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right? It must be remembered that the dis- established by a location at the time of the covery and the marking on the ground are entries of plaintiff's claims, sought to innot matters of record but in pais, and, if validate them by proof that there had been disputed in an adverse suit or otherwise, no previous discovery of mineral. This must be shown, as other like facts, by parol was refused by the trial court, and we sustestimony. It must also be remembered that tained the ruling, saying (p. 510, L. ed. p. the certificate of location required by the 1206, Sup. Ct. Rep. 890): Colorado statutes need not be verified. The “The patents were proof of the discovery, one in this case was not. A locator might, and related back to the date of the locaif so disposed, place the date of discovery tions of the claims. The patents could not before it was in fact made, and at any time be collaterally attacked. This has been dewithin three months prior to the filing of cided so often that a citation of cases is unthe certificate.
necessary." But it has been said that the question has An entry, sustained by a patent, is conclubeen decided by this court adversely to these sive evidence that, at the time of the entry, views, and Enterprise Min. Co. v. Rico- there had been a valid location, and such Aspen Consol. Min. Co. 167 U. S. 108, 42 L. valid location implies, as one of its condied. 96, 17 Sup. Ct. Rep. 762, and Calhoun tions, a discovery; and the decision only Gold Min. Co. v. Ajax Gold Min. Co. 182 U. went to the extent that this could not be S. 499, 45 L. ed. 1200, 21 Sup. Ct. Rep. 885, challenged by one who, at the time of the are cited. In the former case the question entry, had made no location, and therefore was as to when a vein discovered in a tun- had acquired no tunnel right. There is nothnel must be located, and in the opinion (p. ing in this ruling to conflict with the views 112, L. ed. p. 100, Sup. Ct. Rep. p. 763) we we have expressed. said:
It would seem, therefore, from this re"In order to make a location there must view of the authorities as well as from the be a discovery; at least, that is the general foregoing considerations that, as between rule laid down in the statute. Section 2320 the government and the locator, it is not a (U. S. Comp. Stat. 1901, p. 1424) provides : vital fact that there was a discovery of ‘But no location of a mining claim shall be mineral before the commencement of any of made until the discovery of the vein or lode the steps required to perfect a location, and within the limits of the claim located.' The that if, at the time of the entry, everything discovery in the tunnel is like a discovery has been done which entitled the party to on the surface. Until one is made there is an entry, to wit, a discovery and a perfected no right to locate a claim in respect to location, the government would not be justi. the vein, and the time to determine where fied in rejecting the application on the and how it shall be located arises only upon ground that the customary order of procethe discovery,—whether such discovery be dure had not been followed. In other words, made on the surface or in the tunnel.” the government does not, by accepting the
But that comes far short of meeting the entry, and confirming it by a patent, deterquestion before us. It is undoubtedly true mine as to the order of proceedings prior to that discovery is the initial fact. The lan- the entry, but only that all required by law guage of the statute makes that plain, and have been taken. parties may not go on the public domain and If, therefore, the entry and patent do not acquire the right of possession by the mere of themselves necessarily determine the orperformance of the acts prescribed for a lo- der of the prior proceedings, why may not cation. But the question here is whether, if anyone who claims rights anterior to the there be both a discovery and the perform- entry, and dependent upon that order, show, ance of all the acts necessary to constitute a as a matter of fact, what is was? One not location, the order in which these things a party to proceedings between the govtake place is essential to the right of ex- ernment and the patentee is concluded by clusive possession which belongs to a valid the action of the government only so far as location.
that action involves a determination. There In the Ajax Case the contest was between is a determination by the fact of entry and mining claims, on the one hand, and a min- patent that there was, prior to the entry, ing claim and tunnel site, on the other. All a discovery and a location. Having been so the mining claims had passed to patent. The determined, third parties may be concluded plaintiff in error, who was defendant below, thereby. held the junior patent issued upon a later But it may be said that when the time of entry, and the entries of plaintiff's claims a particular fact is concluded by an adjuwere made and the receiver's final receipts dication, or when an opportunity is preissued prior to the location of the tunnel sented for such an adjudication, and not site. In other words, the defendant, admit- availed of, the time as stated must be con. ting that its right to a tunnel had not been 'sidered as settled; that when the plaintiff applied for its patent, if there was any | Is the owner of a tunnel who simply seeks question to be made by the defendant of any to protect his tunnel, and has, as yet, disstatement of fact made in the location cer- covered no lode claim, bound to adverse an tificate or other record, it should have been application for the patent of a lode claim, challenged by an adverse suit. Failing to the lode of which was discovered on the do so, the fact must be considered to be surface? It is contended that the case of settled as stated. Undoubtedly, if, in an Enterprise Min. Co. v. Rico-Aspen Consol. adverse suit, the time of any particular mat. Min. Co. 167 U. S. 108, 42 L. ed. 96, 17 Sup. ter is litigated, the judgment is conclusive; Ct. Rep. 762, decides this question. But in and if the date of discovery stated in the that case the line of the tunnel did not enplaintiff's location certificate had been ter the ground of the lode claim, but ran challenged in an appropriate action brought parallel with and distant from it some 500 by the defendant, and determined in favor feet, and we held that the mere possibility of the plaintiff, there could be now no in- that, in the line of the tunnel, might be disquiry. So, when the owner of a lode claim covered a vein which extended through the makes application for a patent, and the ground of the distant lode claim, did not owner of another seeks to challenge the necessitate adverse proceedings. Here the former's priority of right on account of the line of the tunnel runs directly through the date of discovery, it is his duty to bring an ground of the plaintiff, and the question is adverse suit; and, if he fails to do so, that distinctly presented whether, in order to question will be, as to him concluded. Such protect the right to that tunnel, the deis the purpose and effect of the adverse pro- fendant was called upon to adverse? Whatceedings.
25 S. 0-18.
ever might be the propriety or advantage of Is the same rule also applicable to a tun- such action, the statute does not require it. nel site ? This opens up the question of Sections 2325 and 2326 (U. S. Comp. what are the rights and obligations of the Stat. 1901, pp. 1429, 1430) provide the manowner of a tunnel. And here these facts ner of obtaining a patent and for adverse must be borne in mind: The owner of a proceedings. The first commences: “A pattunnel never receives a patent for it. There ent for any land claimed and located for is no provision in the statute for one, and valuable deposits may be obtained in the none is in fact ever issued. No discovery of following manner.” This, obviously, does mineral is essential to create a tunnel right not refer to easements or other rights, nor or to maintain possession of it. A tunnel the acquisition of title to land generally, is only a means of exploration. As the sur- but only to land claimed and located for face is free and open to exploration, so is valuable deposits. Then, after prescribing the subsurface. The citizen needs no per- certain proceedings, the statute adds: "If mit to explore on the surface of government no adverse claim shall have been filed with land for mineral. Neither does he have to the register
it shall be assumed get one for exploration beneath the surface that the applicant is entitled to a patent for like purpose. Nothing is said in § 2323
and that no adverse claim exists." (U. S. Comp. Stat. 1901, p. 1426) as to The next section commences, “where an adwhat must be done to secure a tunnel right. verse claim is filed during the period of pubThat is left to the miners' customs or the lication, it shall be upon oath of the person state statutes, and the statutes of Colorado or persons making the same, and shall show provide for a location and the filing of a the nature, boundaries, and extent of such certificate of location. When the tunnel adverse claim.” The section then authorizes right is secured the Federal statute pre- the commencement of an action by the adscribes its extent,--a tunnel 3,000 feet in verse claimant and a stay of proceedings in length and a right to appropriate the veins the Land Department pending such action, discovered in such tunnel to the same extent and adds: as if discovered from the surface.
"After such judgment shall have been If the tunnel right was vested before a rendered, the party entitled to the possession discovery in the plaintiff's lode claim the of the claim, or any portion thereof, may, defendant ought to have the benefit of it. without giving further notice, file a certiThe plaintiff's right does not antedate his fied copy of the judgment roll with the regisdiscovery; at least it does not prevail over ter of the land office, together with the cerany then-existing right. But, it is said, tificate of the surveyor general that the the defendant did not adverse the plaintiff's requisite amount of labor has been expended application for a patent; that its omission or improvements made thereon, and the deso to do precludes it from now asserting a scription required in other cases, and shall riglit prior to the date of discovery named pay to the receiver five dollars per acre for in the certificate of location, just as a his claim, together with the proper fees, judgment in an adverse suit involving the whereupon the whole proceedings and the question of date would have been conclusive.' judgment roll shall be certified by the regis.
ter to the Commissioner of the General Land all rights necessary or proper to the pos Office, and a patent shall issue thereon for session and enjoyment of the same, has no the claim, or such portion thereof, as the support in any legislation of Congress. The applicant shall appear, from the decision land officers, who are merely agents of the of the court, to rightly possess. If it ap- law, had no authority to insert in the patpears from the decision of the court that ent any other terms than those of conveyseveral parties are entitled to separate and ance, with recitals showing a compliance different portions of the claim, each party with the law and the conditions which it. may pay for his portion of the claim, witb prescribed.” the proper fees, and file the certificate and Other limitations in the full title grantdescription by the surveyor general, where-ed by a patent for a mineral claim are recupon the register shall certify the proceed- ognized in the statutes. Thus, by § 2339. ings and judgment roll to the Commissioner (U. S. Comp. Stat. 1901, p. 1437), which is of the General Land Office, as in the preced- found in the same chapter as the other secing case, and patents shall issue to the tions quoted, the one devoted to "Mineral several parties according to their respective Lands and Mining Resources,” it is providrights.
ed that: Reading these two sections together, it "Whenever, by priority of possession, is apparent that they provide for a judicial rights to the use of water for mining, agdetermination of a controversy between two ricultural, manufacturing, or other purparties contesting for the possession of poses, have vested and accrued, and the same "land claimed and located for valuable des are recognized and acknowledged by the loposits;" in other words, the decision of a cal customs, laws, and the decisions of conflict between two mining claims,-a de- courts, the possessors and owners of such cision which will enable the Land Depart-vested rights shall be maintained and proment, without further investigation, to issue tected in the same; and the right of way for a patent for the land. A tunnel is not a the construction of ditches and canals for mining claim, although it has sometimes the purposes herein specified is acknowlbeen inaccurately called one. As we have edged and confirmed.” seen, it is only a means of exploration. The But it has never been supposed that the owner has a right to run it in the hope of owner of any of these rights was compelled finding a mineral vein. When one is found to adverse an application for a patent for he is called upon to make a location of the a mining claim, for they are not “mining ground containing that vein, and thus cre- claims.” ates a mining claim, the protection of which The decisions on the question of the duty may require adverse proceedings. As the of the tunnel owner to adverse the applicaclaimant of the tunnel he takes no ground tion of the lode claimant are not harmofor which he is called upon to pay, and is nious. In Bodie Tunnel & Min. Co. v. Bechentitled to no patent. A judgment in ad. tel Consol. Min. Co. 1 Land Dec. 584, Secverse proceedings instituted by him (if such retary Kirkwood held that a tunnel locaproceedings were required) might operate tion was a mining claim and necessitated to create a limitation on the estate of the adverse proceedings to protect its rights as applicant for a patent to the mining claim, against an applicant for a lode claim (sec and, thus as it were, engraft an exception also Back v. Sierra Nevada Consol. Min. Co. on his patent. But, taking the whole sur 2 Idaho, 420, 17 Pac. 83), while the suface, the applicant is required to pay the preme court of Colorado, in Corning Tunnel full price of $5 per acre, with no deduc-Co. v. Pell, 4 Colo. 507, denied the right tion because of the tunnel. The statute pro- of a tunnel owner to adverse the applicavides for no reduction on account of any tion for a patent for a lode claim where the tunnel. The tunnel owner might be said to lode had not been discovered in the tunnel, have established his right to continue the and the discovery shaft was not on the line tunnel through the lode claim after patent, of the tunnel. Lindley, $ 725, referring to -a right which he undoubtedly had before the decision in Enterprise Min. Co. v. Ricopatent, or at least before entry. There is Aspen Consol. Min. Co. 167 U. S. 108, 42 no statutory warrant for placing in a pat. L. ed. 96, 17 Sup. Ct. Rep. 762, said: ent to the owner of a lode claim any limi- “In the light of this decision and the one tation of his title by a reservation of tunnel which it affirms, the rule may be thus forrights. In Deffeback v. Hauke, 115 U. s. mulated: Where a lode claimant applies 392, 406, 29 L. ed. 423, 427, 6 Sup. Ct. Rep. for a patent to a location embracing a lode 95, 101, we said:
which has previously been discovered in the "The position that the patent to the plain- tunnel, the tunnel claimant will be comtiff should have contained a reservation ex- pelled to adverse to protect his rights. cluding from its operation all buildings right in the particular lode inures to the and improvements not belonging to him, and 'tunnel proprietor immediately upon its dis
covery in the tunnel, which right is essen- agents when purchasing stock for them in the tially adverse to the lode applicant; but
stock yards, is an interference with interwhere there has been no discovery in the
state commerce, forbidden by the act of July
2, 1890, (26 Stat. at L. 209, chap. 647, U. S. tunnel, and it cannot be demonstrated that
Comp. Stat. 1901, p. 3200), to protect trade the lode will be cut by the tunnel bore, there and commerce against unlawful restraints is no necessity for an adverse claim."
and monopolies, where such dealers and their Without further review of the conflicting
slaughtering establishments are largely in dif
ferent states from those of the stock yards, authorities, it would seem that whatever
and the sellers of the cattle largely in differmay be the propriety or advantage of an
ent states from either. adverse suit, one cannot be adjudged neces- 4.
Trade in fresh meat is sufficiently shown to sary when Congress has not specifically re
be cominerce among the states, protected from quired it. Until the discovery of a lode or restraint by the act of July 2, 1890, (26 vein within the tunnel, its owner has only
Stat. at L. 209, chap, 647, U. S. Comp. Stat.
1901, p. 3200), by allegations in a bill charg. a possibility. He is like an explorer on the
ing meat dealers with violations of that act, surface. Adverse proceedings are called for
which, even if they import a technical passonly when one mineral claimant contests the
ing of title at the slaughtering places in right of another mineral claimant.
cases of sales, also import that the sales are If the defendant was not estopped by a
to persons in other states, and that the shipfailure to institute adverse proceedings,
ments to other states are pursuant to such
sales, and by allegations charging sales of then the trial court erred in striking out
such meat by their agents in other states, the parts of the answer in reference to the which indicate that some, at least, of the date of plaintiff's discovery, and the judg- sales were in the original packages. ment of the court of appeals was right. 5. Vagueness cannot be asserted of a charge in This conclusion avoids the necessity of
a bill seeking relief against an attempt to
monopolize commerce in fresh meat among any inquiry as to the effect of the alleged
the states, in violation of the act of July 2, estoppel, and the judgment of the Circuit
1890 (26 Stat. at L. 209, chap. 647, U. S. Court of Appeals is affirmed.
Comp. Stat. 1901, p. 3200), that a combination exists among independent meat dealers
to restrain their respective agents from bid(196 U. s. 375)
ding against each other when purchasing live
stock for them in the stock yards. SWIFT & COMPANY et al., Appts.,
6. Interstate commerce is unlawfully re
strained, in violation of the act of July 2, UNITED STATES.
1890 (26 Stat. at L. 209, chap. 647, U. S.
Comp. Stat. 1901, p. 3200), by a combination Interstate commerce- unlawful restraints
of independent meat dealers, in aid of an atand monopolies—combinations of meat tempt to monopolize commerce in fresh meat dealers-sufficiency of allegations of bill. among the states, to bid up prices for live
stock for a few days at a time, in order to
induce cattle men in other states to make 1. A general allegation of intent may color and apply to all the specific charges of a bill
large shipments to the stock yards, or by a which seeks relief against alleged violations
combination for the same purpose to fix the of the act of July 2, 1890 (26 Stat. at L.
selling price of fresh meat, and to that end
to restrict shipments, when necessary, to es209, chap. 647, U. S. Comp. Stat. 1901, p.
tablish a uniform rule of credit to dealers, 3200), to protect trade and commerce against unlawful restraints and monopolies.
and to keep a black list, or by a combination
in aid of such purpose to make uniform and 2. A bill charges a violation of the act of July
improper charges for cartage for the delivery 2, 1890 (26 Stat. at L. 209, chap. 647, U. S.
of meat sold to be shipped to dealers and con. Comp. Stat. 1901, p. 3200), to protect trade
sumers in the several states. and commerce against unlawful restraints and
7. A combination to secure less than lawful monopolies, as against the objections of want of equity, multifariousness, and failure to set
freight rates, entered into by independent
meat dealers with the intent to monopolize forth suficient definite or specific facts, where it avers the existence of a combination of a
commerce in fresh meat among the several dominant proportion of the dealers in fresh
states, is forbidden by the act of July 2, meat throughout the United States not to bid
1890 (26 Stat. at L. 209, chap. 647, U. S.
Comp. Stat. 1901, p. 3200), to protect trade against each other in the live stock markets of the different states, to bid up prices for a
and commerce against unlawful restraints
and monopolies. few days in order to induce shipments to the stock yards, to fix selling prices, and to that end to restrict shipments of meat when nec
[No. 103.] essary, to establish a uniform rule of credit to dealers, and to keep a black list, to make Argued January 6, 9, 1905. Decided Janu uniform and improper charges for cartage,
ary 30, 1905. and to secure less than lawful freight rates, to the exclusion of competitors.
PPEAL from the Circuit Court of the 3. A combination of independent meat deal. A United States for the Northern District
ers, in aid of an attempt to monopolize commerce in fresh meat among the states, to re
of Illinois to review a decree on demurrer, strict the competition of their respective 'granting an injunction against alleged vio
lations of the act of July 2, 1890 (26 Stat. I tend to continue, a combination for requirat L. 209, chap. 647, U. S. Comp. Stat. 1901, ing, and do and will require, their respective p. 3200), to protect trade and commerce purchasing agents at the stock yards menagainst unlawful restraints and monopolies. tioned, where defendants buy their live Modified by making the injunction more stock (the same being stock produced and specific, and as modified affirmed.
owned principally in other states and See same case below, 122 Fed. 529. shipped to the yards for sale), to refrain The facts are stated in the opinion. from bidding against each other, "except
Messrs. John S. Miller and Merritt perfunctorily and without good faith," and Starr for appellants.
by this means compelling the owners of Attorney General Moody and Mr. W. A. such stock to sell at less prices than they Day for appellee.
would receive if the bidding really was com
petitive. Mr. Justice Holmes delivered the opin- 7. For the same purposes the defendants ion of the court:
combine to bid up, through their agents, This is an appeal from a decree of the the prices of live stock for a few days at a circuit court, on demurrer, granting an in- time, “so that the market reports will show junction against the appellants' commission prices much higher than the state of the of alleged violations of the act of July 2, trade will warrant,” thereby inducing stock 1890 (26 Stat. at L. 209, chap. 647, U. S. owners in other states to make large shipComp. Stat. 1901, p. 3200), “to Protect ments to the stock yards, to their disadTrade and Commerce against Unlawful Re-vantage. straints and Monopolies.” It will be neces- 8. For the same purposes, and to monoposary to consider both the bill and the decree.lize the commerce protected by the statute, The bill is brought against a number of the defendants combine "to arbitrarily, from corporations, firms, and individuals of dif- time to time, raise, lower, and fix prices, ferent states, and makes the following alle and to maintain uniform prices at which gations: 1. The defendants (appellants) they will sell” to dealers throughout the are engaged in the business of buying live states. This is effected by secret periodical stock at the stock yards in Chicago, Omaha, meetings, where are fixed prices to be enSt. Joseph, Kansas City, East St. Louis, forced until changed at a subsequent meetand St. Paul, and slaughtering such live ing. The prices are maintained directly, and stock at their respective plants in places by collusively restricting the meat shipped named, in different states, and converting by the defendants, whenever conducive to the live stock into fresh meat for human the result, by imposing penalties for deviaconsumption. 2. The defendants "are also tions, by establishing a uniform rule for the engaged in the business of selling such fresh giving of credit to dealers, etc., and by notimeats, at the several places where they are fying one another of the delinquencies of so prepared, to dealers and consumers in such dealers, and keeping a black list of dedivers states and territories of the said linquents, and refusing to sell meats to United States other than those wherein the them. said meats are so prepared and sold as 9. The defendants also combine to make aforesaid, and in the District of Columbia, uniform charges for cartage for the delivery and in foreign countries, and shipping the of meats sold to dealers and consumers in same meats, when so sold, from the said the markets throughout the states, etc., places of their preparation, over the several shipped to them by the defendants through lines of transportation of the several rail. the defendants' agents at the markets, when road companies serving the same as common no charges would have been made but for carriers, to such dealers and consumers, pur- the combination. suant to such sales.” 3. The defendants also 10. Intending to monopolize the said comare engaged in the business of shipping such merce, and to prevent competition therein, fresh meats to their respective agents at the the defendants "have all and each engaged principal markets in other states, etc., for in and will continue" arrangements with the sale by those agents in those markets to railroads whereby the defendants received, dealers and consumers. 4. The defendants by means of rebates and other devices, rates together control about six tenths of the less than the lawful rates for transportawhole trade and commerce in fresh meats tion, and were exclusively to enjoy and among the states, territories, and District share this unlawful advantage to the exof Columbia, and, 5, but for the acts charged clusion of competition and the public. By would be in free competition with one an- force of the consequent inability of competiother.
tors to engage or continue in such commerce, 6. In order to restrain competition the defendants are attempting to monopoamong themselves as to the purchase of live lize, have monopolized, and will monopolize, stock, defendants have engaged in, and in' the commerce in live stock and fresh meats