Some question has been made as to the right of the plaintiff to sue the defendant Harrison in this district, he being a citizen of the western district of this state. That question is settled by section 740 of the Revised Statutes, which provides that "when a. state contains more than one district every suit not of a local nature, in the circuit or district courts thereof, · · · if there are two or more defendants" residing in different districts of the state, may be brought in either district, and a duplicate writ be issued- against the defendants, directed to the marshal of any other district in which the defendant resides." The motion to dismiss is overruled. TREA'f, D. J., concurring.
G. & S. M. Co. v. THE LARIMER
(Oircuit Oourt, D. Colorado.
&, S. Co.
in' a state court and the cause removed, after claim, and, a complaint was answer, to this court, held, on a motion to remand, that this court has jurisdiction under the act of March 3, 1875, as the questions involved in the case arise under the laws of the United States, i.e., the mining laws.
Motion to Remand. Wells, Smith &: Macon, for p1ainti1. T . .4.· Green, for defendant. MILLER, Justice. The defendant made application for patent for a mining claim in Lake county, to resist which plaintiff filed in the lll>nd-office an adverse claim, and thereupon filed complaint in the a petidistrict court for Lake county. Defendant, tion fora removal of the cause to the circuit court of the ;United States, on the ground that the subject-matter of the action arises undet the laws of the United l::3tates, and the case was removed accordingly. This hearing is of a motion to remand the cause to the state court for trial. The act of congress of March 3, 1875, provides that the "United States circuit courts shall have original jurisdiction of the subject-matter of all cases arising under the constitu. tion and laws of the United States." It is impossible that such an action as this can be determined without reference to, and involving· a construction of, the mining laws of congress. The questions in-
volved necessarily arise under the laws ·of the United States; and hence thia coud has original jurisdiction of the subject.matter of the aetion, and the case was properly removable. The motion to remand must be denied.
VAN ZANDT. Trustee, v. THE ARGENTINE MINING Co.
(Oirw,it Oourt, D. Oolorado. June 16, 1881.)
LANDS-TERRITORY COMM:ON TO
As between two locators, the boundaries of whose respective claims include common territory, priority of location confers the better title, provided a vein in place was discovered in the discovery shaft, and provided, also. that it extended to the ground in controversy.
NOr are the rights of the parties chang\ld by the fact that the seniOr location was on the dip of the lode; the junior on the top, or apex;.
Action to recover possession of the Adelaide mining claim, itornia district, Lake county, Colorado. Plaintiff offered evidence to prove that the claim was located by Walls and Powell in the year 1875. As to marking the boundaries of the claim on the surface of the ground, and the finding of valuable ore in the discovery shaft, the evidence was slight; and defendant objected to plaintiff's record title on the ground that these ·facts were not shown. . As there was some evidence on both points, the court held that the paper title should be :received. In the original certificate of location the description of the claim contained no referen<;e to a natural object or permanent monument; but this was corit rected in an amended certificate, and both were received, was held that the first was fatally· defective. Having declared for the entire interest in the claim, plaintiff failed to Ilhow title from the original locators to an undivided one-third interest. One of deeds upon which he relied was not sufficiently proved, and upon defendant's objection it was excluded. Thereupon he moved for leave to make the grantor in that deed, in whom the title to the said one-third interest would rest, (assuming that instrument to be void,) a party plaintiff in the suit. And this was denied by the cQurt: First, because the deed, for aught that appears, was effectual between the parties to it to transfer the property; and, second, a stranger should not bemadea party to the suit without his knowledge and consent, which is not shown. Plaintiff then suggested to the court that, upon