UNITED STATES V. YODER.
(Di,trict Oowrt, D. Minnesota.
ACTION OF TROVER- RIGHT OF SETTLERS TO BEFORE PRE-EMPTION.
TIMBER AND IMPROVE
A settler, claiming in good faith a can; for the purpose of improving the land, cut down the necessary timber beIore he files his entry ill the land-office. There is nothing in the homestead act requiring an entry m the land-office before settlement.
This is an a.ction of trover for the conversion of timbor owned by the plaintiffs.
In April, 1880, Hermann E. Robinson, the defendant's vendor, settled upon the surveyed land upon which the timber was cut with a view of making it his homestead, and in October, 1881, he made his entry at the proper land-office. In January, February, and March, 1881, for the purpose of improving the land, he cut thereon 1I0,aOO feet of pine logs and sold the same to the defendant, delivering them at his saw-mill. Robinson, the settler, has resided upon the land from the time of his settlement up to the trial of this cause, except when absent temporarily for a few months. Mr. Congdon, Asst. U. S. Atty., for plaintiff. O'Brien w Wilson, for defendant. NELSON, J. The government has no right to the logs or their value upon the facts above stated. It may be true that in pre-emption cases the government can dispose of the land by grant for public purposes, or reserve it from sale, before all the prerequisites for obtaining the title have been complied with by the settler; still, in this case, the government has not done so, and the authorities cited by the district attorney have no application to the existing facts. The naked question presented is ",hether or not a settler, claiming in good faith a homestead, can, for the purpose of improving the land, cut down the necessary timber befote h'e files' his entry in the land-office. I find nothing in the 'homestead act forbidding it; and if the settler is acting in good faith, the fact thll.t the time above specified intervened between the settlement and filing of the entry, would not prevent him from doing, in the meanwhile, that which good husbandry would dictate. There is nothing in the act requiring an entry should be made in the land-office before settlement. Chapter 89, § 3, Supp. Rev. St. p. 526; Johnson v. Towsley, 13 Wall. 90. A person who has filed a pre-emption claim, and become entitled to the law governing pre·emptors, may avail himself of the homestead act, and certainly he must have settled and improved the land before he makes his preemption claim. In my opinion, this law, so wise and beneficial in its
results, should be liberally construed, and unless there is evidence of bad faith on the part of the settler, it is not the policy of the government to barass him by vexatious litigation. Judgment for defendant.
(Circuit CQurt, W. D. Missouri.
PERSONAL INJURy-NEGLIGENCE-BURDEN OF PROOF.
The law does not presume or impute carelessness or negligence, but requires it to be shown by him who alleges it, and unless he does show it he cannot recover. A carpenter engaging himself as such is bound to know, and he assumes, the ordinary dangers of his calling, and must exercise prudence and caution accordingly.
SAME-CARPENTEns-RIsKs ATTENDING THE TRADE.
SAME-OVERSEERS-CARE IN SELECTING.
In employing overseers or superintendents ordinary care and prudence must be used in ascertaining their qualifications and fitness, but the law presumes that self-int0rest is a sufficient stimulant in the ascertainment of the suitableness of an overseer, and therefore the burden of proof is with him who alleges the unfitness.
OF CLAIMS FOR DAMAGES
The law favors settlements between those claiming damages for personal inbut if such set.tlements !'re juries and those who may be. the cause of the Induced by false representatIOns, or when the lDJured party IS not In possessIon of his proper senses, they must be regarded as a nullity.
At Law. Scott <t Taylor, for complainant. Pratt, Krumbock <t Ferry, for defendants. KREKEL, J., (charging jury.) This suit is brought by Mentzer,' plaintiff, to recover damages from Armour and others, defendants, for personal injury sustained while in their employ as a carpenter upon a building which defendants were erecting in. Kansas City. .In the statement of his cause of action Mentzer alleges generally that his injury resulted from defendants failing to furnish proper materialfor the construction of the building; failing to furnish a safe and proper structure for him to stand and walk on; failing to furnish. efficient and sufficient superintendents; charging that the wholly disregarded their duty in these negligently furnishing unsound and defective lumber, for joists;· .that defendants' agents carelessly and negligently nailed· and fastened. the joists; that they carelessly and negligently furnished unskilled and incompetent superintendents;-,.all of· which the defendants knew, or. Illight .have known by the exercise of ordin8l1'y oare; that this ca.relessness and neglect caused dangers of which they failed to advise him; that defendfl,nts' overseer ordered him togo upon said joists to brace them,