mineral surveyor, and was prohibited by the terms of section 452 of the Revised Statutes of the United States from making the location of a mining lode claim. For the same reason the trial court sustained an objection to evidence offered on behalf of the plaintiff tending to show that at the time the Uhlig claims were located the ground covered by such locations was then covered by prior locations made at an earlier hour on the same day, and was consequently not subject to location as unoccupied mineral lands of the United States. That one of said locations-the Levi P.-embraced the premises in dispute, and was a subsisting location until forfeited by failure to perform the annual work for the year 1897; that the relocation of said claim as the Yes You Do was made on January 1, 1898; and that the annual work and other steps required by law to be done in connection with the claim had been performed.

Following the introduction of testimony tending to show the validity of the Uhlig locations, testimony was introduced on behalf of the plaintiff in respect to the location and working of the Levi P. claim, but on the offer of the Levi P. location notice the trial court sustained an objection thereto, and ruled that as the Yes You Do was not a valid location there were no adverse claims before the court, and as a result it was to be conclusively presumed that there did not exist any location which in anywise conflicted with the Uhlig claims sought to be patented.

The court made findings of fact, in which, inter alia, it was recited that the plaintiff at the trial had not introduced any legal or competent evidence to sustain the issues on his part, and consequently that "upon the trial, on motion of counsel for defendants, the said action of the plaintiff against the defendant was, and is hereby, dismissed." The facts were then found in respect to the location and working of the Uhlig claims, and, as conclusions of law, the court held that the action against the defendants should be dismissed with costs, and that the defendant, the St. Joe Mining Company, and the defendant, Alexander McKernan, were entitled to purchase

Argument for Plaintiff in Error.

198 U. S.

from the United States of America the said Uhlig claims and the whole thereof, and were also entitled to a decree quieting their title to the premises in dispute. From a decree entered in conformity to these conclusions an appeal was prosecuted to the Supreme Court of Utah, and that court affirmed the decree. 26 Utah, 1. A writ of error was thereupon sued out from this court.

Mr. Aldis B. Browne, with whom Mr. Alexander Britton and Mr. N. W. Sonnedecker were on the brief, for plaintiff in

error:

Section 452, Rev. Stat., does not prohibit the location of a mining claim by a United States deputy mineral surveyor. Sutherland's Stat. Con. § 366; Endlich's Interpretation, § 341; act of April 25, 1812, 2 Stat. 716; act of July 4, 1836, 5 Stat. 107; Grandy v. Bedell, 2 L. D. 314; Instructions of Commissioners, 2 L. D. 313; McMicken's Case, 10 L. D. 97; S. C., 11 L. D. 96; Circular of Sept. 15, 1890, 11 L. D. 348; Winans v Beidler, 15 L. D. 266.

The designation of United States deputy mineral surveyor is not known to Federal Statutes, $2334, Rev. Stat.; General Mining Law of 1872, 17 Stat. 95; Mining Law of 1866, 14 Stat. 252; General Mining Circulars of Dec. 18, 1903, 31 L. D. 453, 489; 32 L. D. 367, §§ 90 et seq.

A deputy mineral surveyor is not a Federal officer. United States v. Germaine, 99 U. S. 508; United States v. Smith, 124 U. S. 525, 532. Nor is he a clerk either in the General Land Office or in any public office subordinate to it. Bouvier, sub. "Clerk"; People ex rel. &c. v. Fire Commissioners, 73 N. Y. 422. Nor can the term employé be applied to him. Century Dict., sub. "Employé"; People v. Meyers, 33 N. Y. 18, as the rendition of work and receipt of wages or salary is essential to constitute a person an employé. Mining regulations 127 provides that the deputy has no claim on the United States but looks only to the surveyor. 1876, 19 Stat. 169; act of 1884, 23 Stat. 17; McCluskey v.

Section 5, act

198 U. S.

Argument for Plaintiff in Error.

Cromwell, 11 N. Y. 593; Cent. Dict., sub. "Salary" and "Wages"; United States v. Meigs, 95 U. S. 748; Ex parte Simons, 32 Fed. Rep. 681; Powell v. United States, 60 Fed. Rep. 687; United States v. McDonald, 72 Fed. Rep. 898.

The idea of continuity of service is inseparable from the word employé. An employé is not one who renders an occasional service. Louisville &c. R. R. Co. v. Wilson, 138 U. S. 501; Auffmordt v. Hedden, 137 U. S. 310. The word employé implies relation of master and servant which does not exist. State v. Emerson, 72 Maine, 455; Wood on Master and Servant, 4, 618; People v. Board of Police, 75 N. Y. 41; Mache v. Hutchinson, 12 Ont. Pr. Rep. 167; Bishop on Noncontract Law, § 602; Campfield v. Lang, 25 Fed. Rep. 128. The surveyor is not an employé but a contractor and the partial control retained over him does not make him a servant. Cooley on Torts, 548; Wharton on Agency, § 19; Pack v. Mayor, 8 N. Y. 222; Kelly v. Mayor, 11 N. Y. 432; Kearney v. Oakes, 18 Canada Sup. Ct. 148; Blake v. Ferris, 5 N. Y. 58; Pennsylvania Statute of 1802, cited in Commonwealth v. Binns, 17 S. & R. 220; Coal Co. v. Railroad Co., 29 N. J. Eq. 255; Vane v. Newcomb, 132 U. S. 220, 233; The Twenty per cent Cases, 20 Wall. 179. The decisions of the Land Department are contradictory and it was not until 1898 that it held that a deputy mineral surveyor could not purchase Government lands. For decisions prior to 1898 see Dennison v. Willetts, 11 Copp's L. O. 261; Lock Lode Case, 6 L. D. 105; Maxwell's Case, 29 L. D. 76; Baltzell's Case, 29 L. D. 333; Leffingwell's Case, 30 L. D. 139.

Even if the prohibition of § 452, Rev. Stat., is applicable to deputy mineral surveyor's title to the Yes You Do claim it is good in the present holder, the plaintiff in error, to whom the alleged deputy had conveyed all his interest prior to the initiation of this proceeding. He is free from attack on this ground except from the Government itself-so as to alienage disabilities. Manuel v. Wulff, 152 U. S. 505; McKinley Mining Co. v. Alaska Mining Co., 183 U. S. 563, 571; 1 Washburn,

Real Property, 63; 1 Kerr on Real Property, 215; National Bank v. Matthews, 98 U. S. 621; Jones v. Habersham, 107 U. S. 174; Reynolds v. Bank, 112 U. S. 405, 413. There was no exclusive adverse possession which is necessary in order to acquire prescriptive title. Buswell on Limitations, § 237; Dosevell v. Morrill, 14 Wall. 120, 145; Ward v. Cochran, 150 U. S. 597, 609; Larwell v. Stevens, 12 Fed. Rep. 559; Bracken v. Union Pacific Ry., 56 Fed. Rep. 447; Larsen v. Onesite, 20 Utah, 360; Digman v. Nelson, 26 Utah, 186.

As to the validity of the relocation of a claim see 1 Lindley on Mines, 2d ed., §§ 363, 404; Jupiter Mining Co. v. Bodie Mining Co., 11 Fed. Rep. 666, 676; Jordan v. Duke, 53 Pac. Rep. 197; Oscamp v. Crystal River Mining Co., 58 Fed. Rep. 293.

The alleged discoveries of the Uhlig Nos. 1 and 2 being within the prior subsisting Levi P. location, the locations. based thereon are void. 1 Lindley, 8611; Watson v. Mayberry, 15 Utah, 265; Reynolds v. Pasco, 24 Utah, 219; Mining Co. v. Maier, 134 California, 583; Erwin v. Perego, 93 Fed. Rep. 608; Mining Co. v. Buck, 97 Fed. Rep. 462; Branagan v. Dulaney, 2 L. D. 744; Re Winter Lode, 22 L. D. 362; Gwillim v. Donellan, 115 U. S. 45, 50; Girard v. Carson, 22 Colorado, 345.

Mr. D. H. Wenger, with whom Mr. Arthur Brown was on the brief, for defendants in error.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

The Supreme Court of Utah was of the opinion that, by force of section 452 of the Revised Statutes of the United States (copied in the margin1), J. Fewson Smith, Jr., being

1 Section 452 Revised Statutes of the United States. "The officers, clerks, and employés in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the

a deputy mineral surveyor, was disqualified from locating the Yes You Do claim; that in consequence the attempted location of such claim was void; and that the plaintiff Lavagnino acquired no rights by the conveyance of the claim to him by Smith. It was next decided that, as the plaintiff had failed to show any right to the disputed premises, he became a stranger to the title, and was without right to contest the claim of the defendant. The correctness of the decree entered by the trial court was also held to result from the terms of section 2332 of the Revised Statutes of the United States, and section 2859 of the Revised Statutes of Utah, both of which sections are copied in the margin.1

Adopting the finding of the trial court that the Uhlig claims were valid locations, attention was called to the fact that those claims were located on January 1, 1889, while the Yes You Do was located more than eight years thereafter, viz., on January 1, 1898. A mining claim was declared to be a possessory right and real estate under the statutes of Utah, and it was held that one Mayberry, the locator of the Levi P. claim, not having instituted a suit to recover possession of the premises in dispute within seven years after the location of the Uhlig claims, was barred of all right to such premises by the terms purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office."

1 Section 2332, Rev. Stat. United States.

"Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim; but nothing in this chapter shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent."

Section 2859, Rev. Stat. Utah.

"No action for the recovery of real property, or for the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, grantor, or predecessor was seized or possessed of the property in question within seven years before the commencement of the action."

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