by this work. This claim was not, therefore, kept valid by such work, and some remarks were made in the opinion which would not, perhaps, be strictly applicable to discoveries and works done in developing lodes or veins.

In the case before us the appellees became successively owners of three claims contiguous to each other, supposed to be located on the same lode. These were-First, the Parley's Park claim; second, the Central; and, third, the Lady of the Lake. They continued their work on the Parley's Park claim from 1872 until July 19, 1878, when they transferred it to the Lady of the Lake claim, and did no more work on the other until September 13, 1879, when one Cassidy, claiming that the Parley's Park claim was forfeited for want of work on it for more than a year, located a mining claim called the Accidental, which embraces the premises in dispute and which is part of the Parley's Park claim. This claim of Cassidy-the Accidental-is the one on which appellants, who became its owners, now rely, and if the work done on the Lady of the Lake is not work done in common on the three claims of appellees, within the meaning of the statute, the claim of the appellant must prevail. The finding of facts by the court below on that point is as follows: "(5) That during the year beginning on the nineteenth of July, 1878, the owners of the Parley's Park claim were also the owners of two certain claims, called, respectively, the Central, and Lady of the Lake,-the Central adjoining the Parley's Park, and Lady of the Lake adjoining the Central mining claim,—and that, with a view to the future working and development of all three of said claims, the owners thereof located what is called the main shaft in the Lady of the Lake surface ground. That said shaft is in such proximity to said Parley's Park mining claim that work in it has a tendency to develop said claim, and said shaft was located and intended for the purpose of developing all of said claims.

"I find that during said last-named year work was prosecuted in said shaft, and by improvements made thereat exceeding in value $300, and of not less than two thousand dollars in value. No work was done in said year after July 19, 1878, and prior to the fifteenth day of September, 1879, in the Parley's Park surface ground, or within its limits, by the owners thereof."

We are of opinion that this brings the case clearly within the principles we have laid down, and the work was effectual to protect the Parley's Park claim against an intruder.,

By the act of February 11, 1875, (18 St. 315,) section 2324 was so amended that work on a tunnel in a mine should be held to dispense with work on the surface, and taken and considered as work expended on the lode, whether located prior to or since the passage of that act. We are not able to see that this affects the character of other work to be done or improvements to be made according to the law as it stood before, except as it gives a special value to making a tunnel.

The questions raised on the admission of evidence to prove the existence and discovery of a lode by defendants were, we think, well decided, and need no further comment.

The decree of the supreme court of Utah is affirmed.

(111 U. S. 356)

EILERS v. BOATMAN and others.1

(April 14, 1884.)

FINDING OF FACT-NOT REVIEWABLE.

A finding by the supreme court of a territory that the notice of the location of a claim contained a sufficient description, by reference to natural and permanent monuments, to identify it, and that the claim was so marked upon the ground that its boundaries could be readily traced, is a finding of fact; and, though styled by the judge a conclusion of law, must, by chapter 80 of the act of April 7, 1874, be taken by the appellate court to be true.

Appeal from the Supreme Court of the Territory of Utah.

C. K. Gilchrist, for appellant.

C. W. Bennett, for appellees.

MILLER, J. This, like the preceding case, [Chambers v. Harrington, ante, 428,] is an appeal from the decree of the supreme court of Utah in a contest for a mine carried on under section 2326 of the Revised Statutes. The appellant does not deny the priority of location, or the continuous work on the Nabob,-the claim of the appellee,--but insists that the notice and description of the claim of the defendants were not sufficient to apprise other porspectors of its precise location. This, in the first place, is matter of fact, and was found by the court below against appellant; for we think that the following language, though called by the judge a conclusion of law, is really a finding of facts, namely: "(1) That the notice of the location of Nabob mining claim contained a sufficient description by reference to natural objects, and permanent and well-known monuments, to identify the same; (2) that said Nabob claim was so marked on the ground that its boundaries could be readily placed." If, however, we revert to the specific findings of fact, so named in the record, we think the second and fourth findings, which give a more minute description of the courses, distances, natural objects, and stakes, justify the two conclusions above recited.

A point is made by appellant that the Flagstaff Mining Company was in possession of the lode at the time the Nabob claim was located. We do not see how this would improve the subsequent location of appellant. But it is sufficient to say that no such finding is made by the court in regard to the Flagstaff claim.

By chapter 80 of the acts of congress, approved April 7, 1874, (Supp. Rev. St. 13,) this court is required to accept the findings of fact made by the supreme courts of the territories as true, on appeal to this court. See Stringfellow v. Cain, 99 U. S. 610; Hecht v. Boughton, 105 U. S. 235.

In this case the supreme court, in its judgment, affirms the findings of the district court. As we think the judgment of the supreme court of Utah was right on the facts so found, there is nothing left but to affirm the judgment; and it is so ordered.

'S. C. 2 Pac. Rep. 66.

1. MASTER AND Servant-Carpenters-DUTY OF EMPLOYER.

The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not oblige him to keep a building, which they are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow servants.

2. SAME-PERSONAL INJURY-FALL FROM BUILDING-LIABILITY OF OWNER.

Carpenters, under charge of a foreman, and bricklayers, all employed by the owner through his superintendent, were engaged in the erection of a building, with a cornice supported by sticks of timber passing through the wall (which was 13 inches thick) and projecting 16 inches, and to be bricked up at the sides and ultimately over the top of the timbers. When the wall had been bricked up on a level with, but not yet over, the timbers, the foreman of the carpenters directed two of them to take a joist for the edge of the cornice, and to push it out to the ends of the projecting timbers. In so arranging the joist, a carpenter stepped on the projecting part of one of the timbers, which tipped over, whereby he fell and was hurt. Held, that the owner of the building was not liable to him for the injury.

In Error to the Circuit Court of the United States for the District of Kansas. Wallace Pratt and Jeff. Brumback, for plaintiffs in error.

Byron Sherry and Thos. P. Fenlon, for defendant in error.

GRAY, J. This is an action brought by Hahn against Armour and others (of whom Armour alone was served with process) to recover damages for injuries suffered by the plaintiff while employed as a carpenter in the erection of a building for the defendants. The petition alleged that the plaintiff was and long had been in the defendant's employ as a carpenter, and while at work, together with others, in building an addition to a large packing-house owned and occupied by the defendants, was directed by them and their agents. to take a joist and place it on the outer ends of sticks of timber inserted in and projecting from the wall of the new building; that while arranging and adjusting the joist, in accordance with the instructions of the defendants and their agents, it became necessary for him to step out upon one of the projecting timbers; that, immediately upon placing one foot upon the projecting timber, and while stooping over to arrange the joist, and without any notice, warning, or reason to believe that the projecting timber was insecure or unsafe, and without any fault or neglect on his part, the timber gave away, precipitating him from the top of the wall 34 feet to the platform beneath; that the defendants, well knowing the danger, negligently and wrongfully directed him to go out upon the projecting timber to arrange the joist, without advising him of the danger; and that by reason of the negligence of the defendants, in not having secured the projecting timber to the wall, and in not notifying him of its dangerous condition, he suffered great bodily injuries. The testimony introduced for the plaintiff at the trial was in substance as follows: The plaintiff was engaged with 12 or 13 other carpenters, all paid by the day, in the erection of the new building. Bricklayers and other laborers were also at work upon it. The plaintiff was employed and paid by one Alcutt, the superintendent of the packing-house. One Fitzgerald was foreman of the carpenters, but not of the other workmen. The plaintiff, who had been working on one end of the roof, went to the other end, and was there set to work by the foreman upon the cornice. The cornice was made by inserting in the brick wall (which was thirteen inches thick) at intervals of eight or nine feet, and at right angles with it, sticks of timber projecting about sixteen inches from the wall, and by placing on the outer ends of those timbers, and parallel to the wall, joists sixteen or eighteen feet long and two

and a half inches wide. The plaintiff and another of the carpenters were directed by their foreman to take a joist and put it out in its proper place on the projecting timbers. They took it and laid it upon those timbers. The foreman told them to push the joist out to the end of the timbers, but did not tell them to go out. Each man pushed out his end of the joist. The plaintiff, in order to reach over and place the joist, sat down with both feet on one of the projecting timbers, one foot on the part of it inside the wall, and the other foot on the part outside, when the timber tipped over, and caused the plaintiff to fall some 34 feet to the platform below, and to suffer the injuries sued for. The wall had just been bricked up on each side of this timber to a level with its upper surface, but no bricks had been laid over it. The foreman stood eight or ten feet further in; there was a space for the bricklayers to build up the wall, and they were working upon it. The plaintiff testified that he helped to put some of the sticks of timber in the old wall, and spiked them to the girders; that he did not know who put this stick of timber in the new wall; that it appeared to be secure; that if it had been fastened he could have stepped out upon it without danger; that if he had kept both feet inside the wall, he could have pushed the joist out, but could not have seen whether it was in the proper place; that he could see that the timber was not spiked, but could not see whether it was fastened; that it could not be spiked then; and that "the usual way of doing it was putting this timber in, and leaving it that way temporarily, and afterwards building the wall up over it." There was also evidence of the extent of the plaintiff's injuries.

At the close of the evidence for the plaintiff, a demurrer to that evidence, upon the ground that it proved no cause of action, was filed by the defendant, in accordance with the following provision of the statutes of Kansas: "The party on whom rests the burden of the issues must first produce his evidence; after he has closed his evidence, the adverse party may interpose and file a demurrer thereto, upon the ground that no cause of action or defense is proved. If the court shall sustain the demurrer, such judgment shall be rendered for the party demurring, as the state of the pleadings or the proof shall demand; if the demurrer be overruled, the adverse party will then produce his evidence." Laws Kan. 1872, c. 162, § 1, cl. 3. The demurrer was argued and submitted to the court, and overruled. The defendant excepted to the ruling. No further evidence was introduced by either party at the trial. The case was submitted, under instructions excepted to by the defendant, and which it is unnecessary to state, to the jury, who returned a verdict for the plaintiff in the sum of $7,500. Judgment was rendered on the verdict, and the defendant sued out this writ of error.

This court is of the opinion that the circuit court erred in not rendering judgment for the defendant on his demurrer to the plaintiff's evidence. There was no evidence tending to prove any negligence on the part of the firm of which the defendant was a member, or of their superintendent, or of the foreman of the gang of carpenters. The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not impose upon him the duty, as towards them, of keeping a building, which they are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends upon the due performance of that work by them and their fellows. The plaintiff was not a minor, employed in work which was strange to him, but was a man of full age, engaged in ordinary work of his trade as a carpenter. The evidence tended to show that he and one of his comrades were directed by their foreman to push the joist out on the projecting sticks of timber, not that he told them to go out themselves. The projecting timber upon which the plaintiff placed his foot was inserted in a wall which was in the course of being built, and which at the time had been bricked up only so far as to be on a level with the upper surface of the timber. The usual course, as the plaintiff himself testified, was to put the timber in, and

leave it in that way temporarily, and afterwards build the wall up over it. It is not pretended that the stick of timber was in itself unsound or unsuitable for its purpose. If it was at the time insecure, it was either by reason of the risks ordinarily incident to the state of things in the unfinished condition of the building, or else by reason of some negligence of one of the carpenters or bricklayers, all of whom were employed and paid by the same master, and were working in the course of their employment at the same place and time, with an immediate common object, the erection of the building, and therefore, within the strictest limits of the rule of law upon the subject, fellow servants, one of whom cannot maintain an action for injuries caused by the negligence of another against their common master. Hough v. Ry. Co. 100 U. S. 213; Randall v. Baltimore & O. R. R. 109 U. S. 478; S. C. 3 SUP. CT. REP. 322.

The judgment of the circuit court must therefore be reversed, and the case remanded for further proceeding in conformity with this opinion.

(111 U. S. 347)

UNITED STATES v. CARPENTER.

(April 14, 1884.)

PUBLIC LANDS-INDIAN RESERVATION-UNLAWFUL ENTRY.

Where a tract of land reserved by treaty to the free and unrestricted use of the Indians was marked off upon the official charts of the government, but the landofficers, notwithstanding the treaty, permitted a piece of land scrip to be located upon a quarter section contained within the boundaries of the tract, and a patent was issued to the person making entry, held, that the original entry was void, and that the patent unlawfully issued by the officers of the land department did not help it.

Appeal from the Circuit Court of the United States for the District of Minnesota.

Asst. Atty. Gen. Maury, for appellant.

John B. Sanborn, for appellee.

FIELD, J. This is a suit in equity, to vacate a patent of the United States issued to one August Cluensen, on the fifteenth of May, 1874, embracing a tract of land in the county of Pipestone, in the state of Minnesota, described as the south-westerly quarter of section one, (1,) in township one hundred and six, (106,) range forty-six (46) west of the fifth (5th) principal meridian, according to the government surveys. The ground of the suit is that by treaty between the United States and the Yankton tribe of Sioux or Dacotah Indians, ratified on the twenty-sixth of February, 1859, the tract, which embraces what is known as the Red Pipestone quarry, in that county, was reserved from sale or appropriation under any scrip or warrant of the government. The eighth article of the treaty stipulated that the Yankton Indians should be "secured in the free and unrestricted use" of the quarry, or "so much thereof as they have been accustomed to frequent and use for the purpose of procuring stone for pipes;" and the United States agreed to cause to be surveyed and marked so much thereof as should be "necessary and proper for that purpose, and retain the same and keep it open and free for the Indians to visit and procure stone for pipes, so long as they shall desire." Rev. Ind. Treaties, 860. The bill alleges that the tract described is a part of the Red Pipestone quarry mentioned in this article. In the execution of their agreement, the United States caused so much of the quarry as appeared to be nec