THE HARY H'WILLIAHS.
THE MARY MCWILLIAMS.' THE CITY OF BROCKTON. COLONY STEAM-BOAT CO. DELAWARE
THE MARY MCWILLIAllIJ. THE CITY OF BROCETON. June 16, 1691.)
(Distr'ict Court, S. D. New York.
Where large vessels attempt to pass each other in the easterly channel of Hell each, on the interchange of signals, is bound to keep on its own side of the channel. The City of Bo, a large side-wheel steamer, bound New York, and the tug M. M., with a barge on her port side, and bound eHst, met at Hell Gate, and exchanged a sigOl\! bf one whistle, the meaning of which both understood to be that they could PllsS in the easterly channel, the middle channel being occupied by another steamboat. In passing, the port paddle-wheel of the City of B. came in contact with the barge, which was sunk. Each boat claimed that the collision was caused by the of the other vessel to keep to its own side of the channel. Out of a great conflict of evidence the court adopted the testimony of the pilot of a ferry-boat which was coming up astern of the tug, he being in the best position for accurate . o1;servation and for a comparison of both sides of tbe channel, and on such testimony held that the tug was the encroaching 'vessel, and was liable for the collision. .
OF EVIDENCE-'STAND-POINT OF
MEETING IN HELL GATE-EAST CHANNEL-DUTY.
l'.. SAME-AOREEMENT TO PASS IN EAST CHANNEL. . On the evidence in this case, held, that an agreement 1;y signal between large vessels to pass in the east channel of Hell Gate is not in itself a fault in either vessel.
In,AdmiraHy. Cross-suits for damages by collision. Shipmo:n, Laroque &- Choate, for the City of Brockton. Carpenter &- Mosher, for the Mary McWilliams.. ' Bristow, Peete &- Opdyke, sc()w and libelant Fisher.
BROWN, J. The above libels grew out of a collision in Hell Gate at about quarter past 8 A. M., November 15, 1890, between the large sidewheel steamer City of Brockton, coming from Fall River to New York, and, .Barge 3295, loaded with coal, bound east with the flood-tide, in tow of the tug Mary McWilliams, upon the latter's port side. The place of collision was in the easterly channel, nearly abreast of Flood rock, and between that and the Astoria shore. The. port quarter of the barge was carried against the paddle-wheel of the City. of Brockton, and the former was so damaged as to sink almost immediately. The morning was somewhat hazy, but not so as to t>revent vessels Jrom being seen at a erable distance. When the Cit)' of .Brockton had s() far passed Hallett's as to open up the river to thesollth-west, the tug Mary McWillia1US was seen off the Astoria ferry, or below; and soon afterwards a signal pC one. whistle was exchapged between them. The steamer EXpldSS waS ,a short ·of the City of BrocktoJil, and went down the
Edw!lrd G. Benedict, Esq., of the New YOi"k
J'EDEnAL ,:REPORTElt·, vol.' 47.
middle channel. By tpe exchange of signals of one whistle the tug and the steamer understood'that they were to pass each other in the easterly channel; and it thereupon became the duty of each, in my judgment, to keep to the starboardvsideof the middle of that channel, because so much room was necessary. to each for a safe passage, and there wfl;s nothing in ·ine situation td prevent either ot them from keeping on the righthand side. A single boat in tow along-side could be very easily handled by the tug; and, the being unanimous that there was no diffi. culty or danger in the atte.mpt of the steamer and the tug to pass each other in this channel, I am not at liberty, upon the evidence in this case, whatever my private opinion may be, to treat their agreement by signals to pass there as either dangerous or as in itself a fault in either. But the breadth of available water is only about 600 feet, and that is so hampered by the indirect set and bends in the tide currents. and in the channel way above and below that in my judgment any attempts to pass in the case of large vessels like the City of Brockton are highly dangerous, unless each, upon the exchange of signals, keeps on its own side of midchannel. Whether that be so or not, however, it was the duty of each to act according to its whistles, and to givethe other rOOm to pass safely, and to' keep upon her own side of mid-channel if that was necessary. The Dentz, 29 Fed. Rep. 525. The case has been tried on that theory. The tug claims that she did keep on her side of mid-channel, and that the collision was wholly owing to the steamer's intrusion upon the southerly side of the channel; the steamer claims she passed within 50 feet of Flood rock, and that the collision was solely owing to the tug's inattention, and to her neglect to shape her course properly in time, or in accordance witli her own signals, so' as to give reasonable room for the City of Brockton to pass. The evidence as to the position of the boats at the time of collision is very conflicting, and has occasioned me much embarrassment. This conflict is not confined to the witnesses upon the vessels immediately concerned, but extends to other witnesses, apparently disinterested. On the whole, considering the position Of the different witnesses, the probabilities of the case, and the mine"> circumstances of corroboration, I think :the weight of evidence is in favor of the City of Brockton; thatshe went as near to Flood rock was safe to go; that the tug, at the time of collision, was negligently on the westerly side of mid-channel; and that she did not, in accordance with her duty aftet her signal of one whistle, give the City of Btockton sufficient space to pass, as she might and ought to have done;' and that the collision arose· from that cause. In coming' to this conclusion, I would not and do not reflect in the smallest degree ripon the integrity and good faith of the witnesses for the tug. Thequeiltion is one entirely of adcuracy in the estimate of distances, or as to· the proporti6'n of the ·diStance across the channel that the vessels occupied at the time of collision,'. There was nothing to indicate the westerly line of toe channel save 'the flag-staff that rose f!'om the remains of Flood rock, or the small portion of the rock itself that may have been above water.. This was either hidden from those 'of the tug's wit-
THE MARY M'WILLIAMS.
nesses that were on shore at the time of collision, or was not noticed by them; so that they had absolutely no means of correcting their estimates of the part of the channel-way which the boats occupied at collision, but simply estimated the distance from the Astoria shore. Estimates made in this way are extremely liable to error, and all the more so when made with reference to so large an.object as the City of Brockton. The witnesses on the Express were in a much better position to estimate the pO!lition of the colliding vessels, although not in the best position; ;for they could see Flood rock and the Astoria shore, and they estithe Cityo£ Brockt(m to be within 50 feet of Flood rock,-very D;ll,lOh,nearer than thewitnesse.s on shore estimated the tug to be to that shore. .'rhe witness in the best position of all for :accurate observation and. comparison of both sides of the channel-wa.y was Pilot Ward, orthe f!'lrry-boat Thomas Brennan, on her way from Blackwell's island to W;:I.rd',s island, which came up a.stern of the McWilliams, and was from !JOO tp&OOfeet below her at tho of collision. His boat being much f3,$ter tqanthe tug, l1eplight have passed to the eastward of her, ashe because she was so far over to the westward in th.echannel; but .he her, lest .in the somewhat hazy weather they might get all abreallt at Hallett's and getintotrouble with other boats .that might·1;Ie.coming fromtbe eastward, he nis Loat. ',I.'he whok eastel'ly pl;Ulsagewlis directly open to his observation, and the cOQ.rs,esof the steamer and the tug. .He testifies that the steamer kept well.pv.er tow,ards Flood rock, as near as ·was and within 50 or 60 feet of it.. On cross-examination, it jf;tI'l)e, he .gays that the staff on FIGod rpyk was hi<;lden by the Brockto.n's bow at ,the: moment of ion, ltut confirms his aceount; for the staff·and the distance between it and the steal;ner were in view until the stean1er's bow hadJappedFlood rock"so that he had pe;cl'ect opportunity.to observe bow near it she went; anq 'Vcry fact that the stafl' was obscllred by the steamer's bow lision itseU proves that the steamer must have been well ·oyer towards the and very near it, b,ecause otherwise the rock and staff would npt obscured from Ward's pOEjition, and they could not have been the steamer been where the opposing witnesses suppose. :Thia witness is not only disinterested, but is apparently a very and intelligent man, so far as disclosed, without any sympathies for eithl'lr side as against the ,other. This is not so true of Bickel, who was perhaps,in the best position for a correct estimate. He was abouto!m feet, he says, below the boat'lat colUsion, aod on the dredge immediately,:pelow Flood rock. While supposing that the Brockton was 300 feet out from Flood rock, he confirms the witnesses for the latter in their contention that the tug, until very shortly before collision, was all the time moving over towards the line of the Broekton's course, instead of keeping p\l.rallel with the Astoria shore. Several times, and in difierent ways, h., says in substance that the tug came up heading somewhat off from A.,toria shore until just before she struck, when she headed in towards Astoria. Pilot Waru says: "The tug was falling off towards the Brockton, and apparently paying no heed to her; just com-
iug along ,carelessly. She came out and swung across our bow;" and a8'he lay drifting behind her "she was on his port hand," and was so at collision. The evidehce shows that there was some set of the flood-tide from Astoria ferry towards Flood rock; but the evidence of both the witnesses last named, in connection with the proof of the abundant power of the tug, with only a single barge in tow, to go where she liked, deprives her of the defense that her set towards Flood rock, and upon the line of the necessary coUrse of the Brockton was unavoidable. To make that plea good, it should at least have been proved that her head was put towards the Astoria shore in time sufficient to counteract 'the alleged set of the flood-tide. That is what some of her witnesses allege; but the evidence of the several- witnesses from the Brockton to the contrary, confirmed as it is by Pilot Ward, as wellns by Bickel, proved that not to be the fact, but that she went in the Brockton's way, either through inattention or miscalculation ,-it is immaterial which. I think the weight of evidence is also that the Brockton had stopped before collision, and that that, was all she could safely do in her position; so that I cannot find her in fault. In the case of The Oity of Springfield, 26 Fed. Rep. 158, I held that it was dangerous navigation for a tug of small power, with a scow on her port side, and three other boats on her starboard side, to undertake to come down to the'westward with the ebb-tide, hugging Hallett's point in the easterly channel, and to meet and pass a large and that it was steamer going up abreast of Flood rock, without the duty of the descending steamer so incumbered 10 take one of the other channels, keeping to the right. The case largely turned on the ability of the tug to control the movements of such a tow in coming down on the ebb,Which sets towards Flood rock. The tug there was not able to control herself properly, though the steamer was on the westerly side of the channal. In this case the evidence is in all respects different, both as to the ability oitha tug, and as to the safety of meeting and passing in the easterly channel by vessels like these; while the. middle passage is proved to have been occupied by the Express, a much slower vessel, just ahead of the City of Brockton, which prevented the latter from taking that course, except with considerable embarrassment; She might, indeed, have gone around to the north of Mill rock by the h1ain ship-channel; but it cannot be held a fault in her that she did not adopt that course, upon the evidence as it stands in this case, viz., that the two might meet and Vass without difficulty or in the easterly channel, after timelysigmils had been exchanged and a common understanding had beell had to that effect. Decrees maybe prepared in cordance herewith, with costs. '
HOUSTON V. CITY AXD COUNTY OF SAN FRANCISCO.
HOUSTON V. CITY AND COUNTY OF SAN FRANCISCO
(Circuit C01trt, D. Cal'ifornla.
SUIT TO R.ECOVER LAND-DISHONEST PURPOSE-DISMISSAL OF BILL-ATTORNEYS.
Attorneys admitted to practice in the United States courts in California, and who bring suits founded upon gl'ants of land by the former Mexican govel'nment, are ,presumed to know the provisions of Act Congo March 3, 1851, declaring, among other things. that all lands, the claims to which shall not, have been presented to the board of land commissioners for the settlelpent of private claims in California, "within two years after the date of this act, shall be deemed, held, and considered as part of the public domain of the United States;" and also to be cognizant of the decisions of the supreme court of the United States in More v. Steinbach, 127 U. S. v. Dominguez, 130 U. S. 255,9 Sup. Ct. Rep. 81, 8$up. Ct. Rep. 1067, and 525, holding that no Mexican title not thus could be of any validity; and where one brings a suit against numerous land-owners in San Francisco on a Mexican title which was not presented to the board, but makes no attempt for nearly two years to have the subpcenas 6er.ved, in the mean time obtaining money by way of compromise from numerous owners ignorant of the law, it will be presumed that the suit was instituted with a dishonest purpose, and the bill will be dismissed. When the attorney of record in a suit affecting land lives in another state, the court has the authority to dismiss the action after service of notice on him at his residence.
DIS:MISSAL OF BILL-NOTICE TO ATTORNEY.
SOURCES OF LAND TITLE IN SAN FRANCISCO.
There are but five valid sources of title to lands in the city of San Francisco: (1) ,Original ¥exican grants to individuals or associations, which were presented to the board of land commissionel's for the, settlement of private claims, under Act Cong.Match 3, 1851, and confirmed either bY'the board itself, or, after rejection, by the district or supreme court of. the United States, and subsequently surveyed and patented by the government. '1'hese patents cannot be collaterally assailed by private parties either as to the validity of the grants confirmed or their extent and boundaries. ,If erroneous, the government alone can vacate or correct them in a direct proceeding for that purpose. (2) The pueblo claim, which was confirmed to the city of San Francisco by the decisions of the United States courts, and confirmatory acts of congress, and wllich was surveyed and patented to the city by the United States. Neither the title nor boundaries of this claim can now be questioned collaterally. (3) Reservations made'by the president of the United States, under the law, for public purposes. These are all clearly defined and marked, and can easily be ascertained from the city maps. (4) Tide-lands lying outside the line of ordinary high water as it existed July 7, 1846, the title whereof belonged to the state,which, by Act Cal. March 2tl, 1851, granted the use of certain tracts to the ,'City for 99 years. This high-water line has been surveyed and established by the · ,r 'United States, and is shown on the patent issued. Its correctness cannot be att,acked by private parties. (5) Lands lying on the south side of the pueblo, which, by Act pong. Dec. 20, 1886, were ceded to the city and county of San Francisco, and to those persons and their successors in interest to whom the city and county had previously conveyed, under the erroneous impression that these lands were within the pueblo claim.
In Equity. Suit by David D. Houston against the city and county of San Francisco and numerous land-owners, to recover lands under a Mexican grant. .On motion to dismiss the amended bill. John H. Durst, Attorney for the City and County of San Francisco, for the motion. Philip Teare, Esq., appeared for the solicitor of the complainant, and applied for a postponement of the hearing of the motion, which application was denied. It .as then shown that the notice of motion was personally served upon the complainant's counsel at his residence at Seattle, in the state.of,Washington,' and also upon the clerk of the court. The motion was, then heard. I v.47F.no.5-22