delivered the opinion of the court.
It is'оbjected that jurisdiction of this writ of error cannot be maintained because no title or right was specially set up or claimed within section 709 of the Revised Statutes. But plaintiffs in error contend that, while they admit thаt they made' no specific reference to'the statutes of the United States, their pleading, nevertheless, showed that they asserted title through valid mining claims duly located, and denied the title of defendant in еrror on the ground that the locations under which he claimed had become forfeited and abandoned, and that that was a sufficient compliance with the requirements of section 709.
We cannot cоncede that this is so in view of the rule expounded in
Oxley Stave Co.
v.
Butler County,
Counsel for plaintiffs in error assert in their printed brief that the following questions were presented by the findings of fact:
“First. Whether Tin Bar No. 1 claim, in its entirety, was extinguished and lost to the owners thereof by the patenting of the Reed placer claim.'
“ Second. Whether the Tin Bar No. 2, claim, to the extent that it conflicted with the Reed placer, was extinguished and lost to the owners thereof by the patenting of the placer claim.
“ Third. Whether, notwithstanding tiie failure of the owners ■ of the Tin Bar claims to perform thereon the work required by section 2324, Rev. Stat., those claims continued to be valid and subsisting claims, and the locаtors thereof or their grantees co-tenants in respect thereto; so that one of such locators or grantees'could not make a new location, for his own benefit solely, and include therеin a portion of the ground covered by said Tin Bar claims although, by reason of such failure to work, said claims had become ‘ open to relocation in the same manner as if no location of the same had ever been made.’ ”
And they insist that these questions could only have been determined by the application of the provisions of chapter six’of Title XXXII of the Revised Statutes correctly interpreted, particularly of section'2324. 1
*274 But the Supreme Court of South Dakota held that plaintiffs in error, defendants below, were not in a position to allege or prove against defendant in error, plaintiff below, that the declarations contained in the recorded location certificates were false.
In its first opinion, after saying that there ’ was “ certainly no reason for holding that the owner of an unpatented placer claim cannot locate a lode claim, or consent to such a location being made by others, within the boundaries of his placer claim; ” and also that “ if the Tin Bar claims were located when application for patent to the placer was made, they were not affected thereby, no application for lodes having been included in the application for the placer patents; ” the court proceeded to hold that the conduct of the original locators was such as to induce “ persons who might examine the records to believe that thеy were the owners of properly located mining claims,” and that the rights of defendant in error in this action depended “ upon the facts which the conduct of the locators induced him to believe existed when his interest in the claims was acquired. It would be a travesty on justice to permit the locators to now impair such rights by asserting that their re *275 corded representations were false. Neither of the defendants is in any better position than the original locators, and all are estopped from denying- the validity of the Tin Ear locations.”
In the opinion on rehearing .the court said that the findings of the Circuit Court showed “ that Iieed, Franklin, Blair and Eaton recorded a location certificate for Tin Bar No. 1, and that Blair and Eaton recorded a location certificate for Tin Bar No. 2, in the office of register of deеds in the proper county, before plaintiff purchased his interest in such claims; that neither defendant is in any better position than the original locators; and, whether or not plaintiff examined and relied upоn the records, we think defendants are estopped from denying the validity of these locations.”
If, as thus held, defendants below could not deny the validity of these locations, the estoppel coverеd the objection to the right to locate a lode claim within a placer claim previously located, and the objection based on the supposed effect of the patenting of the рlacer claim, as raised on this record. And whether a party is estopped or not is not a Federal question.
Gillis
v. Stinchfield,
Having determined that for the purposes of this action the Tin Bar claims were to be regarded as- valid in their inception, the Supreme Court considered the controversy as to the right of a co-tenant to relocate a mining claim when the annual assessment work has not been done, and obtain title as against his co-tenants.
The court held that the relation of co-tenant existed between McCarthy and Franklin when Franklin located the Holy Terror and Keystone claims; that original locators may resume work at any time before relocation; that Franklin’s aGts of relocation did not terminate the fiduciary relation between himself and McCarthy, and said: “ We think the Circuit Court should have adjudged the defendants tо be trustees, and have, enforced the trust. This conclusion is not precluded by the language of the Federal statutes.., They provide that upon a failure to comply with required conditions as to labor or improvements 1 the claim or mine upon which such failure occurred shall be open to re *276 location in tbe same manner as if no location of tbe same bad ever been made.’ Kev. Stat. U. S. § 2324. It is contеnded that, if Congress intended to have tbe relocator regarded as a trustee under any circumstance^, such intention would have been expressed in the statute. Tbe contention is not tenable. The trust results frоm tbe fiduciary relation of the parties, and not from tbe operation of tbe statute.” ■
The state court thus disposed of this branch of tbe case upon general principles of law, and its decision did not rest on tbe disposition of a Federal question.
Counsel argue, however, that tbe court, before reaching tbe question of co-tenancy, was compelled to bold and did bold that tbe Tin Bar claims existеd at tbe time of tbe location of the Holy Terror and Keystone claims, and that in so holding tbe court necessarily decided against the contention of plaintiffs in error that tbe Tin Bar claims bad absolutely сeased to exist by virtue of the statute properly interpreted.
But was that contention so put forward as to constitute the special assertion of a right given or protected by the act of Congress ? Tbe only approach to such an assertion was tbe statement of plaintiffs in error in their amended answer, that defendant in error intended to set up certain rights under tbe Tin Bar claims, and that these claims wеre abandoned and forfeited before tbe Holy Terror and Keystone claims were located. We think these general allegations fall short of that definite claim of a right or title under a statute of. thе United States, which section 709 requires. And that, as the record stands, this court would not be justified in holding that the state court denied a right or title specially set up as secured by the statute, when it determined this particular question on the general principles of law recognized as prevailing in South Dakota.
Writ of error dismissed„
Notes
“Sec. 2324. The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the Stаte or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinсtly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, аnd such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars’ worth of labor shall be performed or improvements made during each year. On all claims *274 lоcated prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars’ worth of labor shall be performed or improvements made by the tenth day of June, eighteen hundred and seventy-four, and each year thereafter, for each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same . had ever been made, provided that the original locators, their heirs, assigns, , or legal representatives, have not resumed work upon the claim after failure and before such location. Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the coowners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent coowner personal notice in writing or .notice by publication in the newspaper published nearest the claim, for at least оnce a week for ninety days, and if at the ejxpi-ration of ninety days- after such notice in writing or by publication such I delinquent should fail or refuse to contribute his proportion of the expendi- ■ ture required by this section, his interest in the claim shall become the property of his coowners who have made the required expenditures.”