Edward H. Hobb8 and R. D. Benedict, for appellee.
Mosher, for appellant.'
BLATCHFORD, Justice. I concur with the district judge in his concluin this case, and in the grounds on which he disposed of it, both on the merits and on the exceptions to the commissioner's report. In holding that this is not a case for allowing anything for depreciation of, or permanent injuries to, the Spray, I do not decide whether, if it were such a case, the allowance could be made although the libelant has not appealed. Let there be a decree for the libelants for $1,570.62, with interest from January 28, 1885, and for $832.50, with interest thereon ·from November 29, 1887, and for their costs in the district court, taxed at $149.75, and for their bosts in this court, to be taxed.
THE ANNEX No.3. HOGG
THE PENNSYLVANIA ANNEX No.8.
July 5, 1888)
(Oircuit Oourt, E. D; Nf:UJ York.
COLLISION-FoG-IDENTITY OF VESSEL. ,
'. On the evening of February 6, 1884,.a vessel collided with the steamer West· ern Texas, which was lying at pier 9. East river; but, owing to the darkness and a thick fog which prevailed at the time, it wlts·.im:possible to distinguish the.boat which did the damage. At about that time, on the same evening. the Pennsylvania Annex No.3, on her waY-from Brooklyn to Jersey City, was in collision with some object in the vicinity of piers 2 or 3. Suit was brought against Annex No..3 forthe damage sustained by the Western Texas. The claimants denied the identity of the colliding vessel with the Annex .boat. Held, ou the evidence. that the libelant had not proved that the damage " in question was dOne by Annex No.3, and that the libel should be dismissed.
appeal irom district ·court.27 Fed. Rep. 516.
Evarts, Clwate& Beaman, (TreadweU Cleveland, ofcounsel,) for appellant. Goodrich, Deady & Goodrich, and R. D. Benedict, for appellee.
BLATCHFORD, Justice. In this case I find, as a fact, that the libelant has not established by sufficient proof the allegation of the libel that the steam-boat orferry-bO!lt known as the "Pennsylvania Annex Boat No.3," on the occasion in the lipeljran into Il-ud upon the steam-ship mentioned in the libel, and then called the " Western Texas," and caused damage and injury t6 her. On the foregoing fact I find, as a conclusion oflaW, that a decree must be entered dismissing the libel, with costs to the the district court, taxed at $401.82, and with costs to it in thiEl court, to be taxed. 'TM objections of the libelant to the attempt to show by the witness .:B.ose, on his cross-examination, statements alleged to have been made · by Rivers to Rose,and to the attempt to show by the witness Rose, on his cross-examination, that RiverS was untruthful, are sustained. All the objections ofthe claimant to the admission of evidence, set forth in ·the on his behalf to the court, are overruled.
JONES V. UNITED STATEs.
JONES V. UNITED STATES.
Circuit Court, D. Oregon.
July 16, 1888.)
The word "claim." as used in the act of 1887, (24 St. 505.) giving this court jurisdiction to hear and determine certain claims against the United States, includes a claim by a purchaser or his assignee of timber land under the act of 1878, St. 89,) to have a patent issue for the same. (Syllabu8 by the, Oourt.)
COURTS-FEDERAL CrnCUIT-PU:aLIC LANDS-CLAIMS TO A, PATENT.
Action to Compel Issue of Patent. , W; Scott Beebe and James K.KeUy, for plaintiff. LewiS L. McArthur, for defendant.
DEADY, J, This suit is brought under the act of March 3, 1887, (24 St. 505,) entitled, "An act to provide for the bringing of suits against the government of the United States," to compel the issue of a patent to the S. E. t of section 30, in township 7 N., of range 3 W., of the Wallamet,meridian. It isaUeged in the petitionthllt the petitioner resides in Multnomah county, Or., and. that the land in question is situated in Columbia county, and is oia value not less than $1,000, nor more than $10,000; that prior to June 21, 1883, said land was surveyed and subject to entry and purchase under.the act of June 3, 1878, for the sale of tirhber lands in Ore'gonandotberPacificstates, (20 St. 89,) "and was not fit for agriculture, butwas chiefly valuable for the timber thereon;," that on said June 21st one John R.' Frierson, having complied with the requirements of said act, and the regulations concerning the acquisition of land thereunder; "so as to entitle himself to pay for the same, and claim.a patent therefor,from the United States, did on said day, at the United States landofficein Oregon City, Or., purchase said land from the defendant,and did then and ,there pay to the receiver of said land-office the price thereof, to-wit, the sum of $400, or $2.50 per acre; and that the receiver gave said Frierson" a certificate or receipt" for said. money as "being in full" for said land. That on, June 26, 1883, said Frierson, for a valuable consideration, sold, assigned, and transferred said certificate and receipt, and all his right, title, and interest therein and to said property, to the petitioner, and on the same day, in consideration of such sale, said Frierson executed and delivered to the petitioner a good and sufficient deed, with :warranty, of said land; that the defendant has kept and retained said $400, and its.servants, whose duty it is to execute and deliver the patent for said land, refuse to do so, and deny the right of the petitioner to .have the same, or to any interest in said land,whereby her title thereto is clouded, .and the full enjoyment of the property prevented. The prayer of the petition is that the court will decree thai a patent for said land issue to said Frierbon, and that all his interest and estate therein by virtue of said sale and patent inure to the petitioner, accordingf,Q;the conveyance to her by said Frierson. . v .no.8-36