Opinion · Supreme Court of the United States

Boston & Montana Consolidated Copper & Silver Mining Co. v. Montana Ore Purchasing Co.

188 U.S. 632

Type: Opinion
Court: Supreme Court of the United States
Jurisdiction: Federal
Date: 1903-02-23
Topic: general

Me. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. It is quite plain that the various averments contained in the complainant’s bill for the purpose of showing jurisdiction in the Circuit Court are wholly unnecessary in order to make out complainant’s cause of action for the conversion of ore by the defendants on premises belonging to complainant. To make out a prima facie case on the part of complainant, so far as its right to the ore in question is concerned, all that was necessary was to show the patent and the complainant’s possession under it, and from such patent and possession the presumption would be that the complainant was the owner of all ores found within the boundaries contained in the patent extended downward into the earth, and the burden would then rest upon the defendants to show that, notwithstanding such presumption, they had the right to enter upon and take the ore from the ground within the limit described in the patent under which the complainant derives title. It could then prove facts to sustain its averments in regard to ascertaining the quantity and value of the ores which the defendants were extracting or might extract from the complainant’s premises, and that it would be altogether uncertain and indefinite as to what amount of ores or the value thereof the defendants might extract in the future, and that the complainant would be compelled to rely upon the good faith and showing of the defendants a…

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Cited by: 70 opinions

Headnotes

Federal Courts & Jurisdiction — Jurisdiction — Federal Question To give a circuit court original jurisdiction on the ground that the case arises under the Constitution or laws of the United States, the federal question must appear necessarily in the plaintiff's own statement of his cause of action, and not as a mere allegation of the defense that the defendant intends to set up or relies upon. 188 U.S. at 639
Federal Courts & Jurisdiction — Jurisdiction — Federal Question A case cannot be removed from a state court to a circuit court on the sole ground that it arises under the Constitution, laws, or treaties of the United States unless that fact appears from the plaintiff's own statement of his claim; the omission cannot be supplied by the removal petition or by later pleadings. 188 U.S. at 639
Federal Courts & Jurisdiction — Jurisdiction — Federal Question Jurisdiction is not conferred by allegations that the defendant intends to assert a defense based on the Constitution or a law or treaty of the United States, or under federal or state statutes claimed to conflict with the Constitution. 188 U.S. at 639
Federal Courts & Jurisdiction — Jurisdiction — Federal Question Where the only basis alleged for the circuit court's jurisdiction is the plaintiff's anticipatory statement of the defenses the defendant will raise, and the answer shows that the defendant does not in fact assert such a defense but disclaims and denies it, the basis of jurisdiction fails and the court cannot proceed. 188 U.S. at 640
Federal Courts & Jurisdiction — Jurisdiction — Federal Question When it appears from the answer that no defense raising a federal question is in fact set up or insisted upon, no case arising under the Constitution or laws of the United States exists, and the circuit court should dismiss the bill for want of jurisdiction rather than try questions not of a kind coming within the statute. 188 U.S. at 641
Remedies — Bills of Peace — Quieting Title For a party in possession to maintain a bill of peace to quiet his title to land against a single adverse claimant who ineffectually seeks to establish a legal title by repeated actions of ejectment, the bill must aver that the complainant's title has been established by at least one successful trial at law; it is a fatal defect if the bill shows that an action at law involving the same questions has been commenced but has not been tried. 188 U.S. at 641
Remedies — Bills of Peace — Quieting Title To maintain a bill of peace or to quiet title in the federal courts, the complainant must allege that he is in possession, or that both parties are out of possession; a state statute permitting a person not in possession to sue to quiet title does not control in federal court unless it is alleged and proved that both parties are out of possession. 188 U.S. at 642

BOSTON c. MINING CO.v. MONTANA ORE CO.,188 U.S. 632(1903)

23 S.Ct. 434

BOSTON AND MONTANA CONSOLIDATED COPPER AND SILVER MINING COMPANYv.

MONTANA ORE PURCHASING COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF

MONTANA.

No. 103.

Argued December 3, 1902.

Decided February 23, 1903.

To give the Circuit Court jurisdiction under section 1 of the act of March 3, 1887, as corrected by the act of August 13, 1888, Federal questions must appear necessarily in the statement of the plaintiff's cause of action and not as mere allegations in the plaintiff's bill of the defence which the defendants intend to set up or which they rely upon. And if it further appear from defendant's answer that no such defence is set up, no jurisdiction exists to try questions not of the kind coming within the statute, and the Circuit Court should dismiss the bill for want of jurisdiction. 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 by at least one successful trial 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. To maintain a bill of peace in the Federal courts there must be an allegation that the complainant is in possession, or that both parties are out of possession.

THE appellant in this case (being the complainant below) has

brought it to this court by an appeal from the judgment of the

Circuit Court of the United States for the District of Montana

dismissing its complaint and ordering judgment for the defendants

on the ground that the court had no jurisdiction of the action. A

decree having been entered in accordance with the direction of

the court dismissing the bill, the Circuit Court has certified to

this court the question of jurisdiction, and whether or not a

Federal question is presented in complainant's amended bill and

the answer of the defendant corporation.

Page 633

The cause of action relates to the ownership of a certain

quantity of copper ore taken and converted by the defendants from

the mining ground alleged to be owned by the complainant. For the

purpose of presenting the question of jurisdiction, the court

below has certified to this court the amended bill and the answer

of the defendants. The complainant in the bill alleges that it is

the owner and entitled to possession of certain property therein

described, known as and called the Pennsylvania lode mining

claim, lot No. 172, situated in Summit Valley mining district,

county of Silver Bow, Montana. A full description of the land is

given in the bill. The complainant's title is next set out with

much particularity and detail, from which it appears that the

original source of its title is a United States patent covering

the claim, dated April 9, 1886, issued to persons named therein,

from whom the complainant deraigns title. It is then averred that

on April 1, 1895, defendants wrongfully and unlawfully entered

upon complainant's premises, and from that time on extracted from

the mine large quantities of valuable ores, of the reasonable

value of $500,000, and that they have continued to extract and

mine ores from the premises belonging to the complainant, and are

now mining and extracting ores therefrom and threatening to

continue to do so unless enjoined by the court.

The land which the complainant claims to own is valuable

almost exclusively for the copper, silver and gold ores which are

found there in large quantities, and it is these ores that the

defendants have extracted and are threatening to continue to

extract in the future.

It is averred that the complainant has no means of

ascertaining the quantity or value of the ores which the

defendants have extracted or may hereafter extract from such

premises, and if the defendants are permitted to continue to

extract such ores it will be altogether uncertain and indefinite

as to what the amount or the value of such ores may be, and the

complainant will be compelled to rely to a great extent on the

defendants as to such amount and value; that unless the

defendants are enjoined and restrained from taking the ores the

complainant will be required to bring numerous actions for the

determination

Page 634

of the damages it has from time to time sustained by reason of

such trespasses, which are continuing on the part of the

defendants. Therefore the complainant brings this suit in order

to avoid a multiplicity of suits in the premises; and by reason

of the trespasses of the defendants and their threatened

continuance the complainant has suffered and will suffer great

and irreparable injury and damage, unless the defendants are

enjoined from further trespass as prayed for.

This is the complainant's cause of action, as set forth in the

bill, regarding the trespass and the injury inflicted and the

difficulty of proof thereof and the prevention of a multiplicity

of suits.

The complainant then further averred in the bill, for the

purpose as therein stated, of showing the jurisdiction of the

court to determine the matters set forth in such bill, that the

determination of the controversy between the parties involved the

construction of the mining laws of the United States; that the

property of the complainant is a mining claim and has been

patented as such under the provisions of the Revised Statutes of

the United States relating to mines and mineral lands; that the

defendants owned a portion of certain properties called the Rarus

lode claim, lot No. 179; the Johnstown lode claim, lot No. 173;

and the Little Ida lode claim, lot No. 126, which claims lie

north of and partially adjoining and near to the Pennsylvania

lode claim, owned by the complainant.

It is further stated that the various claims which are and

will be made by the defendants as to their rights in

complainant's mine by reason of their ownership of the other

mines above mentioned are without foundation, yet, nevertheless,

they will be urged as a defence to the cause of action set forth

in the bill of complaint, and the claims of defendants are denied

and disputed, as are also the facts upon which the defendants

base their defence, and the law arising from the same, and

complainant adds "that it disputes each and every one of the

claims made by the defendants, relative to the construction of

said several patents, and it (complainant) claims that all veins,

whose apexes lie within the Johnstown patent must be governed and

regulated in extralateral rights, if any they have, under the

Page 635

Johnstown patent, and not under or by virtue of the Rarus

patent." The complainant also averred "that the said defendants

contend and claim that the complainant cannot under any

circumstances obtain any relief for ores extracted within that

portion of the premises owned by it, without first showing that

the apices of the veins from which the ores were extracted are

within the surface lines of the ground owned and claimed by the

complainant, whereas your orator claims thatprima facieit is

the owner of all ores found within its boundaries extended

downward into the earth, until it has been shown that some other

person or company has some right thereto by reason of ownership

of the apex of the vein within some other claim." The complainant

further stated its right to enjoin defendants from mining ore

beneath the ground of complainant, because no vein having its

apex in the defendants' claim passes in its strike through the

end lines thereof so as to confer extralateral rights.

And finally: "Wherefore, your orator shows to your honors that

there is involved in the matters in controversy, between your

orator and the said defendants, the numerous questions aforesaid,

involving the construction of the statutes of the United States,

relative to locating, purchasing and patenting of mineral lands

and the construction of the statutes, relative to the right of

one claimant to follow veins down to and into the premises of

another, under the circumstances and situation of the parties as

hereinbefore set out, and also the construction of the said

statutes in relation to patenting of claims and whether the vein

can be patented to one person and the surface to another, and to

the right of the Land Department to segregate the surface from

the mineral in the ground, granting one to one person and the

other to another, and as to whether said action is authorized

under and by virtue of said statutes; and also as to whether,

when an apex of a vein is divided upon the surface, part being

within the premises granted in one patent and a part within

another, as to what, if any extralateral rights, are granted

under such circumstances to either party."

The answer of the defendants is also set forth in the certificate

of the court below, in which the defendants deny that they

Page 636

wrongfully or unlawfully entered the premises of the complainant

or that they took out any amount of ore belonging to the

complainant from that mine, and deny that the defendants ever

mined or extracted ores from premises belonging to the

complainant or threatened to do so; also deny the averments as to

the value of the ore set forth in the bill. Defendants also deny

that the determination of the controversy between the parties

involves a construction of the mining acts of the United States

or the construction of any statute of the United States whatever.

They admit that the Rarus and the Johnstown lode claims are

mineral claims, located under the laws of the United States, and

that the same have been patented under those laws, and that the

defendants own a portion of the lode called the Rarus lode claim.

The defendants also assert that they are the owners of a certain

parcel of ground within the Johnstown lode claim, and also the

owners of that portion of the Pennsylvania lode claim thereafter

described, and they claim the right to enter upon the premises of

the complainant, namely, that portion of the Pennsylvania lode

claim described in its amended bill of complaint, by reason of

the fact that certain veins owned and claimed by the defendants

and in their possession have their top or apices within the

Johnstown lode claim, lot No. 173, and that portion thereof owned

by the defendants, and that the defendants assert the right to

follow such veins on their downward course or dip, although the

same so far depart from a perpendicular as to depart from the

said Johnstown lode claim and from that portion thereof claimed

by the defendants, and enter the premises owned and claimed by

the complainant, namely, that portion of the Pennsylvania lode

claim described in its amended bill of complaint. But the

defendants deny that they claim the right to enter complainant's

premises by reason of the fact that any veins owned or claimed by

them or in their possession have their top or apices within the

Rarus lode claim or in that portion thereof owned by the

defendants, or by reason of the fact that the same have their top

or apices within the Little Ida lode claim or any portion

thereof, and deny that the defendants assert the right or any

right to follow such veins on their downward course or dip,

although the same so far depart

Page 637

from a perpendicular as to depart from said Rarus lode claim, and

to enter the premises claimed by the complainant; and deny that

they assert or claim the right to enter the premises of the

complainant by reason of the fact that any veins owned or claimed

by the defendants have their top or apices within that portion of

the Johnstown lode claim owned by the defendant, or that they

assert the right to follow such veins on their downward course or

dip, although the same so far depart from a perpendicular as to

depart from the Johnstown lode claim and from the portions

thereof owned by the defendants and enter the premises of the

complainant.

It was further averred in the answer "that in this action it

makes no claim of any right under the Rarus patent to enter upon

the veins within the ground claimed or owned by the complainant,

but that it asserts its right to do so by reason of its ownership

of a portion of the Johnstown lode claim, and the fact that the

top or apices of the veins or lode in question are within said

portion of the Johnstown lode claim." It also "denies that in

this action it contends or claims that only the surface ground of

the Johnstown claim was patented to the patentees named therein

or that all or any veins lying within the original location lines

of the Rarus claim were patented to the claimant under the Rarus

claim; . . . but defendant alleges that it contends and claims in

this action, and in so far as this controversy between

complainant and defendant is concerned, that its extralateral

rights to the veins in question should be determined by its

ownership of that parcel of ground now included within the

Johnstown claim and not by the Rarus, for the reason that said

veins or lodes have their tops or apices within the said parcel

of ground owned by defendant."

Various other denials were made, from which it appears that

the only claim made by the defendants in this action is by virtue

of their ownership of the Johnstown lode claim. The defendants by

this answer therefore admit the averments in the bill that their

rights must be governed and regulated in this action by reason of

their ownership of the Johnstown patent, and not by virtue of the

Rarus patent, and as to those rights the complainant claims that

the course of the vein cannot be followed because of the nature

of the ground.

Page 638

Mr. Louis Marshallfor appellant.Mr. John F. Forbiswas on the brief.Mr. John J. McHattonfor appellees.Mr. John W. Cotterwas on the brief.

MR. JUSTICE PECKHAM, after making the foregoing statement of facts, delivered the opinion of the court.

It is quite plain that the various averments contained in the complainant's bill for the purpose of showing jurisdiction in the Circuit Court are wholly unnecessary in order to make out complainant's cause of action for the conversion of ore by the defendants on premises belonging to complainant. To make out aprima faciecase on the part of complainant, so far as its right to the ore in question is concerned, all that was necessary was to show the patent and the complainant's possession under it, and from such patent and possession the presumption would be that the complainant was the owner of all ores found within the boundaries contained in the patent extended downward into the earth, and the burden would then rest upon the defendants to show that, notwithstanding such presumption, they had the right to enter upon and take the ore from the ground within the limit described in the patent under which the complainant derives title. It could then prove facts to sustain its averments in regard to ascertaining the quantity and value of the ores which the defendants were extracting or might extract from the complainant's premises, and that it would be altogether uncertain and indefinite as to what amount of ores or the value thereof the defendants might extract in the future, and that the complainant would be compelled to rely upon the good faith and showing of the defendants as to the amount and value of the ores which they had theretofore extracted and might thereafter extract from the premises. Indeed, the complainant asserted in the bill, an extract from which is contained in the foregoing statement, thatprima facieit is the owner of all ores found within its boundaries extended downwards into the earth, until the contrary has been shown. It would be wholly unnecessary and improper in order to prove complainant's cause ofPage 639action to go into any matters of defence which the defendants might possibly set up, and then attempt to reply to such defence, and thus, if possible, to show that a Federal question might or probably would arise in the course of the trial of the case. To allege such defence and then make an answer to it before the defendant has the opportunity to itself plead or prove its own defence is inconsistent with any known rule of pleading so far as we are aware, and is improper.

The rule is a reasonable and just one that the complainant in the first instance shall be confined to a statement of its cause of action, leaving to the defendant to set up in his answer what his defence is and, if anything more than a denial of complainant's cause of action, imposing upon the defendant the burden of proving such defence.

Conforming itself to that rule the complainant would not, in the assertion or proof of its cause of action, bring up a single Federal question. The presentation of its cause of action would not show that it was one arising under the Constitution or laws of the United States.

The only way in which it might be claimed that a Federal question was presented would be in the complainant's statement of what the defence of defendants would be and complainant's answer to such defence. Under these circumstances the case is brought within the rule laid down inTennesseev.Union Planters'Bank,152 U.S. 454. That case has been cited and approved many times since, among the latest beingArkansasv.Kansas c.Railroad,183 U.S. 185, where it was stated by Mr. Chief Justice Fuller, speaking for the court, at page 188, as follows:

"Hence it has been settled that a case cannot be removed from a state court into the Circuit Court of the United States on the sole ground that it is one arising under the Constitution, laws or treaties of the United States, unless that appears by plaintiff's statement of his own claim; and if it does not so appear, the want of it cannot be supplied by any statement of the petition for removal or in the subsequent pleadings. And moreover that jurisdiction is not conferred by allegations that defendant intends to assert a defence based on the ConstitutionPage 640or a law or treaty of the United States, or under statutes of the United States, or of a State, in conflict with the Constitution." See alsoBlackburnv.Portland c. Co.,175 U.S. 571;Shoshone c. Co. v.Rutter,177 U.S. 505.

The test of the right of removal is that the case must be one over which the Circuit Court might have exercised original jurisdiction under section 1 of the act of March 3, 1887, as corrected by the act of August 13, 1888,24 Stat. 552;25 Stat. 433. The cases hold that to give the Circuit Court original jurisdiction the Federal question must appear necessarily in the statement of the plaintiff's cause of action, and not as mere allegations of the defence which the defendants intend to set up or which they rely upon.Third Street Railway Companyv.Lewis,173 U.S. 457.

It is urged, however, on the part of the complainant that its averments in regard to the jurisdiction of the court are necessary to be set forth as a part of its cause of action, and that they show that the appellees are questioning complainant's title and interfering with its enjoyment of its property right by asserting ownership to a portion of such claim of complainant based upon two government patents issued for the Rarus and Johnstown claims respectively, and although such assertion of ownership of the appellees is, as complainant avers, without legal foundation, yet, for reasons stated in the bill, the consideration of which necessitates an examination of Federal questions, the case is in effect one to quiet complainant's title or to prevent an interference with its rights and property, and complainant avers that the allegations of jurisdiction relate to its cause of action; that they state the controversy existing between the parties as to its subject matter, not as anticipatory of the defence, but as establishing the complainant's right to have its title quieted.

But it is plain that the suit is not in truth a suit to quiet title. There is a cause of action alleged that is not founded upon any such theory, to prove which it is not necessary or proper to go into the defendants' title or to anticipate their defence to the cause of action alleged by the complainant. What is thereafter said is for the purpose of showing jurisdiction in the FederalPage 641court, not over an equitable cause of action in the nature of a bill to quiet title, but over a cause of action arising out of the laws of the United States; and the various mining laws of the United States are cited to show the truth of the assertion. It is also clear that jurisdiction in a Federal court cannot be predicated in this case upon an assertion that it is brought to prevent a multiplicity of suits. Even then the complainant's proof in the first instance would remain the same as already stated. The frequent trespasses, as alleged, of the defendants, by reason of which an equitable remedy by injunction is sought, might exist, and still it would not necessarily appear from the complainant's proof that the defendant's justification arose by reason of an alleged right under the Constitution or laws of the United States. That might appear in the defence, but would constitute no cause of action by complainant.

If, however, the bill is to be looked upon as one in the nature of a bill of peace or to quiet title, it is fatally defective in that aspect. There are two distinct kinds or classes of bills of peace, or bills to quiet title, the one brought for the purpose of establishing a general right between a single party and numerous persons claiming distinct and individual interests; the other for the purpose of quieting complainant's title to land against a single adverse claimant. In the second class the suit can be maintained by a party in possession against a single defendant ineffectually seeking to establish a legal title by repeated actions of ejectment, and in such case it is necessary to aver that the title of complainant has been established by at least one successful trial at law before equity will entertain jurisdiction. 3 Pom. Eq. Jur.2d ed. § 1394, note 3, and 1 Pom. Eq. Jur. § 246.

This bill evidently would come under the second of these classes, and it is defective in not containing an averment that the complainant's title has been at least once successfully tried at law. On the contrary, it appears from the bill itself that an action at law has been commenced involving the same questions, but has not been tried.

It is also objected that, as a bill of peace or to quiet title, it is defective, because there is no allegation that the complainant was in possession, which is necessary in such a bill. If not inPage 642possession, an action of ejectment would lie. The contention that under the Code of Montana a person not in possession may maintain an action to quiet title cannot prevail in a Federal court, unless it be alleged and proved that both parties are out of possession.Whiteheadv.Shattuck,138 U.S. 146.

The complainant fails, on both these grounds, to show that its bill is sufficient as one to quiet its title, and it therefore fails to show that the case is not covered by theUnionPlanters' Bankcase,152 U.S. 454, and other cases, above cited. If the bill do not contain facts sufficient to constitute it a bill to quiet title, all the averments as to defendants' claims as defences, and complainant's answers thereto, are only material for the purpose of showing that the defence may disclose facts which will show a case arising out of the mining laws of the United States. But this would not constitute complainant's cause of action.

But assuming for this purpose (what is otherwise denied) that the bill is sufficient to confer jurisdiction, it is so only because of its averments as to the defence to be made by the defendants to the complainant's cause of action. When we come to examine their answer we find that defendants disclaim any right under the patent for the Rarus lode claim, and confine their alleged rights to such as exist by virtue of their ownership of the Johnstown lode claim only. Defendants' claim of right to follow the veins which they aver have their top or apices in the Johnstown patent is denied by complainant. It sets up in the bill that it denies and disputes the fact that the veins upon which defendants have mined in the claim of complainant, even if such veins had their apices in defendants' ground, (which complainant does not admit,) are yet such veins as can be followed on their dip beyond the lines of defendants' possessions into the ground of complainant, and complainant alleges that the veins are broken and intersected by faults in such a manner that the same cannot be traced or followed from the ground of defendants into that of the complainant, and therefore defendants have no right to enter upon the ground of complainant for the purpose of extracting ores therefrom by reason of their ownership of the apices of any veins within their ground. There is the further fact alleged that the veins, if any, which have theirPage 643apices in defendants' claim, do not pass in their strike through the end lines of defendants' claim. This alleged inability to follow the veins, assuming that they apex in the defendants' Johnstown patent, and the allegation as to the veins not passing through end lines, are mere questions of fact, depending upon the proof as to the truth of those averments. This does not constitute a question arising out of the Constitution or laws of the United States. The answer, by its denials and disclaimers as to what it sets up by way of defence, takes away a defence which might show the case as arising under such Constitution or laws.

Complainant contends, however, that if a case of jurisdiction is made out by the bill, the court is not ousted thereof by whatever is set up in the answer. In this case the contention cannot be maintained. The only foundation for the alleged jurisdiction consists of the averments of complainant relative to the contention of the defendants as to their defence. Now, if it appear from the answer of defendants that no such claim as is necessary to give the court jurisdiction is in fact made, but on the contrary is disclaimed and denied, then the basis of jurisdiction fails and the court cannot proceed. This is so held inRobinsonv.Anderson,121 U.S. 522,524. In that case Mr. Chief Justice Waite, speaking for this court and delivering its opinion, said:

"Even if the complaint, standing by itself, made out a case of jurisdiction, which we do not decide, it was taken away as soon as the answers were in, because if there was jurisdiction at all it was by reason of the averments in the complaint as to what the defences against the title of the plaintiffs would be, and these were of no avail as soon as the answers were filed and it was made to appear that no such defences were relied on." See alsoCrystal Springs c. Co. v.City of Los Angeles, 82 F. 114, affirmed177 U.S. 169.

Jurisdiction in this class of cases must be based upon the fact that the case is one arising under the Constitution or laws of the United States. If it appear to be such in the plaintiff's pleading simply because of the allegations as to what the defences are on the part of the defendant, if when the answerPage 644come in it is seen that no such defence in fact is set up or insisted upon, it is then seen that no such case exists as stated in the complaint, and no jurisdiction therefor exists to try questions which are not of a kind coming within the statute, and the court should then dismiss for want of jurisdiction.

The complainant also objected that the defendants did not properly or effectively disclaim or deny the allegations of the complainant's bill.

In relation to the evasive character of the answer it was stated by Circuit Judge Gilbert in 93 F. 274, in regard to this case, as follows:

"It is objected that the denials of the answer do not fully and explicitly traverse the new averments of the amended bill, but that they are denials only that the defendant relies in `this action' upon the alleged rights and claims, and that the defendant disclaims only for the purpose of this present suit, without waiving its right to assert such claims in some other suit or proceeding hereafter. No exception, however, was taken to the answer for insufficiency. It was accepted as responding to the allegations of the amended bill. We think it was properly so accepted. If, in view of some possible other action affecting other interests, the defendant has attempted to reserve the privilege to assert other rights under the Rarus patent, it is immaterial to the present controversy. It is only to the rights asserted by the complainant in this suit that the defendant must make answer. It is required to make its defence to the allegations of the bill, and to show cause why the relief prayed for should not be decreed. It has answered as to its rights to extract the ores in question. It says that it claims nothing by virtue of the Rarus patent, but that it relies solely upon the fact that the ores it has taken belong to a vein which has its apex in the Johnstown lode claim, and in its strike passes through the end lines of said claim, and in its downward course extends beneath the surface of the complainant's claim. Upon such a bill and such an answer all questions concerning the right of the defendant to mine the ores in controversy are determinable, and the decree, if against the defendant, would be as effective to bar it from hereafter assertingPage 645rights under the Rarus patent as would be a decree upon any other form of answer."

We concur in the views thus expressed, and the result of the whole case is that the complainant failed to show any jurisdiction in the Circuit Court to try this case, and the order of the Circuit Court dismissing complainant's bill and giving judgment for the defendant is, therefore,Affirmed.