of the United States for the District of Idaho was adjudged error, and by reason thereof the to recover of the Last Chance Mining Com-judgment of the circuit court was reversed. pany and others the possession of a certain On the second trial in the latter court the portion of a mineral vein, as well as the value record was again offered but was excluded, of the ores theretofore taken from the vein by and this ruling was sustained by the Court of the defendants. After disclaimer by two and Appeals. answer by the Last Chance Mining Company According to the original location of the and other defendants, the case came on for Tyler claim the lode entered through an end trial. In this there was a verdict and judg-line (1, 2,) but passed out through a side line ment for the defendants. This judgment was (2, 3,) and did not touch the end line (3, 4.) reversed on error by the Court of Appeals of Under the amended location it passed through the Ninth Circuit, and a new trial ordered. two parallel end lines (1, 2, and 5, 6.) The 7 U. S. App. 463, 54 Fed. Rep. 284. At the amended application was accepted by the land February term, 1893, of the Circuit Court for office, and a final certificate for the tract with the District of Idaho the new trial directed by the reduced boundaries was issued to the ownthe court of appeals was had, and resulted in ers of the claim. Within the vertical planes a verdict and judgment for the plaintiff. On of the end lines (1, 2, and 5, 6,) extended the error to the court of appeals this judgment ore bodies in dispute are found, and the dip of was, on April 2, 1894, affirmed (61 Fed. Rep. the vein being in that direction it was held 557) whereupon, on application of the defend- that the owners of the Tyler claim were enants, the case was brought to this court by writ titled to follow the vein on its dip beyond the of certiorari. side line (2, 6,) and took these ore bodies as a part of the vein thus followed. 685] *The controversy is between the own claim. At the first trial in the circuit court the record of this judgment in the district court was admitted in evidence for the purpose of showing that the Last Chance claim had priority of location over the Tyler claim. On review in the court of appeals its admission not precluded by the failure of the owner to set up an adverse claim in proceedings by another person for a patent. Turner v. Sawyer, 150 U. S. 578 (37: 1189). A patent issued for a mine is a conclusive determination of the true location of the claim, where the boundaries are pointed out by the original locator and adopted by the surveyor, and returned to him by the land office. Waterloo Min. Co. v. Doe, 56 Fed. Rep. 685. A mining claim has no lateral right by virtue of the extension of a vein through what was called the north side of its claim when that side line so called was in fact one of its end lines. King v. Amy & S. Consol. Min. Co. 152 U. S. 222 (38: 419). Messrs. W. B. Heyburn and C. S. Voorhees for plaintiff in error. Messrs. Arthur Brown and J. R. McBride for defendant in error. *Mr. Justice Brewer delivered the [687 opinion of the court: The course of this vein is across the Last Chance claim instead of in the direction of its length. Under those circumstances the side lines of that location become the end lines, and the end the side lines. Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 463 [25: 253]; Argentine Min. Co. v. Terrible Min. Co. 122 U. S. 478 [30: 1140]; King v. Amy & S. Min. Co. 152 U. S. 222 [38: 419]. On the assumption that the action of the owners of the Tyler claim, in excluding from their application a portion of their claim, was legal, obviously the priority of location becomes a pivotal question. For, while the disputed ore is on the dip of the vein within the extended vertical planes of the end lines of the Tyler claim, it is also within the legal end lines of the Last Chance claim, and on the dip of the vein as it passes through that claim. Naturally, therefore, the controversy in the circuit court was upon the priority of location. The judgment of the district court in the adverse suit having been excluded from evidence, parol testimony was admitted for the purpose of determining this priority, and the question of fact arising on such parol testimony was settled by the jury in favor of the owners of The common law rule that whoever owns the surface lands is entitled to all beneath has a limited application to lode mining claims, and cannot be invoked as to a claim into which it extends, in its downward dip, a lode having its top or apex outside of the limits of the claim. Montana Co. v. Clark, 42 Fed. Rep. 626. A Federal statute requiring a suit in support of an adverse claim to a mining location to be commenced within thirty days after filing the claim is not affected by a general state law providing that in case of the failure of a suit from certain causes plaintiffs may renew it at any time within one year after the determination thereof. Steves v. Carson, 42 Fed. Rep. 821. the Tyler claim. Was the judgment of the district court in the adverse suit properly excluded? The law in respect to estoppel by judgment is well settled, and the only difficulty lies in the application of the law to the facts. The particular matter in controversy in the adverse suit was the triangular piece of ground, which is not the matter of dispute in this action. The judgment in that case is there fore not conclusive in this as to matters which might have been decided, but only as to matters which were in fact decided. Hopkins v. Lee, 19 U. S. 6 Wheat. 109 [5: 218]; Smith v. Kernochen, 48 U. S. 7 How. 198 [12:666]; Pennington v. Gibson, 57 U. S. 16 How. 65 [14: 847]; Stockton v. Ford, 59 U.S. 18 How. 418 [15:395]; Washington, A. & G. Steam Packet Co. v. Sickles, 65 U. S. 24 How. 333 [16: 650]; 72 U. S. 5 Wall. 580 [18: 550]: Doe v. Ferris, 67 U. S. 2 Black, 606 [17:317]; Cromwell v. Sac County, 94 U. S. 351 [24: 195]; Davis v. Brown, 94 U. S. 423 [24: 204]; Russell v. Place, 688] *94 U. S. 606 [24: 214]; Campbell v. Rankin, 99 U. S. 261 [25: 435]; Mason Lumber Co. v. Buchtel, 101 U. S. 638 [25: 1074]; Stout v. Lye, 103 U. S. 66 [26: 428]: Nesbitt v. Inde pendent Dist. of Riverside, 144 U. S. 610 [36: 562]; Johnson Company v. Wharton, 152 U. S. 252 [38:429]. pears that having filed an answer they withdrew it. When the case came on trial, the de-[689 fendant not appearing, the plaintiffs, as the record shows, introduced evidence, oral and documentary. The court made certain findings of fact, which findings corresponded generally with the allegations of the complaint. Among them was this, "that at the time the said Tyler mining claim was located that portion of the ground so in conflict as aforesaid had been located as a part of the Last Chance mining claim, and was not subject to location, by the locators of the Tyler mining claim;" and as a conclusion of law it ruled that the plaintiff above named, the Last Chance Mining Company, is the owner of the ground and a portion of the mining claim described in the complaint herein as in conflict between the said Last Chance mining claim and the Tyler mining claim, by virtue of a valid location of the said Last Chance mining claim made by John Flaherty, J. L. Smith, M. Carlin, and John M. Burke on the 17th day of September, 1885; and that the plaintiff is entitled to the posses sion of the said ground so in conflict as aforesaid by virtue of such valid location." Upon these findings and conclusion a judg ment was entered, which recites: "Therefore, by reason of the law and premises aforesaid, it is ordered, adjudged, and decreed that the Last Chance Mining Company, the plaintiff above named, is the owner of, and by virtue of a valid location of a mining claim called the Last Chance, made on the (17th) seventeenth day of September, A. D. 1885, by John Flaherty, J. L. Smith, M. Carlin, and John M. Burke, is entitled to the possession and the right of possession of all that piece or portion of said mining claim in the complaint herein described," (here follows a description of the triangular piece "A,") "containing an area of 1.474 acres of ground, and the plaintiff do have and recover the possession and right of possession of said premises from defendant, the Tyler Mining Company." The action in the district court was brought in compliance with the express provisions of the Act of Congress. The jurisdiction of the court is unquestioned, and the parties to the controversy are the same. The question then is, what was in fact decided in that action? Turning to the complaint we find it states the boundaries of the Last Chance claim; alleges that on September 17, 1885, certain named parties duly located such claim, and that at the time of and prior to such location the ground described "was vacant and unoc cupied and a part of the public domain of the United States, and the mineral lands thereof." It further describes the particular acts which were done in making the location; avers the conveyance of the title by the locators to the Thus it appears that the complaint alleges a plaintiffs; their continued performance of the priority of location, and upon that rests the necessary work; the application on April 19, right to recover. The existence of the Tyler 1887, of the Tyler Mining Company for a location as a location is not challenged either patent for the Tyler claim; the conflict be expressly or by implication. Indeed, the comtween the two claims in respect to the trianguplaint *proceeds upon the assumption of [690 lar piece of ground; the filing of an adverse claim by plaintiffs; that "said adverse claim was duly allowed by the register of said land office, and all proceedings on said application for patent on the part of the claimants there for were by the register ordered to be stayed until the controversy as to the right of posses sion shall have been settled by a court of competent jurisdiction;" and that the action was "brought in support of the protest and adverse claim so filed by the plaiutiffs to determine the right of possession of the tract of ground by metes and bounds last herein before described." The prayer was that the plaintiffs "be adjudged to be owners of and entitled to the possession of the said tract of mining ground by metes and bounds last herein before described as a part of the herein before mentioned and described Last Chance mining claim," and for costs. The scope of the answer filed by the owners of the Tyler claim is not disclosed. It only ap its validity. The findings are express as to priority, and contain no suggestion of any defect in the Tyler claim, or any fact in favor of plaintiff's right other than that of priority of location, while the conclusion of law and the judgment recite and adjudge a valid location of the Last Chance mining claim on September 17, 1885, and a right of possession by virtue thereof. Upon the record taken as a whole there can be no escape from the conclusion that the court determined the question of priority of location, and upon this rendered judgment for the plaintiffs. What is there to impeach this conclusion? It is said that the statutes of Idaho do not provide for findings of fact in a case like this, and that therefore the recitals in such findings must be ignored. If it be true that the statutes of Idaho do not authorize findings of fact, it is none the less true that such findings are a declaration by the court of the matter it determines. Even if not conclusive as against all testimony, they are certainly very persuasive evidence of what the court did in fact decide. In Mason Lumber Co. v. Buchtel, 101 U. S. 638 [25: 1074], the judgment relied upon as an estoppel was based upon a finding of a referee, and it was said: "This finding having gone into the judgment is conclusive as to the fact found in all subsequent controversies between the parties on the contract. Every defense requiring the negation of this fact is met and overthrown by that adjudication." In Legrand v. Rixey, 83 Va. 862, 877, it appeared that the pleadings and judgment left a doubt as to the precise matter decided. Reference to an opinion of the trial court, for the purpose of making certain that which otherwise was uncertain, was approved. We quote from the supreme court of appeals: "In the case at bar, the trial judge filed with the papers in the cause his reasons for his decision, which the decree itself shows was done for the express purpose of explaining his decision. This being the case, the opinion of the trial judge thus referred to in the decree becomes a part of the record, and may be looked to, and is even more reliable to explain, in doubtful cases, what was in issue and what was 691] determined, *than mere extrinsic evidence to the same end. We do not mean that the mere opinion of the trial judge, which may happen to be in writing and copied into the record, constitutes a part thereof; but we do say that where the decree-as in this caserefers to the opinion of the trial judge in terms that make it clear that the object was to refer to it to explain what was determined, and the reasons therefor, then such opinion becomes legitimately a part of the record, and must be looked to to explain what was in issue and what was determined by the judgment or de cree in question. See Burton v. Mills, 78 Va. 470." 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 sug gested, 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. The only pleading upon which the case passed to trial and judgment was the complaint, and in that, as we have seen, plaintiff's 'right to recover is rested upon the single fact of priority of location. It is said that the defendants did not contest: that they withdrew their answer, and that there was only a judgment by default. But a judgment by default is just as conclusive an adjudication between the parties of whatever is essential to support the judgment as one rendered after answer and contest. The essence of estoppel by judgment is that there has been a judicial determination of a fact, and the question always is, bas there been such determination, and not upon what evidence or by what means was it reached. A failure to answer is taken as an admission of the truth of the facts stated in the complaint, and the court may properly base its determination on such admission. Suppose the defendant files a denial, and *on the trial the only [692 evidence is the testimony of a witness to an admission made by the defendant out of court, and upon such testimony the judgment is rendered. Is it any the less a judicial determination because resting simply upon proof of the defendant's admission, and yet in principle what distinguishes that case from this? In each the judgment is resting upon an admission of the party against whom the judgment is rendered, and does it make any difference in what form that admission is presented to the judge? In 1 Freeman on Judgments (4th ed.) section 330, the author says, citing many authorities in support thereof: "Upon principle, we think that the denial of a fact subsequently judicially established ought not to impart to an adjudication any greater effect than if all the parties had expressly or impliedly admitted the fact to be beyond controversy when such adjudication was made; and this is the view taken by the greater portion of the American courts. Among the authorities cited is Nashville, C. & St. L. R. Co. v. United States, 113 U. S. 261 [28: 971], in which a decree in equity by consent of parties was held to bar a subsequent suit on any claim included in the decree. Bigelow, in his work on Estoppel (p. 77) closes a discussion of the question with this observation: "The meaning simply is that judgment by default, like judgment on contest, is conclusive of what it actually professes to decide as determined from the pleadings; in other words, that facts are not open to further controversy if they are necessarily at variance with the judgment on the pleadings. Brown v. New York, 66 N. Y. 385; Blair v. Bartlett, 75 N. Y. 150, 31 Am. Rep. 455; Nemetty v. Nay lor, 100 N. Y. 562; Orr v. Mercer County Mut. F. Ins. Co. 114 Pa. 387. The withdrawal by defendants of their answer may have prevented any judicial determination as to the special facts set up therein in defense or avoidance of plaintiff's claim. Finnegan v. Campbell, 74 Iowa, 158. But such withdrawal was not operative to take out of the case the complaint, or the allegations of fact therein contained, or to prevent a judicial determination of those facts. But further, it is contended that the action of the owner of the Tyler claim in *amend-[693 ing their application, coupled with the withdrawal of their answer, took them entirely out of the case in the district court. It is said that they had abandoned all claim to the property theretofore in controversy; that they were really no longer parties to the action, and that it remained simply a case pending between the owners of the Last Chance and the United States. Such seems to have been the view taken by the court of appeals when it held that the judgment was improperly admitted in evidence. We are unable to concur in this view. It may well be doubted whether the amendment filed in the land office had any force or effect during the pendency of the action in the district court. Section 2326 provides that after the filing of the adverse claim, "all proceed. ings, except the publication of notice and mak ing and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived." As said by this court in Richmond Min. Co. of Nevada v. Rose, 114 U. S. 576, 585 [29: 273, 276], referring to the action of the officers of the department pending proceedings in court, "after the decision they are governed by it. Before the decision, once the proceeding is initiated, their function is suspended." It is suggested by counsel that the abandon. ment by the owners of the Tyler location of any claim to the disputed territory was in effect a waiver of the adverse claim within the language of the statute, on the happening of which the right of the land office to proceed was restored. But that is not within the letter, even if within the spirit of the statute. The adverse claim is the claim made by the party opposing the application, and the party to waive a claim is the one who makes it. The obvious meaning is that when an adverse claim is filed-that is, a claim filed by some one opposing the ap plication in whole or in part-the proceedings in the land office shall be stayed until the determination of the dispute by the court in which the action is brought, or the party who has presented such adverse claim shall have in some way waived his opposition to the application. There was no waiver on the part of the parties who filed this adverse claim, and the only 694] *way in which any waiver is claimed to have been made was by a proceeding on the part of the applicants in the land office, and every proceeding there was, as we have seen, directed to be stayed. It is doubtless true that if, notwithstanding the pendency of such an action, the land office accepts a reduced appli cation for ground, no part of which is covered by the adverse claim and in respect to which there is no opposition, and proceeds subsequently upon such amended application to grant a patent, there is no one who can object, for the matter is one wholly of procedure between the United States and the applicant, and the former, by granting the patent, waives any irregularity in the procedure. swer and thus let judgment go by default, but he does not thereby deprive the court of a jurisdiction which has been once established. The rule applicable here is no different from that which applies in any other case. When a defendant has by personal service or appearance once been brought into a court, having jurisdiction of the subject-matter, he cannot at his election oust the court of jurisdiction, or prevent the case from *passing to judgment. [695 Whether he confesses plaintiff's right or defaults in answer, or files a denial or a disclaimer, is alike immaterial. In each and all of these cases the jurisdiction remains and the court may enter the appropriate judgment. Where the defendant simply withdraws his answer, as was this case, the court is under no obligations to inquire whether he has lost all interest, but may proceed to judgment, and its judgment is an adjudication of the rights of the plaintiff, as shown by the complaint and testimony. Can it for a moment be supposed that after the entry of this judgment the defendants, treating it as a nullity, could again amend their application so as to include all the ground covered by the original application, and thus the disputed territory, and if such amendment were permitted by the land office, press the application to success and obtain a patent for the entire claim? And yet, if the judgment be a nullity and the defendants out of the district court, why might not this be done? The defendants by the proceedings which they initiated in the land office compelled the plaintiffs to institute a suit in a court of competent jurisdiction to enforce their rights. After such suit has been commenced and the defendants have been made parties thereto, and the court has proceeded to judgment, will the defendants be heard to say that that judgment amounts to nothing? We are clearly of the opinion that this cannot be tolerated, that the judgment was in all respects regular, that it was conclusive as to the particular ground in controversy, and binding by way of estoppel as to every fact necessarily determined by it, and that priority of location was one fact so determined. There was error, therefore, in excluding the record of that judgment. But whatever may have been the effect of the amended application of the owners of the Tyler claim in this respect, they were not thereby taken out of the jurisdiction of the Our conclusions in this respect obviate the district court, neither was the action in that necessity of considering another very interestcourt abated, nor was it left as one only be- ing and somewhat difficult question presented tween the owners of the Last Chance claim by counsel. It will be seen from the diagram and the government. There is no provision in that according to the original location of the the statute for an action of this kind simply Tyler claim the vein enters through an end and against the government. An applicant for passes out through a side line, while by the public lands cannot have his right thereto as amended location it passes in and out through against the government determined by the end lines. Of course, if the latter is a valid locourts in a suit against the latter. United cation the owner of the claim would unquestionStates v. Jones, 131 U. S. 1 [33:90]. The only ably have the right to follow *the vein [696 jurisdiction which the district court could have on its dip beyond the vertical plane of the side was of a controversy between individual claim-line. But if it were not, and the original locaants, and though its judgment is by statute tion was the only valid one, has the owner the made conclusive upon the government, of the right to follow the vein outside any boundaries rights of the party in whose favor the judg of the claim extended downward? It has been ment goes, it is none the less true that the con held by this court in the cases heretofore cited dition of jurisdiction is a controversy between that where the course of a vein is across inindividual claimants. When an action has stead of lengthwise of the location, the side been instituted in the court to determine such lines become the end lines and the end the side a controversy, it is not within the compelines; but there has been no decision as to tency of the defendant to take himself out of what extra-territorial rights exist if a vein encourt A defendant may withdraw his anters at an end and passes out of a side line. Is that a case for which no provision has been made by statute? Are the parties left to the old rule of the common law that the owner of real estate owus 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 they may go, within the limits of some equitably created end lines? APPEAL from an order of a judge of the Circuit Court of the United States for the District of New Jersey, denying a writ of habeas corpus to relieve Theodore Lambert from alleged unlawful restraint of his liberty under sentence of death for the murder of one William Kairer. Dismissed. Statement by Mr. Chief Justice Fuller: If the common law rule as to real estate ob- Theodore Lambert presented to one of the tains in such a case, then, of course, on the judges of the Circuit Court of the United original location the owners of the Tyler claim | States for the third circuit, at chambers, on would have no right to follow the dip of their December 29, 1894, his petition for habeas vein outside the vertical planes of any of its corpus, which alleged that he was restrained boundary lines; and even if the amended ap. of his liberty by the sheriff of Camden county, plication was perfectly valid the question would New Jersey, under a reprieve granted by the arise whether the rights acquired under it re- governor of that state December 4, 1894, lated back to the date of the original location, whereby the execution of a certain judgment or arose simply at the time of the amendment, of the court of oyer and terminer and genin which case there would be no doubt of the eral jail delivery of the county aforesaid, fact that the owners of the Last Chance had by entered October 13, 1894, was suspended until years a prior location. However, in the view January 3, 1895. The petitioner alleged that we have taken of the other question it is un- he was convicted June 15, 1894, of the murder necessary to consider this. of William Kairer in said court, and on October 13 was sentenced to be hanged December 13; that, afterwards, on November 19, application was made to the chancellor of the state of New Jersey for a writ of error to remove the judgment and the proceedings therein to the supreme court of New Jersey, which was denied; that December 4, application was made to the governor for a reprieve to suspend the execution of the judgment, which reprieve was granted on that day, and thereby the execution of the mandate of the court was suspended until January 3. Petitioner further showed that on the twenty-second day of December the governor issued a death warrant to the sheriff of Camden county, commanding For the reason given the judgments of the court of appeals and of the circuit court are reversed, and the case is remanded to the latter court with instructions to grant a new trial. 697] *THEODORE LAMBERT, Appt., v. GEORGE BARRETT, Sheriff of the County of Camden, State of New Jersey. (See S. C. Reporter's ed. 697–700.) Federal question-state questions-appeal from him to execute petitioner on the third day of order denying habeas corpus. 3. An appeal cannot be taken to this court from 1895. Decided April 15, January next; and charged that his imprisonment was illegal in that the governor had no jurisdiction, warrant, or *authority un- [698 der the laws of the state to grant said reprieve, and that the day and time having passed for the execution of the sentence of the court, "it is supposed to have been done in law, and if not, then said judgment and execution is nil, illegal, and cannot now be lawfully carried into effect." The petition further alleged that by the judgment and sentence of the court, petitioner had been and was now under sentence of death and unlawfully restrained of his liberty and detained in jail; that under section 9 of article NOTE.-As to jurisdiction in the United States Su-5. of the constitution of that state, the goverpreme Court, where Federal question arises, or where are drawn in question statutes, treaty, or Constitution, see notes to Martin v. Hunter, 4:97; Matthews v. Zane, 2: 654, and Williams v. Norris, 6: 571. As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state constitution; to revise decrees of state courts as to construction of state laws, see notes to Hart v. Lamphire, 7: 679, and Commercial Bank of Cincinnati v. Buckingham, 12: 169. As to when habeas corpus may issue, and when not; and from what courts, and by what judges: what may be inquired into by writ of, see note to United States v. Hamilton, 1: 490. As to what questions may be considered on habeas corpus, see note to Ex parte Carll, 27: 288. As to suspension of writ of habeas corpus, see note to Luther v. Borden, 12: 581. 157 U. S. nor had no prerogative, right, or authority to grant the reprieve or issue the death warrant, and that the same was illegal and unlawful, and in violation of the Constitution of the United States and of the state of New Jersey; but that by virtue of the death warrant the sheriff intended to execute petitioner on the third day of January next. And it was further averred that on the twenty-second day of Dejustices of the supreme court of judicature of cember application was made to one of the the state of New Jersey for a writ of habeas corpus, to be relieved of the unlawful restraint of his liberty, and that the application was denied, and petitioner was refused an appeal from the same contrary to the Federal and state Constitutions; that on the twenty-fourth |