that state the defendants are entitled, in the courts thereof, to a stay of execution by reason of the judgment being a lien upon such property of the defendant, that then, and only then, and for the same reason, namely, that the judgment is a lien upon the property of the defendant, the defendant shall be entitled to a stay of execution, in actions in the courts of the United States held in such state, for the period of one term; and that this construction involves the conclusion that, if a defendant has no property upon which such judgment is a lien, he is not entitled to a stay of execution in the courts of the United States, notwithstanding the laws of the state may provide for stay of execution by defendants who have no property upon which judgments against them would be a lien, upon their entering security. It thus appears to me that this section of the Revised Statutes should be interpreted as if it read as follows:

"In any state where judgments are liens upon the property of the defendant, and where, by the laws of such state, defendants are entitled, in the courts thereof, to a stay of execution for one term or more, by reason of such lien, defendants in actions in the courts of the United States, held therein, shall be entitled to a stay of execution for one term."

Thus if, in the present case, the defendant possessed real estate upon which the judgment or decree in this case is a lien (which does not appear), then such stay of execution might be allowed under the provisions of said section 988, but allowed only because of the lien of , such judgments upon such real estate, and of the provision in the act of 1836 providing for such stay under those circumstances. If the intent and purpose of said section of the Revised Statutes of the United States was to enable the defendants in judgments obtained in the courts of the United States to obtain stay of execution thereon in accordance with the general laws of the state in which such courts are held, it would not have been necessary to specify in said section that such stay should only be allowed in cases where such judgments are liens upon the property of the defendants, for, as we have seen, in this state that is not a prerequisite to a stay of execution by the defendant, for he can enter security therefor, notwithstanding he may have no property at all, and obtain such stay. What could have been the purpose in providing that only in states where judgments are liens upon the property of the defendant such stay of execution can be had, except to obtain the benefit of such lien, and to place the defendant, upon whose property judgments in the United States courts are such liens, in the same position in which he would have been had the judgment been rendered in the state court? If that is not the purpose of this section, it is difficult to see why any reference is made to the judgment being a lien upon the property of the defendant, and if that is the purpose of said section, it then follows that defendants in judgments in the United States courts, in states where judgments of the state courts are liens upon the property of the defendants, shall have only such rights as to stay of execution as those accorded to them by the state courts, by reason of such lien. If this construction of the act be correct, there can be no stay of execution taken by the defendant in this case, as has been attempted.

In this view of the case it is not necessary to determine what is

t

UNITED STATES V. OREGON & C. R. CO.

meant by "one term," whether it is the period of six months (the
duration of one term in this district) from the return day of the writ,
or one term after that to which the writ is returnable, since the conclu-
sion reached is that the defendant is entitled to no stay at all.
The rule is therefore made absolute.

1 PUBLIC LANDS-RAILROAD GRANTS-PASSAGE OF TITLE.

The title to land lying within the primary or place limits of a railroad grant passes ordinarily to the railroad company at the time of the filing of the map of definite location of the line of the railroad and the acceptance and approval thereof by the Secretary of the Interior, while the title to land within the indemnity limits does not pass until there is a selection under the direction or with the approval of the Secretary of the Interior.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Public Lands, & 232.]

2 SAME-DONATION CLAIM-ABANDONMENT.

Where a settlement under the donation act was made on land within the primary limits of a railroad grant and was finally abandoned without completion of the steps necessary to perfect title prior to the filing of the railroad's map of definite location and the approval thereof by the Secretary of the Interior in January, 1870, such land was not reserved from sale, but passed under the grant, though the records in the Land Office did not show that the donation claim had been abandoned.

In Equity.

This is a suit for the cancellation of a patent issued by the general government to the defendant railroad company July 12, 1871, so far as it purports to grant to said company lots 5 and 6, section 3, township 7 south, range 3 west of the Willamette meridian, or, in the event that the land has been conveyed to an innocent purchaser for value, then it is prayed that plaintiff may have a decree for the value thereof. The facts upon which the bill of complaint is predicated are, briefly, as follows:

The land lies within the primary limits of the land grant made by the act of Congress approved July 25, 1866, to which the defendant company has succeeded. The map of definite location of the railroad opposite and coterminous with the said lots was filed and approved by the Secretary of the Interior January 29, 1870. Some time in May, 1855, one Edmund F. Gholson settled upon the lots under the donation act, and on November 3d following *he filed in the office of the Surveyor General of the United States for Oregon The parties to the suit have furhis donation notification covering the same. ther stipulated that: "Thereafter the said Gholson abandoned the said lots without having paid for them; and the said Gholson was not residing on the said lots on July 25, 1866, nor did he reside thereon at any date after July 25, 1866, and the records of the General Land Office do not show that the claim had been abandoned by Gholson prior to the passage of said act of July 25, 1866, or the definite location of the line of road thereunder, or whether Gholson resided thereon for the period of four years." Aside from the stipulation, it is shown that Gholson lived with his wife upon the land until the last day of October, 1856, when they moved away, with no intention of returning; nor have they ever returned thereto.

See 133 Fed. 953.

Wm. C. Bristol, U. S. Atty.

Wm. D. Fenton and Wm. Singer, Jr., for defendant.

WOLVERTON, District Judge (after stating the facts). This case differs from that of Oregon & California Railroad Company v. United States, 190 U. S. 186, 23 Sup. Ct. 673, 47 L. Ed. 1012, in one particular only, and that consists in the fact that here the land in question lies within the primary or place limits of the grant to the railroad. There it was within the indemnity limits. The question is, does this difference lead to any different result? It has been established by the uniform decisions of the Supreme Court of the United States that the title to lands lying within the primary or place limits of the grant passes ordinarily to the railroad company at the time of the filing of the map of definite location of the line of the railroad, and the acceptance and approval thereof by the Secretary of the Interior. In Van Wyck v. Knevals, 106 U. S. 360, 366, 27 L. Ed. 201, Mr. Justice Field says:

"Until the map is filed with the Secretary of the Interior the company is at liberty to adopt such a route as it may deem best, after an examination of the ground has disclosed the feasibility and advantages of different lines. But when a route is adopted by the company and a map designating it is filed with the Secretary of the Interior and accepted by that officer, the route is established; it is, in the language of the act, 'definitely fixed,' and cannot be the subject of future change, so as to affect the grant, except upon legislative consent."

So in a later case, Sioux City, etc., Land Company v. Griffey, 143 U. S. 32, 38, 12 Sup. Ct. 362, 36 L. Ed. 64, Mr. Justice Brewer says:

"The first and principal question is at what time the title of the railroad company attached, whether at the time the map of definite location was filed in the General Land Office at Washington, or when, prior thereto, its line was surveyed and staked out on the surface of the ground. While the question in this precise form has never been before this court, yet the question as to the time at which the title attaches, under grants similar to this, has been often presented, and the uniform ruling has been that it attaches at the time of the filing of the map of definite location."

In a much later case, Tarpey v. Madsen, 178 U. S. 215, 223, 20 Sup. Ct. 849, 44 L. Ed. 1042, after citing authorities, the distinguished jurist has this further to say:

"By those cases it was settled that the time at which the title of the railroad company passed beyond question was that of the filing of an approved map of definite location in the office of the Secretary of the Interior."

So are all the authorities bearing upon the subject. See, also, Kansas Pacific Ry. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 112. In a late case involving this identical grant-Oregon, etc., R. R. v. United States, 189 U. S. 103, 23 Sup. Ct. 615, 47 L. Ed. 726-it is held that:

"No right of the railroad company attaches or can attach to specific lands within indemnity limits until there is a selection under the direction or with the approval of the Secretary of the Interior."

This proposition will not be questioned.

Now, speaking of the grant relative to its effect as it respects the two kinds of lands, the court, in the case of Ryan v. Railroad Company, 99 U. S. 382, 386, 25 L. Ed. 305, says:

"Under this statute, when the road was located and the maps were made, the right of the company to the odd sections first named became ipso facto fixed and absolute. With respect to the 'lieu lands,' as they are called, the right was only a float, and attached to no specific tracts until the selection was actually made in the manner prescribed."

Recognizing the distinction, Mr. Justice Miller, in St. Paul Railroad v. Winona Railroad, 112 U. S. 720, 731, 5 Sup. Ct. 334, 28 L. Ed. 872, makes this further comment:

"The reason of this is that, as no vested right can attach to the lands in place the odd-numbered sections within six miles of each side of the road -until these sections are ascertained and identified by a legal location of the line of the road, so in regard to the lands to be selected within a still larger limit, their identification cannot be known until the selection is made. It may be a long time after the line of the road is located before it is ascertained how many sections, or parts of sections, within the primary limits have been lost by sale or pre-emption. It may be still longer before a selection is made to supply this loss."

The only point of distinction, therefore, as it pertains to grants of land within the primary and those within the indemnity limits, is that, as to the primary, the grant attaches at the date of the filing of the map of definite location of the road and its approval by the Secretary of the Interior, while as to the indemnity lands it attaches at the date of actual selection by the railroad company and the approval of such selection by the Secretary of the Interior. Any right acquired in or to such lands, whether they be primary or indemnity, whereby they are segregated from the public domain, or, in other words, are appropriated in pursuance of law, anterior to the taking effect of the grant to the railroad company, operates to reserve them from the grant, unless there has been an abandonment of the right and the land has reverted to the public domain in the meantime. This is determined in effect by the case of the Oregon & California Railroad Company v. United States, 190 U. S. 186, 23 Sup. Ct. 673, 47 L. Ed. 1012. The grant there, being of indemnity lands, took effect at the date of selection and its approval by the Secretary of the Interior. But it was held that, as it appeared that there had been an abandonment of the donation by the claimant after the filing of his application and prior to the selection, the land had reverted to the public domain, and became and was subject to the grant; or, in other words, the abandonment having taken place prior to the time of selection, the lands were yet to be deemed public lands, so that they could not be said to be reserved, as it related to the grant under the act of Congress of 1866. The determination has exact application here, the grant becoming effective by the filing of the approved map of definite location, instead of by selection.

Judge Bellinger, in the case of United States v. Oregon & C. R. Co. (C. C.) 133 Fed. 953, 954, which was not as strong for the government as this, says:

"This claim was of record and uncanceled when the map of definite location was filed, but neither final proof nor payment had been made. The stipulation

of facts is silent as to whether Dougherty was residing upon this donation at the time the map of definite location of defendant's road was filed, and without such residence the claim was abandoned. Final proof or continued residence was necessary to the life of this donation. The former is negatived by the stipulation of facts, and there is no presumption in favor of the latter. Oregon & C. R. Co. v. United States, 190 U. S. 186. The facts relied upon to except the particular land from the grant must be shown, and in this case they are not shown."

But the case of the Oregon & California Railroad v. United States, 190 U. S. 186, 23 Sup. Ct. 673, 47 L. Ed. 1012, is controlling, and it is unnecessary to discuss further the matters touching the abandonment of the claim. A reference to that case will disclose the potent and sufficient reasons for the decision, which is conclusive against the right of the plaintiff here to sustain the suit preferred. The bill of complaint will therefore be dismissed at the cost of the plaintiff.

WESTERN TRANSIT CO. v. BROWN.

(District Court, S. D. New York. March 11, 1907.)

1. INSURANCE-MARINE INSURANCE-COLLISION.

The word "collision," as used in marine insurance, is no longer strictly limited to that fortuitous injurious contact of navigating vessels which is its obvious and natural signification.

[Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, § 1101.] 2. SAME-RUNNING-DOWN CLAUSE-WHAT CONSTITUTES COLLISION.

Where two vessels are under the same physical control, as in case of a tug with a tow alongside, so that an impulse given to the tug must necessarily be communicated to the tow, and negligenc in the tug's navigation causes an injurious contact between the tow and a third vessel, for which the tug is held liable, she should be regarded as having been in collision within the meaning of the ordinary collision or running-down clause of a marine policy of insurance; but, if the control is only intellectually exercised, or if there is no control at all of one vessel over another, there can be no collision within the meaning of such clause without an actual injurious contact between the vessel insured and some other object. 8. SAME-FACTS CONSIDered.

The running-down clause of a marine policy provided that, "If the ship hereby insured shall come into collision with any other ship or vessel or raft and the assured shall in consequence thereof become liable to pay and shall pay by way of damages to any other person or persons any sum, we, the insurers, will pay." While running alongside of another vessel, having no connection with her, through the negligent navigation of both, the suction created by the insured vessel caused the other to sheer and come into collision with a third, and both were held liable in damages. Held, that the insured vessel was not in collision within the meaning of the policy, and not entitled to recover the damages so paid from the insurer.

In Admiralty. On exceptions to libel..

Harvey D. Goulder and Frank S. Masten, for libelant.
Wing, Putnam & Burlingham, for respondent.

HOUGH, District Judge. While the steamers Troy and E. P. Wilbur were running nearly alongside each other upon Lake St. Clair,