passing signals had been given by the Tolle and answered by the Henderson. 9. That the John l!\ Tolle, prior to and at the time of the collision, was properly officered and manned, having a licensed officer on deck in charge, a licensed pilot at the wheel, and watches duly set on the lookout, and her lights properly set and screened. 10. That the course of the Tolle, after passing tIle chute .onthe right of Prophet's island, was across the river to the west bank"and along that bank within a distance of 100 to 200 yards from, shore, and so continued up to the collision. 11. That before the collision, when the boats were approaching and near to each other, the engines of both boats were stopped, and the engines of the Tolle were set to backing, but neither boat had lost heading when the collision occurred. And, as conclusions of law, the court finds: . 1. The Henderson was clearly in fault in not having a licensed pilot at the wheel and a proper officer in charge on watch, and in not being in her proper place in the river. John F. Tolle was not in as she was properly oBi2. cered and piloted, and was in her proper place in the river as the ascending boat, and according to the signals given and answered. . 8. The libel should be dismissed, with costs.
THE FANNIE TUTHILL.
(District Oourt, N. D. Ohio, E. D. 1882.)
TuG-DuTY OF-VONTROL OF NAVIGATION.
In the towing of vessels without motive power the tug is to be regarded as the dominant mind or will of the adventure, and the details of immediate navigation, with referenCe to approaching vessels, must be left to II great extent to those on board of her.
SAME-MEASURE OF ACCOUNTABILITY.
They are not regarded as common carriers, as to accountability, but are only required to use reasonable and ordinary care in their business-the skill and ability ordinarily possessed and exercised by those engaged in that businesstowards the tows in their charge. 3.
COLLIsION-WrrH VESSEL AT DOCK.
Where a vessel was lying at a dock on the east side of the river, and a barge, in charge of a tug coming up the river, sheered to starboard, when the tug pulled her towards port to avoid another tug and tow coming down the river,
and directed the tow to steady her wheel, but the tow, by mistake, in porting her wheel sheered towards the barge fastened at the dock, when the tug tried to pull her towards the west side of the river, but failed, and the tow came into collision with the barge at the dock, held, that the master of the tug, in supposing he could pull the tow far enough to the west to avoid collision, was mistaken, and ,that he tried thee"pedient too long, and u.ntil the barge was so near thai the accident of slipping of the tow line out of the chock of the tow, occasioned by hard pulling, precipitated the collision, which could have been avoided by allowing the tow to she6l' and strike the dock below the vessel moored thereat.
H. D. Gouldef', for libellants. Oharles L. Fish, for tug Tuthill·. 8. O. Gri$wold, for barge Harvest.
WELKEn, D. J. The barge Minnie Davis, owned by the libellants, was fastened to the ,dock on the east side of the Cuyahoga river, near the foot of St. Chtir street, in the oity of Cleveland, on the morning of the eighth of Ootober,' 1880. The tug Tuthill, towing the barge Harvest, came up the river and passed on the west side of the drawbridge at Main street, and BOme 400 or 500 feet above the bridge passed the tug Castle, having in tow two oanal·boats going down the river on the port side of the Tuthill. , Just before meeting the t'llg Castle with the canal-boats the Harvest sheered to the starboard, and the Tuthill pulled her towards port, and then passed the downgoing tug and tows. The Harvest,was then direoted to steady her wheel, but soon she sheered towards the port side in the direction of the Minnie Davis. The helm ·of the Harvest, by mistake, was put hard a-port, which sent her to the port side of the river, when it should have been put starboard to avoid the port side of the river, The tug tried to pull her into the river towards the west side, but failed to do it, and the Harvest ran into the stern of the Minnie Davis, doing her great damage. When the Harvest sheered to the port side she was some 400 or 500 feet from the Davis, and two-thirds across the river at that point. There is no doubt but that the Harvest was careless and at fault in the manner in which her helm was placed. It had been placed exactly wrong, and thereby contributed to the injury of the Davis. The question about which there is some doubt is whether the tug was also at fault in the manner in which she tried to prevent the 001lision. It would seem curious that in broad daylight in the river the tug and tow could not avoid hitting the Davis, lying fastened to the dock in full sight as she was.
In the towing of vessels without motive power the tug is to be regarded as the dominant mind or will in the adventure. It is the duty of the tow to follow her guidance, to keep as as possible in her and to conform to her directions. The exercise of reasonable skill and care within this sphere is incumbent on the tow. 94 U. S. 496. The details of the immediate navigation of the tug,with referencc to approaching vessels, must necessarily be left, to a. great extent, to those on board of her. 108 U. S. 702. In the discharge of the duty of towing vessels tugs are not to be regarded as common carriers and held to accountability as such. They are only required to use and ordinary care in their business-the skill and ability ordinarily possessed and exercised by those engaged in that business towards the tows in their charge. In this case the Minnie Davis, lying at the dock, powerless, as she was, it was the duty of the tug, as well as the barge, to use all reasonable care to avoid an injury to her. It is claimed that the tug did all she could to prevent the collision. The evidence warrants the conclusion that she did not. It is evident that the master of the tug supposed he could pull the Harvest far enough from the port side of the river to avoid the collision. In this he was mistaken. He tried the expedient too long, until the barge got so near that the accident of the slipping of the tow-line out of the chock of the Harvest, occa· sioned by hard pulling, immediately precipitated the Harvest into the Davis. When the Harvest first sheered to the port side the evidence shows that the tug was some 400 or 500 feet from the Davis. It was its duty, then, if it was seen that the helm of the Harvest was wrong, to have it corrected, or use all means to stop the barge and avoid the collision in case it was not immediately corrected. This it did not do. The collision could have been avoided if the tug had allowed the Harvest to sheer over to the port side, as her rudder would have sent her, and thus struck the dock below the Davis. The tug was also at fault in increasing the speed of the barge by her hard pulling as it passed the down-going tug, and her continued pulling against the rudder of the Harvest. This, no doubt, aided the collision of the vessels. Decree for libellants against both defendants, and referred to Earl Bill, commissioner, to report damages.
UNITED STATES V. M'GRA\V
UNITED STATES 'V. MOGRAW. UNITED STATES 'V. MESERVEY UNITED STATES V. TICHENOR
(No. (No. 665.) (No. 666.)
and another. and others.
(Oircuit Court, D. Oregon. June, 1882.)
PUBLIC LAND-SUITS TO
ANNuL PATENTS-INSUFFICIENT ALLEGATIONS. In a suit by plaintiff to annul certain patents issued by it to defendants on the ground that they were issued contrary to law, and in fraud of the rights of plaintiff, because the lands hicluded therein were a part of a .. military reserva· tion " lawfully established at Port Orford prior thereto, and which was known to defendants prior to entry upon the same, the allegation of fraud is·insufficient, as it was not the duty of defendants to inform the officers of the plaintiff that these lands had been lawfully reserved from sale, even if such was the case. Where it does not appear that any reservation was ever made by the authority of the president, and it does appear that the alleged reservation included more than 200 acres, while the law since February 14,1853, limited the amount which might be reserved at one place for any purpose other than a .. fort" to 20 acres; and while a reservation of 640 acres might lawfUlly have been made for a "fort," but it does not appear that a " fort" was ever established at Port Orford-no reservation was in fact lawfully established.
RESEUVATION OF LAND FROM SALE-aUTHORITY TO MAKE.
The alleged order of the secretary of war. by which it was directed that the .. post" at Port Orford be made permanent according to previous act' on, signi. fies that it related to the "post" and not to a reservation, and the object seems to have been not to make or ratify a reservation at Port Orford, but to direct that the" post" be " made permanent:" and if such order was intended to establish a reservation, it was VOid-First, because it did not prescril,e its boundaries of limit as required by law; second, because it contained over 200 acres, the reservation for the purpose of a .. post" being limited to 20 acres; and, third, it is void as to defendants' land in controversy because they were purchased before the order was made.
CONGRESS-POWER TO DISPOSE OF LAND-LACHES-SUIT DISMISSED.
Congress alone has the power to dispose of the public lands, and where by its authority the premises'in controversy were lawfully sold to the grantees in the patents in controversy, and there is no proof that the authority conferred upon the president has been exercised, so as to take these lands out of the general provisions made by congress for their sale and disposition to private persons and uses, and where it appears that plaintiff has been guilty of laches in the assertion of its claims, the equitable defence of lapse of time is well pleaded, and, the bills being without eqUity, demurrer thereto is sustained and the bills dismissed.
In Equity. Suits to annul a patent. v.12,no.5-29 .