Opinion of the Court.

dollars, and that DuBarry and Green were trustees, under the provisions of said deed and of certain orders of the county court of Alexandria County, in the State of Virginia. There was also evidence given tending to show that the said trustees took possession of said road on December 6, 1872, and all of its property, and held, used, and operated the same up to and beyond the time of the said collision, and that, at the time of said collision, the said Alexandria and Fredericksburg Railway Company had in its possession no cars, engines, or rolling stock, and that the trustees in possession under said deed of trust, as aforesaid, did, in January, 1875, appoint George C. Wilkins superintendent of said Alexandria and Fredericksburg railway and property, and that said Wilkins had exclusive possession and management of the road.

On the part of the plaintiffs it was shown that the Alexandria and Fredericksburg Railway Company made a report to the board of public works of the State of Virginia for the year of 1885, sworn to by the president and general superintendent of the company, in which there is no reference to the alleged possession by trustees, but it does contain detailed statements of the property of the company, including cars and engines, and of the number of passengers and tons of freight carried, and of the various expenditures on account of repairs.

It was further shown that the engine that hauled the freight train that figured in the collision belonged to the Alexandria and Fredericksburg Railway Company.

The Alexandria and Fredericksburg Railway Company requested the court to charge the jury that if they should find that the property of the company was in the exclusive possession and control of the trustees, and that the company did not, by its servants, agents, or otherwise, exercise any authority or control over the road between St. Asaph's Junction and Alexandria, after the receiver of the Alexandria and Washington Railroad Company took possession of that line, the verdict must be for the Alexandria and Fredericksburg Railway Company.

The court instructed the jury as follows:

Opinion of the Court.

"The Alexandria and Fredericksburg Railway Company also pleads that it was not a common carrier on the road when the accident occurred, in addition to the plea of not guilty, and upon this trial it supports this plea by showing that its road, at the time of the accident and for some time before, had been in the possession of trustees, by virtue of the provisions of a deed of trust executed by the company to secure its indebtedness, the condition of which had been broken by the maturity and non-payment of the debt so secured.

"In order that the Alexandria and Fredericksburg Company be acquitted from responsibility for this reason, it should, in any event, appear that, in fact, the business of management and operation of the road was conducted by the trustees to the entire exclusion of the company, its officers, and board of directors, and that this was so notoriously so that the fact may well be presumed to be known to the public. Besides, it should appear that the trustees were not appointed by the procuration or assent of the railroad company, for, if so, the trustees would be as much the agents of the company as of the grantees in the trust deed. The Supreme Court of Appeals of the State of Virginia, in an action brought against the Alexandria and Fredericksburg Railway Company for personal injuries resulting from negligence on the road while in the possession of trustees by virtue of a deed of trust, under conditions precisely similar to those shown in this case, held that 'no provision is found in the charter of the defendant company, or the general railroad law of Virginia, which will authorize the company to transfer to trustees or to mortgagees, under the deed of trust given as a mere incumbrance and security, the right and legal capacity to step into the shoes of the company, and assume and exercise indefinitely the franchises, rights, and privileges of the company, so as to give the company exemption and immunity from responsibility for all injuries inflicted by the operation of the road by trustees.' I quote this language for convenience and accuracy, and adopt it, and give it to you as the law in this case. It follows that the Alexandria and

VOL. CLV-23

Syllabus.

Fredericksburg Company cannot be excused from liability because of any possession shown in trustees."

An examination of the trust deed discloses a provision that the trustees, in case of default for a period of ninety days, and on the request in writing of the holders of the bonds, might take possession of the railroad and appoint agents to conduct its affairs; and it was claimed that the court might presume that the possession of the trustees, relied on to defeat the suit against the company, was in pursuance of that provision.

However this may be, we think that there was evidence which justified the court in submitting the question of the exclusive possession by the trustees to the jury, and that the instructions given were not erroneous in any substantial particular. The observations already made respecting the similar claim on behalf of the receiver of the Alexandria and Washington Railroad Company are applicable here, but need not be repeated.

Judgment of the general term of the Supreme Court of the District of Columbia reversed, and case remanded to that court with directions to set aside the judgment of the special term, and to permit the plaintiffs to elect to become nonsuit as against the Pennsylvania Railroad Company, and take judgment on the verdict against the other defendants, and, if they do not so elect, then to set aside the verdict and order a new trial generally.

LAKE SUPERIOR SHIP CANAL, RAILWAY AND IRON COMPANY v. CUNNINGHAM.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN.

No. 49. Argued November 2, 5, 1894. -Decided December 10, 1894.

The grant of public lands to Michigan in the act of June 3, 1856, c. 44, 11 Stat. 21, to aid in the construction of “railroads from Little Bay de Noquet to Marquette, and thence to Ontonagon, and from the two last named places to the Wisconsin state line," was a grant in præsenti, which upon the filing of the map of definite location, November 30, 1857,

Syllabus.

operated to withdraw the lands from public domain open to settlement by individuals; and the provision in the act for forfeiture of the grant if the road should not be completed within ten years was a condition subsequent, which could only be enforced by the United States.

That act contemplated separate railroads from Ontonagon to the state line and from Marquette to the state line, and was so regarded and treated by the State of Michigan.

Prior to the act of March 2, 1889, c. 414, 25 Stat. 1008, no legislative or judicial proceeding was taken by the United States, looking to a forfeiture of the Ontonagon grant; no act or resolution was passed by the legislature of Michigan retransferring it to the United States; and the conveyance executed by the Governor of Michigan, August 14, 1870, assuming to formally release it to the United States, was beyond the scope of his powers and void.

As general terms in a subsequent Congressional grant are always held not to include lands embraced within the terms of a prior grant, and as by the filing of the map of definite location of the railroad, and the certification of the lands to the State, the lands granted by the act of June 3, 1856, had become identified and separated from the public domain before the passage of the act of March 3, 1865, c. 202, 13 Stat. 519, granting lands to Michigan to aid in the construction of a ship canal, the State acquired no title to such lands through the latter act, and whether they were or were not returned to the United States was not a question of fact, but one of law, depending upon the construction to be given to the resolution of the legislature of Michigan of February 21, 1867.

At the time of the passage of the act of March 2, 1889, c. 414, 25 Stat. 1008, forfeiting to the United States the title to the lands granted to Michigan by the act of June 3, 1856, neither the plaintiff nor the defendant had any title to the tract in controversy in this action, but, like other lands within the Ontonagon grant, it belonged to the State of Michigan, subject to forfeiture by the United States; and, construing that act, it is Held, (1) That § 1 grants nothing to and withdraws nothing from the parties; (2) That the provision in § 2 as to the rights of the Portage Lake Canal Company and the Ontonagon and Brule River Railroad Company means simply that neither forfeiture nor confirmation nor any other provision in the act shall be construed as a final settlement of all the claims of those companies or their grantees; (3) That the provision in § 2 as to prejudicing any right of forfeiture or recovery of the United States should not be construed as denying the confirmation granted by § 3;

(4) That the provision in § 2 touching the rights of persons claiming adversely to those companies or their assigns under the laws of the United States means that the confirmation to them shall not be taken as an attempt to invalidate any legal or equitable rights as against such companies;

(5) That the term " public land laws " in § 3 refers to any laws of Congress, special or general, by which public land was disposed of;

(6) That the phrase

Statement of the Case.

"where the consideration received therefor is still retained by the government" is satisfied whenever the conditions of the attempted conveyance have been fully complied with, and apply to a homestead claim as well as to a preëmption claim; (7) That the proviso as to “original cash purchasers" is not to be taken as implying that the confirmation only extends to cash purchasers, but as also making further limitations as to some of those in whose behalf the confirmation was proposed;

(8) That it was the evident intent of Congress that in all cases of conflict between a selection in aid of the canal grant and the claims of a settler, the confirmation should depend upon the state of things on the 1st of May, 1888;

(9) That the words "homestead claim," as used in this act, include cases in which the claimant was, on the 1st of May, 1888, in the actual occupation of the land with a view of making a homestead of it, whether he had or had not made a formal application at the local land office;

(10) That the defendant in error Cunningham in No. 49, who was on the 1st of May, 1888, in the occupation of the tract claimed by him, was, within the terms of the confirmatory act, a bona fide claimant of a homestead; but the defendant in error Finan in No. 50, not being in such occupation at that date, was not entitled to the benefit of the act.

THIS was an action commenced by the plaintiff in error, plaintiff below, in the Circuit Court of the United States for the Western District of Michigan, on July 17, 1888, to recover the possession of the southwest quarter of section 25, township 44 north, range 36 west. Upon the first trial a verdict was returned in favor of the plaintiff. In conformity with the opinion of Mr. Justice Jackson, then Circuit Judge, 44 Fed. Rep. 819, a new trial was granted, which, on July 26, 1890, resulted in a verdict under instructions of the court in favor of the defendant, upon which verdict judgment was rendered.

To reverse that judgment this writ of error was brought. The plaintiff claimed title by virtue of certain land grants made by Congress, to the State of Michigan, to aid in the construction of a canal, and a confirmation by an act of Congress of March 2, 1889. The defendant insisted that no title passed by the canal grants because the land had theretofore been granted by Congress to aid in the construction of a railroad; that he entered upon the land with a view of preemption, and that his right of preemption was confirmed by the same