REPORTER,
vol. 58..
and before final dividend is d.oolared." Such a claim. cannot be proved before the liability has becromefixed. Until that time it is not regarded as a debt due and paya;l>le, or even as a debt existing, but not payable until a future daY,soas to be prov,able:. In re Loder, 4: Ben. 305. But it is said that the 'petitioners ha.ve an equity which this Court will recognize alldafuninister. The practical difficulty is inl!lurmountable. If this equity is recognized and .protected,to what extent shall it be done? Will: ,the courts declare:a, dividend proportio;Qate ,to the whole prinand ,the coupons accruing be,tween this. date and 1911.? Will it go into an estimate by balancing probabilities, and attempt now to fix a $Um. which will represent the present. value of this 'gul¥ratity? When! ,the' holders of these. bonds accepted the simple (;guaranty of· tha, rGay Manufacturing Oompany at the long date, they did so knowing· that it was subject to all the vicissitudes whichmay,befall a.::trading corporation. They voluntarily sus· of action until a IlJ,teperiod, knowing that the. cQrporationwould incur 'debts, and that these debts must be paid. The petitioners at this 'stage o{ the cause ,can have no standing in c.Qurt. This ease has been,decided as, between creditors and persons clai.ming to be creditors·. , It at the bar that the property of the ,Gay ManUfacturing Oompany may realize more than enough to pay theUensand the proved past-due debts. Shoul4 this be the result of the sale, there way arise a very different ques· titmwith regard to tbds surplus, as between the petitioners and the stockholders. :No optnion -is expressed on this point. . Deciding the case simpty, upon the equities between creditors and these peti: tionel's, ;we ,lUfum the; c,ircuit decree dismissing the petition, with costs. Let tne case be remanded to the circuit court for such proceedings as may be. proper. .As great delay has already in enforcing .the unquestionable rights of lienholders, let the man· date issue on the filing of this opinion. NORTHERN PAC. R. co. v. AMACKER et aI. (Circuit Court, D.. November 14, 1892.)
same, ·after such' liability becomes fixed,
1.
PUBLIO LANns--PRE,lCMP'l'ION-ABANDONMENT.
One S. :(lied his declaration of intention to claim certain land near Helena, Mont., .under. the pre-emption law. He built a cabin, and lived there part of. the year. 1869. He thim removed to Helena," and resided there Iiine.years.Thereatter he resided in Butte City. 'He failed to comply in any way with thepre-emptlon law after leaving the land. Held, that he had lI,bajldoIl,ed his right to purchase 'When hp left the land.
2.
SAMljl-,..BoMEsTE.\D
its land grant, which was to littach when the,Me should be definitely fixed, and a plat filed in the geneta11and office: . The general toute was located ]'ebruary 1, 1872. ,On May 3, 1872, one;M.·,filed an auplication to enter certain land as part Of his homestead clahn. Notice of the withdrawal of the lands at the time of the ti,xWg. of t;he {:eneraI route of the railroad from sale, entry, or preemption was filed in the local land office in Helena, Mont., May 6, 1872. The act of' April 21, 1876, provided that entries made in good faith by actualsettlers !UDder any law of the United States upon laUds within the
Ill. 18(f4 the .. Northern. Pacific Railroad received
LAND GRANT.
NORTHERN PAC. R. CO. f1.
49
limits of any land grant prior to the notice of the withdrawal of such lands from entry shall be confirmed, and patents shall issue. Held, that M. was entitled to perfect his title under this act.
S.
SAME-CANCELLATION OF ENTRy-PRESUMPTIONS.
On December 1, 1874, the commissioner of the general land office wrote to the register and receiver of the land office at Helena, Mont., that M.'s entry was held for cancellation, on the ground that the right of the railroad had attached prior to the entry. On July 3, 1879, the register and receiver wrote to the commissioner of the general land office that M. had been notified to show cause why his entry should not be canceled, that no action had been taken on such notice, and recommending the canceling of the entry. September 11, 1879, the acting commissioner of the general land office replied, canceling the entry. On July 2, 1882, the definite route of the plaintiff's road was fixed opposite this land, and a plat filed with the cOlluuissioner of the general land office. Held, that it should be presumed that the land officers performed their duty, and served M. with due notice of the proceedings to cancel his entry. Cofield v. McClelland, 16 Wall. 331, follOWed.
On the, cancellation of M.'s entry the land was restored to the public domain; as free for occupation or p;Urchase as if the entry had never attached thereto. Ii. SAME-HoMESTEAD ENTRIES-AcT JUNE 15, 1880. Subsequent to this cancellation, the act of June 15, 1880, was passed, which provided in seetion 2 that any persons who had theretofore, under any of the homestead laws, entered lands properly subject to entry, or any persons to whom the rights thereby acquired had been attempted to be conveyed by bona fide instrument in writing, might entitle themselves to the lands by paying the government price, etc. M. died without taking any steps to acquire title under this statllte. Before the map of definite location of the railroad was filed, but, after such location, his widow tiled an application to be allowed to perfect the entry. Held, that the right given by this act to }f. or to his it it applied to her at all, was a mere personal privilege. not constituting any interest or right in the land, and, as the privilege was not exercised before the definite location of the road, the land was then such as the United States had full title to, "not reserved, sold, granted, or otherwise appropriated, and free from any pre-emption or, other claim or right," and hence the title vested in the railroad' company at that time.
4.
SAME.
At Law. Action in the nature of ejectment by the Northern Pacific Railroad Company against Maria Amacker and others. Judgment for plaintiff. F. M. Dudley and W. E. Cullen, for plaintiff. 'I'hos. O. Bach and Massena Bullard, for defendants. KNOWLES, District Judge. This is an action in the nature of ejectment, brought by plaintiff to recover from defendants the possession of the S. 1-2 of the N. W. 1-4 of section 17, in township 10 N., range 8 W. of the principal meridian of Montana. Plaintiff alleges that it is the owner in fee simple of said land; that defendants have ousted and ejected it therefrom, and withhold the possession thereof from it. Defendants, in their answer, deny the allegations of ownership of said lauds set forth in the complaint, and those concerning tbeouster of plaintiff, but admit that they are in possession of the same,and are holding the. same against plaintiff. 'l'he evidence in this case fllliy establishes as a fact. that plaintiff received from the United States, in 1864, a grant of all odd sections of pubHc land not
60
I'ED)!lRAL REPORTER,
vol. 53.
amount'6f20 mlleolleachside of sitidplaliltiff's railroad' line which 'it ,Should ,through the United Stares should have territory of Montana, and full to the same,not reserved, sold, granted; or otherwise appropriated, and free claims ,or rights at the ,a plat thereof time .t):leJine of said road $hou,ld be Mfhiitely filed in the office of the commissioner of the generallarid office; that plainillfoocepted the grant, and constructed the road, ,named in the act making the same; that the land in dispute is lin odd section within:40 miles of the definite line of $aid road, :fixed as required by " , ' In October, 1868,' one Wllliam M., Scott, it appears, filed in the United,States land office at Helena,lIont., Ilis <ieclaratory statement to theef'feC't that it waS his intention to claim the said tract of land as a pre-emption right under the provisions of the act of congress of September, 1841. In 1869 he built a and lived there until the fall of that year, 'when he left the sarne,and moved to the city or town of Helena, where he lived until 1878, when he reo mOYeg i;QButte, Mont. He ret1l1'ned toj!l;tid land after leM1311bsequentlyexercised any, acts of ownersllip over, the lsame. Helena is but a short distance from where tIlls land i$ldtua.te,-:-less than three miles.' On .l!tty: 1872", Willialll. flIed an application in the United States land office>,at Helena, Mont., to enter, ,;the sanie as a part of his homestead clainl. It does 'not appear as to whether or not he ever resided upon,s,!-idland, or ever made any improvements upon the, sarme.OXlDecember .1, 1874, the commissioner of, tI:te general land office wrote to the register of the United States land office, at Helena, Mont., informing them that this homestead entry of with' others, was held for cancella:tion, on the ground that the same was made subsequent to the:, tiJ;ne at which the right of the Northern Pacific Railroad Company attached to the same as a part of an odd section witllin their grant, 'and directing thenito serv:e'notice upon McLean to show cause whylt Should not be eanceled. It appears that the general route of the Northern Pacific Railroad opposite to the land in dispute was located..apout February 1, 1872. V\lhether any notice was ser:ved, or further done at that time, does not appear. On the 3d day of July, 1879, the regif;!te;r and receiver of the said Helena land office, the same being J. H. Moe and F..P. Sterling, respectivelY,wrote to the commissioner of the general land office the following
'a,
"We have the honor to report that June 2nd, 1879, the applicants to the fol· with your circular loWing homestead entries were duly notified in 'Of December 20th, 1873. to. show cause within thirty days from date of said notice why their entries shoUld not be canceled, and up to this date no action bas been taken: * * * No. 819, William McLean, W.I-2, N. W.1.4, S. E. 1-4, N. W. 1-4" and, S. W. 14, N. E. 14, of sec. 1;7, 10 N., 3 May 3d, 1872. 'Ve would respectfully recommend that entries be canceled."
w..,
On September 11, "1879, the acting of the general land office wrote to the register and rooe1"er of the Helena land office the following otllciaHetter: '
NORTHERN PAC. R. CO. fJ. AMACKER.
51
"I: am in receipt of YQut: lettel'f$ of June 4th and July 3d last, stating that the applicants in the followliig homestead were dilly notified, in ac20th, 1873, to show cause why their 'col-dance with the circular of entries' should not. be canceled, ·and that no action had been taken by them, and recommending for the said entries, viz.: · · · .No. 819, made May 3d, 1872, by William McLean, W. 1-2, N. W. 1-4, S. E. 1-4, N. W. 1-4, and S. W. 1-4, N. E. 1-4, sec. 17, 10 N., R. 3 W. · · · In 'iew of the fact that the above entries were held for cancellation in Nov. and Dec., 1874, and of the further facts that the parties have allowed the limitation provided by statute to expire without making final proof as required, and have failed to establish their claims after due notice given, the said entries are hereby canceleO...·
The inference from these letters is that, as a fact, there had been no cancellation of McLean's entry until this letter. of September 11th. On July 2, 18S2, the definite route of plaintiff's road was fixed opposite to where this land was located, and a plat thereof filed with thQ c.Qmmissioner of the general land office. In August, 1882, Wil· liam McLean died. On or about the 15th day of March, 1883, Maria McLean, as widow of William McLean; made her application to enter said land, stating in the same that she applies to perfect the said homestead entry made by her husband on the 3d day of May, 1872, and that her claim thereto is based upon the second section of the act of congress approved June 15, 1880, and section 2291 of the Revised Statutes of the United States. Plaintiff contest£d this application. On the 20th day of February, 1885, the commissioner of the general land office sustained the application of the said Maria McLean. Plaintiff appealed from this decision to the secretary of the interior. On March 28, 1887, H. L. Muldrow, as acting secretary of said department, affirmed the decision of the commissioner of the general land office, and the application of Maria McLean was again sustained,arid a patent to said land awarded her. The provisiOns of the United States statut considered in deciding '.S this question as follows: Act of April 21, 1876: "That all pre-emption and homest.!ad entries, 01' entries in compliance with any law of the 'United States, of the public lands, made in good faith, by lwtual settlers, upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land priorto the time when notice of t4e withdrawal of the lands embrfWed in such grant was received at the local land office of the district in whichsuch lands are situated, or after their restoration to market by prder of the general land office, and where the pre-emption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed, and patents for the same shall issue to the parties entitled thereto." "Sec. 2. That when at the time of such withdrawal as aforesaid valid preemption or homestead claims existed upon any lands within the limits of any sueh grants, which afterwards were abandoned, and under the decisions and rulings of the land department were re-entered by pre-emption or homestead claimants who have complied with the laws governing pre-emption or homestead entries, and shall make the proper proofs required under such laws, !;fuch entries shall be deemed valid, and patents shall Issue therefor to the person entitled thereto." .
See Supplement to the Revised Statutes of the United States, p. 99. Section 3 of said act. refers to entries made subsequent to the expiration of a land grant, and has no. reference to any such ques-
52
'F:Il:DERAL REl'ORTEn;'
vol. 53
til;lnmt1s 1# c'ase. ,1li.e.notice:of the ,:wtthdrawal()f the lands, at the time of the fixing of the general route of plaintiff's. road, from sale, entry, or pre-emption, by the commissioner of the gerieral-Iand offiCe, 'was 1Ued ill the'local land office at Helena, Mont., _. on M1tY 6, 1872. Section 2, Act 1880, is as fonows: "That persons who have heretofore under any of the' homestead laws ent-ercd lands properly subject to such entry, or persons to whom the right of those having so entered for hom-esteads may ha.ve been attempted to be transferred by bona fide instlUment in writing, may entitle themselves to said lnndlil by paying the price therefor, and in no case less than one dollar and twenty-five cents per acre; llnd the arilount heretofore paid the upon saId: lands shall. be taken as part payment of said price: llrovided, . this shall inao wise interfere with the rights or claims of others who ma:r have sv.bsequently entered such lands under .the homestead laws." St. U. S. 238. .
:q.pop. plaintiff, and.it must rely on the strength of its own title. to the Nort1lern Pacjfic Railroad CqmPany was one in conveyed to it the legal title to aU ,()dd sections of pUblic npt mineral, oneach side of'the line of its road as. definitely fixed,tQ .the extent of 20 sections, in t];1en being a terin all, 40 sections per mile, whenever"the United States shoqld,have full title thereto, and they were pot reserved, sold, granted, or otherwlsEl appropriated, and free . from pre-emption or of, its road shOuld be other claJm or right, at the time. the definitely fixed, and a plat thereof 1Ued in the office of the c9mmissionerof the general land. office. Until the road was thus definitely fixed, the grant was in the nature of a float; then it received precisio:Q., and became attach.ed and specific land as of the date of the grant. .st. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. Rep. 389; Salt Co. v. Tarpey, 142 U. S. 241, 12 Sup. Ct. Rep. 158; Wisconsin Cent. R. Co. Price Co., 133 U. S. 496, 10 Sup. Ct. Rep. 341. If at the time of the fixing of the definite route· of plaintiff's road it transpired that any portion of the odd sections on each side of its road as above described was in such a con· dition that the United States did not have full title to the same, or thego1'ernnient had reserved, sold, granted, or otherwise appropriated thelll,' or they were not 'free, from pre-emption or other daims or rights,they did not pass' toplailltiff ill its grant, and it was en· titled to 'others,as provided by law, in lieu thereof. The. ruling of the. commissioner of the general land office or the secretary .ofthe interior, did, not det:ermine any right of plaintiff to the land ill dispute. Tl},e. rulip.g of the land department does not determine the :right to or ownership of land when the government haS. parted :with the same, butorily as to whether the government shoulq .issue not a patent to the, land claimed by the applicant. Railroad Co. v. Wright, 51 Fed. Rep. 68. The court is therefore. called question as to whether the land did or did upon to determine not pass to plaintiff in its grant. It is claimed that by virtue of section 6 of the saidaet, making the grant to plaintiff, the odd sections of public'land, which include the land in dispute, on each side Th.e,
Vp.d.er. tl;l.e issues presented in this case, th\'j J:mrMn of proof was
or
NORTHERN PAC R. 00. 'V. AMACKER.
53
of the general route of plaintiff's road, to the extent of 20, were with· drawn at the date of the fixing of such general route from entry, sale, and pre-emption. The general route of plaintiff's road, as we have seen, was fixed on February 21, 1872. Admitting this to be true, and it becomes necessary to inquire what was the status of this land at that time. Scott had filed his application to pre-empt the same, but he left it in 1869, and never returned thereto, or afterwards made any claim thereto. In order that a party should have the benefit of the pre-emption laws, it-must appear that his residence on the land claimed was both continuous and personal. 'Bohall v. Dilla, 114 U. S.47, 5 Sup. Ct. Rep. 782. The pre-emption laws give a right of purchase'of land from the United States, and a preference to persons who have complied with their terms over other claimants. Frisbie v. Whitney, 9 Wall. 187; Yosemite Valley Case, 15 Wall. 77. It is not a vested interest in land. This right may be abandoned. Whenever a person leaves property of which he is possessed, without any intention of reclaiming the same again, he abandons it. ardson v. McNulty, 24 CaL 339; Judson v.:MaHoy, 40 Cal. 299. A right maybe abandoned as well as property. 1 Amer. & Eng. Ene. Law, tit. "Abandonment." The leaving of said land by Scott; the failure in any way to comply with the pre-emption laws after leaving the same; his removing to the town of Helena, but a short distance from the land, and remaining there, following his vocation as a plasterer, for nine years, and then his removing to Butte City, Mont., and making that his residence up to the date of trial,-must be considered as an abandoIlllient by Scott of all right he had under the preemption laws to a preference in purchasing said land he had acquired by his filing his application to purchase the same, and his residence thereon. What Scott's intention was may be shown by circumstances. The circumstances, I think, show that his intention was to relinquil:lh whatever rights he had to pre-empt this land. When did this intention place? At the time he left the land, must be the answer. He left the land, and his subsequent conduct .shows he had no intention of returning to it. There is no fact which would have any tendency to show that this intention took possession of him at any other time than when he left it. If the land was withd,'awn from market by virtue of said section 6, the law withdrew the :same, and not the order of the secretary of the interior. There are several decisions of the federal courts that hold, in view of the above interpretation of the said section 6, that the application of McLean to enter as a homestead said land at the time he did was a nullity. About the time, however,' of the location of the general route of plaintiff's road, there were rendered several decisions of the land 'department to the effect that the land was not withdrawn from market until the filing of a map of such route in the local land offices in the state and territories through which such route lay. Then it was that the local offices had notice of the fixing of the general route. Under this ruling, the filing of the application of McLean was in time. With a view of relieving men who had filed under this ruling, the act t)f April 21, 1876, was passed, and, according to my view, corrected any error in that respect.
FEDERAL REPORTER;
;,There;·wo.s' 'another· view under whiCh that 'htwwoulQ: .have cured any!'defoot in YcLean'li filing. Eyvirtue of certam other rulings of· the land department it was' held" if· .pre-emption appliootfon on file at the time of of the map' of the general rouite'with the commissioner of the' land office or secretary of the interior,the land did not pass to the plaintiff, but was excluded from its grant.. I believe the r'easoningwhich resulted 'in this ruling was based· upon the view. that the provisions of the act which excludes certain lands from the grant of pIatntiff which were in a certain con· dition aLthe time of the definite. fixing of plaintiff's road applied tethe fixing of the general route of its road. If Scott'li claim was a subsisting: one at the time ·of the fixing of the general route of plaintiff, under this ruling it did not pass to plaintiff. In view of this rullng, the second section of the said act of 1876 was passed. With this view of the law the ruling of acting secretary of the interior in considering the application of Mrs. McLean, now Maria Amacker, was coJ.of:eCt, if she could be subrogated to the rights of her husband, MeLean, 'under the law of·June 15, 1880; for the land, not passing to plailitifi',was subject tn. entry. The secretary was hot confronted with the fact. of the of Scott before this general route wasftxelL "Theintention of congress was. to validate: all pre-emption and homestead entries· made under· these rulings of the land department, whether erroneous or not,where the applicants complied with the' pre-en1ption and homestead laws. If section 6 bears the construction which the land, department has given the same, as well as some courts, tt should be oonsidered as modified by this act of 1870. Under the View which this court has held of the provisions of said section 6 oftha. grant to .plaintiff, McLean's application was valid. In the case of Railroad Co.v.Sanders, 46 Fed. Rep. 239, and 47 Fed. Rep. 004, this court held that the. effect.. of section 6 of ·said act was not to withdraw any,lands from sale, entry, or pre-emption at the time of the filing of the' plat of the general route of plaintiff's roalL The language is that the lands hereby granted-that is, by the act in which said liection is found-'shall be reserved from sale, entry, and pre-emption. In the case of Barney v. Railroad Co., 117 U. S. 228, 6 Sup. Ct·. Rep. 654, the supreme court, in considering a similar grant, defined the term "granted lands," and said: "They are those falling within limits. specially designated, and the title to which attached when the lands are located by an approved and accepted survey of the line of the'road filed in the land department as of the date of the act of Congress." In several cases :the supreme court has held that the title attaches only when the route of the road is definitely fixed. St. Paul & P. R. Co. v. Northern Pac. R. Co., supra; Salt Co. v. Tarpey, supra; Wisconsin Cent. R.Co. v. Price Co., supra. The granted lands had not then been designated and made known at the time of the location of the' general route of plaintiff's road, and not until the loca· tionof thedeftnite route thereof. I dO.D()t see, then,how they could be reserved from sale,entry, and pre·emption until the definite route of said road was fixed, and they became known;' The view that un· known and undescribedlmds ean be. withdrawn from sale, entry, or pre-emption does not seem to me possible. I know it is sometimes
NORTHERN .PAC. R. CO.
v.
daimed that· the general route should be substantially the same as the fixed ronte. There is nothing in the law which requires this, aud, as a matter of fact, this is not at ali places the same, even substantially. There is one matter for consideration in considering when the local land office had notice of the withdrawal of the lands along the general route of plaintiff's road. If they were withdrawn by law, then there was notice of this law, when approved by the president. But I do not think that the above act of 1876 had this in mind. It was endeavoring to make valid entries made under rulings of the land department, and the notice referred to was the one given by the general . land office to the local offices. In any view, except under the provisions of section 2 of the act of 1876, the filing of McLean was a valid one, and it· was not valid under that section on account of the abandonment· by Scott of his rights before the filing of the plat of the general route of plaintiff's road McLean could have legally perfected his title';according to my view. He did not do this. There is nothing to show that he resided on the same, or in any way complied with the homestead laws. In accordance with the rules of the land department, notice was served on him that he should within 30 days show cause why his entry should not be canceled. He failed to show cause, and on the 11th day of September, as before stated, his entry was canceled, because he had not complied with the law in making proper proofs. It was urged by defendants, in the argument of this cause, that it did not appear that proper notice was given to McLean. The register and receiver, in their letter of July 3, 1879, recite that MclA:lan had, among others, received due notice, in accordance with the circular of the commissioner of the general land office, to show cause why his entry should not be held for cancellation. In the letter of September 11, 1879, the commissioner of the general land office recites that due notice was given McLean. My attention was not called to any law providing for preserving these notices, or the manner of the service thereof. I think, under these circumstances, this comes within the rule expressed by the supreme court in the case of Cofield v. McClelland, 16 Wall. 331. In that case the court was considering a statute of the territory of Colorado that required a probate judge to give a certain notice of tll.e entry of a town site, under the act of conb'Tess.There was a failure of proof as to this notice, and in regard to the matter the court said: "We think tbis is a case In which the presumption applies that the officer has done his duty, especially as no provision was made in the act for proem-lug evidence that notice had been published. The case comes within the rule so weli settled in this court that the legal presumption is that the surveyor, register, governor, and secretary of state have done their duty in regard to the several acts to be done by them in granting lands, and therefore 61lrveys and patents are always received as prima facie evidence of correctneJOlS."
What was the effect of the cancellation of McLean's entry? In the case of Galliher v. Cadwell, 145 U. S. 368, 12 Sup. Ct..Rep. 873, the supreme court said of the cancellation of a homestead entry under eirctuD.stances almost identical with the one at bar:
FEDERAL REPORTER',
the, land was fully restored to the public domain, free for occupati9P purchase by any other citizen, as though there never had been any semblance ofoccuIlation or entry."
"At that time, and by that a'Ct,allher'rightB of every klndand nature were
'faking this rule, and applying it to this case, we find that the land intllspllte was, on the 15th day of June, 1880, when the act above recited was passed, as free for occupation and purchase as though there hadinever been the entry of McLean' attached thereto. What was the e:ffectof that act? It did not grant to McLean any interest in the landin-dispute. It did not amount to a sale or an entry of the land. He' had the privilege to enter the land until the rights of others atthereto. He certainly could not wait indefinitely before exercH'ling,this -privilege or right. He did' nothing towards exercising this right':for,over two years, and died without making any move to exercise this :privilege after'the same was given him, by,thatact. This privilege: was not a ,clltim upon 'the land. In the case of Railroad Co. v., Sanders, supra" this court took occasion to _ consider to n. limited. extent the term "claim" as used in the grant to plaintiff, anJ then' said:
.q would not say that every assertion of title to land would be entitled to theJti!N.l1 Perhaps acts sufficient should accomplLny'the assertion of claimant to a standing in It court of to contest the right to the possession of the vremises.;' The mere privilege to enter land, unaccompanied by any acts, if treated as a claim, would incumber all the public domain subject to entry and pre-emption tOll. claim, for every citizen has ,the privilege ofenteriIig or pre-emptIDg the same. By virtue of the act itself unof entry or purchase of the der which defendants claim this la,nd, concerning whichtJhis privilege or right was given, it was subject to entry as a homestead by any qualified citizen at any time before this right was exercised. Certainly, then, the intention of congress was not to incumber this land with a claim in favor· of McLean. It is urged, however, that the provision of the statute making the grant toplainti:ff is that the land which passes to it must be free from any right as well as any claim at the time of the definite fixing of its road. The term "right," as here used, does not appear to me to be very deftnite,lind its legal meaning not altogether certain. It will be observed that the land must be free from this right. There is a difference between· a right which is given an individual, and a right attached to land. Bomier, in his Law Dictionary, defines "right" to be "a well-founded claim." 'In the case of Newkerk v. Newkerk, 2 Caines, 345, the court said, "Right is equivalent to 'all right.''' "Right" and "estate" are synonymous, a,t least in wills, with each other. Rapalje & Lawrence'$Law Dictionary, in "right," said of it: "Right to bring an action for possession of land given the owner." In some states the action to recover the possession of land is termed the "action of right." In such an action the plainti:ff claims some estate in the land which is the subject of the action which entitled him to the possession thereof. I feel confident that the right mentioned in plainti:ff's grant was some estate in land, and not a .privilege which pertained to the individual; and I cannot think that the said act of 1880>
NORTHERN PAC. R. CO·.
AMACKER.
gave to McLean right in the land. If so, it was in some way a graltt to some estate in the land. Such, I am sure, was not the in; passingtllat act. If an estate in thelanli, would it pass to his heirs or administrator? How would it be subject to distribution ?The suggestion of such questions show that certainly no estate of.any kindwaSgi'anted to McLean in the land. There is one other point presented in considering that statute. It is very doubtful as to any right or privilege was given to Mrs. Mclean thereunder. The widow is not named· therein as a beneficiary. In the case of Galliher v. Cadwell, supra, when considering this statute the supreme court said: . "And the argument is worthy of consideration that because in some acts of congress she is specifically named as entitled to rights originally vested in her busband, and the omission to specify her in the act in quc'stion was an intennamed therein, and that congress tional exclusion of her from the did not intend to grant to others than the homesteader and the persons holding under him by instrument in writing any rights by reason of his incompleted homestead entry."
In support of this view the court cites Suth. St. Const. § 327, and cases cited. In looking at that section we find this language: "Where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others; there is a natural inference that its application is not intended to be general."
While the court in that case rested its decision upon the ground of laches, still, all the way through the same, it treats the fact that the widow was not named in the statute of 1880 as an important one in the consideration of the case. I do not see how the provision of section 2291, Rev. St. U. S., can be considered a supplement to that of 1880, above named. That statute applies to another directly. The said statute of 1880 does not purport in any way to supplant Or take the place of any part of said section. It is an independent statute by itself. While in pari materia with the other statutes for the disposal by general laws of the public domain, and to be construed with them, there is nothing which will warrant a court in taking a clause of one statute, which applies to a particular subject and condition, and make it apply to a totally distinct statute. But, allowing that part of said section which gives the privilege to a widow to complete the homestead entry of her husband applies, and can it be said that it conveys any estate to her in the land,-any interest in it whatever? We have seen the land become public domain, free to any citizen to occupy and pre-empt or enter the Sallle upon the cancellation of Mclean's entry. Considering, then, all of these statutes, and it appears to me that the land in dispute was such as the United States had full title to, not reserved, sold, granted, or other wise appropriated, and free from any pre-emption or other claim or right, at the time when the definite route of plaintiff's road was fixed, and a map thereof filed in the office of the commissioner of the generalland office. By the terms of the grant it then passed to plaintiff. Neither McLean nor his widow had then exercised the privilege gI'l;tnted ·them, if any was granted to the latter, by the act of 1880. T4e right granted to McLean by the act of 1876, above referred to.
68
FEDERAL REPORTER.
w.Jost.:tby biSfailure to comply with the statute that required his ftnsbprobfs,tobe, made. within a certain time, and the ca.ncellation of hm·.entq; :llilB79. Considering, a,s. I have steadily m.untained we should,theteondition of the land a.t·tb.e time the definite line of plain. tiff's road ,was fu:ed, and the grant to, it received precision, I cannot see how I can reach: 'any other conclu$Jon, than that plaintiff is the owner of the land'ittrdispute. I tb.ereforednd .that the plaintiff is the owner of the land:deSQribedin the complamt,herein, an,dentitled to the possession theroof:;:tb.at defendants a.rein possession of the same with· out itsconsen1:; 'and wrongfully. It is therefore ordered that judgment be entered in this case in f&.'!orofplaintiff and against defendants for the possession ,of the lan,d described in the complaint, and for its costs of suit.. HAGUE v. AHRENS. (Circuit Court of Appeals, Third Circuit. No.8. November 10.1892,) AND COVENANTS.
LANDLORD AND
A lea$8 contain.ed the. following clause: "This lease not to be sold. assignE!d, or transferred WlthQut the written consent of the party of the first part." Held, that this 'was a covenant, and not a condition, and the lease would pass by an assignment without the lessor's consent, so that the assignee could maintain ejectmeJ;it qnder it. A request. to charge that a surrender of a lease had occurred by operation of law beclUlse afthe facts therein stated contained only a part of the facts bearing on the question of surrender. Held, that the. court properly refused the request. and submiHedthe question to the jury on all th,e evidence. OF PROOF.
SAME-INWlRUOTIONS-SURRENDER OF LEASE.
8,
Where,h\ an action of ejectment, based 'upon a lease from the owner, defendant relies on an alleged surrender thereof, the burden is on him to show It. aljd that burdell is ·not. s.hifted merely because the .as to the sur· render in with plaintiff's proofs.
William H. being tHe owner of certain lands, made a lease thereof for 15 years to O. &. J.'Bigglns. ,fo'r' the purpose of mining for oil and gas. The lease contained the "This lellse not to be sold, assigned, or transferred without the written of the' pm-ty of the first part." The lease also provided that the mining operations therein contemplated should be prosecuted with diligence, and tha't no cessation ofwork should continue over 30 days, and also that the ,lessees might terminate and surrender the lease at any time after It sh\>uld be proved by c;lrilling one or more wells that oil could not be found on or under the land in paying quantities. The lessees never entered under the lease, but. without the consent of the lessor, assil:rned it to the Oltizens' Gas Oompany, Who entered and drilled a well ul'lon the hind. After.obtaining some gas, ,which they did not Il,tilize; they drilled for a short time, when they lost or" stuck" . their drill in the well, and wholly ceased operations upon .theland, and removed 'the engine and boiler used 'in drilling. Some months after the Oitizens' Gas Com. pany ceased drilling, Webb'rnade another lease to Rague, (the defendant,) who, finding- the possession vacant. entered and drilled a well thereon, which produced gas in large quantities, and rendered the land profitable to the owner and lessee. While so engaged, the Citizens' Gas Company made no claim of any right or interest in tIre premises. but some time thereafter executed a paper purporting to
In Error to the Circuit Court of the United States for the Western District of Pennsylvania. Action: of ejectment brpught by George H. Ahrens against W. W. Hague. Judgment for plaintiff. Defendant brings error. Affirmed.