was

shall be considered simply in its general re- See same case below, 140 Cal. 440, 98 Am. lations and apart from its particular use. St. Rep. 63, 73 Pac. 1083, 74 Pac. 444. See Illinois C. R. Co. v. Decatur, 147 U. S. 190, 37 L. ed. 132, 13 Sup. Ct. Rep. 293. On Statement by Mr. Justice Brewer: the question of benefits the present use is This was an action in the superior court simply a prognostic, and the plea of proph-of Fresno county, California, to quiet title ecy. If an occupant could not escape by to certain lands in that county. The comprofessing his desire for solitude and si- plaint by Miller and the Home Oil Comlence, the legislature may make a similar pany was filed October 14, 1898. The case desire fortified by structures equally inef- was tried by the court without a jury, findfective. It may say that it is enough that ings of fact were made, and a decree enthe land could be turned to purposes for tered in favor of the plaintiffs. On peal which the paving would increase its value to the supreme court of the state this de

. Indeed, it is apparent that the prophecy cree was affirmed, September 13, 1903. 140 in the answer cannot be regarded as abso-cal. 440, 98 Am. St. Rep. 63, 73 Pac. 1083, lute, even while the present use of the land 74 Pac. 444. Thereafter the case continues; for no one can say that changes brought to this court on writ of error. The might not make a station desirable at this dispute between the parties was as to the point; in which case the advantages of a validity of respective locations of the land paved street could not be denied. We are under the mineral laws of the United States. not called on to say that we think the as- The mineral found therein, and on account sessment fair. But we are compelled to de- of which the locations were made, was peclare that it does not go beyond the bounds troleum. From the findings it appears that set by the 14th Amendment of the Con- on June 14, 1895, eight persons, one Barieau stitution of the United States.

being of the number, attempted to make a Judgment affirmed.

mineral location upon the tract in con

troversy, the same being an entire quarter Mr. Justice Harlan, not having been section.

. Whatever interest they thus acpresent at the argument, took no part inquired was, on December 24, 1896, conveyed the decision.

to E. 0. Miller. On December 31, 1896,

Miller by his written declaration abandoned Mr. Justice White and Mr. Justice and relinquished all rights which he had Peckham dissent.

acquired by this conveyance. On the same

day and about four hours thereafter Miller (197 U. S. 313)

and seven others, duly qualified to make A. Y. CHRISMAN and H. T. Chrisman, entries, made a mineral location of the enPiffs. in Err.,

tire tract. Subsequently all interests obtained thereby were vested in the plaintiffs.

On January 1, 1897, the defendants atE. O. MILLER and the Home Oil Company. tempted to make a location of certain por

tions of the tract. The tenth, eleventh, fifError to state court-conclusiveness of find-teenth, seventeenth and eighteenth findings ings of fact--mining claims-discovery.

are as follows:

“10. That immediately after going into 1. Findings of fact are conclusive on the Su-possession of said northeast quarter of said

preme Court of the United States in cases section 20, the said plaintiff, Home Oil Comcoming up from a state court. *

Even as between rival mineral claimants pany, commenced digging, boring, and exto petroleum lands, there must have been cavating thereon for petroleum and other such a discovery, in order to sustain a loca- Huid products, and has expended in such tion, as would justify a prudent person in the work the sum of more than $30,000, and by expenditure of money and labor in exploita- means of such digging, boring, and excavattion for petroleum.

ing discovered large quantities of petroleum

therein; and there now exists, and did at [No. 171.)

the commencement of this action, wells of

great depth, sunk and excavated upon said Argued March 8, 1905. Decided April 3, property by said Home Oil Company, from 1905.

which there is a daily flow of large quanti

ties of petroleum of great value. N ERROR to the Supreme Court of the "11. That ever since the 17th day of Sep

State of California to review a judgmenttember, 1897, the said plaintiff, Home Oil which affirmed a judgment of the Superior Company, has been and is now in the sole Court of Fresno County in that state in and exclusive possession of all of said real favor of plaintiffs in an action to quiet title property, and engaged in working, developto mineral lands. Affirmed.

ing, and mining the same, and extracting *Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, $ 1090.

V.

IN

petroleum and other fluid products there- Messrs. William H. Metson, Joseph from.

C. Campbell, Frank C. Drew, and Philip “15. That said defendant A. Y. Chrisman Mansfield for plaintiffs in error. never at any time discovered a seepage of

Mr. L. L. Cory for defendants in error. petroleum or other mineral oil upon said land or any part thereof, and the defend

Mr. Justice Brewer delivered the opinion ant H. T. Chrisman never discovered a seep

of the court: age of petroleum or other mineral oil upon In cases coming from a state court we do said land or upon any part thereof, and that not review questions of fact, but accept the the only discovery of petroleum or any other conclusions of the state tribunals as final. fluid produce upon said lands or upon any 194 U. S. 220, 48 L. ed. 944, 24 Sup. Ct. Rep.

Clipper Min. Co. v. Eli Min. & Land Co. part thereof is the discovery made by the 194 U. S. 220, 48 L. ed. 944, 24 Sup. Ct. Rep. plaintiff Home Oil Company as in these 632, and cases cited in the opinion; Kauf

man v. Tredway, 195 U. S. 271, ante, p. 33, findings before stated. “17. That on the said Ist day of January, U. S. 447, ante, p. 289, 25 Sup. Ct. Rep. 289.

25 Sup. Ct. Rep. 33; Smiley v. Kansas, 196 1897, no part of the said northeast quar

By the findings of the trial court the ter of section 20 was vacant public min-Chrismans, plaintiffs in error, never made eral land or open to exploration or loca- any discovery of petroleum or other mineral tion for mining purposes, but, on the con- oil, did not make the attempted location in trary, the whole of said northeast quarter good faith, and never did any work on the of said section 20 was then in the posses- tract. These findings were of date June 24, sion of J. A. Hannah, E. 0. Miller, W. F. 1899, nearly two years and a half after their Hall, D. G. Overall, L. E. Hall, Harry Lev-attempted location. It would seem from inson, R. B. Biddle, and Charles H. Smith, these facts that they had no pretense of under and by virtue of their location of said right to the premises. land hereinbefore mentioned.

It is contended, however, that the su"18. That the said defendants, A. y. preme court, in its opinion, practically set Chrisman and H. T. Chrisman, did not make aside these findings in one respect, and that the location for mining purposes hereinbe- is the discovery of petroleum. We do not fore mentioned in good faith, and did not, so understand that opinion. The only refnor did either of them, enter into the pos- "The alleged discovery of defendants under

erence made to the matter is in these words: session thereof or any part of the same for their location may be disposed of in a single the purpose of working and mining thereon sentence. It amounted to no more than the on the 1st day of January, 1897, or upon pretended discovery by Barieau;" and in any other date; and said defendants have reference to Barieau's alleged discovery the not and neither of them has since the 1st court said: day of January, 1897, or since any day

“Upon the question of discovery the sole whatever, done and performed upon said evidence is that of Barieau himself. Givland or any part thereof such work and ing fullest weight to that testimony, it labor or made improvements thereon as is amounts to no more than this, that Barieau required by the laws of the United States had walked over the land at the time he or of the state of California; and that the posted his notice, and had discovered 'indisaid defendants have not been and neither cations of petroleum. Specifically, he says of them has been in the exclusive posses- that he saw a spring, and 'the oil comes out sion of said tracts of land so claimed by and floats over the water in the summer them; and said defendants are not, and time, when it is hot. In June, 1895, there neither of them is, in the possession of said was a little water with oil and a little oil tracts of land so claimed by them or either with water coming out. It was dripping of them, or any part thereof; and the said over a rock about 2 feet high. There was defendants ever since the said Ist day of no pool; it was just dripping a little water January, 1897, or since any day whatever and oil, not much water. This is all the or at all have not been nor are they or

'discovery' which it is even pretended was

made under the Barieau location." either of them now entitled to the exclu

There is nothing in this language from sive or any possession of the tracts of land which it can be inferred that the supreme claimed by them or any part thereof, nor court of the state set aside the finding of are said defendants entitled, nor is either the trial court. All that it said was in of them entitled, to the exclusive or any answer to the contention of the defendants possession whatever of any part of said that they had made a discovery, and that northeast quarter of said section 20, in contention the supreme court repudiated, township 19 south, range 15 east, Mt. Diablo leaving the finding of fact to stand as it base and meridian."

was made by the trial court.

It is further contended that the location patents, we said (p. 683, L. ed. p. 575, Sup. made by Barieau and his associates, and Ct. Rep. p. 199): conveyed by them to Miller, did not lapse “It appears very clearly from the evidence until midnight of December 31, 1896; that that no lodes or veins were discovered by then it lapsed by reason of the failure to the excavations of Sawyer in his prospectdo the annual work required by statute; ing work, and that his lode locations were that Miller could not prior thereto aban-made upon an erroneous opinion, and not don and relinquish that location, and at the upon knowledge, that lodes bearing metal same time make a new one, as he attempted were disclosed by them. It is not enough to do on the afternoon of December 31, be that there may have been some indications, cause the effect of such action would be to by outcroppings on the surface, of the excontinue a possessory right to the tracts istence of lodes or veins of rock in place without compliance with the statutory re- bearing gold or silver or other metal, to quirement of work. Hence, as contended, justify their designation as 'known' veins the only valid location was that made on or lodes. To meet that designation the lodes January 1, 1897, by the defendants. It may or veins must be clearly ascertained, and be be doubted whether, in view of their want of such extent as to render the land more of good faith, the defendant’s can avail valuable on that account, and justify the themselves of their contention, and, indeed, exploitation. Although pits and shafts had also doubted whether they could uphold been sunk in various places, and what are their location by proof of a discovery by termed in mining cross-cuts had been run, some other party. But it has no foundation only loose gold and small nuggets had been in fact, for, as found by the trial and held found, mingled with earth, sand, and gravel. by the supreme court of the state, the at- Lodes and veins in quartz or other rock in tempted location by Barieau and his as- place bearing gold or silver or other metal sociates in June, 1895, was a failure by rea- were not disclosed when the application for son of a lack of discovery. We have al- the patents were made.” ready quoted the declaration of the supreme This definition was accepted as correct in court. The testimony referred to in that Iron Silver Min. Co. v. Mike & . Gold do quotation, even if true, does not overthrow Silver Min. Co. 143 U. S. 394, 36 L. ed. the finding. It does not establish a dis- 201, 12 Sup. Ct. Rep. 543, though in that covery. It only suggests a possibility of case there was a vigorous dissent upon quesmineral of sufficient amount and value to tions of fact, in which Mr. Justice Field, justify further exploration.

speaking for the minority, said (p. 412, L. By 29 Stat. at L. p. 526, chap. 216, U. S. ed. p. 207, Sup. Ct. Rep. p. 548): "The mere Comp. Stat. 1901, p. 1434, “lands contain-indication or presence of gold or silver is ing petroleum or other mineral oils, and not sufficient to establish the existence of a chielly valuable therefor,” may be entered lode. The mineral must exist in such quanand patented “under the provisions of the tities as to justify expenditure of money for laws relating to placer mineral claims.” By the development of the mine and the extrac§ 2329, Rev. Stat. U. S. Comp. Stat. 1901, tion of the mineral.” And again (p. 424, p. 1432, placer claims are “subject to entry L. ed. p. 211, Sup. Ct. Rep. p. 552): "It .

) and patent, under like circumstances and is not every vein or lode which may show conditions, and upon similar proceedings, traces of gold or silver that is exempted as are provided for vein or lode claims.” from sale or patent of the ground embracBy 2320, Rev. Stat. U. S. Comp. Stat. ing it, but those only which possess these 1901, p. 1424, “no location of a mining claim metals in such quantity as to enhance the shall be made until the discovery of the vein value of the land and invite the expendior lode within the limits of the claim lo-ture of time and money for their developcated.”

ment. No purpose or policy would be subWhat is necessary to constitute a dis- served by excepting from sale and patent corery of mineral is not prescribed by stat- veins and lodes yielding no remunerative ute, but there have been frequent judicial return for labor expended upon them.” declarations in respect thereto. In United By the Land Department this rule has States v. Iron Silver Min. Co. 128 U. S. been laid down (Castle v. Womble, 19 Land 673, 32 L. ed. 571, 9 Sup. Ct. Rep. 195, a Dec. 455, 457) : suit brought by the United States to set “Where minerals have been found, and the aside placer patents on the charge that evidence is of such a character that a perthe patented tracts were not placer mining son of ordinary prudence would be justified ground, but land containing mineral veins in the further expenditure of his labor and or lodes of great value, as was well known means, with a reasonable prospect of sucto the patentee on his application for the 'cess, in developing a valuable mine, the.

are

.

(197 U. S. 453) requirements of the statute have been met. | NEW ORLEANS GASLIGHT COMPANY, To hold otherwise would tend to make of

Plff. in Err., little avail, if not entirely nugatory, that

V. provision of the law whereby ‘all valuable DRAINAGE COMMISSION OF NEW ORmineral deposits in lands belonging to the

LEANS, The Sewerage & Water Board, United States

... declared

Successors, Substituted. to be free and open to exploration and purchase.'

Contracts—impairment of obligation—due Some cases have held that a mere willing- process of law-requiring gas company to ness on the part of the locator to further ex- bear cost of changing mains to suit city pend his labor and means was a fair crite- drainage system. rion. In respect to this Lindley on Mines, 1st ed. § 336, says:

1. The imposition on a gas company of the “But it would seem that the question

cost of changes in the location of its pipes

and mains under the city streets, necessi. should not be left to the arbitrary will

tated by the construction of the municipal of the locator. Willingness, unless evidenced

drainage system authorized by La. act July by actual exploitation, would be a mere 9, 1896, does not impair any contract rights mental state which could not be satisfacto- acquired under its exclusive franchise to rily proved. The facts which are within the supply gas to the city and its inhabitants

through pipes and mains laid in the city observation of the discoverer, and which in

streets. duce him to locate, should be such as would 2. A gas company has no such property right justify a man of ordinary prudence, not

in the location of its pipes and mains laid necessarily a skilled miner, in the expendi- under an exclusive franchise to supply gas ture of his time and money in the develop

to the city and its inhabitants, as to make ment of the property.”

the imposition upon it of the cost of changes

in the location of such pipes and mains, It is true that, when the controversy is

necessitated by the construction of the mubetween two mineral claimants, the rule re- nicipal drainage system authorized by La. specting the sufficiency of a discovery of act July 9, 1896, a taking of property with. mineral is more liberal than when it is be- out due compensation. tween a mineral claimant and one seeking to

[No. 172.] make an agricultural entry, for the reason that where land is sought to be taken out Argued March 8, 9, 1905. Decided April 3, of the category of agricultural lands the

1905. evidence of its mineral character should be reasonably clean, while in respect to a manera, INERROR

to the Supreme Court of the , in a between claimants, State of the question is simply which is entitled to which on rehearing affirmed the judgment priority. That, it is true, is the case be- of the Civil District Court of the Parish of fore us. But even in such a case, as shown Orleans in that state denying the right of by the authorities we have cited, there must a gas company to recover the sums paid out be such a discovery of mineral as gives rea- for making the changes in the location of sonable evidence of the fact, either that its pipes and mains necessitated by the conthere is a vein or lode carrying the pre-struction of a municipal drainage system. cious mineral, or, if it be claimed as placer Affirmed. ground, that it is valuable for such min- See same case below, 111 La. 838, 35 So. ing.

929. Giving full weight to the testimony of Barieau, we should not be justified, even Statement by Mr. Justice Day: in a case coming from a Federal court, in The New Orleans Gaslight & Banking overthrowing the finding that he made no Company was incorporated in 1835, and was discovery. There was not enough in what given the exclusive privilege of vending gas he claims to have seen to have justified a in the city of New Orleans and its fauprudent person in the expenditure of money bourgs and the city of La Fayette, to such and labor in exploitation for petroleum. It persons or bodies corporate as might volmerely suggested a possibility that the untarily choose to contract for the same; ground contained oil sufficient to make it and it was permitted to lay pipes and con"chiefly valuable therefor.” If that be true duits at its own expense in the public ways were the case one coming from a Federal and streets of New Orleans, having due recourt, a forliori must it be true when the gard for the public convenience. In 1845 case comes to us from a state court, whose and 1854 the charter of the company as to findings of fact we have so often held to be its right to engage in banking was withconclusive.

drawn, and the right to vend gas and use The judgment of the Supreme Court of the streets was continued to the corporation California is affirmed.

under the name of the New Orleans Gas

light Company until April 1, 1875, when that its right to recover for the amount ex: its corporate privileges should end, the com- pended by it should not be prejudiced by pany during the continuance of its charter the arrangement made, but should be subto furnish the Charity Hospital with nec-mitted to the courts for final adjudication. essary gas and fixtures free of charge. By This action was brought to recover the cost amendments the contract privilege of the of the changes so made. In the court of company was extended until April 1, 1895, original jurisdiction there was a judgment the exclusive privileges granted by the orig. in favor of the drainage commission. Upon inal charter not to extend beyond the appeal the supreme court of Louisiana retime fixed in the act of incorporation. In versed this judgment. Upon rehearing, the 1870 another company, under the name of latter judgment was reversed and a final the Crescent City Gaslight Company, was decree rendered, affirming the judgment of incorporated, its charter providing that the the lower court, rejecting the claim of the company, its successors, and assigns, should gas company. 111 La. 838, 35 So. 929. A for fifty years from the expiration of the writ of error to this court brings into review charter of the New Orleans Gaslight Com- that judgment, the contention being that pany have the sole and exclusive privilege of the judgment of the state court has immaking and supplying gaslight in the city paired the contract rights of the gas comof New Orleans, and for that purpose be pany, and has the effect to take its property allowed to lay pipes and conduits in the without compensation, in derogation of streets and alleys of the city where the rights secured by the Constitution and the same may be required, at its own expense, 14th Amendment. in such manner as to least inconvenience the city and its inhabitants; and the company Mr. Charles F. Buck for plaintiff in was also required to afterwards repair, with error. the least possible delay, the streets it had Mr. Omer Villeré for defendant in er. broken. In 1873 an act of the legislature ror. fixed the date of the expiration of the exclusive franchise of the New Orleans Gas- Mr. Justice Day delivered the opinion of light Company at April, 1875, and the fran- the court: chise of the Crescent City Gaslight Com- In the case of the New Orleans Gaslight pany was confirmed from that date for the Co. v. Louisiana Light & A. P. & Mfg. Co. period of fifty years. On March 29, 1875, 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. the New Orleans Gaslight Company and the 252, it was held that the complainant, by Crescent City Gaslight Company were con- reason of the franchises granted and agreesolidated under the name of the former cor- ments made, as fully set forth in that case, poration. This company is the plaintiff in had acquired the exclusive right to supply the action in the state court. By an act gas to the city of New Orleans and its inof the legislature, approved July 9, 1896, habitants through pipes and mains laid in the state created a board known as the the streets. Drainage Commission of New Orleans, which It is the contention of the plaintiff in erboard was given the power to control and ex- ror that, having acquired the franchise and ecute a plan for the drainage of the city of availed itself of the right to locate its pipes. New Orleans, and also the power to appro- under the streets of the city, it has thereby priate property according to the laws of the acquired a property right which cannot be state, by legal proceedings, for the pur- taken from it by a shifting of some of its pose of constructing a drainage system. mains and pipes from their location to acAfter adopting a system of drainage, and commodate the drainage system, without proceeding with the construction thereof, compensation for the cost of such changes. according to the plans, it was found neces. It is not contended that the gas company sary to change the location in some places has acquired such a property right as will in the streets of the city, of the mains prevent the drainage commission, in the exand pipes theretofore laid by the New Or- ercise of the police power granted to it by leans Gaslight Company. The testimony the state, from removing the pipes so as to shows that there was nothing to indicate make room for its work, but it is insisted that these changes were made in other than that this can only be done upon terms of cases of necessity and with as little inter compensation for the cost of removal. This ference as possible with the property of the contention requires an examination of the gas company. By stipulation between the extent and nature of the rights conferred in parties it was agreed that the charges the grant to the gas company. The exclushould be paid by the gas company when it sive privilege which was sustained by this became necessary to accede to the demands court in the case of New Orleans Gaslight of the drainage commission; the gas com Co. v. Louisiana Light & A. P. & Mfg. Co.. pany should keep an account thereof; and '115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep