THIS suit was commenced in the Circuit Court of the United States for the District of Utah by the United States Mining Company, claiming to be the owner of certain mining property, and praying that its title thereto be quieted and the defendant restrained from taking any ore therefrom. Jurisdiction was founded on diverse citizenship. In an amended complaint, filed June 2, 1902, it was alleged that the plaintiff is the owner and in possession of four mining claims known as the Jordan Extension, the Northern Light, the Grizzly and the Fairview lode mining claims, the boundaries of each being given; that these mining claims are adjacent to each other and to certain other mining claims, all owned and worked by the plaintiff as one property for mining purposes; that beneath the surface of the claims above mentioned is a vein or lode of great value; that the defendants wrongfully claim to own said vein or lode and the ores and minerals therein contained; that they have by means of secret underground works obtained access thereto and have mined, extracted and removed large quantities of valuable ores therefrom; that they threaten to continue such wrongful and unlawful invasion of the premises and to continue to mine, extract and remove ores and minerals; that the defendants are in possession of a mining claim adjacent to the four mining claims of plaintiff, known as the Kempton mining claim, United States Lot 255, which was located in the year 1871, and on information. and belief that the defendants pretend that the mineral deposits and ores under and beneath the surface of the four mining claims above mentioned are in and part of a mineral vein and lode belonging to and having its apex in said Kempton mining claim and on the dip of said alleged vein, which pretense the plaintiff charges to be contrary to the truth. The plaintiff further alleges that it is the owner and in possession of two certain mining claims, one named the Jordan Silver Mining Company's Mine, but usually known as the "Old Jordan," located December 17, 1863; the other the Mountain Gem Lode and Mining Claim, located August 20, 1864, the boundaries of each of which are given; that in these two claims there is a lode, bearing silver and other metals, whose apex is within the surface boundaries; that the dip of said lodes is toward the Kempton claim occupied by the defendants, and that if there be any mineral vein or lode in the Kempton claim it is not one that has its apex within the limits of that claim but is a part of the lodes apexing within the "Old Jordan" and Mountain Gem claims. The relief prayed for was a decree quieting plaintiff's title and restraining the defendants from mining and removing any ores or minerals. To this amended complaint the defendants filed a demurrer, stating, as one of the grounds thereof, that the plaintiff had an adequate remedy at law. This demurrer was overruled, and thereupon the defendants filed an answer and subsequently an amended answer, setting forth their title to the Kempton mining claim, and also to a claim known as the Ashland mining claim, and alleging that there are lodes whose apices are within these claims; that on their dip they enter beneath the surface of the plaintiff's claims, and that it is upon them that defendants have been mining; that the Kempton claim was patented to their grantors and predecessors in interest on February 23, 1875. They further deny that the "Old Jordan" claim was located on December 17, 1863, or patented July 14, 1877; deny that the Mountain Gem claim was located on August 20, 1864, or that a patent had been issued on said alleged location. They further aver that if there be any lode or vein in either the "Old Jordan" or the Mountain Gem claims, that such lode or vein is entirely distinct from those which have their apices in the Kempton and Ashland claims. On the hearing the court denied the application of the defendants to set the case for trial as a law case before a jury. At the same time it entered a decree dismissing the plaintiff's bill. From this decree the plaintiff appealed to the Circuit Court of Appeals (67 C. C. A. 587; 134 Fed. Rep. 769), which reversed the decree of dismissal, and remanded the case with instructions to enter a decree for the plaintiff in conformity with the prayer of the bill. Thereupon, Argument for Petitioners. 207 U.S. on application of the defendants, the case was brought to this court on certiorari. Mr. Charles J. Hughes, Jr., with whom Mr. Ogden Hiles and Mr. Charles C. Dey were on the brief, for petitioners: This action should be dismissed for want of equity. The bill, which alleges that respondent has the legal title and is in possession of the ore, was drafted so as to obviate a demurrer for want of equity, and to render it immune to the objection that it is an ejectment bill, and thus evade a jury trial. Failure to allege that the title of complainant has been established by at least one trial and verdict at law, is a prime test and proof that it is an ejectment bill. In order for a party in possession to maintain a bill of peace for the purpose of quieting his title to land against a single adverse claimant ineffectually seeking to establish a legal title, by repeated actions of ejectment, it is necessary for the bill to aver that complainant's title has been established at law; and where it appears from the bill that an action at law involving the same questions has been commenced but has not been tried, it is a fatal defect. Boston &c. Mining Co. v. Montana Ore Co., 188 U. S. 632, 641; 1 Daniell's Chan. Pl. Perkins, 3d Am. Ed., 573; Pomeroy, Eq., §§ 177, 248, 253; Adams, Eq., 331; Bainbridge on Mines, 505. In mining cases where irreparable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, and the legal title is in dispute, the modern practice is to require an action at law to be brought to try the legal title, and then to allow an ancillary action on the equity side of the court, in aid of the action at law, and for an injunction to preserve the property, pending the legal proceedings for the determination of the title. Earhart v. Boaro, 113 U. S. 537, 538; Stevens v. Williams, 5 Morrison's Min. Rep. 449-453; Morrison's Min. Rights, 12th ed., 334, 335. In this case there is no ground of equitable jurisdiction. 207 U.S. Argument for Petitioners. All the matters set up affecting the title are of legal cognizance in which the parties have a constitutional right to a trial by jury. Hipp v. Babin, 19 How. 271; Lewis v. Cocks, 23 Wall. 466. Section 3511, Rev. Stat. of Utah of 1898, is not applicable in suits to quiet title in the Federal courts of that State; nor by that statute can the legal title to land be settled in a suit to quiet title without the intervention of a jury. Park v. Williamson, 21 Utah, 279, 285, held that where there are both equitable issues, and issues of fact in the case, the court should first determine the equitable issue, and then submit the issues of fact to a jury upon proper instruction, and a failure to do so constitutes reversible error. All other questions apart, the court below ought to have dismissed this bill sua sponte, according to the rule established by this court in numerous decisions. Hipp v. Babin, 19 How. 271, 278; Parker v. Winnipieseogee, 2 Black, 545, 550; Lewis v. Cocks, 23 Wall. 466, 470; Killian v. Ebbinghaus, 110 U. S. 568, 573; Grand Chute v. Winegar, 15 Wall. 375; Allen v. Pullman Car Co., 139 U. S. 658, 662. Not only do the pleadings show that this is a dispute concerning the legal title only, but the evidence adduced by the respondent in its case in chief proves, without more, that the petitioners were in the actual possession and immediate occupation of the segment of the lode in controversy. The evidence on the part of respondent, in its case in chief, proves that the "Kempton people" when this suit was brought, were working in mines or workings "owned by them" and which extended from the surface to the lowest level. The testimony shows that the Kempton workings at the surface are inside the Kempton exterior surface boundaries, and on the apex of the lode. Such a possession is an actual and not a constructive possession of the lode throughout its entire depth, on its dip, beyond the northerly side line of the Kempton claim, under adjacent surface ground. This evidence, in itself, is sufficient to warrant the court in |