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§ 1270) giving to army officers the pay of cavalry officers of the same grade when assigned to duty which requires them to be mounted, indicate a general purpose to give to officers of the Army mounted pay when their duties are such as may require them to be actually mounted, or are such as may at any time subject them to the necessity of rendering mounted service. The particular section (1301) under which it is insisted that a naval aid is entitled to mounted pay, designates officers who either are or may be required to be mounted in the discharge of their duties, and likewise to "officers on duty which, in the opinion of the department commander, requires them to be mounted and so certified by the latter on their pay vouchers."

This paragraph was intended to include the particular classes of officers who are entitled to pay as mounted officers under the classification in the first part thereof, and gives the benefit of the higher rate of compensation to other officers, not expressly named therein, whose duties require them to be mounted. It may be true, as argued at the bar, that there may be times when the duties of an aid to a major-general will not require him to be mounted. But, as we understand the Army Regulations, such officers may be at any time required to render mounted service, and are therefore given the pay of that class. Obviously, the duties of an aid to a rear-admiral are not such as to require him to render mounted service, and as the Navy Personnel Act only undertakes to afford a measure of compensation for duties which can properly be required of a naval officer, it can have no operation to provide pay for services peculiar to the Army. As was held in United States v. Thomas, supra, it does not follow, because Congress gives special pay to army officers, that the same right of compensation applies to naval officers also. In that case it was held that an allowance to army officers who might be ordered to sea or a foreign port could not be given to naval officers whose regular duties require them to engage in service upon the sea and to cruise upon foreign waters and serve in foreign ports.


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The present case affords still less reason for giving the pay of an army officer to one in the Navy, where the compensation is given for a character of service which never can be required except in the Army.

Upon this branch of the case we think the Court of Claims was in error, and the judgment for mounted pay should not have been rendered in favor of the claimant.

The judgment of the Court of Claims is modified, disallowing the sums claimed in the petition and carried into the judgment on account of mounted pay and longevity pay based thereon, and, as modified, is




No. 18. Argued April 15, 18, 1904.-Reargued January 10, 11, 1905.-Decided January 30,


As between the Government and the locator, it is not a vital fact that there was a discovery of mineral in a lode claim before the commencement of any of the steps required to perfect a location, and by accepting the entry, and confirming it by a patent, the Government does not determine as to the order of proceedings prior to the entry but only that all required by law have been taken.

Adverse proceedings, are called for only when one mineral claimant contests the right of another mineral claimant, and, as a tunnel is not a mining claim but only a means of exploration, the owner, prior to discovery of a lode or vein within the tunnel, is not bound to adverse the application for the patent of a lode claim, the lode of which was discovered on the surface; and his omission to do so does not preclude him from asserting a right prior to the date of discovery named in the certificate of location on which the patent for the surface lode claim is based.


Opinion of the Court.

196 U. S.

THE facts are stated in the opinion.

Mr. Charles S. Thomas, with whom Mr. A. T. Gunnell, Mr. W. H. Bryant, Mr. H. H. Lee, Mr. T. M. Patterson, Mr. E. F. Richardson and Mr. H. N. Hawkins were on the brief, for petitioner.

Mr. Charles J. Hughes, Jr., with whom Mr. Scott Ashton, and Mr. Gerald Hughes were on the brief, for respondent. Mr. J. C. Helm, by special leave, as amicus curiæ.

MR. JUSTICE BREWER delivered the opinion of the court.

Certiorari to review a judgment of the United States Circuit Court of Appeals for the Eighth Circuit, 119 Fed. Rep. 164, reversing a judgment of the Circuit Court of the United States rendered upon a verdict of a jury directed by the court.

The action was originally brought by the Creede and Cripple Creek Mining and Milling Company, as plaintiff, against the Uinta Tunnel Mining and Transportation Company, as defendant, in the District Court of the county of El Paso, Colorado, for the possession of certain mining claims and for damages. Equitable relief was also prayed. On motion of the defendant the action was removed to the United States Circuit Court for the District of Colorado, where, also on its motion, the pleadings were reformed and the action made one for the possession of the property and damages.

The plaintiff filed an amended complaint, alleging in substance that it was the owner in fee and in possession and entitled to the possession of the Ocean Wave and Little Mary lode mining claims-being survey lot No. 8192, evidenced by mineral certificate No. 338, the patent of the United States to said plaintiff for said claims bearing date December 21, 1893-that said claims were duly located and discovered on the second of January, 1892, and that the patent related back and took effect of that date for all purposes given and provided

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by the laws of the United States and the State of Colorado concerning mining claims.

Entry upon the claims and ouster of plaintiff by defendant by means of its tunnel were also alleged.

Thereafter the defendant filed its answer. Upon motion. of plaintiff certain portions thereof were stricken out, and on the trial testimony offered by the defendant in support of the portions stricken out was rejected.

The matter to be determined is the sufficiency of the defenses pleaded and stricken out. To appreciate them fully it is well to state some facts about which there is no dispute, and it is sufficient to state the facts in reference to one of the lode mining claims, as the proceedings in respect to the two were alike. On February 1, 1892, J. B. Winchell and E. W. McNeal filed in the office of the county clerk of El Paso County (the county in which the mining claim was situated) a certificate of location which, not verified by affidavit or other testimony, stated that they had on January 2, 1892, located and claimed, in compliance with the mining acts of Congress, 1,500 linear feet on the Ocean Wave lode, and gave the boundaries of the claim. By several mesne conveyances the title of Winchell and McNeal passed to the plaintiff. On August 5, 1893, the plaintiff made an entry of the claim in the proper land office of the United States, and, no proceedings in adverse being instituted, a patent therefor was issued to it on December 21, 1893. There is no reference in the patent to the discovery or the filing of the location certificate. The first appearance of the claim on the records of any office of the United States is the entry in the local land office of August 5, 1893, and the only prior record in any state office is the location certificate, unsworn to, filed February 1, in which the parties filing the certificate stated that they had discovered the lode on January 2, 1892. On February 25, 1892, a location certificate of the defendant's tunnel was filed in the office of the county clerk of El Paso County, which, verified by the oath of one of the locators, stated that on January 13, 1892, they

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had located the tunnel site by posting in a conspicuous place and at the entrance to the tunnel a notice of their intent to claim and work the tunnel; that they had performed work therein to the value of $270 in driving said tunnel and $80 in furnishing and putting in timbers, and that it was their bona fide intent to prosecute the work with diligence and dispatch for the discovery of lodes and for mining purposes. The certificate also contained a full description of the boundaries of the tunnel site as claimed.

In a general way it may be said that the defenses which were stricken out were a priority of right and an estoppel. We quote these paragraphs from the answer:

"It further avers that the patent of the United States issued for said Ocean Wave and Little Mary lodes and lode mining claims was issued subject to the act of Congress in reference to tunnel rights and subject to the laws of the State of Colorado in reference to the right to run tunnels through ground that may be patented, for the purpose of reaching territory that belongs to tunnel owners beyond such patented claims, and subject to the rights which the defendant The Uinta Tunnel Mining and Transportation Company and its grantors had acquired by reason of the location of said Uinta tunnel, and in and to any and all lodes, veins, and mining claims that it might cut or discover in driving said tunnel, as is guaranteed to the locator of said tunnel under and by virtue of section 2323 of the Revised Statutes of the United States; that the pretended discovery alleged and pretended to have been made in and upon said pretended Ocean Wave and Little Mary lodes and lode mining claims, and by virtue of which the plaintiff claims the right to patent the same under the laws of the United States, was not made until long after the location of said Uinta tunnel, and at the time said pretended locations were made said locators thereof were advised and knew that said tunnel had been located and had been and was being prosecuted with due diligence and in strict compliance with the terms and conditions of the statutes of the United States

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