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Moulor v. American Life Insurance Company/Opinion of the Court

Upon that trial the plaintiff offered to show, by the testimony of witnesses, that at a previous trial, in 1875, the company went to the jury upon the single issue of an alleged breach of warranty, and did not seek a verdict upon the ground that the insured had committed suicide. The offer was denied, and the action of the court thereon is assigned for error. The avowed object of the proof was to establish a waiver by the company of any defense founded upon that clause of the policy which declares that it shall be void in case the insured 'die by his own band.' Undoubtedly, it was competent for the company to waive that or any other defense arising out of the conditions of the policy; but clearly, its willingness, at one trial, to risk its case before the jury, upon a single one of several issues made, did not preclude it, at a subsequent trial, from insisting upon other defenses, involving the merits which had not been withdrawn of record or abandoned in pursuance of an agreement with the plaintiff.

After the evidence was closed, the plaintiff submitted to the court a series of instructions, 23 in number, and asked that the jury be charged as therein indicated. As to instructions 11, 12, and 19, no ruling was made, nor was an exception taken for the failure of the court to pass upon them. The twenty-third, relating to the before-mentioned waiver of defense, upon the ground of self-destruction, was rightly refused, because the evidence showed no such waiver. As to the remaining instructions, the court said, generally, that the propositions announced in them could not be affirmed, because they were either unsound or irrelevant. A general exception was taken to the 'answers' of the court to the application to charge the jury as indicated in plaintiff's points. That exception, however, was too vague and indefinite. Some of the instructions submitted might well have been given, while others were abstract, or did not embody a correct exposition of the law of the case. Those instructions, although separately numbered, seem to have been presented as one request, and the exception was general as to the action of the court in respect of them all. If it was intended to save an exception as to distinct propositions embodied in the instructions, the attention of the court should have been directed to the specific points concerning which it was supposed error had been committed. As some of the plaintiff's instructions were properly overruled, we ought not, under the general exception taken, to reverse the judgment merely because, in the series presented as one request, there were some which ought to have been given. Indianapolis, etc., R. Co. v. Horst, 93 U.S. 295; Rogers v. The Marshal, 1 Wall. 644; Harvey v. Tyler, 2 Wall. 338; Johnson v. Jones, 1 Black, 209; Beaver v. Taylor, 93 U.S. 46; Beckwith v. Bean, 98 U.S. 284.

But there were certain parts of the charge to which exceptions were taken in due form. The rulings, the correctness of which is questioned by the assignments of error, will be presently stated. It is necessary that we should first ascertain the precise nature of the case disclosed by the evidence.

The seventh question in the application for insurance required the insured to answer yes or no, as to whether he had ever been afflicted with any of the following diseases: Insanity, gout, rheumatism, palsy, scrofula, convulsions, dropsy, small-pox, yellow-fever, fistula, rupture, asthma, spitting of blood, consumption, and diseases of the lungs, throat, heart, and urinary organs. As to each the answer of the insured was, no.

The tenth question was: 'Has the party's father, mother, brothers, or sisters been afflicted with consumption or any other serious family disease, such as scrofula, insanity, etc.?' The answer was, 'No, not since childhood.'

The fourteenth question was: 'Is there any circumstance which renders an insurance on his life more than usually hazardous, such as place of residence, occupation, physical condition, family history, hereditary predispositions, constitutional infirmity, or other known cause, or any other circumstance or information with which the company ought to be made acquainted?' The answer was, no.

To the sixteenth question, 'Has the applicant reviwed the answers to the foregoing questions, and is it clearly understood and agreed that any untrue or fraudulent answers, or any suppression of facts in regard to health, habits, or circumstances, or neglect to pay the premium on or before the time it becomes due, will, according to the terms of the policy, vitiate the same and forfeit all payments made thereon?' the answer was, yes.

At the close of the series of questions, 19 in number, propounded to and answered by the applicant, are the following paragraphs:

'It is hereby declared and warranted that the above are fair and true answers to the foregoing questions; and it is acknowledged and agreed by the undersigned that this application shall form a part of the contract of insurance, and that if there be, in any of the answers herein made, any untrue or evasive statements, or any misrepresentation or concealment of facts, then any policy granted upon this application shall be null and void, and all payments made thereon shall be forfeited to the company.

'And it is further agreed that if at any time hereafter the company shall discover that any of said answers or statements are untrue or evasive, or that there has been any concealment of facts, then, and in every such case, the company may refuse to receive further premiums on any policy so granted upon this application, and said policy shall be null and void, and payments forfeited as aforesaid.'

The policy recites that the agreement of the company to pay the sum specified is 'in consideration of the representations made to them in the application,' and of the payment of the premium at the time specified; further, 'it is hereby declared and agreed that if the representations and answers made to this company, on the application for this policy, upon the full faith of which it is issued, shall be found to be untrue in any respect, or that there has been any concealment of facts, then and in every such case the policy shall be null and void.'

The main defense was that the insured had been afflicted with scrofula, asthma, and consumption prior to the making of his application, and that, in view of his statement that he had never been so afflicted, the policy was, by its terms, null and void. There was, undoubtedly, evidence tending to show that the insured had been afflicted with those diseases, or some of them, prior to his application; but there was also evidence tending to show not only that he was then in sound health, but that at the time of his application, he did not know or believe that he had ever been afficted with any of them in a sensible, appreciable form.

Referring to the seventh question in the application, the court-after observing that the answer thereto was untrue, and the policy avoided, if the insured had been, at any time, afflicted with either of the diseases last referred to-instructed the jury: 'It is of no consequence, in such case, whether he knew it to be untrue or not; he bound himself for its correctness, and agreed that the validity of his policy should depend upon its being so.' Again: 'That he, the insured, did not know he was then afflicted, is of no importance whatever, except as it may bear upon the question, was he afflicted? If he was, his answer (for the truth of which he bound himself) was untrue, and his knowledge, or absence of knowledge, on the subject, is of no consequence.' Further: 'You [the jury] must determine whether the insured was at any time afflicted with either of the diseases named. If he was, his answer, in this respect, was untrue, and, notwithstanding he may have ignorantly and honestly made it, the policy is void, and no recovery can be had upon it.' To so much of the charge as we have quoted the plaintiff excepted.

Assuming-as in view of the finding of the jury we must assume that the insured was, at the date of his application, or had been prior thereto, afflicted with the disease of scrofula, asthma, or consumption, the question arises whether the beneficiary may not recover, unless it appears that he had knowledge, or some reason to believe, when he applied for insurance, that he was or had been afflicted with either of those diseases. The circuit court plainly proceeded upon the ground that his knowledge or belief as to having been afflicted with the diseases specified, or of some one of them, was not an essential element in the contract; in other words, if the assured ever had, in fact, any one of the diseases mentioned in his answer to the seventh question, there could be no recovery, although the jury should find from the evidence that he acted in perfect good faith, and had no reason to suspect, much less to believe or know, that he had ever been so afficited. If, upon a reasonable interpretation, such was the contract, the duty of the court is to enforce it according to its terms; for the law does not forbid parties to a contract for life insurance to stipulate that its validity shall depend upon conditions or contingencies such as the court below decided were embodied in the policy in suit. The contracts involved in Jeffries v. ''Life Ins. Co.'' 22 Wall. 47, and ''AEtna Life Ins. Co. v. France, etc.'', 91 U.S. 510, were held to be of that kind. But, unless clearly demanded by the established rules governing the construction of written agreements, such an interpretation ought to be avoided. In the absence of explicit, unequivocal stipulations requiring such an interpretation, it should not be inferred that a person took a life policy with the distinct understanding that it should be void, and all premiums paid thereon forfeited, if at any time in the past, however remote, he was, whether conscious of the fact or not, afflicted with some one of the diseases mentioned in the question to which he was required to make a categorical answer. If those who organize and control life insurance companies wish to exact from the applicant, as a condition precendent to a valid contract, a guaranty against the existence of diseases, of the presence of which in his system he has and can have no knowledge, and which even skillful physicians are often unable, after the most careful examination, to detect, the terms of the contract to that effect must be so clear as to exclude any other conclusion.

In ''Nat. Bank v. Ins. Co.'' 95 U.S. 678,-which was a case of fire insurance, involving, among others, the question whether the statements as to the value of the property insured were warranties,-it was said: 'When a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant's statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligation of a warranty. The company cannot justly complain of such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself.' See, also, Grace v. ''American Ins. Co.'' 109 U.S. 282; S.C.. 3 SUP. CT. REP. 207.

These rules of interpretation, equally applicable in cases of life insurance, forbid the conclusion that the answers to the questions in the application constituted warranties, to be literally and exactly fulfilled, as distinguished from representations which must be substantially performed in all matters material to the risk; that is, in matters which are of the essence of the contract.

We have seen that the application contains a stipulation that it shall form a part of the contract of insurance; also, that the policy purports to have been issued upon the faith of the representations and answers in that application. Both instruments, therefore, may be examined to ascertain whether the contract furnishes a uniform, fixed rule of interpretation, and what was the intention of the parties. Taken together, it cannot be said that they have been so framed as to leave no room for construction. The mind does not rest firmly in the conviction that the parties stipulated for the literal truth of every statement made by the insured. There is, to say the least, ground for serious doubt as to whether the company intended to require, and the insured intended to promise, an exact, literal fulfillment of all the declarations embodied in the application. It is true that the word 'warranted' is in the application; and, although a contract might be so framed as to impose upon the insured the obligations of a strict warranty, without introducing into it that particular word, yet it is a fact, not without some significance, that that word was not carried forward into the policy, the terms of which control, when there is a conflict between its provisions and those of the application. The policy upon its face characterizes the statements of the insured as representations. Thus, we have one part of the contract apparently stipulating for a warranty, while another part describes the statements of the assured as representations. The doubt, as to the intention of the parties, must, according to the settled doctrines of the law of insurance, recognized in all the adjudged cases, be resolved against the party whose language it becomes necessary to interpret. The construction must, therefore, prevail which protects the insured against the obligations arising from a strict warranty.

But it is contended that if the answers of the assured are to be deemed representations only, the policy was, nevertheless, forfeited, if those representations were untrue in respect of any matters material to the risk. The argument is that if the insured was, at the time of his application, or had been at any former period of his life, seriously or in an appreciable sense, afflicted with scrofula, asthma, or consumption, his answer, without qualification, that he had never been so afflicted, being untrue, avoided the policy, without reference to any knowledge or belief he had upon the subject. The soundness of this proposition could not be disputed if, as assumed, the knowledge or good faith of the insured, as to the existence of such diseases, was, under the terms of the contract in suit, of no consequence whatever in determining the liability of the company. But is that assumption authorized by a proper interpretation of the two instruments constituting the contract? We think not.

Looking into the application, upon the faith of which the policy was issued and accepted, we find much justifying the conclusion that the company did not require the insured to do more, when applying for insurance, than observe the utmost good faith, and deal fairly and honestly with it, in respect of all material facts about which inquiry is made, and as to which he has or should be presumed to have knowledge or information. The applicant was required to answer yes or no as to whether he had been afflicted with certain diseases. In respect of some of those diseases, particularly consumption, and diseases of the lungs, heart, and other internal organs, common experience informs us that an individual may have them in active form, without, at the time, being conscious of the fact, and beyond the power of any one, however learned or skillful, to discover. Did the company expect, when requiring categorical answers as to the existence of diseases of that character, that the applicant should answer with absolute certainty about matters of which certainty could not possibly be predicated? Did it intend to put upon him the responsibility of knowing that which, perhaps, no one, however thoroughly trained in the study of human diseases, could possibly ascertain? We shall be aided in the solution of these inquiries by an examination of other questions propounded to the applicant. In that way we may ascertain what was in the minds of the parties.

Beyond doubt the phrase 'other known cause,' in the fourteenth question, serves the double purpose of interpreting and qualifying all that precedes it in the same clause or sentence. For instance, the applicant was not required to state all the circumstances within his recollection of his family history, but those only which rendered the proposed insurance more than usually hazardous, and of which he had personal knowledge or of which he had information fairly justifying a belief of their existence. If he omitted to state circumstances in his 'family history' of which he had no knowledge, nor any information deserving attention, that omission would not avoid the policy, although it subsequently appeared that those circumstances, if known to the company, would have shown that the proposed insurance was more than usually hazardous. Apart from other questions or clauses in the application, the tenth question would indicate that an incorrect or untrue answer as to whether the applicant's 'father, mother, brothers, or sisters had been affected with consumption, or any other serious family disease, such as scrofula, insanity, etc.,' would absolve the company from all liability. Yet, in the fourteenth question, the insured, being asked as to his family history and as to 'hereditary predispositions,'-an inquiry substantially covering some of the specific matters referred to in the tenth question,-was, as we have seen, only required to state such circumstances as were known to him, or of which he had information, and which rendered an insurance upon his life more than usually hazardous. So, in reference to that part of the fourteenth question relating to the then physical condition of the applicant. Suppose at the time of his application he had a disease of the lungs or heart, but was entirely unaware that he was so affected. In such a case he would have met all the requirements of that particular question, and acted in the utmost good faith, by answering no, thereby implying that he was aware of no circumstance in his then physical condition which rendered an insurance upon his life more than usually hazardous. And yet, according to the contention of the company, if he had, at any former period of his life, been afflicted with a disease of the heart or lungs, his positive answer to the seventh question, that he had not been so afflicted, was fatal to the contract; this, although the applicant had no knowledge or information of the existence at any time of such a disease in his system. So, also, in reference to the inquiry in the fourteenth question as to any 'constitutional infirmity' of the insured. If, in answering that question, he was required to disclose only such constitutional infirmities as were then known to him, or which he had reason to believe then existed, it would be unreasonable to infer that he was expected, in answer to a prior question, in the same policy, to guaranty absolutely, and as a condition precedent to any binding contract, that he had never, at any time, been afflicted with diseases of which, perhaps, he never had and could not have any knowledge whatever.

The entire argument in behalf of the company proceeds upon a too-literal interpretation of those clauses in the policy and application which declare the contract null and void if the answers of the insured to the questions propounded to him were, in any respect, untrue. What was meant by 'true' and 'untrue' answers? In one sense, that only is true which is conformable to the actual state of things. In that sense, a statement is untrue which does not express things exactly as they are. But in another and broader sense the word 'true' is often used as a synonym of honest, sincere, not fraudulent. Looking at all the clauses of the application, in connection with the policy, it is reasonably clear certainly the contrary cannot be confidently asserted-that what the company required of the applicant, as a condition precedent to any binding contract, was, that he would observe the utmost good faith towards it, and make full, direct, and honest answers to all questions, without evasion or fraud, and without suppression, * misrepresentation, or concealment of facts with which the company ought to be made acquainted; and that by so doing, and only by so doing, would he be deemed to have made 'fair and true answers.'

If it be said that an individual could not be afflicted with the diseases specified in the application, without being cognizant of the fact, the answer is that the jury would, in that case, have no serious difficulty in finding that he had failed to communicate to the company what he knew or should have known was material to the risk, and that, consequently, for the want of 'fair and true answers,' the policy was, by its terms, null and void. But, whether a disease is of such a character that its existence must have been known to the individual afflicted with it, and therefore whether an answer denying its existence was or not a fair and true answer, is a matter which should have been submitted to the jury. It was an erroneous construction of the contract to hold, as the court below did, that the company was relieved from liability if it appeared that the insured was, in fact, afflicted with the diseases, or any of them, mentioned in the charge of the court. The jury should have been instructed, so far as the matters here under examination are concerned, that the plaintiff was not precluded from recovering on the policy, unless it appeared from all the circumstances, including the nature of the diseases with which the insured was alleged to have been afflicted, that he knew, or had reason to believe, at the time of his application, that he was or had been so afflicted.

It results from what has been said that the judgment must be reversed with directions to set aside the verdict, and for further proceedings consistent with this opinion. It is so ordered.


text: Talk:Moulor v. American Life Insurance Company/Opinion of the Court

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United States v. Carpenter

Assistant Attorney-General Maury for appellant.

John B. Sanborn, for appellee.

FIELD, J.

title: United States v. Carpenter


text: Talk:United States v. Carpenter

title: Talk:United States v. Carpenter


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United States v. Carpenter/Opinion of the Court

This is a suit in equity, to vacate a patent of the United States issued to one August Cluensen, on the fifteenth of May, 1874, embracing a tract of land in the county of Pipestone, in the state of Minnesota, described as the south-westerly quarter of section one, (1,) in township one hundred and six, (106,) range forty-six (46) west of the fifth (5th) principal meridian, according to the government surveys. The ground of the suit is that by treaty between the United States and the Yankton tribe of Sioux or Dacotah Indians, ratified on the twenty-sixth of February, 1859, the tract, which embraces what is known as the Red Pipestone quarry, in that county, was reserved from sale or appropriation under any scrip or warrant of the government. The eighth article of the treaty stipulated that the Yankton Indians should be 'secured in the free and unrestricted use' of the quarry, or 'so much thereof as they have been accustomed to frequent and use for the purpose of procuring stone for pipes;' and the United States agreed to cause to be surveyed and marked so much thereof as should be 'necessary and proper for that purpose, and retain the same and keep it open and free for the Indians to visit and procure stone for pipes, so long as they shall desire.' Rev. Ind. Treaties, 860. The bill alleges that the tract described is a part of the Red Pipestone quarry mentioned in this article. In the execution of their agreement, the United States caused so much of the quarry as appeared to be necessary and proper for the purposes of the reservation provided for to be surveyed and marked. A diagram and the field-notes of the survey were duly returned, filed, and recorded in the general land-office, and in the office of the surveyor general of Minnesota. In February, 1860, copies of them were transmitted by the commissioner of the general land-office to the surveyor general of the United States for that state, with instructions 'to lay the same down' on the map of the state in his office, and to respect them, when the public surveys reached the locality, by closing their lines upon the reservation. At this time the land included in the reservaion was not surveyed; but afterwards, for some unexplained reason, and in violation of the instructions, it was surveyed with other public lands in its vicinity. In July, 1872, after this survey, the commissioner directed the surveyor general to locate the reservation on the official plat in his office, from the field-notes and plat of the original survey, and to transmit authentic copies to the general and local land-offices; or, if it should be impossible to locate it from these data, to direct a resurvey of the tract, so that it might be located and described upon the official plats, and its boundaries respected in accordance with the treaty. In pursuance of these instructions the surveyor general caused a resurvey of the quarry reserve, and immediately marked it upon the official plats in his office. Its boundaries, as resurveyed, correspond and are substantially coincident with the lines of the original survey, and embrace the quarter section of land above described. Notwithstanding the reservation by the terms of the treaty and its survey, and appropriation to the purposes mentioned, one August Cluensen, on the fifteenth of July, 1871, was permitted by the landofficers of the district to locate upon the quarter section a piece of land scrip issued under the authority of the laws of the United States, known as Louisiana Agricultural College scrip, and to enter the section at that office with this scrip. On the fifteenth of May, 1874, a patent was issued to him pursuant to his entry. All the interest which he thus acquired, if any, was subsequently transferred, by divers mesne conveyances, to the defendant, Herbert M. Carpenter, who now claims to be the owner of the premises covered by the patent. The bill avers that all the provisions of the treaty are still in force; that the Yankton Indians have always continued to visit and procure stone from the quarry, and have always desired and still desire so to do; and that the officers and agents of the government, in all that they did in connection with the entry of the land and issuing the patent, acted without authority of law and in violation of the provisions of the treaty. The bill concludes with a prayer for a decree that the patent and the entry on which it rests may be vacated, and for further relief. To this bill the defendants demurred for want of equity. The demurrer was sustained and the bill dismissed; and the case comes here on appeal.

The action of the government in causing the tract described to be marked on the official plats in the land-offices as reserved from sale was clearly within the line of its duty under the stipulations of the treaty. The bill alleges that the tract was a part of the Red Pipestone quarry mentioned in the eighth article. After the treaty, until the survey was made, and the actual extent of the reservation was thus designated, no part of the land containing the quarry could have been taken up either by settlement or by location under the Lonisiana Agricultural College scrip. The whole of such land was by the treaty withdrawn from private entry or appropriation until the government had determined whether any portion less than the whole should be reserved. Its power of selection, if the whole was not retained, could not be restricted by the action of private parties. So, in any view which can be taken, the entry of Cluensen was void. It matters not whether the land had been surveyed or not, the treaty was notice that a part of the quarry would be retained by the government, and that the whole might be, for the use of the Indians. This purpose and the stipulation of the United States could not be defeated by the action of any officers of the land department. The court, therefore, erred in sustaining the demurrer. The decree must accordingly be reversed, with directions to overrule the demurrer,-the defendant to have leave to answer; and it is so ordered.


text: Talk:United States v. Carpenter/Opinion of the Court


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Chambers v. Harrington

S. Shellabarger and J. M. Wilson, for appellant.

J. G. Sutherland and John R. McBride, for appellees.

MILLER, J.

title: Chambers v. Harrington


text: Talk:Chambers v. Harrington

title: Talk:Chambers v. Harrington


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Chambers v. Harrington/Opinion of the Court

This is an appeal from the supreme court of the territory of Utah. The case has its origin in a proceeding under sections 2325 and 2326 of the Revised Statutes, to obtain a patent for mineral lands of the United States. The first of these sections requires that, after a discovery of a mine or lode, and the steps required to mark out and assert a claim to it, if the discovered desires a patent he shall give notice of that fact by a publication for 60 days, the nature of which is such as to call the attention to the proceeding of any one having an adverse claim. Section 2326 requires of any person desiring to contest the claimant's right, to file his adverse claim in the land-office, with the particulars of it, under oath. It then declares: 'It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceeding in a court of competent jurisdiction to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment, and a failure to do so shall be a waiver of his adverse claim.' It is then provided that, on filing a copy of the judgment roll in the case with the register of the land-office, and making the other requisite showing, a patent shall issue to the successful party in the litigation.

It is now urged that such a judgment is not subject to review in this court, and the appeal should be dismissed. But it is apparent that the statute requires a judicial proceeding in a competent court. What is a competent court is not specifically stated, but it undoubtedly means a court of general jurisdiction, whether it be a state court or a federal court; and as the very essence of the trial is to determine rights by a regular procedure in such court, after the usual methods, which rights are dependent on the laws of the United States, we see no reason why, if the amount in controversy is sufficient in a case tried in a court of the United States, or the proper case is made on a writ of error to a state court, the judgment may not be brought to this court for review, as in other similar cases. Belk v. Meagher, 104 U.S. 279.

The only question on the merits of the case requiring much attention arises out of the requirement of section 2324 of the Revised Statutes, that some work should be done on every claim, in every year, from the date of the discovery until the issue of the patent. The language of the statute on the subject is this: 'On each claim located after the tenth day of May, 1872, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. On all claims located prior to the tenth of May, 1872, ten dollars' worth of labor shall be performed or improvements made by the tenth day of June, 1874, and each year thereafter for each one hundred feet in length along the vein until a patent has been issued therefor; but when such claims are held in common, such expenditures may be made upon any one claim.' It then provides for proceedings in favor of co-owners who do their work or pay for it, against those who do not, to forfeit their interest in the claim. This latter clause clearly shows that one meaning of the phrase 'held in common' is where there are more owners of the claim than one, while the use of the word claims held in common, on which work done on one of such claims shall be sufficient, shows that there must be more than one claim so held, in order to make the case where work on one of them shall answer the statute as to all of them. It is not difficult, in looking at the policy of the government in regard to its mineral lands, to understand the purpose of this provision. For many years after discovery of the rich deposits of gold and silver in the public lands of the United States, millions of dollars' worth of these metals were taken out by industrious miners without any notice or attention on the part of the government. The earliest legislation by congress simply recognized the obligatory force of the local rules of each mining locality in regard to obtaining, transferring, and identifying the possession of these parties. Later, provision was made for acquiring title to the land where these deposits were found, and prescribing rules for the location and identification of claims, and securing their possession against trespass by others than their discoverers. But in all this legislation to the present time, though by appropriate proceedings and the payment of a very small sum a legal title in the form of a patent may be obtained for such mines, the possession under a claim established according to law is fully recognized by the acts of congress, and the patent adds little to the security of the party in continuous possession of a mine he has discovered or bought. These mineral lands being thus open to the occupation of all discoverers, one of the first necessities of a mining neighborhood was to make rules by which this right of occupation should be governed as among themselves, and it was soon discovered that the same person would mark out many claims of discovery and then leave them for an indefinite length of time without further development, and without actual possession, and seek in this manner to exclude others from availing themselves of the abandoned mine. To remedy this evil a mining regulation was adopted that some work should be done on each claim in every year, or it would be treated as abandoned.

In the statute we are considering, congress, when it came to regulate these matters and provide for granting a title to claimants, adopted the prevalent rule as to claims asserted prior to the statute, and as to those made afterwards it required $100 worth of labor or improvement to be made in each year on every claim. Clearly, the purpose was the same as in the matter of similar regulations by the miners, namely, to require every person who asserted an exclusive right to his discovery or claim, to expend something of labor or value on it as evidence of his good faith, and to show that he was not acting on the principle of the dog in the manger. When several claims are held in common, it is in the line of this policy to allow the necessary work to keep them all alive to be done on one of them. But obviously on this one the expenditure of money or labor must equal in value that which would be required on all the claims if they were separate or independent. It is equally clear that in such case the claims must be contiguous, so that each claim thus associated may, in some way, be benefited by the work done on one of them. The principle is well stated by Judge SAWYER in the case of Mount Diablo M. & M. Co. v. Callison, 5 Sawy. 439. 'Work done,' he says, 'outside of the claim, or outside of any claim, if done for the purpose and as a means of prospecting or developing the claim, as in cases of tunnels, drifts, etc., is as available for holding the claim as if done within the boundaries of the claim itself. One general system may be formed, well adapted and intended to work several contiguous claims or lodes, and where such is the case work in furtherance of the system is work on the claims intended to be developed.' In the case of Jackson v. Roby, decided at the present term, (109 U.S. 440, S.C.. 3 SUP. CT. REP. 301,) similar language is used: 'It often happens that for the development of a mine upon which several claims have been located, expenditures are required exceeding the value of a single claim, and yet without such expenditures the claim could not be successfully worked. In such cases it has always been the practice for the owners of the different locations to combine and work them as one general claim; and expenditures which may be necessary for the development of all the claims may then be made on one of them. * *  * In other words, the law permits a general system to be adopted for adjoining claims held in common, and in such case the expenditures required may be made or the labor be performed upon any one of them.' That was a case of placer mining in which the tailings from one claim were carried by a flume and deposited on another which was contiguous, and it was held this latter claim was not aided, but its development rather injured, by this work. This claim was not, therefore, kept valid by such work, and some remarks were made in the opinion which would not, perhaps, be strictly applicable to discoveries and works done in developing lodes or veins.

In the case before us the appellees became successively owners of three claims contiguous to each other, supposed to be located on the same lode. These were-First, the Parley's Park claim; second, the Central; and, third, the Lady of the Lake. They continued their work on the Parley's Park claim from 1872 until July 19, 1878, when they transferred it to the Lady of the Lake claim, and did no more work on the other until September 13, 1879, when one Cassidy, claiming that the Parley's Park claim was forfeited for want of work on it for more than a year, located a mining claim called the Accidental, which embraces the premises in dispute and which is part of the Parley's Park claim. This claim of Cassidy-the Accidental is the one on which appellants, who became its owners, now rely, and if the work done on the Lady of the Lake is not work done in common on the three claims of appellees, within the meaning of the statute, the claim of the appellant must prevail. The finding of facts by the court below on that point is as follows:

'(5) That during the year beginning on the nineteenth of July, 1878, the owners of the Parley's Park claim were also the owners of two certain claims, called, respectively, the Central, and Lady of the Lake,-the Central adjoining the Parley's Park, and Lady of the Lake adjoining the Central mining claim,-and that, with a view to the future working and development of all three of said claims, the owners thereof located what is called the main shaft in the Lady of the Lake surface ground. That said shaft is in such proximity to said Parley's Park mining claim that work in it has a tendency to develop said claim, and said shaft was located and intended for the purpose of developing all of said claims.

'I find that during said last-named year work was prosecuted in said shaft, and by improvements made thereat exceeding in value $300, and of not less than two thousand dollars in value. No work was done in said year after July 19, 1878, and prior to the fifteenth day of September, 1879, in the Parley's Park surface ground, or within its limits, by the owners thereof.'

We are of opinion that this brings the case clearly within the principles we have laid down, and the work was effectual to protect the Parley's Park claim against an intruder.

By the act of February 11, 1875, (18 St. 315,) section 2324 was so amended that work on a tunnel in a mine should be held to dispense with work on the surface, and taken and considered as work expended on the lode, whether located prior to or since the passage of that act. We are not able to see that this affects the character of other work to be done or improvements to be made according to the law as it stood before, except as it gives a special value to making a tunnel.

The questions raised on the admission of evidence to prove the existence and discovery of a lode by defendants were, we think, well decided, and need no further comment.

The decree of the supreme court of Utah is affirmed.


text: Talk:Chambers v. Harrington/Opinion of the Court


text:
Eilers v. Boatman

C. K. Gilchrist, for appellant.

C. W. Bennett, for appellees.

MILLER, J.

title: Eilers v. Boatman


text: Talk:Eilers v. Boatman

title: Talk:Eilers v. Boatman


text:
Eilers v. Boatman/Opinion of the Court

This, like the preceding case, [Chambers v. Harrington, ante, 428,] is an appeal from the decree of the supreme court of Utah in a contest for a mine carried on under section 2326 of the Revised Statutes. The appellant does not deny the priority of location, or the continuous work on the Nabob,-the claim of the appellee,-but insists that the notice and description of the claim of the defendants were not sufficient to apprise other porspectors of its precise location. This, in the first place, is matter of fact, and was found by the court below against appellant; for we think that the following language, though called by the judge a conclusion of law, is really a finding of facts, namely: '(1) That the notice of the location of Nabob mining claim contained a sufficient description by reference to natural objects, and permanent and well-known monuments, to identify the same; (2) that said Nabob claim was so marked on the ground that its boundaries could be readily placed.' If, however, we revert to the specific findings of fact, so named in the record, we think the second and fourth findings, which give a more minute description of the courses, distances, natural objects, and stakes, justify the two conclusions above recited.

A point is made by appellant that the Flagstaff Mining Company was in possession of the lode at the time the Nabob claim was located. We do not see how this would improve the subsequent location of appellant. But it is sufficient to say that no such finding is made by the court in regard to the Flagstaff claim.

By chapter 80 of the acts of congress, approved April 7, 1874, (Supp. Rev. St. 13,) this court is required to accept the findings of fact made by the supreme courts of the territories as true, on appeal to this court. See Stringfellow v. Cain, 99 U.S. 610; Hecht v. Boughton, 105 U.S. 235.

In this case the supreme court, in its judgment, affirms the findings of the district court. As we think the judgment of the supreme court of Utah was right on the facts so found, there is nothing left but to affirm the judgment; and it is so ordered.

title: Eilers v. Boatman/Opinion of the Court


text: Talk:Eilers v. Boatman/Opinion of the Court


text:
Houston Railway Company v. Shirley

John G. Winter, for appellants.

J. Hubley Ashton, for appellee.

WAITE, C. J.

title: Houston Railway Company v. Shirley


text: Talk:Houston Railway Company v. Shirley

title: Talk:Houston Railway Company v. Shirley


text:
Houston Railway Company v. Shirley/Opinion of the Court

This is an appeal from an order remanding a cause removed from a state court. The record shows that the suit was begun by Shirley, the appellee, a citizen of Texas, on the sixteenth of July, 1870, in the district court of McLennan county, Texas, against the Waco Tap Railroad Company, a Texas corporation, to recover a balance claimed to be due on a contract for the construction of the railroad of the defendant company. The company answered the petition on the twenty-fifth of November, 1870. Supplemental petitions were filed on the sixteenth and seventeenth of December, 1872, bringing in the Houston & Texas Central Railroad Company, another Texas corporation, as a defendant. The case was tried to a jury on the second of February, 1875, and judgment rendered in favor of Shirley. This judgment was reversed by the supreme court of the state on the twenty-eighth of December, 1875, upon a writ of error brought by the * Waco Tap Company, and on the sixteenth of March, 1877, the cause was remanded to the district court for further proceedings. After the case got back to the district court the petition was several times amended, to the effect that since the commencement of the suit the road, road-bed, franchises, etc., of the Waco Tap Company had been sold to the Houston & Texas Central Company under a deed of trust, and that the Waco Tap Company had become merged in the Houston & Texas Central Company. The Houston & Texas Central and the Waco Tap companies answered this amended petition, and the cause was again tried to a jury and a judgment rendered in favor of Shirley on the twenty-fifth of November, 1878. This judgment also was reversed by the supreme court of the state on the sixteenth of January, 1880, and the cause again remanded to the district court for further proceedings.

A statute of Texas provides that: 'Whenever a sale of the road-bed, track, franchise, and chartered powers and privileges [of a railroad company] is made, * *  * the directors or managers of the sold-out company, at the time of the sale, *  *  * shall be the trustees of the creditors and stockholders of the sold-out company, and shall have full power to settle the affairs of the sold-out company, collect and pay the outstanding debts, and divide among the stockholders the money and property remaining in their hands after the payment of the debts and necessary expenses; and the persons so constituted trustees shall have the authority to sue by the name of the trustees of such sold-out company, and may be sued as such, and shall be jointly and severally responsible to the creditors and stockholders of such company to the extent of the property and effects which shall come into their hands; and no suit pending for or against any railroad company at the time the sale may be made of its road-bed, track, franchise, and chartered privileges shall abate, but the same shall be continued in the name of the trustees of the sold-out company.' Pasch. Dig. 4916.

At the November term, 1881, of the district court, the petition was again amended, and John T. Flint and others, all citizens of Texas, who were directors of the Waco Tap Company at the time of the sale of the road-bed, etc., brought in as defendants. In this last amended petition, Shirley describes himself as at that time a citizen of New York. Citations were issued to the individual defendants on the eighteenth of April, 1882, requiring them to appear and answer on the first Monday in May. At the appointed time they all appeared and filed a demurrer. On the twentieth of May they filed a petition, accompanied with the necessary security, for the removal of the cause to the circuit court of the United States for the Northern district of Texas. In the petition it is stated that the individual defendants were, at the time the suit was commenced against them, and still continued to be, citizens of Texas, and Shirely a citizen of New York, and 'that the main and essential controversy in this case is between the said plaintiff and the said trustees, John T. Flint et al., principal petitioners herein.' The Houston & Texas Central Railroad Company united in the petition, alleging 'that this suit or action, as against it, is purely incidental and collateral to, and wholly depends upon, the plaintiff's right to recover in his said suit or action against its co-defendants herein, the said John T. Flint et al., trustees of the said sold-out company, * *  * for damages for breach of contract by said sold-out company, now represented by said Flint et al., trustees.' The cause was docketed in the circuit court on the second of October, 1882, and on the sixth a motion was made to remand. This motion was granted on the eighteenth of October, and from the order to that effect the present appeal was taken.

We think the circuit court was clearly right in sending the case back to the state court. The suit was begun in 1870. At that time Shirley was a citizen of Texas. The proceeding to bring in the trustees of the sold-out company was not the commencement of a new suit, but the continuation of the old one. The trustees were nothing more than the legal representatives of the company that had been sold out, and took its place on the record as a party. The suit remained the same, but with the name of one of the parties changed.

In Gibson v. Bruce, 108 U.S. 561, S.C.. 2 SUP. CT. REP. 873, it was decided that, under the act of March 3, 1875, c. 137, a suit could not be removed on the ground of citizenship, unless the requisite citizenship existed both when the suit was begun and when the petition for removal was filed; and in Cable v. Ellis, 110 U.S. 389, S.C.. 4 SUP. CT. REP. 85, that a substituted party comes into a suit subject to all the disabilities of him whose place he takes, so far as the right of removal is concerned.

The record shows that Shirley was a citizen of Texas when the suit was begun, and the right of the railroad company to remove the suit, even if the necessary citizenship had existed, expired with the first term of the state court after the act of 1875 went into effect at which the case could have been tried. Long after this time had elapsed the railroad company filed an answer to an amended petition and actually went to trial in the state court. This trial resulted in another judgment against the company, which was also reversed by the supreme court, and the case sent back for another trial. The trustees were not brought in as parties until all this had been done. It follows that the necessary citizenship did not exist at the commencement of the suit, and that the petition for removal was filed too late.

Without considering any of the other questions in the case, we affirm the order to remand.


text: Talk:Houston Railway Company v. Shirley/Opinion of the Court


text:
Board of Suppliers of the County of Santa Cruz v. Santa Cruz Railroad Company

Edward R. Taylor, for defendant in error, (in support.)  WAITE, C. J.


text: Talk:Board of Suppliers of the County of Santa Cruz v. Santa Cruz Railroad Company


text:
Board of Suppliers of the County of Santa Cruz v. Santa Cruz Railroad Company/Opinion of the Court

This was a suit brought by the Santa Cruz Railroad Company to require the board of commissioners of the county of Santa Cruz to deliver certain bonds, claimed to be due from the county under a contract with the railroad company. The defenses were, (1) that the contract was unilateral, and therefore not binding on the county; (2) that the board of supervisors exceeded its authority in making the contract; and (3) that a repealing statute, passed after the contract was entered into, took away the power of the board to make any further deliveries of bonds. No objection whatever was made to the validity of the statute under which the board assumed to act in making the contract. The whole defense rested on the construction and effect to be given to certain statutes, which no one denied the constitutional power of the legislature to enact.

The ground of federal jurisdiction, relied on in the brief of counsel for the county, is 'that, by the issuance of the bonds demanded in this proceeding, the state would deprive the tax-payers of the county of Santa Cruz of property without due process of law, contrary to the right, privilege, or immunity secured by the first section of the fourteenth amendment of the constitution of the United States.' That was not the question presented to, or decided by, the state court. In that court the inquiry was whether the proceedings of the board to charge the county were according to law, not whether the law under which the proceedings were had was constitutional and binding on the tax-payers. The state court decided that the proceedings were in accordance with the requirements of the law, and thus created an obligation on the part of the county to deliver the bonds, which was not discharged by the repealing statute relied on. This decision involved no question of federal law, and is not reviewable here.

The motion to dismiss is granted.


text: Talk:Board of Suppliers of the County of Santa Cruz v. Santa Cruz Railroad Company/Opinion of the Court


text:
Blair v. County of Cuming

Uriah Bruner, for defendant in error.

BLATCHFORD, J.

title: Blair v. County of Cuming


text: Talk:Blair v. County of Cuming

title: Talk:Blair v. County of Cuming


text:
Blair v. County of Cuming/Opinion of the Court

This is an action brought in the circuit court of the United States for the district of Nebraska, by the plaintiff in error against the county of Cuming, a body corporate of the state of Nebraska, to recover the money due on coupons cut from certain bonds. The case was tried on a petition and a demurrer thereto, the latter alleging, as cause of demurrer, that the petition does not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer, to which ruling the plaintiff excepted, and, as he refused to amend the petition, the court dismissed the action and entered a judgment for the defendant, for costs, and the plaintiff excepted to the judgment. To review the judgment the plaintiff has sued out a writ of error.

By an act of the legislature of Nebraska, which was passed and took effect February 15, 1869, entitled 'An act to enable counties, cities, and precincts to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal improvement in this state, and to legalize bonds already issued for such purpose,' as amended by an act passed March 3, 1870, (Laws 1869, p. 92, and Laws 1870, p. 15, and Gen. St. 1873, c. 35, p. 448,) it was provided as follows: 'Section 1. That any county or city in the state of Nebraska is hereby authorized to issue bonds to aid in the construction of any railroad, or other work of internal improvement, to an amount to be determined by the county commissioners of such county or the city council of such city, not exceeding ten per cent. of the assessed valuation of all taxable property in said county or city: Provided, the county commissioners, or city council, shall first submit the question of the issuing of such bonds to a vote of the legal voters of said county or city, in the manner provided by chapter nine of the Revised Statutes of the state of Nebraska, for submitting to the people of a county the question of borrowing money.'

Section 2 enacted that the proposition of the question must be accompanied by a provision to levy a tax annually for the payment of the interest on the bonds as it should become due, and that an additional amount should be levied and collected to pay the principal of the bonds when it should become due; section 3, that the proposition should state the rate of interest the bonds should draw, and when the principal and interest should be made payable; section 4, that if a majority of the votes cast should be in favor of the proposition submitted, the county commissioners or the city council should enter the proposition and result of record, and publish notice of its adoption, and thereupon issue the bonds, which should continue a subsisting debt against the county or city, until they should be paid; and section 5, that the proper officers of the county or city should cause to be annually levied, collected, and paid to the holders of the bonds a special tax on all taxable property in the county or city, sufficient to pay the annual interest, as it should become due, and, when the principal should become due, such officers should, in like manner, collect an additional amount to pay the same as it should become due. Section 7 was in these words: 'Any precinct in any organized county of this state shall have the privilege of voting to aid works of internal improvement, and be entitled to all the privileges conferred upon counties and cities by the provisions of this act; and in such cases the precinct election shall be governed in the same manner as is provided in this act, so far as the same is applicable, and the county commissioners shall issue special bonds for such precinct, and the tax to pay the same shall be levied upon the property within the bounds of such precinct. Such precinct bond shall be the same as other bonds, but shall contain a statement stating the special nature of such bonds.'

The petition counts on 188 coupons for $25 each, cut from bonds of the fellowing tenor:

'No. 43. UNITED STATES OF AMERICA. $500.

Dated July 1, 1875.

'County of Coming, State of Nebraska:

(West Point Precinct Bond.)

'Know all men by these presents, that the West Point     precinct, in the county of Cuming and state of Nebraska,      acknowledges itself indebted to the bearer hereof in the sum      of five hundred dollars for value received, which said sum      the said West Point precinct promise and agree to pay to the      bearer hereof at the National Park Bank, in the city of New      York, on the first day of July, anno Domini 1895, and also      interest thereon at the rate of ten per cent. per annum     semi-annually, on the first days of January and July in each      and every year ensuing the date hereof, on presentation of      the annexed coupons or interest warrants, as they severally      fall due, at the National Park Bank, in the city of New York,      in lawful money of the United States.

'This bond is one of a series of sixty bonds of five hundred     dollars each, amounting in the aggregate to thirty thousand      dollars, issued by the West Point precinct, of Cuming county,      and state of Nebraska, as authorized by a vote of its legal      voters, and in accordance with chapter 35 Rev. Gen. St.,      approved February 15, 1869, and (an) act setting aside the      revenue arising from the taxation of works of internal      improvements to pay the bonds issued to construct or complete      the same.

'These bonds are issued to aid the West Point Manufacturing     Company in improving the water-power of the Elkhorn river for      the purpose of propelling public grist-mills, and other works      of internal improvement of a public nature in said West Point      precinct. To secure the payment of the principal and interest     of said bonds, the annual revenue and all the taxable property      of said West Point precinct is pledged.

'In testimony whereof, the board of county commissioners of     Cuming county, state of Nebraska, have caused this bond to be      signed on behalf of West Point precinct, in the county of      Cuming and state of Nebraska, by its chairman, attested by      its clerk, who has affixed thereto the seal of the said      county, at the clerk's office in West Point, in the said      county, this first day of July, A. D. 1875.

'THOMAS ROEH, Clerk.

C. L. SIECKE, Chairman.

'[Cuming County seal, Nebraska.]'

'$25.00. $25.00.

'The West Point precinct, Cuming county, state of Nebraska,     will pay the bearer twenty-five dollars, at the National Park      Bank, in the city of New York, on the first day of July,      1877, on bond No. 43.

'No. 43. THOMAS ROEH, Clerk.'

The coupons fell due as follows: 16 on July 1, 1877, 43 on January 1, 1878, 43 on July 1, 1878, 43 on January 1, 1879, and 43 on July 1, 1879. The petition alleges that on the first of September, 1875, the defendant made, executed, and delivered the coupons, each of them being signed by the clerk of the county, for semi-annual interest on the bond; and that the bonds are special bonds of the county, issued by its board of county commissioners, in behalf of West Point precinct, a voting district within and a part of the county, in accordance with the provisions of chapter 35, Gen. St. Neb. It sets out a copy of one of the bonds and copies of five of the coupons. It avers that on the first of January, 1876, the plaintiff became the purchaser of all of the coupons, in good faith and for a valuable consideration, before they became due and payable; that the only works of internal improvement of a public nature, for which the bonds were so issued to said company, 'were the improvement of the water-power of the said Elkhorn river, for the purpose of propelling public grist-mills' in said precinct in said county; that the improving of said water-power for said purpose 'would and did render the water-power of said river available and useful for propelling other works of internal improvement of a public nature, which were or thereafter might be constructed and located upon the said river in said precinct;' that, at the time of the sale and delivery of the bonds to the plaintiff, he had 'no notice or knowledge of any other works of internal improvement of a public nature in aid of which the said bonds were so issued, except the said works specially mentioned and described in said bonds, viz., the improvement of the water-power of the Elkhorn river for the purpose of propelling public grist-mills' in said precinct; that the bonds and their attached coupons were 'issued and negotiated by the defendant under and by virtue of a majority vote of the qualified voters of West Point precinct, a local subdivision of said Cuming county, and in pursuance' of said act of February 15, 1869; and that 'the improvement of the water-power of the Elkhorn river, to aid which said bonds were issued and negotiated, consisted in constructing a canal for water-power purposes in said West Point precinct.'

It is urged against the right of the plaintiff to recover, that in the bonds and coupons the West Point precinct promises to pay, and so the obligations are not those of the defendant, and it cannot be sued on them. This question was decided by this court in Davenport v. County of Dodge, 105 U.S. 237, in regard to precinct bonds issued under the same statute, and it was held, that a suit against the county on coupons cut from special bonds, issued by the county commissioners for the precinct, was a proper suit.

It is also contended that the statute (section 7) required that precinct bonds should be issued as special county bonds for the precinct, by the county commissioners, and did not authorize the chairman of the board and its clerk to issue the bonds; that the county commissioners could not delegate their authority to sign and issue the bonds to any one else, or to one of their number; and that precinct bonds, signed by one of the county commissioners, as chairman, and attested by the clerk of the board, and coupons signed by some one as clerk, have no validity. We see no force in these objections. The bonds bear the seal of the county, and purport to be issued by the board of county commissioners, on behalf of the precinct. The bond states that the board, in testimony of the statements in the bond, has caused the bond to be signed on behalf of the precinct, by the chairman of the board, and to be attested by the clerk of the board, (who appears, by the petition, to have been the clerk of the county,) and that such clerk has affixed thereto the seal of the county. This was a sufficient compliance with the statute. The commissioners, by statute, constituted 'a board.' That was their official designation, when meeting to perform any duties with which they were charged. Gen.St. 1873, c. 13. §§ 7, 14, pp. 233, 234. The attestation of the bonds by the signatures of the chairman and the clerk of the board, and the county seal, was proper. It was not necessary that all the commissioners should sign the bonds. What was done was not an issuing of the bonds by the chairman and clerk. The coupons, in the form in which they were issued, annexed to the bond, were adopted as coupons, by the statement in the body of the bond, and the question as to any one of them, when detached, is only one of genuineness or identity. The bonds are special bonds for the precinct, and contain a sufficient statement showing their special nature; that is, that they are special bonds for the precinct.

It is also objected that the bonds state that they are issued under the act of 1869, to aid the company in improving the water-power of the river for the purpose of propelling public grist-mills 'and other works of internal improvement of a public nature' in the precinct; and that the latter part of the statement is indefinite, and the other works to be aided. or improved, or propelled, should be described or identified, so that it may be seen they were works of internal improvement, within the statute, and also because the proposition voted on must, in order to be a lawful one, have stated what the specific 'other works' were. It is a sufficient answer to this objection to say, that the petition states, and the demurrer admits, that the only work of internal improvement of a public nature for which the bonds were issued to the company, was the improvement of the water-power of the Elkhorn river for the purpose of propelling public grist-mills in the precinct; that the improving of such water-power for that purpose rendered it available and useful for propelling other works of internal improvement of a public nature, which were or thereafter might be constructed and located on that river in that precinct; that the improvement of the water-power of that river, to aid which the bonds were issued and negotiated, consisted in constructing a canal for water-power purposes in the precinct; and that the bonds, and their attached coupons, were issued and negotiated under and by virtue of a majority vote of the qualified voters of the precinct, and in pursuance of the act. Thus, there is a distinct statement, as well as an admission, that no work of internal improvement was covered by the vote or the issue of the bonds, other than the one of improving such water-power for the purpose of propelling public gristmills in the precinct. The statement in the bonds in regard to propelling other works of internal improvement of a public nature, in the precinct, is explained by the allegation in the petition on that the improving of the water-power for the purpose stated rendered it available to propel other works of internal improvement of a public nature, then existing, or which might be constructed on the river within the bounds of the precinct. But this was an incidental result, and aside from the only work in aid of which, or purpose for which, the bonds were issued, as existing, or as notified to, or known by, the plaintiff, at the time of the sale and delivery of the bonds to him.

It is also objected that improving the water-power of the river, by constructing a canal for water-power purposes, is merely digging a mill race, and that the doing so, for the purpose of propelling a public grist-mill in the precinct, is not constructing a work of internal improvement, within the statute. We are not referred to any decision of the highest court of Nebraska, made before the plaintiff became, on January 1, 1876, the bona fide owner of these coupons, or even since, holding in accordance with the contention of the defendant.

In Osborne v. County of Adams, 106 U.S. 181, S.C.. 1 SUP. CT. REP. 168, this court decided, in November, 1882, that, under the same statute that is in question here, bonds issued to aid in the construction of a steam grist-mill were not issued to aid in the construction of a work of internal improvement. There was a suggestion in the opinion in that case that the statute did not cover the construction of any kind of grist-mill as a work of internal improvement. During the same term a petition for rehearing was filed, and the attention of the court was called to the case of Traver v. Merrick Co. 14 Neb. 327, S.C.. 15 N. W. Rep. 690, in which the supreme court of Nebraska had held, at its January term, 1883, that county bonds issued by county commissioners, under the act of 1869, as a loan to an individual to aid in building a public grist-mill and water-power in the county, were valid. But this court adhered to its view that the act did not cover the construction of a steam grist-mill, and denied the rehearing. Osborne v. Adams Co. 109 U.S. 1; S.C.. 3 SUP. CT. REP. 150.

In ''Union Pac. R. R. v. Com'rs'', 4 Neb. 450, it was held, in 1876, that a public wagon bridge, over the Platte river, as an extension of a public highway, was a work of internal improvement, under the act of 1869, being a work from the construction of which benefits were to be derived by the public. But the court said that no authority existed to aid a merely private enterprise. See, also, U.S. v. Dodge Co. 110 U.S. 156; S.C.. 3 SUP. CT. RET. 590.

In State v. Thorne, 9 Neb. 458, 460, S.C.. 4 N. W. Rep. 63, (in 1880,) it was suggested that works of internal improvement, under the act, might include railroads, turnpikes, canals, and numerous other enterprises, not objects of private concern purely.

In Dawson Co. v. McNamar, 10 Neb. 276, S.C.. 4 N. W. Rep. 991, (in 1880,) it was held that the building of a county court-house was not a work of internal improvement, under the act, and it was said that 'works of internal improvement' meant 'only those works within the state in which the whole body of the people are supposed to be more or less interested, and by which they may be benefited.'

In Traver v. Merrick Co., supra, the court considered the act of 1869, and the question whether a water grist-mill was a work of internal improvement, within the meaning of that act. It cited the provisions of an act 'relating to mills and mill dams,' which passed and took effect February 26, 1873, (Gen. St. 1873, c. 44, p. 472,) and especially sections 1, 2, and 24 to 29 of that act, as authorizing a person who, in good faith, had expended a considerable sum of money towards the erection of a grist-mill on a stream, to obtain an injunction against the making by another person of a dam across the same stream on his own land, the effect of which would be to destroy the water-power of the former; and it stated that, under the cases of Nosser v. Seeley, 10 Neb. 460, S.C.. 6 N. W. Rep. 755, and Seeley v. Bridges, 13 Neb. 547, S.C.. 14 N. W. Rep. 524, that was the settled law of the state. The act of 1873 provides that all mills for grinding grain, and which shall grind for toll, shall be deemed public mills; that the owner or occupier of every public mill shall grind the grain brought to his mill as well as the nature and condition of his mill will permit, and in due time as the same shall be brought; and that he shall post in the mill his rates of toll, and the county commissioners of the county shall establish and regulate the amount of toll to be charged. The court held, in Traver v. Merrick Co., that the legislature had authority to provide that streams capable of being applied to mill purposes should be so utilized for the benefit of the public; that the right to erect a mill and dam, on paying damages for the injury caused, was granted for the better use of the water-power, on considerations of public policy and the general good, with a view to keeping up mills for use; and that, under the act of 1873, water gristmills were mills for the use of the public. It also held that, under the act of 1869, works of internal improvement were not restricted to railroads and works of like character, such as canals, turnpikes, and bridges; that, if an internal improvement was for public use, subject to the control and regulation of the legislature, it was within the act; and that, as the mill in that case was one to be propelled by water, and was for the use of all who might desire to patronize it, at such rates of toll as might be prescribed by the county commissioners of the county, it was a work of internal improvement, within the act.

We concur in these views and regard them as a sound exposition of the legislation of Nebraska. In Traver v. Merrick Co. the thing aided was the building a public grist-mill and water-power. As we understand the present case, the thing aided is the improving the water-power of a river, by constructing a canal for water-power purposes to propel public grist-mills. This is within the act of 1869. A water grist-mill cannot be run so as to be a public grist-mill, unless it is furnished with water-power, and, if an existing river needs to be improved to furnish such power, the improvement of it is a public work of internal improvement.

In ''Tp. of Burlington v. Beasley'', 94 U.S. 310, this court held that a steam custom grist-mill, not on a water-course or operated by water-power, was a 'work of internal improvement,' within an act of Kansas authorizing municipal bonds in aid of 'the construction of railroads or water-power * *  * or for other works of internal improvement.' The decision was based, in part, on the ground, that there was another act which declared that 'all water, steam or other mills, whose owners or occupiers grind or offer to grind grain for toll or pay, are hereby declared public mills,' and provided for the order in which customers should be served, and prescribed the duties of the miller, and that the rates of toll should be posted; and, as it would also be competent for the Legislature to regulate the toll, it was held that aid to the mill was aid of a public work of internal improvement.

Enterprises of a class within which that in the present case falls are so far of a public nature that private property may be appropriated to carry them into effect. Boston & Roxbury Mill Corp. 239, 249; Lowell v. Boston, 111 Mass. 454, 464; Scudder v. Trenton Delaware Falls Co. 1 Saxt. Ch. 694; Beekman v. Saratoga & S. R. Co. 3 Paige, 45. And when the legislature has given to grist-mills and the water-power connected with them such a public chacter as in the present case, the improvement of the water-power must be regarded as a public work of internal improvement, which may be aided in its construction by the issue of bonds, under the act in question.

These conclusions require that the judgment of the circuit court be reversed, and the case be remanded to that court, with direction to overrule the demurrer to the petition, and to take such further proceedings in the cause as may be required by law and as shall not be inconsistent with this opinion.


text: Talk:Blair v. County of Cuming/Opinion of the Court


text:
Stewart v. Hoyt

Edwin H. Abbott and J. Hubley Ashton, for appellants.

E. Mariner, for appellees.

GRAY, J.

title: Stewart v. Hoyt


text: Talk:Stewart v. Hoyt

title: Talk:Stewart v. Hoyt


text:
Stewart v. Hoyt/Opinion of the Court

This is an appeal from a decree dismissing a prtition of the trustees of the Wisconsin Central Railroad Company, to be allowed, out of the proceeds of a sale of the railroad property and franchises of the Milwaukee & Northern Railway Company, under the foreclosure of a mortgage thereof to trustees, (of the survivor of whom the appellees are executors,) the sum of $5,961.75 paid by the petitioners to take up coupons criginally attached to the bonds secured by that mortgage.

The facts material to the understanding of the question of law decided by this court are as follows:

By indenture of November 8, 1873, the Milwaukee & Northern Railway Company leased its railroad and all its property and franchises to the Wisconsin Central Railroad Company for 999 years: 'Yielding and paying rent therefor as follows, to wit: In and for each year of said term wherein the gross earnings, received from the demised premises as hereinafter set forth, shall exceed the sum of one million dollars, thirty per cent. of said gross earnings; and in and for each year of said term wherein said gross earnings shall exceed eight hundred thousand dollars, but not exceed one million dollars, thirty-three per cent. of said gross earnings; and in and for each year of said term wherein said gross earnings shall be less than eight hundred thousand dollars, thirty-five per cent. of said gross earnings.' The rent was payable in monthly installments, upon accounts as nearly exact as practicable, stated monthly, of the gross earnings for the month mext but one preceding, to a trustee selected by the parties jointly, upon trust to keep the sum paid until the next installment of interest was due upon the mortgage bonds, and then to apply it, or so much of it as necessary, to the payment of that interest; and if any surplus remained, to pay it to the lessor, unless due to the lessee 'for advances, as is hereinafter provided, made to or for the benefit of the lessor to pay such interest;' and if such surplus, or any part thereof, was so due, then to pay to the lessee, as afterwards provided, so much as was due for advances and interest. The lessee was also to state semi-annual accounts of the gross earnings, upon which all accounts between the parties were to be balanced. The lease contained, among other covenants, the following:

'Eighth. The second party also covenants to pay the rent hereinbefore reserved, when and as payable; and also covenants if the rent paid to the trustee, aforesaid, in any six months previous to the payment of interest on the said first-mortgage bonds, is not enough to pay the whole interest then maturing, to advance so much money as may be necessary to take up the balance of the coupons for interest as they become due and payable, and to take them up; and it is expressly agreed between the parties to these presents that for all sums so advanced the second party shall hold said coupons as a lien, and the same is hereby made and constituted a lien, on the rent hereby reserved on all the property hereby demised and leased, prior to and superior to all other liens except said mortgage, until the same be fully reimbursed, with interest at eight per centum per annum, out of the said re t, or otherwise, by the first party. It is also agreed that any surplus of rent, which appears upon the semi-annual adjustments of accounts, shall be paid to the second party, so far as may be needed to cover any advances and interest thereon made to protect the coupons aforesaid, and that only the residue of said surplus, if any, shall be paid to the first party.'

The rent which accrued in the six months next before June 1, 1874, falling short of paying the interest payable on that day on the coupons, the lessee paid and took up coupons to the amount of the deficiency, and the lessor received some of these coupons in payment of the rent. The lessor afterwards refused to receive coupons in payment of rent; and on December 1, 1874, the lessee, which had not mean while paid any rent, refused to advance money to take up the coupons. The two corporations, after other disputes had arisen between them, executed, on June 1, 1875, a supplemental indenture, containing the following provisions:

'First. In lieu of the rent reserved in the lease, and of all advances of money to take up the interest coupons of the Milwaukee & Northern Railway Company, as provided in said lease, the Wisconsin Central Railroad Company shall pay, and the Milwaukee & Northern Railway Company shall accept, for and during the space of three years from and after the first day of June, 1875, the amount of forty per cent. of the gross earnings received from the demised premises; and after the expiration of said three years, and during the remainder of the term, the rent shall be paid as reserved in said lease, if the rent so reserved is sufficient to pay said coupons; but if not sufficient to pay said coupons, then the Wisconsin Central Railroad Company shall pay, and the Milwaukee & Northern Railway Company shall accept, in full satisfaction of rent for the demised premises, such part of said gross earnings, not exceeding in any event forty per cent. thereof, as shall be sufficient to pay said coupons; all accounts being settled exactly, and all liabilities and obligations between the two companies being adjusted and discharged by and upon the semi-annual statements provided in said lease, and on the thirty-first day of May and the thirtieth day of November in each year, and said semi-annual statements being accepted by each company as final adjustments of all claims for rent of the demised premises to the respective date thereof.'

'Fourth. The Milwaukee & Northern Railway Company, in consideration of the increased rental and agreements aforesaid on the part of the Wisconsin Central Railroad Company, hereby releases the Wisconsin Central Railroad Company from any and all obligations to hereafter make any advances of money to take up the interest coupons of the Milwaukee & Northern Railway Company, as stipulated in said lease; and also from any and every obligation arising out of any previous neglect to make said advances hitherto due and payable under terms of said lease; and also from any and every obligation to pay any money under said lease and any provision thereof, in the nature of rent and advances, to or for the benefit of the Milwaukee & Northern Railway Company, except the proportion of gross earnings (not exceeding in any event forty per cent. thereof) which is herein agreed, when and as the same is payable under the terms of this agreement and said lease.'

'Sixth. All the provisions of said lease, except so far as are herein expressly modified or changed, are hereby by each of said companies ratified and confirmed; and all causes of action for breach of any agreement therein contained, which have arisen from its date of execution until this day, are hereby mutually waived and forever released by and between said companies.'

The lessee paid rent computed according to the supplementary agreement from its date until September, 1875. On January 2, 1879, the lessee assigned to the petitioners, in trust to pay debts to its employes, and expenses of runing it railroad, all sums of money on hand or to be received, and all accounts receivable of every nature, for or on account of earnings and income of either railroad, and delivered to the petitioners the coupons taken up as aforesaid, of which the sum claimed in their petition had not been reimbursed to them.

The petitioners contend that for the sum paid to take up coupons in accordance with the provisions of the lease of November 8, 1873, they have a claim against the lessor, and a lien upon the proceeds of the sale of the mortgaged property equal to those which the original owners of those coupons had. But this court concurs in opinion with the circuit court, that, if the lessee ever had such a claim and lien, they were released by the supplemental agreement of June 1, 1875, and the payment of rent, and the adjustment of semiannual accounts, in accordance therewith. By this agreement the provisions of the original lease were confirmed and ratified, 'except so far as are herein expressly modified or changed;' the proportion of gross earnings to be paid as rent was increased; all accounts between the parties were to be adjusted and discharged by and upon the semi-annual statements; the lessor released the lessee from all obligation to make future advances, and from all liability for past neglect to make advances, to take up coupons; and each party released the other from all causes of action which had arisen for breach of any agreement in the original lease. Any obligation of the lessor to reimburse to the lessee money paid by the latter to take up coupons arose under an agreement in the original lease, and was one of the obligations adjusted and discharged by and upon the semi-annual statements. The intention of the supplemental agreement, as appears upon its face, was to adjust all existing controversies between the parties, by agreeing to pay and receive an increased rate of rent, and by mutually releasing all existing obligations and liabilities, including, on the one side, the lessee's obligation to take up coupons in the future, and its liability for neglect to take them up in the past; and, on the other side, the lessor's obligation and liability to the lessee by reason of coupons already taken up by the latter. The parol evidence introduced by the petitioners at the hearing, if competent in law, was quite insufficient in fact to control or vary the meaning of the written instrument.

Decree affirmed.

title: Stewart v. Hoyt/Opinion of the Court


text: Talk:Stewart v. Hoyt/Opinion of the Court


text:
Mansfield Railway Company v. Swan

C. H. Scribner, for plaintiffs in error.

No brief filed for defendants in error.

MATTHEWS, J.

This was an action at law originally brought in the court of common pleas of Fulton county, Ohio, by John Swan, S.C.. Rose, F. M. Hutchinson, and Robert McMann, as partners under the name of Swan, Rose & Co., against the plaintiffs in error. The object of the suit was the recovery of damages for alleged breaches of a contract for the construction of the railroad of the defendants below. It was commenced June 10, 1874. Afterwards, on October 28, 1879, the cause being at issue, the defendants below filed a petition for its removal to the circuit court of the United States. They aver therein that one of the petitioners is a corporation created by the laws of Ohio alone, and the other, a corporation consolidated under the laws of Michigan and Ohio, the constituent corporations having been organized under the laws of those states respectively, and that they are, consequently, citizens, one of Ohio, and one of both Michigan and Ohio. It is also alleged, in the petition for removal, 'that the plaintiffs, John Swan and Frank M. Hutchinson, at the time of the commencement of this suit, were, and still are, citizens of the state of Pennsylvania; that the said Robert H. McMann was then (according to your petitioners' recollection) a citizen of the state of Ohio, but that he is not now a citizen of that state, but where he now resides or whereof he is now a citizen (except that he is a citizen of one of the states or territories comprising the United States) your petitioners are unable to state; that he went into bankruptcy in the bankruptcy court held at Cleveland, in the state of Ohio, several years since, and since the alleged claim of the plaintiffs arose, but your petitioners cannot now state whether he has now an assignee in bankruptcy or not, but they are informed and believe that he has not; that the said Stephen C. Rose, at the time of the commencement of this suit, was a citizen of the state of Michigan; that he died therein during the pendency of this suit, and the said Lester E. Rose is the administrator of the estate of the said Stephen C. Rose in the state of Michigan, he holding such office under and by virtue of the laws of that state only, the said Lester E. Rose being a citizen of the state of Michigan when so appointed and now, but that he is not a necessary party as plaintiff in this suit, for the reason that the suit being prosecuted by the plaintiffs as partners under the firm name and style of Swan, Rose & Co., and for the collection of an alleged debt or claim due to them as such partners, and which arose wholly out of their dealings as partners, if it exists at all, upon the death of the said Stephen C. Rose the cause of action survived to the other partners.' The petition, being accompanied with a satisfactory bond, was allowed, and an order made for the removal of the cause. The plaintiffs below afterwards, on December 13, 1879, moved to remand the cause on the ground, among others, that the circuit court had no jurisdiction, because the 'real and substantial controversy in the cause is between real and substantial parties who are citizens of the same state and not of different states.' But the motion was denied. Subsequently a trial took place upon the merits, which resulted in a verdict and judgment in favor of the plainfiffs, the defendants in error, for $238,116.18 against the defendants jointly, and the further sum of $116,468.32 against one of them. Many exceptions to the rulings of the court during the trial were taken, and are embodied in a bill of exceptions, on which errors have been assigned, and the writ of error is prosecuted by the defendants below to reverse this judgment.

An examination of the record, however, discloses that the circuit court had no jurisdiction to try the action, and as, for this reason, we are constrained to reverse the judgment, we have not deemed it within our province to consider any other questions involved in it. It appears from the petition for removal, and not otherwise by the record elsewhere, that, at the time the action was first brought in the state court, one of the plaintiffs, and a necessary party, McMann, was a citizen of Ohio, the same state of which the defendants were citizens. It does not affirmatively appear that at the time of the removal he was a citizen of any other state. The averment is that he was not then a citizen of Ohio, and that his actual citizenship was unknown, except that he was a citizen of one of the states or territories. It is consistent with this statement that he was not a citizen of any state. He may have been a citizen of a territory; and, if so, the requisite citizenship would not exist. New Orleans v. Winter, 1 Wheat. 91. According to the decision in Gibson v. Bruce, 108 U.S. 561, S.C.. 2 SUP. CT. REP. 873, the difference of citizenship on which the right of removal depends must have existed at the time when the suit was begun, as well as at the time of the removal; and, according to the uniform decisions of this court, the jurisdiction of the circuit court fails, unless the necessary citizenship affirmatively appears in the pleadings or elsewhere in the record. Grace v. ''American Cent. Ins. Co.'' 109 U.S. 278-283; S.C.. 3 SUP. CT. REP. 207; Robertson v. Cease, 97 U.S. 646. It was error, therefore, in the circuit court to assume jurisdiction in the case, and not to remand it, on the motion of the plaintiffs below.

It is true that the plaintiffs below, against whose objection the error was committed, do not complain of being prejudiced by it, and it seems to be an anomaly and a hardship that the party at whose instance it was committed should be permitted to derive an advantage from it; but the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. This rule was adopted in Capron v. Van Noorden, 2 Cranch, 126, decided in 1804, where a judgment was reversed on the application of the party against whom it had been rendered in the circuit court, for want of the allegation of his own citizenship, which he ought to have made to establish the jurisdiction which he had invoked. This case was cited with approval by Chief Justice MARSHALL in Brown v. Keene, 8 Pet. 112.

title: Mansfield Railway Company v. Swan


text: Talk:Mansfield Railway Company v. Swan

title: Talk:Mansfield Railway Company v. Swan