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California Artificial Stone Paving Company v. Molitor/Opinion of the Court

A bill was filed by the appellant in this case against the appellee, complaining that the latter had infringed, and continued to infringe, certain letters patent granted to one John J. Schillinger, and which had been assigned for the state of California to the complainant. The patent was for an improvement in concrete pavement, and was originally issued July 19, 1870, and reissued May 2, 1871. The improvement, as described in the reissued patent, consisted in laying the pavement i detached blocks, separated from each other by strips of tar paper, or other suitable material, so as to prevent the blocks from adhering to each other. As stated in the specification, 'the paper constitutes a tight water-proof joint, but it allows the several blocks to heave separately from the effects of frost, or to be raised or removed separately, whenever occasion may require, without injury to the adjacent blocks.' Prior to this invention, it seems, from the statement of facts made by the court, that concrete pavements had been made in one continuous sheet, without being divided into blocks, whence it was liable to crack in irregular directions, and to break up in such a manner as to render it useless. The specification of the reissued patent contained the following clause: 'In such cases, however, where cheapness is an object, the tar paper may be omitted, and the blocks formed without interposing anything between their joints as previously described. In this latter case the joints soon fill up with sand or dust, and the pavement is rendered sufficiently tight for many purposes, while the blocks are detached from each other, and can be taken up and relaid, each independent of the adjoining blocks;' but this clause had been disclaimed by filing a disclaimer in the patent-office. The patent had two claims, as follows: '(1) A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described; (2) the arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purposes set forth.'

The defendant answered the bill, denying the validity of the patent and denying infringement, and declaring that the concrete pavements made by him were made under and in accordance with certain letters patent granted to one J. B. Hurlburt, April 20, 1875, the process of which is described in the answer, as follows:

'The said Hurlburt invention is a novel method of forming blocks of artificial stone or cement pavement, whereby they are prevented from becoming uneven by sinking below or rising above a common plane, and consists in beveling the edges of the blocks so that they will measure more across their under side in one direction and less across their upper side than across their under side in the other or opposite direction; and also consists in the novel construction of a forming frame, whereby the blocks are beveled as devised by using the different sides of the frame alternately; and also in the novel construction of a parting strip, whereby the colors are kept separate, showing a straight line between the blocks and while forming their edges in actual contact, the same strip being of great service to rest a straight edge upon while beveling the block in process of formation, and that by said invention the process of laying cement pavements saves from 10 to 15 per cent. in cost of labor over any other known process, entirely dispenses with tar paper or any equivalent, and all other expensive superfluities, and makes a close-beveled joint; it being impossible to raise, or attempt to raise, any separate piece of work without chiseling and digging and materially unjuring adjacent work.'

What the proof was as to the actual process employed by the defendant, whether it strictly accorded with Hurlburt's plan or not, does not distinctly appear. The appellee's counsel in his brief states that the respondent was originally adjudged to have infringed the rights secured by the patent, by reason of having pressed into the joints made by the cutting of the large sections into blocks with a trowel, a fine concrete which was held to be the equivalent of the tar paper, as it accomplished the objects claimed to be gained by the patented invention, viz., producing a suitable tight joint and yet allowing the blocks to be raised separately without affecting the block adjacent thereto, and allowed the several blocks to heave separately from the effects of frost. But this fact is not shown by the record before us, and we are in the dark as to what particular form of pavement was adjudged by the court to have been an infringement of the patent sued on. We only know that, proofs having been taken and the cause heard, the circuit on September 10, 1881, decreed as follows:

'That the reissued letters patent No. 4,364, granted and issued on the second day of May, A. D. 1871, to John J. Schillinger, of New York, being the patent referred to in the bill of complaint herein, are good and valid in law. * *  * That the said defendant, Charles A. Molitor, has infringed said reissued letters patent, and upon the exclusive rights of the complainant under the same; that is to say, by making or selling one or more artificial concrete cement pavements within the state of California, and while the complainant was the owner of said reissued letters patent, as charged in said bill of complaint. * *  * And that a perpetual injunction be issued in this suit against the said defendant, Charles A. Molitor, restraining him, his agents, clerks, servants, and all claiming or holding under or through him, from making, selling, or using, or in any manner disposing of, any artificial stone-block pavements embracing the invention and improvements described in the said reissued letters patent, pursuant to the prayer of the said bill of complaint.'

Had the defendant continued to make concrete pavements in the manner set up in his answer, or in the manner in which it was proved he did make them, and which the court decided to be an infringement, there could have been no doubt that he would have violated the decree; but it would seem that he varied his mode of making the pavement by ceasing to make it in separate and detached blocks, and only making a mark or indentation on the surface while in a plastic state with a trowel or marker extending to a depth of from one-eighth of an inch to an inch, and thus giving the pavement the appearance of being made in detached blocks, and, in fact, answering all the purposes of detached blocks, the crease on the surface being sufficient to produce the results obtained by Schillinger's process.

In October, 1883, more than two years after the decree was entered, the complainant obtained a rule on the defendant to show cause why he should not be punished for a contempt of court in disobeying the decree; the alleged contempt consisting of the construction by the defendant of concrete pavements in the manner last mentioned, to-wit, at Redwood City, in San Mateo county. Of course, the question was at once raised whether the process now used by the defendant was an infringement of the patent. The judges being opposed in opinion, a decree was made in conformity with that of the circuit judge, declaring that the pavements thus constructed by the defendant did not infringe the patent; that there was no violation of the injunction; and that the order to show cause be discharged. A certificate was thereupon made, showing the points on which the judges disagreed, and the cause has been brought here both by appeal and by writ of error,-brought in both ways, as counsel state, because of the uncertainty as to which was the right method.

For the purpose of showing how the points of disagreement arose, and of furnishing materials for deciding them, the certificate exhibits the record and facts upon which (it is stated) the matter was heard below, consisting of-(1) The bill, answer, replication, decree, and injunction, and the order to show cause why the defendant should not be punished for contempt. (2) A statement of facts deduced by the court below from the evidence in the case, and the report of a master. This statement embraces a copy of the reissued patent of Schillinger, with the drawings annexed thereto, and a statement deduced from the testimony, describing, among other things, the manner in which the defendant, after the entry of the decree, constructed a certain pavement in Redwood City, to-wit, substantially as before mentioned. The § atement closes with the following declaration to-wit: 'While the blocks laid in strict accordance with the specifications in the Schillinger patent can be more readily taken up, still the cutting and marking, or the mere marking of the surface with the marker alone, as described, affords, to a very large extent, the advantages mentioned obtained by the use of the Schillinger partent; the additional cutting with the trowel, during the process of formation, to a greater or less extent, increasing those advantages. The Exhibit C, offered as follows, is a photograph of the sidewalk as laid by defendant Molitor, claimed to be an infringement of the patent in question.' The photograph exhibit is annexed to the statement.

The certificate then concludes as follows: 'At the hearing of said order to show cause, at the present term of the court, upon said record, and upon the facts hereinbefore stated, there occurred as questions arising thereon-(1) Whether the laying of said concrete pavement of plastic material on the ground in the manner stated, and dividing it into smaller blocks upon the surface by cutting across the surface of the larger blocks with a trowel, and afterwards running the marker along the line of the cutting with the trowel, in all respects as hereinbefore stated, constitutes an infringement of the patent to Schillinger set out in this certificate? (2) Whether the laying of the said concrete pavement of plastic material on the ground in the manner stated, and dividing it into smaller blocks upon the surface, by cutting across the surface of the larger blocks by running the marker, without any other cutting with a trowel or other instrument than the marker described, across the blocks, on a line previously marked, as a guide, in all respects in the manner as hereinbefore stated, thereby controlling the line of cracking, and obtaining in a greater or less degree the advantages pertaining and belonging to the pavements laid in all respects in accordance with the specifications of said Schillinger patent, constitutes an infringement of said patent? (3) Whether the defendant Molitor, by constructing the said pavement in all respects in the manner hereinbefore stated, is gulity of violating the injunction granted and made perpetual by the decree in this case? Upon which said several questions and upon each of them the opinions of the judges were opposed.'

These are the questions which we are now called upon to answer. We are met, however, at the outset, by a preliminary question, to-wit, whether the points thus presented by the certificate of the judges below come within the meaning of the statute which authorizes this court to decide questions of law on which the judges of the circuit court are opposed in opinion. It is not a difference of opinion on the general case which may be thus certified. Such a difference would properly result in a decree for the defendant, or party holding the negative, subject to an appeal to this court in the ordinary course. It is only a difference on a special point of law which can be distinctly stated, that may be certified to this court under the statute. Section 652 of the Revised Statutes declares that when a judgment or decree is entered in a civil suit, in a circuit court held by two judges, in the trial or hearing whereof any question has occurred upon which the opinions of the judges were opposed, the point upon which they so disagreed shall be stated and certified, etc. The language is copied from the act of 1802, and shows that a certificate can only be resorted to when 'a question' has occurred on which the judges have differed, and where 'the point' of disagreement may be distinctly stated. This court has frequently held that the 'question' referred to must be a question of law, and must be capable of being presented in a single point. Chief Justice MARSHALL, in Wayman v. Southard, 10 Wheat. 20, said: 'The law which empowers this court to take cognizance of questions adjourned from a ircuit, gives jurisdiction over the single point on which the judges were divided, not over the whole cause.' In Dennistown v. Stewart, 18 How. 565, the matter is examined with precision. In that case the judges differed in opinion as to the charge which should be given to the jury upon the evidence adduced. The evidence was set forth in the certificate, and the points upon which the judges differed as to the charge to be given were stated. The court, speaking by Mr. Justice DANIEL, (page 568,) recapitulated the interpretations which had been given to the act in reference to the requisites of its jurisdiction on such certificates. (1) They must be questions of law, and not questions of fact,-not such as involve or imply conclusions or judgment by the judges upon the weight or effect of the testimony or facts adduced in the cause, (referring to Wilson v. Barnum, 8 How. 258.) And the question on which the judges differed must be stated; not whether a demurrer made on several grounds should be sustained, (referring to U.S. v. Briggs, 5 How. 208.) (2) The points stated must be single, and must not bring up the whole case for decision, (referring to U.S. v. Bailey, 9 Pet. 267; Adams v. Jones, 12 Pet. 207; White v. Turk, Id. 238; Nesmith v. Sheldon, 6 How. 41; Webster v. Cooper, 10 How. 54.) And, inasmuch as the certificate in that case (Dennistoun v. Stewart) did not present a single or specific question of law arising in the progress of the cause, but referred to this court the entire law of the case as it might arise upon all the facts supposed by the court, the case was remanded to the circuit court to be proceeded in according to law, without any answer to the questions propounded.

The cases and points adjudged on the subject are very fully rehearsed by Mr. Justice SWAYNE, in Daniels v. Railroad Co. 3 Wall. 250. That was an action for an injury caused by a collision of railroad cars, and, after reciting the evidence, the certificate stated that this was all the evidence, and thereupon it occurred as a question whether, in point of law, upon the facts as stated and proved, the action could be maintained, and whether or not the jury should be so instructed; and, on this question, the judges were opposed in opinion. The court refused to consider the case, and dismissed the certificate.

The case of Wilson v. Barnum, 8 How. 258, is especially worthy of note in this connection. The question certified in that case was whether, upon the evidence given, the defendant infringed the complainant's patent. Chief Justice TANEY, delivering the opinion of the court, said: 'The question thus certified is one of fact, and has been discussed as such in the arguments offered on both sides. It is a question as to the substantial identity of the two machines. * *  * The jurisdiction of this court to hear and determine a question certified from the circuit court is derived altogether from the act of 1802, and that act evidently gives the jurisdiction only in cases where the judges of the circuit court differ in opinion on a point of law. * *  * In the multitude of questions which have been certified, this court has never taken jurisdiction of a question of fact. And in a question of law it requires the precise point to be stated, otherwise the case is remanded without an answer.' And the case was remanded for want of jurisdiction.

It seems to us that the certificate in the present case is obnoxious to the objections presented in the cases cited. The new controversy raised by the defendant's construction of the pavement in Redwood City is substantially a new suit on the patent; and we are asked to decide it. We are asked to say whether a pavement constructed in such and such a manner is an infringement of the patent as the circuit court has construed the patent. And this is a mixed question of fact and law. By the final decree in the case, made in 1881, the court decided that the payments which t e defendant had been theretofore making did infringe the patent. How those pavements were constructed we are not informed; and therefore we do not know what was the precise construction given by the court to the patent. Whether the new pavement, constructed in Redwood City, is an infringement or not, is just as much a mixed question of law and fact (as the case is presented to us) as was the question whether the pavements formerly constructed by the defendant were an infringement. It is a question which the circuit court must decide for itself in the ordinary was. If the judges disagree there can be no judgment of contempt; and the defendant must be discharged. The complainant may then either seek a review of that decision in this court, or bring a new suit against the defendant for the alleged infringement. The latter method is by far the most appropriate one where it is really a doubtful question whether the new process adopted is an infringement or not. Process of contempt is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant's conduct.

The case must be dismissed, with directions to the circuit court to proceed therein according to law.


text: Talk:California Artificial Stone Paving Company v. Molitor/Opinion of the Court

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90 bell. All the brothers were then hurrying to the chapel; the dead in life, at this untimely hour, were already beginning the uncomforted labours of their day. The dead in life there was a chill reflection. And the words of a French song came back into my memory, telling of the best of our mixed existence:

And I blessed God that I was free to wander, free to hope, and free to love.


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Winona St v. Barney

[Syllabus fro mpages 618-619 intentionally omitted]

On the third of March, 1857, congress passed an act making a grant of lands to the territory of Minnesota to aid in the construction of certain railroads, with their branches, and, among others, a railroad from Winona, a town on the Mississippi river, via St. Peter, to a point on the Big Sioux river, south of the forty-fifth parallel of north latitude, which is in the present territory of Dakota. The language of the act is: 'That there be, and is hereby, granted to the territory' 'every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said roads and branches; but in case it shall appear that the United States have, when the lines or routes of said roads and branches are definitely fixed, sold any sec- tions, or any parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the government of said territory or future state, to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternative sections or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of pre-emption have attached as aforesaid: which lands (thus selected in lieu of those sold and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid and appropriated as aforesaid) shall be held by the territory or future state of Minnesota for the use and purpose aforesaid: provided, that the land to be so located shall, in no case, be further than fifteen miles from the lines of said roads or branches, and selected for and on account of each of said roads or branches.' 11 St. at Large, 195.

On the twenty-second of May, of the same year, the legislature of the territory of Minnesota passed an act to execute the trust created by the act of congress, and, among other things, authorized a corporation previously formed, known as the Transit Railroad Company, to construct and operate the railroad mentioned, with one or more tracks, from Winona to the Big Sioux river, south of the forty-fifth parallel of north latitude, on the most direct and feasible route, by way of St. Peter, and granted to the company, in order to aid in the construction of the road, the interest and estate, present and prospective, of the territory and future state in the lands ceded by the act of congress, together with the rights, privileges, and immunities conferred by it. This grant was made with a proviso that the land should be exclusively applied to the construction of the road, and to no other purpose. The Transit Railroad Company subsequently mortgaged to the state the lands it had thu received, together with its franchises, in order to obtain aid to construct the road, and comply with the conditions on which the aid was given. It, however, made default, and the mortgage was foreclosed, and the property and franchises of the company were sold and bought in by the state. These proceedings took place before March 10, 1862. The territory of Minnesota became a state and was admitted into the Union in 1857; and on the tenth of March, 1862, its legislature passed an act transferring to the Winona and St. Peter Railroad Company, the defendant below, the lands, property, franchises, and privileges which the state had acquired from the Transit Railroad Company. Soon afterwards the defendant commenced the construction of the railroad, and before March, 1865, completed it from Winona to Rochester, a distance of 49 1/2 miles.

By an act passed on the third of March, 1865, congress increased the quantity of land, granted to Minnesota by the act of 1857, to 10 sections per mile for all of the roads and branches, subject to the same limitations attached to the original grant, and enlarged the limits within which indemnity lands were to be selected to 20 miles from the line of the roads. The third section provided 'that any lands which may have been granted to the territory or state of Minnesota for the purpose of aiding in the construction of any railroad, which lands may be located within the limits of this extension of said grant or grants, shall be deducted from the full quantity of lands hereby granted, and that any lands which may have been so granted shall be strictly applied in accordance with the terms and conditions of said act or acts, unless subsequently modified by law.' 13 St. at Large, p. 526, § 3. The sixth section provided that lands granted by the act, or previously granted to the territory or state of Minnesota, 'shall be disposed of by said state for the purposes aforesaid only, and in manner following, namely: When the governor of said state shall certify to the secretary of the interior that any section of 10 consecutive miles of said road is completed in a good, substantial, and workmanlike manner, as a first-class railroad, and the said secretary shall be satisfied that said state has complied in good faith with this requirement, the said secretary of the interior shall issue to said state patents for all the lands granted and selected as aforesaid, not exceeding ten sections per mile, situated opposite to and within a limit of twenty miles of the line of said section of road thus completed, extending along the whole length of said completed section of ten miles of road, and no further. And when the governor of said state shall certify to the secretary of the interior, and the secretary shall be satisfied that another section of said road, ten consecutive miles in extent, connecting with the preceding section, or with some other first-class railroad which may be at the time in successful operation, is completed as aforesaid, the said secretary of the interior shall issue to the said state patents for all the lands granted and situated opposite to and within the limits of twenty miles of the line of the said completed section of road or roads, and extending the length of said section, and no further, not exceeding ten sections of land per mile for all that part of said road thus completed under the provisions of this act and the act to which this is an amendment; and so from time to time until said roads and branches are completed.'

After the passage of this act the railroad company proceeded with the construction of the road westerly from Rochester, and before October 31, 1867, completed it to Waseca, 102 miles and 79-100 of a mile from Winona. Of this distance, as already stated, 49 1/2 miles were constructed before March, 1865, and the remainder, viz., 53 miles and 39-100 of a mile were constructed afterwards. Lands had previously been granted to Minnesota for the construction of the Minnesota & Cedar Valley Railroad, and that road intersected the road of the defendant below between Rochester and Waseca. Its lands at the intersection were located within the limits of the extension made by the act of 1865 to the original grant of 1857.

On the thirty-first of October, 1867, the railroad company agreed with the plaintiffs, upon sufficient consideration, to convey to them as many acres of land, previously granted by congress to Minnesota, as the company should receive from the state by reason of the construction already had of the portion of the Winona & St. Peter Railroad, estimated to be 105 miles, (but in fact only 102 miles and 79-100 of a mile,) extending westward from Winona, which amounted, as was supposed, to about 600,000 acres, and which were to be selected as follows:

'Beginning at Winona, and from thence proceeding on each side of said railroad on a course running parallel therewith, and embracing each of the six, ten, fifteen, and twenty mile limits of the congressional land grants, and in proceeding taking all lands within each and all of said limits which shall be received by said company under said acts of congress, or either of them; it being understood that on each side of said railroad a uniform line of advance westwardly, embracing all the lands in said limits, shall be maintained as nearly as may be until as many acres shall have been selected and taken as the said company shall have received for the construction of the portion of said railroad now completed, which is estimated to be one hundred and five miles thereof, extending northerly and westerly from Winona as aforesaid; it being understood that the said parties of the first part shall receive as many acres as shall be received by the party of the second part for the construction of said one hundred and five miles, or so much thereof as is now constructed, notwithstanding that under the acts of congress the said lands are certified only upon the completion of sections of not less than ten miles of railroad, but reserving, excepting, and deducting from the said numbers of acres all lands necessary for the track of such railroad, or the right of way, or depots or depot grounds, or other purposes incidental to the operation of said railroad. And the said party of the second part agrees to acquire the title of said lands as fast as it may be permitted to do under said acts of congress, and to release and convey to the said parties of the first part, or to such other person or persons, is such manner, and from time to time, as may be directed by the said parties of the first part, or their counsel, on the request of the said parties of the firs part, or a majority of them.'

The execution, validity, and obligation of this contract are admitted. The present suit was commenced to enforce its specific performance, and the only question between the parties is as to the quantity of land to be conveyed under it. Before the suit was commenced the company had conveyed to the plaintiffs, in part performance of the contract, 317, 094 acres and 72-100 of an acre. As to that part of the road which was constructed under the act of 1857 from Winona to Rochester, the court held that under the act of congress, the legislation of the state, and the contract with the company, the plaintiffs were entitled to six full sections of land for each mile of the road, and that for any deficiencies existing when the route of the road was definitely fixed, arising from previous sales by the United States of portions of the land, or previous attachment of pre-emption rights, whether such sales took place, or pre-emption rights attached, before or after the passage of the act, equivalent iands were to be selected from the indemnity lands provided. And as to that part of the road which was constructed westerly from Rochester to Waseca after the passage of the act of 1865, the court held that the plaintiffs were entitled to 10 full sections per mile, without any deduction for the lands which were located at the intersecti n of the defendant's road with the road of the Minnesota & Cedar Valley Railroad Company, and within the grant for the latter's construction; and, as the result of these rulings, the court decided that the plaintiffs were entitled to a conveyance of 197, 111 acres and 93-100 of an acre, and entered a decree accordingly. From this decree the defendant has appealed to this court.

''Thos. Meson'', for appellant.

Mr. Gordon E. Cole for appellee.

FIELD, J.

title: Winona St v. Barney


text: Talk:Winona St v. Barney

title: Talk:Winona St v. Barney


text:
Winona St v. Barney/Opinion of the Court

Two questions are presented for our consideration by the appeal in this case. The first relates to the deficiencies in the sections designated as granted in the act of 1857, arising from sales and the attachment of pre-emption rights previous to the final determination of the route of the road of the railway company, and the extent to which indemnity for these deficiencies may be supplied from other lands. The second relates to the reservation from the operation of the act of 1865 of lands previously granted to Minnesota to aid in the construction of any railroad, which were located within the limits of the extension made by that act to the original grant, and its effect on the amount of lands claimed by the plaintiffs. The solution of these questions depends, of course, upon the construction given to the acts making the grants; and they are to receive such a construction as will carry out the intent of congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together.

The act of 1857 grants lands to the state to aid the construction of several railroads. These were to be built through large districts of country sparsely settled. Though the termini of each were designated, it was impossible, in advance of surveys, to designate the specific route of any one, even approximately. In many instances, where the sections would fall along such route, sales of land had already been made by the United States, and pre-emption rights of settlers had attached; and before the route would be definitely fixed by surveys and maps, many other sales of land falling within the sections would probably be made and other pre-emption rights attach. It was not for the interest of the country that any portion of the public lands should be withheld from sale and settlement because, when the route of the roads was definitely determined, they might fall within the limits of the grants; nor was it the purpose of congress to lessen the extent of its aid because it might ultimately be found that, at the time of its grant, or when the route was determined, portions of the land designated had already been disposed of or pre-emption rights had attached to them. The policy of the government was to keep the public lands open at all times to sale and pre-emption, and thus encourage the settlement of the country, and, at the same time, to advance such settlement by liberal donations to aid in the construction of railways. The acts of congress, in effect, said: 'We give to the state certain lands to aid in the construction of railways lying along their respective routes, provided they are not already disposed of, or the rights of settlers under the laws of the United States have not already attached to them, or they may not be disposed of or such rights may not have attached when the routes are finally determined. If at that time it be found that of the lands designated any have been disposed of or rights of settlers have attached to them, other equivalent lands may be selected in their place, within certain prescribed limits.' The encouragement to settlement by aid for the construction of railways was not intended to interfere with the policy of encouraging such settlement by sales of the land, or the grant of pre-emption rights. It follows that in our judgment the indemnity clause covers losses from the grant by reason of sales and the attachment of pre-emption rights previous to the date of the act, as well as by reason of sales and the attachment of pre-emption rights between that date and the final determination of the route of the road.

It is to no purpose to say, against this construction, that the government could not grant what it did not own, and therefore could not have intended that its language should apply to lands which it had disposed of. As already said, the whole act must be read to reach the intention of the law-maker. It uses, indeed, words of grant,-words which purport to convey what the grantor owns, and, of course, cannot operate upon lands with which the grantor had parted; and therefore when it afterwards provides for indemnity for lost portions of the lands 'granted as aforesaid,' it means of the lands purporting to be covered by those terms. Nor is it to any purpose to cite decisions to the effect that the grant is in proesenti, passing an immediate interest to the state. Such is undoubtedly the case, except as the operation of the grant is affected by the limitations mentioned; that is to say, when the sections granted are ascertained, the title to them takes effect as of the date of the grant, and cuts off all intervening claimants except as to such portions as may have been sold, or to which pre-emption rights may have attached.

The language in Railroad Co. v. Baldwin, 103 U.S. 426, does not militate against this construction of the act. It expresses the general purpose of the reservation to keep the lands open at all times to settlement and pre-emption, and subject to appropriation for public uses until the route of the road is determined, but does not declare that lands previously sold, or to which the rights of pre-emption had previously attached, are excluded from the indemnity clause. The court was there drawing attention to the difference between the two grants in the act of congress of July 23, 1866,-that of sections of land and that of the right of way; the former being a present grant, except as its immediate operation was affected by the reservations; the latter being a present absolute grant, without any reservation or exception. The language in Leavenworth Railroad Co. v. U.S. 92 U.S. 733, is quoted as sanctioning the position of the appellant. The court, speaking of the indemnity clause in the grant then under consideration, said its purpose was to give sections beyond the limit designated for those lost within it by the action of the government between the date of the grant and the location of the road. But it did not say that this was its only purpose; and, if the language must be construed as meaning that, it was a mere dictum, not essential to the decision of the case The question was, what lands could be taken for indemnity, not for what deficiencies indemnity could be had. And it was held that an Indian reservation did not pass by the grant, and could not be taken as indemnity for the lands otherwise lost from it. There was no question before the court for what deficiencies indemnity could be supplied.

As to the effect of the reservation in the third section of the act of 1865, of lands previously granted to Minnesota for the purpose of aiding in the construction struction of any railroad, there should be little doubt. The grant by the act of 1857 is one of description; that is, of land in place and not of quantity. It is of every alternate section, designated by odd numbers, for six sections on each side of the road; that is, of particular parcels of land lying within certain defined lateral limits to the road, and described by numbers on the public surveys. And the indemnity clause provides for loss from those parcels by sales or the attachment of pre-emption rights before the route becomes definitely fixed,-the indemnity lands to be selected within fifteen miles from the line of the road. The act of 1865 enlarges the uantity granted from six sections to ten, and the indemnity limits from fifteen miles to twenty. The character of the grant, so far as the six sections are concerned, is not thereby changed from one of lands in place, or by description, to one of quantity. The use of the terms 'quantity of lands granted,' in the first section, in referring to the amount granted by the act of 1857, is of no significance. It is the same thing as though the act had used the words 'six sections' instead of the word 'quantity,' and had said that they should be increased to ten sections. The four sections are to be selected by the secretary of the interior beyond the six and within the twenty miles limit; and as to them the grant may be regarded as one of quantity, though the coterminous principle applies to them, and they are to be selected along and opposite the completed road.

This reservation of the lands previously granted to Minnesota from the grant of the additional four sections, that is, from the extension of the original grant of 1857, was only a legislative declaration of that which the law would have pronounced independently of it. Previous grants of the same property would necessarily be excluded from subsequent ones. The only embarrassment in the construction of the section arises from the inapt words used to describe the land from which the previous grant is to be deducted. The language of the section is 'that any lands which may have been granted to the territory or state of Minnesota for the purpose of aiding in the construction of any railroad, which lands may be located within the limits of this extension of such grant or grants, shall be deducted from the full quantity of lands hereby granted.' The only lands granted by the act of 1865 are the four sections for each mile additional to the original six, accompanied with a right to select indemnity lands within 20 miles of the road. The words, 'the full quantity granted,' only denote the entire extension. To the extent of the previous grant that extension must be reduced, even if the whole be taken. Those words do not transfer the loss from the 10 sections within which the grant falls to other sections along the line. The sections in which such grant falls are correspondingly reduced.

It follows that where the grant previously made to Minnesota to aid in the construction of the Minnesota & Cedar Valley Railroad interferes with the extension of the grant to the defendant by the act of 1865, the extension must be abandoned. The earlier grant takes the land which would otherwise be added to the original six sections. The court below therefore erred in holding that the Winona Company was entitled to 10 full sections where such interference occurred, without deducting the lands previously granted to the state. The cause must, therefore, go back that the proper deduction may be made by reason of this interference of the two grants, and the elder grant be deducted from the extension made by the act of 1865.

Decree reversed, and the cause remanded, with directions to take further proceedings in accordance with this opinion.


text: Talk:Winona St v. Barney/Opinion of the Court


text:
Kansas Pacific Railway Company v. Dunmeyer

J. P. Usher and John F. Dillon, for plaintiff in error.

[Argument of Counsel from pages 630-632 intentionally omitted]

No appearance for defendant in error.

MILLER, J.


text: Talk:Kansas Pacific Railway Company v. Dunmeyer


text:
Kansas Pacific Railway Company v. Dunmeyer/Opinion of the Court

This is a writ of error to the supreme court of Kansas. The action was brought in that court on a covenant of warranty of title to two pieces of land in a deed of conveyance made by the company to Dunmeyer. The land was sold by the company to George W. Miller, to whom a certificate of sale was given, which afterwards came by assi nments to Lewis Dunmeyer, to whom the company made a deed purporting to convey a good title. On this covenant for good title Dunmeyer brought the present action, alleging that the railroad company never had any title, and that the covenant was therefore broken. On this issue the case was tried. Several other defenses were set up; among them, that the covenant was not broken, because Dunmeyer was in possession when he bought the certificate issued to Miller and when he took his deed, and has never been disturbed or ousted; that Miller was in possession when he bought of the company and transferred possession to Dunmeyer, and that this has been held ever since; and that Miller's purchase was a compromise of disputed rights, and he and Dunmeyer are therefore estopped to maintain this action. But these and perhaps other points, decided against plaintiff in error, do not present questions of federal law which this court can review in a judgment of a state court.

Two such questions are presented by this record, which are said to be of great importance as covering controverted titles to many thousand acres of valuable land. The sum involved in this suit is but little over $300, and while the plaintiff in error has been represented here by able counsel and by oral arguments at two different hearings, we have no aid from the defendant, either by counsel or brief. This is very much to be regretted, but is without remedy, and only devolves on the court the duty of more than ordinary care in its own examination of the case. The claim of title of the railroad company, which the supreme court of Kansas held to be no title, arises under two acts of congress granting land to the Union Pacific Railroad Company and its branches, namely, the act of July 1, 1862, (12 St. 489,) and the amendatory act of July 2, 1864, (13 St. 356,) and another act of July 3, 1866, (14 St. 79.) The land, the title to which is in controversy in this suit, is part of an odd-numbered section, and lies within 10 miles of the company's road, and the title of the company to it when it made the conveyance to Dunmeyer was perfect, under the grant found in the acts of congress mentioned, unless it came within some of the exceptions contained in the language of the grant. The supreme court of Kansas based its decision on the ground that it did come within the language of such an exception. That language is as follows:

'Sec. 3. And be it further enacted, that there be, and hereby is, granted to said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure speedy transportation of the mails, troops, and munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five sections per mile, on each side of said railroad, on the line thereof, within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed.'

An exception of mineral lands follows in a proviso which does not affect the present question.

The record shows that on July 25, 1866, Miller made a homestead entry on this land which was in every respect valid, if the land was then public land subject to such entry. It also shows that the line of definite location of the company's road was first filed with the commissioner of the general land-office at Washington, September 21, 1866. This entry of Miller's, therefore, brought the land within the language of the exception in the grant as land to which a homestead claim had attached at the time the line of said road was definitely fixed. For we are of opinion that under this grant, as under many other grants containing the same words, or words to the same purport, the act which fixes the time of definite location is the act of filing the map or plat of this line in the office of the commissioner of t e general land-office.

The necessity of having certainty in the act fixing this time is obvious. Up to that time the right of the company to no definite section, or part of section, is fixed. Until then many rights to the land along which the road finally runs may attach, which will be paramount to that of the company building the road. After this no such rights can attach, because the right of the company becomes by that act vested. It is important, therefore, that this act fixing these rights shall be one which is open to inspection. At the same time it is an act to be done by the company. The company makes its own preliminary and final surveys by its own officers. It selects for itself the precise line on which the road is to be built, and it is by law bound to report its action by filing its map with the commissioner, or, rather, in his office. The line is then fixed. The company cannot alter it so as to affect the rights of any other party. Of course, as soon as possible, the commissioner ought to send copies of this map to the registers and receivers through whose territory the line runs. But he may delay this, or neglect it for a long time, and parties may assert claims to some of these lands, originating after the company has done its duty- all it can do-by placing in an appropriate place, and among the public records, where the statute says it must place it, this map of definite location, by which the time of the vestiture of their rights is to be determined. We concede, then, that the filing of the map in the office of the commissioner is the act by which 'the line of the road is definitely fixed' under the statute. Van Wyck v. Knevals, 106 U.S. 360; S.C.. 1 SUP. CT. REP. 336.

It is strongly argued, by counsel for plaintiff in error, that the language of the excepting clause in the third section of the act of 1862 is modified or repealed by certain expressions found in section 4 of the amendatory act of 1864. That section is intended to imcrease the grant of land made by the act of 1862 to double the quantity then granted. It does this by very peculiar language. It was evidently designed that the new grant should relate back for its date to that of the original grant, whereby it became retrospective as to all the lands added by the new act. It says that 'five' in the old act shall read 'ten,' where the number of sections is mentioned; that 'ten' shall read 'twenty,' where the limits within which the section may be found are described by miles. And it says that the term 'mineral lands,' in the exception in the grant, shall not be construed to mean coal or iron lands. Seeing, however, that this retrospective grant might affect rights already accrued or initiated, it is said in immediate connection, and in the same section, that 'any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any pre-emption, homestead, swamp-land, or other lawful claim, nor include any government reservation or mineral lands, or the improvements of any bona fide settler, or any lands returned and denominated as mineral.' It is difficult to see how this language, the main purpose of which was to prevent this retroactive grant from harming any kind of a claim to the lands granted which had taken effect before the statute was passed, can be construed as repealing the fundamental clause of the original act, in which the character of the grant and of its exceptions are fully defined. This new provision may make other exceptions while enlarging the grant, and was undoubtedly intended to add further safeguards to the settler and further protection to the public. But how the clause be supposed to narrow the original exception, or to be a substitute for that exception, or to repeal it, is not readily to be seen. It had no such purpose. It had a very different purpose, and clearly leaves the original section, which it changes as to the limit of the grant, to stand as to the exception, save as further exceptions are ad ed.

Another argument, which at first blush appears to rest on a stronger foundation, requires examination. The record shows that while the company did not file its line of definite location until about two months after Miller made his homestead entry, it did designate the general route of said road, and file a map thereof in the general land-office, July 11, of the same year, 1866, which was 15 days before Miller's homestead entry. This latter map was filed in the office of the register and receiver on the twenty-sixth of July, one day after Miller made his entry. It is argued that until this was don Miller's right of entry remained unaffected. But we are of opinion that the duty of filing this map, as required by the act, like that of the line of definite location, is performed by filing it in the general land-office, which is filing it with the secretary of the interior, and that whatever rights accrue to the company from the act of filing it accrue from filing it there. What are those rights? This action does not, like the filing of the line of definite location, vest in the company a right to any specific piece of land. It establishes no claim to any particular section with an odd number. It authorizes the secretary to withdraw certain land from sale, pre-emption, etc. What if he fails to do this? What if he makes an order, as in this case, withdrawing a limit of 25 miles from sale, yet permits a party to enter and obtain a patent on some of this land? Without answering these general questions, we proceed to show that, by the statutes under which the company claims the land, the act of filing this map did not withdraw the land from homestead entry.

By the act of 1862 it is 'provided that within two years after the passage of this act said company shall designate the general route of said road, as near as may be, and shall file a map of the same in the department of the interior, whereupon the secretary of the interior shall cause the lands within 15 miles of said designated route to be withdrawn from pre-emption, private entry, and sale; and when any portions of said route shall be finally located, the secretary shall cause the said lands hereinbefore granted to be surveyed and set off, as fast as may be necessary, for the purposes herein named.' At the time of the passage of the amendatory act of 1864, the general route of the road had not been designated, and therefore the fifth section of that act says 'that the time for designating the general route of said railroad, and of filing the map of the same, and the time for the completing of that part of the railroads, required by the terms of said act, (of 1862), of each company, be, and the same is hereby, extended one year from the time in said act designated.' It appears that in the year 1866, though the time for the designation of the general route had expired a year before, it had not yet been done or completed. To relieve the company from this failure to comply with the law, congress enacted, July 3, 1866, 'that the Union Pacific Railway Company, Eastern division, (which is the branch now called the Kansas Pacific Railway Company,) is hereby authorized to designate the general route of their said road and file a map thereof, as now required by law, at any time before the first day of December, 1866, and upon the filing of said map, showing the general route of said road, the lands along the entire line thereof, so far as the same may be designated, shall be reserved from sale by order of the secretary of the interior.' It is under this latter statute that the railroad company, now plaintiff in error, filed its map of the general designation of the route in the department of the interior, July 11, 1866, 15 days before Miller's entry.

It will be observed that by the act of 1862, upon the filing of the company's map of designation of its general route, the secretary was required to withdraw the lands within 15 miles of said designated route from 'pre-emption, private en ry, and sale.' In the terminology of the laws concerning the disposition of the public lands of the United States, each of these words has a distinct and well-known meaning in regard to the mode of acquiring rights in these lands. This is plainly to be seen in the statutes we are construing. In the third section or granting clause, there are excepted from the grant all lands which, at the time the definite location of the road is fixed, had been sold, reserved, or otherwise disposed of, and to which a pre-emption or homestead claim had attached. Here sale, pre-emption, and homestead claims are mentioned as three different modes of acquiring an interest in the public lands, which is to be respected when the road becomes located, and the words are clearly used because they were thought to be necessary. But a sale for money in hand, by an entry made by the party buying, is, throughout the whole body of laws for disposing of the public lands, understood to mean a different thing from the establishment of a pre-emption or homestead right where the party sets up a claim to a definite piece of land, and is bound to build on it, make fences, cultivate and reside on it for a period of time prescribed by law.

In the act of 1866, after the company had neglected for four years to make this designation of their general route, they were allowed six months longer, and no more, to file their map. The statute did not give the secretary the same directions when this should be done which the original act of 1862 gave him, but this act declared that the lands along the entire line, so far as the same may be designated, shall be reserved from sale by order of the secretary of the interior. The lands were, therefore, to be reserved from sale only, and not from pre-emption or homestead claims. The dropping of these words in the later enactment, when they had been carefully inserted both in the excepting clause of the original grant and in the * direction for withdrawal in the same act, on filing the designation of the general route, is sufficient of itself to show a purpose in leaving them out of the reserving clause of the act of 1866. There is, however, a very obvious reason for it. The company had been negligent about filing this map. It was asking further time to do so as a favor. Congress said: We will grant you six months more, and when your map is filed the mere purchaser for money shall not be permitted to buy within the limit of your general route. He may be buying for speculation on the rise in value produced by the construction of your road. But we will no longer prevent the actual settler who resides upon and improves this land from locating on it and establishing a right, either under the pre-emption or the homestead law. You have it in your power to put an end to this as soon as you will by filing the map of your definite location of the road in the land-office. Until you do this, the actual settler shall not be excluded from these lands. We are, therefore, of opinion, in view of all the legislation on this subject, that the homestead claim of Miller had attached to the land in controversy when the line of the company's road was definitely fixed.

Another question of no little importance arises from the fact found in the record, that, while Miller made his homestead entry July 25, 1866, and entered upon the land within the time prescribed by law, erected a house on it and brought his family to live on it, and made the tract his home until the spring of 1870, he afterwards abandoned his homestead claim, and bought the land of the railroad company, and paid for it, and sold the land and transferred the certificate of sale to Dunmeyer, who obtained the conveyance from the company. After all this Miller's homestead entry was canceled, no doubt with Dunmeyer's consent, and G. B. Dunmeyer made a homestead entry which the land department held to be valid. It is argued by the company that, although Miller's homestead entry had attached to the land, within the meaning of the excepting clause of the grant, before the line of definite location was filed by it, yet when Miller abandoned his claim, so that it no longer existed, the exception no longer operated, and the land reverted to the company; that the grant by its inherent force reasserted itself, and extended to or covered the land as though it had never been within the exception. We are unable to perceive the force of this proposition. The land granted by congress was from its very character and surroundings uncertain in many respects until the thing was done which should remove that uncertainty, and give precision to the grant. Wherever the road might go, the grant was limited originally to 5 sections, and, by the amendment of 1864, to 10 sections on each side of it within the limit of 20 miles. These were to be odd-numbered sections, so that the even-numbered sections did not pass by the grant. And these odd-numbered sections were to be those 'not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead right had not attached at the time the line of said road is definitely fixed.' When the line was fixed, which we have already said was by the act of filing this map of definite location in the general land-office, then the criterion was established by which the lands to which the road had a right were to be determined. Topographically this determined which were the 10 odd sections on each side of that line where the surveys had then been made. Where they had not been made, this determination was only postponed until the survey had been made. This filing of the map of definite location furnished also the means of determining what lands had previously to that moment been sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim had attached; for, by examining the plats of this land in the office of the register and receiver, or in the general land-office, it could readily have been seen if any of the odd sections within 10 miles of the line had been sold, or disposed of, or reserved, or a homestead or pre-emption claim had attached to any of them. In regard to all such sections they were not granted. The express and unequivocal language of the statute is that the odd sections not in this condition are granted. The grant is limited, by its clear meaning, to the other odd sections, and not to these.

No attempt has ever been made to include lands reserved to the United States, which reservation afterwards ceased to exist, within the grant, though this road, and others with grants in similar language, have more than once passed through military reservations for forts and other purposes, which have been given up or abandoned as such reservations, and were of great value. Nor is it understood that, in any case where lands had been otherwise disposed of, their reversion to the government brought them within the grant. Why should a different construction apply to lands to which a homestead or pre-emption right had attached? Did congress intend to say that the right of the company also attaches, and whichever proved to be the better right obtained the land? The company had no absolute right until the road was built, or that part of it which came through the land in question. The homestead man had five years of residence and cultivation to perform before his right became absolute. The pre-emptor had similar duties to perform in regard to cultivation, residence, etc., for a shorter period, and then payment of the price of the land. It is not conceivable that congress intended to place these parties as contestants for the land, with the right in each to require proof from the other of complete performance of its obligation. Least of all is it to be supposed that it was intended to raise up, in antagonism to all the actual settlers on the soil, whom it had invited to its occupation, this great corporation, with an interest to defeat their claims, and to come between them and t e government as to the performance of their obligations.

The reasonable purpose of the government undoubtedly is that which it expressed, namely, while we are giving liberally to the railroad company, we do not give any lands we have already sold, or to which, according to our laws, we have permitted a pre-emption or homestead right to attach. No right to such land passes by this grant. No interest in the railroad company attaches to this land or is to be founded on this statute. Such is the clear and necessary meaning of the words that there is granted every alternate section of odd numbers to which these rights have not attached. It necessarily means that, if such rights have attached, they are not granted. Though the precise question here presented may not have been previously decided by this court, we are of opinion that the principles which should govern it have been acted on in other cases.

In Newhall v. Sanger, 92 U.S. 761, the Western Pacific Railroad Company, which by subsequent legislation of congress became entitled to the benefits of the acts of 1862 and 1864, already discussed, having filed a map of definite location, obtained from the United States a patent for land supposed to be included in its grant. The land in controversy, however, was within the boundaries of a claim under a Mexican grant, which had been regularly presented and prosecuted by appeal, and was finally rejected February 13, 1865. The line of the route of the company's road had been filed before this, and the order withdrawing the land from private entry had been made. The argument in favor of the company was that the decision that the Mexican claim was invalid restored the land to the operation of the grant to the railroad company, and that the patent issued to the company was valid. But the court held that the land never became subject to the grant, and that the holder of a subsequent patent from the United States had the superior title. A similar decision was made at the same term in the case of Leavenworth, L. & G. R. Co. v. U.S. 92 U.S. 733, to the effect that the purchase by the United States of Osage lands of the Indians, after a similar grant to that company, did not make it subject to the grant of 1863 of every alternate section along the line of the road.

It is said that the case of the Water & M. Co. v. Bugbey, 96 U.S. 165, should control the decision of this, and undoubtedly there are some analogies between them. That case grew out of the act of congress of March 3, 1853, (10 St. 244), which, in providing for the system of surveying and disposing of the government lands in California, gave to that state, as it had doen to others, every sixteenth and thirty-sixth section of a township for school purposes. No public surveys had at that time been made, and there was no probability that they could be made as fast as the tide of immigration would fill the country with settlers on these lands. To encourage these settlers and protect them against this grant of the school lands, it was provided in that act 'that where any settlement by the erection of a dwelling-house, or the cultivation of any portion of the land, shall be made on the sixteenth or thirty-sixth sections before the same shall be surveyed, or where such sections may be reserved for public uses, or taken by private parties, other lands shall be selected by the proper authorities of the state in lieu thereof.' Bugby had made a settlement on one of these sections, and was there when the survey of the land was completed, May 19, 1866, but he never made any declaration of that fact, or sought to establish any right by reason of this settlement under the act of 1853, or under the general pre-emption law, and the register of the land-office certified to the state land-office, on the twenty-eighth of September, 1866, that no claim had been filed to this section 16, except by one Hancock, afterwards abandoned. On the twenty-second of April, 1867, Bugby purchased of the state the part of the section on which the premises in controversy in that suit were situated, and took a patent for it.

An act of congress of July 26, 1866, gave the right of way for ditches and canals in all public lands, when they were recognized by local customs, laws, and decisions of the courts, and the water and mining company, having run their canal through this land, asserted the right to do so under this statute, which Bugby resisted. This court said that if the title to the land was in the United States at the passage of the act of July 26, 1866, it conferred the right claimed as against Bugby, who purchased of the state in 1867. But it further held that the title was then in the state of California, for the reason that Bugby had never asserted any claim as a pre-emptor, but had recognized the right of the state, and purchased of the state, and was then relying on its patent. The reasoning of the court was not elaborated, but it is a clear, by its reference to the case of Sherman v. Buick, 93 U.S. 209, which it distinguishes from Bugbey's Case by showing that Buick had prosecuted his right of pre-emption by asserting and perfecting his claim in the United States land-office, that Bugby's failure to assert, at any time or in any place, any right growing out of his settlement on the land prevented the mining company from asserting that the title was in the United States when the act of July 26, 1866, was enacted. It passed, by the statute of 1853, to the state, and was ascertained to be a sixteenth section by the survey, the filing of which perfected the title to the state, unless a right of pre-emption was asserted and proved to be in existence at that time. No such claim was ever made, and the title passed to the state.

In the case before us a claim was made and filed in the land-office, and there recognized, before the line of the company's road was located. That claim was an existing one of public record in favor of Miller when the map of plaintiff in error was filed. In the language of the act of congress this homestead claim had attached to the land, and it therefore did not pass by the grant. Of all the words in the English language, this word 'attached' was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the proper land-office, by which the inchoate right to the land was initiated. It meant that by such a proceeding a right of homestead had fastened to that land, which could ripen into a perfect title by future residence and cultivation. With the performance of these conditions the company had nothing to do. The right of the homestead having attached to the land, it was excepted out of the grant as much as if, in a deed, it had been excluded from the conveyance by metes and bounds. The difference in the two cases is obvious.

The judgment of the supreme court of the state of Kansas is affirmed.


text: Talk:Kansas Pacific Railway Company v. Dunmeyer/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Bower, George


text:
Schmieder v. Barney

A. W. Griswold and Sidney Webster, for plaintiffs in error.

''Sol. Gen. Phillips'', for defendant in error.

WAITE, C. J.

title: Schmieder v. Barney


text:
Page:Travels with a Donkey In The Cevennes.djvu/109

UT there was another side to my residence at our Lady of the Snows. At this late season there were not many boarders; and yet I was not alone in the public part of the monastery. This itself is hard by the gate, with a small dining-room on the ground floor, and a whole corridor of cells similar to mine up-stairs. I have stupidly forgotten the board for a regular retraitant; but it was somewhere between three and five francs a day, and I think most probably the first. Chance visitors like myself might give what they chose as a free-will offering, but nothing was demanded. I may mention that when I was going away, Father Michael refused twenty francs as excessive. I explained the reasoning which led me to offer him so much; but even then, from a curious point of honour, he would not accept it with his own hand. "I have no right to refuse


text: Talk:Schmieder v. Barney

title: Talk:Schmieder v. Barney


text:
Schmieder v. Barney/Opinion of the Court

The only fact in issue in this case on the trial below was whether the 'Saxony dress goods,' imported by the plaintiffs in error, were 'goods of similar descriptions' to 'delaines,' within the meaning of that term, as used in the tariff act of July 14, 1862, c. 163, § 9, (12 St. 553.) To maintain this issue on their part, the plaintiffs in error called a number of merchants and commercial experts, by whom they offered to prove that, in trade, among merchants and importers, 'Saxony woven dress goods' were not, in 1861 and 1862, and prior thereto, 'commercially known or considered as goods of similar description to delaines,' 'but commercially belonged to another class, that of woven dress goods, classed as different articles, and kept in a different department of goods from the family of printed dress goods known as delaines.' Other witnesses, who were commercial experts, were asked, in substance, whether, in their opinion, the goods which had been imported by the plaintiffs in error were known in trade among merchants, in 1861 and 1862, as goods of similar description to delaines. All this evidence was excluded by the court, and exception taken. That ruling is now assigned for error.

In Greenleaf v. Goodrich, 101 U.S. 278, decided by this court at the October term, 1879, after the trial below in the present case, it was held that it was not error to charge the jury (page 283) 'that the similarity referred to in the expression 'goods of similar description,' in the act of 1862, is a similarity in respect to the product, and its adaptation to uses, and to its uses, and not merely to the process by which it was produced; and that if a class of goods we e not, in 1862, commercially known as delaines, it does not follow that they were not goods of similar description, within the meaning of the statute,' or to charge that 'these words are to be taken and understood in their popular and received import, as generally understood in the community at large at the time of the passage of the act.'

In reference to this, and other portions of the charge then under examination of a like import, this court said, speaking by Mr. Justice STRONG, (page 284:) 'Notwithstanding the strenuous objections urged against such a submission to the jury, we think it was correct. At least it was quite as favorable to the plaintiffs as they had the right to demand. Reliance is placed upon the rule, which we admit to be established, that the commercial designation of an article among traders and importers, when such designation is clearly established, fixes its character for the purpose of the tariff laws. But the present is not a case of commercial designation of articles. The phrase 'of similar description' is not a commercial term, and if it were, there is no evidence in the record to show what it is understood to mean among merchants and importers.' To this ruling we adhere, notwithstanding what is said in the able argument which has been presented to us on behalf of the present importers. It is quite true that, in the case then presented, the fact that delaines were 'woven in the gray,'-that is to say, in the natural color of the materials of which they were composed, and not in colors, as was the case with 'Saxony dress goods'-was much relied on as showing that the dress goods were not of a similar description with delaines; but the real point for decision was whether goods must be commercially classified with delaines to make them of 'similar description.' It was there decided that if they were similar in product, in adaptation to uses, and in uses, they were of similar description, even though in commerce they might be classed as different articles. Upon that question the decision in Greenleaf v. Goodrich must be taken as conclusive.

It is contended, however, that in this case the plaintiffs in error went further than was done in that, and that they offered to prove that in commerce 'Saxony dress goods' were not considered as of 'similar description' to delaines. It is argued that this brings the case within what should be taken as an exception reserved in the former decision. The exception claimed is drawn from the following clause in the opinion: 'The record exhibits nothing tending to show what was commonly understood among merchants as distinguishing goods, known in commerce as of a similar description with delaines, from all other goods. Nor was there any evidence that there were any goods known by merchants, or in commerce, as goods of similar description with delaines; much less was it in proof that being woven in the gray was regarded by merchants as determining that goods so woven were not of similar description with delaines. In regard to all these matters the record is silent. Composed, as the goods were, of the same materials as delaines, having a similar general appearance, and intended for the same uses, they might well have been of similar description with colored delaines, though there were differences in the process of manufacture.'

Undoubtedly the language of tariff acts is to be construed according to its commercial signification, but it will always be understood to have the same meaning in commerce that it has in the community at large, unless the contrary is shown. Swan v. Arthur, 103 U.S. 598. The most that can be claimed for the alleged reservation in Greenleaf v. Goodrich is that it would have been proper to inquire whether the phrase 'of similar description' was a commercial term, and, if so, what it was understood by merchants and importers to mean. That, however, is not what was attempted in this case. The witnesses were asked, in effect, not what the words 'of § milar description' were understood among commercial men to mean, but whether the goods of these importers were known in commerce as goods of similar description to delaines. The effort was to put the opinion of commercial experts in the place of that of the jury upon a question which was as well understood by the community at large as by merchants and importers. This it was decided in Greenleaf v. Goodrich could not be done, and upon the point supposed to have been reserved in that decision this case stands just where that did. The testimony offered was therefore properly rejected. The opinions of the collector of the port and of the board of official appraisers were no more admissible on this question than those of any other competent experts.

The judgment is affirmed.


text: Talk:Schmieder v. Barney/Opinion of the Court


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Camp v. United States

The appellant brought this action on the thirteenth day of April, 1869, to recover a balance alleged to be due as compensation for collecting and delivering to the United States, in 1864, a large amount of cotton in bales, which was captured and abandoned property within the meaning of the acts of congress. He claims to have performed the services in question under an arrangement or agreement with an agent of the treasury department, which the secretary of the treasury subsequently recognized as a valid contract with the government. He admits certain payments on his claim, and asks judgment for the further sum of $80,000. The court below dismissed his petition.

The material facts, as found by the court of claims, are, in substance, as follows:

In the early part of 1864 one Hart, an assistant special agent of the treasury department, for the district of Natchez, in the state of Mississippi, made a verbal arrangement with Camp, whereby it was understood and agreed between them that the latter should bring out and turn over to the United States, through their agent in Natchez, about 2,200 bales of cotton, § ored on the banks of Buffalo bayou, in Adams county, Mississippi, within that district, and the property of one John K. Elgee, a resident of Alexandria, Louisiana, then within the lines of rebel occupation. 'The agent,' the findings of fact state, 'was then to represent the arrangement and business, whatever it might be, to the secretary of the treasury, and was likewise to represent that he had assured the claimant, by the arrangement, that the secretary would allow to him 25 per cent. of the proceeds of the cotton, at least. No bond of indemnity was given by the claimant. By the arrangement the claimant was also to pay to the agent Hart, out of the proceeds, when received by him, from $5,000 to $10,000, provided the secretary of the treasury should see no impropriety in his (the agent's) accepting from the claimant a portion of the proceeds.'

On or about March 31, 1864, Camp, representing himself as a treasury agent, engaged the services of a transport, which, under the protection of a gun-boat, ascended Buffalo bayou, took on board 572 bales of the Elgee cotton, and brought it to Natchez, where it was seized by Gen. Tuttle, commanding the federal military forces, on suspicion that the claimant intended to appropriate it to himself, and placed under guard in the government yard. Shortly thereafter Camp informed the supervising special agent and the assistant special agent of the treasury of what he had done. By direction of the supervising special agent the cotton was forwarded to St. Louis, consigned to O. S. Lovell, an agent of the treasury department. After it reached that city, Elgee brought an action of replevin against Lovell in the circuit court of St. Louis county. The United States took charge of the defense, and and on June 22, 1864, a stipulation was entered into between the treasury department and Elgee whereby that action was removed to the circuit court of the United States, and the cotton was sold; the proceeds, after paying certain charges, being invested in bonds, which were held to abide the result of the litigation. In that suit a judgment was obtained by the government, which was affirmed by this court.

The appellant presented his claim for compensation to the treasury department, which, by its assistant secretary, on the sixth of December, 1865, directed the commissioner of customs to 'state an account, and make a requisition in favor of Benjamin F. Camp upon F. E. Spinner, treasury agent, to be paid from the proceeds of captured and abandoned property, for the sum of $30,000, being part of the proceeds of certain property known as the Elgee cotton, collected as captured or abandoned property by said Camp, for an interest therein, said sum being an advance to said Camp on account of his expenditures in relation to said cotton.' This order recited that Camp had executed bond, with surety to the United States, conditioned that he would repay the said sum on demand of the secretary of the treasury, and fully indemnify the government against all loss and damage by reason of such payment. In pursuance of that order the sum of $30,000 was paid to him. On the seventh of March, 1866, the further sum of $15,000 was paid to William Prescott Smith, (who had acquired a joint interest with the claimant,) the order which directed the payment reciting that that amount was 'an advance to Smith on account of his joint interest with Camp in said cotton.' The net proceeds of the sale of the cotton, with the interest that had accrued on the bonds in which they were invested-in all, $366,170.83-were covered into the treasury, in pursuance of a joint resolution of congress, approved March 30, 1868.

On the twentieth of August, 1868, the heirs and representatives of Elgee brought suit against the United States in the court of claims, under the captured and abandoned property act, to recover those proceeds. That suit was pending and undetermined when the present action was commenced. The claim of Elgee's heirs and representatives was established his loyalty having been shown only by proof that on the second day of May, 1864, he took the oath prescribed by President Lincoln's amnesty proclamation of December, 1863. It was in evidence that 25 per cent. of the proceeds of captured cotton was the remuneration ordinarily allowed by the treasury department to contractors, under the treasury regulations for collecting and bringing in such property.

''Benj. F. Butler and O. D. Barrett'', for appellant.

Asst.Atty.Gen.Maury, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

title: Camp v. United States


text: Talk:Camp v. United States

title: Talk:Camp v. United States


text:
Camp v. United States/Opinion of the Court

Pursuant to authority conferred by the act of March 12, 1863, (12 St. 820,) the secretary of the treasury of the treasury established and promulgated regulations providing for the appointment of supervising special agents, assistant special agents, and other agents, for receiving and collecting abandoned and captured property found within their respective agencies, and within the lines of military occupation by the United States forces, except such as had been used, or was intended to be used, for carrying on war against the United States. One of those regulations provided that when property was liable to be lost or destroyed, in consequence of its location being unknown to the special agents, or from other causes, and parties proposed, for compensation, to collect and deliver it to such agents, at points designated by them, 'supervising special agents may contract, on behalf of the United States, for the collection and delivery to them of such property in their respective agencies, on the best possible terms, not exceeding 25 per cent. of the proceeds of the property, which percentage must be full compensation for all expenses, of whatever character, incurred in collecting, preparing, and delivering such property at the point suggested.' But it was also provided that, 'prior to any such contract being made, the party proposing must submit in writing a statement of the kind and amount of property proposed to be collected, the locality whence to be obtained, and all the facts and circumstances connected with it, particularly as to its ownership;' that 'any contract made in pursuance of this regulation must be in writing, and restricted to the collection and delivery of particular lots at named localities, or, when circumstances clearly justify it, to the general collection and delivery of all abandoned property in limited districts, not greater in any case than one parish or county, and not more than one district to be assigned to one contractor;' and that 'should a case arise, in the opinion of the supervising special agent, justifying the payment of a larger percentage than one-quarter of the proceeds of the property, he will make a statement of the facts and circumstances, and the reasons in his opinion justifying such additional allowance, and refer the same to the secretary for instruction.' Reg. 12. By another regulation of the same series it is expressly enjoined that no liability be incurred or assumed, or contract be made, on the part of the United States by such agents except as authorized. Reg. 13.

These regulations were in force when the claimant made the before-mentioned verbal 'arrangement' with Hart, who was merely an assistant special agent, and not, as alleged in the petition, a supervising special agent of the treasury department. Under them, only supervising special agents could bind the United States by contracts with parties proposing, for compensation, to collect and deliver captured and abandoned property. They could not allow more than 25 per cent. of the proceeds without referring the matter to the secretary. And no contract of that character made even by them bound the government unless it was in writing. Plainly, therefore, the verbal arrangement, which Camp had with an assistant special agent, was not binding upon the United States, even had it been reduced to writing. It imposed upon the government no legal obligation whatever. Whiteside v. U.S. 93 U.S. 250. It is equally clear that it was not otherwise understood by the claimant; for Hart only agreed 'to represent the arrangement and business, whatever it might be, to the secretary of the treasury,' and to inform the latter that he 'had assured the claimant, by the arrangement, that the secretary would allow him 25 per cent. of the proceeds of the cotton at least.' Camp, evidently, undertook to bring in the cotton and deliver it to the proper agent of the United States, in reliance upon such action as the secretary of the treasury, in the exercise of his discretion, might ultimately take touching his compensation, and not at all in the belief that he had a binding contract with the government. He must be held to have known that the secretary was not compelled to accept the arrangement with Hart as obligatory upon the government, but was at liberty, without violating any legal rights that Camp had, to allow less compensation than was ordinarily allowed under written contracts made by supervising special agents. Indeed, had the secretary, in view of the non-conformity of the proceedings to his regulations, determined not to allow any compensation whatever, it is not perceived how the jurisdiction of the court of claims could have been invoked by Camp, as upon contract express or implied.

The counsel for appellant rely upon Salomon v. U.S. 19 Wall. 17, and Clark v. U.S. 95 U.S. 539. Those cases differ radically from the present one. In Salomon's Case the property appropriated and used by the government was admitted to belong to the claimant. In Clark's Case the government received the property from the claimant under such circumstances as precluded it from raising any question as to his title. In each case the United States were held liable, as upon implied contract, to make compensation to the owner. But there is no claim that Camp ever owned the cotton which he delivered at Natchez. As between him and the United States, it was the property of the latter. At any rate, he could not legally have withheld it from the United States. Its seizure by the government was not a taking of his property; and, as he did not conform to the regulations prescribing the only mode in which the government could become bound, by contract, to make compensation for the recovery of the property, he was not in a position to demand compensation as matter of legal right. Any other view would lead to the conclusion that parties who voluntarily brought in and delivered to the United States captured and abandoned property were entitled, as upon implied contract, to be compensated for their services; for the services rendered by Camp, under an arrangement with an assistant special agent, who had no authority whatever to bind the United States in respect of compensation, presents no stronger case, in law, for compensation as upon implied contract, than if they were voluntarily rendered without such previous arrangement. An interpretation of the regulations in question different from that indicated would have resulted in transferring to the courts the determination of matters which the acts of congress committed entirely to the discretion of the secretary of the treasury. But it is contended that the government, having availed itself of the labors of claimant, and the treasury department having made two payments on his claim, to be compensated on the basis fixed by the arrangement with Hart, that arrangement must be deemed to have been ratified by the secretary of the treasury as a contract with the United States, binding them to allow what was ordinarily paid by the department in such cases, or what was, under all the circumstances, reasonable.

The precise form in which appellant's claim for compensation was presented at the treasury department is not shown by the findings of fact. The orders, given in 1865, by the assistant secretary, for the statement of an account and a requisition in f vor of the claimant, discloses the fact that Camp had collected the cotton 'for an interest therein,' and that the payment of $30,000 was intended as an advance to him on account of his expenditures in relation to the cotton, while the payment of $15,000 to Smith was 'on account of his joint interest with Camp in said cotton.' But this falls far short of an agreement, by the department, to make further payment. These facts, at most, imply, necessarily, nothing more than that the department was willing, under the circumstances, to compensate him to the extent of the foregoing sums. Whether he should receive any compensation, or how much should be awarded him, were matters which depended, as we have seen, upon the discretion of the secretary of the treasury. No one, acting by his authority, had bound the government to make compensation. If the secretary refused to pay anything, the claimant had no remedy except to apply to congress for a special appropriation in his behalf. The mere payment of $45,000 on a claim for a much larger sum, as compensation for services rendered in delivering captured or abandoned property to the government, for which services it was under no legal obligation, express or implied, to make compensation,-cannot be deemed a recognition of a legal liability to make further payments on such claim. We find in the record no evidence of any purpose, or agreement, upon the part of the secretary of the treasury to make compensation to claimant beyond that already allowed; and to say that the court may award such compensation as it deems just and proper, is to impose upon the government the obligations of a contract, in respect of captured or abandoned property, which, under the acts of congress, only the secretary of the treasury, or such agents of the department as he designated for that purpose, had anthority to make. These views make it unnecessary to consider other questions argued by counsel, and lead to an affirmance of the judgment.

Judgment affirmed.


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


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Parsons v. Wilkinson

This is a writ of error by the executors of a former collector of the port of New York to reverse a judgment in an action brought against him by the defendants in error on January 11, 1855, to recover back the amount of duties paid by them on imported iron on October 23, 1852. Upon a trial of that action on December 16, 1856, a verdict was taken for the plaintiffs by consent, subject to the opinion of the court upon a case to be made. On March 30, 1883, the plaintiffs moved to set aside that verdict, and the motion was afterwards granted, on their stipulating to waive interest from the date of the verdict to the date of the motion. Upon a second trial, the main question was whether the duties had been paid under protest. The plaintiffs introduced evidence tending to show that the entry of the goods, to which any protest would have been attached, could not be found at the custom-house, and called William S. Doughty, a clerk of their consignees, who produced a copy of a protest, purporting to be dated October 13, 1852, and to be signed by the consignees, and having upon it these two memoranda: First, in pencil, 'Handed in on the twenty-third day of October, 1852.' Second, in ink, 'The above protest was handed to the collector the twenty-third day of October, 1852. New York, June 16, 1854. WM. S. DOUGHTY.'

Doughty, on direct examination, testified that he handed the original, of which this was a copy, to the collector on October 23, 1852. Being then cross-examined, by leave of the court, he testified that the memorandum in ink was written by him on June 16, 1854; that he had previously made the memorandum in pencil so as to be able to make a statement in ink at some future time; that he did not know when he made the pencil memorandum; that he could not tell, otherwise than as his memory was refreshed by the memora da, that he ever filed a protest with the collector; that he had no recollection now that he filed such a protest; but that he must have done it because it was his duty to do it; and that he was willing to swear positively that he did so, because he had signed a statement to that effect, and his habit was never to sign a statement unless it was true. The witness then, by permission of the court, voluntarily stated as follows: 'The fact that the statement was made two years after, was when there was sufficient date for me, unquestionably, to make that statement at the time, two years afterwards. Probably there were memoranda which were destroyed long ago.' The defendant's counsel thereupon objected to the admission in evidence of the alleged copy of the protest, 'upon the ground that the witness testifies that he has no recollection of the fact of the service of the original upon the collector at or prior to the time of the payment in question, and that the memorandum referred to by the witness, as the basis of his willingness to swear to the fact without any recollection, was not made for nearly two years after the transaction to which it relates, and that the data upon which the witness made the memorandum to which he refers are not produced or shown.' The court overruled the objection, and admitted the copy of the protest in evidence, and, a verdict being returned for the plaintiffs, allowed a bill of exceptions to its admission.

''Sol. Gen. Phillips'', for plaintiff in error.

A. W. Griswold, for defendant in error.

GRAY, J.

title: Parsons v. Wilkinson


text: Talk:Parsons v. Wilkinson

title: Talk:Parsons v. Wilkinson


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Page:Travels with a Donkey In The Cevennes.djvu/110

20 for the monastery," he explained, "but I should prefer if you would give it to one of the brothers."

I had dined alone, because I arrived late; but at supper I found two other guests. One was a country parish priest, who had walked over that morning from the seat of his cure near Mende to enjoy four days of solitude and prayer. He was a grenadier in person, with the hale colour and circular wrinkles of a peasant; and as he complained much of how he had been impeded by his skirts upon the march, I have a vivid fancy portrait of him, striding along, upright, big-boned, with kilted cassock, through the bleak hills of Gévaudan. The other was a short, grizzling, thick-set man, from forty-five to fifty, dressed in tweed with a knitted spencer, and the red ribbon of a decoration in his buttonhole. This last was a hard person to classify. He was an old soldier, who had seen service and risen to the rank of commandant; and he retained some of the brisk decisive manners of the camp. On the other hand, as soon as his resignation was accepted, he had come to our Lady of the Snows as a boarder, and after a brief experience of its


text:
Parsons v. Wilkinson/Opinion of the Court

The witness, according to his own testimony, had no recollection, either independently of the memoranda, or assisted by them, that he had filed a protest with the collector; did not know when he made the memorandum in pencil; made the memorandum in ink 20 months after the transaction, from the memorandum in pencil, and probably other memoranda, since destroyed and not produced, nor their contents proved; and his testimony that he did file the protest was based exclusively upon his having signed a statement to that effect 20 months afterwards, and upon his habit never to sign a statement unless it was true. Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contemporaneous with the transaction to which they relate. Nicholls v. Webb, 8 Wheat. 326, 337; Insurance Co. v. Weide, 9 Wall. 677, and 14 Wall. 375; Chaffee v. U.S. 18 Wall. 516.

It is well settled that memoranda are inadmissible to refresh the memory of a witness, unless reduced to writing at or shortly after the time of the transaction, and while it must have been fresh in his memory. The memorandum must have been 'presently committed to writing,' Lord HOLT in Sandwell v. Sandwell, Comb. 445; S.C.. Holt, 295; 'while the occurrences mentioned in it were recent, and fresh in his recollection,' Lord ELLENBOROUGH in Burrough v. Martin, 2 Camp. 112; 'written contemporaneously with the transaction,' Chief Justice TINDAL in Steinkeller v. Newton, 9 Car. & P. 313; or 'contemporaneously or nearly so with the facts deposed to,' Chief Justice WILDE (afterwards Lord Chancellor TRURO) in Whitfield v. Aland, 2 Car. & K. 1015. See, also, Burton v. Plummer, 2 Adol. & E. 341; S.C.. 4 Nev. & Man. 315; Wood v. Cooper, 1 Car. & K. 645; Morrison v. Chapin, 97 Mass. 72, 77; ''Spring Garden Ins. Co. v. Evans'', 15 Md. 54.

The reasons for limiting the time within which the memorandum must have been made are, to say the least, quite as strong when the witness, after reading it, has no recollection of the facts stated in it, but testifies to the truth of those facts only because of his confidence that he must have known them to be true when he signed the memorandum. Halsey v. Sinsebaugh, 15 N. Y. 485; Marcly v. Shults, 29 N. Y. 346, 355; State v. Rawls, 2 Nott & cC. 331; O'Neale v. Walton, 1 Rich. 234.

In any view of the case, therefore, the copy of the protest was erroneously admitted, because the memorandum in ink, which was the only one on which the witness relied, was made long after the transaction which it purported to state; and its admission requires that the judgment be reversed, and a new trial ordered.


text: Talk:Parsons v. Wilkinson/Opinion of the Court