Min. Co. v. Patterson, 153 Cal. 624, 625,, a property right in the full sense, un96 Pac. 90, 162 Cal. 358, 361, 122 Pac. affected by the fact that the paramount 950; McLemore v. Express Oil Co. 158 title to the land is in the United States Cal. 559, 562, 139 Am. St. Rep. 147, 112 (Rev. Stat. § 910, Comp. Stat. 1916, Pac. 59. § 1532), and it is capable of transfer by conveyance, inheritance, or devise. Forbes v. Gracey, 94 U. S. 762, 763, 767, 24 L. ed. 313, 314, 14 Mor. Min. Rep. 183; Belk v. Meagher, 104 U. S. 279, 283, 285, 26 L. ed. 735, 737, 738, 1 Mor. Min. Rep. 510; Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co. 171 U. S. 55, 78, 43 L. ed. 72, 82, 18 Sup. Ct. Rep. 895, 19 Mor. Min. Rep. 370; Elder v. Wood, 208 U. S. 226, 232, 52 L. ed. 464, 466, 28 Sup. Ct. Rep. 263. To what extent the possessory right of an explorer before discovery is to be deduced from the invitation extended in § 2319, to what extent it is to be regarded as a local regulation of the kind recognized by that section and the following ones, and to what extent it derives force from the authority of the mining states to regulate the possession of the public lands in the interest of peace and good order, are questions with which we are not now concerned. Nor need we stop to inquire whether the right is limited to the ground actually occupied in the process of exploration, or extends to the limits of the claim. These questions and others that suggest themselves are not raised by the present record, which concerns itself solely with the rights asserted by the defendant 1 Mor. Min. Rep. 510; Black v. Elkhorn under the Act of 1903. Whatever the nature and extent of a possessory right before discovery, all authorities agree that such possession may be maintained only by continued actual occupancy by a qualified locator or his representatives engaged in persistent and diligent prosecution of work looking to the discovery of mineral. But, by the provisions of the Revised Statutes above cited, a discovery of mineral by a qualified locator upon unappropriated public land initiates rights much more substantial as against the United States and all the world. If he locates, marks, and records his claim in accordance with § 2324 and the pertinent local laws and regulations, he has, by the terms of § 2322, an exclusive right of possession [349] to the extent of his claim as located, with the right to extract the minerals, even to exhaustion, without paying any royalty to the United States as owner, and without ever applying for a patent or seeking to obtain title to the fee; subject, however, to the performance of the annual labor specified in § 2324, for upon his failure to do this the claim is open to relocation by others at any time before resumption of work upon it by the original locator. If not content to rest upon the right conferred by § 2322, the qualified locator may obtain a patent for his claim by complying with the conditions prescribed by §§ 2325 and 2326. But, even without patent, the possessory right of a qualified locator after discovery of minerals upon the claim is Actual and continuous occupation of a valid mining location based upon discovery is not essential to the preservation of the possessory right. The right is lost only by abandonment, as by nonperformance of the annual labor required by § 2324. Belk v. Meagher, 104 U. S. 279, 283, 284, 26 L. ed. 735, 737, Min. Co. 163 U. S. 445, 450, 41 L. ed. 221, 223, 16 Sup. Ct. Rep. 1101, 18 Mor. Min. Rep. 375; Farrell v. Lockhart, 210 U. S. 142, 147, 52 L. ed. 994, 997, 16 L.R.A. (N.S.) 162, 28 Sup. Ct. Rep. 681; Bradford v. Morrison, 212 U. S. 389, 394, 53 L. ed. 564, 567, 29 Sup. Ct. Rep. 349. After this brief review of the Mining Laws there is little danger of mistaking the true intent and meaning of the Act of Congress of February 12, 1903. Title 32, chapter 6, Revised Statutes, therein referred to, embraces the sections we have cited. And [350] it is not to be doubted that the terms "assessments" and "annual assessment labor" refer to the annual labor required by § 2324, that being commonly called by miners, the "annual assessment" or the "assessment work," and so described in many judicial opinions and in at least two acts of Congress, passed respectively November 3, 1893 (chap. 12, 28 Stat. at L. 6), and July 2, 1898 (chap. 563, 30 Stat. at L. 651). See El Paso Brick Co. v. McKnight, 233 U. S. 250, 255, 256, 258, 58 L. ed. 943, 945, 947, 948, L.R.A.1915A, 1113, 34 Sup. Ct. Rep. 498. And it is important to observe that in these acts of Congress, as in the practice of miners, "assessment work" had nothing to do with locating or holding a claim before discovery. On the contrary, it was the condition subsequent prescribed by Congress to be performed in order to preserve the exclusive right to the possession of a valid mineral land location upon which discovery had been made. 158 Cal. 559, 563, 139 Am. St. Rep. 147, 112 Pac. 59. Hence the declaration in the Act of 1903 that where oil lands are located as placer mining claims "the annual assessment labor upon such claims may be done upon any one of a group of claims lying contiguous and owned by the same person" indicates simply the legislative purpose that the necessary assessment work, if done upon one of the group, should have the same effect as if properly distributed among the several claims; that is to say, the effect of preserving the exclusive right of possession and enjoyment conferred by 8 2322 with respect to unpatented claims based upon a previous discovery of oil. McLemore v. Express Oil Co., Sess.; Senate Rep. No. 2756, 57th Cong., 2d Sess.; 36 Cong. Record, pt. 1, p. 83; pt. 2. pp. 1561, 1682. The committee report contains this explanation of the object of the bill: "The law now requires that upon each mining claim there shall be performed each and every year at least $100 worth of work. The courts have held with reference to lode-mining claims that this annual labor may be done upon any one of a group of mining claims, provided the said work tends to benefit the entire group, but the Land Department of the government seems to be of opinion that the annual labor upon placer-mining claims must be done upon each of said claims. There is good reason for this holding when applied to the ordinary placer claim containing deposits of gold, because in such case the gold lies upon the surface or near the surface, and general development work being upon and near the surface does not tend to benefit other claims than the one upon which the work is actually done; but in the case of oil-mining claims the situation is different. It is necessary [352] to bore wells for great depths in order to determine whether or not oil exists in paying quantities. These wells are expensive, and it is the opinion of the committee that the industry itself will be more benefited by permitting the owner to spend his means in sinking a single well in order to demonstrate the possibilities of the property than it would to require him to distribute his means among several claims. In other words, it is better that $500 should be spent in one place until the character of the oil deposit has been demonstrated than it is to require the same amount of money to be spent in five different places." "Group assessment work" did not originate with the Act of 1903. From an early period the economy of operating contiguous mines or claims by a single system was recognized. In § 5 of the Act of May 10, 1872 (chap. 152, 17 Stat. at L. 92), now § 2324, Rev. Stat. (Comp. Stat. 1916, § 4620), it was provided with respect to the annual labor that "where such claims are held in common such expenditure may be made upon any one claim." Questions as to the precise meaning of [351] this naturally arose, and it was determined that it applied only to contiguous claims, and that the work must be done for the common benefit or for the purpose of developing all the claims. St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636, 655, 26 L. ed. 875, 881, 11 Mor. Min. Rep. 673; Jackson v. Roby, 109 U. S. 440, 444, 27 L. ed. 990, 991, 3 Sup. Ct. Rep. 301; Chambers v. Harrington, 111 U. S. 350, 353, 28 L. ed. 452, 453, 4 Sup. Ct. Rep. 428; Anvil Hydraulic & Drainage Co. v. Code, 105 C. C. A. 45, 182 Fed. 205, 206. The argument for plaintiff in error, while conceding the general rule to have It is plain that the draftsman of the been established that assessment work Act of 1903 had this settled rule in could avail nothing except when permind, for the bill as introduced, with formed upon or for the benefit of a claim enacting clause in the same form as in which a discovery of mineral already finally passed, had this proviso: "Pro- had been made, insists that the difficulty vided, that said labor will benefit or and great expense attendant upon the tend to the development of such con- sinking of wells to make discovery of tiguous claims." By committee amend- oil made it evident that the application ment in the House the words "benefit of the doctrine was a great burden upon or" were struck out, and after the word the oil miner; and that this, having been "development" the following were in- brought to the attention of Congress, serted: "or to determine the oil-bear- was the moving cause of the enactment ing character;" presumably regarded as of the Act of February 12, 1903. This peculiarly appropriate to oil lands. contention finds no support in the enactHouse Rep. No. 2657, 57th Cong., 1sting clause, and but little in the proviso. It gives to the somewhat indefinite lan- | [354] UNITED STATES, Appt., guage of the proviso an effect that V. (See S. C. Reporter's ed. 354-361.) would greatly enlarge instead of con- UNION PACIFIC RAILROAD COMPANY. fining the meaning of what precedes, and would render the statute a radical departure from the previous policy of the mining laws. The legislative history of the act, as well as its phraseology, fails to support the contention. Railroads - transportation of government troops discharged soldiers discharged military prisoners - rejected applicants. 1. Discharged military prisoners, discharged enlisted men in the United States Army, and rejected applicants for enlist Nor is there great force in the suggestion that, with respect to oil claims upon which discovery already had been made, there was no need to encouragement, traveling as individuals, are not the doing of work tending to determine their oil-bearing character, because this would already have been established by the antecedent discovery. It hardly is necessary to say that [353] the discovery of oil upon several contiguous claims does not render it wholly unimportant that assessment work thereafter done by the common troops of the United States within the of the United States. amined owner upon one of the claims, in order to be credited to him as if it had been distributed among the several claims, shall be of general benefit to the group. This is the object of the act, and except as the proviso specifically declares "determination of oil-bearing character" to be of benefit to the contiguous claims, little is added to the effect of § 2324, Rev. Stat., respecting But we group assessment work. not declare a determination of the "oilbearing character" of a claim upon which oil already has been discovered to be a matter so idle as to require us to seek a strained construction of the statute. can [For other cases, see Railroads, IV.; Carriers, transportation of governretired soldiers. 3. Retired enlisted men in the United homes after retirement are not troops of the States Army en route as individuals to their United States within the provisions of the Railroad Land-Grant Acts governing payment for transportation of any property or troops of the United States. [For other cases, see Railroads. IV.; Carriers, II. a, 8, in Digest Sup. Ct. 1908.] Railroads transportation of governments troops furloughed soldiers. 4. Enlisted men of the United States back to their proper stations are not troops Army on furlough en route as individuals of the United States within the provisions of the Railroad Land-Grant Acts governing payment for transportation of any property or troops of the United States. [For other cases, see Railroads, IV.; Carriers, II. a, 8, in Digest Sup. Ct. 1908.] In our opinion the act shows no purpose to dispense with discovery as an essential of a valid oil location, or to break down in any wise the recognized distinction between the pedis possessio of a prospector doing work for the purpose of discovering oil and the more substantial right of possession of one who has made a discovery and performs annual development work to maintain his right to the mineral until patent is obtained. Hence the supreme court of California did not err in overruling the contention that, by force of the act, dis- Argued January 30, 1919. Decided March covery work upon the "Sampson claim" having a tendency to determine the oilbearing character of the contiguous "Rawley-Schley claim" conferred upon plaintiff in error inchoate rights in the latter claim, of which it was not in possession and upon which it had made no discovery. Judgment affirmed. [No. 199.] 31, 1919. APPEAL from the Court of Claims to review an award to a railway company for transportation of various persons claimed by the United States to be government troops. Affirmed. See same case below, 52 Ct. Cl. 226. Brown v. United States, 113 U. S. 568, 571, 28 L. ed. 1079, 1080, 5 Sup. Ct. Rep. 648; United States v. Moore, 95 U. S. 760, 763, 24 L. ed. 588, 589. A grant of public property is to be construed in favor of the government. Slidell v. Grandjean, 111 U. S. 412, 437, 28 L. ed. 321, 329, 4 Sup. Ct. Rep. 475. Assistant Attorney General Brown other charge upon the transportation argued the cause, and, with Mr. Charles of any property or troops of the United H. Weston, filed a brief for appellant: States." This clause was [855] conUnder long-continued departmental strued in Lake Superior & M. R. Co. v. construction, troop transportation has United States, 93 U. S. 442, 23 L. ed. 965, been held to extend to all' those trans- as conferring only the free use of the ported as an incident to the govern- roadbed as a highway. Since then, under ment's military establishment. appropriate legislation, payment has come to be made by the government for the transportation of property and troops at rates equal to 50 per cent of those charged private parties. The Union Pacific, having entered into an agreement to that effect, claimed payment at the full rate for certain persons carried as passengers upon the request of the government. The auditor of the War Department refused to allow payment for these passengers at more than half fares, on the ground that they were within the provision for transporting "troops of the United States;" and his ruling was sustained by the Comptroller of the Treasury. 21 Decisions of the Comptroller, 651. Thereupon this suit was brought in the court of claims for the amount disallowed; and judgment was rendered for the railroad. 52 Ct. Cl. 226. The case is here on appeal. The questions presented are [356] whether any of the following classes of persons are to be deemed "troops of the United States" within the provisions of Mr. William B. Harr argued the cause, and, with Mr. Charles H. Bates, filed a brief for appellee: The term "troops," as used in the Railroad Land-Grant Acts, includes only those persons who are regularly enlisted in the Army or Navy of the United States and whose transportation is a necessary incident of military operations. Dunne v. People, 94 Ill. 120, 34 Am. Rep. 213; Lake Superior & M. R. Co. v. United States, 93 U. S. 442, 23 L. ed. 965; Alabama Great Southern R. Co. v. United States, 49 Ct. Cl. 522. The taking of the oath of allegiance is the pivotal fact which changes the status from that of civilian to that of soldier. Re Grimley, 137 U. S. 147, 156, 157, 34 L. ed. 636, 639, 640, 11 Sup. Ct. Rep. 54; Coe v. United States, 44 Ct. Cl. 419. Retired enlisted men are merely pen sioners. Murphy v. United States, 38 Ct. 517. Cl. Mr. Justice Brandeis delivered the opinion of the court: Most of the acts of Congress which granted lands in aid of railroads provide that they shall be "free from toll or 1 Circular No. 16, Quartermaster Gen-, eral's Office, 1912, entitled, "Schedule of Land-Grant and Bond-Aided Railroads of the United States," pp. 28 et seq. Act of September 20, 1850, chap. 61, § 4, 9 Stat. at L. 466, 467. A few of the acts granting lands in aid of railroads provided that the grant is "subject to such regulations as Congress may impose restricting the charges for government transportation." Act of July 27, 1866, chap. 278, § 11, 14 Stat. at L. 292, 297. The Army Appropriation Acts make provision for payment under both classes of statutes, payment in neither case to exceed 50 per cent of the rates charged private parties. See Act of July 16, 1892, chap. 195, 27 Stat. the Land-Grant Acts: 1. Discharged soldiers; that is, former enlisted men of the Army en route to their homes after discharge. 2. Discharged military prisoners; that their homes or elsewhere after serving is, discharged enlisted men en route to sentence as military prisoners. The 3. Rejected applicants for enlistment in the Army; that is, men who, having passed the required tests at the recruiting station, and having been forwarded to the recruiting depots for final examination and enlistment, were there rejected and were being returned to the at L. 174, 180; Act of March 2, 1913, chap. 93, 37 Stat. at L. 704, 715. Fifty per cent has been adopted by the War Department as the standard rate of payment. Union Pacific on May 15, and June 3, 1911, became a party to the so-called "Land-Grant Equalization Agreements" entered into by the Quartermaster General of the United States with most of the important roads of the United States in other than New England or Trunk Line territories. By these agreements, the several roads consented (with certain exceptions) to accept the same net rates on both passenger and freight traffic via their respective lines as are effective via land-grant lines. "Freight and Passenger Land-Grant Equalization came. 4. Accepted applicants for enlistment in the Army; that is, applicants examined at general recruiting stations, found mentally, morally, and physically fit for service, and being forwarded to recruiting depots for final examination and enlistment. 5. Retired soldiers; that is, enlisted men of the Army en route to their homes after retirement. 6. Furloughed soldiers; that is, enlisted men of the Army on furlough en route back to their proper stations. None of these persons traveled as part of a moving army, troop, or body of soldiers. That is, they traveled separately as individuals, and (with few exceptions) each on a different day and to widely scattered destinations. Under recent acts of Congress and Army Regulations the transportation of persons of some of these classes is paid for by the government. recruiting stations from which they meaning:-namely, "soldiers collectively,- —a body of soldiers." Thus the Army Appropriation Act of that year (Act of September 28, 1850, chap. 78, § 1, 9 Stat. at L. 504, 506) provides for the "transportation of the Army, including the baggage of the troops when moving either by land or water," and for "mileage, or the allowance made to officers for the transportation of themselves and baggage when traveling on duty without troops." The contemporary legislation draws a clear distinction also between troops, that is, those then having the status of soldiers, and those who once had been in, or were seeking to enter, the military service. Thus the Army Appropriation Act of March 2, 1847, chap. 35, 9 Stat. at L. 149, 151 (which provides in substantially the [358] same terms as that of 1850 for the transportation of troops), makes specific provision for "forwarding destitute soldiers to their homes," for the "comfort of discharged soldiers," and for "expenses of In defining the transportation rights recruiting," which include the cost of secured to the United States, these Land- transportation. See Army Regulations, Grant Acts draw a broad distinction be- 1857, § 1321. And the Resolution of tween freight and passengers. All March 3, 1847 [No. 7], 9 Stat. at L. 206, "property" [357] of the government, authorizes the refund of moneys expendwhatever its character and intended ed by the states and individuals "in oruse, is to be carried "free of toll ganizing, subsisting, and transporting or other charge;" but of the many volunteers previous to their being muspersons in its service, only "troops." tered and received into the service of The history of the legislation shows the United States for the present war, that both the broad term, "any prop- and for subsisting troops in the service erty," and the narrower one, "troops," were adopted deliberately. The earliest Land-Grant Act in which the provision appears is that of September 20, 1850, chap. 61, § 4, 9 Stat. at L. 466, 467, under which the Illinois Central was constructed. The bill as introduced 3 provided for the free transportation of "troops and munitions of war." It was amended so as to read "any property or troops." There had been an earlier act granting land to the state of Illinois for the construction of a canal (Act of March 30, 1822, chap. 14, 3 Stat. at L. 659), which was amended (Act of March 2, 1833, chap. 87, 4 Stat. at L. 662) so as to permit, on the same terms, the use and disposition of the land for railroads. That act provided for the free transportation of "any property of the United States, or persons in their service." In 1850 the word "troops" had (and it has ever since had) an established of the United States." In view of the established meaning of the term "troops," as used by Congress, the duty of the court is merely to apply the provisions of the act to the several classes of persons described above. First. The first three classes, namely, discharged military prisoners, discharged enlisted men, and rejected applicants for enlistment, are clearly not "troops of the United States." Their status is that of the civilian. They form no part of the military establishment. They may go where they please and do what they please, subject to no more interference by the military authorities of the government than if they had never been, or had never sought to be, connected with the Army. They were traveling for their own personal ends. Congress recognizes the distinction between those forming part of the Army and those who do not, because they are recruits or have Agreements and List of Carriers Partici-, Army Regulations, 1913, wherever cited pating," Circular No. 6, Office of Chief, herein, refers to the edition corrected to Quartermaster Corps, 1913. 2 Sce acts cited in note 4, infra. Army Regulations, 1913, §§ 145, 1235, 1379, 1115. April 15, 1917. 3 Congressional Globe, 1850, 31st Congress, 1st Session, vol. 21, pt. 1, p. 844. |