out it would naturally fall inside of the ship's rail on its deck, while in fact it did fall outside the rail of the ship on the deck of the lighter boat. The learned trial judge states the theory of the ship's proctor in this regard, based on this fact, is a plausible one, "perhaps even a probable one, but he is not prepared to be absolutely certain as to whether that pin might not have struck the rail or something else first, and have bounced in any direction." Could it be less plausible or probable, or could he be less absolutely certain, about the slight wear of the pin threads causing it to come out? Where comes the proof by substantive evidence, the burden to produce which was by law upon the libelants, that either theory did or could account for the accident?

Second. It was an undisputed fact that the copper plates to be lowered were secured by chains leaving the ends not protected in any way, instead of loading them in tubs or shovels, as zinc plate was taken in, and which was the safer and better way. From this it is argued that the plates spread over greater space as they dropped in the hold, and this was the proximate cause of the victim being struck. It may be so. To me it seems as reasonable as any other conjecture advanced, except the next one to be adverted to; but who can tell from the evidence where a bucket or shovel would have slid to in that hold and whether it would have struck the poor victim or not?

Third. The second mate, Palmer, the first officer, Sliney, and the captain, Watson, all testify that during operation they severally complained that the winches were not properly operated; that they were so worked that one winch in effect was allowed to heave against the other, whereby overstress and strain was caused, and the tackle was not permitted to come in on an angle of 45 or 60 degrees, but at one of more than 60 degrees, which no tackle could stand. The second mate says he repeatedly complained of this to watchmen; the first officer testifies he spoke to the stevedore about it; the captain testifies that after 4 o'clock in the afternoon of the day before the accident he complained to the winchman, the hatchman, and everybody assembled around, saying to Bradley, the young foreman: "You fellows will be killing somebody yet." In this he is fully corroborated by the engineer, Garden, who was present and suggested shutting off some of the steam. The latter also testifies to having heard the stevedore's deckman complain to the after winchman, controlling the outboard lines, that he was not looking after his signals. All three of the first-named officers express the opinion that this improper working of the winches was the cause of the accident. All this testimony is very unsatisfactorily denied by the winchman resting under the charge and by young Bradley, the foreman. It is corroborated by the fact that this Stevedore Company at the time was rushed with work and this operation was being hurriedly done. The strong conviction comes to me that this was in truth and fact the proximate cause of the accident. Be that as it may, it is sufficient to sustain my position to point out that there have been suggested seven theories in this case to account for it:

First. That the pin broke, a theory finally abandoned.

Second. That the pin was not properly screwed in-one absolutely not proven, but contradicted by positive testimony, unimpeached and uncontradicted.

Third. That the threads of the pin were badly worn-a theory shown to be so little substantiated by evidence and personal examination as to cause the trial court to express doubt as to whether it would come out once in a hundred times of use.

Fourth. That the extra and unusually used preventer guy, if it had been properly rigged up by libelant's immediate employer, the Stevedore Company, might have prevented the accident.

Fifth. That, if the copper plates had been properly loaded in tubs or shovels instead of by use of chains, leaving the ends unsecured, the plates would not have spread, and struck the victim.

Sixth. That in operation, for some cause, some one removed the pin, and failed to properly and effectively screw it back and secure it. Seventh. That, in operation, the winches were negligently worked against each other, whereby extraordinary stress and strain was produced, the shackle was worked from the pin, and the guy rope was broken.

Could anything be more completely applicable in the premises than the words of Mr. Justice Brewer, which I have quoted, that "where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury (or court) to guess between these half dozen causes, and find that the negligence of the employer was the cause"?

But, finally, the learned trial judge, I think, very properly and wisely, in his opinion, warned counsel of the existence of the Workman's Compensation Law existing in his state, and of the risk they run in imperiling their client's rights in bringing suits for which it provides an exclusive remedy.

If these humane laws were enacted, as they have been in many of the states, for any particular reasons, above all others it has been, first, to provide compensation for those unforeseen and unaccountable accidents constantly arising, whereby the helpless victims and their families would be deprived of their means of subsistence; and, second, to establish, at the joint expense of the state, employers, and workmen themselves, an equal and uniform rate of compensation for all injuries, duly classified, received by such workmen, which could and would be promptly and inexpensively ascertained and paid to them, whereby would be abolished a practice that had, in maritime, mining, and manufacturing districts, become a scandal and reproach to the legal profession-a practice that has led some members of the bar to hunt up victims of accident, seek employment to prosecute their cases, and thereby secure large fees in case of their successful issue. This practice, significantly called "ambulance-chasing," has largely contributed to the congested dockets of the courts, state and federal, requiring the services of additional judges from time to time and greatly enhanced expense of court administration. It has been demonstrated

by the studies made of existing conditions causing the enactment of these laws that, over and above the costs of court administration paid by government, on an average the employer has to pay, as a result of litigation, near three times the actual sum received by the unfortunate subject of the accident. The latter usually pays in cost, expenses, and attorney's fees one half of his judgment, and the employer an equivalent half over and above the judgment, in payment of court costs and attorney's fees in making his defense. Under such circumstances, the courts, it seems to me, should be earnest in sustaining and enforcing these laws for the protection of society, employers, and workmen alike. This case was one where the original libelant was entitled to the benefits of the Maryland act, and I would dismiss these libels because clearly not maintainable under the rules of law, but with the hope that the unfortunate widow and children may not even yet be deprived of the beneficent provisions of this Compensation Act.

(243 Fed. 823)

MCCULLOUGH et al. v. SMITH.*

(Circuit Court of Appeals, Eighth Circuit. June 20, 1917.)

No. 4784.

1. TERRITORIES 18-INDIAN TERRITORY-ADOPTION OF ARKANSAS STATUTES. By Act May 2, 1890, c. 182, § 31, 26 Stat. 94, extending certain of the statutes contained in Mansf. Ark. Dig. over the Indian Territory, Congress adopted the construction placed upon such statutes by previous decisions of the Supreme Court of Arkansas, but not by subsequent decisions, nor the decisions of that court construing and applying the common law.

2. MORTGAGES 188-CONSTRUCTION AND EFFECT-LAW OF INDIAN TERRITORY.

The legal effect of a mortgage executed in 1906 on land in Indian Territory is to be determined by the common law, there being no provision on the subject in the Arkansas statutes extended by Congress over the territory; and under the common law the mortgage is not a complete alienation of the title, but, except as against the mortgagee, the mortgagor, while in possession and where there has been no foreclosure, remains the real owner of the land.

16(4)—VALIDITY OF LEASE-EFFECT OF INVALID PROVISION

3. INDIANS DIVISIBILITY.

*

Act June 7, 1897, c. 3, 30 Stat. 72, authorized allottees of land within the limits of the Quapaw Agency, Indian Territory, to lease their land "for a term not exceeding ** ** ten years for mining or business purposes." An allottee subject to such act executed an oil and mining lease for ten years, with a further provision that, should oil or other mineral of value be found in paying quantities, the privilege of operating should continue so long as such substances could be produced in paying quantities, "on such terms and conditions as parties hereto have agreed upon after the expiration of this lease." Held, that the lease was divisible, and that the invalidity of the provision for an extension did not affect its validity for the ten-year term which was within the statute.

4. CONTRACTS 137(1)-SEVERABLE CONTRACTS-EFFECT OF INVALID PROVI

SION.

When a part of a divisible grant or contract is ultra vires or illegal, but not malum in se, and the remainder is lawful, the latter may be sustained For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes * Rehearing denied September 10, 1917.

and enforced, unless it appears from a consideration of the whole grant or contract that it would not have been made without the part which is ultra vires or illegal.

5. MINES AND MINERALS 58-MINING LEASE-VALIDITY.

In a suit by the holders of a mining lease to quiet title as against adverse claimants, it appeared that the lease was for the term of ten years, "for the purpose of prospecting, mining, drilling, boring, or digging for oil, gas, asphaltum, lead, zinc, coal, and copper. * * *"" It also gave the lessee the right to use the surface for railroad tracks, pipe lines, or buildings. The bill alleged that the lessee and his assigns had been in possession since the execution of the lease, and had drilled test holes and sunk a shaft thereon, and improved the same for mining purposes. Held, that such lease was not subject to the rules governing strictly oil and gas leases, and that it was not invalid on its face by a clause providing that the lessee should pay five cents per acre yearly in case of delay in beginning operations, "in lieu of said work, so long as they or their assigns desire to operate or hold the same," but that the question whether such clause was unfair or inequitable was one to be determined on final hearing.

Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.

Suit in equity by W. P. McCullough and another against W. M. Smith. From a decree dismissing the bill on motion, complainants appeal. Reversed.

Paul A. Ewert, of Joplin, Mo. (A. C. Towne, of Miami, Okl., on the brief), for appellants.

A. Scott Thompson, of Miami, Okl. (Hiram W. Currey, of Joplin, Mo., on the brief), for appellee.

Before SANBORN and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH, Circuit Judge. According to the allegations of the bill, the plaintiffs W. P. McCullough and T. F. Phillips, residents and citizens of Oklahoma, and D. E. Beth, a citizen and resident of Kansas, brought this suit in equity against W. M. Smith, a citizen and resident of Kansas. The bill substantially alleges that on March 2, 1895, c. 188, Congress enacted 28 Stat. 876, 907, as follows:

"That the allotments of land made to the Quapaw Indians, in the Indian Territory, in pursuance of an act of the Quapaw National Council, approved March twenty-third, eighteen hundred and ninety-three, be and the same are hereby ratified and confirmed, subject to revision, correction and approval by the Secretary of the Interior: Provided, however, that any allottee who may be dissatisfied with his allotment shall have all the rights to contest the same provided for in said act of the Quapaw National Council subject to revision, correction, and approval by the Secretary of the Interior. And the Secretary of the Interior is hereby authorized to issue patents to said allottees in accordance therewith: Provided, that said allotments shall be inalienable for a period of twenty-five years from and after the date of said patents." See Goodrum v. Buffalo, 162 Fed. 817, 89 C. C. A. 525.

There was patented to Leander J. Fish some 200 and possibly 240 acres of land. On June 21, 1906, c. 3504, the Fifty-Ninth Congress (34 Stat. 325, 344) enacted the following:

"That Leander J. Fish, an allottee of two hundred acres of land in section thirty-two, township twenty-nine, range twenty-three east, and of forty acres

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

in section fourteen, township twenty-nine, range twenty-four east, in the Quapaw Reservation, under the provisions of the act of March second, eighteen hundred and ninety-five (twenty-eighth Statutes, page nine hundred and seven), and the act of March third, nineteen hundred and one (thirty-first Statutes, page ten hundred and fifty-eight), be, and he is hereby, authorized to alienate such portion of said land as he may see fit, not exceeding one hundred and twenty acres, under such rules and regulations as the Secretary of the Interior may prescribe, and any conveyance of such land made by said Fish shall be executed subject to the approval of the Secretary of the Interior."

Thereafter, on July 14, 1906, Fish executed a mortgage deed to E. V. Kellett upon the east half of the northwest quarter, and the southwest quarter of the northeast quarter, section 32, township 29, range. 23, being 120 acres, to secure a note for $1,000 due in three years, with 9 per cent. interest. This mortgage deed was received by the Secretary of the Interior, and approved July 20, 1906, although for aught that appears he had never prescribed any rules or regulations. as contemplated in the last-quoted act of Congress. Thereafter Kellett assigned the said mortgage deed to the Alliance Trust Company of Dundee, Scotland. On June 20, 1908, the Alliance Trust Company acknowledged full payment and satisfaction of said mortgage, and released the same, and reconveyed the premises to Leander J. Fish, his heirs and assigns. On June 7, 1897, c. 3, Congress passed an act (30) Stat. 62, 72):

"That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes."

On April 29, 1912, Leander J. Fish executed a lease of the same 120 acres previously mortgaged to Kellett to Dallas Hopper for the term of ten years,

"for the purpose of prospecting, mining, drilling, boring, or digging for oil, gas, asphaltum, lead, zinc, coal and copper and all and every other kind or kinds of valuable minerals, ore, fossil, or vegetable substance whatever; if oil, mineral or any other substances of value are found in paying quantities in any well drilled or shaft sunk, the privilege of operating shall continue so long as oil, minerals or other substances of value can be produced in paying quantities on such terms and conditions as parties hereto have herein agreed upon after expiration of this lease. * * * The party of the second part hereby agrees to begin operations on the above-described premises within ninty days after the date of this lease; in case such operations do not begin within said stated time, said second party agrees to pay to said first party 5¢ per acre yearly for each and every acre contained in this lease, in lieu of said work, so long as they or their assigns desire to operate or hold the same."

Immediately after the execution of said lease said Dallas Hopper entered into possession of said premises under its terms, and thereafter sold and conveyed all his rights under said lease to the plaintiffs, and ever since the date of said lease said Hopper and his assignees, the plaintiffs, have remained in possession of the leased premises under said lease, and have prospected and developed said lands, and have sunk numerous test or drill holes upon said land, and have sunk a shaft thereon, and have improved and developed the same for mining purposes. The plaintiffs claim a leasehold interest in said premises under

156 C.C.A.-22