159 U.S. 658

Action by A. W. Stinchfield against J. N. Gillis, John T. Faxon, administrator of the estate of F. B. Rice, deceased, and J. N. Voss. A judgment for plaintiff was affirmed by the supreme court of California (40 Pac. 98), and defendants bring error. Dismissed.

This was an action brought by Stinchfield against Gillis and others in the superior court of Tuolumne county, Cal., to recover the value of certain gold alleged to have been taken by defendants from the mining claim of plaintiff. Gillis for many years had held and asserted ownership of a mining claim known as the 'Carrington,' and had sold and conveyed by deed of grant, bargain, and sale a portion of the ground to Stinchfield. Immediately after executing the deed to Stinchfield, Gillis located that portion of the claim which he retained, and denominated his location the 'Carrington,' and afterwards Stinchfield located the ground he had purchased and denominated it the 'Pine Tree' claim. Thereafter Gillis, or those under him, entered upon the ground he had sold to Stinchfield at the intersection of two veins, one of which had its apex in the portion of the original claim which Gillis had retained, and the other had its apex in the ground sold to Stinchfield, and dug out and appropriated a large amount of gold, the space of vein intersection from which the gold was taken being entirely in Stinchfield's ground.

The trial court gave judgment for Stinchfield, and Gillis appealed to the supreme court of California, by which the judgment of the lower court was affirmed. 40 Pac. 98. The supreme court was of opinion that Gillis was estopped, under the law of California, by his deed to Stinchfield, from claiming priority of title of the space of vein intersection by reason of the location which he had made after the execution of the deed, but before the location by Stinchfield of the ground conveyed to him. The same conclusion had been reached and announced on a former appeal. 96 Cal. 33, 30 Pac. 839.

A writ of error from this court having been allowed, a motion to dismiss was submitted.

J. C. Campbell, for plaintiff in error.

M. A. Wheaton and F. J. Kierce, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

Neither in the pleadings, nor in the proceedings during the trial, nor in the specifications of error below, was any federal question specifically raised, nor was any right, title, privilege, or immunity of a federal nature set up or claimed. Sayward v. Denny, 158 U. S. 180, 15 Sup. Ct. 777. It is, however, contended that the record shows that a federal question arose in the case, as considered by both the superior and the supreme courts, and was decided adversely to plaintiffs in error, namely, that Gillis had the right to follow what was known as the 'Rice' vein, which had its apex on the Carrington mine, upon its dip, beneath the surface of the Pine Tree mine, and to appropriate to his own use the gold found in that vein at the point of its intersection with the so-called 'West' vien, which had its apex on the Pine Tree mine, because the Carrington mine was the older or prior location; and that this could only be determined by an application of sections 2322 and 2336 of the Revised Statutes. But the decision of the supreme court was clearly based upon the estoppel deemed by that court to operate against plaintiffs in error upon general principles of law and the statute of California in respect of such a conveyance as that to Stinchfield, irrespective of any federal question. And this was an independent ground, broad enough to maintain the judgment. The writ of error must therefore be dismissed. Eustis v. Bolles, 150 U. S. 361, 14 Sup. Ct. 131; Rutland R. Co. v. Central Vt. R. Co., 16 Sup. Ct. 113.