215 U.S.

Argument for Appellant.

United States (Act of July 1, 1902, § 45; 32 U. S. Stat. 703) is in question. The facts as well as the law are before the court for review. De la Rama v. De la Rama, 201 U. S. 309.

The judgment of the Court of First Instance was plainly and manifestly against the weight of evidence. The Philippine Supreme Court should have decided according to the preponderance of the evidence. Act of Feb. 25, 1907, No. 1596, Acts of Phil. Com.

Plaintiffs had no title to the mines at the time of the cession and have acquired none since. Both under Spanish law and ours, mines can be acquired in private ownership only by compliance with governmental regulations. Translation of Mining Law and Regulations, War Dep't, July, 1900; Royal Decree of May 14, 1867; United States v. Castillero, 2 Black, 1, 166. After the cession the Spanish Mining Laws continued in force until further legislation by Congress. Strother v. Lucas, 12 Pet. 410, 436. The act of March 2, 1901, 31 Stat. 910, forbade for the time being any government grant of mining rights, and thus suspended recourse to former law. Unless plaintiffs have acquired some rights of property under the act of July 1, 1902, they have none now, and are mere trespassers.

Section 45 of the act of July 1, 1902, 32 Stat. 703, is almost identical with § 2332, Rev. Stat. It confers no title, but merely prescribes what evidence shall entitle a claimant to a patent, upon compliance with requirements of § 37 and determination of any adverse claim under § 39. Plaintiffs at most have only a right to apply for a patent;—a jus ad rem, not a jus in re. The Young Mechanic, 2 Curt. 404; S. C., Fed. Cas. No. 18,180; The Carlos F. Roses, 177 U. S. 655, 666; 2 Lindley on Mines, § 688; In re Smith Brothers, 7 Copp's L. O. 4; Buffalo Zinc & Copper Co. v. Crump, 69 S. W. Rep. 572; Cleary v. Skiffich, 28 Colorado, 362; McCowan v. Maclay, 16 Montana, 234.

Rights founded on possession must yield to a "location" under the statutes. Horswell v. Ruiz, 67 Colorado, 111;

VOL. CCXV-2

Argument for Appellant.

215 U.S.

Kendall v. San Juan Mining Co., 144 U. S. 658. Reavis's peaceable adverse entry interrupted plaintiffs' possession and prevented them from acquiring title thereunder. Belk v. Meagher, 104 U. S. 279, 287. Plaintiffs' possession was insufficient under the Philippine statute of limitations. Phil. Code of Proc., § 41; Hamilton v. South Nev. Gold & Silver Min. Co., 33 Fed. Rep. 562. A "location" can only be made for a territory not exceeding 1,000 feet by 1,000 feet. 32 Stat. 697, § 22.

This case is to be distinguished from Cariño v. The Insular Government, 212 U. S. 449. There the boundaries were defined; the possession was definite and exclusive, and the lands were agricultural and hence prescriptible even against the Spanish Crown. Here the plaintiffs ask the court to declare that because a particular family of Iggorrots have habitually roamed over a whole mountain-side and taken out a little loose gold, they have acquired legal title to all the mineral wealth below the surface within whatever boundaries they now choose to assert. Such a ruling would prevent the development of the mineral resources of the Philippine Islands. The Iggorrots' conceptions of private property hardly included subterranean rights. The appellant asks the court to appreciate a peculiar colonial problem rather than to weigh conflicting claims as to mining boundaries.

Plaintiffs were not entitled to an injunction. Their rights were doubtful and disputed. Lawson v. U. S. Mining Co., 207 U. S. 1; Gwillim v. Donellan, 115 U. S. 45; Tacoma Ry. & Power Co. v. Pacific Traction Co., 155 Fed. Rep. 259. They were out of possession when suit was brought. Lacassagne v. Chapuis, 144 U. S. 119; Whithead v. Shattuck, 138 U. S. 146. They should have sued at law to recover possession. Bago v. Garcia, 5 Phil. Rep. 524; Bishop of Cebu v. Mangaran, 6 Phil. Rep. 286; Barlin v. Ramirez, 7 Phil. Rep. 41; Black v. Jackson, 177 U. S. 349; Potts v. Hollen, 177 U. S. 365.

The judgment of the trial court should have been reversed for errors in the exclusion of material evidence. There is a

215 U.S.

Argument for Appellees.

presumption of harm from such exclusion. Buckstaff v. Russell, 151 U. S. 626, 637; Crawford v. United States, 212 U. S. 183, 203.

Mr. Henry E. Davis for appellees:

There is no force in the contention that plaintiffs had no title to the mines in controversy at the time of the cession of the Philippine Islands and have not since acquired any. The case comes under the temporary government act, especially § 45 thereof, 32 Stat. 691, 703, which mutatis mutandis is, with very slight changes, identical with § 2332, Rev. Stat., taken from the act of May 10, 1872, 17 Stat. 91. The scheme of these acts was clearly to recognize in the inhabitants of territory newly acquired by the United States, rights equivalent to those of location and possession, and of themselves conferring a right to a patent for mining lands, independently of compliance with requirements of laws of the former sovereignty and local laws and customs inherited therefrom, or enacted or adopted in analogy to the institutions thereof.

Rev. Stat., § 2332, provides an additional mode of acquisition of mineral land from the Government, and, where possession has continued for the prescribed period before an adverse right exists, it is equivalent to a location under the laws of Congress. Anthony v. Jillson, 83 California, 296, 302; Altoona &c. Co. v. Integral &c. Co., 114 California, 100, 105; Min. Co. v. Bullion Min. Co., 3 Saw. 634, 657, 658; Harris v. Equator &c. Co., 8 Fed. Rep. 863; Belk v. Meagher, 104 U. S. 279, 287; Lavignino v. Uhlig, 26 Utah, 125.

Upon completion of a location and until patent issues, the Government holds the title in trust for the locator; and a title so acquired will be quieted on a bill in equity even against the holder of a correct paper title. Noyes v. Mantle, 127 U. S. 348, 351; Min. Co. v. Bullion Min. Co., ubi supra.

In dealing with the Philippines, the United States meant to treat its inhabitants as it had treated those of our former Mexican territory, and, indeed, to put the former on an even

Argument for Appellees.

215 U. S.

more favored footing. Cariño v. Insular Government, 212 U. S. 449.

Accordingly, it is beside the question whether plaintiffs have or have not acquired any title to the mines in controversy since our acquisition of the Philippines, the facts being that it is not contended that plaintiffs ever undertook to acquire formal title to the mines during the Spanish occupation; that, almost immediately upon our occupation, they were prohibited by law from acquiring such title; that they were on their way to the acquisition of such when they encountered interference by the action of the defendant; and that the object of this case was and is to free themselves from such interference.

Plaintiffs have not mistaken their forum, they have a right to the remedy sought in this action.

Section 39 of the act of July 1, 1902, 32 Stats. 701, is mutatis mutandis, an exact reproduction of § 2326, Rev. Stat., as amended by act of 1881, with the difference that the question of title is provided to be determined by judgment of the court instead of by verdict of a jury. Plaintiffs, instead of going through the form of applying for a patent upon the ground of compliance with § 45 of the act of July 1, 1902, elected directly to institute proceedings in equity. The propriety of this proceeding might have been raised by demurrer or apt objection in the answer, but defendant, having answered without objection of any kind to the proceeding or the jurisdiction of the court, and having converted his answer into a petition or cross-bill for affirmative defense, closed the door upon any question as to the propriety of the proceeding itself or the jurisdiction to determine the same of the tribunal in which it was instituted. 16 Cyc. Law, 117, 129, 131, and cases cited.

Any objection to the jurisdiction or proceeding comes too late in the appellate tribunal. Perego v. Dodge, 163 U. S. 160, 164, 166, 168.

The character and extent of plaintiff's possession are unimportant, it being plain that the acts of mining on the part of

the plaintiffs were as continuous as the nature of the business and the customs of the country permitted, and such as to permit them to do acts of mining of which the methods, although crude, were yet such as were practiced and customary among their people, "and produced gold." Stephenson v. Wilson, 37 Wisconsin, 482; 2 Lind. on Mines, § 688.

The description of the premises in controversy, being by name of a property well known, is sufficient. Glazier Mining Co. v. Willis, 127 U. S. 471, 480.

And the limitation of § 22 of the act of July 1, 1902, has application only to claims located after the passage of the act. The alleged exclusion of competent and material evidence cannot be considered, as the same is not to be found in the reasons assigned for the motion for a new trial, nor in the bill of exceptions, so-called, nor in the assignments of error.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity brought by the appellees to restrain the appellant from setting up title to certain gold mines in the Province of Benguet, or interfering with the same, and to obtain an account of the gold heretofore taken from the mines. The trial court rendered a judgment or decree granting an injunction as prayed. Exceptions were taken on the grounds that the findings of fact were against the weight of evidence and that the judgment was against the law. The Supreme Court reëxamined the evidence and affirmed the decree below. Then the case was brought here by appeal.

The appellees make a preliminary argument against the jurisdiction of this court, while the appellant asks us to reëxamine the evidence and to reverse the decree on the facts as well as the law. We cannot accede to either of these contentions. We are of opinion that this court has jurisdiction. For if the affidavits of value should be held to apply to the whole of Reavis's claims and not to only that part of them that are in controversy here, still a statute of the United States,