Syllabus.

main consideration for the outlay of money made, and the particular locality as of secondary importance; and, therefore, all that can be reasonably implied in behalf of the citizens of Millersburg is that they expected and believed that the successful operation of the institution would prove compatible with the continuance of it at that place. To now imply anything else or more, that court well says, would not only involve the absurdity of hazarding or sacrificing an institution of learning, the successful and useful operation of which within the bounds of the Conference was clearly the main inducement for the great outlay already made, "but be in disregard of the rights and interests of those residing elsewhere than at Millersburg, who have contributed either by purchasing scholarships or donations, very much more than has been raised at that place. There is mention made in the act of 1860, and also in the certificates of scholarships, of the college being established at Millersburg, but the language used does not import an agreement that it shall permanently remain there; on the contrary, we think it should, as it can fairly, be interpreted as merely descriptive of the institution. In our opinion, therefore, there exists no contract or undertaking, express or implied, for the continuance of the institution at Millersburg any longer than its useful and successful operation requires.”

It results from these views that the decree below does not give effect to an act of the General Assembly of Kentucky that is repugnant to the Constitution of the United States. The decree must, therefore, be

Affirmed.

DOWER v. RICHARDS.

ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.

No. 178. Argued December 20, 1893. Decided February 4, 1894.

Under the Statutes of the United States, a ledge containing gold-bearing rock, which has formerly been profitably worked for mining purposes, but all work upon which has been abandoned, and which, at the date of

Opinion of the Court.

a town-site patent of the land within which it lies, is not known to be valuable for mining purposes, is not excepted from the operation of the town-site patent, although, after the town-site patent has takeh effect, the land is found to be still valuable for mining purposes.

This court, upon a writ of error to the highest court of a State in an action at law, cannot review its judgment upon a question of fact.

THE case is stated in the opinion.

Mr. H. L. Gear for plaintiffs in error.

Mr. Preston F. Simonds for defendants in error.

MR. JUSTICE GRAY delivered the opinion of the court.

This was an action of ejectment, brought November 15, 1887, by the executors of Philip Richards against Harriet Dower and others, in the superior court for the county of Nevada in the State of California, to recover possession of two lots in the city of Nevada in that county, which the complaint alleged that Richards in his lifetime was the owner and in possession of.

The defendants, in their answer, alleged that Harriet Dower, of whom the other defendants were servants, was the owner and in possession and entitled to the possession of a quartz ledge and mine, called the Wagner ledge, situated partly upon and crossing the lots demanded; that Richards had no other right of possession than under a town-site patent, granted by the United States to the city of Nevada in 1869; that the ledge was known to be a gold-bearing ledge, and was held and worked as such long prior and subsequent to that patent, and was by the laws of the United States excepted from that patent; and that Harriet Dower had located the ledge, and was engaged in working it, including three hundred feet on either side thereof, under those laws. The laws relied on by the defendants were the acts of July 26, 1866, c. 262; March 2, 1867, c. 177; 14 Stat. 251, 541; June 8, 1868, c. 53; 15 Stat. 67; May 10, 1872, c. 152; 17 Stat. 91; Rev. Stat. $2392.

Opinion of the Court.

A jury trial was waived, and the case submitted to the Superior Court, which made findings of fact, in substance as follows: A town-site patent for a tract including the two lots demanded was issued July 1, 1869, by the United States to the city of Nevada, which, before May 1, 1887, conveyed all its title in these lots to Richards, and that title was now vested in the plaintiffs as his executors. Before the issue of that patent, the Wagner ledge was known to exist as a gold-bearing quartz lode, but had never been located or marked out; and there was no proof that any local mining rules were in force in that district. For many years before 1869 it had been profitably worked, and many tons of gold-bearing rock extracted from it, by persons who were trespassers upon the public domain, and were not shown to have had more than a mere possessio pedis of certain shafts, tunnels and dumps. In the winter of 1868-69, work on the ledge was abandoned, and no work was afterwards done by those persons, and the defendants did not claim under them. In 1884, Harriet Dower, being a citizen of the United States and qualified to make a mining location, attempted to make a quartz mining location upon the ledge, within the lots demanded, which in manner and form complied with the laws of the United States in respect to mining locations; and by virtue of her location she claimed the ledge with three hundred feet on each side thereof, and since did annual work thereon as required by those laws, excavated the soil, sank shafts, erected buildings, and piled earth, sand and débris across the surface of the lots. For more than a year before her attempted location, no annual work had been done by any one upon the ledge. On May 1, 1887, Richards was the owner and in possession and entitled to the possession of the lots, and the defendants wrongfully and unlawfully ejected him from the part claimed by them, and ever since wrongfully and unlawfully withheld the possession thereof from him and his executors.

Upon the facts so found, the court decided, as matter of law, that the plaintiffs were owners and entitled to the possession of the lots; that no part of them was subject to location as a mining claim at the date of Harriet Dower's attempted

Opinion of the Court.

location; that the whole of these lots passed to Richards by the town-site patent and the subsequent conveyance; and that the plaintiffs were entitled to judgment against the defendants for the restitution of the part claimed by the latter, and for costs; and gave judgment for the plaintiffs accordingly. Upon a statement of the evidence, agreed to in writing by counsel, and certified by the judge, a motion for a new trial was made and denied. From the judgment for the plaintiffs, and from the order denying a new trial, the defendants, in accordance with the state practice, appealed to the Supreme Court of the State.

That court, as stated in its opinion filed in the case, and reported in 81 California, 44, affirmed the judgment upon the following grounds: Upon the facts found and the evidence stated in the record before that court, it decided, as matter of fact, that before 1869 a gold-bearing quartz ledge was known to exist and had been profitably worked within the limits of these lots, but had never been located or marked out; that in the winter of 1868-69 all work on the ledge was abandoned, and no work was afterwards done there until one of the defendants in 1884 made the location under which they claimed; that from the time when work was so abandoned until July 1, 1869, when the town-site patent was granted, the portion of the ledge included within the boundaries of these lots was regarded as worked out, and as of no further value for mining purposes, and was not known to be valuable for mining purposes at the date of that patent, nor discovered to be so before the plaintiffs and their predecessors occupied and improved the lots for the purpose of residence under the town-site patent. Having decided that to be the state of facts at the time when the town-site patent took effect—and assuming that the provision of the act of March 2, 1867, that no title should be acquired by a town-site patent "to any mine of gold, silver, cinnabar, or copper," was not repealed by the provision of the act of June 8, 1868, c. 53, that no title should be so acquired to "any valid mining claim or possession held under the existing laws of Congress," but stood with it, as in the reënactment of both provisions in section 2392 of the Revised Statutesthe court decided, as matter of law, that land not known at

Opinion of the Court.

the time to be valuable for minerals was not excepted from the operation of a town-site patent, even if afterwards found to contain minerals which might be profitably worked. The defendants thereupon sued out this writ of error.

The only Federal question presented by the writ of error is whether there was error in this decision in matter of law.

The proposition of law on which the plaintiffs in error rely is thus stated in their brief: "When a quartz ledge, known to be gold-bearing and to have been profitably worked prior to the acquisition of a town-site patent in the year 1869, and not then worked out, is situated within the exterior boundaries of the patent," "the rights of the government and its mining grantees are not limited to such actual mining or tunnel possession as may have existed before the town-site patent; or to any continuance of a mining claim or possession by prior locators or their grantees; but the government owns and can grant the right to any quartz mine or gold-bearing ledge, which was known to exist and to be valuable for minerals before the town-site patent was obtained, and which was not worked out, when the town-site patent was obtained; and the rights of a subsequent locator under the government, by virtue of its reservation of the mine, and of the mining acts of 1866 and 1872, include a reasonable quantity of surface for the convenient working of the ledge, not exceeding three hundred feet on each side thereof."

The essential difference between this proposition and that affirmed by the Supreme Court of the State of California is that the plaintiffs in error insist that if the ledge in question was known to have been gold-bearing and to have been profitably worked before the acquisition of the town-site patent, and had not in fact been worked out before the acquisition of that patent, the right to that ledge was not included in the patent, but was reserved to the United States, and would pass by a subsequent mining location; whereas the court held that if the ledge was not known, at the time of the acquisition of the town-site patent, to contain such an amount of minerals as to be valuable for mining purposes, it was not excepted from the operation of that patent.