posits of quartz and other rock in place, containing precious metals of gold, silver and other metals "And

it was stated that it was "the intention of the party of the first part to convey to the party of the second part all of its right, title and interest in and to the above described property" (referring to the claim, which was described). "Together with all the dips, spurs and angles, and also all the metals, ores, gold, silver and metal bearing quartz, rock and earth therein,

The deed is urged as an estoppel and appellant insists that it "operates to grant the fractional interest in 'all earth, rock and ores' found within the exterior limits of the Black Rock claim extended downward vertically," citing therefor Montana Mining Co. v. St. Louis Mining Co., 204 U. S. 204; Bogart v. Amanda Consolidated Gold Mining Co., 32 Colorado, 32.

The cited cases are distinguishable from that at bar. In Montana Mining Co. v. St. Louis Mining Co., the land was conveyed "together with all the mineral therein contained," and the words were distinguished from those conveying extralateral rights and considered as a subject of the grant. In the other case the conveyance was of land in conflict between two claims which were in litigation, and in execution of the intention of the parties the deed was interpreted to convey "not merely the surface ground in conflict, as contradistinguished from the mineral beneath, but with this surface ground all underlying minerals" except one vein which had been excluded.

In the case at bar the conveyance was of an undivided one-fourth interest in and to the "mining claim known as the 'Black Rock' quartz lode mining claim." It passed no rights or interest that did not belong to that claim or would not appertain to it. Or, to put it another way, the deed passed the rights and interests that were derived from the United States by the location of that claim and conveyed by the patent to the locators. It was not intended to con

vey any of the rights of the Elm Orlu and denude it of the extralateral rights that the law conferred upon it. In other words, the contention of appellant would make the deed a conveyance of the Elm Orlu as well as of the Black Rock.

1

We do not stop to specialize either the contests of or the judgments on particular veins. Their relative locations and the rights in them are disposed of by what we have said. But an earnest and special contest is made on the finding of the court in regard to a vein designated as the Pyle strand. The District Court said, as we have seen, "that the Pyle strand of the Rainbow at some depth in the Elm Orlu diverges from the south side of the said vein and coursing easterly unites with the Rainbow at the Blackrock 1,100 level." And the court decreed the appellees to be the owners of and entitled to the possession of it throughout its entire depth as far as its apex was within the Elm Orlu, but expressly reserved the question of the point where the apex passes out of the Elm Orlu. In other words, in the language of the Circuit Court of Appeals, "the court left to future development the question of how far the Pyle apex continued in the appellees' location, and to what extent beneath the Black Rock it united with the Rainbow in such position as to be controlled by the apex in the Elm Orlu." This action of the District Court is attacked by appellant. It admits, however, that the Pyle strand in its downward course unites with the Rainbow at or about a point which would be intersected by a vertical plane passed through the easterly end line of the Elm Orlu extended northerly in its own direction, but denies that the apex or any portion of the apex is within the Elm Orlu and asserts that where its apex is found is altogether conjectural and that "for aught that appears from the evidence, it may

1 The formal finding of the District Court is as follows: "That the Pyle strand of the Rainbow vein diverges from the south side of the latter vein in the Elm Orlu claim, and there and for some indefinite distance easterly has its apex in the Elm Orlu claim."

have its apex in the Black Rock and, indeed, this is probably the case." And it is urged that a situation is presented not of the weight of evidence, but of the absence of evidence, or, to quote counsel, the decision is "one which finds no support whatever in the testimony." But manifestly these are but assertions-attacks on the estimate of the testimony made by the District Court and Circuit Court of Appeals and the conclusion it justifies.

It is further said that issue was made upon the title to the Pyle strand and that it was the duty of the court to definitely pass upon it and to decide for appellant, but that "instead of entering such a decree, the court so framed, and intentionally so framed, its decree that it would not be a bar to a new suit which appellees might thereafter bring against this appellant to quiet title to all of the vein below the plane of union between it and the Pyle strand, if by further development they discovered additional evidence in support of their contention that the Pyle strand did apex in the Elm Orlu at the point of alleged forking and at its apex continued thence easterly to and across the east end line of the Elm Orlu."

It is true the apex of the Pyle strand was found to be within the Elm Orlu, but all else as to the vein was reserved and, in the circumstances, properly reserved. There was simply retention of the case for supplementary proceedings, as the Circuit Court of Appeals observed, to carry out the decree and make it effective under altered circumstances. Joy v. St. Louis, 138 U. S. 1, 47; Union Pacific Ry. Co. v. Chicago, Rock Island & Pacific Ry. Co., 163 U. S. 564, 603.

Decree affirmed.

G. S. NICHOLAS & COMPANY ET AL. v. UNITED

STATES.

ALEX. D. SHAW & COMPANY ET AL. v. UNITED

STATES.

CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS

APPEALS.

Nos. 62, 63. Argued January 14, 1919.-Decided March 3, 1919.

The allowance of three pence and five pence per gallon made under 23 & 24 Vict., c. 129, and later acts of Parliament, on exportation of certain British spirits, if not a "bounty," is a "grant" within the meaning of Paragraph E of § 4 of the Tariff Act of 1913, providing for a countervailing duty whenever any country shall pay or bestow, directly or indirectly, any bounty or grant upon the exportation of any article or merchandise dutiable under the act. Notwithstanding the facts that such allowances may be intended merely as compensation to distillers and rectifiers for costs due to British excise regulations and are not confined to cases of exportation, they are, as applied to exports, governmental payments—“grants”made only upon exportation, which, by lessening the burden of British taxation, enable the spirits to be sold more cheaply here than at home, the situation against which Paragraph E was intended to provide. P. 37. United States v. Passavant, 169 U. S. 16, followed.

7 Cust. App. Rep. 97, affirmed.

THE case is stated in the opinion. For the decision of the Board of General Appraisers, see G. A. 7758, 29 T. D. 59.

Mr. Albert H. Washburn for petitioners in No. 62.

Mr. W. P. Preble for petitioners in No. 63.

Mr. Assistant Attorney General Hanson for the United States.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Writs of certiorari to review a judgment of the Court of Customs Appeals affirming a decision by the Board of General Appraisers which overruled the protests of petitioners against the action of collectors of customs at Boston and New York assessing additional or countervailing duties on whiskey and gin imported from Great Britain. 7 Cust. App. Rep. 97.

Paragraph E of § 4 of the Tariff Act of 1913 (38 Stat. 114) reads as follows:

"E. That whenever any country, dependency, colony, province, or other political subdivision of government shall pay or bestow, directly or indirectly, any bounty or grant upon the exportation of any article or merchandise from such country, dependency, colony, province, or other political subdivision of government, and such article or merchandise is dutiable under the provisions of this Act, then upon the importation of any such article or merchandise into the United States, whether the same shall be imported directly from the country of production or otherwise, and whether such article or merchandise is imported in the same condition as when exported from the country of production or has been changed in condition by remanufacture or otherwise, there shall be levied and paid, in all such cases, in addition to the duties otherwise imposed by this Act, an additional duty equal to the net amount of such bounty or grant, however the same be paid or bestowed. The net amount of all such bounties or grants shall be from time to time ascertained, determined, and declared by the Secretary of the Treasury, who shall make all needful regulations for the identification of such articles and merchandise and for the assessment and collection of such additional duties."

The question in the case is the legality of the counter