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a valid location of a mining claim, the area | valuable for placer mining, and this last seco becomes segregated from the public domain, tion is the provision which Congress has and the property of the locator.” Nor is made for such a case. That a lode or vein, this "exclusive right of possession and en- descending as it often does to great depths, joyment" limited to the surface, nor even may contain more mineral than can be obto the single vein whose discovery antedates tained from the loose deposits which are seand is the basis of the location. It extends cured by placer mining within the same lim(so reads the section) to "all veins, lodes, its of surface area, naturally gives to the and ledges throughout their entire depth, surface area a higher value in the one case the top or apex of which lies inside of such than the other, and that Congress appreciatsurface lines extended downward vertical-ed this difference is shown by the different ly." In other words, the entire body of prices charged for the surface under the two ground, together with all veins and lodes conditions. Often the existence of a lode or whose apexes are within that body of ground vein is not disclosed by the placer deposits. becomes subject to an exclusive right of Hence ground may be known to be valuable possession and enjoyment by the locator. and be located for placer mining, and yet And this exclusive right of possession and no one be aware that underneath the sur. enjoyment continues during the entire life face there is a lode or vein of greater value. of the location, or, in the words of Chief A placer location is not a location of lodes Justice Waite, just quoted, while there is or veins underneath the surface, but is sim"a valid and subsisting location of mineral ply a claim of a tract or parcel of ground lands, made and kept up in accordance with for the sake of loose deposits of mineral upthe provisions of the statutes of the United on or near the surface. A lode or vein may States." There is no provision for, no sug. be known to exist at the time of the placer gestion of, a prior termination thereof. location or not known until long after the

By $ 2329, placer claims are subject to en- patent therefor has been issued. There betry and patent "under like circumstances ing no necessary connection between the and conditions, and upon similar proceed- placer and the vein, Congress by the secings, as are provided for vein or lode tion has provided that in an application for claims.” The purpose of this section is ap- a placer patent the applicant shall inparently to place the location of placer clude any vein or lode of which he has posclaims on an equality both in procedure and session, and that if he does not make such rights with lode claims. If there were no inclusion the omission is to be taken* as a * other legislation in respect to placer claims conclusive declaration that he has no right the case before us would present little of possession of such vein or lode. If, howdoubt; but following this are certain proever, no vein or lode within the placer claim visions, those having special bearing on the is known to exist at the time the patent is case before us being found in § 2333. Par- issued, then the patentee takes title to any ties obtaining a patent for a lode claim must which may be subsequently discovered. pay 5 an acre for the surface ground, while While by the statute the right of exclufor a placer claim the government only sive possession and enjoyment is given to a charges $2.50 an acre. By $ 2333 it is pro- locator, whether his location be of a lode vided that one who is in possession of a claim or a placer claim, yet the effect of a placer claim and also of a lode claim in- patent is different. The patent of a lode cluded within the boundaries of the placer claim confirms the original location, with claim shall, on making application for a the right of exclusive possession, and con-, patent, disclose the fact of the lode claim veys title to the tract covered by the locawithin the boundaries of the placer, and up- tion, together with all veins, lodes, and on the issue of the patent payment shall ledges which have their apexes therein, be made accordingly; that if the applica- whereas the patent to the placer claim, tion for the placer claim does not include while confirming the original location and an application for a vein or lode claim conveying title to the placer ground, does known to exist within the boundaries of the not necessarily convey the title to all veins, placer, it shall be construed as a conclusive lodes, and ledges within its area. It makes declaration that the placer claimant has no no difference whether a vein or lode within right of possession of that vein or lode; the boundaries of a lode claim is known or and further, that where the existence of a unknown, for the locator is entitled to the vein or lode within the boundaries of a exclusive possession and enjoyment of all placer claim is not known, the patent for the veins and lodes, and the patent confirms the placer claim shall convey all valuable his title to them. But a patent of a placer mineral and other deposits within its boun. claim will not convey the title to a known daries.

vein or lode within its area unless that vein A mineral lode or vein may have its apex or lode is specifically applied and paid for. within the area of a tract whose surface is It is contended that because a vein or

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lode may have its apex within the limits of The difficulty with the case presented by a placer claim a stranger has a right to go the plaintiff in error is, that under the findupon the claim, and, by sinking shafts or ings of fact, we must take it that the entries otherwise, explore for any such lode or vein, of the locators of these several lode claims and on finding one obtain a title thereto. upon the placer grounds were trespasses, That, with the consent of the owner of the and as a general rule no one can initiate a placer claim, he may enter and make such right by means of a trespass. exploration, and if successful, obtain title Atherton v. Fowler, 96 U. S. 513, 24 L to the vein or lode, cannot be questioned. ed. 732; Trenouth v. San Francisco, 100 U. But can he do so against the will of the S. 251, 25 L. ed. 626; Parcs v.* Victoria Copplacer locator ! If one may do it, others per Min. Co. 160 U. S. 303, 4G L. ed. 436, 16 may, and so the whole surface of the placer Sup. Ct. Rep. 282. See also Cosmos Exbe occupied by strangers seeking to discover ploration Co. v. Gray Eagle Co. 61 L. R. A. veins beneath the surface. Of what value 230, 50 C. C. A. 79, 112 Fed. 4, in which the then would the placer be to the locator I court said (L. R. a. p. 242, C. C. A. p. 93, Placer workings are surface workings, and Fed. p. 17): if the placer locator cannot maintain pos. “No right can be initiated on government session of the surface he cannot continue his land which is in the actual possession of an. workings. And if the surface is open to other by a forcible, fraudulent, or clandesthe entry of whoever seeks to explore for tine entry thereon. Cowell v. Lammers, veins, his possession can be entirely de 10 Sawy. 246, 21 Fed. 200, 202; Nevada stroyed. In this connection it may be well | Sierra Oil Co. v. Home Oil Co. 98 Fed. 674, to notice the last sentence in § 2322. That 680; Hosmer v. Wallace, 97 U. S. 575, 579, section, from which we have just quoted, is 24 L. ed. 1130, 1132; Trenouth v. San Fran the one which gives a locator the right to cisco, 100 U. S. 251, 25 L. ed. 626; Mower v. pursue a vein on its dip outside the vertical Fletcher, 116 U. S. 380, 385, 386, 29 L. ed. side lines of his location. The sentence, 593, 595, 6 Sup. Ct. Rep. 409; Haws v. Vio which is a limitation on such right, reads: toria Copper Min. Co. 160 U. S. 303, 317, 40 “And nothing in this section shall authorize L. ed. 436, 440, 16 Sup. Ct. Rep. 282; the locator or possessor of a vein or lode Nickals v. Winn, 17 Nev. 188, 193, 30 Pac. which extends in its downward course be- 435; McBrowon v. Morris, 59 Cal. 64, 72; yond the vertical lines of his claim to enter | Goodwin v. McCabe, 75 Cal. 584, 588, 17 upon the surface of a claim owned or pos- Pac. 705; Rourke v. McNally, 98 Cal. 291, bessed by another."

35 Pac. 62.” It would seem strange that one owning a If a placer locator is, as we have shown, veir., and having a right in pursuing it to entitled to the exclusive possession of the enter heneath the surface of another's lo- surface, an entry thereon against his will, cation, should be expressly forbidden to for the purpose of prospecting by sinking enter upon that surface, if, at the same shafts or otherwise, is undoubtedly a trestime, one owning no vein, and having no pass, and such a trespass cannot be relied rights beneath the surface, is at liberty to upon to sustain a claim of a right to veins enter upon that surface, and prospect for and lodes. It will not do to say that the veins as yet undiscovered.

right thus claimed is only a right to some We agree with the supreme court of Colo- thing which belongs to the United States, rado as to the law when it says that "one and which will never belong to the placer may not go upon a prior valid placer lo- locator, unless specifically applied and paid cation to prospect for unknown lodes, and for by him, and therefore that he has no get title to lode claims thereafter discovered cause of complaint; for if the claim of the and located in this manner and within the lode locator be sustained it carries, under placer boundaries, unless the placer owner $$ 2320 and 2333, at least 25 feet of the has abandoned his claim, waives the tres surface on each side of the middle of the pass, or, by his conduct, is estopped to con- vein. Further, if there be no prospecting, plain of it.” Perhaps if the placer owner, no vein or lode discovered until after patent, with knowledge of what the prospectors are then the title to all veins and lodes within doing, takes no steps to restrain their work, the area of the placer passes to the placer and certainly if he acquiesces in their patentce, and any subsequent discovery action, he cannot, after they have discovered would enure to his benefit. a vein or lode, assert right to it, for, Again, it is contended that the claims generally, a vein belongs to him who has which the defendant sought to patent were discovered it, and locator permitting lode claims; that the only title set up in the others to search within the limits of his complaint in the adverse suit was a placer placer onght not thereafter to appropriate title, and that a placer claimant has no that which they have discovered by such standing to inaintain an adverse suit scarch.

against lode applications. In support of

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this is cited 2 Lindley on Mines, $ 721, in ditions of the law have been complied with which the author says:

in good faith.” "Where an application for a patent to a In 4 Land Dec. 316, Mr. Justice Lamar, lode within the linits of a placer is made then Secretary of the Interior, said in re by a lode claimant, if the placer claimant spect to this question: asserts any right to the lode, he is neces- “Does the judginent of a court as to sarily called upon to adverse. Where his which of two litigants has the better title claim, however, is placer, pure and simple, to a piece of land bind the commissioner to under which claim he cannot lawfully as- say, without judgment, or contrary to his sert a right to the lode, he has nothing judgment, that the successful litigant has upon which to basc an adverse claim, unless complete title and is entitled to patent the lode is entirely without the placer, and under the law ! The usual result following the controversy is confined to a conflicting a favorable judgment in a court under surface, or the lode claimant secks to $ 2326 of the Revised Statutes (U. S. Comp. acquire more surface than the law permits." Stat. 1901, p. 1430) is, I doubt not, the

We do not think the author's language is issue of patent in due time; but in such to be taken as broadly as counsel contend. case the final passing of title is not on the Under the statutes a lode claim carries with judgment of the court, independent of that it the right to a certain number of acres, of the Commissioner, but is on the judg. and where one is in peaceable possession of ment of the latter pursuant to that of the a valid placer claim, if a stranger forcibly former, and on certain evidence supplemententers upon that claim, discovers and lo- ai to that furnished by the judgment roll. cates a lode claim within its boundaries, “The judgment of the court is, in the and then applies for a patent, surely the language of the law, 'to determine the quesplacer claimant has a right to be heard in tion of the right of possession. It does not deiense of his title to the ground of which go beyond that. When it has determined he has been thus forcibly dispossessed. If which of the parties litigant is entitled to the application for a patent of the lode possession, its office is ended, but title to claim is not adversed it will pass to patent, patent is not yet established. and it may well be doubted whether the “The party thus placed in possession may placer claimant could, after the issue of a 'file a certified copy of the judgment roll patent under such circumstances, maintain with the register and receiver.' But this an equitable suit to have the patentee de- is not all. He may file 'the certificate of clared the holder of the legal title to the the surveyor general that the requisite ground for his benefit. If the placer amount of labor has been performed or imclaimant can be thus deprived of his posses- provements made thereon.' Why file this, sion and title to a part of his ground, he or anything further, if the judgment roll may be in like manner dispossessed of all settles all questions as to title and right to by virtue of many forcible trespasses and patent? Clearly, because the law vests in lode discoveries.

the Commissioner the authority and makes The amount of land embraced in this it his duty to see that the requirements of placer location was about 100 acres, while law relative to entries and granting of the land claimed under the several lode patents thereunder shall lave been complied locations was a little over 35 acres. Can with before the issue of patent. His judg. it be that the placer claimant had no right ment should, therefore, be satisfied before he to be heard in court respecting the claim of is called upon to take final action in any the love claimants to so large a portion of case.

In this case, the judgment of the the placer ground !

court ended the contest between the parties, We must not be understood to hold that, and determined the right of possession. because of the judgment in this adverse suit The judgment roll proves the right of pog.

session only. in favor of the placer claimants, their right

The applicant must still to a patent for the land is settled beyond make the proof required by law to entitle

hiin to patent. the reach of inquiry by the government, or

Branagan v. Dulaney, 2

Land Dec. 744. that the judgment necessarily gives to them proof is a matter for the determination of

The sufficiency of that the lodes in controversy. In 2 Lindley on the Land Department.” Mines, $ 765, the author thus states the

This opinion was cited as an authority by law:

this court in Perego v. Dodge, 163 U. S. 160, “Notwithstanding the judgment of the 168, 41 L. ed. 113, 118, 16 Sup. Ct. Rep. 971. court on the question of the right of pos. See also Aurora Lode v. Bulger Hill and session, it still remains for the Land De. Nugget Gulch P’locer, 23 Land Dec. 95, 103. partment to pass upon the sufficiency of the The Land Office may yet decide against the proofs, to ascertain the character of the validity of the lode locations, and deny all land, and determine whether or no the con. claims of the locators thereto. So, also, it

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may decide against the placer location, and laros-discrimination against railroad set it aside; and in that event all rights companies validity of Texas Johnson resting upon such location will fall with it.

grass statute. Finally, we observe that the existence of placer rights and lode rights within the the imposition upon rallway companies alone, same area seems to have been contemplated

by Tex. Stat. 1901, chap. 117, of the penalty

therein given to contiguous landowners for by Congress, and yet full provision for the

allowing Johnson grass or Russian thistle harmonious enforcement of both rights is to mature and go to seed, does not deny not to be found in the statutes. We do not such railway companies the equal protection wonder at the comment made by Lindley (1

of the law Lindley, 2d. ed. & 167) that "the townsite laws, as they now exist, consist simply of a

[No. 185.) chronological arrangement of past legislation, an aggregation of fragments, a sort Submitted March 17, 1904.

Decided May 2, of 'crazy quilt,' in the sense that they lack

1904. harmonious blending. This may be said truthfully of the general body of the mining IN ERROR to the County Court of Bell Many regulations of the Land De

in partment and decisions of courts find their a judgment enforcing against a railway warrant in an effort to so adjust various company the penalty given to contiguous statutory provisions as to carry out what landowners by the Texas Johnson grass was believed to be the intent of Congress statute, for permitting Johnson grass to and at the same time secure justice to mature and go to seed upon its right of miners and those engaged in exploring for way. Affirmed. mines. If we assume that Congress, recog

The facts are stated in the opinion. nizing the co-existence of lode and placer

Messrs. James Hagerman, T. 8. Miller, rights within the same area, meant that a and J. M. Bryson for plaintiff in error. lode or vein might be secured by a party

No counsel for defendant in error. other than the owner of the placer location within which it is discovered, -providing *Mr. Justice Holmes delivered the opinion his discovery was made without forcible of the court: trespass and dispossession,-it may be that

This is an action to recover a penalty of a court of equity is competent to provide $25,"brought by the owner of a farm conby its decree that the discoverer of the lode, tiguous to the railroad of the plaintiff in within the placer limits, shall be secured in error, on the ground that the latter has althe temporary possession of so much of the lowed Johnson grass to mature and go to ground as will enable him to successfully seed upon its road. The penalty is given work his lode, protecting, at the same time, to contiguous owners by a Texas statute of the rights of the placer locator. But such 1901, chap. 117, directed solely against rail. equitable adjustment of coexisting rights road companies for permitting such grass or cannot be secured in a simple adverse Russian thistle to go to seed upon their action, and it would be, therefore, beyond right of way, subject, however, to the conthe liinits of proper inquiry in this case to dition that the plaintiff has not done the determine the rights which may exist, if, in same thing. The case is brought here on the end, the placer location be sustained and the ground that the statute is contrary to a discovery of the lodes without forcible the 14th Amendment of the Constitution of trespass and dispossession established. the United States. But for tlie present, for the reasons above

It is admitted that Johnson grass is a given, we think the judgment of the Sui- menace to crops, that it is propagated only preme Court of Colorado was right, and it by seed, and that a general regulation of it is affirmed.

for the protection of farming would be valid.

It is adınitted also that legislation may be The CHEF JUSTICE and Mr. Justice directed against a class when any fair White dissent.

ground for the discrimination exists. But it is said that this particular subjection of

railroad companies to a liability not im(194 U. S. 267)

posed on other owners of land on which MISSOURI, KANSAS, & TEXAS RAIL- Johnson grass may grow is so arbitrary as

WAY COMPANY OF TEXAS, Piff. in to amount to a denial of the equal proMrr.,

tection of the laws. There is no dispute

about general principles. The question is CLAY MAY.

whether this case lies on one side or the

other of a line which has to be worked out Constitutional lavo-equal protection of the between cases differing only in degree.

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With regard to the manner in which such: Imunicate fires to adjoining property; 80, a question should be approached, it is although other proprietors are not bound obvious that the legislature is the only to fence their lands, railway companies may judge of the policy of a proposed discrimi: be required to do so to prevent the straying nation. The principle is similar to that of cattle upon their tracks. Upon the same which is established with regard to a de principle gates and guards may be required cision of Congress that certain means are at railway crosings when the same would be necessary and proper to carry out one of its entirely unnccessary at the crossing of express powers. Al’Culloch v. Maryland, 4 ordinary highways. Other discriminating Wheat. 316, 4 L. ed. 579. When a state *regulations made necessary by the peculiar legislature has declared that, in its opinion, business and danger incident to railway policy requires a certain measure, its action transportation may be readily imagined. should not be disturbed by the courts under

In this case, however, the railway is not the 11th Amendment, unless they can

pursued as such, but merely as the proclearly that there is no fair reason for the prietor of certain land alongside its track, law that would not require with equal force and no reason can be conjectured why an its extension to others whom it leaves un obnoxious form of weed growing upon its touched.

land, should be more detrimental than the Approaching the question in this way we

same weed growing upon adjoining lands. feel unable to say that the law before us The railway is not made the sole object of 9 may not have been justified by local* con. the statutory prohibition by reason of the

ditions. It would have been more obvious fact that it is a railway, and the discrimi. ly fair to extend the regulation at least to nation against it seems to be purely arbi. highways. But it may have been found,

trary. The only distinction suggested in for all that we know, that the seed of John support of the ordinance is that the seed of son grass is dropped from the cars in such Johnson grass may be dropped from the quantities as to cause special trouble. It

cars in such quantities as to cause special may be that the neglected strips occupied trouble; but there is not only no evidence of by railroads afford a ground where noxious such fact, but it is highly improbable that weeds especially flourish, and that whereas the seed of a noxious grass of this kind Belf-interest leads the owners of farins to would be carried upon the cars at all. It is keep down pests, the railroad companies also suggested that the self-interest of have done nothing in a matter which concerns their neighbors only. Other reasons

owners of farms to keep down pests of this

kind might be relied upon to prevent their may be imagined. Great constitutional

growth. But this tends merely to show provisions must be administered with caution. Some play must be allowed for be more readily obeyed by private land pro

that if the law were made general, it would the joints of the machine, and it must be

prietors than by the railway. It may be remembered that legislatures are ultimate

that railways are less given to the ob guardians of the liberties and welfare of the

servance of precautions required of them as people in quite as great a degree as the

neighborhood landowners than the procourts. Judgment affirmed.

prietors of individual property, but that Mr. Justice Brewer concurs in the judg. It merely tends to show that if the law were

does not create a distinction in principle. mento

made general the railway companies would Mr. Justice Brown, dissenting:

be oftener prosecuted than other proI am unable to concur in the opinion of prietors. If Johnson grass growing upon the court in this case. While fully con- railway tracks be a nuisance, it is equally ceding that the legislature is the only judge

so when growing upon the other side of the of the policy of a proposed discrimination, line fence, and I think the law should be it is not the only judge of its legality. maile general, to avoid the charge of an

If the land Doubtless great weighit will be given to its arbitrary discrimination. judgment in that regard, and the legislation owned by every corporation were held to will not be held invalid if it be founded this liability, while the land of individuals

were exempt, the discrimination would be upon a real distinction in principle between persons or corporations of the same class. more conspicuously unjust in its appear. Upon this principle spark arresters may be ance, but scarcely more so in its reality required upon locomotives when they are not required upon other smokestacks, be- Mr. Justice White and Mr. Justice cause of their greater liability to com- | MoKenna also dissented.

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