L BWXFT v. mmvnns. 37
owner of a vein, lode, or ledge, the top or apex of which lies within the
surface lines of his own location, the right to follow that vein downward,
outside of the side lines of his location, and into territory whose sur-
face belongs to another. Involved in their claim is the question whether
there is such a vein as is provided for in that section; a question as to
the right ofentrance. as affected by priority of location and the dip of
the vein. These questions are presented, and, whatever may be the
true answers thereto, it is obvious, from past judicial expressions, that
they cannot be considered as mere sham, or pretended, but as real, sub-
stantial questions. Hence, as questions arising under the laws of the
United States, they present a case cognizable by the court. Mining C0.
v. Lartfnzer Oo., 8 Fed. Rep. 724; Starin v. New York, 115 U. S. 248, 6
Sup. Ct. Rep. 28. As the defendants are entering within the side lines
of complainants property, prima facie they are trespassers; and where
the affidavits, upon an application for a preliminary injunction, are con-
flicting, the rule is to preserve the possession as against such prima facie
trespassers by a preliminary injunction, leaving the question of title to
the property to be established by a suit at law. Temporary injunction
will issue upon the giving of a bond in the sum of $25,000, conditioned
according to law.
SWIFT v. MEYERS et al.
(Circuit Court, D. Oregon. December 24. 1888.)
1. Moivrcaems-Burr T0 Euroncn LrnN——SuMi1oNs-Norton.
A suit to enforce the lien of a mortgage is not one to recover money or dam-
ages only, and therefore the notice inserted in the summons must be accord-
ing to the direction in subdivision 2, § 53, Comp. 1887. .
2. SE&)ME—*-JUDGMENT— OF Siwra Coonr— Conmrnnsr. A·r·rAc1·: m Fannnsn
ounr.
The judgment of a state court may be collaterally questioned or attacked
in a national court sitting in the same state, for a want of jurisdiction over
the subject-matter or of notice to the defendant, the same as if it was a judg-
ment of a court of another state. _
8. Ssmz—Sn1>.v1cn»or Pnoonss-Consmucrrva Snnvror:—PnnsUmrrrou. ‘
A suit to enforce the lien of a mortgage by the sale of the property is in the
nature of a proceeding in rem, and in case the mortgagor or his successor in
interest is a non-resident, or not found, so that he cannot be personally served
with process, in the state, the court may decree a sale of the property on such
substituted or constructive service of process on the mortgagor as the legis-
A lature may provide; but in such case there is no presumption in favor of the
jurisdictionof the court, and, unless the record shows a compliance in all es-
sential particulars with the statute authorizing such service, its decree is null
and void. V
4. Sams. .
A statute of Oregon (Comp. 1887, § 55) provides that if a defendant in a suit
cannot be found, service of the summons may be made by delivering a copy
of the same " to some person of the family, * * at the dwelling-house or
usual place of abode of the defendant. " In a suit to enforce the lien of a
mortgage on property in Linn county, the return of the sheriff showed that
the defendant could not be found, and that a copy of the summons was delivz
ered to a "member" ofthe family, "at his usual place of abode in said [Linn]