator. and be located for placer mining, and yet And this exclusive right of possession and no one be aware that underneath the surenjoyment continues during the entire life face there is a lode or vein of greater value. of the location, or, in the words of Chief A placer location is not a location of lodes Justice Waite, just quoted, while there is or veins underneath the surface, but is sim“a valid and subsisting location of mineral ply a claim of a tract or parcel of ground lands, made and kept up in accordance with for the sake of loose deposits of mineral upthe provisions of the statutes of the United on or near the surface. A lode or vein may States." There is no provision for, no sug-be known to exist at the time of the placer gestion of, a prior termination thereof. location or not known until long after the

By § 2329, placer claims are subject to en- patent therefor has been issued. There betry and patent "under like circumstances ing no necessary connection between the and conditions, and upon similar proceed-placer and the vein, Congress by the secings, as are provided for vein or lode tion has provided that in an application for claims." The purpose of this section is ap-a placer patent the applicant shall inparently to place the location of placer clude any vein or lode of which he has posclaims on an equality both in procedure and session, and that if he does not make such rights with lode claims. If there were no inclusion the omission is to be taken as a other legislation in respect to placer claims conclusive declaration that he has no right the case before us would present little of possession of such vein or lode. If, howdoubt; but following this are certain pro- ever, no vein or lode within the placer claim visions, those having special bearing on the is known to exist at the time the patent is case before us being found in § 2333. Par-issued, then the patentee takes title to any ties obtaining a patent for a lode claim must which may be subsequently discovered. pay 5 an acre for the surface ground, while While by the statute the right of exclufor a placer claim the government only sive possession and enjoyment is given to a charges $2.50 an acre. By § 2333 it is pro-locator, whether his location be of a lode vided that one who is in possession of a placer claim and also of a lode claim *included within the boundaries of the placer claim shall, on making application for a patent, disclose the fact of the lode claim within the boundaries of the placer, and upon the issue of the patent payment shall be made accordingly; that if the application for the placer claim does not include an application for a vein or lode claim known to exist within the boundaries of the placer, it shall be construed as a conclusive declaration that the placer claimant has no right of possession of that vein or lode; and further, that where the existence of a vein or lode within the boundaries of a placer claim is not known, the patent for the placer claim shall convey all valuable mineral and other deposits within its boundaries.

A mineral lode or vein may have its apex within the area of a tract whose surface is

claim or a placer claim, yet the effect of a patent is different. The patent of a lode claim confirms the original location, with the right of exclusive possession, and conveys title to the tract covered by the location, together with all veins, lodes, and ledges which have their apexes therein, whereas the patent to the placer claim, while confirming the original location and conveying title to the placer ground, does not necessarily convey the title to all veins, lodes, and ledges within its area. It makes no difference whether a vein or lode within the boundaries of a lode claim is known or unknown, for the locator is entitled to the exclusive possession and enjoyment of all the veins and lodes, and the patent confirms his title to them. But a patent of a placer claim will not convey the title to a known vein or lode within its area unless that vein or lode is specifically applied and paid for.

It is contended that because a vein or

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The difficulty with the case presented by the plaintiff in error is, that under the findings of fact, we must take it that the entries of the locators of these several lode claims upon the placer grounds were trespasses, and as a general rule no one can initiate a right by means of a trespass.

Atherton v. Fowler, 96 U. S. 513, 24 L ed. 732; Trenouth v. San Francisco, 100 U. S. 251, 25 L. ed. 626; Haws v.* Victoria Copper Min. Co. 160 U. S. 303, 40 L. ed. 436, 16 Sup. Ct. Rep. 282. See also Cosmos Exploration Co. v. Gray Eagle Co. 61 L. R. A. 230, 50 C. C. A. 79, 112 Fed. 4, in which the court said (L. R. A. p. 242, C. C. A. p. 93, Fed. p. 17):

lode may have its apex within the limits of a placer claim a stranger has a right to go upon the claim, and, by sinking shafts or otherwise, explore for any such lode or vein, and on finding one obtain a title thereto. That, with the consent of the owner of the placer claim, he may enter and make such exploration, and if successful, obtain title to the vein or lode, cannot be questioned. But can he do so against the will of the placer locator? If one may do it, others may, and so the whole surface of the placer be occupied by strangers seeking to discover veins beneath the surface. Of what value then would the placer be to the locator? Placer workings are surface workings, and if the placer locator cannot maintain pos- "No right can be initiated on government session of the surface he cannot continue his land which is in the actual possession of anworkings. And if the surface is open to other by a forcible, fraudulent, or clandesthe entry of whoever seeks to explore for tine entry thereon. Cowell v. Lammers, veins, his possession can be entirely de- 10 Sawy. 246, 21 Fed. 200, 202; Nevada stroyed. In this connection it may be well | Sierra Oil Co. v. Home Oil Co. 98 Fed. 674, to notice the last sentence in § 2322. That 680; Hosmer v. Wallace, 97 U. S. 575, 579, section, from which we have just quoted, is 24 L. ed. 1130, 1132; Trenouth v. San Fran the one which gives a locator the right to cisco, 100 U. S. 251, 25 L. ed. 626; Mower v. pursue a vein on its dip outside the vertical Fletcher, 116 U. S. 380, 385, 386, 29 L. ed. side lines of his location. The sentence, 593, 595, 6 Sup. Ct. Rep. 409; Haws v. Viowhich is a limitation on such right, reads:toria Copper Min. Co. 160 U. S. 303, 317, 40 "And nothing in this section shall authorize L. ed. 436, 440, 16 Sup. Ct. Rep. 282; the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another."

It would seem strange that one owning a veir, and having a right in pursuing it to enter beneath the surface of another's location, should be expressly forbidden to enter upon that surface, if, at the same time, one owning no vein, and having no rights beneath the surface, is at liberty to enter upon that surface, and prospect for veins as yet undiscovered.

We agree with the supreme court of Colorado as to the law when it says that "one may not go upon a prior valid placer location to prospect for unknown lodes, and get title to lode claims thereafter discovered and located in this manner and within the placer boundaries, unless the placer owner has abandoned his claim, waives the trespass, or, by his conduct, is estopped to complain of it." Perhaps if the placer owner, with knowledge of what the prospectors are doing, takes no steps to restrain their work, and certainly if he acquiesces in their action, he cannot, after they have discovered a vein or lode, assert right to it, for, generally, a vein belongs to him who has discovered it, and a locator permitting others to search within the limits of his placer ought not thereafter to appropriate that which they have discovered by such scarch.

Nickals v. Winn, 17 Nev. 188, 193, 30 Pac. 435; McBrown v. Morris, 59 Cal. 64, 72; Goodwin v. McCabe, 75 Cal. 584, 588, 17 Pac. 705; Rourke v. McNally, 98 Cal. 291, 35 Pac. 62."

If a placer locator is, as we have shown, entitled to the exclusive possession of the surface, an entry thereon against his will, for the purpose of prospecting by sinking shafts or otherwise, is undoubtedly a trespass, and such a trespass cannot be relied upon to sustain a claim of a right to veins and lodes. It will not do to say that the right thus claimed is only a right to something which belongs to the United States, and which will never belong to the placer locator, unless specifically applied and paid for by him, and therefore that he has no cause of complaint; for if the claim of the lode locator be sustained it carries, under §§ 2320 and 2333, at least 25 feet of the surface on each side of the middle of the vein. Further, if there be no prospecting, no vein or lode discovered until after patent, then the title to all veins and lodes within the area of the placer passes to the placer patentce, and any subsequent discovery would enure to his benefit.

Again, it is contended that the claims which the defendant sought to patent were lode claims; that the only title set up in the complaint in the adverse suit was a placer title, and that a placer claimant has no standing to maintain an adverse suit against lode applications. In support of

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this is cited 2 Lindley on Mines, § 721, in | ditions of the law have been complied with which the author says: in good faith."

In 4 Land Dec. 316, Mr. Justice Lamar, then Secretary of the Interior, said in respect to this question:

"Does the judgment of a court as to which of two litigants has the better title to a piece of land bind the commissioner to say, without judgment, or contrary to his judgment, that the successful litigant has complete title and is entitled to patent under the law? The usual result following a favorable judgment in a court under § 2326 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 1430) is, I doubt not, the issue of patent in due time; but in such case the final passing of title is not on the judgment of the court, independent of that of the Commissioner, but is on the judg ment of the latter pursuant to that of the former, and on certain evidence supplementai to that furnished by the judgment roll.

"The judgment of the court is, in the language of the law, 'to determine the question of the right of possession.' It does not go beyond that. When it has determined which of the parties litigant is entitled to possession, its office is ended, but title to patent is not yet established.

"Where an application for a patent to a lode within the limits of a placer is made by a lode claimant, if the placer claimant asserts any right to the lode, he is necessarily called upon to adverse. Where his claim, however, is placer, pure and simple, under which claim he cannot lawfully assert a right to the lode, he has nothing upon which to base an adverse claim, unless the lode is entirely without the placer, and the controversy is confined to a conflicting surface, or the lode claimant seeks to acquire more surface than the law permits." We do not think the author's language is to be taken as broadly as counsel contend. Under the statutes a lode claim carries with it the right to a certain number of acres, and where one is in peaceable possession of a valid placer claim, if a stranger forcibly enters upon that claim, discovers and locates a lode claim within its boundaries, and then applies for a patent, surely the placer claimant has a right to be heard in defense of his title to the ground of which he has been thus forcibly dispossessed. If the application for a patent of the lode claim is not adversed it will pass to patent, and it may well be doubted whether the "The party thus placed in possession may placer claimant could, after the issue of a 'file a certified copy of the judgment roll patent under such circumstances, maintain with the register and receiver.' But this an equitable suit to have the patentee de- is not all. He may file 'the certificate of clared the holder of the legal title to the the surveyor general that the requisite ground for his benefit. If the placer amount of labor has been performed or imclaimant can be thus deprived of his posses-provements made thereon.' Why file this, sion and title to a part of his ground, he or anything further, if the judgment roll may be in like manner dispossessed of all settles all questions as to title and right to by virtue of many forcible trespasses and patent? Clearly, because the law vests in lode discoveries. the Commissioner the authority and makes it his duty to see that the requirements of law relative to entries and granting of patents thereunder shall have been complied with before the issue of patent. His judg ment should, therefore, be satisfied before he is called upon to take final action in any case. In this case, the judgment of the court ended the contest between the parties, and determined the right of possession. The judgment roll proves the right of posmake the proof required by law to entitle session only. The applicant must still

The amount of land embraced in this placer location was about 100 acres, while the land claimed under the several lode locations was a little over 35 acres. Can it be that the placer claimant had no right to be heard in court respecting the claim of the lode claimants to so large a portion of the placer ground?

We must not be understood to hold that, because of the judgment in this adverse suit in favor of the placer claimants, their right to a patent for the land is settled beyond the reach of inquiry by the government, or that the judgment necessarily gives to them the lodes in controversy. In 2 Lindley on Mines, § 765, the author thus states the law:

"Notwithstanding the judgment of the court on the question of the right of possession, it still remains for the Land Department to pass upon the sufficiency of the proofs, to ascertain the character of the land, and determine whether or no the con

him to patent. Branagan v. Dulaney, 2 Land Dec. 744. The sufficiency of that proof is a matter for the determination of the Land Department."

This opinion was cited as an authority by this court in Perego v. Dodge, 163 U. S. 160, 168, 41 L. ed. 113, 118, 16 Sup. Ct. Rep. 971. See also Aurora Lode v. Bulger Hill and Nugget Gulch I'locer, 23 Land Dec. 95, 103. The Land Office may yet decide against the validity of the lode locations, and deny all claims of the locators thereto. So, also, it

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may decide against the placer location, and set it aside; and in that event all rights resting upon such location will fall with it.

companies validity of Texas Johnson grass statute.

The imposition upon railway companies alone, by Tex. Stat. 1901, chap. 117, of the penalty therein given to contiguous landowners for allowing Johnson grass or Russian thistle to mature and go to seed, does not deny such railway companies the equal protection of the laws.

[No. 185.]

1904.

County in the state of Texas to review a judgment enforcing against a railway company the penalty given to contiguous landowners by the Texas Johnson grass statute, for permitting Johnson grass to mature and go to seed upon its right of way. Affirmed.

Finally, we observe that the existence of placer rights and lode rights within the same area seems to have been contemplated by Congress, and yet full provision for the harmonious enforcement of both rights is not to be found in the statutes. We do not wonder at the comment made by Lindley (1 Lindley, 2d. ed. § 167) that "the townsite laws, as they now exist, consist simply of a chronological arrangement of past legislation, an aggregation of fragments, a sort Submitted March 17, 1904. Decided May 2, of 'crazy quilt,' in the sense that they lack harmonious blending. This may be said truthfully of the general body of the mining IN ERROR to the County Court of Bell laws." Many regulations of the Land Department and decisions of courts find their warrant in an effort to so adjust various statutory provisions as to carry out what was believed to be the intent of Congress and at the same time secure justice to miners and those engaged in exploring for mines. If we assume that Congress, recognizing the co-existence of lode and placer rights within the same area, meant that a lode or vein might be secured by a party other than the owner of the placer location within which it is discovered,-providing his discovery was made without forcible trespass and dispossession,-it may be that a court of equity is competent to provide by its decree that the discoverer of the lode, within the placer limits, shall be secured in the temporary possession of so much of the ground as will enable him to successfully work his lode, protecting, at the same time, the rights of the placer locator. But such equitable adjustment of coexisting rights cannot be secured in a simple adverse action, and it would be, therefore, beyond the limits of proper inquiry in this case to determine the rights which may exist, if, in the end, the placer location be sustained and a discovery of the lodes without forcible trespass and dispossession established.

But for the present, for the reasons above given, we think the judgment of the Supreme Court of Colorado was right, and it is affirmed.

The facts are stated in the opinion.
Messrs. James Hagerman, T. S. Miller,
and J. M. Bryson for plaintiff in error.
No counsel for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

This is an action to recover a penalty of $25, brought by the owner of a farm contiguous to the railroad of the plaintiff in error, on the ground that the latter has allowed Johnson grass to mature and go to seed upon its road. The penalty is given to contiguous owners by a Texas statute of 1901, chap. 117, directed solely against railroad companies for permitting such grass or Russian thistle to go to seed upon their right of way, subject, however, to the condition that the plaintiff has not done the same thing. The case is brought here on the ground that the statute is contrary to the 14th Amendment of the Constitution of the United States.

It is admitted that Johnson grass is a menace to crops, that it is propagated only by seed, and that a general regulation of it for the protection of farming would be valid. It is admitted also that legislation may be

The CHIEF JUSTICE and Mr. Justice directed against a class when any fair White dissent.

ground for the discrimination exists. But it is said that this particular subjection of railroad companies to a liability not imposed on other owners of land on which Johnson grass may grow is so arbitrary as to amount to a denial of the equal protection of the laws. There is no dispute about general principles. The question is whether this case lies on one side or the other of a line which has to be worked out

Constitutional law-equal protection of the between cases differing only in degree.

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