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Fuentes v. United States/Opinion of the Court

THIS was an appeal from the District Court of the United States for the northern district of California.

The nature of the title, and evidence in support of it, are stated and commented on on the opinion of the court, and need not be repeated.

It was argued by Mr. Blair for the appellant, and by Mr. Black (Attorney General) for the United States. Mr. Blair also filed a brief by Mr. Crockett, which he adopted as his own.

1. That neither the grant itself nor the law fixed any period within which the grantee was required to take possession.

See Jones's Report, p. 22, and Larkin's case.

2. That the minority of the grantee was, perhaps, the reason why the common requirement as to time was not one of the conditions of the grant, and repels any presumption of an intention to abandon the claim arising from the delay in occupying the land.

3. That no law, regulation, or custom, forbade grants to minors, and the court will not undertake to revise the discretion of the Governor as to the proper persons to receive grants.

4. That as the grant purports to have been recorded in the archives, and it is shown that the book corresponding to the year in which this grant was made was destroyed, the case made comes fully up to the requirements of the Cambuston case.

5. That as the genuineness of this grant was not questioned below, it cannot be impeached here, even on the testimony in the record. So the court held in Larkin's case. A fortiori, the court will not consider the extraneous matter offered by the Attorney General, whether offered as testimony or as historical facts, which, if true, might have been explained, if they had been offered below.

These points were more particularly stated in the brief which Mr. Blair adopted, viz:

1. That the grant is valid, and ought to be confirmed, notwithstanding there was no approval of the Departmental Assembly, and no judicial measurement.

United States v. Fremont, 17 How., 560.

United States v. Reading, 18 How., 8.

United States v. Cruz Cervantes, 18 How., 553.

United States v. Vaca, 18 How., 556.

United States v. Larkin, 18 How., 563.

2. The grant was duly recorded, and on the face of the grant the original is ordered to be delivered to the grantee, who now produces it.

3. The proof shows that it was written and recorded in 1843, when, it is conceded, Governor Micheltorena had full authority to grant lands.

4. The authenticity, date, and recording of the grant, being clearly established, and the grant itself reciting that the grantee had petitioned for the land, and that all 'the necessary steps and the precautionary proofs required by the laws and regulations' had been taken, the law will presume that the Governor had performed his duty in these respects, and had not exceeded his powers.

United States v. Peralta, 19 How., 347.

United States v. Aredondo, 6 Pet., 729.

United States v. Delassus, 9 Pet., 134.

Minter v. Crommelin, 18 How., 88.

Bagnell v. Broderick, 13 Pet., 448.

5. This grant had only the usual conditions; and they were all subsequent conditions, the non-proformance of which would not, ipso facto, avoid the grant.

6. The fact that the grantee was a minor did not invalidate the grant. There is nothing in the act of 1824, or the regulations of 1828, restricting the power of the Governor in this respect. Under the Mexican and civil law, the age of majority was twenty-five; and the policy of the colonization laws was not at variance with a grant of lands to a person under that age. For aught that appears, a minor might be as capable as any other of cultivating and improving his lands. If minors be excluded for want of capacity, the same reasoning would exclude old, infirm, and indigent persons, or females of feeble capacity, and especially married women. The capacity of the grantee, and his fitness to take the grant, and the propriety of making it, under all the circumstances, were precisely the questions submitted to the discretion of the Governor, and these questions cannot be litigated over again.

7. If it be conceded that the conditions were not fulfilled, this fact can raise no presumption of abandonment in this case. In the case of Fremont, this court decided, that whilst the conditions are subsequent, and a failure to perform them, in the absence of a 'denouncement' of the land by another, will not divest the title, yet that an unreasonable delay in performing the conditions may amount to evidence of abandonment; and that the party is now seeking to resume his ownership, after the lands have become enhanced in value. In the Fremont case, a failure to perform the conditions was excused, because of the unsettled state of the country, and the dangers arising from hostile Indians in that vicinity. In the case at bar, the country was not only in a revolutionary state from the date of the grant, until about the period when the American forces took possession of the country, but the grantee was a minor, and so continued, until the last-named period. We maintain, that no presumption of abandonment will arise against a minor, under either the civil or common law.

Under the Spanish law in force in Mexico, the rights of minors are more fully protected than even at common law, as will appear by reference to 1 Domat's Civil Law, page 529, book IV, title 6, section 2, where the law relating to minors is fully collated.

Under the civil law, the term 'abandonment' has a technical and definite meaning, to wit: 'that if a man be dissatisfied with his unmovable estate, and abandon it immediately, and depart from it corporeally, with an intention that it shall no longer be his, it will become the property of him who first enters thereon.

1 Partidas, Law 50, p. 365.

Escriche, p. 5, title 'Abandono de cosas.'

Landes v. Perkins, 12 Missouri R., 238.

In certain cases, the doctrine of abandonment is rigidly enforced under the Spanish law; but these are special cases, and this is not one of them.

See Escriche, page 6.

The author says: 'But these strict principles are not admitted in our general laws, and we have already seen that every proprietor may preserve his estate in lands, although he has failed to cultivate them for many years.' But an intention to abandon his estate will not be presumed against a minor, nor will prescription run against him.

Escriche, p. 1230, title 'Menor.'

Calvin v. Innis, 10 Martin (La.) R., 287.

9 Louisiana R., 379.

Orso v. Orso, 11 Louisiana R., 62.

It is evident therefore that under the Spanish law of abandonment the grantee in this case did not lose his land. But, in such cases, how is the fact of abandonment to be ascertained? The only effect of it is, not to forfeit the land to the sovereign, but to enable the first occupant to claim it as his. Before his right is established, it must be done by some judicial proceeding; and no other is known to the Spanish law than the process of 'denouncement,' which is employed not only in obtaining a title to abandoned lands, but also to mines which have been abandoned. It is a judicial proceeding, conducted with much formality, and after due notice.

1 Rockwell's Spanish and Mexican Law, 50 to 56.

9. The title of the grantee is a legal and not an equitable title. His grant is a patent, and conveys the legal estate, which would maintain ejectment.

Ferris v. Coover, 10 Cal. R., 589.

In several cases before this court, from California, grants similar to this have been deemed and held to be equivalent to patents. The claimant's application for a confirmation is not, therefore, addressed to the equity side of the court; but he invokes its judgment upon the question whether or not he has a valid legal title to the land; and if so, he asks that it be confirmed. In such a case, the only question presented is, whether or not he produces a valid and definitive grant, free from fraud. If his grant be of that character, it is not perceived how the question of abandonment can arise. No mode is known to our laws, by which a legal title can be 'abandoned,' so as to work a forfeiture; and we have already shown, that under the Spanish law, in order to divest the title, the fact of abandonment must be ascertained. No such proceeding having occurred in this case, the title is unimpeached.

The Attorney General referred particularly to the dates of the grant and other papers connected with the title, and then made the following points:

This grant is illegal and contrary to the laws and customs of the Government of Mexico, because—

I. The grantee was a minor at the time of its date, and incapable for that reason of performing the conditions annexed to it.

II. It is void because it was made by a Governor who was a near relative of the grantee.

III. There was no petition; no examination into the condition of the land or the character of the applicant; no map of the land; no reference to any magistrate or officer; no report upon the case; and, therefore, the Governor had no authority, jurisdiction, or power, to make the concession, even if the grantee had been a stranger to his blood.

IV. There is no expediente on file, and no note or record in any book among the archives of the Department.

V. Besides all this, it is fraudulent and spurious, a base and impudent forgery. For this assertion I give the following reasons:

1. The fact that no trace of this grant is to be found upon the record, is of itself conclusive evidence against its genuineness.

2. The grantee never took possession of the land, nor claimed title under it, nor produced the grant, until 1852.

3. The subscribing witness to the execution of the grant (Jimeno) was not called, and we must presume that he was not called because it was known that he would pronounce the paper to be fraudulent.

4. The testimony substituted in place of the best evidence was that of witnesses who, at the very most, could prove nothing beyond their own belief. One of them does not prove even so much, but only that the signatures are like those of Micheltorena and Jimeno.

5. But these witnesses, no matter what they swear to, are unworthy of belief. They are professional witnesses. (See table in Limantour documents.) No court in California, where Manuel Castro's achievements as a witness are known, would pronounce a judgment upon his testimony. Abrego was incontestably proved to be guilty of perjury in the Limantour case, and the fact was so announced by the court.

6. The grant is dated at Monterey, on the 12th of June, 1843. Manuel Castro says it was written and executed there. But the fact is, that Micheltorena was not at Monterey until the 28th of September, 1843, that being the date of the earliest public paper on record which appears to have been issued from that place. On the 12th of June, 1843, he was at Los Angeles, as his public correspondence shows.

Exhibit H, Limantour case.

7. But the forgery of this paper can be conclusively established by ocular demonstration. On page 73 of the photograph exhibits contained in the library of the court will be found an exact photographic copy of this grant. On page 75 are the signatures. The signature of Manuel Jimeno there, when it comes to be compared with the genuine signatures elsewhere in the same book, will speak for itself.

It is not at all difficult to see how and when this grant was fabricated. It is in the handwriting of Manuel Castro, a part of whose business consisted in forging land grants. Probably enough, Micheltorena's name may have been put to it by his own hand, or it may have been written on one of those blank grants which Micheltorena issued after the treaty of peace. Either way, it is very certain it was done at the city of Mexico, as late as the year 1850. Manuel Castro wrote it then and there, and not at Monterey in 1843. The court will observe that, though the grant is dated in 1843, and the power of attorney on the back of it bears date at the city of Mexico, in 1848, there is no official attestation of either, nor anything else which can repel the presumption of forgery, earlier than 1852. It is very certain that at that time the paper was in existence, with the power of attorney on its back. But it had been fabricated a very short time before. There are several other grants in Manuel Castro's handwriting. (See pages 54, 56, 64, and 67, of the photograph exhibits.) They were made about the same time, and they are known to be forgeries, for they have Limantour's false seal, which was certainly not made before 1850.

Mr. Justice WAYNE delivered the opinion of the court.

The appellant has come to this court asking for a confirmation of his claim to eleven leagues of land, called Potrero. The paper under which he claims the land purports to be a grant from Governor Micheltorena. It recites that the land is within the ex-mission of San Jose, bounded on the north by the locality called the Warm Springs, on the south by Palos, on the west by the peak of the hill of the ranchos Tulgencio Higuera and Chrysostom Galenda, and on the east by the adjoining mountains. In also recites that the Governor had taken all the necessary steps and precautionary proofs which were required by the Mexican laws and regulations for granting lands, and that he had granted the land upon the following conditions to the appellant:

1. That he should enclose it without prejudice to the crossways, roads, and uses; that he shall have the exclusive enjoyment of it, and apply it to such use and culture as may best suit his views.

2. That he should apply to the proper judge for judicial possession of the same, by whom the boundaries shall be marked out, and along which landmarks should be placed to designate its limits, and that fruit and forest trees shall be planted on the land.

3. That the land given should contain eleven leagues for large cattle, as is designated by a map said to be attached to the expediente. The land is to be surveyed according to the ordinance; and should there be an overplus, it was to inure to the benefit of the nation.

The title is to be recorded in the proper book, and then to be delivered to the petitioner for the land, for his security. This paper bears date the 12th June, 1843, and has the name of Micheltorena to it, which is denied to be his signature.

The first inquiry, then, concerning it, should be into its genuineness. Was it executed by Governor Micheltorena? Has the party claiming proved it?

The testimony introduced in support of the genuineness of the paper is to be found in the depositions of Zamon De Zaldo, Jose Abrego, Manuel Castro, and Joseph L. Folsom. Zaldo declares himself to be chief clerk and interpreter to arrange and classify the Spanish and Mexican archives in the custody of the surveyor general of California. He was not interrogated as to the signature to the paper, and says nothing about its having been executed by Micheltorena. He was asked what he knew of the book of land titles of the Mexican Government for the year 1843. He answers that he knew that a book for the year 1843 was not in the office, though he did not know of his own personal knowledge that such a book ever existed, and that all that he did know about it had been learned from a correspondence in the office, that such a book belonging to the archives had been in the possession of J. L. Folsom, United States quartermaster at the time, and that he had learned, in the same way, that it was destroyed with Folsom's papers by the fire in San Francisco of 1851. Folsom states that a book of records, containing grants of land in Upper California, had been put into his possession in the spring of 1851, to be used as evidence in the suit of Leese & Vallejo v. Clark, then pending in the Superior Court of the city of San Francisco. It was in the Spanish language, and came from the archives of the Mexican Government of California, then in the possession of the commanding general at Benicia, and was delivered to him as an officer of the army, for safe keeping. He adds: after the book was used as evidence, it was returned to me, and was deposited in my office in the city of San Francisco; and whilst there, the great fire of the 3d and 4th May, 1851, occurred, by which my office and its contents, including the said book, were destroyed. And he then concludes his deposition, saying: 'I am not positive as to the date of the grants contained in the said book, but from my best recollection, my impression is that they were for the years 1843 and 1844.' The purpose for which Zaldo and Folsom were made witnesses for the claimant was to connect the book which Zaldo said was not among the archives with the book which Folsom said had been burned, that it might be inferred, from the date of the paper upon which Fuentes rests his claim, that it had been recorded in that book. It is stated in the petition that the grant was issued and delivered in due form of law on the 12th June, 1843; that it was recorded at the time it was issued; that it was not to be found in the archives; and that he believes that the copy of the grant was burned, and on that account could not be produced. It is further stated, that the grant had been approved by the Territorial Legislature, and was in all respects formally completed according to law, but that the records of the Legislature for the year 1843 were in like manner destroyed by fire at the same time with the record of the grant, and that the claimant could not produce any evidence of the approval of the grant by the Legislature. In this recital from the petition we find a very exact anticipation of what the evidence ought to be, to prove that such a grant had been issued, and that it had been duly recorded, but none such was introduced. Zaldo believes, from a correspondence in the office, that a book belonging to it had been burned while it had been in the safe keeping of Folsom. Folsom says a book from the archives was burned, but that he cannot be positive as to the date of the grant in it, but that from his best recollection his impression was, the grants in it were for the years 1843 and 1844; and Zaldo declares that he had no personal knowledge that such a book ever existed, but adds, that there is wanting in the office a book for the year 1843. This falls far snort of the evidence which was necessary to connect the alleged grant with the archives of the office. There is no other evidence in the record to supply such deficiency. And it is admitted now that the paper was never sent to the Departmental Assembly.

In truth, between that burned book and the Fuentes paper, the testimony in the record makes no connection whatever. The mere declaration that it was dated in 1843 cannot do so. Nor can any implication of the kind be raised from the testimony of Abrego and Castro. Neither of these witnesses were interrogated concerning the burned book, nor was any attempt made to prove that any of the records of the Departmental Assembly, especially its approval of this grant, had been burned at the same time. What has been said of the insufficiency of the evidence to prove the record of the paper applies with equal force to the certificate which is alleged to have been given by Jimeno, that the paper set out in the petition as a grant had been recorded in the proper book, which is used in the archives of the secretary's office.

The case, then, stands altogether disconnected from the archives, and exclusively upon the paper in the possession of Fuentes. It has no connection with the preliminary steps required by the act of Mexico of the 18th August, 1824, or with the regulations of November 28, 1828. It is deficient in every particular-unlike every other case which has been brought to this court from California. There was no petition for the land; no examination into its condition, whether grantable or otherwise; none into the character and national status of the applicant to receive a grant of land; no order for a survey of it; no reference of any petition for it to any magistrate or other officer, for a report upon the case; no transmission of the grant-supposing it to be such-to the Departmental Assembly or Territorial Legislature, for its acquiescence; nor was an expediente on file in relation to it, according to the usage in such cases.

All of the foregoing were customary requirements for granting lands. Where they had not been complied with, the title was not deemed to be complete for registration in the archives, nor in a condition to be sent to the Departmental Assembly, for its action upon the grant. The Governor could not dispense with them with official propriety; nor shall it be presumed that he has done so, because there may be, in a paper said to be a grant, a declaration that they had been observed, particularly in a case where the archives do not show any record of such a grant.

The act 1824 and the regulations of 1828 are limitations upon the power of the Governor to make grants of land. They are, and were also considered to be, directions to petitioners for land, before they could get titles. Where the petition and the other requirements following it have not been registered in the proper office with the grant itself, a presumption arises against its genuineness, making it a proper subject of inquiry before that fact can be admitted. It is not to be taken as a matter of course; nor should slight testimony be allowed to remove the presumption. Both the kind and quantum of evidence must be regarded. We proceed to state what they are in the record.

None can be found to establish with a reasonable probability the genuineness of the paper upon which the claimant relies. The only testimony bearing upon the genuineness of the paper is that of Abrego and Castro. Both speak of the signature of Micheltorena, and no further. Abrego says that he knew the Governor; that he had frequently seen him write, and that he had examined the signature to the document presented to him. and that he knows it to be the signature of Governor Michel torena.

Castro is more particular, but not so positive; and he gives a narrative of the origin of the paper, which is certainly peculiar, and from which a reasonable suspicion may be indulged against his disinterestedness. He says: 'An instrument in writing is now shown to me, purporting to be a grant Jose Maria Fuentes, dated June 12, 1843, and it is attached to the deposition of Jose Abrego, heretofore taken in this case, and marked H. J. T., No. 1. I know the paper; it is in my handwriting. I was at the time secretary in the prefect's office in Monterey, and being on terms of friendship with Secretary Jimeno and Mr. Arce, a clerk in his office, I frequently assisted them in their official duties, at their request, and in that manner I wrote the body of this grant. It was written in June, 1843, at the time of its date. I know the signature of Micheltorena; and the signature purporting to be his appears like his; and the signature of Jimeno on said paper also appears like his.' The words of the witness have been given.

The signature of Jimeno, of which Castro speaks, purports to be a certificate from Jimeno that the grant had been recorded, the day after its date, in the proper book of the archives of the secretary's department. It is upon the same paper with the title, and purports to have been put upon it by the order of the Governor, 'that the title might be delivered to the party interested, for his security and ulterior ends.'

Abrego, in a second deposition, says he knew Fuentes and his family, and that he was not of age, but was a minor, on the 7th July, 1846-more than three years after the date of the grant.

Such is all the testimony in this record to prove the genuineness of the signature of Micheltorena, unless it be the notarial certificate, given under the seal of the National College in the city of Mexico; which, as it is presented in this case, is not evidence, and of no account at all.

We will now show that the testimony of Abrego to the signature of Micheltorena is insufficient to establish that fact, and that Castro's deposition gives to it no aid. In truth, the whole case has no other evidence in support of the genuineness of the signature of the Governor than what Abrego has said. In showing this, we shall have no occasion to impeach his character as a man, or his truthfulness as a witness, as there is nothing in this record, whatever there may be in others, to justify such an attack. The case must be decided upon what its own record contains, and upon nothing else.

Abrego's deposition has not that foundation which the rules of evidence require a witness to have, to enable him to prove the genuineness of an official signature to a public document, or a signature to a private writing. The document in this instance purports to be genuine; but whether so or not, it discloses the fact that there is upon it an official witness of its execution and record, who should have been called to prove it, if he was living, and if absent beyond the jurisdiction of the court, whose signature should have been proved by a witness who was familiar with his signature and handwriting, before secondary evidence could be received of his own signature, or that of the official who is said to have executed the paper.

It was the duty of Jimeno to record all grants which were made by the Governor, and to give attestations of that fact, and which it is said Jimeno did give to the paper in this instance. Why was not Jimeno called? It seems that he was overlooked or not thought of.

The simplest and best proof of handwriting is the testimony of one who saw the signature actually written; and inferior evidence as to his handwriting is not competent, until it has been shown that his testimony to the execution of the paper could not have been procured. And when a document, either public or private, is without a witness, the best evidence to disprove the signature, and to prove it forged, is the testimony of the supposed writer, if he be not incompetent from interest, and can be produced. In the latter case, the next best evidence is the information of persons who have seen him write, or been in correspondence with him.

Such, however, is not this case, though it was acted upon in the court below as if it was so.

Abrego here, then, is in the attitude of an incompetent witness, who was called and permitted to testify before the party by whom he was introduced, had laid a foundation for the next best evidence, when the paper submitted to him showed the fact that the better could have been had, either primarily or secondarily, in the manner we have already indicated. Abrego swears that he knew Micheltorena; that he had frequently seen him write; that he had examined the signature to the document presented to him, and that he knew it to be the signature of Governor Micheltorena. But had Secretary Jimeno been called as a witness, as it was his official duty to test the signature of the Governor to grants, his would have been the best testimony to prove its genuineness in this instance, and that the grant had been transferred to him officially, for delivery to the grantee.

Castro's deposition is in the same predicament with that of Abrego but with an aggravation of its insufficiency to prove the signature of Micheltorena, and of his incompetency as a witness. He was not asked if he knew Micheltorena, or was familiar with his handwriting or with his signature, or if he had ever seen him write. He only says: I know the signature of Micheltorena, and the signature to the paper appears like his, and the signature of Jimeno appears like his. He does not say how he had become qualified, by comparison or otherwise, to swear to the signature of Micheltorena; and notwithstanding his declared friendship with Jimeno-so much so, that he was frequently asked to assist him in the duties of his office, and particularly asked to write out in his own hand the paper in question-he has left it to be inferred that he only knew enough of Jimeno's handwriting to enable him to say that the signature to the grant which he wrote out in his own hand appears like Jimeno's signature.

If such was the way of doing business in the secretary's office, which we have no cause for believing, it must have been an easy matter to get from it such a paper as that now in question, and not at all difficult to have been accomplished by one who had such familiar access to the office as Castro represents himself to have had, especially if all of the prerequisites of a grant enjoined by the act of 1824 and the regulations of 1828 were allowed to be disregarded.

This narrative of De Castro, instead of bringing the mind to any conclusion in favor of the genuineness of the signatures of Micheltorena and Jimeno, rather suggests caution in receiving it, and that it ought to be corroborated by other witnesses before that shall be done. It seems to us, too, somewhat remarkable that this witness, familiar as he was with the origin and object of this paper prepared by himself, should not have been questioned concerning its delivery to Fuentes, then a minor, to whom it was delivered for him, or what was done with it at the time of its date, or in whose possession it was from that time until it was presented to the land commissioners for confirmation, in 1852.

There is entire absence of all proof of its having been delivered to Fuentes himself, or to any one for him; but it seems to have found its way to the city of Mexico, as the record snows, and reappears in California years after its cession to the United States, and more than eight years after it is said to have been executed. The assertion in the paper itself, that the Governor had directed it to be delivered, can be no proof of that fact, until its genuineness shall have been ascertained. If the minority, too, of Fuentes is considered, in connection with the conditions upon which this grant is said to have been made, it may well be inferred that it was not delivered to the grantee, as he was not then in a situation to carry out the conditions of the grant, without the intervention of a tutor or guardian, and nothing was done to perform those conditions at any time afterward.

We do not speak now of such non-performance as a cause sufficient for denying a right claimed under a genuine grant; but only as a fact in this case accounting for the non-performance of the conditions of the grant, and making it probable that Fuentes did not receive this paper until some time after its date from Micheltorena, and not until after the cession of California to the United States. A delivery after the latter event, by a former Governor of California, would not give a grantee a right to claim the land by any obligation imposed upon the United States by the treaty of Guadalupe Hidalgo.

We have given to this case a very careful examination, and have concluded that no evidence can be found on its record to sustain the genuineness of the paper under which the land is claimed. That there is none to prove its registry in the archives of the Secretary's office, at the time of its date or afterwards. That no reliable proof has been given to connect it with the book of records, which had been committed to the care of the witness, Folsom, and was burned in his office. That it does not appear that any one of the precautionary requirements, before a grant of land could be made by a Governor of California, had been complied with in this case. That there is no proof whatever that such a paper as that in question had been delivered to the claimant at any time before the power of Mexico in California had ceased; and it was admitted, in the argument of the case here, that no such paper had been sent to the Departmental Assembly for its acquiescence, as a grant from the Governor.

It was, however, urged in the argument, that such prerequisites for a grant of land should be assumed to have been observed, on account of a recital in the paper or grant that they had been. Several cases from the reports of this court were cited, being supposed by counsel to support the position. None of them do so. We have not been able to find a case reported from this court, either under the Louisiana or Florida cession, that does. Peralta's case, in 19 Howard, 343, does not do so. The decision there is, that when a claimant of land in California produced documentary evidence in his favor, copied from the archives in the office of the Surveyor General, and other original grants by Spanish officers, the presumption is in favor of the power of those officers to make the grants. There, the authenticity of the documents was admitted, and the validity of the petitioner's title was not denied, on the ground of any want of authority of the officers who made the grant. This court then said, that the public acts of public officers, importing to be exercised in an official capacity and by public authority, shall not be presumed to be usurped, but that a legitimate authority had been previously given or subsequently ratified.

In the case of Minturn et al. v. Crommelin, 18 Howard, 88, it was ruled that when a patent for land has been issued by the officers of the United States, the presumption is in favor of its validity, and passes the legal title, but that it might be rebutted by proof that the officers had no authority to issue it, on account of the land not being subject to entry and grant. In Delassus's case, 9 Peters, 117, 133, the inquiry was, whether the concession was legally made by the proper authority; but the concession, being in regular form, carried prima facie evidence that it was within the power of the officer to make it, and that no excess or departure from instructions should be presumed, and that he who alleges that an officer intrusted with an important duty has violated it, must show it. But there was no question in that case about the genuineness of the concession. That was admitted. The genuineness of the grant in Arredondo's case, 9 Peters, was not questioned. Nor was the genuineness of the patent in Bagnel's case, 13 Peters, 437, a subject of controversy. This court ruled in that case, that a patent for land from the United States was conclusive in an action at law, and that those who claim against it must do so on the equity side of the court. It is not, however, to be supposed that no title in California can be valid, which has not all of the preliminary requirements of the act of the Mexican Congress of 1824, and of the regulations of 1828. But if none of them are to be found in the archives, and it cannot be established by the proof that they were registered there, this court will not presume that they were preliminary to a grant, because the Governor recites in the grant that they had been observed. In what we have said upon this point, we are reaffirming this court's opinion in Cambuston's case, 20 Howard, 59. And we now take this occasion to repeat, that when it shall appear that none of the preliminary steps for granting land in California have been taken, this court will not confirm such a claim. For the reasons already given, we shall affirm the decree of the District Court in this case.

But we also concur with that court in its rejection of this claim, supposing it to be genuine, upon the ground that there was no proof of a survey or measurement of this land, or any performance of its conditions, from which it may be inferred that the grantee had abandoned his claim. It is said that these were conditions subsequent, the non-performance of which do not necessarily avoid the grant. This is the case as to some of them; but even as to such, when a grantee allows years to pass after the date of his grant without any attempt to perform them, and without any explanation for not having done so, and then for the first time claims the land, after it had passed by treaty from the national jurisdiction which granted it, to the United States, such a delay is unreasonable, and amounts to evidence that the claim to the land has been abandoned, and that a party under such circumstances, seeking to resume his ownership, is actuated by some consideration or expectation of advantage, unconnected with the conditions of the grant, which he had not in view when he petitioned for the land, and when it was granted. The language just used was suggested in the Fremont case. The occasion has arisen in this case, when it becomes necessary to affirm it as a rule, to guide us in all other cases hereafter which may be circumstanced as this is.

The decree of the District Court in this case is affirmed.


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

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 is the principal. It has on one side the citadel, erected on an artificially made eminence 45 ft. high, surrounded by a wall 1 m. long, and containing the palace of the emir, the houses of the chief functionaries, the prison and the water-cisterns. The houses are mostly one-storeyed, built of unburned bricks, and have flat roofs.

Bokhara has for ages been a centre of learning and religious life. The mysticism which took hold on Persia in the middle ages spread also to Bokhara, and later, when the Mongol invasions of the 13th century laid waste Samarkand and other Moslem cities, Bokhara, remaining independent, continued to be a chief seat of Islamitic learning. The madrasa libraries, some of which were very rich, have been scattered and lost, or confiscated by the emirs, or have perished in conflagrations. But there are still treasures of literature concealed in private libraries, and Afghan, Persian, Armenian and Turkish bibliophiles still repair to Bokhara to buy rare books. Bokhara is, in fact, the principal book-market of central Asia. The population is supposed by Russian travellers not to exceed 50,000 or 60,000, but is otherwise estimated at 75,000 to 100,000. Amongst them is a large and ancient colony of Jews. Bokhara is the most important trading town in central Asia. In the city bazaars are made or sold silk stuffs, metal (especially copper) wares, Kara-kul (i.e. astrakhan) lamb-skins and carpets.

New Bokhara, or Kagan, a Russian town near the railway station, 8 m. from Bokhara itself, is rapidly growing, on a territory ceded by the emir. Pop. 2000.

 BOKSBURG, a town of the Transvaal, 14 m. E. of Johannesburg by rail. Pop. of the municipality (1904) 14,757, of whom 4175 were whites. It is the headquarters of the Witwatersrand coal mining industry. The collieries extend from Boksburg eastward to Springs, 11 m. distant. Brakpan, the largest colliery in South Africa, lies midway between the places named.

 BOLAN PASS, an important pass on the Baluch frontier, connecting Jacobabad and Sibi with Quetta, which has always occupied an important place in the history of British campaigns in Afghanistan. Since the treaty of Gandamak, which was signed at the close of the first phase of the Afghan War in 1879, the Bolan route has been brought directly under British control, and it was selected for the first alignment of the Sind-Pishin railway from the plains to the plateau. From Sibi the line runs south-west, skirting the hills to Rindli, and originally followed the course of the Bolan stream to its head on the plateau. The destructive action of floods, however, led to the abandonment of this alignment, and the railway now follows the Mashkaf valley (which debouches into the plains close to Sibi), and is carried from near the head of the Mashkaf to a junction with the Bolan at Mach. An alternative route from Sibi to Quetta was found in the Harnai valley to the N.E. of Sibi, the line starting in exactly the opposite direction to that of the Bolan and entering the hills at Nari. The Harnai route, although longer, is the one adopted for all ordinary traffic, the Bolan loop being reserved for emergencies. At the Khundilani gorge of the Bolan route conglomerate cliffs enclose the valley rising to a height of 800 ft., and at Sir-i-Bolan the passage between the limestone rocks hardly admits of three persons riding abreast. The temperature of the pass in summer is very high, whereas in winter, near its head, the cold is extreme, and the ice-cold wind rushing down the narrow outlet becomes destructive to life. Since 1877, when the Quetta agency was founded, the freedom of the pass from plundering bands of Baluch marauders (chiefly Marris) has been secured, and it is now as safe as any pass in Scotland.

 BOLAS (plural of Span. bola, ball), a South American Indian weapon of war and the chase, consisting of balls of stone attached to the ends of a rope of twisted or braided hide or hemp. Charles Darwin thus describes them in his Voyage of the Beagle: “The bolas, or balls, are of two kinds: the simplest, which is used chiefly for catching ostriches, consists of two round stones, covered with leather, and united by a thin, plaited thong, about 8 ft. long. The other kind differs only in having three balls united by thongs to a common centre. The Gaucho (native of Spanish descent) holds the smallest of the three in his hand, and whirls the other two around his head; then, taking aim, sends them like chain shot revolving through the air. The balls no sooner strike any object, than, winding round it, they cross each other and become firmly hitched.” Bolas have been used for centuries in the South American pampas and even the forest regions of the Rio Grande. F. Ratzel (History of Mankind) supposes them to be a form of lasso. The Eskimos use a somewhat similar weapon to kill birds. Bolas perdidas (i.e. lost) are stones attached to a very short thong, or, in some cases, having none at all.

 BOLBEC, a town of northern France, in the department of Seine-Inférieure, on the Bolbec, 19 m. E.N.E. of Havre by rail. Pop. (1906) 10,959. Bolbec is important for its cotton spinning and weaving, and carries on the dyeing and printing of the fabric, and the manufacture of sugar. There are a chamber of commerce and a board of trade-arbitration. The town was enthusiastic in the cause of the Reformed Religion in the 16th century, and still contains many Protestants. It was burned almost to the ground in 1765.

 BOLE (Gr. , “a clod of earth”), a clay-like substance of red, brown or yellow colour, consisting essentially of hydrous aluminium silicate, with more or less iron. Most bole differs from ordinary clay in not being plastic, but in dropping to pieces when placed in water, thus behaving rather like fuller’s-earth. Bole was formerly in great repute medicinally, the most famous kind being the Lemnian Earth ( ), from the Isle of Lemnos in the Greek Archipelago. The earth was dug with much ceremony only once a year, and having been mixed with goats’ blood was made into little cakes or balls, which were stamped by the priests, whence they became known as Terra sigillata (“sealed earth”). Large quantities of bole occur as red partings between the successive lava flows of the Tertiary volcanic series in the north of Ireland and the west of Scotland. Here it seems to have resulted from the decomposition of the basalt and kindred rocks by meteoric agencies, during periods of volcanic repose. In Antrim the bole is associated with lithomarge, bauxite and pisolitic iron-ore. Bole occurs in like manner between the great sheets of the Deccan traps in India; and a similar substance is also found interbedded with some of the doleritic lavas of Etna.

In the sense of stem or trunk of a tree, “bole” is from the O. Norwegian bolr, cf. Ger. Bohle, plank. It is probably connected with the large number of words, such as “boll,” “ball,” “bowl,” &c., which stand for a round object.  BOLESLAUS I., called “The Great,” king of Poland (d. 1025), was the son of Mieszko, first Christian prince of Poland, and the Bohemian princess Dobrawa, or Bona, whose chaplain, Jordan, converted the court from paganism to Catholicism. He succeeded his father in 992. A born warrior, he speedily raised the little struggling Polish principality on the Vistula to the rank of a great power. In 996 he gained a seaboard by seizing Pomerania, and subsequently took advantage of the troubles in Bohemia to occupy Cracow, previously a Czech city. Like his contemporaries, Stephen of Hungary and Canute of Denmark, Boleslaus recognized from the first the essential superiority of Christianity over every other form of religion, and he deserves with them the name of “Great” because he deliberately associated himself with the new faith. Thus despite an inordinate love of adventure, which makes him appear rather a wandering chieftain than an established ruler, he was essentially a man of insight and progress. He showed great sagacity in receiving the fugitive Adalbert, bishop of Prague, and when the saint suffered martyrdom at the hands of the pagan Slavs (April 23, 997), Boleslaus purchased his relics and solemnly laid them in the church of Gnesen, founded by his father, which now became the metropolitan see of Poland. It was at Gnesen that Boleslaus in the year 1000 entertained Otto III. so magnificently that the emperor, declaring such a man too worthy to be merely princeps, conferred upon him the royal crown, though twenty-five years later, in the last year of his life, Boleslaus thought it necessary to crown himself king a second time. On the death of Otto, Boleslaus invaded Germany, penetrated to the Elbe, occupying Stralsund and<section end="Boleslaus" />

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text: New York and Baltimore Transportation Company v. Philadelphia and Savannah Steam Navigation Company


text: Talk:New York and Baltimore Transportation Company v. Philadelphia and Savannah Steam Navigation Company


text:
New York and Baltimore Transportation Company v. Philadelphia and Savannah Steam Navigation Company/Opinion of the Court

THIS was an appeal from the Circuit Court of the United States for the eastern district of Pennsylvania.

It was a case of collision between the steamship Keystone State and a barge called the A. Groves, jun., which took place on the river Delaware, whereby the barge was sunk in the river, and her cargo greatly damaged.

The facts of the case are fully stated in the opinion of the court.

The libel was filed by the New York and Baltimore Transportation Company against the owners of the Keystone State. The District Court dismissed the libel, and the Circuit Court, upon appeal, affirmed the decree. The libellants then appealed to this court.

It was argued by Mr. Wharton and Mr. Schley for the appellants, and by Mr. McCall and Mr. Campbell for the appellees.

The points of fact averred by the respective counsel were stated briefly and clearly, and each position maintained by references to the evidence. They were as follows:

Points of Fact averred by the Libellants.

1. The Artisan, with her tow, was on the Jersey side of the channel, near the buoy on the lower end of Marcus Hook bar, steering a course having Christine Light on her starboard bow.

2. The opposing vessels were nearly opposite the same point on the Pennsylvania side, (viz: Naaman's Creek,) when the steamship ported her helm.

3. By porting her helm, the steamship must have run across the channel.

The respondent's witnesses cannot say what course the steamship was steering when she ported her helm.

4. The channel was from a half to three-fourths of a mile wide, and the speed of the steamship was from nine to ten miles per hour.

That speed was maintained until she reached the propeller, and she came in line with her by porting the helm.

5. There was no necessity for the steamship to port her helm, and it was one cause of the disaster. When she did it, she was aware of the presence of the Artisan.

6. If the steamship had kept her course without porting, the vessels would have passed.

7. The propelled did all that she could to avoid the disaster, and escaped. The tow was comparatively helpless, and suffered. She was struck on the starboard side, about thirty feet from her stern, in a diagonal line inclining thereto, her whole length being about eighty feet. A touch of the wheel of the steamship to starboard would have cleared the barge.

1. The Artisan and her tow were not on an equality with the Keystone State, and the rules, whether statutory or judicial, applicable to vessels on an equality with respect to capacity of self-management, are not applicable to the former.

The act of Congress of August 30, 1852, (10 Stat. at Large, 61-72,) applies only to passenger steamers.

See section 42.

So, also, the rules of the inspectors, under the authority of the 29th section, in the matter of vessels passing each other, signal lights, &c., embrace only the same class of steamboats, and are intended to avoid collisions between such vessels.

Those rules were, however, obligatory on the Keystone State. The fifth rule of the Supervising Inspectors, adopted October 29, 1852, provides that it shall not be lawful for an ascending boat to cross a channel when a descending boat is so near that it would be possible for a collision to ensue therefrom.

This rule was violated by the steamer.

Although not bound by the statute, the propeller did adopt the dictates of prudence and good seamanship, by keeping in to the Jersey side of the channel, and leaving the centre of it free.

A tug with a tow in charge is at least as helpless, in comparison with a steamer, as a sailing vessel; and with respect to the latter, the rule is well settled, that the steamer meeting such a one must give way.

Fashion v. Wards, 6 McLean, 153.

New York and Liverpool Mail Steamship Co. v. Rumball, 21 Howard, 372.

The Oregon v. Rocca et al., 18 Howard, 570.

St. John v. Paine et al., 10 Howard, 583.

The Genesee Chief, 12 Howard, 451.

There is nothing in our case to make it an exceptional one, or subject it to other rules of navigation.

The Keystone State could have avoided the collision, by either of two very simple modes. She could have stopped her engines in time, or she could have put her helm to starboard, having the channel to her larboard free; and by the law of 1852, and the decisions of this court, she was bound to avoid the collision if possible.

2. It being night, and the steamer approaching the harbor, it was her duty to proceed slowly and with caution. Not having done so, she is responsible for the consequences.

Culbertson v. Shaw, 18 Howard, 584.

Steamer Louisiana v. Fisher et al., 21 Howard, 1.

Peck v. Sanderson, 17 Howard, 178.

The James Watt, 2 W. Rob., 271.

The Birkenhead, 3 W. Rob., 75.

Steamboat New York v. Rea, 18 Howard, 228.

3. Even if the libellants committed any fault, (which is, however, denied,) a small exertion on the part of the respondents being sufficient to have prevented a collision, they were bound to make it.

The Genesee Chief, 12 Howard, 461; (ut supra.)

St. John v. Paine, 10 Howard, 557.

Newton v. Stebbins, 10 Howard, 586.

4. If both vessels were in fault, it was an error to throw the whole loss on the libellants; the damages should have been divided.

Brig James Gray v. John Frazer, 21 Howard, 184.

Schooner Catharine et al. v. Dickinson et al., 17 Howard, 170.

Chamberlain v. Ward, 21 Howard, 548.

The barge (the tow) followed the course of the Artisan, (the tug,) and obeyed her movements. She was entirely under her control. There is no evidence of any fault imputable to the barge; her being, therefore, the thing which actually came into collision with the steamer, makes no difference.

The James Gray, (ut supra,) 21 Howard, 194.

The question arises from the relative condition and action of the Artisan and the Keystone State.

1. Independently of all regulations, and of the rules of the maritime law, the usage of the river requires that approaching steamers shall port their helms and keep to the right in passing.

2. The vessels, steamer and propeller, with her tow, were, when first seen by each other, in or near the middle of the ship channel, and the channel was of the width of three-quarters of a mile. The river, from shore to shore, was wholly unobstructed, and no reason of any character is suggested which should have caused a deviation, on the part of the propeller, from the law and usage which required the steamers to port their helms, and pass larboard to larboard.

3. The propeller, from the time the lights were first discovered, was duly reported by the lookout, and, for the distance of two or three miles, was kept constantly and attentively in view by the pilot of the steamship. The helm of the steamship was ported and the lights of the propeller kept a point or a point and a half on the larboard bow; when in close proximity, a wrongful change of direction on the part of those having charge of the propeller, by starboarding her helm, instead of porting it as they should have done, ran her across the bows of the steamer, and caused the collision of the barge with the steamship.

4. Those on board the propeller appear to have had no lookout; utterly disregarded the lights of the steamer, which clearly indicated her direction; made no change of course of any kind until the collision was imminent, and then the wrongful movement above referred to.

5. The pilot of the steamship, on perceiving this wrongful movement, which brought both vessels in peril, ordered the helm hard a-port, and the steamship to be slowed and stopped, which orders were instantly complied with, and the steamship was almost, if not entirely, at rest at the time of the collision.

The effect of these orders, which were prudent and necessary, was to enable the propeller to go clear; but she, being still under full headway, brought the barge in contact with the steamship.

6. No timely precaution of any kind was used by the propeller to avert the collision.

7. The steamship was proceeding up the river at a lower rate of speed than upon other parts of her voyage, and cautiously, with pilot and lookout.

8. The barge was attached to the propeller by a hawser, draging below her in a direct line, at the distance of 180 feet, in such matter that it was impossible for the pilot of the steamship to up the barge until the moment of collision.

9. If the barge had been attached to the propeller's side, or near her, or under her control, the collision would not have occurred, the propeller passing fully clear of the steamer, with a space of fifty feet intervening.

10. If the propeller had ported her helm, as required by law and the usage of the river, or had ever slowed her speed, her tow would have cleared the steamship; and the fact that those on the propeller saw the red and white light of the steamer only, clearly exhibited the necessity for such movements; it necessarily follows, that when the bright and red light only are seen, the larboard side of the vessel is in view.

11. When those on board the propeller first saw the steamer, the propeller was above the buoy on the lower end of Marcus Hook. The channel below that point being on the western or Pennsylvania side of the river, gave to the steamship coming up the middle of the channel the appearance of being toward the Pennsylvania side. This may account for the erroneous statement of some of the libellant's witnesses, that the steamer was on the Pennsylvania side, and not in the mid-channel.

Map Coast Survey.

12. The captain of the propeller states that she had the Christine light a little on her starboard bow, but before the collision, and before his wrongful order to starboard, the captain also says: We were near the middle of the river, steaming down. The latter statement must be taken as correct, especially in view of the respondent's evidence. In any event, it would not be inconsistent with the fact that the steamer was in the middle of the channel.

1. The act of Congress of 1852, 10 Statutes at Large, 61-72, and the rules of the supervising inspectors appointed under the same, were applicable to the Keystone State, as a passenger steamer, and to the propeller also, if carrying passengers, as set forth in the libel, so far as respects lights and movements.

2. The admiralty rules are imperative-they are obligatory upon vessels approaching each other from the time the necessity for precaution begins, and continue so long as they advance.

N. Y. and L. U.S. S.C.o. v. Rumball, 21 Howard, 383.

3. The rule laid down is, that when two steam vessels are approaching each other, each shall port, and go to the right, passing each other larboard and larboard.

This rule is imperative in English courts of admiralty, and fully adopted by the United States courts.

The Duke of Sussex, 1 Wm. Rob., 285.

The Gazelle, 1 Wm. Rob., 471.

The James Watt, 2 Wm. Rob., 271.

St. John et al. v. Paine, 10 Howard, 558.

Origin et al. v. the Rocca, 18 Howard, 572.

Wheeler v. the Steamer Eastern State, 2 Curtis, 142.

4. A propeller, whether carrying passengers or engaged and used only for towing, and when having a tow in charge, is still a steamer, subject to all the general rules applicable to steamers; and the rule of law makes no such distinction as would require them to be considered with respect to other steamers as sailing vessels; on the contrary, a steamer with a tow in charge is bound to adopt the same rules with regard to a sailing vessel as a passenger steamer; no distinction is recognised between them.

Steamer New York v. Rea, 18 Howard, 223.

They are required also to have a lookout, charged specially with the duty.

Chamberlain v. Ward, 21 Howard, 571.

5. It was the duty of the propeller to have a competent and vigilant lookout stationed at the forward part of the steamer, in the position best adapted to descry vessels at the earliest moment, actually and vigilantly employed in the performance of that duty.

St. John v. Paine, 10 How., 557.

Chamberlain v. Ward, 21 How., 548.

The James Gray v. the John Frazer, 21 How., 192.

6. No such condition of things existed at the time and place of the collision as required the speed of the steamer to be reduced more than that stated in the evidence. The distance from the port of Philadelphia was twenty miles, and there were no vessels at anchor, or otherwise to interfere with the full use of the whole channel.

Steamer New York v. Rea, 18 Howard, 223.

Culberston v. Shaw, 18 Howard, 584.

The James Gray v. the John Frazer, 21 Howard, 185.

7. The 5th rule of the supervising inspectors, adopted October 29th, 1852, is cited in appellant's brief as providing, 'that it shall not be lawful for an ascending boat to cross a channel when a descending boat is so near that it would be possible for a collision to ensue therefrom.' This rule (the appellants aver) was violated by the steamer. The rule cited refers exclusively to boats navigating the 'rivers falling into the Gulf of Mexico and its tributaries.'

Mr. Justice CLIFFORD delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the United States for the eastern district of Pennsylvania, in a cause of collision, civil and maritime.

It was a suit in rem against the steamship the Keystone State, brought by the appellants as the owners of the barge known as the A. Groves, jun., to recover damages on account of a collision which took place on the eighteenth day of August, 1857, between the steamer and the barge on the river Delaware, whereby the barge was sunk in the river, and her cargo was greatly damaged.

At the time of the disaster the barge was in tow of a propeller, called the Artisan, which was also owned by the appellants, and to which the barge was attached by a hawser, about one hundred and seventy feet in length. It occurred between one and two o'clock in the morning, about twenty miles below the city of Philadelphia, to which port the steamer was bound on her return trip from Savannah, in the State of Georgia.

According to the case made in the libel, the propeller, with the barge in tow, was on her way from the city of New York to the city of Baltimore, with her usual complement of freight. She was proceeding down the river, on the eastern side of the channel, and the steamer was coming up the river, on the opposite side of the channel, with ample room to have kept clear of the barge.

To show that neither the propeller nor the barge was in fault, it is alleged by the libellants that both those vessels had proper lights, and that the propeller had sufficient lookouts properly stationed on the vessel, and that they were vigilantly employed in the performance of their duties. They also allege that the steamer, when about three-quarters of a mile distant from the propeller, changed her course more out into the stream of the river, heading diagonally across the channel, in the direction of the descending vessels, and ran with great force and violence against the barge, striking her on the starboard side, near the after gangway, and cutting her down to such an extent that she immediately sunk in the river. In this connection they also allege that the barge, at the time of the collision, was laden with a cargo of merchandise, valued at seventy thousand dollars, and that the goods were damaged by the disaster to an amount equal to half their estimated value.

It is denied by the respondents that the circumstances attending the collision are truly stated in the libel. On the contrary, they aver that it was occasioned wholly through the fault and gross negligence of those in charge of the descending vessels. To lay the foundation for that theory, they allege that while the steamer was proceeding up the river at mid-channel, in the regular course of her voyage, and when about four miles below Marcus Hook, the second mate, pilot, and lookout of the steamer, discovered lights directly ahead, which appeared to be about three miles distant; that the steamer continued her course up the channel, keeping the lights on her larboard bow, but as near ahead as was practicable; that after continuing that course for some time, and when about a mile distant from the lights, they were found to be the lights of the propeller, and appeared to be at mid-channel. Orders were then given by the pilot of the steamer to port her helm, so as to bring the lights of the propeller a point on the larboard bow of the steamer; and the order was forthwith obeyed. At that time the steamer, as alleged in the answer, was heading northeast by east; and she continued on that course, keeping the lights of the propeller one point on her larboard bow, until she approached within three hundred yards of the lights, when the propeller suddenly starboarded her helm, and attempted to cross the bows of the steamer. On seeing the propeller change her course in that direction, the pilot of the steamer gave the signal to slow and stop in immediate succession, and the orders, as alleged, were promptly obeyed. Those orders were so far carried into effect that the propeller passed on her course without injury; but the barge was dragged by the hawser directly against the bows of the steamer, and thereby received the damage, as alleged in the libel.

Such is the substance of the pleadings, respecting the circumstances attending the collision, so far as it is necessary to examine them at the present time.

After the hearing in the District Court, a decree was entered for the respondents, dismissing the libel; and on appeal to the Circuit Court, that decree was affirmed-whereupon the libellants appealed to this court.

As appears by the proofs, the steamer, at the time of the collision, was well manned and equipped, and was in charge of a branch pilot, fully qualified to conduct and manage steam vessels on that river. She was a side-wheel steamer, of fifteen hundred tons burden, engaged in carrying freight and passengers, and had proper lights and sufficient and vigilant lookouts. They discovered the lights of the propeller when she was three miles distant, and continued to watch the lights till the collision occurred. On the other hand, the propeller was a vessel of one hundred and twenty-two tons burden, and the tonnage of the barge was about the same.

Three men, the master, the wheelsman, and one of the watchmen, were on the deck of the propeller at the time of the collision. All of the other hands, including the pilot, were below. Of those on deck, the master was standing forward of the pilot-house, but the watchman was standing aft the house, which he admits was higher than his head, so that he could not see over it. His position for a lookout was clearly an improper one, as the view forward was entirely obstructed by the house of the vessel. Chamberlain and al. v. Ward and al., 21 How., 570. Lookouts stationed in positions where the view forward, or on the side of the vessel to which they are assigned, is obstructed by the lights or any part of the vessel, do not constitute a compliance with the requirement of the law.

To constitute such a compliance, they must be persons of suitable experience, properly stationed on the vessel, and actively and vigilantly employed in the performance of that duty.

In this case, however, it appears that the steamer was actually seen by the master, who was in charge of the deck, in season to have adopted every necessary precaution to have avoided the disaster, but he admits that he did not pay much attention to the approaching vessel. When he first saw her, he says she was proceeding right up the river, but adds, that in the course of five minutes she changed her course, and ran from the western towards the eastern shore, which is the theory set up in the libel. According to the evidence, the speed of the steamer was nine or ten miles an hour, and that of the propeller was seven or eight miles an hour, with an ebb tide. At the place where the collision occurred, the channel of the river is about three-fourths of a mile wide, and the evidence shows that there is a cove or bend in the river below, so that a vessel coming up the river in the night-time would appear to an inattentive or casual observer, standing on the deck of a descending vessel, as being near the western shore, when in point of fact she was at mid-channel. Witnesses on both sides were examined as to the character of the night, and they generally agree, that while it was somewhat cloudy, there were intervening stars, and that it was not unusually dark.

Two propositions were chiefly relied on by the libellants. In the first place it was insisted in their behalf, that the propeller, with the barge in two, ought to be regarded in the same light as a sailing vessel, and that it was the duty of the steamer to keep out of the way. No authority was cited in support of the proposition, and we are not aware of any decided case that favors that view of the law. Steamers are required to keep out of the way of sailing vessels, upon the ground that their power and speed are far greater than vessels of the latter class, and because those in charge of them can more readily and effectually command and appropriate that power and speed so as to avoid a collision, when it would be impossible for the sailing vessel to keep out of the way. St. John v. Paine, 10 How., 583. The Genesee Chief, 12 How., 463. Steamship Co. v. Rumball, 21 How., 384. None of the reasons on which the rule is founded, as applied to sailing vessels, exist in a case like the present. Propellers have nearly the same speed as side-wheel steamers, and quite as much power. Whether they obey the helm as readily or not, may admit of a question, but there is not sufficient difference in that behalf to justify any discrimination whatever in the application of the rules of navigation. If they take other craft in tow, those in charge of them ought to augment their vigilance in proportion to the embarrassments they have to encounter, especially when they do not see fit to slacken their speed.

It is insisted, in the second place, that the collision was occasioned through the fault of the steamer; that she changed her course and attempted to pass the bows of the propeller, as is alleged in the libel.

On the part of the respondents, this proposition of facts is denied, and they insist that the fault was committed by the propeller, in omitting to port her helm and go to the right. Beyond question, the law is well settled that steamers approaching each other from opposite directions are respectively bound to port their helms and pass each other on the larboard side.

No attempt was made at the argument to controvert the proposition, and it is too firmly established by decided cases to require any argument in its support. The Duke of Sussex, 1 Wm. Rob., 285. The Gazelle, 1 Wm. Rob., 471. The James Watt, 2 Wm. Rob., 271. St. John v. Paine, 10 How., 558. The Oregon v. Rocca, 18 How., 572. Wheeler v. the Eastern State, 2 Cur. C. C., 142. Much testimony was introduced on the one side and the other upon this point, and it is somewhat conflicting. All that can be done under the circumstances with any possible advantage to either party will be to state our conclusions upon the evidence. After a careful examination of the depositions, we think it is clearly proved that both vessels as they approached each other were near mid-channel. Most of the witnesses on board the steamer expressly affirm that she was near mid-channel when the lights of the propeller were first discovered, and they all agree that her helm was not changed, except for the purpose of bringing the lights of the propeller one point on her larboard bow, until the propeller starboarded her helm, and attempted to cross the bows of the steamer. That movement of the propeller was a direct violation of the rules of navigation, and was entirely without any excuse. Her master may have been deceived as to the course of the steamer, by the slight bend in the river; but if so, it is the misfortune of those who employed him that he was not better acquainted with the navigation, or more attentive to his duty.

The decree of the Circuit Court is therefore affirmed with costs.


text: Talk:New York and Baltimore Transportation Company v. Philadelphia and Savannah Steam Navigation Company/Opinion of the Court


text: Adams v. Preston

title: Adams v. Preston


text:
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text: Talk:Adams v. Preston

title: Talk:Adams v. Preston