Opinion of the Court.

heretofore filed and printed and a copy of the affidavits of Isaac Graveson, Goodrich H. Barbour, Charles Preston, and Charles P. Baldwin, herein above set forth, all of which were filed in the clerk's office prior to or on the 29th day of February last, I further say that I obtained the post-office address of the said George Norris from the clerk of this court.

"WALTER H. SMITH.

"Subscribed and sworn to before me this 15th day of March,

1888.

66

[NOTARY SEAL.]

"JAMES H. GRIDLEY, Notary Public."

MR. JUSTICE MILLER, on the 2d of April, 1888, made the following announcement:

This case was dismissed at the hearing on the ground that the amount in dispute was not sufficient to give this court jurisdiction. Permission, however, was given for the plaintiff in error to move to set aside this dismissal and file affidavits, if it could, to show that the value of the property which was the subject of controversy exceeded five thousand dollars. We think the affidavits now produced establish that fact sufficiently, and as no affidavits to the contrary have been produced, although the defendants in error had notice, the motion to set aside the order of dismissal is granted, and the case restored to the docket in the position it occupied before it was dismissed.

Mr. Walter H. Smith, on the 9th April, 1888, submitted the case for plaintiff in error on his brief. Mr. Ellery C. Ford was with him on the brief.

No appearance for defendant in error, and no brief filed.

MR. JUSTICE LAMAR, after stating the case as above reported, delivered the opinion of the court.

The opinion of the court below is not found in the record, and we are not advised by brief or otherwise as to the grounds

Opinion of the Court.

upon which the court sustained the demurrer. We must, therefore, determine the issues presented in the case by refer ence to the bill of complaint, and to the causes assigned for demurrer.

First. That the property sought to be recovered in this action is not described by its legal subdivisions nor by its metes and bounds. We do not think this ground is tenable. The complaint, after setting forth the location by plaintiff's grantors of the tunnel and tunnel site in Snake River mining district, Summit County, Colorado, at the base of the Glacier Mountain, states that they (said grantors) caused to be made out and recorded in the recorder's office of the county aforesaid, a location certificate of said tunnel claim, which said certificate described the location and boundaries of said tunnel claim; that the said tunnel claim was by its locators named the Silver Gate tunnel claim, and is described more fully as follows: "Commencing at the base of said Glacier Mountain east of Bear Creek, and running southeast and parallel with Coley tunnel through said mountain five thousand feet from the mouth or starting point of said tunnel at a stake marked and in or at the mouth of said Silver Gate tunnel, and two hundred and fifty feet northeast and two hundred and fifty feet southwest from said stake or tunnel to its termination."

We think this description is sufficiently plain and distinct to enable the sheriff in case of a recovery to execute a writ of possession, or to enable a surveyor to ascertain the exact limits of the location. The strict rule of pleading which formerly required exact accuracy in the description of premises sought to be recovered, has, in modern practice, been relaxed, and a general description of the property held to be good. The provisions of state statutes as to the description of the premises by metes and bounds, have been held to be only directory, and a description by name where the property is well known is often sufficient.

As to the second cause of demurrer, we think that, though the lodes alleged to be embraced within the said tunnel site location are not each separately described, the statement in the complaint that all the lodes in the tunnel claim have been

Opinion of the Court.

worked and mined by the plaintiff and its grantors, comprehends every part of the property for the recovery of which the action is brought.

With reference to the third ground of the demurrer, it is only necessary to say that the complaint alleges that a valid and legal location of said tunnel was made by persons under whom the plaintiff claims, and that the plaintiff held possession of the same for more than five consecutive years prior to the ouster by the defendants, and paid all the taxes during that period legally or otherwise assessed upon said property. This, under the laws of Colorado, would give the plaintiff a right to the premises in dispute superior to any other claim, except that of the government.

The fourth ground of demurrer is: "That the claim of the said plaintiff to a strip of ground 5000 feet in length by 500 feet in width as a tunnel site is unwarranted and unprecedented and was not at the date of said pretended location nor at any time subsequent thereto authorized by any local, state, or congressional law." Under § 2323 Rev. Stat. the right is given to locate a tunnel 3000 feet from the face of said tunnel, and the right is also given to the lodes discovered in said tunnel "to the same extent as if discovered from the surface," which is 300 feet on each side of the tunnel. Under the local laws of Colorado the right is given to "250 feet each way from said tunnel on each lode so discovered." 1801, § 5 General Laws of Colorado, 627. The objection presented by the demurrer is, that the tunnel is 5000 feet in length, whereas the statute only recognizes a right of 3000 feet from the mouth thereof, and that this renders the whole claim void.

We do not assent to this proposition. The location would be good to the extent of 3000 feet at least. Richmond Mining Company v. Rose, 114 U. S. 576, 580. This would be true had the location been made under the mining laws now in force. It will be observed, however, that this location was made prior to the passage of any general mineral law. It was made in 1865, and the first general statute passed by Congress on the subject is that of July 26, 1866. It is alleged by the plaintiff in error that this location was made in accordance

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Statement of the Case.

with the local rules and customs of miners in force at the time of the location, and that, therefore, such location was recognized and protected by the general mineral laws of July 26, 1866, 14 Stat. 251, and that of May 10, 1872, 17 Stat. 91. This allegation, however, is denied by the defendants; but as these local rules and customs differ in the several mining districts as to the extent and character of the mine, the question cannot properly be determined on demurrer.

The Land Department of the government, and this court also, have always acted upon the rule that all mineral locations were to be governed by the local rules and customs in force at the time of the location, when such location was made prior to the passage of any mineral law by Congress. Jennison v. Kirk, 98 U. S. 453, 457; Broder v. Water Co., 101 U. S. 274, 276; Jackson v. Roby, 109 U. S. 440, 441; Chambers v. Harrington, 111 U. S. 350, 352.

We are, therefore, of the opinion that the cause of action is plainly and fully set forth in the complaint, and that the judgment of the court below cannot be sustained on any ground presented by the record.

The judgment of the Circuit Court is therefore reversed, and the cause remanded to that court for such further proceedings as are consistent with this opinion. So ordered.

HEGLER v. FAULKNER.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

There being nothing in the record to show that the Circuit Court had jurisdiction of the case, this court of its own motion reverses the judgment and remands the cause for further proceedings.

THE case is stated in the opinion.

Opinion of the Court.

Mr. J. W. Denver and Mr. T. H. Broady for plaintiff in

error.

Mr. T. M. Marquett and Mr. Isham Reavis for defendants in error.

MR. JUSTICE MILLER delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the District of Nebraska.

There is in the record presented here a transcript showing that the action was first brought October 4, 1878, in the District Court of Richardson County, in the State of Nebraska, in which the original petition or declaration was filed. The suit was to recover the possession of a tract of land situated in that county, containing 320 acres, and for rents and profits alleged to be of the value of $2500. The defendants entered their appearance on May 6, 1879, and leave was granted them to answer in thirty days. The plaintiff was ruled to reply in fifty days, and the cause continued. An answer was filed May 17, 1879, and this appears to have been done in the Circuit Court of the United States for the District of Nebraska, in which all the subsequent proceedings in the progress of the cause were taken.

There is no evidence of any petition or order for the removal of the case into this latter court from the state court sitting in the county of Richardson, nor is there any statement anywhere of the citizenship of the parties. It appears that a trial was thereafter had and a verdict rendered for the defendants. The only attempt made to show any jurisdiction. in the Circuit Court, in which that trial took place, is a short stipulation between the parties made in that court December 8, 1882, by which it was agreed that the amount in controversy in the action exceeded five thousand dollars.

A judgment in favor of the defendants was entered upon this verdict, to which the present writ of error is directed. It is very clear that this verdict and judgment must be set aside, because the Circuit Court had no jurisdiction of the case.

The judgment of the court below is reversed, and the case remanded for further proceedings.