often leased the same, keeps the key when unoccupied, and is ever ready to rent the premises when applied to by a person desiring a house. As long as the house is under the control of the claimant, it is the symbol of his ownershi p, and asserts his possession and right of possession against aU mankind. If you find from the evidence that the defendant Garrett has exercised acts of ownership that I have ,described for seven years, then you should find this issue in favor of the defendants. The case is now with you for your consideration and action.
Thf' jpry returned a verdict in favor of the defendants on all the issues submitted to them.
EDWARDS and others.
(Circuit Court. D. Kansas. September 12,1887.)
PUBLIC LANDS-SALE OF INDIAN LANDS-AcTION TO SET ASIDE PATENT.
An act of congress, passed May 28, 1880, required that applicants for the settlement of certain lands, held in trust for Indians, should have the qualifications, of pre-emptors, and that they should be actual settlers, and make payment. After final receipts were issued to parties entering upon tracts of such land, and they were'bought and paid for by a third party to whom pat· ents were issued, a bill was filed by the to set aside the patents. on the ground of fraud, and evidence was offered to show that the parties making the entries had established residence upon the lands, but were generally about a neighboring town or employed in another state. Held, that as the government did not by such evidence clearly and satisfactorily show that it had been defrauded, and that, as the parties entering had the qualifi· cations of pre-emptors, were actual settlers, and had made payment, and the proceedings in the land-office were regular on their face, and free from collusion between the purchaser and the parties entering, a decree would be en· tered dismissing- the bill'.
In Equity. Action to set aside patent for public lands. Hatton &- Ruggles, for defendant Halsey. Harris, Harris &- Vermillion, for defendant Lombard Mortgage Company. BREWER, J. Fifteen suits have been brought by the United States to set aside the patents to as many different tracts of land in the county of Harper, in this state., The grounds alleged in each bill are fraud in obtaining the patent. One party is a defendant in all the cases. The facts in all are Similar, and they may therefore be considered together. The rule to be observed, and the amount of proof requisite in cases ofthis character, have recently been stated by the supreme court in the Maxwell Land-Grant case, 121 U. S. 325, 7 Sup. Ct. Rep. 1015, as follows: "We think the general doctrine to be that when, in a court of equity, it is proposed to set aside, to annul, or correct a written instrument for fraud or mistake in the execution of the instrument itself, the tt'stimony on which this is done must be clear, unequivocal, and convincing, and that it cannot be done
UNITED STATES V. EDWARDS.
upon a bare preponderance of evidence which leaves the issue in doubt. If the proposition, as thus laid down in the cases cited. is sound in regard to the ordinary contracts of private individuals. how much more should it be observed where the attempt is to annul tbe grants. the patents. and other solemn evidences of title emanating from the government of the United States under, its official seal. In this class of cases, the respect due to a patent, the presumptions that all the preceding steps required by the law had been observed before its issue, the immense imparLance and necessity of the stability of titles dependent upon these official instruments, demand that the effort to set them aside. to annul them, or to correct mistakes in them, should only be successful when the allegations in which this is attempted are clearly stated and fully .sustained by proof." ' 'With thafexposition of the law as my guide, I pass to the consideration of the facts of these cases. The final receipts in all these cases were issued in the fall of 1882, and the lands were the same season purchased by the defendantM. H. Halsey. The proceedings in the land-office were regular on their face, and the parties entering the land, the BU bsequent patentees, were real parties, and not fictitious persons as in the Moffat CaBe;and now, before going further into the details, I am met with this 'question: Must the entry have been made subject to the provisions of the general pre-emption laws, and if not, what was requisite to entitle the party to it? These lands are a part of the Osage Indian Trust and Diminished'Reserved Lands which were ceded by the Osage tribp "f ·. idians to'tbe government by the treaty of January 21,1867, (14 II S. St. at Large, 687,) and, as provided in said treaty, 'were "to be c"ld in, trust for said Indians, and to be surveyed and sold for their b'lnf'fit by the secretary of the interior." On April 10, 1869, by joint resolution of congress, that body provided for t.he sale ofthese lands, to "any bona fide settler residing upon any purti' 'u [llereof." This act wasre-enac+pd on July 15, 1870, with some slight changes. In Foster v. BroRt, 11 Kan. 350, the construction of this act came before the supreme court of that state, and it was there held that the claimant's right to IJtlrchase was not det.ermined by the general pre-emption law, but rested upon thiE a0L. I was a member of that court at that time, and took part in this decisTwo or three subsequent acts were passed by congress which do not ,. quire notice, for on the twenty-eighth day of May, 1880, an act was passed which seems to me controls in the matte!'. The first section makes provision for then residing settlers. sel.;ond reads as follows: "That all the said Indian lands remaining unsold and unappropriated. 'md not embraced in the claims provided for in sectJ()n oneof this act, shall b6 sub: ject to disposal to actual setUers only, haVing the qualifications of pre,elItptors. Such settlershall make due application to t.he register, with proof of settlement and qualifications as aforesaid, and upon payment shall be permitted to enter," etc. All that is required of the applicant is that he shall have the· qualifi. cations of a pre-emptor, that he shall be an actual settler, and that he shall ma,ke payment. As the government held these lands under a trust to convert them into cash, its primary object was, of course, to realize as soon and as much as possible, and not, as in respect to public lands
generally, to have them occupied and improved; so it might properly ignore the questions of improvement or length of occupation. The trust was fulfilled when the money was obtained. The land department has t:ece'ntly placed the same construction upon this matter. See the letter of acting Secretary Muldrow to Commissioner Sparks, of date April 26, 1887. approved by the acting secretary, and in Copp's LandOwner of June 1, 1881, on paga 58. Now, there is no dispute that the money waspaid,-$200 for each quarter section,-and it is abundantly shown '. that defendant Halsey purchased from each party entering his separate tract, paying him $500 therefor. There is not a 8cintilJ.a of testimony to show that these entries were made through any collusion or by viJ'ltU,e, of any agreement ,between Halsey and the parties entering. ThereJ.s nota particle of testimony that shows that anyone of these parties entering did not have the qualifications of a pre-emptor, except, perhaps, as to one party. As to him there is testimony, if competent, father said that he was but 17 years of age,and the opinion of ,one: witness that, he did not look older. ,than that. On the other hand, ja testimony that be appeared to be a man of age, and his own affidavit:..ttached to his application. With respect to some of the parties entelling, there is affirmative and clea.r testimony that they did reside UpOn the lands; with respect to others; the testimony is'very unsatisfactory. So far as the five parties of the name of SnydeNl.re concerned, evidently they made some improvements with a view to residence, and resided upon'the lands at different times, though not, As to the other eight, the improvements were insignificant, and in some cases it is dQubtful whether there were any; and it is 'not affirmatively shown\tllat they ever actually-some of them at least-resided on their tracts. " If six months' continuous residence was requisite, Ishoul<1 have no, dQubt that the government had clearly shown a lack of such residence; but when,it comes to the question whether they ever did for a short time actually,make a residence, 1 think in most of the cases the government has failed to prove the. negative. After, the purqhase price had been paid, and the receipts issued and conveyances made by the parties en, tedng to Halsey, it appears that some question arose a.s to the validity of entries.. A hearing was ordered before the land-office at Wichita, but the hearing was postponed indefinitely; and thereupon Mr. Halsey went to Washington, and applied for a hearing before the commissioner which was grante<i. and upon such hearing the entries of were sustained, and patents thereafter issued. Not one of the parties ,who made the several entries has been found, or his testimony procured. The testimonyofthe government is mainly that ofwit'nesses to the effect that these various parties, during the "Summer and fall of1882, were generally about the town of Harper, or employed in the Indian Territory, fromwhjch iUa inferred that they never established any residence upon these l$nds; and, as to some of the parties, the testimony points strongly in that'dil'ection; but when I take into consideration the trl,lst under which the government held these lands, the spirit of:this act of 1880, the fact oithe actual payment, the evidence of no collusion or conspiracy
. THE ALASKA.
between Halsey and the parties entering, it seems to n1e that I cannot, within the rule laid down by the supreme court as quoted above, hold that the government has clearly and satisfactorily shown that it was defrauded in these entries. It is unnecessary, therefore, to inquire as to the right of subsequent parties purchasing from Halsey, or mortgages placed upon the lands for Halsey, being entitled to a decree in his favor. They are also protected. With the failure of the principal attack, the collateral assaults also fail. A decree will be entered in each case dismissing the bill.
THE ALASKA. VAN PELT and others
Oourt, S. D. New York.
COLLISION-TAKING PILOT ON BOARD-DUTY 'OF STEAMER.
When a pilot is to be taken on board a steamer at sea., it Is the duty of the steamer, when she gets sufficiently near the pilot-boat, to permit the latter to undertake the immediate maneuvers necessary to approach the steamer, to stop her own headway, and leave the execution of these maneuvers and the .subsequent details of transferring the pilot to the judgment of the nilot-boat. Iii .!l suit to recover damages caused by the sinking of a pilot-boat· by' a stea.mer during maneuvers incident to the transfer of the pilot, the evidence of experts is admissible to show the usage of navigation under the circumstances of. the occasion. Eleven months after the pilot-boat had been sunk by collision with a steamer at sea, a was filed to recover damages. In the interval between the collision and the filing of the libel the steamer had passed into the possession of a third party, who had no notice of the collision at the time he acquiredtitle. Held. that the libelants were not guilty of laches, as their most important witnesses;; the crew of the sunken vessel, had 'lerished with her
2. SAME-TAKING 1;>ILOT ON BOARD-EVIDENCE."
SAME-ACTION FOR-LACHES-DEATH OF WITNESSES.
4. NEGLIGENCE-ACTION FOR DEATH-ADMIRALTY. No BuiHn admiralty, in the courts of the United States, can be maintained, under the general maritime law, to recover damages for the death of a human being on the high seas through negligence.
In Admiralty. Libel for damages. James Parker. for libelants. George B. Adam8, for claimants. WALLACE, J. This libel was filed to recover damages for the loss of the pilot-boat Columbia, and the personal effects of her crew, in consequence of a collision Of the steamer Alaska on the night of December 2, 1883, by which the pilot-boat was sunk,and all the men on board were drowned. A supplemental libel Was filed to recover damages for the death of the persons lost, on behalf of their respective widows. Thedistriot condemned the steamer for the damages for the loss oLthe pilot-boat, her furniture, etc., and the effects of the crew; and dismissed the supplemental libel filed by the widows of the deceased sea-