*40

some of the cases in that state hold that | process of law merely because of the decisuch a suit may be maintained against the collector when the money was paid under protest.

sion of a court, without more. The discussion in Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581, concerned a judgment assumed to be authorized by a statute of the state, and in that case the judgment of the state court was affirmed, so that no very extensive conclusions can be drawn from it. So far as I know this is the first instance in which a circuit court has been held authorized to take jurisdiction on the ground that the decision of a state tribunal was contrary to the 14th Amendment.

It seems to me that the appellee should not be heard until it has exhausted its local remedies; that the action of the state board of equalization should not be held to be the action of the state until, at least, it has been sanctioned directly, in a proceeding which the appellee is entitled to bring, by the final tribunal of the state,—the supreme court. I am unable to grasp the principle on which the state is said to deprive the appellee of its property without due process of law because a subordinate board, subject to the control of the supreme court of the state, is said to have violated the express requirement of the state in its Constitution,

In the case at bar it is averred that it is the duty of the collector, having received the money on his warrant, to pay the sum so received in the proportions designated in his tax books to the city treasurer of the city of Chicago, the county treasurer of the county of Cook, the treasurer of the sanitary district, and other officers and authorities entitled to receive the same, and if the plaintiff instituted suit to recover back the taxes so paid to the town or county collector he would be obliged to bring separate suits against each one of the several taxing bodies receiving its proportionate share of the tax, thereby necessitating a multiplicity of suits, and the proportion of the tax which would go to the state of Illinois could not be collected back by any legal proceeding whatsoever; and if repayment could be compelled from the city of Chicago and other taxing bodies, such repayment would not cover the cost, including commissions deducted for the collection of the tax, and in that way it was averred that the appellee would be subjected to great and irreparable injury, for which there was not a complete-because, in other words, the board has disor adequate remedy at law. There was also the allegation, already referred to in the foregoing statement, that, if compelled to pay this enormous tax, it would be rendered insolvent. We think all these allegations combined take the case out of the class where relief is prayed for, founded simply upon the unconstitutionality of the law under which the tax is levied, or upon the il-stitution, the supreme court, had said that legality, for any other reason, of the tax itself, and bring the case within the jurisdiction of a court of equity. And, in addition, there is the allegation that a levy upon the property of the appellee would interfere with the operation of the street car system in the city of Chicago, operated by the appellee, and would greatly embarrass and in-plaining that it has been compelled to pay jure the public who have to use the cars.

Upon the whole, we think it is apparent that no adequate remedy at law exists in this case, and that the judgment enjoining the collection of the balance of the tax levied against the appellee, above that which has been paid under the direction of the circuit court, must be affirmed.

Mr. Justice Holmes, dissenting: Notwithstanding my unfeigned deference to the judgment of my brethren, I cannot

obeyed the authentic command of the state by failing to make its valuations in such a way that every person shall pay a tax in proportion to the value of his property. I should have thought that the action of the state was to be found in its Constitution, and that no fault could be found with that until the authorized interpreter of that Con

it sanctioned the alleged wrong. Barney v. New York, 193 U. S. 430, 48 L. ed. 737, 24 Sup. Ct. Rep. 502.

As I think that the circuit court ought to be ordered to dismiss this case, I shall not discuss the merits. But I cannot forbear adding that, so far as the appellee is com

the full amount of the tax due from it, and is founding its complaint on the fact that other parties are escaping their liabilities, whether through mistake or still uncorrected fraud, it seems to me to show no sufficient ground for relief, unless exceptional reasons exist, not adverted to in the judgment of the court.

Mr. Justice Moody concurs in the dissent.

(207 U. S. 42)

but think that the circuit court was wrong SAMUEL B. RAYMOND, County Treasurer,

in taking jurisdiction of this case. We all

agree, I suppose, that it is only in most exceptional cases that a state can be said to

deprive a person of his property without due

etc., Appts.,

V.

CHICAGO EDISON COMPANY.

(No. 116.)

Messrs. William G. Beale, Charles S. Holt, and William P. Sidley for the Chicago Telephone Company.

Messrs. William W. Gurley, Isaac M. Jordan, Arthur Dyrenforth, and Howard M. Carter for the Chicago Consolidated Trac

SAMUEL B. RAYMOND, County Treasurer, tion Company.

etc., Appts.,

V.

Mr. Justice Peckham delivered the opin

SOUTH CHICAGO CITY RAILWAY COM-ion of the court:

PANY.
(No. 118.)

These cases involve the same principle as that already decided in No. 115 [207 U. S. 20, 52 L. ed. 28 Sup. Ct. Rep. 7], and al

SAMUEL B. RAYMOND, County Treasurer, though the facts differ somewhat in the vari

etc., Appts.,

V.

PEOPLE'S GASLIGHT & COKE

PANY. (No. 119.)

ous cases, yet they present substantially the same questions, and the judgment in each COM-case is therefore affirmed.

SAMUEL B. RAYMOND, County Treasurer, etc., Appts.,

V.

CHICAGO CONSOLIDATED TRACTION
Company. (No. 121.)

These cases are governed by the decision in Raymond v. Chicago Union Traction Company, ante, 7.

A

(207 U. S. 1)

LEONIDAS M. LAWSON, William J. Har vey, Edward Balbach, Jr., et al., Petitioners,

V.

UNITED STATES MINING COMPANY.

Federal court equitable jurisdiction effect of state law.

1. The holder, through a patent from the United States, of the legal title to a lode suit in equity, in a Federal circuit court sitmining claim, in possession, may maintain a ting in Utah, without a prior adjudication in an action at law of its legal title, to quiet title and to restrain defendants from further mining or removing ore from beneath the surface of such claim, in view of the proviArgued April 8, 9, 1907. Decided October sions of Utah Rev. Stat. § 3511, that an ac

[Nos. 116, 117, 118, 119, 120, 121.]

21, 1907.

PPEAL from the Circuit Court of the United States for the Northern District of Illinois to review judgments enjoining the collection of a tax on the property of certain corporations, which tax is claimed to violate the Federal Constitution. Affirmed. See same cases below, 114 Fed. 557. Messrs. David K. Tone, James Hamilton Lewis, Harry A. Lewis, William F. Struckmann, William H. Stead, and George B. Gillespie for appellants.

Mr. Frank L. Shepard also for appellants in Nos. 116, 117, 120, 121.

Mr. Edward J. Brundage also for appellants in No. 117.

Messrs. William G. Beale, Gilbert E. Porter, Buell McKeever, and Waldo F. Tobey for the Chicago Edison Company. Mr. John P. Wilson for the Chicago City Railway Company.

Messrs. John S. Miller and Merritt Starr for the South Chicago City Railway Company.

tion may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim. Appeal - review of facts.

2. The Federal Supreme court must accept the conclusions of the court below on a question of fact, unless clearly and manifestly wrong.

Mines - apexing veins.

width of the vein on its dip, where the apex
of such vein is partly within two or more
adjacent lode mining claims.
Mines- conclusiveness of patent — se-

3. The senior location takes the entire

nior location.

4. Priority of entry and patent does not conclusively establish seniority of location, so as to give the holder of a lode mining claim under such patent the right to the entire width of the vein on its dip, where part of the apex of such vein is within such claim and part within an adjoining claim. Evidence-presumption.

5. In the absence of the record of an adverse suit, there is no presumption that subterranean rights under lode mining locaMr. James F. Meagher for the People's tions were therein considered and deterGaslight & Coke Company.

mined.

Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 939-943, 955.

govern- | of plaintiff, known as the Kempton mining claim, United States lot 255, which was located in the year 1871, and, on information and belief, that the defendants pretend that the mineral deposits and ores under and beneath the surface of the four mining claims above mentioned are in and part of a mineral vein and lode belonging to and having its apex in said Kempton mining claim and on the dip of said alleged vein, which pretense the plaintiff charges to be contrary to the truth. The plaintiff further alleges that it is the owner and in possession of two certain mining claims, one named the Jordan Silver Mining Company's mine, but

Argued October 11, 12, 1906. Decided Octo- usually known as the "Old Jordan,” located

cree dismissing the plaintiff's bill. From, estate or interest in real property adverse this decree the plaintiff appealed to the to him, for the purpose of determining such 1 circuit court of appeals (67 C. C. A. 587, adverse claim." 134 Fed. 769), which reversed the decree of dismissal, and remanded the case with instructions to enter a decree for the plaintiff in conformity with the prayer of the bill. Thereupon,*on application of the defendants, the case was brought to this court on certiorari.

Messrs. Charles J. Hughes, Jr., Ogden Hiles, and Charles C. Dey for petitioners. Messrs. William H. Dickson, George Sutherland, A. C. Ellis, A. C. Ellis, Jr., E. M. Allison, and Waldemar Van Cott for respondent.

**Mr. Justice Brewer delivered the opin

ion of the court:

*A statute of a similar character was before this court in Holland v. Challen, 110 U. S. 15, 28 L. ed. 52, 3 Sup. Ct. Rep. 495, and it was held that under it a suit might be maintained by one out of possession against another also out of possession, to quiet the title of the former to the premises. It was said, quoting from a prior opinion, that it was "a case in which an enlargement of equitable rights is effected, although presented in the form of a remedial proceeding." It was also said (p. 20):

"To maintain a suit of this character it was generally necessary that the plaintiff should be in possession of the property, and, except where the defendants were nu

merous, that his title should have been established at law or be founded on undisputed evidence or long-continued possession. Alexander v. Pendleton, 8 Cranch, 462, 3 L. ed. 624; Peirsoll v. Elliott, 6 Pet. 95, 8 L. ed. 332; Orton v. Smith, 18 How. 263, 15 L. ed. 393.

"The statute of Nebraska authorizes a suit in either of these classes of cases without reference to any previous judicial determination of the validity of the plaintiff's right, and without reference to his possession. Any person claiming title to real estate, whether in or out of possession, may maintain the suit against one who claims an adverse estate or interest in it, for the purpose of determining such estate and quieting the title."

The first question is whether the plaintiff can maintain this suit in equity without a prior adjudication in an action at law of its legal title. The bill alleges ownership and possession. It supported this allegation by patents from the United States of the first four claims mentioned in the bill, and proved that the defendants were working on a vein or body of mineral beneath the surface and extracting ores therefrom. The bill has a double aspect, to quiet title and to restrain defendants from removing any more ores from beneath the surface of these claims. Title by patent from the United States to a tract of ground, theretofore public, prima facie carries ownership of all beneath the surface, and possession under such patent of the surface is presumptively possession of all beneath the surface. This is the general law of real estate. True, in respect to mining property, this presumption of title to mineral beneath the surface may be overthrown by proof that such mineral is a part of a vein apexing in a claim belonging to some other party. But this is a matter of defense; and while proof of ownership of the apex may be proof of the ownership of the vein descend-in possession, for an action at law in the ing on its dip below the surface of property belonging to another, yet such ownership of the apex must first be established before any extralateral title to the vein can be recognized. This suit was not in the nature of an ejectment, to put the defendants out of possession of the space beneath the surface of plaintiff's claims from which they had extracted ore, but to quiet the title of the plaintiff to the vein in which they had been working, and to restrain them from mining and removing any more

ore.

Sec. 3511, Utah Rev. Stat. 1898, reads: "Sec. 3511. An action may be brought by any person against another who claims an 28 S. C.-2.

The same question was considered and decided in the same way in respect to a suit based upon a similar statute, in Iowa, in Wehrman v. Conklin, 155 U. S. 314, 39 L. ed. 167, 15 Sup. Ct. Rep. 129. Of course, as pointed out in Whitehead v. Shattuck, 138 U. S. 146, 34 L. ed. 873, 11 Sup. Ct. Rep. 276, such a statute cannot be relied upon in the Federal courts to sustain a bill in equity by one out of possession against one

nature of an action of ejectment affords a perfectly adequate legal remedy. There is nothing in the point decided in Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U. S. 632, 47 L. ed. 626, 23 Sup. Ct. Rep. 434, which, rightly considered, conflicts with the case of Holland v. Challen.

It will be further borne in mind that this question was raised by demurrer to the plaintiff's bill and by motion after the plaintiff had finished its testimony and before the defendants had introduced theirs, and was not renewed at the close of the trial, although until then the motion was not decided. At the time the motion was

made the case presented was one of a clear | circuit court found to be the facts. Whatlegal title to the four mining claims by pat- ever might have been suggested by the ent from the United States, and an un- course of the argument at the hearing, the authorized entry by subterranean workings comments of the court upon such argument, into the ground below the surface and the or in announcing its decision, there is nothmining and extracting of ores therefrom,- ing in the record to indicate whether its a case for restraint by injunction, which decision was based upon a question of fact was part of the relief asked for in the bill. or a matter of law. The record only conIt is insisted that in Park v. Wilkinson, 21 tains its decree, dismissing the bill. All Utah, 279, 81 Am. St. Rep. 693, 60 Pac. else is a matter of surmise, except as may 945, the supreme court of that state has be inferred from the allegations of the given a different construction to the stat- pleadings and the scope of the testimony. ute, but in this we think counsel are mis- While it is apparent that the circuit court taken. In that case the plaintiff brought must have based its decision upon one of an action which the court says "was in the two or three grounds, yet upon which it is nature of one in ejectment." To the com- not certain. The circuit court of appeals plaint the defendant, as authorized by the made no separate finding of facts, but it practice in Utah, answered with a cross filed an opinion which indicates the scope complaint, demanding equitable relief. A of its decision, and it is the decree of that jury was empaneled. After the testimony court which is before us for consideration. was all in the court ruled against the claim The attitude of the case is very like that for equitable relief, discharged the jury, of one in which a trial court refers all and entered judgment for the plaintiff. things to a master, who takes the testiThis was held to be erroneous, the supreme mony and reports it, with a general finding court saying that "after determining the for the plaintiff or defendant, upon which equitable issue the court should have sub-report the trial court states its views of mitted the case to the jury upon proper the facts and the law and enters its decree. instructions." In other words, the equitable relief sought by the defendant having been denied, the case stood as one in the nature of an action of ejectment, which was a common-law action, entitling the party to a jury. But in this case, upon the allegations of the complaint, the plaintiff was in possession, and therefore could not maintain an action of ejectment. The testimony which plaintiff offered showed that it was the owner and in possession, and, of course, at that time nothing in the nature of an action of ejectment was shown. And it was only by demurrer to the complaint and by motion after the plaintiff had rested that the question of a right to a jury was raised by the defendants. The decision of the court of appeals in this matter was right.

Coming now to the merits, it is not open to dispute that the defendants were taking ore from beneath the surface of the plaintiff's four claims. The question therefore arises, What right had they to thus mine and remove ore? They must show that the ore was taken from a vein belonging to them. Was there a vein? Where was its apex, and who was the owner of that apex? The testimony is voluminous, and even with the accompanying diagrams it is difficult to come to a satisfactory conclusion as to the facts.

It is insisted that the findings of the circuit court should have bound and concluded the court of appeals upon questions of fact. The difficulty with this contention is that there is nothing to show what the

An appellate court, reviewing such decree, will give its consideration to the conclusions stated by the trial court, irrespective of the report of the master, unless the issue be so narrow that sustaining the decree of the court necessarily involves an overruling of the master on a matter of fact.

From the opinion of the court of appeals it appears that it found that there was a broad vein. It says: "A careful examination and consideration of the evidence clearly convinces us that the stratum of lime stone constitutes a single broad vein or lode of mineral-bearing rock extending from the quartzite on one side to the quartzite on the other." This stratum of limestone underlies the four claims of the plaintiff, and one of the contentions of the defendants is that

there are several independent veins, one of which has its apex within the surface lines of the Kempton and another its apex in the Ashland, that these independent veins continue down through the stratum of limestone beneath the surface of the plaintiff's claims, and that it was only from these independent veins that the defendants were mining and removing ore. Of course, this difference between the conclusions of the court and the contentions of the defendants affects materially the scope of the inquiry. If the limestone is not, strictly speaking, a vein, but a mere stratum of rock through which run several independent veins, then the inquiry must extend to the location of the apex of each separate vein; whereas, if the stratum of limestone is itself a sin