Burdick v. Peterson.

of filing the petition, or in other words, at the time he became a party to the suit. Of course his citizenship before he became a party is unimportant so far as this question is concerned. If he had the right to remove at all, it was manifestly sufficient to aver the citizenship of the parties at the time that right accrued that is to say, at the time he became a party to the suit. The only question to be considered, therefore, is, whether a party who in good faith becomes the owner of property pending a litigation concerning the title thereto in a state court, and who by proper means makes himself a party to the cause in such court before trial, is entitled to the benefits of the provisions of the act of March 3, 1875, relating to the removal of causes.

In other words, if such a party be a non-resident of the state, has he, when coming into the case by intervention, the same right of removal that he would have had if originally a party plaintiff or defendant?

The statute provides, that in any suit of a civil nature brought in any state court, involving over $500, in which there shall be a controversy between citizens of different states, "either party may remove said suit into the circuit court of the United States," etc. (Sec. 2, act March 3, 1875.) Can we with propriety limit the application of the words "either party" to the original plaintiff and defendant?

I think not. The act applies to all bona fide litigants in the state courts, whether made parties originally or not. "Either party," whether plaintiff, defendant or intervenor, may remove a cause by showing the necessary facts. It follows from this that, as to an intervenor it is enough to show the citizenship of the parties at the time of his intervention, for as to him that is the commencement or bringing of the suit. But the above cited section of the act of 1875 further provides, that when, in any suit mentioned in the section, "there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or de

Frank G. & S. M. Co. v. Larimer M. & S. Co.

fendants, actually interested in such controversy, may remove said suit to the circuit court of the United States for the proper district."

This clause very clearly applies to a controversy between the original plaintiff and an intervenor who may be brought in in the course of the litigation and before trial. It is enough if the controversy described is in the suit; there is no requirement that it shall be between original parties. The intervenor became a defendant within the meaning of this clause, and since there was very clearly a controversy between him and the plaintiff, in which the original defendant had no interest, and which could be fully determined as between them, the right of removal existed.

If the petition for removal had not been filed until after the intervention, it would, upon the principle of the cases heretofore decided by this court, have been necessary to aver the citizenship of the parties at the time of intervention, but inasmuch as the petition to intervene and the petition for removal were filed at one and the same time, I am of the opinion that the use of the present tense in the latter was sufficient. It is not necessary to determine whether the motion is in time (having been made after judgment), since, independently of that question, it must be overruled.

So ordered.

THE FRANK G. & S. M. Co. v. THE LARIMER M. & S. Co.

(District of Colorado. April, 1880.)

1. REMOVAL OF CAUSE FROM STATE COURT-CASES ARISING UNDER THE LAWS OF THE UNITED STATES.-Actions upon an adverse proceeding to prevent the issuance of patent for a mining claim are cases arising under the laws of the United States, and may be removed from the state to the United States courts for trial.

Wells, Smith & Macon, for plaintiff.

T. A. Green, for defendant

Crossman v. Pendery.

MILLER, Circuit Justice. The defendant made application for patent for a mining claim in Lake county, to resist which plaintiff filed in the land office an adverse claim, and thereupon filed complaint in the district court for Lake county.

Defendant, after answer, filed a petition for a removal of the cause to the circuit court of the United States, on the ground that the subject matter of the action arises under the laws of the United States, and the case was removed accordingly.

This hearing is of a motion to remand the cause to the state court for trial. The act of congress of March 3, 1875, provides that the "United States circuit courts shall have original jurisdiction of the subject matter of all cases arising under the constitution and laws of the United States." It is impossible that such an action as this can be determined without reference to, and involving a construction of the mining laws of congress. The questions involved necessarily arise under the laws of the United States; and hence, this court has original jurisdiction of the subject matter of the action, and the case was properly removable. The motion to remand must be denied.

CROSSMAN et al. v. PENDEry et al.

(District of Colorado. April, 1881.)

1. MINING CLAIM-POSSESSION BEFORE DISCOVERY OF MINERAL IN PLACE. The prospector upon the public domain can hold to the extent of his claim in actual possession prior to the discovery of mineral in place; but if he stand by and permit another to sink a shaft within his boundaries, and the latter first discovers mineral, his will be the better claim.

T. A. Green, for plaintiffs.

Wm. Harrison, for defendants.

MILLER, Circuit Justice. This cause is submitted upon an agreed state of facts, to the effect that the ground in contro

Crossman v. Pendery.

versy is covered by the surface lines of the Orion claim, located by plaintiff, and also of the Pendery claim, located by defendant; that both locations are regular as to form; that the Orion was first located, surveyed and staked; that the locators have steadily prosecuted work in the development thereof, and have discovered mineral in place; that the discoverers of the Pendery located subsequently to the Orion, and while the locators of the latter were in possession thereof, also prosecuted work and discovered mineral in place before the discovery by the locators of the Orion. The question submitted to the court is this: Can prospectors on the public mineral domain acquire any right in which the law will protect them, prior to the discovery of mineral in rock in place? And if so, can plaintiffs, being prior locators, recover against defendants, who first discovered mineral on the land in controversy?

It is the opinion of the court, that inasmuch as the plaintiffs allowed the defendants to enter upon their claim and within their boundaries, and there to sink a shaft, in which they discovered mineral in rock in place before a discovery by plaintiffs, and to make location thereof without protest, the defendants now have the better right. But the plaintiffs might have protected their actual possession of their entire claim by proper legal proceeding prior to the discovery of mineral by the defendants, or by either party.

A prospector on the public mineral domain may protect himself in the possession of his pedis possessionis while he is searching for mineral. His possession so held is good as a possessory title against all the world, except the government of the United States. But if he stands by and allows others to enter upon his claim and first discover mineral in rock in place, the law gives such first discoverer a title to the mineral so first discovered, against which the mere possession of the surface cannot prevail, and in this case judgment must be for the defendants.

Erhardt v. Boaro.

ERHARDT et al. v. BOARO et al.

(District of Colorado. June, 1881.)

1. MINING CLAIM-DISCOVERY STAKE-POSSESSION.-The statute of Colorado, which gives sixty days after the discovery of a mining claim in which to sink a discovery shaft and make location, does not require the discoverer to remain, during that interval, in actual personal possession by being present upon the ground. The erection of the discovery stake, with the required notice thereon, is notice to all others of the claim of the discoverer, and amounts to constructive possession, which is sufficient during the period provided by the statute.

2. ASSESSMENT WORK-INTIMIDATION.-That the discoverer is prevented from doing assessment work within prescribed time, by intimidation on the part of an adverse claimant, is sufficient excuse, and will not deprive him of his right to locate the claim.

M. B. Carpenter, Wells Smith & Macon, for plaintiffs. Markham, Patterson, Thomas & Campbell, for defendants. MILLER, Circuit Justice.- Plaintiffs, while prospecting on the public domain, discovered mineral within about two feet of the surface of the ground, and on the seventeenth day of June, set up their discovery stake, containing the name of the lode - Hawk-the date of the discovery, the name of the discoverers and the other matters substantially as required by law. On the thirtieth day of June, thirteen days thereafter, the defendants pulled up the stake so set by the plaintiffs, threw it away, entered into possession and went to work in the same hole, and having sunk the shaft to the required depth, made a location of the claim.

Plaintiffs brought their action at law for the possession, alleging that they were the discoverers thereof, had planted their discovery stake, and within the sixty days allowed by law in which to complete the sinking of their prospect shaft and make their formal location, the defendants wrongfully entered and hold the claim; and plaintiffs seek an injunction in aid of their action at law, to restrain the defendants from working the claim and removing ore therefrom The affidavits filed in support of the motion for injunction show that in consequence of threats made by defendants, plaintiffs were deterred from