business of taking fur seals on the islands of the business of taking fur seals on the IsSt. George and St. Paul, in the territory of lands of St. George and St. Paul, in the ter Alaska, and for royalties upon the seals ritory of Alaska, and to send a vessel or vestaken, and for the revenue tax on the skins, sels to said islands for the skins of such seals. the judgment of the Circuit Court being in "The said North American Commercial favor of the United States for $94,687.50, with Company, in consideration of the rights seinterest and costs amounting to $107,257.29. cured to it under this lease above stated, on Judgment of Circuit Court reversed, and its part covenants and agrees to do the cause remanded with direction to enter judg-things following, that is to say: ment in favor of the United States for $76,G87.50 with interest from April 1, 1894, etc. See same case below, 74 Fed. Rep. 145. "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 laid upon each fur seal skin taken and shipped by it from the islands of St. Statement by Mr. Chief Justice Fuller: This was an action brought by the United States against the North American Commercial Company to recover the sum of $132,-George and St. Paul, and also to pay to said 187.50, with interest, for rent reserved for the year ending April 1, 1894, under a so-called lease, bearing date March 12, 1890, made by the Secretary of the Treasury to the company, and royalties upon 7,500 fur-seal skins taken and shipped by the company that year in virtue of that instrument, and for 111]the revenue tax of $2 on each skin. The claim of the government consisted of these items: Annual rental. Revenue tax on 7,500 skins at $2. Total. . $60,000 00 $132,187 50 And interest thereon from April 1, 1894. The case was tried by the circuit court without a jury. The court found for the United States in the sum of $94,687.50, with interest, and judgment was entered in their favor for $107,257.29, principal, interest, and costs. 74 Fed. Rep. 145. The company having taken a writ of error to the circuit court o: appeals for the second circuit, that court certified a certain question arising in the cause concerning which it desired the instructions of this court for its proper decision, whereupon this court ordered that the whole record and cause be sent up for consideration. A counterclaim of the company against the United States for breach of the lease was disallowed and dismissed by the circuit court, but not on the merits, and without prejudice to the right of the company to enforce the same by any other proper legal proceeding. The agreement of lease out of which the cause of action arose is as follows: Treasurer the iurther 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 also to pay the sum of fifty cents per gallon for each gallon of oil sold by it made from seals that may be taken on said islands during the said period of twenty years, and to secure the prompt payment of the sixty thousand dollars rental above referred to the said company agrees to deposit with the Secretary of the Treasury bonds of the United States to the amount of fifty thousand dollars, face value, to be held as a guarantee for the annual payment of said sixty thousand dollars rental, the interest thereon when due to be collected and paid to the North American Commercial Company, provided the said company is not in default of payment of any part of the said sixty thousand dollars rental. "That it will furnish to the native inhabitants of said islands of St. George and St. Paul annually such quantity or number of dried salmon and such quantity of salt and such number of salt barrels for preserving their necessary supply of meat as the Secretary of the Treasury shall from time to time determine. "That it will also furnish to the said inhabitants eighty tons of coal annually and a sufficient number of comfortable dwellings in which said native inhabitants may reside, and will keep *said dwellings in proper repair,and[113] will also provide and keep in repair such suitable school-houses as may be necessary, and will establish and maintain during eight months of each year proper schools for the education of the children on said islands, the same to be taught by competent teachers, who shall be paid by the company a fair compensation, all to the satisfaction of the Secretary of the Treasury, and will also provide and maintain a suitable house for religious worship, and will also provide a competent physician or physicians and necessary and proper medicines and medical supplies, and will also provide the necessaries of life for the widows and orphans and aged and infirm inhabitants of said islands who are unable to provide for themselves; all of which foregoing agreements will be done and performed by the said company free of all costs and charges to said native inhabitants of said islands or "This indenture, made in duplicate this twelfth day of March, 1890, by and between William Windom, Secretary of the Treasury of the United States, in pursuance of chapter 3 of title 23, Revised Statutes, and the North American Commercial Company, a corporation duly established under the laws of the state of California, and acting by I. Liebes, its president, in accordance with a resolution of said corporation adopted at a meeting of its board of directors held January 4, 1890, witnesseth: That the said Secretary of the Treasury, in consideration of the agreements hereinafter stated, hereby leases to the said North American Commercial Company for a term of twenty years from the first day of [112] May, 1890, the exclusive *right to engage into the United States. "The annual rental, together with all other | "The said company also agrees faithfully to obey and abide by all rules and regulations that the Secretary of the Treasury has heretofore or may hereafter establish or make in pursuance of law concerning the taking of seals on said islands, and concerning the comfort, morals, and other interests of said inhabitants, and all matters pertaining to said islands and the taking of seals within the possession of the United States. It also agrees to obey and abide by any restrictions or limitations upon the right to kill seals that [114]the Secretary of the Treasury shall judge necessary, under the law for the preservation of the seal fisheries of the United States; and it agrees that it will not kill or permit to be killed, so far as it can prevent, in any year a greater number of seals than is authorized by the Secretary of the Treasury. "The said company further agrees that it will not permit any of its agents to keep, sell, give, or dispose of any distilled spirits or spirituous liquors or opium on either of said islands or the waters adjacent thereto to any of the native inhabitants of said islands, such person not being a physician and furnishing the same for use as a medicine. "It is understood and agreed that the number of fur seals to be taken and killed for their skins upon said 'slands by the North American Commercial Company during the year ending May 1, 1891, shall not exceed sixty thousand. ing of one male or bull and many females or "Seventh. That after the making of the said lease by the said plaintiff and the said defendant, the said defendant entered upon the enjoyment of the right thereby granted it; but on account of the enforcement by the said plaintiff of the provisions of a convention or agreement made and entered into by the said plaintiff with the government of Great Britain it prohibited and prevented the said defendant, during the years 1890, 1891, and 1892, from taking on the said islands as many seals as might have been taken without diminution of the herd, and far less in each year than the number mentioned in the said lease for the first year; the numbers taken in those years being in 1890, 20,995; in 1891, 13,482; and in 1892, 7,547. "Eighth. That for the said years of 1890, 1891, and 1892, it was agreed between the Secretary of the Treasury and the said defendant that the said defendant should pay to the said plaintiff for the seal skins taken by it on the said islands the tax and such proportionate part of the rental of $60,000 and the per capita sum of seven dollars sixty-two and one half cents, as the number of seals taken bore to one hundred thousand, except that for 1890 the per capita of seven dollars sixty-two and one half cents was not so reduced. "The Secretary of the Treasury reserves the right to terminate this lease and all rights "Ninth. That by a convention or agreement of the North American Commercial Company with the government of Great Britain, comunder the same at any time on full and satis-monly called the modus vivendi, the United factory proof that the said company has violated any of the provisions and agreements of this lease, or in any of the laws of the United States, or any Treasury regulation respecting the taking of fur seals or concerning the islands of St. George and St. Paul or the inhabitants thereof." The circuit court made eighteen findings, including the following: States promised, during the pendency of the "Sixth. The said islands of St. George and *"Tenth. That pursuant to such agreement[116] St. Paul in the territory of Alaska are the the United States prohibited and prevented breeding ground of a herd of seals which in the said defendant from taking any seals the early spring moves northward to Behring whatever from the said islands during the Sea, and are the habitat of that herd during year 1893, and thus deprived the said defendthe summer and fall of each year; that the ant of the benefit of its said lease. seals land in great numbers upon the said "Eleventh. That the Secretary of the Treasislands and divide into families, each consist-ury did not exercise the discretion conferred upon him by section 1962 of the Revised Stat-skins could have been sold, namely, $300,000, utes to limit the right of killing seals when leaves as the net loss sustained by the said necessary for the preservation of such seals, defendant in consequence of the breach of its and did not so limit or restrict the right of the said lease by the said plaintiff, the sum of said defendant to take seals under its said $142,187.50, which is due and owing to the lease for the year 1893, and that during that year it was not necessary or even desirable for the preservation of such seals to limit the killing of the seals upon the said islands to the said number of 7,500 specified in the said modus vivendi. "Twelfth. That in the year 1893 the United States government itself, through the agents of the Treasury Department, took up on the said islands 7,500 seals; that the said defendant was permitted to co-operate in se lecting the seals so killed, and to take, and it did take and retain the skins of those seals, and in this way, and in this way only, the defendant received those 7,500 skins. said defendant by the said plaintiff; and that its claim therefor would he a proper matter of counterclaim or credit in this action, if the conditions prescribed by § 951 of the United States Revised Statutes had been complied with by the said defendant." "Eighteenth. The defendant did not present to the accounting officers of the Treas ury for their examination any claim for damages by reason of the losses alleged to have been incurred by the defendant by reason of the action of the United States in entering into the said convention or modus vivendi with Great Britain and limiting the catch of seals upon the said islands to 7,500; and such "In accordance with the power reserved to claim was not disallowed by the accounting him in said contract, the Secretary of the officers of the Treasury in whole or in part, Treasury at the commencement of the seal- and it was not proved to the satisfaction of[118] killing season for the year ending April 1, the court that the defendant was at the time 1894, fixed the compensation of the natives of the trial of this action in possession of upon the islands of St. Paul and St. George vouchers not before in its power to procure, to be paid to them by the defendant for kill- or that the defendant was prevented from ing the seals, sorting the skins, and loading exhibiting its said alleged claim at the Treasthem on board the defendant's steamer, at 50 ury by absence from the United States or by cents for each skin taken from the islands dur- unavoidable accident." ing the said season; and defendant paid to the natives said compensation, to wit, the sum of of law: $3,750. The circuit court made these conclusions sum of $94,687.50, with interest thereon from the first day of April, 1894; and the said plaintiff is entitled to recover in this action said sum, with interest as aforesaid, from the said defendant. "First. That the said defendant, having "Thirteenth. That 20,000 bachelor seals received the said 7,500 seal skins taken from could have been killed upon the said islands the said islands during the year 1893, is liable during the year 1893 in the customary way, to pay the said plaintiff therefor the said without injury to or diminution of the herd, and the said defendant would have taken that number had it been permitted so to do. "Fourteenth. That if the said defendant had been allowed to and had taken in the year 1893, under its said lease, 20,000 seal [117]*skins, there would have been due to the said plaintiff the $60,000 rental and for the per capita of seven dollars and sixty two and one half cents and the revenue tax of two dcllars per skin, the sum of $192,500, making together the sum of $252,500-that is, twelve dollars and sixty-two and one half cents for each seal skin taken; that for the 7,500 rereived by the said defendant, as above set forth, it owes to the said plaintiff the said sum of twelve dollars and sixty-two and one half cents apiece, amounting to the sum of $94,687.50. "Fifteenth. The defendant could have sold 12,500 more seal skins if it had been allowed to take the same cn the said islands during the year 1893, at the average market price of twenty-four dollars for each skin; which for the said number of 12,500 which it might have taken, but was prevented from taking by the act of the government of the United States, would amount to $300,000; that for such 12,500 seal skins the said defendant would have been liable to pay, according to the terms of its lease if it had taken 20,000 seal skins during that year, the sum of twelve dollars and sixty-two and one half cents each, amounting to $157,812.50, which, being deducted from the price at which such "Second. That by reason of the breach of the said lease by the said plaintiff, prohibiting the said defendant from taking any seal skins during the year 1893, the said plaintiff is liable to the said defendant for the said sum of $142,187.50, with interest thereon from the first day of December, 1894. "That on account of the same claim of the said defendant against the said plaintiff for damages for breach of the said lease not having been presented to and disallowed by the accounting officers of the Treasury, it cannot be allowed as a counterclaim or credit in this action, and the said counterclaim is therefore dismissed, but not on the merits thereof, and without prejudice to the right of the said defendant to enforce the same by any other proper legal proceeding." Mr. James C. Carter for plinta in error. Mr. John W. Griggs, Attorney General, for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court: By the act of July 27, 1868 (15 Stat. at L 240, chap. 273), the laws of the United States relating to customs, commerce, and naviga tion were extended over all the mainland, is 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 why these rights shall not apply when across, the course of the vein. In such case his location is such that his ledge passes the law declares that those which the locator through it in some other way than called his side lines are his end lines, and from end to end? The law does not say those which he called end lines are in fact that his ledge must run from end to end, but side lines, and this upon the proposition that he is granted this right of following 'all veins, it was the intent of Congress to give to the lo- lodes, and ledges throughout their entire cator only so many feet of the length of the depth, the top or apex of which lies inside of vein, that length to be bounded by the lines his surface lines.' Upon the fact that an apex which the locator has established of his loca- 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." These provisions as well as others from the prior legislation were carried forward into the [122]Revised Statutes, approved June 22, 1874, $$ 1954 to 1976 constituting chapter 3 of title 23, relating to the territory of Alaska, and §§ 1956 to 1976 thereof to the subject under 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 1870. Sections 1962, 1963, 1968, 1969, 1972, and 1973 were as follows: 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 States; and the Secretary of the Treasury is 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 preserva- Pending the adoption of the Revised Stattion of such seals, with such proportionate re-utes, and on March 24, 1874 (18 Stat. at L. duction of the rents reserved to the govern- 24, chap. 64), the act of July 1, 1870, was ment as may be proper; and every person amended so as to authorize the Secretary of who knowingly violates either of the provisions of this section shall be punished as provided in the preceding section. 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, "Sec. 1963. When the lease heretofore in Alaska, and in the waters adjacent theremade by the Secretary of the Treasury to to, and the number to be taken on or about The Alaska Commercial Company,' of the the islands respectively." Thus the Revised right to engage in taking fur seals on the Statutes were in effect amended so that[124] islands of Saint Paul and Saint George, pur- whereas by § 1960 the months of June, July, suant to the act of July 1, 1870, chapter 189, September, and October had been designated or when any future similar lease expires, or as the months in which fur seals might be is surrendered, forfeited, or terminated, the taken on the islands and in the waters adSecretary shall lease to proper and responsible jacent thereto, for their skins, and by § 1962 parties, for the best advantage of the United the maximum number which might be killed States, having due regard to the interests of on the island of St. Paul was limited to the government, the native inhabitants, their 75,000, and on the island of St. George to comfort, maintenance, and education, as well 25,000, per annum, the Secretary of the as to the interests of the parties heretofore en- Treasury was authorized by the amendatory gaged 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 act to designate the months in which fur Manifestly the object the government had 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, |