[670] 1671] reating the exemption are plain, definite and In their natural and their legal meaning, the I am authorized to say that Mr. Chief Justice James H. McKenney, Clerk, Sup. Court, U.S. จ. its purpose could have been easily expressed CITY OF WATERVILLE, Piff. in Err., BALTUS VAN SLYKE. (See S. C. Reporter's ed. 699-704.) To hold that the words of exemption actually used by the Legislature include the time before the completion of the road would be to insert by construction what is not to be found in the language of the contract; to presume an intention which the Legislature has not mani*1. When a case is brought here from a circuit fested in clear and unmistakable terms; to sur-court for review, in which the matter in controverrender the taxing power, and to go against the sy is less than $5,000, it will be dismissed, although uniform current of the decisions of this court accompanied by a certificate of division of opinion by the judges holding the court, unless that certifiupon the subject, as shown by the cases above cate presents a case proper for the consideration of referred to. this court. Jurisdiction-certificate of division of opinion from circuit court-form of what must be stated-more than one question may be em braced-whole case must not be embraced. The omission of the taxing officers of the In the case of Morgan v. La. 93 U. S. 217 Mr. Justice Field, dissenting: 2. Each question so certified must present a clear and distinct proposition of law to which the court can respond, and not a proposition of mixed law and facts. certificate as to show that the question of law is ap3. While such a statement must accompany the plicable to the case, the point on which the judges differed must be a distinct question of law clearly stated. 4. This procedure is meant to meet a case where, two judges setting, a clear and distinct proposition of law materia to the decision of the case arises on which, differing opinion, they may make such a certificate as willable this court to decide that question. If in rality more than one such question occurs, they may be embraced in the certificate; but where it is apparent that the whole case is presitions of fact and of law, the case will not be entersented to this court for decision, with all its propotained. Such is this case, and it is accordingly dis[No. 955.] missed. Submitted under Rule 20, by leave of court, Jan. 25, 1886. Decided Mar. 1, 1886. IN ERROR to the Circuit Court of the United States for the District of Kansas. A motion to dismiss this case was submitted November 2, 1885, by Mr. S. E. Brown, and opposed by Mr. E. Stillings. On November 9 the consideration of the motion to dismiss was postponed until the hearing on the merits. The case is stated by the court. Messrs. E. Stillings and W. W. Guthrie, for plaintiff in error. Mr. S. E. Brown, for defendant in error. I am obliged to dissent from the judgment in this case. I agree with the majority of the court in all that is said in the opinion as to the construction of statutes which are alleged to exempt from the taxing power of the State, property within its jurisdiction. Where there is a reasonable doubt as to their construction, whether or not they create the exemption, it should be solved in favor of the State. But here it does not seem to me there can be any such doubt. The statute in question declares that the capital stock of the Company "shall be exempt from taxation; and its roads, fixtures, workshops, warehouses, vehicles of transportation and other appurtenances shall be exempt from taxation for ten years after the In that court there was a judgment against completion of said road within the State." This the plaintiff in error for the sum of $1,282.06. exemption was designed to aid the road and The amount is too small to give this court juriswas, therefore, much more needed during its diction on a writ of error to a circuit court. construction than when completed. It seems There is, however, a certificate of division of like a perversion of the purpose of the statute opinion between the circuit judge and the disto hold that it intended to impede by its bur-trict judge sitting at the trial without a jury. den the progress of the desired work, and relieve it of the burden only when finished. The enterprise is to be nursed, according to the ma jority of the court, not in its infancy, but when successfully carried out and needing no support. Mr. Justice Miller delivered the opinion of the court: This is a writ of error to the Circuit Court for the District of Kansas. We have decided that under the Act of 1872 a case may be brought to this court on a certificate of division, without regard to the amount in controversy. Dow v. Johnson, 100 U. S. 158 • Head potes by Mr. Justice MILLER. [Ek 25, L. ed. 632]. But that decision was based upon a valid certificate which presented properly questions material to the decision of the case. If this were not necessary to our jurisdiction, a form of certificate which might present no question that this court can consider might be used to require of it a review of other matters than those on which the court divided, though the amount in controversy is insignificant. It is, therefore, only where the certificate does present, in accordance with the statute, a division of opinion in such a manner and on such a question as to give this court jurisdiction, that the amount in controversy can be disregarded as an element of jurisdiction. As to the character of the certificate on which this court will act, the Statute of 1872 and the Revised Statutes have made no change, and the decisions of this court are full on that subject. The substance of these decisions, as applicable to the case before us, is that each question so Certified must contain a distinct proposition of law which this court can answer negatively or Ermatively, and that the whole case cannot be presented by a recital of the evidence and interrogatories so framed as to require this court to decide the whole case on mixed propositions of law and fact. In short, while such a statement of facts must accompany the certificate as to show that the Festion of law is applicable to the case, the on which the judges differed must be a inct question of law clearly stated. la Wilson v. Barnum, 8 How. 258 [49 U. S. 12, L. ed. 1070], the court said: "This Act has been in force for nearly forty years*** d in the multitude of questions which have been certified, this court has never taken juristion of a question of fact. And in a question faw it requires the precise point to be stated, Carwise the case is remanded without an an the court on that subject, the Chief Justice A case very analogous to the one before us is To the same purport is the language of Chief Justice Marshall in U. S. v. Bailey, 9 Pet. 273 [34 U. S. bk. 9, L. ed. 126]. In the case of Havemeyer v. Iowa Co. 3 Wall. 294 [70 U. S. bk. 18, L. ed. 38], the point is fully considered. See also Dennistoun v. Steinart, 18 How. 565 [59 U. S. bk. 15, L. ed. 489]; Sadler v. Hoover, 7 How. 646 [48 U. S. bk. 12, L. ed. 855]. Applying these principles to the case before us, we think it must be dismissed. The record shows a finding of facts upon the whole case as it was submitted to the court without a jury. This finding is stated to be made under the laws of Kansas in such cases, and not under the Act of Congress concerning a review when a jury is waived, nor under the Act concerning differences of opinion between the judges to be certified to this court. The finding is, in fact, nothing but a recital of the evidence on which the presiding justice rendered judgment in favor of plaintiff. They number eleven separate findings of fact, and were excepted to by counsel; and exception was taken to the evidence received to support them. This is accompanied by the following certificate: "Be it remembered, that upon the trial of this action upon issue joined upon petition of plaintiff, answer of defendant, and reply of plaintiff, the cause having been duly heard and taken under advisement by the court, was considered by said two judges; and thereupon the said two judges were divided in opinion upon questions of interest and importance arising upon the conclusions of fact found and stated by the court upon the said trial, viz: 1. Had the defendant, as such City, power to The same thing is said in Brobst, Brobst, 4 4. If such bonds sued on we issued by defendant and disposed of in pen market for value, without other notice to purchasers toag such as all persons were bound to take from [704] Such a case is this, and it is accordingly dis the public character thereof, is the defendant | sented to this court for decision, with all its And judgment having been ordered in favor of plaintiff, and defendant having duly excepted thereto: It is now here ordered that the said questions as above stated and upon which the said judges were divided in opinion, as aforesaid, that same shall be forthwith stated under the direction of said judges and certified and entered of record in said cause for writ of error to the Supreme Court of the United States, and which is now accordingly done in open court at said term thereof; and writ of error from such judgment is now allowed to said defendant, and bond fixed therefor to operate as supersedeas in the sum of $2,000. Done and certified this 3d day of March, A. D. 1885, in open court." We do not see that any distinct question of law is stated on which the judges differed. In every instance it is what inference should be drawn from the facts found in the case, or rather from the evidence. Take the first question. Does it refer to want of legislative action in regard to the power, or to want of constitutional power, in the Legislature? Or, does it refer to the want of proper action by the town authorities, or to want of the recital of their action in the face of the bond? As to the second question, it appears to present a simple question of fact as to the actual issue of the bonds by the defendant. The third is very much like the first. The fourth and fifth are still less presentations of any distinct propositions of law, but are mixed propositions of law and fact, in regard to which the court cannot know precisely where the division of opinion arose on a question of law alone. And finally, it is very clear that the whole case has been sent here for us to decide, with the aid of a few suggestions from the circuit judges, of the difficulties they have found in doing so. It presents nothing like as clear a case as that of a demurrer to an indictment, which demurrer recited the grounds on which it was made, but which this court held presented no statement of the question of law on which the judges differed. U. S. v. Briggs, 5 How. 208 [48 U. S. bk. 12, L. ed. 119]. to enable the parties in the circuit court to bring We repeat that this procedure is not intended up the entire case to be retried here. It is meant to meet a case where, two judges sitting, a clear and distinct proposition of law material to the decision of the case arises, on which, differing, they may make such a certificate as will enable this court to decide that question. If in reality more than one such question occurs, they may be embraced in the certificate; but where it is apparent that the whole case is pre True copy._Test: James H. McKenney, Clerk, Sup. Court, U. S. JOSEPH REYNOLDS AND JOHN D. MORRISSEY, Plffs. in Err., IRON SILVER MINING COMPANY. (See S. C. Reporter's ed. 687-699.) Placer mine claim-patent for when lode or vein within boundaries of claim included-title to vein or lode remains in United States whenpatentee without title can not dispossess person in peaceable possession of lode or claim. *1. In procuring a patent for a placer mine claim under section 2333 of the Revised Statutes, where the claimant is also in possession of a lode or vein included within the boundaries of his placer claim the patent shall cover both, if he makes this known and pays $5 per acre for twenty-five feet on each side of his vein, and $2.50 per acre for the remainder of his placer claim. 2. Where no such vein or lode is known to exist, the patent for a placer claim shall carry all such veins or lodes within its boundaries which may be afterwards found to exist under its surface. 3. But where a vein or lode is known to exist under the surface included in such patent, and is not in claimant's possession and not mentioned in the claim on which the patent issues, the title to such vein or lode remains in the United States, unless not pass to the patentee, who thereby acquires no previously conveyed to some one else; and does interest in such vein or lode. 4. The title remaining in the United States, in the veins thus known to exist and not claimed or rehave no right to dispossess anyone in the peaceable ferred to in the patent, the patentee and his grantee possession of such vein, whether the latter have any title or not. 5. In such case the rule which applies to actions of ejectment, and to all actions to recover possession of real estate applies, namely: that the plaintiff can only recover on the strength of his own title, and not on the weakness of defendant's title. Submitted Jan. 4, 1886. Decided Mar. 1, 1886. [No. 843.] tates for the District of Colorado. [N ERROR to the Circuit Court of the United The case is stated by the court. and R. S. Morrison, for plaintiffs in error Messrs. T. M. Patterson, C. S. Thomas for defendant in error. Messrs. Hugh Butler and G. G. Symes Mr. Justice Miller delivered the opinion o the court: the District of Colorado, which brings here fo This is a writ of error to the Circuit Court fo of mineral deposit. review a judgment of that court in an actio to recover possession of a part of a vein or lod Company, alleged that it was the owner o The plaintiff below, the Iron Silver Minin States by patent to its grantors, and seeks to r 193 acres of land, conveyed by the Unite cover of defendants a part of the land thus p land and a mining claim. The patent unde tented. It is described in the petition as minin Head notes by Mr. Justice MILLER. The defendants asserted a right to the vein or deposit in which they were working under lode claims called the Crown Point and Pinnacle caims, which were older than that of plaintiff. Defendants also set out another defense in the following language: which plaintiff claims, which was introduced in | tained with knowledge and intention on the "That at the time of the survey, entry and patenting of the said Wells and Moyer placer cain, a certain lode, vein or deposit of quartz other rock in place carrying carbonates of lead and silver bearing ore, and of great value, led the Pinnacle lode, and a certain lode, rein or deposit carrying like minerals of great raue, were known and claimed to exist within boundaries and underneath the surface of aid placer claim, survey lot No. 281; and that the fact that such vein or veins were claimed to exist and did exist as aforesaid within said premises was known to the patentees of said m at all the times herein before mentioned, and that in the application for patent for said per claim the said vein or veins so known erist were not included and were, in the palent issued upon such application, expressly exded therefrom. And further; in the said pait was expressly and in terms reserved that e premises in and by such patent conveyed ht, by the proprietor of any such vein or e of quartz or other rock in place bearing eral or ore as aforesaid, be entered for the rpose of extracting and removing the ore from such lode, vein or deposit, should the e or any part thereof be found to penetrate, warsect, pass through or dip into the premises such patent granted." The case was tried by a jury, and a verdict dered for plaintiff, under a charge from the which required such a verdict at their The case here must be decided on the corof the action of the court in giving charge, and in refusing to give instructions Led by defendants. The full charge of the court, which was duly ated to, is as follows: The evidence tends to prove that the lode troversy was known to Wells and Moyer, s of the United States, at the time they application for the placer patent, under paintiff claims title; also that William evens, one of the grantees of Wells and er, and a grantor of the plaintiff, knew of sence of the lode at the time applicamade by Wells and Moyer for the placer procured such application to be made view to acquiring title to himself and ciates to the territory described, and y with a view and intention to acquire the lode now in dispute in this action. ing the placer patent to have been ob This charge was delivered to the jury after a refusal to give any of the following instructions asked by defendants: "1. A patent to a placer claim does not pass title to any vein or lode then known or claimed to exist. 2. If the Pinnacle and Crown Point lodes, or their vein upon which it is alleged defendants have followed into the ground of the Wells and Moyer placer, were known at time of issue of Wells and Moyer patent, then the [691] vein was not granted in (or was excepted from) the Wells and Moyer patent, and the plaintiff is not entitled to recover. 4. The plaintiff must recover on strength of his own title. If the vein is not conveyed to plaintiff by the placer patent under which it claims, then it makes no difference whether defendants have any title or not; the plaintiff cannot recover on the weakness of defendant's title. 5. If the jury believe from the evidence that the plaintiff's grantors, at the time of the locations and entry of the Wells and Moyer placer claim, knew or had reason to presume that underneath it was a deposit or vein of ore carrying precious metals in rock in place, then the same was specially excepted from the grant of their patent, and never was the property of the plaintiff or any of its grantors, having been excluded from the grant of the Government. No trespass can be committed thereon as against the plaintiff, and it cannot recover; and if the vein upon which the trespass is alleged was the vein so known, then plaintiff cannot recover. 6. It was not the intention of the Federal Government to permit owners of placer mining ANN VEL, Jade, o veins of zei applica rams less appli to be ss tu mentees, lodes O within therems in the lode dths and zuwn. ir 1500 valid me to exist NI SNI date of ze impery of the ATTEN SMaterial; 205 10 JEsting or » a $ mmgery, and 2 tween the instruc- remal or the fourth You este rest. Even is fourth prayer was a sume le as applied to the vein is not conveyed hacer stent under which astro diference whether e or not: the plaintiff a in venness of defendant's age record any pretense or macht, except that growing en to Wells and Moyer. he vein in controversy, There is no assertion by Cossesion, discovery or claim to er right to it than that and de surface of this placer suing the vein on which these claims were located. But the court held that the evidence showed that they were pursuing it when it passed out of the end lines of the claim instead of the side lines. It would seem that such possession as this ought to be sufficient to enable them to put the plaintiff upon proof of its title. It is fair, however, to say that the court in effect affirms the doctrine that the patent for a placer mine (this patent) gives title to a vein or lode under its surface, though known to the original claimant or patentee at the time of the assertion of the claim and issue of the patent, and not disclosed to the land officers or mentioned in the patent or in the original claim, as against one not having a superior title. The court says the evidence tends to prove that the lode in controversy was known to Wells and Moyer, grantees of the United States, at the time they made application for the placer patent under which plaintiff claims title; also that Stevens, a grantee of Wells and Moyer and grantor of plaintiff, knew of the existence of the lode at the time the application was made for the patent, and procured the application to be made, with the intention to acquire title to the lode now in dispute. Yet, while the lode is not mentioned in the patent, the court held that for the purposes of this suit the title to it was conferred by that instrument. It appears to us that such a proposition is opposed to the policy of the Acts of Congress in the different rules which it applies to granting titles to placer mines, and to vein, lode and fissure mines; to the express language of the statute; and to the reservations in the patent itself. It is not necessary to go further than an examination of chapter 6 of the Revised Statutes concerning the public lands to see this difference. An Act of Congress of May 10, 1872, is the foundation of the existing system by which the citizen acquires right to the lands of the United States containing the precious metals: and its provisions are found in sections 2318 to 2336 inclusive. These sections, up to section 2328, relate mainly, if not exclusively, to mineral lodes or veins; and among other things they fix the amount or quantity of land which may be acquired under any one claim, the maximum of which is 1,500 feet along its length and 300 feet in width on each side of it, subject to further limitations under Acts of the State Legislatures. and the mining rules of the district. The price for this when a patent is sought is $5 per acre, as measured by the surface lines of the patent: and these lines must necessarily conform to the course of the vein and not to Congressional surveys. The owner of one of these veins may follow it outside of the perpendicular extension of the side lines of the claim, but not outside of its end lines. ecours realised to give this instruche jury that defendants teasers, and added that," as to latiff's placer title might son and recovery." He rast this would be a quescy in a case where defendSe right or interest in the chau cao su khi tự chair the same accordPlacer claims, beginning with section 2329, he Acts of Congress. If are declared to include all other forms of minersace in defendant's right as eral deposits except veins of quartz or other atent, then it appears to us rock in place, and may be entered on similar own intention to claim the proceedings as those provided for vein or lode to local laws and the claims. The surveys for these shall conform For they were working as near as may be to Congressional surveys, and o and Pinnacle claims may include in each claim twenty acres of suabushed, and were pur-perficial area, but when the location cannot be |