[208 U.S. 25, 26] Messrs. W. C. Kennedy and A. H. Jarman for plaintiff in error.
[208 U.S. 25, 27] Messrs. John E. Laskey and J. P. O'Brien for defendants in error.
Mr. Justice Day delivered the opinion of the court:
This case originated in an action brought to quiet title to a certain mining claim called the slap Jack Mine, situated in Tuolumne county, California. The case was twice in the supreme court of California. In the first trial the superior court of Tuolumne county gave judgment in favor of the then defendant McWhirter; on appeal this judgment was reversed. 133 Cal. 510, 65 Pac. 1036. After the case went back, the present plaintiff in error, the Yosemite Gold Mining & Milling Company, as the successors in interest to McWhirter and defendants Argall, was made a defendant.
As to the Argall interest, covering nine twentieths of the property, based on the same location, while judgment was rendered in the court below, as to this interest, against the present plaintiff in error, in the supreme court a new trial was awarded and the case remanded, and with that interest we have nothing to do upon this writ of error.
As to the remaining eleven twentieths, the court rendered a final judgment against the present plaintiff in error, Yosemite Gold Mining & Milling Company, decreeing that the defendants in error F. F. Britton and Anne L. Emerson were each the owner of one undivided fourth part of the claim, and defendant in error Miller the owner of the one undivided twentieth part thereof. 149 Cal. 50, 85 Pac. 122. To this judgment the present writ of error is prosecuted.
We proceed to examine the questions which are now in this court. The mining claim of the Yosemite Gold Mining & Milling Company, plaintiff in error, is based upon the attempted location thereof within the same limits as the original Slap Jack Mine, made by McWhirter on January 1, 1899, shortly after midnight. McWhirter undertook to 'jump' the former claim upon the theory that the assessment work for the year [208 U.S. 25, 29] 1898 required by 2324, Rev. Stat., as amended 1880, U. S. Comp. Stat. 1901, p. 1426, had not been done.
The first contention made by the plaintiff in error is that one Coyle, under whom the defendants in error claim title, never made a valid location of the mining claim, because he posted but one notice of location upon the claim. Under the authority of 2324, Revised Statutes, supra, the miners of every mining district are given authority to make regulations not in conflict with the laws of the United States or any state or territory in which the district is situated. U. S. Comp. Stat. 1901, p. 1426. Section 3 of the mining rules and regulations of Tuolumne mining district of Tuolumne county, California, provides:
The supreme court of California held that its decision in the present case upon this question was concluded by the ruling made upon the first appeal, which decision continued to be the law of the case. Upon the first appeal (133 Cal. 510, 65 Pac. 1036) it was held that the failure to comply with the mining [208 U.S. 25, 30] rules in this respect would not work a forfeiture of title, inasmuch as there was nothing in the rules which made noncompliance a cause of forfeiture; that, unless the rule so provided, the failure to comply with its requirments would not work a forfeiture. The court cited other California cases to the same point and cases from the supreme court of Arizona (Rush v. French, 1 Ariz. 99, 25 Pac. 816; Johnson v. McLaughlin, 1 Ariz. 493, 4 Pac. 130); also the decision of Judge Sawyer in Jupiter Min. Co. v. Bodie Consol. Min. Co. 7 Sawy. 96, 11 Fed. 666. There seems to be a conflict in state decisions upon this subject. The supreme court of Montana differs with the supreme court of California. King v. Edwards, 1 Mont. 235-241. As does also the supreme court of Nevada. Mallett v. Uncle Sam Gold & S. Min. Co. 1 Nev. 188, 90 Am. Dec. 484. Lindley, in his work on Mines, seems to prefer the California rule as a 'safe and conservative rule of decision, tending to the permanency and security of mining titles.' 1 Lindley, Mines, 2d ed. 274. But, in view of the facts of this case, we do not deem it necessary to decide whether a forfeiture will arise simply from a violation of this mining regulation.
It appears in this record that McWhirter's location was made about three years after the Coyle location, and after the record of the notice and the marking of the claim on the grounds so that the boundaries could be readily seen. Furthermore it appears from the testimony of McWhirter:
In further course of examination he testifies that he was sent up by another party to jump the Slap Jack Mine. McWhirter was not undertaking to take advantage of the want of notice, but was 'jumping' the claim on the theory that the required amount of assessment work for 1898 had not been done. To hold that the want of notice under such circumstances would work a forfeiture would be to permit the rule to work gross injustice and to subvert the very purpose for which it was enacted. The object of posting the preliminary notice of the claim is to make known the purpose of the discoverer to claim title to the same to the extent described, and to warn others of the prior appropriation. Lindley, Mines, 2d ed. 350. In this case the locator had gone beyond this preliminary notice; the outlines of the claim had been marked, and the extent of the claim was fully known to McWhirter when he attempted his location. He knew all about the location and boundaries of the claim that any notice could have given him. He undertook to locate his new claim precisely within the boundaries of the old one, and was seeking to take advantage of the want of compliance with the statutory requirment as to the amount of annual assessment work to be done. Having this knowledge, we hold that McWhirter, and those claiming under him, could not claim a forfeiture of title for want of preliminary notice under the former location. We thus dispose of the only question which could be held to raise a Federal question. Upon the other points made as to the McWhirter interest, we think this case presents no Federal question.
The contention is made that the assessment work required by 2324, Revised Statutes, was not done for the year 1898. As pointed out by the supreme court of California, 2324 provides: The mine 'shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal [208 U.S. 25, 32] representatives, have not resumed work upon the claim after failure and before such location.' The trial court found that the work had been resumed before the attempted adverse location. After reciting the conflict of testimony in the trial court as to whether the work had been resumed within the meaning of the statute, so as to prevent such adverse location, the supreme court said: 'It was for the trial court to determine this conflict, which it has done by the finding in question, and its determination is conclusive upon this appeal.'
In thus deciding, the supreme court of the state did not, within the meaning of 709 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 575, decide any right of Federal origin adversely to the plaintiff in error. It simply held that there was a conflict of testimony in the record upon this subject, and that the conclusion of the court below upon this matter of fact was conclusive upon the appellate court. This does not amount to a denial of a Federal right, concerning which the plaintiff in error had especially set up his claim so as to give the right of review of the decision of the state supreme court in this court. Dower v. Richards, 151 U.S. 658 , 38 L. ed. 305, 14 Sup. Ct. Rep. 452, and cases therein cited.
The judgment of the Supreme Court of California is affirmed.