entries of plaintiff's claims, sought to invalidate them by proof that there had been no previous discovery of mineral. This was refused by the trial court, and we sustained the ruling, saying (p. 510, L. ed. p. 1206, Sup. Ct. Rep. 890): right? It must be remembered that the dis- | established by a location at the time of the covery and the marking on the ground are not matters of record but in pais, and, if disputed in an adverse suit or otherwise, must be shown, as other like facts, by parol testimony. It must also be remembered that the certificate of location required by the Colorado statutes need not be verified. The one in this case was not. A locator might, if so disposed, place the date of discovery before it was in fact made, and at any time within three months prior to the filing of the certificate. "The patents were proof of the discovery, and related back to the date of the locations of the claims. The patents could not be collaterally attacked. This has been decided so often that a citation of cases is unnecessary." But it has been said that the question has An entry, sustained by a patent, is conclubeen decided by this court adversely to these sive evidence that, at the time of the entry, views, and Enterprise Min. Co. v. Rico- there had been a valid location, and such Aspen Consol. Min. Co. 167 U. S. 108, 42 L. valid location implies, as one of its condied. 96, 17 Sup. Ct. Rep. 762, and Calhoun tions, a discovery; and the decision only Gold Min. Co. v. Ajax Gold Min. Co. 182 U. went to the extent that this could not be S. 499, 45 L. ed. 1200, 21 Sup. Ct. Rep. 885, challenged by one who, at the time of the are cited. In the former case the question entry, had made no location, and therefore was as to when a vein discovered in a tun- | had acquired no tunnel right. There is nothnel must be located, and in the opinion (p. ing in this ruling to conflict with the views 112, L. ed. p. 100, Sup. Ct. Rep. p. 763) we we have expressed. said: "In order to make a location there must be a discovery; at least, that is the general rule laid down in the statute. Section 2320 (U. S. Comp. Stat. 1901, p. 1424) provides: 'But no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.' The discovery in the tunnel is like a discovery on the surface. Until one is made there is no right to locate a claim in respect to the vein, and the time to determine where and how it shall be located arises only upon the discovery, whether such discovery be made on the surface or in the tunnel." But that comes far short of meeting the question before us. It is undoubtedly true that discovery is the initial fact. The language of the statute makes that plain, and parties may not go on the public domain and acquire the right of possession by the mere performance of the acts prescribed for a location. But the question here is whether, if there be both a discovery and the performance of all the acts necessary to constitute a location, the order in which these things take place is essential to the right of exclusive possession which belongs to a valid location. In the Ajax Case the contest was between mining claims, on the one hand, and a mining claim and tunnel site, on the other. All the mining claims had passed to patent. The plaintiff in error, who was defendant below, held the junior patent issued upon a later entry, and the entries of plaintiff's claims were made and the receiver's final receipts issued prior to the location of the tunnel site. In other words, the defendant, admitting that its right to a tunnel had not been' 25 S. C.-18. It would seem, therefore, from this review of the authorities as well as from the foregoing considerations that, as between the government and the locator, it is not a vital fact that there was a discovery of mineral before the commencement of any of the steps required to perfect a location, and that if, at the time of the entry, everything has been done which entitled the party to an entry, to wit, a discovery and a perfected location, the government would not be justified in rejecting the application on the ground that the customary order of procedure had not been followed. In other words, the government does not, by accepting the entry, and confirming it by a patent, determine as to the order of proceedings prior to the entry, but only that all required by law have been taken. If, therefore, the entry and patent do not of themselves necessarily determine the order of the prior proceedings, why may not anyone who claims rights anterior to the entry, and dependent upon that order, show, as a matter of fact, what is was? One not a party to proceedings between the government and the patentee is concluded by the action of the government only so far as that action involves a determination. There is a determination by the fact of entry and patent that there was, prior to the entry, a discovery and a location. Having been so determined, third parties may be concluded thereby. But it may be said that when the time of a particular fact is concluded by an adjudication, or when an opportunity is presented for such an adjudication, and not availed of, the time as stated must be considered as settled; that when the plaintiff applied for its patent, if there was any | Is the owner of a tunnel who simply seeks question to be made by the defendant of any statement of fact made in the location certificate or other record, it should have been challenged by an adverse suit. Failing to do so, the fact must be considered to be settled as stated. Undoubtedly, if, in an adverse suit, the time of any particular matter is litigated, the judgment is conclusive; and if the date of discovery stated in the plaintiff's location certificate had been challenged in an appropriate action brought by the defendant, and determined in favor of the plaintiff, there could be now no inquiry. So, when the owner of a lode claim makes application for a patent, and the owner of another seeks to challenge the former's priority of right on account of the date of discovery, it is his duty to bring an adverse suit; and, if he fails to do so, that question will be, as to him concluded. Such is the purpose and effect of the adverse proceedings. Is the same rule also applicable to a tunnel site? This opens up the question of what are the rights and obligations of the owner of a tunnel. And here these facts must be borne in mind: The owner of a tunnel never receives a patent for it. There is no provision in the statute for one, and none is in fact ever issued. No discovery of mineral is essential to create a tunnel right or to maintain possession of it. A tunnel is only a means of exploration. As the surface is free and open to exploration, so is the subsurface. The citizen needs no permit to explore on the surface of government land for mineral. Neither does he have to get one for exploration beneath the surface for like purpose. Nothing is said in § 2323 (U. S. Comp. Stat. 1901, p. 1426) as to what must be done to secure a tunnel right. That is left to the miners' customs or the state statutes, and the statutes of Colorado provide for a location and the filing of a certificate of location. When the tunnel right is secured the Federal statute prescribes its extent,--a tunnel 3,000 feet in length and a right to appropriate the veins discovered in such tunnel to the same extent as if discovered from the surface. If the tunnel right was vested before a discovery in the plaintiff's lode claim the defendant ought to have the benefit of it. The plaintiff's right does not antedate his discovery; at least it does not prevail over any then-existing right. But, it is said, the defendant did not adverse the plaintiff's application for a patent; that its omission so to do precludes it from now asserting a right prior to the date of discovery named in the certificate of location, just as a judgment in an adverse suit involving the question of date would have been conclusive. to protect his tunnel, and has, as yet, discovered no lode claim, bound to adverse an application for the patent of a lode claim, the lode of which was discovered on the surface? It is contended that the case of Enterprise Min. Co. v. Rico-Aspen Consol. Min. Co. 167 U. S. 108, 42 L. ed. 96, 17 Sup. Ct. Rep. 762, decides this question. But in that case the line of the tunnel did not enter the ground of the lode claim, but ran parallel with and distant from it some 500 feet, and we held that the mere possibility that, in the line of the tunnel, might be discovered a vein which extended through the ground of the distant lode claim, did not necessitate adverse proceedings. Here the line of the tunnel runs directly through the ground of the plaintiff, and the question is distinctly presented whether, in order to protect the right to that tunnel, the defendant was called upon to adverse? Whatever might be the propriety or advantage of such action, the statute does not require it. Sections 2325 and 2326 (U. S. Comp. Stat. 1901, pp. 1429, 1430) provide the manner of obtaining a patent and for adverse proceedings. The first commences: "A patent for any land claimed and located for valuable deposits may be obtained in the following manner." This, obviously, does not refer to easements or other rights, nor the acquisition of title to land generally, but only to land claimed and located for valuable deposits. Then, after prescribing certain proceedings, the statute adds: "If no adverse claim shall have been filed with the register it shall be assumed that the applicant is entitled to a patent and that no adverse claim exists." The next section commences, "where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim." The section then authorizes the commencement of an action by the adverse claimant and a stay of proceedings in the Land Department pending such action, and adds: "After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the regis session and enjoyment of the same, has no support in any legislation of Congress. The land officers, who are merely agents of the law, had no authority to insert in the patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed." ter to the Commissioner of the General Land | all rights necessary or proper to the pos Office, and a patent shall issue thereon for the claim, or such portion thereof, as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor general, whereupon the register shall certify the proceedings and judgment roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights." Reading these two sections together, it is apparent that they provide for a judicial determination of a controversy between two parties contesting for the possession of "land claimed and located for valuable deposits;" in other words, the decision of a conflict between two mining claims,-a decision which will enable the Land Department, without further investigation, to issue a patent for the land. A tunnel is not a mining claim, although it has sometimes been inaccurately called one. As we have seen, it is only a means of exploration. The owner has a right to run it in the hope of finding a mineral vein. When one is found he is called upon to make a location of the ground containing that vein, and thus creates a mining claim, the protection of which may require adverse proceedings. As the claimant of the tunnel he takes no ground for which he is called upon to pay, and is entitled to no patent. A judgment in adverse proceedings instituted by him (if such proceedings were required) might operate to create a limitation on the estate of the applicant for a patent to the mining claim, and, thus as it were, engraft an exception on his patent. But, taking the whole surface, the applicant is required to pay the full price of $5 per acre, with no deduction because of the tunnel. The statute provides for no reduction on account of any tunnel. The tunnel owner might be said to have established his right to continue the tunnel through the lode claim after patent, -a right which he undoubtedly had before patent, or at least before entry. There is no statutory warrant for placing in a patent to the owner of a lode claim any limitation of his title by a reservation of tunnel rights. In Deffeback v. Hawke, 115 U. S. 392, 406, 29 L. ed. 423, 427, 6 Sup. Ct. Rep. 95, 101, we said: "The position that the patent to the plaintiff should have contained a reservation excluding from its operation all buildings and improvements not belonging to him, and Other limitations in the full title granted by a patent for a mineral claim are recognized in the statutes. Thus, by § 2339(U. S. Comp. Stat. 1901, p. 1437), which is found in the same chapter as the other sections quoted, the one devoted to "Mineral Lands and Mining Resources," it is provided that: "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed." But it has never been supposed that the owner of any of these rights was compelled to adverse an application for a patent for a mining claim, for they are not "mining claims." The decisions on the question of the duty of the tunnel owner to adverse the application of the lode claimant are not harmonious. In Bodie Tunnel & Min. Co. v. Bechtel Consol. Min. Co. 1 Land Dec. 584, Secretary Kirkwood held that a tunnel location was a mining claim and necessitated adverse proceedings to protect its rights as against an applicant for a lode claim (sec also Back v. Sierra Nevada Consol. Min. Co. 2 Idaho, 420, 17 Pac. 83), while the supreme court of Colorado, in Corning Tunnel Co. v. Pell, 4 Colo. 507, denied the right of a tunnel owner to adverse the application for a patent for a lode claim where the lode had not been discovered in the tunnel, and the discovery shaft was not on the line of the tunnel. Lindley, § 725, referring to the decision in Enterprise Min. Co. v. RicoAspen Consol. Min. Co. 167 U. S. 108, 42 L. ed. 96, 17 Sup. Ct. Rep. 762, said: "In the light of this decision and the one which it affirms, the rule may be thus formulated: Where a lode claimant applies for a patent to a location embracing a lode which has previously been discovered in the tunnel, the tunnel claimant will be compelled to adverse to protect his rights. A right in the particular lode inures to the tunnel proprietor immediately upon its dis covery in the tunnel, which right is essentially adverse to the lode applicant; but where there has been no discovery in the tunnel, and it cannot be demonstrated that the lode will be cut by the tunnel bore, there is no necessity for an adverse claim." Without further review of the conflicting authorities, it would seem that whatever may be the propriety or advantage of an adverse suit, one cannot be adjudged necessary when Congress has not specifically required it. Until the discovery of a lode or vein within the tunnel, its owner has only a possibility. He is like an explorer on the surface. Adverse proceedings are called for only when one mineral claimant contests the right of another mineral claimant. If the defendant was not estopped by a failure to institute adverse proceedings, then the trial court erred in striking out the parts of the answer in reference to the date of plaintiff's discovery, and the judgment of the court of appeals was right. This conclusion avoids the necessity of any inquiry as to the effect of the alleged estoppel, and the judgment of the Circuit Court of Appeals is affirmed. (196 U. S. 375) SWIFT & COMPANY et al., Appts., v. UNITED STATES. Interstate commerce-unlawful restraints and monopolies-combinations of meat dealers-sufficiency of allegations of bill. 1. 2. 3. A general allegation of intent may color and apply to all the specific charges of a bill which seeks relief against alleged violations of the act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), to protect trade and commerce against unlawful restraints and monopolies. 4. agents when purchasing stock for them in the stock yards, is an interference with interstate commerce, forbidden by the act of July 2, 1890, (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), to protect trade and commerce against unlawful restraints and monopolies, where such dealers and their slaughtering establishments are largely in different states from those of the stock yards, and the sellers of the cattle largely in different states from either. Trade in fresh meat is sufficiently shown to be commerce among the states, protected from restraint by the act of July 2, 1890, (26 Stat. at L. 209, chap, 647, U. S. Comp. Stat. 1901, p. 3200), by allegations in a bill charging meat dealers with violations of that act, which, even if they import a technical passing of title at the slaughtering places in cases of sales, also import that the sales are to persons in other states, and that the shipments to other states are pursuant to such sales, and by allegations charging sales of such meat by their agents in other states, which indicate that some, at least, of the sales were in the original packages. 5. Vagueness cannot be asserted of a charge in a bill seeking relief against an attempt to monopolize commerce in fresh meat among the states, in violation of the act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), that a combination exists among independent meat dealers to restrain their respective agents from bidding against each other when purchasing live stock for them in the stock yards. 6. Interstate commerce is unlawfully restrained, in violation of the act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), by a combination of independent meat dealers, in aid of an attempt to monopolize commerce in fresh meat among the states, to bid up prices for live stock for a few days at a time, in order to induce cattle men in other states to make large shipments to the stock yards, or by a combination for the same purpose to fix the selling price of fresh meat, and to that end to restrict shipments, when necessary, to establish a uniform rule of credit to dealers, and to keep a black list, or by a combination in aid of such purpose to make uniform and improper charges for cartage for the delivery of meat sold to be shipped to dealers and consumers in the several states. A bill charges a violation of the act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), to protect trade and commerce against unlawful restraints and monopolies, as against the objections of want of equity, multifariousness, and failure to set forth sufficient definite or specific facts, where it avers the existence of a combination of a dominant proportion of the dealers in fresh meat throughout the United States not to bid against each other in the live stock markets of the different states, to bid up prices for a few days in order to induce shipments to the stock yards, to fix selling prices, and to that end to restrict shipments of meat when necessary, to establish a uniform rule of credit to dealers, and to keep a black list, to make Argued January 6, 9, 1905. Decided Janu uniform and improper charges for cartage, and to secure less than lawful freight rates, 7. A combination to secure less than lawful freight rates, entered into by independent meat dealers with the intent to monopolize commerce in fresh meat among the several states, is forbidden by the act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), to protect trade and commerce against unlawful restraints and monopolies. to the exclusion of competitors. [No. 103.] ary 30, 1905. PPEAL from the Circuit Court of the A combination of independent meat deal-A United States for the Northern District ers, in aid of an attempt to monopolize commerce in fresh meat among the states, to restrict the competition of their respective of Illinois to review a decree on demurrer, granting an injunction against alleged vio lations of the act of July 2, 1890 (26 Stat. | tend to continue, a combination for requirat L. 209, chap. 647, U. S. Comp. Stat. 1901, ing, and do and will require, their respective p. 3200), to protect trade and commerce purchasing agents at the stock yards menagainst unlawful restraints and monopolies. tioned, where defendants buy their live Modified by making the injunction more stock (the same being stock produced and specific, and as modified affirmed. owned principally in other states and shipped to the yards for sale), to refrain from bidding against each other, "except perfunctorily and without good faith," and by this means compelling the owners of Attorney General Moody and Mr. W. A. such stock to sell at less prices than they Day for appellee. would receive if the bidding really was competitive. See same case below, 122 Fed. 529. The facts are stated in the opinion. Messrs. John S. Miller and Merritt Starr for appellants. Mr. Justice Holmes delivered the opinion of the court: This is an appeal from a decree of the circuit court, on demurrer, granting an injunction against the appellants' commission of alleged violations of the act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), "to Protect Trade and Commerce against Unlawful Restraints and Monopolies." It will be necessary to consider both the bill and the decree. The bill is brought against a number of corporations, firms, and individuals of different states, and makes the following allegations: 1. The defendants (appellants) are engaged in the business of buying live stock at the stock yards in Chicago, Omaha, St. Joseph, Kansas City, East St. Louis, and St. Paul, and slaughtering such live stock at their respective plants in places named, in different states, and converting the live stock into fresh meat for human consumption. 2. The defendants "are also engaged in the business of selling such fresh meats, at the several places where they are so prepared, to dealers and consumers in divers states and territories of the said United States other than those wherein the said meats are so prepared and sold as aforesaid, and in the District of Columbia, and in foreign countries, and shipping the same meats, when so sold, from the said places of their preparation, over the several lines of transportation of the several railroad companies serving the same as common carriers, to such dealers and consumers, pursuant to such sales." 3. The defendants also are engaged in the business of shipping such fresh meats to their respective agents at the principal markets in other states, etc., for sale by those agents in those markets to dealers and consumers. 4. The defendants together control about six tenths of the whole trade and commerce in fresh meats among the states, territories, and District of Columbia, and, 5, but for the acts charged would be in free competition with one another. 6. In order to restrain competition among themselves as to the purchase of live stock, defendants have engaged in, and in 7. For the same purposes the defendants combine to bid up, through their agents, the prices of live stock for a few days at a time, "so that the market reports will show prices much higher than the state of the trade will warrant," thereby inducing stock owners in other states to make large shipments to the stock yards, to their disadvantage. 8. For the same purposes, and to monopolize the commerce protected by the statute, the defendants combine "to arbitrarily, from time to time, raise, lower, and fix prices, and to maintain uniform prices at which they will sell" to dealers throughout the states. This is effected by secret periodical meetings, where are fixed prices to be enforced until changed at a subsequent meeting. The prices are maintained directly, and by collusively restricting the meat shipped by the defendants, whenever conducive to the result, by imposing penalties for deviations, by establishing a uniform rule for the giving of credit to dealers, etc., and by notifying one another of the delinquencies of such dealers, and keeping a black list of delinquents, and refusing to sell meats to them. 9. The defendants also combine to make uniform charges for cartage for the delivery of meats sold to dealers and consumers in the markets throughout the states, etc., shipped to them by the defendants through the defendants' agents at the markets, when no charges would have been made but for the combination. 10. Intending to monopolize the said commerce, and to prevent competition therein, the defendants "have all and each engaged in and will continue" arrangements with the railroads whereby the defendants received, by means of rebates and other devices, rates less than the lawful rates for transportation, and were exclusively to enjoy and share this unlawful advantage to the exclusion of competition and the public. By force of the consequent inability of competitors to engage or continue in such commerce, the defendants are attempting to monopolize, have monopolized, and will monopolize, the commerce in live stock and fresh meats |