text:
    JONES v. WALTHAL ELECTRIC CO., Inc.
    No. 3673.
    District Court, E. D. New York.
    Sept. 7, 1929.
    Decree affirmed in 47 F.(2d) 174.
    Cavanagh & James, of New York City (Maxwell James, of counsel), for plaintiff.
    Pennie, Davis, Marvin & Edmonds, of New York City (Willis H. Taylor, Jr., of New York City, of counsel), for defendant.
   CAMPBELL, District Judge.

This is an action in equity for the alleged infringement of patent No. 1,658,804, issued to the plaintiff for Capacitive-Coupling Control System, dated February 14, 1928, and patent No. 1,658,805, issued to the plaintiff for Capacitive-Coupling Control System, dated February 14, 1928.

The original application was filed December 15, 1928.

The alleged divisional application of patent No. 1,658,804 was filed September 21, 1926.

The alleged divisional application of patent No. 1,658,805 was filed March 15, 1927.

The said alleged divisional applications for the patents in suit were not filed as a result of a requirement for division by the Patent Office, but were optional divisions.

The defendant, Walthal Electric Company, Inc., is a dealer in Stromberg-Carlson Neutrodyne receivers, utilizing the Hazeltine Neutrodyne patents under which it has been licensed.

The instant suit is being defended by and at the expense of the Hazeltine Corporation, •the owner of the said Hazeltine Neutrodyne patents.

The two Jones patents in suit relate to the neutralization of capacity-coupling, in whole or in part, of vacuum tubes employed in the circuits of a radio receiver.

The reeord in the suit brought by the plaintiff against Freed-Eisemann Radio Corporation (D. C.) 48 F.(2d) 300, has, by stipulation, been offered in the instant suit, and I might rest content to stop by simply making my opinion in that suit, my opinion in this, because nothing more favorable to the •plaintiff has been introduced in the instant suit; in fact, the evidence in this suit is more favorable to the defendant on the question of noninfringement, if I was in error in my finding of invalidity of the patents in suit, in my decision in the Freed-Eisemann suit.

In the Freed-Eisemann suit the primary coil and auxiliary coil, generally denominated on the trial and herein as P, and A, were unlike, in that the primary comprised nine turns of wire, and the auxiliary comprised fifteen turns of wire. The coefficient of coupling between the primary and secondary (P, S) was 54 per cent., and between the auxiliary coil and secondary (A, S) 58 per cent.

Plaintiff said the coefficients of coupling between P, S and A, S were equal, and Hazel-tine said that had no engineering significance, and I agree with him.

In the instant suit, the primary and auxiliary coils are alike, and each' comprise fifteen turns of wire, each coil being, coupled to the secondary eoil with a coefficient of coupling of 52 per cent.

The two coils, P and A, are wound, interleaved bifilar fashion on a single cylindrical support, which is located inside of the cylindrical support for the secondary coil winding.

I accept Wheeler’s measurement as correct, and find that the coupling between the primary coil P, and the auxiliary coil A, is 88 per cent.

Jones is evidently wrong in his measure! ment of 79 per cent.

On the alleged infringing deviee, Exhibit H, coils P and A, having the same number of turns, and being arranged as shown in Figs. 3 and 7, of Hazeltine patents Nos. 1,489,228 and 1,533,858, were inevitably equal.

Equality under such conditions as I pointed out in my opinion in the Freed-Eisemann Case was shown in the said Hazeltine patents.

The coupling between the primary eoil and the auxiliary is 88 per cent., and that is very close.

As absolute unity is an ideal, and 95 per cent, is probably the highest attainable percentage, surely 88 per cent, is very close, if not, as I believe it is, substantially equal, to unity; and in this opinion I am supported by the opinion of Judge Moscowitz, in Hazeltine Corporation v. A. H. Grebe & Co., Inc., (D. C.) 21 F.(2d) 643.

Plaintiff bases his contention that defendant infringes upon the fact that the special arrangement in the Stromberg-Carlson receiver, between the coils P and A, is that the diameter of the wire is .015 of an inch, while the spacing between centers is .050 of an inch, so that there is a clear space of .035 of an inch.

This, however, would not to my mindi constitute infringement if the patents in suit were valid, because the alleged infringing device, Exhibit H, utilizes the “substantially equal to unity coupling” invention of claim 1 of Hazeltine patent, No. 1,489,228, and if there be any question about that, it certainly utilizes the close coupling invention of Hazeltine patent, No. 1,450,080, and as held by the Circuit Court of Appeals of this circuit, in Hazeltine Corporation v. E. A. Wildermuth, 34 F.(2d) 635, in a recent decision, as it utilizes the plate circuit neutralization of Hazeltine patent, No. 1,533,858, that patent, in so far as the plate circuit neutralization claims were concerned, is not limited to close coupling.

As I have pointed out in my opinion, in the suit of Lester L. Jones v. Freed-Eisemann Radio Corporation, 48 F.(2d) 300, decided this day, the two Jones patents in suit, Nos. 1,658,804 and. 1,658,805, are invalid.. But if I am in error as to the invalidity of the Jones patent, No. 1,658,804, the defendant does not infringe.

A decree may be entered in favor of the defendant against the plaintiff, dismissing the complaint with costs.


source: Caselaw Access Project

author: PATTERSON, District Judge.

license: Public Domain

text:
    THE LINSEED KING. In re SPENCER KELLOGG & SONS, Inc.
    District Court, S. D. New York.
    Dec. 17, 1930.

      See, also, 24 F.(2d) 967.
    Bigham, Englar, Jones & Houston, of New York City (D. Roger Englar, Charles W. Hagen, and George S. Brengle, all of New York City, of counsel), for petitioner.
    Elizabeth Robinson and Lucien V. Axtell, both of New York City (Elizabeth Robinson, of New York City, of counsel), for claimants.
    Lester Hand Jayne, of New York City, for claimants Roberts, Sims, McEachin, and Varouxaki.
    Kurzman & Prank, of New York City, for claimant IfilL

      Marsh, Spencer & Marsh, of New York City, for claimant Navas.
    Oeland & Kuhn, of New York City, for claimant Hicks.
   PATTERSON, District Judge.

This is a limitation of liability proceeding under section 4283 of the Revised Statutes (46 USCA §183). It comes before me on exceptions to a commissioner’s report.

On December 20, 1926, the Linseed King sank in the Hudson River. Many lives were lost. The survivors managed in one way or another not to be drowned, but suffered from exposure. The Linseed King was a launch owned and operated by Spencer Kellogg & Sons, Inc., which had a manufacturing plant at Edgewater, N. J. Many of the men employed there came from New York City. The launch was used to carry them from a pier on the New York side to the place of work on the New Jersey side. At the time in question, the launch carried not only employees but also men who made the trip in the hope of securing work. No fares were charged, and the general public was not invited to ride. In short, the launch was a private carrier, operated by the employer for its own convenience' and that of its employees. The facts, as to this appalling disaster have already been fully set forth in an opinion by Judge Hazel, and need not be repeated. The Linseed King (D. C.) 24 F.(2d) 967. The prior steps in this proceeding are of importance, however, because of the bearing of the New Jersey Workmen’s Compensation Act (P. L. 1911, p. 134, as amended), upon the rights of the parties.

The proceeding was initiated in March, 1927, by Spencer Kellogg & Sons, Inc., as owner of the launch. The petition, after setting forth the happening of the calamity, alleged that it was not due to any fault on the petitioner’s part, and that many lawsuits for loss of life and personal injuries had been commenced, and that claims had been, or would be, filed with the New Jersey Workmen’s Compensation Bureau. By reason of such facts, the petitioner stated that it sought the limitation of liability afforded by the Revised Statutes, and that it also desired to contest any liability whatsoever, except that it did not contest the right of claimants to file claims with the Workmen’s Compensation Bureau. The value of the Linseed King at the end of the voyage was alleged to be $1,500. In the prayer for relief, the petitioner asked for an order directing the issuance of a monition to all persons claiming damages, citing them to appear before a commissioner and to make proof of their claims, and also to answer the allegations of the petition (paragraph 3); for an injunction staying the prosecution and determination of all suits and proceedings in respect of any claims-arising out of the voyage, with liberty, however, to any claimant to file his claim with the New Jersey Workmen’s Compensation Bureau (paragraph 4); and for an adjudication that the petitioner was not liable to any extent on any such claims except such as-should be proper and legal claims under the New'Jersey Workmen’s Compensation Law,, and that, as to such compensation claims (and any other liabilities imposed upon it), the-liability be limited to the value of the launeh (paragraph 5). In due course there was an order of this court on March 5, 1927, directing the issuance ,of a monition against all persons claiming damage from the disaster,, and enjoining the beginning, prosecution, or determination of all suits or proceedings except the filing of claims with the Workmen’s-Compensation Bureau. The order directed that service of it be made upon the Compen•sation Bureau, and it was so served. A restraining order to the same effect was also-issued. Numerous claimants then eame in and controverted the petitioner’s claims of nonliability and limited liability.

The matter eame on for trial before Judge Hazel in January, 1928. He found that there was negligence in the operation of the Linseed King, and further that the petitioner had knowledge or privity as to such negligence. Accordingly, the petition for limited liability. was denied, but the proceeding was continued in order to determine the liability of the petitioner on an unrestricted basis. (D. C.) 24 F.(2d) 967. The point was pressed by the petitioner before Judge Hazel that the New Jersey Workmen’s Compensation Law was-applicable to the claims of all persons who were employees or whose decedents were employees. The claimants, however, insisted that the sole issue at that time was whether the petitioner was entitled to limit its liability, and that further testimony would reveal the inapplicability of the Workmen’s Compensation Law. Judge Hazel did not deem it necessary or appropriate to pass upon this point, at the time, and sent the ease to a commissioner to take proof as to the Workmen’s Compensation feature of the case as well as to matters of damages.

The commissioner took proof as to some seventy-eight claims. In his report he has recommended no awards in several cases, and awards ranging from $300 to $15,000 in the majority of cases. As to workmen’s compensation, the commissioner held the New Jersey statute inapplicable, first, because the tort was maritime, and, second, because the nature of the proceeding conferred upon the admiralty court jurisdiction to hear and determine every claim of any nature growing out of the disaster. Exceptions have been filed. The exceptions of the claimants go to the commissioner’s refusal to recommend awards to certain persons and also to the adequacy of the awards recommended in other cases. The exceptions of the petitioner, in addition to complaining of awards in particular eases, present the broad proposition that there should be no awards in cases involving employees, because of the Workmen’s Compensation Law. I'will first give my views as to the applicability of the Workmen’s Compensation Act to this case.

1. The New Jersey Workmen’s Compensation Act is found in Laws of 1911, c. 95, as amended. Section 1 provides for “compensation by action at law,” in which actions the employer is stripped of certain common-law defenses, and in which the employer’s negligence is the main issue: Section 2 sets up “elective compensation” for personal injury or death of the employee arising out of and in the course of the employment, irrespective of the employer’s negligence. This plan provides a schedule of installment payments in the manner typical of such statutes. It takes effect only by agreement of the parties, but every contract of hiring is presumed to have been made with the plan in mind, unless one party or the other has given written notice to the contrary prior to the injury or death (paragraph 9). And such agreement to abide by the plan operates as a surrender by the parties of any other method, form, or amount of compensation, a surrender binding, upon the employee, his personal representative, widow and next of kin, as well as upon the employer (paragraph 8). Employers subject to the act are obliged to insure or to •carry their own insurance. The Workmen’s ■Compensation Bureau is the body by which the law is to be administered, although appeal to the courts from determinations of the bureau is provided for. There are, of course, many other details covered in the act, but the above outline will suffice for present purposes.

The rights of the parties under section 2 are contractual. Rounsaville v. Central R. R. Co., 87 N. J. Law, 372, 94 A. 392; Deeny v. Wright & Cobb Lighterage Co., 36 N. J. Law J. 121. Where the contractual status as to compensation exists between employer and employee, and injury or death is caused by accident arising out of and in the course of employment, no other remedy than under the compensation plan, can be pursued by the employee or his representative; hence the personal representative of a deceased employee killed in the course of employment cannot maintain an action at law for wrongful death against the employer. Gregutis v. Waclark Wire Works, 86 N. J. Law, 610, 92 A. 354. The situation is as if the employee had said to the employer: “In consideration of your promise to pay the award set forth in the statute, in case I shall be injured or killed by accident arising out of and in the course of employment, I now relinquish any other rights that I or my representatives might otherwise have had against you by reason of such future injury or death, and will look solely to the workmen’s compensation award,” and as if the employer had then made the promise. The statute is said by the New Jersey courts to be a remedial law of prime import, to be broadly and liberally construed. Jersey City v. Borst, 90 N. J. Law, 454, 101 A. 1033; O’Mara v. Kirch (N. J. Err. & App.) 147 A. 511. While the compensation plan is elective, the election against the plan must be made prior to the injury or death, and it must be made in writing. After the accident has occurred, neither party can elect against the plan.

'There can be little doubt that, as to regular employees who were on the boat at the tíme of the disaster, injury or death came from an accident arising out of and in the course of the employment. It is true that they had not yet commenced the day’s work, and that they did not receive pay for the time spent in crossing the river. They were on their way to work, however, and were being transported in a conveyance owned and operated by the employer day after day to carry them to work, for the convenience of employer and employees alike. In the New Jersey cases, such transportation is said to be an incident of the employment, and injury or death of an employee while being so transported is held to arise out of and in the course of the employment. Fisher v. Tidewater Bldg. Co., 96 N. J. Law, 103, 114 A. 150; Soden v. Public Service Co. (N. J. Sup.) 134 A. 560, affirmed in 103 N. J. Law, 713, 137 A. 437; Rachels v. Pepoon, 135 A. 684, 5 N. J. Misc. R. 122; Alberta Contracting Corporation v. Santomassimo (N. J. Sup.) 150 A. 830, 831. There are numerous rulings by the New Jersey Workmen’s Compensation Bureau to the same effect. Gebhardt v. Me-keel, 5 N. J. Misc. R. 475; Bakos v. Knight Const. Co., 5 N. J. Misc. R. 443; Fredman v. Safier, 5 N. J. Misc. R. 459; Hunter v. Atlantic City Electric Co., 7 N. J. Misc. R. 725. The fact that the employees were not paid until they arrived on the job was held immaterial in the Alberta Case, supra, where the New Jersey Supreme Court also said:

“We believe that the pertinent rule to be extracted from the eases is this: The relation of employer and employee continues while the employee is riding, to and from his employer’s premises, in a truck used in connection with his employer’s work, by direction of his employer, with his knowledge and acquiescence in the continued practice, which was beneficial to both the employer and employee ; and an injury sustained while so riding arises out of and in the Course of his employment.”

The claimants point out that the accident occurred in waters forming part of New York. The New Jersey Compensation Act and the contract for compensation made under it are held to cover injury or death occurring outside the state, where the employment is a New Jersey employment. This seems to be the general rule under elective compensation statutes. Rounsaville v. Central R. R. Co., supra; Foley v. Home Rubber Co., 89 N. J. Law, 474, 99 A. 624; Deeny v. Wright & Cobb Lighterage Co.,, supra. It is also argued that, since the disaster happened on navigable waters, the Workmen’s Compensation Act is excluded by admiralty law, by reason of what was decided in Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. In the Jensen Case the employment was a maritime one. Under such conditions, the New Jersey act has no operation. March v. Vulcan Iron Works, 102 N. J. Law, 337, 132 A. 89. Here, however, the employment (except as to men engaged in navigating the launch, and as to men whose work it was to unload ships) was nonmaritime. The decisions of the Supreme Court subsequent to the Jensen Case show that the local compensation statutes are not excluded, unless the tort occurred on navigable waters, and unless also the employment was maritime. Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008; Millers’ Underwriters v. Braud, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470; Alaska Packers’ Ass’n v. Industrial Accident Commission, 276 U. S. 467, 48 S. Ct. 346, 72 L. Ed. 656.

Finally, it is pointed out by the claimants that the employees were being transported from New York to New Jersey; that interstate commerce is involved; and the argument is that the New Jersey statute is for that reason rendered inoperative. There is no merit in this argument. Of course, where employees of common carriers by railroad are injured or killed while engaged in interstate commerce, Congress has covered the entire field by the enactment of the Federal Employers’ Liability Act (45 USCA § 51-59), and state workmen’s compensation statutes are excluded. New York Central R. Co-v. Winfield, 244 U. S. 147, 37 S. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139. But here the employer was not a common carrier, and did not operate a railroad, and Congress has never, so far as I know, passed any statute relative to the liability of such an employer for injury or death suffered by its employees while incidentally being carried from state to state. The matter is within the zone of valid state legislation. Leisy v. Hardin, 135 U. S. 100, 10 S. Ct. 681, 34 L. Ed. 128.

There is undisputed evidence in the ease that no written notice was given by any party prior to the accident, whereby an election against the compensation system was registered. My conclusion, therefore, is that the elective system of compensation embodied in the New Jersey Workmen’s Compensation Act governed the injuries and deaths of all the employees hired for nonmaritime work. The remedy provided by that system (awards by the Compensation Bureau) was the exclusive remedy for all such employees and their dependents. It seems clear that the suits at common law, the suits .in admiralty, and the suits under death statutes which had been commenced could not have been maintained over the objection of the employer that the right to obtain compensation or damages by such suits had been surrendered prior to the accident. Gregutis v. Waclark Wire Works, supra; O’Mara v. Kirch, supra; Delaware, etc., R. Co. v. Peck (C. C. A.) 255 F. 261; Barnhart v. American Concrete Steel Co., 227 N. Y. 531,125 N. E. 675.

A more difficult question is whether the petitioner, by instituting and. maintaining this limitation proceeding, has lost its right to confine the employees (including in that term personal representatives of deceased employees) to their workmen’s compensation remedy. The employees argue that the petitioner has lost such right, basing the argument upon waiver, estoppel, rescission of contract, and finally upon considerations peculiar to limitation proceedings. Before discussing these grounds, however, it may bp observed that the petitioner as matter of law could not limit its liability to pay workmen’s compensation awards in cases of injured or deceased employees, even though it had been free of fault. There seem to be no authorities on the point, but it is plain enough on principle. An employer’s liability to pay compensation awards under the New Jersey act arises from his personal contract. Rounsaville v. Central R. Co., supra. It is settled that the limitation acts (R. S. § 4283, ff. (46 USCA § 183 et seq.) do not apply to liabilities resting on personal contracts of the owner. Pendleton v. Benner Line, 246 U. S. 353, 38 S. Ct. 330, 62 L. Ed. 770; Luckenbach v. McCahan Sugar Co., 248 U. S. 139, 39 S. Ct. 53, 63 L. Ed. 170,1 A. L. R. 1522; Capitol Transportation Co. v. Cambria Steel Co., 249 U. S. 334, 39 S. Ct. 292, 63 L. Ed. 631; The E. S. Atwood (C. C. A.) 289 F. 737. To some extent, this is true even of implied contracts. The Loyal (C. C. A.) 204 F. 930. In this connection, it is interesting to note that in 1927 Congress expressly provided that an employer’s liability to make payments under the Longshoremen’s and Harbor Workers’ Compensation Act (33 USCA §§ 901-950) shall not be subject to limitation by reason of the limitation acts (Act of March 4, 1927). The limitation acts therefore gave the petitioner no protection against workmen’s compensation elaims, and I am convinced that any employee, by pressing an exception or motion against the petition, could have promptly obtained a dismissal of this proceeding so far as it concerned him.

If the term “waiver” is used in its conventional sense as the intentional relinquishment of a known right, there has been no waiver by the petitioner of its right to insist that all employees be confined to their remedy under the compensation statute. It took the stand in its petition that their rights were to be determined by the Compensation Bureau. It has never departed from this position. True, it erroneously sought to restrict its liability upon the awards which it expected would be made by the Compensation Bureau, but this does not establish waiver.

The elements of equitable estoppel are lacking. The petitioner now says that the employees have no claim against it sounding in damages, but have simply the right to get compensation awards under the compensation statute. This has been its position at all stages of the case. There have been no prior representations to the contrary and no prior conduct antagonistic to its present position. Moreover, there is nothing in the ease to show that any of the claimants were misled by the position taken by the petitioner. Their failure to obtain compensation awards, so far as shown by the record, was not because of anything done or said by the petitioner in this proceeding, but was due to their belief that the Workmen’s Compensation Act, for one cause or another, had nothing to do with the case. In this connection it should be noted that the time within which claims arising from this accident may be filed with the New Jersey Bureau has not yet expired (New Jersey Laws of 1924, c. 187, § 6; Franko v. Ohio Chemical Co., 150 A. 221, 8 N. J. Misc. R. 376), and the petitioner has announced before me its readiness to pay awards by the bureau. Having successfully contended in this proceeding that the Compensation Bureau had sole jurisdiction, it would obviously be estopped before the bureau to face about and dispute the jurisdiction, or to deny that the injuries and deaths of employees were as fully covered by the act as if they had occurred in its own plant, or to contend (for at least a year hence) that the right to file claims before the bureau had expired. It may also be noted that, at the opening of trial before Judge Hazel in January, 1928, the petitioner offered to pay all employees and their personal representatives the amounts due them under the Workmen’s Compensation Law, abandoning to this extent its claim of limited liability; but the claimants rejected the offer.

The ease of In re Famous Players Lasky Corp. (D. C.) 30 F.(2d) 402, 1929 A. M. C. 300, is not in point as to estoppel. There seamen were injured while working on a ship off the California coast. The court, following the Jensen Case, held that the California Workmen’s Compensation Act was not controlling, and awarded damages in a limitation proceeding. Two of the injured seamen, however, had filed elaims with the Compensation Bureau, and the claims had been paid despite the lack of jurisdiction. As to these two men, it was held that they were estopped to insist upon damages in admiralty. This because they had taken the position that the Compensation Bureau should make awards and because they had been successful in that position to the extent of receiving payments in full. It is a familiar rule that one who has successfully maintained a position in litigation is estopped later to say that such position was erroneous. The situation here is not analogous.

The argument is made that the petitioner had bound itself by contract to the statutory compensation plan, with its features of awards by the New Jersey bureau and prompt payment of such awards; that the petitioner broke these contracts by disputing its liability, to pay any awards exeept to a trifling extent, and also by restraining the employees from proceeding to obtain awards; that such conduct amounted to a repudiation by the petitioner of the contracts or constituted a breach of such gravity that the employees could treat the contracts as rescinded; and that consequently the latter are entitled to assert their rights at common ■law or in admiralty. I own that at first this line of reasoning struck me as sound. There is no gainsaying the fact that the conduct of the petitioner has been in violation of its contractual duty under the New Jersey compensation plan. It asked for and obtained an injunction which, while permitting the filing of compensation claims in New Jersey, obstructed any further progress along that line for a considerable time. .One of the valuable features of workmen’s compensation is the speedy relief given to injured employees and to dependents of employees who are killed, without putting them to litigation beyond what may be involved in the determination .of claims by the Compensation Board and in appeal from such determination. But the conclusion that the employees were thus remitted to their rights at common law- or under death statutes does not follow. The general rule is that, where a claim has been released for a promised consideration, which is not given, the claimant may 'treat the release as rescinded and recover upon the original claim. Williston on Contracts, § 1457. This rule might be applicable here if the employees had at one time had claims in tort against the employer, which claims they had surrendered upon making contracts for the payment of compensation, and if the employer had later declined to pay the promised compensation. But, under the New Jersey statute and the contract resulting from it, they never had claims in tort against the employer, and they never had claims in contract for injury or death exeept their claims under the compensation plan. They certainly had no claims for injury or death prior to December 20,1926, and before that time came they had'made an agreement surrendering all other rights than the right to get workmen’s compensation awards. So they are not asking the court to revive claims which they once had at common law, in admiralty, or under a death statute; they are in effect asking the court now to create for them claims which they never owned, claims which they could have had but for the Compensation Act and the resulting contract. I conclude that there is no room here for the rule of rescission. The remedy for the petitioner’s breach of contract is to hold it for interest upon the delayed payments of compensation, and I have no doubt that the Compensation Bureau will attend to this matter in making awards.

Stress is also laid by the claimants upon the rule in Hartford Accident Co. v. Southern Pacific Co., 273 U. S. 207, 47 S. Ct. 357, 71 L. Ed. 612, to the effect that, where a shipowner sues to limit liability, and limitation is denied, the proceeding does not necessarily terminate, but the court may proceed to adjudicate all claims arising from the accident, whether independently cognizable in admiralty or not, and may render judgment both in rem and against the owner in person-am. This rule has already been applied in this ease as to all claims which do not involve employees. But to say that the court may entertain, in the case of employees, tort claims which never existed, and may award damages without relation to the amounts specified in the Compensation Act and agreed upon by the parties as the employees’ sole measure of recovery, is to carry the Hartford Case far afield. That case dealt with procedural rights of the parties; it does not hold that their substantive rights are changed by the fact that the shipowner has unsuccessfully sought to shelter himself under the limitation acts. One of the reasons for the result reached in the Hartford Case was the inequity of sending claimants empty away, to begin new suits, after the owner had impeded them in the bringing of suits. I am sensible of the fact that here the owner contributed toward delaying the claimants in the pursuit of their real remedy, and to this extent its conduct may be termed inequitable. But I cannot believe that the .claimants thereby acquired tort claims which they never had before or that the owner is thereby equitably estopped to say that they have no claims sounding in ordinary damages, but have claims only in workmen’s compensation.

The most that can reasonably be claimed from the. authority of the Hartford Case, in connection with the present case, is that, instead of sending the parties to the New Jersey Compensation Bureau, this court ought itself to make awards to the claimant-employees upon the same basis as the Compensation Bureau would make them, and ought to render judgment in this proceeding against the petitioner in personam to cover such awards. I would be glad to do so if I had the power. The New Jersey Compensation Act, however, like all other compensation acts with which I am familiar, requires payment in installments over a period of time. Payment in a lump sum is permitted, but only when approved by the bureau or other designated New Jersey officials. Clearly this court has not the authority or the means to order and to enforce such payments. Southern Pacific Co. v. Jensen, 244 U. S. 205, 218, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. In my opinion, the Supreme Court in the Hartford Case did not mean that workmen’s compensation claims, or, for that matter, any other claims not cognizable in an ordinary court of law or equity, could be adjudicated by an admiralty court.

I am therefore foreed to the conclusion that the claimants who were regular employees of the petitioner, hired to do non-maritime work, and also the claimants who are personal representatives of deceased non-maritime employees, cannot be given relief in this court, either by damage awards or by awards similar to workmen’s compensation. Their remedy is to file claims with the New Jersey Workmen’s Compensation Bureau and to obtain awards there, and it is to be hoped that they will do so promptly. Prom the proof before me, it seems clear that the following cases fall into this class: James Alexander, Charles D. Burns, Samuel Daniels, Domingo DeMeza, Prank Bberle, Henry Mc-Eaehim, Prank Marques (Martin), Pemando Martin, Adolphus Matthias, Carlos Morales, George Nemetz, Uriah Pusey, Clifford Rawlins, John Benjamin Samuels, John Turner, John Castro, Joseph Hamilton, Eric Martin, Pred Sumner, Nathaniel Wisdom, Ernest Boyer, David H. Clarke, Balfour Corriette, Thomas Coyle, Victor Kreminsky, Juan C. Munoz, Eladio Ortiz, Carlos C. Thigpen, Paul Boots, Dominick Darco, Pelipe Durate, Junius Johnson, Bernhard Lang, Louis Ortiz.

The exceptions by the petitioner to awards in the above claims are sustained. It is unnecessary to pass upon the soundness of the commissioner’s refusal of awards in some of the above eases and upon the adequacy of his awards in others.

The case of Alfred Roberts, one of the men lost in the disaster, is out of the ordinary. He was undoubtedly a regular employee, working as a chauffeur at $35 a week. But he also assisted in operating the Linseed Bang when he was on it, and the employer knew and approved of this practice. The man in charge of the boat testified that he would have had an extra man to assist him but for the fact that he preferred Roberts’ help. To this extent, Roberts’ work was maritime. The death having occurred in navigable waters, the Workmen’s Compensation Act does not apply to his ease. His personal representative is entitled to damages in this proceeding. Southern Pacific Co. v. Jensen, supra.

A large number of those who perished or were injured on the Linseed King were merely looking for work, in response to an advertisement. These men were eoneededly not employees, the compensation statute does not cover their eases, and damages for death or injury may be given by this court. There is still a third group of men who had applied for employment several days prior to December 20th, had been given slips of paper with numbers, and had been told to report for work on December 19th, to unload a ship. These men had reported on December 19th, as instructed. They were then told that the ship had not arrived and that they should return for work the next day. They were returning when the disaster happened. They had done no work and had earned no compensation. The commissioner held that these men were employees. I do not agree. In my opinion, the status of employer and employee had not yet come into existence, and the compensation statute does not apply to these eases. Coco v. Wilbur, 104 N. J. Law, 275, 140 A. 790, seems indistinguishable. It appears, moreover, that the work expected of these men was the unloading of a ship. This would be maritime employment and the Workmen’s Compensation Act does not apply to an injury or death to maritime employees which happens on navigable waters. Southern Pacific Co. v. Jensen, supra; March v. Vulcan Iron Works, supra. The Longshoremen’s and Harbor Workers’ Compensation Act (33 USCA §§ 901-950) was not in effect at the time of this accident. Damages are therefore to be awarded in the eases involving men in this third group.

2. There remain the cases of nonemployees, the men who had received numbers and had been promised a job unloading the ship, and also the men who came in response to the advertisements for help wanted. There also remain the eases of Roberts and one or two others whose work seems to have been, in part at least, of a maritime nature. Before considering the cases separately, I will comment upon certain matters common to many of them.

The claims axe of two general classes. One class is claims for personal injuries, where survivors are claimants. The other and more numerous class consists of claims by personal representatives complaining of the death of their intestates. These latter causes of action are derived from the New York statute allowing recovery for death by wrongful act, which statute is now part of the New York Decedent Estate Law (Consol. Laws, N. Y.; c. 13). The deaths occurred in waters within the territorial limits of New York, and it is conceded that the death claims concerning nonemployees are controlled by the New York statute. Such a suit is maintainable by the personal representative of the deceased, but the damages recovered are exclusively for the benefit of the widow and next of kin, determined as in cases of intestacy with certain specified exceptions. The damages axe to serve as compensation for pecuniary injuries resulting from the death, of the decedent to the relatives in whose behalf the suit is brought. Decedent Estate Law, §d32. The New York courts have held that loss of support and reasonable funeral expenses are proper elements of damage, but that nothing may be given for grief, and the correctness of these rulings, in view of the language of the statute, is obvious. Oldfield v. New York & Harlem R. Co., 14 N. Y. 310; Murphy v. New York Central R. Co., 88 N. Y. 445.

The term “loss of support” is not quite accurate. The inquiry is to estimate the pecuniary benefit which the next of kin would have received, by contributions, services, or inheritance, from the continuance in life of the deceased. Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635. The plaintiff or claimant is not obliged to prove a legal obligation by the deceased to support, nor need he show that the next of kin have no other means of livelihood. Carpenter v. Buffalo, N. Y. & P. R. R. Co., 38 Hun (N. Y.) 116.

Many of the claimants paid burial expenses. I think that it was the intention of the commissioner to allow recovery for these amounts, in so far as they were proved and appeared reasonable, and that the omission of them in the final amounts mentioned in the report was inadvertent. I will allow funeral expenses, not to exceed $275, in each cáse where the proof shows that the person or persons for whose benefit the claim is maintained paid such expenses. I make this limitation because in some eases the petitioner seems to have paid the undertakers’ bills.

The claimants insist that all the death awards should carry interest from the date of death, December 20, 1926. On this feature of the ease, the commissioner declared that the damages recommended were computed as of the date of the report, July 3, 1930, and should bear interest only from that day. All parties agree that the matter of interest is governed by the New York statute already referred to, which in section 132 provides:

“When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded, interest thereon from the decedent’s death, and include it in the judgment. The inquisition, verdict, report or decision, may specify the day from which interest is to be computed; if it omits so to do, the day may be determined by the clerk, upon affidavits.”

The claimants rest upon the first sentence quoted; the petitioner rests upon the second sentence, and says that the commissioner has covered the question of interest in a proper way. As I read the statute, the first sentence is controlling and the second subordinate. The meaning of the passage is that in all eases the plaintiff shall be entitled to interest from the date of death;, that the jury, referee, or court may indicate what day is found to be the date of death; and that, in cases where the date of death is not so indicated, the clerk may determine on affidavits what the date of death was. In other words, I believe that “the day” in the second sentence means the day of death. There are, of course, eases where the date of death is matter of dispute, and the second sentence may have been intended to cover such eases. Upon this construction, both of these sentences serve a purpose. Upon the petitioner’s construction, that the court, jury, commissioner, or referee may pick out a day over three years after the time of death as the date from which interest may run, the first sentence, in spite of its mandatory verb, is rendered futile, and might as well be expunged from the statute. The final judgment to be entered will therefore direct the clerk to add to all awards in death claims (but not in personal injury claims) interest at 6 per cent, from December 20,1926.

The petitioner says that the commissioner, in fixing the amounts of the awards, probably took into account a smaller sum as the damages on December 20, 1926, added interest to it and capitalized the total into a figure as of July 3, 1930; and they point out that by this capitalization of interest the claimants will receive more than on the smaller principal amount with interest from December 20, 1926. There is nothing in the report to show that the commissioner made any such calculations. However that may be, I find that the amounts hereinafter specified in this opinion as awards in death claims represent the damages to the claimants as of December 20, 1926, and should carry interest from that time. To this extent the report of the commissioner is revised in the individual cases hereafter referred to.

Finally, as to the amounts of the awards: The commissioner has mentioned the factors taken into account by him in determining the pecuniary losses, all of which seem to be proper factors. He also makes mention of the weight given to the appearance and behavior of the witnesses while testifying. This, of course, is an element of prime importance. I am quite sensible of the fact that the commissioner had the advantage of seeing the witnesses face to face; yet I believe that in certain of the death cases the figures recommended by him do not properly compensate the next of kin for their pecuniary losses. I do not mean to intimate that the commissioner was bound to accept as true the testimony of an interested witness as to what the earnings of the deceased had been or as to what his contributions had been. That such testimony was uncontradieted does not alter the case; in some instances, it was too vague and indefinite to render contradiction possible.

Boy Amlam, Deceased. The death of this man was satisfactorily established. Two claims were filed, one by a divorced wife with three children, the other by the wife to whom the deceased was married at the time of his death. The commissioner ruled that the divorced wife had no standing to recover damages, which is obviously correct, and recommended an award of $12,000 for the benefit of the widow and of the three children by the former marriage. This man had not supported his children for years, although under order of court to do so. In view of the proof as to the career of the deceased, the fact that while living he had provided very meager support to his dependents, and all the circumstances of the case, I am of the opinion that the amount recommended is fair and reasonable. (In this case, as in all other death cases later discussed, the amount fixed by me represents the damages as of December 20, 1926, and will carry interest from the date of death, and it is with this qualification that the amount which has been recommended by the commissioner is approved.) Funeral expenses in the amount of $213 are also allowed, making the total award in this case $12,213. Nothing should be paid over to the administratrix until there is security that the three children by the former wife will receive their proper share of the recovery.

Joseph Bassnet, Deceased. There is doubt whether this man was one of those who perished in the disaster. A corpse was identified as his, but there is also testimony that this body was in fact that of Clifford Rawlins. The commissioner found that the identity of Joseph Bassnet was shown. I am in agreement with this finding. The amount recommended by him is $10,000, which I believe is proper.

Thomas Da/ois, Deceased. This claim is filed by Bessie Davis, wife of a man by the name of Thomas Davis. No body identified as that of Davis was ever recovered from the river. The commissioner, in concluding that such a man was aboard the Linseed King on the fatal trip, said that his name appeared on the employer’s list of men who had been engaged to unload the ship. This is a mistake, induced no doubt by a similar mistaken statement in the claimant’s brief. No such name was on the list. The only testimony tending to place a Thomas Davis on the launch is that of Louis Skeers and 'William Morris, together with that of May Skeers. Skeers and Morris say that Thomas Davis lived with them, that they walked down to the pier with him before daylight on the morning in question, and that, although they did not board the launch, they saw Davis do so. May Skeers corroborated them in part. This story, while unusual, is not so improbable as to be unworthy of belief. The matter turns on the credibility of these -witnesses, and I am not prepared to say that they were not telling the truth. The commissioner saw them, and was apparently impressed by their story, for in his report he mentions Skeers’ testimony. While the proof is not strong, I have reached the conclusion that the Thomas Davis who lived with the Skeers did lose his life on the Linseed King.

The petitioner insists that, even if this is true, there is nothing to show that the Thomas Davis who lived with the Skeers is the Thomas Davis who was the claimant’s husband. The Thomas Davis who stayed with the Skeers had been there for several years, with a woman known as Catherine Davis. She had been living with him for two years and passed as his wife. The Skeers had never heard of Bessie Davis, the claimant, until after the accident. The Thomas Davis who married the claimant in 1922 had lived with her until 1924, when she went on a visit to Chicago.- He lived with her again early in 1925, until she departed again for Chicago. She stayed in Chicago thereafter, except for a brief time in 1926, while her husband remained in New York. The claimant did not know where he lived here and did not know the Skeers. ■ These facts certainly tend to show a lack of identity. In favor of identity, we have the identity of names, the fact that the claimant’s husband has not been seen since the disaster, the fact that he was a longshoreman, and the very significant fact that Catherine Davis did not turn up as a claimant in this ease. I believe that the Thomas Davis who lived with the Skeers and who perished on December 29, 1926, was probably the claimant’s husband. The real relationship between him and Catherine Davis is not hard to surmise, nor is it strange, in view, of this, that Bessie Davis and Louis Skeers had not heard of one another. The case is a very dose one, but it seems to me that on the whole ease the claimant has established both the death of Thomas Davis and her own status as his wife, and I.will not disturb the commissioner’s findings in these respects..

The commissioner found damages at $4,-999. Thomas Davis had-no steady job. His earnings were meager. When he and his wife lived together, they stayed with her mother. He was living with another woman at the time of his death, and had not contributed anything to his wife’s support fqr several months. He was living here, she in Chicago, and she did not even know where he was living here. In view of these, facts, I think that $5,999 is a fair and reasonable estimate of the claimant’s pecuniary loss, and I will accordingly make an award of $5,999.

David Hicks, Deceased. This man unquestionably lost his life in the disaster. He left a widow and small daughter, in addition to several grown children. Hicks was an elderly man, and his record of employment was not continuous. His wife was obliged to get outside employment, \ The widow seems to have been a frank and fair witness. The commissioner recommends, an award of $7,-599. The claimant does not object to this amount, but the petitioner excepts to it as excessive. In my. opinion,' the amount recommended is fair and reasonable. An undertaker’s bill for $227.29 is also allowed, making the total award $7,727.29.-

McBean H. Ifill, Deceased. I am satisfied that this man was one of those who perished on the Linseed King. The claim is by his wife. The only question relates to the damages. The commissioner recommended $19,999. The proof as to Ifill’s past earnings is not clear-cut and definite, but, under all the circumstances of the ease, I will not disturb the' commissioner’s recommendation. The award is $19,999.

Matthew Leibold, Deceased. No body identified as that of Leibold was ever recovered. There is no reason for believing that any such man was on board the Linseed King, beyond the testimony of the claimant, his alleged widow, who says that early oh the morning of December 29, 1926, Leibold left home with the remark that he was going over to the Linseed King. It was shown that Leibold could not possibly have caught the boat if he had left home at the time set by the claimant. It was also shown that the claimant was then living with a Filipino called Pages, and that she herself went under the name of Pages. No one by the name of Leibold lived with her or was known to the other tenants in, the house. Other evidence wholly at variance with the claimant’s story was received. The claim is a fabrication, and the commissioner’s refusal to recommend an award was right.

Andrew S. Murphy, Deceased The decedent was survived by a widow and son, but the widow died two years after the accident. It is hard to glean from the record any definite data as to Murphy’s past earnings or future prospects. In view of all the circumstances, I believe that the damages in this case amount to $7,999, rather than $5,999 as recommended. The award will be $7,999.

Alfred Roberts, Deceased. I have already indicated the reasons for my conclusion that this claim is cognizable in admiralty, despite the fact that Roberts was an employee and lost his life in an accident arising out of and in the course of employment. He was survived by a widow and small daughter. The commissioner fixed the damages at $14,999.

I am of the view that this amount is inadequate. Roberts was thirty years old. He had had a better education than the average of the men lost in this disaster. He had been a noncommissioned officer in the army, which tends somewhat to show that he possessed qualities of leadership. The testimony taken at the trial before Judge Hazel, as well as the testimony before the commissioner, leads one to believe that Roberts was an intelligent, capable, and dependable man. His earnings, while not' large at the time of his death, had been steadily increasing, and I think that his chances of advancement in later years were good. The damages sustained were in my opinion $20,000, and the award will be for that sum.

Paul Saul, Deceased. The deceased was survived by a widow living in Europe. He was a seaman. The commissioner recommended $4,000. In view of his age, his contributions to his spouse, and other circumstances, I have concluded that the pecuniary loss was $6,000. The award will be $6,000.

Arthur Johnson, Deceased. In this case, the claimant called herself the widow of the deceased. She first testified to a ceremonial marriage in Virginia in 1922. When this story was proved untrue, she abandoned it and shifted to a common-law marriage. It was shown, however, that she had been ceremonially married to one Hendricks in 1910, and that this husband was apparently still living in 1926. Even if we forget this element, there is nothing to indicate a common-law marriage. The claimant told so many different stories that her entire testimony is unworthy of belief. It is doubtful whether the deceased even cohabited with her except at casual times. There is no foundation for this claim, and the commissioner was right in recommending dismissal.

George Sims, Deceased. This claim is likewise made in behalf of an alleged common-law wife. The deceased was also survived by his mother. He had no children.

The claimant, known as Geneva Sims, had been ceremonially married to one Neal in 1919 and had two children by him. Neal deserted her. She commenced living with Sims in 1922 or 1923, and began to use the name Sims. At this time she and Sims were living with her mother. A year or two later Neal died, and she claims that, when they heard of his death, Sims and she said to one another that from then on they would be husband and wife. They then moved to another house. Their cohabitation continued down to the time of Sims’ death. There was also testimony by several friends that Sims had introduced the claimant to them as his wife. The commissioner concluded that the alleged common-law marriage did not exist in this case.

I am of the opinion that the commissioner was right. The law does not look with favor upon the connection usually indicated by the expression. It is notorious that, after a man’s death, a woman frequently turns up as his “common-law wife” and seeks by fraud to gain a share of his estate. She may have been his mistress or she may not have borne even that relationship to him. It is therefore sound law and sound policy to scrutinize all such claims closely and to require strong proof in support of them.

“The validity of any alleged common-law marriage is always open to suspicion. Especially is doubt justified when one of the parties is dead. Clear, consistent, and convincing evidence is required to establish the fact.” Boyd v. Boyd, 252 N. Y. 422, 428, 169 N. E. 632, 634.

In this case the relationship was unquestionably meretricious at the outset; the husband of the claimant was still living. Under such conditions, there can be no marriage, even though cohabitation is continued after removal of the impediment, unless there is unequivocal proof of a change in the status of the parties. Hill v. Vrooman, 215 App. Div. 847, 213 N. Y. S. 256; Id., 242 N. Y. 549, 152 N. E. 421; Collins v. Voorhees, 47 N. J. Eq. 555, 22 A. 1054. The ease is at best a doubtful one, which means that the conclusion of the original trier of the fact, who had the witnesses before him, should not be disturbed. Boyd v. Boyd, supra.

I confirm the commissioner’s recommendation that Geneva Sims should receive' no award. The commissioner recommended that $2,500 be awarded for the mother, Amy Sims. In my opinion, the damages sustained by the mother were $4,000, and an award in this amount for the benefit of the mother will be made.

Joseph Claudius Viscay, Deceased. Two claims have been filed to recover for the death of Viscay. The first is by Rose Viscay or Rose Jones, who asserts that she is the common-law wife; the second is by one Rock-wood in behalf of Edmun'd Viscay, a son of the deceased by another woman,

The commissioner found against Rose Viscay. I have read the testimony with care, and have reached the same conclusion. It seems that she did cohabit with Viscay for over a year. But it was shown that Viscay had had similar affairs with at least two other women, and that Rose had a somewhat similar career. She vigorously denied the charges against her, but the commissioner, who had the advantage of seeing and hearing the witnesses, did not believe her. She stated several times that she had never been married to any one, and went so far once as to say that she did not believe in matrimony. The relationship was undoubtedly meretricious at first and remained so throughout. Neither party considered the connection a permanent one.

As to the alleged son, Edmund Viscay, the commissioner was inclined to find against him, but left the matter open for further proof. The claim is that this boy is the child of the deceased and Emily Rockwood, his common-law wife. The boy was born in 1917. Emily Rockwood was ceremonially married to one Cain in 1916. In view of this, it is difficult to see how the boy could be the legitimate son of Viseay. I am of opinion that the association between Viseay and Emily Rockwood was of the same character as his later association with Rose Jones. The proof is quite clear on the point. The application to take further testimony is denied and the claim is dismissed.

John Brennan, Deceased. John Brennan was a seaman. There is doubt whether he lost his life on the Linseed King. The commissioner resolved the doubt against the petitioner, and I concur with' him that the body identified as that of Thomas Brennan was in fact that of John Brennan. Brennan was single; his. next of kin being his father and mother living in Ireland. His employment was sporadic, and his contributions to his parents varied according to his job. The commissioner recommended an award of $3,000. After a careful study of the testimony, I have concluded that $4,000 represents the pecuniary loss to the mother, and the award will be for such sum.

Thomas Anthony Connolly, Deceased. The death of this man is undisputed. He lived with his mother and brother in New York City and contributed toward his mother’s support. He was twenty-eight years old, unmarried. He had no regular occupation, and worked wherever he could find a job. The commissioner’recommended an award of $2,500. I believe that this amount is too small, and find the damages to be $5,000. Funeral expenses of $482 were proved. I will allow $275 for funeral expenses, making the total award $5,275.

Joseph Dobransky, Deceased. The body of this man was found on the launch. He was unmarried, and was survived by an aged mother living in Poland and eight grown brothers and sisters. The mother claims that he sent about $100 a year to her. Under all the circumstances, the contributions made to the mother, and her short expectancy of life, the amount recommended, $2,000 for the mother, seems fair. To it will be added the sum of $250 as funeral expenses, making the total award $2,250.

William Graham, Deceased. This claim is filed by a second cousin. There is nothing to show that Graham is dead or that he was on the Linseed King. Nor is there anything to show that he had ever contributed to the support of his second cousin, the claimant. There is no reason to believe that he would ever have given her anything. The commissioner’s recommendation of dismissal- is confirmed.

Samuel Griffith, Deceased. The body of this man was never found. His name does not appear on any records of the petitioner as an employee or prospective employee. The proof as to his death rests upon the testimony of two survivors who say they saw him on the launch, together with the statement that he has never been seen since. These two witnesses appear to have been believed by the commissioner. There is nothing improbable in their testimony, and it seems to me that the death of Griffith was satisfactorily proved. The next of kin were a father and mother living in Barbadoes. The deceased seems to have sent money to them, although the amounts do not appear. I will confirm the recommendation of the commissioner and make an award of $2,000.

John Hartman, Deceased. The death was clearly established. 'The deceased was survived by his mother, brothers, and sisters. His mother was supported in part by his contributions, and is sixty-one years of age. I have concluded that the damages sustained by the mother were $5,000, rather than $2,500 recommended by the commissioner. The funeral bill up to $275 will be allowed, and the total award will be $5,275.

James Heap, Deceased. This young man was survived by a father and mother living in England. He had been á steward on passenger ships, but was unemployed at the time. The pecuniary loss seems to have been reasonably estimated by the' commissioner at $4,000, and this amount will be awarded as damages.

Harry Jackson, Deceased. The claim is by Julia Jackson, a sister of the deceased. There is no clear proof that any such person lost his life on the Linseed King. His body was never recovered, and the petitioner has no record of his having applied for a job. The only evidence connecting him with the disaster is the testimony of the claimant, who says he left home on the morning in question in answer to the petitioner’s advertisement for help, and the testimony of a friend who claims to have accompanied him to the pier. The claimant also says that she identified a hat at the police station as belonging to her brother. The story told by the friend is so incredible, and the claimant herself was so thoroughly discredited, that no faith can be put on their testimony. As to the amount of the damages, the claimant told a tale of her brother earning large sums and showering her with money in the most lavish manner, despite the fact that on her own story he was seeking a job with the petitioner as an unskilled laborer at forty-eight cents an hour. She testified repeatedly that her husband had died in 1917 and stuck to her story until she was confronted by her deceased husband in court. She then was obliged to admit that she had known him to be alive all along and that she had recently been in touch with him. It is only fair to the husband to state that he was in no way cognizant of the claimant’s attempted fraud. The commissioner recommended an award of $1,000. There is no credible proof in the case, and no award will be made to this claimant.

John W. Kakos, Deceased. The body of a white man was found floating in the Hudson about three months after the accident. In one of his pockets there was a clock-check issued by the petitioner, No. 3113. The petitioner’s records show that this cheek had been given to a man who called himself William Kenny and who had applied for work two or three days before December 20th. The issue is whether Kakos and Kenny were the same man. The commissioner reached the conclusion that they were the same, and recommended an award of $4,000 to Kakos’ father. If the testimony of the father is to be believed, there is a sufficient basis for the commissioner’s finding. The father testified that his son used both names and that he had received a letter from his son a day or so before the accident to the effect that he had obtained a job with the petitioner. Immediately after the body was found and the name of Kenny was connected with it, the police notified Kakos’ brother, which tends to show that the Kakos family had asked the police for information as to Kenny before they could have known that the corpse was that of a man passing as Kenny. This is corroborative of the father’s story, and tends to clear the case of any suspicious atmosphere. There was testimony offered by the petitioner looking the other way. The issue is a close one, but, on the entire case, I am of the opinion that the claimant has established by a preponderance of proof that the body taken from the river was that of his son, John W. Kakos. I am fortified in this opinion by the views of the commissioner, who saw the father on the witness stand, had an opportunity to consider his demeanor, and evidently believed his testimony. The amount of damages recommended is $4,000. In my opinion, the amount should be $5,000. Funeral expenses, to the amount of $275, will also be allowed, and the total award will be $5,275.

Anthony Warren McGoldrick, Deceased!. The death of this man is established by the fact that his body was found on the launch-He left a mother, with whom he lived, as well as four brothers and four sisters. All but two of the brothers and sisters were of full age He was in the twenties, and was apparently an unskilled laborer. On the entire ease, I believe that the award recommended, $4,-000, is somewhat inadequate, and that the amount should be $5,000. Funeral,expenses not to exceed $275 are also a proper item of damage, making the total award in this case $5,275.

Marcus Gonzales Navas, Deceased. The death of this man is undisputed. The only issue relates to the damages. The commissioner recommended $2,500. Navas was survived by two sisters who lived here with him» Their testimony is to the effect that they had been supported by their brother, who had turned over his entire wages to them, and' that since his death they had been obliged to get work. It appears, however, that these two sisters had! entered the United States only two months before the accident, and had then declared that they were able to earn their own livelihood. It is to be presumed that they would have been working at the time of their brother’s death but for the fact of their recent arrival here. The brother had been earning something over $30 a week for several months prior to the accident, and was apparently an unskilled laborer. I believe that the amount recommended will not fully recompense the sisters for their pecuniary loss, and find that such loss is $4,000. The award in this case will be $4,000.

Bert Ramsland, Deceased. Ramsland was one of the men who had applied for work prior to the accident. A body identified as his was taken from the river three months later. There is no direct evidence that he was lost in the Linseed King, but, in my opinion, the circumstantial proof of that fact is convincing. He was survived by two brothers and a sister, all adults. He did not contribute to their support to any extent, and none of them had seen him in years. No dependency was proved. In view of these facts, the amount set by the commissioner, $1,500, seems proper, to which will be added the amount paid for the funeral, up to $275. The award will therefore be $1,775.

Darnelly Barker. This case, as well as the eases discussed hereafter, involves a survivor of the accident and is for personal injuries. Barker was an employee of the petitioner, but from the testimony appears to .have been working as a longshoreman. His case is therefore properly before this court. The amount recommended -by the commissioner, $1,000, is fair compensation for the injuries, and will be the amount of the award.

Carl Bremer. Bremer was seeking employment; He undoubtedly suffered from immersion and exposure, but no permanent injuries or diminution of earning capacity are shown. The amount recommended, $500, is fair and reasonable.

'James P. Campbell. Campbell boarded the boat in response to the petitioner’s advertisement. In addition to exposure and tonsilitis, he sustained a cut on the hand from smashing a window in his escape from the cabin. His earning capacity has not been impaired. The amount recommended, $500, is proper, and will be the award.

Frank Charles. This claimant asserted that the accident had left him in a nervous condition. The commissioner found, however, that there was no substance to the claim, judging from the man’s appearance and conduct as a witness, and concluded that the injuries incurred were only temporary. From a reading of the record, I think .that the commissioner’s conclusions were sound, and that the figure specified by him, $500, is adequate.

Aaron Cooper. This claimant, a nonemployee, also set up permanent injuries. The issue as to whether there were permanent injuries is one of fact, and was resolved by the commissioner against the claimant. The amount set forth in the report, $500’, is approved.

Harry Cold. The claimant alleged and attempted to prove permanent injury to his nervous system. The weight of evidence is to the contrary. The commissioner’s award of $750 to eover the temporary disability is approved.

WiUiam lee. This claimant suffered from exposure, and was laid up for one week. Several. weeks later he contracted pneumonia The proof tends to show that the pneumonia was not traceable to the accident. The recommended award of $500 will stand.

Frederick Ludwig. This claimant testified to injuries of a permanent sort and to large earnings prior to the accident as contrasted with more modest wages since. The claimant has no just grievance over the figure recommended, $1,000, and it will be confirmed.

Padro Mitchell. Mitchell is undoubtedly in poor physical condition at the present time. The evidence, practically undisputed, shows that his ailments are due to syphilis contracted prior to the accident and apparently not aggravated by it. The case is therefore one of temporary disability, so far as the petitioner’s liability is concerned. The claim.ant received $255.50 from the petitioner and signed a release. The commissioner doubted whether Mitchell fully understood the effect of the release, and. recommended an award of $300 in addition. Mitchell has no fair grievance with the result, and the commissioner’s action is approved.

Kenneth Norgrove. Norgrove was not listed by the petitioner as an employee. He testified that he had been employed previous to the accident. However that may be, his work had been unloading ships, and therefore the Compensation Act has no application. His injuries were not permanent. The amount fixed by the commissioner, $500, is reasonable, and is approved.

Robert L. Proven. This claimant was a ship steward temporarily out of employment. He suffered from exposure and from cuts on the arms and legs. The commissioner found $500 to be fair compensation, and the award will be for this amount.

John Joseph Sullivan. In addition to temporary disabilities, this claimant claims injuries of a more permanent nature. Numbness of hands and sleeplessness are said to have resulted from the accident. The commissioner found, however, that there had been no real impairment of earning capacity. The issue was purely one of fact, and the decision of the commissioner on that issue was not without evidence to sustain it. The amount recommended, $500, will stand as the award.

The judgment will be settled upon five days’ notice.


author: BOURQUIN, District Judge.

text:
    SCHEER v. MOODY, and nine other cases.
    Nos. 527, 795-800, 804, 902, 903.
    District Court, D. Montana.
    March 9, 1931.

      Thomas N. Marlowe, of Missoula, Mont., for plaintiff in Case No. 527.
    E. E. Hershey and H. H. Parsons, both of Missoula, Mont., for plaintiffs in other cases.
    Wellington D. Rankin, U. S. Atty., and Howard A. Johnson, Asst. U. S. Atty., both of Helena, Mont., and Benj. P. Harwood, Irr. Dist. Counsel, of Billings, Mont., for defendant.
   BOURQUIN, District Judge.

These ten suits present like issues and are tried virtually as one. The pleadings are far from models, the answers scandalously verbose, but from them, opening statements, course of the trial, evidence, and arguments, the issues tried are as follows :

Plaintiffs are successors of allottees of lands of the Flathead Indian Reservation, to irrigate them claim private ditches and water rights, and also right to water from said project free from any its cost of construction. Defendant is manager of said project, denies the private rights, but concedes that of water from the project, provided charges assessed for construction be paid, obstructs the use of private ditches and water, assesses charges, interposes that his acts are in behalf of the United States and he immune from these suits, .and that limitations have run even in favor of the United States against its wards, plaintiffs’ predecessors in title.

The relief sought is injunction against defendant’s interference and assessments, and that plaintiffs’ titles be cleared and confirmed. •

The defense is by government counsel, the district attorney also appearing as amicus curia, but abandoning that character, he is active in behalf of the defendant.

Some of “history” and of “policy” to which the parties appeal are material, and all, interesting — parts of the humiliating record of our oppression, expropriation, dispersion, and destruction of the Indian nations which formerly exercised dominion over all this broad land. To recall no more than necessary, however, for time immemorial and in 1855, the Flathead and other Indians, many, many thousands, free, content, and happy, were natural owners, occupants, and overlords of all the vast domain west of the Continental Divide and within what is now Montana. Rich and lovely as that region was and is, as always, it excited white avarice and intrigue to oust the red; as always, the alibi, uplift, and civilization. Thereupon was invoked the established policy, “buy when you can, — cheap, fight when you must,” and in behalf of the United States Isaac I. Stevens negotiated a “treaty” with some eighteen Indians styled “chiefs, headmen, and delegates of the confederated tribes.” 12 Stat. 975.

To promote a favorable atmosphere, Stevens gave to the few Indians assembled a small quantity of brilliant beads, gaudy calicoes, and other gewgaws of the “trade goods” of the time, and to insure the chiefs’ complacency promised each of them $500 yearly for 20 years, house, furniture, and garden. And for the Indian thousands were to be expended, $120,000 apportioned over a series of years.

In consideration thereof the delegates, like another Esau, assumed to convey to the United States all this extensive empire, their tribal birthright, save about one-eighth reserved for continued use by the Indians, cribbed, cabined, and confined. Natural advantages and intrinsic values taken into account, the deal cast into the shade Manhattan’s famous bargain. This treaty and reservation had many counterparts the country over, and even as Ahab the vineyard of Na-both, the whites exceedingly coveted these fragments of Indian empire. Their appetite grew by what it fed upon. Accordingly, and as always, the indefatigable lobby besieged Congress, which as often capitulated, with sequel® as follows: Our Indian policy had so far attained its objective by 1871, that it was enacted (16 Stat. 566) that the independence of Indian nations would no longer be recognized, and their right to treaty was repudiated.

The Act of Feb. 8, 1887 (24 Stat. 388), authorized the President to compulsorily allot limited acreage of reservations to individual Indians, to whom, after a trust period, would issue patent in fee “free of all charge or incumbrance whatsoever,” (section 5 [25 USCA § 348]), and to negotiate the purchase of the excess lands; and likewise the Secretary of the Interior to prescribe rules for just distribution to Indians of water for irrigation. The care-free rovers of forests and plains were perforce to be transformed into toiling agriculturists, and yielding to the inevitable, these unfortunate peoples sought to accommodate themselves to bureaucratic fashioning. Even prior to the Act of 1887 as well as thereafter, the Indians constructed ditches and applied water to the land, on this reservation as on others.

In 1904 the President having failed to act, but not so the lobby, it was enacted (33 Stat. 302) that these lands be allotted in accordance with the Act of 1887, and the excess lands sold at prices fixed by a commission of five, two of whom would be of “tribal relations” though not necessarily Indians, and the proceeds devoted (1) to pay expenses, (2) one half any excess to be expended for, irrigation ditches etc. for the Indians, and (3) the other half to be held by the United States as trustee until to the Indians delivered. By amendment in 1906 (34 Stat. 355), the Act of 1904 was not to be taken to deprive any Indian “of the use of water appropriated and used” by him, or of any ditch by him constructed.

In 1908 the rather state socialistic policy of governmental irrigation of private as well as public lands, initiated in 1902 (32 Stat. 388), had not yet demonstrated its startling possibilities [see Donohoe’s Case (D. C.) 33 F.(2d) 362], and the ambition other desert worlds to conquer inspired an Act of May 29, 1908 (35 Stat. 450) amending the Act of 1904 and providing for the project in suit to irrigate white as well as Indian lands, the cost to be paid with proceeds of sales of excess lands and including the trust fund created by the Act óf 1904, the purchasers of excess lands to some time pay a due proportion of the cost, but Indians to have right to water without costs for construction, and likewise any of their vendees during the trust period, to the time of purchase.

Later in 1908 all the lands in suit were allotted to Indians, trust patents issued, and thereafter fee patents and conveyances to plaintiffs. At the time of allotment and thereafter, but prior to subsequent legislation wherein the,government sought to renege in respect to assumed overliberal provision for irrigation water for Indians, the allottees had constructed ditches to and upon these lands, and in their irrigation had appropriated and used the waters claimed by plaintiffs, with the secretary’s sanction and aid; and therein they and their vendees continued without question of their right and title until defendant’s interference in 1917, from which time he required that they, as some perforce did, apply to him and pay for water.

In 1909 construction began and yet continues in. fashion of governmental business ventures, promises indefinite if not permanent prolongation, and the cost or that charged at least is $65 per acre, the limit unless landowners consent to more, to be reimbursed to the government over á period of 65 years, without interest, equivalent to presént cancellation of 75 per cent, of the principal of the debt.

Incidentally, although this irrigation adventure is one aspect of that state socialism which, like it or not, is the trend of the times* none the less the West having profited, however much it abuses sound principles and costs government (and that’s a plenty), are human enough to rejoice in its local benefits and to hope even more of the landowners’ debt be canceled, at least before are any more of the European debts.

By 1914 was a sorrowful awakening to the fact that the proceeds of excess lands were woefully inadequate to liquidate surprisingly mounting expenditures upon this project* and this inspired the act of that year (38 Stat. 583) providing that not tribal funds but the public treasury would bear the burden, and Indians too would pay for' construction costs to be assessed against them,, in proportion to benefits by them received. In natural course followed the Act of 1916 (39 Stat. 140, 141), which not only assesses construction costs against the lands of Indians, but provides that purchasers during the trust period would be exempt from only so much of construction costs as had “accrued” and was due in accordance with notice by the secretary — a wide opening for strategy.

For some 20 years defendant was manager of the project and until 1917 refrained from interference with these private water rights, in their exercise even permitting use of the project ditches which conflicted with the private ditches. In respect to all plaintiffs save one, defendant assesses costs of construction." Some of the fee patents declare liens for said costs, and some issued to allottees’ vendees on condition they pay all assessments therefor.

The trust period by the Act of 1887 was fixed at 25 years. For those desirous to acquire the choicest of the lands allotted to 'Indians, this was altogether too long; and covetousness again inspired an act, that of 1906 (34 Stat. 182 [25 USCA § 349]), authorizing the secretary forthwith to issue fee patent when “satisfied” <Sf the Indian’s ability to manage his own affairs, whereupon alienation is unrestricted. Even as the reasons, the effects are obvious, and it is surprising how fast the Indians develop that ability or at least interested parties satisfy the secretary they have; for they are being rapidly separated from their lands, and however necessary to better the record and save the face of reservation projects, the erstwhile Indian owners are hopelessly east adrift on a strange competitive sea which threatens their wreck upon the reefs of pauperism— the evil climax of a worse policy applied to a dependent and unhappy people.

Upon this project, however, the land allotted to the Indian to-day may be sold by him to-morrow, the secretary consenting, whether or not' the allottee possess the ability aforesaid, which accentuates the evil. The plaintiffs are purchasers of allotted lands, and in the main stand in the shoes of their Indian predecessors in title. Of little value without water for irrigation, the worth of the lands is greatly enhanced by a sufficient supply of that essential commodity, which in general is one inch per acre.

It thus appears plaintiffs claim two water rights: First, private ditches and water free from project control and charges; second, project water without cost save for maintenance and operation. In either case, any such right is limited to water in equality with all other like users and to the extent reasonably necessary. Whether resort be had. to' one or both rights, the limit of use is ■reasonable necessity.. Adverting to the claim .of private ditches and water rights, if established, defendant has no control over them, and his interference with plaintiffs’ enjoyment of them is mere trespass for which he must personally account and for which his employment is no defense. Unless justified by some constitutional statute, a governmental'officer or employee acts at his peril and personally pays for his wrongs — a salutary principle necessary to discourage abuse of power, that, official power which the great iVTarshalf deplared would be abused wherever authority was reposed. And suits against any such trespasser are not against the government, these suits, not against the United States. Rather do they serve the United States to discipline its derelict agent whose excesses tend to defeat its obligations and to bring it into disrepute. See Sloan v. Corp., 258 U. S. 566, 42 S. Ct. 386, 66 L. Ed. 762; U. S. v. Lee, 106 U. S. 220, 1 S. Ct. 240, 27 L. Ed. 171; Philadelphia v. Stimson, 223 U. S. 620, 32 S. Ct. 340, 56 L. Ed. 570; Stanley v. Schawlby, 147 U. S. 518, 13 S. Ct. 418, 37 L. Ed. 259; Magruder v. Belle Fourche Valley Water Users’ Ass’n (C. C. A.) 219 F. 72,' 78. Whether by reason of contracts involved the plaintiffs might sue the United States, or the latter intervene, is not before the court.

That these ditches and water rights are private property is clear. The ditches were built by and for Indians and for the lands in suit, and the water by these ditches conveyed was upon these lands used. Thus appropriated, ditches and water rights became appurtenant to the Indians’ allotments, and like the allotments themselves, their property in severalty. And as such, they could as they did convey them to plaintiffs. Not only did necessity, custom, and usage of the country, applicable to Indians as to whites, sanction these appropriations, but the statute of 1887 authorized them, and the statute of 1906 recognized and confirmed the Indians’ titles were that necessary.

To whatever extent the United States expended money in construction of these particular ditches, it was of the ordinary appropriations in support of a people whose original sources of livelihood had by government been appropriated, and whether to pay a debt, or to appease uneasy conscience, was not to be reimbursed. It was an executed gift at least, and as such, never questioned, until the present attempt to impose this gift of near 40 years ago as part of the construction costs of the project and in part assessed against these very plaintiffs though their right to the ditches is denied. But that too might better the appearances of the project’s finances.

Though the character of the money so expended be immaterial, it is worthy of note that plaintiffs’ requests for certified copies of departmental records to disclose its sources were denied unless the court would certify needed. This, the court refused to do, adhering to Carson’s Case (D. C.) 14 F.(2d) 559, and declining to sanction abuse and flatter the ego of power. Significantly enough, without any such certificate the defendant at trial turned up in possession of all thereof assumed necessary to serve his defense.

The employee of the United States is given an unfair advantage over plaintiffs. And yet it is a fundamental principle that in court and before the law all are equal, the humblest with the greatest or even with government itself. That this is more observed in theory than in practice, however, was declared by Cato some 2,000 years ago, and of frequent advertence as a modem instance now historical, are the notorious “whispering wires” or Olmstead Cases (see 276 U. S. 609, 48 S. Ct. 207, 72 L. Ed. 729; 277 U. S. 438, 48 S. Ct. 564, 72 L. Ed. 944, 66 A. L. R. 376), wherein the humble petitions for review of individuals deprived of liberty were twice denied, but later granted — it is said at the instance of the telephone corporation in behalf of its property assumed to be involved; and, believe it or not, the review was strictly limited to the telephone issue.

Immaterial is it also whether or not the allottees’ appropriation of the waters was pursuant to rules by the secretary prescribed as authorized by the Act of 1887 aforesaid. The statute vests discretion in the secretary, is not mandatory, and is intended to restrict the recognized right of appropriation only so far as in the judgment of the secretary its exercise in absence of controlling rules would work injustice. Rules or not, the Indians’ necessities were as great, their right to appropriate water no less, save to the extent exercised inequitably. And as before noted, the Indians’ appropriations of water were known to, sanctioned by, and acquiesced in by the secretary, more effective than any of his rules and for which he perceived no necessity.

In the matter of project water, the treaty assured to the Indians right of occupancy of the reservation forever. Congress, however, in disregard of the treaty, and by the Act of 1904 as amended by that of 1908, arbitrarily allotted to them portions of the reserved lands and deprived them of the excess. By way of consolation, if not compensation, Congress agreed to construct an irrigation system with, proceeds of the excess lands, from which the Indian allottees would have right to water necessary to irrigate, their allotted lands “without cost for construction,” and their vendees during the trust period, like use without costs “incurred up to' the time of purchase.” It is obvious that this exemption was not a pure gratuity, for construction was to be paid from tribal funds.

Nevertheless it created valuable rights in behalf of Indians and their vendees, assuring the Indian a home' capabte of supporting him, without any personal liability, or lien on his land, and potentially of greatly increased sales value. This right is prop-. erty, within the protection of the Fifth Amendment, and beyond impairment by the Acts of 1914 and 1916 which assume to destroy it. It will not do to say that the Indians paying the cost of the project in any event, the later legislation is merely an administrative change in the Indians’ funds made liable. For a tribal liability is as distinct from an individual liability and lien, as night from day. Congress controls the former but cannot the latter. Granting that the project could have been abandoned without completion when tribal funds were dissipated and failed, it is clear it could not proceed in divestiture of the rights aforesaid, the Indians “improved” out of their homes, crushed by an enormous debt imposed upon them individually and upon- their lands held in severalty. See Choate v. Trapp, 224 U. S. 665, 32 S. Ct. 565, 56 L. Ed. 941.

An allotment made and “trust, patent” issued, the latter equivalent to a receiver’s receipt, the right to water attached, the Indian is vested with the equitable title to the land and water right, the United States holds the land in trust for him to convey to him the fee clear of all charges and incumbrances when the trust period has expired. And although as guardián and administrator the United States may legislate to meet changed conditions affecting allotments, its authority does not extend to violate any fundamental' right of allottees therein, to impair vested property rights without due process. See U. S. v. Rickert, 188 U. S. 436, 23 S. Ct. 478, 47 L. Ed. 532; U. S. v. Rowell, 243 U. S. 469, 470, 37 S. Ct. 425, 61 L. Ed. 848; Duncan v. Lane, 245 U. S. 310, 38 S. Ct. 99, 62 L. Ed. 309; U. S. v. Jackson, 280 U. S. 191, 50 S. Ct. 143, 74 L. Ed. 361. So that, however the project is completed, the Indian allottees are entitled to water “without cost, for construction,” as the statute of 1908 granted to them, and likewise their vendees save as hereinafter indicated.

There is no warrant for claim of lien in and by the patents. No statute authorizes it. It-is a nullity. That some of plaintiffs agreed to pay the liens and assessments thus reserved does not estop them to’, dispute their validity. For the instruments, containing the covenant, read as always in. the light of the law, disclose the truth that in fact and law the lands are not subject to : any such charge. In so far, however, as Congress imposed conditions upon the purchase of the Indian allotments, they are valid. It can restrict alienation, forbid it altogether, and so can attach reasonable conditions which the vendee must perform.

Hence, to the extent that allotted lands are benefited by the project system, purchasers thereof during the trust period and prior to the act of 1916 are liable for costs of construction save those “incurred up to the time of such purchase,” as provided by the act of 1908, and, like purchasers during said period but subsequent to the act of 1916, are liable for such costs save those which at purchase had “accrued and become due in accordance with the public notices,” as provided in the said act of 1916. And assessments therefor can rightfully be made by defendant against any such purchaser. No doubt the liability was taken into account in fixing the purchase price paid, and though it impaired the sales value and the Indian’s constitutional right, and whether or not the government will account for it to the Indian whose returns were thus diminished, are no concern of the purchaser.

In the matter of limitations, it is a defense as mean as it is invalid, so far as urged in behalf of the United States against its Indian wards, plaintiffs’ predecessors in title. After the allottees’ titles passed to persons not wards of the government,, the owners were subject thereto. Respecting the private ditches and water rights, the proof fails to establish that for 10 years continuously after the title to the allotted lands, to which they were appurtenant, passed from Indian wards to plaintiffs or other persons not wards, and before these suits commenced, (1) any owners of the lands had continuous need of and desired to use any particular amount of said waters upon the land; (2) any their use' thereof was continuously prevented by defendant; (3) at the same time the said water by defendant continuously applied to beneficial use. That plaintiffs sometimes needed .and desired to use some water for some of the land is not enough; that defendant sometimes denied plaintiffs’ right, claimed for his employer, sometimes, some part obstructed, is not enough; that he for ten years continuously and completely prevented plaintiffs’ need and desire for all the water would not be enough. For the only right and title to water is necessary and beneficial use, and there is no possession of it which will transfer right and title to one -Claiming adversely, save like necessary and beneficial use duly exercised. In its absence, denials, claims, obstruction of ditches, diversion of the water to useless onward flow, and the like, are mere trespasses without effect upon right or title. Likewise in the matter of plaintiffs’ right to project water, the proof of limitations fails. In fact, their right thereto has never been denied though seldom exercised. That sometimes defendant included construction costs other than those' to which purchasers are liable as hereinbefore noted, in bills to plaintiffs, also to Indians who are liable to none, goes for nothing save illustration of official lawlessness, harassment, victimization, and oppression of a necessitous people. In view of the premises, further consideration with reference to particular cases can be brief.

In No. 527, it appears that in 1895 one McLeod and family of the Flatheads occupied 400 acres of the reservation lands for allotments subsequently made, and then timely constructed ditches and used and so appropriated for irrigation, 400 inches of the waters of Crow creek. After fee patent issued and in 1918, one of the allottees thereof sold and conveyed the 40 acres and appurtenant water right involved, to plaintiff.

There is no real conflict in the evidence that before project initiated, 35 of these 40 acres were susceptible of and were irrigated from McLeod’s* ditch. That in 1914 government agents observed no ditches upon the land is consistent with prior thorough irrigation. In farming, perhaps irrigating by flooding, any small distributing ditches have little permanency and tend to soon disappear. Recently a local irrigation district has contracted with the United States that it will assess and collect all costs of the project by the Secretary computed.

Accordingly, the only relief due is injunction in respect (1) to the private ditch and water to the extent of 35 inches beneficially used by plaintiff, (2) to beneficial use of project water required, and (3) costs. A purchaser subsequent to fee patent, Congress imposed no costs of construction, and so, plaintiff is liable for none. The reason no costs on such purchasers is that Congress had in mind a trust period of 25 years, and a project completed and paid for before lapse of that time. It totally forgot that a too easily satisfied secretary might cut short the period; it wholly failed to foresee the success with which government projects of the kind can be well-nigh interminably drawn out; and it overlooked the “joker” in the Act of 1908 which sanctions immediate sale by allottees, regardless of any trust period.

In Nos. 795, 796, 799, 800, and 902, in the early 1890’s the Indians in occupancy of the lands for allotments in 1908 made, constructed, and maintained a ditch from Finley creek which carried its waters in sufficient quantity to irrigate the lands and which were so used as desired until defendant’s interference in 1917. Some years prior to 1917 the project ditch was-for some 1,000 feet substituted for the Indians’ ditch to that extent filled by the former.' That the lands needed the conventional inch per acre and were supplied therewith, save 40 acres in No. 799, is clearly proven. Indeed, defendant’s evidence includes the findings of a “commission” of 1914 that these lands were so irrigated.

In different years, from 1911 to 1929, the allottees parted with title, in part before fee patent issued, in part after, and then or thereafter plaintiffs acquired them. This ditch supplied other allotments, but defendant a trespasser unconnected with their titles, no consideration need be given to the point by him urged that the evidence does not disclose how much water would be available for plaintiffs, did the others aforesaid require any. In any event, against him, plaintiffs are entitled to nonmolestation to the full extent of their necessities; hence, to injunction restraining defendant from interference with use of the private ditch and water in amount aforesaid, with use of project water, from assessment of costs of project construction against them and their lands save as hereinbefore indicated, and costs.

In Nos. 797, 798, and 903, the ditch involved is out of the Jocko river, and was constructed in 1886 and shortly thereafter, to supply the needs of Indians then later settled below it upon lands including these in suit to the Indians allotted in 1908, and from whom plaintiffs deraign title. Before the initiation of the project in 1909, these lands required, and now do require, one inch of water per acre, and had been irrigated by the allottees as follows: No. 797, 26 acres of the Ursula McLeod allotment, 40 acres of the Caroline McLeod allotment, and 40 acres of the Louise Moise allotment; No. 798, 40 acres of the Catherine Finley allotment; and No. 903, 60 acres.

The evidence of Indian witnesses to events so many years ago is difficult, but is believed sufficient to establish at least so many acres thus irrigated from this old Indian ditch. This ditch, too, supplied other allotments; but, as before, the absence of evidence whether the use of its water upon these lands to the extent aforesaid infringes the rights of other allottees' owners therein, is of no avail to defendant.

Plaintiffs are entitled to relief as "in the five suits aforesaid.

In No. 804, the government recognizes the private right claimed to the extent of 50.4 acres of the 250 acres involved, and since as elsewhere its ditches incorporate or destroy the private ditches, from its ditches it delivers so much water to plaintiff. The allot-tees of these lands, plaintiff’s predecessors, had constructed ditches in the 80’s to convey the waters of Agency creek to irrigate some of the lands, and had also availed themselves of the Indian ditch from Finley creek mentioned in the five eases aforesaid. The evidence warrants the finding that before the inception of the project they had applied the waters from these ditches in necessary irrigation of one inch per acre, to 19 acres of the Mary Finley allotment, 20 acres of the Mary Michel allotment, and at least 34.2 acres of the White Coyote allotment. It would seem the ditches would carry more water, but the extent of the use is the measure of the right, when dilatory application has been interrupted by the government’s intervening appropriation as here.

Relief is awarded as in the five cases aforesaid.

Decrees accordingly.

Counsel will present brief findings of ultimate facts so far as in issue, and not mere - evidence.