(128 N.E.) for travel. See Wilson v. Boston, 117 Mass. 509; Mack v. Boston & Albany Railroad, 164 Mass. 393, 41 N. E. 653. The fact that the approach to the draw was not fully protected during the short interval did not show as matter of law that the bridge was unsafe for travel, reasonably considered. The exercise of reasonable care and diligence did not require of the defendant street railway company in order to make the bridge safe for ordinary travel or travel generally that the gate east of the draw should be closed while the draw was turning and was in the act of opening; and at this time it was not fairly to be anticipated that a traveler would attempt to pass from the permanent part of he bridge to the moving draw and continue to the westerly end where there was the open space for the passage of vessels. tric Street Railway Company under that contract and St. 1905, c. 404, and St. 1915, c. 172. There was evidence that the accident hap pened about 4 o'clock in the afternoon of "a nice day, pleasant weather." The bridge is 730 feet long, inclosed by a rail fence. The draw is about 50 or 60 feet long and about 20 feet wide, as it swings round, when fully open the fence on the side of the draw acts as a barrier to travel from the east, and west of it there is an open space for the passage of boats. On the bridge, about 50 feet westerly of the draw, there is a gate which was closed at the time of the accident; and another about 40 feet easterly of the draw which was open. The record does not show when or by whom this gate on the easterly side of the bridge was built; but according to the testimony of the draw tender, who had been employed there for 10 years, it had never been used during that period. It had been fastened by wire to the side of the bridge for 7 or 8 years, "was all broken to pieces," and in such condition that it could not be used as a barrier. As the draw turns one could pass from the unobstructed part of the approach on the east side, but, when fully opened, the fence on the side of the draw extended across the whole width of the way. On the day of the injury, the draw tender saw the intestate about 80 feet away. approaching from the east, when the draw had been opened about half the width of the roadway leaving part of it unprotected. He testified that the intestate was riding at the rate of 40 miles an hour but the speed lessened as he reached the draw; "that it takes 12 to 15 seconds to open it;" he tried to stop the further opening of the draw, given by the county of Essex. Under section 7 ing the intestate "the benefit of the length of the draw," and supposed he could stop the motorcycle in that distance. [3] Even if it could be found that the draw tender was negligent, which we do not mean to intimate, the county of Essex was not liable for his neglect. Butterfield v. Boston, 148 Mass. 544, 20 N. E. 113, 2 L. R. A. 447; Hawes v. Milton, 213 Mass. 446, 100 N. E. 665. the Massachusetts Northeastern Street Railway Company could not be held for the negligence of a servant in the employment of the county of Essex. And [4] The plaintiff offered evidence to show that after his intestate was injured the defendant street railway company erected new gates at both ends of the draw. Under the contract and St. 1905 repairs were to be made in the first instance by the street railway company, and the company continued liable to perform this obligation until the work, by reason of its failure, was undertak By of the statute, if the street railway company [1, 2] In these circumstances it could not As there was no evidence of the defendant's negligence it is unnecessary to consider whether the plaintiff's intestate was in the exercise of due care. Exceptions overruled. (236 Mass. 185) ARIZONA COMMERCIAL MINING CO. v. 1. Mines and minerals 31(1)—Ownership of Ownership and possession of a vein of ore or mineral on the surface of the ground carries ownership and possession throughout its entire depth, though so far departing from a perpendicular as to extend outside the vertical side lines of the surface location. 2. Mines and minerals 38(14)-Presumption that surface title carries subsurface ownership may be rebutted. Title and possession of the surface of land prima facie carries ownership and possession of all beneath the surface, a presumption which, as to minerals, may be overthrown by proof as a matter of defense that the mineral is part of a vein apexing in land or a claim belonging to some one else. 3. Mines and minerals 49-Ore mined from realty adversely claimed bona fide becomes property of miner, so owner cannot maintain trover. Where defendant is in adverse possession of realty under bona fide claim of title, a thing severed therefrom, as ore mined, becomes his property, so that the owner of the land cannot maintain trover, but must resort to his remedy for possession. 4. Action 28-Owner of severed parts of land may waive trespass, and sue for money received. of each state all privileges and immunities of citizens of the several states, corporations not being within such provision. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Citizen.] 7. Constitutional law 249-Equal protection of laws defined. Equal protection of the laws in its constitutional sense implies that all litigants similarly situated may appeal to the courts, both for relief and defense, under like conditions and with like protection and without discrimination. 8. Appeal and error 105-Exceptions lie to dismissal for want of jurisdiction on answers in abatement. Exceptions lie to dismissal of the actions for want of jurisdiction on defendant's answers in abatement. 9. Courts 7-Massachusetts courts without jurisdiction of actions for proportionate part of expense of pumping defendant's mine in Arizona. The courts of Massachusetts have no jurisdiction of actions between Maine corporations place of business in Massachusetts to recover operating mines in Arizona and having a usual for defendant company's proportion of expense a debt for aroney expended in Massachusetts for pumping water from its mine; the actions being founded on Civ. Code Ariz. 1913, pars. 4047, 4048, in view of paragraph 4051, and being inherently local. Appeal and Exceptions from Superior Court, Suffolk County; Franklin T. Hammond, Judge. Actions by the Arizona Commercial Mining The owner of land may waive a trespass Company against the Iron Cap Copper Comthereon, and, affirming the conversion, sue, in pany. Demurrers to the declarations and an action for money had and received, one who answers in abatement were filed by defendsevers wood, gravel, or other parts of the real-ant. The demurrers being sustained and the ty, and transforms it into money, but only when title to the land is not in dispute. 5. Money received 15-Title to land triable. answers in abatement adjudged good, the actions were dismissed for want of jurisdicnot tion, and plaintiff appeals and alleges exceptions. Exceptions overruled, and appeals dismissed. Transitory actions will not be entertained to recover money damages as for the conversion of personalty, where the dispute at bottom is one concerning title to land, but the parties will be relegated to courts, with jurisdiction to try title to the land as a local action. 6. Constitutional law 207(1), 249-Courts 14-Massachusetts courts have no jurisdiction of actions for conversion of mineral depending on question of title to mining claims in Arizona; "citizen." See, also, 233 Mass. 522, 124 N. E. 281. Edward F. McClennen, Dunbar, Nutter & McClennen, and Edward S. Goulston, all of Boston, for appellant. Burton E. Eames, William C. Rice, and Franklin King, all of Boston (Tyler, Tucker, Eames & Wright, of Boston, of counsel), for appellee. RUGG, C. J. These are actions at law with counts in contract and in tort. In each case the defendant filed a demurrer and also an answer in abatement. In the superior court the demurrers were sustained and the answers in abatement adjudged good and the actions were dismissed for want of juris The courts of Massachusetts have no jurisdiction of actions at law between mining corporations organized under the laws of Maine, conducting mining operations in Arizona, and having a usual place of business in Massachusetts, which actions are for the conversion of mineral, and depend on the question of title to the Arizona mining claims involved; such conclusion not denying equal protection of the law, secured by Const. U. S. Amend. 14, to the The plaintiff and defendant each is a corcomplaining company, nor denying it any right poration organized under the laws of Maine, established by article 4, § 2, affording citizens | conducting mining operations in Arizona and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes diction. (128 N.E.) having a usual place of business in this commonwealth. The Ore Action. The declaration in the ore action, so called alleges that the plaintiff is the owner in fee simple in possession of mining properties in Arizona, its title being derived from patents from the United States issued under mining laws whereby the plaintiff acquired the right | to and took and has ever retained possession of all mineral veins, lodes and ledges throughout their entire depth, the top or apex of which lie inside of the surface lines of said claims extended downward although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations; that the defendant has been in possession of a certain mining shaft whereby it has taken and converted to its own use large amounts of ore from veins, lodes and ledges which had their respective tops or apexes upon mining claims owned by the plaintiff and wholly within the plaintiff's surface lines and in the actual possession of the plaintiff, and has sold and received large sums of money therefor. The declaration, while asserting a title to land in Arizona, is drawn for conversion of the ore as personal property and for money had and received from the sale of the same as personal property, and expressly excludes claim for damage to the realty in Arizona. The answer in abatement avers that the defendant has not taken any ores claimed by the plaintiff except ores extracted from real estate in Arizona to which the defendant in good faith has at all times openly and to the knowledge of the plaintiff claimed and now claims title and ownership under the laws applicable thereto, and that such ores have been extracted from veins, lodes and ledges underneath the surface of lands and claims owned by the defendant and within surface boundaries thereof projected vertically downward, and that the defendant has been at all times in actual possession of the entire sur face and the mining operations underneath the same to the complete exclusion of the plaintiff, and that its extraction of such ores has been open, to the knowledge of the plaintiff and under claim of title made in good faith. The answer in abatement must be accepted as true upon this record. of the ground carries with it the ownership and possession of the vein throughout its entire depth although so far departing from a perpendicular as to extend outside the vertical side lines of such surface locations. Empire State-Idaho M. & D. Co. v. Bunker Hill & S. M. & C. Co., 58 C. C. A. 315, 121 Fed. 977; Last Chance Mining Co. v. Bunker Hill & S. M. & C. Co., 66 C. C. A. 299, 303, 131 Fed. 579; U. S. Rev. St. § 2322 (U. S. Comp. St. § 4618). These allegations of the declaration, so far as they concern matters of fact, cannot be treated as admitted for the purposes of this decision in view of the defendant's answer in abatement. That answer in effect avers possession and a bona fide claim of title by the defendant. It asserts possession and title directly adverse to the like claims by the plaintiff. At the lowest its averments are sufficient to show possession of that portion of the vein which has been actually worked by the defendant and from which the ore sued for has been extracted. Hunnicutt v. Peyton, 102 U. S. 333, 368, 26 L. Ed. 113; Montana Mining Co. v. St. Louis Mining & Milling Co., 204 U. S. 204, 216-218, 27 Sup. Ct. 254, 51 L. Ed. 444. It would be too narrow a construction of the answer in abatement to interpret it as not a denial and therefore an admission of the plaintiff's title to the ore and to the veins from which it came and the plaintiff's actual possession thereof. [2] It seems to be settled in mining law that title and possession of the surface of land prima facie carries ownership and possession of all beneath the surface, and that such presumption as to minerals may be overthrown by proof that such mineral is a part of a vein apexing in land or claim belonging to some one else. But that is matter of defense. Lawson v. United States Mining Co., 207 U. S. 1, 8, 28 Sup. Ct. 15, 52 L. Ed. 65. See Iron Silver Mining Co. v. Cheesman, 116 U. S. 529, 6 Sup. St. 481, 29 L. Ed. 712; Del Monte Mining & Milling Co. v. Last Chance Mining & Milling Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72. [3] The record presents a cause arising out of a bona fide adversary dispute as to the title to real estate where the primary question involved is the title. That is the grav. amen of the action. The plaintiff on the one side and the defendant on the other each asserts title to real estate. The settlement of that dispute will determine the title to the ore. The only way in which title to the ore can be decided is by settling the dispute as to the title to the land. The action in its essential feature concerns title to real es[1] The allegations of the declaration ap- tate and that alone. The title to the personpear to be sufficient under general principles al property is incidental to that main factor of mining law to show title in the plaintiff to and will follow necessarily from the adjudithe veins or lodes from which the defendant cation of the land title. Where the defendis alleged to have taken ore. The ownership ant is in adverse possession of the realty unand possession of a vein or ore at the surfaceder a bona fide claim of title, authorities hold Both the plaintiff and the defendant being nonresidents of this commonwealth, considerations which might be pertinent in actions between our own citizens are laid on one side. that the thing severed becomes his property, | Rogers v. Woodbury, 15 Pick. 156, the issues so that the owner of the land cannot main-made by the pleadings did not involve title to tain trover therefor but must resort to his land. remedy for possession. Lehigh Zinc & Iron Co. v. New Jersey Zinc & Iron Co., 55 N. J. Law, 350, 357, 26 Atl. 920; Bigelow v. Jones, 10 Pick. 161; Duppa v. Mayo, 1 Saund. 285. See R. L. c. 179, § 12. Some cases seemingly assume that it is merely a question of pleading and that, if the cause of action is technically stated in trover or conversion and does not include an averment of injury to realty as a cause of [4] The owner of land may waive the tres-action, then the action is transitory in its pass and, affirming the conversion, sue, in nature. United States v. Ute Coal & Coke an action for money had and received, one Co.. 85 C. C. A. 302, 158 Fed. 30; Montana who severs wood, gravel or other parts of the Mining Co. v. St. Louis Mining & Milling Co., realty from his land and transforms it into 105 C. C. A. 343, 183 Fed. 51. The difficulty, money. Jones v. Hoar, 5 Pick. 290; Gilmore however, is more fundamental than one of v. Wilbur, 12 Pick. 120, 22 Am. Dec. 410; pleading. Here, aş in most cases, the court Riley v. Boston Water Power Co., 11 Cush. must look through form to substance. The 11; Phillips v. Bowers, 7 Gray, 21; Ander- inquiry is whether in its essence the real son v. Todesca, 214 Mass. 102, 100 N. E. 1068. and decisive point at issue between the parIt has been decided, however, that he can do ties is a genuine controversy as to the title this only when the title to the land is not in to land, touching which their respective condispute between the parties. Where there is tentions are directly adversary. If the cause honest controversy whether the plaintiff or of action is in truth based upon such a conthe defendant is owner of the title, or where troversy, then it is not a transitory action. the owner has been disseized, then an action The distinction between local and transitory for money had and received cannot be main-actions is not fanciful or technical. It is tained for severed wood or other realty. Mil-founded on a keen sense of justice. An acler v. Miller, 7 Pick. 136, 19 Am. Dec. 264;tion at law involving essential characteristics Bigelow v. Jones, 10 Pick. 161; Brigham v. Winchester, 6 Metc. 460. These cases were cited with approval in Pickman v. Trinity Church, 123 Mass. 1, 25 Am. Rep. 1. It there was said at pages 5 and 6 of 123 Mass. (25 Am. Rep. 1) that "The law is indeed settled that such a title [that is, the title to real estate] cannot be tried in an action for money had and received." That rule "does not prevent an action for money had and received in many cases which require an investigation of title. ** The reasons upon which the rule is founded apply only when the parties to the suit claim the land by adverse titles." of land ordinarily can be tried with a stronger likelihood of ascertaining the truth and doing right between the parties in a jurisdiction where the land is situated than in a foreign state. In the vicinity the nature of the land can be understood, the evidence bearing upon its title be conveniently presented, its properties and adaptability for valuable use comprehended, the elements of damage to it ascertained, its essential features recognized, and their accurate worth established in every and in all respects much better than at a distance. See British South Africa Co. v. Companhia de Mocambique, [1893] A. C. 602. The ground is especially firm, when the fundamental issue relates to such complicated real estate law as that pertaining to mines, for holding that an action will not be entertained by a court of a jurisdiction other than that where land lies. While the reasons according to which a real action is held to be local rather than transitory are largely historical (Allin v. Conn. River Lumber Co., 150 Mass. 560, 23 N. E. 581, 6 L. R. A. 416), there is a strong practical sense for that rule This is in substance the contention of the as applied to claims concerning the title to present defendant according to its answer in abatement. The case at bar appears on thislar in its ultimate aspects to that here urged, mines. It was said, respecting a claim simirecord to be one where the parties as be-in Ophir Silver Min. Co. v. Superior Court, tween themselves are at issue concerning ad- 147 Cal. 467, at page 478, 82 Pac. 70, at page versary titles to the same land. The decision of that issue will put an end to their controversy. This last statement is precisely applicable to the facts here disclosed. In Boston v. Binney, 11 Pick. 1, 9 (22 Am. Dec. 353), are found these words: "It is said that a party injured may waive the tort and maintain assumpsit. But the defendants have a right to say to the plaintiffs, "There has been no tort; there is nothing to waive; the land is mine, not yours.'" 74 (3 Ann. Cas. 340), that "The trial of the questions necessarily arisThere is nothing discordant with these ing in such a case would call for the testimony views in Parks v. Loomis, 6 Gray, 467, where not only of scientific experts but of many practhe defendant did not claim title to the land, ground and been through all the tunnels, drifts, tical experts (miners) who had examined the and as between the parties to that action the etc., by means of which the alleged identity of title to the land was "collateral and inciden- the croppings in one claim and the ore found tal." The same is true of Schulenberg v. in the other could be supported or disproved. Harriman, 21 Wall. 44, 22 L. Ed. 551. In A somewhat extensive and varied experience in (128 N.E.) the trial of such issues in the mining litiga- These words of Chief Justice Beatty gain common. Other difficulties in assuming jurisdiction We do not regard the recent decision of to that of the plaintiff and that there was cision rests, the allegation in the declaration, [6] All these considerations lead to the [7] We are of opinion that this result vio- Atchison, Topeka & Santa Fé R. Co. v. Vosburg, 238 U. S. 56, 35 Sup. Ct. 675, 59 L. Ed. 1199, L. R. A. 1915E, 953; Duane v. Mer- chants' Legal Stamp Co., 231 Mass. 113, 127, 128, 120 N. E. 370. In the decision of this case principles of general law have been fol- lowed and applied. No discriminatory rule has been invoked not bearing equally upon every litigant similarly situated. The plaintiff has been denied no right es- tablished by article 4, § 2, of the Constitution of the United States, which affords citizens [5] The principle prevails generally that transitory actions will not be entertained to recover money damages as for the conversion of personal property where the dispute at bot- tom is one concerning the title to land, but that under such circumstances the parties will be relegated to courts vested with jurisdiction to try the title to the land as a local action. Downs v. Finnegan, 58 Minn. 112; Parks v. Morris, Layfield & Co., 63 W. Va. 51, 56, 57, 59 S. E. 753; Brown v. Caldwell, 10 Serg. & R. 114, 115, 13 Am. Dec. 660; Thomas v. Hukill, 131 Pa. St. 298, 303, 18 Atl. 875; Lindsley v. Union Silver Star Mining Co., 26 Wash. 301, 66 Pac. 382; Mullins Lumber Co. v. Williamson & Brown Land & Lumber Co., 167 C. C. A. 21, 255 Fed. 645, 647; Pey- It was assumed in Tyson v. McGuineas, 25 all the privileges and immunities of citizens in Wis. 656, 661, that, if the defendant in an the several states.'" Blake v. McClung, 172 action for converting lumber by cutting trees U. S. 239, 259, 19 Sup. Ct. 165, 173 (43 L. on the land of the plaintiff raised a genuine Ed. 432); Western Turf Ass'n v. Greenberg, question as to the title of the land, the ac- 204 U. S. 359, 363, 27 Sup. Ct. 384, 51 L. Ed. tion would be local and not transitory. Dif-520; Selover, Bates & Co. v. Walsh, 226 U. S. 112, 126, 33 Sup. Ct. 69, 57 L. Ed. 146. ferent considerations might arise if it was apparent that the controversy as to title was feigned and not well founded. Moret v. Ma- son, 106 Mich. 340, 64 N. W. 193. We are not able to find anything essentially at variance with this conclusion in Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 L. |