De Lamar's Nevada Gold Mining Co. v. Nesbitt

delivered the opinion of the court.

Defendant, known as De Lamar’s Nevada Gold Mining Company, (hereinafter referred to as the mining company,) claims title to the property in question through an application filed by Davidson in the land'office at Carson City, in pursuance of Kev. Stat. § 2325, for a patent to the Sleeper mine, against the issue which patent plaintiff Nesbitt filed an adverse claim as to so much of the Sleeper mine as was embraced within the boundaries of the Fraction mine.

Plaintiff Nesbitt took title to the Fraction mine through a location made May 12, 1892, by W. De Beque, H. Stevens and A. Borth, who, it appeared, performed all the acts required to make a valid location. Plaintiff claimed that he and George Nesbitt, his brother, had acquired all the right, title and interest of De Beque and Stevens to this mine through certain judgments recovered in a justice’s court against De Beque and Stevens, upon which executions had been issued, and a sale made to the Ne'sbitt brothers of their interests in the Fraction mine. This left the Nesbitts and Borth the owners of that mine as tenants in common. The court held these judgments to be void, but admissible for the purpose of- showing or tending to show color of title and adverse possession in the Nesbitts' and Borth. It further appeared that the Nesbitts and Borth did assessment work in each of the years 1895, 1896 and 1897 to the full amount required by law, (§ 2321;) that no work was done in either of the years 1893 and 1891, but. that the Nesbitt brothers, in December of each of said years, had a notice recorded in the county recorder’s office, where the original notice of the location of the Fraction mine was filed, declaring their intention in good faith to hold and work the mine. Meantime, however,, the Sleeper mine was located January 1, 1895, the boundaries of which took in the Fraction mine.

From this summary of the pleadings and findings of the court, it is clear that the defendant set up no right, title, privilege or immunity under a statute of the United States, the decision of which was adverse to it in that particular. The mere fact that the mining company claimed title under a location made- by Davidson under the general mining laws of the United States,

The subject is fully discussed and the prior authorities cited in the recent case of Blackburn v. Portland Gold Mining Company, 175 U. S. 571 , which was also a contest between rival claimants of a mine under sections 2325. and 2326. It was held that the provision in section 2326 for the trial of adverse claims to a mining patent “ by a court of competent jurisdiction,” did not in itself vest jurisdiction in the Federal courts, although, of course, jurisdiction would be sustained, if the requirements of amount and diverse citizenship existed; and that the judgment of the Supreme Court' of the State in such case could not be reviewed in this court simply because the parties were claiming rights under a Federal statute. A like ruling was made in the still later case of Florida Central & Peninsular Railroad v. Bell, 176 U. S. 321 . See also California Powder Works v. Davis, 151 U. S. 389 .

If the law were otherwise, then every land case wherein one of the parties claimed title, either immediately or remotely through a patent of the United States, would present a Federal question; and as most of the land titles in the Western States of this country are traceable back to a right under the laws of the United States, every such case might be held reviewable by this court on Avrit of error. This position, of course, is untenable. If the fact that the plaintiff takes title directly or indirectly from the United States be insufficient to create a case “arising under the Constitution or laws of the United States” Avithin the meaning of the jurisdictional act of 1888, much less does it make one of a “ title, right, privilege or immunity.” claimed under a statute of the United States, an adArerse decision of which by the highest court of a State entitles the injured party under Eev. Stat: sec. 709 to a Avrit of error from this court, To raise a Federal question the right roust be one. claimed

There was undoubtedly a Federal question raised in the case, but it was raised by the plaintiff Nesbitt, who based his right to recover upon the acts of Congress of November 3, 1893, and July 18, 1894, suspending the forfeiture of mining claims for failure to do the required amount of work. The decision of the court, however, was in favor of, and not against, the right claimed under the statute, and of this construction the plaintiff in error is in no position to take advantage, as it made no claim under those statutes. This subject was considered in the case of Missouri v. Andriano, 138 U. S. 496 , in which the contest was between rival claimants to the office of sheriff. Respondent relied upon the fact that he had received a majority of the votes cast at a popular election for the office. Relator claimed the election to be void under the state constitution, which declared that no one should-be elected or appointed to office who was not a citizen of the United States. Respondent admitted his foreign birth, but claimed that, under Rev. Stat. sec. 2172, he became a citizen by the naturalization of his father. The decision of the court was in his favor, and it was held that the relator had no right to a review of the question in this court, although if the judgment had been adverse to the claim of the respondent there would have been no doubt of his right to a writ of error. It was said that the right or privilege must be personal to the plaintiff in error, and that he was not entitled to a review, where the right or privilege was asserted by the other party, and the decision was in favor of that party and adverse to himself. It is manifest that the object of section 709 was not to give a right of reYͧW wherever the validity of an act of

Except so far as the case under consideration required a construction of the above-mentioned acts of Congress suspending the forfeiture of mining claims, the questions were purely of a local nature, and not subject.to review in this court.

There is no Federal question presented by the record in this case, and it must therefore be

Dismissed.

Me. Justice McKenna dissented.