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(40 Sup.Ct.)

[ing of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim."

266, 49 L. Ed. 501; Lindley on Mines (3d Ed.) § 392; Mutchmor v McCarty, 149 Cal. 603, 607, 87 Pac. 85; Strepey v. Stark, 7 Colo. 614, 619, 5 Pac. 111; Magruder v. Oregon & California R. R. Co., 28 Land Dec. 174. This rule is recognized and applied in Nevada. Fox v. The defendant, conceiving that the section Myers, 29 Nev. 169, 186, 86 Pac. 793; Round could be invoked in the absence of a mineral Mountain Mining Co. v. Round Mountain discovery, requested the court to instruct the Sphinx Mining Co., 36 Nev. 543, 560, 138 Jury that if the lode claimant held and worked the lode claims for a period of two

Pac. 71.

[20] Complaint is made because the defend-years-the local prescriptive period for ad

#304

ant was not permitted on the cross-examination of a witness for the plaintiffs to show the contents of certain assay reports. In his examination in chief the witness told of taking twelve samples from openings made by the lode claimant in the lode locations and of having the samples assayed. Seven of the assay reports were produced at the plaintiffs' request and put in evidence. They attributed to one sample a mineral value of sixty-three cents per ton and to the other six only a trace of mineral. In cross-examining the witness the defendant called for the remaining reports or their contents, but the plaintiffs objected and the objection was sustained. In other respects the cross-examination proceeded without restriction and included a full interrogation of the witness about the points from which each of the twelve samples was taken. This interrogation disclosed that one of the reports put in evidence covered a sample taken from an opening made after the location of the placer claims; and because of this that report was stricken out at the defendant's request and with the plaintiffs' consent. Near the close of the trial the court recalled its prior ruling and announced another more favorable to the defendant. The witness was then recalled and, after some further examination, three of the remaining reports were put in evidence. They attributed to one sample a mineral value of one dollar and thirty-four cents per ton and to the other two only a trace of mineral. Thus of the twelve reports all but two were produced. These two, like the one stricken out, covered samples taken from openings made after the placer claims were located. The defendant did not call for them when the witness was recalled or reserve any exception to the new ruling, and it is more than inferable from the record that he acquiesced in it. Of course, there is no merit in the present complaint.

[21] What we have said sufficiently disposes of all questions other than that before

*305 mentioned respecting the applica*bility and effect of section 2332 of the Revised Statutes, which provides:

"Where such person or association, they and their granters, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state or territory where the same may be situated, evidence of such possession and work

verse possession, Rev. Laws 1912, § 4951before the placer claims were initiated, such holding and working were the full equivalent of all that was essential to the validity of the lode claims, including discovery. That request was refused and others were then presented which differed from it only in that they treated discovery as essential by coupling it with holding and working. These were also refused, but no complaint is made of this-obviously because the jury were told that under the evidence the lode claims should be regarded as valid, if only the requisite discoveries were made at any time before the placer claims were initiated. The jury, as we have seen, found as matter of fact that there was no such discovery.

The effect which must be given to section 2332, Rev. St., in circumstances such as are here disclosed-whether it substitutes something else in the place of discovery or cures its absence-is the matter we have to considThat the section is a remedial provision and designed to make proof of holding and working for the prescribed period the legal equivalent of proof of acts of location, recording and transfer, and thereby to relieve

er.

*306

against possible loss or destruction of the usual means of establishing such acts, is attested by repeated rulings in the land department and the courts. But those rulings give no warrant for thinking that it disturbs or qualifies important provisions of the mineral land laws, such as deal with the character of the land that may be taken, the discovery upon which a claim must be founded, the area that may be included in a single claim, the citizenship of claimants, the amount that must be expended in labor or improvements to entitle the claimant to a patent, and the purchase price to be paid before the patent can be issued. Indeed, the rulings have been to the contrary.

The view entertained and applied in the land department is shown in the following excerpt from a decision by the Secretary of the Interior:

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difficulty necessarily attending its preservation | gin, related to "gold mines" which had been during the early days of mining operations. worked for many years.

* * *

"The section was not intended as enacted, nor as now found in the Revised Statutes, to be a wholly separate and independent provision for the patenting of a mining claim. As carried forward into the Revised Statutes it relates to both lode and placer claims, and being in pari materia with the other sections of the Revision concerning such claims is to be construed to gether with them, and so as, if possible, that they may all stand together, forming a harmonious body of mining law." Barklage v. Russell, 29 Land. Dec. 401, 405, 406.

The views entertained by the courts in the mining regions are shown in Harris v. Equa*307

The only real divergence of opinion respecting the section has been as to whether it is available in an adverse suit, such as these are, or is addressed merely to the land department. Some of the courts have held it available only in proceedings in the department (McCowan v. Maclay, 16 Mont. 234, 40 Pac. 602), and others in greater number have held it available in adverse suits (Upton v. Santa Rita Mining Co., supra, and cases cited). The latter view has received the approval of this court. Reavis v. Fianza, supra; Belk v. Meagher, supra.

We conclude that the defendant was not receive the benefit of section 2332 in the abentitled to any instruction whereby he could District Court rightly refused to give the one sence of a discovery, and therefore that the in question. The Circuit Court of Appeals held that the instruction should have been given, and in this we think it erred.

Judgments of Circuit Court of Appeals reversed.

Judgments of District Court affirmed.

tor Mining Co. (C. C.) 8 *Fed. 863, 866, where the court ruled that holding and working a claim for a long period were the equivalent of necessary acts of location, but added that "this, of course, was subject to proof of a lode in the Ocean Wave ground, of which there was evidence"; in Humphreys v. Idaho Gold Mines Co., 21 Idaho, 126, 140, 120 Pac. 823, 40 L. R. A. (N. S.) 817, where the section was held to obviate the necessity for proving the posting, etc., of a location notice, but not to dispense with proof of discovery; in Upton v. Santa Rita Mining Co., 14 N. M. 96, 89 Pac. 275, where the court held that the section should be construed in connection with other provisions of the mineral land laws, and that it did not relieve a claimant (Argued January 30, 1920. Decided March 22, coming within its terms from continuing to do the assessment work required by another section; and in Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419, where the section was held 1. COURTS 394(25)—Overruling OF OBJECnot to change the class who may acquire mineral lands or to dispense with proof of citizenship.

As respects discovery, the section itself indicates that no change was intended. Its words, "have held and worked their claims," presuppose a discovery; for to "work" a mining claim is to do something toward making it productive, such as developing or extracting an ore body after it has been discovered. Certainly it was not intended that a right to a patent could be founded upon nothing more than holding and prospecting, for that would subject nonmineral land to acquisition as a mining claim. Here, as the verdicts show, there was no discovery, so the working relied upon could not have been of the character contemplated by Congress.

(252 U. S. 341)

HIAWASSEE RIVER POWER CO. v. CAR-
OLINA-TENNESSEE POWER CO.

1920.) No. 208.

TION TO ADMISSION OF PRIVATE ACT INVOLV-
ED NO FEDERAL RIGHT, WHETHER ACT WAS
VALID OR INVALID.

under a private act against another power com-
In a suit by a power company organized
pany subsequently organized under the general
law to quiet title, the private act was admissible
in evidence, whether valid or invalid, as it
was the foundation of the equity asserted in
the bill, and the overruling of an objection
thereto did not necessarily involve any right
under the federal Constitution.

2. COURTS 396(4)—ASSERTION OF FEDERAL
RIGHT IN STATE SUPREME COURT INSUFFI-
CIENT TO AUTHORIZE REVIEW BY FEDERAL
SUPREME COURT.

Assuming that a right under the federal Constitution was properly claimed in the trial court, where the claim was not presented to or passed upon by the state Supreme Court, there was no basis for a review by the federal Su

3. COURTS 396(5)—ASSERTION OF FEDERAL RIGHT COMES TOO LATE IN PETITION FOR WRIT OF ERROR AND ASSIGNMENT OF ERRORS.

The defendant places some reliance upon the decisions of this court in Belk v. Meagh-preme Court. er, 104 U. S. 279, 26 L. Ed. 735, and Reavis v. Fianza, 215 U. S. 16, 30 Sup. Ct. 1, 54 L. Ed. 72, but neither contains any statement or suggestion that the section dispenses with a mineral discovery or cures its absence. The opinion in the first shows affirmatively that there was a discovery and that in the other shows

*308

that the controversy, although of *recent ori

Where a claim of a right under the federal Constitution was not presented to or passed upon by the state Supreme Court, it was too late to present the matter in the petition for a writ of error and in the assignment of errors filed in the federal Supreme Court.

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

(40 Sup.Ct.)

4. COURTS 396(4)-FAILURE TO SET UP FEDERAL QUESTION IN STATE COURT NOT CURED BY ALLOWANCE OF WRIT OF Error.

Where no federal question was set up in the state Supreme Court, the omission was not cured by the allowance of a writ of error by the Chief Justice of that court.

ment of privileges and immunities and equal protection of the laws had been violated. But this claim was not presented to nor passed

*343

upon by the *Supreme Court of the state. The only basis for the contention that it was so presented is the fact that, when the CarolinaTennessee Company offered in evidence at

In Error to the Supreme Court of the State the trial in the superior court the private

of North Carolina.

Suit by the Carolina-Tennessee Power Company against the Hiawassee River Power Company. A decree for plaintiff was affirmed by the Supreme Court of North Carolina (175 N. C. 670, 96 S. E. 99), and defendant brings error. Dismissed for want of jurisdiction.

law as its charter, objection was made to its admission "on the ground that the same was in terms and effect a monopoly and a void exercise of power by the state Legislature which undertook to provide it, it being opposed and obnoxious to the bill of rights and the Constitution and in violation of the Fourteenth Amendment," and that the

Mr. Eugene R. Black, of Atlanta, Ga., for admission of this evidence is among the plaintiff in error.

many errors assigned in the Supreme Court

Mr. Julius C. Martin, of Asheville, N. C., of the state. The law, whether valid or infor defendant in error.

*#342

valid, was clearly admissible in evidence, as it was the foundation of the equity asserted in the bill. No right under the federal

*Mr. Justice BRANDEIS delivered the Constitution was necessarily involved in opinion of the Court.

The Carolina-Tennessee Power Company, a public utility, was incorporated by a private law of North Carolina with broad powers, including that of taking by eminent domain riparian lands of and water rights in any nonnavigable stream of the state. It filed locations for two hydro-electric plants on the Hiawassee river and proceeded to acquire by purchase and by condemnation the lands and water rights necessary for that development. Thereafter the Hiawassee River Power Company was organized under the general laws of the state and threatened to locate and develop on that river hydro-electric plants which would necessarily interfere with the development undertaken by the Carolina-Tennessee Company. The latter brought in the superior court of Cherokee county a suit in the nature of a bill to quiet title. The case was tried in that court with the aid of a jury. Many issues of fact were raised and many questions of state law presented. A decree entered for the plaintiff below was reversed by the Supreme Court of the state and a new trial was ordered. Carolina-Tennessee Power Co. V. Hiawassee River Power Co., 171 N. C. 248, 88 S. E. 349. The second trial resulted also in a decree for plaintiff below which was affirmed by the state Supreme Court. 175 N. C. 670, 96 S. E. 99. The case comes here on writ of error.

that ruling. The reference to the "bill of rights and the Constitution" made when objecting to the admissibility of the evidence was to the state Constitution and the point was not again called to the attention of that court. Compare Hulbert v. Chicago, 202 U. S. 275, 279, 280, 26 Sup. Ct. 617, 50 L. Ed. 1026. The claim of invalidity under the state Constitution was specifically urged in that court as a reason why the Carolina-Tennessee Company should be denied relief and the claim was passed upon adversely to the plaintiff in error; but no reference was made in that connection to the Fourteenth Amendment.

[2-4] If a general statement that the ruling of the state court was against the Fourteenth Amendment were a sufficient specification of the claim of a right under the Constitution to give this court jurisdiction (see Clarke v. McDade, 165 U. S. 168, 172, 17 Sup. Ct. 284, 41 L. Ed. 673; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 248, 22 Sup. Ct. 120, 46 L. Ed. 171; Marvin v. Trout, 199 U. S. 212, 217, 224, 26 Sup. Ct. 31, 50 L. Ed. 157), still the basis for a review by this court is wholly lacking here. For the Fourteenth Amendment was mentioned only in the trial court. In the Supreme Court of the state no mention was made of it in the assignment of errors; nor was it, so far as appears by the

*344

record, otherwise presented to or *passed up[1] The federal question relied upon as giv-on by that court. The denial of the claim ing jurisdiction to this court is denial of was specifically set forth in the petition for the claim that the private law incorporating the writ of error to this court and in the the Carolina-Tennessee Company is invalid, assignment of errors filed here. But obbecause it conferred upon that company viously that was too late. Chicago, Indianbroad powers of eminent domain, whereas apolis, etc., Ry. v. McGuire, 196 U. S. 128, the general law, under which the Hiawassee 132, 25 Sup. Ct. 200, 49 L. Ed. 413. The Company was later organized, conferred no omission to set it up properly in the Supreme such right; the contention being that there- Court of the state was not cured by the alby the guaranty of the Fourteenth Amend-lowance of the writ of error by its Chief For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Justice. Appleby v. City of Buffalo, 221 U.
S. 524, 529, 31 Sup. Ct. 699, 55 L. Ed. 838;
Hulbert v. Chicago, 202 U. S. 275, 280, 26
Sup. Ct. 617, 50 L. Ed. 1026; Marvin v.
Trout, 199 U. S. 212, 223, 26 Sup. Ct. 31,
50 L. Ed. 157.

We have no occasion, therefore, to consider whether the claim of denial of rights under the Fourteenth Amendment, was substantial in character which is required to support a writ of error. Equitable Life Assurance Society v. Brown, 187 U. S. 308, 311, 23 Sup. Ct. 123, 47 L. Ed. 190. Compare Henderson Light & Power Co. v. Blue Ridge Railway, 243 U. S. 563, 37 Sup. Ct. 440, 61

L. Ed. 900.

Dismissed for want of jurisdiction.

(252 U. S. 313)

REDERIAKTIEBOLAGET ATLANTEN v.
AKTIESELSKABET KORN-OG FOD-
ERSTOF KOMPAGNIET.

(Argued March 10, 1920. Decided March 22,

1920.) No. 171.

1. ARBITRATION AND AWARD 7 — REFUSAL
TO PROCEED WITH VOYAGE NOT COVERED BY
PROVISION OF CHARTER PARTY AS TO ARBI-
TRATION; "DISPUTE."

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penalty only, and does not prevent recovery on the ordinary liability on the undertakings of the contract, is presumed to represent the continental point of view.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit.

Libel in admiralty by the Aktieselskabet Korn-Og Foderstof Kompagniet against the Rederiaktiebolaget Atlanten. A decree for the libelant (232 Fed. 403) was affirmed by the Circuit Court of Appeals for the Second Circuit (250 Fed. 935), and the claimant brings certiorari.

Affirmed.

See, also, 248 U. S. 553, 39 Sup. Ct. 8, 63 L. Ed. 418.

Messrs. John W. Griffin, of New York City, and Clarence Bishop Smith, of New York City, for petitioner.

Mr. Roscoe H. Hupper, of New York City, for respondent.

#314

*Mr. Justice HOLMES delivered the opinion of the Court.

This is a libel in admiralty by a Danish corporation, the respondent here, against a Swedish corporation, owner of the steamship Atlanten, for breach of a charter party made in Denmark, on September 30, 1914. The voyage was to be from a southern port in the United States to Danish ports to be named. On January 8, 1915, the owner (the petitioner) wrote to the charterers that owing to the increased war risk and other difficulties "we are compelled to cancel the Atlanten's charter party Pensacola to Scandi[Ed. Note. For other definitions, see Words navia, and are ready to take all the conseand Phrases, First and Second Series, Dispute.]quences the Court after Clause No. 24 in the

The refusal of a steamship owner to proceed with the voyage for which the steamer was chartered was not such a "dispute" as was covered by a clause of the charter party providing that, if any dispute arose, it would be settled by referees, one to be appointed by the captain, one by the charterers, and, if necessary, the arbitrators to appoint an umpire.

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In a suit in admiralty for breach of a charter party, an allegation of the answer that a provision of the charter for arbitration of any dispute was binding by the laws of Sweden and Denmark, and that arbitration was a condition precedent to the right to sue, merely meant that the agreement would be enforced according to its intent, and did not extend the scope, or affect the construction, of the provision.

3. SHIPPING 141(1)-LIMITATION OF LIABILITY IN CHARTER NOT APPLICABLE TO INEXCUSABLE REFUSAL TO UNDERTAKE VOYAGE.

$315

charter party will compel us to pay, not ex-
ceeding the estimated amount of freight." It
offered to proceed, however, if the charterers
would pay a higher rate. This libel was
brought five months later. The owner in its
answer admitted the breach, but set up the
clause 24 of the char*ter, "Penalty for non-
performance of this agreement to be proved
damages, not exceeding estimated amount of
freight," and clause 21, "If any dispute arises
the same to be settled by two referees, one
to be appointed by the Captain and one by
charterers or their agents, and if neces-
sary, the arbitrators to appoint an Umpire.
The decision * *
shall be final, and

The provision of a charter that penalty for nonperformance should be proved damages, not exceeding the estimated amount of freight, if any party attempting to revoke this submission to arbitration without leave of a court treated as a limitation of liability, did not ap-shall be liable to pay to the other or others, as ply to a case of willful unexcused refusal to go on with the voyage.

4. EVIDENCE 81-MARITIME LAW OF ENGLAND PRESUMED FOLLOWED IN CONTINENTAL EUROPE.

The rule in England that a provision of a charter providing that the penalty for nonperformance shall be proved damages, not exceeding the estimated amount of freight, is a

liquidated damages, the estimated amount of chartered freight." It is alleged that by the laws of both Denmark and Sweden such a provision is binding and that arbitration is a condition precedent to the right to sue by reason of any dispute arising under the charter. The case was heard on exceptions to the answer. The District Court made a de

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

(40 Sup.Ct.)

cree for the libellant for full damages, | [1915] 3 K. B. 66; Watts, Watts & Co., Ltd. Aktieselskabet Korn-Og Foderstof Kompag-v. Mitsui & Co., Ltd., [1917] A. C. 227; niet v. Rederiaktiebolaget Atlanten, 232 Fed 403, and this decision was affirmed by the Circuit Court of Appeals, 250 Fed. 935, 163 C. C. A. 185, Ann. Cas. 1918E, 491.

[1916] 2 K. B. 826, 844; Watts v. Camors,
115 U. S. 353, 6 Sup. Ct. 91, 29 L. Ed. 406.
Presumably this is also the continental point
of view. We are of opinion that the decree
was clearly right.
Decree affirmed.

(252 U. S. 344)

STATE OF ARKANSAS v. STATE OF
MISSISSIPPI.

1920.)

[1, 2] With regard to the arbitration clause we shall not consider the general question whether a greater effect should not be given to such clauses than formerly was done, since it is not necessary to do so in order to decide the case before us. For this case it is enough that we agree substantially with the views of Judge Learned Hand in the District Court and Judge Hough in the Cir- (Submitted March 8, 1920. Decided March 22, cuit Court of Appeals. Their opinion was that the owner repudiated the contract and that the arbitration clause did not apply. It is true that it would be inaccurate to say that the owner repudiated the contract in toto, for the letter that we have quoted assumed that the contract was binding and referred to it as fixing the liability incurred. It meant simply that the owner would not proceed with the voyage.

United States v. McMullen, 222 U. S. 460, 471, 32 Sup. Ct. 128, 56 L. Ed. 269. But we agree that such a refusal was not a "dispute" of the kind referred to in the arbitration clause.

As Judge Hand remarked, the withdrawal

*316

STATES

No. 7, Original.

12(2)—BoundARY BETWEEN ARKANSAS AND MISSISSIPPI LOCATED.

The boundary line between Arkansas and Mississippi south of a point about one mile southwest of Friars Point, Miss., is in the middle of the main channel of navigation of the Mississippi river as it existed in 1783, subject to such changes as have since occurred through natural and gradual processes, but unaffected by the avulsion occurring about 1848, and resulting in the formation of a new main channel of navigation.

In Equity.

Original suit by the State of Arkansas against the State of Mississippi. On motions for the appointment of a commission to run, locate, and designate the boundary line, Commissioners appointed and instructed as to their duties.

See, also, 250 U. S. 39, 39 Sup. Ct. 422, 63 L. Ed. 832.

Messrs. John D. Arbuckle, Atty. Gen., John M. Moore, of Little Rock, Ark., and Herbert Pope, of Chicago, Ill., for State of Arkansas.

Messrs. Frank Roberson, Atty. Gen., Gerald Fitz Gerald and George F. Maynard, both of Clarksdale, Miss., and Marcellus Green and Garner W. Green, both of Jackson, Miss., for State of Mississippi.

was before the voyage began and it is absurd to suppose that the captain, who might be anywhere in the world, was to be looked up and to pick an arbitrator in such a case. The clause obviously referred to disputes that might arise while the parties were trying to go on with the execution of the contract-not to a repudiation of the substance of the contract, as it is put by Lord Haldane in Jureidini v. National British & Irish Millers Ins. Co., Ltd., [1915] A. C. 499, 505. The allegation in the answer as to the laws of Denmark and Sweden we do not understand to mean more than that arbitration agreements will be enforced according to their intent. It does not extend the scope or affect the construction of an agreement which, as we should construe it apart from that allegation, does not apply to the present case. [3, 4] Paragraph 24 of the charter, supposed to limit liability, may be met in similar and other ways. If it were a limitation of liability it hardly could be taken to apply to a case of wilful unexcused refusal to go on with the voyage. It obviously was not intended to give the owner an option to go on or stop at that price. But furthermore, as was fully pointed out below, the clause is a familiar modification of a very old one, 1. The true boundary line between the and in the courts of England that have had States of Arkansas and Mississippi, at the frequent occasion to deal with it, is held places in controversy in this cause, aside to be only a penalty, even in the present from the question of the avulsion of 1848, form, and to leave the ordinary liability up- hereinafter mentioned, is the middle of the on the undertakings of the contract unchang- main channel of navigation of the Missised. Wall v. Rederiaktiebolaget Luggode, sippi River as it existed at the Treaty of

This cause came on to be heard by this Court on the motions and suggestions of counsel for the respective parties for the appointment of a commission to run, locate, and designate the boundary line between the States of Arkansas and Mississippi as indicated in the opinion of this Court delivered

*345

on the 19th day of May, 1919, and thereupon and on consideration thereof, It is ordered, adjudged and decreed as follows, viz.:

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

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