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From the place where I stood, I could not see the boat. The Transfer I saw Coming up the river, after she passed the line of freight cars on that float. Then I could see her after that. I could not see it when it was behind that line of cars; but after she passed I could."

And it appears further from his testimony that at the time of the accident he was stooping over so far, in order to get at the line, that probably his body was out of sight.

Nor do we find any negligence on the part of the master of the Transfer by reason of the claim that he could have seen plaintiff when the Transfer was coming up the river, for the plaintiff at that time was in a place of safety. As he says:

"I was standing on the string piece. I hadn't stepped down between the boat. I was standing on the string piece when I got hit. When I looked down the river and saw the Transfer, I was on the bow of my boat; on the deck. We were just starting to get the rope up with the pike pole. We had tried with a pike pole, and were just going to try the other way. At that time The Transfer was headed right up the river, and was, I should judge, about the length of 100 feet from me. * * ** She was, I should judge, about 100 leet-not from me, but from the railroad float. She was further out in the river towards the railroad float. She was not opposite the railroad float. The ug was below the railroad float. She was coming up towards the railroad

fcat, outside. She was about 100 feet below the railroad float."

Nor do we find any negligence in the failure of the master of the transfer to give any signal by means of whistles or bells. There are no rules of navigation which provide how warning of such a maneuver shall be given.

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It is further immaterial whether upon the whole case we would ave been disposed to hold that the master of the Transfer was guilty negligence, or that the impact of the blow upon the outside float was not of such force as to raise a presumption of negligence. It Tay well be that the disturbance caused by such impact was no greater han the displacement which would have resulted from the waves and well caused by such a tug in passing along up the river without stoping, or in maneuvering to enter the coal and water dock without Coming in contact with any other boat. The sole question presented tus upon this record is whether there was any such evidence of egligence to go to the jury as would be sufficient to justify them inding that the agents of defendant were negligent.

It appears from the record that defendant's agents knew that there ere people living and working on and about these boats, and that, fa moving boat came in violent contact with them, it might cause jury to such persons. And, while there is considerable testimony To the effect that this blow was so slight that it could not have been municated through the whole flotilla of boats to the place where the plaintiff was standing with such violence as to throw him down in the manner described, yet we are not at liberty to ignore the testiny of the plaintiff and mate on this point. The plaintiff testified that the first crash knocked his feet from under him. His condition ufficiently indicates the violence of the second shock.

The testimony of the mate on this point was as follows:

"I was standing on my feet. I was helping the captain. I did not have hold of anything when I fell down. I felt a jar. It affected me as if I was going down. I went. It threw me. It felt like a hard shock. It pitched me for

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ward about two and a half feet. I was on the deck of the boat. I was half of me off the boat-some on the boat and some over. I had to catch onto something. I catched onto the dock. That prevented me from falling. I heard the crash. I could not say where that was. * This noise which I heard was towards the river. As I was pitched forward, I fell on my hands. The deck, in reference to the dock, was pretty much near level. I lay there flat. I answered the court that I caught on the dock, or I would have fallen. But I fell. But I would have fallen into the river if it had not been for the dock."

It appears, furthermore, from the testimony of the witnesses for defendant that it is the duty of such boats, when about to execute such a maneuver, to have lookouts to notify the master if there are people working in and around the boats, and that, if the lookouts on this occasion had seen any one on the boats, they would have notified the captain, and "in that case he certainly would not have run up against them." And the experienced master of one of defendant's transfers, which was lying at the dock at the time of the collision, testified in regard to the custom in the execution of such a maneuver as follows:

"As a matter of precaution, as a matter of safety to the boats I am coming up against, I have to bring my boat in touch with the adjoining boats in such manner as not to throw any one down, or break anything."

It appears, further, that the gross tonnage of the Transfer was 102

tons.

In these circumstances, the question of defendant's negligence was submitted to the jury by the court upon an exhaustive consideration of the evidence and a fair and correct statement of the law applicable thereto, and to which no exception is urged.

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We are, therefore, concluded by the verdict of the jury, and the judgment thereon must be affirmed.

NOTE. The following is the opinion of Ray, District Judge, on motion to set aside a verdict:

RAY, District Judge. No point or question is raised that there was any er ror in the admission or rejection of evidence or in the charge to the jury. Under all the evidence in the case a fair question of negligence and of freedom from contributory negligence was presented for the determination of the jury. The plaintiff was very severely crushed and injured from his shoulders to his feet inclusive, and these injuries are permanent, and plaintiff will never be any better or free from pain. In all human probability he will grow worse. He will never be able to dress and undress himself, or do any labor except light work with his hands. Considering his age and his earning power both before and since the accident, and the nature and permanence of his injuries, the damages awarded were not excessive; indeed, they were moderate. There was an abundance of evidence to sustain a finding of negligence on the part of the captain of the defendant's tug that ran against the floats and jammed them against the canal boat of the plaintiff where he was at work with his mate in plain sight of the captain of the tug that did the damage going up the Harlem river. If the captain did not see them, he ought to have seen them. He had an abundance of sea room in which to maneuver and turn his tug, and evidently could have run into the water and coal dock without coming in collision with the floats had he regarded it of moment or importance so to do. His evidence disclosed that he was ignorant, self-opinionated, coldblooded, and reckless. He ran into the line of boats moored to this wharf, the canal boat next it, then the scow, and then defendant's heavily loaded floats with another tug between, recklessly and with great and unnecessary force in any event and with an utter disregard of the safety of those on and abou those vessels. The evidence of Samuel Sprague, a witness for defendant, show:

the captain of the tug in question did what he ought not to have done. The evidence tended to show the collision was exceedingly severe and then persisted in. The evidence of John Johnson, a witness for defendant, and who was on the tug, shows it was the duty of those thereon to keep a lookout for people on or about boats tied to the wharf and those tied thereto outside, and, if any one was there, not to come in collision. Still the captain of the tug said, in substance, the only purpose of a watch or lookout was to enable them to testify how the injury was done in case of a collision and resulting damage and not to enable him or make it his duty not to come in collision with vessels tied to a dock. The captain of this tug testified as to the purpose of the watch on the tug for persons on vessels tied to a dock:

"Q. What did you keep a lookout for? What was the reason for your keeping a lookout? A. It is the rule that we should carry a lookout; that is all the reason I can give you. In case of accident in case of collision, that a man should be there on the bow of the boat to see just what is met with; that is the only reason I can give you for a lookout. Q. Let me see if I understand you. The reason for your keeping a lookout was in case you injured somebody, that you might be able to tell about it? A. Yes, sir. Q. So you might be a witness? A. That is what they are stationed out there for. Q. They are not stationed there for the purpose of warning men of your approach or preVenting a collision? A. No, sir. Q. They are simply put there for the purpose in case you do run a man down, and he is drowned, you may be able to testify you saw him go down? A. Yes, sir. Q. That he went down? A. Yes, sir. Q. How you came to put him down? A. Yes, sir."

This was contrary to the credible evidence in the case. The captain of this tez gave no warning of his approach or that he was intending or expected to strike this fleet of boats-plaintiff's canal boat innermost and next the dock. The plaintiff was not down between the dock and boat, but standing with his whole body from the hips up in plain view of those on the tug. The collision threw the canal boat against him, and caused him to fall down between the beat and dock, and a second surge of the boat caused by another blow of the ug crushed him. Before getting in this position he looked up and down and w this tug going up the Harlem river in midstream and nothing to indiate it would or was intending to come in collision. He had no reason to apprehend this tug would go up, turn, and then butt head on into this line of boats. The jury was amply justified in finding absence of contributory negligeace, which, indeed, was not pleaded until during the trial by amendment there allowed. All these questions were for the jury. The case was not tried submitted on any theory that there was any presumption of negligence on the part of defendant arising from the fact of the collision and injury. The verdict was fully justified, and the motion for a new trial is denied.

McCONNELL v. DENNIS et al.

(Circuit Court of Appeals, Eighth Circuit. May 7, 1907.)

No. 2,488.

L INJUNCTION-ACTIONS-NECESSary Parties-Defendants.

In a suit in equity in a federal court to enjoin the defendant from proceeding under an oil and gas lease which obligated him to operate for oil and gas for a term of years, and to pay royalties in kind and in cash to the owner of the land, the right of complainant to relief being based on the alleged invalidity of such lease, the landowner is an indispensable party, without whose presence the court can make no decree.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 27, Injunction, § 212.] 2 APPEAL-MATTERS REVIEWABLE-DEFECT OF PARTIES.

Where a decree was entered in favor of a complainant in a suit in which because of the absence of an indispensable party whose rights were directly affected the court was not warranted in granting any relief, the de

fect of parties cannot be waived by the parties before the court, and the fact that no objection was made on that ground cannot prevent the consideration of the question by an appellate court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1189; vol. 37, Parties, § 169.]

Appeal from the Circuit Court of the United States for the District of Kansas.

L. W. Keplinger (J. B. Ziegler, on the brief), for appellant.
W. H. Sproul and John H. Atwood, for appellees.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS, Circuit Judge. This case presents a controversy between two rival claimants to the mining rights in 320 acres of oil land situated in Chautauqua county, Kan. Prior to July, 1902, Amanda Miller, of California, owned the land. By a deed dated July 21, 1902, recorded in the office of the register of deeds of Chautauqua county on August 25, 1903, she conveyed it to Abba Clair McCready, who, on August 25, 1903, by an instrument duly recorded on August 28, 1903, leased the oil, gas, and mining rights on the land to P. D. McConnell, the defendant herein. There were reserved to the lessor as rent or royalties one-sixth interest in all the oil that might be produced from the premises and also $200 per year for each and every gas well sunk and successfully operated thereon. By an instrument dated September 18, 1902, Amanda Miller leased the same land to complainants, Dennis and others, who constituted a copartnership under the name of the Sedan Development Company. This lease in terms conferred upon the lessees an exclusive right to conduct mining operations for gas or oil on the leased premises and reserved to the lessor royalties in the event gas wells should be sunk, at the rate of $5 per month during the time product of value should be taken therefrom or in lieu thereof one-tenth of the oil or other product found therein, and until wells should be sunk the sum of $32 per year fixed, with some alternative provisions. This lease was recorded in the proper registration office February 3, 1903, and is assailed by defendant as void because unequal, uncertain, unfair, and unilateral in its covenants and for other reasons.

Complainants in their bill filed for equitable relief allege their ownership of the lease acquired from Amanda Miller, their possession of the land, and their exclusive right to mine and drill for oil, gas and minerals. They further allege that defendant McConnell and others named as having some undescribed interest in the land, with out consent of the complainants, entered upon the premises with tools machinery, and other preparation for mining operations with the in tention of taking and appropriating the gas, oil, and minerals belong ing to complainants to his or their own use and prayed for an in junction restraining them from doing so. Defendant McConnell alon answered the bill. He denied complainants' possession, alleged im perfections in their title, and justified his possession and right to mine the lands under his lease from McCready. The final decre confirmed complainants in their title and ordered as follows:

"That said defendants and each of them and all persons claiming, by, through or under them or either of them, be, and they are hereby, permanently restrained and enjoined from setting up or asserting any right, title, claim, or interest in or to the oil and gas in and upon said land, as against the rights of said complainants therein, under and by virtue of their said lease, or from interfering in any way with the complainants, their heirs or assigns, in the operation of said land under their said lease."

Many objections are made to the decree, but, as one is decisive, we do not deem it essential to consider any other.

Defendant, according to the terms of his lease from McCready, owed to her constantly accruing royalties, rights, and privileges. His lease from her obligated him for a certain period of 15 years and as much longer as gas or oil should be produced in paying quantities, to deliver to her one-sixth of all the oil as and when produced in kind, to pay her $200 per year for each gas well sunk by him as long as gas should be sold therefrom, and to furnish gas for a family occupying the residence on the premises. The value of her royalties, rights, and privileges according to the terms of the lease depended upon successful mining operations to be conducted by the lessee. Anything that would interfere with or prevent his production of oil or gas on the leased premises necessarily affected, reduced, or extinguished her royalties in kind or cash and other privileges which depended upon such production.

The bill was solely for injunctive relief to restrain McConnell, the lessee, from drilling, boring, or conducting mining operations on the premises for the production of oil or gas. The decree, after finding that complainants are entitled to the relief prayed for, proceeds to confirm them in their exclusive right and title under their lease to conduct mining operations on the premises and permanently enjoined and restrained McConnell from asserting any right, title, daim, or interest thereon, or from in any manner interfering with complainants in the exercise of the exclusive right so confirmed them. Nothing could more effectually extinguish Abba Clair McCready's rights secured by the lease than such a decree. Obeience to its command by McConnell necessarily put a stop to her royalties in kind and in money and the enjoyment of the other privileges secured to her by her lease and contract with McConnell. She was not made a party to the suit, and her contract was stricken down without any opportunity to be heard in defense of her rights er it. This is contrary to natural right and well-established principles of equity jurisprudence.

In the leading case of Shields v. Barrow, 17 How. (U. S.) 130, 1. 15 L. Ed. 158, the Supreme Court, after expounding the meaning f the forty-seventh rule in equity and the provisions of the act of February 28, 1839 (5 Stat. 321), which makes provision, when some defendant may not be an inhabitant of or found within a district or may not voluntarily appear to an action, for entertaining jurisdiction 27 rendering a decree binding upon the parties before the court, but ithout prejudice to others not brought into the case, observes as fllows:

"It remains true, notwithstanding the act of Congress and the forty-sevFath rule, that a Circuit Court can make no decree affecting the rights of an

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