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(45 S.Ct.)

if the lessors were found to be entitled to any money from the plaintiff, it should be paid to the Bureau and credited to lessors. The ferries were taken over, and their operation was commenced by the Bureau, November 1, 1918.

-was to find the changes which had occurred in the value of the properties due to changes in condition of the things received by the lessee at the beginning and returned to lessors at the end of the term, and also the changes due to retirements, additions and betterments during the term. It is appar

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The appraised value of the properties as of March 31, 1909, was $152,274.40. The ap-ent from the provisions of the lease-and in praised value as of October 31, 1918, deter- his argument before the court plaintiff's mined under the agreement, was $164,928.68. This valuation, except as to certain items amounting to $33,688.65, was based on prewar conditions and values. The Court of Claims found that the value of the properties as of the last-mentioned date, based on war prices and values then prevailing, was $289,

575.80.

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counsel conceded-that it was not intended that any gain or loss to lessors or lessee should result from differences between unit prices existing at the beginning of the term and those prevailing at its expiration. Plainly, it was not the intention of the agreement to give plaintiff the benefit of high prices then prevailing. It was not the owner, *It is clear that, under the agreement of and its lease was about to expire. On the October 8, 1918, the United States was basis of the appraisals provided for in the bound-and it was stated by its counsel lease, it would have been entitled to receive that it has been willing-to pay plaintiff no more than $12,654.28. The parties knew the difference between the appraised value that prices in October, 1918, were much highof the properties turned over to lessee, er than those on which the appraisal of March 31, 1909, and the appraised value of March 31, 1909, was made, and that, if they those turned over by plaintiff, October 31, were to be taken as the basis of appraisal 1918. But by its petition in this action plain- under the agreement, plaintiff, by mere rise tiff asserted that it was entitled to have that of prices applicable to property it did not value determined on the basis of prices pre-own, would profit enormously. It was not vailing October 31, 1918, alleged that this in position to exact any such amount. The was $343,702.16, and prayed that the appraisers' valuation be set aside, and that the court determine the value and give plaintiff judgment against the United States for the amount thereof.

The Court of Claims found the facts as indicated above. As a conclusion of law, it decided that the petition should be dismissed for want of jurisdiction. It entered judgment that the plaintiff was not entitled to recover, and that the petition be dismissed. Plaintiff was not entitled to recover the value of the properties it turned over to the United States. There was no expropriation. The transfer was made under the agreement. The valuation under the agreement was not required to be made on the basis of war conditions and prices then prevailing. The appraisal was to take place as of the time, and it was to be made as if, the lease had terminated. The purpose of the two appraisals provided for in the lease-one at the beginning and the other at the end of the term

provisions of the agreement show that the parties intended to make no change in the basis of valuation. The appraisal was to be made as if the lease had terminated, and on the same basis of prices and conditions. This so plainly appears from the language of the agreement that elucidation is not necessary.

Plaintiff did not seek to recover on the basis of the appraisal made under the agreement with the United States, but on the contrary, it assailed that valuation as null and void. The only ground of attack relied on in this court was that the appraisers misconstrued and misapplied the agreement. But, as above indicated, we hold there was no misinterpretation. The facts found are not sufficient to entitle the plaintiff to have the award set aside, or to any relief in a court of equity. Therefore the jurisdiction of the Court of Claims to grant equitable relief need not be considered. Judgment affirmed.

(266 U. S. 149) for the temporary use by the Government of A. W. DUCKETT & CO., Inc., v. UNITED the premises." Notice of this order was servSTATES.

ed on the Bush Terminal Company on or

(Argued Oct. 23, 24, 1924. Decided Nov. 17, about January 3, 1918, and at about the

1924.)

No. 108.

United States 95-Owner of leasehold in property requisitioned by government entitled to compensation.

Where President, under authority of Act Aug. 29, 1916 (Comp. St. § 1974a), took possession of a pier on which claimant had a lease for a term of years, such claimant was entitled to compensation for loss of his leasehold, and his rights were not affected by any arrangement later made by government with owner to pay to it what might be due tenants.

Appeal from the Court of Claims.

Suit by A. W. Duckett & Co., Inc., against the United States, was dismissed by the Court of Claims for want of jurisdiction (58 Ct. Cl. 234, 403), and petitioner appeals. Reversed, with directions.

Messrs. Don R. Almy and Ernie Adamson, both of New York City, for appellant.

The Attorney General and Mr. Alfred A. Wheat, of New York City, for the United

States.

same time the receiver of A. W. Duckett & Co. was notified that "the Bush Terminal has this day been requisitioned for the use of the embarkation service of the United States Army, and possession thereof has passed to the United States" and he was directed to make arrangements for vacating the premises. As the result of conferences the United States took possession of the pier at midnight, January 31, 1918.

It is unnecessary to go into the details of what was done later, as the acts that we have stated determined the relations of the

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parties. On the face of those acts it seems to us manifest that the United States, although not taking the fee, proceeded in rem as in eminent domain, and assumed to itself by paramount authority and power the possession and control of the piers named, against all the world. Ordinarily an unqualified taking in fee by eminent domain takes all interests and as it takes the res is not called upon to specify the interests that happen to exist. Whether or not for some purposes the new takers may be given the benefit of privity with the former holders,

Mr. Justice HOLMES delivered the opin- the accurate view would seem to be that ion of the Court.

This is a claim against the United States for the value of the claimant's interest in Pier No. 8 of the Bush Terminal Company

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such an exercise of eminent domain founds a new title and extinguishes all previous rights. Emery v. Boston Terminal Co., 178 Mass. 172, 184, 59 N. E. 763, 86 Am. St. Rep. 473; Farnsworth v. Boston, 126 Mass. 1, S. In such a case we no more should expect to hear it argued that leaseholds were not to be paid for than that the former fee simple should not be, on the ground that it was gone and a new fee begun. A right may be taken by simple destruction for public use. United States v. Welch, 217 U. S. 333, 339, 30 S. Ct. 527, 54 L. Ed. 787, 28 L. R. A. (N. S.) 385, 19 Ann. Cas. 680. See Peabody v. Unitpossi-ed States, 231 U. S. 530, 538, 34 S. Ct. 159, and 58 L. Ed. 351. Here the taking purported to Hill be a taking of the Bush Terminal docks, etc. Ct.-not of the title of the Bush Terminal Com

under a lease that ran through Sep*tember 30,
1919. The claim is based upon an implied
contract alleged to have arisen from a tak
ing for war purposes, for such time as might
be necessary, of described portions of the
Bush Terminal docks and warehouses, in-
cluding the claimant's pier. The Court of
Claims dismissed the petition for want of
jurisdiction upon the ground that the facts
found excluded as matter of law the
bility that a contract should be implied
that therefore there could be no claim.
v. United States, 149 U. S. 593, 13 S.
1011, 37 L. Ed. 862.

Under the Act of August 29, 1916, c. 418, 39 Stat. 619, 645 (Comp. St. § 1974a), giving the President authority to take possession of any system of transportation, he took possession through the Secretary of War of the Bush Terminal, in Brooklyn, New York, including Pier No. 8, the Secretary issuing a general order dated December 31, 1917, "To whom it may concern" which stated that "possession and control is hereby taken of the following described parts of a system of transportation that is to say of those portions of the Bush Terminal docks and warehouse property described," etc. "Steps will be promptly taken to ascertain the fair compensation to be paid

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pany, but of the things, to whomsoever they belonged. The notice was "to whom it may concern." The claimant was turned out like the others. We can see no ground for attributing to the United States the extraordinary intent to recognize and pay for other interests but to exclude the claimant. The order made no such distinction but promised fair compensation, seemingly to all, and the subsequent appointment of a board of appraisers contemplated payment to tenants. Any arrangement that the Government may have made later with the owner to pay to it what might be due to the tenants or some of them did not affect the claimant's rights.

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*Omnia Commercial Co., Inc., v. United

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

(45 S.Ct.)

The libel alleges that respondent had charge of the work of repairing the shell plates of the steamer, then resting in a floating dock at Twenty-Seventh street, Brooklyn; that while employed by respondent and working on board appellant suffered injuries through the explosion of a blau torch which the employer negligently permitted to be out of repair. The prayer was for monition according to the course and practice in admiralty and for damages.

States, 261 U. S. 502, 43 S. Ct. 437, 67 L. Ed. | to recover damages for personal injuries re773, which was thought to give some color ceived while he was employed by respondent to the decision below, has no bearing upon and engaged in repairing the steamer Starthe present question. There the Govern- mount. Upon motion the trial court dismissment made a requisition of the entire prod-ed the libel, holding that it had no jurisdicuct of a Steel Company for a year. On the tion of the cause. assumption that the Government thereby made it impossible for the Steel Company to perform a contract to sell a large quantity of steel plate to the claimant, the decision was that nevertheless the contract was not taken. The contract was no part of the res taken and whatever might be the collateral consequences of the appropriation liability for them was not an incident of the Government's act. 261 U. S. 510, 43 S. Ct. 437. Here the claimant's possession under its lease was a part of the res, and therefore was within the implied promise to pay. Whatever the effect of the taking there was a contract implied in fact by the President's order and there is no doubt concerning the jurisdiction of the Court of Claims. United States v. North American Transportation & Trading Co., 253 U. S. 330, 40 S. Ct. 518, 64 L. Ed. 935.

Judgment reversed with directions to award proper compensation to the appellant.

(266 U. S. 171)

[1, 2] Since the decree below (June 14, 1921) we have decided Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 43 S. Ct. 418, 67 L. Ed. 756. The opinion there controls this cause unless the injuries sustained by appellant were not the result of tort, committed and effective, on navigable waters. In The R. W. Parsons, 191 U. S. 17, 33, 24 S. Ct. 8, 48 L. Ed. 73, this court held that repairs to a vessel while in an ordinary dry dock were not made on land. The Jefferson, 215 U. S. 130, 30 S. Ct. 54, 54 L. Ed. 125, 17 Ann, Cas. 907. Here repairs were made upon the ship while supported by a structure floating on navigable waters.

GONSALVES v. MORSE DRY DOCK & RE- Clearly, the accident did not occur upon

PAIR CO.

land. The doctrine followed in Cope v. Val

(Argued Oct. 6, 1924. Decided Nov. 17, 1924.) lette Dry Dock Company, 119 U. S. 625, 627,

No. 3.

1. Admiralty 20-Libel for injuries sustained while repairing steamer in floating dock held within admiralty jurisdiction.

Libel against employer for injuries sustained in repairing steamer supported by structure floating on navigable waters held within admiralty jurisdiction, the accident not having occurred on land.

2. Admiralty

7 S. Ct. 336, 337 (30 L. Ed. 501) that "no structure that is not a ship or vessel is a subject of salvage," has no application. That admiralty jurisdiction in tort matters depends upon locality is settled.

The judgment below must be reversed.

(266 U. S. 161)

STATES ex rel. LYNN.

18-Jurisdiction in tort mat- WORK, Secretary of the Interior, v. UNITED ters depends on locality. Admiralty jurisdiction in tort matters de- (Argued Jan. 16, 17, 1924. Decided Nov. 17, pends on locality.

Appeal from the District Court of the United States for the Eastern District of New York.

Libel by Frank Gonsalves against the Morse Dry Dock & Repair Company. Judgment of dismissal, and libelant appeals. Reversed.

1. Indians

1924.)

No. 17.

23-Discretion of Secretary of Interior as to payment and investment of funds of incompetent allottee.

Act March 3, 1921, § 4, makes it duty of Secretary of Interior to cause payments of to income of Osage Indians be made in amounts and at time specified and to invest exMessrs. Joseph Larocque and Robert Stew-cess in prescribed securities, or to deposit it art, both of New York City, for appellant. Mr. Charles J. McDermott, of New York City, for appellee.

in prescribed banks for benefit of those to whom it is owing, but where payment is to guardian, county court alone is empowered to direct and control investment of what is paid, in view of Act April 18, 1912, § 3, though un*Mr. Justice MCREYNOLDS delivered the der latter statute Secretary may invoke action opinion of the Court. by county court in respect of any matter affecting Indian ward's estate, and is entitled

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

to full consideration of matter presented, but, the moneys, after they were paid to him, can exercise no direct control over use or in- was in the county court. Early in 1922, vestment of money after it is paid to guardian. when the petition was filed, the income due 2. Indians 16(7)-Oil royalties limit of $1,- to the ward and standing to her credit in 000 payable to Indian allottee applies, where the public accounts with the Osages was aphe has guardian, as well as where he is with-proximately $9,000 and further sums were out one. becoming due and being so credited.

If an Osage adult has a certificate of competency showing he is fully capable of managing his own affairs, his full share of income from oil royalties is to be paid, otherwise only limited sum of $1,000 where he is an adult, and $500 where he is a minor, whether there is a guardian or not, under Act March 3, 1921, § 4.

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In his answer the defendant justified his refusal to pay on the ground that in administering the Act of March 3, 1921, c. 120, § 4, 41 Stat. 1249, relating to such payments, he had construed it as meaning that in the case of an incompetent adult having a legal guardian "all income available, including any amount in excess of $1,000 quarterly, should

In Error to the Court of Appeals of the be paid to the guardian," but that the payDistrict of Columbia.

Petition for mandamus by the United States, on the relation of W. G. Lynn, guardian of Rosa Lasley, an incompetent Osage Indian, against Albert B. Fall, Secretary of the Interior. From a judgment of the Court of Appeals of the District of Columbia (52 App. D. C. 155, 285 F. 889), affirming a judgment for relator, Hubert Work, successor to defendant, brings error. Reversed.

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*The Attorney General and Mr. C. Edward Wright, of Washington, D. C., for plaintiff in error.

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ment should, or might in the defendant's discretion, be made subject to a restriction that the moneys be invested or deposited as already indicated; that he had given effect to that construction by adopting and promulgating regulations embodying such a restriction, and that the guardian had declined to assent to it.

Whether the construction so put on the act is right is the question for decision. Other prior and related acts have a bearing on the question.

The Osage Tribe was settled many years ago on a reservation covering all or much Mr. Conrad H. Syme, of Washington, D. C., of what is now Osage county, Okl. See for defendant in error.

chapter 310, 17 Stat. 228.

By an Act of June 28, 1906, c. 3572, 34 Mr. Justice VAN DEVANTER delivered Stat. 539, Congress adopted a plan for disthe opinion of the Court.

This was a petition, in the Supreme Court of the District of Columbia, for a writ of mandamus to compel the Secretary of the Interior to pay to the relator as guardian of Rosa Lasley, an incompetent Osage Indian, her share of certain tribal income. The

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tributing the lands and funds of the tribe among its members. Most of the lands were to be allotted in severalty, partly as homesteads and partly as surplus land; and the remaining lands, including some town lots and buildings, were to be sold for the benefit of the tribe. The oil, gas, coal, and other minerals were to be reserved to the tribe for court sustained a demurrer *to the answer, 25 years and leased during that period on and on the defendant's declining to plead royalties. Certain tribal funds were to be further, a judgment was entered awarding held in trust by the United States for 25 the writ. The judgment was affirmed by the years and then paid to the members. In the Court of Appeals (52 App. D. C. 155, 285 F. meantime, and as soon as practicable, these 889), and the case is here on writ of error. funds were to be segregated and placed to Rosa Lasley is an adult member of the the credit of the individual members on the Osage Tribe, enrolled as such, and entitled to basis of a pro rata division. The amounts share in the tribal income. She never was credited were to draw interest and the intergiven a certificate of competency by the est was to be paid to the members quarterly. Secretary of the Interior. In 1919 the county The interest due to minors was to be paid to court of Osage county, Okl., adjudged her the parents, but where the Commissioner of an incompetent person and appointed the Indian Affairs became satisfied that the parrelator her guardian. Up to the end of Sep- ents were misusing or squandering the money tember, 1921, her share of the tribal income further payment might be withheld, and was regularly paid to the guardian, and he where the parents were deceased payment duly accounted therefor to the county court. was to be made to a legal guardian. The proBut the defendant refused to make further ceeds from the lands, town lots, and buildings payments unless the guardian would agree that were to be sold, together with the royalto invest the moneys in United States bonds ties from oil, gas, coal, and other mineral or Oklahoma state, county, or school bonds, leases, and any money received from grazing or to place the same at interest on time deprivileges, were to be placed in the Treasury posits in Oklahoma banks. This the guard- of the United States to the credit of the inian declined to do, because he believed the

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power to direct and control the investment of dividual mem*bers and, subject to deductions

(45 S.Ct.)

not material here, were to be paid to them in | tends the life of all valid oil and gas leases the manner at the times the interest on the existing at the end of the original period trust funds was to be paid. For a period of and changes the original plan in some other 25 years all members were to be regarded as particulars. Section 4 is the important one without capacity to sell or dispose of the here and reads as follows: lands allotted to them, save where adults "Sec. 4. That from and after the passage of were given certificates of competency by the this act the Secretary of the Interior shall Secretary of the Interior on his finding, after cause to be paid at the end of each fiscal quarinvestigation, that they were fully capable of ter to each adult member of the Osage Tribe caring for their own affairs. On the issue having a certificate of competency his or her of such a certificate the lands of the member pro rata share, either as a member of the tribe other than the homestead were to be taxable, or heir of a deceased member, of the interest on trust funds, the bonus received from the and he was to have the right to manage, consale of leases, and the royalties received durtrol and dispose of all excepting the home-ing the previous fiscal quarter, and so long as

stead.

Some changes in the act were effected by a joint resolution of February 27, 1909 (35 Stat. 1167), and an act of March 3 of the same year (chapter 256, 35 Stat. 778), but they are without present bearing.

By an Act of April 18, 1912, c. 83, 37 Stat. 86, Congress altered the first act in some respects and supplemented it in others. The only provision then adopted and material here expressly subjects to the jurisdiction of the local county courts the estates of Osages who are deceased or are orphan minors, insane or otherwise incompetent. That provision is as follows:

"Sec. 3. That the property of deceased and of orphan minor, insane, or other incompetent allottees of the Osage Tribe, such incompetency being determined by the laws of the state of Oklahoma, which are hereby extended for such purpose to the allottees of said tribe, shall, in probate matters, be subject to the jurisdiction of the county courts of the state of Oklahoma, but a copy of all papers filed in the county court shall be served on the superintendent of the Osage Agency at the time of filing, and said superintendent is authorized, whenever the interests of the allottee require, to appear in the county court for the protection of the interests of the allottee. The su

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per*intendent of the Osage Agency or the Secretary of the Interior, whenever he deems the same necessary, may investigate the conduct of executors, administrators, and guardians or other persons having in charge the estate of any deceased allottee or of minors or persons incompetent under the laws of Oklahoma, and whenever he shall be of opinion that the estate is in any manner being dissipated or wasted or is being permitted to deteriorate in value by reason of the negligence, carelessness, or incompetency of the guardian or other person in charge of the estate, the superintendent of the Osage Agency or the Secretary of the Interior or his representative shall have power, and it shall be his duty, to report said matter to the county court and take the necessary steps to have such case fully investigated, and also to prosecute any remedy, either civil or criminal, as the exigencies of the case and the preservation and protection of the interests of the allottee or his estate may require," etc.

Next came the Act of March 3, 1921, with which we are particularly concerned. It enlarges the period for which the oil, gas, coal and other minerals were reserved, ex

the income is sufficient to pay to the adult members of said tribe not having a certificate

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of competency *$1,000 quarterly except where incompetent adult members have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians, and to pay for maintenance and education to the parents or natural guardians or legal guardians actually having minor members under twenty-one years of age personally in charge $500 quarterly out of the income of said minors, all of said quarterly payments to legal guardians and adults, not having certificates of competency, to be paid under the supervision of the Superintendent of the Osage Agency, and to invest the remainder after paying all the taxes of such members either in United States bonds or in Oklahoma state, county, or school bonds, or place the same on time deposits at interest in banks in the state of Oklahoma for the benefit of each individual member under such rules and regulations as the Secretary of the Interior may prescribe," etc.

While this section is in some respects loosely framed, we think its purpose and meaning are reasonably plain-particularly when it is examined in the light of the prior acts, the mischief it was intended to correct, and its legislative history.

When the first act was passed it was believed that the income to be paid quarterly would not be in excess of the current needs of the members. For about 10 years that proved to be true. Thereafter increased production of oil and gas under the leases that were given resulted in royalties which swelled the income to a point where the quarterly payments were greatly in excess of current needs and were leading to gross extravagance and waste. Administrative measures restricting the payments were adopted, but their validity was questioned (see Work v. Mosier, 261 U. S. 352, 43 S. Ct. 389, 67 L. Ed. 693), and the matter was called to the attention of Congress by the Secretary of the Interior. The Secretary recommended the enactment of a provision which, as respects all members other than adults *with certificates of competency, would enable him, in his discretion, to limit the payments to amounts deemed necessary for the maintenance of the members and to invest the excess for their benefit for such time and in

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