burg, who have contributed either by purchasing scholarships or donations, very much more than has been raised at that place. There is mention made in the act of 1860 and also in the certificates of scholarships of the college being established at Millersburg, but the language used does not import an agreement that it shall permanently remain there; on the contrary, we think it should, as can fairly be interpreted as merely descriptive of the institution. In our opinion, therefore, there exists no contract or undertaking, express or implied, for the continuance of the institution at Millersburg any longer than its useful and successful operation requires."

It results from these views that the decree below does not give effect to an act of the General Assembly of Kentucky that is repugnant to the Constitution of the United States.

The decree must, therefore, be affirmed. It is so ordered.

JOHN DOWER ET AL., Piffs. in Err.,

v.

WILLIAM G. RICHARDS ET AL., Exrs

(See S. C. Reporter's ed. 658-673.)

Town site patent-review of question of factwrit of error and appeal-judgments of circuit court-review of state judgment juris diction of this court-Federal question-independent ground-effect of evidence-action at law-when judgment affirmed.

6.

7.

facts are tried together by the judge without a jury.

The only appellate Jurisdiction conferred by Congress upon this court to review the judgments or decrees, at law or in equity, of the highest court of a state, is by writ of error.

A writ of error to review a judgment or decree of a state court can be sustained only when the decision of the state court is against a right claimed under the constitution and laws of the United States.

8. If the decision of the state court rests on an independent ground of law, not involving any Federal question, this court has no jurisdiction. 9. When the question decided by the state court is not merely of the weight or sufficiency of the evidence to prove a fact, but of the competency and legal effect of the evidence as bearing upon a question of Federal law, the decision may be reviewed by this court.

10. This court, in an action at law, at least, has no jurisdiction to review the decision of the highest court of a state upon a pure question of fact, although a Federal question would or would not be presented according to the way in which the question of fact was decided.

11. In an action of ejectment, which was submitted to the supreme court of the state, according to the local practice, upon findings of fact and a statement of evidence by an inferior court of the state, this court cannot review the decision of the state court upon the question of fact whether the ledge, at the time when the town site patent took effect, was known to be valuable for mining purposes; and if the only question of Federal law in the case has been rightly decided by that court, its judgment will be affirmed. [No. 178.]

Feb. 5, 1894.

valuable for mining purposes, the fact that they have once been valuable, or are afterwards discovered to be still valuable, for such purposes, does not defeat or impair the title of persons claiming under the town site patent. 2. To review the decision of the state court upon the question of fact is not within the jurisdiction

of this court.

8. A writ of error, brings up matter of law only: an appeal, unless expressly restricted, brings up both law and fact.

Judgments of the United States circuit court in actions at law are reviewable by writ of error only.

6. Upon a writ of error, this court cannot review a decision of a question of fact, even where, by

the local practice of the state, the law and the

NOTE.-As to jurisdiction in the United States SuDreme Court, where Federal question arises, or where are drawn in question statutes, treaty, or Constitution, see notes to Martin v. Hunter, 4: 97, Matthews v. Zane, 2: 654, and Williams v. Norris, 6: 571.

As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state constitution; to revise decrees of state courts as to construction of state laws, see note to Hart v. Lamphire, 7: 679, and to Commercial Bank of Cincinnati v. Buckingham, 12:169.

ERROR to the Supreme Court of the

I State of California, to review a judgment of that court, affirming a judgment of the superior court for the county of Nevada, in that state, in favor of the plaintiffs, William G. Richards et al., executors of Philip Richards, against John Dower et al., defendants, for the recovery of the possession of two lots in the city of Nevada, of which said Richards, in his lifetime, was the owner. Affirmed. See same case below, 81 Cal. 44. The facts are stated in the opinion. Mr. H. L. Gear, for plaintiffs in error: Grants and reservations by a government are to be construed favorably to the government.

Bartram v. Central Turnp. Co. 25 Cal. 283; Spring Valley Water Works v. San Francisco, 52 Cal. 112; Charles River Bridge Proprs. v. Warren Bridge Proprs. 36 U. S. 11 Pet. 420 (9: 773); Dubuque & P. R. Co. v. Litchfield, 64 U. S. 23 How. 66 (16: 500).

The reservation of a known mine is not synonymous with and does not require a mining location.

Iron Silver Min. Co. v. Mike & S. Gold & S. Min. Co. 143 U. S. 394 (36: 201); Sul livan v. Iron Silver Min. Co. 143 U. S. 431 (36: 214).

Co. 37: 267.

Actual dominion conferred a right of pos

session, which would prevail as against one not entering under a better title.

Minturn v. Burr, 16 Cal. 109; Coryell v. Cain, 16 Cal. 573; Lawrence v. Fulton, 19 Cal. 690; Shelby v. Houston, 38 Cal. 411; Gray v. Collins, 42 Cal. 157; Goodrich v. Landignam, 46 Cal. 601; Funk v. Sterrett, 59 Cal. 614. Abandonment is immaterial, there being a known mine not worked out.

Deffeback v. Hawke, 115 U. S. 392 (29: 423); Mullan v. United States, 118 U. S. 271 (30: 170); Steel v. St. Louis Smelt. & Ref. Co. 106 U. S. 447 (27: 226; Reynolds v. Iron Silver Min. Co. 116 U. S. 687 (29: 774).

Mr. Preston E. Simonds for defendants in error.

Mr. Justice Gray delivered the opinion of

the court:

This was an action of ejectment, brought November 15, 1887, by the executors of Philip Richards against Harriet Dower and others, in the superior court for the county of Nevada in the state of California, to recover possession of two lots in the city of Nevada in that county, which the complaint alleged that Richards in his lifetime was the owner and in possession of.

The defendants, in their answer, alleged that Harriet Dower, of whom the other defend ants were servants, was the owner and in possession and entitled to the possession of a quartz ledge and mine, called the Wagner ledge, situated partly upon and crossing the lots de manded; that Richards had no other right of possession than under a town site patent, granted by the United States to the city of Nevada in 1869; that the ledge was known to be a gold bearing ledge, and was held and worked as such long prior and subsequent to that patent, and was by the laws of the United States excepted from that patent; and that Harriet Dower had located the ledge, and was engaged in working it, including three hundred feet on either side thereof, under those laws. The laws relied on by the defendants were the acts of July 26, 1866, chap. 262; March 2, 1867, chap. 177; 14 Stat. at L. 251, 541; June 8, 1868, chap. 53; 15 Stat. at L. 67; May 10, 1872, chap. 152; 17 Stat. at L. 91; Rev. Stat. § 2392.

660] *A jury trial was waived, and the case submitted to the superior court, which made findings of fact, in substance as follows: A town site patent for a tract including the two lots demanded was issued July 1, 1869, by the United States to the city of Nevada, which, before May 1, 1887, conveyed all its title in these lots to Richards, and that title was now vested in the plaintiffs as his executors. Be fore the issue of that patent, the Wagner ledge was known to exist as a gold bearing quartz lode, but had never been located or marked out; and there was no proof that any local mining rules were in force in that district. For many years before 1869, it had been profitably worked, and many tons of gold bearing rock extracted from it, by persons who were trespassers upon the public domain, and were not shown to have had more than a mere possessio pedis of certain shafts, tunnels and dumps. In the winter of 1868-69, work on the ledge was abandoned, and no work was afterwards

done by those persons, and the defendants did not claim under them. In 1884, Harriet Dow er, being a citizen of the United States and qualified to make a mining location, attempted to make a quartz mining location upon the ledge, within the lots demanded, which in manner and form complied with the laws of the United States in respect to mining loca tions; and by virtue of her location she claimed the ledge with three hundred feet on each side thereof, and since did annual work thereon as required by those laws, excavated the soil, sunk shafts, erected buildings, and piled earth, sand and debris across the surface of the lots. For more than a year before her attempted location, no annual work had been done by any one upon the ledge. On May 1, 1887, Richards was the owner and in possession and entitled to the possession of the lots, and the defendants wrongfully and unlawfully ejected him from the part claimed by them, and ever since wrongfully and unlawfully withheld the possession thereof from him and his executors.

Upon the facts so found, the court decided, as matter of law, that the plaintiffs were owners and entitled to the possession of the lots; that no part of them was subject to location as a mining claim at the date of Harriet Dower's attempted location; *that the whole of 661 these lots passed to Richards by the town site patent and the subsequent conveyance; and that the plaintiffs were entitled to judgment against the defendants for the restitution of the part claimed by the latter, and for costs; and gave judgment for the plaintiffs accordingly. Upon a statement of the evidence, agreed to in writing by counsel, and certified by the judge, a motion for a new trial was made and denied. From the judgment for the plaintiffs, and from the order denying a new trial, the defendants, in accordance with the state practice, appealed to the supreme court of the state.

That court, as stated in its opinion filed in the case, and reported in Richards v. Dower, 81 Cal. 44, affirmed the judgment upon the following grounds: Upon the facts found and the evidence stated in the record before that court, it decided, as matter of fact, that before 1869 a gold bearing quartz ledge was known to exist and had been profitably worked within the limits of these lots, but had never been located or marked out; that in the winter of 1868-69 all work on the ledge was abandoned, and no work was afterwards done there until one of the defendants in 1884 made the location under which they claimed; that from the time when work was so abandoned until July 1, 1869, when the town site patent was granted, the portion of the ledge included within the boundaries of these lots was regarded as worked out, and as of no further value for mining purposes, and was not known to be valuable for mining purposes at the date of that patent, nor discovered to be so before the plaintiffs and their predecessors occupied and improved the lots for the purpose of residence under the town site patent. Having decided that to be the state of facts at the time when the town site patent took effect—and assuming that the provision of the Act of March 2, 1867, that no title should be acquired by a town site patent "to any mine of gold, silver, cinnabar, or copper," was not repealed by the provision

In Republican River Bridge Co. v. Kansas Pac. R. Co. (decided a week later) in an action at law concerning the title to real estate, in which each party claimed under a grant from Congress, a district court of the state of Kansas, to which the case had been submitted without the intervention of a jury, made findings of fact, upon which it declared the law to be for the defendant; its judgment was affirmed by the supreme court of the state, and the plaintiff sued out a writ of error from this court. Mr. Justice Miller, in delivering the opinion, said: "The finding by the district court was received by the supreme court of the state as conclusive as to all facts in issue, and it is equally conclusive upon us. Where a right is set up under an Act of Congress in a state court, any matter of law found in the record, decided by the highest court of the state, bearing on the right so set up under the Act of Congress, can be re-examined here. In chancery cases, or in any other class of cases where all the evidence becomes part of the record in the highest court of the state, the same record being brought here, this court can review the decision of that court on both the law and the fact, so far as may be necessary to determine the validity of the right set up under 671]*the Act of Congress. But in cases where the facts are submitted to a jury, and are passed upon by the verdict, in a common law action, this court has the same inability to review those facts in a case coming from a state court, that it has in a case coming from a circuit court of the United States. This conclusiveness of the facts found extends to the finding by a state court to whom they have been submitted by waiving a jury, or to a referee, where they are so held by state laws, as well as to the verdict of a jury." And Merced Min. Co. v. Boggs and Crary v. Devlin, above cited, were referred to as supporting this conclusion. 92 U. S. 315-317 [23: 515, 516].

Whether the suggestion in that opinion, as to the power of this court in chancery cases to review the decision of a state court on both the law and the fact, is to be limited to cases in which the decree of that court is general upon the whole record, without specifically passing upon any question of fact; and whether the suggestion, especially if more broadly construed, can be reconciled with the earlier opinions of this court, already cited, upon writs of 810

In Martin v. Marks (1877) upon a writ of error to the supreme court of Louisiana in an action in the nature of ejectment, Mr. Justice Miller, speaking for this court, said that the question whether a selection of swamp lands had in fact been filed by the surveyor general of Louisiana in the General Land Office was "not of that Federal character which authorizes us to review the decision of the supreme court of Louisiana upon it." 97 U. S. 345, 348 [24: 940, 941].

In Kenney v. Effinger (1885) this court dismissed a writ of error to the supreme court of appeals of the state of Virginia, for reasons stated in the opinion delivered by Mr. Justice Field as follows: "The writ of error brought by the trustee raises no Federal question which we can consider. Whether the bond of Effinger was or was not executed with reference to Confederate notes is a question of fact for the state court, and not one of law for this court.' 115 U. S. 577 [29: 498].

*In Quimby v. Boyd (1888) in which va-[672 rious errors were assigned in a judgment of the supreme court of the state of Colorado between two adverse claimants of a lode, this court, speaking by the present Chief Justice, dismissed the writ of error for want of jurisdiction, because some of the objections made in this court had not been taken below, and "the other alleged errors involved questions either of fact, or of state and not of Federal law." 128 U. S. 488, 489 [32: 502, 503].

In California Powder Works v. Davis, ante, p. 206, in which each party to a suit to quiet title claimed title claimed under a patent from the United States confirming a Mexican grant, and the judgment of the supreme court of California rested on the proposition of fact that the grant under which the plaintiff in error deraigned title was simulated and fraudulent, this court dismissed the writ of error for want of jurisdiction.

The case now before us is an action of ejectment, which was submitted to the supreme court of the same state, according to the local practice upon findings of fact and a statement of evidence by an inferior court of the state. From the foregoing reasons and authorities, it follows that this court cannot review the decision of the state court upon the question of fact whether the ledge, at the time when the town site patent took effect, was known to be valuable for mining purpose; and the only question of Federal law in the case having been rightly decided by that court, its judgment is affirmed.

Mr. Justice Harlan concurred in the judg ment of affirmance, but not in all the reasoning of the opinion.

151 U. S

'N ERROR to the Circuit Court of the Unit

JOHN W. MARTIN, Piff. in Err.,

(See "Martin's Admr. v. Baltimore & O. R. Co." 8.

C. Reporter's ed. 673-710.)

Non-resident, who is-removal of suit from state to Federal court-when petition for removal must be filed-filing too late-objection may be waived-amendment-personal representa tice of deceased party-cannot maintain ac tion for personal injury-aismissal of suit.

1. Defendant, in order to be a nonresident of a state within the meaning of the Act of March 3, 1887, chap. 373, must be either a citizen of another state, or a corporation created by the laws of another state.

2. A railroad corporation of one state, which is also created a corporation of another state, cannot remove into the circuit court of the United States a suit brought against it in a court of the latter state by a citizen of that state.

3. A railroad corporation of one state, which carries on business in another state by the license of the latter state, can remove into the circuit court of the United States a suit brought against it in a court of the latter state by a citizen of that

for removal.

8. The personal representatives of a deceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action, on account of which the suit was brought, is one that survives by law.

9. In West Virginia, no action for personal injury

can be maintained by the executor or administrator of the person to whom the wrong was done, except for a wrongful act, neglect or default causing death.

10. Where in an action for personal injuries the judgment was against the plaintiff, and he has died since the action was brought to this court by writ of error, the writ of error will be dis

missed.

[No. 67.]

to review a judgment in favor of defendant, The Baltimore & Ohio Railroad Company, in a suit brought by John W. Martin, plaintiff, against said company, to recover damages for personal injuries caused to plaintiff by defendant's negligence. At the present term of this court, the plaintiff's death was suggested, and Gerling, his administrator, appointed by the county court of Berkeley county, in West Virginia, came in to prosecute in his stead, and defendant moved to dismiss the writ of error.

Dismissed.

The facts are stated in the opinion.
Mr. Daniel B. Lucas, for plaintiff in

error:

The application for removal was not made in time.

Ex parte Pennsylvania Co. 137 U. S. 451 (34: 733); Fisk v. Henarie, 142 U. S. 459 (35: 1080); Wyche v. Macklin, 2 Rand. (Va.) 426; Linton v. Ballard, 3 W. Va. 582; Delaplain v. Arm strong, 21 W. Va. 211, 219.

The Baltimore & Ohio Railroad Company, as to its franchises and operations in West Virginia, was a "citizen" of that state, and as such incapacitated to remove a case instituted in her courts by another citizen thereof.

Ohio & M. R. Co. v. Wheeler, 66 U. S. 1 Black, 286 (17: 130); Chicago & N. W. R. Co. v. Whitton, 80 U. S. 13 Wall. 270 (20: 571); Memphis &C. R. Co. v. Alabama, 107 U. S. 581 (27: 518); Baltimore & O. R. Co. v. Harris, 79 U. S. 12 Wall. 82 (20: 358): Baltimore & O. R. Co. v. Gallahue, 12 Gratt. 658, 65 Am. Dec. 254; Goshorn v. Ohio County Suprs. 1 W. Va. 308; Baltimore & O. R. Co. v. Marshall County Suprs. 3 W. Va. 319; Clark v. Barnard, 108 U. S. 436 (27: 780); Stone v. Farmers Loan & T. Co. 116 U. S. 307 (29: 636); Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. 118 U. S. 295 (30: 87); Baltimore & O. R. Co. v. Pittsburg, W. & K. R. Co. 17 W. Va. 812; Henen v. Baltimore & O. R. Co. 17 W. Va. 881; Quarrier v. Baltimore & O. R. Co. 20 W. Va.

424.

Mr. John K. Cowen, for defendant in error: The very broad distinction should be observed and maintained between corporations which are chartered by one state and afterward permitted by license to come into other states and exercise corporate franchises, and corporations which are chartered by two or more

states.

In the first class, although the condition upon which the corporation is allowed to exercise its franchise in the foreign state may be that it shall be amenable to all the laws of the state and be liable to suit therein, yet it is still beld to be a citizen of the state creating it, and may, if sued in the foreign state, by a resident

NOTE. As to jurisdiction of United States circuit court depending on parties and residence, see note to Emory v. Greenough, 1: 640.

As to colorable conveyance to enable suit to be brought; motive of transfer; when no objection; cou

pons; resulence of assignor, see note to M'Donald v. Smalley, 7: 287.

As to removal of causes, under Act of 1875; citizenship, see note to Meyer v. Delaware R. Const. Co. 25: 593.

court.

Baltimore & O. R. Co. v. Harris, 79 U. S. 12 Wall. 65 (20: 354); Callahan v. Louisville & N. R. Co. 11 Fed. Rep. 537; Williams v. Missouri, K. & T. R. Co. 3 Dill. 267; Pennsylvania R Co. v. St. Louis, A. & T. H. R. Co. 118 U. S. 295 (30: 87); Goodlett v. Louisville & N. R. Co. 122 U. S. 391 (30: 1230).

In the second class, as the corporation is chartered by both states, it cannot, when sued