ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT
Fuller, Harlan, Brewer, White, Peckham, McKenna, Holmes, Day
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The first question is, of course, the one of jurisdiction. If
the jurisdiction of the Circuit Court depended alone on diverse citizenship then, undoubtedly, the decision of the Court of Appeals was final, and the case could only be brought here on certiorari. On the other hand, if it did not depend alone on diverse citizenship, the decision of the Court of Appeals was not final, and the case is properly here on writ of error. The original complaint alleged the citizenship of the two corporations, plaintiff and defendant, but did not allege the citizenship of the individual defendants. In order to sustain the jurisdiction of the Circuit Court on the ground of diverse citizenship the citizenship of all the parties on one side must be diverse from that of those on the other. So, unless there was a Federal question presented by that complaint, as the citizenship of the individual defendants was not shown, the Circuit Court had no jurisdiction of the case. It may be that this was remedied by the subsequent first and second amended complaints, in which the individual defendants were left out, the citizenship of the two corporations, plaintiff and defendant, alleged, and to which complaints the Montana company, without raising any question of jurisdiction, appeared and answered. Conolly v. Taylor, 2 Pet. 556; Anderson v. Watt, 138 U.S. 694. Be that as it may, in view of the fact that this litigation has been twice before this court, has been protracted for many years, involves so large an amount, and also presents questions of Federal mining law, which, though perhaps not necessary for our decision, have yet been elaborately argued by counsel, we are of opinion that if the jurisdiction of the Circuit Court did, after the filing of the amended complaints, depend entirely on diverse citizenship, the case ought to be brought here by writ of certiorari. As either by writ of error or certiorari the decision of the Court of Appeals can be brought before this court, and as each has been applied for, and as the importance of the case seems to demand our examination, it is scarcely necessary to consume time in attempting to decide positively whether there was a Federal question involved, or the jurisdiction depended solely on diverse citizenship. The
writ of error was duly allowed prior to the filing of the record in the first instance, and to avoid any further question of our jurisdiction we allow the certiorari. Pullman Car Co. v. Transportation Co., 171 U.S. 138.
We pass, therefore, to a consideration of the merits, and the first question presented by counsel -- indeed, as we look at it, the pivotal question -- is the proper construction of the bond and deed by which the plaintiff in error claims title to the compromise ground.
The bond described the ground, adding "together with all the mineral therein contained." The deed executed in pursuance of the judicial decree contains the same description, followed by the words above quoted and also the further words given in the statement of facts, "together with all the dips, spurs and angles," etc.
Now, the contention of the defendant in error is that the effect of the compromise followed by the bond and conveyance was simply to locate the boundary line between the two claims, leaving all subsurface rights to be determined by the ordinary rules recognized in the mining districts and enforced by the statutes of Congress.
The argument in favor of this construction is forcibly put by Circuit Judge Gilbert, delivering the opinion of the Court of Appeals, when the case was first presented to that court. 102 Fed. Rep. 430; 42 C.C.A. 415. Without quoting it in full it is to the effect that agreements and conveyances of the whole or parts of mining claims are to be construed in the light of the mining law, as, generally speaking, we construe a contract, not merely by its terms, but having regard to the subject-matter involved and the surrounding circumstances, in order to ascertain the intention of the parties. Particular reference was made to Richmond Mining Co. v. Eureka Mining Co., 103 U.S. 839, 846, in which this court held that a ...