within the scope of his employment by the defendant railroad company; and such acts, to be within the scope of his employment, must be such as he would be usually and naturally called upon to do while discharging his duties as a railroad conductor in and about the business of the defendant railroad company. No. 2. The court further instructs the jury that it is not sufficient that the acts complained of were done during the time of the conductor's employment by the railroad company, or at the place where his duties called him to be. There must be something more, something which he was authorized by the defendant company to do, or which he did do while acting as such conductor, in the scope of his duties and employment." "No. 4. That, unless the act done by the conductor in causing the arrest of the plaintiff was authorized by the railroad company, or was properly and legitimately within the scope of his employment, you must find for the defendant." Instructions asked for by defendant, but refused by the court, were as follows: "No. 3. The fact that Ebert was employed by the defendant as a conductor of the passenger train upon which the plaintiff intended traveling is not sufficient evidence that he was authorized or employed to do the acts complained of, nor is that fact of itself sufficient to make the defendant liable for the acts complained of." "No. 5. That, if you believe from the evidence in this case that Ebert caused the arrest of the plaintiff while acting for himself, and upon his own authority, for his own personal safety, without any direction or authority from the railroad company for so doing, you must find for the defendant. No. 6. The court instructs the jury that it was not lawful for the policeman to make the arrest without a warrant therefor, and that the defendant railroad company could not have legally procured the plaintiff's arrest in the manner in which said arrest was made, and that the defendant is not liable for the acts of Ebert which said company itself could not have lawfully done. No. 7. The court instructs the jury that, if they believe from the evidence in this cause that the plaintiff is entitled to recover anything, then, in estimating the damages, you are limited to the actual damage sustained by the plaintiff for loss of time and actual expenses incurred by him in consequence of his having been put off of the train, and you cannot, in this case, give exemplary, vindictive, or punitive damages." I can see no objection to the instructions No. 1 and No. 2, given on behalf of plaintiff, if read in connection with No. 1, No. 2, and No. 4, given on behalf of defendant, of which there is no complaint. They are in harmony with, and substantially propound, the law, as we think, correctly. Plaintiff's No. 2 was approved

in Ricketts v. Chesapeake & O. R. Co., 33 W. Va. 433, 41 Am. & Eng. R. Cas. 42. They mean that, if plaintiff was a passenger on defendant's train, and during the time he was on the train to be carried to his proper station on the road he was arrested or caused to be arrested without just cause by the conductor in charge of the train, and that such act was within the scope of the conductor's employment, then such arrest would be the act of the defendant; that is, an act for which it might be liable. No serious objection can be made to instruction No. 2, given for plaintiff. It is drawn on the theory of exemplary damages as a solatium,-damages restricted to what would, in the opinion of the jury, be a fair and just compensation for the injuries sustained or inflicted. Pegram v. Stortz, 31 W. Va. 220. Instruction No. 3 of defendant was virtually given in giving defendant's instructions No. 1, No. 2, and No. 4, so that, whether right or wrong, defendant has no ground of complaint in its refusal. The same may be said of instruction No. 5, asked by defendant. It had already been given, and no complaint in this court is made by plaintiff. Defendant's instruction No. 5, taken as a whole, is not correct, for, if the arrest could not lawfully be made or caused to be made by the conductor without a warrant, that might add to the wrong, but would not relieve the defendant from liability for the false and groundless imprisonment of a passenger by the conductor in charge of the train, acting within the scope of his employment. The refusal of defendant's instruction No. 7 has already been disposed of by what has been said on the subject of damages and in discussing plaintiff's instruction No. 2. In conclusion, we see no reason why we should set aside the judgment and verdict and award a new trial.

The judgment complained of is affirmed.

Liability of Carrier for Willful or Malicious Acts of Servants towards Passengers. See Dwinelle v. New York Cent. & H. R. R. Co. (N. Y.) 44 Am. & Eng. R. Cas. 384, note 391; Dillingham v. Anthony (Tex.) 37 Id. 1; Fick v. Chicago & N. W. R. Co. (Wis.) 34 Am. &. Eng. Čas. 378, and cases cited in note, 380.

(U. S. Circuit Court, D. Montani, June 12, 1891, 46 Fed. Rep. 592.)

Land Grants-Exclusion of Mineral Lands.-An act of Congress granting land to a railroad company provided "that all mineral lands be, and the same are hereby, excluded from the operation of this act." Held, that the exception applied only to "known" mineral lands.

Same Same.-The time when lands must be known to be "mineral,” in order to exclude them from a grant of land made to a railroad company, is the date when the line of the railroad becomes definitely fixed and a plat thereof is filed in the general land office.

KNOWLES, J., dissenting.

AT law. On demurrer to complaint.

Demurrer to a complaint in an action to recover possession of portions of section 27, township 10 N., range 4 W., P. M. Montana. Plaintiff alleges its incorporation under the act of congress of July 2, 1864, (13 St. 365,) for the purpose of building the Northern Pacific Railroad; that by that act there was granted to plaintiff every alternate section of public land not mineral, designated by odd numbers to the amount of 20 sections per mile, on each side of such railroad line as said company might adopt through the territories of the United States, whenever, on the line thereof, the United States had full title, not reserved, sold or granted, or otherwise appropriated, and free from pre-emption, or other claims or rights, at the time when the line of said road shall be definitely fixed, and a plat thereof filed in the office of the commissioner of the general land-office; also other provisions of the act; that plaintiff duly accepted the terms and conditions of said act in the mode prescribed by law, within two years after the passage of the act, to wit: on December 24, 1864; that the general route of said road extending through the state of Montana, was duly fixed, on February 21, 1872; that the said lands in question in said section 27 are within the 40 miles of the line of said railroad as so fixed, and were on said February 21, 1872, public lands to which the United States had full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights; that at the date of said act, July 2, 1864, and the date of fixing said line of general route, to wit: February 21, 1872, no part of said land in question was known mineral land,

but said land was more valuable for grazing than for mining purposes, and that no part of said land was within any exceptions from said grant; that afterwards, on July 6, 1882, plaintiff definitely fixed the line of said railroad extending opposite to and past said land, and filed a plat thereof, in the office of the commissioner of the general land-office; and that said. land is within 40 miles of said line of railroad as so definitely fixed; that thereafter, the plaintiff duly constructed said portion of said road and telegraph line over, and along the line of definite location so fixed, and upon reports of commissioners, as required by said act, the president of the United States duly accepted said railroad and telegraph line so constructed and completed; that at the date of so definitely locating said line of railroad and filing the plat thereof in the office of the commissioner of the general land-office, on July 6, 1882, the said land was not known mineral land, and was more valuable for grazing than mining purposes, and that said land was on said day public land to which the United States had full title, not reserved, sold, granted or otherwise appropri ated, and free from pre-emption or other claims or rights; that said lands were surveyed in 1868 and township plat filed in the proper land-office on September 9, 1868; that the character of said land was ascertained and determined, and reported and shown upon said plat to be agricultural and not mineral land, and that said determination, report and showing have continually remained and they still remain of full force and effect; 'that after the completion of said railroad aforesaid, the said plaintiff listed said lands with other lands as a portion of said grant, and thereafter on November, 1886, duly filed said list in the district land-office at Helena, and paid the receiver of said land-office the lawful fees for filing such list; and said register and receiver duly accepted and allowed said list; and certified the same to the commissioner of the general land-office; and said list has since remained and it is now of record in said general land-office, and no part of said fees has been returned or tendered to said plaintiff; that at the time of the acceptance, approval and allowance by said district land officers, and at all times prior thereto, no part of said land was known mineral land, or was of greater value for mining than for grazing or agricultural purposes, or town-site purposes, or had any value for mining purposes whatever; that during the year 1888 certain veins or lodes in place of rock in place bearing gold, silver and other precious metals were discovered in said land, and thereafter certain parties named, being citizens of the United States, without the consent and against the will of plaintiff, entered upon said land and made loca

tions of said veins or lodes, to wit; on June 20, 1888, the Vanderbilt Quartz Lode Mining Claim on lot 68, on August 10, 1888, the Four Jacks, N. Y. Central, and Hudson River Quartz Lode Mining Claim, number 72, 74, and 75, respectively; and on May 9, 1889, the Chauncey Depew Quartz Lode Mining Claim on lot number 73 of said lots, being within the said disputed premises; that said defendants are in possession of said lots 68, 72, 73, 74, and 75, claiming title under said locations through mesne conveyances from said locators, and they have been and now are extracting ore therefrom; and that although title has vested in said plaintiff, under said act of congress, and the acts performed by it as alleged, and plaintiff has thereby become the owner of said land, the United States have failed and refused to issue a patent to said plaintiff, as required by said act. The value of the disputed premises is alleged to be $6,000, and of the ore extracted, over $100. Plaintiff prays judgment for possession of the premises and of the value of the ore extracted. F. M. Dudley and Cullen, Sanders & Shelton, for plaintiff. Adkinson & Miller, for defendants.

Before SAWYER, Circuit Judge, and KNOWLES, District Judge.

SAWYER, J.-The complaint undoubtedly states many facts, not necessary to be stated in a complaint to recover land. It not only sets up the probative, as well as, the Sufficiency of ultimate, facts necessary to be stated to make a complaint. good complaint, but the facts which the defendants will rely upon to defeat the action. The object doubtless, is, to state all the facts, as they really exist, or are supposed to exist, with a view to having the rights of the parties on that state of facts determined in the simplest form upon a demurrer to the complaint. Although somewhat cumbersome in a pleading in an action at law, I see no objection, the defendants making none, to taking the course pursued by plaintiff in this case, provided it has set out sufficient facts, to show upon the whole case, a good cause of action. The defendant has not moved to strike out any part, as being irrelevant or redundant, but has met the case fairly by a demurrer, both parties, doubtless, being desirous of having their rights determined in the shortest, easiest, and least expensive manner. Taking all the facts as alleged in the complaint, I think there can be no doubt, that the title to the land in controversy is in the plaintiff, unless the allegation of the discovery of mines in 1888, is sufficient to show that the land containing them is mineral, within the meaning of the term as used in the act of congress; and, that the lands are, therefore, within the exception from

Meaning of term "Mineral lands."