"Eighth. No concession, grant, or other authority to acquire land, made upon any condition or requirement, either antecedent or subsequent, shall be admitted or confirmed unless it shall appear that every such condition and requirement was performed within the time and in the manner stated in any such concession, grant, or other authority to acquire land."

The only authority given by this act to the surveyor general of a territory or state is by § 10, which requires him, after a final decree of confirmation by the court of private land claims, and under the directions of the Commissioner of the General Land Office, to make a survey and return it to said commissioner, by whom it is to be transmitted to that court for its approval or correction. And § 15 expressly repeals § 8 of the act of July 22, 1854, "and all acts amendatory or in extension thereof, or supplementary thereto, and all acts or parts of acts inconsistent with the provisions of this act."

before the cession can be completed and made binding upon the United States, but have neither made it obligatory upon the owner of a title complete and perfect before the cession to resort to this method, nor declared that his title shall not be valid if he does not do so.

A grant of land in New Mexico, which was complete and perfect before the cession of New Mexico to the United States, is in the same position as was a like grant in Louisi ana or in Florida, and is not in the position of one under the peculiar acts of Congress in relation to California, and may be asserted, as against any adverse private claimant, in the ordinary courts of justice.

In the present case, the Mexican grant in question being asserted by the plaintiff to have been complete and perfect by the law prevailing in New Mexico before the cession of the country to the United States, and it being agreed that this grant had neither been confirmed nor rejected by Congress, and that no proceedings for its confirmation were pending before Congress or before the surveyor general at the time of the commence ment of this suit, this court, for the reasons above stated, is of opinion that the courts of the territory of Arizona had jurisdiction, as between these parties, to determine whether the grant was complete and perfect before the cession by Mexico to the United States.

Those courts having held otherwise, the judgment of the Supreme Court of the Territory of Arizona, affirming the judgment of the District Court of Pima County, is reversed, and the case remanded for further proceedings.

The effect of these provisions of the act of 1891 is that all prior acts of Congress providing for the assertion, whether in a judicial tribunal or before a surveyor general and Congress, of either complete or incomplete Mexican grants, are repealed, except as to claims previously acted upon and decided by Congress or under its authority; that all incomplete claims against the United States, coming within the provisions of the act, must be presented to the court of private land claims; that anyone claiming land under a Mexican grant, which was complete and perfect at the time of the cession of sovereignty "shall have the right (but shall not be bound) to apply to said court," as in cases of incomplete grants; that the United States, however, may file a petition in that court "against the holder or possessor of any claim or land," which would doubtless include titles claimed to be com- NEW MEXICO & ARIZONA RAILROAD COMIn No. 2, AINSA, Administrator of Ely, v. plete, as well as those which were incomplete, at the time of the cession; and that all PANY and others, a similar case submitted decisions under this act shall be conclusive by the same counsel at the same time, judgbetween the claimants and the United States ment was likewise reversed, Mr. Chief Jus tice Fuller dissenting. only, and shall not affect the private rights of any person, as between himself and any

other claimant.

Mr. Chief Justice Fuller dissented.

(175 U. S. 91)

(175 U. S. 91) HARTFORD FIRE INSURANCE COMPANY et al., Petitioners,

v.

CHICAGO, MILWAUKEE, & ST. PAUL
RAILWAY COMPANY.

Contract to exempt from negligence in setting fire-lease for warehouse on railroad right of way.

In short, the United States, at their election, may have the validity of any Mexican grant, whether complete or incomplete, determined by the court of private land claims, so far as concerns the interest of the United States; and proceedings to establish against the United States private titles claimed under incomplete Mexican grants are within the exclusive jurisdiction of that court; but the private holder of any complete and perfect Mexican grant may, but is not obliged | 1. to, have its validity as against the United States determined by that court; and no rights of private persons, as between themselves, can be determined by proceedings under this act.

The result is that the United States, by the act of 1891, have prescribed and defined the only method by which grants incomplete 20 S. C.-3

A stipulation in a lease of a strip of land on a railroad right of way for a storage warehouse, by which the railroad company is exempted from any liability for damage by fire from its locomotive engines, even though caused by the negligence of the company or its servants, is not void as against public pol ley, where the lease contains no provisions which in any way involve any relation of the railroad company as a common carrier to the lessee or to the public.

68.

06.

2. Questions of public policy as affecting the llability for acts done or upon contracts made and to be performed within one of the states of the Union, when not controlled by the Constitution, laws, or treaties of the United States, or by the principles of the commercial or mercantile law or of general jurisprudence, of national or universal application, are gov. erned by the law of the state as expressed in its own Constitution and statutes or declared by its highest court.

8.

A decision of the highest court of a state, holding that a contract exempting a railroad company from liability for negligence in setting fire to a storage warehouse on the railroad right of way is not against public policy, is conclusive upon a Federal court sitting in that state.

[No. 5.]

Argued November 11, 12, 1897.
November 6, 1899.

entitled to judgment against it for the sum so paid, with interest.

The defendant, on May 23, 1893, removed the case into the circuit court of the United States for the district of Iowa; and in that court, on September 12, 1893, filed an answer admitting that the parties to the action were corporations, and that the partnership was doing business at Monticello, as alleged, but denying all the other allegations of the petition.

On April 2, 1894, by leave of court, an amended answer was filed, alleging that the land on which the warehouse stood belonged to the defendant as part of its depot grounds at Monticello; and that the sole right and occupancy of the partnership therein were by virtue of an indenture of lease, dated February 1, 1890, executed by the defendant and Decided by the partnership, under which the partnership entered into and thenceforth occupied the land, and which was set forth in the answer, and was as follows:

N WRIT OF CERTIORARI to the United

This was an action brought May 10, 1893, in the district court of Jones county, in the state of Iowa, against the Chicago, Milwaukee, & St. Paul Railway Company, a railroad corporation of Wisconsin, by seven fire insurance companies, corporations of other states, to recover for the loss by fire, owing to the defendant's negligence, of a warehouse and goods, belonging to the partnership of Simpson, McIntire, & Company, and insured by the plaintiffs, who had paid the loss.

The defendant leased the land (describing it by metes and bounds, showing it to be a strip 130 feet long and 55 feet wide, part of its depot grounds, and by the side of its track) to the partnership, "to hold for the term of one year from the date hereof for the purpose of erecting and maintaining thereon a cold-storage warehouse, the said lessee yielding and paying therefor the annual rent of $5 in advance; and upon the express condition that the said railway company, its successors and assigns, shall be exempt and released, and said parties of the second part, for themselves and for their heirs, executors and administrators and assigns, do hereby expressly release them, from all liability or damage by reason of any injury to or destrucwhich may hereafter be placed on, said premtion of any building or buildings now on, or ises, or of the fixtures, appurtenances, or other personal property remaining inside or outside of said buildings, by fire occasioned the locomotives, or from any damage done by or originated by sparks or burning coal from trains or cars running off the track, or from the carelessness or negligence of employees or agents of said railway company; and further, that the said parties of the second part will in no way obstruct or interfere with the track of said railway company in using said premises.

The petition alleged that on November 11, 1892, and long before, the partnership was doing business at Monticello in that county, "And the parties of the second part agree and there owned a cold-storage warehouse, to keep said premises in as good repair and situated upon railroad ground by the side of condition as the same are in at the comthe railway track of the defendant in Mon- mencement of said term; to pay, as the same ticello, and containing a valuable stock of become due and payable, all taxes and assessbutter and eggs; that on that day the de- ments, general and special, that may be levfendant, while running its engines and cars ied or assessed thereon during the time they on its railway track alongside of the warehouse, negligently set fire to and destroyed remain in possession thereof; and to quit the warehouse and its contents to the value and surrender said premises at the expiraof $27,118; that at the time of the fire the tion of said term, on demand of said railway partnership held policies of insurance against company; and, in case such demand shall fire on this property from each of the plain-not be made at the expiration of said term, tiffs, and was afterwards paid by them, un- to pay said rent, at the rate and in the inder those policies, the aggregate sum of $23,- stalments aforesaid, as long as they remain 450; and that the plaintiffs thereby became, in possession thereof; and that they will not to that extent, subrogated to the partner- underlease said premises without the writ ship's right against the defendant, and were ten consent of said railway company.

*94

*95

"And said parties of the second part fur-1 ther agree to quit and surrender said premises at any time before the expiration of said first-mentioned term, or at any time when default shall be made in the payment of said rent or taxes as aforesaid, within thirty days after demand of said railway company; and that upon the expiration of said thirty days it shall be lawful for said railway company to expel them therefrom.

"The parties of the second part may (and hereby agree that they will, if said railway company shall so require) remove from said premises, within thirty days after any termination of this lease, all structures owned or placed thereon by them."

That judgment was unanimously affirmed by the circuit court of appeals upon the ground that the stipulation was valid, and was not against public policy; Judges Sanborn and Thayer, however, expressing the opinion (Judge Caldwell nonconcurring in this respect) that the decision of the state court was not conclusive upon this question. 36 U. S. App. 152, 70 Fed. Rep. 201, 17 C. C. A. 62. The plaintiffs thereupon applied for and obtained this writ of certiorari.

This action against a railroad corporation for the loss by fire, owing to its negligence in running its engines and trains, of a coldstorage warehouse and the goods therein. owned by a commercial partnership, is The amended answer concluded by alleg- brought by insurers of the property, ing "that from the first day of February, who had paid to the partnership the 1890, down to and including the time of said greater part of the loss, and whose right, fire, Simpson, McIntire, & Company re- thereby acquired by way of subrogation, to mained in possession and occupancy of said recover against the railroad company to the premises under the terms and conditions of extent of the amount so paid, is but the same said original lease, and not otherwise; and right that the partnership had. Phoenix were and continued to be tenants holding over Ins. Co. v. Erie & W. Transp. Co. 117 U. S. under the lease aforesaid, and subject to all 312, 29 L. ed. 873, 6 Sup. Ct. Rep. 750, 1176. its provisions; and that, as to the alleged It is important, therefore, in the first destruction by fire of the building and prop-place, to ascertain exactly what were the reerty mentioned in the plaintiffs' petition, all lations between the railroad company and such risks and the loss therefrom were as- the partnership. sumed by said Simpson, McIntire, & Company, and this defendant company was released therefrom, as one of the express conditions of said lease and occupancy, and plaintiffs cannot now recover therefor. Wherefore the defendant prays judgment herein."

The plaintiffs demurred to the amended answer, on the ground that the stipulation in the lease, by which it was sought to exonerate the defendant from loss by fire caused by the negligence of itself or its servants, was void as against public policy.

The warehouse stood upon a strip of land belonging to the railroad company, by the side of its track, and part of its depot grounds at Monticello, in the state of Iowa. The sole right of the partnership in that strip was by virtue of an indenture of lease thereof, dated February 1, 1890, by which the railroad company leased it to the partnership for a year from that date, "for the purpose of erecting and maintaining thereon a cold-storage warehouse," at an annual rent of $5 payable in advance, "and upon the express condition that the said railway comAt the argument of the demurrer in the pany, its successors and assigns, shall be excircuit court of the United States at April empt and released," and the lessees "do hereterm, 1894, before Judge Shiras (as is shown by expressly release them," from all liability by his opinion copied in the record, and or damage by reason of any destruction or printed in 62 Fed. Rep. 904), it appeared injury of buildings then upon or afterwards that a case between other parties, involving placed on the land or of personal property the question at issue in this case, was then inside or outside of those buildings, "by fire pending before the supreme court of the state occasioned or originated by sparks or burnof Iowa, under the following circumstances: ing coal from the locomotives, or from any In that case, entitled Griswold v. Illinois C. damage done by trains or cars running off R. Co., that court, on October 19, 1892 (by the track, or from the carelessness or negli an opinion reported only in 53 N. W. 295), gence of employees or agents of said railway had held a similar stipulation to be void as company;" and the lessees covenanted in no against public policy, but on February 3, way to obstruct or interfere with the track 1894, upon a rehearing, had held to the con- of the railroad company. The rest of the trary, and had sustained the validity of the indenture consisted of covenants of the les stipulation, two judges dissenting. 90 Iowa, sees to keep the premises in repair; to pay 265, 24 L. R. A. 647, 57 N. W. 843. A second petition for rehearing was then filed, and the rent and taxes so long as they remained was still pending in that court. Under those in possession; to surrender possession to the circumstances Judge Shiras suspended action on the demurrer, awaiting the final decision of the suprerne court of the state. That court afterwards denied the second petition for rehearing, thereby finally affirming the validity of the stipulation; and thereupon Judge Shiras, at September term, 1894, overruled the demurrer, and, the plaintiffs declining to plead further, rendered judgment for the defendant.

lessor, at the expiration of the term, if then demanded, or before its expiration, or on default in payment of rent or taxes, within thirty days after demand; and not to underlease without the lessor's consent; with further agreement that the lessees might, and, if required by the lessor, would, remove from the premises, within thirty days after any termination of the lease, all structures owned or placed thereon by them.

96.

The indenture, in short, is a lease by the| L. ed. 788, 791, 792, 9 Sup. Ct. Rep. 469, and railroad company of a strip of its land by other cases there cited. Although a telethe side of its track to the partnership, for graph company is not a common carrier, yet the purpose of erecting and maintaining a its relation with senders of messages over its cold-storage warehouse thereon, for one year lines is of a commercial nature, and conand for such longer time as the lessee may tracts that the company shall not be liable be permitted by the lessor to remain in pos- for the negligence of its servants are af session; and contains no further agreements, fected, in some degree, by similar consideraother than those usual between lessor and tions. Southern Exp. Co. v. Caldwell, 21 lessee, except a covenant of the lessee not to Wall. 264, 209, 22 L. ed. 556, 558; Western obstruct or interfere with the railroad track U. Teleg. Co. v. Texas, 105 U. S. 460, 464, 26 of the lessor, and an express condition of the L. ed. 1067, 1068; Primrose v. Western U. lease and covenant of the lessee that the les Teleg. Co. 154 U. S. 1, 38 L. ed. 883, 14 Sup. sor shall not be liable to the lessee for any Ct. Rep. 1098; Western U. Teleg. Co. v. damage to the building or to personal prop. Cook, 15 U. S. App. 445, 61 Fed. Rep. 624, 9 erty in or about it, by fire from the lessor's C. C. A. 680; Harkness v. Western U. Teleg. locomotive engines, or by trains or cars run- Co. 73 Iowa, 190, 34 N. W. 811. ning off the railroad track, although owing The plaintiff's further insisted that the to the negligence of the lessor or its servants. same reasons apply universally, and should The indenture contains no stipulation con- be held to defeat all contracts by which a cerning, or even any mention of, any trans party undertakes to put another at the mer portation of goods over the railroad, or any cy of his own faulty conduct. But the only relation of the railroad company as a com- authorities cited which support this proposimon carrier to the lessee or to the public; tion are a general statement in Cooley on and there is nothing in the record to show Torts, 687, and an obiter dictum in Johnson that such a relation existed between the v. Richmond & D. R. Co. 86 Va. 975, 978, 11 railroad company and the lessee, or that the|S. E. 829; and it is certainly too sweeping. warehouse was built or maintained for the benefit of the public, or of the railroad corporation, or of anyone but the partnership. The decision of the case turns upon the question whether the provision of this in denture, by which the railroad company is not to be liable for damage to the property by fire from its locomotive engines, owing to the negligence of itself or its servants, is void as against public policy.

The plaintiffs' counsel at the argument much relied on the cases in which similar provisions in the contracts of common carriers or of telegraph companies have been held to be void.

It is settled by the decisions of this court that a provision in a contract between a railroad corporation and the owner* of goods received by it as a common carrier, that it shall not be liable to him for any loss or in jury of the goods by the negligence of itself or its servants, is contrary to public policy, and must be held to be void in the courts of the United States, without regard to the decisions of the courts of the state in which the question arises. But the reasons on which those decisions are founded are that such a question is one of general mercantile law; that the liability of a common carrier is created by the common law, and not by contract; that to use due care and diligence in carrying goods intrusted to him is an essential duty of his employment, which he can. not throw off; that a common carrier is under an obligation to the public to carry all goods offered to be carried, within the scope and capacity of the business which he has held himself out to the public as doing; and that, in making special contracts for the carriage of such goods, the carrier and the customer do not stand on equal terms. Nero York C. R. Co. v. Lockwood, 17 Wall. 357. 21 L. ed. 627; Liverpool & G. W. Steam Co v. Phenix Ins. Co. 129 U. S. 397, 439–442, 32'

Even a common carrier may obtain insur ance against losses occasioned by the negli gence of himself or of his servants, or may, by stipulation with the owner of goods carried, have the benefit of such insurance procured thereon by such owner. Phonix Ins. Co. v. Eric & W. Transp. Co. 117 U. S. 312, 29 L. ed. 873, 6 Sup. Ct. Rep. 750, 1176; California Ins. Co. v. Union Compress Co. 133 U. S. 387, 414, 33 L. ed. 730, 737, 10 Sup. Ct. Rep. 365; Wager v. Providence Ins. Co. 150 U. S. 99, 37 L. ed. 1013, 14 Sup. Ct. Rep. 55.

A railroad corporation holds its station grounds, railroad tracks, and right of way for the public use for which it is incorporated, yet as its private property, and to be occupied by itself or by others in the manner which it may consider best fitted to promote, or not to interfere with, the public use. It may, in its discretion, permit them to be occupied by others with structures convenient for the receiving and delivering of freight upon its railroad, so long as a free and safe passage is left for the carriage of freight and passengers. Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 23 L. ed. 356. And it must provide reasonable means and facilities for receiving goods offered by the public to be transported over its road. Covington Stock-Yards Co. v. Keith, 139 U. S. 128, 35 L. ed. 73, 11 Sup. Ct. Rep. 461. But it is not obliged, and cannot even be compelled by statute, against its will, to permit private persons or partnerships to erect and maintain elevators, warehouses, or similar structures for their own benefit, upon the land of the railroad company. Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130.

In the case at bar no one had the right to put a warehouse or other building upon the land of the railroad corporation without its consent; and the corporation was under no

86.

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obligation to the public, or to the partner-troversy does not depend upon the Constituship, to permit the latter to do so. In tion, laws, or treaties of the United States, granting and receiving the license from the or upon any principle of the commercial or corporation to the partnership to place and mercantile law, or of general jurisprudence. maintain a cold-storage warehouse upon a Generally speaking, the right of a railroad strip of such land by the side of the railroad corporation to build its road and to run its track, and in erecting the warehouse there- locomotive engines and cars thereon, within on, both parties knew that its proximity to any state, is derived from the legislature of the track must increase the risk of dama-(the state; and it is within the undisputed ges, whether by accident or by negligence, to powers of that legislature to prescribe the the warehouse and its contents, by fire set precautions that the corporation shall take by sparks from the locomotive engines, or by to guard against injuries to the property of trains or cars running off the track. The others by the running of its trains, as well principal consideration, expressed in their as the measure of its liability in case such contract, for the license to build and main-injuries happen. Among the most familiar tain the warehouse on this strip*of land, was instances of the exercise of this power are the stipulation exempting the railroad conpany from liability to the licensee for any such damages. And the public had no interest in the question which of the parties to the contract should be ultimately respon sible for such damages to property placed on| the land of the corporation by its consent only.

Ct. Rep. 699.

statutes requiring a railroad corporation to erect fences between its road and adjoining lands, and subjecting it to either single or double damages for any injury to cattle or other animals caused by its neglect to do so (Missouri P. R. Co. v. Humes, 115 U. S. 512, 29 L. ed. 463, 6 Sup. Ct. Rep. 110; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. The case is wholly different from those S. 26, 32 L. ed. 585, 9 Sup. Ct. Rep. 207; cited by the plaintiffs, in which a lease by a Minneapolis & St. L. R. Co. v. Emmons, 149 railroad corporation, transferring its entire U. S. 364, 37 L. ed. 769, 13 Sup. Ct. Rep. property and franchises to another corpora870); and statutes making a railroad corpo tion, and thus undertaking to disable itself ration liable for damages to property of from performing all the duties to the public others from fire set by sparks from its locoimposed upon it by its charter, has been held motive engines, either independently of negli to be ultra vires, and therefore void,-as in gence on its part, or in case of such negliThomas v. West Jerscy R. Co. 101 U. S. 71, gence only. St. Louis & S. F. R. Co. v. Ma 25 L. ed. 950, and in Central Transp. Co. v. thews, 165 U. S. 1, 41 L. ed. 611, 17 Sup. Ct. Pullman's Palace Car Co. 139 U. S. 24, 35 Rep. 243; Atchison, T. & S. F. R. Co. v. MatL. ed. 55, 11 Sup. Ct. Rep. 478, and 171 U.thews, 174 U. S. 96. 43 L. ed. 909, 19 Sup. S. 138, 43 L. ed. 108, 18 Sup. Ct. Rep. 808. Questions of public policy as affecting the As was well said by the circuit court, in liability for acts done, or upon contracts the case at bar, in a passage quoted by this made and to be performed, within one of the court in St. Louis & S. F. R. Co. v. Mathews, states of the Union,-when not controlled by just cited: "The right to use the agencies the Constitution, laws, or treaties of the of fire and steam in the movement of railway United States, or by the principles of the trains in Iowa is derived from the legisla commercial or mercantile law or of general tion of the state; and it certainly cannot be jurisprudence, of national or universal ap- denied that it is for the state to determine plication,- -are governed by the law of the what safeguards must be used to prevent the state as expressed in its own Constitution escape of fire, and to define the extent of the and statutes, or declared by its highest court. liability for fires resulting from the operaElmendorf v. Taylor, 10 Wheat. 152, 159, 6 tion of trains by means of steam locomoL. ed. 289, 292; Bank of Augusta v. Earle, tives. This is a matter within state control. 13 Pet. 519, 594, 10 L. ed. 274, 310; Vidal v. The legislation of the state determines the Philadelphia, 2 How. 127, 197, 11 L. ed. 205 width of the right of way used by the com. 233; Bucher v. Cheshire R. Co. 125 U. S panies. The state may require the compa555, 581, 584, 31 L. ed. 795, 798, 799, 8 Sup nies to keep the right of way free from comCt. Rep. 974; Detroit v. Osborne, 135 U. S. bustible material. It may require the de492, 498, 499, 34 L. ed. 260, 262, 10 Sup. Ct. pot and other buildings used by the com. Rep. 1012; Union Nat. Bank v. Bank of pany to be of stone, brick, or other like maKansas City, 136 U. S. 223, 235, 34 L. ed. terial, when built in cities, or in close prox 341, 345, 10 Sup. Ct. Rep. 1013; Etheridge imity to other buildings. The state, by leg. v. Sperry, 139 U. S. 266, 276, 277, 35 L. ed. islation, may establish the extent of the lia 171, 176, 11 Sup. Ct. Rep. 565; Gardner vbility of railway companies for damages re Michigan C. R. Co. 150 U. S. 349, 357, 37 L. ed. 1107, 1109, 14 Sup. Ct. Rep. 140; Bamberger v. Schoolfield, 160 U. S. 149, 159, 40 L. ed. 374, 378, 16 Sup. Ct. Rep. 225; Missouri, K. & T. Trust Co. v. Krumseig, 172 U. S. 351, 43 L. ed. 474, 19 Sup. Ct. Rep. 179; Sioux City Terminal R. & Warehouse Co. v. Trust Co. of N. A. 173 U. S. 99, 43 L. ed.628, 19 Sup. Ct. Rep. 341.

The validity of the agreement now in con

sulting from fires caused in the operation of the roads. 62 Fed. Rep. 907." 165 U. S. 17, 41 L. ed. 617, 17 Sup. Ct. Rep. 243.

The statutes and decisions of the state of Iowa, so far as they have been brought to our notice, that throw any light upon the present case, are the following:

In Richmond v. Dubuque & 8. C. R. Co. (1868) 26 Iowa, 191, the railroad company leased a piece of ground at its eastern ter.