There was another view under which that law would have cured any defect in McLean's filing. By virtue of certain other rulings of the land department it was held, if there existed a pre-emption application on file at the time of the filing of the map of the general route with the commissioner of the land office or secretary of the interior, the land did not pass to the plaintiff, but was excluded from its grant. I believe the reasoning which resulted in this ruling was based upon the view that the provisions of the act which excludes certain lands from the grant of plaintiff which were in a certain condition at the time of the definite fixing of plaintiff's road applied to the fixing of the general route of its road. If Scott's claim was a subsisting one at the time of the fixing of the general route of plaintiff, under this ruling it did not pass to plaintiff. In view of this ruling, the second section of the said act of 1876 was passed. With this view of the law the ruling of acting secretary of the interior in considering the application of Mrs. McLean, now Maria Amacker, was correct, if she could be subrogated to the rights of her husband, McLean, under the law of June 15, 1880; for the land, not passing to plaintiff, was subject to entry. The secretary was not confronted with the fact of the abandonment of Scott before this general route was fixed. The intention of congress was to validate all pre-emption and homestead entries made under these rulings of the land department, whether erroneous or not, where the applicants complied with the pre-emption and homestead laws. If section 6 bears the construction which the land department has given the same, as well as some courts, it should be considered as modified by this act of 1876.

Under the view which this court has held of the provisions of said section 6 of the grant to plaintiff, McLean's application was valid. In the case of Railroad Co. v. Sanders, 46 Fed. Rep. 239, and 47 Fed. Rep. 604, this court held that the effect of section 6 of said act was not to withdraw any lands from sale, entry, or pre-emption at the time of the filing of the plat of the general route of plaintiff's road. The language is that the lands hereby granted-that is, by the act in which said section is found-shall be reserved from sale, entry, and pre-emption. In the case of Barney v. Railroad Co., 117 U. S. 228, 6 Sup. Ct. Rep. 654, the supreme court, in considering a similar grant, defined the term "granted lands," and said: "They are those falling within limits specially designated, and the title to which attached when the lands are located by an approved and accepted survey of the line of the road filed in the land department as of the date of the act of congress." In several cases the supreme court has held that the title attaches only when the route of the road is definitely fixed. St. Paul & P. R. Co. v. Northern Pac. R. Co., supra; Salt Co. v. Tarpey, supra; Wisconsin Cent. R. Co. v. Price Co., supra. The granted lands had not then been designated and made known at the time of the location of the general route of plaintiff's road, and not until the location of the definite route thereof. I do not see, then, how they could be reserved from sale, entry, and pre-emption until the definite route of said road was fixed, and they became known. The view that unknown and undescribed lands can be withdrawn from sale, entry, or pre-emption does not seem to me possible. I know it is sometimes

claimed that the general route should be substantially the same as the fixed route. There is nothing in the law which requires this, and, as a matter of fact, this is not at all places the same, even substantially.

There is one matter for consideration in considering when the local land office had notice of the withdrawal of the lands along the general route of plaintiff's road. If they were withdrawn by law, then there was notice of this law, when approved by the president. But I do not think that the above act of 1876 had this in mind. It was endeavoring to make valid entries made under rulings of the land department, and the notice referred to was the one given by the general land office to the local offices. In any view, except under the provisions of section 2 of the act of 1876, the filing of McLean was a valid one, and it was not valid under that section on account of the abandonment by Scott of his rights before the filing of the plat of the general route of plaintiff's road. McLean could have legally perfected his title, according to my view. He did not do this. There is nothing to show that he resided on the same, or in any way complied with the homestead laws. In accordance with the rules of the land department, notice was served on him that he should within 30 days show cause why his entry should not be canceled. He failed to show cause, and on the 11th day of September, as before stated, his entry was canceled, because he had not complied with the law in making proper proofs.

It was urged by defendants, in the argument of this cause, that it did not appear that proper notice was given to McLean. The register and receiver, in their letter of July 3, 1879, recite that McLean had, among others, received due notice, in accordance with the circular of the commissioner of the general land office, to show cause why his entry should not be held for cancellation. In the letter of September 11, 1879, the commissioner of the general land office recites that due notice was given McLean. My attention was not called to any law providing for preserving these notices, or the manner of the service thereof. I think, under these circumstances, this comes within the rule expressed by the supreme court in the case of Cofield v. McClelland, 16 Wall. 331. In that case the court was considering a statute of the territory of Colorado that required a probate judge to give a certain notice of the entry of a town site, under the act of congress. There was a failure of proof as to this notice, and in regard to the matter the court said:

"We think this is a case in which the presumption applies that the officer has done his duty, especially as no provision was made in the act for procuring evidence that notice had been published. The case comes within the rule so well settled in this court that the legal presumption is that the surveyor, register, governor, and secretary of state have done their duty in regard to the several acts to be done by them in granting lands, and therefore surveys and patents are always received as prima facie evidence of correct

ness.'

What was the effect of the cancellation of McLean's entry? In the case of Galliher v. Cadwell, 145 U. S. 368, 12 Sup. Ct. Rep. 873, the supreme court said of the cancellation of a homestead entry under circumstances almost identical with the one at bar:

"At that time, and by that act, all her rights of every kind and nature were ended, and the land was fully restored to the public domain, free for occupation and purchase by any other citizen, as though there never had been any semblance of occupation or entry."

Taking this rule, and applying it to this case, we find that the land in dispute was, on the 15th day of June, 1880, when the act above recited was passed, as free for occupation and purchase as though there had never been the entry of McLean attached thereto. What was the effect of that act? It did not grant to McLean any interest in the land in dispute. It did not amount to a sale or an entry of the land. He had the privilege to enter the land until the rights of others attached thereto. He certainly could not wait indefinitely before exercising this privilege or right. He did nothing towards exercising this right for over two years, and died without making any move to exercise this privilege after the same was given him by that act. This privilege was not a claim upon the land. In the case of Railroad Co. v. Sanders, supra, this court took occasion to consider to a limited extent the term "claim" as used in the grant to plaintiff, and then said:

"I would not say that every assertion of title to land would be entitled to the term 'claim.' Perhaps acts sufficient should accompany the assertion of title to entitle the claimant to a standing in a court of justice to contest the right to the possession of the premises."

The mere privilege to enter land, unaccompanied by any acts, if treated as a claim, would incumber all the public domain subject to entry and pre-emption to a claim, for every citizen has the privilege of entering or pre-empting the same. By virtue of the act itself under which defendants claim this privilege of entry or purchase of the land, concerning which this privilege or right was given, it was subject. to entry as a homestead by any qualified citizen at any time before this right was exercised. Certainly, then, the intention of congress was not to incumber this land with a claim in favor of McLean. It is urged, however, that the provision of the statute making the grant to plaintiff is that the land which passes to it must be free from any right as well as any claim at the time of the definite fixing of its road. The term "right," as here used, does not appear to me to be very definite, and its legal meaning not altogether certain. It will be observed that the land must be free from this right. There is a difference between a right which is given an individual, and a right attached to land. Bouvier, in his Law Dictionary, defines "right" to be "a well-founded claim." In the case of Newkerk v. Newkerk, 2 Caines, 345, the court said, "Right is equivalent to ‘all right.'" "Right" and "estate" are synonymous, at least in wills, with each other. Rapalje & Lawrence's Law Dictionary, in defining "right," said of it: "Right to bring an action for possession of land given the owner." states the action to recover the possession of land is termed the "action of right." In such an action the plaintiff claims some estate in the land which is the subject of the action which entitled him to the possession thereof. I feel confident that the right mentioned in plaintiff's grant was some estate in land, and not a privilege which pertained to the individual; and I cannot think that the said act of 1880

In some

gave to McLean any right in the land. If so, it was in some way a grant to some estate in the land. Such, I am sure, was not the intention of congress in passing that act. If an estate in the land, would it pass to his heirs or administrator? How would it be subject to distribution? The suggestion of such questions show that certainly no estate of any kind was granted to McLean in the land.

There is one other point presented in considering that statute.

It

is very doubtful as to whether any right or privilege was given to Mrs. McLean thereunder. The widow is not named therein as a beneficiary. In the case of Galliher v. Cadwell, supra, when considering this statute the supreme court said:

"And the argument is worthy of consideration that because in some acts of congress she is specifically named as entitled to rights originally vested in her husband, and the omission to specify her in the act in question was an intentional exclusion of her from the privileges named therein, and that congress did not intend to grant to others than the homesteader and the persons holding under him by instrument in writing any rights by reason of his incompleted homestead entry."

In support of this view the court cites Suth. St. Const. § 327, and cases cited. In looking at that section we find this language:

"Where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others; there is a natural inference that its application is not intended to be general."

While the court in that case rested its decision upon the ground of laches, still, all the way through the same, it treats the fact that the widow was not named in the statute of 1880 as an important one in the consideration of the case. I do not see how the provision of section 2291, Rev. St. U. S., can be considered a supplement to that of 1880, above named. That statute applies to another directly. The said statute of 1880 does not purport in any way to supplant or take the place of any part of said section. It is an independent statute by itself. While in pari materia with the other statutes for the disposal by general laws of the public domain, and to be construed with them, there is nothing which will warrant a court in taking a clause of one statute, which applies to a particular subject and condition, and make it apply to a totally distinct statute. But, allowing that part of said section which gives the privilege to a widow to complete the homestead entry of her husband applies, and can it be said that it conveys any estate to her in the land, any interest in it whatever? We have seen the land become public domain, free to any citizen to occupy and pre-empt or enter the same upon the cancellation of McLean's entry. Considering, then, all of these statutes, and it appears to me that the land in dispute was such as the United States had full title to, not reserved, sold, granted, or otherwise appropriated, and free from any pre-emption or other claim or right, at the time when the definite route of plaintiff's road was fixed, and a map thereof filed in the office of the commissioner of the general land office. By the terms of the grant it then passed to plaintiff. Neither McLean nor his widow had then exercised the privilege granted them, if any was granted to the latter, by the act of 1880. The right granted to McLean by the act of 1876, above referred to,

was lost by his failure to comply with the statute that required his final proofs to be made within a certain time, and the cancellation of his entry in 1879. Considering, as I have steadily maintained we should, the condition of the land at the time the definite line of plaintiff's road was fixed, and the grant to it received precision, I cannot see how I can reach any other conclusion than that plaintiff is the owner of the land in dispute. I therefore find that the plaintiff is the owner of the land described in the complaint herein, and entitled to the possession thereof; that defendants are in possession of the same without its consent, and wrongfully. It is therefore ordered that judg ment be entered in this case in favor of plaintiff and against defendants for the possession of the land described in the complaint, and for its costs of suit.

HAGUE v. AHRENS.

(Circuit Court of Appeals, Third Circuit. November 10, 1892)

No. 3.

1. LANDLORD AND TENANT-LEASE-ASSIGNMENT-CONDITIONS AND COVENANTS. A lease contained the following clause: "This lease not to be sold, assigned, or transferred without the written consent of the party of the first part." Held, that this was a covenant, and not a condition, and the lease would pass by an assignment without the lessor's consent, so that the assignee could maintain ejectment under it.

2. SAME-INSTRUCTIONS-SURRENDER OF LEASE.

A request to charge that a surrender of a lease had occurred by operation of law because of the facts therein stated contained only a part of the facts bearing on the question of surrender. Held, that the court properly refused the request, and submitted the question to the jury on all the evidence. 3. SAME-EJECTMENT-BURDEN OF PROOF.

Where, in an action of ejectment, based upon a lease from the owner, defendant relies on an alleged surrender thereof, the burden is on him to show it, and that burden is not shifted merely because the evidence as to the surrender went in with plaintiff's proofs.

In Error to the Circuit Court of the United States for the Western District of Pennsylvania.

Action of ejectment brought by George H. Ahrens against W. W. Hague. Judgment for plaintiff. Defendant brings error. Affirmed.

William H. Webb, being the owner of certain lands, made a lease thereof for 15 years to O. & J. Siggins, for the purpose of mining for oil and gas. The lease contained the following clause: "This lease not to be sold, assigned, or transferred without the written consent of the party of the first part.' The lease also provided that the mining operations therein contemplated should be prosecuted with diligence, and that no cessation of work should continue over 30 days, and also that the lessees might terminate and surrender the lease at any time after it should be proved by drilling one or more wells that oil could not be found on or under the land in paying quantities. The lessees never entered under the lease, but, without the consent of the lessor, assigned it to the Citizens' Gas Company, who entered and drilled a well upon the land. After obtaining some gas. which they did not utilize, they drilled for a short time, when they lost or "stuck their drill in the well, and wholly ceased operations upon the land, and removed the engine and boiler used in drilling. Some months after the Citizens' Gas Company ceased drilling, Webb made another lease to Hague, (the defendant,) who, finding the possession vacant, entered and drilled a well thereon, which produced gas in large quantities, and rendered the land profitable to the owner and lessee. While so engaged, the Citizens' Gas Company made no claim of any right or interest in the premises, but some time thereafter executed a paper purporting to