Statement of the Case.

and upon such determination had given judgment in favor of the plaintiff;

(2) That the defendant's withdrawal of his answer did not operate to take the complaint out of the case, or the allegations of fact contained in it, or to prevent a judicial determination of those facts; (3) That the abandonment of his claim by the defendant did not take the jurisdiction for the settlement of the question out of the hands of the court, or restore it to the Land Department;

(4) That the judgment of the court was in all respects regular; was conclusive as to the particular ground in controversy; and was binding by way of estoppel as to every fact necessarily determined by it, including the question of priority of location.

Findings of fact in such cases, even when no statute provides for making them, are a declaration by the court of the matter which it determines, and are conclusive as to it in subsequent controversies between the parties.

A judgment by default is just as conclusive an adjudication between the parties of whatever is essential to support the judgment, as one rendered after answer and contest; and in such case facts are not open to further controversy if they are necessarily at variance with the judgment on the pleadings.

In view of the conclusions reached, it is not necessary to consider what extra-territorial rights (if any) exist when a vein enters at an end line, and passes out at a side line.

ON August 8, 1891, the Tyler Mining Company brought its action in the Circuit Court of the United States for the District of Idaho to recover of the Last Chance Mining Company and others the possession of a certain portion of a mineral vein, as well as the value of the ores theretofore taken from the vein. by the defendants. After disclaimer by two and answer by the Last Chance Mining Company and other defendants, the case came on for trial. In this there was a verdict and judgment for the defendants. This judgment was reversed on error by the Court of Appeals of the Ninth Circuit, and a new trial ordered. 7 U. S. App. 463; 54 Fed. Rep. 284. At the February term, 1893, of the Circuit Court for the District of Idaho the new trial directed by the Court of Appeals was had, and resulted in a verdict and judgment for the plaintiff. On error to the Court of Appeals this judgment was, on April 2, 1894, affirmed, 61 Fed. Rep. 557, whereupon, on application of the defendants, the case was brought to this court by writ of certiorari.

Statement of the Case.

The following diagram, taken substantially from the first opinion of the Court of Appeals, fully illustrates the situation of the respective claims:

The controversy is between the owners of the Tyler claim and those of the Last Chance claim. As appears from the diagram the Tyler claim as originally located (1, 2, 3, 4) conflicts with the Last Chance claim (7, 8, 9, 10) in the triangular piece marked "A." On April 19, 1887, the owners of the Tyler claim made application for a patent for the entire claim as thus originally located. To this application the owners of the Last Chance claim filed, under the authority of sections. 2324 and 2325, Revised Statutes, an adverse claim to the conflicting ground" A," and thereafter commenced the required action in the District Court of the First Judicial District of

Counsel for Defendant in Error.

Idaho Territory. In that action the owners of the Tyler claim appeared and filed answer, but when the case was called for trial the answer was withdrawn and a judgment entered in favor of the plaintiffs. No reason for this withdrawal appears in the record of the proceedings of the District Court, but the testimony in this case shows that pending those proceedings the owners of the Tyler claim amended their application for purchase in the Land Department by excluding therefrom the territory marked on the diagram 3, 4, 5, 6, thus leaving their application only for territory outside the boundaries of the Last Chance claim.

At the first trial in the Circuit Court the record of this judgment in the District Court was admitted in evidence for the purpose of showing that the Last Chance claim had priority of location over the Tyler claim. On review in the Court of Appeals its admission was adjudged error, and by reason thereof the judgment of the Circuit Court was reversed. On the second trial in the latter court the record was again offered but was excluded, and this ruling was sustained by the Court of Appeals.

According to the original location of the Tyler claim the lode entered through an end line (1, 2), but passed out through a side line (2, 3), and did not touch the end line (3, 4). Under the amended location it passed through two parallel end lines (1, 2, and 5, 6). The amended application was accepted by the land office, and a final certificate for the tract with the reduced boundaries was issued to the owners of the claim. Within the vertical planes of the end lines (1, 2, and 5, 6) extended, the ore bodies in dispute are found, and the dip of the vein being in that direction it was held that the owners of the Tyler claim were entitled to follow the vein on its dip bevond the side line (2, 6), and took these ore bodies as a part of the vein thus followed.

Mr. W. B. Heyburn and Mr. C. S. Voorhees for plaintiffs in

error.

Mr. Arthur Brown and Mr. John R. McBride for defendant in error.

Opinion of the Court.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

The course of this vein is across the Last Chance claim instead of in the direction of its length. Under those circumstances the side lines of that location become the end lines, and the end the side lines. Mining Company v. Tarbet, 98 U. S. 463; Argentine Mining Company v. Terrible Mining Co., 122 U. S. 478; King v. Amy &c. Mining Co., 152 U. S.

222.

On the assumption that the action of the owners of the Tyler claim, in excluding from their application a portion of their claim, was legal, obviously the priority of location becomes a pivotal question. For, while the disputed ore is on the dip of the vein within the extended vertical planes of the end lines of the Tyler claim, it is also within the legal end lines of the Last Chance claim, and on the dip of the vein as it passes through that claim. Naturally, therefore, the controversy in the Circuit Court was upon the priority of location. The judgment of the District Court in the adverse suit. having been excluded from evidence, parol testimony was admitted for the purpose of determining this priority, and the question of fact arising on such parol testimony was settled by the jury in favor of the owners of the Tyler claim. Was the judgment of the District Court in the adverse suit properly excluded? The law in respect to estoppel by judgment is well settled, and the only difficulty lies in the application of the law to the facts. The particular matter in controversy in the adverse suit was the triangular piece of ground, which is not the matter of dispute in this action. The judgment in that case is therefore not conclusive in this as to matters which might have been decided, but only as to matters which were in fact decided. Hopkins v. Lee, 6 Wheat. 109; Smith v. Kernochen, 7 How. 198; Pennington v. Gibson, 16 How. 65; Stockton v. Ford, 18 How. 418; Washington &c. Steam Packet Co. v. Sickles, 24 How. 333; S. C. 5 Wall. 580; Lessee of Parrish v. Ferris, 2 Black, 606; Cromwell v. County of Sac, 94 U. S. 351; Davis v. Brown, 94 U. S. 423; Russell v.

Opinion of the Court.

Place, 94 U. S. 606; Campbell v. Rankin, 99 U. S. 261; Lumber Co. v. Buchtel, 101 U. S. 638; Stout v. Lye, 103 U. S. 66; Nesbit v. Riverside Independent District. 144 U. S. 610: Johnson Company v. Wharton, 152 U. S. 252.

The action in the District Court was brought in compliance with the express provisions of the act of Congress. The jurisdiction of the court is unquestioned, and the parties to the controversy are the same. The question then is, what was in fact decided in that action? Turning to the complaint we find that it states the boundaries of the Last Chance claim; alleges that on September 17, 1885, certain named parties duly located such claim, and that at the time of and prior to such location the ground described " was vacant and unoccupied and a part of the public domain of the United States, and the mineral lands thereof." It further describes the particular acts which were done in making the location; avers the conveyance of the title by the locators to the plaintiffs; their continued performance of the necessary work; the application on April 19, 1887, of the Tyler Mining Company for a patent for the Tyler claim; the conflict between the two claims in respect to the triangular piece of ground; the filing of an adverse claim by plaintiffs; that "said adverse claim was duly allowed by the register of said land office, and all proceedings on said application for patent on the part of the claimants therefor were by the register ordered to be stayed until the controversy as to the right of possession shall have been settled by a court of competent jurisdiction ;" and that the action was "brought in support of the protest and adverse claim so filed by the plaintiffs to determine the right of possession of the tract of ground by metes and bounds last herein before described." The prayer was that the plaintiffs "be adjudged to be owners of and entitled to the possession of the said tract of mining ground by metes and bounds last herein before described as a part of the herein before mentioned and described Last Chance mining claim," and for costs.

The scope of the answer filed by the owners of the Tyler claim is not disclosed.. It only appears that having filed an answer they withdrew it. When the case came on for trial,