requisite citizenship must be alleged by plaintiff and appear of record; or this court, on writ of error will reverse the judgment for want of ju risdiction in the Circuit Court. 2. Since the Act of June 1, 1872, all defenses are open to a defendant in the U. S. Circuit Court, under any form of plea, answer or demurrer, which would have been open to him under like pleading in the courts of the State within which the Circuit Court is held. 3. Under the Nebraska Code a denial in the an swer of each and every allegation in the petition puts in issue every such allegation, and in a suit in the U. S. Circuit Court for the District of Nebraska, such a general denial in the answer puts in issue the allegation in the petition of the citizenship of the parties, and such allegation must be proved by the plaintiff, and where there is no proof or finding upon this essential point, on which the jurisdiction of the Circuit Court depended, the judgment must be reversed with costs for want of jurisdiction in said court, and the case remanded to that court, which may either dismiss the action for want of jurisdiction or set aside the verdict and permit the plaintiff to offer evidence of the citizenship of the par bridge across it, regardless of the citizenship of the partics. Sunflower River Packet Co. v. Georgia Pac. R. Co. 39 Fed. Rep. 229. Under Act of Congress, 1875, giving circuit courts Jurisdiction in all cases "arising under the Constitution or laws of the United States," such courts have jurisdiction of a bill for an injunction to restrain a railroad company from extending its road across land belonging to the United States, and to which the complainant claims to have an equitable title as a pre-emptor, where the question in dispute is whether complainant has a right to the land under the laws of the United States. Jones v. Florida C. & P. R. Co. 41 Fed. Rep. 70. Under the Act of June 7, 1878, repealing the Bankrupt Law, and the Act of March 3, 1887, amending the Act of 1875, a Circuit Court has jurisdiction of a suit by an assignee in bankruptcy to prevent a person from establishing on the bankrupt's property, by proceedings in a state court, the lien of a fraudulent judgment obtained in 1869. Lehman v. La Forge, 42 Fed. Rep. 493. A Federal court has jurisdiction of a suit to set aside its former decree for being fraudulently obtained, although by reason of present citizenship a purely original bill between the parties could not be maintained, as such a suit is but a continuation of the former controversy. Foster v. Mansfield, C. & L. M. R. Co. 36 Fed. Rep. 627. An original bill and a cross bill thereto constitute but one cause; and when a Circuit Court has jurisdiction of the former by reason of the citizenship of the parties thereto, it has jurisdiction of the latter without reference to such citizenship. First Nat. Bank of Salem v. Salem Capital Flour Mills Co. 31 Fed. Rep. 580; Contra, Vannerson v. Leverett, 37 Fed. Rep. 376. Under the provisions of the Act of March 3, 1887, an action may be maintained in the Circuit Court of the United States against a citizen of another Statement by Mr. Justice Gray: In this action, brought June 11, 1887, by Lewis against Roberts in the Circuit Court of the United States for the District of Nebraska, the petition was as follows: "Comes now the said plaintiff and shows and represents unto this honorable court that he is a resident of the city of Milwaukee in the State of Wisconsin, and a citizen of the said State of Wisconsin, and that the defendant is a resident of the city of Lincoln in the State of Nebraska, and a citizen of the said [654] State of Nebraska, and that the matters and things herein in controversy exceed the sum and value of two thousand dollars, exclusive of interest and costs. "2d. The plaintiff further complains of the defendant, for that plaintiff has a legal estate in and is entitled to the immediate possession of the following described property, to wit: lots number one, two, three, four, five, and six, all in block number forty-one, in Dawson's addition to South Lincoln, in Lancaster county, Nebraska, and that said defendant has ever since the 11th day of April, 1887, unlawfully kept and still keeps the plaintiff out of possession thereof. "Wherefore the plaintiff prays that he may have judgment for the delivery of the possession of said premises to him, and for the costs of this action." The defendant filed the following amended answer : "1. The above named defendant, for an State. Short v. Chicago, M. & St. P. R. Co. 33 Fed. Rep. 114. Section 1 of the Act of March 3, 1875, as amended in 1887 and 1888, contains the clause: "But where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." Under this provision a Circuit Court has not jurisdiction of a suit by two plaintiffs, one of whom is a resident of the district in which suit is brought and one of whom is resident of another State, against a defendant who is a resident of another State. All the plaintiffs must be residents of the district in which suit is brought in order that it may be maintained. Smith v. Lyon, 133 U. S. 315 (33: 635), same case in lower court, Smith v. Lyon, 38 Fed. Rep. 53. The provisions of the Act of March 3, 1887, section 1, regarding the place of bringing suit by original process in the circuit courts of the United States do not apply in determining the question of jurisdiction on an application for the removal of a cause from the state court. Fales v. Chicago, M. & St. P. R. Co. 32 Fed. Rep. 673. Where the action is oue of which the circuit courts have jurisdiction under the Act of March 3, 1887, section 1, the controversy being one between a citizen of the State and a foreign subject, and the amount in dispute exceeding $2,000, the provision of that section in relation to the district where the action shall be brought does not affect the question of jurisdiction, and the privilege it accords to defendant is waived by filing a general appearance and answering to the merits. Norris v. Atlas SS. Co. 37 Fed. Rep. 279. Under the Act of Aug. 13, 1888, a Federal Circuit Court has no jurisdiction of a suit by citizens of the district of suit against an alien temporarily in the district. Meyer v. Herrera, 41 Fed. Rep. 65. Where in a suit it appears that many of the de amended answer to the plaintiff's petition, | England, and by him on December 15, 1871, "2. Defendant, further answering, denies each and every allegation in said petition contained." to the defendant, who has ever since been in the peaceful occupation and control of the same. The premises were conveyed on September 15, 1879, by warranty deed by Jacob Dawson's children to Wheeler and Burr, by them on April 27, 1880, to Ezekiel Giles, and by him in May, 1887, to the plaintiff. The jury found that, if the court should be of opinion that under the will Editha J. Dawson took only a estate determinable upon her marriage, then the plaintiff at the commencement of the action was seized in fee of the premises, and entitled to the immedi ate possession thereof, and should recover of the defendant nominal damages; but if the court should be of opinion that under the will Editha J. Dawson took an estate absolutely in fee, then they found for the defendant. The parties stipulated in writing that the value of the premises in controversy exceeded $5,000; and the case was tried by a jury, who, by direction of the court, returned a special verdict, finding the following facts: Jacob Dawson died seised in fee of the premises leaving a widow and five children; and by his last will, dated May 10, 1869, and duly admitted to probate in Lancaster county, Nebraska, made the following devise and bequest: "To my beloved wife, Editha J. Dawson, I give and bequeath all my estate, real and personal, of which I may die seised, the same to be and remain hers, with full power, rights and authority to dispose of the same as to her shall seem meet and proper so long as she shall remain my widow, upon the express condition, however, that if she should marry again, then it is my will that all of the estate herein bequeathed, or Jurisdiction must appear affirmatively on the whatever may remain, shall go to my surface of the record, an omission in this respect viving children, share and share alike." On cannot be waived or cured by consent. [655] December 14, 1879, Editha J. Dawson mar- Metcalf v. Watertown, 126 U. S. 586 (32:543); ried Henry M. Pickering, The premises Parker v. Ormsby, 141 U. S. 81 (35: 654). were conveyed on March 15, 1870, by warranty deed by Editha J. Dawson to one fendants are from the same State, with conflicting Under the Act of March 3, 1887, when the juris- Where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit may be brought in the district of the residence of either the plaintiff or defendant. Bank of Winona v. Avery, 34 Fed. Rep. 81. The Circuit Court gave judgment for the plaintiff upon the special verdict; and the defendant sued out this writ of error. Messrs. N. S. Harwood and John H. Ames, for plaintiff in error: In Nebraska an answer consisting of a gen. eral denial of each and every allegation in the be brought "in the district of the residence of the plaintiff or defendant, "an action by a non-resident against a partnership, whose members are residents of different states and districts, may be brought in the district of the residence of one of them. Rawitzer v. Wyatt, 40 Fed. Rep. 609. If on motion to dismiss for want of jurisdiction it appears that the jurisdiction is dependent wholly on adverse citizenship, and that one of the defendants lives in the district where suit is brought, and the other defendant and the plaintiff live in different districts, the action will be dismissed as to the non-resident defendant but not as to the resident defendant. Bensinger S. A. C. Register Co. v. National Cash Register Co. 42 Fed. Rep. 81. A general appearance by the defendant in an action as a waiver of the objection that the service of summons on him was irregular, because not made in the district of which he was an inhabitant, as required by Act of March 3, 1887. Foote v. Massachu Where the jurisdiction depends solely on the citi-setts Ben. Asso. of Boston, 39 Fed. Rep. 23. Where the administrator and defendant are citizens of different states, the action may be brought in a Federal court though the deceased was a citizen of the same State with defendant, where his widow and children still reside. Harper v. Norfolk & W. R. Co. 36 Fed. Rep. 102. Under the residence clauses of the Act of March 8, 1887, a suit to enjoin the collection of a tax, on the ground that it violates the United States Constitution, must be dismissed as to such defendants as are non-resident of the district in which it is brought. United States Exp. Co. v. Allen, 39 Fed. Rep. 712. Under the Act of 1888, providing that, when an action is between citizens of different states, it may ant to object to being sued in a district of which he is not an inhabitant is personal to himself, and he may insist upon or waive that right as he chooses. Purcell v. British Land & Mortg. Co. 43 Fed. Rep. 465. Acceptance of service being merely equivalent to personal service in the district does not prevent a defendant from moving to dismiss the suit because brought in a district in which he does not reside. United States v. Loughrey, 43 Fed. Rep. 449. Where a bill shows on its face that defendant is not an inhabitant of the district wherein the suit is brought, defendant may assert his objection to being served out of the district of his residence by demurrer as well as by motion to dismiss. MillerMagee Co. v. Carpenter, 34 Fed. Rep. 433; Reinstadler v. Reeves, 33 Fed. Rep. 308. petition, places in issue all the allegations con- Donovan v. Fowler, 17 Neb. 247; Hassett v. In Bliss, Code Pleading, paragraph 345, it is and was admitted by pleading to the merits But since 1872, when Congress assimilated the rules of pleading, practice, and forms and modes of procedure in actions at law [657] in the courts of the United States to those prevailing in the courts of the several states, all defenses are open to a defendant in the Circuit Court of the United States, under any form of plea, answer or demurrer, which would have been open to him under like pleading in the courts of the State within which the Circuit Court is held. Act of June 1, 1872, chap. 255, 5, 17 Stat. at L. 197; Rev. Stat. § 914; Chemung Canal Bank v. Lowery, 93 U. S. 72 [23: 806]; Glenn v. SumNo plea to the jurisdiction having been inner, 182 U. S. 152 [33: 301]; Central Transp. terposed, it was not necessary for the jury to find the citizenship of the parties. Sweet. Tuttle, 14 N. Y. 465; Gardner v. Clarke, 21 N. Y. 399; Thompson v. Greenwood, 28 Ind. 327; Freeman v. Carpenter, 17 Wis. 126; Dutcher v. Dutcher, 39 Wis. 651. Messrs. J. M. Woolworth and L. C. Burr, for defendant in error: Mr. Justice Gray delivered the opinion of the court: The principal question argued in this case is upon the true construction of the devise of Jacob Dawson to his wife, in view of the conflicting decisions of this court and of the Supreme Court of Nebraska. Giles v. Little, 104 U. S. 291 [26: 745]; Little v. Giles, 25 [656] Neb. 318. See also Little v. Giles, 118 U. S. 596 [80: 269]; Giles v. Little, 134 U. S. 645 [33: 1062]. But a preliminary question to be decided is whether the Circuit Court of the United States appears upon this record to have had any jurisdiction of the case. The petition or declaration alleges in due form that the plaintiff is a citizen of the State of Wisconsin, and the defendant is a citizen of the State of Nebraska; and further, alleges that the plaintiff has a legal estate in and is entitled to the immediate possession of certain lots in Lancaster county in the State of Nebraska, and the defendant has kept and still keeps the plaintiff out of possession thereof; wherefore the plaintiff prays for judgment for delivery of possession of the premises to him. The answer sets up two defenses: 1st. Open and adverse possession of the premises by the defendant for ten years; 2d. A general denial of each and every allegation in the petition. The special verdict finds facts bearing on the merits of the case, but nothing as to the citizenship of the parties. Co. v. Pullman Palace Car Co. 139 U. S. 24, By the Nebraska Code of Civil Procedure, Under this code, as under the code of New Doubtless, so long as the rules of pleading in the courts of the United States remained as at common law, the requisite citizenship of the parties, if duly alleged or apparent in the declaration, could not be denied by the defendant, except by plea in abatement, 21 N. Y. 399; Donovan v. Fowler, 17 Neb. The necessary consequence is that the law in making a record of the location certificate of their lode, it does not lie with them to insist. that their wrongful entry upon the premises during the existence of the Indian reservation operated in their favor against parties who went upon the premises after they had become a part of the public domain, and made a proper location certificate and record thereot, and complied in other particulars with the requirements of the law. material allegations made by the plaintiff and denied by the defendant, must be proved by the plaintiff. The record showing no proof or finding upon this essential point, on which the jurisdiction of the Circuit Court depended, the judgment must be reversed, with costs, for want of jurisdiction in the Circuit Court, and the case remanded to that court which may, in its discretion, either dismiss the action for want of jurisdiction, or set aside the verdict and permit Submitted April 13, 1892. Decided April 25, the plaintiff to offer evidence of the citizenship of the parties. Continental Ins. Co. v. Rhoads, 119 U. S. 237 [30: 380]. Judgment reversed, and case remanded to the Circuit Court for further proceedings in accordance with the opinion of this court. [No. 294.] 1892. IN ERROR to the Supreme Court of the State of Colorado, to review a judgment of that court, affirming the judgment of the District Court in and for San Juan county, Colorado, in favor of defendant, in an action to determine ises situate in said county. Affirmed. JAMES W. KENDALL ET AL., Piffs. in the right of possession to certain mining prem Err., v. THE SAN JUAN SILVER MINING (See S. C. Reporter's ed. 658-605.) Mining claim in Indian lands—laws of Territo1-law of Colorado as to discoverer of a lode il en location is void-recording certificateurongful entry upon Indian reservation. 1. Where a party was in possession of a mining claim on the withdrawal of a reservation caused by a Treaty with the Indians, with the requisite discovery, with surface boundaries sufficiently marked, with a notice of location posted, and with a disclosed vein of ore, he could, by adept ing what had been done and causing a proper record to be made, and performing the amount of labor or making the improvements nece ary to hold the claim, date his rights from that day. Under Rev. Stat. § 2324, the manner of locating mining claims and recording them is subject to the laws of the State or Territory, and the regulations of each mining district, when they are not in conflict with the laws of the United States. 3. Under the Act of Colorado, of February 13, 1874, the discoverer of a lode,must within three months from the date of discovery record his claim in the office of the recorder of the county in which the lode is situated, by a location certificate. 4. Under the Colorado Act of Feb. 13, 1874, a location certificate of a lode claim which shall not contain the name of the lode, the name of the locator, the date of the location, the number of linear feet claimed on each side of the discovery shaft, the general course of the lode, and such description as shall identify the claim with reasonable certainty, is void. 6. Where the reservation of the premises in controversy in Colorado by force of the Indian Treaty was extinguished April 29, 1874, on that date the premises were open to location, aud within three months afterwards the duty rested upon the plaintiffs to record the certificate of the location of their lode, if they desired to preserve any right in it. 6. Where the plaintiffs failed to comply with the NOTE. As to ownership of mines; United States statutes as to; right of support of surface, see note to United States v. Castillero. 17: 448. As to title to water by appropriation; common law rule; rule of mining states, see note to Atchison 1. Peterson, 22: 414, 144 U. S. The facts are stated in the opinion. In June, 1874, when this land was ceded to the government, and by it thrown open to exploration, use and enjoyment by its citizens, these plaintiffs were in possession of the claim, working upon it and developing it and enjoying its fruits, maintaining and adopting tue boundaries they had previously established in every parti ular, occupying it with all the indicia intact to evidence a mining location. They subsequently filed the certificate required in case of an original location. This was sufficient to entitle them to hold this ground a against the defendants. The fact of their re maining in possession, and maintaining and operating this claim, and thereby adopting al that had been done, was just as efficacious as making a new location. The defendants knew just as well as anyone could know that the plaintiffs were there in the enjoyment of this property, and they have sought by straining a technicality to defeat the rights of plaintiffs in this regard. Noonan v. Caledonia Min. Co. 121 U. S. 393 (30: 1051). Messrs. A. T. Britton and A. B. Browne, for defendant in error: The attempted recordation of the "Bear" location in 1872, when the premises were embraced in the Indian reservation, was ineffecual to create any right, and was wholly void. The premises were not open to location; the record was not authorized but prohibited by law. Belk v. Meagher, 101 U. S. 279, 284 (26: 735, 737). Under the law in force when the plaintiffs in error made their attempted location in September, 1872, they were plainly restricted to a surface width of fifty (50) feet. Notwithstanding this limitation, however, they attempted to claim one hundred (100) feet for surface width. Their location in any view was, therefore, manifestly void for the excess width taken beyond this express limitation of the statute. Richmond Min. Co. v. Rose, 114 U. S. 576, 580 (29: 273, 274); Jupiter Min. Co. v. Rodie Consol. Min. Co. 7 Sawy, 56, 107, 11 Fed. Rep. 666. Mr. Justice Field delivered the opinion of the court: the Indians therein named, and for such other friendly tribes or individual Indians as, from The defendant, a corporation organized and time to time, they might be willing, with existing under the laws of Colorado, in the consent of the United States, to admit October, 1880, applied to the proper land among them. And the United States agreed office in that State for a mineral patent for a that no persons except those designated, and [662] lode claim know as the Titusville lode, in such officers, agents, and employés of the San Juan county, which was fifteen hundred government as might be authorized to enter feet in length by three hundred feet in width. upon Indian reservations in discharge of Within the time prescribed by statute, and duties enjoined by law, should ever be perduring the month, the appellants here, Ken-mitted to "pass over, settle upon, or reside dall and others, filed in the same land office in the territory described," except as therein an adverse claim for a portion of the premises, otherwise provided. 15 Stat. at L. 619, of which the defendant desired to obtain a 620. The effect of the Treaty was to exclude patent, asserting a prior and superior right all intrusion for mining or other private purto the same, as part of a lode known as Bear suits upon the territory thus reserved for the lode, which they had discovered on the 3d of Indians. It prohibited any entry of the kind September, 1872, and upon which they had upon the premises, and no interest could be sunk a discovery shaft, and performed the claimed or enforced in disregard of this proseveral acts required to perfect a mineral lo- vision. Not until the withdrawal of the land cation under the laws of the United States from this reservation of the Treaty by a new and the local rules and customs of miners. convention with the Indians and one which Within thirty days thereafter they brought would throw the lands open, could a mining the present action under section 2326 of the location thereon be initiated by the plaintiffs. Revised Statutes, to determine, as between The location of the Bear lode having been the parties, the right of possession to the made whilst the Treaty was in force, was indisputed premises, the issue of a patent for operative to confer any rights upon the plainthe same being dependent upon such de- tiffs. Whatever rights to mining land they termination. In their complaint they allege subsequently possessed upon the original Inthe performance of the labor required and all dian tract were founded upon a new location other acts necessary to preserve the lode from made more than two years after the withforfeiture. That lode, as originally located, drawal of the reservation, and after the Titusextended fifteen hundred feet in length and ville lode had been located by the defendant. one hundred feet on each side of the center Had the plaintiffs, immediately after the of the vein. In October, 1878, the locators withdrawal of the reservation, relocated their filed an additional certificate of location in Bear lode, their position would have been the local land office, claiming one hundred that of original locators. They would then and fifty feet on each side of the center. And have been within the rule in Noonan v. Calethey aver that the Titusville lode, claimed adonia Min. Co., 121 U. S. 393 [30: 1061]. [664] by the defendant corporation, is a junior That rule was this: that where a party was location and includes in length twelve hun-in possession of a mining claim on the withdred feet of the surface ground of the Bear lode, and in width covers more than the south half of the surface ground for the twelve hundred feet. The defendant in its answer denies that the ground in controversy comprised part of the unappropriated public domain of the United States and that it was open to location on the 3d day of September, 1872, as set forth by the plaintiffs, and alleges that at that date the ground embraced a portion of a certain tract of land which, by Treaty between the United States and certain confederated bands of the Ute Indians in Colorado, concluded March 2, 1868, and proclaimed on the 6th of November of the same year, had been reserved for the use and occupancy of the Indians, and that the Indian title to the tract was not extinguished until March, 1874. 15 Stat. [663] at L. 619. The answer also alleges that the Titusville lode claim was located on the 29th day of August, 1874; that all acts were done ecessary to constitute a valid location of the premises; and that the legal title to the lode and the right to its possession, had by various conveyances from the original locators become vested in the defendants; and it prays judgment therefor. By the terms of the Treaty mentioned a tract of country, which included the mining property in question, was set apart for the absolute and undisturbed use and occupation of drawal of a reservation caused by a Treaty Whatever rights, therefore, the plaintiffs The plaintiffs now seek, by their writ of error, to recover the residue of the Titusville lode, insisting that under the decision in Noonan v. Caledonia Min. Co., they have a |