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a couple of hours there, seeing how things were. During all this time his residence and domicile were at Houghton. He was a trustee of the village and voted there in the fall of 1888. Before he became a resident upon the land, to wit, on March 6, 1889, Ford's claim had attached thereto by his homestead entry of that date, and appellant could not thereafter acquire, by anything he did, any right in or to the land as against Ford.

Besides this, it was a question of fact whether or not he was an actual occupant of the land on May 1, 1888, and in the contest between him and Jesse Ford and Mollie O'Connor, before the Land. Department, as to who had the prior claim to the land, it had jurisdiction, in disposing of that contest, to determine this question of fact. This it did adversely to appellant's contention, and its determination thereof is final. In the recent case of American School of Magnetic Healing v. McAnnulty (decided by the Supreme Court of the United States on November 17, 1902) 23 Sup. Ct. 33, 47 L. Ed., Mr. Justice Peckham said:

"The Land Department of the United States is administrative in its character, and it has been frequently held by this court that, in the administration of the public land system of the United States, questions of fact are for the consideration and judgment of the Land Department, and its judgment thereon is final. Burfenning v. Chicago, St. P., M. & O. R. Co., 163 U. S. 321 [16 Sup. Ct. 1018, 41 L. Ed. 175]; Johnson v. Drew, 171 U. S. 93, 99 [18 Sup. Ct. 800, 43 L. Ed. 88]; Gardner v. Bonestell, 180 U. S. 362 [21 Sup. Ct. 399, 45 L. Ed. 574]."

It will be seen, therefore, that the effect of this decision was to finally dispose of all claim on appellant's part under said act of March. 2, 1889, and that he could not thereafter successfully maintain same either before the Land Department or in the courts. And even if it did not have that effect, and he thereafter had the right to assert his said claim and to have its validity, passed on in either forum, there is room, at least, for maintaining that by his conduct subsequent to the rendition of that decision he abandoned same, and by reason thereof lost any rights he may theretofore have had by reason thercof. He acquiesced in said decision, and on October 24, 1895, filed an original application under the homestead laws to enter the three-fourths of the land covered by the soldiers' additional entry made by Cornelius on July 6, 1895. This he did upon the basis of the claim that Cornelius' right to make same had been exhausted. by a prior entry, and that portion of said land was therefore public land, and subject to homestead entry. He filed no such application to the one-fourth thereof covered by Berry's entry, no doubt because said entry was considered to be valid, and patent was permitted to issue to him on the 15th day of April, 1896, without objection on his part. After this application was finally rejected, and the case was closed, on May 3, 1897, he made the attack upon the entry of Cornelius on the grounds hereinbefore stated, with the view, no doubt, of throwing the land covered by it open to entry again. It was not until a year after this attack was disposed of adversely to his contention, and after appellee had in good faith acquired the note and mortgage in question herein for value, and without other notice of appellant's

ciaim than the records afforded, to wit, on May 3, 1898, that he filed his petition for issuance of a patent, which relief he sought upon the ground that his original homestead claim had been confirmed, and he had thereby acquired title to the land "out and out" by the act of March 2, 1889. That his said claim was the subject of abandonment is clear. Even if his claim was within the confirmatory provision of said act, the effect of said confirmation was not so thoroughgoing as claimed by appellant in his said petition. This court so held in the case of Cunningham v. Metropolitan Lumber Co., 49 C. C. A. 72, 110 Fed. 332. Judge Clark, in delivering the opinion of the court, said:

"The contention of plaintiffs in error is that the proviso to the act of Congress of March 2, 1889, confirming the rights of homestead claimants, as construed by the Supreme Court of the United States in Iron Co. v. Cunningham, 155 U. S. 354, 15 Sup. Ct. 103, 39 L. Ed. 183, had the effect to change the inchoate homestead claim recognized by the act into an absolute title, so that thereafter homestead claimants in the situation of Cunningham stood clothed with full title, without the necessity of the payment of any sum to the United States, or otherwise complying with such regulations and conditions as would have been required by law in the absence of the confirmatory grant contained in this act of Congress. * In this view we are unable to concur. Such a construction of the act would not be just to the United States, and it was certainly more than justice to a homestead claimant in Cunningham's situation required. It was the intention of Congress to recognize such equitable considerations as existed in favor of those who had undertaken in good faith to acquire a homestead, and to comply with the general law and regulations of the land office in relation to such a claim, and to enable them to go forward in the ordinary way and perfect their right by compliance with the law."

The conclusion is therefore irresistible that appellant has no equitable right to the land by virtue of the confirmatory provision of the act of March 2, 1889. He did not come within that provision, as the facts proven herein show, and the decision of the Land Department held. And if he did, there is room at least for holding that he abandoned his claim thereunder.

But appellant does not rest his claim to said land alone upon said confirmatory provision. He urges here, and there is ground for believing that he so urged in the lower court at the hearing therein, that he has an equitable right to the land, as against the legal title and appellee's mortgage claim, by virtue of section 3 of the act of May 14, 1880, 21 Stat. 141 [U. S. Comp. St. 1901, p. 1393], which is in these words:

"That any settler, who has settled or who shall hereafter settle, on any public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States land office, as is now allowed to settlers under the preemption laws to put their claims on record, and his rights shall relate back to the date of settlement, the same as if he settled under the pre-emption laws."

He claims that though what he did prior to Ford's entry on March 6, 1889, was not an actual occupation of the land, within the act of March 2, 1889, it was a settlement, within the meaning of said section of the act of March 14, 1880, and of the public land laws of the United States, and therefore his claim and application to enter

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under the homestead laws of May 1, 1889, took precedence to said Ford's entry; and that, if this position is not well taken, what he did after March 13, 1889, amounted to such a settlement, and upon the relinquishment of Ford on July 6, 1895, his claim by virtue thereof attached at once, and same, followed up by his homestead entry on October 24, 1895, took precedence of the entries of Berry and Cornelius on July 6, 1895.

To this it may be answered that at no time was such a contention set up in the long litigation pending in the Land Department. The contention at first was that appellant was entitled to the land under the confirmatory provision of the act of March 2, 1889, and afterwards under the homestead laws, because of his original application and the invalidity of Cornelius' entry. Besides, no such contention is set up in the bill in this suit. Appellant's case herein is founded upon no such theory. It is based solely upon said confirmatory provision of the act of March 2, 1889, and he ought not, therefore, to be allowed to recover on any other theory. But the contention is without merit otherwise. Assuming that what appellant did on the land in 1888 amounted to a settlement if same had been open to It was not public land. settlement, at that time it was not so open. The title thereto was in the state of Michigan. After March 2, 1889, when same was restored to the public domain, and before Ford's entry of March 6th, he did nothing on the land which amounted to a settlement. Likewise, assuming that what appellant did on the land after March 13, 1889, amounted to a settlement if same were open to a settlement, it was not so open, because of Ford's prior entry. At the time of Ford's relinquishment, appellant was not then residing on the land, having given up his residence thereon several years prior thereto; and he did nothing in the way of a settlement after said relinquishment, and before the entry of Berry & Cornelius. The settler upon whom section 3 of the act of May 14, 1880, confers any rights, is a settler "on any of the public land of the United States," and at no time whilst the land in question was public land of the United States did appellant settle thereon, or perform any act amounting to a settlement. That it is only in such cases that said section applies was recognized by the Supreme Court in the recent case of Nelson v. The Northern Pac. Ry. Co. (decided Jan. -; a case in which said section 26, 1903) 23 Sup. Ct. 302, 47 L. Ed. —; was applied. Mr. Justice Harlan, in delivering the opinion of the court, said:

"The third section of this statute is a distinct confirmation of the rights of a qualified person who had theretofore settled or should thereafter settle on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, though, of course, no lands could be deemed of that character which had prior to such settlement become vested in a railroad company in virtue of an accepted map of definite location."

And again he said:

"Nelson's occupancy occurred after the passage of the act of 1880. While that act did not apply to a railroad company which had acquired the legal title by a definite location of its road, it distinctly recognized the rights prior to such time to settle upon the public lands, whether surveyed or unsurveyed,

with the intention of claiming same under the homestead laws. In occupying the land here in dispute, Nelson did not infringe upon any vested right of the railroad company; for there had not been at the date of such occupancy, in 1881, any definite location of the line of the railroad, and the land so occupied, with other lands embraced by the map of general route, constituted only a 'float'; the company having, at most, only an inchoate interest in them-a right to acquire them if at the time of definite location it was not occupied by homestead settlers, 'nor incumbered with other claims or rights.'"

The judgment appealed from is affirmed.

DAY, Circuit Judge, participated in the decision of this case.

KILPATRICK et al. v. CHOCTAW, O. & G. R. CO.
(Circuit Court of Appeals, Eighth Circuit. February 21, 1903.)

No. 1,694.

1. INJURIES TO SERVANT-DEFECTIVE APPLIANCES

FROGS.

UNBLOCKED RAILROAD

It is not negligence to use unblocked frogs in a railroad freightyard, whereby the feet of employés coupling cars are liable to be caught, it appearing that unblocked frogs are generally in use in the same section of the country, and that it is doubtful whether they are not the better kind.

Caldwell, Circuit Judge, dissenting.

In Error to the United States Court of Appeals in the Indian Territory.

W. E. Rogers, W. O. Davis, and J. H. Garnett, for plaintiffs in

error.

C. B. Stuart, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER, Circuit Judge. This is an action for personal injuries which resulted in the death of R. E. Kilpatrick, at Shawnee, in the Territory of Oklahoma, on February 13, 1897. Minnie Kilpatrick, the plaintiff below and the plaintiff in error here, who was the wife of the deceased, sues for herself and as next friend for her minor children, Ethel Kilpatrick and Robbie Kilpatrick, basing her right to sue on sections 435 and 436 of the Laws of Oklahoma Territory, which provide, in substance, that, when the death of a person is caused by the wrongful act or omission of another the personal representatives of the deceased may maintain an action therefor against the wrongdoer if the deceased might have maintained an action had he lived; and that such action may also be brought by the widow, or, where there is no widow, by the next of kin, provided no personal representative has been appointed. It was charged in the complaint

1. Duty of railroad companies to block switches, see note to Hauss v. Railroad Co., 46 C. C. A. 98.

See Master and Servant, vol. 34, Cent. Dig. § 190.

that R. E. Kilpatrick was in the employ of the Choctaw, Oklahoma & Gulf Railroad Company at the time of his death, acting in the capacity of a brakeman on one of its freight trains; that at the time and place of his death it became necessary for the deceased to go between two freight cars standing on the defendant's track, and to uncouple them while the train to which they were attached was moving slowly; that, by reason of the negligence of the defendant company, the coupling pins, coupiing links, coupling chains, cranks, and means provided for coupling and uncoupling the two cars, had, through the defendant's negligence, been permitted to become defective, broken, and out of repair, so that the cars could not be uncoupled without going between the cars while they were in motion; that as he stepped in between the two cars for the purpose of uncoupling them, being at the time in the exercise of due care, his foot was caught and became wedged between what is known as the "guard rail" and the "main rail" at a point where the space between the main rail and the guard rail was only about two inches in width; and that, by reason of his foot being caught and so held, he was run over, and his leg and body were so crushed and mangled that he died within half an hour thereafter. It was further alleged in the complaint that the defendant company had caused a guard rail at the place in question to be so laid, alongside of the main rail, that there existed at each end of the guard rail an open and unblocked space about four inches in width; that this space gradually decreased in width from each end of the guard rail for about six inches until it reached a point where the space between the main rail and guard rail was not over two inches wide; that the laying of the guard rail in this manner, without blocking it, rendered the track at that point unsafe and dangerous, as the defendant company knew, or by the exercise of ordinary care ought to have known, long prior to the accident in question; and that for years prior to the accident, as the defendant company well knew, there was in use a plain and simple device for preventing the feet of railroad employés from becoming wedged between the two rails, such device being a block or wedge. of wood placed between the guard rail and the main rail at each end of the guard rail, which wedge or block, when inserted, will effectually prevent a person's foot from becoming wedged between the two rails; but that, notwithstanding such knowledge on the part of the defendant company, it negligently failed and omitted to make use of such a device or insert such a block. While the complaint alleged that the coupling appliances on one of the cars in question were broken and out of repair, yet in the course of the trial it was stipulated by the plaintiff's attorneys that the failure to block the frog in the defendant's track was the proximate cause of the injury complained of, and that the plaintiff would rely for a recovery solely upon the failure of the defendant company to block the frog, and that he would not rely for a recovery upon the other ground stated in the complaint, that the coupling appliances were out of repair. At the conclusion of all of the testimony, the trial court directed the jury to return a verdict in favor of the defendant company, which was accordingly done, and the judgment subsequently rendered in

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