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rendered by Judge Deady, (Gilmore v. Railway Co., 18 Fed. Rep. 866, on page 870,) I will say that if Judge Deady meant, (as I doubt,) to express the opinion that when an employe was ordered to do work outside of his employment, and was injured, the company was liable, from that very fact I do not think his view of the law is sustained by modern authorities.

In this case the plaintiff had been in the employ of different railroad companies for nearly 12 years. He was a man of mature years. He was acquainted with the dangers incident to the coupling of cars. He had at times, when necessity demanded, performed such work. When ordered to perform that work, which, under the evidence, was undoubtedly outside of his ordinary employment, he made no objections, but says that he performed the duty under the fear that, if he refused to do it, he would be discharged by his immediate superior, the road master. It does not appear that he made any objections to the performance of this duty, or that the road master made any threats to discharge him unless he performed it. The plaintiff, with other employes of the company, was engaged in clearing a wreck of a train of railroad cars from the track of the defendant. There were no brakemen present whose duty it was to perform the work performed by plaintiff. When ordered to bring up the derrick car, he immediately started to perform the duty. In order to bring up the derrick car it was necessary for him to act as coupler in connecting the tender to the same, and he was injured in so doing. He stated at the time that no one was in fault but himself. The question here presented is one that does not apply to the railroad company only. If a merchant who had suddenly been called upon to attend to some unexpected business, should order his bookkeeper or one of his clerks to drive a horse and buggy, in which was his wife, to his residence, and the horse should run away, and the employe should be injured, I hardly think that he should be entitled to damages if the master was without fault, merely because he was performing a service for which he was not employed. And I might enumerate many other incidents of the same kind.

Wood on Master & Servant, § 89, lays down the rule that there are services that an employe may be required to perform that are outside of his contract of employment, which will not break that contract. I have no doubt that many employes of a railroad company, in times of emergency, are called upon to perform many acts which are outside of their regular employment. The engineers and firemen work in clearing away wrecks, and in helping to put cars upon the track, and, where this work is done without objection, and a party so engaged is injured, without any actual negligence on the part of the company, I do not think the company should be liable. The motion to instruct the jury to find a verdict for the defendant is sustained.

NORTHERN PAC. R. CO. v. HINCHMAN et al.

(Circuit Court, D. Montana. November 14, 1892,)

1. PUBLIC LANDS-RAILROAD GRANTS-LANDS EXCEPTED-"PUBLIC LANDS" DEFINED.

The lands in the Bitter Root valley above the Lo Lo Fork were not "public lands," such as could pass to the Northern Pacific Railroad by the grant expressed in the act of July 2, 1864, § 3, as of that date; for by the treaty of 1855 with the Flathead Indians it was provided that these lands should be surveyed and examined, and if, in the judgment of the president, they proved to be better adapted to the wants of the Flathead tribe than the general reservation therein provided, then such portions as were necessary should be set apart as a separate reservation for the tribe, and that they should not be open to settlement until the decision of the president was made known; and such decision was not made known until 1871, when the president decided not to make the lands a reservation. 2. SAME-PRIOR APPROPRIATION.

By the act of June 5, 1872, (17 St. at Large, 226,) these lands were excluded from the operation of the general pre-emption and homestead laws. Certain rights of pre-emption, without cost, were given to Indians actually occupying and cultivating any portion thereof. Special provisions were made as to the manner of selling the remainder to settlers, and a special account was directed to be kept of the proceeds, a portion of which was to be set aside and expended by the president for the benefit of the Indians. Held, that by this act these lands were reserved for a special purpose, so that they did not pass to the Northern Pacific Railroad Company on the subsequent filing of its plat of definite location, although they were within the limits of the grant.

3. SAME.

This reservation by congress of the land in question was not in violation of any contract rights acquired by the railroad company under the grant. for the grant only attached, on the definite location of the road, to lands to which the United States had "full title, not reserved, sold, granted, or otherwise appropriated,"

4. SAME WITHDRAWAL FROM SALE, ETC.

Section 6 of the granting act, which directs the president to cause the lands to be surveyed for 40 miles in width, on both sides of the entire line, "after the general route shall be fixed," and declares that the odd sections granted shall not be liable to "sale or entry or pre-emption before or after they are surveyed, except by said company, as provided by this act," did not operate to reserve or withdraw such lands from sale or other disposition by the government before the filing of the map of definite location with the commissioner of the general land office. Railroad Co. v. Sanders, 46 Fed. Rep. 239, 47 Fed. Rep. 604, followed.

5. SAME.

Even if it be conceded that this reservation or withdrawal could operate at the time the "general route" was fixed, the reservation was only from "sale or entry or pre-emption," and these terms do not include such an appropriation as was made by the act of 1872.

6. SAME.

The fact that in 1874 an act was passed extending the homestead law to all settlers on these lands who might desire to take advantage thereof did not take the lands from the special appropriation made by the act of 1872, and restore them to the same condition as the mass of the public domain, so as to make the grant attach thereto on the subsequent fixing of the definite route by the filing of the plat thereof with the commissioner of the general land'office.

At Law. Action in ejectment, brought by the Northern Pacific Railroad Company against James R. Hinchinan and others. Tried to the court on an agreed statement. Judgment for defendants.

F. M. Dudley and W. E. Cullen, for plaintiff.
Leslie & Craven, for defendants.

KNOWLES, District Judge. This is an action in the nature of ejectment, brought by plaintiff to recover of defendant and others the possession of certain lands in the Bitter Root valley, Mont., described as section 11 N., range 20 W., in the county of Missoula, territory of Montana. Since the commencement of this suit, Montana has become a state in the Union. The case was submitted to the court upon an agreed statement of facts. From this it sufficiently appears that plaintiff received a grant to the premises in dispute, unless it is by some operation of law excluded therefrom. It is within 40 miles of the line of the railroad route of plaintiff as located, built, and accepted, and is an odd section. It also appears that defendant settled upon 160 acres of said section on the 3d day of October, 1884, claiming the same as a homestead; that he improved it, and on December 5, 1887, made his final proofs, and pre-empted the same, and on the 6th day of November, 1889, he received a patent to the same from the United States.

It is also agreed that the Flathead Indians made a treaty with the United States in 1855 in regard to their lands, which treaty was ratified by the senate, March 8, 1859; that the lands in the Bitter Root valley above the Lo Lo Fork, among which are situated the lands in dispute, had been carefully surveyed before 1871, and the president had decided that the same had proved not to be better adapted to the wants of the Flathead tribe than the general reservation provided for in said treaty, and had issued an order to that effect on November 14, 1871. In that order it was provided that any Indians residing in the Bitter Root valley who desired to become citizens and reside upon the land which they then occupied, not exceeding in quantity what is allowed under the homestead and preemption laws to all citizens, should be permitted to remain in said valley upon making known to the superintendent of Indian affairs for Montana territory, by the 1st day of January, 1873, their intention to comply with these conditions. In the above order referred to there was a provision that said Indians should be removed to the general reservation provided therefor.

It was also agreed that from the time of making said treaty the Indians continued to occupy and claim the lands in the Bitter Root valley, and were so occupying and claiming at the time of said order of the president, November 14, 1871, and that they continued in possession and claimed and were there in August, 1872, and one of their chiefs, Charlot, is yet there, with several hundred Indians under him.

It is also agreed that since June, 1872, in pursuance of the act of congress of the 5th of that month, there had been issued 54 patents for parts of said Bitter Root lands above Lo Lo Fork to various ones of said Indians, and 3,240 acres of the said lands covered by these patents are within odd sections, and within 40 miles of said road, and are yet in the possession of and claimed by said Indians. That said Indians, however, have refused to accept said patents for fear of

severing their tribal relations; that Charlot, the chief of said Indians, lives upon one section of said land, and has done so since 1855. It is also agreed that there is no claim on the part of the Indians residing in the Bitter Root valley that the same or any part thereof is an Indian reservation, or that the Flathead tribe, to which they belong, has never parted with the Indian title thereto; nor is the tract in controversy claimed by any of said Indians; nor was it so claimed by any of them at the date of the filing of the map of the definite location of plaintiff's road, or at the date of the entry thereof by defendant; nor was the said tract of land embraced in any of the patents mentioned above as having been issued to, but not accepted by, said Indians.

The third section of the act incorporating plaintiff, and making a grant of land to it, provides-

"That there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad, wherever it passes through any state, and whenever, on the line thereof, the United States have full title not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office."

The treaty above referred to with the Flatheads contained this section:

"It is moreover provided that the Bitter Root valley, above the Lo Lo Fork, shall be carefully surveyed and examined, and if it shall prove, in the judg ment of the president, to be better adapted to the wants of the Flathead tribe than the general reservation provided for in this treaty, then such portions of it as may be necessary shall be set apart as a separate reservation for said tribe. No portion of the Bitter Root valley above the Lo Lo Fork shall be opened to settlement until said examination is had, and the decision of the president made known."

As above stated, this surv y was made, and in 1871 the president decided not to make said lands a "reservation for said Indians." From these facts it is evident that these lands never were embraced in what is termed an "Indian Reservation." They were public lands, which, by the terms of the treaty with the Indians named, the president might devote to such a reservation. In the case of Phelps v. Northern Pac. R. Co., reported in 1 Dec. Dep. Int. 381, Secretary Teller, of the interior department, rendered a decision upon the very point at issue in this case, and held that these lands in the Bitter Root valley did not pass to plaintiff in its grant. He bases his decision upon the ground, in part, that the lands were at the time of the grant to said company reserved, and adopts this language from the case of Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733: "Every tract set apart for special uses is reserved to the government to enable it to enforce them." There are other declarations in this same opinion last named which appear to me to have a great bearing upon the

point here presented. The grant to plaintiff was of "public lands." The meaning of these terms is very important in considering this question. Have they a defined meaning in the legislation of congress concerning the public domain? In that decision, upon this point, the supreme court said:

"But only public lands owned absolutely by the United States are subject to survey and division into sections, and to them alone this grant is applicable. It embraces such as could be sold and enjoyed, and not those which the Indians, pursuant to treaty stipulations, were left free to occupy."

The court here was considering a railroad grant, which contained the term "public lands," and those transferred to the railroad company. Again:

"Since the land system was inaugurated it has been the settled policy of the government to sell the public lands at a small cost to individuals, and for the last 25 years to grant them to states in large tracts, to aid in work of internal improvement. But these grants have always been recognized as attaching only to so much of the public domain as was subject to sale or other disposal, although the roads of many subsidized companies passed through Indian reservations."

In the case of Bardon v. Railroad Co., 145 U. S. 535, 12 Sup. Ct. Rep. 856, the supreme court again reviewed this question. In the opinion, Justice Field, speaking for the court, said in relation of the very grant under consideration:

"The grant is of alternate sections of public land, and by 'public land,' as it has been long settled, is meant such land as is open to sale or other disposition, under general laws. All land to which any claims or rights of others have attached does not fall within the designation of public lands."

Again, that distinguished justice, referring to the fact that he, with other members of the supreme court, had dissented from the decision in the Leavenworth Case, supra, said:

"And this writer, after a much larger experience in the consideration of public land grants since that time, now readily conceded that the rule of construction adopted, that, in the absence of any express provision indicating otherwise, a grant of public lands only applies to lands which are at the time free from existing claims, is better and safer, both for the government and to private parties, than the rule which would pass property subject to the liens and claims of others. The latter construction would open a wide field of litigation between the grantees and third parties."

In the case of Newhall v. Sanger, 92 U. S. 761, the supreme court said the words "public lands" are habitually used in our legislation to describe such as are subject to sale or other disposal, under general laws. The conclusion reached by these decisions is that only such lands as are public lands at the date of the grant, the same being one in praesenti, pass to the company; and that all lands which are not subject to disposal, under the general laws of congress, are not public lands; and that lands to which any claim or right has attached are not subject to such disposal as long as it exists.

In this case the lands of the Bitter Root valley were, by treaty with the Flathead Indians, reserved from settlement, and conse quently from sale or disposal, under the general pre-emption or homestead laws. If they could not be settled upon, they would not come within such laws. Then the Flathead Indians were allowed to

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