tbatdate.,'.the following false and defamatory language concerning the plaintiff,; ll.ndconcerning said pamphletjthat is to say: " The pamphlet on the Paine Bribery Case and the United States Senate, by Albert H. Walker, is plainly the effusion of a crankj"-meaning thereby to publicly characterize the plaintiff as a "crank," and thus to publicly impute to him sundry qualities, aims, and methods highly inconsistent with usefulness and success as a lawyer and author, whereby plaintiff has been greatly prejudiced in his credit.and reputation, and caused to be considered an unreliable and injudicious person, and destitute of those qualities on which the earnings of a lawyer or a serious author dependj and has been greatly vexed and mortified, and has been deprived of divers great earnings which would otherwise have accrued to him in his professional duties; and divers great royalties which otherwise would have been paid to him on sales of his books. is general and special, the grounds of the general deThe murrer being (1) that the word is not in itself defamatory or actionable, and there is no averment or innuendo in the declaration stating that ,the defendant's meaning, or the sense in which the word was used, was such as to make it defamatory, orimply any libelous intention; (2) that the pamphlet referred to. in the defendant's criticism as "plainly the effusion of a crank" shofl.ld have been set out, so that the court could judge whether the language used by the defendant in regard to it was justified fromtlle tenor of the pamphlet itself. The ground for special demurrer is that there is no. averment of special damage or injury to the plaintiff by reason of the alleged defamatory m.atter. first it must, I think, be. conceded that to call a person a "crank" is not of itself actionable. It is not a word which, by its common U1eaning in the English language, imports that a person has been guilty of a crime, o,r exposes him to hatred, contempt, ridicule, or obloquy, Qr which would tend to injure him in his trade or profession. The wordhas'llo ll'ecessary defam.atory meaning, and, ifit was used by the defendant in a defamatory sense, such sense must be given it by an appropriate allegation or innuendo to/thateffect. The meaning alleged in the declaration is "thus to pUblicly impute to him [plaintiflJ sundry qualities, aims, and methods highly inconsistent with usefulness as a lawyer or as an author.". This is not enough. Some opprobrious or defamatory meaning-something which would. show that the expression used would tend to bring the plaintiff into contempt or hatred, or charge him with a criminal offense-is necessary. It is no libel upon a man who has entered the field of authorship to underrate his talents. As to the second point, it was not necessary for the plaintiff to set out his pamphlet as part of the If defendant wishes to justify the application of the or word "crank" to the plaintiff, in can· nectionwith this pamphlet, it can so plead, and put the pamphlet in evidence before 'the jury. The special cause of demurrer assigned, that there was no averment of special damage to the plaintiff, need not, as it seems to me, have been
WALKER t1. TRIBUNE CO.
specially stated, as I think the law is well settled that, when the alleged libelous words are not in themselves actionable, the plaintiff must not only charge the defamatory meaning by an appropriate innuendo, but he must also aver and 'prove special damage, and a failure to do so may be taken advantage of by general demurrer. n'l.rf'pollairdv;Lyon, 91U.8. 225, it is said: words are not actionable, because the offense immoralturpit.nde nor subjects the offender to an infamous pnni&bmWI' special damage mualr pealleged and pr.oved in order to maintain the action. ... ... ... In such case it is' necessarJrthat the declaration should set' foith pfecisely in what way the special damage'resulted' from the speaking It is not sufiici\lpt toaIIege. generally, that the plaintiff has Iiufferell sPe4ial' damages, or that th,e part,1 has been put, to great costs and expenses. ... ... ... By special damage, in such a caae. is meant pecuniary loss," " Here the. pJ1l;intiff merely states that, by reason of this alleged libelous publication, he has been deprived of divers great earnings in bis professic>D,and lost royalties on the sales of his books. This is not sufficient. Hesbould,pave stated who, if anyone, had refused to employ him as a lawyer, and who has refused to buy his books, so specifically that defimdallt may know what proof it will have to meet at the trial on the questIon of damages., " ' ' It is urged ina brief filed by plaintiff that, since the assassination of President Gllrfield by Guiteau, the word "crank" has obtained a definite meaning in this country, and is understood to mean a crack-brained and fuurderously inclined person, and is so used by the public press. I do not think so short ll. term of use would give to such' a word a. libelous sense or meaning without an allegation or innuendo as to the sense in which it waS, used by the defendant. In Ogilvie's Dictionary" published hj England ill 1883, and republliihed in thisco.untry in 1885, thew-ord is found 'in the supplement with the following definition: ",'Crank.' S0tne strarlge action, caused.,by a twist of judgment; a caprice; a whim i a crotehetja vagary. Violent of temper; subject to sudden cranks. , Carlyle.'> So that by this authority" which,I think, !pust oe deemed. the latest, and proba1?ly the best, the word would seem to havano necessarily defamatory sense. It would not necessarily im. ply that' a I1lan had been guilty of a crime, nor tend to subject him to ridiculeQl'oontempt,to say of him that he is capricious, or subjept to vagaries or whims; and such implication or intent could only be shown by an apt averment, and proof in support of !luch averment. The demurrer is sustained"and the case will be dismissed at plaintiff's cost, tinlesshe shall amend in 20 days.
· DDERAL, REPORTED. '
PENaRA 11. MUNZe
CJmTIFICATION BY THE 1i'B:Jll INTERIOR SWAHP AND WAGON-BQAJ) GltANTS. , ,"
OJ' ,L.urJ)e'1'O 'l'BlB STA'l'II
, ' ,"
On M,atch 12, 1860'S12 St. 8,) <l9ngressgranted the lands that were "wet and unfit for cultivation, within the lin"its of Oregon, to the state;'to'be'selected by the iltate fi-omthe lands thereafter &urveyed,"wlthin two yeats from the adjournment of the legllsl,ature'>at.tbe "next session after notice by the secretary of, the interior to thegoVe1'Dof olthe state that the surveys beell completed and .. andtb8n c;:ertified by the secretary of the Interior, If found to come wIthin the opel'atfon of the act, and patented to the state, on which the fee shall vest In the state. "On July 2, 18M, congress gr&ntedto the state, to aid in the construction 'of a military wagon road from Eugene to the eastern boundary of the state, the "alternate sections of the public lands, designated by odd nUJ,llbe:r:s, for thrfje sections in width on each side of said road," as the same may be On October 24, 1864. the legislature of the state transferred this grant to the Oregon Central Military Road Company, who In due time construe'tlld ,t,he ;road. On December 27, 1868, the vey of se,ction 21, in township llll, of r!lnge 14 east of the WaUametmeridian, was'duly confirmed, of which fact:thegovernor of the state had due notice before the session of the legislature held in 1868. On April 18, 1871." the secretaryof the interior, on the recommendation of, the commissioner of the general land-office, approved the selection of sec"tion 21, under the wagon· road grant, and certified the same to said road company as the grantee of the state. On. September 16, 1882. said section" 21 was erroneously included in a list of lands then certified by the secretar1 to the state under the swamp-land act, and on January 4, 1883. the commiSSIoner, as to said section 21, recalled said certificate,. as having been erroneOusly made, and notified the governor of the state thereof. On May 11, 1877, the defendant purchased theE. t and the S. W. t of section 21 from the itate land commiSSIoners, under the act of October 26, 1870, for the sale of swamp lands, paying $96 down, and the bal· ance ($480) on December 12, 1888, when he received a deed therefor from said commissioners. HeW.:. (1) The. swaDlp-Iand act is a grant to the state on the condition precedent that ,the selection of lands thereunder is made within the time limited therein, and on failure to do so, the grant lap.ed and became of ,no effect. (2) The legal title to land selected under the swamp-land act does not vest in the state until a patent is issued therefor, which patent, when fssued, relates back to the date of the grant. (8) By section 2 of the act of 1860 the duty is devolved on theitate to select the lands it claims under the Iwamp·laild act, and present the lame for the considel'ation of the secretary of the illterior, whose duty it is to ascertain and determine whether the selections are "wet and unfit for cultiv:ation, OJ within the meaning of said act; and his determination of the question of fact cannot be impeaclwd or questioned elsewhere except ,in a court ofeqnity for fraud or mistake other than an error of judgment. (4) It was' also the duty of the secretary of the interior, by virtue of his general control over the subject of the disposition of the pub· lie lands, to ascertain and determine what lands inured to the state or ita grantee; the wagon-road company, under the wagon·road grant of 1864. and when he determined that said section 21 inured to the wagon-road company -under said act he thereby determined that it did not inure to the state under the swamp·land grant. (Q)'The certification of section 21 to the state as swamp land by the secretary was a mere clerical error that the department had a right to correct as it did; but the section having already been certified to the grantee of the state under the wagon-road grant, such second certifica· tion was simply void and of no effect. (6) The state having in effect procured section 21 to be certified to the plaintiff's grantor under the wagon-road grant, the defendant, as the grantee of the state, is estopped, as against the plaintiff, to assert or maintain that said section ever inured to the state WIder the swamp-land graD.$.