turn stern to it. He slowed his engines, and, he says, did turn some to starboard. Other witnesses contradict him in this regard. But it is clear from the testimony that the tug was not much turned to starboard; that the wave was not taken astern, as it might have been, though the danger was seen; and for this reason I must hold the tug to blame also. Decree against both defendants, with costs.
FrrzpATBICK et ale
tI. THE STRANG. .
OaJn.t, S. D. New York. January 29.1891.)
CoLuSJow....STBUIANDSAIL-CaOSSING BOws-FLASR LIGRT-MUTUAL FAUL'l'. :'
The steBll;l4ug Stranger, shovinJr one cBnal.boatahe!\d of her. and having others lashed along-side, in going up the "North river, when little above Stony Point, came into collision in the nigbt-:timewith the schooner E. coming straight down. At the time at collision, sbe lladswung,so BSt9 head ne"rly straight acrQSs the rlvllr, to the eastward. Held. upon confiictingevideuce, (1) that the tug was previously to the westward of the line of the Schooner's' course, and improperly attempted to cross her bows; (2)thllot if, as,alleged, the E.'s,green light was obscured, tbenigl).,t was not s.o dark as to prevent seeing the schooner, at least a quarter of a. mile distant; (8) that the E. was'in 'fault for not ezhibitintt a flash or torch light, anil that this was material. : The dll,II1-agi*l Bnd cos", , !
Goodrri,ch, Deady k Goodrich and Mr. Foley, for Fitzpatrick et ale Hyland k Zabriskie, for the Stranger.
BROWN, J. The schooner 'Evoline in coming down the North mer, at about half-past 12 in the morning ofSeptember 24,' 1889, when a few hundred yards above Stony Point, cameioto collision with the canal-boat Sweet, which was in tow on the port side of the steam canal-boat Stranger; both sustained damages, for which the above cross-libels were filed. The Stranger was shoving another canal-boat placed immediately ahead of her, the, Hathaway, aud the Sweet on her port side lapped each boat about half-way. The schooner had a light breeze aft, and was coming very slowly at about the first of the ebb-tide. The canal-boat, with her tow, was also going at moderate speed, estimated at from two to four knots. .Both were proceeding, according to the testimony, very near mid-river. There is no charge that the schooner changed her course, but it is alleged that she did not show any colored lights, nor any flash light,and that she could not be seen until the time when she was first observed by.the piloto! the Stranger;. estimated at. from 200 to 300 feet distant, when he observed her apparently coming head on, and,after blowing several blasts of the whistle, he ported his wheel and steered
strongly to starboard. The schooner struck the Sweet about midships, which would be about the middle line of the fleet, and all the witnesses agree that, at the moment of collision, the steamer and tow were heading almost straight across the river. The witnesses for the schooner, includillg Gager, the engineer of the Stranger, testified that their colored lights were properly set and burning, and had been from. the time the vessel weighed anchor; and that the green light was not raised a few moments only before collision, as the Stranger's witnesses assert. No flash light was shown. All the witnesses for the schooner state that the Stranger, until she sheered across the schooner's course, bore considerably off their starboard bow, and would have gone well clear to the westward had she not sheered to the eastward. 1. Assuming that the schooner did not change her course, (that being neither charged nor testified to by anyone,) the fact that the Stranger with her tow had sheered nearly 8 points to starboard before collision, and that the Sweet was struck about 100 feet aft of the head of her tow, is conclusive evidence to my mind in support ofthe schooner's contention, that the Stranger and her tow, previous to collision, were coming up well to the westward of the schooner's course, and that the collision was reallY brought about through the unjustifiable attempt of the steamer to cross the schooner's bow to starboard. So great a change of heading, and by a long tow madellPin that manner, could not have been effected without a very· considernOle change of position in the river to the eastward, and this is strongly confirmed by the testimony of Gager. Some of the defendant's witnesses speak of seeing the schooner on their port bow; but this is evidence only that they did not see her at all, until the steamer, by her own swing to starboard, had brought the schooner on her port hand. No justification appears for crossing the schooner's bow. The night was not dark; and even if her green light, which I am satisfied was hung up, was during a part of the time obscured, which is possible from its position on the rigging 15 feet above deck, the schooner should have been seen at least a quarter of a mile distant, as all agree that both shores were visible. If the westerly shore was high, the easterly shore was low and did not darken the river. 2. The schooner, however, is in fault for not complying with the statute that required the exhibition of a flash or torch light on the approach of the steamer. Although one of the steamer's vertical lights was out, yet the other lights showed her to be a steamer, and the schooner so understood. She was bound, therefore, to comply with the statute. The Wyanoke,4Q Fed. Rep. 702. I cannot find that the absence of a flash light Was immaterial, or that it would not have given additional information to the steamer, by lighting up thehu11 and sails. of the schooner, and more or less of the river between the two vessels. Such a light might have given just such additional information as regards the heading, or the distance, or the course of the schooner, as to have prevt'Dted crOl!sing her bows. which was the immediate cause of the collision. The damages and costs are therefore divided.
SAGE V. ST.
T. F. RY. CO.
ST. PAUL, S.
& T. F. Ry. Co.
(Circuit Court, D. Minnesota. January 13,1891.)
RAILROAD GRANTS-CONSTRUCTIVE FRAUD-LIMITATION OJ!' ACTIONS.
Where a railroad company has complied with an act of congress granting land to the state of Minnesota for railroad purposes, and with the state law transferring the grant to it, a transfer by the state to another company is a constructive fraud, as the lands are held by the state in trust for the former company' and an action to recover such lands is not governed by Gen. St. Minn. c. 66, tit. Il, snbd. 7, which specifies the period of limitation for "actions to enforce a trust or compel an soCQunting," but by subd. 6, which actions "for relief on the ground of fraud, " and specifies that the Dause of action shall not be deemed to have accrued until a discovery of the fraUd.
SAME-PRIORITY OJ!' LOCATION.
As between two land-grant railroads, the definite location of the line of road under a later grant, if the road is finished, will carry allianda within the place limits which have not then been selected as indemnity lands under an earlier grant. Affirming 32 Fed. Rep. 821.
On Rehearing in Equity. Bill by the Hastings & Dakota Railway Company to recover possession of lands held adversely by defendant. the St. Paul, Stillwater & Taylor's Falls Railway Company. For former report, see 32 .Fed. Rep. 821. Cole k Bramhall, for complainant. Wilson k Bowera, for defendant.
NEUlON, J. This cause was before Judge BREWER in 1887, and decided, with reference to a master to take an account (see 32 Fed. Rep. 821) on the application for the entry of a final decree. A rehearing was allowed, and the merits of the controversy presented by the evidence, and all briefs of counsel have been examined. I agree with Judge BREWEJ:t in the opinion announced when the cause was before him, that the complainant is entitled to a decree. He decided that, as between two land-grant railroads, the definite location of the line of road under a later grant, if the road is finished, will carryall lands within the place limits which have not been selected as indemnity lands under an earlier grant at the time of the location. The lands in controversy are within the place limits of the Hastings & Dakota Railway and the indemnity limits of the road of the defendant, and the definite location of the Hastings & Dakota road was made by the defendant. No opinion is expressed by him Of the effect of a withdrawal of lands within the indemnity limits of the defendant's road, by competent authority, before the definite location of the Hastings & Dakota Railway in determining the rights of the parties, I presume for the reason that there is no plenary or satisfactory proof of a withdrawal of the lands within the indemnity limits earlier than August, 1868, more than a year after the route of the Hastings & Dakota road was located. The defendant was allowed on the rehearing to amend its answer and plead the statute of limitation, and in the briefs submitted it is urged by the defendant's counsel that the action is barred by subdivision 7, § 6, c. 66, tit. 2, Gen. St. Minn. If v.44F.no.12-52
FEDERAl. REPORTER i
there is a statutory bar, it must be by reason of one or the other of the following subdiviSions of section 6, which fixes the limit of six years within which to commence actions, viz.: "SuM. 6. An-action for relief on the ground of fraudj the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. SuM. 7. Actions to enforce cqmpel anaccoul'!ting, where the trustee has neglected to discharge his trllst, or has repUdiated the trust relation, or has fUUy per' formed the same.'" While the opinion in this case no lapse of time short of the the statutoryJimij'4tion prescribed for actions at law for the recovery of real property. which is 20 years, should be applied, yet, as I may be in error so holding, I shall the statute presented, and .the point urged by counSielthat this action is one to enforce a trust or compel and is barred by subdivision 7, § 6,c. 66; tit. 2, Gen. St. Minn., and that more than six years have elapsed since the cause of action accrued. The state of Minnesotll acquired,title to the of the line of road of the HastIngs & Railway, ll.Ild before, the conveyance of the same to ,', ;1'hiSi railfqad, cQmplied with the' act of congress 'abo the law' of the'statetransferring the!grant to it, was justly entitled,to the lands which were conveyed to t4e defendant. The state held the lands in trust for the road under an'act of c,ongreSSl, of which the defendant was bound to take notice. In equity, the transfer by the state to vvQS,an oflaw and the rights of complainant, the of or ,constructive fraud. " , ; ,:VI>0nJhe,fa.cts that the with notice,olthe trust th(legal totlie lands which equitably belonged ,to the is charged with the same trust. arid a trustee f6r, it. derives itscharacterfrQnl the consein relatipn to others,. is the law conqllerices' of strues, to be, a ,fraud. subdivjsion, § 6, c. 66, aupra, does applr ,b,1,ltrather sixth for the reliefsought is based that the upon, the legal or (}()nstructive, fraud,and there is no Jlastings Railway Oompany had knowledge of the conveyance 'tQ the defendant oy the state six years before the commencement of the cause as toeet in. motiont,he statute. "' , It therefore, that complainant is entitled to a decree.
LAD SUl'ERIOR SHU' CANAL, RY. & IRON CO. V. CUNNINGHAM.
(Ofn'euU Oourt, D. Vermont. January 17,1891.)
WITNESS FElls-ATTENDANOE IN ANOTHER DISTRICT.
Witness fees in civil cases are not to be taxed for travel over any greater distance than a subpcena would run, and hence, where a witness resident in one di'iltrict attends to have his deposition taken in another, he is not entitled to fees for travel before he reached the latter district.
, In Equity.
Appeal from taxation of costs.
StephenO. Shurtleff, for plaintiff.
KiJJ.redge Haskins, for defendants.
WHEELER, J. The question arises upon the taxation of fees for travel of witnesses residing in Hardwick, Vt., from their residence there to Hartford, Conn., where their testimony was taken. These witnesses could be compelled to attend to give their depositions at Hartford, only by a subpoma issued by the clerk of one of the courts of the United States in that district. Rev. St. U. S. § 868. And perhaps they could not be compelled to give their depositions there at all, as they did not at the time reside in, that county, and no witness under a dedimus potestatem. is reqUired to attend at any place out of the county of his residence. Id. §§ 866, 870. But, if found there,' their depositions might be taken there, if done without objection on the part of themselves or others. But a subpcena for them would not run out of that district, and perhaps out of that county. In the direction of their travel, however, the lines of the coqnty and district are the same. In civil <}ases, fees are not to be taxed for travel of witnesses over any greater distance than a subpcena would run. Anon., 5 Blatchf 134; Dennis V. Eddy, 12 Blatchf.198. Let tra,'elbe taxed from the line of the county, which is the line of the district of Connecticut, towards Vermont to Hartford.
LAXE SUPERIOR SHIP CANAL, RAILWAY
& IRON Co. v. CUNNINGHAM.
(Circuit Oourt, W. D. Michigan, N. D. February, 1890.)
L PUBtJO L.urns-GRANTs IN AID OJ' RuLROADS-RllLEASIil AND BURRIIlNDER-CoNSTlIUCTION OF ACT's.
Act Congo June S, 1856, granted to the state of Michigan a certain quantity of public lands to aid in the construction of certain railroads, among wbich were specified one from Marquette to the Wisconsin state line and another from Ontonagon to the state line. It was provided that tbe lands thus granted for the ben,ellt of each of said roads should be "exclusively applied in the construction of that road, · · * and shall be disposed of onlyaB the work progresses' and the same shall be applied to no other purpose whatever." By Act Mich. Feb. 14, this grant was accepted by the state, subject to' all conditions therein contained, and the lands granted for the benefit of the roads from Marquette and Ontonagon to the Wisconsin line were 'co;nferred respectively on distinct companie". By successive consolidations of'eacD of these companies with a third,and by sale under of. the latter, all the property. rights, and franchises pf the Mar-