gle broad vein, then the inquiry is narrowed to the location of its apex. "Discovery in all ages and all countries has been regarded as conferring rights or claims to reward. Gamboa, who represent With reference to the conclusion of the court of appeals it is sufficient to say thated the general thought of his age on this if the testimony does not show that it is correct, it fails to show that it is wrong, and under those circumstances we are not justified in disturbing that conclusion. It is our duty to accept a finding of fact, unless clearly and manifestly wrong. Treating this limestone as a single broad vein, it is apparent that the entire apex is not within the surface of either the Kempton and Ashland, but that it is also found in the Old Jordan and Mountain Gem, -the properties of the plaintiff. The line which divides the surface of the claims of the defendants from the Old Jordan and Mountain Gem claims also bisects the vein as it comes to the surface. In other words, part of the apex is within plaintiff's claims and part within defendants.' In such a case the senior location takes the entire width of the vein on its dip. This was the conclusion of the court of appeals, as shown by this quotation from its opinion (p. 592): "Where two or more mining claims longitudinally bisect or divide the apex of a vein, the senior claim takes the entire width of the vein on its dip, if it is in other respects so located as to give a right to pursue the vein downward outside of the side lines. This is so because it has been the custom among miners, since before the enactment of the mining laws, to regard and treat the vein as a unit and indivisible, in point of width, as respects the right to pursue it extralaterally beneath the surface; because usually the width of the vein is so irregular, and its strike and dip depart so far from right lines, that it is altogether impracticable, if not impossible, to continue the longitudinal bisection at the apex throughout the vein on its dip or downward course; and because it conforms to the principle pervading the mining laws, that priority of discovery and of location gives the better right, as is illustrated in the provision giving to the senior claim all ore contained in the space of intersection where two or more veins intersect or cross each other, and in the further provision giving to the senior claim the entire vein at and below the point of union, where two or more veins with distinct apices and embraced in separate claims unite in their course downward. Rev. Stat. § 2336, U. S. Comp. Stat. 1901, p. 1436." We fully indorse the views thus expressed. Discovery is the all-important fact upon which title to mines depends. Lindley, in his work on Mines, 2d ed. vol. 1, § 335, says: subject, was of the opinion that the discoverer of mines was even more worthy of reward than the inventor of a useful art. Hence, in the mining laws of all civilized countries, the great consideration for granting mines to individuals is discovery. 'Rewards so bestowed,' says Gamboa, besides being a proper return for the labor and anxiety of the discoverers, have the further effect of *stimulating others to search for veins and mines, on which the general prosperity of the state depends.'' The two thoughts here presented are reward for the time and labor spent in making the discovery, thus adding to the general wealth, and incentive to others to prosecute searches for veins and mines. To take from the discoverer a portion of that which he has discovered and give it to one who may have been led to make an adjoining location by a knowledge of the discovery, and without any previous searching for mineral, is manifest injustice. Again, as indicated in the quotation from the court of appeals, continuing the line of division shown upon the surface through the descending vein would be attended with great difficulty and uncertainty. Dealing with questions of this nature, a practical view must be taken. Veins do not continue of uniform width in their descent, but are often irregular and broken, and to attempt to make a division of ore according as it appears on the surface, or equally, would require the constant supervision of a court. It is not strange, then, that the custom of miners has been, as stated by the court of appeals, to regard and treat the vein as a unit and indivisible in point of width, and belonging to the discoverer. This question has been before this court, as well as several of the courts in the mining districts. In Argentine Min. Co. v. Terrible Min. Co. 122 U. S. 478, 484, 30 L. ed. 1140, 1142, 7 Sup. Ct. Rep. 1356, we said: "Assuming that on the same vein there were surface outcroppings within the boundaries of both claims, the one first located necessarily carried the right to work the vein." In Bullion, B. & C. Min. Co. v. Eureka Hill Min. Co. 5 Utah, 3, 11 Pac. 515, the question is discussed at some length by Chief Justice Zane. In the course of the opinion it is said (p. 54): "Under the law of 1866 the surface ground was merely for the convenient working of the lode. The discoverer and first locator took the lode in its entirety. The law contemplated its segregation in its length, not in its width. It refers to lodes we cannot assume that anything more was between the end lines, not to a part of a presented and decided than was necessary lode. No expression can be found in it to justify the patents. A patent is issued indicating an intention to limit the rights for the land described, and all that is of the locator to a portion of the lode in necessarily determined in an adverse suit its width. The discovery of any part of is the priority of right to the land. This the apex of a vein is regarded by it as a dis- is evident from 2325, Rev. Stat. (U. S. covery of the entire apex. And we think that Comp. Stat. 1901, p. 1429), which says: the law of 1872, when all of its provisions "A patent for any land claimed and loare considered together, and in connection cated for valuable deposits may be obwith the former law on the subject, as it tained in the following manner." In the should be, evinces the same intent. Under section the only matters mentioned for exthis law the discoverer of any part of the amination and consideration relate to the apex gets the right to its entire width, de- surface of the ground. There is no sugspite the fact that a portion of the width gestion or provision for any inquiry or demay be outside of the surface side lines termination of subterranean rights. Lindof his claim extended downwards vertical-ley, in his work on Mines, 2d ed. vol. 2, ly. While he has no right to the extralater- § 730, says: al surface, he has a right to the extralateral lode beneath the surface." See also St. Louis Min. & Mill. Co. v. Montana Min. Co. (C. C. App. 9th C.) 56 L.R.A. 725, 44 C. C. A. 120, 104 Fed. 664; Empire State-Idaho Min. & Developing Co. v. Bunker Hill & S. Min. & Concentrating Co. (C. C. App. 9th C.) 52 C. C. A. 219, 114 Fed. 417. Also another suit between the same parties in the same court, 66 C. C. A. 99, 131 Fed. 591; Last Chance Min. Co. v. Bunker Hill & S. Min. & Concentrating Co. (C. C. App. 9th C.) 66 C. C. A. 299, 131 Fed. 579. But it is contended by the defendants that both the entries and patents of the Ashland and Kempton claims were prior in time to the entries and patents of the Old Jordan and Mountain Gem, and that such priority of entry and patent conclusively establishes the prior right of the owners to this broad vein; that the failure of the owners of the Old Jordan and Mountain Gem to adverse the applications of the owners of the Ashland and Kempton for patent was an admission that the latter had priority of right, and is conclusive against any present testimony as to the dates of the locations. We had occasion in the recent case of Creede & C. C. Min. & Mill. Co. v. Uinta Tunnel Min. & Transp. Co. 196 U. S. 337, 49 L. ed. 501, 25 Sup. Ct. Rep. 266 to consider to what extent the issue of a mining patent worked an estoppel of the claims of third parties, and it is unnecessary now to repeat the discussion there had. This case presents the question under different aspects. The entries and patents of the Ashland and Kempton claims were, as stated, prior in time to the entries and patents of the Old Jordan and Mountain Gem. There is no record of any adverse suits, although it is intimated that there were such suits. In the absence of a record thereof "An application for patent invites only such contests as affect the surface area. A possible union of veins underneath the surface cannot be foreshadowed at the time the application is made. When such a condition arises, it is adjusted by reference to surface apex ownership and priority of location not involving any surface conflict. The rule is well settled that conflicting adverse rights set up to defeat an application for patent cannot be recognized in the absence of an alleged surface conflict. Prospective underground conflicts are not the subject of adverse claims." In New York Hill Co. v. Rocky Bar Co. 6 Land Dec. 318, the Commissioner of the General Land Office declined to recognize an adverse claim where there was no surface conflict, saying (p. 320): "In the event that patent should be issued upon said application and any question should thereafter arise as to the right, under such patent, to follow any vein or lode, as indicated in said § 2322 (U. S. Comp. Stat. 1901, p. 1425), it would be a matter for the courts to settle, and I am of the opinion, there being no surface conflict alleged in this case, and without considering any other question relating to the sufficiency of the so-called adverse claim, that you properly *declined to receive the same as an adverse claim, and to that extent your decision is affirmed." The same ruling was made in Smuggler Min. Co. v. Trueworthy Lode Claim, 19 Land Dec. 356. Without determining what would be the effect of a judgment in an adverse suit in respect to subterranean rights, if any were in fact presented and adjudicated, it is enough now to hold that there is no presumption, in the absence of the record, that any such rights were considered and determined. Indeed, in the absence of a record, or some satisfactory evidence, it is to be (Signed by 25 locators.) Bingham Kanyon, Salt Lake City, Utah territory, Sept. 17, 1863. A. Gardner, Recorder. The Mountain Gem location was similar in form, dated August 20, 1864, and recorded August 24, 1864. Now these location notices were long before the time of the locations of the defendants' claims. It is further contended that the locations of assumed that the patents were issued with- | tend to work the same according to the out any contest and upon the surveys made mining laws of this mining district. under the direction of the United States surveyor general, and included only ground in respect to which there was no conflict. If the surface ground included in an application does not conflict with that of an adjoining claimant, the latter is in no position to question the right of the former to a patent. Take the not infrequent case of two claims adjoining each other, the boundary line between which is undisputed. If the owner of one applies for a patent the owner of the other is clearly under no obligation to adverse that application, even if, under any circumstances, he might have a right to Other necessary conditions being proved, the applicant is entitled to a patent for the ground. Generally speaking, if the boundary between the two claims is undisputed the foundation for an adverse suit is lacking. While a patent is evidence of the patentee's priority of right to the ground described, it is not evidence that that right was initiated prior to the right of the patentee of adjoining tract to the ground with do so. in his claim. Section 2336, Rev. Stat. (U. S. Comp. Stat. 1901, p. 1436), makes provision for conflict as to certain subterranean rights. The last sentence of the section reads: "And, where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection." Argentine Min. Co. v. Terrible Min. Co. supra. As the place of union may be far below the surface, this evidently contemplates inquiry and decision after patent, and then it can only be in the courts. And the same rule will obtain as to other subterranean rights. It is further contended that there is no evidence of a valid location of the "Old Jordan" and Mountain Gem prior to the entries of the Ashland and Kempton. Location notices of the Old Jordan and Mountain Gem were admitted in evidence, that of the former being as follows: Notice. Jordan S. M. Co. The undersigned members of the Jordan Silver Mining Co. claim for mining purposes one share of 200 feet each and one additional claim of 200 feet for original discoverer, George R. Ogilvie, on this lead of mineral ore, with all its dips, spurs, and angles, beginning at the stake situated 100 feet northeast of Gardner's shanties in Bingham (Canion) Kanyon, in West Mountain, and running 2,200 feet in a westerly direction along the side of said mountain, on a line with Bingham canyon, and in the "Old Jordan" and Mountain Gem were anterior to the act of July 26, 1866 (14 Stat. at L. 251, chap. 262), which was the first legislation of Congress in respect to while that act, in its 2d section, recognizes the granting of mineral claims, and that the rights of locators in so far as they have proceeded according to the local custom or rules of miners of the districts in which the mines are situated, yet in this case there is no evidence that these locations were made in conformity to any such local custom or rules. It is sufficient to say that by stipulation of counsel it was agreed that the patents to the "Old Jordan" and Mountain Gem were issued upon the location notices. Inasmuch as they were accepted by the government, and patents issued thereon, it was a recognition by the Department of the conformity of the proceedings to the local rules and customs of the district, and such ruling is not open to challenge by third parties claiming rights arising subsequently to such notices. Summing up our conclusions, the findings of fact as stated in the opinion of the court of appeals are not clearly against the testimony, and must, therefore, be sustained. According to those findings there was a single broad vein,-the apex or outcroppings of which extended through the limits of some of the plaintiff's and defendants' claims, and not several independent veins. The ore which was being mined and removed by the defendants was taken from this single broad vein beneath the surface ground of claims belonging to the plaintiff. Where there is a single broad vein whose apex or outcroppings extend into two adjoining mining claims the discoverer has an extralateral right to the entire vein on its dip. Acceptance by the government of location proceedings had before the statute of 1866, and issue of a patent thereon, is evidence that those location proceedings were in accordance with the rules and customs of the local mining district. priority of right to a single broad vein vested in the discoverer is not determined by the dates of the entries or patents of the respective claims, and priority of dis The covery may be shown by testimony other | affirmed in the court of errors and appeals than the entries and patents. In the ab- of New Jersey and this writ of error seeks sence from the record of an adverse suit the reversal of that judgment. there is no presumption that anything was considered or determined except the ques- | tion of the right to the surface. From these conclusions it is obvious that the decision of the Circuit Court of Appeals was right, and it is affirmed. (207 U. S. 67) Section 20 of the act of 1899, amended, Laws of 1901, p. 307, provides: "Any person or persons who shall hereafter dredge upon or throw, take, or cast his oyster dredge, or any other instrument used for the purpose of catching oysters, upon any oyster bed or ground duly marked, buoyed, or staked up within the waters of the Delaware river, Delaware bay, and Mau URIAH S. LEE, Frank B. Lee, and Harry rice River cove, in this state, belonging to Sutton, Plffs. in Err., V. STATE OF NEW JERSEY. Error to state court- moot question. Commerce-state regulation of oyster 2. Rights under the commerce clause of the Federal Constitution or under the 14th Amendment are not infringed by the provisions of N. J. act March 24, 1899, § 20, as amended by the act of March 22, 1901, under which a conviction may be had for using a dredge in tidal waters of the state for the purpose of catching oysters upon leased lands without the consent of the lessees. [No. 16.] any other person, without the permission of the lessee or lessees thereof, shall be guilty of a misdemeanor and of the violation of the provisions of this act.” It is the contention of the plaintiffs in error that this statute violates the right of free navigation, and undertakes to regulate interstate commerce in violation of § 8, article 1, of the Federal Constitution, and deprives the plaintiffs in error of rights secured by the 14th Amendment. The power of the state to regulate the oyster industry, although the same is carried on under tidal waters in the state, is not contested, and could not successfully be. Smith v. Maryland, 18 How. 71, 15 L. ed. 269; McCready v. Virginia, 94 U. S. 391, 24 L. ed. 248; Manchester v. Massachusetts, 139 U. S. 240, 35 L. ed. 159, 11 Sup. Ct. Rep. 559. The objection to the legality of the conviction from the standpoint of rights protected by the Federal Constitution, as urged upon our attention, rests upon the argument that § 20, amended as above quoted, permits Argued October 16, 1907. Decided October the conviction of a person who shall take an 28, 1907. oyster dredge or other instrument used for the purpose of catching oysters, on any oy. star red or grounds within such navigable waters, thereby abridging and interfering with the right of free commerce with foreign nations, and among the several states. And it is argued that persons sailing over such waters, having an oyster-dredge aboard a boat, might be convicted of thus taking a dredge over such ground. in violation of the statute. Of this contention it is enough to say that in this case no such construction of the statute was made or enforced against IN ERROR to the Court of Errors and Appeals of the State of New Jersey to review a judgment affirming a judgment of the Supreme Court of that state, which affirmed a conviction in the Court of Quarter Sessions of Cumberland County of unlawfully dredging upon oyster beds. Affirmed. See same case below (N. J.) 59 Atl. 1118. The facts are stated in the opinion. Messrs. E. A. Armstrong and William T. Read for plaintiffs in error. Messrs. Nelson B. Gaskill and Robert H. the plaintiffs in error. Nor were they conMcCarter for defendant in error. *Mr. Justice Day delivered the opinion of the court: victed because of any such state of facts; and it is well settled in this court that, because a state statute, when enforced in a state court against a class to which the party The plaintiffs in error were convicted in complaining does not belong, may work a the court of quarter sessions of Cumber-deprivation of constitutional rights, that land county, New Jersey, at the May term, 1903, of the offense of unlawfully dredging upon certain oyster beds for the purpose of catching oysters, contrary to the statute enacted in that state. This judgment was fact does not authorize the reversal of a judgment of a state court not enforcing the statute so as to deprive the party complaining of rights which are protected by the Federal Constitution. New York ex rel. Hatch •Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Censtitutional Law, §§ 39-41. *69 *72 v. Reardon, 204 U. S. 152-160, 51 L. ed. 415 | that testimony, if you believe that occurred -422, 27 Sup. Ct. Rep. 188, and cases there as these witnesses for the state say it occited. curred, then, regardless of whether or not they got any oysters, if they were throwing their dredges there upon that ground they should be convicted under the first count of this indictment. An inspection of this record shows that the count of the indictment under which the plaintiffs in error were convicted charged them with unlawfully dredging, throwing, and casting dredges for the purpose of catching oysters upon certain leased lands, in violation of the statute. The testimony offered on the part of the state tends to show that certain dredges were thus thrown and cast for the purpose of catching oysters upon leased lands belonging to one Allen. On the part of the defense the witnesses testify that the dredges were not thus cast and used upon the lands in question. There was no pretense in the charge in the indictment, or in the testimony offered by the people, that a conviction could be had for the mere taking of a dredge over the leased lands. The conviction depended, both in the charge and in the testimony, upon establishing the fact that the plaintiffs in error thus illegally used the dredges. It is contended that the plaintiffs in error might have been convicted for the mere sailing over the lands with a dredge aboard the boat, because of the following language in the court's charge: "It then remains to be considered whether or not the defendants on that day dredged or threw, took or cast, a dredge or other instrument used for the purpose of catching oysters upon that ground. If they find that they did, then they should be convicted of illegal dredging, as charged in the first count of the indictment." But this excerpt must be read in connection with the rest of the charge, and it is perfectly apparent that it was not intended that the jury might convict for taking a dredge across the lands in sailing over them, under the indictment which made no mention of such taking, but distinctly counted upon the unlawful throwing and casting of the dredge upon the leased ground for the purpose of catching oysters. For immediately following the language quoted the learned judge goes on to say: "Now, the state produces, bearing upon that question, the owner of the ground, and he testifies that on the day named in the dictment he, aboard of the Golden Light, with Captain Hilton, visited his ground; that as they approached it, you will recall just how near they placed themselves, from their testimony,-as they approached it they saw these defendants aboard of a vessel called the Lee, maneuvering up and down this ground, No. 137, section B, of Captain Allen, and heaving their dredges thereon. Now, gentlemen, if you believe "Now, considering all of this testimony and any other testimony in the case, you ought to determine whether or not the defendants were there heaving their dredges and dredging upon this ground. And in endeavoring to ascertain the truth from this conflicting testimony it is but the dictate of common sense that you should consider whether any of the witnesses have a motive to testify falsely." It is therefore apparent that the possible construction of the statute in such manner as to convict plaintiffs in error of a crime in merely exercising their right to navigate interstate waters was not made essential to the determination of the case. A conviction was had because of the use of a dredge upon leased lands, in violation of the New Jersey statute for the protection of the oyster industry. Against the statute, as thus enforced, no valid objection can be urged for want of power to pass or enforce it because of rights protected by the Federal Constitution. Judgment of the Court of Errors and Appeals of New Jersey is affirmed. Error to circuit court of appeals — parties. 1. A writ of error to the circuit court of in-appeals to review a judgment of that court issuing a peremptory mandamus requiring a district court to modify its judgment entered in supposed compliance with the mandate of the Supreme Court will not be dismissed because the district judge obeyed the order and did not sue out the writ, where it appears on the record that the judge declined to join, that he has no personal interest in the judgment, and that the plaintiffs in error have such an interest, and were made parties for the purpose of protecting their rights. |