In Error to the Circuit Court of the United States for the District of Montana.

F. M. Dudley, Cullen & Toole, and Joseph D. Redding, for plaintiff in error.

Toole & Wallace, for defendant in error.

Before MCKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

GILBERT, Circuit Judge.

The plaintiff in error brought an action of ejectment in the court below against the defendant in error for the recovery of the possession of the N. W. of section 21, township 13 N., range 18 W., P. M., Montana. Judgment was rendered for the defendant upon the pleadings, and the sole question presented upon the writ of error is whether or not such judgment was erroneous. It is alleged in the complaint that the plaintiff is a corporation created under the act of congress approved July 2, 1864, with authority to build a railroad from Lake Superior to Puget Sound, and that it has built such railroad, and earned the land grant which was provided for in section 3 of said act; that the map of the general route of said railroad through the territory of Montana was filed on the 21st day of February, 1872; that the map of definite route through said territory was filed on the 6th day of July, 1882; that the land in controversy lies in one of the sections granted by the act, and is within 40 miles of the line of general route and of the line of definite route; and that the land is agricultural, and not mineral. All these averments are admitted in the answer. The complaint further alleges that on the day of location of the general route of 1872, and on the day of the definite location in 1882, the land in controversy was public land of the United States, to which it had full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights. The answer denies this allegation, and states that in January, 1864, one Higgins entered into the posses sion of the land, which was then unappropriated; that he erected improvements, and inclosed a portion thereof with a fence; that thereafter he continued to occupy and possess the same, until he sold his rights to others, and, through mesne conveyances, to the defendant, who, on the 6th day of January, 1881, became the owner of Higgins' claim to the land; that the land has been occupied continuously from July 1, 1862, to the time of the commencement of this action, by persons who were entitled to enter the same under the public land laws of the United States. These allegations of the answer are denied in the reply. The defendant, in his answer, proceeded further to allege the facts upon which judgment was granted in his favor in the court below, which, in substance, are as follows: That some time after January 6, 1881, the date whereof is not stated, but elsewhere appears to be May 1, 1889, the defendant applied to the United States land office, at Helena, Mont., to file his pre-emption on said land; that the plaintiff appeared and contested said filing; that, after a hearing and full proof, the register and v.72F.no.6-47

receiver decided that the defendant was entitled to enter said land under the laws of the United States, and that the plaintiff had no right, title, or interest therein, said land being reserved from the land grant to the railroad company; that from this decision in the land office at Helena an appeal was taken to the commissioner of the general land office, and then to the secretary of the interior, whereupon the decision was affirmed, and it was held that the defendant was entitled to hold and possess said land under the public land laws of the United States, and that the plaintiff had no right, title, or interest therein; that the defendant filed his declaratory statement with the register and receiver at Helena, Mont., to preempt said land on the 1st day of May, 1889; that he afterwards changed his pre-emption entry to a homestead entry, and paid the register and receiver the necessary fees therefor; that on March 20, 1891, he made final proof, and that the plaintiff made no objection or protest thereto; that the proof was accepted by the land office, and a patent issued to the defendant on November 16, 1891.

What are the facts, then, which are admitted in the pleadings, and upon which judgment was rendered? They are, in brief, that the land in controversy is in an odd-numbered section, and lies within the place limits of the land grant to the plaintiff; that said land was, at the date of the grant, as well as at the date of filing the map of the general route, and at the time of the definite location of the road, unsurveyed public land; that it was not excepted from the grant by reason of being mineral land; that it has been patented to the defendant as a homestead claimant, and has been by the land department decided to be subject to his homestead claim, in a contest between him and the plaintiff, upon proceedings the initial step of which was taken in the local land office, seven years subsequent to the date of the definite location of the road. There is but one question, therefore, for determination in this court, and that is whether the adjudication of the land department and the issuance of the patent overcome the presumption that otherwise would obtain in favor of plaintiff's title, and prove the title to be vested in the defendant.

The decisions in the land department in contested cases are conclusive only as to matters of fact which come within their jurisdiction, and a patent is not evidence of title to land which was not subject to disposition by the United States. Barden v. Railroad Co., 154 U. S. 327, 14 Sup. Ct. 1030; Best v. Polk, 18 Wall. 112; Morton v. Nebraska, 21 Wall. 660; Sherman v. Buick, 93 U. S. 209; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985; Mining Co. v. Campbell, 135 U. S. 286, 10 Sup. Ct. 765. As the pleadings stood at the time judgment was rendered, all the facts essential to the establishment of the plaintiff's title were alleged, and were undisputed, save only as they are affected by the adjudication referred to in the answer and the patent so issued. The adjudication was had upon an entry confessedly made long after the title passed to the railroad company. No state of facts appears, and none is conceivable, upon which the right of the defendant could relate back to a period anterior to the time when the grant to the plaintiff be

came vested, except the alleged facts so pleaded in the answer, predicating the defendant's right upon a settlement on the land made before the date of the grant. Those allegations are excluded from consideration here by reason of their denial in the reply. It is not stated in the answer that the decision of the land department was based upon proof of such alleged prior settlement, or that the effect of such settlement or claim was considered in the determination of said contest. The adjudication, therefore, cannot be held to affect the legal rights of the plaintiff, nor divest it of its title. The patent was issued to land the title to which thus appears to have passed from the United States. The question whether land which is included within a patent was, at the time of the issuance of the patent or at the time the rights thereunder accrued, a part of the public domain, or subject to such disposition, is always open for consideration; and the right of the real owner of such land is not affected by the unauthorized action of the officers of the government in so issuing such instrument. The uncontroverted allegations of the answer were insufficient, therefore, to sustain the judgment; and the judgment is reversed at the cost of the defendant in error, and the cause is remanded to the circuit court for trial.

ALBION LUMBER CO. v. DE NOBRA.

(Circuit Court of Appeals, Ninth Circuit.

No. 230.

February 10, 1896.)

1. NEGLIGENCE-PRESUMPTION-DERAILMENT OF TRAIN.

Though, ordinarily, in an action for damages arising from negligence, the negligence charged must be proved by the plaintiff, when the injury complained of arises from an accident which, in itself, is indicative of negligence, such as the derailment of a train of cars, the plaintiff is relieved from the burden of further proving the defendant's negligence, as the law presumes its existence. It is not, therefore, necessary for the plaintiff, in an action for damages caused by the derailment of a logging train, to prove that running such train at any given rate of speed was dangerous, in order to justify the submission to the jury of the question of defendant's negligence in running it at too high a speed.

2. SAME-CARRIER OF PASSENGERS-LIABILITY OF OTHER THAN COMMON CAR

RIER.

In an action against a logging company for personal injuries caused by the derailment of a train on its logging road, on which the plaintiff was riding, it appeared that the defendant's sole business was logging, and it had never authorized the use of its road for carrying passengers; but there was evidence that the defendant's general superintendent had instructed the plaintiff, who had come to the logging camp in search of work, to get on the train, and go for his blankets, so as to return and go to work, and also evidence that the trains were used, with the knowledge of defendant, for carrying people up and down the road. Held, that it was not error to refuse to direct a verdict for defendant.

In Error to the Circuit Court of the United States for the Northern District of California.

C. E. Wilson and Warren Olney, for plaintiff in error.

A. B. Hunt, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT, Circuit Judge. The plaintiff in error was the defendant in the court below in an action brought by Maria De Nobra, as administratrix, to recover damages for the death of Jose De Nobra, who was killed while being transported on the logging train of said defendant. It was alleged in the complaint that the defendant was engaged in operating a railroad, and carrying passengers and freight thereon; that it received De Nobra as a passenger on one of its trains; that the employés in charge of the train were careless and reckless and incompetent to manage the same, which fact was known to the defendant; and that, while being transported thereon, the train was carelessly and negligently run, and at a dangerous and reckless rate of speed, to wit, at more than 30 miles per hour, whereby the cars were thrown from the track, and De Nobra was killed. It was proven that the defendant operated its railroad as a logging road solely for the transportation of its own property; that one Hickey had general charge of the road and the logging camps, and had authority to employ men in the woods to work for the company; that the deceased and some others who were with him applied to him for employment on the day of the accident, and were engaged to work for the defendant. There was evidence to the effect that Hickey inquired if they had blankets, and on being informed that the deceased and another had blankets at the Big River Hotel, several miles distant, he told them to get on the cars, and go down and get their blankets, and come up the next day, and start in to work. Hickey testified, however, that he did not tell the men to get on the cars; that he had no authority to permit it; that it was not safe, for the reason that the logs were liable to roll off. The conductor of the train at the time of the accident was riding on top of the logs, and had seen the deceased on the top of the logs before the train started, and knew that he was there. He testified that he did not object to him riding or to any one riding on the train. The general manager of the defendant testified that there was no way of getting down the road except by riding on the train or walking; that those who rode on the train had to ride on the logging cars; that there was no other place for the brakeman and conductor or anybody else except to ride on the logging cars; that he knew of no instance where the company had objected to persons riding on the train if they wanted to do so. It was shown that the train was a long one, consisting of 13 cars loaded with logs, drawn by a single locomotive. There was testimony that the speed of the train at first was only about 8 or 10 miles an hour, for the first half mile, and that, upon coming to a steep down grade, the train increased its speed, and ran "like the wind," and, in the opinion of a witness, at the rate of 30 miles an hour, when a sudden jerk was felt, and the train went off the track. A witness testified that 30 or 40 miles an hour was a dangerous rate of speed for that road.

Upon the writ of error to this court, the principal assignment of error is that the court gave the following instruction:

"If you find from the evidence that the train was rur at 30 miles an hour, and you also find it was gross carelessness to do so, that is, to so run it, you will find on this issue for the plaintiff. If you find it was not so run, but, on the contrary, it was run from 7 to 10 miles an hou!. and that this was not gross negligence, you will find on that issue for the defendant. I have instanced these two rates of speed of 30 miles an hour, and from 7 to 10 miles an hour; but if the evidence satisfies you that the train was run at a different rate from either 30 miles an hour, or from 7 to 10 miles an hour, then you will have to address yourselves to the inquiry as to whether or not such rate was or was not gross negligence. If you find it was gross negligence, you will find for the plaintiff; and, if you find it was not, you will find for the defendant." It is said that this is error, because there was no evidence whatever that running the train at a less rate of speed than 30 miles per hour was dangerous, and that, by the instruction, the court left the jury to determine whether or not any rate of speed between 10 miles an hour and 30 miles an hour was negligence. It is true that, ordinarily, in an action to recover damages for personal injuries, the elements of which the negligence consists must be proven by the plaintiff, and the burden of proof rests upon him. But, if it is shown that the injury complained of resulted from an accident which in itself is indicative of negligence, the plaintiff is relieved from the burden of further proving the negli gence of the defendant, for the law presumes its existence. The derailment of a train has been held to be of itself sufficient to raise the presumption of negligence on the part of the railroad company. Seybolt v. Railroad Co., 95 N. Y. 562; The New World v. King, 16 How. 469; Railroad Co. v. Rainbolt, 99 Ind. 551; Cummings v. Furnace Co., 60 Wis. 603, 18 N. W. 742, and 20 N. W. 665; Dougherty v. Railroad Co., 81 Mo. 325. It was not necessary, therefore, that the plaintiff should have proven that running the train at any given rate of speed was dangerous, or negligent on the part of the defendant. Notwithstanding the fact that the deceased was on the defendant's train upon the defendant's invitation, and not as a passenger for hire, the defendant owed him proper and adequate care under the circumstances. The instruction required the jury to find the existence of gross negligence on the part of the defendant before the plaintiff could recover. In that respect it was perhaps more favorable to the defendant than the law justifies, but of that the defendant cannot complain. Railroad Co. v. Derby, 14 How. 486; The New World v. King, 16 How. 469; Railroad Co. v. Lockwood, 17 Wall. 357.

Said Mr. Justice Davis, in Railroad Co. v. Arms, 91 U. S. 494: "Gross negligence' is a relative term. It is, doubtless, to be understood as meaning a greater want of care than is implied by the term 'ordinary negligence'; but, after all, it only means the absence of the care that was requisite under the circumstances."

Error is assigned to the refusal of the court to instruct the jury to return a verdict for the defendant. It is contended that the defendant was entitled to such instruction under the proof which was submitted, and was not denied, to the effect that the defendant was not engaged in the business of carrying passengers upon