*267 1904. witness for the prosecution, and had been | Submitted April 21, 1904. Decided May 2, once committed to jail without bail, and his absence was, therefore, not within any rec ognized exceptions to the general rule pre- APPEAL from the United States Circuit scribed in the Constitution. See same case below, 51 C. C. A. 530. 113 Fed. 900. Court of Appeals for the Ninth Cir These are the cases to which our atten- cuit to review a judgment which affirmed a tion has been called, and it is manifest judgment of the Circuit Court for the Disthere is nothing in them opposed to our trict of Montana, enjoining the further pros judgment in this case. They are all cases ecution by the owner of a lode mining claim arising in the Federal courts, with one ex- of a horizontal tunnel from his claim into ception (Murray v. Louisiana) and in that an adjoining patented lode claim, for the case the question was left untouched. In purpose of reaching a vein in its dip through the other cases they were subject to the pro- the adjoining claim. Affirmed. vision of the Federal Constitution assuring the accused the right to be confronted with the witnesses against him. But in not one of those cases was it held that, under facts Statement by Mr. Justice Brewer: This was a suit brought by the appellee such as were proved in this case, there would have been a violation of the Constitution in (hereinafter called the Montana company) admitting the deposition in evidence. against the appellants (hereinafter called the cases admit some exceptions to the gen- of the United States for the district of Monthe St. Louis company) in the circuit court eral rule. What those exceptions may be is a question for the state courts, in prose-ther prosecution of a tunnel. The facts were tana, for an injunction restraining the furcutions therein, under the rule as already stated. The exceptions alleged in this case has not been denied by this court heretofore. All We are unable to see that any applicable provision of the Federal Constitution has been violated by the judgment in this case, and it is, therefore, affirmed. Mr. Justice Harlan dissented. (194 U. S. 235) Montana company was the owner and in posagreed upon, and are substantially that the session of the Nine Hour lode mining claim under a patent from the United States, on a location made under the mining acts of the St. Louis company was the owner of 1872 and acts amendatory thereof; that the St. Louis lode mining claim, holding the same under a similar title. In the St. Louis claim is a vein other than the discovery vein, having its apex within the surface limits of the St. Louis claim, but on its dip passing ST. LOUIS MINING & MILLING COM-out of the side line of the St. Louis claim PANY OF MONTANA and William May ger, Appts., v. MONTANA MINING COMPANY, Limited. into the Nine Hour claim. The tunnel was 260 feet underground, running from the St. Louis into the Nine Hour claim and for the purpose of reaching the vein on its descent through the latter. It was run horiMining claims apexing veins right to tun-zontally through country rock, and between nel to reach vein on its dip through adjoining patented claim. The right of the owner to pursue a vein apex ing within the surface boundaries of his lode mining claim on its dip downward outside the vertical side lines of such claim, which is given by U. S. Rev. Stat. § 2322 (U. S. Comp. Stat. 1901, p. 1425), cannot be deemed to include the right to run a horizontal tunnel from his claim into an adjoining patented lode claim, for the purpose of reaching the vein in its descent through such adjoining claim, in view of the provisions of 2319 (U. S. Comp. Stat. 1901, p. 1424), that all valuable mineral deposits in lands belonging to the United States are open to exploration and purchase, and the lands in which they are found to occupation and purchase, and of § 2325 (U. S. Comp. Stat. 1901, p. 1429), that a patent for any land claimed and located for valuable deposits may be obtained when properly claimed and located. [No. 250.] the east line of the St. Louis claim and the Mr. W. E. Cullen for appellee. Mr. Justice Brewer delivered the opinion of the court: The situation and the question can be *238 *237 "In other words, under the old law he located the lode. Under the new, he must locate a piece of land containing the top, or apex, of the lode. While the vein is still the principal thing, in that it is for the sake of the vein that the location is made, the location must be of a piece of land including the top, or apex of the vein." And in vol. 2 (§ 780): easily presented to the mind by considering | Any person having claimed and 18-' the significant lines as lines of a right-cated a piece of land for such purposes angled triangle; the vein descending on its shall thereupon be entitled to a patdip being the hypothenuse, the tunnel the ent for the land." In a subsequent part of base line, and the boundary between the two the same section it is provided that the apclaims the side line of the triangle. The St. plicant shall pay $5 per acre. Appellants Louis company, being the owner of the vein, rely upon the clause heretofore quoted from may pursue and appropriate that vein on § 2322 as a limitation upon the full extent its course downward, although it extends of the grant indicated by these provisions. outside the vertical side lines of its claim But this limitation operates only indirectly and beneath the surface of the Nine Hour and by virtue of the grant to another loca lode claim. Such is the plain language of tor to pursue a vein apexing within his sur§ 2322, Rev. Stat. (U. S. Comp. Stat. 1901, face boundaries on its dip downward p. 1425) which grants to locators "the ex- through some side line into the ground emclusive right of possession and enjoyment of braced within the patent. It withdraws all the surface included within the lines of from the grant made by the patent only such their locations, and of all veins, lodes, and veins as others own and have a right to ledges throughout their entire depth, the top pursue. As said by Lindley (1 Lindley, or apex of which lies inside of such surface Mines, 2d ed. § 71): lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations." In other words, it has a right to the hypothenuse of the triangle. May it also occupy and use the base line? Is it, in pursuing and appropriating this vein, confined to work in or upon the vein, or is it at liberty to enter upon and appropriate other portions of the Nine Hour ground in order that it may more conveniently reach and work the vein which it owns? Its contention is that the mining patent conveys title to only the surface of the ground and the veins which go with the claim, and that the balance of the underground territory is open to anyone seeking to explore for mineral, See also Calhoun Gold Min. Co. v. Ajax or at least may be taken possession of by Gold Min. Co. 182 U. S. 499, 508, 45 L. ed. one other than the owner of the claim for 1200, 1206, 21 Sup. Ct. Rep. 885. The dethe purpose of conveniently working a vein cisions of the courts in the mining regions which belongs to him. The question may be are referred to in the opinion of the court of stated in another form: Does the patent appeals in this case, from which we quote: for a lode claim take the subsurface as well "This view is in accord with the trend of as the surface, and is there any other right all the decisions to which our attention has to disturb the subsurface than that given been directed. In Parrot Silver & Copper to the owner of a vein apexing without its Co. v. Heinze, 25 Mont. 139, 53 L. R. A. 491, surface, but descending on its dip into the 87 Am. St. Rep. 386, 64 Pac. 326, the su subsurface, to pursue and develop that vein? preme court of Montana held in substance We are of opinion that the patent con- that the owner of a mining claim is prima veys the subsurface as well as the surface, facie the owner of a vein or lode found at and that, so far as this case discloses, the a depth of 1,300 feet within the vertical only limitation on the exclusive title thus planes of the lines of his own claim, and conveyed is the right given to pursue a vein that that presumption would prevail until which on its dip enters the subsurface. By it was shown that the vein had its outcrop § 2319, Rev. Stat. (U. S. Comp. Stat. 1901, in the surface of some other located claim p. 1424) "all valuable mineral deposits in in such a way as to give to the owners of lands belonging to the United States" are the latter the right to pursue it on its down"open to exploration and purchase, and the ward course. The court said: 'Upon a lands in which they are found to occupa- valid location of a definite portion of land tion and purchase." By § 2325 (U. S. Comp. is founded the right of possession. The patStat. 1901, p. 1429) "a patent for any land ent grants the fee, not to the surface and claimed and located for valuable deposits ledge only, but to the land containing the may be obtained in the following manner: apex of the ledge. The right to follow the "Prima facie, such a patent confers the right to everything found within vertical planes drawn through the surface boundaries; but these boundaries may be invad ed by an outside lode locator holding the apex of a vein under a regular valid location, in the pursuit of his vein on its downward course underneath the patented surface." *239 ledge upon its dip between the vertical | IN ERROR to the Court of Appeals of the District of Columbia to review a judgment which affirmed a judgment of the Supreme Court of that District, entered on a verdict in favor of plaintiff in an action against a street railway company to recover damages for injuries received by a passenger in alighting from a car. Affirmed. See same case below, 20 App. D. C. 543. The facts are stated in the opinion. Messrs. R. B. Behrend, C. C. Cole, and J. J. Darlington for plaintiff in error. Messrs. A. A. Lipscomb, Philip Walk planes of the parallel end lines extending in their own direction when it departs beyond the vertical planes of the side lines is an expansion of the rights which would be conferred by a common-law grant.' Of similar import is State ex rel. Anaconda Copper Min. Co. v. District Court, 25 Mont. 504, 65 Pac. 1020. In Doe v. Waterloo Min. Co. 54 Fed. 935, Judge Ross said: 'Except as modified by the statute, no reason is perceived why one who acquires the ownership or possession of such lands should not hold them with and subject to the incidents of owner-er, and Charles P. Janney for defendant in ship and possession at common law.' In Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. 63 Fed. 540, Judge Hawley said: 'Hands off of any and everything within my surface lines extending vertically downward, until you prove that you are working upon and following a vein which has its apex within your surface claim.'” The judgment of the Court of Appeals is affirmed. error Mr. Justice Harlan delivered the opinion of the court: The plaintiff in error is a corporation organized under acts of Congress and engaged in the business of carrying passengers for hire in street cars operated on public highways in the District of Columbia. The defendant in error was received as a passenger on one of such cars, and, in alighting from the one in which she was riding, was thrown to the ground and seriously injured. The present action was brought against the railway company to recover damages on account of such injuries, the theory of the Carriers of passengers-negligence-instruc- plaintiff's case being that the car in which 1. tions. The court need not direct the jury to find for a street railway company, in an action to recover damages for the injuries sustained by a passenger in alighting from one of its cars, where there was evidence on behalf of the plaintiff of a substantial character, bearIng upon the general issue as to the carrier's negligence. 2. The modification of an instruction which 8. seeks to confine the question of the negligence of a street railway company toward one of its passengers who was injured in alighting from one of its cars, to the acts of the motorman, so as to include the acts of the motor man or conductor or both, cannot be deemed to have misled the jury to the prejudice of the company, even though there was no evidence whatever showing negligence on the part of the conductor. The trial court is not bound to grant an instruction which assumes that there is no evidence of negligence on the part of the conductor of a street car towards a passenger attempting to alight therefrom, and that the negligence, if any, was wholly that of the motorman, where the whole case as to the alleged negligence of the company was prop erly submitted to the jury, leaving them to determine whether, under all the evidence, the injury was caused by the negligence of its employees or any of them. [No. 214.] Argued April 13, 1904. 1904. she was a passenger was stopped for her to alight from it, and, while she was stepping off it, was suddenly and recklessly started, whereby, without negligence on her part, she was violently thrown to the ground. The railway company pleaded not guilty as alleged, and the plaintiff joined issue on that plea. The case was then tried before the court and a jury, the plaintiff introducing evidence tending to sustain her theory as to the cause of the injuries received by her, while the defendant introduced evidence tending to sustain its theory, which was that the plaintiff negligently attempted to alight from the car before it had actually stopped. At the conclusion of the plaintiff's evidence the defendant asked the court to instruct the jury to find in its favor, upon the ground that the evidence was insufficient to justify a verdict for the plaintiff. That motion was denied, and the defendant excepted. The defendant then introduced evidence, at the close of which the motion to direct a verdict in its favor was renewed. The motion was also denied, and the defendant excepted. It appears from the record that the court then granted two instructions at the request Decided May 2, of the plaintiff and six instructions asked by the defendant. But none of the instruc *202 ⚫203 tions so given on either side, were embodied | part of the conductor of the car, and unless in the bill of exceptions. What they were this court has no means of knowing. There was a verdict and judgment in favor of the plaintiff for 6,500, and that judgment was affirmed in the court of appeals for the District. The railway company assigns for error the refusal of the trial court to direct the jury to find a verdict in its favor. The refusal was proper; for there was evidence of a substantial character bearing upon the general issue as to the negligence of the defendant, and therefore the question was one peculiarly for the jury. Even if the court thought that the preponderance of evidence was for the defendant, it was not bound, simply for that reason, to have taken the case from the jury, whatever influence that fact might have in disposing of a motion for a new trial. they shall find from the evidence that the motorman was guilty of negligence which caused the accident to plaintiff, they should find for the defendant; and in considering that question they cannot infer the existence of any fact not shown to their satisfaction by the evidence." Testing the action of the trial court alone by the evidence set out in the bill of exceptions, we cannot hold that the instruction in question was improperly denied; for that instruction took it for granted that there was not a scintilla of proof—none whatever of negligence on the part of the conductor, and that the negligence, if there was any, was wholly or exclusively that of the motorman. The court below was not bound to submit the case to the jury in that way. It was not bound to make a particular part of the evidence the subject of a special in It is also assigned for error that the trial struction. Under the circumstances it propcourt refused to give the following instruc-erly submitted to the jury the whole case tions to the jury: as to the alleged negligence of the company, leaving them to determine whether, under all the evidence, the injury was caused by the negligence of its employees or any of them. The plaintiff was entitled to a verdict if the injury was caused by the negligence of any employee. Pomeroy v. Boston & M. R. Co. 172 Mass. 92, 51 N. E. 523. *"In order to entitle the plaintiff to a verdict, the burden is upon her to prove, by a preponderance of the evidence, to the satisfaction of the jury, that the car stopped for her to alight, and that, while she was in the act of alighting, the car, through the negligence of the motorman, started, and thereby threw her to the pavement, and injured her; and unless, upon the whole evidence, the jury shall so find, the verdict should be for the defendant." The court refused to grant that instruction without inserting after the word "motorman" the words "or conductor or both." These words having been inserted, the instruction was granted. The defendant excepted to the refusal of the court to give the instruction as asked. In the argument at the bar much was said by counsel as to the principles of law announced by the court of appeals, particu larly in respect of the application of the maxim "Res ipsa loquitur." Our attention has been called to many authorities upon that branch of the case. But we deem it unnecessary to extend this opinion by a review of those authorities; for, even if the court of appeals erred in its application of that maxim, and we express no opinion upon that point,-the judgment should not be reversed, since, as we have seen, the record before us does not show that the trial court committed any error to the substantial prejudice of the defendant. It is contended that it was error prejudicial to the railway company to have added these words to the instruction asked, because, by so doing, the jury were, in effect, told that there was sufficient evidence upon which to base an inquiry whether the con- The judgment of the Court of Appeals afductor was guilty of negligence; whereas, firming the judgment of the Supreme Court the company insists, there was not the of the District must, therefore, be affirmed. slightest proof showing negligence on the It is so ordered. part of the conductor. We need not review the evidence as to the conductor; for if, as the defendant insists, there was no evidence whatever showing negligence upon the part of the conductor, then the modification made by the court could not have so misled the jury as to prejudice the defense. It is assigned for error that the trial court refused to grant the following instruction asked by the defendant: "The jury are instructed that under the evidence in this case they cannot find any negligence on the 24 S. C.-42. Mr. Justice White and Mr. Justice McKenna dissented. (194 U. S. 205) HENRY C. PETTIT, United States Mar shal for the District of Indiana, Appt., v. THOMAS WALSHE. Direct appeal from circuit court-case in volving construction of treaty-foreign ex *204 *210 tradition-preliminary examination must | specially appointed by a court of the United be held in state where arrest is made. States under and in execution of statutes enacted to give effect to treaty stipulations 1. The construction of the extradition for the apprehension and delivery of oftreaties, on which the determination of the fenders, can issue a warrant for the arrest case depended in part, at least, was of an alleged criminal, which may be exenone the less SO drawn in question by habeas corpus proceedings in a Fed-cuted by a marshal of the United States, eral circuit court as to permit a di- within his district, in a state other than the rect review of the judgment in the Su- one in which the commissioner has his office. preme Court, because it also became necessary It also presents the question whether a peror appropriate for the court below to conson arrested under such a warrant can be 2. strue the acts of Congress passed to carry into effect the provisions of such treaties. The preliminary examination of a person sought to be extradited under the treaties of August 9, 1842 (8 Stat. at L. 572, 576), and July 12, 1889 (26 Stat. at L. 1508, 1510), between the United States and Great Britain, on a conviction of murder, must be had in the state where he was found and arrested, lawfully taken beyond the state in which he was found, and delivered in another state before the officer who issued the warrant of arrest, without any preliminary examination in the former state as to the criminality of the charge against him. By the 10th article of the treaty between the United States and Great Britain, concluded August 9th, 1842, it was provided that upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, they shall "deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to cominit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other." But by the same article it was provided that "this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would in view of the provision of the 10th article of the earlier treaty, that the alleged fugltive criminal shall be arrested and delivered up only upon such evidence of criminality as, according to the laws of the place where he is found, would justify his apprehension and commitment for trial if the crime had there been committed, and of the proviso in the sundry civil appropriation act of August 18, 1894 (28 Stat. at L. 416, chap. 301, U. S. Comp. Stat. 1901, p. 717), by which it is made the duty of a marshal arresting a person charged with any crime or offense to take him before the nearest circuit court commissioner or the nearest judicial officer having jurisdiction, for a hearing, commitment, or taking ball for trial,-notwithstand ing those parts of the act of August 12, 1848, chap. 167 (9 Stat. at L. 302), and of U. 8. Rev. Stat. § 5270 (U. S. Comp. Stat. 1901, p. 3591), which provide for bringing the accused in ex-justify his apprehension and commitment tradition proceedings before the justice, judge, or commissioner who issued the warrant of arrest. [No. 563.] Argued April 6, 1904. Decided May 2, 1904. ON N APPEAL from the Circuit Court of the United States for the District of Indiana to review a judgment discharging, on habeas corpus, a person arrested in that state under an extradition warrant, for the purpose of taking him into another state. before the officer who issued the warrant of for trial, if the crime or offense had there 8 Stat. A supplementary treaty between the same countries, concluded July 12th, 1889, provided for the extraditon for certain crimes not *Mr. Justice Harlan delivered the opin specified in the 10th article of the treaty of ion of the court: This is a case of extradition. It presents the question whether a commissioner 1842, and "punishable by the laws of both countries;" and, also, declared that the provisions of the above article "shall apply to *212 *211 |