David Josiah Brewer

“ The only jurisdiction which the district court could have was of a controversy between individual claimants, and, though its judgment is by statute made conclusive upon the government, of the rights of the party in whose favor the judgment goes, it is none the less true that the condition of jurisdiction is a controversy between individual claimants. When an action has been instituted in the court to determine such a controversy, it is not within the competency of the defendant to take himself out of court. ”

“ But if we ignore the findings altogether, and look simply at the judgment and the complaint, this will appear: The single ground stated in the complaint upon which superiority of right is claimed is priority of location. A judgment for the plaintiffs upon such a complaint is necessarily an adjudication in favor of that priority of location. There is no other fact upon which it can rest. It is doubtless true, as suggested, that other questions may be litigated in an adverse suit, but they can be litigated only when they are presented to the attention of the court by some appropriate pleading. ”

“ Are the parties left to the old rule of the common law,-that the owner of real estate owns all above and below the surface, and no more? Or may the court rely upon some equitable doctrine, and give to the owner of the vein the right to pursue it on its dip, in whatever direction that may go, within the limits of some equitably created end lines?
If the common-law rule as to real estate obtains in such a case, then, of course, on the original location the owners of the Tyler claim would have no right to follow the dip of their vein outside the vertical planes of any of its boundary lines ”