1920. SILVER KING COALITION MINES CO. v. CONKLING MINING CO. 150, 151 V. CONKLING MINING COMPANY. (No. PANY, Petitioner, Terminal Co. v. Kinney, supra, that that, SILVER KING COALITION MINES COMact was constitutional as to railroads because it related "to the peculiar hazards inherent in the use and operation of" them, and only applied to employees. operating trains. It is the contention of the Coal Company that it is a deduction PANY, Appt., from that decision and the others cited, SILVER KING COALITION MINES COMwhich may be said to be of the same effect, that there must be a difference observed between employees or V. coal CONKLING MINING COMPANY. mining companies as they are or are not engaged in the hazardous part of the business; and as that distinction is not observed in the Compensation Act, it infringes the Bill of Rights of the state, because it is made compulsory "upon coal mining companies with respect to their employees not engaged in the hazardous part of the business, and as to all other private business enterprises within the state, except railroad employees in train service, which are excluded, it is purely optional." or The argument in support of the contention is that the act requires all employees in the coal mining business to be paid compensation under the act, whether employed above ground under ground; that is, whether hazardously employed or otherwise; whereas, in the cited cases, [151] it is insisted, the court considered such employment as a material distinction, and that legislation which disregarded it would have unconstitutional discrimination. The contention only has strength by regarding employers' liability acts and workmen's compensation acts as practically identical in the public policy respectively involved in them, and in effect upon employer and employee. This, we think, is without foundation. They both provide for reparation of injuries. (See S. C. Reporter's ed. 151-163.) Mines (No. boundaries monuments • evidence. courses and distances A patent for a lode mining claim which, after reciting the deposit in the General Land Office of field and plat notes of a survey of such claim, which is desig689, describes its boundaries as platted as nated by the Surveyor General as lot No. ning thence by a described course 600 feet beginning at corner No. 1, a pine post, runto corner No. 2, a pine post, thence by a described course 1,500 feet to corner No. 3, thence by a described course 600 feet to corner No. 4, and thence by a described and which, in granting "said mining premcourse 1,500 feet to the place of beginning, premises to be the lot designated as lot No. ises hereinbefore described," assumes such 689, does not represent an adjudication by the Land Department that the claim is 1,500 feet long and 600 feet wide, without corners 3 and 4, which the field notes regard to the location of the posts and showed to exist, but which the patent does not mention, and evidence is admissible to show that there were monuments at corners 3 and 4, and, if established, the monuments of the patent, and exclude from the grant as fixed control the courses and distances land outside the monuments, though comprehended by the courses and distances. IV. d; Evidence, VI. q, in Digest Sup. Ct. [For other cases, see Mines, I. b; Boundaries, 1908.] [Nos. 158 and 187.] Argued January 19, 1921. Decided February 28, 1921. islature may exercise in its judgment of ON WRIT of Certiorari to the Unit what is necessary for the public welfare, Decree affirmed. ed States Circuit Court of Appeals for the Eighth Circuit to review a decree which reversed a decree of the District Court of the United States for the District of Utah in favor of defendant in a suit to quiet title. versed. Also an Re Note. On courses and distances as note to Newsom boundaries-see Pryor, 5 L. ed. U. S. 382. V. On location of a mining claim-see note to Dwinnell v. Dyer, 7 L.R.A. (N.S.) 763. 36 561 APPEAL from the United States Cir- patent for any land other than that em Court of Appeals for the Eighth Circuit to review the same decree. Dismissed.1 See same case below, 144 C. C. A. 607, 230 Fed. 553. The facts are stated in the opinion. Mr. Thomas Marioneaux argued the cause, and, with Messrs. A. C. Ellis, Jr., and W. H. Dickson, filed a brief for petitioner and appellant: braced in the official survey. Re Gilson Asphaltum Co. 33 Land Dec. 612; Waskey v. Hammer, 223 U. S. 85, 92, 56 L. ed. 359, 363, 32 Sup. Ct. Rep. 187. Lawful rules and regulations prethe government have, in a particular scribed by the several departments of sense, the force of law. United States v. Eaton, 144 U. S. 677764; Wilkins v. United States, 37 C. C. 688, 36 L. ed. 591-594, 12 Sup. Ct. Rep. A. 588, 96 Fed. 837; Grady v. United Files v. Davis, 118 Fed. 465; Caha v. States, 39 C. C. A. 42, 98 Fed. 238; United States, 152 U. S. 211, 218, 220, 38 L. ed. 415, 417, 418, 14 Sup. Ct. Rep. 513. The competency of the field notes, if any evidence be admissible to prove the position of corners numbers 3 and 4, seems, upon authority, to be beyond question. Where an intending vendor and purchaser of lands, either in person or by their respective agents, enter upon the premises to be conveyed, cause a survey thereof to be made, and monuments to mark the boundaries thereof are erected, they thereby fix definitely and with certainty the premises to be conveyed. If thereupon a conveyance is made of the premises which refers to the survey theretofore made, and also undertakes to describe the premises by courses and distances from one post or monument to another, and there is found to be a dis-rison v. Neff, 18 Neb. 133, 24 N. W. 555; Dailey v. Fountain, 35 Ala. 26; Morcrepancy between the courses and dis- Smith v. Forrest, 49 N. H. 230; Hunt tances and the monuments which were McKesson, 100 N. C. 1, 6 S. E. 746; v. Johnson, 19 N. Y. 279; Dugger v. Poor v. Boyce, 12 Tex. 440; Moore v. Stewart, - Tex. —, 7 S. W. 771; Stanus 262; Heffington v. White, 1 Bibb, 115; v. Smith, 8 Tex. Civ. App. 685, 30 S. W. Carland v. Rowland, 3 Bibb, 125; Steele v. Taylor, 3 A. K. Marsh, 225, 13 Am. Dec. 151; Rowland v. McCown, 20 Or. 538, 26 Pac. 853; Foss v. Johnstone, 158 Cal. 119, 110 Pac. 294; 3 Lindley, Mines, erected at the time of the survey, the description by courses and distances must give way,-the monuments erected by the parties must be given controlling effect in the interpretation of the con veyance. M'Iver v. Walker, 4 Wheat. 444-446, 4 L. ed. 611, 612; Bauer v. Gottman hausen, 65 Ill. 499; Sawyer v. Cox, 63 Ill. 139; O'Farrel v. Harney, 51 Cal. 125: Whiting v. Gardner, 80 Cal. 78, 22 Pac 71; Burke v. McCowan, 115 Cal. 481, 47 Pac. 367; Bean v. Bachelder, 78 Me. 184, 3 Atl. 279; Stetson v. Adams, 91 Me. 178. 39 Atl. 575; Woods v. West, 40 Neb. 307; 58 N. W. 938; Robinson v. Laurer, 27 Or. 315, 40 Pac. 1012; Griffin v. Bixby, 12 N. H. 454, 37 Am. Dec. 225; Hall v. Davis, 36 N. H. 571; Clary v. McGlynn, 46 Vt. 347. The reference in the patent to the official plat and survey makes the plat and the field notes of the survey a part of the description of the land granted as fully as if they were incorporated at length in the patents. Foss v. Johnstone, 158 Cal. 119, 110 Pac. 294; 3 Lindley, Mines, § 778, pp. 1894, 1895; Grand Cent. Min. Co. v. Mammoth Min. Co. 36 Utah, 364, 104 Pac. 573, Ann. Cas. 1912A, 254; Resur rection Gold Min. Co. v. Fortune Gold Min. Co. 64 C. C. A. 180, 129 Fed. 668. The Land Department had no power or authority or jurisdiction to issue a 1 See also post, p. —. 778, pp. 1894, 1895; Grand Cent. Min. Co. v. Mammoth Min. Co. 36 Utah, 364, 104 Pac. 573, Ann. Cas. 1912A, 254; Gold Min. Co. 64 C. C. A. 180, 129 Fed. Resurrection Gold Min. Co. v. Fortune 668. 3 Wigmore, Ev. § 1665. The repugnant elements of a description may be rejected. Parker v. Kane, 22 How. 1, 16 L. ed. ed. 887; Dodge v. Walley, 22 Cal. 224, 286; Deery v. Cray, 10 Wall. 263, 19 L. 83 Am. Dec. 61; 4 Am. & Eng. Enc. Law, title, "Boundaries," p. 779. Messrs. Edward B. Critchlow and William W. Ray argued the cause, and, with Messrs. William D. McHugh and William H. King, filed a brief for respondent and appellee: Where there is a call in a deed for a boundary by course and distance, not limited or controlled by a post or monument, parol evidence is not admissible to show that, as a matter of fact, the line was intended to end at a given monument or other object. -- Pollard v. Shively, 5 Colo. 315, 2 Mor. Min. Rep. 229; 3 Washb. Real Prop. 5th ed. p. 428; Drew v. Swift, 46 N. Y. 204; Negbauer v. Smith, 44 N. J. L. 672; Chinoweth v. Haskell, 3 Pet. 92, 7 L. ed. | 615; Boardman v. Reed, 6 Pet. 328, 8 L. ed. 415; Bruckner v. Lawrence, 1 Dougl. (Mich.) 19; Wells v. Jackson Iron Mfg. Co. 47 N H. 235, 90 Am. Dec. 575; Linscott v. Fernald, 5 Me. 503; Stark v. Adams, Tex. Civ. App. 183 S. W. 58; Missouri, K. & T. R. Co. v. Anderson, 36 Tex. Civ. App. 121, 81 S. W. 781; McFaddin v. Johnson, Tex. Civ. App., 180 S. W. 306; Vermont Marble Co. v. Eastman, 91 Vt. 425, 101 Atl. 159; Thompson v. Hill, 137 Ga. 308, 73 S. E. 640; Wooten v. Solomon, 139 Ga. 433, 77 S. E. 376; Crandall v. Mary, 67 Or. 18, 135 Pac. 188; Lee v. Glass, 31 Ky. L. Rep. 994, 104 S. W. 739; Hale v. Swift, 23 Ky. L. Rep. 497, 63 S. W. 288; Van Ness v. Boinay, 214 Mass. 340, 101 N. E. 979; Scaife v. Western N. C. Land Co. 33 C. C. A. 47, 61 U. S. App. 647, 90 Fed. 245; Yoder v. Fleming, 2 Yeates, 311; Nevin v. Disharoon, 6 Penn. 278, 66 Atl. 362; Brodbent v. Carper, Tex. Civ. App. -, 100 S. W. 185; Tucker v. Satterthwaite, 123 N. C. 511, 31 S. E. 724; New York L. Ins. & T. Co. v. Hoyt, 161 N. Y. 1, 55 N. E. 299. The rule that where there is a conflict between courses and distances and objects establishing boundary lines of another survey, the course and distance must yield, and the natural objects and boundaries of other tracts called for must be accepted, is not of universal application. Rowe v. Hill, 132 C. C. A. 30, 215 Fed. 522; Haley v. Martin, 85 Miss. 698, 38 So. 99. The rule that fixed monuments are to prevail over courses and distances, in applying the description of land, applies with less force to those which are artificial than to natural and permanent objects, and fails entirely when, from the designation of quantity or other elements of description, it is apparent that the courses and distances are correct. Baldwin v. Brown, 16 N. Y. 359; Higinbotham v. Stoddard, 72 N. Y. 99. The boundaries of the Conkling claim, as clearly set forth in the patent with out ambiguity, are conclusively established by the patent. No evidence is admissible to contradict or vary the patent. Re Mono Fraction Lode Min. Claim, 31 Land Dec. 121; Uinta Tunnel Min. & Transp. Co. v. Creede & C. C. Min. & Mill. Co. 57 C. C. A. 200, 119 Fed. 164, 22 Mor. Min. Rep. 445; King v. McAndrews, 50 C. C. A. 29, 111 Fed. 860; Doe v. Waterloo Min. Co. 54 Fed. 935; Carson City Gold & S. Min. Co. v. North Star Min. Co. 73 Fed. 597; Golden Reward Min. Co. v. Buxton Min. Co. 79 Fed. 868, 18 Mor. Min. Rep. 592; St. Louis Min. & Mill. Co. v. Montana Min. Co. 64 L.R.A. 207, 51 C. C. A. 530, 113 Fed. 900, 22 Mor. Min. Rep. 127; Waterloo Min. Co. v. Doe, 56 Fed. 685, 19 Mor. Min. Rep. 1; 3 Lindley, Mines, §§ 742, 777, 778; Miller v. Grunsky, 141 Cal. 441, 66 Pac. 858, 75 Pac. 48. The claim of petitioner that the word "corner" in the patent constitutes a reference to a monument is without foundation. Resurrection Gold Min. Co. v. Fortune Gold Min. Co. 64 C. C. A. 180, 129 Fed. 668. 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. Steel v. St. Louis Smelting & Ref. Co. 106 U. S. 447, 27 L. ed. 226, 1 Sup. Ct. Rep. 389; St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636, 26 L. ed. 875, 11 Mor. Min. Rep. 673; Quinby v. Conlan, 104 U. S. 420, 26 L. ed. 800; 3 Lindley, Mines, 3d ed. §§ 777, 778; Beard v. Federy, 3 Wall. 478, 18 L. ed. 88; Cragin v. Powell, 128 U. S. 691, 32 L. ed. 566, 9 Sup. Ct. Rep. 203; Maxwell Land-Grant Case, 121 U. S. 325, 30 L. ed. 949, 7 Sup. Ct. Rep. 1015; Stoneroad v. Stoneroad, 158 U. S. 240, 39 L. ed. 966, 15 Sup. Ct. Rep. 822; Knight v. United Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258. It will be noted that, in the working of the grant, the fact that the field notes, together with other evidence, had been deposited in the land office, was mentioned by way of inducement merely; and were they by this reference made admissible, it would follow by a parity of reasoning that all of the proceedings in the Department are subject to inspection and review. As for the lot number, it is merely a convenient official name which was given before the survey to the area applied for and ultimately patented. But if, by any process of rea- | Company, in order to establish its right soning, a special significance could be to a large body of ore found under the attached to it, the petitioner is still in southwesterly 135.5 feet of its patent no better position than before. Such as laid out by courses and distances, and significance could not possibly extend to obtain an account from the petitioner, beyond a reference to the lot as platted, which has mined the ore, making a claim and the petitioner did not see fit to put of right on its side. The district court the plat in evidence. It sought rather dismissed the bill. The decree was reto go back of both the patent and the versed by the circuit court of appeals. plat directly to the field notes in order 144 C. C. A. 607, 230 Fed. 553. Thereto find something that it might use as upon a writ of certiorari was granted a basis for raising a latent ambiguity, by this court. 250 U. S. 655, 63 L. ed. and then, by extrinsic evidence, to con- 1192, 40 Sup. Ct. Rep. 13. A short statetrol them both. ment will be enough to present the single issue that it is necessary to pass upon here. The only ground upon which the Conkling Mining Company stands is that the ore is within the lines of its patent, extended vertically downward. If the patent, properly construed, does not cover the land in question, the case is at an end. Beaty v. Robertson, 130 Ind. 589, 30 N. E. 706; Cornett v. Dixon, 11 Ky. L. Rep. 315, 11 S. W. 660; Jones v. Johnston, 18 How. 150, 15 L. ed. 320; Haley v. Martin, 85 Miss. 698, 38 So. 99. We are invited to violate a fundamental rule of evidence in order that different courts and different juries may have an opportunity of reviewing again and again, as often as the occasion may arise, one of the very matters presented to the Land Department for its decision. Knight v. United Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258. It was the practice of the Department to rely upon its records, and not upon the survey posts. Re Mono Fraction Lode Min. Claim, 31 Land Dec. 121; United States v. Rumsey, 22 Land Dec. 101; St. Lawrence Mfg. Co. v. Albion Mfg. Co. 4 Land Dec. 117. The presumptive correctness of the official returns cannot be overcome by the mere doubtful identification of a roving stake. 2 Lindley, Mines, § 375; Pollard v. Shiveley, 5 Colo. 309, 2 Mor. Min. Rep. 229; Duncan v. Eagle Rock Gold Min. & Reduction Co. 48 Colo. 569, 139 Am. St. Rep. 288, 111 Pac. 588: 1 Snyder, Mines, § 744; Thallman v. Thomas, 102 Fed. 935, s. c. 49 C. C. A. 317, 111 Fed. 277, 21 Mor. Min. Rep. 573. Messrs. W. H. Dickson, A. C. Ellis, Jr., R. G. Lucas, and Thomas Marionaux filed a brief for appellant in opposition to a motion to dismiss. Solicitor General Frierson, Assistant Attorney General Nebeker, and Special Assistant to the Attorney General Underwood filed a brief for the United States. Mr. Justice Holmes delivered the opinion of the court: This is a bill in equity, brought by the respondent, the Conkling Mining lows The patent under which the Conkling Mining Company gets its title was granted to the Boss Mining Company, and, so far as material, is as follows: It recites that, in pursuance of the Revised Statutes, etc., there have been deposited in the General Land Office of the United States the plat and field notes of survey and the certificate No. 1697 of the register of the local land office, with other evidence whereby it appears that the grantee duly entered and paid for that certain mining claim known as the Conkling lode mining claim, designated by the Surveyor General as lot No. 689, "bounded, described, and platted as folBeginning at corner No. 1 a pine post 4 inches square marked U. S. 689 P. 1. Thence" [160] by courses and distances northwesterly "to corner No. 2, a pine post 4 inches square marked U. S. 689 P. 2," these two corners being undisputed. "Thence second course, south 60 degrees and 45 minutes west 1,500 feet to corner No. 3. Thence third course, south 21 degrees and 9 minutes east 600 feet to corner No. 4." It then grants "the said mining premises hereinbefore described" and all that portion of veins, lodes, or ledges, "the tops or apexes of which lie inside of the surface boundary lines of said granted premises in said lot No. 689," etc., with a proviso confining "the right of possession to such outside parts of said veins," etc., "to such portions thereof as lie between vertical planes drawn downward through the end lines of said lot No. 689," etc. If "corner No. 3" and "corner No. 4" are determined by courses and distances alone, the Conkling Mining Company is entitled to prevail upon the question | be distinctly marked by monuments on that we are discussing. The circuit the ground." Waskey v. Hammer, 223 court of appeals was of opinion that the patent represented an adjudication by the Land Department that the lot was 1,500 feet long and 600 feet wide, without regard to the location of the other posts which the field notes showed to exist, but the patent did not mention. The district court, on the other hand, held that evidence was admissible to show that there were monuments at corners No. 3 and No. 4, held that the monuments so established prevailed, and therefore decided that the title of the Conkling Mining Company failed. The decree of the district court appears to us to be supported by the face of the patent and by consideration of the circumstances. If a draftsman determining his description by courses and distances only, it seems unlikely that he would insert "corner No. 3" and "corner No. 4" where the direction changed, as it would add nothing to the change of direction in the boundary line. The [161] words by themselves suggest a reference to an external object, an interpretation greatly strengthened by the fact that the same phrase in the first two instances of its use referred to one in terms; and coupled with evidence that such an external object was found, the words at least tend to prove that a monument was meant. Of course, evidence is admissible, if needed, to show that language is to receive the interpretation that, taken by itself, it invites. Furthermore, the grant is of "the said mining premises hereinbefore described," assumed in the same sentence to be the lot designated by the Surveyor General as lot No. 689; and, when it is observed that it is the duty of the Surveyor General to see that the lot is identified by monuments on the ground, the presumption becomes almost irresistible that "corner No. 3" and "corner No. 4" mean corners determined as they are required to be determined by the law. One statutory foundation of a mining claim is that "the location must be distinctly marked on the ground, so that its boundaries can be readily traced." Rev. Stat. § 2324, Comp. Stat. § 4620, 6 Fed. Stat. Anno. 2d ed. p. 533. To obtain a patent, the claimant must file in the proper land office, along with his application, "a plat and field notes of the claim made by or under the direction of the United States Surveyor General, showing accurately the boundaries of the claim which shall U. S. 85, 92, 56 L. ed. 359, 363, 32 Sup. Ct. Rep. 187. He also must file a certificate of the Surveyor General "that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent." Rev. Stat. § 2325, Comp. Stat. § 4622, 6 Fed. Stat. Anno. 2d ed. p. 555. It is the reference to natural objects or monuments that is to be incorporated. Before the application is filed, notice of it must be posted on the ground. The register subsequently advertises the application in a newspaper, [162] etc., and if no adverse claim is made and the other conditions are complied with, the patent is granted. The notice is jurisdictional. El Paso Brick Co. v. McKnight, 233 U. S. 250, 259, 58 L. ed. 943, 948, L.R.A.1915A, 1113, 34 Sup. Ct. Rep. 498. Obviously, therefore, a patent can convey only the claim as to which notice has been given. A notice of an application for a patent of land determined by monuments cannot give priority to a junior location, such as was that of the Conkling Mining Company, in respect of land outside the monuments, to which adjoining claimants had no notice that the patent would purport to extend. The final receipt from the local land officer fixed the claimant's rights. El Paso Brick Co. v. McKnight, 233 U. S. 250, 257, 58 L. ed. 943, 948, L.R.A.1915A, 1113, 34 Sup. Ct. Rep. 498. The failure of the subsequent patent to the Boss Mining Company, issued February 23, 1892, to describe the monuments at corners Nos. 3 and 4, was not an adju dication in favor of an inconsistent description, but simply the following of a practice of abbreviating by omission that had been adopted by the land office in 1891, and which, a few years later, it was directed to discard. The Act of April 28, 1904, chap. 1796, 33 Stat. at L. 545, Comp. Stat. § 4626, 6 Fed. Stat. Anno. 2d ed. p. 573, amending Rev. Stat. § 2327, making the monuments the highest authority, to which inconsistent descriptions must give way, simply made more explicit, or, at most, carried a little farther, the previous policy of the law. We are satisfied that evidence that the field notes, as the regulations of the Department require, showed marked posts at the third and fourth corners, was admissible, and that witnesses properly were allowed to testify that they found |