UNITED STATEStI. SCOTT.
running at a greater rate of speed than six miles an hour, provided the injury is the result of the increased rate of speed. In this case I am satisfied the injuries resulted from the increased rate of speed, and therefore must hold the receiver, or, rather, the funds in his hands, liable for the damages. For these injuries petitioner by her petition claims the sum of $2,500. The proof fully sustains this claim, and for which, with the cost, the petitioner is entitled to a decree, to be paid out of the money in the hands of the receiver. The petitioner further alleges that the defendant, by his employes, in making a ditch or sewer, so changed the flow of the water as to divert it from its natural channel, and threw it upon certain lots of ground owned by her, and by which her said property has been greatly damaged.. I have examined the proof on this point. I am satisfied a portion of the water thrown ripon the petitioner's lots has been caused by the change made, but not all; and how much has been so diverted is uncertain. Again, if the pipe or sewer made by the Compress Company was constructed before the sewer was made by defendant's employes, then petitioner's premises would have had the same water thrown upon her lots. The proof is uncertain as to which was first made. Petitioner was, in addition to this, after this sewer was made, paid the sum of $400 for making embankments on her lots. This injury from the sewer must then have occurred, and should have been, if it was not, embraced in that settlement. So that, upon the whole case, I do not believe any damages should be allowed for this portion of the complaint.
UNITED STATES V. SCOTT
(DiBtrict Oourt, E. D. Texa8. January, 1889.)
PuBLtC LANDS-CUTTING TIMBER-LIABILITY.
A receiver ina land-office :n Louisiana sold land to H. & L. for $1.135 per acre. The receiver was in error as to the price; it should have been sold for $:2.50. H. & L. received a certificate acknowledging payment at $1.25 per acre, and describing the land. No one is ch3rged with fraud. Soon after H. & L. went into possession under the certificate. they sold for cash the timber ortrees on the land for fire-wood. to defendants. Before pnrchasing, defendants examined the official books in the land-office. which disclosed the sale to H. & L. Several years after the sale to defendants. and after the death of H. & L., who left insolvent succession. demand was made by the government for the additional $1.25 per acre. which demand was not complied with, and a compromise agreement was entered into between the government and the succession by which all the rights of H. & L. were given up to the government. and the latter returned the $1.25 per acre originally paid by H. & L. to their succession. Held, that the act of sale made by receiver to H. & L. was not wholly ultra 'Dires,' that at the time of the sale of timber to defendants, H. & L. were in bona fide possession of the land. with knowledge of the government. and under a certificate which in Louisiana was tantamount in its legal effect. so far as defendants were concerned. to a title translative of property; that as to defendants the sale made to H. & L. was not void ab inztio; that, on the contrary, the transactions of the receiver with H. & L. iInposed on the government, in law and eqlJity, obligations of which it can be acquitted only
FEDERaL, REPORTER, vol.
havebeen made llY the succeSSIon of H.& L. with the government; that the government 'agent, acting withln'the scope of his authority, so far as selling the partioular.land is concerned, caused a condition of things to exist of which the .government had full knowledge for several years, which were misleading, and did mislead defendants into purchasing the timber from H. & L.; that in law and equitable dealing the government is estopped from demanding at this late day from. defendants any further payment for the timber cut them while H. & L. were in possession of the rand under the certificate, circ'umstances, and facts shown bv the evidence in this case.
(Syllabu8 by the Court.)
by prOp13f judicial proceedings! or by some such. compromise as Is shown to
:At Law. J.E. McComb, for the United States. Jas. Turner, for defendants.
BOARMA.N, J, The government sues to recover from defendants $225, the value of timber cut and taken away from public lands in Louisiana. The facts shown in the agreement of counsel are substantially as follows: That Hazelhurst and Lane, in 1881, entered 80 acres of land, and paid .$1.25 per acre for it, in the in Natchitoches; that the register, ,acting in good faith, gave them a certificate showing the entry, the pay'meut of $1.25 per acre, and the description of the said land; that the :defendants examined the records in the land-office, and found a recital .of thedacts just stated;, that they purchased the timber on the land for ..wood, and paid a. fair· price.therefor to H. &> L.; that they took 900 cords, worth 25 cents per cord in the tree, from the land, and disposed of the same for their own use; that under the law the land in question was on the market, and was held at $2.50 per acre; that nothing was done or said by the government in the premises, until several years after defendants had bought and disposed of the timber, and H. & L. were dead and their successions were known :to! be insolvent; that in 1886 the government, having learned of the fact that the register had made a mistake in selling the land in question at $1.25, instead of $2.50 per acre, demanded the additional $1.25 from H. & L.; that they .fused, to pay the ,$1.25 per acre, and a compromise :was made by the with the legal representatives of H. & L. in which the money ',oJ:iginally paid by them was returned to their successions, and an act linquishing the land to the government was entered into said represen'mtions; that the money paid back by the government was about equal .to the value of the cord-wood cut by defendants; that this suit was not .instituted uutil after the act of relinquishment, and the money was re.,turlledby the government. Under this statement of facts it is contended ;that the government never parted with its ownership of the said lands; Jhatthe entry and payment made by H. & L. for the land, admitting it ,was made in good faith, did not authorize H. & L. to cut the timber, or selltit to and the defendants have no defense or eqthe government's demand in this suit. On the other hand, it ,was contended that the government, under the facts stated, has no cllus.e of action against defendants. It is conceded there were no fraudacts or understanding practiced by any of the parties to the trans-
UNITED llTA'l':Es tI. SCOTT. . '.
actions in the land-office. Without passing tion that the ownership of said land was never in any degree vested: 'id H. & L., it Beems to be true that they were, at the time Of their sale of' the timber to the defendants, holding the land as possessors in good faith " and with the knowledge of the government, under the register'scertifi'; cate then on record in the land-office at Natchitoches. Under the federal decisions, such a certificate, issued by the register in pursuance and in compliance with the law providing for the s3le of public lands, would have entitled the original holder thereof to demand and receive from the government a patent or complete title to the lands describedtberein, and under the decisions of the courts in Louisiana the certificate tained and held by H. & L. under the circumstances attending the deal·' ings they had with the land-office would be tantamount to a legal title in H. & L., and it could not, after defendants had acquired the rightS claimed by them, be treated by the government as void, though it might' in proper judicial proceedings be voidable. But it is contended that the certificate was issued by the register, who had no authority in law to sell or convey the said land to anyone for a price less than than $2.50' per acre, and that H. & L., and these defendants, were charged with full knowledge of the law, and knew the register was without authori'ty to impose any obligations on the government towards or in favor of· H.' & L. by the act of sale, which was void r.tb initio, and under which they' claimed to have the right to sell the timber to defendants. Somethingl of this contention is true. It is true the register had authority in law to sell the public land in question, and by his certificate to vest' a legaltitle in the purchaser; but he had no authority to sell the same to any' one for a less price per acre than $2.50. Admitting his' :authority'to sell, and that he could not sell for $1.25 per acre, it does not follow, un.. der the decisions of the federal or state c,aurts, that no obligations ot"t\'nl equitable or legal nature were imposed on the government in ,the deal"! ings of the register with H. & L. On the contrary, they acquired legal and equitable rights against the government, from which it could be acquitted only by proper remedies at law or equity, or by a compromise, such as was finally entered into in the act of relinquishment. Whether it be true or not, in law, that this certificate and payment by H. & L. vested no ownership in them of the land, it put them in possession of it, and conferred anthem the lawful right, on paying the additional $1.25 per acre to the government, to demand a patent for the land. This possession and right was in H. & L. ,and was fully recognized and,: acquiesced in by the government, at the time defendants bought (lnd used the timber, and remained in them until they returned the sion and their legal and equitable rights in the land to the government in the act of relinquishment. ,,; i It is well known, as the counsel for the government that',the United States are not bound by the acts and declarations of its agents, made beyond the scope of their lawful powers. It iA well known, too", that their unlawful acts or declarations cannot be ratified by their own own subsequerit, acts, or by other ministerial or executive officers of
government. The acts of the register were not wholly 'Ultra vires. He had ample authority to sell and convey the land to H. & L., and the <:ertijicate under which he held showed a legal title, or one translative of property in them. He exceeded his authority only in the fact that he, in his error as to the class of lands conveyed to H. & L., took $1.2,15, instead of $2.50, per acre. This error did not of itself invalidate the sale. Notwithstanding it, the purchasers, at any rate so far as the defendants herein are concerned, held and possessed the land under an authentic, genuine act which they rightfully considered and treated as tantamount to a legal title in H. & L. Considering that the register had ample authority to sell and convey the land to H. & L. for $2.50 per acre, and keeping in view the circumstances and facts attending the transactions, and which show the relation of defendants to H. & L., and the dealings of the latter with the government, I do not think it violates either one of the two rules of law relied on by plaintiff's counsel to bold that the government is forbidden by law as well as equitable dealing to recover against defendants. The government allowed a condition (j)f things to exist at the time H. & L. sold the timber to defendants, and for several years afterwards, which were misleading to the defendants. They, as third persons, were, under the laws of Louisiana, authorized to construe the certificate and other evidences of the transactions on record at :Natchitoches, as vesting in H. & L. a legal title to, if not complete ownerspipof, the lands. As the case now presents itself, one of the two parties to this ,guit has to suffer a loss. The government having become again possessed of the land, must lose the value of the timber cut by defend,ants, or the defendants have to be made to pay a second time for what they once paid for in good faith to H. & L. Under the law, as wellin equitable fair dealing, I think the loss should fall on the governJ;l1ent, rather than on the defendants. On the statement of facts agreed to the defendants are entitled to relief.
et al. v.
(Oircuit Court, D. Kentucky. April 9, 1889.)
lKTERNAL REVENUE-DISTILLED SPIRITS.
. Plaintiffs deposited distilled spirits in their bonded warehouse in December. 1880, an·a gave bond under Rev. St. § 3293 to pay the tax within three yellrs frow entry. The tax was not paid within three years. and on February.24. 1884. the Collector gave them notice to pay the tax as required by section 3184. stating, as in the section r.rovided, that unless the tax was paid within: 10 da,ys it would be the collector s duty to collect a penalty of 5 per centuw :in addition, and interest. By section 3248 the tax attaches as soon as the spirits come into oxistence. Betel, that the tax and penalty were due and payable before March 5, 1884. Plainti1l's did not pay the tax within the 10 days. and on March 15th the col.lector.gave notice that the tax and penalty were due and unpaid, a.nd unless