19. Purchasers from railroads; status of.
Purchasers from railroads, even though in good faith, are not bona fide
purchasers under the public land laws. Northern Pacific Ry. Co.
20. Segregation; effect of application based on invalid claim.
An application based on an invalid claim of a soldier is not an entry
valid on its face which segregates the land from the public domain.
and precludes its appropriation by another until set aside. Mc-
Michael v. Murphy, 197 U. S. 304, distinguished. Robinson v.
Lundrigan, 173.
21. Right of way to which Kansas Pacific Railway entitled and its supe-
riority over rights initiated subsequent to act of 1864.
Under the acts of 1862 and 1864 the Kansas Pacific Railway Company
had authority to build west of the one hundredth meridian to Den-
ver and was entitled to a right of way two hundred feet from the
center of the track, and that right is superior to claims initiated
after the act of 1864, even if prior to the construction of the road;
and this right is not defeated by adverse possession. Stuart v.
Union Pacific R. R. Co., 342.
22. Settlement; sufficiency.
One who settled on land not at the time open to entry but which became
open does not have to go through the idle ceremony of vacating and
settling upon it anew. Svor v. Morris, 524.
23. Surveys; effect of error in, on title of United States.
An error in omitting an island in a navigable stream does not divest
the United States of the title or interpose any obstacle to survey-
ing it at a later time. Scott v. Lattig, 229.
24. Surveys; effect of omission of island from, to vest title in abutting
riparian proprietors.
Purchasers of fractional interests of subdivisions on the bank of a
navigable stream do not acquire title to an island on the other
side of the channel merely because the island was omitted from
the survey: Ib.
25. Title acquired by railroad; when held in trust for settler.
Title acquired by a railway company or its assignee of lieu lands, im-
properly selected because not open by reason of settlement thereon,
is held in trust for the settler by such assignee or his grantee who
took with notice. Sror y. Morris, 524,
26. Townsites in Indian lands; contests; settlement by townsite commis-
sion.
Congress has power to invest a townsite commission with power to
determine contests between rival claimants to lots in a townsite
in Indian lands acquired and thrown open to settlement. Ross v.
Stewart, 530.
27. Townsites in Indian lands; appraisal and disposal of lots; to whom
designated.
The acts providing for designation, surveying and platting townsites
in the Cherokee lands and disposing thereof plainly show the
intent of Congress to commit the appraisal and disposal of the lots
to the commission created by the acts, subject to supervision by
the Secretary of the Interior. Ib.
28. Townsites in Indian lands; determination of conflicting possessory
claims.
The provisions of the acts do not contemplate the determination of
conflicting possessory claims without inquiry into the merits. Ib.
29. Withdrawn lands; right of railroad; effect of failure of settler to assert
claim within time allowed by act of May 14, 1880.
Under the act of May 14, 1880, 2 Stat. 141 and § 2265, Rev. Stat., the
rights of a settler who fails to assert his claim within three months
of settlement are not inexorably extinguished but only awarded to
the next settler in order of time who docs assert his claim and com-
plies with the law, and advantage of this statute cannot be taken
by a railroad company selecting land which is withdrawn from
selection by having already been settled on. Hastings & Dakota
Ry. Co. v. Arnold, 26 L. D. 538, approved. Sror v. Morris, 524.
See FEDERAL QUESTION.
PUBLIC POLICY.
See CONVEYANCES.
PUNCTUATION.
See STATUTES, A 9.
1. Gratuitous passenger; railway mail clerk as.
In this case the finding of the state court that a railway mail clerk
while traveling on his own business was a gratuitous passenger was
well founded on the evidence. Southern Pacific Co. v. Schuyler,
2. Free interstate transportation by not presumed.
There is no presumption that a railway company gives free interstate
transportation, and that is a fact that must be established by evi-
dence. Ib.
3. Pacific Railroad Acts; how to be construed.
It has also been heretofore decided that the Pacific Railroad Acts of
July 1, 1862, and July 2, 1864, should be considered and construed
as one act. Stuart v. Union Pacific R. R. Co., 342.
4. Kansas Pacific Railroad; extent of right to build.
It has already been decided by this court that the Kansas Pacific
Railway Company had a right to build west of the one hundredth
meridian. Ib.
5. Liability of; effect of violation by passenger of anti-pass provision of
Hepburn Act.
The anti-pass provision of the Hepburn Act does not make an outlaw
of one traveling interstate on a pass and so deprive him of the
benefit of the local law that makes the carrier responsible for
exercising duc care. Southern Pacific Co. v. Schuyler, 601.
6. Passengers; rights under local law; effect of violation of Hepburn Act.
Penalties are not to be enlarged by construction; and so held that one
violating the Hepburn Act by accepting gratuitous passage is not
deprived of protection due to other passengers under the local
law as well as subject to the penalty specified in the act. Ib.
7. Right of way; to what entitled.
A right of way is.a substantial and obvious benefit and if a railroad is
entitled to a right of way under an act, it is entitled thereto under
a later act extending the route and granting all benefits given un-
der the earlier act. Stuart v. Union Pacific R. R. Co., 342.
8. Right of way; how acquired under acts of 1862, 1864.
Even though the record may not show that all the maps of definite
location had been filed, a railroad company may acquire under the
acts of 1862 and 1864 a right of way by actual construction of the
road. Ib.
9. Right of way; effect on title of non-occupation.
A railroad obtaining a right of way under the acts of 1862 and 1864
retains title thereto whether occupied by it or not. Ib.
10. Trespasser; status of one accepting free transportation.
One holding a government commission that entitles him to free inter-
state railway transportation while on duty and who while not on
duty enters a train, relying on such commission and with the con-
sent of the officials in charge of the train, and remains thereon with
their consent, is not a trespasser even if in so doing he violates the
anti-pass provision of the Hepburn Law. Southern Pacific Co. v.
Schuyler, 601.
See CONSTITUTIONAL LAW, 1, 2, 3, 6;
FRANCHISES, 2, 4, 8;
INTERSTATE COMMERCE, 11, 35, 36, 39;
PUBLIC LANDS, 16, 19, 21, 25, 29.
RAILWAY MAIL CLERKS.
See RAILROADS, 1.
See INTERSTATE COMMERCE, 5, 6, 17, 23, 24, 26, 28, 29, 30, 31, 32, 45-50;
INTERSTATE COMMERCE COMMISSION, 2–6.
See APPEAL AND ERROR, S;
JUDICIAL NOTICE;
PRACTICE AND Procedure, 1
RELATION
See BANKRUPTCY, 5, 6;
PUBLIC LANDS,- 10.
REMEDIES.
See CONTRACTS, 7;
HABEAS CORPUS;
PARTNERSHIP, 6, 7
REMOVAL OF CAUSES.
1. Joinder of parties; motive of plaintiff immaterial.
The motive of the plaintiff in joining defendants taken by itself, does
not affect the right to remove. If there is a joint liability he has
a right to enforce it, whatever his reason may be. (Chicago,
Burlington & Quincy Ry. Co. v. Willard, 220 U. S. 413.) Chicago,
R. I. & P Ry. Co. z. Schwyhart, 184.
2. Joinder of parties; effect of financial disparity.
The fact that the resident defendant joined in a suit with a rich non-
resident corporation is poor does not affect the case, if the cause
of action against them actually be joint. Ib.
3. Amendment of declaration after removal denied; materiality of.
The fact that the declaration was amended after the petition to remove
had been denied held immaterial where, as in this case, it merely
made the original cause of action more precise. Ib.
4. Consideration by this court on question of removal.
On the question of removal this court need not consider more than
whether there was a real intention to get a joint judgment, and
whether the record showed colorable ground for it when the re-
moval was denied. Ib.
5. Verdict and affirmance against resident defendant; effect to establish
statement of cause of action.
Whether or not a cause of action was stated against the resident
defendant is a question of state law, and where the verdict went
against that defendant and was affirmed by the highest court of
the State to which it could go, this court takes the fact as es-
tablished. Ib.
REPEALS.
See FRANCHISES, 3.
RESERVATIONS.
See INDIANS, 3, 5, 6;
PUBLIC LANDS, 4, 17.
1. Scope of estoppel by former judgment.
Where the second suit is upon the same cause of action set up in the
first suit, an estoppel by judgment arises in respect to every matter
offered or received in evidence or which might have been offered to
sustain or defeat the claim in controversy; but where the second
suit is upon a different claim or demand, the prior judgment
operates as an estoppel only as to matters in issue or points con-
troverted and actually determined in the original suit. Troxell v.
Delaware, L. & W. R. R. Co., 434.
2. Essentials to create estoppel by judgment.
To work an estoppel, the first proceeding and judgment must be a
bar to the second one because it is a matter already adjudicated
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