came on for trial; and a judgment was thereupon entered in favor of the owners of the Last Chance, the plaintiffs in the action. That withdrawal was based upon the fact that pending the proceedings in the court the owners of the Tyler claim amended their application for purchase in the land department by excluding therefrom the conflicting triangle. 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 Tyler claim. The ore bodies in dispute in the case were within the legal end lines of the Last Chance claim, and on the dip of the vein as it passes through it, and also on the dip of the vein within the vertical planes of the end lines of the Tyler extended in their own direction. The solution of the controversy, therefore, turned upon the question of priority between the two locations. When the case was before the supreme court the main question considered, and the question. upon which the court disposed of the case, was whether or not the judgment of the district court of the territory of Idaho was admissible upon the question of priority of the two claims; and the court held that it was not only admissible upon that question, but was "binding by way of estoppel as to every fact necessarily determined by it, and that priority of location was one fact so determined." 157 U. S. 695, 15 Sup. Ct. 733, 39 L. Ed. 859. In that case, as has been said, the owners of the Last Chance claim initiated in the land office a contest against the application of the owners of the Tyler location, and thereafter brought its action in the district court of the territory of Idaho to determine the contest, pursuant to the provisions of the Revised Statutes; in its complaint alleging, among other things, that the Last Chance was the prior location. After answering the complaint, and before the trial of the issues, the owners of the Tyler claim withdrew their answer, and failed to appear at the trial. The court proceeded to hear evidence on the part of the plaintiffs, upon which it made certain findings of fact and conclusions of law, and entered judgment adjudging the Last Chance Mining Company to be the owner of the triangle in conflict between the two locations, "by virtue of a valid location of the said Last Chance mining claim made by John Flaherty, J. L. Smith, M. Carlin, and John M. Burke on the 17th day of September, 1885, and that the plaintiff is entitled to the possession of the said ground so in conflict as aforesaid by virtue of such valid location." It was there contended that the defendants to the suit did not in fact contest the suit, but withdrew their answer prior to trial, and that there was only a judgment by default; but the court very properly answered that a judgment by default was just as conclusive an adjudication between the parties of whatever is essential to support the judgment as one rendered after answer and contest. "The essence of estoppel by judgment," said the court, "is that there has been a judicial determination of a fact and the question always is, has there been such determination? and not upon what evidence or by what means was it reached. A failure to answer is taken as an admission of the truth of the facts stated in the complaint, and the court may properly base its determination on such admission." These observations, it is true, were made in respect to 48 C.C.A.-43

a suit brought in pursuance of section 2325 of the Revised Statutes, pursuant to a contest actually initiated in the land office. But we think it quite clear that a determination of a fact by the judgment of a competent court in a suit brought pursuant to the provisions of the statute, followed by the issuance of a patent in favor of the prevailing party, is no more conclusive than is a patent issued in pursuance of section 2324 of the Revised Statutes for a claim against which no contest was filed. The statute, as has been said, makes any and every person claiming an adverse interest a party to the proceeding for a patent, and provides for ample notice. The notice so provided for is the equivalent of a summons in a judicial proceeding. and he who fails to heed it has no right to complain that his rights are concluded by his default, and the issuance of the patent in pursuance of the application. The land department is, as said by the circuit court of appeals for the Eight circuit in U. S. v. Northern Pac. R. Co., 37 C. C. A. 290, 95 Fed. 864, 869, "a quasi judicial tribunal, and a patent is the judgment of that tribunal upon the questions presented, and a conveyance in execution of the judgment." The application for the patent for the Last Chance was, as has been seen, for the whole claim, as indicated on the diagram herein before set out, and carried with it, as has been said, the implied, if not the express, allegation that the location was made upon land at the time open to location, and was therefore prior to any location of any one else. The issuance by the government of its patent after due notice to all the world of the application, and ample notice to every one to contest it, conclusively determined the priority of that location over every other, including the Stemwinder, and conferred upon the patentees and their successors in interest not only the entire surface of the claim, but the extralateral right conferred by section 2322 of the Revised Statutes to follow on their dip outside of the side lines, and within vertical planes drawn through the parallel end lines extended in their own direction, all veins, lodes, and ledges, the tops or apexes of which lie inside the surface lines of the claim.

From these views it results that the plaintiff in error was awarded more by the court below than it was entitled to, and therefore has no just cause to complain. But for its failure to contest the application of the Last Chance Company for the patent to its claim and the issuance of that instrument, we should feel obliged, for the reasons first herein before stated, to award the Stemwinder the right to follow the dip of the vein in question outside of its westerly side line and between vertical planes drawn through its end lines, a, b, c, d, extended in their own direction, as against the government and all subsequent locators, saving only the surface and underground rights conceded to the Emma claim. As it is, we must affirm the judgment. ment affirmed.

NOTE.

Conclusiveness of Patents for Mining Claims.

1. Persons Concluded.

Judg.

[a] (U. S. C. C. A., Colo., 1897) One not in privity with the United States, and who did not acquire any right to be preferred in the acquisition of a mineral lode or claim before the same was patented to another, and whose

grantor was never in such privity, and never acquired any such right, cannot successfully attack such patent, either at law or in equity.-Mining Co. v. Old, 25 C. C. A. 116, 79 Fed. 598.

[b] (U. S. C. C., Mont., 1895) The fact that a placer claim, for which a patent has been issued, included at the time of its location part of a lode claim which had not then been forfeited, cannot be considered in a collateral attack on the placer patent, by one who has made a subsequent vein location on part of the same land.-Railway Co. v. Migeon, 68 Fed. 811.

[c] (U. S. C. C., Nev., 1887) A patent cannot be attacked on the ground that an adverse claim was pending at the time of its issuance by one who is not in privity with such adverse claimant.-Hamilton v. Mining Co., 33 Fed. 562. [d] (U. S. C. C., S. D., 1897) Under Rev. St. §§ 2325, 2326, a decision of the land office awarding a patent for a mining claim after due publication of notice is conclusive upon an adverse claimant who has failed to file his claim, except for reasons which a court of equity might allow to be urged against a judgment at law.-Golden Reward Min. Co. v. Buxton Min. Co., 79 Fed. 868.

[e] (Colo. Sup. 1895) The grant of a patent to a mining claim from the United States to one who procured it for and assigned it to an alien is the judgment of a special tribunal, and cannot be collaterally attacked by a third party.-Mining Co. v. Lee, 40 Pac. 444, 21 Colo. 260, 52 Am. St. Rep. 216, reversing (1892) 29 Pac. 1020, 2 Colo. App. 112.

[f] (Mont. Sup. 1901) Where defendant in ejectment for a mining claim patented to plaintiff claims under a prior claim purchased from one who received a certificate of purchase therefor, he may show that plaintiff's patent was wrongfully procured, though his vendor did not resist the issuance thereof.-Murray v. Manufacturing Co., 63 Pac. 719.

[g] (Nev. Sup. 1889) One whose adverse claim has been dismissed cannot contend that the patent is void because the receiver of the public land office accepted the purchase price and gave his receipt while the suit was pending. -Deno v. Griffin, 20 Pac. 308, 20 Nev. 249.

2. Matters Concluded.

[a] (U.S.) The issuance of a patent for a claim made up of several claims acquired by purchase is conclusive that the parties named therein as grantees were the owners, not only of the surface ground described, but of any vein included therein, to the extent that its apex is found within the exterior boundaries, and of all rights and privileges incident thereto; that the several locations included in the patent had been properly made in accordance with law, including a discovery of the lode; and that the amount of work required by law had been performed thereon.-(C. C. A., Cal., 1897) Carson City Gold & Silver Min. Co. v. North Star Min. Co., 28 C. C. A. 333, 83 Fed. 658, affirming (C. C. 1896) 73 Fed. 597. Certiorari denied (Sup. 1898) 18 Sup. Ct. 940. 171 U. S. 687.

[b] (U. S. Sup., Colo., 1890) Defendant's grantor obtained a patent for placer mining land. Subsequently a patent was issued to plaintiff's grantors for a mineral lode located beneath the surface within the limits of the land covered by defendant's patent. In ejectment by plaintiffs for possession of the lode, held, that the issuing of the second patent did not raise the conclusive presumption that the mineral lode thereby granted was known at the time the first patent was issued, within Rev. St. § 2333, providing that a patent for a placer mining claim shall not include a mineral vein or lode beneath the surface, if such lode is known.—Mining Co. v. Campbell, 10 Sup. Ct. 765, 135 U. S. 286, 34 L. Ed. 155.

[c] (U. S. Sup., Mont., 1891) In ejectment against one claiming under a town-site patent, where plaintiff relies on a subsequently issued patent of the land as mineral, raising the presumption that it was mineral land when the town-site patent was issued, defendant should be allowed to prove that it was not known to be mineral land.-Davis v. Wiebbold, 11 Sup. Ct. 628, 139 U. S. 507, 35 L. Ed. 238, reversing Weibold v. Davis (Sup. Mont. 1887) 14 Pac. 865. [d] (U. S. Sup., Utah, 1889) Defendant's mining patent was attacked because issued for a location of 600 feet, whereas the local mining laws, as was

alleged, fixed the width of mining locations at 200 feet. The rules of the mining district, adopted May 17, 1870, did so fix the width, but it appeared that on May 4, 1872, the miner's meeting passed a by-law providing that surface width should be governed by the United States laws. Act Cong. May 10, 1872, fixed the width not to exceed more than 300 feet on each side of the middle vein. The claim was located under the by-law and the act of congress, and these formed a part of the application. Held, that the question as to which of these provisions was in force was a fact determinable by the commissioner of the general land office, and the patent issued by him was valid.-Mining Co. v. Kerr, 9 Sup. Ct. 511, 130 U. S. 256, 32 L. Ed. 906.

[e] (U. S. C. C. A., Cal., 1897) When a patent describes a claim as having parallel end lines, and grants extralateral rights, the courts are bound by the terms thereof, in a controversy with the owners of an adjoining claim, and cannot deny such extralateral rights on the theory that the end lines are not in fact parallel.-Mining Co. v. Doe, 27 C. C. A. 50, 82 Fed. 45.

[f] (U. S. C. C., Cal., 1893) The assignee of a mining claim procured a patent therefor, the survey being made under the supervision of the original locator. Held that, in the absence of evidence of bad faith on the part of the locator, the patent was conclusive as to the limits of the claim as against the patentee.-Mining Co. v. Doe, 56 Fed. 685.

[g] (U. S. C. C., Cal., 1896) The question of the right to a patent covering several vein or lode claims, before parallelism of the end lines was required, is within the jurisdiction of the land department; and after the same is determined by it, and a patent issued, the boundary lines as defined by the patent are the lines by which the rights of the parties are to be determined, and the patentee cannot be compelled to rely upon the lines of the several claims of which the patented survey is composed.-Carson City Gold & Silver Min. Co. v. North Star Min. Co., 73 Fed. 597, judgment affirmed (1897) 28 C. C. A. 333, 83 Fed. 658.

[h] (U. S. C. C., Cal., 1895) Where the end lines of a surface location of mining lands, as fixed in the government patent, are parallel, the patentee's right to follow the dip beyond his side lines cannot be defeated by showing that in the original location of the claim the end lines were not parallel, since the patent, while unrevoked, is conclusive on this point.-Doe v. Mining Co., 54 Fed. 935.

[i, j] (U. S. C. C., S. D., 1897) The question as to the true boundary of a mining claim for which a patent is asked is a question of fact, coming properly within the jurisdiction of the land department; and its action therein is conclusive, in the absence of fraud.-Golden Reward Min. Co. v. Buxton Min. Co., 79 Fed. 868.

[k] (Ariz. Sup. 1887) The granting of a patent for a mining claim is res judicata that the lands were mineral lands at the time of the location and known to be such.-Tombstone Town-Site Cases, 15 Pac. 26.

[1] (Colo. Sup. 1899) When a patent upon a mining claim has been issued, it conclusively settles, as against collateral attack, that all steps necessary to constitute a valid location of such claim have been taken; hence evidence by the owners of a tunnel site, who had tunneled and discovered blind leads underneath a lode claim upon which receiver's receipt had issued prior to the location of the tunnel site, and the patent issued thereto after such location, that no ore in place had been discovered on such lode claim, as required by law, thereby rendering it invalid, and fixing the ownership of such leads in them, was properly excluded.-Calhoun Gold-Min. Co. v. Ajax Gold-Min. Co., 59 Pac. 607.

[m] (Mont. Sup. 1886) A patent for a mining claim conclusively proves that the lands described therein are mineral lands, that a discovery and location within such boundaries have been made according to law, that the necessary amount of work has been performed thereon, and that all preliminary and precedent acts necessary to authorize the issuance of a patent have been performed according to law.-Talbott v. King, 9 Pac. 434, 6 Mont. 76.

[n] (Mont. Sup. 1887) The issuance of a patent to a quartz-lode mining claim is conclusive as to the title to the land within its limits, in an action at law. Butte City Smoke-House Lode Cases, 12 Pac. 858, 6 Mont. 397.

[o] (Mont. Sup. 1895) The granting by the United States of a patent to a

mining claim is conclusive of the sufficiency of the location notice.-Chambers v. Jones, 42 Pac. 758, 17 Mont. 156.

[p] (S. D. Sup. 1898) Citizenship of one, and his rights to a mining claim dependent thereon, cannot be questioned in an action between him and other individuals to determine adverse claims to mining property.-McCarthy v. Speed, 77 N. W. 590, 11 S. D. 362.

3. Proceedings.

[a] (U. S. C. C. A., Colo., 1897) A patent issued in accordance with the provisions of the act of May 10, 1872 (17 Stat. 91, 94, c. 152, §§ 3, 9; Rev. St. §§ 2322, 2328), to a mining claim located before the passage of that act, under the act of July 26, 1866 (14 Stat. 251, c. 262), conveys the legal title to every vein or lode whose apex is within the exterior boundaries of the mining claim extended downward vertically, and is not subject to collateral attack in an action at law, either on the ground that there was a claim adverse to that patented when the act of May 10, 1872, was passed, or on the ground that adverse rights were affected by its issue.-Mining Co. v. Old, 25 C. C. A. 116, 79 Fed. 598.

[b] (U. S. C. C. A., Nev., 1899) A patent, issued by the state, to mineral land reserved from a grant by the United States, to the state, being without authority of law, and prohibited by the law of the state which issued it, is subject to collateral attack in an action at law.-Garrard v. Silver Peak Mines, 36 C. C. A. 603, 94 Fed. 983.

[c] (U. S. C. C., Nev., 1897) A patent valid on its face may be collaterally attacked in an action at law, and shown to be void by extrinsic evidence which by its nature is capable of showing a want of authority to issue the patent or convey the title.-Garrard v Silver Peak Mines, 82 Fed. 578.

(109 Fed. 817.)

MULLIN et al. v. UNITED STATES, to Use of CHAPIN-HALL
LUMBER CO.

(Circuit Court of Appeals, Second Circuit. July 10, 1901.)

No. 136.

1. FEDERAL JURISDICTION-ACTION ON BOND FOR GOVERNMENT WORK. An action on bond for government work, which 28 Stat. 278, c. 280, requires a contractor to give, conditioned that the contractor shall promptly pay laborers and material men, and on which such statute authorized such persons not paid to sue in the name of the United States for their benefit, is within the provision of Judiciary Act 1875 (18 Stat. 470), brought into Act 1887, corrected by Act 1888 (25 Stat. 433), giving circuit courts jurisdiction of civil suits "arising under the laws of the United States," where the matter in dispute exceeds $2,000. 2. SAME-PERSONAL LIABILITY.

One not an obligor on a bond given by a contractor for government work cannot be held liable for breach of condition in a direct suit on the bond, though he is an indemnitor of an obligor, and, on the contractor giving up, takes up, with the consent of all concerned, the completion of the contract for him.

3. SAME-BENEFICIARIES.

Where R., contractor for government work, gives up, and K., indemnitor for an obligor on bond of R, takes up, with the consent of all concerned, the completion of the work under the contract for R., a person who, having a contract with R. to furnish him materials, keeps on and furnishes them to K. under his said contract, is within the provision of the bond given by R., that he should promptly pay all persons supplying him materials for the work.