AlIERICAN".ORTG.CO. OF SCOTLANn::II. HOPPER.
AHERIl)AN MORTa., CO. OF SCOTLAND,Limited, SAME t1.
'" . '", , '
(Cft'C'II:tt Oourt,D. Oregon. · November 2,
The land department has no, authority, ot ,its own motion to set aside or oancel the 'finllol. certifioate ota settler UIlderthe pre-emption law. Smith v.EwLna, 11 Bawy. ;Rep. 741j v. Fine, 14 40 Fed, Rall' , themailltenance of an .the actual at the ouster complamed of ili a su:fll.Olellt estate against a mere. iJj.ttuder.
' . · ", , ' '. , . , ' ' , '.
8. SUfi!:.' '
from apre-emp1lo$', who has o\rt4ined a :ftBal.w!oate, has nqt lIuoll in tb,e fro!!! the fact of 'an'action to recover the 'POS86S8iol1 tbllreof'trom anyone.' . ' ,.: "
. " " :
(Sull.abuB by the Court.)
), At Law. These, the'conrt:' tbgether,1WUhm1t the iIitervention of a jury, upon an agreed stateofJacts.i' (/, ' Mr. JIfUlitltm :. ,r" -' i :.. ,. Mr., J. J. Bal1erat/tMr. ,RaleighStott" lUlQ Mr. W. L. Boise, for defendants.
1: ,. , : \....
'i' · .:
,the complaints that the plaintiff ,the ,laws pf 'Great Britain, and' tbatthe defendants are citizens of Oregon; that it is the owner,rand entitled,to 1:he poSsession of the S, t ,cilf sectionf22"in township 8 N., of rangErS1 .E. t Wallametmetidian"andof the S.,W.+Qf sectiOD)!j,intownshi,p2 .N.,.of :tbasamerange; that the defendant' Crow,wrongflllly withholds from it the possession of said S. E.quarter section. and: tbe does the like with reference to said S.W. quarter sec.uon, each ofwhich exceeds in vaJue the.sum:o ( $2,.000. , Theanswerscontainademal oLtbe,ownershi.p of. premises by,the plaintiff, and an al1egati<lD.tbat the defendant Crow is the owner :of said south-east quarter section, and Hopper of said ,s,outh-west quarter .seetion.'.' ; "'ii " /, ., It, is.admitted that" Jesse, Fulford. entetedsaid ': south.east ' q\larter section at the proper underthepre-:emption law ,lJ,od reeeived ,his final certificate therefor on ,AugustS!, 1882, andtheteupon -the'sametl) W. C. Smith,who'IUortgngedittodie plaiotiffon the same daY'lls security loan ,of money; ,that 10,1885,1 th,:l plaintiff. commenced a :suit in the proper. st81tecouri to. foreclose said sueh· ptocee,dings were had t1gereon'that'theproperty;wflS sol-d to aaberifflsdeed .thereforon·.Qotijber -1:2; 1881jan'd that the .m:oneyJoaned tGl Smith'was lQlinedin goodJaitlli; ·witbout.:noticeof any. defect d.eficielacy", in ,'!lis entry, ,and ethe m6ne-y thereon had, nQtbeen returned.. ; . ., '. i 'on'Mi:ty7, 1885, thedefelldani ,Ctp'o,M applied at the, lan<1.offioe -to entet;Jsa,id, soutb-east quarter, law;; illi.at
vol. 48. '
the and receiver, in the contest which ensued on such application, decided in favor of Ql'ow,l1nd. cauce1ed Fulford's entry, and on August 24, 1886, the commissioner of the general land-office affirmed said ' That Crow was not made a party to said foreclosure suit, and at the commencement thereof was in possession of said south-east quarter seetion under said homestead entry, which he afterwards-October 31, 1888---;-comrputed. py, 110 cash entry. ".i !tis also admitted that George W. Waddle entered said south-west quatteisection under'the pre-empWm lInv, and received IllS final ce1'tificatetbere,fo:r on Auguat 12; 1882; that on.September,l, 1882, said dIe mortgaged !l!l;me to the plaintiff a!!l security for a loan of$850; that on September 10,1885, the plaintiff commenced' suit to foreclose said ,mortgage in proper state court, which resulted in its becoming the'p'(]l'chaser thereof,p,t'she):'iff's sale"and receiving a deed therefor about October 24, 1887. That the money furnished Waddle was loaned in good faith, without l1otice'i''Of'any detect ,or ' deflciency in his entry, and 'the money paid thereon was not , . I.; That on May 7, 1885, the defendanbJ;Iopper applied Ilat the proper taenter' aaia south-west· quai'tersection under the homestead law; that the register and receiver, in the contest which ensued on such application, decided, in, favor of Hoppei', and cancelEid Waddle'scertificate,and'on August'30i1-886, the commissioner of thegeneralland-6ffice affirmed said ThatHopper was not made a'party to the forec1osuresuit, and at the commenoementthereofwas in possession of said south-west quarter seetion"hilder said, homestead, entry, which he afterwards-.,..January 5, 1889--commuted by a cash entry. Ohthis Iltate of facts it is contended that the plaintiff cannot recover in these actions, becau.se (1) it has no interest in the property by reason oftbe cancellation' of the department of the entries under which it is claimed;;and, (2) admitting that·such cancellation is' void, it has no in the property. . As to the first point, I adhere to the opinion expressed in Smith v. Ewing, 11· Sa-wy. 56, 23 Fed. Rep. 141,and Wilson v.Fine, 14 Sawy. 224, 40 Fed. Rep. 52, that such cancellation is beyond the power of the department,and therefore void. See, also, on this point,Stimson 'Y. Clark, 45 Fed; Rep. 760. The 'SUpreme court ,has never decided the exact pOint, but the tendency of its rulings is to the effect that the department cannot' Of its own mere motion set aside a final, certificate, valid on its face;:,Sfi!eCorneliua v. Keeael, 128 U;S. 461, 9 Sup. Ct. Rep. 122. 'DhElae' are actions at' law to recover the possession of real property. The law of the state provides (Oomp. Laws 1887, § 316) that "any person who has a legal estMeinreal' property, and 'a present right to the possession thereof, may recover such. possession' '" * *' by nn action atlaw." 'As was said in WilBon Fine, 14 Sawy. 88,38 Fed. Rep. 789: "This.is substantially the common-law action of ejectment, minus its
OSBORNE t1. CHICAGO & N. W. BY. CO.
Olicetlseful fictions; andis, '* * * by of section 914 of the Revised Statutes, the rille of procedure in this court." To maintain this action the plaintiff must have some sort or degree of a legal estate in the land, as well ItS a present right to the possessiol1;-something more than ,Iln equity or a right.in equity to have such estate. In Wilson v. Fine, supra, I held that an actual possession of land at the time of the ouster complained of was a sufficien,t legal estate therein to enable a party to maintain the action against a mere intruder, - 8 person with no better title. The defendants. in my judgment, are mere intruders; but .the plaintiff does not.appear to have ever had possession' of these lands: As mortgagee it waS not entitled to possession, o.n& does 'not appear to have had it The entry-men under whom it claims ,do not appear to have remaiped in .possession after receiving their certificates. They did not appoorat the contest. Whatever right the plaintiff has it must enforce inequity. The, findings. ofl the court will be that the plaintiff has no legal estate in the prEimises sought to be recovered, and can take nothing by its a.otions.
& N. W. By; Od.
(OtrcwU Court, 8. D. Iowa, C. D. November 9, 1891.)
C,UUUEBII-INTBltBTJ.,.. ComnRcB LAw-LONG RATES. " ' ,
SUOJlT HAULS-JOINT TABIl'Jr
, A railr'oad compal)y cannot justify itself in eharging a greater compensation for ,a sll.orter than for,.a ,haul, under substantially similar conditions, contl,'ary to the provisiOl:1S of 'the lDterstate commerce law, (Act Congo Feb. 4. 1887, 54,) on the ground that the rate is fixed by a joint tarift agreement witll other roads. 2.
B.&Jm-COMPUT.TION OF RATES. Nor can It do So because tile result S4M;E-POWERB'
comes about by reason of the selection ofdif. 'ferent poUlts on the line as a basis for computing rates, so as to charge one rate over one part of the road and a ,difterent rate over anotherparl. 'Under 'the interstate commerce law the power of determining whether a railroad company is relIeved from the 'Operation of the long and sborthaul clause lies solely '!Vith the inter,atate commerce commission; and tn an action for damages in a federal court for' a violation of tb.at clause, when no authority from the commission is shown, the company cannot claim that it was justified in so doing by reaSOll of the existence of a secret cut rate among competing roads. whereby a large part of the traffic naturally tributary to It was diverted. ,Whether the "ylrcumstances, and conditions" under which a railroad coD;lpany has charged a compensation for a shorter than for a longer haul over the same line were' substantially similar, "within the meaning of tbe fourth section of the interlltate commerce law, isa question for the jury. ,
'" B.urE-" BIMIL4BCIRCUMSTANOEll' AND CoNDITIONS "-PROVINOE OF JURY.
5. BA.ME-HEABURB OF, DAMAGES. " 'In an acitibnbya shipper against a railroad company for charging a greater compensatiQn'for a shorter than for a longer haUl, In violation of section 40f tbe.interstate commerce law, the measure of damages is the excess in, the rate for , the shorter haul' over that for the longer baul, mUltiplied by the number of hUlldred pounds shipped by the plaintiff. ' 0. BAME-DAJUGIl:B-WUO LIABLE....AoTION OJ' TOBT. As the right of action given by the law is one for damages. as for a tort, any raU: road CQmpaoy,whiCb· makes the overcharge is liable for the fnll amount of the dam-