tion are undisputed. If one starts from this cut, reverses this course, and runs N., 6° and 52′ E., 180.7 feet, he reaches a point about 43 feet northeasterly of the position of corner No. 1, according to the patent of the Nellie. Thus the question becomes whether the location of corner No. 1 of the Nellie shall be determined by the course and distance from corner No. 2, described in the patent of that claim, or from the course and distance from the discovery cut of the Ella found in the patent of the latter claim.

Counsel for complainants invoke the conceded rules that the most certain and reliable calls prevail over the more uncertain and unreliable, the shorter distances over the longer, the more permanent monuments over the more temporary, and the established marks of the boundaries over their courses and distances; and then they contend that there must have been a mistake in the first and third courses in the patent of the Neilie, because it is more probable that a mistake would creep into these courses than that it would occur in the short course and distance from the discovery cut of the Ella to corner No. 1. In support of their contention they produced at the hearing the engineers who surveyed the Nellie and the Ella for location in 1881 and for patent in 1883, and these surveyors testified that the proper way to locate corner No. I was to follow the course and distance from the discovery cut found in the patent to the Ella; that they believed that the place found in this way was the original corner; that, by starting from this point and following the courses and distances in the patent of the Ella, they found a stake and stones about 9 feet north of angle 2 of that claim, and another at angle 5 thereof; that the two first ties of corner No. I named in the patent of the Ella locate that corner 23 feet south of the position pointed out by the tie to the discovery cut; that in their opinion there is a mistake. in the courses of the side lines named in the patent of the Nellie; and that this mistake was made in calculating out the length and direction of the center line of the claim which was originally found by means of a traverse. They testify that the courses and distances in dispute and the courses and distances of the ties of corner No. I which appear in the patents of the Nellie and of the Ella, including that to the discovery cut of the latter, were found. either by means of traverses or by triangulation and the necessary calculations, and that none of them were run upon the ground when the original surveys were made. The evidence of these witnesses was supported by the testimony of several surveyors to the effect. that in their opinion the tie to the discovery cut of the Ella ought to prevail in locating corner No. 1 over the other indicia in the notes of the surveys and in the patents, because this call contained the course and distance from corner No. 1 to the nearest and the most permanent monument. On the other hand, the courses and distances that are alleged to contain the mistake were found by the original surveyors who now attack them, and were declared to be the true course of the Nellie vein in 1881, when they first surveyed the claim for that lode for location, and again in 1883, when they surveyed the claim for patent. The chief purpose of the survey

for location was to determine the direction of this vein. If that direction was not correctly determined, it might run without the side lines of the claim, and be lost to the locator. They found and declared its direction to be, and it was described in the amended location certificate of September 26, 1881, based upon their survey, to be, "333.5 feet, running N., 76 degrees 5 minutes east, from center of discovery shaft, and 1,033.5 feet, running south, 76 degrees 5 minutes west, from center of discovery shaft." In 1883 they surveyed and laid the side lines of this claim parallel to the line which they had ascribed to the vein, and gave them the same course. In the latter survey they described two tunnels among the improvements upon the Nellie, and gave their bearings and distances from corner No. 1 of their survey of that claim. These tunnels are still there, and the approximate location of their mouths in 1883 is still discernible. Three surveyors testified that the lines described by the courses and distances which the original surveyors gave these tunnels from corner No. 1 as located by the patent of the Nellie strike within about 5 feet of the original mouths of these tunnels, while, if they are run from the point where the complainants seek to locate this corner, they will strike from 40 to 100 feet further up a cliff, where there is no vein of mineral, and where there never were any tunnels. On October 4, 1887, one of the original surveyors of the Nellie made a survey of and tied corner No. 1 of the Golden Cross lode mining claim to corner No. 1 of the Nellie claim at the place where it is located by the patent, and not at the place where he now claims it was established. In 1892 the Kokomo No. 2 lode claim, and in 1896 the Star Gazer lode mining claim, were surveyed by other engineers, and tied to this corner at the place where it is located by the patent of the Nellie. A portion of the triangle which complainants now seek to include within their patent was patented to the owner of the Star Gazer claim without any objection on their part. Many other facts were established and many were disputed in the voluminous evidence taken in this case, but none of them are of sufficient importance to modify the effect of those which have been recited. How can the decree of the court below be lawfully reversed, in the light of this proof? The tie on which the complainants rely was a calculated course and distance from the corner in dispute to a hole in the ground on another claim found in the patent of that claim. In the notes of the survey of this second claim this course and distance was not a tie of this corner, nor was it any portion of the survey of the boundary of the claim, but it was a mere description of an improvement upon it, and it was imported into the patent from these notes. In the notes of the survey of the Nellie the courses and distances of its side lines constitute a part of the boundaries of that claim,-a portion of its survey, and they were imported from these notes into the patent under which the complainants claim. The testimony is that the location of improvements upon mining claims is not made with that care and accuracy with which the boundaries of the claim are measured, marked, and noted, so that there is less probability of a mistake in the lines

which mark the boundaries than in the location of the improvements. This consideration is much strengthened by the fact that the great desideratum in the location of a lode mining claim-the chief end of its survey-is to ascertain and declare the true course of its vein, and of the side lines of the claim which inclose it, and which are generally drawn parallel to it, so that it may not escape. from the locators.

Again, the location of the tunnels mentioned among the improvements upon the Nellie in the notes of its survey correspond with the location of corner No. I according to the courses and distances of the patent of that claim; and it is less probable that a mistake was made in locating both these tunnels, in ascertaining the course of the vein of the Nellie, and in surveying its side lines, than that there was an error in the course and distance from corner No. I to the discovery cut of the Ella. When all these considerations, and the facts that the location of this mining claim was made in 1877, that it was surveyed and located in 1881, that it was again surveyed for patent in 1883, that it was patented in 1890, that other claims have been located adjoining and about it in reliance upon its record location, that under one of them a patent has issued to a portion of the triangle which complainants now claim. should be placed within the boundaries of their patent, and that the courses, distances, corners, and boundaries of this Nellie mining claim remained unassailed for 16 years,-when all these facts and circumstances are reviewed the conclusion becomes unavoidable that the fact that the course and distance from one of the corners of this claim to an improvement in another claim found in another patent does not correspond with the description of the side lines in this patent establishes no probability that there was an error in the courses and distances of the lines which bound it, but renders it far more probable that there was a mistake in the location of the improvement with which it is assailed. The court below rendered a decree in accordance with this conclusion, and, even if there was a mere preponderance of evidence in favor of the theory of the complainants, the result below ought not to be disturbed, in the light of this testimony, under two well-established rules of equity jurisprudence. One of these rules is that patents, contracts, and conveyances, the accredited evidences of rights and titles, may not be set aside or modified for mistakes unless these mistakes are established by evidence that is plain and convincing beyond reasonable controversy. Maxwell Land-Grant Case, 121 U. S. 325, 381, 7 Sup. Ct. 1015, 30 L. Ed. 949; U. S. v. American Bell Tel. Co., 167 U. S. 224, 251, 17 Sup. Ct. 809, 42 L. Ed. 144; Howland v. Blake, 97 U. S. 624, 626, 24 L. Ed. 1027; Insurance Co. v. Nelson, 103 U. S. 544, 549, 26 L. Ed. 436; Insurance Co. v. Henderson, 69 Fed. 762, 764, 16 C. C. A. 390, 392, 32 U. S. App. 536, 542; Railroad Co. v. Belliwith, 83 Fed. 437, 440, 28 C. C. A. 358, 361, 362, 55 U. S. App. 113, 120. Such evidences of the rights of parties bear with them a strong presumption of their correctness. They are generally prepared with deliberation, written with care, and made for the express purpose of solemnly record

ing the established rights, titles, and interests of those whom they concern. Patents issued by the government after surveys of the land and examinations of the rights of the grantees and of the nation are buttressed by a presumption of exactness peculiarly strong. Every step in their preparation is required to be performed by disinterested officials in accordance with express provisions of statutes. They are issued by the United States to evidence the nature and the extent of its grants, and they bear its official seal. They evidence the decisions of a quasi judicial tribunal-the interior department of the government-upon the rights of all parties to the land or privileges which they describe. They are recorded in the registries of titles, and all the world relies, and has the right to rely, upon their statements of the character, and the limits of the rights of the grantees whom they name. In view of these wellknown facts, no mere preponderance of evidence, no loose, uncertain, conjectural proof, ought to be permitted to strike down or change the nature or the extent of these solemn grants of the nation. Nothing should be permitted to reach that result but evidence so clear, unequivocal, and convincing that it does not leave the issue in doubt. The proof in this case lacks every element of this character. When considered in the most favorable light, it is nothing but the balancing of probabilities of mistake between the courses and distances in the survey of the boundaries of the Nellie lode mining claim, and the course and distance from one of the corners of that claim to an improvement in an adjoining claim. It is loose, uncertain, unconvincing, and conjectural, and solemn grants of the United States cannot be annulled or reformed upon evidence of this character.

The other rule to which reference has been made is that where a chancellor has considered conflicting evidence, and made his finding and decree thereon, they must be deemed to be presumptively correct; and unless an obvious error has intervened in the application of the law, or some serious mistake has been made in the consideration of the evidence, his findings should not be disturbed. Exploration Co. v. Adams, 104 Fed. 404, 408, 45 C. C. A. 185, 188; Mann v. Bank, 86 Fed. 51, 53, 29 C. C. A. 547, 549, 57 U. S. App. 634, 637; Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894, 31 L. Ed. 664; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Furrer v. Ferris, 145 U. S. 132, 134, 12 Sup. Ct. 821, 36 L. Ed. 649; Warren v. Burt, 58 Fed. 101, 106, 7 C. C. A. 105, 110, 12 U. S. App. 591, 600; Plow Co. v. Carson, 72 Fed. 387, 388, 18 C. C. A. 606, 607, 36 U. S. App. 448, 456; Trust Co. v. McClure, 78 Fed. 209, 210, 24 C. C. A. 64, 65, 49 U. S. App. 43, 46. The able and persuasive arguments of counsel for complainants have not convinced us that the chancellor made any mistake of fact or fell into any error of law in his disposition of this case. The patent under which the complainants held their land threw the burden of establishing the alleged mistake in it, by convincing. proof, upon them in the court below, and the decision of the chancellor cast upon them the additional burden of showing his mistake in this court. They have failed to successfully bear either burden, and the decree below must be affirmed. It is so ordered.

MICHIGAN PIPE CO. et al. v. FREMONT DITCH, PIPE LINE &
RESERVOIR CO. et al.

(Circuit Court of Appeals, Eighth Circuit. October 7, 1901.)

No. 1,504.

1. EQUITY-COMPLAINANT MUST COME WITH CLEAN HANDS.

A court of equity will leave to his remedy at law-will refuse to interfere to grant any relief to-one who, in the matter or transaction concerning which he seeks its aid, has been guilty of bad faith, unrighteous dealing, or unconscionable acts.

2. SAME.

Courts of equity will not entertain bills to enforce forfeitures, but will leave the parties to their remedies at law.

3. SAME-COMPLAINANTS BARRED BY UNCONSCIONABLE ACTS.

Vendors sold and conveyed real property, water rights, and rights of way under a contract whereby the vendees agreed to pay the purchase price provided the vendors first paid off and satisfied the incumbrances upon the property, and whereby the vendees also agreed to retransfer the property if they failed to construct waterworks according to the provisions of a certain ordinance. They constructed the waterworks under other ordinances substantially but not completely in accordance with the provisions of the ordinance mentioned in the contract. The vendors did not pay off the incumbrances, but, without notice of their failure, foreclosed them, took the title under the foreclosures, and sold the property to a third party. The vendees brought suits and obtained decrees avoiding these foreclosures, and adjudging that the title under them was held in trust, and should be conveyed to the vendees. Thereupon the vendors brought a suit in equity to compel a reconveyance of the property from the vendees to the vendors because they had not constructed the waterworks in exact accordance with the contract, and because they had not paid the purchase price. Held, the vendors were barred from relief in equity, and remitted to their remedies at law, by their bad faith, sharp practice, and unconscionable acts in foreclosing the mortgages they had agreed to pay.

(Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the District of Colorado.

On April 23, 1898, the complainants (the appellees here) exhibited their bill in the United States circuit court for the district of Colorado to compel the defendants (the appellants here) to reconvey to them certain land, water rights, and rights of way for a ditch and reservoirs pursuant to the terms of a contract of purchase thereof which had been made on January 27, 1893. The complainant the Fremont Ditch, Pipe Line & Reservoir Company was a corporation, which on January 27, 1893, owned this property, and the other complainants, J. C. Plumb, H. I. Reid, F. W. Howbert, H. C. McCreery, and S. H. Kinsley, owned the stock of this corporation, and also owned a large number of lots in the town of Cripple Creek, in the state of Colorado. The defendant the Michigan Pipe Company was a corporation, and the defendant Henry B. Smith practically controlled and acted for and with it. In December, 1892, one J. A. Jones had obtained from the town of Cripple Creek an ordinance granting to him the right to construct and maintain a system of waterworks in the town of Cripple Creek, and requiring him to locate 25 hydrants upon 3 miles of water mains within the limits of that town, and to complete his system by July 15, 1893, unless prevented by strikes, labor combinations, weather, or order of court of competent jurisdiction. The Fremont Company had 174 acres of land, certain water rights appurtenant thereto, and a right of way for a ditch, pipe line, and reservoirs, which the Michigan Company desired to obtain for the purpose of