It is urged as a contributing cause of disaster, and a fault on the part of the Lillian, that she had no covering hatches in place. Her condition was well known to the tug masters, and it is rarely necessary to put on hatches while working in the upper harbor of New York. Boats of the class in question usually omit them on harbor trips. The Lillian was entitled to expect exposure to no unnecessary danger; she was subjected to such danger, and that constitutes the primary fault in this case. As it was no fault on the Lillian's part to start without covers in place, and it was a fault in the tugs to take her around the Battery in such a storm, we cannot consider it negligent to omit a possible precaution against a danger not reasonably to be anticipated, and produced by the error of claimant's employés. We say possible precaution, because it is doubted whether the covers under circumstances shown would have changed the event. The decree is affirmed, with interest and costs. (233 Fed. 989) MILWEE et al. v. WADDLETON. (Circuit Court of Appeals, Ninth Circuit. July 3, 1916.) 1. ADVERSE POSSESSION No. 2649. 51-TITLE-CLAIM IN GOOD FAITH. Under Comp. Laws Alaska 1913, § 1874, which does not require claim in good faith for 10 years' adverse, open, and notorious possession to ripen into title, plaintiff, who held for that time, though judgment was recovered against him by defendant, acquired an adverse title, regardless of whether his claim was in good faith. [Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 238, 239; Dec. Dig. 51.] 2. PRINCIPAL AND AGENT 28-POWER OF ATTORNEY-AUTHORITY. Where one entitled to share in an estate executed a power of attorney to enable his counsel to close up the estate, the attorney cannot, over 20 years after the power was given, convey lands belonging to the estate which the beneficiary had seen, declared to be worthless, and had abandoned, particularly where the beneficiary had not been heard of in the meantime. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 50; Dec. Dig. 28.] In Error to the District Court of the United States for the First Division of the District of Alaska; Robert W. Jennings, Judge. Ejectment by William N. C. Waddleton against S. H. Milwee and another. There was a judgment for plaintiff, and defendants bring error. Affirmed. J. H. Cobb, of Juneau, Alaska, for plaintiffs in error. GILBERT, Circuit Judge. The defendant in error, who was the plaintiff in the court below, in the spring of 1896 entered into posses For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes sion of a lot in the town of Juneau, and remained continuously in possession, claiming to own the lot, from that time until June 12, 1914, when he was ousted by the defendants. The lot was a part of the patented town site of Juneau. The town-site trustee on November 10, 1898, conveyed the lot to the "Pullen heirs"-James H. Pullen, Mary H. Wilson and Thomas R. Wilson. The conveyance was made after a contest between the said grantees and the plaintiff. From the decision on that contest the plaintiff appealed. In 1902 the decision was affirmed by the Commissioner of the General Land Office. Notwithstanding the decision, the plaintiff remained in the undisturbed possession of the premises, claiming to own the same, and paying the taxes thereon, until his eviction in 1914, whereupon he brought ejectment against the defendants. On the trial of the cause the court instructed the jury to return a verdict in favor of the plaintiff for a two-thirds interest in the lot; Pullen having conveyed to the defendants only a one-third interest in the same. As to the remaining one-third interest the court submitted to the jury the question of the right and title of the respective parties thereto, and the jury returned a verdict for the plaintiff as to that interest also. [1] The defendants assign error to the refusal of the court to instruct the jury to return a verdict in their favor and to the peremptory instruction to return a verdict for the plaintiff for an undivided twothirds interest in the lot. We find no merit in either of these assignments. The plaintiff claimed the title and paid the taxes, under an open, notorious, continuous, hostile, and adverse possession under a claim of ownership for more than 10 years. The defendants say that the plaintiff, after a judgment against him, could not claim title in good faith, and they cite Jasperson v. Scharnikow, 150 Fed. 571, 80 C. C. A. 373, 15 L. R. A. (N. S.) 1178, and Center v. Cady, 184 Fed. 605, 106 C. C. A. 609. Those decisions were based upon a statute of the state of Washington (Ballinger's Ann. Codes & St. § 5503), which provided that one should be held to be adjudged the lawful owner of property if he were in actual, open, and notorious possession of the same under a claim and color of title "made in good faith," and who should during said time pay all taxes legally assessed on such lands. There is no provision in the statute of Alaska that the claim of title shall be made in good faith. It is sufficient if for the specified period the possession is maintained and ownership asserted in accordance with the provisions of the statute. We think, however, that it might properly be held that the plaintiff's claim of title in this case was made in good faith. Notwithstanding the adverse decision against him, he remained in the undisturbed possession and claimed the property. He claimed it, he said, "because I thought I had a better right, the Pullen heirs had not been heard from, and I didn't think they could get it." And he testified that no claim whatever had been made by any of the Pullen heirs to the land in controversy, and that it formed no part of the inventory of the Pullen estate, and had never been occupied by any of the Pullen heirs. Mr. Heid, who was attorney for J. H. Pullen, testified that when Pullen saw the lot he abandoned it and gave it up in disgust. [2] Again, we are of the opinion that the defendants proved no title in themselves. Their claim of title depended wholly upon a conveyance, executed by John J. Heid under a power of attorney from James H. Pullen, which had been made and executed 26 years before the conveyance. The power of attorney gave general authority to take charge of all the property of Pullen, real and personal, in the town of Juneau, with authority to lease, bargain, and sell the same upon such terms and under such covenants as Heid might see fit. It was evidently executed for the purpose of enabling the grantee therein to take possession of and settle up the interest of the grantor in the estate of which he was one of the heirs. Pullen shortly afterward came to Juneau, and according to Heid's testimony he never returned. From that time on Heid never again saw or heard from him. Heid testified that Pullen, when he saw the property, was greatly disappointed in it, "and, when shown this particular lot, abandoned it and gave it up. in disgust, and I have never received a letter or any word from him since that time." A power of attorney executed under the circumstances detailed should be held insufficient to authorize the execution of a conveyance 26 years after its date. It is the settled rule that the duration of a power depends upon the intention of the grantor, as shown by its terms, by the purposes he had in view, and by the surrounding circumstances. 31 Cyc. 1051. It would seem that the purpose of this power of attorney had been fulfilled and its life ended when the grantor thereof visited Juneau, examined the property, and abandoned it as valueless. It would be going far to hold that, in the absence of knowledge of Pullen's whereabouts, or knowledge whether he was alive or dead, and in the absence of communication from him to his agent for a period of more than 20 years, the conveyance to the defendants was the act and deed of Pullen. In Marquam v. Ray, 65 Or. 41, 131 Pac. 523, the Supreme Court of Oregon said: "Where the time within which the power is to be exercised is not fixed in the instrument, it must be exercised within a reasonable time"-citing Clark and Skyles on Agency, p. 542. The judgment is affirmed. (233 Fed. 991) UNITED STATES FIDELITY & GUARANTY CO. v. EICHEL et al. (Circuit Court of Appeals, Third Circuit. October Term, 1916.) No. 1850. On petition for further order. Petition denied. For former opinion, see 219 Fed. 803, 135 C. C. A. 473. PER CURIAM. After we decided this controversy in February of last year (219 Fed. 803, 135 C. C. A. 473), an appeal was taken to the Supreme Court, but this was dismissed for want of jurisdiction in the following November. 239 U. S. 629, 36 Sup. Ct. 165, 60 L. Ed. 475. The mandates from both courts were promptly sent down, and since December, 1915, the District Court has once more had possession of the suit. The pending petition asks for an order 46 # * * that the District Court shall rehear this case, and in such rehearing permit the parties to introduce any evidence pertinent to the issues made by the pleadings so that additional evidence may be taken on any of said issues, and the District Court proceed to rehear the case on the evidence already taken and in, and on any additional evidence that may be offered." We have considered the petition, and the appellant's reply thereto, and are of opinion that (if we assume our power now to make the order requested) no sufficient reason is disclosed for directing the court below to rehear the case. What was said in 219 Fed. 803, 135 C. C. A. 473, states the subjects that were committed to that court for further action, and we see no need to add anything now. This prolonged litigation should come to an end as soon as the other business of the District Court may reasonably permit. The petition is refused. (233 Fed. 992) NG JUNG v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. May 24, 1916.) No. 289. ALIENS 31-CHINESE PERSONS-DEPORTATION. The United States is not estopped from deporting a Chinese person, not entitled to remain in the country, by reason of the acts of a special immigration agent. [Ed. Note. For other cases, see Aliens, Dec. Dig. 31.] Appeal from the District Court of the United States for the Southern District of New York. Proceeding for deportation of Ng Jung. From an order of the District Court affirming an order of deportation, defendant appeals. Affirmed. R. M. Moore, of New York City, for appellant. F. M. Roosa, Asst. U. S. Atty., of New York City. Before COXE and WARD, Circuit Judges, and CHATFIELD, District Judge. PER CURIAM. The question here is one of fact. There was testimony for and against the proposition that the defendant was born in the United States. The commissioner and Judge Lacombe, who reviewed the order of deportation, concurred in finding that the appellant. was a laborer unlawfully in the United States. We think the testimony warranted this conclusion, and that nothing in the record would justify a finding that both the commissioner and the judge were wrong. The United States is not estopped from deporting the appellant because of any act or omission of the special agent, Dannenberg. The order of deportation is affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes END OF CASES IN VOL. 147 THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digest, the Key-Number Series and See Collision; Seamen; Shipping; Towage. ADVERSE POSSESSION. See Public Lands, 103. I. NATURE AND REQUISITES. AGRICULTURE. II (U.S.C.C.A.) Under Civ. Code, § 1824, 13 (U.S.C.C.A.) Under Civ. Code Porto Under Civ. Code Porto Rico, § 1824, subd. 4, Under Civ. Code Porto Rico, § 1824, subd. 2, Under Civ. Code Porto Rico, § 1824, subd. 6, ALIENS. See Clerks of Courts; Evidence, 317; Ha- (E) Duration and Continuity of Posses-plies to aliens born in China, and the minor son sion. 51 (U.S.C.C.A.) As Comp. Laws Alaska AFFIDAVITS. See Contracts, 338; Depositions. AFFREIGHTMENT. See Shipping. AGENCY. See Principal and Agent. II. EXCLUSION OR EXPULSION. 23(2) (U.S.C.C.A.) A minor son of a Chinese 23(2) (U.S.C.C.A.) Where a Chinese person, 25 (U.S.C.C.A.) A Chinese person, engaged For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER |