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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

title. Ib.

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.

RAILROAD.

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.

REMOVAL OF CAUSES.

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.

RESCISSION OF CONTRACT.

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.

RIPARIAN OWNER.

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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