(343) [256] was brought here for review in respect to nu- Mr. Chas. A. Clark for plaintiffs in error. Mr. Justice Harlan delivered the opinion of the court: A void patent is no patent; it is worthless and null, conveys no title and has no validity, either in law or equity. Minter v. Crommelin, 59 U. S. 18 How. 87 The Act of 1875 declares that no circuit or A want of power to make the grant, when McCormick v. Varnes, 2 Utah, 357; Jupiter Min. Co. v. Bodie Con. Min. Co. 7 Sawy. 104. Mr. Charles W. Bennett, for appellee: The complaint is insufficient to admit proof attacking, or to justify a judgment annulling, a patent of the United States. The judgment is reversed, upon the ground that it does not appear, affirmatively from the record that the Circuit Court had jurisdiction; Metcalf v. Watertown, 128 U. S. 588 [ante, 543]; and the cause is remanded for further proceedings in accordance with law. PARLEY'S PARK SILVER MINING v. JOHN W. KERR. V. Curtis v. Sutter, 15 Cal. 260; Gibson Chouteau, 80 U. S. 13 Wall. 92 (20: 534); Bruck v. Tucker, 42 Cal. 346; Dewey v. Hoag, 15 Barb. 365; Lombard v. Cowham, 34 Wis. 486; Du Pont v. Davis, 35 Wis. 631. The judgment is right on the merits, irrespective of any question of pleading. Harvey v. Ryan, 42 Cal. 626; Steel v. St. Louis Smelting & Ref. Co. 106 U. S. 447 (27: 226); St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636 (26: 875); French v. Fyan, 93 Ü. S. 169 (23: 812); Patterson v. Tatum, 3 Sawy. 164. Mr. Justice Lamar delivered the opinion of of the Territory of Utah on the 14th of Sep- The suit was founded upon section 1479 "An action may be brought by any person in possession by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the Practice Act of Utah Territory-mining claim. purpose of determining such adverse claim, es (See S. C. Reporter's ed. 256-262.) tate, or interest." The complaint sets forth the cause of action in the very terms of this section, alleging, in effect, that the plaintiff is owner, subject only to the paramount title of the United States, and in possession of the lands in question; that the defendant claims an adverse interest or estate therein; that the said claim is without legal or equitable foundation and void; and that it is a cloud on plaintiff's title, embarrasses him in the use and disposition of the property, and depre ciates its value. Therefore, he prays (1) That the defendant may be required to set forth the [257] The defendant in his answer denies the plaintiff's ownership and possession, and sets up à paramount title in himself based upon a patent to him from the United States embracing the land in question. [258] The 59] The facts agreed upon by the parties and adopted by the court as findings are substantially as follows: Two mining claims in the Blue Ledge mining district of Utah, known as the Central mining claim and the Lady of the Lake mining claim, together with all the estate and interest therein, were conveyed to the plaintiff by the original locators and their grantees. At the time of the commencement of the suit there was no actual possession of the premises in question, but the plaintiff had, according to the mining laws of the district, possession of parts of those two mining claims, and, according to those laws, such possession is also possession of the disputed premises, provided they are rightfully a part of the Central and Lady of the Lake claims, and not the property of the defendant under his patent for the Clara mining claim. This mining claim patented to the defendant is overlapped by the two claims of the plaintiff, and this overlapped portion constitutes the premises in controversy. The plaintiff and its grantors had done the work required by law on its mining claims, but had not at the time obtained a patent for either. The Lady of the Lake mining claim was located July 25, 1875, and was surveyed for patent, July 8, 1876. The Central mining claim was located August 19, 1876, was surveyed for application for patent August 2, 1880, and application for patent was made by the plaintiff or its grantors soon thereafter. The Clara mining claim was located July 28, 1872, was surveyed for patent, March 31, 1876, was entered and paid for February 20, 1879, and the patent itself was issued February 6, 1880, to the defendant, and held by him at the commencement of the suit. It is also agreed that "during the 60 days' publication of the notice of application for patent for the Clara mining claim and mill site, the owners of the Lady of the Lake mining claim filed in the United States Land Office an adverse claim against said application for patent, and thereby made an adverse claim to the areas in conflict between the Lady of the Lake mining claim and the Clara mining claim and Clara mill site. On the 25th day of July, 1876, agreements in writing were made between the owners of the Lady of the Lake mining claim and the applicants for patent for the Clara mining claim and mill site, as follows: An agreement whereby the owners of the Clara mill site relinquished their application for patent for so much thereof as conflicted with the Lady of the Lake mining claim, and the owners of the Lady of the Lake mining claim agreed, in consideration thereof, to prosecute their application for patent for said claim with diligence and when patent was obtained to convey to the owners of said mill site or their assignees the area in conflict between said mill site and said Lady of the Lake mining claim, excepting and reserving, however, to the owners of the Lady of the Lake min ing claim any mineral vein under the surface of said conflict area, and also the right to mine and extract any minerals therein. And the owners of the Clara mining claim agreed not to protest the application for patent for the Lady of the Lake mining claim, and at the same time the owners of the Lady of the Lake mining claim, as part of the same agreement, made and delivered to the applicants for patent for the Clara mining claim, and also filed in said United States Land Office, a writ. ten withdrawal relinquishing their said protest and adverse claim against the application for patent for the Clara mining claim, and released to the United States and their grantees the lands and premises in conflict between the said Clara and the Lady of the Lake mining claims, the said conflict area containing forty onehundredths of an acre, more or less." A copy of the mineral laws of the Blue Ledge mining district was, by agreement, filed with the stipulation, and it was agreed they formed a part of the application for patent for the Clara mining claim. The defendant reserved the right to object to the admissibility of any facts offered with a view to attack or impeach the validity of the patent. The case was submitted to the court on the pleadings, stipulations, and exhibits of the parties. The court rendered judgment in favor of the defendant as the owner of the premises in dispute, and entitled to the possession thereof, and dismissed the plaintiff's action on the merits. This judgment, on appeal to the Supreme Court of Utah, was affirmed. We think it clear that the appellant has no title, color of title, or right of any kind to the area in conflict between the Lady of the Lake mining claim and the Clara mining claim. The facts show that whilst the application for patent for the Clara mining claim was pending, and during the sixty days' period of publication of notice, the owners of the Lady of the Lake claim (grantors of the appellant) filed their protest and adverse claim against the same, but afterwards, and within the sixty days, filed in the local land office a relinquishment of such adverse claim, and a withdrawal of the protest against the said application for | the Clara mining claim. As to the disputed premises within the Central mining claim, the defendant relies upon his patent, which is admitted to include the land in controversy, and was free from any conflict with the Central mining claim at the date of its issue. He claims this patent to be conclusive of the legal titie, and that it justifiés the presumption that all the prerequisite facts and acts prescribed by law were complied with. The appellant contends that the patent is void, because it was issued in violation of the mining laws of the Blue Ledge mining district in which the location was made, in that those mining laws, which have the force of a public statute, fixed the width of mining locations within that district at 200 feet. The patent was for a location of 600 feet. The first issue to be determined is, whether the complaint is sufficient to authorize the admission of evidence impeaching the validity of a patent, or to sustain a judgment annulling it. This question was directly presented in the case of Ely v. New Mexico & Arizona Railroad Co., recently decided by this court, 129 U. S. [260] 291 [ante, 688]. That was an action com- | feet in length along the vein or lode. menced in a territorial court under the statutes No claim shall extend more than 300 feet on of that Territory, almost literally the same as each side of the midd'e of the vein at the surthe statutes of Utah under which this action face, nor shall any claim be limited by any arose, and the prayer for relief was precisely mining regulation to less than twenty-five feet the same in both complaints. The court held, on each side of the middle of the vein at the in that case, that the rule enforced in the Cir- surface, except where adverse rights existing cuit and District Courts of the United States, on the 10th of May, 1872, render such limita that a bill in equity to quiet title or remove tion necessary." § 2320, Rev. Stat. clouds must show a legal and equitable title in The Clara mining claim, it is conceded, was the plaintiff, and set forth the facts and cir- located under the by-law, and the Act of Concumstances on which he relies for relief, does not apply to an action in the territorial court gress just quoted. It was located, officially founded upon territorial statutes, which unite surveyed for application for patent, and formlegal and equitable remedies in one form of ac- before the Central mine was located. It is ad ally presented to the Land Office for patent, tion. The complaint in the present case, in mitted that these by-laws were before the Comcompliance with the requirements of the Prac-missioner of the General Land Office and [261] tice Act of Utah Territory, states in concise formed a part of the application. The ques language the two ultimate facts, upon which tion as to which of these provisions was in force the claim for relief depends, that the plaintiff was one of fact, determinable by the commisis in possession of the property, and that the sioner, whose duty it was also to take official defendant claims an interest or an estate therein notice of the statute upon the subject. He deadverse to him. These are sufficient to require cided as a fact, that the local laws of the disthe nature and character of the adverse claim trict as to the width of the location had not on the part of the defendant to be set up, in- been exceeded in this instance. quired into, and judicially determined, and the question of title finally settled. Whether this decision of the Commissioner full extent claimed, we need not decide. In as to a fact within his jurisdiction goes to the every view, we think it was correct, and that the patent issued by him was according to law, and, therefore, valid. The judgment of the Court below is affirmed. THE BALTIMORE AND POTOMAC v. THADDEUS A. HOPKINS. (See S. C. Reporter's ed. 210-226.) Judgments of courts of District of Columbia and the Territories, when reviewable-federal ques tion, what is-action of nuisance-when no federal question arises. The only question, therefore, which remains for consideration is, whether the proofs in the agreed statement of facts, which are incorporated in the findings of fact, show that the patent should have embraced a width of only 200 feet. By 2319, Rev. Stat., mineral lands are open to purchase under regulations prescribed by law, and according to the local custom and rules of miners in the several mining districts, not inconsistent with the laws of the United States. Counsel for appellant cites the rules adopted in the Blue Ledge mining district, May 17, 1870, to sustain his position. One of these rules, § 4, provides that "The surface width of any mining location shall not exceed 100 feet in width on each side of the wallrocks of said lode." Had that regulation remained in existence and been in operation at the time the Clara mining claim was located, its effect upon the legality and validity of that location, at least as to all the land in excess of 200 feet, could not be doubted; but we find that the miners of Blue Ledge mining district frequently changed their rules in several important particulars, among them those relating to the width of mining locations. We find in the record the "minutes of a miners' meeting, held on May 4, 1872, to alter and amend the laws of the Blue Ledge mining district." It is an agreed fact that, on the day of that meeting, it was known to those miners that an Act of Congress, relating to the location and extent of mining claims upon mineral lands of the United States, had passed, or was about to be passed. Among the other alterations adopted at that meeting, and, as seems to be agreed, in antic-sance maintained by a railroad company in a pubipation of the Act of Congress, they provided in § 14 that "The surface width shall be governed by laws of the United States of America." [262] And in § 19 they add the general repealing clause. The Act of Congress, which was passed May 10, 1872, provides as follows: 1. Under the Act of Congress regulating appeals from the District of Columbia and the Territories it is sufficient if the validity of a statute of, or authority exercised under, the United States is drawn in question, in order to justify a review of the decision by this court, irrespective of the conclusion reached. wise. 2. Whenever the power to enact a statute as it is by its terms, or is made to read by construction, is fairly open to denial and denied, the validity of such statute is drawn in question, but not other3. "The validity of a statute," as these words are used in the Act of Congress, refers to the power of Congress to pass the particular statute, and not to mere judicial construction as contradistinguished from a denial of the legislative power. 4. In an action for injuries resulting from a nuilic street in front of plaintiff's house, by an unlaw ful use of the street for its tracks, and from noises cinders, etc., where the railroad company claimed the right to use the street under certain statutes of the United States, and the trial court did not deny the right of the company to use the street, but limited its right to the use held by it to be authorized by such statutes, held, that the validity of no Act of Congress or authority under the United States was drawn in question so as to give this court jurisdiction. [No. 1173.] "A mining claim located after the 10th day (210 11] cover. " And by instruction 7 the jury were told that IN ERROR to the Supreme Court of the Dis-time when not in use, and used the same for On the trial of the cause the plaintiff gave tracks of the railroad with a line of stone curb- Among other instructions given by the court, "8. The defendant company, under its charter, had no right to convert Maryland Avenue, between 9th and 10th Streets, into a freight yard by using the same for loading or unloading its cars, or to incumber said place with cars by leaving them standing there an unreasonable time when not in use, or to use said part of the avenue for making up freight trains or shifting the same, except so far as may be reasonably necessary for the purpose of carefully carrying cars out of said station over the different tracks for the purpose of making up freight trains; and, if the jury shall find from the evidence that the defendant company did use said parts of Maryland Avenue between the times named in the declaration for such loading or unloading of cars, or incumbered the same by leaving the cars standing there an unreasonable "The plaintiff is not entitled to recover for any annoyances, discomforts, or inconveniences to himself or his family, or for any injury to the use and enjoyment of said dwelling house, which resulted from such uses of Maryland Avenue by the defendant as were reasonably incident to the careful conduct of its through business, and to the maintenance and careful use of its freight depot or station, abutting on the south side of said avenue between said 9th and 10th Streets southwest." And the court gave, on defendant's behalf, these instructions: "1. The defendant is entitled to make such careful use of the tracks between 9th and 10th Streets on Maryland Avenue as may be necessary for the lawful use and enjoyment of its freight depot or station opposite the plaintiff's premises and on square 386. “2. The plaintiff is not entitled to recover anything in this case for noise, smoke, odors, or any other inconveniences suffered by him or his family by reason of the lawful use by the defendant of the freight station or the tracks in the street in front of the plaintiff's property; and the burden of proof is upon the plaintiff to point out to the jury by satisfactory testimony the acts of the defendant which were unlawful and unauthorized, if any such there were. "3. The plaintiff, under his declaration and upon the evidence, cannot recover anything under or upon the third and fourth counts of his declaration. 5. If the jury shall find from the evidence that the Board of Public Works or the Commissioners of the District of Columbia erected or caused to be erected a stone curb higher than the surface of the adjacent parts of Maryland Avenue on each side of the railroad tracks, in front of the plaintiff's premises, on said Maryland Avenue between 9th and 10th Streets, and raised the grade of the street between said curb line, then the defendant is not liable to the plaintiff for any inconvenience or obstruction caused by such curb lines. "6. The Board of Public Works or the Commissioners of the District of Columbia were authorized by law to erect the curb lines along the outside of the tracks of the defendant and to raise the grade between them, and the said board and their successors had and have lawful authority to maintain the same. "10. The plaintiff, under the declaration in this case and upon the evidence, cannot recover for injury or inconvenience caused by any obstruction or obstructions in or upon Maryland [213] Avenue without showing special damage to himself. "14. The defendant possesses the lawful right in the conduct of its business to place its trains containing cars loaded with cattle, hogs, or other animals, or vegetables, fruit, fertilizers, or other odoriferous freight, on the tracks in front of the plaintiff's premises for such a reasonable time as may be necessary to enable other trains to pass and also to enable the defendant to take cars out of and to put cars into such trains, and before any damages can be assessed in favor of the plaintiff because of the standing of such cars upon the tracks in front of the plaintiff's premises the plaintiff must show, by satisfactory proof, that such cars on such occasion were kept standing on said tracks for an unreasonable length of time and that the plaintiff was thereby specially injured. "17. The defendant was authorized and empowered to unload railroad iron upon the surface of the streets in front of the plaintiff's premises for the purpose of repairing its tracks in front of the plaintiff's premises on Maryland Avenue between 9th and 10th Streets. "19. The defendant possessed the lawful right to use the several tracks on Maryland Avenue between 9th and 10th Streets for carefully passing and moving thereon its trains, either loaded or empty, north and south; and for any injury or inconvenience unavoidably caused by such passing and moving of trains the defendant is not liable." But refused to give at defendant's request, among others, the following: "10. The plaintiff is not entitled to recover anything on account of dust or noises caused by the loading and unloading of cars on or within the sixty-foot space between the lateral streets inclosed by the Board of Public Works of the District of Columbia. "11. The space of sixty feet inclosed by the two lines of curb by the Board of Public Works within which are the tracks of the railroad, and between the streets running north and south, were set aside by the proper authorities of the District of Columbia for railroad purposes, and the plaintiff cannot recover under the pleadings in this case for any discomfort to him or his family, or other injury caused by the loading on unloading of cars at that place. "14. The defendant has the legal right to the unlimited use of the tracks in the vicinity of its freight depot, in front of the plaintiff's premises, for the purposes of its freight depot between Ninth and Tenth Streets, opposite the plaintiff's premises, provided such tracks are carefully and skillfully used by the defendant." The court also instructed the jury upon its own motion: "Congress allowed the company to run its road into the District, along certain streets and avenues, to a certain point-that is, to 9th Street, where the present station is located. We have supposed that that implied a right to construct a station building and to construct tracks in the street; but if the business of the company increase beyond the capacity of that freight yard to accommodate it, we have thought that that was no reason which would justify the company in occupying the public streets for the purposes of a freight yard, and that they had no right to stow away or store away their cars and freight in the public streets, nor had they the right to occupy the streets in making up trains to dispatch north and south; but we thought that their duty was to acquire more property and to enlarge their freight yard for these purposes. If, in point of fact, without authority of law they did occupy the streets for these purposes it was an illegal thing; but if nobody was hurt by it, it would simply be a public nuisance which would be the subject of an indictment and would not give any private person a right of action against the company; but if, in addition to being a public nuisance, it became a grievance to private persons owning property [215] in that neighborhood, by reason of the obstruction of the street, the noise and the disagreeable odors, then it was a private wrong, also, which these parties are entitled to have redressed. . . . I should further caution you against supposing that the plaintiff is entitled to recover for all the inconvenience he may suffer in consequence of the railroad being located there at all. The railroad company has the right to lay its tracks there by authority of law; and everything which is the inevitable result of the legal use of the road are things which the law does not consider grievances, and does not allow damages for. For example, the trains have a right to pass over the street, to stop there at the station, and to go on in each direction. That necessarily gives some inconvenience to every body. The noise, the smoke, and the dust along the street is a disagreeable thing to the whole neighborhood; but, inasmuch of a private action. It is only the illegal use as the law authorizes that, it is not the subject of the street which will give a person a right of action against the company, and this I have alof the road being located there and of trains ready explained. The inevitable consequences traveling in a legal way over the road are what is, an injury without any wrong or damage. the law calls "damnum absque injuria”—that You will confine your consideration entirely to the temporary inconvenience occasioned by the unlawful occupation of the street for the purposes that have been mentioned." The jury found for the plaintiff and assessed his damages at one thousand three hundred and twenty eight dollars, and judgment was entered on the verdict, which was subsequently affirmed in general term. To reverse this judgment the writ of error was sued out which defendant in error now moves to dismiss. The following are the statutory provisions relating to the Baltimore and Potomac Railroad which are deemed material. The first section of the Act of Congress of February 5, 1867 (14 Stat at L. 387), is as fol lows: "Whereas, it is represented to this present Congress that the Baltimore and Potomac Railroad Company, incorporated by an Act of the [216] General Assembly of Maryland, entitled 'An Act to Incorporate the Baltimore and Potomac Railroad Company,' passed the sixth day of May, eighteen hundred and fifty-three, are desirous, under the powers which they claim to be vested in them by the provisions of the before recited Act to construct a lateral branch from |