rights are based. When, then, he owns an claim situated in the "Summit Valley" minapex, whether it extends through the entire ing district in Silver Bow county, Montana. or through but a part of its location, it The defendants in error own two-thirds should follow that he owns an equal length of interest, and the plaintiff in error one-third the ledge to its utmost depth. These are the interest in the "Niagara" lode mining claim important rights granted by the law. Take situated in the same district and county. them away, and we take all from the law that The "Niagara" lode lies alongside of the is of value to the miner." 71 Fed. Rep. 848, "Black Rock" lode so that the south side 851. Carson City Gold & Silver Mining Com-line of the "Niagara" forms or is a part of pany v. North Star Mining Company, circuit the north side line of the "Black Rock" lode. court northern district of California, decided The "Black Rock" lode is the older of the by Beatty, District Judge, 73 Fed. Rep. 597. two locations. As appears from the pleadRepublican Mining Company v. Tyler Minings in the cause the vein or lead crosses ing Company, circuit court of appeals ninth circuit, decided by Circuit Judges Gilbert and Ross and District Judge Hawley, 48 U. S. App. 213. See also 2 Lindley on Mines, § 591. The fourth question, therefore, is answered in the affirmative.

The fifth question in effect seeks from this 92] court a decision of the whole case, and therefore is not one which this court is called upon to answer. Cross v. Evans, 167 U. S. 60 [42:77]; Warner v. New Orleans, 167 U. S. 467 [42:239].

It will therefore be certified to the Court of Appeals that the first question is answered in the affirmative, the third in the negative, the fourth in the affirmative. The second and fifth are not answered.

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the east end line and south side line of the "Niagara" lode 513 feet west of the northeast corner of the "Black Rock" lode and dips to the south and under the surface of the "Black Rock” lode claim.

The plaintiff in error entered upon that part of the vein east of the point where it crosses the division side line between the "Black Rock" and "Niagara" lode claims and extracted ore from the said vein on its dip under the "Black Rock" lode at the point above described.

Thereupon the defendants in error, who, as stated supra, own two-thirds interest in the "Niagara" lode claim, brought an action asking for an accounting and judgment for two thirds the value of the ore extracted by the plaintiff in error. Judgment was rendered against the plaintiff in error for the sum of $27,242.54 being two thirds the value of the ore extracted, and for ($234.50) two hundred and thirty-four and 50-100 dollars, the cost of the suit.

An appeal was taken to the supreme court of the state and the judgment of the lower court was affirmed.

The questions presented by this record for decision are raised solely by the judgment roll consisting of the pleadings and judgment of the lower court and opinion of the supreme court of the state.

This cause presents to this court for the first time a new question for adjudication. In some respects analogous questions have

Argued December 7, 8, 1897. Decided May already been settled by this tribunal, but the

23, 1898.

IN ERROR to the Supreme Court of the State of Montana to review the judgment of that court affirming the judgment of the District Court of the County of Silver Bow in said state in favor of the plaintiffs, William F. Fitzgerald et al., against the defendant, William A. Clark, for damages for ores extracted from the Niagara lode mining claim in said county and state, and adjudging that two thirds of the vein in controversy are the property of the plaintiffs. Affirmed.

See same case below, 17 Mont. 100 [30 L. R. A. 803].

Messrs. Robert B. Smith and Robert L. Word, for plaintiff in error:

This cause comes here on a writ of error directed to the supreme court of the state of Montana, and the questions involved grow out of the following state of facts:

The plaintiff in error is the owner and in possession of the "Clack Rock" lode mining

exact question here presented has never been decided.

Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 696 (39:865).

The apex of the vein or lode of the "Niagara" claim crosses the east end line and the south side line of said "Niagara" claim. The plaintiff in error entered upon said vein upon its downward course or dip into the earth and extracted therefrom certain valuable ores, for an accounting of which this action was brought.

The ore taken by the plaintiff in error was from that portion of the vein which had its apex within the surface lines of the "Niagara," but the ore was taken from the vein on its downward course or dip, the vein dipped to the south and underneath the "Black Rock" claim, and it was upon this dip or downward course of the said vein that the plaintiff in error entered and extracted the ore sued for.

The question thus presented for determi

nation by this court by the pleadings in this case is as follows: Where a vein or lead of quartz in place crosses one end line of the surface location as marked upon the ground, and also crosses one of the side lines of said location, has the owner or patentee of such location a right to follow the said lead, or so much thereof as has its apex within the surfact lines of his location on its pitch or dip into the earth outside of planes drawn vertically downward through the surface lines of his location?

By § 2320 of the Revised Statutes of the United States it will be seen that the first requirement of the statute in respect to the it frequently happens that the side lines are claims shall be parallel, and that so much vein as lies between planes drawn vertically downward through the end lines until the ledge is intersected by such planes belongs to the locator on its dip into the earth. The lines designated by the locator in his surface location as end lines are not necessarily such; it frequently happens that the side lines are in fact the end lines of the lode or vein.

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).

If, then, side lines which are not parallel become end lines by reason of having been laid across the strike of the vein, has the claimant any extralateral rights?

What rights, then, can a claimant have whose location is so made that one of the lines he designates as an end line, and ore of his side lines, crosses the vein or ledge so that the same departs from the claim through one end line and one side line?

As the end lines of the "Niagara" claim, or rather the surface lines of the "Niagara," crossed by the vein or lode are not parallel, have the respondents then any extralateral or extraterritorial right? This question is answered in the negative by the following authorities:

Iron Silver Min. Co. v. Elgin Min. & Smelting Co. 118 U. S. 196 (30: 98), 14 Fed. Rep. 377; Montana Co. v. Clark, 42 Fed. Rep. 626; King v. Amy & S. Consol. Min. Co. 152 U. S. 222 (38: 419); Colorado C. Consol. Min Co. v. Turck, 4 U. S. App. 290, 50 Fed. Rep. 888, 2 C. C. A. 67; Tombstone Mill. & Min. Co. v. Way Up Min. Co. 1 Ariz. 426; Blue Bird Min. Co. v. Largey, 49 Fed. Rep. 291; McCormick ▼. Varnes, 2 Utah, 355.

Mr. James W. Forbis, for defendants in


What is the effect of a vein crossing both end lines of a claim when in its course it passes through a side line?

This court has in express terras stated that the question here presented has never been by this court decided.

Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683 (39:859).

The act of May 10, 1872, required that the end lines of each claim should be parallel, and prohibited the claimant from passing beyond these end lines extended downward indefinitely in their own direction.

claim and each may have a different course with many variations therefrom, but the line of the dip for one and all is in the same direction-the direction fixed by the end line.

Whatever point on the claim may be selected, whether it be at the end lines or the center of the claim, there is no uncertainty as to what is the plane of the claim, for it has been determined by the fixing of the end lines.

The statute expressly declares that the claimant shall have "all veins, lodes, or ledges throughout their entire depth, the top or apex of which lie inside such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from the perpendicular in their course downward as to extend cutside the vertical side lines of such surface locations."

The question, so far as this court is concerned, stands undecided.

In not a single case cited by plaintiff in error was the question here in issue discussed or decided.

On the other hand, this identical question has arisen and been decided, as we contend is correct, in the following cases:

Tyler Min. Co. v. Last Chance Min Co. 7 U. S. App. 463, 54 Fed. Rep. 284, 4 C. C. A. 329; Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. 63 Fed. Rep. 540; Del Monte Min. & Mill. Co. v. New York & L. C. Min. Co. 66 Fed. Rep. 212, Tyler Min. Co. v. Last Chance Min. Co. 71 Fed. Rep. 848; Republican Min. Co. v. Tyler Min. Co. 48 U. S. App. 213, 79 Fed. Rep. 733, 25 C. C. A. 178; Carson City Gold & S. Min. Co. v. North Star Min. Co. 73 Fed. Rep. 597; Fitzgerald v. Clark, 17 Mont. 100, 30 L. R. A. 803 (the case at bar).

The question is also discussed and the same principle announced in

Doe v. Sanger, 83 Cal. 203.

Mr. Justice Brewer delivered the opinion of the court:

This case is before us on error to the su

preme court of Montana. It is unnecessary to state its facts in detail, and it is sufficient to say that the answer given to the fourth question in the opinion just filed compels an affirmance of the judgment, and it is so ordered.

JAMES JOHNSON, Plff. in Err.,



(See S. C. Reporter's ed. 93-100.) Equitable pleas in ejectment—defense against patent for land.

1. The rejection of equitable pleas in ejectNo1E. As to pre-emption rights-see note

to United States v. Fitzgerald, 10: 785.

That patents for land may be set aside for fraud, see note to Miller v. Kerr. 5: 381.

As to errors in surveys and descriptions in patents for lands; how construed, see note to There may be numerous veins within the Watts v. Lindsey, 5: 423.

went is immaterial, when the defendant could give evidence of all matters of defense set up in the equitable pleas under the plea of not guilty filed by him.

2. A party cannot defend against a patent for land, duly issued by the United States upon an entry made at a local land office, on the ground that he was in actual possession of the land at the time of the issue of the patent. [No. 239.]

Submitted April 28, 1898. Decided May 31, 1898.

for in the United States land laws." The patent to the plaintiff was issued September 30, 1882, and recited that it was upon a location of Valentine scrip, and in his equitable plea defendant averred that the patent was predicated upon an entry at the local land office of the United States at Gainesville, Florida. On August 18, 1856, Congress passed an act (11 Stat. at L. 87, chap. 129) containing this provision:

"That all public lands heretofore reserved for military purposes in the state of Florida, which said lands in the opinion of the Secretary of War, are no longer useful or desired for such purposes, or so much thereof as said Secretary may designate, shall be, and are hereby, placed under the control of the General Land Office, to be disposed of and sold in the same manner and under the same

IN ERROR to the Supreme Court of the State of Florida to review a judgment of that court affirming the judgment of the Circuit Court of that state in an action of ejectment brought by George F. Drew, plaintiff, against James Johnson, to recover possession of a tract of land, the judgment being for plain-regulations as other public lands of the tiff. Affirmed.

Statement by Mr. Justice Brewer:

In September, 1866, defendant in error commenced an action of ejectment in the circuit court of the state of Florida, for the county of Hillsborough to recover possession of a tract of land described as follows:

United States: Provided, That said lands shall not be so placed under the control of said General Land Office until said opinion of the Secretary of War, giving his consent, communicated to the Secretary of the Interior in writing, shall be filed and recorded."

At that time there was in existence what was known as the Fort Brooke military res"Lot eight (8) of section nineteen (19), ervation, near the town of Tampa, Florida. township twenty-nine (29) south, of range As appears from the testimony offered by the nineteen (19) east, and lot seven (7) of sec-defendant, on July 24, 1860, the Secretary of tion twenty-four (24), in township twenty- War wrote to the Secretary of the Interior as nine (29) south, of range eighteen (18) east, follows: containing about forty and nineteen onehundredths (40.19) acres.'

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The defendant, now plaintiff in error, filed a plea of not guilty and also a plea based on equitable grounds. A demurrer to this latter plea was sustained, and thereupon the defendant asked leave to file an amended equitable plea. This application was denied, the court holding that the grounds of defense set up therein were not sufficient. That plea alleged in substance that the plaintiff's title rested on a patent from the United States, issued on a location of Valentine scrip; that such scrip was, by the terms of the statute under which it was issued, to be located only upon unoccupied and unappropriated lands of the United States; that the land in controversy was, at the time of the location of the scrip, a part of Fort Brooke military reservation, and was also in the actual occupancy of the defendant. The case came on for trial in September, 1889, and the defendant offered evidence in support of all of his defenses, including therein the matters set up in the equitable plea which he had been refused leave to file. This testimony was held insufficient by the court, and the trial resulted in a verdict and judgment for the plaintiff, which judgment was thereafter, and in June, 1894, aflirmed by the supreme court of the state; whereupon the defendant sued out this writ of error.

The Valentine scrip act was passed April [95]5, 1872 (17 Stat. at L.649), chap. 89, *and authorized the location of such scrip on "the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than the subdivisions provided

War Department, July 24, 1860. Sir: Referring to the correspondence be tween the two departments on the subject, I have the honor to inclose to you a report of the quarter-master general showing that Fort Brooke is now in readiness to be turned over to the Department of the Interior, in pursuance of the arrangements made to that effect.

Very respectfully, your obedient servant, John B. Floyd, Secretary of War. Hon. J. Thompson, Secretary of the Interior.

*The inclosed report from the quartermaster [96] general stated that all the movable property of the government had been sold, and that there was no reason why the military reservation should not be turned over to the Interior Department. Probably the exigencies of the war, which soon thereafter commenced, prevented any further action by either department, for on April 6, 1870, the following communication was sent by the Secretary of War to the Secretary of the Interior:

War Department, Washington City,
April 6, 1870.

The Honorable Secretary of the Interior.
Sir: I have the honor to reply to a letter
addressed to this department by the Commis-
sioner of the General Land Office on the 26th
ultimo relative to the public lands occupied
by this department for military purposes at
Fort Brooke, Florida, and to inform you
that there is no longer any objection to their

disposition by the General Land Office under
the laws governing the subject.

Very respectfully, your obedient servant,
Wm. W. Belknap, Secretary of War.

From the date of this last communication up to 1877 the record discloses no action by either department, but in January, 1877, the Secretary of War requested that a military reservation at Fort Brooke be declared and set apart by the executive. Subsequently, and on May 29, 1878, the Secretary of War addressed a communication to the President, as follows:

War Department, Washington City,
May 29, 1878.
To the President.

tion last relinquished by the Secretary of War to the Secretary of the Interior." The diagram is not very definite, and it is difficult to determine therefrom the boundaries of either the earlier or later Fort Brooke military reservation. The defendant also offered evidence tending to show that he entered into occupation of the tract in controversy in 1871, and had continued in occupancy ever since.

*Mr. Samuel Y. Finley for plaintiff in [98] error.

Messrs. C. M. Cooper and J. C. Cooper for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

ruling involved merely a question of state practice.

Sir: In accordance with recommendation The ruling of the trial court in sustaining of commanding general department of the the demurrer to the first equitable plea and south, concurred in by division commanders, refusing leave to permit the second to be filed I have the honor to request that a military presents no question for the consideration of reservation at the post of Fort Brooke, this court, for it was held by the supreme Tampa, Florida, with boundaries as herein- court of the state that under the plea of not after described, may be duly declared and set guilty all the matters of defense set up in apart by the executive in lieu of the lands at these equitable pleas could be offered in evithat post reserved by executive order dated dence and made available; and, in fact, the January 22, 1887, to wit: Beginning at the defendant on the trial did offer his testimony intersection of the line which bounds the to establish them. So, the substantial rights [97] town of Tampa on the south with the Hills-of the defendant were not prejudiced, and the borough river, running thence along said line which bounds the town of Tampa on the south, and in prolongation thereof north 68 degrees 45 minutes east 2,976 feet; thence north 4 degrees 28 minutes west 2,342 feet; thence north 38 degrees east 1,052 feet; thence south 52 degrees east 459.2 feet; thence south 38 degrees west 1,052 feet; thence south 4 degrees 28 minutes east 1,931 feet; thence south 5 degrees 29 minutes east 2,007.2 feet to the Hillsborough bay; thence westerly along the shore of Hillsborough bay and the shore of Hillsborough river to the place of beginning, containing 155 and one half acres, more or less. A plat of the reservation and report and notes and survey by Lieutenant James C. Bush, 5th artillery, are inclosed herewith.

I have the honor to be, sir, with great respect, your obedient servant,

Geo. W. McCrary,
Secretary of War.

We pass, therefore, to a consideration of the merits of the case: Was the land within the limits of any military reservation at the time that it was patented? The supreme court of the state said in respect to this matter:

"There is doubt whether the documentary evidence offered by the defendant shows that the particular lots of land described in the declaration were embraced in the Fort Brooke reservation when the patent was issued.”

It is clear to us that they were not. The description of the reservation asked for in the letter of May 29. 1878, from the Secretary of War to the President, is not of itself sufficient to show whether the land was within or without the limits of such reservation. The plat, notes and survey were not in evidence. But the record recites that the diagram, certified by the Commissioner of the Land Office, "shows the contiguity of the land in This request was approved and the reser-question." If contiguous it was not within, vation was made and declared accordingly. and while the diagram is unsatisfactory, yet The plat, notes, and survey referred to in this it tends to support this statement of the recletter were not introduced in evidence, so ord. Again, the testimony of the defendant that the exact boundaries of the reservation is that he entered into possession of this land then ordered were not distinctly shown, nor in 1871, which was before the reservation was can it be determined from the description in established, and *continued in such possession [99] the letter alone whether it included the lands until after the restoration in 1883, and this in controversy. In March, 1883, this last is in accord with the averments in the equitreservation was abandoned, and the land able plea. This also indicates that the land again turned over to the Interior Depart- was not included in any government reserment. Defendant also offered a diagram, vation. Further and finally, the plat on file certified by the Commissioner of the Land in the General Land Office, and a part of the Office, of sections 18 and 19 of township 29, range 19, and section 24 of township 29, range 18, which, as the record recites, "shows the contiguity of the land in question to that portion of the Fort Brooke military reserva

public records, puts the question at rest and
locates the land outside the reservation.
Hence, as shown by the testimony and by the
public records, this land ever since 1870 has
been part of the public lands of the United

States. and subject to disposal in accordance | gard or defiance thereof. St. Louis Smelting with the general land laws. It was unappropriated land within the meaning of the act of 1872.

& Ref. Company v. Kemp, 104 U. S. 636, 646 [26: 875, 879]; Wright v. Roseberry, 121 U. S. 488, 519 [30: 1039, 1048]; Doolan v. Carr, 125 U. S. 618 [31: 844]; Davis's Admr. v. Weibbold, 139 U. S. 507, 529 [35: 238, 246]; Knight v. United States Land Asso. 142 U. S. 161 [35: 974].

It being so a part of the public domain, subject to administration by the land department and to disposal in the ordinary way, the question arises whether a party can defend against a patent duly issued therefor upon an entry made in the local land office on the ground that he was in actual possession of the land at the time of the issue of the patent? We are of opinion that he cannot. It appears from the testimony that the fendant, although in occupation of this land, as he says, from 1871, never attempted to make any entry in the local land office, never took any steps to secure a title, and in fact did nothing until after the issue of a patent, when he began to make inquiry as to his supposed rights. But whether a party was or was not in possession of a particular tract at a given time is a question of fact, depending upon parol testimony; and if there is any one thing respecting the administration ARCHIE R. ANDERSON, Sheriff of Harris of the public lands which must be considered as settled by repeated adjudications of this court, it is that the decision of the land department upon mere questions of fact is, in the absence of fraud or deceit, conclusive, and such questions cannot thereafter be relitigated in the courts. The law in reference to this matter was summed up in the case of Burfenning v. Chicago, St. Paul, M. & O. Railway Co. 163 U. S. 321, 323 [41: 175, 176], as follows:

Reference is made in the brief to the act of Congress of July 5, 1884 (23 Stat. at L. 103, chap. 214) concerning the disposal of abandoned and useless military reservations. But obviously that statute can have no sigde-nificance in this case, for the patent had issued and the title passed from the government prior to its enactment. We see no reason to doubt that upon the facts in this case the judgment of the Supreme Court of Florida was right, and it is therefore affirmed.



County, Texas.


(See S. C. Reporter's ed. 101-108.)

Power of circuit courts—dismissal of habeas
corpus-equal protection of the laws-
commitment for contempt-lien on prop-


It has undoubtedly been affirmed over and over again that in the administration of..erty, when a defense-jury trial. the public land system of the United States questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final. Whether. 100] for instance, a certain tract is swamp *land


Circuit courts of the United States should not, except in urgent cases, relieve from custody, by habeas corpus, persons held under state authority in violation of a Federal right. but should leave them to their remedy by review.

The dismissal of a writ of habeas corpus by the highest court of the state having jurisdiction of the case is reviewable by this court on writ of error, if it denies the prisoner any right specially set up and claimed by him under the Constitution, laws, or treaties of the United States.

or not, saline land or not, mineral land or not,
presents a question of fact not resting on rec-2.
ord, dependent on oral testimony; and it
cannot be doubted that the decision of the
land department, one way or the other, in
reference to those questions, is conclusive and
not open to relitigation in the courts, except
in those cases of fraud, etc., which permit
any determination to be re-examined. John-
son v. Towsley, 13 Wall. 72 [20: 485]; St.
Louis Smelting & Ref. Company v. Kemp,
104 U. S. 636 [26: 875]; Steel v. St. Louis
Smelting & Ref. Company, 106 U. S. 417 [27:. A commitment for contempt does not de-
226]; Wright v. Roscberry, 121 U. S. 488
[30: 1039]; Heath v. Wallace, 138 U. S. 573
[34: 1063];McCormick v. Hayes, 159 U. S.
332 [40:171].


Equal protection of the laws is not denied by a law or course of procedure which would have been applied to any other person in the state under similar circumstances and conditions.

prive a person of liberty without due process
of law, unless the commitment was void.

The claim of an equity or llen on property
held by an officer of a corporation to secure a
debt to himself does not defeat the jurisdic-
tion of a court which has appointed a receiver

when not; and from what courts and by what
NOTE. When habeas corpus may issue, and
judges; what may be inquired into by writ of,
-see note to United States v. Hamilton, 1:

"But it is also equally true that when by act of Congress a tract of land has been reserved from homestead and pre-emption, or dedicated to any special purpose, proceedings in the land department in defiance of such reservation or dedication, although culminat-490. ing in a patent, transfer no title and may be challenged in an action at law. In other words, the action of the land department cannot override the expressed will of Congress, or convey away public lands in disre

As to what questions may be considered on
habeas corpus,-see note to Re Carll, 27: 288.
As to suspension of writ of habeas corpus,
-see note to Luther v. Borden, 12: 581.
As to what is due process of law,-see note to
Pearson v. Yewdall, 24: 436.


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