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as a whole, including therein both forfeiture the United States." This means that the conand confirmation,-which is not to work any firmation to the companies shall not be taken prejudice. Obviously, the clause quoted as an attempt to invalidate any legal or does not exclude the idea of some confirma equitable rights of any one, as against such tion, but means simply that neither forfei companies. If anything had happened, ture nor confirmation, nor any other provi. through contract or otherwise, giving to the sion in the act, shall be construed as a final individual a legal or an equitable claim as settlement of all the claims, legal and equita against the companies, such legal or equitable, of the companies or their grantees. If, ble right was not to be affected by anything for instance, the canal company, accepting in this act. But that, so far from conflictthe confirmation provided by section 3, ing with the idea of a confirmation, rather should fail of getting all the lands selected assumes that there is one, and aims to deand certified to it, and so receiving the full termine its effect, rather than deny its existamount of the grant (as, from the conclusion ence. There is therefore nothing in any of we have reached in this particular case, it these provisions to overthrow the construcseems that it does), then its acceptance is tion given to the third section, or which connot to be taken as an estoppel against any flicts with the confirmation therein provided. subsequent claim to congress for the deficien We pass, therefore, finally to the question cy caused thereby. So if, between any of of fact in respect to the defendant's home the parties affected by this confirmation, stead claim. It appears that he entered upon there should be controversies in which, on the lands in March, 1888, but did not atthe part of one or the other, there were any tempt to make an entry in the land office legal or equitable claims not arising out of until May 25, 1888. While the term "homethis confirmatory legislation of congress, stead claim" is sometimes used to denote the they were not to be precluded from litigating mere formal application at the local land of. such claims in the courts. In other words, fice, obviously this is not the purport of the the confirmation is, in such a case, to be re term as used in this section, for it is defined garded as nothing but a confirmation, and by the succeeding words, "arising or asserted without further effect or significance.

by actual occupation of the land." This on The second matter which the act was not viously includes cases in which the party to prejudice was “any right of forfeiture, as is on the 1st of May, 1888, in the actual ochereby declared, or recovery of the United cupation of the land, with a view of making States in respect of any of the lands claimed a homestead of it under the laws of the by said companies.” The meaning of this United States. clause is not so clear. A reasonable con. But it is said by the counsel for the comstruction is that all the provisions in the act, pany that it was not a bona fide homestead including both the forfeiture and the special claim, because at the time the defendant enconfirmation named in section 3, are not to tered upon the land he understood that it was prejudice any right of recovery which the a part of a railroad grant. The testimony United States may have as against any lands of the defendant is all that there is bearing claimed by the companies. That is, if there upon the question of bona fides. And, while be any lands within the scope of the original it appears from his testimony that he underrailroad grant of 1856, to which any or either stood at the time of his entry that it was of these companies make any claims, and land embraced within a railroad land grant, which are not clearly protected by the con he also testifies that he expected that the firmation"mentioned in the third section, the grant would be removed, and that he could full rights of the government in respect to then enter the land, and that he went there such lands may be enforced, irrespective of for the purpose of making it a home. Now, such section. While the language is a little it may be true, as a general proposition, that obscure, it ought not to be construed as de a man cannot move upon land which he nying the confirmation which seems to be knows belongs to another, and establish a granted by the third section, and those bona fide claim by such wrongful entry, but words in that, which are reasonably clear in we do not think that that rule is applicable their meaning, should not be overthrown by to the case at bar. The sense in which language of doubtful import like this. The “bona fide" is used in this clause is indicated only other construction would exclude the by the provision in the one preceding as to companies named from any benefit of the cash purchasers. Their purchases were to confirmatory provisions. This construction be protected if made "without fraud and in would, of course, compel an affirmance of the belief that they were thereby obtaining this judgment, as showing that the plaintiff valid title from the United States." It does had no title to the land, and was therefore in not appear that he knew the exact condition no position to question the defendant's pos of the outstanding claims. If he did, he session,

knew that this railroad grant had been out. The third matter is that the act shall not standing 32 years, that the land was to be be construed "to the prejudice of the right of restored to the government it the road was any person claiming adversely to said com not completed within 10 years, and that 22 panies or their assigns, under the laws of years had passed since the time fixed by con.

gress for the completion of the road, and The judgment of the circuit court must there. nothing had been done. His expectation was

fore be reversed, and the case remanded for u (and, under the circumstances, not an unrea

new trial. able one) that congress would at some near time interfere to remove all this outstanding

(155 U. S. 386) claim. Under those circumstances, and in DONAHUE ». LAKE SUPERIOR SHIP expectation of such removal, he enters upon CANAL, RAILWAY & IRON CO. the land. Can it be said that this entry and

(December 10, 1894.) occupation was with a view of depriving

No. 51. anybody of title, or that it was, as against the company, a wrongful entry? If the PUBLIC LANDS-RAILROAD GRANT - SURRENDER

WHAT CONSTITUTES. construction contended for were accepted, it would exclude from the benefit of the

Act June 3, 1856, granted lands to Mich

igan to aid certain railroads. The state con. act any settler upon these lands who knew ferred part of the land on the Marquette R. that the land he entered upon was within Co., and another part on the Ontonagon R. Co., the railroad grant. But legislation respect

whose roads intersected. The C. & N. W. R.

Co., successor of such companies, released to ing public lands is to be construed favor

the state the grant to the Marquette R. Co., ably to the actual settler, and the construc and the governor, by authority of the legislation contended for by the canal company

ture, executed a release to the United States.

The C. & N. W. R. Co. also executed a release seems to us too narrow. If a party enter

to the state of the grant to the Ontonagon R. ing upon a tract, although he knew that

Co., and the governor, without authority of the it was within the limits of an old railroad legislature, released the same to the United grant, did so under the honest belief and ex States. Held, that the lands within the "place"

limits of the roads of such two companies, at pectation that that grant, if not technically

their intersection, were not wholly released to extinguished by lapse of time, had remained the United States, but the state still held an unso long unappropriated by any beneficiary

divided moiety of such lands. that congress would shortly resume it, and in

In Error to the Circuit Court of the United that belief determined to make for himself

States for the Western District of Michigan. a bome thereon, with a view of perfecting

Ejectment by the Lake Superior Ship Canal, his title under the land laws of the United

Railway & Iron Company against Michael States when the forfeiture should be finally Donahue, in which there was a judgment declared, it must be held, we think, that he

entered on the verdict of a jury, directed by is, within the terms of this confirmatory act,

the court, in favor of plaintiff. Defendant a bona fide claimant of a homestead. The

appeals. Reversed. ruling of the circuit court was correct, and

Don. M. Dickinson, for plaintiff in error. the judgment in favor of the defendant is

John F. Dillon and Dan H. Ball, for defend. affirmed.

ant in error.

(155 U. S. 385)

Mr. Justice BREWER delivered the opin. LAKE SUPERIOR SHIP CANAL, RAIL

ion of the court. WAY & IRON CO. V. FINAN.

The land in 'controversy in this case, as

that in controversy in the two prior cases, (December 10, 1894.)

is a tract which was certified to the state of No. 50.

Michigan on December 12, 1861, as part of Appeal from the Circuit Court of the United the railroad grant, and afterwards, in 1871, States for the Western District of Michigan. again certified to the state in part satisfacEjectment by the Lake Superior Ship Canal,

tion of the canal grant. Donahue, the plain. Railway & Iron Company against Hugh Finan, in which there was a judgment entered on the

tiff in error, entered upon the land in Febverdict of a jury, directed by the court, in fa ruary, 1883, and has ever since remained in vor of defendant. Plaintiff appeals. Reversed.

possession. He entered with the view of John F. Dillon and Dan H. Ball, for appel-pre-empting, and made his first application lant. Don M. Dickinson, for appellee.

under the pre-emption laws on April 11, 1883.

His application was rejected by the local Mr. Justice BREWER. This case differs from the preceding (Iron Co. v. Cunningham,

office, from which rejection he appealed to 15 Sup. Ct. 103), in that the action was com

the commissioner of the general land office, menced March 21, 1889, and that Finan, the and the appeal is still pending in the departdefendant, did not enter upon the tract in con

ment. His entry and occupation were such troversy until after the 1st of May, 1888. His entry and occupation gave him no rights to the

as, within the opinion in the Cunningham land, because it was embraced within the rail Case, 15 Sup. Ct. 103, made him a bona fide road grant of 1856. He took nothing under

claimant, and entitled to the benefit of the the confirmatory act of 1889, because he was not a bona fide claimant or in actual occupa

confirmation granted by the closing sentence tion on the 1st of May, 1889. The land was in section 3 of the act of March 2, 1889. selected and certified to the state for the ben The tract was not, however, within the efit of the canal company, and was within the scope of the confirmation to the company by

"clear" six-miles limits of the Ontonagon & the act of 1889. The title of the company was

State Line road, but was near the crossing of therefore perfect, as against him.

the Ontonagon' and the Marquette lines, and

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within six miles of each, and was part of It may be that the release of the Chicago the 41,619.25 acres certified on December & Northwestern Railway Company, at that 10, 1861, by the land office, in a separate list time the beneficial owner of both the Marto the state, which list was, as appears from quette and the Ontonagon grants, operated the statement of facts in the Cunningham | to relinquish to the state of Michigan the Case, included in the release made on Jan. title to all the lands within such grants, but uary 31, 1868, by the Chicago & Northwest the only release authorized by the legislature ern Railwa Company to the state, and that of the state of Michi was of the lands on May 1, 1868, by the governor of the state granted to aid in the construction of the road to the United States. On that ground it from Marquette to the Wisconsin state line. was held by the circuit court that the lands, This authorized no giving up of the grant at the time of the second certification to the in aid of the construction of the road from state, to wit, that in satisfaction of the canal Ontonagon to the state line, and as that held grant, were wholly released from the opera an undivided moiety of ine lands at the tion of the railroad grant, and were subject crossing, to that extent, at least, it still reto selection and certification for the benefit mained after all the releases. It may be a of the canal company, and that such selec- novel condition which resulted, in that it tion and certification operated to pass to it left the state and the United States joint a full title,-a title which could not be de owners, each holding the title to an undivid. feated by any subsequent entry by the de. ed moiety of this body of lands, and it may fendant for either homestead or pre-emp- be that further evidence may place the case tion. The case turns, therefore, on the effect in a cifferent attitude; but, on the record of the releases to the state and by it to the as it dow stands, it would seem that the United States.

plaintiff and the defendant were each the By the original act of June 3, 1836, grants owners of an undivided half of the land in of land were made in aid of the construction controversy. Inasmuch, therefore, as the of two roads,-one from Marquette to the circuit court erred in adjudging to the canal state line, and one from Ontonagon to the company the full title to the land, its judg. state line. These grants were bestowed by ment must be reversed, and the case remandthe state of Michigan, separately, on the ed for a new trial. Marquette and Ontonagon Companies. The rule is that where two lines of road are aided by land grants made by the same act, and

(155 U, S. 311) the lines of those roads cross or intersect, PEARCE V. STATE OF TEXAS et al. the lands within the "place" limits of both,

(December 10, 1894.) at the crossing or intersection, do not pass to

No. 596. either company, in preference to the other, no

EXTRADITION-INDICTMENT-CoysTiTUTIONALITYmatter which line may be first located, or road

FEDERAL QUESTION. built, but pass. in equal, undivided moieties,

The courts of a state from which a fugito each. St. Paul & S. C. R. Co. v. Winona tive from justice is demanded on estradition do & St. P. R. Co., 112 U. S. 720, 5 Sup. Ct. 334;

not deny to such person any rights secured to

him by the constitution and laws of the United Sioux City & St. P. R. Co. v. Chicago, M. States by refusing to pass on the constitution& St. P. Ry. Co., 117 U. S. 406, 6 Sup. Ct. ality of the statute of the demanding state un790. This rule was evidently in the mind

der which the indictment against such person

is sufficient. of congress when it passed the* confirmatory act of 1859, for in the last sentence of sec

In Error to the Court of Criminal Appeals of tion 4 there is a provision that a moiety for

the State of Texas. feited on account of the noncompletion of W. L. Martin, for defendants in error. one main or branch line should not inure to the benefit of the completed line. When, Mr. Chief Justice FULLER delivered the therefore, the roads from Marquette and On opinion of the court: tonagon, respectively, to the state line, were George A. Pearce was arrested in the state duly located, the lands within six miles of of Texas on an executive warrant issued by both, at the intersection, became appropriat the governor of that state, upon the requisi. ed, in equal, undivided moieties, to aid in the tion of the governor of the state of Alabama, construction of each. The fact of the con to be delivered up to the state of Alabama, solidation of the Marquette and the Ontona to answer two indictments against him in gon Companies with the Fond du Lac Com the city court of Mobile, Ala., each charging pany, and the further fact that the map of him with embezzlement and grand larceny; definite location was prepared and filed by and while in the custody of the agent of the the consolidated company, in no manner af- state of Alabama, to be transported to Mobile fect this rule of appropriation. The lands for trial upon said indictments, he sued out a were granted by the United States to the writ of habeas corpus before the judge of state for the accomplishment of specified the 420 district of the state of Texas, praying, purposes, and those purposes could not be for the reasons therein stated, to be disdefeated by the state, or by any corporations, charged. On the hearing of the petition, the beneficiaries under the state.

district judge refused to discharge Pearce,

and remanded him to the custody of the to show by proper evidence that the indict. agent. Pearce thereupon appealed to the ment in substance was not sutficient under court of criminal appeals of the state of the laws of the demanding state. Our posiTexas, the court of last resort in criminal tion upon this question is that if it reasonmatters, where the judgment below was af. ably appears upon the trial of the habeas firmed. 32 Tex. Cr. R. 301, 23 S. W. 15. corpus that the relator is charged by indict

The grounds on which the relator contended ment in the demanding state, whether the inthat he was entitled to be discharged were, dictment be sufficient or not under the law of as stated by the court of appeals, that the that state, the court trying the habeas corpus indictments were insufficient to authorize bis case will not discharge the relator because extradition, because it was not alleged there of substantial defects in the indictment under in that the offenses were committed in the the laws of the deinanding state. To require state of Alabama, and in violation of her this would entail upon the court an investilaws; that the indictments were wholly void, gation of the sufficiency of the indictment in in that no time or place was laid therein, the demanding state, when the true rule is and it did not appear where the offenses were that if it appears to the court that he is committed, nor that they were not long charged by an indictment with an offense, since barred. Relator further showed that he all other prerequisites being complied with, had been a citizen of Texas for more than the applicant should be extradited. We are three years, and that his whereabouts were not discussing the character of such proof; linown to interested parties in Alabama, this this must be made by a certified copy of the proof being made under the statute of limita indictment, etc." tions, presumably of Texas, as it did not ap It was not disputed that the indictments pear how long the offenses were committed were in substantial conformity with the stat. prior to the February term, 1889, of the Mo ute of Alabama in that behalf, and their bile city court, at which term the Indictments sufficiency as a matter of technical pleading were found, nor what was the statute of would not be inquired into on habeas corpus. limitations in Alabama, if any, for embezzle Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. ment and theft. The relator did not deny 1148. Nor was there any contention as to the that he was a fugitive from justice within the proper demand having been made by the execrule on that subject, or raise any issue utive authority of the state from whence the thereon. The record showed the requisition petitioner had departed, or in respect of the made by the governor of Alabama, copies of discharge of the duty imposed by the con. the indictments duly certified, and the warrant stitution and laws of the United States on of the governor of Texas; and, in effect, the the executive authority of the asylum state to relator relied for his discharge entirely upon cause the surrender. The question resolved the invalidity of the indictments.

itself, therefore, into one of the validity of The district judge certified that, on the the statute on the ground of its repugnancy* hearing below, he had examined the laws of to the constitution, and the court of appeals the state of Alabama, and found the indict. declined to decide in favor of its validity. ments sufficient thereunder, or “at least not And, if it could be said upon the record that void.”

any right under the constitution had been spe An opinion was filed in the court of ap cially set up and claimed by plaintiff in error, peals by Simkins, J., in which it was held at the proper time and in the proper way, that any indictment which, under the laws the state court did not decide against such of the demanding state, sufficiently charges right, for the denial of the right depended the crime, will sustain a requisition, even upon a decision in favor of the validity of though insuficient under the laws of the asy the statute. What the state court did was to lum state; that in this case there was no leave the question as to whether the statute question as to the nature of the crimes was in violation of the constitution of the charged, and that they were* offenses against United States, and the indictments insuffi. the laws of Alabama; that indictments dis cient accordingly, to the demanding state. Its pensing with the allegations of time and action in that regard simply remitted to the venue in conformity with the Code of Ala courts of Alabama the duty of protecting the bama had been sustained by judicial decision accused in the enjoyment of his constitutiona) in that state (Holes y. State, 24 Ala. 693; rights, and if any of those rights should be Thompson v. State, 25 Ala. 41), and were denied him, which is not to be presumed, he put necessarily fatally defective in every could then seek his remedy in this court. state of the Union, whatever its statutes or We cannot discover that the court of apforins of proceeding. The inajority of the peals, in declining to pass upon the question court did not concur in all the propositions raised, in advance of the courts of Alabama, stated in the opinion, but expressed their denied to plaintiff in error any right secured views as follows: “W desire to modify to him by the constitution and laws of the certain propositions stated in the opinion of United States, or that the court, in announJudge Simkins. It is intimated, if not stated cing that conclusion, erroneously disposed of directly, that the relator would have the right a federal question. Judgment affirmed.

(155 U. S. 286)

and elevated over the drive wheel by an ele DEERING v. WINONA HARVESTER vator and deliverer to the binders or an au. WORKS.

tomatic binder, it is desirable that there (December 3, 1894.)

shall be no stoppage in the flow of the grain No. 54.

in its passage to its place of delivery; that PATENTS HARVESTER ELEVATOR EXTENT OF

the butts of the grain shall be carried up CLAIM-Prior STATE OF THE ART-AN parallel, or nearly so, with the heads of the TICIPATION-INFRINGEMENT.

grain, so as to deliver the grain in proper 1. Claim 1 of the Olin patent, No. 223,812, shape for binding purposes; and that the for the combination with a harvester elevator

grain shall be delivered to the receiving table of a swinging elevator pivoted at its lower end, and suitable devices for shifting its upper end,

so that it can be bound at or near the middle. forming a means for elevating the butts of the “The object of this invention is to provide grain and delivering grain of different lengths

devices for attaining all of these results; and at the same point, must be construed, in view of prior similar devices, of which it was only

it consists in interposing a roller between the an improvement, and of the explicit language

lower end of the elevator and the inner end of the specification and claims, as limited to of the grain carrier, to facilitate elevating such auxiliary device located on the grain or as

the grain and prevent clogging at that point, cending side of the main elevator, and is not infringed by a similar device located on the and prevent the grain from being carried stubble or descending side of the main elevator, down or falling through between the elevator pivoted at its upper end and movable at its and carrier; in providing a belt or chain at lower end. 2. Anticipation of a patented device must

the grain side of the machine for elevating be proved by evidence so cogent as to leave no the butts of the grain, supported on a swingreasonable doubt in the mind of the court that ing bar, so that it can be adjusted, according the transaction occurred substantially as stated.

to the length of grain being elevated, to Oral testimony, unsupported by patents or exhibits, is open to grave suspicion.

deliver the grain so that it can be bound at 3. The combination claimed in the Stew the middle; in devices for operating and adard patent, No. 272,598, with a swinging butt justing the elevator for the butts; in the peadjuster in a grain binder of a board pivoted to the end of such movable butt adjuster to

culiar construction of the cover; in arranging bear against the butts of the sheaf after it pass

and operating the belt for the butts so that it es the butt adjuster proper, and while it is be

prevents any clogging by short grain at the ing acted upon by the binding mechanism, was

heel of the sickle; in arranging the device not anticipated by the butt adjuster made and used by Heller in 1878. 40 Fed. 236, reversed.

for elevating the butts so that it will bear 4. Claim 20 of said patent, for the com against the butts of the grain, and crowd or bination, in a grain binder, of moving butt-ad

move the grain back on the elevator toward justing mechanism and the board described, the patentee being the first inventor of such a

the center, for the purpose of straightening pivoted extension, is not invalid because the the grain in its passage up the elevator, and means by which the board is held and control delivering it so that it can be clasped or led are not stated in the claim, even though ad

bound near the middle, to facilitate the ease ditional elements are necessary to render the device operative. Nor does it necessarily fol

of binding; and in the several parts and low from such omission that the precise ele combination of parts hereinafter described as ments described as rendering the device opera new." Here follows at great length a de tive, and included in the combination of claim 21, must be read into the claim.

scription of the device claimed to be novel. 5. Said claim 20 is infringed by the use of The specification concludes as follows: a board practically identical in construction “The butts of grain are heavier than the and operation with that of the patent, although heads, and consequently lag behind, unless the method of adjusting it is not the same as that of the patent, nor a mechanical equivalent

some means are provided to make them move thereof; but, by reason of the different method faster than the heads. In order to elevate of adjustment, such device does not infringe the butts even with the heads, the belt or elclaim 21.

evator, Q, is so arranged that the teeth, b, Appeal from the Circuit Court of the Unit. will engage with the butts of the grain on ed States for the District of Minnesota.

the roller, I, and carry them up while the This was a bill in equity for the infringe heads are being carried up by the elevator ment of letters patent No. 223,812, issued belts, M. The lower pulley, c, is to be so arJanuary 27, 1880, to William F. Olin, for an ranged that it will permit the teeth, b, on the improvement in barvesters, and patent No. elevator, Q, to clear the end of the roller and 272,598, issued February 20, 1883, to John F. engage the butts, and this pulley, c, is locatSteward, for an improvement in grain bind. ed as close to the main frame as is possible ers. The original bill was founded upon five and permit the operation of the butt elevadifferent patents, but appellant acquiesced in tor, which location of the pulley brings the the decree of the circuit court dismissing his butt elevator in position to enable it to catch bill as to all but the two patents above any short grain, which short grain is liable named.

to fall down and be caught by the heel of In the patent to Olin, for an improvement the sickle and clog the sickle. By locating in harvesting machines, the patentee stated the lower pulley, c, of the belt, Q, at the in his specification as follows:

proper distance above the main frame, A, the “In that class of harvesting machines where teeth, b, on the elevator will come in contact the grain is received upon a carrier platform with such sbort grain and force it forward



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