By an ordinance passed November 14, 1879, it was provided further that "the powers and privileges conferred and obligations imposed on the Detroit City Railway Company by the ordinance passed November 24, 1862, and the

The provisions of the Constitution which are pertinent to the case are as follows:

"The state shall not be a party to or interested in any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to

[50] amendments *thereto, are hereby extended
and limited to thirty years from this date." the state of land or other property.

On November 20, 1894, the common council
passed an ordinance granting to several third
parties the right to construct street railways
upon portions of certain streets upon which
the plaintiff in error was maintaining and
operating street railways, and also the right
to construct, maintain, and operate railways
on certain other streets, alleys, and public
places in the city of Detroit, without giving
to plaintiff in error the opportunity to decide
whether it would construct the same. The
present suit was brought in the circuit court

"There shall be elected annually on the first Monday of April in each organized township one commissioner of highways and one overseer of highways for each highway district. "The legislature shall not or alter any road laid out by the commissioners of highways, or any street in any city or village, or in any recorded town plat.

vacate

"The legislature may confer upon organized townships, incorporated cities and villages, and upon boards of supervisors of the several

for the county of Wayne and state of Michi- counties such powers of a local, legislative, gan, to enjoin the grantees named in the lat- and administrative character as they may ter ordinance, and also the city, from acting deem proper."

thereunder, upon the ground that it impaired The supreme court of Michigan, in its opinthe contract between the city and the plain-ion (68 N. W. 304 [35 L. R. A. 859]), intertiff in error arising from the ordinances first prets these provisions adversely to the conten

aforesaid. The bill was dismissed, and, on
appeal to the supreme court of the state, the
decree of dismissal was affirmed. From that
decree the present writ of error has been duly
prosecuted to this court.

There are five assignments of error. They
present the contention that the grant to the
plaintiff in error was a contract within the
protection of the provision of the Constitu-

tion of plaintiff in error, and, reviewing prior cases, declares their harmony with the views expressed. "The scope of the earlier decisions," the court said, "is clearly stated by Mr. Justice Cooley in [People] Park Commissioners v. Common Council of Detroit, 28 Mich. 239 [15 Am. Rep. 202]. After stating that the opinion in People [Le Roy] v. Hurlbut [24 Mich. 44, 9 Am. Rep. 103], had been

tion of the United States, which prohibits misapprehended, Justice Cooley said: 'We

any state from passing any law impairing
the obligation of a contract, and that the sub-
sequent grant to the defendant in error, the
Detroit Railway, was a violation and an im-
pairment of the obligation of that contract.

Messrs. Henry M. Duffield, John C. Donnelly, Fred A. Baker, Michael Brennan, David Willcox, and Frank Sullivan

Smith for plaintiff in error.

Messrs. John B. Corliss, Charles

intended, in that case, to concede most fully
that the state must determine for each of its
municipal corporations the powers it should
exercise and the capacities it should possess,
and that it must also decide what restrictions
should be placed upon these, as well to pre-
vent clashing of action and interest in the
state as to protect individual corporators
againsti against injustice and oppression at the hands [52]
of the local majority. And what we said in
that case we here repeat, that while it is a
fundamental principle in this state, recognized

Flowers, Joseph H. Choate, and Philip and perpetuated by express provisions of the

A. Rollins for defendant in error.

Mr. Justice McKenna delivered the opin-
ion of the court:

[51] *The controversy turns primarily upon the
power of the city of Detroit over its streets,
whether original under the Constitution of
the state, and hence as extensive as it would
be in the legislature, or whether not original
but conferred by the legislature, and hence
limited by the terms of the delegation.

The first proposition is asserted by the
plaintiff in error; the second proposition by
the defendants in error.

Constitution, that the people of every hamlet, town, and city of the state are entitled to the benefits of local self-government, the Constitution has not pointed out the precise extent of local powers and capacities, but has left them to be determined in each case by the legislative authority of the state, from considerations of general policy, as well as those which pertain to the local benefit and local desires. And in conferring those powers it is not to be disputed that the legislature may give extensive capacity to acquire and hold property for local purposes, or it may confine the authority within the narrow

for such purposes shall have the exclusive right | been given and accepted by the company or cor

to use and operate any street railways con-
structed, owned, or held by them; Provided,
that no such company or corporation shall be
authorized to construct a railway under this act
through the streets of any town or city without
the consent of the municipal authorities of such
town or city and under such regulations and

SO

poration to which the same is granted, such authorities shall make no regulations or conditions whereby the rights or franchises granted shall be destroyed or unreasonably impaired, or such company or corporation be de prived of the right of constructing, maintaining, and operating such railway in the street

bounds, and what it thus confers it may en- | U. S. 791 [25:921]; State [Atty. Gen] v. large, restrict, or take away at pleasure."" Cincinnati Gaslight and Coke Co. 18 Ohio St.

This decision of the supreme court of Michi- 262; Parkhurst v. City of Salem [Parkhurst

gan is persuasive if not authoritative; but, exercising an independent judgment, we think it is a correct interpretation of the constitutional provisions. The common council of Detroit, therefore, had no inherent power to confer the exclusive privilege claimed by the plaintiff in error.

Did it get such power from the legislature? It is contented that it did by the act under which the Detroit City Railway Company, the predecessor of plaintiff in error, was organized, and to whose rights and franchises it succeeded. This act is the tram railway act, and

v.Capital City R. Co. 23 Or. 471] 32 Pac. 304;
Saginaw Gaslight Co. v. Sagiraw, 28 Fed.
Rep. 529, decided by Mr. Justice Brown of
this court; Long v. Duluth [49 Minn. 280],
51 N. W. 913. See also Grand Rapids Electrio
Light & Power Co. v. Grand Rapids Edison
E. L. & Fuel Gas Co. 33 Fed. Rep. 659, opinion
delivered by Mr. Justice Jackson at circuit.
As bearing on the rule, see also Oregon Rail-
way & Nav. Co. v. Oregonian Railway Co. 130
U. S. 1 [32:837]; "Central Transportation Co. [54]
v. Pullman's Palace Car Co. 139 U. S. 24 [35:
55].

at the time of the adoption of the first ordi- The power, therefore, must be granted in
nance in 1862, § 34 of that act provided that express words or necessarily to be implied.
"all companies or corporations formed for What does the latter mean? Mr. Justice
such purposes [the railway purposes men- Jackson, in Grand Rapids Electric Light &
tioned in the act] shall have the exclusive Power Co. v. Grand Rapids, Edison E. L. &
right to use and operate any railways con- Fuel Gas Co. supra, says "that municipal cor-
structed, owned, or held by them: Provid-porations
possess and can exercise
ed, that no such company or corporation only such powers as are 'granted in express
shall be authorized to construct a railway, words or those necessarily or fairly im-
under this act, through the streets of any plied in or incident to the powers ex-
town or city, without the consent of the pressly conferred, or those essential to
municipal authorities of such town or city, the declared objects and purposes of the
and under such regulations and upon such corporation, not simply convenient, but in-
terms and conditions as said authorities may dispensable." The italics are his. This
from time to time prescribe."
would make "necessarily implied" mean in-
evitably implied. The court of appeals of the
sixth circuit, by Circuit Judge Lurton, adopts
Lord Hardwicke's explanation, quoted by

[53] *In 1867 the further proviso was added that, after such consent should be given and accepted, such authorities should make no regulations or conditions whereby the rights or Lord Eldon in Wilkinson v. Adam, 1 Ves. & franchises so granted should be destroyed or B. 466, that a "necessary implication means, unreasonably impaired, or sach company be not natural necessity, but so strong a probadeprived of the right of constructing, main- bility of intention, that an intention contrary taining, and operating such railway.

to that, which is imputed to the testator

It is clear that the statute did not explicit-[the party using the language], cannot be

ly and directly confer the power on the municipality to grant an exclusive privilege to occupy its streets for railway purposes. It is urged, however, that such power is to be inferrea from the provision which requires the consent of the municipal authorities to the construction of a railway under such terms as they may prescribe, combined with the provisions of the Constitution, which, if they do not confer a power independent of the legislature, strongly provide for and intend local government. The argument is strong, and all of its strength has been presented and is appreciated, but there exist considerations of countervailing and superior strength. That such power must be given in language explicit and express, or necessarily to be implied from other powers, is now firmly fixed. There were many reasons which urged to this-reasons wmch flow from the nature of the municipal trust-even from the nature

supposed." If this be more than expressing by circumlocution an inevitable necessity, we need not stop to remark; or if it mean less, to sanction it, because we think that the statute of Michigan, tested by it, does not confer on the common council of Detroit the power it attempted to exercise in the ordinance of 1862. To refer the right to occupy the streets of any town or city to the consent of its local government was natural enoughwould have been natural under any Constitution not prohibiting it, and the power to prescribe the terms and regulations of the occupation derive very little, if any, breadth from the expression of it. But assuming the power to prescribe terms does acquire breadth from such expression, surely there is sufficient range for its exercise which stops short, or which rather does not extend to granting an exclusive privilege of occupation. Surely there is not so strong a probability of an in

of the legislative trust, and those which, tention of granting so extreme a power that without the clearest intention explicitly de- one contrary to it cannot be supposed, which clared, insistently forbid that the future is Lord Hardwicke's test, or that it is indisshould be committed and bound by the con- pensable to the purpose for which the power ditions of the present time and functions dele- is given or necessarily to be implied from it, gated for public purposes be paralyzed in which is the test of the cases. The rule is their exercise by the existence of exclusive one of construction. Any grant of power in [55] privileges. The rule and the reason for it general terms read literally can be construed are expressed in Minturn v. Larue, 64 U. S. to be unlimited, but it may, notwithstand23 How. 436 [16:575]; Wright v. Nagle. 101 ing, receive limitation from its purpose

|

from the general purview of the act which
confers it. A municipality is a governmental
agency-its functions are for the public good,
and the powers given to it and to be exercised 5.
by it must be construed with reference to that
good and to the distinctions which are recog-
nized as important in the administration of
public affairs.

Easements in the public streets for a limited time are different and have different consequences from those given in perpetuity. Those reserved from monopoly are different and have different consequences from those 7. The only exception to the rule that the end

ON A CERTIFICATE from the United States Circuit Court of Appeals for the Eighth Circuit certifying certain questions to be anLAST CHANCE MINING & MILLING swered in this case between the Del Monte

Both in location and patent the Del Monte location until it reaches the eastern side line claim is first in time, the New York second, of the New York, into which latter territory and the Last Chance third. When the own- it enters, continuing thence southerly with a

ers of the Last Chance claim applied for their patent, proceedings in adverse were instituted against them by the owners of the New York claim, and an action in support of such adverse was brought in the United States circuit court for the district of Colorado. This [58] action terminated *in favor of the owners of the New York and against the owners of the Last Chance, and awarded the territory in conflict between the two locations to the New York claim. The ground in conflict between the New York and Del Monte, except so much thereof as was also in conflict between the Del Monte and Last Chance loca

southeasterly course on the New York claim until it crosses its south end line. No part of the apex of the vein is embraced within the small triangular parcel of ground in the southwest corner of the Last Chance location, which was patented to the Last Chance as aforesaid, and no part of the apex is within the surface boundaries of the Del Monte mining claim. The portion of the vein in controversy is that lying under the surface of the Del Monte claim and between two vertical planes, one drawn through the north end line of the Last Chance claim extending westerly, and the other parallel thereto and start

tions, is included in the patent to the Deling at the point where the vein leaves the

Monte claim. The New York secured a patent to all of its territory, except that in conflict with the Del Monte, and the Last Chance in turn secured a patent to all of its territory, except that in conflict with the New York, in which last-named patent was included the [59] triangular surface *conflict between the Del Monte and Last Chance. which, by agreement, was patented to the latter. The Last Chance claim was located upon a vein, lode, or ledge of silver and lead bearing ore, which crosses its north end line and continues southerly from that point through the Last Chance

Last Chance and enters the New York claim, as shown on the foregoing diagram. Upon these facts the following questions have been certified to us:

"1. May any of the lines of a junior lode location be laid within, upon, or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior location?

"2. Does the patent of the Last Chance Lode mining claim, which first describes the [60]

rectangular claim by metes and bounds, and then excepts and excludes therefrom the premises previously granted to the New York Lode mining claim, convey to the patentee anything more than he would take by a grant specifically describing only the two ir regular tracts which constitute the granted surface of the Last Chance claim?

"3. Is the easterly side of the New York Lode mining claim an 'end line' of the Last Chance Lode mining claim, within the meaning of §§ 2320 and 2322 of the Revised Statutes of the United States?

*"4. If the apex of a vein crosses one end line and one side line of a lode mining claim, as located thereon, can the locator of such vein follow it upon its dip beyond the vertical side line of his location?

"5. On the facts presented by the record herein, has the appellee the right to follow its vein downward beyond its west side line and under the surface of the premises of appellant?"

Messrs. Charles S. Thomas, William H. Bryant, and Harry H. Lee, for appellant:

One who discovers a lode on the national domain and locates a claim therein, in accordance with the law, segregates the premises included within his boundaries as com

Rep. 390; McGinnis v. Egbert, 8 Colo. 54;
Miller v. Girard, 3 Colo. App. 278; Girard v.
Carson, 22 Colo. 345.

It is incumbent upon a junior locatcı, if he would avail himself of any adventage to be gained by the forfeiture or abandonment of a conflicting senior location, to appropriate the ground in conflict by relocating it. Failing to do so, he must stand or fall by the merits of his junior location as against the earlier one, which must stand as to him as though it had never been abandoned.

Lindley, Mines, § 363.

Whatever may pass by words of grant may be excepted by like words, and the same consequences attach to such an exception as would have attached had it been a grant. 3 Washb. Real Prop. 435. By an exception the grantor withdraws from the operation of the conveyance something which is in existence and included under the terms of the grant.

1 Devlin, Deeds, § 221; Whitaker v. Brown, 46 Pa. 197; Randall v. Randall, 59 Me. 338.

The end lines of a lode claim are those which lie "crosswise of the general course of the vein," and these, to justify a departure from its vertical boundary, must be parallel.

pletely from the public territory as though the government had executed and delivered to him a patent therefor. It is his private Iron Silver Min. Co. v. Elgin Min. & Smelt

Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 463 (25:253); Argentine Min. Co. V. Terrible Min. Co. 122 U. S. 478 (30: 1140); ing Co. 118 U. S. 196 (30: 98); King v. Amy

property upon which no other citizen may intrude except to follow a vein underneatl. its & S. Consol. Min. Co. 152 U.S. 222 (38:419); surface which outcrops somewhere else. Last Chance Min. Co. v. Tyler Min. Co. 157

The statutory right of patent is permissive merely. He may avail himself of it or not. If he does not his tenure continues,

provided he shall annually expend $100 in labor or improvements thereon. Failing to do this, his location lapses, and the ground which it covers reverts to the government, after which it becomes open to relocation.

Oscamp v. Crystal River Min. Co. 19 U. S. App. 18, 58 Fed. Rep. 293, 7 C. C. A. 233; Belk v. Meagher, 104 U. S. 279 (26:735); Lockhart v. Rollins (Idaho) 21 Pac. 413; Garthe v. Hart, 73 Cal. 541; Harris v. Equator Min. & Smelting Co. 8 Fed. Rep. 863; McFeters v. Pierson, 15 Colo. 201; Keller v. Trueman, 15 Colo. 143.

One who enters upon ground staked and claimed by another under an assertion of discovery, and attempts to institute a claim of his own, is a wrongdoer simply, and can be ousted by action of ejectment.

Erhardt v. Boaro, 113 U.S.527 (28:1113); Craig v. Thompson, 10 Colo. 517; Thompson v. Spray, 72 Cal. 528; North Noonday Min. Co. v. Orient Min. Co. 6 Sawy. 290, Weese v. Barker, 7 Colo. 178; Omar v. Soper, 11 Colo.

280.

And if the point of discovery or the discovery shaft of a lode claim is located upon a previous valid and subsisting location the former is invalid.

Guillim v. Donnellan, 115 U. S. 45 (29:348); Upton v. Larkin, 5 Mont. 600;

U. S. 683 (39:859).

But if the appellee should successfully contend that the line of crossing ing is not an end line, or that its lines of shadow beyond it are lines of substance for the purpose of its claim, we have then presented the question whether a claim, the vein within which crosses an end and a side line, has any right to go beyond its boundaries in the pursuit of its vein. There are a few cases arising under the act of 1872 in which such a right has been recognized.

Colorado C. Consol. Min. Co. v. Turck, 4 U. S. App. 290, 50 Fed. Rep. 888, 2 С. С. А. 67, 12 U. S. App. 85, 54 Fed. Rep. 262, 4 C. С. A. 313; Del Monte Min. & Mill. Co. v. New York & L. C. Min. Co. 66 Fed. Rep. 212; Last Chance Min. Co. v. Tyler Min. Co. 15 U. S. App. 456, 61 Fed. Rep. 557, 9 C. C. A. 613; Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. 63 Fed. Rep. 540; Carson City Gold & S. Min. Co. v. North Star Min. Co. 73 Fed. Rep. 598.

Wherever a mine owner asserts the right to enter into the land of his neighbor by following the dip of his vein, the burden of proof is upon him to establish the existence of all conditions made necessary to such right by the statute.

Iron Silver Min. Co. v. Campbell, 17 Colo. 267; Stevens v. Williams (Colo.) 1 Mining Rep. 557; Iron Silver Min. Co. v. Cheesman, 2 McCrary, 191; Iron Silver Min. Co. v. .

Armstrong v. Lower, 6 Colo. 393; Golden Murphy, 3 Fed. Rep. 368; Hyman Terra Min. Co. v. Mahler (Dak.) 4 Mining | Wheeler, 29 Fed. Rep. 347.