as he pleases in its downward course outside [tion. "Our laws have attempted to establish the vertical side lines. But he can pursue a rule by which each claim shall be so many the vein in its depth only outside the vertical feet of the vein, lengthwise of its course, to side lines of his location, for the statute pro- any depth below the surface, although latervides that the "right of possession to such ally its inclination shall carry it ever so far [89] outside parts of such veins or ledges shall from a perpendicular." Flagstaff Silver Minbe confined to such portions thereof as lie be-ing Company v. Tarbet, 98 U." S. 463, 468 tween vertical planes drawn downward as [25: 253, 255]. above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or lodes."

These conclusions find support in the following decisions: Stevens v. Williams, 1 McCrary, 480, 490, in which is given the charge of Mr. Justice Miller to a jury, in the course of which he says: "You must take all the evidence together; you must take the point where it ends on the south, where it ends on the north, where it begins on the west and is lost on the east, and the course it takes; and from all that you are to say what is its general course. The plaintiff is not bound to lay his side lines perfectly parallel with the course or strike of the lode, so as to cover it exactly. His location may be made one way or the other, and it may so run that he crosses it the other way. In such event his end lines become his side lines, and he can only pursue

This places a limit on the length of the vein beyond which he may not go, but it does not say that he shall not go outside the vertical side lines unless the vein in its course reaches the vertical planes of the end lines. Nowhere is it said that he must have a vein which either on or below the surface extends from end line to end line in order to pursue that vein in its dip outside the vertical side lines. Naming limits beyond which a grant does not go is not equivalent to saying that nothing is granted which does not extend to those limits. The locator is given a right to pursue any vein, whose apex is within his sur-it to his side lines, vertically extended, as face limits, on its dip outside the vertical side lines, but may not in such pursuit go beyond the vertical end lines. And this is all that the statute provides. Suppose a vein enters at an end line, but terminates half way across the length of the location, his right to follow that vein on its dip beyond the vertical side lines is as plainly given by the statute as though in its course it had extended to the farther end line. It is a vein, "the top or apex of which lies inside of such surface lines extended downward vertically" and the same is true if it enters at an end and passes out at a side line.

though they were his end lines, but if he happens to strike out diagonally, as far as his side lines include the apex, so far he can pursue it laterally." Wakeman v. Norton, decided by the supreme court of Colorado, June 1, 1897, 49 Pac. 283, in which Mr. Justice Goddard, whose opinions, by virtue of his long experience as trial judge in the mining districts of Leadville and Aspen, as well as on the supreme bench of the state, are entitled to great consideration, said, p. 286: "In instructing the jury that, in order to give any extralateral rights, it was essential that the apex or top of a vein should on its *course pass [91] Our conclusions may be summed up in these through both end lines of a claim, the court propositions: First, the location as made on imposed a condition that has not heretofore the surface by the locator determines the ex-been announced as an essential to the exertent of rights below the surface. Second, the cise of such right in any of the adjudicated end lines, as he marks them on the sur- cases." Fitzgerald v. Clark, 17 Mont. 100 face, with the single exception hereinafter no-[30 L. R. A. 803], a case now pending in this ticed, place the limits beyond which he may court on writ of error. Tyler Mining Comnot go in the appropriation of any vein or pany v. Last Chance Mining Company, court veins along their course or strike. Third, of appeals, ninth circuit, decided by Circuit every vein "the top or apex of which lies in Judge McKenna, now a justice of this court, side of such surface lines extended downward Circuit Judge Gilbert and District Judge vertically" becomes his by virtue of his Hawley, 7 U. S. App. 463. Consolidated Wylocation, and he may pursue it to any oming Gold Mining Company v. Champion depth beyond his vertical side lines, al-Mining Company, circuit court northern disthough in so doing he enters beneath the trict California, decided by Hawley, District surface of some other proprietor. Fourth, the Judge, 63 Fed. Rep. 540. Tyler Mining Comonly exception to the rule that the end lines pany v. Last Chance Mining Company, cirof the location as the locator places them es-cuit court district of Idaho, decided by Beat[90]tablish the limits beyond which he may not ty District Judge, who in the course go in the appropriation of a vein on its course of his opinion pertinently observed: "What or strike is where it is developed that in fact reason under the law can De assigned the location has been placed, not along, but across, the course of the vein. In such case the law declares that those which the locator called his side lines are his end lines, and those which he called end lines are in fact side lines, and this upon the proposition that it was the intent of Congress to give to the locator only so many feet of the length of the vein, that length to be bounded by the lines which the locator has established of his loca

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why these rights shall not apply when his location is such that his ledge passes through it in some other way than from end to end? The law does not say that his ledge must run from end to end, but he is granted this right of following 'all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of his surface lines.' Upon the fact that an apex is within his surface lines, all his underground

tinuance of such lease to be paid into the Treasury of the United States; and the Secretary of the Treasury is hereby empowered and authorized to make all needful rules and regulations for the collection and payment of the same, for the comfort, maintenance, education, and protection of the natives of said islands, and also for carrying into full effect all the provisions of this act."

pany shall, in addition to the penalties and forfeitures herein provided, forfeit the whole number of the skins of seals killed in that year, or, in case the same have been disposed of, then such person or company shall forfeit the value of the same.

"Sec. 1969. In addition to the annual rental required to be reserved in every lease, as provided in section nineteen hundred and sixtythree, a revenue tax or duty of two dollars is laid upon each fur-seal skin taken and shipped from the islands of Saint Paul and Saint George, during the continuance of any lease, to be paid into the Treasury of the United

These provisions as well as others from the prior legislation were carried forward into the [122] Revised Statutes, approved June 22, 1874, $8 1954 to 1976 constituting chapter 3 of title 23, relating to the territory of Alaska, and §§ 1956 to 1976 thereof to the subject un-States; and the Secretary of the Treasury is der consideration.

By 1960 the killing of any fur seals upon the islands or their adjacent waters was forbidden, except during June, July, September, and October in each year, etc., with the same proviso as in the 1st section of the act of


Sections 1962, 1963, 1968, 1969, 1972, and 1973 were as follows:

empowered to make all needful regulations for the collection and payment of the same, and to secure the comfort, maintenance, education, and protection of the natives of those islands, and also to carry into full effect all the provisions of this chapter except as otherwise prescribed."

"Sec. 1972. Congress may at any time hereafter alter, amend, or repeal sections from nineteen hundred and sixty to nineteen hundred and seventy-one, both inclusive, of this chapter.

"Sec. 1962. For the period of twenty years from the first of July, eighteen hundred and seventy, the number of fur seals which may be killed for their skins upon the island of "Sec. 1973. The Secretary of the Treasury St. Paul is limited to seventy-five thousand is authorized to appoint one agent and three per annum; and the number of fur seals assistant agents who shall be charged with which may be killed for their skins upon the the management of the seal fisheries in Alasisland of St. George is limited to twenty-ka, and the performance of such other duties five thousand per annum; but the Secretary as may be assigned to them by the Secretary of the Treasury may limit the right of kill- of the Treasury." ing, if it becomes necessary for the preservation of such seals, with such proportionate reduction of the rents reserved to the government as may be proper; and every person who knowingly violates either of the provisions of this section shall be punished as provided in the preceding section.

"Sec. 1963. When the lease heretofore made by the Secretary of the Treasury to The Alaska Commercial Company,' of the right to engage in taking fur seals on the islands of Saint Paul and Saint George, pursuant to the act of July 1, 1870, chapter 189, or when any future similar lease expires, or is surrendered, forfeited, or terminated, the Secretary shall lease to proper and responsible parties, for the best advantage of the United States, having due regard to the interests of the government, the native inhabitants, their comfort, maintenance, and education, as well as to the interests of the parties heretofore engaged in trade and the protection of the fisheries, the right of taking fur seals on the islands herein named, and of sending a vessel or vessels to the islands for the skins of such seals for the term of twenty years, at an annual rental of not less than fifty thousand dollars, to be reserved in such lease and se[123]cured by a deposit of United States bonds to that amount, and every such lease shall be duly executed in duplicate, and shall not be transferable."

"Sec. 1968. If any person or company, under any lease herein authorized, knowingly kills, or permits to be killed, any number of seals exceeding the number for each island in this chapter prescribed, such person or com

Pending the adoption of the Revised Statutes, and on March 24, 1874 (18 Stat. at L. 24, chap. 64), the act of July 1, 1870, was amended so as to authorize the Secretary of the Treasury to designate the months in which fur seals "may be taken for their skins on the islands of St. Paul and St. George, in Alaska, and in the waters adjacent thereto, and the number to be taken on or about the islands respectively." Thus the Revised Statutes were in effect amended so that[124] whereas by § 1960 the months of June, July, September, and October had been designated as the months in which fur seals might be taken on the islands and in the waters adjacent thereto, for their skins, and by § 1962 the maximum number which might be killed on the island of St. Paul was limited to 75,000, and on the island of St. George to 25,000, per annum, the Secretary of the Treasury was authorized by the amendatory act to designate the months in which fur seals might be taken, and the number to be taken on or about each island respectively. The times of killing and the number to be killed were left to the judgment of the Secretary of the Treasury.

Manifestly the object the government had in view throughout this legislation was the preservation by proper regulations of the furbearing animals of Alaska, including, and particularly, the fur seals.

The first twenty years being about to expire the Secretary of the Treasury on December 24, 1889, advertised for proposals "for the exclusive right to take fur seals upon the islands of St. Paul and St. George, Alaska,

as it can prevent, in any year a greater num-
ber of seals than is authorized by the Secre-
tary of the Treasury."

for the term of twenty (20) years from the | first day of May, 1890 agreeably to the provisions of the statutes of the United States." Among other things, the advertisement It was also agreed that "the annual rental, stated: "The number of seals to be taken together with *all other payments to the Unit-[126] for their skins upon said islands during the ed States provided for in this lease, shall be year ending May 1, 1891, will be limited to made and paid on or before the first day of sixty thousand (60,000), and for the succeed-April of each and every year during ing years the number will be determined by the Secretary of the Treasury, in accordance with the provisions of law."

There were twelve proposals or bids, of which the North American Commercial Company put in three, numbered 10, 11, and 12, each of which offered a gross sum as rental, and, in addition to that and the revenue tax, a royalty per capitem. The three bids set forth the advertisement at length. No. 10 contained a proviso that the proposal was made on the express condition that the United States should not through the Secretary of the Treasury, or otherwise, limit the skins to be taken to any number less than 100,000 [125]skins per annum *after the first year of the lease; and No. 12 made the express condition that the United States should protect the exclusive right of the fur-seal fisheries in and within the islands and the waters known as the "Behring Sea." No. 11 contained no such express conditions, and it was this bid which was accepted by the government. The lease in question was thereupon entered into "in pursuance of chapter 3 of title 23, Revised Statutes," as it recites.

the existence of this lease, beginning with the
first day of April, 1891." The lease also pro-
vided that the number of fur seals to be
taken and killed for their skins during the
year ending May 1, 1891, should not exceed

1. It is contended on behalf of the com-
pany that, conceding that the right of kil
ing in 1893 had been duly limited to 7,500
seals, and that it took and received that num-
ber of skins as full performance of the cove-
nants of the lease on the part of the govern-
ment, it is entitled under § 1962 of the Re-
vised Statutes to a proportionate reduction
of the rent reserved, that is, in the proportion
that 7,500 bears to 100,000; and that this re-
duction applies to the per capita of $7.621⁄2
for each fur-seal skin taken and shipped by
it, as well as to the $60,000 annual rental.
On this theory, the company tendered to the
United States, before action brought, the
sum of $23,789.50, being $15,000 for the tax
on 7,500 skins; $4,500, three fortieths of the
annual rental; and $4,289.50, three fortieths
of the full royalty on the skins.

The latter branch of this contention may be dismissed at once as untenable. By the terms of the lease, the per capita of $7.621⁄2 for each and every skin was not a part of the annual rental. The lease is explicit that the annual rental is the sum of $60,000, and that in addition the lessee shall pay the revenue duty of $2 per skin, and also pay the further sum of this royalty on each and every skin. United States bonds were to be de posited "to secure the prompt payment of the sixty thousand dollars rental above referred to," and "the annual rental, together with all other payments to the United States provided for in this lease," was to be paid on or before the 1st of April of each and every year.

We think the rent reserved as such was this specified annual rental, and that the per capita payment was in the nature of a bonus in the sense of an addition to the stated consideration.

By its terms, the company undertook, in consideration of the lease for twenty years of "the exclusive right to engage in the business of taking fur seals on the islands of St. George and St. Paul, in the territory of Alaska, and to send a vessel or vessels to said islands for the skins of such seals," "to pay to the Treasurer of the United States each year during the said term of twenty years, as annual rental, the sum of sixty thousand dollars, and in addition thereto agrees to pay the revenue tax or duty of two dollars upon each fur-seal skin taken and shipped by it from the islands of St. George and St. Paul, and also to pay to said Treasurer the further sum of seven dollars sixty-two and one half cents apiece for each and every fur-seal skin taken and shipped from said islands, . and to secure the sixty thousand dollars rental above referred to" to deposit United States bonds of the face value of fifty thousand dollars; and further "faithfully to obey and *The Secretary was to lease to the best ad-[127] abide by all rules and regulations that the vantage to the United States, and that inSecretary of the Treasury has heretofore or cluded the right to accept an offer of this may hereafter establish or make in pursuance kind; and while the per capita was a part of law concerning the taking of seals on said of the return to the government, it does not islands, and concerning the comfort, morals, follow that the provision for reduction had and other interests of said inhabitants, and reference to anything else than the specified all matters pertaining to said islands and the rental, nor is any other construction comtaking of seals within the possession of the pelled by the fact that the per capita might United States. It also agrees to obey and exceed the rental. Natural causes might diabide by any restrictions or limitations upon minish the catch so that this would not be the right to kill seals that the Secretary of so, and, at all events, the construction of the the Treasury shall adjudge necessary, under words of the statute and contract cannot be the law, for the preservation of the seal fish-controlled by the amount of the reduction eries of the United States; and it agrees that in one view rather than the other. Of course it will not kill, or permit to be killed, so far at the time the lease was made it is evident

ment is immaterial, when the defendant could give evidence of all matters of defense set up In the equitable pleas under the plea of not guilty filed by him. 2. A party cannot defend against a patent for land, duly issued by the United States upon an entry made at a local land office, on the ground that he was in actual possession of the land at the time of the issue of the patent.

[No. 239.]

Submitted April 28, 1898. Decided May 31, 1898.

for in the United States land laws." The patent to the plaintiff was issued September 30, 1882, and recited that it was upon a location of Valentine scrip, and in his equitable plea defendant averred that the patent was predicated upon an entry at the local land office of the United States at Gainesville, Florida. On August 18, 1856, Congress passed an act (11 Stat. at L. 87, chap. 129) containing this provision:

"That all public lands heretofore reserved for military purposes in the state of Florida, which said lands in the opinion of the Secretary of War, are no longer useful or desired for such purposes, or so much thereof as said Secretary may designate, shall be, and are hereby, placed under the control of the General Land Office, to be disposed of and sold in the same manner and under the same

IN ERROR to the Supreme Court of the State of Florida to review a judgment of that court affirming the judgment of the Circuit Court of that state in an action of ejectment brought by George F. Drew, plaintiff, against James Johnson, to recover possession of a tract of land, the judgment being for plain-regulations as other public lands of the tiff. Affirmed.

Statement by Mr. Justice Brewer:

In September, 1886, defendant in error commenced an action of ejectment in the circuit court of the state of Florida, for the county of Hillsborough to recover possession of a tract of land described as follows:

"Lot eight (8) of section nineteen (19), township twenty-nine (29) south, of range nineteen (19) east, and lot seven (7) of section twenty-four (24), in township twentynine (29) south, of range eighteen (18) east, containing about forty and nineteen onehundredths (40.19) acres."

United States: Provided, That said lands shall not be so placed under the control of said General Land Office until said opinion of the Secretary of War, giving his consent, communicated to the Secretary of the Interior in writing, shall be filed and recorded."

At that time there was in existence what was known as the Fort Brooke military reservation, near the town of Tampa, Florida. As appears from the testimony offered by the defendant, on July 24, 1860, the Secretary of War wrote to the Secretary of the Interior as follows:

War Department, July 24, 1860. Sir: Referring to the correspondence between the two departments on the subject, have the honor to inclose to you a report of the quarter-master general showing that Fort Brooke is now in readiness to be turned over to the Department of the Interior, in pursuance of the arrangements made to that effect.

The defendant, now plaintiff in error, filed a plea of not guilty and also a plea based on equitable grounds. A demurrer to this lat-I ter plea was sustained, and thereupon the defendant asked leave to file an amended equitable plea. This application was denied, the court holding that the grounds of defense set up therein were not sufficient. That plea alleged in substance that the plaintiff's title rested on a patent from the United States, issued on a location of Valentine scrip; that such scrip was, by the terms of the statute under which it was issued, to be located only upon unoccupied and unappropriated lands of the United States; that the land in controversy was, at the time of the location of the scrip, a part of Fort Brooke military reservation, and was also in the actual occupancy of the defendant. The case came on for trial in September, 1889, and the defendant offered evidence in support of all of his defenses, including therein the matters set up in the equitable plea which he had been refused leave to file. This testimony was held insufficient by the court, and the trial resulted in a verdict and judgment for the plaintiff, which judgment was thereafter, and in June, 1894, aflirmed by the supreme court of the state; whereupon the defendant sued out this writ of error.

The Valentine scrip act was passed April [95]5, 1872 (17 Stat. at L.649), chap. 89, *and authorized the location of such scrip on "the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than the subdivisions provided

Very respectfully, your obedient servant, John B. Floyd, Secretary of War. Hon. J. Thompson, Secretary of the In


*The inclosed report from the quartermaster [96] general stated that all the movable property of the government had been sold, and that there was no reason why the military reservation should not be turned over to the Interior Department. Probably the exigencies of the war, which soon thereafter commenced, prevented any further action by either department, for on April 6, 1870, the following communication was sent by the Secretary of War to the Secretary of the Interior:

War Department, Washington City,
April 6, 1870.

The Honorable Secretary of the Interior.
Sir: I have the honor to reply to a letter
addressed to this department by the Commis-
sioner of the General Land Office on the 26th
ultimo relative to the public lands occupied
by this department for military purposes at
Fort Brooke, Florida, and to inform you
that there is no longer any objection to their

scope were explained on behalf of that com- might have been taken without an undue mittee in each house, and those explanations diminution of the seal herds." And it apdeclared the object to be as above indicated. pears that the United States originally preAlthough the authority conferred as to the sented as part of its case a claim for the retimes of killing and the number to be killed covery of the damages which it and its lessee was continuing and discretionary, and al-had sustained by reason of the limitation to though the company in the present lease cove-7,500, but this claim was certainly not prenanted that it would not kill in any year a greater number than was authorized by the Secretary, yet we think it would be going much too far to hold that the original provision for a maximum number, and a proportionate reduction of the fixed rental in case of a limitation, was done away with by plication.

sented as a claim which the company could maintain against the United States under the lease, and it involved no question of the power of the Secretary in respect of the lessee under the covenants of that instrument. There was no element of estoppel about the transim-action, and counsel had no authority to bind the government for any other purpose than the pending cause.

Repeals where the intention to do so is not expressed are not favored, and moreover, here the mischiefs sought to be remedied are quite obvious. One was that it was evidently thought that seals might properly be taken during the first half of August, and the existing statute forbade this; the other was, that the maximum was fixed for each island, whereas it had probably been ascertained that the distribution was erroneous, or that the numbers that might be safely taken on one or the other might vary, and consequently that greater elasticity was desirable. The language by which these objects were at tained was entirely reconcilable with the prior law so far as it did not purport to change it.

The legislation from the beginning was directed to the preservation of the fur seals, and the act of 1870 recognized that it might be necessary to such preservation that the number to be killed in the different years should be varied, and the discretion to do this was vested in the Secretary, but while this authority was made more comprehensive by the act of 1874, and a redistribution as between the two islands authorized, we cannot accept the view that it was the intention by that act to wholly change the scheme of leasing by making the discretion of the Secretary purely arbitrary, and dispensing with any maximum or reduction.

[181] *It should be added that the action of the Treasury Department in the matter of the abatement of rent for 1890, 1891, and 1892 does not impress us as amounting to such departmental construction as entitles it to any particular weight, and the views of the Department of Justice were conflicting.

Reference is made to article 5 of the treaty of 1892 extending the modus vivendi and the action taken under it before the tribunal of arbitration, as if amounting to an estoppel, or an admission against interest, or at the least as having some considerable bearing on the construction of the lease and the statutes. That article provided, among other things, that "if the result of the arbitration shall be to deny the right of British sealers to take seals within the said waters, then compensation shall be made by Great Britain to the United States (for itself, its citizens and lessees) for this agreement to limit the island catch to 7,500 a season, upon the basis of the difference between this number and such larger catch as in the opinion of the arbitrators

Moreover, counsel for the United State were constrained to expressly admit that the evidence failed to establish that an additional take over and above the 7,500 could have been safely allowed. In the argument on behalf of the United States, Judge Blodgett, one of the counsel, and all the counsel concurred, made this statement: "Frankness requires us, as we think, to say that the proofs which appear in the counter case of the United States as to the condition of the seal herd on the Pribiloff islands show that the United *States could not have allowed its lessees to[132 have much, if any, exceeded the number of skins allowed by the modus vivendi of 1892 without an undue diminution of the seal herd, and upon this branch of the case we simply call the attention of the tribunal to the proofs, and submit the question to its decision." And later, counsel announced that the United States would not ask the tribunal for any finding for damages upon and under article 5.

Our opinion is, that, assuming that the lessee took all the risk of a catch, reduced by natural causes, yet that when the number that might be killed was limited by the act of the government or its agent, the Secretary, the company was entitled to such reduction on the rental reserved as might be proper, and that the rule to be observed in that re gard would be a reduction in the same proportion as the number of skins permitted to be taken bore to the maximum. This would reduce the annual rental for the year under consideration from $60,000 to $4,500; the tax due would be $15,000, and the per capita $57,187.50, making a total of $76,687.50.

2. Laying out of view the concession under the first proposition, the company fur ther contended that the prohibition by the United States, by agreement with Great Britain, of seal killing in excess of 7,500, to be taken on the islands for the subsistence of the natives, relieved the company from its cov enants for the payment of rent and royalty, and that no action could be maintained therefor on the lease.

The evidence disclosed that prior to 1890 the number of seals annually resorting to these islands was rapidly diminishing. This was attributed to the open sea or pelagic sealing, whereby the seals, especially the females, who were exempt from slaughter under the laws of the United States, were interrupted in

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