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Argument for Defendants in Error.

208 U.S.

from itself to the holders of the possessory title. It still retains the entire title, at its own disposition, to be finally parted with after the several contests before the land officers and the courts are at last decided.

There has been no proper segregation of the area of the Comstock lode and issuance of such a muniment of title by the Land Department of the United States to bring it within the purview of the taxing power of the State of Colorado, certainly not up to the twenty-first day of September, 1896, the date of the partial re-instatement of the entry.

The refusal of the Land Department of the Government to confirm the mineral entry of the Comstock lode in its entirety from its first order of cancellation May 2, 1887, up to and until September 21, 1896, a period of nine years and four months, is proof positive that no full equitable title passed to the grantees by those proceedings and that the Government through its Land Department still held full control of the land and by its various rulings established the fact that the right to patent in the location claimants was incomplete. Kansas P. Ry. Co. v. Prescott, 16 Wall. 603; Union Pac. R. R. Co. v. McShane, 22 Wall. 444; Northern Pac. R. R. Co. v. Traill Co., 115 U. S. 600; Hunnewell v. Cass Co., 22 Wall. 464; Central Colo. I. Co. v. Pueblo Co., 95 U. S. 259; Lamborn v. Dickinson Co., 97 U. S. 181; Union Pac. R. R. Co. v. Dodge Co., 98 U. S. 541; People v. Shearer, 30 California, 645; Central P. R. R. & Co. v. Howard, 51 California, 229; Long v. Culp, 14 Kansas, 412; White v. B. & M. R. R. Co., 5 Nebraska, 393; Elling v. Thexton, 7 Montana, 330; Musser v. McRae, 38 Minnesota, 409; Van Brocklin v. Tennessee, 117 U. S. 151; Wisconsin Cent. R. R. Co. v. Price Co., 133 U. S. 496; Hussman v. Durham, 165 U. S. 145; Campbell v. Spears, 120 Iowa, 670; Duncan v. Newcomer, 9 S. Dak. 375; Pitts v. Clay, 27 Fed. Rep. 635.

Mr. Aldis B. Browne for defendants in error. Mr. Charles · Cavender was on the brief:

If it be contended that there was a Federal question which

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state taxation, as the title to the land was in the United States, and therefore the levy of the tax was a nullity; second, because the notice of the sale for taxes was published only in a Sunday newspaper, and therefore the sale was a nullity. The further contention is then made that the tax deed for these reasons was void and did not afford color of title sufficient for the purpose of the statute of limitations.

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The judgment under review, however, determined that the interest of Wilhelmina Gude was liable to taxation under the laws of the State, although the land on which it was located had not been patented to her or entered for patent by her; that the possession was the subject of the assessment, and that the right of possession passed by the tax sale; that a tax deed was by a state statute prima facie evidence inter alia "that the property was duly and lawfully advertised for sale;' that the tax deed was not void upon its face, and that it constituted a sufficient color of title to satisfy the statute of limitations; and, finally, that as this action was not brought within five years after the delivery of the tax deed it was barred by that statute, which provided that "no action for the recovery of land sold for taxes shall lie unless the same be brought within five years after the execution and delivery of the deed therefor by the treasurer."

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The question for decision here is only whether this judgment denied to the plaintiffs any Federal rights duly claimed by them in the state court, and we have no right to inquire further. 1. The title to the land on which this mining claim was located was in the United States. It was a part of the public lands, and although proceedings had been begun by the owners of the claim for the acquisition of the title to the land by patent, they were not concluded at the time of the assessment of the tax, and apparently no patent has ever been issued. Obviously the land was not taxable as the property of Wilhelmina Gude. The act by which the people of the Territory of Colorado were enabled to form a State (§4 of act approved March 3, 1875, c. 139, 18 Stat. 474) provided that no taxes

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should ever be imposed upon lands or property of the United States. The claim of a Federal right was based upon this statute. But, assuming that under this statute a Federal question is raised, there was no taxation of the land in the case at bar. A statute of Colorado authorized the taxation of min ing claims, whether patented or entered for patent ́or not, in these words: "In case the mine or mining claim shall not be patented, or entered for patent, but shall be assessable and taxable under this act, on account of producing gross proceeds, then, and in that case, the possession shall be the subject of the assessment, and if sâid mining property be sold for taxes levied, the sale for such taxes shall pass the title and right of possession to the purchaser, under the laws of Colorado." Laws 1887, §§ 340-341, Mills' Ann. Stat. §§ 3222-3225. The construction of this statute and the conformity to it of the proceedings of the taxing officials were questions exclusively for the Supreme Court of the State, and we have no authority to review its determination of them. That court held that what was assessed was not the land on which the mining claim was located, but the claim itself, that is to say, the right of possession of the land for mining purposes. It is agreed that the Comstock Lode was a "valid subsisting mining location," and at the time of the assessment of the tax Wilhelmina Gude was the owner of the undivided interest in it which is in controversy here. Such an interest from early times has been held to be property, distinct from the land itself, vendible, inheritable and taxable. Forbes v. Gracey, 94 U. S. 762; Bell v. Meagher, 104 U. S. 279, 283; Manuel v. Wulff, 152 U. S. 505, 510; St. Louis Mining Co. v. Montana Mining Co., 171 U. S. 650, 655; 1 Lindley on Mines, §§535-542, inclusive. The State therefore had the power to tax this interest in the mining claim and enforce the collection of the tax by sale. The tax deed conveyed merely the right of possession and affected no interest of the United States.

2. The tax de under 'which the defendant in error, Wood claims title was executed in pursuance of a sale made upon

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a notice published only in a Sunday newspaper. This fact does not appear from the deed itself, as an analogous infirmity appeared in the tax deed before the court in Redfield v. Parks, 132 U. S. 239. The deed upon its face was a valid instrument, and could be impeached only by evidence aliunde. The state court did not deem it necessary to consider whether such a notice was sufficient, because it held that a state statute made such a deed prima facie evidence of the sufficiency of the notice, and that possession under such a deed for the prescribed period met the requirements of the state statute of limitations. The decision therefore did not reach the only Federal question which can be imagined with respect to this part of the case, namely, that a sale upon such a notice was wanting in due process of law, but rested upon entirely adequate grounds of a non-Federal nature. Whether the decision of the question of state law was right or wrong, we may not consider. It is enough that the judgment proceeded solely upon the state law, and that the state law was adequate to dispose of the case without reaching any Federal question. Leathe v. Thomas, 207 U. S. 93. We need not, therefore, consider whether this Federal question was properly raised in the court below, or whether a sale upon such a notice would be a denial of due process of law in violation of the Fourteenth Amendment of the Constitution.

The plaintiffs in error have shown no violation of Federal right, and the judgment of the Supreme Court of Colorado is

Affirmed.

Argument for Plaintiffs in Error.

208 U.S.

MISSOURI VALLEY LAND COMPANY v. WIESE.

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

No. 101. Argued January 10, 1908.-Decided February 3, 1908.

Where a judge of the highest court of a State, in allowing a writ of error, adds to his signature "Presiding Judge, etc., in the absence of the chief judge from the State;" that recital is prima facie evidence that the chief judge is absent and the judge signing is presiding, and, if not controverted, the writ of error is properly allowed and the requirement of § 999, Rev. Stat., that it must be allowed either by the Chief Justice of the state court or a justice of this court, is complied with.

The contention in the state court that plaintiff in error's title rested on a patent to his grantor and that prior to the issuing thereof the legal title had remained in the United States, so that adverse possession could not be obtained, involves a Federal question, and as in this case it was not frivolous, and was necessarily decided by the state court, and such decision was adverse to the title set up under the United States, this court has jurisdiction under § 709, Rev. Stat., to review the judgment. The rulings of this court that the Union Pacific Railroad main line grant, within place limits, made by the act of July 1, 1862, 12 Stat. 489, and the amendatory act of July 2, 1864, 13 Stat. 356, was in præsenti, and that after definite location of its road the grantee company could main tain ejectment and that title could be acquired against it by adverse possession, held in this case to apply to lands embraced within the grant for construction of the Sioux City branch road, notwithstanding such branch was to be constructed by a company to be thereafter incorporated. Where lands are within the overlap of place limits of two grants, both of which are in præsenti, and for which eventually a joint patent is issued to both companies, the occupancy of a portion thereof, under a deed given by one of the companies after definite location, and before the issuing of the joint patent, is adverse to the other company, and not that of a co-tenant; nor, under the circumstances of this case, do the acts of such occupant in acquiring title from the United States, under the remedial act of March 3, 1887, 24 Stat. 556, interfere with his title thereto which had already been established by adverse possession.

THE facts are stated in the opinion.

Mr. Charles A. Clark for plaintiffs in error in this case and in No. 102 argued simultaneously herewith:

The grant for the Sioux City Branch was not in præsenti.

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