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manufacture of the nitroglycerine would be presumed in the absence of evidence showing care in the manufacture of it, as the explosion raises a presumption of negligence, if there is no explanation of the real cause for such explosion. Judson v. Powder Co., 107 Cal. 549, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146, and the note to the same case in 29 L. R. A. 718; Schoepper v. Chemical Co., 113 Mich. 582, 71 N. W. 1081.
We find no error, and the judgment is affirmed.
(113 Fed. 898.)
FOXG MEY YUK V. UNITED STATES.
(Circuit Court of Appeals, Ninth Circuit. February 24, 1902.)
CHINESE-FAILURE TO OBTAIN CERTIFICATE OF RESIDENCE-DEPORTATION
Act Cong. May 5, 1892, gives a commissioner jurisdiction to hear the charge against a Chinaman of being in the country without a certificate of residence, though section 6, providing for issuance of such certificates to Chinamen, declares that one not obtaining a certificate within a certain time shall be adjudged to be unlawfully in the country, and shall be arrested and taken before a United States “judge"; the act. after continuing in force, by section 1, all laws prohibiting and regulating the coming in of Chinamen, and declaring, by section 2, that any Chinamen adjudged under any of said laws not entitled to remain in the country shall be deported, providing. by section 3, that any Chipaman arrested under “this act, or the acts hereby extended," shall be adjudged unlawfully in the country, unless he shall establish his right to remain to the satisfaction of "such justice, judge, or commissioner"; and Aet Cong. March 3, 1901 (31 Stat. 1093), providing that the district attorney may designate the commissioner before whom a Chinaman, arrested for being unlawfully in the country or having unlawfully entered, shall be taken for hearing.
Appeal from the District Court of the United States for the Northern District of California.
The appeal in this case is taken from the judgment «f the district court affirming an order of deportation of the appellant, Fong Mey Yuk, who was arrested at San Francisco on April 20, 1901, upon a warrant issued by a United States commissioner upon a complaint sworn to and lodged with said commissioner charging the appellant with being a Chinese manual laborer without the certificate of residence required by the act of congress entitled "An act to prohibit the coming of Chinese persons into the United States," approved May 5, 1892, and the act amendatory, approved Sovember 3, 1893. On May 2, 1901, the appellant was brought to trial before said commissioner. l'pon the evidence adduced, the commissioner made his findings and judg. ment of deportation, holding that the appellant is a Chinese manual laborer and a subject of the empire of China, and that she was found within the limits of the United States without the certificate of residence required by said acts, and that she had not shown that she had been unable to obtain such certificate for any of the reasons which the act specifies as excuses therefor.
Lyman I. Mowry, for appellant.
Marshall B. Woodworth, U. S. Atty., and Benjamin L. McKin-ley, for the United States.
Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.
GILBERT, Circuit Judge, aiter stating the case as above, delivered the opinion of the court.
The appeal presents two questions- First, had the United States commissioner jurisdiction to hear and determine the charge set forth in the complaint? And, second, was the evidence sufficient to justify his judgment ? Section 12 of the act of May 6, 1882, provides that any Chinese person found unlawfully within the United States shall be deported to the country whence he came, after being brought before some "justice, judge, or commissioner of a court of the United States, and found to be one not lawfully entitled to be or remain in the United States." Section 12 of the act of July 5, 1884, provides substantially the same remedy as that of the act of May 6, 1882. Section 13 of the act of September 13, 1888, provides that any Chinese person found unlawfully in the United States may be arrested upon a warrant issued upon a complaint under oath "by any justice, judge, or commissioner of any United States court," and when convicted upon a hearing, and iound 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. Section 2 of the act of May 5, 1892, provides that any Chinese person or person of Chinese descent, when convicted and adjudged under any of said laws to be not lawfully entitled to be or remain in the United States, shall be removed from the United States to China.” The previous acts had required that such person be removed to the country whence he came. Section 6 makes provision for the issuance of certificates of residence to Chinese persons lawfully in the United States, and enacts that "any Chinese laborer within the limits of the United States who shall neglect, fail or refuse to comply with the provisions of this act, or who after one year from the passage thereof shall be found within the jurisdiction of the United States without such certificate of residence, shall he decreed and adjudged to be unlawfully within the United States and may be arrested by any United States customs official, collector of internal revenue or his deputies, United States marshal or his deputies and taken before a United States judge.” It is contended that all the prior legislation referred to Chinese who unlawfully entered the United States, and that by the act of 1892 provision was made for the deportation of a different class,—those who, although they had entered lawfully, had failed to acquire the right to remain, and were therefore unlawfully within the United States; and it is contended that as to this second class the jurisdiction to order deportation is conferred only upon "a United States judge." Section 1 of the act of May 5, 1892, provides: “All laws now in force prohibiting and regulating the coming into this country of Chinese persons and persons of Chinese descent are hereby continued in force for a period of ten years from the passage of this act.” Those laws, so continued in force, it may be conceded have reference to prohibiting and regulating the coming into this country of Chinese persons and persons of Chinese descent, and not the deportation of Chinese persons found to be unlawfully within the country. There would be no authority in the act of May 5, 1892, for the present proceeding, were it not for section 3, which provides as follows: "That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirinative proof, to the satisfaction of such justice, judge or commissioner, his lawful right to remain in the United States.” That section declares in plain terms that a proceeding may be instituted before a commissioner against any Chinese arrested under the provisions of the act of May 5, 1892. It has the effect to enlarge the provision of section 6, and to enact that the proceeding may be not only before a United States judge, but that it may be before a justice, judge, or commissioner. If there be any doubt that this is the true construction of the act, it is dispelled by the act of March 3, 1901 (31 Stat. 1093), which provides as follows: "That it shall be lawful for the district attorney of the district in which any Chinese person may be arrested for being found unlawíully within the United States or having unlawfully entered the United States to designate the United States commissioner within such district before whom such Chinese person shall be taken for hearing."
We find no ground for holding that the evidence is insufficient to justify the findings, judgment, and order of deportation. The commissioner saw the witnesses, heard their testimony, and reached the conclusion that the appellant was born in China, and that she was a laborer, and that she had not procured the certificate entitling her to remain in this country, as provided by law. There is no contention that in so holding he was guided by any erroneous view of the law or the evidence. Such being the case, we would not be justified in disturbing his conclusion, even if we deemed it contrary to the weight of the evidence, which we do not. The burden of proof rested upon the appellant to prove to the "satisfaction of the court" the facts upon which depended her right to remain in the United States. This she failed to do.
The judgment of the district court is affirmed,
(113 Fed. 900.
The owner of a mining claim given by Rev. St. $ 2322, the right to possession of surface and everything within his claim, except veins having their apices in the surface of another claim, and also given the right to follow into adjoining claims veins haring their apices in his claim, cannot tunnel from his claim through an adjoining patented claim till he strikes a vein therein having its apex in his claim; section 2319
declaring "the lands” in which minerals are found open to purchase, and section 2325 authorizing a patent for “any land" located for minerals, indicating that the patent is a grant of the land, with the rights. incident to cominon land ownership.
Appeal from the Circuit Court of the United States for the District of Montana.
Toole & Bach, for appellants.
GILBERT, Circuit Judge. The St. Louis Mining & Milling Company is the owner of the St. Louis lode mining claim, an the Montana Mining Company, Limited, the appellee, is the owner of the Nine Hour lode mining claim, which adjoins the St. Louis claim on the east. The appellants were proceeding to drift a tunnel 260 feet underground horizontally from the St. Louis claim eastward, and into the Nine Hour claim, for the purpose of reaching and mining a lode which had its apex in the St. Louis claim, and which they had the right to pursue on its downward course, as it passed with its dip to the eastward out of their side line into the Nine Hour claim. It was stipulated that the tunnel, if projected in the course in which it was being drifted, would reach the vein or lode which had its apex within the St. Louis claim, and that in the course of its progress there would be encountered no other vein, lode, or ledge. At the suit of the owner of the Nine Hour claim, the circuit court enjoined the appellants from proceeding further with said tunnel. From that decree the present appeal is taken.
The case involves the interesting question whether the owner of a mining claiin who has the right to pursue beyond the side lines of his claim a vein or lode which has its apex within his own claim is confined in his right to operations within or upon the vein itself, and is without authority to otherwise enter the adjoining claim. The appellants contend that a patent for a mining claim by its terms conveys only the surface of the claim, together with all veins, lodes, or ledges having their tops or apices within the surface boundaries thereof, and that the granting words of the appellee's patent circumscribe the right of the grantee thereof to the precise estate granted, and that since the mining law confers the general right to explore and purchase the mineral lands of the United States the appellants, in this instance, have the right to explore within the Nine Hour claim, and thereby to reach their own property, so long as they interfere with no right granted to the owners of the latter claim. It is true that the statute (section 2322, Rev. St.), and the patents thereupon issued, confer upon the locators of mining claims in terms. only "the exclusive right of possession and enjoyment of all the suriace 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, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the
vertical side lines of such surface locations"; and that the statute further specifies that such locators, notwithstanding their extralateral rights, shall have no authority to enter upon the surface of a claim owned or possessed by another. But the appellants must find in the same statute the full measure of their own right. What are the rights that are given by the patent to the owners of the St. Louis claim? They are given the right of possession of the surface and of everything within their own claim, except the veins or lodes therein, which may have their apices in the surface of another claim, so as to give the owner of the latter extralateral rights, and they are given the right to follow outside of their side lines and into adjoining claims all veins or lodes which have their apices in their own claims, so as to confer extralateral rights. This is their right, and no more. There is no warrant for saying that they have any general right of exploration within land of an adjoining patented claim, whether upon or below the surface. The right of exploration is given for the purpose of making discovery of mineral. Oi what avail would be the right of exploration if no benefit could be obtained from discovery made thereby? The ground covered by a subsisting, valid mineral location is open to exploration only by the owner thereof. The statute gives the appellants the right to follow the vein which they were seeking to reach by the tunnel, but it confers upon them no right to approach it from any point other than from the vein or lode itself. The mining laws, as we construe them, grant to a mineral locator more than the mere right to the surface of his claim and to the veins or lodes which have their apices therein. The statute (section 2319) declares “the lands” in which valuable mineral deposits are found to be open to occupation and purchase; and section 2325 provides that "a patent for any land claimed and located for valuable deposits may be obtained in the following manner." These provisions tend to indicate that the pattent when issued is a grant of land with all the rights incident to common-law ownership. The reason for specifying in the description of the grant the "veins, lodes, and ledges" is for the purpose of defining what is granted in addition to the land, namely, the right to pursue such veins, lodes, and ledges extralaterally in case they depart from the perpendicular and extend beyond the side lines of the claim. This view is in accord with the trend of all the decisions to which our attention has been directed. In Copper Co. v. Heinze, 64 Pac. 326, 53 L. R. A. 491, the supreme court of Montana held, in substance, that the owner of a mining claim is prima facie the owner of a vein or lode found at a depth of 1,300 feet within the vertical planes of the lines of his own claim, and that that presumption would prevail until it was shown that the vein had its outcrop in the surface of some other located claim in such a way as to give to the owners of the latter the right to pursue it on its downward course. The court said:
"Upon a valid location of a definite portion of land is founded the right of possession. The patent grants the fee, not to the surface and ledge only, but to the land containing the apex of the ledge. The right to follow the ledge upon its dip between the vertical planes of the parallel end lines ex