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question his right thereto. Under such circumstances, complainant's
entry upon the lands was that of a mere trespasser, and as such he ac
quired no rights under the homestead laws. In Atherton v. Fowler, 96 U. S. 513, 24 L. Ed. 732, the court said:
“Among the things which the law required of a pre-emptor, and the principal things required of him to secure his right, were: (1) To make a settlement on the land in person. (2) To inhabit and improve the same. (3) To erect a dwelling house thereon.”
These things were also principal requirements of the homestead law. Harvey v. Holles (C. C.) 160 Fed. 531. In Atherton v. Fowler, the court also said:
“It is not to be presumed that Congress intended in the remote regions where these settlements are made to invite forcible invasion of the premises of another in order to confer the gratuitous right of preference of purchase on the invaders. In the parts of the country where these pre-emptions are usually made, the protection of the law to rights of person and property is generally but imperfect under the best of circumstances. It cannot, therefore, be believed, without the strongest evidence, that Congress has extended a standing invitation to the strong, the daring, and the unscrupulous, to dispossess by force the weak and the timid from actual improvements on the public land, in order that the intentional trespasser may secure by these means the preferred right to buy the land of the government when it comes into market. * * * Does the policy of the pre-emption law authorize a Stranger to thrust these men out of their houses, seize their improvements, and settle exactly where they were settled, and by these acts acquire the initiatory right of pre-emption? The generosity by which Congress gave the settler the right of pre-emption was not intended to give him the benefit of another man's labor, and authorize him to turn that man and his family out of their home. It did not propose to give its bounty to settlements obtained by violence at the expense of others. The right to make a settlement was to be exercised on unsettled land; to make improvements on unimproved land. To erect a dwelling house did not mean to seize some other man's dwelling. It had reference to vacant land, to unimproved land; and it would have shocked the moral sense of the men who passed these laws, if they had sup-' posed that they had extended an invitation to the pioneer population to acquire inchoate rights to the public lands by trespass, by violence, by robbery, by acts leading to homicides, and other crimes of less moral turpitude.”
That a party cannot initiate a right of homestead by settling upon land at the time in the actual possession of another, under a bona fide claim of right, is shown in the following cases: Hosmer v. Wallace, 97 U. S. 575, 24 L. Ed. 1130; Quinby v. Conlan, 104 U. S. 420, 26 L. Ed. 800; Trenouth v. San Francisco, 100 U. S. 251, 25 L. Ed. 626; Clipper Mining Co. v. Eli Mining Land Co., 194 U. S. 220–231, 24 Sup. Ct. 632, 48 L. Ed. 944.
To maintain this action and obtain a decree from a court of equity, awarding to him the title to the land in question, complainant must establish that he initiated such a right to the land, by settlement thereon, and offer to enter, as gave to him in equity a right to the land prior and paramount to the legal title of defendants. Campbell v. Weyerhaeuser, 161 Fed. 332, 88 C. C. A. 412. In this we think he has signally failed.
After the Land Department awarded the land to Patterson, complainant took no farther steps and made no farther claim to the land until the institution of this suit, and it appears from the agreed statement of facts that the defendant Beacom purchased the land for full
value, after a patent from the United States to defendant Patterson had issued, and without any knowledge of complainant's claim. Such being the case, his title is impregnable as against complainant. U. S. v. Detroit Lumber Co., 131 Fed. 668, 67 C. C. A. 1; Colorado Coal Co. v. U. S., 123 U. S. 307, 8 Sup. Ct. 131, 31 L. Ed. 182.
For these reasons alone, without considering other questions presented, we think the decree of the court below was right; and it is therefore affirmed.
DOCRENDORF v. BASSETT et al.
PUBLIC LANDs (§ 31*)—HoMEs.TEAD ENTRY-ConFLICTING CLAIMs—Posses-
[Ed. Note.—For other cases, see Public Lands, Cent. Dig. § 53; Dec. Dig. § 31.*]
Appeal from the Circuit Court of the United States for the Northern District of Iowa.
Suit in equity by Alfred Dockendorf against L. L. Bassett and E. Riddell. Decree for defendants (160 Fed. 543), and complainant appeals. Affirmed.
Edwin J. Stason (Madison B. Davis, on the brief), for appellant.
Before SANBORN, Circuit Judge, and RINER and WM. H. MUNGER, District Judges.
WM. H. MUNGER, District Judge. This suit was commenced on the 30th day of July, 1904, by complainant against defendants, to have a certain patent to the southwest quarter of section 5, township 96, range 42 west, in the county of O'Brien, and state of Iowa, issued by the United States to the defendants, declared illegal and void and canceled and set aside.
The facts in this case are substantially the same as in the case of Roscoe Lyle v. George M. Patterson et al. (just decided) 176 Fed. 909. The land herein, as in that case, was within the place limits of the grant to the Sioux City & St. Paul Railroad Company. The material difference in the facts between the two cases is that in this case, on the 12th day of November, 1887, one Rachel B. Calvert, then a citizen of the United States, purchased by contract from the Sioux City & St. Paul Railroad Company the land in question, and, thereafter, on November 30, 1888, she duly sold and assigned in writing her said contract of purchase to the defendants. Immediately after her purchase, Rachel B. Calvert entered into possession of said land, and since the date of the purchase by defendants they have been in the absolute, open, notorious, and undisputed possession of the premises, except that complainant, on the 23d day of October, 1895, undertook to take possession of said land, entered thereon, and erected a small shanty thereon, but did not move his family thereto, except that his wife was there three or four days—they had no children. Defendants did not permit the complainant to remain on said premises and instituted an action of forcible entry and detainer against complainant in a justice court, claiming that complainant had wrongfully, fraudulently, and stealthily entered upon the prior, actual possession of defendants, and upon the trial of said action such justice court rendered judgment, finding complainant guilty of forcible entry and detention of said premises, that he entered thereon by stealth, force, and fraud, and a writ of removal was issued under such judgment duly entered, and complainant was duly ousted from said premises. Complainant appealed to the District Court from said judgment, where the cause has since been pending untried. The register and receiver of the United States Land Office at Des Moines, Iowa, fixed the 10th day of April, 1896, as the date upon which proofs should be submitted by claimants to the land, pursuant to the order of the Land Department referred to in the case of Lyle v. Patterson et al. Complainant and defendants appeared, made proof of their respective claims, and the register and receiver decided in favor of defendants, from which complainant took an appeal, and the Commissioner of the General Land Office reversed the decision of the register and receiver. From the decision of the commissioner defendants appealed to the Secretary of the Interior, who reversed the decision of the commissioner and held that the defendants were good-faith purchasers of the land and were entitled to the possession of the same, and thereupon a patent was issued by the United States to the defendants. It is stipulated that, at the time Rachel Calvert and the defendants purchased said lands, they paid the actual, full, and reasonable cash value therefor, and that, at the time, each of the parties thereto believed in good faith that said land had been earned by the said railroad company. For the reasons stated, and under the authorities cited, in Lyle v. Patterson et al., complainant's entry upon the lands then in the actual and open possession of defendants, and his tender of his homestead filing and the fees to the United States Land Office, which were rejected, did not initiate such a claim to the land as entitles him to maintain this action; and the decree of the court below is affirmed.
*For other cases see same topic & 3 NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
PRESSED STEEL CAR CO. W. NIST.
1. TEIAL (§ 295*)—INSTRUCTIONs—Construction.
A paragraph of the court's charge must be considered with what preCedes and what follows it.
2. MASTER AND SERVANT (§ 291*)—INSTRUCTIONs—APPLICABILITY To Evi DENCE. Decedents, having been warned of the defective condition of a temporary steam pipe joint which they had constructed, informed their superior, who examined it at length, and while he went to inform the foreman an explosion of the joint occurred, by which decedents were killed. Held that, though such superior servant was not examined as to whether he left any suggestion for decedents to remain, it was not improbable that their return to the joint might be accounted for by the suggestion of their superior that they do so; and hence an instruction that plaintiffs claimed that decedents went there and were at the joint when it exploded under instruction or suggestion of one who had been sent to take care of the joint was not erroneous.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1136; Dec. Dig. § 291.*] 3. MASTER AND SERVANT (§§ 2S5, 289*)—INJURIEs to SERVANT. In an action for the death of certain employés by the explosion of a steam pipe joint, evidence held to require submission to the jury of the questions how the injuries were inflicted, how threatening the danger, and whether decedents were negligent in voluntarily exposing themselves to a peril that was obvious or might result in injury.
4. NEGLIGENCE (§ 136*) – CoNTRIBUTORY NEGLIGENCE – QUESTION of LAw on FACT,
A trial judge cannot infer contributory negligence from disputed facts, but can only pronounce it as a matter of law, when the facts are plain and practically uncontroverted, and the inference cannot fairly be escaped.
In Error to the Circuit Court of the United States for the Western District of Pennsylvania.
Actions by Annie B. Nist and by George M. Foulds and others against the Pressed Steel Car Company. Judgment for plaintiffs in each case, and defendant brings error. Affirmed.
W. S. Dalzell (Dalzell, Fisher & Hawkins, of counsel), for plaintiff 1n error.
Geo, C. Bradshaw and G. R. Speer, for defendants in error.
Before GRAY and LANNING, Circuit Judges, and J. B. McPHERSON, District Judge.
J. B. McPHERSON, District Judge. These two cases were tried together in the Circuit Court and have been argued together before the
"For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
Circuit Court of Appeals. They depend upon identical facts and may therefore be disposed of in one opinion. . The actions are based upon the defendant's negligence in constructing improperly a joint in a line of pipe that was designed to carry steam at high pressure. Under this pressure the joint gave way, and as a result of the explosion the two workmen whose deaths are now in question lost their lives. The only controversy raised by these writs of error relates to the conduct of the decedents, and before the dispute can be properly understood a brief statement of the facts is necessary. The joint had been put in by the Car Company's men. Among them were Nist and Foulds; the former being an expert pipe fitter, and the latter his helper. The joint was known to be a makeshift. It was expected to carry the steam for a week, and at the end of that period a permanent device was to take its place. It was finished on Sunday, and appeared to work satisfactorily until Tuesday morning, when it was observed to be leaking. The pipes connected by the joint were in the boiler room, and Stafford, who was in charge of that room, immediately started to notify Vaughan, the foreman of the pipe fitters, so that the necessary steps to remedy the trouble might be taken without delay. Upon his road he met Nist and Foulds, who were then employed in another part of the plant, and remarked to them, in effect, that their job of last Sunday had not been well done. He then carried his report to Vaughan, and Vaughan sent Cochran, another pipe fitter, to examine the supposed defect and see what he could do with it. When Cochran and his helper reached the joint, he found Nist and Foulds already there. Stafford's remark had produced its natural result, and they had gone to see what was the matter with the job upon which they had been engaged a day or two before. In what they thus did they may, perhaps, have been volunteers. There is no evidence that they were ordered to make the examination; but they were apparently acting from a praiseworthy motive, whatever the legal character of the act may have been. It is needless, however, to inquire whether their presence was justified, for no harm was done at that time. Cochran, who may have had the right to ask for their help, if the discharge of his duty made such help either necessary or desirable, accepted their assistance without question, and among the four workmen some effort was made to tighten the joint; Nist applying the wrench. The attempt was not successful. The steam escaped more freely, rather than less; and in a few moments they all went away together—Cochran in order to report to Vaughan, and Nist and Foulds for some place, and with some purpose, that were not disclosed at the trial. Not long afterwards the joint exploded, filling the boiler room with steam ; and when it became possible to examine the scene of the accident the dead bodies of Nist and Foulds were found somewhere in the room. How they came to be there does not appear from the testimony. We have the bare fact, unexplained, that they lost their lives near enough to the scene of the explosion to be exposed to its destructive effects.
Under these circumstances, the Car Company insists upon two assignments of error—one of them to the following sentence from the charge of the court: