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calm, It did not carry extralateral rights do and paid for; and the patent was dated Aufined by extending the common end llne be gust 12, 1872. tween the two surface locations, where such

During the pendency of the patent procommon line, described as crossing the lode, was established by the patent surveys as the ceedings a conflict arose as to a segment of result of an adverse proceeding in the Land ground lying at the north end of the Pio Ollice, and a compromise agreement with re neer, and at the south end of the Kennedy. spect thereto entered into by the immediate This controversy was subsequently adjusted predecessors in title of such proprietors, who by an agreement between the then owners succeeded to the interests of their predeces of the two properties. Both parties had sors with a knowledge of the boundary line sunk working shafts, the openings of which so determined.

did not start at the apex, but each inter

sected the vein, and all the workings of (Nos. 49, 58.)

both were on this vein. The vein on its Argued May 1, 1902. Ordered for reargu Silva mining claim belonging to the Ken.

downward course passed underneath the ment before full bench October 27, 1902. nedy Mining & Milling Company, located Reargued December 10, 11, 1902. Decid and patented on another vein, which had ed March 9, 1903.

its apex within the Silva ground. This

Silva ground was patented to the Kennedy N ERROR to the Supreme Court of the Mining & Milling Company, February 6, which affirmed a judgment of the trial in October, 1892. court in favor of plaintiff in an action to The patent contained this reservation: recover damages for the taking of ore by de “That the premises hereby granted, with fendant from land alleged to belong to the the exception of the surface, may be enplaintiff. Affirmed.

tered by the proprietor of any other vein, See same case below, 131 Cal. 15, 63 Pac. lode, or ledge, the top or apex of which lies 148.

outside of the boundary of said granted

premises, should the same in its dip be Statement by Mr. Chief Justice Fuller: found to penetrate, intersect, or extend into

This was an action for damages for the said premises, for the purpose of extracting value of ore alleged to have been taken by and removing the ore from such other vein, the Kennedy Mining, & Milling Company lode, or ledge.". from ground belonging to the Argonaut The ore in dispute, although taken from Mining Company, situated in Amador the Pioneer-Kennedy vein, was south of the county, California. The Kennedy Mining Kennedy south end boundary, as shown by & Milling Company denied taking any ore its patent, and the Kennedy Mining & Mill. or gold-bearing rock which was the prop: ing Company did not assert any right to it erty of the Argonaut Mining Company, and by virtue of its ownership of the Kennedy averred that it was the owner of the vein mine. The ore, though taken from beneath or lode from which the rock was taken. The the surface of the Silva location, was taken case was submitted to the trial court on an from the discovery lode of the Pioneer lo agreed statement of facts, and resulted in a cation, which was the only lode that had its judgment in plaintiff's favor, which judg: apex within that location. It entered them ment was affirmed by the supreme court of location near the middle point of the south.. California. 131 Cal. 15, 63 Pac. 148. ern end line, and ran northerly through the Writ of error was then allowed, and each location in a direction practically parallel party docketed the case in this court, but to the side lines, through the center of the the record was only printed in No. 49. northern end line.

The parties are coterminous mining pro- Plaintiff in error admitted the ownership prietors upon the same vein or lode, the top by the Argonaut Mining Company of the or apex of which passes through the Pio Pioneer mine, and that the lode' had its neer location, belonging to the Argonaut apex within its surface location, but denied company, into the Kennedy location, belong that the quartz taken by it from that lode ing to the Kennedy Mining & Milling Com- was within that location, on the ground pany.

that because of non-parallelism of the end A certain map of the Pioneer and Ken- lines of the Pioneer, it carried no extralatnedy mining claims was made part of the eral rights; and that if the court could, as findings of fact, but the supreme court of matter of law, construct for it parallel end California made use of a diagram simplified lines, the southerly end line being the base from that exhibit, which is as follows: line from which the location was projected, [See opposite page.]

the parallel would be made by extending the The common boundary is the line A-B, northern end line in a direction parallel to crossing the lode at the point marked 1 on the direction of the southerly end line. this diagram. The line A-B-B' is this end The supreme court of California held that line produced indefinitely in the direction the Argonaut company was entitled to all of the dip or downward course of the vein. the rights which would attach under the

The Kennedy mine was entered, and pay act of 1866, and to any additional rights ment made in November, 1871, and the pat- which inured under the act of 1872; that ent was issued July 29, 1872.

the act of 1866 did not require parallel end The Pioneer was located under the law of lines, and the failure to so parallel them in 1866; on February 23, 1872, it was entered 'the Pioneer location did not deprive that

claim of extralateral rights; that the ex. joyment of all the surface included within tralateral rights on lodes located under the the lines of their locations, and of all veins, act of 1866, where end lines were not paral- lodes, and ledges throughout their entire lel, were to be defined by drawing lines at depth, the top or apex of which lies inside right angles to the general course of the of such surface lines extended downward lode, at the extreme points of the lode with vertically, although such veins, lodes, or in the location; that the contention of ledges may so far depart from a perpenplaintiff in error, that because the descrip. dicular in their course downward as to ex tion in the Pioneer patent commenced at tend outside the vertical side lines of said the south end of the claim, and the south surface locations: Provided, That their end line was first run, the inequalities aris- right of possession to such outside parts of ing through diverging end lines should be said veins or ledges shall be confined to adjusted by drawing a produced line from such portions thereof as lie between verti1 to 6 in the diagram, parallel to the pro- cal planes drawn downward as aforesaid, duced south end line from 3 to 5 in the dia- through the end lines of their locations, so gram, could not be sustained.

continued in their own direction that such The ore bodies in controversy were south planes will intersect such exterior parts of of the northern end line plane of the Pio- said veins or ledges.”

as made by agreement the boundary line between it and the Kennedy mining Messrs. John Garber, John M. claim, and also within the extralateral right Wright, and Byron Waters for plaintiff in planes constructed at right angles to the error on original argument general course of the lode through the ex- Messrs. Curtis H. Lindley, . Henry treme points of the lode within the loca- Eickhoff, and W. J. McGee for defendant in tion.

error. The act of July 26, 1866 (14 Stat. at L. Messrs. John Garber and John M. 251, chap. 262), provided that patentees Wright for plaintiff in error on rearguthereunder should have “the right to follow ment. such vein*or lode with its dips, angles, and Mr. Curtis A. Lindley for defendant variations to any depth, although it may in error. enter the land adjoining, which land adjoin. ing shall be sold subject to this condition." Mr. Chief Justice Fuller delivered the ($ 2.)

opinion of the court: The act of May 10, 1872 (17 Stat, at L. Plaintiff in error contended in the courts 91, chap. 152, $$ 2, 3),1 provided that the below that, by force of $8 2 and 3 of the act end lines of each claim should be parallel of Congress of May 10, 1872, title to the to each other, and that locators should have ore in question passed to it through its "he exclusive right of possession and en-'patent to the Silva mine, and did not pass

10. 8. Comp. St. 1901, p. 1425.

neer

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to the Pioneer through its patent, because entered and paid for the mining claim or the end lines of the latter were rot parallel premises known as the Silva quartz lode to each other.

mining claim. The defendant in error contended that its It thus appears that a common end line title was not acquired under the act of was established by the patent surveys, 1872, but under the act of July 26, 1866, which described this lineas crossing the which did not require parallelism of end lode, and that the Kennedy Mining & Mill. lines.

ing Company purchased with the knowledge In these circumstances it is held by a ma- that this was a common boundary estabjority of the court that a Federal question lished as such by the patents many, years was so presented that we have jurisdiction. prior to its purchase. The common bound* It was stated in the agreed statement of ary A B, crossing the lode, was fixed as the facts that the Kennedy Mining Company result of an adverse proceeding in the land on October 13, 1870, filed its application for office, and the agreement entered into with patent in the United States land office at respect thereof was as set forth in the Sacramento, California, and that a diagram agreed statement of facts. of the preinises for which patent was ap- We think, then, that the Kennedy Minplied for was posted in that land office Oc- ing & Milling Company is estopped from astober 15, 1870; that on January 13, 1871, serting any right to the ore body in dispute, the Pioneer Gold & Silver Mining Com- which it was also agreed was extracted by pany, the immediate predecessor in title of the Kennedy Mining & Milling Company the Argonaut company, filed its application from the vein south of the vertical plane for patent in the same land office, and a drawn through the line A B produced in the diagram of the ground it claimed, and for direction B', and which was the same vein which patent was sought, was posted in the which had its top or apex in the Kennedy office of the register of the land office, and quartz mine, and in the Pioneer quartz upon the claim; that there was a surface mine, and was continuous from the apex of conflict as to area claimed by the respective both properties downward to the lowest applicants for patent, as shown by the pro- depths. The boundary line agreed on fixed ceedings in the land office, the conflict oc- the rights of the parties in length on the curring on the northern end of the Pioneer lode, and so involved the extralateral right mine as applied for, and the southern end as between them. of the Kennedy mine as applied for; that The Argonaut Mining Company and the on said January 13, the register and receiv. Kennedy Mining & Milling Company sucer of the land office made and entered an ceeded to the interests of the Pioneer comorder in respect of the adverse claim of the pany and the original Kennedy company, Pioneer, directing proceedings in the case with a knowledge of the boundary line so of the Kennedy mining company to be sus determined, and both parties were concludpended so far as affecting the piece or pared by it and the results following there cel of land described in the order; that on from. Richmond Min. Co. v. Eureka Min. February 20, 1871, the Pioneer Gold & Sil. Co. 103 U. S. 839, 846, 28 L. ed. 557, 560. ver Mining Company and the Kennedy Min- Apart from the questions discussed by ing Company entered into a compromise the supreme court of California, we are of agreement, in which each of the parties opinion that the judgment must be affirmed withdrew from their applications their on the foregoing ground. claim to a certain portion of the surface Judgment affirmed. ground in dispute; and which provided that "the dividing line between the claims of the Mr. Justice White and Mr. Justice Morespective companies shall be one drawn at Kenna dissented. right angles with the general course of the lode or lead, and surface ground thereto appurtenant, and at the point hereinbefore

(189 U. S. 363) designated.” The line thus agreed upon UNION STEAMBOAT COMPANY, Claim. was the line from A to B in the foregoing ant of the Propeller New York, Petidiagram. Thereafter surveys for the pat

tioner. ent for the Kennedy mine and for the Pioneer mine were duly made, and patent was ERIE & WESTERN TRANSPORTATION issued to the Kennedy Mining Company,

COMPANY et al. July 29, 1872, and to the Pioneer Gold & Silver Mining Company, August 12, 1872. Appeal-construction of mandate decree The Argonaut company became the owner in conformity with opinion statutes-re. of the Pioneer mine, July 3, 1893, by a peal by implication. deed from the Pioneer Gold & Silver Mining Company, and the Kennedy Mining & 1. A mandate from the Supreme Court of the Milling Company became the owner of the United States, which directs the entry of a Kennedy mine by conveyance from the

decree in conformity with its opinion divid. Kennedy Mining Company, dated December ing the damages caused in a collision between 25, 1886; and the Kennedy Mining & Mill

vessels held in fault, but leaving undisturbed

a judgment obtained by the owners of the ing Company became the owner of the Silva

cargo against one of such vessels for the full quartz mine, February 6, 1893, by a patent amount of their damages, does not require issued to it on that day, which recited that that such decree provide for the recoupment that company on February 13, 1892, duly by the latter vessel of one half of the dam

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ages to such cargo from the moiety of dam. I the same is hereby reversed; the claimant ages awarded to the other vessel.

of the Conemaugh and the claimant of the 2 The rate of interest on Judgments and de New York each to pay one half of all costs

crees, fixed in Michigan at 7 per cent by a in this cause. statute originally enacted in 1838 and carried

“And that the said Erie & Western forward in the various compilations of the statutes of that state, was not changed by a

Transportation Company recover against statute enacted in 1891, which, according to the Union Steamboat Company $276.75 for Its title, was one to regulate the interest of one half of the costs herein expended, and money on account and interest on money have execution therefor. judgments, but which actually provided only “And it is further ordered that this cause for the reduction of the rate of "interest of be and the same is hereby remanded to the money" to 6 per cent, and which

was district court of the United States for the amended by the act of September 22, 1899; eastern district of Michigan, with direction, by a further reduction of such rate to 5 per to enter a decree in conformity with the cent

opinion of this court, with interest from [No. 97.)

July 3, 1896, until paid, at the same rate

per annum that decrees bear in the courts Argued December 1, 2, 1902. Decided of the state of Michigan." March 9, 1903.

Upon the return of the case to the dis

trict court, that court made its decree in faON N WRIT of Certiorari to the United vor of the several intervening underwriters

States Circuit Court of Appeals for the upon the cargo for their respective claims, Sixth Circuit to review a decree which af. with interest at 7 per cent from July 3, firmed a decree of the District Court for 1896. The court also decreed that the own. the Eastern District of Michigan entered in ers of the cargo and their underwriters, pursuance of a mandate from the Supreme other than the interveners, by reason of the Court of the United States. Affirmed. collision, sustained damages in the sum of

See same case below, 47 C. C. A. 232, 108 $19,627.67, "for which the said Erie & Fed. 102.

Western Transportation Company appears

in this suit as trustee only.” And it was Statement by Mr. Justice McKenna: adjudged and decreed "that said trustee re

The facts of this case are fully set out in cover from the said Union Steamboat Comprevious decisions of this court. 175 U. S. pany and its surety, in trust, for the said 187, 44 L. ed. 126, 20 Sup. Ct. Rep. 67; 178 owners of and underwriters on cargo, the U. S. 317, 44 L. ed. 1084, 20 Sup. Ct. Rep. aforesaid sum of $19,627.67, with interest 804.

thereon at the rate of 7 per cent per annum The steamer Conemaugh, owned by re- from July 3, 1896, until paid, and that it spondents, and the propeller New York, have execution therefor.” owned by the petitioner, collided in the De- Judgment was also given in favor of the troit river, November 11, 1891. The Cone Conemaugh for one half of the damages of maugh for herself, and as bailee of her car. that steamer, less one half of the damages go, filed a libel against the New York for of the New York, with interest. the sum of $70,000 damages in the district At the hearing in the district court on court for the eastern district of Michigan. the return of the mandate the petitioner Subsequently, certain underwriters of the "submitted a decree to the effect that both cargo of the Conemaugh filed an interven- vessels were in fault for the collision, and ing petition in the cause. Subsequently, that the damage resulting therefrom be the New York, for damages sustained by equally divided between the Erie & Western her, filed a cross libel against the Cone Transportation Company, owner of the maugh for $3,000 damages, sustained by Conemaugh, and the Union Steamboat Comthe New York in the collision. No answer pany, owner of the New York; that such was filed to this cross libel.

damages amounted in all to the sum of $74,The district court held the New York to 319.49, of which certain intervening underhave been solely in fault, and passed a de writers of the cargo were entitled to, and cree against her. The circuit court of ap- recovered from the steamboat company, peals for the sixth circuit reversed the de. $19,841.56; that the transportation com. cree of the district court on the ground that pany, as trustees for the underwriters and the Conemaugh had been solely in fault, and owners of the cargo of the Conemaugh, not adjudged that her owners pay the owners intervening, suffered damages in the sum of the New York, petitioners here, the dam- of $19,627.67; that, as owner of the propelages sustained by the New York. The case ler, it had suffered damages in the sum of was then brought here by certiorari, and $30,508.46, aggregating the sum of $50,both vessels were pronounced to have been 136.13; that the transportation company in fault. The decrees of the lower courts recover of the petitioner one

half of were reversed and the damages caused by $50,136.13, less one half the sum of $19,the collision ordered to be divided. The 841.56, decreed to be paid to the intervening following is the material part of the judg. petitioners, etc. ment and mandate:

“The court, however, declined to enter "On consideration whereof, it is now or this decree; refused to permit the petitiondered, adjudged, and decreed by this court er to recoup any sum that it might pay*to that the decree of the said United States the owners or underwriters of the cargo of circuit court of appeals in the cause be and the Conemaugh, from any sum that was due

per cent."

veners.

368

from the steamboat company for damages But the controversy as presented by the sustained by the Conemaugh, so that such pleadings was not only between the Cone company was compelled to pay of the total maugh and the New York, but between the damages about 76 per cent instead of 50 latter and cargo, and this court did not dis

178 U. os. 317, 318, 44 L. ed. turb the judgment obtained by the cargo 1084, 20 Sup. Ct. Rep. 904.

owners against the New York. Explaining The action of the district court was af- our decision we said: firmed by the circuit court of appeals (47 "The only questions decided were as to C. C. A. 232, 108 Fed. 102), and the case the respective faults of the two vessels, and was then brought here.

the claim of the underwriters upon the

Conemaugh's cargo, that they were entitled Messrs. C. E. Kremer, F. C. Harvey, to a recovery to the full amount of their and W. O. Johnson for petitioner.

damages against the New York, notwithMessrs. Harvey D. Goulder, 8. H. standing the Conemaugh was also in fault Holding, and F. 8. Masten for respondents. for the collision. This claim was sustained, Mr. Wilhelmus Mynderse for inter- and directions given to enter a decree in

conformity to the opinion of this court.” Mr. F. H. Canfield for underwriters. The decree against it, the New York now

seeks to shift in part to the owners of the Mr. Justice McKenna delivered the Conemaugh; indeed, not to shift it, but viropinion of the court:

tually to vacate it and put the claims of There is one main and several subsidiary the cargo owners into controversy with the propositions asserted by petitioner. The Conemaugh. This, we think, should not be main proposition is that in all cases of col. done. The cargo owners' judgments were lision, if both vessels are in fault, the dam- affirmed by this court, as we have seen, and ages resulting are to be equally divided be they are none the less entitled to them untween the owners of the vessels.

der the circumstances of this record, alThe subsidiary propositions are that if though as to some of them they were repone of the offending vessels pay more than resented by the Conemaugh. The New half the damages to a third or innocent York, having been in fault, was responsiparty she may recoup or set off such excess ble to the cargo, and if, as between her and against any claim for damages which the the Conemaugh, she have a claim for re other vessel may have without bringing in coupment, the way is open to recover it. the other vessel as a codefendant under ad- We think that the district court rightly miralty rule 59, or filing other pleadings construed our mandate. than an answer to the libel. In such case 2. Our mandate directed that a decree be it is insisted that all the parties are before entered "with interest from July 3, 1896, the court. And further, that it is not nec until paid at the same rate per annum that essary upon an appeal to the circuit court decrees bear in the courts of the state of of appeals, or to this court, that the plead. Michigan.” The district court and the cir. ings show a demand for recoupment,—the cuit court of appeals found the rate to be 7 hearing in both courts being a trial de novo. per cent. This is assigned as error.

The main proposition asserted may be The statute which provided for interest conceded. It was the basis of our decision on judgments and decrees in Michigan at 7 when the case was here on the first certio- per cent was enacted in 1838, and has been rari and determined the judgment rendered. carried forward with amendments into the 175 U. S. 187, 44 L. ed. 126, 20 Sup. Ct. various compilations of the statutes, and Rep. 67. And if under some circumstances appears as g 4865, Compiled Laws of Michithe other propositions could be applied gan of 1897. It is as follows: (which is not necessary to decide), they "Interest may be allowed and received cannot be under the circumstances of this upon all judgments at law, for the recovery

The petitioner made no claim for. a of any sums of money, and upon all decrees division of damages upon the original trial in chancery for the payment of any sums of of the case. It asserted its own innocence money, whatever may be the form or cause and the entire guilt of the Conemaugh, and of action or suit in which such judgment or submitted that issue for judgment. It decree shall be rendered or made; and such sought to escape all liability, not to divide interest may be collected on execution, at liability, and on the issues hence arising the rate of 7 per centum per annum: Projudgments were entered against it, not only vided, That on a judgment rendered or any for the Conemaugh, but for the cargo own written instrument, having a different rate, ers, some having intervened, others still be the interest shall be computed at the rate ing represented by the Conemaugh. Peti- specified in such instrument not exceeding tioners maintained the same attitude in the 10 per centum.”. circuit court of appeals and in this court. This section, it is insisted by appellants, After the decision in this court it changed was repealed by a statute passed in 1891, its attitude, and for justification says it which statute was entitled "An Act to Reg. had no earlier opportunity to do so. Itulate the Interest of Money on Account, In. urges that the decision of the district court terest on Money Judgments, Verdicts,” etc., was completely against it; the decision of and provided as follows: the circuit court completely for it; and that "Sec. I. The people of the state of Michi. the judgment from which its right of re- gan enact: That the interest of money coupment arose was rendered by this court. shall be at the rate of $6 upon $100 for a

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