chase by any railroad company, under the provisions of this act, of any parallel and competing line of railroad within this state. "Sec. 2. Said corporation shall be subject to the laws of this state as to that portion of the road purchased, built, and operated in this state, the same as if organized under the laws of this state." 8ess. Laws Neb. 181:H. p. :303.
Does this act make a foreign corporation, purchasing from a, domestic corporation its line of road, thereby a domestic corporation"? I think not. Its title indicates its scope, that is, "an act authorizing the sale and purchase of railroads in certain cases." There is no suggestion in this as to the matter of citizenship, either individual or corporate. The act endows the foreign corporation purchaser with all the rights, powers, privileges, and immunities of domestic corporations, and subject to all the restrictions of the state laws. But is this the creation of a new corporation? is it not, rather, a prescription of the terms upon which the foreign corporation may do business within the state? Of course, the grant of privileges to a foreigner does not deprive him of the rights of a foreigner. Subjecting him to the laws of the state does not deprive him of his rights as a foreigner, unless there be some law forbidding the exercise of such rights. I am not advised of any law in Nebraska forbidding a domestic corporation from seeking the federal courts wherever the character of the litigation or the citizenship of the adversary party gives such courts jurisdiction. If there be no pretense of a law disabling a domestic corporation, does an act subjecting a foreign corporation to all the laws of the state cast any disability on such foreigner? In brief, this is, in my iudgment, simply an enabling act. It does not create a new, or transform the foreign into a domestic, corporation. It simply prescribes the terms upon which such foreign corporation may purchase and operate a domestic line of railroad, and this it does without changing the status of such purchaser as a foreign corporation. The case comes within the reasoning of the case of l'vloore v. Chicago, St. P., M. &; O. Ry. Co.· 21 Fed. Rep. 817. I see no reason to depart from the views therein expressed. The demurrer will be overruled, and leave given to answer by October rules.
ASPEN MINING & SMELTING Co. v.
(Oircuit Oourt, D. Oolorado.
Courts of equity have, concurrently with courts of law, general original' jurisdiction in matters of partition.
COURTS-FEDERAL-JUIUSDICTION-How AFFECTED BY STATE LAWS-EQ,UITABLE RIGHTS.
Federal courts, sitting as courts of equity, may administer any right of aIL equitable nature given by the statutes of the statt:.
ASPEN MINING & SMELTING CO. V. RUCKER.
PARTITION-WHEN IT MAY BE HAD-MINING CLAIM-STATUTES OF COU IiADO.
Under the statutes of Colorado, partition of a mining claim held by joint owners under the possessory rights given by acts of congress may be had, notwithstanding the legal title has not yet passed from the general gcvernment.
SAME-WHO MAY HAVE-JOINT OWNEUSHIP IN A MINE.
The mere fact of joint ownership in a mine does not give a legal nor an equitable right to a partition.
On Exceptions to Answer. Pattet'son d: Thomas, for complainant. J. W. Taylor, for defendants.
BREWER, J. The question presented in this case arises on exceptions to the answer. The action is one for partition of a mining claim. l'he bill alleges that complainant is the owner and in possession of eleven-twelfths of the Emma lode mining claim, and that the defendants are owners of the other one-twelfth. The answer admits the ownership as alleged, but avers that no patent has ever been issued, and that the fee-simple title still remains in the government. To this one exception runs. In other words, the contention of defendant is that, inasmuch as the fee of the property remains in the government, no partition can be had in this court. In support of this the case of Strettell v. Ballou, 3 McCrary, 46, S. C. 9 Fed. Rep. 256, is cited. In that case it appeared that the title to the property in controversy was in the United States, and that the parties had jointly a possessory claim or interest, with the right to take ore therefrom, but had no other title. It was held this court had no jurisdiction because the complainant had no title to the land. If this case established a rule of property, I should be reluctant to depart from it, even if I did not assent to its reasonings and conclusions. The maxim stare decisis would seem applicable. As, however, nothing was involved save a matter of practice and a question of forum, I do not consider myself concluded by it. lt is well to understand definitely what the title of these parties is. The averment of the bill is that they are owners, and in possession. The answer, admitting the ownership, simply pleads that the patent has not issued, and that the fee-simple title remains in the government. The import of these averments is that the equitable title is in the parties; the legal title in the government. The property is called a "mining claim," and it is alleged in the bill that it was discovered and located by certain parties in 1880, all of whose interests have become vested in the present litigants. The statutes of the United States provide that, upon performance of certain conditions, the discoverer of a mine becomes entitled to a patent. If all these conditions have been performed, the full equitable title is vested in the discoverer, and all that the government retains is the naked legai title, in trust for the equitable owner. If only partially pedormed, he has an absolute right of possession, and an inchoate title, ,whlet
prther performance will perfect and complete. Such a right, possessory in its nature, coupled, under existing laws, with further rights as to acquisition of title, is declared; by the statutes, and the decisions of the supreme court of Colorado, to be a real-estate title. Such a property passes to the heir, is subject to seizure and s'11e as real estate, must be conveyed by deed, and is subject to partition. Gillett v. Gaffney, 3 Colo. 351; Sears v. Taylor,4 Colo. 40; Filmore v. Beithman, 6 Colo. 124. See, also, McKeon v. Bisbee, 9 Cal. 142; Watts v. White, 13 Cal. 324; Merritt v. ·ludrZ, 14 Cal. 64; Lowe v. Alexander, 15 Cal. 302; Hughes v. Devlin, 23 Cal. 502; Spencer v. Winselman, 42 Cal. 479; Dall v. Confidence Silver Min. Co., 3 Nev. 531. It is doubtless true tha;t the jurisdiction of the federal courts, sitting as courts of equity, is not dependent upon or limited by any state statutes. Neither is the practice therein prescribed by state legislation. Boyle v. Zacharie, 6 Pet. 658; Strettell v. Ballou, 3 McCrary, 46; S. C. 9 Fed. Rep. 256, and cases cited. Yet it is equally true that an enlargement of equitable rights, given by a state statute, may be administered in a federal court. Holland v. Challen, 110 U. S. 15; S. C. 3 Sup. Ct. Rep. 495. I take it, in this respect, there is no difference between a legal and an equitable right. The federal courts enforce and administer the laws of the state; and if any right, legal or equitable, be given by a state statute, the non-resident litigant who may come, or be forced, into a federal court, may avail himself thereof. Snch I understand to be the general rule. Any exception thereto arises either because the state statute conflicts with some federal legislation, or because the right granted is one not in its nature administerable in federal courts. Clark v. Smith, 13 Pet. 195; Broderick Will Case, 21 Wall. 520. Courts of equity have a general jurisdiction in matters of partition. It is true that, at an early day, partition, beiug considered as a division of legal estates, was regarded as peculiarly a proceeding at law, and special reasons were supposed necessary to sustain the jurisdiction of a court of equity. Story, Eq. Jur. §§ 646-658. In these sections an historical review is given, and in the last section the learned author thus states the present state of the law: "These courts [courts of equity] have assumed a general concurrent jurisdiction with courts of law in all cases of partition; so that it is not now deemed necessary to state bill any peculiar ground of equitable interference." I summarize my conclusions in three propositions: (1) Courts of equity have, concurrently with courts of law, general original jurisdiction in matters of partition. (2) Federal courts, sitting as courts of equity, may administer any right of an equitable nature given by the statutes of the state. (3) Under the statutes of Colorado, partition of a mining claim held by joint owners, under the possessory rights given by '1cts of congress, may be had, notwithstanding the legal title has not yet passed from the general government. The
ROSEKBAUM V. BOARD OF SUP'RS.
exception to this portion of the answer must therefore be sustained. The answer further alleges that accounts between complainant and defendants, concerning said mine, are unsettled, and that numerous suits are pending involving the title to the mine, and the rights and interests of its various owners. To these matters, also, exceptions have been filed. I overrule these exceptions. I do this for these reasons: This is an equitable proceeding. The mere fact of joint ownership does not give an equitable right to a partition. Seldom can a division of a mine be made. Generally partition must result . in a sale. To 8uch property there is an unknown value; and a chancellor may well require full information as to all the relations of the parties to the property before decreeing any partition which will practically result in dispossessing one of the parties entirely. I dt' not enlarge upon this matter, but simply notice it, to guard against any thought that partition is to follow as a legal right. When the facts are fully presented, I can the better determine whether partition ought equitably to be ordered, and, if 80, upon what terms.
(Oirouit Court, D. California. May 24, 1886.)
1. MANDAMUs-JURISDICTION OF TflE CmCUIT COURT-WHEN GIVEN.
The United States circuit court has no jurisdiction to entertain an application for a mandamulI, originally presented therein, except as ancillary to some other proceeding establishing the demand, and reducing' it to judgment. and in the nature of process for executing such judgment. Jurisdiction of a writ of mandamus cannot be conferred upon the United States circuit court by commencing the proceeding in, the state court. and then removing it to the United States circuit court, under the act of congress of 1875.
1, 2. .
SAME-JURISDICTION-REMOVAL FROM STNrE TO UNITED STATES COURTSCONSTRUCTION OF ACT OF CONGRESS OF 1875. 1, 2, 716.
8. SAME-ACT OF CONGRESS OF 1875,
A mandamu8 is not" a suit of a CIvil nature, at law or in equity," within the meaning of the act of congress of 1875. . 4. SAME-CODE CAL. §§ 1034, 1086. Under the California Code a mandamus is not regarded as an action at law or a suit in equity, in the ordinary sense in which those terms are used; but as a special proceeding to afford a remedy where there is not a plain, speedy, and adequate remedy "in the ordinary course of law."
SAWYER, J. This court has no jurisdiction to entertain an application for a mandamus, originally presented herein, except as ancillary to some other proceeding establishing the demand, and reducing it to