COXE, Circuit Judge. The important facts are stated in the opinion of the district judge.

The tug Winnie was engaged to tow the libelant's canal boat Fermoil and a larger boat, the barge Gildersleeve, from the Atlantic Basin to a stake-boat off Liberty Island in New York harbor. The Fermoil was made fast to the port side of the tug and the Gildersleeve to the starboard side, the bows of both vessels extending about 45 feet beyond the bow of the tug. The tide was ebb and a choppy sea was running. When the canal boat reached her destination it was found that two planks on her starboard side were broken. The main fault imputed to the tug is that the tow was improperly made up, the bows of the two boats being drawn together so that they were not more than five or six feet apart, as illustrated by the following diagram:

This theory is supported by one witness only, the master of the Fermoil.

The claimant insists, on the contrary, that the tow was made up in the usual way, with the boats securely lashed to the tug and parallel to each other, their bows being 18 or 20 feet apart. The claimant's contention is sustained by the master, pilot, fireman and deck hand of the tug and by the exceedingly persuasive presumption that no tugman, with even a superficial knowledge of the requirements of the service, would make up his tow in a manner so unprecedented that no plausible motive or reason can be assigned therefor. Not only would such an arrangement augment the hazard but it would render the service more difficult, requiring increased power to propel such a clumsy flotilla through the water.

The district judge was clearly of the opinion that the weight of testimony was with the claimant on this issue, but he found for the libelant upon the theory that the damage could be accounted for in no other

way.

He says:

"The preponderance of the testimony, as well as the probabilities in view of the additional strain put upon the tug, are with the claimant, but unless something of the kind contended for by the libelant was done, I see no way of accounting for the damage."

We are unable to give our assent to this reasoning. The burden was on the libelant to prove fault on the part of the tug; in this he failed. The testimony preponderates overwhelmingly in favor of the claimant to the effect that the tow was made up in the usual way. This being so we cannot escape the conclusion that liability cannot

be predicated of a finding that the tow was made up in an unusual way. The libelant alleged negligence and failed to prove it. It was then the duty of the court to dismiss the libel.

It is not at all unlikely that the damage was caused by the swells of passing ferry boats, but the court is not called upon to enter the realms of conjecture in an attempt to ascertain how the accident was caused. It is enough for the present case that the tug did not cause it. There was nothing in the condition of the wind or water to make towing unusually hazardous. The master, according to the great preponderance of proof, exercised the reasonable care, caution and maritime skill required. The tug was not an insurer, and cannot be held liable merely because the Fermoil received an injury while in her custody.

The case is easily distinguishable from the Gennessee, 138 Fed. 549, 70 C. C. A. 673, where the make up of the tow was such as to invite disaster while the flotilla was lying to during a storm and the tug made no effort to mitigate the risks due to an unusually perilous situation.

The decree is reversed with costs, and the cause is remanded to the District Court with instructions to dismiss the libel.

(149 Fed. 727.)

BEE et al. v. BARNES.

(Circuit Court of Appeals, Fourth Circuit. November 19, 1906.)

No. 630.

TAXATION-SALE OF LAND-SEPARATE INTERESTS-TAX TITLE-VALIDITY.

Where each of two tracts of land was assessed for taxation at its true value as the property of the owner of the fee, and she paid the full amount of the taxes due thereon, notwithstanding an outstanding one-sixteenth interest in any oil that might be produced from the land, a sale of such interest for nonpayment of taxes assessed thereon was void.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 1267.]

Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg.

For opinion below, see 138 Fed. 476.

This was a suit instituted in the Northern district of West Virginia, the object of which is to cancel a tax deed executed on the 19th of January, 1903, by W. R. Merservie, clerk of the county court of Ritchie county of that state, to B. W. Bee for one-sixteenth interest in gas and oil and mineral on a tract of land of 692 acres and also another tract of land of 2% acres, making 72 acres in all. The court below has stated the facts upon which this controversy is based in a clear and succinct manner as follows:

"John K. Kelley and Clara V. Kelley, on March 29, 1898, by deed which was admitted to record April 2, 1898, conveyed to plaintiff, Barnes, a citizen of Ohio, 'one-sixteenth part of all oil and gas and other mineral substances in and under' two parcels of 691⁄2 and 2% acres of land, situate in Ritchie county, this state, fully described in the deed by metes and bounds, for the consideration expressed of $2,000 cash. By deed of September 21, 1898, recorded September 24, 1898, Barnes conveyed a half of this, or one thirty-second interest in all, to Mallory Bros.; but they subsequently, by deed dated March 29, 1903, reconveyed back this interest to Barnes. The surface and remaining fifteen-sixteenths undivided interest of the 'oil, gas, and other mineral substances' remained vested in Mrs. Kelley. On the land books of Ritchie 79 C.C.A.-28

county, Mrs. Kelley, for the year 1898, was assessed with these two tracts separately, as 69% acres and 21⁄2 acres, in fee, as situate on ‘wts. of Bonds Creek,' N. E. 9 miles from court house, valued each at $6.50 per acre, and a total valuation of $425, for the 692 acres, instead of $451.75, the true total at that rate, and for the 2% acre tract of $15, instead of $16.25, the true valuation at that rate. She was assessed for state purposes on the 692 acres at the rate of 25 cents on the $100, the sum of $1.13, the full amount due on the true valuation, 64 cents more than due on the valuation given; 45 cents for state school purposes, at a rate of 10 cents, the correct amount on the true valuation, 21⁄2 cents too much on the valuation given; $1.81 for county purposes, at a rate of 40 cents, the correct amount on the true valuation, 11 cents too much on the valuation given; $2.26 for road purposes and teachers' fund, respectively, each at the rate of 50 cents, the right amount on the true valuation, 12% cents too much on each for the valuation given; and $1.36 for building fund, at a rate of 30 cents, the correct amount on the true valuation, 82 cents too much on the valuation given. The 2-acre tract also shows that, while the valuation was fixed at $15, instead of $16.25, the taxes were assessed upon the true valuation, and not the valuation given. These tracts had been acquired by Mrs. Kelley by different deeds from different parties. In pencil on the assessment book just after Mrs. Kelley's name is written, '1-16 oil reserve to G. W. Barnes'; but the plaintiff, although his deed bore date two days before April 1st, the assessment date fixed by law, was not assessed in any manner for that year on account of his one-sixteenth undivided interest in the ‘oil, gas, and other mineral substances in and under' said two parcels of land.

"For the year 1899 Mrs. Kelley is assessed with these same two tracts separately, as having title in fee, and the same location, bearing, and distance from the courthouse is given, as also the same valuation of $6.50 per acre each, and the same erroneous total valuations of $425 and $15, respectively. This year, however, she was not assessed at the given rates upon the true total valuation, as was the case in the preceding year, but upon the false total valuations given for both years. In this last year following her name, in parenthesis, are the words, 'less one-sixteenth oil, &c.' For this year 1899, when by the records Mrs. Kelley was shown to be vested with fee-simple title in the surface of and in fifteen-sixteenths undivided interest in the ‘oil, gas, and other mineral substances in and under' these two tracts, an one thirty-second of the latter, undivided, was in plaintiff, Barnes, and the remaining one thirty-second thereof was in Mallory Bros., the said Mallory Bros. were assessed with nothing, so far as shown, because of their interest; but plaintiff, Barnes, was assessed with 'one-sixteenth oil &c., reserve' in 72 acres, claimed now to be the 691⁄2 and 2 acre tracts consolidated, at the rate of 50 cents per acre, or a total valuation of $36, upon which taxes amounting to 78 cents in all, according to the fixed rates, were charged. These taxes were not paid by Barnes, by reason of which this interest was returned delinquent and sold by the sheriff, January 13, 1902, and purchased by defendant Bee, who paid a total for taxes and expenses of $2.35, and on the 16th day of January, 1903, had a surveyor's report made, and on January 19, 1903, received from the clerk of the county court a deed therefor, which surveyor's report and deed was on said last day admitted to record. It is to be noted that neither the report nor deed bound the 72 acres as a single tract, but simply copy the metes and bounds of the 69% and 2% acres, respectively, apparently from the deed of Kelley and wife to Barnes, to which both refer. "Meanwhile, on the 20th day of October, 1902, Kelley and wife and Barnes made a lease, in which Mallory Bros. did not join, to Upham & Rolston, whereby they granted the lessees all the oil and gas in and under these lands, described as 70 acres, and described generally by reference to the abutting owners, for the period of two years, upon usual terms, for the payment of one-eighth royalties and other conditions not necessary to set forth. This lease was assigned by the lessees to Sarber Bros. & Co., and on January 14, 1903, the lease and assignment were together admitted to record. A valuable 200-barrel oil well resulted, and this one-sixteenth undivided interest became of value estimated at from $5,000 to $6,000. Defendant Bee insisted upon his being the owner of the interest under his tax deed, refusing to

surrender his claim; hence this suit, brought to set aside said tax deed as a cloud upon his title, and the appointment of a receiver herein, to whom has been paid over the proceeds arising from the sale of oil due to this interest."

Thos. P. Jacobs and Geo. W. Johnson, for appellants.

Mason G. Ambler (B. M. Ambler and C. D. Merrick, on briefs), for appellee.

Before PRITCHARD, Circuit Judge, and PURNELL and KELLER, District Judges.

PRITCHARD, Circuit Judge (after stating the facts). It appears from the record that the two tracts of land of 692 and 22 acres were assessed in 1898 as the property of Mrs. Kelley at $535 and $15, respectively, and these same tracts were assessed to her in 1899 at the same valuation, and she paid all of the taxes in full for the year 1899. The tax deed in question is based on an assessment for the year 1899 against Barnes; the defendant claiming title under this deed, which was executed to him by the clerk of the county court by virtue of a tax sale on account of the nonpayment by Barnes of the taxes due for the year 1899 on his undivided interest, of one-sixteenth of oil, etc., in the two tracts of land in question.

We have read and carefully considered the opinion of the court below, and fully concur in the conclusions reached therein. Inasmuch as each of the tracts of land was assessed as its true valuation for taxable purposes for the years of 1898 and 1899, as the property of Mrs. Kelley, and the full amount of the taxes due thereon by virtue of such assessment being paid by her, we are of opinion that the sale of the premises described for the nonpayment of taxes by Barnes was unauthorized, and that the deed made in pursuance of such sale is void. For the reasons stated, the decree of the Circuit Court is therefore affirmed

(149 Fed. 729.)

THE MARS.

(Circuit Court of Appeals, Third Circuit. January 16, 1907.)

1. SEAMEN-PERSONAL INJURIES-LIABILITY OF VESSEL.

Where libelant, a fireman on a tug, was scalded while attempting to tighten the packing on the valve of an ash hoist, resulting from his turning a screw the wrong way and the machinery was not materially defective, the tug was not liable for his injuries.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Seamen, §§ 189. 186; vol. 34, Master and Servant, § 758.]

2. SAME-MEDICAL ATTENDANCE.

Where a fireman on a tug was injured in the course of his employment, the fact that the tug was engaged in comparatively short coast-wise trips did not relieve her from the usual obligation of a vessel to her crew to furnish care and maintenance to effect a cure.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Seamen, §§ 39, 187.] 3. SAME.

The obligation of a vessel to furnish medical attendance, etc., to a seaman injured in her service does not end with the termination of the voyage, where there was not sufficient time or facilities for the vessel to have then performed its duty.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Seamen, §§ 43, 187.]

4. SAME-FORFEITURE OF Right.

A seaman injured in the course of his employment by his own negligence does not thereby forfeit his right to cure and maintenance at the expense of the vessel, where the injury was not caused by his gross negligence or willful neglect of orders, etc.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Seamen, § 187.] Appeal from the District Court of the United States for the Eastern District of Pennsylvania.

For opinions below, see 138 Fed. 941; 145 Fed. 446.

John F. Lewis, for appellant.

Howard M. Long, for appellee.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

BUFFINGTON, Circuit Judge. On March 29, 1904, the tug Mars, being at Philadelphia and contemplating a towing trip to New England ports and return, shipped Manides, the libelant, as a fireman. He went to work on the 30th. About midnight of that day, while the tug and her tow were lying at Reedy Island in the Delaware awaiting the tide, Manides, in trying to turn a nut to tighten the packing on the valve of an ash hoist, was badly scalded. He was placed in a hospital at Philadelphia, where he remained a considerable time, and was discharged before a cure was effected. He filed a libel against the Mars for damages for his personal injuries. The court held he was not entitled to recover, saying:

"There is considerable evidence offered for the purpose of showing that the machinery was generally out of order, but I am not convinced that this was the case. It was the ordinary experience with machinery that requires constant attention in order that it may be kept up to the standard. It was not defective or out of repair to an extent that the tug should be liable for any injuries resulting therefrom, and for this reason we do not think the respondent is liable to the libelant in damages for the injury. There was no failure of ordinary care on the part of the owners of the tug to furnish a safe place for the libelant to do his work, and the machinery about which he was working and the implements used in the performance of his work were safe and in good condition, save and except the ordinary current repairs necessary to keep them in such condition. The injury to the libelant was the result of an accident while performing certain work with which he was acquainted, and which should have been performed in a careful manner to avoid the very injury he received. He is therefore not entitled to recover damages against the respondent."

Under a prayer for general relief, however, the court decreed the tug should pay him $291 for expenses for maintenance and cure; $50 being for future medical attendance. From the decree for payment thereof the tug took this appeal.

The evidence bearing on this branch of the case is not printed. In its absence, and in view of the fact that the court only allowed $291 of $1,593.68 claimed, the presumption is that the moderate amount decreed was justified by the proofs, and that the sum of $50 allowed for future treatment was to finish a course of treatment interrupted by his discharge from the hospital. The only question, therefore, for us to consider is whether Manides was entitled under his employment and the finding of the court noted above to any allowance whatever for cure and maintenance. The fact that the tug was engaged ir