*197 error, but only to his action as judge, and even if it could he held to run to the district court, it would be equally unavailing, in the absence of final judgment in that court and of the filing of the bill of exceptions. As we understand this record, if the appeal from the commissioner under § 13 was an appeal to the district court, then it follows that the commissioner's transcript and other papers pertaining to the case should be filed and the judgment be entered in that court, and an appeal will bring the cause before us. In other words, the district court will not have lost jurisdiction because of the view taken by the district judge, and the final order may be entered as the final judgment of the court. to the district judge is in effect an appeal to the district court. In 1892 the circuit court of appeals for the ninth circuit so held, in United States v. Gee Lec, 1 C. C. A. 516, 7 U. S. App. 183, 50 Fed. 271, and that the circuit court of appeals had jurisdiction over the judgment of the district court under § 6 of the judiciary act of March 3, 1891 [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, pp. 549, 550]. The circuit court of appeals was of opinion that the words "the judge of the district court for the district" could and should be held equivalent to the words "the district court for the district," and that, while they were not, strictly speaking, convertible terms, they were so in a popular sense; "and it is safe to assume that Congress, in the use of the former phrase in this section, intended to give the party an appeal to the district court of the district." In United States v. Pin Kwan, 40 C. C. A. 618, 100 Fed. 609, decided February 28, 1900, the circuit court of appeals for the second circuit sustained a writ of error to review the decision of the district court (94 Fed. 824) in which an order of deportation by a United States commissioner had been reversed by the district court. Of course, the circuit court of appeals took jurisdiction on the theory that the statute provid Section 13 of the act of September 13, 1888 (25 Stat. at L. 476, chap. 1015, U. S. Comp. Stat. 1901, p. 1312), provides: "That any Chinese person, or person of Chinese descent, found unlawfully in the United States, or its territories, may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, by any justice, judge, or commissioner of any United States court, returnable before any justice, judge, or commissioner of a United States court, or before any United States court, and when convicted upon a hearing, and found and adjudged to be one not lawfully entitled to be or re-ed for appeals from the commissioner to the main in the United States, such person shall be removed from the United States to the country whence he came. But any such Chinese person convicted before a commissioner of a United States court may, within ten days from such conviction, appeal to the judge of the district court for the district." Many cases may be found in which the words "court" and "judge" were held to have been used interchangeably, and in Foote v. Silsby, 1 Blatchf. 542, Fed. Cas. No. 4,917, Mr. Justice Nelson was of opinion that the circuit judge sitting at chambers was the circuit court in the usual and proper sense of the term and within the meaning of the 17th section of the patent act of July 4, 1836 (5 Stat. at L. 117, chap. 357). In Porter v. United States, 2 Paine, 313, Fed. Cas. No. 11,290, Judge Betts said: "It is not an unusual use of language, in the statutes, to put the judge for the court, and to make provisions for him to execute which can only be executed in court." It was held that a statute authorizing a party "to prefer a bill of complaint to any district judge of the United States," referred to the district court, and not to the judge as an individual. district court. And see United States v. In United States v. Gue Lim, 176 U. S. 459, 44 L. ed. 544, 20 Sup. Ct. Rep. 415, decided February 26, 1900, this court entertained jurisdiction of several distinct appeals from the district court for the district of Washington. In the case of Mrs. Gue Lim a warrant had been issued, and her discharge ordered by the district court; but in the other cases the proceedings were had before a United States commissioner, and from his judgment of deportation the cases had been taken to the district court, which reversed his decision. The judgments of the district court were affirmed by this court. By the 1st section of the act of April 29, 1902 (32 Stat. at L. 176, chap. 641),1 § 13 of the act of 1888 was, together with some The construction put upon § 13 in prac- other sections, re-enacted, and we think it tice has been quite general that the appeal 'not unreasonable to conclude that Congress 1 U. S. Comp. St. Supp. 1903, p. 188. *198 •199 accepted the view we had indicated, and by the district.' It seems to have been asits action removed any doubt on the ques-sumed, during the years following the date tion. of the act, and is conceded by the United | States, that although most of its provisions were dependent upon the ratification of the treaty of March 12, 1888, and failed with the failure of ratification, that this section is, in and of itself, independent legislation, and in force as such. Accordingly in this case an appeal was taken from the judgment of deportation rendered by the commissioner to the judge of the district court of the United States for the northern district of New York, and, upon hearing, the district court affirmed that judgment. From the judgment of the district court, this appeal was taken under § 5 of the act of March 3, 1891, on the ground that the construction of the treaty of 1894 [28 Stat. at L. 1210] was drawn in question." Shortly after the approval of that act, in Chin Bak Kan v. United States, 186 U. S. 193, 46 L. ed. 1121, 22 Sup. Ct. Rep. 891, we took jurisdiction of an appeal from the judgment of the district court for deportation on an appeal from the United States commissioner to the district court of the United States for the northern district of New York and we observed: "Something is said in respect of want of jurisdiction in the commissioner because 6 of the act of 1892 [27 Stat. at L. 25, chap. 60, U. S. Comp. Stat. 1901, p. 1319] provides that Chinese laborers without certificates may be 'taken before a United States judge;' but we concur in the views of the circuit court of appeals for the ninth circuit in Fong Mey Yuk v. United States, 51 C. C. A. 528, 113 Fed. 898, that the act is satisfied by proceeding before 'a justice, judge, or commissioner.' These are the words used in § 12 of the act of 1882 [22 Stat. at L. 58, chap. 126, U. S. Comp. Stat. 1901, p. 1305], § 12 of the act of 1884 [23 Stat. at L. 115, chap. 220], § 13 of the act of 1888, and § 3 of the act of 1892; while the 1st section of the act of March 3, 1901 [31 Stat. at L. 1093, chap. 845, U. S. Comp. Stat. 1901, p. 1327], explicitly authorizes the district attorney to designate the commissioner before whom the Chinese person ment, and attention was called to the con In the cases of Ah How v. United States, 193 U. S. 65, ante, 357, 24 Sup. Ct. Rep. 357, and Tom Hong v. United States, 193 U. S. 517, ante, 517, 24 Sup. Ct. Rep. 517, decided at this term, we disposed of sundry appeals from a district court to which the cases had been brought on appeal from a United States commissioner. Our jurisdiction was greatly challenged by the governflicting decisions of the circuit courts of appeals for the ninth circuit in United States v. Gee Lee, and for the first circuit may be brought. The words 'United States in Chow Loy v. United States, on the quesjudge,' 'judge,' and 'court,' in § 6 seem to tion whether the appeal was to the district us to refer to the tribunal authorized to judge or to the district court, but we maindeal with the subject, whether composed of tained jurisdiction and affirmed the judg a justice, a judge, or a commissioner. A ments of the district court in some of the United States commissioner is a quasi-ju- cases, and reversed the judgments and disdicial officer, and in these hearings he acts charged the appellants in others. In these judicially. Moreover, this case was taken cases the district court would not have had by appeal from the commissioner to the jurisdiction if the statute confined appeals judge of the district court, and his decision from the commissioner to appeals to the was affirmed, so that there was an adjudica-judge individually. tion by a United States judge in the consti- While it must be admitted that the proptutional sense as well as by the com- er construction of § 13 is not free from diffimissioner acting as a judge in the culty, we are not willing to change the consense of the statute." "Sec tion 13, of the act of September 13, 1888, provides that any Chinese person, or person of Chinese descent, found unlawfully in the United States, may be arrested on a warrant issued upon a complaint under oath, by any justice, judge, or commissioner of any United States court,' and when convicted, on a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, shall be removed to the country whence he came. 'But any such Chinese person convicted before a commissioner of the United States court, may, within ten days from such conviction, appeal to the judge of the district court for struction we have heretofore repeatedly recognized as correct, and which we think has been adopted by Congressional legislation. That construction enables uniformity in the administration of the laws on this important subject to be attained by securing uniformity in judicial decision, and operates as a safeguard against injustice. We assume that the other two cases are in substance the same as that of Coe. The result is that we hold that the relief sought should be granted, but as we do not doubt it will be accorded on the expression of our conclusion, the order will be petitioner entitled to mandamus as prayed. *200 (194 U. S. 220) CLIPPER MINING COMPANY, Plff. in | mining ground near the new mining camp of Err. ELI MINING & LAND COMPANY, A. D. Error to state court-questions of fact not 2. 4. The conclusions of the highest court of a state upon questions of fact cannot, in an action at law, at least, be reviewed by the Supreme Court of the United States, on writ of error to that court. Leadville. The claim embraced at that time 157.02 acres of land. The original locators shortly conveyed all their interest to A. D. Searl, who applied for a patent on July 5, 1878. The application was met at the Land Office with a multitude of adverse claims. Settlements were made with some of the contestants, and on November 10, 1882, an amended application for patent was filed, including only 10116 acres. This application was rejected by the Commissioner of the General Land Office on March 6, 1886, and his decision was affirmed by the Secretary of the Interior on November 13, 1890. On November 25, 1890, four lode claims, known as the Clipper, Castle, Congress, and Capital, were located by parties other than the owners of the placer claim within the exterior boundaries of that claim. These four lode claims became, by mesne conveyances, the property of the Clipper Mining An entry upon a prior valid placer mining Company. It applied for a patent, and on location for the purpose of prospecting for November 23, 1893, the defendants in error, unknown lodes, when made against the will as the owners of the Searl placer location, of the placer locators, must be deemed a trespass, which can initiate no title to the filed an adverse claim and commenced this lode claims thus located within the exterior action in the district court of Lake county, boundaries of the placer claim, in view of in support of that claim. Judgment was the right of exclusive possession and enjoy rendered in favor of the plaintiffs, which ment of the surface given to placer locators was affirmed by the supreme court of the by U. S. Rev. Stat. §§ 2322, 2329 (U. S. Comp. Stat. 1901, pp. 1425, 1432), and of the pro-state (29 Colo. 377, 93 Am. St. Rep. 89, 68 vision of 2333 (U. S. Comp. Stat. 1901, p. Pac. 286,) and thereafter this writ of error 1433), that a patent for a placer claim, was sued out. while not including known veins or lodes not specifically applied and paid for, conveys any veins or lodes not known to exist when the patent was issued. The validity of a placer mining location is not affected by the lapse of many years since its original location, without the issue of a patent therefor. The owner of a prior placer mining location may maintain an adverse suit against an application for a patent for a subsequent lode location within the exterior boundaries of the placer claim, made by persons entering thereon against the will of the placer locators for the purpose of prospecting for unknown lodes or veins. [No. 76.] Messrs. W. H. Bryant, C. S. Thomas, and H. H. Lee for plaintiff in error. Messrs. John A. Ewing, A. B. Browne, Charles Cavender, and Alexander Britton for defendants in error. *Mr. Justice Brewer delivered the opinion of the court: The location of the placer mining claim and both the original and amended applications for patent thereof were long prior to Argued November 13, 1903. Decided May 2, the locations of the lode claims, and the contention of the plaintiffs is that they, by *221 * 223 town, and on it streets and alleys have been laid out and many houses built and occupied by individuals claiming adversely to the placer location. It is the settled rule that this court, in an action at law, at least, has no jurisdiction to review the conclusions of the highest court of a state upon questions of fact. Republican River Bridge Co. v. Kansas P. R. Co. 92 U. S. 315, 23 L. ed. 515; Dower v. Richards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452; Israel v. Arthur, 152 U. S. 355, 38 L. ed. 474, 14 Sup. Ct. Rep. 583; Noble v. Mitchell, 164 U. S. 367, 41 L. ed. 472, 17 Sup. Ct. Rep. 110; Hedrick v. Atchison, T. & S. F. R. Co. 167 U. S. 673-677, 42 L. ed. 320, 321, 17 Sup. Ct. Rep. 922; Turner v. New York, 168 U. S. 90-95, 42 L. ed. 392-394, 18 Sup. Ct. Rep. 38; Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300. It must, therefore, be accepted that the Searl placer claim was duly located, that the annual labor required by law had been performed up to the time of the litigation, that there was a subsisting valid placer location, and that the lodes were discovered by their locators within the boundaries of the placer claim subsequently to its location. So the trial court specifically found, and its finding was approved by the supreme court. As against this, it is contended that the Land Department held that the ground within the Searl location was not placer mining ground, nor subject to entry as a placer claim; that such holding by the Department must be accepted as conclusive in the courts, and therefore that the tract should be adjudged public land and open to exploration for lode claims and to location by any discoverer of such claims. It is true that the Commissioner of the General Land Office, in rejecting the amended application for the placer patent, said that he was not satisfied that the land was placer ground, or that the requisite expenditure had been made, and, further, that the locators had not acted in good faith, but were attempting to acquire title to the land on account of its value for townsite purposes and for the lodes supposed to be contained therein. This decision was affirmed by the Secretary of the Interior; but notwithstand ing this expression of opinion by these of ficials, all that was done was to reject the application for a patent. As said thereafter by the Secretary of the Interior upon an ap plication of the Clipper Mining Company for a patent for the lode claims here in dispute: "The judgment of the Department in the Searl Placer Case [11 Land Dec. 441] went only to the extent of rejecting the application for patent. The Department did not assume to declare the location of the placer void, as contended by counsel, nor did the judgment affect the possessory rights of the contestant to it." [Re Clipper Min. Co.] 22 Land Dec. 528. So far as the record shows-and the record does not purport to contain all the evidence the placer location is still recog nized in the Department as a valid location. Such also was the finding of the court; and being so there is nothing to prevent a subsequent application for a patent and further testimony to show the claimant's right to one. Undoubtedly when the Department rejected the application for a patent it could have gone further and set aside the placer location, and it can now, by direct proceedings upon notice, set it aside and restore the land to the public domain. But it has not done so, and therefore it is useless to consider what rights other parties might then have. "The fact that many years have elapsed since the original location of the placer claim, and that no patent has yet been issued therefor, does not affect its validity, for it is a well-known fact, as stated by the court of appeals in Cosmos Exploration Co. v. Gray Eagle Oil Co. 61 L. R. A. 230, 50 C. C. A. 79, 112 Fed. 4, 16, that "some of the richest mineral lands in the United States, which have been owned, occupied, and developed by individuals and corporations for many years, have never been patented." The views entertained by the supreme court of the law applicable to the facts of this case are disclosed by the following quotation from its opinion. After referring to one of its previous decisions, known as the Mt. Rosa Case [26 Colo. 56, 50 L. R. A. 289, 77 Am. St. Rep. 245, 56 Pac. 176] it said: "If, in the case at bar, the lode claims were known to exist at the time of the entry of defendant's grantors upon the Searl placer, under the decision in the Mt. Rosa Case the entry was not unlawful; but if, on the contrary, the veins were then unknown, by the same decision the right of possession of this ground belonged to the owners of the placer location. Their right of possession included these unknown veins, and the entry for prospecting was a trespass, and no title could thereby be initiated. *224 *226 the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for*such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, to to rule that in no circumstances may one, before application for a patent of a placer claim, go upon the ground within its exterior boundaries for the purpose of locating a lode, it went too far; yet, as general language in an opinion must be taken in connection with the facts in the particular case, the ruling here should be limited to the facts disclosed by the record, and no pre-gether with all costs of proceedings; and judicial error was committed. For, under the authorities, a prospector may not enter upon a prior placer location for the purpose of prospecting for, or locating, unknown lodes or veins; and to uphold the judgment we must presume that the evidence before the trial court showed that the veins or lodes upon which the defendant's grantors based their locations were unknown when they entered upon the Searl placer for the purpose of prospecting." The law under which these locations were all made is to be found in chap. 6 of Title 32, Rev. Stat. Section 2319 (U. S. Comp. Stat. 1901, p. 1424) of that chapter reads: “All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase." Section 2320 (U. S. Comp. Stat. 1901, p. 1424) provides for the location of mining claims upon veins or lodes. By 2322 (U. S. Comp. Stat. 1901, p. 1425) it is provided that "The locators of all mining locations on any mineral vein, lode, or ledge, situated on the public domain, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically." where a vein or lode, such as is described in section twenty three hundred and twenty, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof." It will be seen that § 2322 gives to the owner of a valid lode location the exclusive right of possession and enjoyment of all the surface included within the lines of the location. That exclusive right of possession forbids any trespass. No one, without his consent, or, at least, his acquiescence, can rightfully enter upon the premises or disturb its surface by sinking shafts or otherwise. It was the judgment of Congress that, in order to secure the fullest working of the mine, and the complete development of the mineral property, the owner thereof should have the undisturbed possession of not less than a specified amount of surface. That exclusive right of possession is as much the property of the locator as the vein or lode by him discovered and located. In Belk v. Meagher, 104 U. S. 279, 283, 26 L. ed. 735, 737, it was said by Chief Justice Waite that "a mining claim perfected under the law is property in the highest sense And by § 2329 (U. S. Comp. Stat. 1901, of that term;" and in a later case (Gwillim p. 1432): v. Donnellan, 115 U. S. 45, 49, 29 L. ed. 348, 349, 5 Sup. Ct. Rep. 1110, 1112) he adds: "Claims usually called 'placers,' including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circum-al stances and conditions, and upon similar proceedings, as are provided for vein or lode claims." Section 2333 (U. S. Comp. Stat. 1901, p. 1433) is as follows: "Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to "A valid and subsisting location of minerlands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located. If, when one enters on land to make a location, there is* another location in full force, which entitles its owner to the exclusive possession of the land, the first location operates as bar to the second." In St. Louis Min. & Mill. Co. v. Montana Min. Co. 171 U. S. 650, 655, 43 L. ed. 320, 322, 19 Sup. Ct. Rep. 61, 63, the present Chief Justice declared that "where there is |