on, and the administration of the trusts devolving on the government, by reason of the laws of Congress, or under treaty stipulations re- specting the public domain, the Secretary of the Interior is the super- vising agent of the government, to do justice to all claimants, and preserve the rights of the people of the United States. Ib.
5. The Secretary of the Interior had ample power to set aside the Stratton survey of the San Francisco pueblo lands, (although it was approved by the surveyor general of California, and confirmed by the Commis- sioner of the General Land Office, and no appeal was taken from it,) and to order a new survey by Vón Leicht; and his action in that respect is unassailable in a collateral proceeding. Ib.
6. The method of running the shore line of the bay of San Francisco in the Von Leicht survey was correct. lb.
7. The well-settled doctrine that, on the acquisition of the territory from Mexico, the United States acquired the title to lands under tide water in trust for the future States that might be erected out of the terri- tory, does not apply to lands that had been previously granted to other parties by the former government, or had been subjected to trusts that would require their disposition in some other way. Ib.
8. The patent of the United States is evidence of the title of the city of San Francisco under Mexican laws to the pueblo lands, and is conclu- sive, not only as against the United States and all parties claiming under it by titles subsequently acquired, but also as against all parties except those who have a full and complete title acquired from Mexico, anterior in date to that confirmed by the decree of confirmation. Ib. 9. The grant of public land to the Central Pacific Railroad Company by the acts of July 1, 1862, 12 Stat. 489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, was a grant in præsenti, and the legal title to the granted land, as distinguished from merely equitable or inchoate interests, passed when the identification of a granted section became so far complete as to authorize the grantee to take possession. Deseret Salt Co. v. Tarpey, 241.
10. Patents were issued, not for the purpose of transferring title, but as evidence that the grantee had complied with the conditions of the grant, and that the grant was, to that extent, relieved from the possi- bility of forfeiture for breach of its conditions. Ib.
11. The provision in the statute, requiring the cost of surveying, selecting and conveying the land to be paid into the treasury before a patent could issue, does not impair the force of the operative words of trans- fer in it. Ib.
12. The railroad company could maintain an action for the possession of land so granted before the issue of a patent, and could transfer its title thereto by lease, so as to enable its lessee to maintain such an action. Ib.
13. The title of the Des Moines Navigation and Railway Company to lands granted to the territory of Iowa for the purpose of aiding in
the improvement of the navigation of the Des Moines River by the act of August 8, 1846, 9 Stat. 77, c. 103, and to the State of Iowa for a like purpose by the joint resolution of March 2, 1861, 12 Stat. 251, and by the act of July 12, 1862, 12 Stat. 543, c. 161, having been sus- tained by this court in eight litigations between private parties, to wit in Dubuque & Pacific Railroad v. Litchfield, 23 How. 66; Wol- cott v. Des Moines Co., 5 Wall. 681; Williams v. Baker, 17 Wall. 144; Homestead Co. v. Valley Railroad, 17 Wall. 153; Wolsey v. Chap- man, 101 U. S. 755; Litchfield v. Webster County, 101 U. S. 773; Du- buque & Sioux City Railroad v. Des Moines Valley Railroad, 109 U. S. 329, and Bullard v. Des Moines & Fort Dodge Railroad, 122 U. S. 167, is now held to be good against the United States, as a grant in præsenti. United States v. Des Moines Navigation & Railway Co., 510. 14. Where relief can be granted only by setting aside an evidence of title issued by the government, in the orderly administration of the affairs of the Land Department, the evidence in support must be clear, strong and satisfactory. Ib.
15. In ejectment, plaintiff claimed title to certain parcels of land by pur- chase from the State of California under its selection of lands as part of the Agricultural College grant from Congress of July 2, 1862, 12 Stat. 503, c. 130; certification thereof by the United States Land Department thereunder, and subsequent patent from the State to him. Defendant claimed legal title by a prior purchase from the State under prior state selections, (1) by purchase and location of state land war- rants issued by the State under the grant of 500,000 acres made to it by section eight of act of September 4, 1841, 5 Stat, 353, c. 16, and (2) by purchase of indemnity land, selected in lieu of school sections sixteen and thirty-six, granted by the act of Congress of March 3, 1853, 10 Stat. 244, c. 145, and lost by inclusion within Mexican grants subsequently confirmed; further claiming that both selections were confirmed by the first section of the Act of Congress of July 23, 1866, 14 Stat. 218, c. 219, passed before the selection, certification and patent- ing under which plaintiff claims. Held, (1) That the first section of the act of July 23, 1866, must be construed in connection with section two of that act, and, as thus construed, it did not confirm the selec- tions under the 500,000 acre grant, those selections not having been made of lands previously surveyed by authority of the United States: but said section, thus construed, did confirm the lands selected in lieu of the school sections taken by the Mexican grants, such selected lands having been previously surveyed by authority of the United States, and notice of such selection having been given to the register of the local land office, and the lands having been sold to a bona fide purchaser, in good faith, under the laws of the State; (2) That con- firmation to the State of its title enured to the benefit of its grantee without any further action by the land department or by the State. McNee v. Donahue, 587.
16. A legislative confirmation of a claim to land with defined boundaries, or capable of identification, perfects the title of the claimant to the tract, and a subsequent patent is only documentary evidence of that
17. No title to lands under the Agricultural College grant of 1862, under which plaintiff claims, vested in the State until their selection and listing to the State, which was subsequent to the time at which the title of the United States passed to the defendant. Ib.
18. No trust was created by such grant which prevented land subject to selection thereunder from being taken under prior selections in sat- isfaction of other grants. No trust could arise against the State there- under until its receipt of all or a portion of the proceeds arising from the sale of the property, and no disposition of such proceeds could affect the title acquired by other parties, from the sale of such lands thereunder. Ib.
19. Defendant having, after his general denial of the allegations of the complaint, for a further separate answer and defence, set up his claim of title to demanded premises by cross-complaint, and prayed affirma- tive relief thereon by cancellation of the State's patent to the plaintiff, or by charging him as a trustee of the title and compelling him to convey the premises to the defendant, such a mode of setting up an equitable defence to an action for the possession of land being allow- able under the system of civil procedure prevailing in California, the judgment of the Supreme Court of that State, declaring such trust and directing such conveyance, is affirmed. Ib.
See JURISDICTION, A, 5, 10;
TAX AND TAXATION, 1.
QUIA TIMET.
See ADVERSE POSSESSION.
1. A railroad company is not responsible for an injury done to a passenger in one of its trains by the conductor of the train, if the act is done in self-defence against the passenger and under a reasonable belief of immediate danger. New Orleans & Northeastern Railroad Co. v. Jopes, 18.
2. A ferry company operating a ferry across a navigable river and owning the land at the landing and about the approaches to it, contracted with a railroad company for the use of the land for the purposes of its business so long as they should be used and employed for such uses and purposes. The railroad company in consideration thereof agreed to pay the taxes on the land, and not to interfere with the ferry company in respect of its ferry, and to always employ the ferry company in its transportation across the river. The railroad com-
pany entered upon the land, and laid down tracks and performed its part of the contract until it became insolvent, and a mortgage upon its property was foreclosed. The property was purchased by a new railway company, which continued to carry on the business as it had been carried on before, but without making any new contract, or any special agreement for rent. After continuing to carry on the business in this way for some time, the railway company diverted a portion of its transportation across the river to other carriers. Subsequently a further diversion was made, and then the company became insolvent, and a receiver was appointed. This officer also continued to carry on the business, and without making any special agreement: but event- ually he wholly diverted the business and removed all the rails and tracks from the premises. The ferry company then intervened in the suit against the railway company in which a receiver had been appointed, claiming to recover compensation for the use of its property by the railway company and by the receiver, and for the value of the mate- rials removed from the premises when possession was surrendered. The court below dismissed this petition and allowed an appeal. Held, (1) That the contract did not create the relation of landlord and tenant; that no rent having been reserved, or claimed, or paid during the whole occupation, the conduct of the parties was inconsistent with such a relation; and that under such circumstances such a relation would not be implied;
(2) That the railway company, under the circumstances, acquired an equi- table estate in the premises of like character with the legal estate previously held by the railroad company; and that both parties were equitably estopped from denying that such was the case;
(3) That the ferry company having, up to the argument in this court, conducted the litigation solely on the theory that it was entitled as landlord to recover the rental value of the premises in question, this presented a serious obstacle in the way of doing substantial justice between the parties; but,
(4) That a mistaken view of one's rights or remedies should not be per- mitted wholly to defeat a claim founded upon principles of equity and justice, and if the pleadings can be so amended as to admit proof of such claim, and such amendment does not introduce a new cause of action, though it may set up a new measure of damages, or work a real hardship to the party defendant, it is within the discretion, even of the appellate court, to permit such amendment to be made; (5) That the ferry company was not entitled to recover the value of the rails removed by the receiver. Wiggins Ferry Co. v. Ohio & Missis- sippi Railway Co., 396.
See CONSTITUTIONAL LAW, A, 7, 10; B, 2;
EQUITY, 2;
LOCAL LAW, 2; MANDAMUS, 2, 3.
1. The act of March 3, 1887, 27 Stat. 552, c. 373, with regard to the re-
moval of causes from state courts, (corrected by the act of August 13, 1888, 25 Stat. 433, c. 866,) repealed subdivision 3 of Rev. Stat. § 639. Fisk v. Henarie, 459.
2. The words in that act "at any time before the trial thereof," used in regard to removals “from prejudice or local influence” were used by Congress with reference to the construction put on similar language in the act of March 3, 1875, 18 Stat. 470, c. 137, by this court, and are to receive the same construction, which required the petition to be filed before or at the term at which the cause could first be tried, and before the trial thereof. Ib.
1. In a suit in equity for the rescission of a contract of purchase, and to recover the moneys paid thereon on the ground that it was induced by the false and fraudulent representations of the vendors, if the means of knowledge respecting the matters falsely represented are equally open to purchaser and vendor, the former is charged with knowledge of all that by the use of such means he could have ascertained: and a fortiori he is precluded from rescinding the contract and from recovery of the consideration money if it appears that he availed himself of those means, and made investigations, and relied upon the evidences they furnished, and not upon the representations of the vendor. Farnsworth v. Duffner, 43.
2. It is no ground for rescinding such a contract that the agents of the vendors, who had received the full purchase money agreed upon, mis- appropriated a part of it. Ib.
3. Statements by a vendor of real estate to the vendee, (made during the negotiations for the sale,) as to his own social and political position and religious associations, are held, even if false, not to be fraudulent so as to work a rescission of the contract of sale. Ib.
1. In Wisconsin the ownership of riparian proprietors extends to the centre or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels; and the law, so settled by the highest court of the State, is controlling in this court as a rule of property. Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 254. 2. A state legislature may authorize the taking of land upon or riparian rights in a navigable stream, for the purpose of improving its naviga- tion, and if a surplus of water is created, incident to the improvement, it may be leased to private parties under authority of the State, or retained within control of the State; but so far as land is taken for the purpose of the improvement, either for the dam itself or the em-
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