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See same case below, C. C. A., pressly required in writing, no claim shall 261 Fed. 841.

The facts are stated in the opinion. Mr. John Lee Webster argued the cause, and, with Mr. Hiram Chase, filed a brief for appellant.

Assistant Attorney General Garnett
argued the cause, and, with Special
Assistant to the Attorney General Under-
wood, filed a brief for appellee.

Mr. Oscar C. Anderson, by special
leave, argued the cause, and, with Mr.
Charles J. Kappler, filed a brief for the
Omaha Tribe of Indians.

For contentions of counsel, see their
briefs as reported in Chase v. United
States, ante, 801.

Mr. Justice McKenna delivered the opinion of the court:

be made therefor, such contractors may recover from the government for the extra work (including the loss to them while waiting for the government engineer to lo cate such work) of excavating limestone rock and limestone bedrock in such channel, pursuant to the order of the government engineer who, over the contractors' protest that such materials were not included in the contract, and in opposition to their request for the fixing of an extra price, insisted upon the removal of such materials, stating that if the contractors did not remove the same they would be declared in default, that the work would be taken from them, be done and charged to them, and be paid for from the retained percentages for the work already performed, and if the percentages were not sufficient for that purpose they and their bondsmen would be proceeded against, since the conduct of such officer was repelsubmission to his orders, with its conselent of appeal or of any alternative but

quences.

[For other cases, see United States, VI. b, in

Digest Sup. Ct. 1908.]

This case was argued and submitted with the Chase Case, No. 242 [256 U. S. 1, ante, 801, 41 Sup. Ct. Rep. 417]. It is a suit by Mary Gilpin, by her next friend, to have adjudged to her a right to an allotment of lands in the Omaha Reservation, she being an Omaha In- Argued March 22 and 23, 1921. Decided dian. The right is based on the same treaties and acts of Congress as those passed upon in the Chase Case, and the

effect of the Act of May 11, 1912 [37
Stat. at L. 111, chap. 121], repealing
the acts that of August 7, 1882 [22
Stat. at L. 341, chap. 434], and that of
March 3, 1893 [27 Stat. at L. 630, chap.
209].

The decree of the district court was
adverse to her right, and this decree
was affirmed by the circuit court of ap-
peals. · C. C. A. —, 261 Fed. 841.

For the reasons stated in the opinion in the Chase Case, the decree of the Circuit Court of Appeals is affirmed.

UNITED STATES, Appt.,

V.

L. P. & J. A. SMITH.

[No. 253.]

April 11, 1921.

APPEAL from the Court of Claims to
review a judgment against the
United States for extra work under a
government contract. Affirmed.
See same case below, 54 Ct. Cl. 119.
The facts are stated in the opinion.
Assistant Attorney General Davis ar-
gued the cause, and, with Special Assist-
ant to the Attorney General Hearn, filed
a brief for appellant:

Whenever the contract covering the improvement to be made contains provisions relating to change of project and claims for extra work which are, in effect, the same as the provisions in the contract between the parties here, then, in the event such provisions have not been complied with, payment for extra work performed can be secured only in the following cases:

(a) When such provisions have been waived by an agent having the power to waive the same.

Barlow v. United States, 184 U. S. 123; 46 L. ed. 463, 22 Sup. Ct. Rep. 468.

(See S. C. Reporter's ed. 11-17.) United States - contracts — extra work. Despite provisions in a contract with the United States for excavating "sand, gravel, and boulders, all in unknown quantities," from a ship channel, which make final the decision of the government engineer officer in charge as to quality and quantity of work, require the contractors to observe his instructions, and provide that modifications of the work in character and quality, whether of labor or materials, are to be agreed upon in writ- Christie v. United States, 237 U. S. ing. and, unless so agreed upon or ex-231, 59 L. ed. 933, 35 Sup. Ct. Rep. 565.

(b) When there has been a breach of warranty by the government relating to a matter necessary to be done in the performance of the contract, by reason of which breach the extra work is required to be performed.

256

(c) When the extra work is made necessary or procured through the fraud or bad faith of an agent of the government, in the exercise of expressly delegated powers.

Ripley v. United States, 223 U. S. 695, 56 L. ed. 614, 32 Sup. Ct. Rep. 352.

The contract was made subject to the approval of the Chief of Engineers. No waiver of its provisions could have been made except by the Chief of Engineers. Hawkins v. United States, 96 U. S. 689, 24 L. ed. 607; Barlow v. United States, 184 U. S. 123, 46 L. ed. 463, 22 Sup. Ct. Rep. 468; Plumley v. United States, 226 U. S. 545, 57 L. ed. 342, 33 Sup. Ct. Rep. 139.

Fraud and bad faith, if to be the basis of a recovery, must be specifically pleaded.

New Albany v. Burke, 11 Wall. 96, 106, 20 L. ed. 155, 159; Kent v. Lake Superior Ship Canal R. & Iron Co. 144 U. S. 75, 91, 36 L. ed. 352, 358, 12 Sup. Ct. Rep. 650; Evers v. Watson, 156 U. S. 527, 39 L. ed. 520, 15 Sup. Ct. Rep. 430; Fogg v. Blair, 139 U. S. 118, 127, 35 L. ed. 104, 107, 11 Sup. Ct. Rep. 476; United States v. Gleason, 175 U. S. 588, 44 L. ed. 284, 20 Sup. Ct. Rep. 228.

Mr. John E. Morley argued the cause, and, with Messrs. Rufus S. Day and Roscoe M. Ewing, filed a brief for appellees:

Where a material representation is made, either in the contract or in the specifications, which form a part of the contract, and such representation turns out to be untrue and is deceptive and misleading to the bidder who enters into the contract, the contractor has the right to recover for the loss sustained by him on account of such misrepresentation, such recovery taking the form of an allowance of compensation for the additional work involved.

United States v. Utah, N. & C. Stage Co. 199 U. S. 414, 50 L. ed. 251, 26 Sup. Ct. Rep. 69; Hollerbach v. United States, 233 U. S. 165, 58 L. ed. 898, 34 Sup. Ct. Rep. 553; Christie v. United States, 237 U. S. 234, 59 L. ed. 933, 35 Sup. Ct. Rep. 565; United States v. Spearin, 248 U. S. 132, 63 L. ed. 166, 39 Sup. Ct. Rep. 59; United States v. Atlantic Dredging Co. 253 U. S. 1, 64 L. ed. 735, 40 Sup. Ct. Rep. 423.

The decision of Colonel Lydecker, exercised capriciously, nonrationally, and tyrannically, and without adequate determining principle or being founded in the nature of things, is not an exercise of discretion within the provision of the

contract that the decision of the engineer officer in charge, as to quality and quantity, shall be final.

Martinsburg & P. R. Co. v. March, 114 U. S. 549, 29 L. ed. 255, 5 Sup. Ct. Rep. 1035; Sweeney v. United States, 109 U. S. 618, 27 L. ed. 1053, 3 Sup. Ct. Rep. 344; Kihlberg v. United States, 97 U. S. 398, 24 L. ed. 1106; Barlow v. United States, 184 U. S. 123, 46 L. ed. 463, 22 Sup. Ct. Rep. 468; Ripley v. United States, 223 U. S. 695, 56 L. ed. 614, 32 Sup. Ct. Rep. 352; Saalfield v. United States, 246 U. S. 610, 62 L. ed. 895, 38 Sup. Ct. Rep. 397, Ann. Cas. 1918E, 1.

The award for lost time was properly granted.

United States v. Smith, 94 U. S. 214, 24 L. ed. 115; United States v. Mueller, 113 U. S. 153, 28 L. ed. 946, 5 Sup. Ct. Rep. 380.

A technical pleading is unnecessary. United States v. Behan, 110 U. S. 347, 28 L. ed. 171, 4 Sup. Ct. Rep. 81; Clark v. United States, 95 U. S. 539, 24 L. ed. 518.

Mr. Justice McKenna delivered the opinion of the court:

April 14, 1919, the court of claims rendered a judgment against the United States in favor of L. P. & J. A. Smith (appellees, and we shall so refer to them) for the sum of $119,304.27. review that judgment this appeal is prosecuted.

To

The appellees were a partnership doing business at the times herein stated under the firm name of L. P. & J. A. Smith.

after the submission of proposals for In response to an advertisement, and work at the mouth of the Detroit river, December 31, 1892, by a contract in writing was entered into O. M. Poe, Colonel, Corps of Engineers, United States Army, and appellees, by which the latter agreed to excavate a ship channel 20 and 21 feet deep, located in section 8 of the Detroit river, in accordance with specifications attached to the contract and made a part thereof. They were to receive in full compensation for their work the sum of 18 cents per cubic yard of excavation, scow measure.

The material to be removed was specified to consist "of sand, gravel, and boulders, all in unknown quantities.".

In the season of 1894 there was discovered a natural bed of limestone rock within the boundaries of the excavation called for by the contract, which was not provided for by the contract.

For

the removal of this limestone the United | been paid appellees, leaving due to them
States advertised for bids.
$111,585.97. It is found, besides, that
delays caused by the engineer in charge
resulted in a loss to the appellees of
$7,718.30. For these two sums judg-
ment was rendered.

[15] The L. P. & J. A. Smith Company, a corporation of Ohio, and a successor in interest to L. P. and J. A. Smith, bid on the work. The bid was accepted and a contract was entered into November 9, 1894, by which that company agreed to remove the rock and other material at the price of $2.24 per cubic yard of excavation, bank measure. The contract was completed on or about June 16, 1895.

The contract of December 31, 1892, was extended from time to time by Colonel Lydecker, the engineer in charge of the work, he having succeeded Colonel Poe, to July 1, 1897. In that year he ordered appellees to work at particular spots toward the northerly end of section 8, at certain designated shoals which had been excavated under the contract of November 9, 1894, with the L. P. & J. A. Smith Company.

The court of claims, in a brief memorandum, summarized the elements of liability against the United States, concluding as follows: "We think the right of plaintiffs [the appellees] to recover the price for the work done by them is indisputable."

The United States adduces against the conclusion certain provisions of the specifications, the latter being, as we have seen, part of the contract.

They are too long to quote or even summarize. They are to the effect that the decision of the engineer officer in charge as to quality and quantity of work was final, and that his instructions were required to be observed by the contractor. And further, that modificaAnd certain other officers, one an tions of the work in character and qualassistant engineer, another a subinspec-ity, whether of labor or material, were tor, in charge of the work, insisted upon to be agreed to in writing, and unless locating for appellees the points where so agreed to or expressly required in dredging was to be done.1 writing, no claim should be made therefor.

The material or a large part of the material to be removed from those The contention overlooks the view of points was limestone rock, or limestone the contract entertained by Colonel Lybedrock. Appellees protested and asked decker, and the uselessness of solicitfor the fixing of an extra price for do- ing or expecting any change by him. ing the work. This was refused, and His conduct, to use counsel's descripthey were told that if they did not re- tion, "though perhaps without malice or move the same, they would be declared bad faith in the tortious sense," was redefaulting contractors; that the work pellent of appeal or of any alternative would be taken from them, done and but submission with its consequences. charged to them, and be paid for from And, we think, against the explicit the retained percentages for work al- declaration of the contract of the maready performed, and if the percentages terial to be excavated and its price. were not sufficient for that purpose, The contract provided, in response to they, appellees, and their bondsmen, advertisements [17] and in fulfilment of would be proceeded against. No other bids, for the excavation of a ship chanofficer or officers so told appellees, or nel 20 and 21 feet deep, and that "the insisted that all the material to be re- material to be removed consists of clay, moved was clay, gravel, and boulders.2 sand, gravel, and boulders, all in unA large part of the material arbi-known proportions." To these explicit trarily stated to be clay, gravel, sand, and boulders, was in fact limestone [16] rock and limestone bedrock, and was not the material specified in the contract.

provisions and their contractual force of Colonel Poe, the first engineer officer we may add the judgment and conduct in charge of the work. He realized immediately when a bed of limestone rock was encountered it was not the material

The quantity of material excavated as thus required, and that required by stated in the contract, and without hesthe contract, the findings estimate in de-itation entered into another contract tail and the cost of its excavation in concerning it, and at a price of signifithe sum of $116,760.61, from which was cant contrast,-18 cents per cubic yard, deducted the sum of $5,174.64, that had seow measure, being the price of the first contract, $2.24 per cubic yard of excavation, bank measure, being the price of the second contract.

1 Additional finding upon the mandate of

this court.

2 Additional finding upon the mandate of

this court.

We think the case is within the prin

2582

ciple of Hollerbach v. United States, 233 U. S. 165, 58 L. ed. 898, 34 Sup. Ct. Rep. 533; Christie v. United States, 237 U. S. 234, 59 L. ed. 933, 35 Sup. Ct. Rep. 565; United States v. Spearin, 248 U. S. 132, 63 L. ed. 166, 39 Sup. Ct. Rep. 59; and United States v. Atlantic Dredging Co. 253 U. S. 1, 64 L. ed. 735, 40 Sup. Ct. Rep. 423.

be, where, at the time of the location, there
was
no requirement making a discovery
shaft essential to a valid location.

[For other cases, see Mines, I. d, 2, in Digest
Sup. Ct. 1908.]

[No. 158.]

April 11, 1921.

We concur, therefore, with the dec-ON WRIT of Certiorari to the United laration of the Court of Claims, that "the right" of the appellees "to recover the price for the work done by them is indisputable," including the loss to them while waiting for the engineer "to locate their work."

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Mines extralateral rights veins end or side lines.

apexing 2. The distance of the discovery shafts from the apex of a vein crossing a location at right angles does not affect the right of the discoverer, under U. S. Rev. Stat. § 2322, to follow the vein on its dip downward outside the vertical end lines treated as side lines, on the theory that if the end lines be taken as the side lines, either the vein or discovery was outside the location, with the side lines limited as they should

Note. On intersecting, crossing, or uniting veins-see note to Calhoun Gold Min. Co. v. Ajax Gold Min. Co. 50 L.R.A.

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States Circuit Court of Appeals for the Eighth Circuit to review a decree which reversed a decree of the District Court of the United States for the District of Utah in favor of defendant in a suit to quiet title. On rehearing, decree of Circuit Court of Appeals reI versed and decree of District Court affirmed.1

See same case below, 144 C. C. A. 607, 230 Fed. 553.

The facts are stated in the opinion.

On Petition for Rehearing.

Mr. Justice Holmes delivered the opinion of the court:

This is a suit brought by the respondent to establish its right to a large body of ore found within the lines of the respondent's patent, as it construed that document. The main contest concerned the southwesterly 135.5 feet of the patent as laid out by courses and distances, from which was taken the main body of the ore. At the argument the petitioner's statement was that "practically all the ore in controversy was taken from within this 135.5 foot strip." [25] The decision with regard to that strip was in favor of the petitioner, and as it seemed possible that the respondent would not be able to establish that any appreciable amount of ore was taken from the land belonging to it, and that it might not care to attempt the proof, the questions raised with regard to such ore, if any, were left undecided, according to the usual practice. But the respondent points out that the petitioner has admitted that a small amount of ore, not exceeding $20,047.50 in value, did come from the respondent's land, and presses for a decision concerning its right to that. The motion is put in the form of a petition for rehearing; but the main thing asked, and the only thing for which we see any reason, is that we decide the questions argued but left open by us. That we proceed to do. Nothing that has been decided will be reopened, but leave to file the petition is granted to that single end.

1See also ante, p. 561.

It is not disputed by the respondent, the Conkling Mining Company, that a fissure on its strike crosses the parallel side lines of the petitioner's claims, and on its dip passes beneath the Conkling mining claim in the immediate vicinity of the ore body in dispute, and between vertical planes drawn through the parallel side lines of the petitioner's claims, and continued in their own direction. What is disputed is that this ore body is any part of the vein referred to, known as the Crescent fissure, and that, if it is, the petitioner has any right to treat the end lines of its claims as side lines, and to pursue the vein under ground beyond the vertical planes drawn through those lines.

Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co. 171 U. S. 55, 90, 91, 43 L. ed. 72, 86, 87, 18 Sup. Ct. Rep. 895; Jim Butler Tonopah Min. Co. v. West End Consol. Min. Co. 247 U. S. 450, 453, 62 L. ed. 1207, 1210, 38 Sup. Ct. Rep. 574.

But it is said that when the end lines are determined, they are end lines for all purposes, even if there are different veins running in different directions, having their apexes within the claim. Walrath v. Champion Min. Co. 171 U. S. 293, 43 L. ed. 170, 18 Sup. Ct. Rep. 109, 19 Mor. Min. Rep. 410. And it is argued that there is a presumption that has not been overcome that there was a discovery vein running parallel with the side lines; that this determined the end lines, and that therefore the petitioner got no extralateral rights in the Crescent fissure. The circuit [27] court of appeals, approaching the petitioner's claim as a claim of an exceptional privilege, seems to have attached a weightier burden of proof to it than we are disposed to do. They were not satisfied that the discovery vein which determined what the end lines should be was not some other vein than the Crescent fissure. But we see no substantial evidence that there was another vein. We have the distinct testimony of experts that there was no such, and we agree with the view of the district judge, sustaining the petitioner's extralateral rights. Whether there are other answers to the contention we need not decide. See Jim Butler Tonopah Min. Co. v. West End Consol. Min. Co. 247 U. S. 450, 454, et seq., 62 L. ed. 1207, 1210, 38 Sup. Ct. Rep. 574.

We take up the last question first. The typical case supposed by Rev. Stat. § 2322, Comp. Stat. 4618, 6 Fed. Stat. Anno. 2d ed. p. 523, is that of a claim laid out lengthwise along the strike of a vein. In that case the end lines of the location will limit the extralateral right. But that case is only the simplest illustration of a principle. The general purpose is to give a right to all of the vein [26] included in the surface lines, if there is only one, provided the apex is within the location. It often must happen that the strike of the vein is not known, but must be conjectured at the time of discovery, and that the location is across instead of along the vein. This has been obvious always, and therefore it would be wrong to interpret the words "end lines" narrowly, as meaning the shorter ones in every instance. Those are the end lines that cut across the strike of the vein if it crosses the location. We see no sufficient reason for thinking that because the discoverer has not claimed It is urged that if the end lines be as long a portion of the strike as he taken as the side lines, then the dismight have, he should be deprived of covery shafts, being 400 feet distant even his diminished lateral rights. It from the apex of the Crescent fissure, has been the accepted opinion of this left either the vein or the discovery outcourt for many years that where, as side the location, with the side lines here, the strike of the vein crosses the limited as they should be. But at that location at right angles, its dip may be time there was no requirement making a followed extralaterally, whatever the discovery shaft essential to a valid lodirection in which the length of the location. And in any event, our conclucation may run. If across the strike, as here, the side lines, as it commonly is expressed, become the end lines. Subsequent locators know as well as the original ones that the determining fact is the direction of the strike, not the first discoverer's guess. Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 463, 25 L. ed. 253, 9 Mor. Min. Rep. 607; King v. Amy & S. Consol. Min. Co. 152 U. S. 222, 228, 38 L. ed. 419, 421, 14 Sup. Ct. Rep. 510, 18 Mor. Min. Rep. 76; Del

sion being that the petitioner must be presumed to have discovered the Crescent fissure, however it may have been done, the distance of the shafts does not affect the case.

The only question that remains is whether the ore within the respondent's lines formed part of the Crescent fissure vein. The circuit court of appeals, in view of its opinion upon the last point, made no decision upon this. But the experienced district judge, after careful

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