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the city of Schenectady asking that body to consent and authorize the mortgagor to discontinue permanently the running of its cars upon said street and to remove its track, and that October 2, 1894, the common council adopted a consenting resolution.

The specific relief prayed for by the bill is that the foreclosure decree be revised so as to omit the Washington avenue property from the property therein, and so as to provide that the agreement between the receiver and the Washington avenue property owners and the city of Schenectady be approved by the court, and be binding upon all the parties to the action; and that the defendants be permanently enjoined from doing any act in the construction or operation of any sort of a railroad upon any part of the street.

Whether the matters set forth in the bill make a case which, assuming it to be one entitling the complainants to relief in equity, can be appropriately presented by a bill or a supplemental bill in the nature of a bill of review, or which can be presented only by an original bill, we need not decide. The original suit decided nothing which could prejudice the complainants. They were not parties, and could not be affected by any decree. Whatever rights they acquired in the mortgaged premises were acquired after the decree had been entered, but before the decree had been executed by a sale of the mortgaged premises by an agreement made with the receiver. Doubtless they could have applied to the court for an approval of that agreement and a modification of the decree recognizing and giving effect to it. The requisite diversity of citizenship to maintain an original bill in this court does not exist between the parties. We think the facts did not afford any ground of relief, whether by a bill of review, or one in the nature of such a bill. The relief which they seek to obtain is the enforcement of an agreement which they assert was constituted by the action of the receiver, the property owners, and the common council of Schenectady, and by which they claim that the parties to the foreclosure action and their successors in title to the mortgaged premises are bound to an abandonment of the right to operate a railroad upon part of the street; and they urge that the court can now approve the action of the receiver and ratify the agreement with the same effect as though an application had been made and granted in the foreclosure suit. To do this would be, in effect, to decide that the court, whose officer the receiver was, would have approved the agreement if an application had been made to it, or ought to have approved it had an application been made. The approval of a receiver's contract rests in the sound discretion of the court. It will not be granted merely because the agreement is for the interests of the immediate parties to the suit, and is often determined upon consideration of the interests of those who are not parties, or of the public. It is apparent, from the facts disclosed by the bill, that the so-called agreement was made in the supposed interests of the receiver and the parties to the foreclosure action, and in order to lift the burden of maintaining an unprofitable part of the railroad. It does not appear by the bill that the receiver obtained the consent of the Railroad Commissioners or of the state to the agreement, and the argument for the complainants concedes that such consent was not

obtained. The right to construct and operate a street railway is a franchise granted by the state upon considerations of the public welfare; and any contract which disables the corporation from performing its functions without the consent of the state, and made to relieve the corporation of the burden which it has assumed, is void as against. public policy. That consideration alone would have justified and compelled the court in the foreclosure suit to withhold its sanction to the agreement. It presents an insuperable objection to the making of any new decree which would now sanction the agreement. The very recent decision of the highest court of the state in actions between some of the present parties is authoritative to the effect that the attempted abandonment was a nullity because against public policy. Thompson v. Schenectady Railway Company (N. Y.) 70 N. E. 213. The court say:

"Within the principle of the cases cited, it is obvious that the public has an interest in that portion of the Schenectady Railway which was constructed in Washington avenue, which could not be destroyed or abandoned without the consent of the state."

The authorities cited in the opinion in that case abundantly prove the proposition decided, and no further reference to them is necessary. If the decision had been rendered before the decision in the present case, and brought to the attention of the learned judge of the court below, doubtless he would have dismissed the bill.

The decree is reversed, with costs, and with instructions to the court below to dismiss the bill.


(Circuit Court of Appeals, Ninth Circuit. May 31, 1904.)

No. 985.


A bill filed by the owner of a lode mining claim to establish extralateral rights and quiet its title need not allege the general course of the vein beyond the limits of the claim.


The ownership and possession of the surface of a lode mining claim carries with it the ownership and possession of the lode which has its apex therein to the full extent of the extralateral right given by the statute to the owner of the claim.


The right given by the location of a lode mining claim in that portion of the vein lying within its surface boundaries and that portion lying beyond them in which the statute gives the owner extralateral rights is integral, and no adverse right can be acquired by the locator of another claim in respect to the latter portion that could not in respect to the former.

4. SAME PRIORITY OF EXTRALATERAL RIGHTS-FAILURE TO RECORD NOTICE. The fact that the locator of a lode claim failed to record his location notice within 15 days, as required by the Idaho statute, did not invalidate

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the location, there being no such penalty affixed by the statute, and the locator of another claim on the same vein within the 15 days, with knowledge of the prior location, and that the owner was in possession and actually engaged in working the claim, acquired no rights to conflict with those of the older claim either in the surface or underground portion of the vein.


The issuance of a patent for a mining claim is conclusive evidence of the sufficiency of the steps taken by the locator as against one claiming adverse rights.


Findings of fact made by a master in pursuance of the order of the court that depend upon conflicting testimony or upon the credibility of witnesses, especially where they have been approved by the trial court, will not be disturbed on appeal.


The fact that a vein or lode is of such width on the surface as to extend beyond the side line of a claim located thereon does not affect the extralateral rights of such claim as against a junior location.


Where the apex of a vein crosses what were originally intended as the side lines of a lode claim, and they are parallel, they become, by operation of law, the end lines.


Where the end lines of a lode claim cross the surface outcropping of a vein, they determine the extralateral right of the claim, without regard to the angle at which they cross the general course of the vein; its course for that purpose being fixed by the course of the apex on the surface of the claim.

Appeal from the Circuit Court of the United States for the Northern Division of the District of Idaho.

W. B. Heyburn, John P. Gray, and F. T. Post, for appellants. Curtis H. Lindley, Henry Eickhoff, and M. A. Folsom, for appellee. Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS, Circuit Judge. In the court below the appellee was complainant, and the appellants defendants. For convenience of reference, the complainant Bunker Hill & Sullivan Mining & Concentrating Company will be referred to as the "Bunker Hill Company," the defendant Last Chance Mining Company as the "Last Chance Company," the defendant Shoshone Mining Company as the "Shoshone Company," and the defendant Empire State-Idaho Mining & Developing Company as the "Empire Company."

The bill of complaint alleges the Bunker Hill Company to be the owner in fee in possession and entitled to the possession of that certain mine and lode mining claim situated in Yreka mining district, Shoshone county, Idaho, known as the "Bunker Hill Lode Mining Claim," and specifically described in the bill; that within that claim there is a vein. or lode of rock in place carrying silver, lead, and other valuable minerals, the general course or strike of the top or apex of which at the surface within the claim is northerly and southerly, on which course the

19. See Mines and Minerals, vol. 34, Cent. Dig. §§ 75, 76.

top or apex of the vein crosses the southerly end line thereof at a point 300 feet westerly from its corner No. 3, and, continuing on its northerly course, the top or apex of the vein passes through the claim and crosses the northerly end line thereof at a point about 700 feet westerly of corner No. 2 of the claim, and that the said vein or lode on its downward course westerly passes out of and extends indefinitely beyond a vertical plane drawn through the westerly boundary thereof; that this vein or lode is the only vein or lode having its top or apex within the limits of the Bunker Hill claim, and is the vein or lode originally discovered on the 10th day of September, 1885, by the grantors of the Bunker Hill Company. Attached to and made a part of the bill is a diagram, which shows that the claim was located across the top or apex of the vein, instead of along it. It is not shown or suggested that this was knowingly or purposely done; on the contrary, it appears in this and other records in this court that at the time the Bunker Hill claim, and others within the immediate vicinity, were located, it was supposed by the locators thereof that the vein or lode outcropping thereon ran in an easterly and westerly direction. That fact is referred to by counsel for the present appellants in his brief on behalf of the Empire Company in cause numbered 950, where, in speaking of a dispute between the owners of the Stemwinder and Emma claims in December, 1885, he said: "The Stemwinder at that time lay in an easterly and westerly direction. It was supposed that the ledges ran easterly and westerly, and that the ledges of the Stemwinder and Emma were separate and parallel ledges." What were intended as the side lines of the Bunker Hill claim, therefore, actually became its end lines, under the familiar doctrine hereinafter referred to.

The bill further alleges that the Bunker Hill Company is, and for many years has been, the owner in fee and in the actual and exclusive possession of the Bunker Hill claim, and of the apex of the Bunker Hill lode within the claim, and of such part of the said vein or lode throughout its entire depth as lies westerly from, outside of, and beyond a vertical plane drawn downward through the westerly side line of the claim, and between vertical planes drawn downward through the end lines thereof extended indefinitely in their own direction westwardly; that neither of the defendants to the suit is, or ever has been, in possession of any part of the Bunker Hill claim or of the Bunker Hill lode as thus described, and that each of them claims an estate or interest therein adverse to the Bunker Hill Company, which the latter alleges to be false and groundless, and without any right whatever, and a cloud upon its title; that the value of that part of the Bunker Hill lode situated westerly of its side line, and between vertical planes drawn downward through its end lines, exceeds the sum of $500,000, exclusive of interest and costs. The prayer of the bill is, among other things, that the defendants, and each of them, be required to set forth the nature of their respective claims, and for a decree adjudging the alleged title of the complainant to be good and valid, and that the defendants have no interest in or to the Bunker Hill claim or lode as described in the bill.

The defendants interposed a demurrer to the bill on the ground that it did not make or state such a case as doth or ought to entitle the

complainant to any such discovery or relief as is thereby sought or prayed for. The demurrer being overruled, each of the defendants filed a separate and similar answer, and also a cross-bill, differing only in that each alleged ownership in the respective defendants of separate and distinct mining claims. Each of the answers admits that the complainant owns the surface of the Bunker Hill claim, and the vein or lode within its boundaries, but denies that the course of the vein is northerly and southerly, or that it crosses the alleged side line thereof, or that in its downward course it passes westerly beyond a vertical plane drawn through the west side line of the Bunker Hill claim, or that the complainant company is the owner of any part of the lode situated west of its alleged west side line.

The cross-bills alleged ownership, respectively, in the Last Chance Company of the Last Chance mining claim; in the Shoshone Company of the Shoshone and Summit mining claims; and in the Empire Company of 16 other mining claims, specifically named and described-all of which, with the outcrop of the vein or lode therein, its course and dip, and its conflict with the extralateral right claimed by the Bunker Hill Company, are described in the respective cross-bills. They also allege that the vein or lode described in the Bunker Hill claim does not cross its end lines as now claimed, but crosses its original end lines, and that the Bunker Hill Company's right to follow its vein or lode downward is between the parallel vertical planes drawn through its located end lines; that the course of the vein or lode, instead of being northerly and southerly, is north, about 51° west, and that to follow it westerly, as complainant claims the right to do, would be following it more along its course or strike than upon its true dip. The prayer of the cross-bills was to the effect that the Bunker Hill Company be required to set forth any and every adverse interest, claim, or demand which it had to the claims, veins, or lodes described in the cross-bills, whether the same be claimed by the Bunker Hill Company by virtue of its ownership of the Bunker Hill claim and of the lode apexing therein or by virtue of its ownership of any other claim, vein, or lode, and that such adverse claim, interest, or demand be decreed null and void as against the cross-complainants, and that their respective titles thereto be quieted.

To each of the cross-bills the Bunker Hill Company demurred on the ground that it presented mere matter of defense, and that the mining claims therein described were not included in or embraced by the original bill of complaint. The demurrers to the cross-bills were sustained by the court below.

We think the ruling of the court below upon all of the demurrers was right. Two objections are made to the bill. One is that it contains no allegation concerning the general course of the vein beyond the limits of the Bunker Hill claim; and the other that the bill does not show that the complainant is the legal owner and in the exclusive possession of the ore bodies in controversy. In respect to the first objection, it is not perceived that there is any necessity for an averment in such a bill concerning the general course of the vein beyond the limits of the claim. The statute authorizes citizens of the United States and

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