That would be to throw the section out of correspondence with the existing limitations. clude obligations arising ex contractu would time law, and it is the language of our be to utterly ignore the fact that such a statute, which virtually adopts that law." construction would leave an owner subject Neither is it necessary to conclude that to a large class of obligations arising from the section in question is a repealing act nonmaritime torts, and leave nothing to as to any of the qualifications of the prewhich the words, "any and all lia- ceding limitations found in §§ 4283 et seq., bilities" could apply. In Butler v. Boston of the Revised Statutes. To so hold would & S. S. S. Co. 130 U. S. 527, 549, 553, 32 be to attribute to Congress a wider purpose L. ed. 1017, 1022, 1023, 9 Sup. Ct. Rep. than we have any reason to suppose,—that 612, the words "the liability of the owner of extending the benefits of §§ 4283 et seq., shall in no case exceed," etc., were regardless of the owner's knowledge or construed as extending to any liability privity. "for any act, matter, or loss, damage or forfeiture, done or incurred;" and as therefore providing that the "owner shall not be liable beyond his interest in the ship and We therefore conclude that the section freight for the acts of the master or crew, in question was intended to add to the done without his privity or knowledge." enumerated claims of the old law "any Upon this interpretation of § 4283, it was and all debts and liabilities" not therefore held that liabilities of the owner for in- included. This is the interpretation sugjuries to persons were included in the limi- gested in Butler v. Boston & S. S. S. Co. tation, as well as injuries to goods. Re- supra. That the section operates as such ferring to the 18th section of the act of an amendment of the existing law, and not 1884, which did not apply in that case, be- as a repeal of "the qualifications found in cause the injury occurred before its pas- that law, is the view adopted by three cirsage, the court said it "seems to have been cuit courts of appeal, in the cases of The intended as explanatory of the intent of Republic, 9 C. C. A. 386, 20 U. S. App. 561, Congress in this class of legislation. It 61 Fed. 109, in the second circuit, The Andeclares that the individual liability of a nie Faxon, 21 C. C. A. 366, 44 U. S. App. shipowner shall be limited to the propor- 591, 75 Fed. 312, in the ninth circuit, and tion of any or all debts and liabilities that in Great Lakes Towing Co. v. Mill Transp. his individual share of the vessel bears to Co. 22 L.R.A. (N.S.) 769, 83 C. C. A. 607, the whole; and the aggregate liabilities of 155 Fed. 11, in the sixth circuit, as well all the owners of a vessel on account of as by a number of district courts, among the same shall not exceed the value of such them being the case of The Amos D. Carver, vessel and freight pending. The language 35 Fed. 665, and Re Meyer, 74 Fed. 881. is somewhat vague, it is true; but it is pos- Thus construed, the section harmonizes sible that it was intended to remove all with the policy of limiting the owner's doubts of the application of the limited-risk to his interest in the ship in respect liability law to all cases of loss and injury caused without the privity or knowledge of the owner. But it is unnecessary to decide this point in the present case. The pendency of the proceedings in the limitedliability cause was a sufficient answer to the libel of the appellants." Touching the wide purpose of Congress, as indicated by the various provisions limiting the shipowner's liability, the court, in the same case, said: "If we look at the ground of the law of limited responsibility of shipowners, we shall have no difficulty in reaching the conclusion that it covers the case of injuries to the person as well as that of injuries to goods and merchandise. That ground is, that for the encouragement of shipbuilding and the employment of ships in commerce, the owners shall not be liable beyond their interest in the ship and freight for the acts of the master or crew, done without their privity or knowledge. It extends to liability for every kind of loss, damage, and injury. This is the language of the mari of all claims arising out of the conduct of the master and crew, whether the liability be strictly maritime or from a tort nonmaritime, but leaves him liable for his own fault, neglect, and contracts. If thus the owner's liability for a tort permitted or incurred through the master or crew, although nonmaritime, because due to a collision between the ship and a structure upon land, be one in respect to which his liability is limited, and he applies for the benefit of such limitation to the proper district court of the United States, "all proceedings," by the express terms of § 4285, Revised Statutes, "against the owner, shall cease." The procedure in any such case is prescribed by the 54th and 55th rules in admiralty, where it is said that the court shall, "on application of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims." Providence & N. Y. S. S. Co. v. Hill Mfg. Co. 109 U. S. 578, 27 L. ed. •107 1038, 3 Sup. Ct. Rep. 379, 617; Butler v. Boston & S. S. S. Co. 130 U. S. 527, 549, 32 L. ed. 1017, 1022, 9 Sup. Ct. Rep. 612. The case of Ex parte Phenix Ins. Co. 118 U. S. 610, 30 L. ed. 274, 7 Sup. Ct. Rep. 25, which was a petition for the benefits of the limited-liability act and to stay suits at common law against the owner for liability by fire carried to buildings on land, communicated from the ship, has been cited as holding that the limited-liability statute did not apply to such a claim, and that a court of admiralty could not draw to itself jurisdiction over any such claim. But that liability was incurred on September 20, 1880, a date antecedent to the act of 1884, which act expressly excluded liabilities which arose before its passage. That the decision by this court was not made until November, 1886, and that the opinion makes no reference to the act of 1884, is of no importance, since the act had no application. The decree is reversed, and remanded for further proceedings in accordance with this opinion. (222 U. S. 78.) J. B. CURTIN, Appt., V. H. C. BENSON et al. Messrs. Marshall B. Woodworth and J. B. Curtin, in propria persona, for appellant on original submission. Assistant Attorney General Harr for appellees. Mr. W. C. Prentiss for appellant on oral argument. Assistant Attorney General Harr for appellees. *Mr. Justice McKenna delivered the opinion of the court: This suit was brought in the superior court of Tuolumne county, state of California, against the appellee Benson, and others, who were soldiers under Benson, to enjoin them from driving appellant's stock from his lands, or by any means interfering with them, and from preventing appellant driv ing his stock to his lands over certain toll roads. The case was removed to the United States circuit court for the northern district of California, where, after hearing, final judgment was rendered dismissing the bill of complaint. The facts as agreed to, and established by evidence supplementing the agreement, are as follows: Appellant is the owner of certain lands within the Yosemite National Park (the park was regularly and legally established, act October 1, 1890, 26 Stat. at L. 650, chap. 1263, U. S. Comp. Stat. Supp. WOODS AND FORESTS (§ 8*)-NATIONAL PARKS REGULATIONS -PASTURING OF 1909, p. 572; Joint Res. June 11, 1906, 34 OF Stat. at L. 831, U. S. Comp. Stat. Supp. 1909, p. 584), and lessee of other lands therein. Leading to the lands there are certain toll roads, which were established many years prior to the creation of the park. CATTLE YOSEMITE VALLEY USE TIVE REGULATIONS. The Secretary of the Interior cannot make the exercise by an owner and lessee of lands within the Yosemite National Park, of his right to pasture his cattle upon such lands, and to use the toll roads leading thereto, conditional upon his compliance with certain rules and regulations prescribed by the Secretary for the government of the park, as to marking and defining the boundaries, or obtaining the written permission of the superintendent. [Ed. Note.-For other cases, see Woods and Forests, Dec. Dig. § 8.*] [No. 1.] Submitted April 11, 1910. Ordered for oral argument October 21, 1910. Argued October 25, 1911. Decided November 20, 1911. A PPEAL from the Circuit Court of the United States for the Northern District of California to review a decree dismissing a suit to enjoin the superintendent of the Yosemite National Park from interfering with the right of an owner and lessee of lands within such park to pasture his cattle upon his land, and to use the toll roads leading thereto. Reversed and remanded for further proceedings. See same case below, 158 Fed. 383. Appellee Benson is a captain in the United States Army and superintendent of the park, and, as such, it was and is his duty to enforce the rules and regulations prescribed by the Secretary of the Interior for the government of the park, and for this purpose he has a body of troops under his command. The Secretary established and promul gated the following rules: "9. Owners of patented lands within the park limits are entitled to the full use and enjoyment thereof; such lands, however, shall have the metes and bounds thereof so marked and defined as that they may be readily distinguished from the park lands. Stock may be taken over the park lands to patented lands with the written permission and under the supervision of the superintendent. "10. The herding or grazing of loose stock or cattle of any kind on the government lands in the park, as well as the driving of such stock or cattle over the same, is strictly forbidden, except in such cases where For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *82 *84 authority therefor is granted by the super- He further testified that he was detailed on intendent." Appellant claims the right, without complying with these rules, to drive his cattle over the toll roads and to graze them on his lands. On one occasion appellant placed cattle on his lands, and appellee Benson immediately removed them, and refused to allow them to be grazed thereon until appellant complied with the rules; and, prior to the commencement of the suit, refused to allow appellant to drive his cattle over the the toll roads to his lands, or to use the lands until he complied with the rules. The testimony gave some particularity to the facts as agreed to. It appeared that appellant has within the park a few hundred acres, and, it may be inferred, 23,000 acres in the vicinity. He asserted that he had not complied with the regulations, and did not intend to do so until required And it was admitted that the largest part of the land was unfenced. The following from the report of the superintendent of the park to the Secretary of the Interior for the year 1901 was put in evidence: "After due consideration, based upon the best evidence I have been able to obtain, I can see no objection to property owners and those holding leased land within the park limits grazing cattle near their own premises, under the supervision of the park authorities." $85 special duty to ascertain private land claims He testified further that he permitted Curtin to pasture his cattle on his land after he (Curtin) had it surveyed, but refused Curtin permission to fence according to the survey, the correctness of the survey being disputed. It is objected by the government that appellant is not entitled to the relief he prays because he does not come into court with clean hands. It is urged as a ground of the charge that the testimony exhibits his purpose to be to use his lands as a basis, and the toll roads as a means, to make wholesale trespasses upon the park lands. If the fact were established it might be hard to resist its effect, but it is not established. The evidence cited in support of it, and of which we have given the substance, refers to a period anterior to the time when this Testimony was introduced on the part of appellees (their counsel expressing a doubt of its admissibility) "to show that the regulation is a reasonable one, and the reason for it, and what effect will be produced if the regulation is not carried out." To the offer counsel for appellant replied that he denied the power of the Secretary. "It is simply a question of his power," he said, and stated that if defeated on that point, he could show that the rules were not reasonable under the circumstances. The court, saying that it understood, heard the evidence, which was to the following effect: Appellee Benson had been superintendent of the park since April 10, 1905, and on duty there for several years prior to that time. Numerous people claimed land in the park controversy arose. Indeed, anterior to the as their ranges, and a number of them had the places surrounded by fences, "sometimes time when the regulations were established inclosing, instead of 160 acres which they by the Secretary of the Interior, which was had, as high as several thousand acres of April 22, 1905; and the object of the testiland." They drove their cattle to the so- mony was to account for the regulations, called ranges and immediately let them and not to show the special and immediate loose, and they strayed throughout the en- justification of Benson's orders. tire reservation. "Senator Curtin's cattle not now extend the evidence beyond the have been in that condition for a great many special and limited purpose of its introyear." This he (Benson) knew of his per-duction. We do not think the case, as it sonal knowledge, because he was present at the time and had a correspondence with Mr. Curtin as far back as 1895, 1896, and 1897. We can was submitted to the circuit court, showed the ulterior purpose on the part of appellant to be a wilful trespass upon the lands of the park, but to be an honest assertion warranted Benson's order in regard to the of rights. On the merits of the case we may concede, arguendo, as contended by the appellees and disputed by appellant, that the United States may exercise over the park not only rights of a proprietor, but the powers of a sovereign. There are limitations, however, upon both. Neither can be exercised to destroy essential uses of private property. The right of appellant to pasture his cattle upon his land, and the right of access to it, are of the very essence of his proprietorship. May conditions be put upon their exercise such as appellees put upon them? In answering the question we shall assume, for the time being, that Benson has interpreted correctly the regulations of the Secretary of the Interior. His (Benson's) order is not, it will be observed, a regulation of the use of the land, as an order to fence the lands might be, but is an absolute prohibition of use. It is not a prevention of a misuse or illegal use, but the prevention of a legal and essential use, -an attribute of its ownership,-one which goes to make up its essence and value. To take it away is practically to take his property away; and to do that is beyond the power even of sovereignty, except by proper proceedings to that end. A law requiring an owner in appellant's situation to fence his land might be within such power, though of that we are not required to express an opinion. A law making the trespass of his cattle on other lands a criminal offense might be within such power. Such laws might be considered as strictly regulations of the use of property, of so using it that no injury could result to others. They would have the effect of making the owner of land herd his cattle on his own land, and of making him responsible for a neglect of it. We have assumed so far that Benson has exercised a power in accordance with the rules prescribed by the Secretary of the Interior. This, however, may be questioned. The orders of Benson are not that Curtin mark and define his lands, but that he do so "by an agreed understanding" with him (Benson), so that there could be no subsequent controversy about their boundaries. But this gives to Benson power to force a concession to his "understanding," and to require Curtin to submit to a limitation of the area of his land or a limitation of its uses. It is no answer to say that the power would not be arbitrarily or unreasonably exercised. It must be judged by what can be done under it, not by what may be done under it. It may be doubted, too, if the rules prescribed by the Secretary of the Interior toll roads. The rules did not deal with the toll roads at all. They do deal with "park lands," and authorize stock to be taken over them by the "written permission and under the supervision of the superintend ent." But even if it be held to apply to the toll roads, it is manifestly but a regulation of the transit of the stock merely, and not a use of the roads as a condition of the performance of something else. We, however, rest our decision on the ground of the want of power of the Secretary or the superintendent to limit the uses to which lands in the park, held in private ownership, may be put. Decree reversed and cause remanded for further proceedings in accordance with this opinion. (222 U. S. 88.) MARY N. HUSSEY, Administratrix of the Estate of Hannah S. Crane, Deceased; Mary Ives Crocker and Kate May Dillon Winship, Devisees of Kate D. McLaughlin, Deceased; and Richard H. Glassford, Executor of James T. Boyd, Appts., V. UNITED STATES. JUDGMENT (8 702*)-CONCLUSIVENESS-PERSONS CONCLUDED-UNITED STATES. 1. A judgment of ejectment against an officer of the United States in possession which the district attorney of the United of the property, rendered in an action in States, by direction of the Attorney General and the Secretary of the Treasury, appeared on behalf of the United States and conducted the defense, does not estop the United States in a subsequent action from contesting the title to the property. Cent. Dig. § 1227; Dec. Dig. § 702.*] [Ed. Note.-For other cases. see Judgment, COURTS (8 449*)-COURT OF CLAIMS-JURISDICTION CLAIMS AGAINST UNITED STATES. 2. The jurisdiction of the court of claims, under the act of February 25, 1905 (33 Stat. at L. 815, chap. 800), of a claim for the value of real property in the possession of the United States, is not confined to a determination of the exist ence of title in the claimants' grantor when the United States took possession, but extends to the question whether such grantor ratified a prior deed from her husband's executor, under which the United States claims, where the statute confers jurisdiction to hear the claim, and, if the to be "presented on either side" that the claimants "acquired a valid title to said real property, as claimed," to award them the market value at the time possession was taken, and in addition states that any defense may be pleaded by the United States as defendants. court finds from the evidence on file and [Ed. Note.-For other cases, see Courts, Dec. Dig. 449.] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 32 S. C.-3. 06. EXECUTORS AND ADMINISTRATORS ( 149*), claim may be pleaded by the United States -SALE OF PROPERTY-SETTING ASIDE- as defendants, as in cases within the genLACHES. eral jurisdiction of the court, and either party shall have the same right of appeal as in such cases." 3. A widow, who, being the devisee under her husband's will, received the purchase price of an estate in real property which was conveyed by his executor in the mistaken belief that it was subject to testamentary devise, and rested ten years without asserting her claim to the property after a decision of the highest court of the state to the effect that a moiety of such property was in law her community property, must be deemed to have ratified the sale, so as to preclude her grantees from asserting title as against the United States, claiming under the executor's deed. [Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. 149.*] There had been a reference of the claim by a committee of Congress under an act of Congress called the "Bowman act" [22 Stat. atL. 485, chap. 116, U. S. Comp. Stat. 1901, p. 748], in which the court made findings substantially as in the present case, and these findings were certified to Congress, which subsequently passed the act to which we have referred. The facts, summarized, are: that Congress provided (in 1852 [10 Stat. at L. 11 chap. 54]) for the establishment of a branch mint in the state of California, and for that purpose authorized the Secretary of the Treasury to make a contract for the erection of a building and procuring the necessary machinery at a sum not exceeding $300,000. The Secretary of the Treasury, in execution of the statute, entered into a contract for the erection and equipment of the mint, on April 15, 1853, with Joseph R. Curtis, for the sum of $239,900. The title to the property was to be satisfactory to the Attorney General of the United States. A supplemental contract was subsequently made for the purchase of formed by Curtis, and on May 2, 1854, an adjoining lot. The contracts were perhe executed a deed conveying both lots to Mr. Justice McKenna delivered the opin- the United States, which deed and the title ion of the court: The appellants brought this suit in the court of claims for the sum of $40,000, that amount being, it is alleged, the value of their one sixth of certain real estate in the city of San Francisco at the time possession was taken of the property by the United States. Jurisdiction of the suit was given by the act of Congress approved February 25, 1905 (33 Stat. at L. 815, chap. 800), which is as follows: "That jurisdiction be, and the same is hereby, conferred on the court of claims to hear the claim of Hannah S. Crane and others for the value of certain real property in the city of San Francisco, in the state of California, in which they claim an undivided one-sixth interest, upon the evidence already filed in said court and such additional legal evidence as may be hereafter presented on either side; and if said court shall find that said parties acquired a valid title to said real property, as claimed, said court shall award the said parties the market value of the undivided one sixth of said property at the time possession was taken of it by the United States were approved by the Attorney General, and all of the sums due under the contracts were paid to Curtis. On April 15, 1853, the time of the making of the first contract, the property was owned in fee simple by and was in the possession of Curtis, Perry, & Ward, a firm composed of Joseph R. Curtis, Philo H. Perry, and Samuel H. Ward. The latter died while on a voyage to the Sandwich Islands. This was not known, and Curtis made the contract for the benefit of the firm. Ward left a will appointing his partners his executors. The will was probated, but Perry alone qualified as executor. The value of the whole lot named in the contract of April 15, 1853, was appraised at $40,000, and after its appraisement Perry conveyed all of Ward's interest in it to Curtis for the sum of $13,333.33, payment for which he received. The sale was made by Perry as executor under the authority given him by the will. By the terms of Ward's will, nine tenths of his estate was devised to his wife, Emily H. S. Ward, and her proportion of the sum so received for Ward's interest was paid to her and accepted by her with For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes and any defense, set-off, or counter |