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(40 Sup.Ct.) Ct. 408, 571, 50 L. Ed. 913; Washington V., tained upon a consideration of the situation Oregon, 211 U. S. 127, 29 Sup. Ct. 47, 53 existing in 1846 and accurately disclosed by L. Ed. 118; Id., 214 U, S. 205, 29 Sup. Ct. the Meade Chart. That when traced on this 631, 53 L. Ed. 969; Arkansas v. Tennessee, chart the boundary runs midway between 246 U. S. 158, 38 Sup. Ct. 301, 62 L. Ed. 638, Rice's Point and Connor's Point, and through L. R. A. 1918D, 258.

the middle of Lower St. Louis Bay to and "When a navigable river constitutes the with the deep channel leading into Upper boundary between two independent states, the St. Louis Bay, and to a point therein imline defining the point at which the jurisdiction mediately south of the southern extremity of of the two separates is well established to be Grassy Point; thence westward along the the middle of the main channel of the stream. most direct course, through water not less The interest of each state in the navigation of than 8 feet deep, eastward of Fisherman's the river admits *of no other line. The preser- Island and as indicated by the red trace vation by each of its equal right in the naviga- "A, B, C," on Minnesota's Exhibit No. 1, tion of the stream is the subject of paramount approximately one mile, to the deep channel interest. *

* Thus the jurisdiction of each and immediately west of the bar therein; state extends to the thread of the stream, that thence with such channel north and west is, to the ‘mid-channel,' and, if there be several of Big Island up stream to the falls. channels, to the middle of tbe principal one, or,

Within 30 days counsel may present a rather, the one usually followed.” Iowa v. Illinois, supra, 147 U. S. 7, 13, 13 Sup. Ct. 241, proper decree for carrying this opinion into 243, 37 L. Ed. 55.

effect. The costs will be equally divided be"As to boundary lakes and landlocked seas, tween the states. where there is no necessary track of navigation, It seems appropriate to repeat the suggesthe line of demarcation is drawn in the middle, tion, made in Washington v. Oregon, supra, and this is true of narrow straits separating 214 U. S. 217, 218, 29 Sup. Ct. 631, 53 L. the lands of two different states." Louisiana v. Mississippi, supra, 202 U. S. 50, 26 Sup. Ct. Ed. 969, that the parties endeavor with con421, 50 L. Ed. 913.

sent of Congress to adjust their boundaries. [4] The doctrine of Thalweg, a modifica- Mr. Justice BRANDEIS concurs in the retion of the more ancient principle, which re- sult. quired equal division of territory, was adopted in order to preserve to each state equality of right in the beneficial use of the stream

(252 U. S. 308) as a means of communication. Accordingly,

PANAMA R. CO. v. TOPPIN. the middle of the principal channel of navi. gation is commonly accepted as the bound (Argued and Submitted Jan. 16, 1920. Decided ary. Equality in the beneficial use often

March 15, 1920.) would be defeated, rather than promoted, by

No. 147. fixing the boundary on a given line merely because it connects points of greatest depth. 1. MASTER AND SERVANT Omw 307 — CRIMINAL Deepest water and the principal navigable

ACT CAUSING INJURIES ACTIONABLE. channel are not necessarily the same. The Under the law of the republic of Panama rule bas direct reference to actual or prob- (Ordinance No. 87 of 1896, arts. 488 and 489,

Law No. 62 of 1887, art. 5, and Civ. Code, able use in the ordinary course, and common experience shows that vessels do not from liability in damages for injuries resulting

art. 2341), a railroad company is not relieved follow a narrow crooked channel, close to from the negligence of an employé merely beshore, however deep, when they can proceed

cause the negligent act is also punishable as a on a safer and more direct one with suffi- crime. cient water. As we view the whole record, the claim 2. ACTION Cw62–RULE UNDER COLOMBIAN

JUDICIAL CODE AS TO POSTPONING CIVIL ACof Wisconsin cannot prevail, unless the doc

TION UNTIL CONCLUSION OF CRIMINAL ACTION trine of Thalweg requires us to say that the

NOT APPLICABLE. main channel is the deepest one.

So to ap- The rule of practice under the Judicial ply it here would defeat its fundamental Code of Colombia that a civil action cannot purpose. The ruling depth in the waters be- be prosecuted until the conclusion of a criminal low Upper Bay was 8 feet, and practically action, arising out of the same act, has no apthis limited navigation to vessels of no great- plication to an action against a railroad comer draft. For these there was abundant wa- pany for injuries sustained in Panama from the ter near the middle line. Under such circum- negligence of the engineer, though the engineer

would be punishable criminally, as the same stances *Minnesota would be deprived of person is not liable both civilly and criminally. equality of right both in navigation and to the 3. MASTER AND SERVANT O304-MASTER EXsurface, if the boundary line were drawn


RELIEVED FROM LIABILITY FOR HIS NEGLIA decree will be entered, declaring and adjudging as follows: That the boundary Under the law of the republic of Panama line between the two states must be ascer-) (Col. Civ. Code, $ 2347, and Law 62 of 1887,



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art. 5), a railroad company is not relieved of, ing there will be presumed to have continued liability for an injury caused by the negligence in force. of its engineer because it exercised care in se- [1, 2] First. The company contends that lecting him.

the jury should have been instructed that un4. DAMAGES Omw32—DAMAGES FOR PHYSICAL der the law of Panama the company was not PAIN RECOVERABLE IN ACTION FOR PERSON- liable if the accident resulted from a crimi

nal act of its employés; there being evidence In an action against a railroad company for that it was due to running the locomotive at personal injuries sustained in the republic of

a rate of speed prohibited under penalty by Panama, damages for physical pain were recov

That Code, erable whether the law of Panama or that of the Police Code of Panama. the Canal Zone, where the action was brought, known as Ordinance No. 87 of the year 1896, was applicable.

provides (articles 488, 489): In Error to the United States Circuit Court

“When a tramway crosses a town, as well

as when it passes by a gate or viaduct, it of Appeals for the Fifth Circuit.

shall not travel at a greater speed than that of Action by Joseph T. Toppin against the a wagon drawn by horses at a moderate trot; Panama Railroad Company. A judgment for in case of an infraction the conductor or the plaintiff was affirmed by the Circuit Court of administrator of the company subsidiarily shall Appeals for the Fifth Circuit (250 Fed. 989), pay a fine of 10 to 100 pesos, without preju

dice to the responsibility, civil or penal, to and defendant brings error. Affirmed.

which he may be subject by reason of the dam*309

age fault or tort. *Messrs. Frank Feuille and Walter F. Van

"This article

shall be applied to railDame, both of Ancon, C. Z., for plaintiff in roads when they enter cities or towns." error.

Messrs. Wm. C. MacIntyre, of Cristobal, C. The Panama Law No. 62 of 1887 had proZ., and Felix E. Porter, of Ancon, C. Z., for vided in article 5: defendant in error.

"Railroad companies are responsible for the Mr. Justice BRANDEIS delivered the opin- wrongs and injuries which are caused to perion of the Court.

sons and properties by reason of the service of

said railroads and which are imputable to want Toppin was struck by a locomotive of the of care, neglect or violation of the respective Panama Railroad Company while riding a police regulations which shall be issued by the horse in the city of Colon. He sued the com- government as soon as the law is promulgated.” pany for damages in the District Court of the Canal Zone, alleging negligence, and re- And article 2341 of the Civil Code procovered a verdict. The judgment entered vides: thereon was affirmed by the Circuit Court of

“He who shall have been guilty of an offense Appeals for the Fifth Circuit (250 Fed. 989, or fault, which has caused another damage, is 163 0. C. A. 239), and the case is here on writ of error.

obliged to repair it, *without prejudice to the The main contentions of the company are principal penalty which the law imposes for here, as in Panama Railroad Co. v. Bosse,

the fault or offense committed." 249 U. S. 41, 39 Sup. Ct. 211, 63 L. Ed. 466,

It would seem clear from a reading of these that the trial court erred in holding applica- provisions that the company would not be reble the rule of respondeat superior and the lieved from liability in damages for injuries rule permitting recovery for physical pain resulting from the negligence of its employé, suffered. The important difference in the merely because the negligent act was also two cases is this: There the accident occur- punishable as a crime. And the Colombian red in the Canal Zone; here in the republic authorities to which our attention has been of Panama. The company insists that the called tend to confirm this construction.i Bosse Case is not controlling, because the There seems to have been a rule of practice questions affecting liability must here be de under the Colombian Judicial Code (article termined by the law of that republic, the 1501)2 by which, if the civil action and the place where the accident occurred. Slater v. criminal action arising out of the same acts Mexican National Railroad Co., 194 U. S. are not brought at the same time, the civil 120, 24 Sup. Ct. 581, 48 L. Ed. 900; Cuba action cannot be prosecuted until the concluRailroad Co. v. Crosby, 222 U. S. 473, 32 Sup. sion of the criminal action with the condemCt. 132, 56 L. Ed. 274, 38 L. R. A. (N. S.) 40. nation of the delinquent. But such rule obThe law *of Panama is pleaded by both par-viously can have no application here; among ties and evidence thereon was introduced by

* Cecilia Jaramillo de Cancino v. The Railroad of both; but we are not limited to this evi- the North, Supreme Court of Justice of the Repubdence, as they agree that we may take judi- lic of Colombia, XIII Judicial Gazette, Nos. 652-653, cial notice of the law of Panama existing Feb-decided December 16, 1897. ruary 26, 1904, when the Canal Treaty was supreme Court of Justice of the Republic of Co

· Ruperto Restrepo v. Sabana Railway Company, proclaimed, and that, in the absence of evi-lombia, III Judicial Gazette, No. 353, pp. 332-334, dedence to the contrary, the law then prevail. I cided July 19, 1892.

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(40 Sup.Ct.) other reasons because it refers to the case, is not unlikely that such was the object of where the same person is liable both civilly article 5 of Law 62 of 1887. and criminally. Here it is the engineer who

*313 is liable criminally under the Police Code and

[4] *Third. The contention that the lower the company against whom civil liability is courts erred in allowing recovery for physibeing enforced.

cal pain was made and overruled in Panama [3] Second. The company contends that by Railroad Co. v. Bosse, supra, 249 U. S. 47, 39 the law of Panama it cannot be held liable Sup. Ct. 211, 63 L. Ed. 466. As the decision for the injury caused by the negligence of its there rested upon article 2341 of the Civil engineer if it was careful in selecting him, Code of Panama, it is applicable whether the because the law of Panama does not recog- lex loci or the sex fori should be held connize liability without fault. This contention trolling as to such damages. Exception was was made and rejected by the Supreme Court also taken to the ruling that “if the plaintiff of Colombia in a case similar to the case at has developed tuberculosis of the spine as a bar.3 There suit was brought against the result of the injuries received" the tubercuempresario of a railway to recover for the losis may be considered as an element of loss of a house by fire due to the negligent damages. The instruction was given with *312

such explanations as to have been clearly unoperation of a locomotive. *The court rested objectionable. the liability upon section 2347 of the Civil Affirmed. Code,4 declaring that all doubt as to the existence of the necessary dependency was removed by article 5 of Law 62 of 1887, which

(252 U. 8. 286) "without in any way mentioning the depend- COLE et al. v. RALPH (two cases). ents, employés, or workmen of railway enterprises, makes their empresarios responsible (Argued Dec. 8, 1919. Decided March 15, 1920.) for the damages and injuries which they may cause to persons or to property by reason of

Nos. 172, 173. the service of the said roads." The court continues: “And there is not in the record 1. CERTIORARI 69_SUPREME COURT MAY any proof whatever that any care or precau- EITHER MAKE COMPLETE DECISION OR CONtion, either on the part of the empresario or SIDER ONLY MATTERS DECIDED BY CIRCUIT the engineer, had been taken to prevent the COURT OF APPEALS AND REMAND FOR DETERfire, the proof that the empresario on his

MINATION OF OTHER QUESTIONS. part had exercised much care in the selec- On certiorari to review judgments of the tion of his employés not being sufficient in the Circuit Court of Appeals, reversing judgments opinion of the court, because the diligence of the District Court and ordering a new trial, and care here treated of, is that which ought the Supreme Court may either proceed to a to have been exercised in order to prevent an considered by the Circuit Court of Appeals, and

complete decision or deal only with the matter injury that could have been easily fore- remand the cases to that court for any needed

This case seems to overrule in ef- action on other questions. fect the principal authority to which the plaintiff in error has referred use—in fact, it 2. PLEADING E 403(2)-OMISSION OF ALLEGA

FROM COMPLAINT CURED BY ALLEGA3 Cancino v. The Railroad of the North, supra, TION IN ANSWER.

In suits to determine adverse claims under "Every person is responsible not conflicting mining locations, the failure of the only for his own actions for the purpose of making complaints to allege with certainty that degood the damage, but for the act of those who may fendant was in possession was cured by an afbe under his care.

“Thus, the father, and failing him the mother, is firmative statement in the answer that he was responsible for the act of the minor children who in possession. live in the same house.

“'Thus the tutor or guardian is responsible for 3. PLEADING C 406(7)-OBJECTIONS WAIVED the conduct of the pupil who lives under his pro


"Thus the husband is responsible for the conduct Defendant waived want of precision in some of his wife.

of the allegations of the complaint by failing “Thus the directors of colleges and schools re- to make timely objection until the trial was spond for the acts of students while they are under their care, and artisans and empresarios for bave resulted in appropriate amendments.

in progress, as timely objections would doubtless the acts of their apprentices and dependents in like cases.

"But this responsibility will cease it with the 1. MINES AND MINERALS 3–CONTRACT BY exercise of the authority and care which their re- LOCATORS GIVING OTHER PERSONS INTEREST spective characters prescribe for and confer on

IN OUTPUT GOOD, THOUGH NOT RECORDED. them they could not prevent the act."

Under Rev. Laws Nev. 1912, SS 1038–1040, See, also, Panama Railway Co. v. Bosse, 249 U. S. 41, 49, 39 Sup. Ct. 211, 63 L. Ed. 466.

a contract cxecuted by locators of mining claims, • Ramirez v. The Panama Railroad Company, Su-giving other persons a right to a specified share preme Court of Justice of Colombia, 1 Gaceta Ju-l in the output of the claim, was good between dicial, No. 22, p. 170 (June 10, 1887).

the parties, though not recorded.
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
40 SUP.CT.-21



note 1.

* Article 2347:




A mining location based upon discovery TION.

gives an exclusive right of possession and enA person having a right to a specified share joyment, is property in the fullest sense, is in the output of a mining claim under a con- subject to sale and other forms of disposal, tract with the locators was not an essential and, so long as it is kept alive by performance party to an adverse claim filed in the land of- of the required assessment work, prevents any fice, or to a suit to determine the adverse claims, adverse location. but was an admissible party in view of Rev.

[Ed. Note. For other definitions, see Words Laws Nev. 1912, SS 4998, 5000.

and Phrases, First and Second Series, Prop6. HUSBAND AND WIFE Em 249, 265, 270(5)–erty.]


TURE OF DISCOVERY AS LODE OB PLACER. Where a husband conveyed an interest in Under Rev. St. 88 2320, 2329 (Comp. St. Si a mining claim to his wife, but the considera- 4615, 4628), a placer discovery will not sustain tion was not paid out of her separate property, a lode location, nor a lode discovery a placer the conveyance was not intended as a gift, and location. she never listed the property as her separate property, it was community property of which 13. MINES AND MINERALS 14(1)–NATURE the husband had the entire management and OF "LOCATION" STATED. control and absolute power of disposition, under "Location" is the act or series of acts Rev. Laws Nev. 1912, $$ 2155–2160, and an adverse claim and suit for the determination whereby the boundaries of a claim are marked,

etc. of adverse claims was properly filed by him.

[Ed. Note.-For other definitions, see Words 7. MINES AND MINERALS (m38(4)—PARTY SUC- and Phrases, First and Second Series, LocaCEEDING INTEREST IN MINING

CLAIM tion.]
Where, pending a suit to determine adverse

14. MINES AND MINERALS 17(1)-DISCOSclaims under conflicting mining locations, the

ERY ESSENTIAL AND NOT RENDERED UNNECinterest of one of the plaintiffs was transfer

ESSARY BY LOCATION OR ASSESSMENT WORK. red by attachment proceedings, the transferees Location confers no right in the absence of were entitled to the benefit of what he had done discovery, nor will assessment work take the while he held title, and were properly substi- place of discovery. tuted as plaintiffs.



That an adverse claim to a mining location

While in practice, discovery usually precedes filed in the land office stated the name of one location of a mining claim, it is no objection, of the claimants as "Frank" instead of “John" in the absence of an intervening right, that the by inadvertence was immaterial, where no one usual order is reversed, and in such case the was misled or prejudiced.

location becomes effective from the date of dis



TO DETERMINE CONFLICTING CLAIMS COUBT Under Act Oct. 22, 1914, c. 331, $$ 6, 11,

HELD NOT TO HAVE PLACED BURDEN OX DE12, 13, 22, the omission of the required revenue

FENDANTS. stamps from decds did not render the same in- In a suit to determine adverse claims under admissible as evidence.

defendant's lode location and a later placer lo

cation under which plaintiffs claimed, where the 10. MINES AND MINERALS 27(1)-RULE AS court denied a motion to strike out plaintiffs'

TO LOCATION OF LAND IN POSSESSION OF AN- evidence as to defendant's failure to discover OTHER, WHO HAS NOT MADE DISCOVERY, ludes, on the ground that the burden was on STATED.

plaintiffs to show that the ground in dispute In advance of discovery, an explorer in actu- was open to location, and defendant's requested al occupation, and diligently searching for min- instructions recited that plaintiffs had introdue eral, is treated as a licensee or tenant at will, ed evidence tending to show that the ground and no right can be initiated or acquired from contained no lodes, veins, or mineral-bearing a forcible fraudulent or clandestine intrusion rock in place, and the court charged that the upon his possession, but if his occupancy be re- burden was on plaintiffs to show that when laxed, or be merely incidental to something oth- they went on the claims the ground was open er than a diligent search for mineral, and an- to location, and there were no valid subsisting other enters peaceably and not fraudulently or locations, there was no basis for defendant's clandestinely, and makes a mineral discovery objection that the burden was placed on them and location, the location is valid.

of proving lode discoveries. Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inderes







(40 Sup.Ct.) 17. MINES AND MINERALS Om 38(22)—IN SUIT | 133), and plaintiffs bring certiorari. Judg


versed, and judgments of the District Court In suits to determine conflicting claims un- affirmed. der defendant's lode location, and plaintiffs' later placer location, where there were disputable L. Ed. 418.

See, also, 248 U. S. 553, 39 Sup. Ct. 8, 63 questions of fact as to the presence or absence of lode discoveries, defendant's possession when *Messrs. George B. Thacher and William C. the locators of plaintiffs' claims entered and Prentiss, of Washington, D. C., for petitionmade their discoveries, etc., and defendant's acquiescence in the acts of the placer locators, the direction of verdicts for defendant was propc., and P. G. Ellis, of Salt Lake City, Utah,

Messrs. Samuel Herrick, of Washington, D. erly denied.

for respondent. 18. MINES AND MINERALS 19(1) – PLACER


These suits relate to conflicting mining lo Where parties making a placer discovery cations in Nevada and are what are commonwithin the limits of an earlier lode location posted a notice that they had relocated the claim ly called adverse suits. *The locations set up as a lode claim, but on the next day substituted on one side are lode and those on the other another notice of location as a placer claim, placer, the former being designated as Salt and nothing was ever done or claimed under the first notice, and no one was misled by the mis- Lake No. 3, Midas, and Evening Star and the take, the posting thereof was not an admission latter as Guy Davis and Homestake. Joseph of the validity of the lode location.

Ralph is the lode claimant and the other par

ties are the placer claimants. 19. MINES AND MINERALS 38(17)-RECITAL OF DISCOVERY IN RECORDED NOTICE OF LO- office for the issue to him of a patent for the

Ralph made application at the local land CATION NOT EVIDENCE OF DISCOVERY. Under the general rule recognized and ap

three lode claims, along with thirteen others plied in Nevada, the recitals of discovery in not here in question, and in due time two adrecorded notices of location of lode claims are verse claims were filed in that proceeding,

ex parte self-serving declarations, and one based upon the Guy Davis and covering not evidence of discovery.

most of the ground within the Salt Lake No. 20. APPEAL AND ERROR 1058(1)

3, and the other based upon the Homestake

EXCLUSION OF EVIDENCE COULD NOT BE COMPLAIN. and covering a considerable portion of the ED OF WHERE COURT SUBSEQUENTLY CHANG- ground within the Midas and Evening Star. ED ITS RULING AND DEFENDANT TOOK NO These suits were brought in a state court in OBJECTION.

support of the adverse claims, and Ralph, the Defendant could not complain of the court's sole deiendant, caused them to be removed refusal to permit him to show the contents of into the federal court, the parties being citicertain assay reports on cross-examination of a

zens of different states. Afterwards some witness for plaintiffs, where the court subse-of the original plaintiffs were eliminated and quently recalled its ruling and announced an others brought in, but the citizenship re other more favorable to defendant, the witness

mained diverse as before. was then recalled, and some of the reports put in evidence, and defendant did not call for the

The cases were tried together to the court others, or reserve any exception to the new and a jury, the latter returning general verruling.

dicts for the plaintiffs and special verdicts 21. MINES AND MINERALS 29(2)-STATUTE

finding that when the placer locations were DOES NOT DISPENSE WITH DISCOVERY AS ES- made no lode had been discovered within the SENTIAL TO VALID LOCATION, THOUGH PERI- limits of any of the lode locations. JudgOD OF LIMITATION HAS RUN.

ments for the plaintiffs were entered upon the Rev. St. § 2332 (Comp. St. § 4631), provid- verdicts and motions by the defendant for a ing that when applicants for a patent for a min- new trial were overruled. Upon writs of ering claim have held and worked the claim for 'ror the Circuit Court of Appeals reversed the the local period of limitation for mining claims, judgments and ordered a new trial, one judge evidence of such possession and working shall dissenting. Ralph v. Cole, 249 Fed. 81, 161 C. establish the right to the patent in the absence C. A. 133. The cases are here upon writs of of adverse claim, does not dispense with the ne- certiorari which were granted because the cessity of a discovery though the period of limitations has run.

ground upon which the Circuit Court of Ap

peals put its decision-the construction and On Writs of Certiorari to the United States application of some of the mineral land laws Circuit Court of Appeals for the Ninth Circuit.

-was deemed of general interest in the re

gions where those laws are operative. Two suits by George A. Cole and others

The defendant does not rely entirely upon against Joseph Ralph. A judgment for plain the ground of decision advanced by the Cirtiffs in each suit was reversed by the Circuit Court of Appeals (249 Fed. 81, 161 C. C. A. I cuit Court of Appeals, *but urges at length

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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