668 1047. lt was an absolute gift to the states, without any limitation in the nature ·'Of a property trust, or anything to prevent the application by the state ()f the swamp-land fund to general purposes. The obligation of the state should be commensurate with the proprietary rights accorded to it, and its dealings. with such rights, tested by the principles applicable to a proprietor. The most that can be claimed on the facts, interpreted most favorably to the plaintiff, is that the state-the state of Michigan, in this case-had a right to have this land listed and approved by the secretary of the interior as swamp land, and thus designated as part of the grant. But it was a right which was not asserted by the state. If it had been, it might have been disputed by the secretary; and, if he had denied it, it would never have ripened into title. At least, this would be so unless some further proceedings should be taken to vindicate and enforce that right. Instead of insisting upon this right, if it had it, the state selected and received this description under another grant, and veyed it fora valuable consideration to a third person, who took it bona fide. The state could not, after this had been done, be heard to say that it would repudiate its own course, and, dishonoring its patent, claim title under the act of 1850, and resell it to another. Certainly this could not be done without a judicial proceeding instituted for that purpose. How that might have resulted, it is not for me to say, but it is the inclination of my opinion that the result here indicated must be the result even in such a proceeding as that, or anywhere where these facts came in controversy. The result of tpese views is that the offers of oral evidence will be declined. The oral evidence offered to show that these lands were swamp lands mentioned in the grant, is, upon what appear to be undisputed facts, rejected; and the court will therefore instruct the jury that, upon the facts as they are made to appear in this case, the defendant is entitled to the. verdict. The jury were instructed accordingly.
AMADOR ME:DE:AN GOLD MIN. CO. V. SOUTH SPRmG HILL GOLD MIN.
Co.
et al.
(Oircuit Court, No D. Oalifornia. November 5, 1888.)
1.
MINES AND MINING-MINING LODES-DIPPING INTO AGRICULTURAL LANDS. : An owner under a patent of mineral lands. including a gold-bearing vein 01
s. PUBLIC LANDS-AGRICULTURAL LANDS-EQUITABLE TITLE.
lode having its apex within the boundaries of the land patented, is not entitled to follow his vein or lode down on the dip, across his exterior bounda· ries, into the lands of an adjacent proprietor, holding an elder title under a patent for agricultural lands.
The equitable title to public lands vests in the purchaser immediately upon the lawful entry, payment of purchase money, and issue of certificate of purchase thereon.. After such entry, no proprietary or pecuniary interest remains in the United States. and no subsequent grant Qf any character can affect the right of such prior purchaser. (SyllabUS Ihe Oourt.)
AMADOR MEDEAN GOLD MIN. CO. V. SOUTH SPRING HILL GOLD MIN. CO.
669
At Law. On final hearing. Action by the Amador Medean Gold Mining Company against the South Spring Hill Mining Company and others to recover possession of property. Onley, Chickering « Thomas, for plaintiff. A. C. Adam.8 and Egan « Rust, for defendants. Before SAWYER, Circuit Judge. SAWYER, J. It appears from the agreed statement of facts, that one Calvin Hammack, under a warrant issued in pursuance of the provisions of the Revised Statutes relating to bounty lands for soldiers of the war of 1812, made application, at the land-office in Sacramento, to purchase from the United States certain agricultural lands, which application was approved, the payment of purchase money for the excess made, and the usual' certificate of purchase issued on June 15,1874. Afterwards, in pursuance of this entry, a patent of the United States was duly issued on September 13,1876, embracing the premises in controversy. The title acquired by this entry, and the patent to the premises in controversy, by proper mesne conveyances, became vested in the plaintiff prior to the commission of the acts complained of, and it was in plaintiff at the commencement of this action. After the said entry and payment for the land bY' Hammack, and the issue of the certificate of purchase on June 15, 1874, and before the issue of said patent in pursuance'of such purchase and entry, to-wit, on July 18,1876, Ol1e McKim located and acquired the right to a gold mining claim, situated on land adjacent to the lands so entered by and patented to said Hammack. Having acquired the right. to the millerallocation, McKim conveyed his title to the South Spring Hill Mining Company, after which, upon application regularly made, and the performance of all the conditions required by the statute, a patent embracing said McKim's mining location was duly issued to said company by the United States under the act atithorizing the sale of mineral lands. All the title and rights acquired under said mineral patent were conveyed to, and vested in, defendant, before the performance of the acts plained of. The defEmdant, after thus acquiring the title, proceeded t(} work its claim, and develop the mine; and, in so doing, discovered the apex of a vein or lode within the exterior boundaries of the location: as patented. The defendant, in working this lode, followed it down on the dip, withont departing therefrom until it crossed the line of the adjacent agricultural land held by the plaintiff under the said patent issued upon the entry by Hammack; and worked the lode beneath the surface within the plaintiff's land. The value of the ore removed is $200, and of the land in dispute not less than $5,000. The action is to recover possession of the portion of the premises from which plaintiff has been ousted by these acts, and damages for the injury sustained. The only question is whether, under the Revised Statutes, a party discovering and acquiring title by patent from the United States to a mineral gold-bearing vein or lode having its apex within the land purchased, is entitled to follow the vein or lode down on its dip, across the bounda-
870
_;.
ries of.his own lands into the agricultural lands qf nD.Jl,d,joiningproprietor, -who elder In my judgment he, clearly, has not. title t() the agriculturliU lands, held by plaintiff, ftlIly vested on the entry'and payment by Hammack on June 15, 1874. After that the United States merely held the dry legal title in trnstfor the chaser without any pecudary or peneficial interest.in it. From the moment of the entry, payment, and issue of the certificate of purchase, these lands cease to be pu blic, and became private property. Mill·ing Co. v. Spargo, and Same v. Fick,8 Sawy. 647,16 Fed. Rep. 348, and cases cited. Also Wirthy. Branson, .98 U. S.118; DejJebackv. Hawke, 115 U. S. 405, 6 Sup..Ct. Rep. 95. By the entry and payment by Hammack, there being no known !pine on the land, the entire interest to the center of the earthyested in him, and there was nothing left in the United -States fora subsequent grant to other parties to operate upon. The oniy exceptions in the patent relate to easements and other prior rights already vested in other pa.rties, before the date of the entry, as was held in the case of Milling Co. v. Spargo, cited. No other exceptions are authorized by the statute to be inserted, and exceptions not so authorized, if inserted, Fed. Rep. 200; would be void. Cowell v. Lammers, 10 Sawy. 254, Deffeback v. Hawke, 115 U. S. 402, 406, 6 Sup. Ct. Rep. 95. Section 2322, Rev. St., relied on by defendant, does not authorize any such exception, and it only applies, at most, to public lands! and to rights before other parties acquire interests therein. It, acquired to such certainly, does not apply to agricultural lands disposed of years--:-perhaps half a century-before by the government and before any easement, or other right, has become vested in other parties. The United States can in any portion of undoubtedly grant easements, and other limited the public lands, and subsequent purchasers must take them burdened with such easements or other rights, but when it has once disposed of its entire estate. the lands to one party, it can, afterwards, no more burden it with other rights than any other proprietor of lands. Mining Debri8 Glse, 9 Sawy. 493, 18 Fed. Rep. 753. The df.fen.lant acquirbd no rights in the premises in question under the section citt,d, or any other statute of the United States, brought to the notice of the court, as against the prior grant under which the plaintiff holds. The result is that there must be a judgment for plaintiff, and it is so ordered.
BAND V.UNITED STATES.
671
ltum 1.
11. UNITED STATES.
Courl, D. Maine. October 25, 1888.) CLAIMS AGAmST UNITEDSTAT1IlS-JURI8DICTION Oll' FEDERAL COURTS-PRIOR REJECTION.
Act March 8, 1887, giving to United States courts jurisdiction of claims against the United States, contains a proviso "that nothing in this section shall be construed as giving either of the courts herein mentioned jurisdic· tion to hear and determine claims, which have been heretofore rejected or reo ported on adversely by any court, department, or commission authorized to hear and determine the same." Held that, the comptroller of the treasury having charge of the adjustment of accounts against the government, a rejection of an account by him is a rejection by a department authorized to hear and determine the same, within the meaning of the proviso. Following Blisa v. U. S., 84 Fed. Rep. 78t.
2.
UNITED STATES COMMISSIONERSc...-FEES-DRAWING COMPLAmTB.
8.
It being important to the liberty of the citizen and the due administration ,of justice that complaints and recognizances in criminal cases should be te,chnically full and 'complete, a United States commissioner is entitled to compensation for such papers 'as drawn and entered by him in good faith, and in accordance with the practice Of the state within which he acts, although the comptroller of the treasury may be of opinion that such papers may be comprised within a given space, and that all beyond is "unnecessary verbiage." Compensation at the statutory rate cannot be denied to commissioners, for oaths Mministered to sureties in crimiual cases, on the ground that such oaths were unnecessary, as they cannot be held to know the sufficiency of a 8urety offered until he has been examined under oath. Commissioners, being allowed the same fees as clerks for taking acknowledgments, are entitled to a fee for each person acknowledging a recognizance, and not simply to one fee for all the acknoWledgments of a recognizance. , ' ,
SAME-'-CRIIDNAL RECOGNIZANCE-OATHS TO' SURETIES.
4.
SAME-ACKNOWLEDGMENTS TO RECOGNIZANCE.
,
G.
SAME-DOCKET FEES.
e. SAME-'-PlcR DIEM.
Act Aug, 4. 1886, entitled " An act making appropriation to supply deficiencies in the appropriations for the fiscal year ending June 80, 1886, and for prior years, and for other purposes," and enacting tliat cer,tain sums be proprlated to supply deficiencies in the appropriation for the fiscal year 188 , and for other objects hereinafter stated, * * for fees of commissioners, · * * $50,000: provided, that for issuing any warrant or writ, or for othe,r necessary service, commissioners may be paid the same compensation as is allowed to clerks for like services. but they shall not be entitled to any docket fees, "-does not,take away the rigbjt of commissioners to receive docket fees, but only excepts their payment out of the sums so appropriated.
'*
Under Rev. St.U. S. § 847, allowing commissioners, "for hearing and deciding in criminal charges,Dve dollars a day for the time necessarily employed,· the commissioner is entitled to a per diem for" hearing and deciding" a charge, lhough no evidence be produced or witnesses examined.
Petition for the Allowance of a Claim against the United States for fees as commissioner. E. M. Rand, pro 86. George E. Bird, U. for the United States. WEBB, J. The petitioner, a commissioner of the circuit court in this district, prosecutes his claim against the United States for fees for services, his charges for which have been suspended or disallowed by the first oomptroller of the treasury. It is admitted that accounts for all these
