When writ will lie-Requirement of giving appeal bond as ground for issuance
of writ of mandamus.
Although a writ of prohibition will lie to an inferior court acting manifestly
beyond its jurisdiction, the writ will issue only where there is no other
remedy; and even though the judgment may be void, as that fact does
not prevent its reversal on appeal, mandamus cannot be resorted to
where the statute gives an appeal. The requirement of giving a bond
on appeal is an ordinary incident of litigation and does not obviate
the necessity of the appeal and justify the issuing of a writ of manda-
Alexander v. Crollott, 580.
PROPERTY RIGHTS.
See CONSTITUTIONAL LAW;
RAILROADS, 3.
PUBLIC GRANTS.
See TAXATION, 9.
PUBLIC HEALTH.
See CONSTITUTIONAL LAW, 20;
MUNICIPAL CORPORATIONS;
STATES, 3, 6, 7, 9.
1. Controlling effect of official surveys—Rights of patentees under conflicting
patents.
Two official surveys of a tract of land bordering on navigable, waters were,
with an interval of thirty years, duly made, approved and filed in the
Land Department at Washington. By the earlier survey a fractional
section was divided into two lots, by the later into seven. These divi-
sions conflicted. After the later survey two patents were issued, one
using the description in the first and conveying the entire fractional
section, and the other following the second survey and conveying only
part of the section. As to a portion of the ground these patents con-
flicted. In an action at law in the state court the second patent pre-
vailed as to the tract in conflict. Held that, in the absence of findings
of fact (there being evidence tending to show that the first patentee
took with full knowledge of the two surveys, the later one having been
made partly at least at his request, and it also appearing that by the
decision he received the full number of acres to which he was by the
earlier survey entitled and for which he paid), the judgment in favor
of the second patentee for the part in conflict ought not to be disturbed.
Gleason v. White, 54.
2. Effect of patent to fictitious person on rights of subsequent bona fide
purchaser.
A patent to a fictitious person is in legal effect no more than a declaration
that the Government thereby conveys the property to no one, and in
such a case the doctrine that a subsequent bona fide purchaser is pro-
tected does not apply. Hyde v. Shine, 62.
3. Rights acquired by mere settlement upon and making improvements on
public lands.
Appellant without authority settled on a tract of land on Afognak Island,
Alaska, prior to 1901, and erected a cannery. After the act of March 3,
1891, 26 Stat. 1100, it applied for a survey of the land occupied by it
and deposited the money therefor. The survey was made, approved
and forwarded to the Commissioner of the General Land Office. On
December 24, 1892, the President, under provisions of the said act of
March 3, 1891, by proclamation, declared the whole island reserved
for fish culture. The survey was rejected on that and other grounds
and appellant was ordered to leave the island, which it did. There-
upon it sued in the Court of Claims for value of its improvements and
for loss of business. The claim was disallowed except for cost of survey.
In affirming the judgment held, that the mere settlement upon public
lands and making improvements thereon without taking some steps
required by law to initiate the settler', right thereto, is wholly in-
operative as against the United States. This rule is not affected as
to lands in Alaska by any provisions of the act of May 17, 1884, 23
Stat. 24, providing a civil government for Alaska. Although the
occupation and cultivation of public lands with a view to preëmption
confer a preference over others in the purchase of such lands by the
bona fide settler which will enable him to protect his possession against
other individuals, it does not confer any vested rights as against the
United States. Russian-American Packing Co. v. United States, 570.
4. Rights acquired by purchaser under preëmption laws by mere deposit for
surrey and before payment of purchase price.
Under the preemption laws a purchaser availing of the provisions of the
act of March 3, 1891, to purchase land in Alaska acquires no vested
rights by the mere deposit for the survey or until the purchase price
is paid to, and receipt given therefor by, the proper land officer, and
until this is done Congress may withdraw the land from entry and sale
although inchoate rights of settlers may be defeated. Ib.
5. Effect of reservation of land for fish culture on rights of mere trespasser
making improvements prior thereto.
The provisions of 14 of the act of March 3, 1891, authorized the reserva-
tion of the land for fish culture, and the exercise of this reserved power
terminated all the rights of one who as a mere trespasser had settled
thereon and made improvements prior to the passage of the ect.
6. Right to complete entry on death of entryman.
Under §§ 2291, 2292, Rev. Stat., the widow of the entryman is first en
titled to complete the entry and obtain a patent, and a state law is
not competent to change this provision and give the children of the
entryman an interest paramount to that of the widow. McCune v.
Essig, 382.
7. Indemnity lands; rights of Northern Pacific Railroad; disposition of, prior
to approval of selections made by railroad; withdrawal from sale of such
lands.
No rights to lands within indemnity limits will attach in favor of the rail-
road company until after selections made by it with the approval of
the Secretary of the Interior. Up to the time such approval is given,
lands within indemnity limits, although embraced by the company's
list of selections, are subject to be disposed of by the United States
or to be settled upon and occupied under the preëmption and home-
stead laws of the United States. The Secretary of the Interior has no
authority to withdraw from sale or settlement lands within the in-
demnity limits which have not been previously selected, with his
approval, to supply deficiencies within the place limits of the com-
pany's road. Sjoli v. Dreschel, 564.
8. Segregation of lands from public domain.
The Northern Pacific Railroad Company could not acquire a vested in-
terest in particular lands, within or without place limits, merely by
filing a map of general route and having the same approved by the
Secretary of the Interior, although upon the definite location of its
line of road and the filing and acceptance of a map thereof in the office
of the Commissioner of the General Land Office, the lands within
primary or place limits, not theretofore reserved, sold, granted or
otherwise disposed of and free from preëmption or other claims or
rights, become segregated from the public domain, and no rights in
such place lands will attach in favor of any settler or occupant, after
definite location. Ib.
9. Title acquired under patent to homesteader-Estoppel of grantor to repudiate
contract under which conveyance is made.
A homesteader, after obtaining his patent, conveyed to a lumber company
all the standing timber on the land and other rights therein pursuant
to a contract made prior to the issuing of the patent; subsequently
he conveyed all his interest in the land to one who thereupon claimed
the timber on the ground that the prior conveyance was void as violative
of the land laws and land policy of the United States. Held, that
when the patent issues to a homesteader the full legal title passes to
the patentee and he may do with the land that which he sees fit. An
executed contract, voluntarily executed, without fraud or duress, is
binding and cannot be repudiated by the party who executed it, and
one whose interest in land is acquired subsequently to a conveyance
thereof by the owner has no higher right to question the conveyance
than the grantor had. Although the grantee of the timber might not
have been able to enforce the contract because void as made in viola-
tion of the land laws of the United States, the conveyance having been
voluntarily made after the issuing of the patent, could not be attacked
on that ground by the grantor or his subsequent grantee. Whether
the Government itself could challenge the conveyance not decided.
Hartman v. Butterfield Lumber Co., 335.
10. Validity of agreement by preëmptor under § 2262, Rev. Stat.
A preemptor made an agreement with a party advancing money to pay
one-fourth of the expenses of making final proof to repay such party
a certain portion of the proceeds of sale provided that after obtaining
title he could find a purchaser and sell the land at its proper value.
Held, that there was no mortgage, deed of trust, or agreement for specific
lien, but that the agreement was only a promise to pay in case of sale
and could not be enforced against the land, and that it therefore was
not void under § 2262, Rev. Stat. Hafemann v. Gross, 342.
See REMOVAL OF CAUSES, 2.
PUBLIC WORKS.
See INJUNCTION.
1. Right of use in common of bridge over navigable river under Federal grant
of permission to construct.
In construing an act of Congress granting permission to construct a bridge
across a navigable river, the general policy of the Government to pro-
vide for the use of such a bridge, up to its reasonable capacity, by all
connecting railroads on reasonable compensation to the owning com-
pany will be considered and accordingly so held in regard to the use
by the Mason City Co. of the bridge across the Missouri River at Omaha,
constructed under the act of 1871, 16 Stat. 430, and owned by the
Union Pacific Railway. Union Pacific Co. v. Mason City Co., 160.
2. Rights acquired by purchaser at judicial foreclosure sale of railroad char-
tered by Congress.
In a great public enterprise such as the building of the Union Pacific Rail-
road under a Congressional charter reserving the right to alter, amend
or repeal, public interests, and not simply private purposes are to be
regarded, and the purchaser at judicial foreclosure sale takes the
property subject to the proper regulations and use established by
Congress, notwithstanding the mortgage foreclosed may have ante-
dated the legislation. Ib.
3. Property rights of Power to make reasonable rules and regulations for
use of property-Validity of grant of special privilege to certain hack-
men to exclusion of others.
Although its functions are public, a railroad company holds the legal title
to the property employed in the discharge of its duties, and while it
must under all circumstances do everything reasonably necessary for
the accommodation of passengers and shippers, it may use its property
to the best advantage of the public and itself, and for that end may
make reasonable rules and regulations for the use of its property con-
sistent with the purposes for which it is created and not inconsistent
with legally established regulations. When not unnecessary, un-
reasonable or arbitrary a railroad may make arrangements with, in-
cluding the granting of special privileges to, a single concern to supply
passengers arriving at its terminals with hacks and cabs, and it is not
bound, at least, in the absence of valid state legislation requiring it to
do so, to accord similar privileges to other persons, even though they
be licensed hackmen. Such an exclusive arrangement is not a mo-
nopoly in the odious sense of the word, nor does it involve an improper
use by a railroad company of its property. Donovan v. Pennsylvania
Company, 279.
See CONSTITUTIONAL LAW, 7;
STREETS AND SIDEWALKS, 1, 2;
TITLE.
See CONSTITUTIONAL LAW, 2;
LOCAL LAW (FLORIDA).
1. Diversity of citizenship on which right of removal can be exercised-Right
of removal where one of defendants is citizen of same State as plaintiff.
A citizen of Alabama brought suit in an Alabama state court against a
citizen of Maryland and a citizen of Alabama, where upon the Circuit
Court for the Northern District of Alabama ordered the removal of the
case on the petition of the citizen of Maryland alleging prejudice or
local influence. A motion to remand was denied, and the case went to
trial and judgment. That judgment was affirmed by the Circuit Court.
of Appeals and a writ of error from this court was thereupon prosecuted.
Held, that as the jurisdiction of the Circuit Court as exercised was de-
pendent entirely on diversity of citizenship, the judgment of the Circuit
Court of Appeals was final and the writ of error could not be main-
tained. But this court having granted the writ of certiorari in order
to pass upon the question of the jurisdiction of the Circuit Court, held,
(a) That the clause of the applicable statute treating of removals because
of prejudice or local influence does not furnish a separate and inde-
pendent ground of Federal jurisdiction and describes only a special
case comprised in the preceding clauses.
(b) That those suits only can be removed of which the Circuit Courts are
given original jurisdiction, and that the right of removal because of
diversity of citizenship can only be exercised by a defendant who is
a citizen, or by defendants who are citizens, of a State other than that
in which the suit is pending.
(c) That as in the present case suit was brought in plaintiff's State against
a citizen of the same State and a citizen of another State, it could not
have been originally brought in the Circuit Court and the removal was
improvidently granted.
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