as well as ,all ot;b,er bondholders, has never complainedotthe&c,tio:u of the 10w(jI:court in postponing the mortgage to the expenses paid by the receiver. T'he trustee did not complain of the foreclosure decree, nor did it except to, the master's report, nor has it appealed from the decree of February 28, 1898. It is not even intimated that the trustee has been derelict in its duty to protect the interest of the bonc;lholders. It is plain that the trustee has a;cquiesced in the correctness of the decree appealed from. Fosdick v. Schall, 99 U. S. 235, and other cases, have been cited to us by appellants' cOUJ;lsel, who urge that, under the doctrine of thosecaEles, the lower court had no power to postpone the mortgage to the debts and eXNuses paid by the receiver. T'he, case before Ul!l is not one in which, the principles of the cited cases come into play. The present case is lrlmp:ly one in which the matters complained of have been consented to. by the parties. There is no error in the decree appealed from, and· it is therefore affirmed.
PAC. R. CO. et al.
:.(C'ltcuit .Court of Appeals, . Ninth Circuit. ·May' 2, 1899.)
No. 48L '
;<\ ()n, y.p.surveyed Rublic lands, ,a.t, the time a railroad grant attached by the ..definite location of the line of .road,!lad In no waf Indicated the 'bouridatWs of his d8.im, cannot, by thetehfter extending his'impi'Oveilil!nts 6veti tra'Ct which, he had not lit1hat .timeclalmed or and which· );>ty' .'the subsequent· was shown to be within granted to the ralJroad. comllany, \lc\lulre any claim or rights there.t? the rai,lr;oad .', ,
Appeftl"frotn the Oircuit' Courto! the United States f6r tM -North ern Diistl'Mt of CalifOl·Ma. " ". .: ., " i:, ; i ' ; ' It i (It,' .·,u. IS. Atty. , '(Jr. ,OVm., f()r , and District,Jmlge., " . ; ii . . " " '
I , ,,;
,i ! o
District Juc;lge. Tbjssuit is brought to,' cancelapat to the Central 'Rl\ilr9ad Oompa,ny, i1'l11CceSSOr to .the, &;" O!:'egQ'n. ,Railroall ,on January to -k of N. E. i .of. section 33, range, 4E.,.M.D.M., on. the ground that it was issued ,'ftb.,?ou.gh error." Tbe la:ud in controversy,fa witbin land grant, made to the 8/;. Oregon Railroad"Company under the act of congress ofJuly 25i:1866 (14 Stat. 239). This act grantedi to the railr.oad company 10 odd sections of land on eMh side. of tlle railroad line, not "granted, sold, reserved, occupied by bomestead'j;l,nttlers, pre-empted,or otherwise .disposed of." The map of the.defiuite,Jo.cation.of the. road Watl filed in the, office of
UNITED STATES V. CENTRAL PAG. R. CO.
of the interior September 13, .1867;'and on October 29, 1867,' the lands lying withIn the limits of the grant ,were withdrawn from sale by the commissioner of tl),e generallanq. office. The question presented is whether one Michael Lannon had acquired a right of to the land prior to September 13, 1867, when the line of the railroad was definitely fixed and located. It appears from the testimony that in 1858 the said Lannon, being then an alien, and engaged in the business of mining near the land in controversy, settled upon theW. lof the N. W. i of sectIon 3'1, township 22 N.,6f range 4 E. This and the land in controversy were adjoining subdivisions of the then public, unsurveyed land, containing 80 acres each. The land was surveyed in September and October; 1878, and the official plat of this survey was filed in the land office December 14, 1878. Lannon on February 11, 1867, qualified himself to make a pre-emption claim by filing his intention to become a citizen of the United States. In 1869 Lannon cleared the IUJld, in controversy, in 1870 he cultivated a portion of the land, and in 1871.be built a house and moved upon the land. Prior to that time he lived in his hOllse on section 34, upon the 80 acres of land m., not in controversy in this suit. On May 21, 1879, Lannon filed his declaratory statement with the register of the land office at Marysvifle, Cal., upon the 80 acres of land in section 34; and on December 20, 1879, he filed an application to amend his pre-emption declaratory .statement sO as to include the 80 acres in controversy, which was allowed by the acting commissioner of the land office. We are of opinion that Lannon was not, at the date the railroad's grant attached, to wit, September 13, 1867, entitled to pre-empt the land.in controversy. lIe was not a. pre-emption settler upon the land, within the provisions of section 2259, Rev. St., which declare that:
"Eve1'Y person * ** who has made, or hereafter makes, a settlement in person on the public lands subject to pre-emption, and .who inhabits and improves the and who has erected or shall erect a dwelling thereon, is authorized to enter with the' register of the land office for the district in which such land lies, by legal subdivisions, any number of acres not exceeding one hundredlllld sixty, or a quarter section of land, to include the residence of such claimant."
T'llere is no testimony in the record which shows that prior to September 18, 18m, when the map of the definite location of the railroad'wasfiled, the said Lannon had ever entered upon the land in controversy, or claimed or intended to claim the same, or made any improvements thereon of any kind, or exercised any act of dominion or control over it in any manner whatsoever. The ground floor, upon which the entire superstructure of appellant's argument is built, is based upon the proposition "that Lannon intended to and did claim to have settled upon, cultivated, and improved 160 acres from the time of his original settlement to the date of his official survey in 1878," and that the land in controversy was embraced in said claim, and it is contended that these facts are "established by the beyond contradiCtion." The testimony upon which appellant chiefly relies is, as stated by counsel, "best described in Lannon's oWIlsimple style." In his direct examination, Lannon testified as follows:
94 FEDERAL REPORTER.
"Q. What was your object In settling bere and building a bouse? A. My tl) lJ¥I.ke a bome, If lUnd to; be .old. Q. Did you know bow much objet1t, to as a pre-emptot or a homesteader? A. I did, but lal1d.You r never had anyway to file on It uptil the government survey was made. * .· · Q. YoU'did know bow much' you was entitled to? A. Yes. Q. Did you at any time ,prior to May, 1871, indJcate In any way- How much land did you up.derstand you were entltled.·tQ? A. I understood I was entitled to the government. Q. Did you, 160 acres of laJid,-of government land. prior to May, 1862, in any way and, In .what manner, indicate what particular 160 acres of land you intended to make' Your home? A. Yes; that land that suited me, that was suitable for a ma.ll:to.take, that could be cultivated. Q. The guestlon is, did you indicate It, alld, If so, by what means; that Is, did you fence it round, run furrows around ft, Qr stake It, or.blaze it, or anything qf that kind? A. No, sir; there was nothing in that pa.rt of the country staltedout or blazed out by 8:ny settler until the government survey was made. Q.D1d rou assert ownership or claim to any particular 160 acres? A. Yes. Q. What was it? A. Just this same land now that I live on,-that I made my Improvements on. 'l'bat Is the same Ia:nd. * * * Q. Wbat did you mean [)y' making affidavit that y()u moved on It In 1858? A. Tbere was no odd 'sections and no even sections there then. I claimed 160 acres of government land whenever it came on the O)llrket. When the north and south line was run, a cut'l)1Y improvements in, two, like that, and threw all ·my buildings and or· upon this odd section. Q. Wbat 160 acres of land did you I could not say what leO acres It was. There was no sections. claim, sir? . HoW could a man claim any 40 or 8O? How could he name it?"
piece of land In controversy? I think you stated that you cleared it in 1869 and 1870, and moved on and built your house In 1871. A. Exactly; moved and got a crop of hay in June, 1871. Q. You were on the land before 1869, were you and cropped. not? A. I was not living on It, but I had labor Q. 111 1869? A. In 1870. Q. Had you done a.nything on this land before You bael Qot done anything, had you, on the land before 1869? A. Nothlngmoretban cutting brush. Q. What year did you do tbat first? A. In 1869 and '70.' Q. Then In 1868 you ,had not cut any brush or cleared the land at all,; bad you? A. No, sir. * * * Q. When was it that you first went on tbis particular piece of land? In what year was It,-18G8, 1869, or 1870.·! A. 1871,-1870 and 1871. ,,. · * Q. You' have repeatedly stated tbat you did not settle on this land because it was not surveyed. Now, without regard to the sUrvey, without describing It by the survey, what 160 acres did you claim around and about your house there,-the cabln,-the first house you put up? A.. ':rhe portion of land tbat I wanted was wbere I put in a crop; that could be cultivated; all cleared and cropped. That was the land that I intended to claim, If it ever came on the market, and that Is the land I improved. Q. 'you intended to: but did you claim, or did you simply Intend to claim, it? A. I Intended, wben It came on tbe market, that I would claim it. Q. The questioli'is, did you claim it from tbe time you settled there, or did you simply inteno to do it? A. Yes.'Q. Whicb? Did you Intend to, or did you, claim it? Did ;you claim it always? Did your neighbors know what particular 160 acres you claimed there? A. They did not knQw. Q. I do not mean by detract of land you claimed, without scription, but did. tbey know tbe i'egard JQt4e description of it by surVey? A. They did not. Q. Couldn't yOll 'have gone and pointed out tbe lands Independent of any survey? A. r could 'not, beca-osethe miners were scattered back aDd forth in these ravines. I claimed 160 acres. Q. Wbat 160 acres? A. 'This same land I .made :JPf IjIlprovenlents on."
IfwiUbe noticed that this testil;nony is in many respects uncertain and ihdetinite. The effect ,of is made morespecifio l?-pon as followS.: "Q; You moved 011 this landln 1870, didn't you, Mr. Lanllon,-thls particular
If Lannon had indicated. by act or deed his intention prior to September 13, 1867, toclain:1 the land in controversy as a part of the ,land be had located UPQlil ill :1858, then his improvements and dwell-
TRAVIS PLACER MIN·.CO. V. MILLS.
ingon the 80 acres where he first resided might have been sufficient to enable him to maintain his claim thereto, unless the legal questions discussed by counsel would deprive him of that right. But in the absence of any such indication until after September 13, 1867, we think the facts are wholly insufficient. Lannon gained no additional rights by his entry, settlement, and residence upon the land in controversy after September 13, 1867. We are of opinion that the action of the circuit court in refusing to can'cel the patent upon this ground was correct. , It is evident from the testimony quoted that Lannon is an illiterate man, and it is argued that allowance ought to be made upon that ground in considering his testimony. The courts have always been liberal in their construction in favor of the rights of settlers upon the public land, but ignorance of the law, or failure to comply with it, cannot be considered in the acquisition of a right created by statute, where the statutory requirements have not been complied with. As was said in Maddox v. Burnham, 156 U. S. 544, 547, 15 Sup. Ct. 449:
"It cannot be that when he falls, even by reason of his poverty, to do that which the law prescribed as the Initiation of any rights In the land. he Is nevertheless entitled to the same protection which he would receive had he complied with the statute. Leniently as the conduct of a settler Is always regarded by the courts, It cannot be'that such leniency will tolerate the omission by him of any of the substantial reqUirements of the statute In respect to tbe creation of rights In the public lands."
The decree of the circuit court is affirmed.
TRAVIS PLACER MIN. CO. v. MILLS. (Circuit Court of Appeals, Ninth Circuit. May 8, 1899.) No. 503.
WATER COURSES-USE OF WATER FOR MINING PURPOSES-ENJOINING
A company having the right to use the waters of a stream for p1l1cer mining cannot complain of an injunction restraining it from so using them as to render tiJem unfit for use in supplying the Inhabitants of a city for domestic purposes. where the injunction does not Interfere with defendant's use in Its ordinary and accustomed manner.
Appeal from the Circuit Court of the United States for the District of Montana. Toole, Bach & Toole and Shober & Rasch, for appellant. Clayberg, Corbett & Gunn, for appellee. Before GILBERT aDd ROSS, Circuit Judges, and HAWLEY, Dis· trict Judge. . ROSS, Circuit Judge. This was a snit in equity, by which the compla.inant sought to enjoin the defendant placer-mining company the appellant here, "from in any manner or to any extent fouling muddying, polluting, or discoloring the waters of Ten Mile creek, which flow down to the place where the same are diverted into the water plant and system operated by your orator during the time it is necessary for )'our orator to use said water for fUl'uishing the
and its ,inh'abi1!inte' 'Withwater.lll'i '!'tie -Mcree of the ,froth which the is';talten'enjoilli!: ,companyalld 'all persons acting fo\'o1' Mdei' it' Hfl'om'icoJiidttctibg' placeron Ten iCreek; in':Lewisand Clarke county, stafe'of' :Mbntana; in such a mamier fbril;peIlute,oi' muddy the 'of sai? Ten Mile the place of diversion into the wat'(ir-'planta:nid'system complainant; between the' fifteklitb day of July of each year land the tenth day nf April of the year, so as ,to preyent the plaintiff from obtaining water, for domestic purposes an<lreasonablypure and wholesome , that, in respect to the An examination of' the' its of the case, there isnQ substantial' conflict in it.' It shows that in the year 1864 certain of the waterS of Ten Mile' creek were appropriatedand at a point in Jjewis and Clarke county, Mont., by the pl'edecessorsin, interest ,of'JheHelena Consolidated Water Company, of which the appellee is'theduly'appointed, qualified, and acting receiver. Thaf ap)lropriation was forplacer,·mining purposes. During fije next year ;(tb,at is to in rS65) other of the w(lters ofthe,saroe creek were ,appropriated byt1;J.e predecessors in interest of, the appellant for the ,working of placer-mining claims situated' on andialong- 'Ten Mile' '&eek;and,have, been 'continuously used for that purpose ever since by the appellant and its predecessors in interest. Many years,after'ifhe. appropriation under which the appellant claims was made, the appellee changed the use of the water appropriated by its predecessors in interest from that of mining to domestic purposes" and also changed the point of its diversion from subsequent change of use, the creek in question.Th'at neither nor of the place of 'diversion, could' prejudice or in any wise affect the appropriation, or proper us!'!, tb,e:lIeunder, of the waters of the ('reek by and its predecessors in interest, is too well !lettled to require the citation of authon#es. In ,the use of the waters appropriated by the appellant and its predeceS'lors in interest certain ('eservoirs were and are employed for the storage of the waters, from which the water is discharged as required, in the operation of mining. The evidence in the case shows that the appropriation and use,of the. waters of Ten, Mile creek by, the appellant never worked any diminution in the quantity, or injury to the quality,of the waters thereof,4iverted 3Jl d used by the appellee, except for three days during the year 1897, to wit, August 18th, 19th, and 20th. The. evidence shows that during' those days the appellant discharged from one of it's ree,ervoirs a very much larger quantity of the waters of the creek' than it was accustomed to discharge, resulting in so befouling the remaining waters 9f tpe creek as" to them, at the pla,ce of, diversion by I the unfit for domestic use., This unusuala,nd rlnaccustQmed use 'ofl the, waters of the creek by the appellant, ,'was not QIl1y without" l,ega:l right, but there is some evidenc«(ip tebdin,g, to show that it was doIiewith the tM to purchase of the appellant its jp ani,l to the wate,rs of th,e ,creek in questi9n. Whether, if brou!tIlt by the'complainant,fhe decree could be
KENDALL V. HARDENBERGH.
held sufficiently definite to sustain it, need not be determined. The decree does not purport to prevent the use of the waters of the creek by the appellant in its accustomed manner, which the evidence shows, without conflict, results in no injury to the remaining waters at the place at which, and for the purpose for which, the appellee diverts and uses them. We are of opinion that the appellant has no just cause to complain of the decree as entered, and it is therefore affirmed.
KENDALL v. HARDENBERGH et al. (Circuit Court, S. D. New York.
WILLS-JUDGMENT IN JUDICA1'A. PROBATE BETTING
June 8, 1899.)
ASIDE FUND FOR AN1'WITIEB-REB
'Where, under a will directing the executors, as trustees, to retain in their hands a sufficient amount of the property of the testatrix to produce certain annuities bequeathed by the will, the sole executor who qualified set aside for that purpose certain specific property, and his action in so doing was confirmed by a judgment of the surrogate's court in proceedings' to which aU persons in interest were parties, the right .of the annuitants to be paid their annuities from the income of such property thereby became res judicata, as between all parties thereto; and they could not be deprived of such right by a decree of another conrt. in. a suit to which they were not parties, directing the trustee to transfer a portion of such property to another fund for the benefit of other legatees.
On Final Hearing on Pleadings and Proofs. Hamilton "Wallace, f(.rcomplainant. Robert Thorne, for defendant De Forest. Richard S. Emmet, for defendant New York Life Ins. & TrustCo. LACOl\IBE, Circuit Judge. The complainant is an annuitant un:del' a codicil to the last will and testament' of Blandina B. Andrews, whirh codicil contained tbeprovision:
"I direct that my executors retaiIUl,sufficient llfl:\onnt. of my real and personal estate in their hands to producethel:iaidannuities, or suchportionth.ereof as shall at any time remain payable." , '
}lr. fie Forest, the only executor who qualified, set aside two specific pieces, of property as a proper and sufficient amount to retain for that. purpose; and his .action in sO .doing was confirmed bya judgment of the surrogate's court, whicb decreed that he might l'etainin h.is hands for such purpose these two pieces of property, "or such other investments al"! the said property may from time to time.be converted into." To .the proceeding' ,jn. the surrogate's court all persons in any way interested were parties, and it has never been in any way modified or Between the annuitants and all other parties thereto it is resadjndicata. No one disputes the proposition .that the property. so set apart, and the subsequent investments in which the proceeds oJ the parcel sold were placed, are, and always hav:e, been, abundantly sufficient to produce the annuities. The ,executQr,as trustee, retained thillproperty and these investments nnW some time jp Allgllst, 1894, when he paid out part of the fund to