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3. A special finding of facts referred to in acts allowing parties to submit
issues of fact in civil cases to be tried and determined by the court is
not a mere report of the evidence, but a finding of those. ultimate
facts upon which the law inust determine the rights of the parties. Ib.
4. If the findings of fact in such case be general, only such rulings of the
court in the progress of the trial can be reversed as are presented by a
bill of exceptions, which bill cannot be used to bring up the whole
testimony for review. Ib.

5. Where a plain error has been committed in a matter vital to defend-
ants, this court is at liberty to correct it, although the question may
not be properly raised; and being of opinion that adequate proof of
guilty knowledge or participation on the part of the mates is not
shown by the record, it reverses the judgment as to them, although
no exception was taken. Wiborg v. United States, 632.

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1. While it is well settled that, in the administration of the public land
system of the United States, questions of fact are for the consid-
eration and judgment of the Land Department, and its judgment
thereon is final, it is equally true that when, by act of Congress, a
tract of land has been reserved from homestead and preëmption, or
dedicated to any special purpose, proceedings in the Land Department
in defiance of such reservation or dedication, although culminating in
a patent, transfer no title; and the patent questioned in this case
comes within that general rule of invalidity. Burfenning v. Chicago,
St. Paul, Minneapolis & Omaha Railway Co., 321.

2. Persons entitled under Rev. Stat. § 2304 to enter a homestead, in case
the entry be made for less than 160 acres, may, under § 2306, make an
additional entry for the deficiency, which right is transferable. Web-
ster v. Luther, 331.

3. The instrument executed by Mrs. Robertson through which the de-
fendants in error claim was not forbidden by any act of Congress,
and was valid. Ib.

4. By the filing of the map of the line surveyed prior to December 24,
1807, for the route of the railroad now known as the Missouri, Kansas
and Texas Railway, the route of the road was definitely fixed within
the intent and meaning of the act of July 26, 1866, c. 270, 14 Stat. 289,
granting lands to aid in its construction; and while the principal
object in filing the map was to secure the withdrawal of the lands

granted, it also operated to definitely locate the line and limits of the
right of way. Missouri, Kansas § Texas Railway Co. v. Cook, 491.
5. The grant of the lands and the grant of the right of way were alike
grants in præsenti, aud stood on the same footing; so that, before
definite location, all persons acquiring any portion of the public lands
after the passage of the act took the same subject to the right of way
for the proposed road. Ib.

6. The rights of the settler in this case were acquired after the line had
been located, and were not affected by the subsequent act of the com-
pany in changing the location. lb.



1. The wrongs specifically charged in the bill in this case are those which
were set forth in the suit of Angle v. Chicago, St. Paul, Minneapolis &
Omaha Railway Company, 151 U. S. 1; but there is this difference be-
tween the two cases, that in that case the Omaha Company demurred,
and on the demurrer a decree was entered against it, whereas, in this
case the Omaha Company took issue upon the charge of having com-
mitted such wrongs, and the testimony shows that it did not commit
them. Farmers' Loan & Trust Co. v. Chicago, Portage & Superior Rail-
way Co., 31.

2. The act of the legislature of Wisconsin of 1882, revoking the grant of
land to the Portage Company and bestowing it upon the Omaha Com-
pany, neither in terms nor by implication burdened the transfer with
a continuing obligation for the debts of the Portage Company; and
no creditor of the Portage Company had any legal or equitable right
to any portion of those lands. Ib.

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3. The law presumes in the entire absence of evidence, that a railroad
employé, in crossing the track of the railroad on foot at night to go to
his duty, looks and listens for coming trains before crossing. Texas &
Pacific Railway Co. v. Gentry, 353.

4. It appears by the affidavit of the agent of the plaintiffs in error that he
was their agent when service of process was made upon him, and that
their allegation that he was not then their agent was therefore untrue.
Eddy v. Lafayette, 456.

5. The second section of the act of March 3, 1887, c. 878, was intended to
place receivers of railroads on the same plane with railroad companies,
both as respects their liability to be sued for acts done while operat-
ing a railroad, and as respects the mode of service; and the service in
the present case on an agent of the receivers was sufficient to bring
them into court in a suit arising within the Indian Territory. Ib.

6. The terms of the summons were in accordance with the provisions of
§ 4868, Mansfield's Digest of Statutes of Arkansas, under which the
summons was issued. Ib.

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7. This action was brought by the defendants in error to recover the
value of a large quantity of hay which it was alleged had been de-
stroyed by a fire caused by sparks escaping from a locomotive through
negligence, and falling on a quantity of dry grass and leaves that had
been negligently allowed to accumulate on the railroad operated by
the plaintiffs in error as receivers. The hay was cut from lands of
the Creek nation under direction of Sallie M. Hailey, an Indian, one
of the defendants in error, by Lafayette, a white man who was to re-
ceive an agreed part of the hay for cutting and curing it. Held, (1)
That, in the absence of proof to the contrary it must be assumed that
Mrs. Hailey was entitled to cut bay upon the land which she occupied
in common with other members of the Creek nation; (2) That Lafay-
ette, under his agreement with Mrs. Hailey and his performance of it,
acquired an interest in the hay; (3) That an instruction to the jury
"that evidence of a railroad company allowing combustible material
to accumulate upon its track and right of way which is liable to take
fire from sparks escaping from passing engines and cominunicate it to
adjacent property, is sufficient to warrant the jury in imputing negli-
gence to the company" was correct; (4) That there was no error in
the treatment given by the Circuit Court of Appeals to the several
assignments respecting the trial court's instructions on the subject
of the respective duties of the railroad company and of the plain-
tiffs. Ib.


8. The plaintiff, an employé of the railway company, sued to recover for
injuries caused to him by the unblocking of a frog, in consequence of
which he was thrown down, and an engine passed over him before he
could recover himself. There was contradictory testimony as to the
condition of the frog before and after the accident. On the trial
below the only issue presented was the condition of the frog at the
time of the accident: but the court in substance instructed the jury
that if the company had once properly blocked the frog it incurred no
liability to its employés by reason of the subsequent displacement of
the blocking, unless such displacement was made with its knowledge
or had continued for such length of time as to impute notice to it.
The same point having been taken in this court, Held, (1) That there
being a conflict of testimony as to the condition of the frog, that ques-
tion of fact was properly submitted to the jury; (2) That while the
position of law taken by the company in this court cannot be dis-
puted, it was not taken or considered on the trial, and is not open for
consideration here; (3) That although the case is not entirely clear,
this court is not prepared to hold, on the record, that there was such
error as would justify it in disturbing the judgment. Union Pacific
Railway Co. v. James, 485.

9. Railroad corporations possess the powers which are expressly conferred
by their charters, together with such powers as are fairly incidental
thereto; and they cannot, except with the consent of the State, disable

themselves from the discharge of the functions, duties and obligations
which they have assumed. Union Pacific Railway Co. v. Chicago,
Rock Island & Pacific Railway Co., 564.

10. The general rule is that a contract by which a railroad company ren-
ders itself incapable of performing its duties to the public or attempts
to absolve itself from those obligations without the consent of the
State, or a contract made by a corporation beyond the scope of its
powers, express or implied, on a proper construction of its charter,
cannot be enforced, or rendered enforceable by the application of
the doctrine of estoppel; but where the subject-matter of the contract
is not foreign to the purposes for which the corporation is created, a
contract embracing whatever may fairly be regarded as incidental to,
or consequential upon, those things which the legislature has author-
ized, ought not, unless expressly prohibited, to be held by judicial
construction to be ultra vires. Ib.

11. The contract with the Rock Island Company on the part of the Union
Pacific Company which forms one subject of this controversy was one
entirely within the corporate powers of the latter company, and,
throughout the whole of it there is nothing which looks to any actual
possession by the Rock Island Company of any of the Union Pacific
property beyond that which was involved in its trains being run over
the tracks under the direction of the other company; and this was
an arrangement entirely within the corporate powers of the Union
Pacific Company to make, and which was in no respect ultra vires. Ib.
12. The common object of the act of February 24, 1871, c. 67, regarding
the construction of a bridge across the Missouri at Omaha, and the
act of July 25, 1866, c. 246, touching the construction of several
bridges across the Mississippi, was the more perfect connection of the
roads running to the respective bridges on either side; and being con-
strued liberally, as they should be, the scheme of Congress in the act
of 1871 was to accomplish a more perfect connection at or near Coun-
cil Bluffs, Iowa, and Omaha, Nebraska. Ib.

13. It being within the power of the Union Pacific Company to enter into
contracts for running arrangements, including the use of its track and
the connections and accommodations provided for by the contract in
controversy, and that contract not being open to the objection that it
disables the Union Pacific Company from discharging its duties to the
public, it will not do to hold it void, and to allow the Union Pacific
Company to escape from the obligations which it has assumed, on the
mere suggestion that at some time in the remote future a contingency
may arise which will prevent it from performing its undertakings in
the contract. Ib.

14. Other objections made on behalf of the Union Pacific Company dis-
posed of as follows: (1) The provision in the contract respecting
reference does not take from the company the full control of its road;
(2) Its acts in constructing its road in Nebraska, not having been


objected to by the State, must, in the absence of proof to the contrary,
be deemed valid; (3) The contract is not to be deemed invalid be-
cause, during its term, the charter of the Rock Island Company will
expire; (4) The Republican Valley Company, being a creation of the
Pacific Company, is bound by the contract; (5) The Pacific Company
has power, under its charter, to operate the lines contemplated by
these contracts, it being a general principle that where a corporate
contract is forbidden by a statute or is obviously hostile to the public
advantage or convenience, the courts disapprove of it, but when there
is no express prohibition and it is obvious that the contract is one of
advantage to the public, the rule is otherwise. Ib.

15. The contracts in question were in proper form; signed and executed
by the proper executive officers; attested by the corporate seal of the
Union Pacific Company; approved and authorized by the executive
committee, which had all the powers of the board; and ratified, ap-
proved and confirmed by the stockholders at their next annual meet-
ing: and this was sufficient to bind the Union Pacific Company,
although no action by the board was had. lb.

16. These contracts were such contracts as a court of equity can specifically
enforce and thereby prevent the intolerable travesty of justice involved
in permitting parties to refuse performance of their contracts at pleas-
ure, by electing to pay damages for the breach. Ib.

17. The public interests involved in these contracts demand that they should
be upheld and enforced. It is to the higher interest of all, corpora-
tions and public alike, that it be understood that there is a binding
force in all contract obligations; that no change of interest or change
of management can disturb their sanctity or break their force; but
that the law which gives to corporations their rights, their capacities
for large accumulations, and all their faculties, is potent to hold them
to all their obligations, and so make right and justice the measure of
all corporate as well as individual action. Ib.




LOCAL LAW, 2, 3;

Petitions for rehearing of a case decided March 30, 1896, 162 U. S. 170,
are denied. Telfener v. Russ, 101.


See LOCAL Law, 2.


Congress has not, by Rev. Stat. § 641, authorized a removal of a prose-
cution from a state court upon an allegation that jury commissioners
or other subordinate officers had, without authority derived from the
constitution and laws of the State, excluded colored citizens from

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