include only the mineral beneath the surface, and therefore required that there should be incorporated in the deed the words "together with all the dips, spurs," etc. Yet in requiring the introduction of these words, which in terms define extralateral rights, it also retained the phrase "together with all the mineral therein contained."

To the suggestion that giving this construction to the bond and conveyance is in effect the granting of a section of a vein of mineral, the answer is that there is nothing impracticable or unnatural in such a conveyance. It does not operate to transfer the vein in toto, but simply carves out from the vein the section between the vertical side lines of the ground and transfers that to the grantee. The title to the balance of the vein remains undisturbed.

To the further suggestion that the owner of the apex might be left with a body of ore on the descending vein beyond the further side line of the compromise ground which he could not reach, the answer is that this assumes as a fact that which may not be a fact. The owner of the apex may be the owner of other ground by which access can be obtained to the descending vein, and it also is a question worthy of consideration whether granting a section out from a descending vein does not imply a right reserved in the grantor to pass through the territory of the section conveyed in order to reach the further portion of the vein. Those are questions which need not now be determined. This secondary vein does not appear to have been known at the time of the compromise, and while, of course, there is always a possibility of such a vein being discovered, yet parties are more apt to contract and settle upon the basis of what they know than upon the possibilities of future dis

covery.

The action of the parties hereto is suggestive, although not of itself decisive. This action for the recovery of ore taken out from beneath the surface of the compromise ground was pending when the suit for specific performance was brought in 1894. Nothing was done in this action from that time until

three weeks after a final decision of the specific performance case by this court, when an amended complaint was filed, and the case thereafter proceeded by ordinary stages to trial and judgment. The original complaint alleged the ownership by the St. Louis company of its mining claim and of all veins, lodes or ledges having their tops or apexes inside of its surface boundary lines, with the right to follow those veins, lodes or ledges on the dips or angles outside the side lines of the mining claim. It also alleged that the defendants entered wrongfully upon one of the veins, lodes or ledges having its top or apex within the surface location of the St. Louis claim, and which had in its dip or angle passed outside the side lines of the St. Louis claim and "entered beneath the mining property claimed or pretended to be claimed by the said defendants or some of them, and that in utter disregard of the right or title of plaintiff the said defendants ever since have been and now are extracting and taking therefrom large quantities of coarse rock and ore," etc. In other words, it sought to recover from the Montana company the value of the ore taken by the latter from a vein whose apex was within the surface boundaries of the former's claim, but which in its dip had passed outside the side lines into territory claimed by the Montana company. With that as its claim the litigation was dormant for four years. Now, if it were true that the apex of the vein was within the side lines of the St. Louis claim and the ore taken by the defendant was taken from below the surface of the compromise ground, and all that was accomplished by the compromise and bond was the establishment of a boundary line, leaving subsurface and extralateral rights undisturbed, there was no necessity of postponing the litigation until the question of title to the surface was disposed of. As we have said, we do not mean that this is decisive, because the St. Louis company may have thought that all controversies would be ended if it could once establish that the Montana company took nothing by virtue of the compromise and bond. Still the delay in the litigation is in harmony with the belief that

the words in the bond, "together with all the mineral therein contained," meant all the mineral below the surface.

The disposition of this question compels a reversal of the judgment. It may also effectually dispose of all disputes between the parties, and, therefore, it would be a mere waste of time to attempt to consider other questions which have been discussed with ability and elaboration by counsel.

In view of this conclusion it is also apparent that the order restraining defendant in error from removing ore from the disputed territory ought not to have been set aside.

The judgment of the Court of Appeals is reversed and the case remanded to the Circuit Court with instructions to grant a new trial. Further, the order restraining defendant in error from mining and removing any of the ore in dispute will be reinstated and continued in force until the final disposition of the case.

Judgment reversed and restraining order reinstated.

ERIE RAILROAD COMPANY v. ERIE AND WESTERN TRANSPORTATION COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

No. 134. Argued December 14, 1906.-Decided January 14, 1907.

Admiralty courts, being free to work out their own system and to finish the adjustment of maritime rights, have jurisdiction of an action for contribution for damages paid to third parties as the result of a collision for which both vessels were in fault. The claim is of admiralty origin. The division of damages in admiralty extends to what one of the vessels pays to the owners of cargo on the other vessel jointly in fault. The right of division of damages to vessels when both are in fault and the contingent claim to partial indemnity for payment of damage to cargo are separable, and the decree of division in the original suit, the pleadings in which do not set up such claim for indemnity, is not a bar to a subsequent suit brought to enforce it.

142 Fed. Rep. 9, reversed.

204 U.S.

Argument for Petitioner.

THE facts are stated in the opinion.

Mr. Charles E. Kremer, with whom Mr. W. O. Johnson was on the brief, for petitioner:

The effect of the decision of the Circuit Court of Appeals is to deprive the owner of the New York of a clear right to compel the Conemaugh to share with it the cargo loss arising out of a collision, which this court found and held to have been due to the joint fault of both vessels.

That each of two vessels held jointly at fault should equally bear the damage resulting from such negligence has been frequently decided and is a rule of damages in admiralty settled beyond all question. Schooner Catherine v. Dickinson, 17 How. 170; North Star, 106 U. S. 17; Manitoba, 122 U. S. 97; The Albert Dumois, 177 U. S. 240.

Nothing pleaded in this case in the way of limitation of liability under the statutes takes away or limits this rule.

Prior to the decision of the District Court, when it entered a decree on the first mandate in the original case, there was no decided case, and no established practice, that required the filing of a cross libel or petition praying for recoupment, setoff or contribution.

On the contrary in all of the following cases recoupment was allowed without such pleadings. The Eleonora, 17 Blatchf. 88; Leonard v. Whitwell, 10 Ben. 638; The C. H. Foster, 1 Fed. Rep. 733; Atlantic M. Ins. Co. v. Alexander, 10 Fed. Rep. 279; The Canima, 17 Fed. Rep. 271; The Hercules, 20 Fed. Rep. 305; The Job T. Wilson, 84 Fed. Rep. 149; The Livingstone, 104 Fed. Rep. 918; Albert Dumois, 177 U. S. 240; The Manitoba, 122 U. S. 97.

Recoupment is the right whereby mutual demands which arise out of the same transaction may be adjusted in one action. 25 Am. & Eng. Ency of Law, 547. It is of commonlaw origin and independent of the statutes of set-off. 4 Minor's Inst., 2d ed., 706; 1 Chitty, Pl. (16 Am. ed.), 595; 31 Am. Rep. 775; 8 Viner's Abr., Title Discount, 556. But it may be

Argument for Respondent.

204 U.S.

equity early transposed. Grand L. v. Knox, 20 Missouri, 433; 1 Chitty, Pl. (14 Am. ed.), 568. It applies to common law and equity; also admiralty. Snow v. Caruth, 1 Sprague, 324; Nichols v. Tremlett, 1 Sprague, 361.

Upon what is res adjudicata as applied to this action, see Van Fleet on Former Adjudications, § 256; Bulkley v. House, 21 L. R. A. 247; State Bank v. Bartlett, 114 Missouri, 276; Kalsh v. Mixer, 53 Ohio St. 207; Cottingham v. Earl of Shrewsbury, 3 Hare, 27.

This is a maritime cause of action and therefore within the jurisdiction of the admiralty court. The Mariska, 107 Fed. Rep. 989; The Hudson, 15 Fed. Rep. 162; Dupont v. Vance, 19 How. 162; Wellman v. Morse, 76 Fed. Rep. 573; Ralli v. Troup, 157 U. S. 400; The Irrawaddy, 171 U. S. 187.

Mr. Harvey D. Goulder and Mr. F. S. Masten, with whom Mr. S. H. Holding was on the brief, for respondent:

The libel fails to disclose any ground for the action, other than that the District Court, the Circuit Court of Appeals and this court refused in the collision case to divide the cargo damage equally between the parties at fault, although plaintiff prayed such action at different times in that cause. If it be the law that they should have done this, the error is not open to correction by independent action in the admiralty.

If petitioner had a definite fixed right under the established law of the admiralty to claim from this defendant an equal division of the damage, or to recoup up to the amount due this defendant, an error was committed in the other case which cannot now be corrected, at least in the admiralty.

The right of contribution proper exists only where two or more persons are jointly, or jointly and severally, liable to a third for the same amount, and one or more are compelled to pay more than a rightful share. It arises in the equity of equality, dictating that a common obligation should be borne equally by all obligated for its payment; that one should not,