& T. C. BY.
EASTON et al. v. HOUSTON & T. C. Ry. CO. et al., (LUNDIEN, Intervenor.)
(Uircuit Court, E. D. Texas.
MASTER AND SERVANT-DANGEROUS
Where an employe knows of the hazardous character of the work which he undertakes. and is injured by an accident which could not be foreseen by his employer, the latter is not liable in damages.
In Equity. Exceptions to master's report. Intervention of John Lundien. Petition for damages for personal injuries to employe. John Dowell, for intervenor. Bnker & Holt, for receivers. Belore LAMAR, Justice, and PARDEE, J. PER CURIAM. In this case we have carefully examined and considered the evidence, and have also duly considered the arguments made in support of the exceptions to the master's report. Our conclusion is that none of the exceptions are well taken. The nature of the intervenor's employment, as one of the bridge gang, to make repairs of railroad bridges, and the character of the work assigned this gang at the time of the accident, to-wit, the pulling down of an elevated water-tank, was a sufficient notice to the intervenor that the kind and quality of work which he had undertaken to do as an employe of the receiver was of a hazardous, if not positively dangerous, character. The intervenor seems to have met his injury by an accident which could not have been foreseen by the receivers, and, if it could have been forespen at all, it was only by hImself and the other members of his gang, fellow-servants of his. The evidence does not show that the pile of old scrap-iron, lying near the foundation of the tank and the railroad track cut any figure in the matter. Conceding for this case, and this case only, that the relation between the receivers and the surgeons who conduct and carryon the railway hospital was that of mabter and servnnt, the weight of evidence is very strongly against the claim of intervenor's of malpractice in the surgical treatment he received. The nature of the fracture was such that it seems to have been impossible to have otherwise properly treated it than by amputation. Amputation, finally resorted to, was long postponed by the surgeons, at the earnest entreaties of intervenor himself. We notice in the evidence that the intervenor was offered half pay, at the rate of his regular wages when employed, on condition that he would waive all claims against the receiver for damages. If, under the rules of the company, a person injured as intervenor was, was entitled to receive wages for the time lost during his treatment and residence in the hospital, we think it should have been given him without exacting a release of any right he may have had to apply to the court. The following decree will be entered in the case: v;39F.no.2-5
· :FEDERAL REPORTER,
This cause came on to be further heard on theexce,ptions to the master's report, and was argued, whereupon, and for the foregoing reasons) it is ordered, adjudged, and decreed that the exceptions to the master's report be overruled, and that the said master's report be, and the same is hereby, confirmed. It is further ordered, adjudged. and decreed that on demand of John Lundien, intervenor herein, the receiver in this case do pay to him, from the earnings of the railway property in his possession, the sum of $347.20, being the amount of regular wages of the said John Lundiell during and fr0111 the time he received his injury until the day he was discharged from the hospital.
et al. v.
(Circuit Court, E. D. Arkansas.
PUBLIC LANDS-TITLE FROM STATE-RECITAL IN PATENT.
Recitals in the patents of the state are deemed to be made upon suggestion of the grantee.
SAME-DEEDS- RECITALS-PAROL EVIDENCE.
The recitals in a deed COnstitute a part of the title. The acceptance of a deed by a grantee makes its recitals evidence against him, and par-ol evidence is inadmissible to contradict or vary them.
SAME-SWAMP LANDS-GRANT TO STATE-SUBSEQUENT SALE BY UNITED STATES.
The p;rant of the swamp lands to the state by the act of congress of September 28, 18.')0, passed the title from its date. and after that time the United States could,not make a sale of such lands that would divest the rights of the state uuder that act. But where the United States sold such lauds subsequent to the grant. it was competent for the state to confirm the title of the purchaser from the United States; and that was done by the acts approved January 11,1851, anrl December 14,1875. By these acts the state's titleto all swamp lands sold by the United States after the 28th of September, HliiO, is vested in the purchasers of such lands from the United States, except in cases where such lands had been sold by the state. or persons had acquired a pre emption or other vested right to them under the laws of the state prior to their sale by the United States.
It has been the constant anduniforrn policy of the state of Arkansas and the United States to avoid confusion and contlict in the title to swamp lands growing ont of the delay in their selection and. confirmation, and their sale in the mean time by the 'United States. This policy has heen carried out by the state confirming the titles of the purchasers of such lands from the United States, and accepting in lieu thereof the purchase money received therefor by the United States, which the latter. by the acts of congress approved March 2, 1855, and March 3, 1857, agrees to pay over to the state.
SAME-ApPLICATION TO PURCHASE.
By law, one applying to the commissioner of state lands to purchase swamp lands, under the act of March 18, 1879, is required to prove by affidavit, before the commissioner, and to be filed in his office, the ·existence of certain facts. Held, following Rice v. Harrell, 24 Ark. 402, that the proof of these facts in the mode prescribed by law is a condition precedent to the right of the applicant to purchase, and to the authority of the commissioner to sell, lands, under that act.