MESNE PROFITS AND IMPROVEMENTS tinued. con- | MILITARY POWER-In general. MILITIA ant of record, and although another were admitted to defend as landlord with the plaintiff's consent. Chirac v. Reinicker, 11 Wheat. 280. Power of President to call out 4. A defendant in ejectment in the circuit court is not deprived of the benefit of a local law Proceedings in Case of Disobedience of his Orunder which he is entitled to the value of his im-der- Construction of the Act of 1795 and the provements, to be ascertained by commissioners Acts of 1863 and 1864.] The act of Februto be appointed by the court, by the constitu- ary 28, 1795 (1 Sts. 424), which confers on the tional inability of the court to dispense with the president power to call out the militia in cerjury in such cases, as he may have complete re- tain cases, is constitutional. Martin v. Mott, 12 lief in equity. Hamilton Bank v. Dudley, 2 Pet. Wheat. 19. 492. 5. In Louisiana, where one who has held possession mala fide may be allowed the cost of his improvements if the owner of the premises elects to keep them, the court may deny a specific payment where, in fact and in good conscience, the possessor has received their value, and where the case is such that a specific estimate cannot be made. New Orleans v. Gaines, 15 Wal. 624. 6. In Mississippi, one may have purchased land in "good faith," within the meaning of that term as used in the statute and construed by the courts of the state, so as to entitle him to the value of his improvements if ejected by one holding a paramount title, although the existence of such paramount title might have been ascertained by research. Canal Bank v. Hudson, 111 U. S. 66. 7. Under the treaty of 1783 (8 Sts. 80), a British remainder-man who recovers in ejectment against one in possession under a purchase of the confiscated life estate is not bound by the state law to pay the tenant for improvements. Carver v. Astor, 4 Pet. 1. 2. Under that act the president is the exclusive judge whether an exigency for the exercise of the authority thereby conferred has arisen. Ib. 3. Disobedience of an order of the president thereunder calling out the militia renders a citizen liable to trial by court-martial. Ib. 4. A court-martial formed for the purpose of such a trial need not be formed according to the rules and articles of war as enacted by the act of April 10, 1806 (2 Sts. 367), but under the act of 1795, according to the general usage of the military service. Ib. 5. Nor does a court-martial, regularly called under that act, necessarily expire with the return of peace, there being no such limitation in the act. Ib. 6. A requisition is an order within the meaning of that act. Ib. 7. The Pennsylvania statute of March 28, 1814, providing that militiamen of that state refusing to serve, when called into actual service by order of the president, should be liable to the penalty prescribed by the act of 1795, or prescribed or to be prescribed by any subsequent act, and should be triable by state court-martial, Liability of Sureties on Bond for, given under held not repugnant to the constitution. [STORY, Invalid Law. See BOND, 22. MEXICAN GRANTS Public Lands J., dissenting.] Houston v. Moore, 5 Wheat. 1. 8. Section 25 of the act of March 3, 1863 (12 Sts. 731), for enrolling and calling out the Lands national forces, construed with section 12 of the in California-In general. amendatory act of February 24, 1864 (13 Sts. See LANDS OF UNITED STATES CON- 8), is limited to prevention of resistance to a FLICTING CLAIMS; LANDS OF UNITED draft; and the latter section is limited to preSTATES-GRANTS FROM FORMER GOV-vention of resistance to the enrolment. ERNMENTS. - MILITARY COMMISSION - Power to try Civilians.] Where the courts are open and in the proper and unobstructed exercise of their functions, a person in civil life and unconnected with the military service cannot be tried for a criminal offence by a military commission, although the privilege of the writ of habeas corpus be suspended. Ex parte Milligan, 4 Wal. 2. 2. Not even under authority of congress, for congress has no power to authorize such a trial in such a case. [CHASE, C. J., and WAYNE, SWAYNE, and MILLER, JJ., dissenting.] Ib. United States v. Scott, 3 Wal. 642; United States v. Murphy, Id. 649. 9. The notifying of enrolled and drafted men to report for duty is not service relative to enrolment, within the meaning of the latter act; and hence resistance of a person serving such notice is not punishable thereunder. States v. Scott, 3 Wal. 642. United 10. Nor can service relative to the enrolment be deemed a service relative to the draft; and so resistance of a person engaged in the former service is not punishable under the former act. United States v. Murphy, 3 Wal. 649. Justice of Peace of District of Columbia, Officer of United States and not liable to Militia Duty under Act of 1792. See COURTS-MARTIAL, 6. MILLS AND DAMS Right to flood Lands.] | MINES — continued. Whether statutes known as general mill acts, per- Flagstaff Silver Mining Co. v. mitting any owner of land on a stream not navi-463. gable to erect dams for mills and to flood lands, can be upheld as a taking, by delegation of the right of eminent domain, of private property for public use, not decided. Head v. Amoskeag Manufacturing Co., 113 U. S. 9. 2. Such a statute, however, the New Hampshire statute, for instance, in providing by judicial proceeding for the ascertainment and payment of damages to the owners of lands flooded, and in regulating the manner in which the rights of proprietors may be asserted and enjoyed, with a due regard to the interests of all and to the public good, is not unconstitutional as depriving them of their property without due process of law. Ib. MINES - Location of Claim - Notice. Improvements, etc., to be made by Locator. in Common. See pl. 6-11. Conflicting Claims ings to determine. See pl. 12-14. Practice in Proceed Conflicting Claims - Evidence of Extent or Tarbet, 98 U. S. 3. A location of more than the two hundred lineal feet allowed by law does not render the whole claim void. The excess may be rejected and the claim held good for the rest. Richmond Mining Co. v. Rose, 114 U. S. 576. 4. One who, after having posted a notice of the location of a mining claim, is prevented by force or threats from sinking the shaft necessary to the perfecting of his location, loses no rights, or can his tortious dispossessor acquire any. Erhardt v. Boaro, 113 Ú. S. 527. 5. A notice in form thus, We, the undersigned, claim 1,500 feet on this mineral-bearing lode, vein, and deposit," is a sufficient notice of a claim to seven hundred and fifty feet on each side of the stake on which the notice is posted. Ib. 6. Improvements, etc., to be made by Locator When to be made Adjoining Claims held in Common.] Under the act of 1872, requiring work to be done each year by the locator of a mining claim, and the amendatory act of June 6, 1874 (18 Sts. 61), extending the time for doing work to January 1, 1875, a claim would then be open to relocation if work were not previously done, or done before a relocation were in fact made, the doing of work before a relocation Water Rights by another restoring the right of the original First locator. Accordingly, where work was done at any time in 1875, no relocation by another having been made before, there could be no forfeiture until the end of the year 1876, and a relocation by another in December, 1876, could give no rights against the original locator, nor, although his rights lapsed January 1, 1877, could such relocation be made available after that date; and the original locator, therefore, by an entry and a relocation in February, 1877, and by doing the necessary work, was restored to his original status. Belk v. Meagher, 104 U. S. 279. Conflicting Claims Construction of Compromise Agreements between Contiguous Location of Claim Notice.] The act of July 9, 1870 (16 Sts. 217), limiting the location of a placer claim to one hundred and sixty acres for one person or association of persons, and the act of May 10, 1872 (17 Sts. 91), limiting such location to twenty acres for one person, do not preclude the issue of a single patent for more than one hundred and sixty acres on one application for contiguous locations taken up by dif ferent persons, and subsequently purchased and held by one. St. Louis Smelting & Refining Co. v. Kemp, 104 U. S. 636; Tucker v. Masser, 113 U. S 203. 7. And the entry of December, 1876, not being accompanied by actual possession, could not be relied on as the beginning of an adverse possession on which rights could be predicated. ̄ 1b. 8. Labor and improvements, within the meaning of the act of 1872, are deemed to have been put on a mining claim, whether it consists of one or more locations, when the labor was performed or the improvements were made for its development, although in fact such labor and improvements may be on ground which originally constituted only one of the locations, or may be at a distance from the claim. St. Louis Smelting & Refining Co. v. Kemp, 104 U. S. 636. 2. Under the act of July 26, 1866 (14 Sts. 251), and the act of 1872, the location of a mining claim on a lode or vein of ore, to enable the locator to follow the dip of the lode, although beyond the side lines of the location, should be made along the same lengthwise of the course of its apex at 9. Where several adjoining claims to mineral or near the surface. If laid otherwise, e. g., lands are held in common, work for the benefit crosswise, it will secure so much only of the of all done on any one of them in a given year, lode as it actually covers, as in that case the side to an amount equal to that required to be done lines, for the purpose of defining the rights of by all in that year, meets the requirement of owners, will be treated as end lines, which are§ 2324, Rev. Sts., and prevents a relocation. deemed to extend downwards perpendicularly. Chambers v. Harrington, 111 U. S. 350. MINES continued. 10. The expenditure necessary to protect mining claims against adverse location, which section 2324 declares may suffice as to claims held in common, if made on any one of them, must be made for the benefit of all, not for the benefit of one to the neglect or at the expense of the others. Jackson v. Roby, 109 U. S. 440. 11. Where, in a suit under section 2326, to settle opposing claims to mineral lands, the claims both depend on compliance with the law requiring expenditure thereon, and neither party shows compliance, the finding may be against both. Ib. Conflicting Claims Practice in Proceedings to determine.] The filing of the complaint is a commencement of proceedings, under Rev. Sts. § 2326, to determine conflicting rights in mineral lands. Richmond Mining Co. v. Rose, 114 U. S. 576. 12. 13. Where, in such proceedings, the defendant demurs, answers, and goes to trial without objecting that the complaint was filed too late, he is precluded from raising the objection. Ib. 14. Pending such proceedings in court, the officers of the land department have no right to assume from the fact of delay a waiver of the proceedings, and to issue a patent regardless of the adverse claim. lb. 15. Evidence of Extent or Priority of Possession Water Rights Applicability of the Common Law First in Time, first in Right.] The local record of a mining community is not the best or only evidence of priority or extent of actual possession of a mining claim. Campbell v. Rankin, 99 U. S. 261. 16. On the question of the right to possession to a mining claim, neither party having a legal title to the locus in quo, the plaintiff may show prior occupancy, especially when accompanied by a deed showing color of right. Ib. 17. The common law as to the rights of riparian proprietors to the use of running waters is inapplicable, or applicable to a very limited. extent only, to miners on public mineral lands in the Pacific states and territories. Prior appropriation there gives the better right to running waters to the extent in quantity and quality necessary for the purposes to which they are applied. Atchison v. Peterson, 20 Wal. 507. 18. What diminution of quantity or impairment of quality will constitute an invasion of the rights of an appropriator depends on circumstances; and in controversies between him and subsequent claimants the question is whether the use and enjoyment of the water to the extent of the original appropriation have been impaired. Ib. 19. Under the act of July 26, 1866 (14 Sts. 251), which provides that where by priority of possession rights to the use of water for mining purposes, etc., have vested and are recognized by "local customs, laws, and decisions of courts,' the possessors, etc., shall be protected therein, the customary law among occupants of public lands is deemed valid, and may be shown by evi دو MINES continued. dence of custom, by legislation, or by the decisions of the courts; and in case of conflict between custom and statute the latter will prevail. Basey v. Gallagher, 20 Wal. 670. 20. By the customary law of miners in California, the owner of a mining claim and the owner of a water-right hold their respective properties from the dates of appropriation, the first in time being the first in right, the enjoyment of both being allowed where they may be enjoyed without interference with each other. Jennison v. Kirk, 98 U. S. 453. 21. And by that law one may not construct a ditch to convey water across the mining claim of another, taken up and worked according to that law before the right of way was acquired by the ditch owner, so as to prevent the further working of the claim as such claims are worked, as, for instance, by the method known as the hydraulic process; nor so as to cut off the water previously appropriated by the miner for that or another beneficial purpose. Ib. 22. Whether equity will enjoin an interference with the rights of the first appropriator of running water on public mineral lands in the Pacific states and territories depends on considerations which ordinarily govern courts of equity in the exercise of such jurisdiction. Atchison v. Peterson, 20 Wal. 507. 23. Construction of Compromise Agreements between Contiguous Owners.] An agreement to compromise disputes between contiguous mining companies as to rights to mine, etc., may be construed according to the subject-matter, and to give the right to one company to follow the dip, although under the surface it may extend under the land which on the surface it has been agreed shall be deemed that of the other company. Richmond Mining Co. v. Eureka Mining Co., 103 U. S. 839. Claim - Meaning of the Term. See St. Louis Smelting & Refining Co. v. AND MONEY What constitutes.] An agreement to pay the bearer fifty cents in goods on demand is not within § 2, act of July 17, 1862 (12 Sts. 592), which forbids the making, etc., of notes, etc., for a sum less than a dollar, "intended to circulate as money, or to be received or used in lieu of lawful money of the United States," although intended so to circulate and to be so received and used. [MILLER, J., dissenting.] United States v. Van Auken, 96 U. S. 366. Assets in the Hands of Executor or Administrator-What is. See EXECUTOR AND ADMINISTRATOR POWERS AND LIABILITIES, 67, 68. Borrowing-Power of Municipal Corporation to borrow. See MUNICIPAL CORPORATION - FISCAL Confederate-In general. See CONFEDERATE MONEY. Contracts In what money solvable. See CONTRACT-CONSTRUCTION, 23 et seq. Execution May be taken in. See EXECUTION, 11. MONTH - Meaning of the Word.] If the parties to a contract use the word "month," without defining it, it is to be construed, in the absence of a statutory provision, to mean a calendar, not a lunar, month. Sheets v. Selden, 2 Wal. 177. MONUMENTS — Boundary - Matter of. Construction of Entries of Public Lands. Control Courses and Distances, when. See DEEDS-CONSTRUCTION, 3 et seq. MOOT CASE Supreme Court will affirm on Supreme Court will not hear. et seq. MORTGAGE - ASSIGNMENT Assignee unaf fected by Subsequent Equities, etc.] Where a negotiable note and a mortgage given to secure its payment are assigned before maturity to one who takes in good faith and for value, he is unaffected by equities subsequently arising between mortgagor and mortgagee, on a collateral agreement of which he has no notice, and may enforce the mortgage for the full amount of the note. Carpenter v. Longan, 16 Wal. 271. 2. The lawful holder for value of a note purchased before maturity is entitled to avail himself of a lien given on land by a trust deed to secure its payment, notwithstanding a release of record of "all the right, title, interest, claim, and dePRACTICE, 22 mand" of the trustee, who has acquired the title by conveyances subsequent to the trust deed, the release not acknowledging payment of the note, and the land having been conveyed by the trustee MORMONISM - Constitutional Provision respect- subsequent to the execution of the release by ing Religious Establishment. See CONSTITUTION, 8. deed of trust to secure his own indebtedness. Swift v. Smith, 102 U. S. 442. 3. Where, by mistake, a covenant is inserted in a deed of mortgaged land, binding the grantee to assume and pay the mortgage, and on discovery thereof the grantor executes a deed of release of the covenant, a third party, who buys the mortgage notes after the conveyance and before the release, in ignorance of the supposed agreement, and doing nothing on the faith of it, cannot charge the grantee with the payment thereof, although he has paid interest thereon. Drury v. Hayden, 111 U. S. 223. Effect of Assignment of Debt secured by. |