action. On November 6, 1868, while the 420 Mining Company is alleged to have been in possession of said northern. 420 feet of said lode, the Bullion Mining Company applied at the proper land office for a patent, embracing the whole of said claim, both the southern part and said northern 420 feet conveyed to the 420 Mining Company, being the part now in controversy, under the acts of Congress, entitled, "An Act to grant the right of way to ditch and canal-owners and for other purposes," approved July 26, 1866, and in pursuance of such application a patent embracing the whole of said claim on the Comstock lode was issued in due form to said Bullion Mining Company on March 26, 1875. It is alleged in the bill that the said application for a patent was based solely on the said location, made June 23, 1859, and that the only pretense of title to said part in controversy is a conveyance to the Bullion Mining Company of their interest therein by said Durgan and his associates, made subsequently to the said conveyance by the same parties to the 420 Mining Company, with a knowledge at the time on the part of the Bullion Mining Company, of the prior conveyance to the 420 Mining Company. On November 30, 1872, the 420 Mining Company commenced an action in the proper court in the State of Nevada against the Bullion Mining Company, to determine the adverse right of the latter company to said 420 feet of said lode, which action was duly tried and a judgment therein duly entered, and a copy of the record in that suit is annexed to, and made a part of, the bill of complaint in the present action. It is further alleged that by reason of the issue of the patent, as aforesaid, the legal title to said northern 420 feet of said lode became wrongfully vested in the defendant; but that, by reason of the facts alleged, the complainant was really the owner of said 420 feet of mining ground, and entitled under said act of Congress to the patent therefor. The bill thereupon prays that the complainant be decreed to be entitled to said mining ground; that the defendant holds the legal title in trust for complainant, and that it may be required to convey said 420 feet of said lode to complainant. The complaint in the record of the said action of the 420 Mining Company against the Bullion Mining Company com menced November 29, 1872, to determine the adverse claim. of the latter, attached to and made a part of the bill, alleges that the 420 Mining Company, complainant therein, is "the owner of, in possession of, and entitled to the possession of," the said 420 feet of the Comstock lode now in controversy; that the Bullion Mining Company, defendant therein, "claims an estate or interest therein adverse to the plaintiff," and denies the validity of such adverse claim. It then sets out the commencement of the said former action by defendant against complainant to recover possession of said 420 feet; the answer of defendant denying the right; the application of defendant in this action for a patent; the filing of protest by complainant; the subsequent dismissal of the action to recover possession by complainant in that action (defendant in this) without notice to the defendant therein that the right has never been determined between the parties; and praying that the Bullion Mining Company, defendant, may be required to set forth its claim; that the rights of the parties be determined by the court, and that the defendant, the Bullion Mining Company, be adjudged not to have any estate or interest in said mining ground, etc. The answer to said complaint denies the ownership of the complainant, its right of possession and its actual possession of said 420 feet, or any part thereof, at the time of the commencement of the action. It denies that the defendant's claim is without right, and then affirmatively avers that "at the date of the commencement of this action, and for a long time prior thereto, it was and still is the owner of, and in possession of, and entitled to the possession of, said mining ground, ledge, or lode, and every part thereof." It then alleges affirmatively, in appropriate terms, an adverse possession in the defendant of the said 420 feet of the Comstock lode for a period exceeding the time required to give a title under the Statute of Limitations of Nevada in cases of mining claims; and that during all of said time the defendant had held and worked such claim in the manner required by the laws and customs in force in the district in respect to such claim; and then also avers affirmatively that neither the claimant nor any person under whom it holds had been seized or possessed of said 420 feet, or any part therein, within the period prescribed by the Statute of Limitations applicable to such cases; and fur ther, that the alleged cause of action had not accrued within a period of four years. Upon the trial of the issues, the cort found the facts to be as follows: "1. That the plaintiff was incorporated in the State of California, on the twenty-third day of June, A. D. 1863. "2. That the trust deeds were executed to the 420 Mining Company, located in the Virginia mining district, county of Storey, Territory of Nevada, the first bearing date September 30, 1863, and the second July, 5, 1864, and each conveys all the right, title and interest of the parties therein named, as grantors of, in and to that certain mining ground known as the mining ground of the 420 Mining Company. No other description of the ground is given, and no title in either of the grantors to the mining ground in dispute in this action was shown. "3. That some time in the fall of 1859, a shaft was commenced on the northern end of the ground in dispute in this action, by some persons claiming to represent a company called the 420 Company, and thereafter, down to the early part of the year 1863, work was done in three different shafts on the ground in dispute, by persons claiming to work for a company called the 420 Company. That no further work for any company of that name is shown to have been done until some time in the year 1865, when some persons commenced work in a shaft on said ground, claiming to work for the 420 Company, and continued there for a short time, until ejected by the employes of the defendant, as hereafter stated. "4. That on the sixteenth day of November, 1865, the defendant in this action filed a complaint in this court against the plaintiff, alleging that it was the owner of the ground in dispute in this action, and that the defendant had entered upon and taken possession of and ousted the plaintiff from said mining ground now in dispute, and was still in possession thereof, holding adversely to the plaintiff, the Bullion Mining Company. Said complaint was sworn to by George W. Hopkins, secretary of said Bullion Mining Company. To that complaint the defendant, the 420 Mining Company, this plaintiff, filed an answer denying specifically each allegation of the complaint, and the same was sworn to by C. J. Lansing, its attorney in the case. Said action was pending untried until the 1872, when it was dismissed, on motion of the day of- "5. There was no evidence showing that any location of the mining ground in dispute in this action had ever been made by the plaintiff, or any person or persons through whom it claims. "6. The defendant proved that it claimed under two locations of the ground and claim in dispute in this action. The two claims were united early in 1863, under the name of the Bullion Company, and on the eighteenth day of February, A. D. 1863, a trust deed, in which some of the original locators in each of said locations joined, was executed by various persons which conveyed, in terms, to this defendant, mining ground which embraces all the grounds in dispute in this action. "7. In August, 1860, persons commenced work on the mining ground described in finding six, under the locations therein mentioned, and continued work until the conveyance made to the defendant, as aforesaid, and defendant has continued to work thereon day and night, from that time to within a few months past, all the time claiming title to all of said mining grounds, including said ground in dispute. "8. On the seventh day of June, 1866, defendant received from one G. W. Birdsall, a deed of a mining claim, embracing the mining ground in dispute in this action. No title thereto was shown in said Birdsall, but defendant claimed title under that deed and the trust deed aforesaid. "9. That the agents of defendant, in the year 1865, forcibly ejected from the mining ground in dispute in this action the persons mentioned in finding three, as working thereon for the 420 Company, and from that time until the commencement of this action, and until the trial, the defendant has been in the actual, exclusive and uninterrupted occupation and po:session of all the mining ground in dispute in the action aforesaid, claiming title thereto, and claiming the same adversely to plaintiff." "As a conclusion of law I find that the defendant is entitled to judgment as prayed in the answer, and order accordingly." Thereupon the following judgment or decree was entered: "This cause came on regularly for trial on the fifteenth day of August, A. D 1873, and by oral consent, given in open court, a jury was waived, and the trial had by the court, and the court having heard the evidence, and the cause being subsequently submitted, the judge this day filed his findings of fact herein in favor of the defendant. Thereupon it was ordered by the court that judgment be accordingly entered for the defendant. Wherefore, it is ordered and adjudged that the plaintiff is not entitled to any of the relief prayed for in its complaint, and that it take nothing by its action. It is further adjudged that the defendant have and recover of the plaintiff its costs of suit, taxed at $155.05." "Judgment filed August 21, 1873." The following are the provisions of the acts of Congress construed by the court: Section one of the act of July 20, 1866, "granting the right of way to ditch and canal owners over the pub'e 'ands, and for other purposes," declares "mineral lands on the public domain to be free and open to exploration and occupation by all citizens of the United States," * * * "subject to such regulation as may be prescribed by law, and subject also to the local customs or rules of miners in the several m'n'ng districts, so far as the same may not be in conflict with the laws of the United States." Section two provides that "whenever any person, or ass ciation of persons, claims a vein or lode of quartz, or other rock in place bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local customs or rules of miners in the district where the same are situated, and having expended in actual labor and improvements thereon an amount of not less than $1,000, and in regard to whose possession there is no controversy or opposing claim, it shall, and may be lawful for such claimant, or association of claimants, to file in the local land office a diagram of the same so extended laterally or othwise, as to conform to the local laws, customs and usages of miners, and to enter such tract, and receive a patent herefor, granting such mine," etc. Section three provides "that upon the filing of the diagram as provided in the second section of this act, and posting the same in a conspicuous place on the claim, together with a no |