belonging to the plaintiff in error, were located across it, and can only give the latter a right to so much of the vein or lode as is included between their side lines. The court. below took substantially this view of the subject, and ruled accordingly.

As this is really the whole controversy in the case, it is unnecessary to examine more minutely the different points of the charge, or the instructions asked for by the plaintiff in error. The question was presented in different forms, but all to the same general purport.

Judgment affirmed.

No. 10. CAMPBELL v. RANKIN,

(Reported in 9 Otto, 261.)

1. While the record of a mining district is the best evidence of the rules and customs governing its mining interests, it is not the best or the only evidence of the priority or extent of a party's actual possession.

2. The fifth section of the act entitled "An Act to promote the development of the mining resources of the United States," approved May 10, 1872 (17 Stat. 91), gives no greater effect to the record of mining claims than is given to the records kept pursuant to the registration laws of the respective States, and does not exclude as prima facie evidence of title proof of actual possession and of its extent.

No. 11. MINING COMPANY v. TAYLOR.

(Reported in 10 Otto, 37.)

1. In ejectment for an undivided interest in a miuing claim in Nevada, where both parties derive title from the original owner, the validity and regularity of his location are not in question.

2. Where the plaintiff was a tenant in common with the defendants, their possession of the claim was his possession until he was ousted. The Statute of Limitations would then run against him, but not bar his recovery, unless after such ouster their adverse possession was maintained two years before the commencement of the suit.

The statute of limitations of that State, as construed by its Supreme Court, excepts from its protection a foreign corporation.

3. A conveyance in writing is not necessary to the valid transfer of a mining claim.

No. 12. IVANHOE MINING COMPANY v. KEYSTONE CONSOLIDATED MINING COMPANY.

In error to the Circuit Court of the United States of the District of California.

Mr. Justice Miller delivered the opinion of the court.

The action in this case was brought originally in the State court of California by Daniel W. Gillette against the present defendant in error, to recover possession of the east half of section thirty-six, in township seven north, range ten east of Mount Diablo meridian, and in the progress of the case it was transferred to the circuit court of the United States, where judgment was rendered in favor of the defendant. The plaintiff in error having been substituted for Gillette, as his successor in interest, the case was submitted to the court by the parties waiving a jury.

The plaintiff asserted title to the land in controversy under a patent from the State of California, and the defendant under patents from the United States. The title of California rests upon the act of Congress granting that State the sixteenth and thirty-sixth sections of every township for school purposes, and that of defendant on the acts of Congress concerning the possession and sale of the mineral lands.

As the question to be decided necessarily involves the title to much other mineral land in California, in which the authorities of the State of California and the officers of the land department of the United States entertain and act upon conflicting views of the rights of the State and the general government, the State of California, by her counsel, and the United States, by the Attorney-general, have been permitted to take part in the argument.

The defendant only claims part of the land embraced in plaintiff's patent, and denies possession of that for which no title is asserted, and as no possession is proved beyond that for which the defendant defends, only that is in controversy.

The court below finds that this is mineral land, and that the patent of the United States was issued to defendant for three several mining claims, to wit, the Spring Hill, the Geneva, and the Keystone. That the Spring Hill was located in May, 1851, the Keystone in 1853, and the Geneva

in October, 1863; and that the original locators of said claims and their grantees have held undisturbed possession thereof ever since, and by such possession and the working of said mines, the possessory title was vested in defendant at the time it filed its application for said patent in the land office of the United States at Sacramento, January 6, 1871, unless the State of California had acquired title to section thirty-six by grant from the United States. It also appears that on the land thus claimed by plaintiff a mining town, called Amador city, exists, of about four hundred or five hundred people, which began in 1850, and reached the number mentioned in 1853, with many dwelling-houses, and some forty acres cultivated by the owners of the Keystone mining claim.

On the eighteenth of June, 1870, one Henry Casey applied to the State authorities to purchase the half-section of land on which this town and these mining claims were located, and a State patent was issued to his vendee, Gillette, October 3, 1872.

The township in which this land was surveyed in the field in March, 1870, the survey approved September 3, 1870, and a plat filed in the United States land office at Sacramento, October 7, 1870; and within three months after this latter date the application of the defendant was made for patents for the three mining claims, and the patents issued July 14, 1873.

The right to these patents, and the claim of the town of Amador city, were contested before the Register and Receiver, the Commissioner of the General Land Office, and the Secretary of the Interior, by the State of California, and the parties claiming under her, and the decision was adverse to the title of the State.

The question, and the only question, presented for our consideration, is very sharply presented by this statement of facts and by the acts of Congress pertinent to the subject; and it is whether under these acts the title of the land in question became fixed and vested absolutely in the State of California on the ascertainment by the survey of 1870, that it was part of the thirty-sixth section of the township in which it lies.

The act of March 3, 1853, under which the right of the

State of California to the school land arises, has been the subject of construction in this court more than once heretofore, and the decision of the question before us requires a further critical examination of its provisions. The first five sections of it provide for the establishment of the offices of Surveyor-general, two land offices, with Registers and Receivers, and for the organization of the general land system of the United States, including surveys; and it then proceeds to lay down the rules by which rights to the public lands may be acquired. The granting clause of the sixteenth and thirty-sixth sections of the public lands as thus surveyed, to the State of California, is as follows:

"SEC. 6. And be it further enacted, that all the public lands in the State of California, whether surveyed or unsurveyed, with the exceptions of sections sixteen and thirtysix, which shall be, and hereby are, granted to the State for the purposes of public schools in each township, and with the exception of lands appropriated under the authority of this act, or reserved by competent authority, and excepting, also, the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the preemption laws, of fourth September, eighteen hundred and forty-one, with all the exceptions, conditions, and limitations therein, except as is herein otherwise provided; and shall, after the plats thereof are returned to the office of the Register, be offered for sale, after six months' public notice in the State of the time and place of sale, under the laws, rules, and regulations now governing such sales, or such as may be hereafter prescribed."

Section seven of the act may as well be read here, as it is important to a true solution of the question under consideration.

"SEC. 7. And be it further enacted, that where any settlement, by the erection of a dwelling-house or the cultivation of any portion of the land, shall be made upon the sixteenth and thirty-sixth sections, before the same shall be surveyed, or where such sections may be reserved for public uses or taken by private claims, other lands shall be selected by the proper authorities of the State in lieu thereof, agreeably to the provisions of the act of Congress approved on the twentieth of May, eighteen hundred and

twenty-six, entitled 'An act to appropriate lands for the support of schools in certain townships and fractional townships, not before provided for,' and which shall be subject to approval by the Secretary of the Interior. And no person shall make a settlement or location upon any tract or parcel of land selected for a military post, or within one mile of such post, or on any other lands reserved by competent authority; nor shall any person obtain the benefits. of this act by a settlement or location on mineral lands."

The twelfth section grants to the State seventy-two sections for the use of a seminary of learning, to be selected by the governor or some one appointed by him, in legal subdivisions of not less than a quarter section, of any unsold, unoccupied, and unappropriated public lands, “Provided, that no mineral lands, or lands reserved for any public purposes whatever, or lands to which any settler may be entitled under the provisions of this act, shall be subject to such selection."

The thirteenth section also grants the State ten sections of land for the purpose of erecting the public buildings of the State, with the same proviso as the one to section twelve.

The proviso to the third section is also relied upon as indicative of the purpose of Congress in regard to the mineral lands of California. That section contains the anthority under which the Surveyor-general is to act in surveying the public lands in that State, and after investing him with the powers conferred on other Surveyors-general, and some specific directions for the survey of private land claims, it is "provided, that none other than township lines shall be surveyed where the lands are mineral, or are deemed unfit for cultivation; and no allowance shall be made for such lines as are not actually run and marked on the field, and were actually necessary to be run."

It is strongly urged by the plaintiff's counsel that the language of the granting clause imports a grant in præsenti, and that whenever, by any survey of the government thereafter made, the location of the sixteenth and thirty-sixth sections of a township was ascertained, it establishes the title in the State from the date of the statute, namely, March 3, 1853.