[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 17, 31-44; Dec. Dig. § 5.1 35 Sup. Ct. Rep. 370, recently decided. The entryman, but has not yet discharged its appellants, however, insist that that case duty to give him a patent. did not involve switching, but transportation; and further, they claim that the Pennsylvania road was there ordered to discontinue discrimination- while here the appellants are required by an allirma-Argued May 6, 1915. Decided June 1, 1915. tive order to devote their property to the [No. 266.] N ERROR to the Supreme Court of the use of a parallel and competing carrier.State of Idaho to review a decree which But the alleged differences do not serve to the District Court is aflirmed. Mr. Justice Pitney concurs in the result. Mr. Justice McReynolds took no part in the consideration and decision of this (277 V. 8. 612) GLENN R. BOTHWELL, PIT. in Err., V. BINGHAM COUNTY, Idaho, et al. TAXATION (8 5)-PUBLIC LAND-ARID LANDS. Proceedings for the acquisition of title to arid lands under the Carey act of August 18, 1891 (28 Stat. at L. 422, chap. 301), § 4.† and the amendatory acts of June 11, 1896 (29 Stat. at 1. 434, chap. 420), and March 3, 1901 (31 Stat. at 1 1185, chup. do), 3, have reached the point where the land may be taxed by the state when nothing remains to be done by the entryman in order to entitle him to a patent, and the United States has no longer any beneficial interest in the land, having patented the same to the state, which has received the legal title as trustee for the allirmed a decree of the District Court for Bingham County, in that state, in favor of defendants in a suit to enjoin a proposed sale for taxes. Aflirmed. See same case below, 24 Idaho, 125, 132 The facts are stated in the opinion. Messrs. R. W. Adair, J. II. Peterson, Attorney General of Idaho, and E. G. Davis for defendants in error. Mr. Justice Van Devanter delivered the opinion of the court: This was a suit to enjoin a proposed sale for taxes of 150 acres of land in Idaho acquired under the Carey act of August 18, 1894, 28 Stat. at L. 422, chap. 301, § 4, Comp. Stat. 1913, § 4685, and the amendatory acts of June 11, 1896, 29 Stat. at L. 434, chap. 420, and March 3, 1901, 31 Stat. at L. 1188, chap. 853, § 3, Comp. Stat. 1913, § 4687, the objection urged against the sale being that the proceedings for the acquisition of the title had not at the time of the tax assessment reached the point where the land could be taxed by the state. At a hearing upon an agreed statement of facts the defendants prevailed and the supreme court of the state affirmed the judgment. 24 Idaho, 125, 132 Pac. 972. The tract was part of upwards of 50,000 acres of arid lands which were segregated from the public domain in July, 1899, pursuant to an agreement, sanctioned by the Carey act, whereby the state engaged to have the lands irrigated, reclaimed, and brought under cultivation, and to dispose of them only to actual settlers in tracts of not exceeding 160 acres. Originally the act required that the reclamation be accomplished within ten years after the date of the act, but the amendment of 1901 directed that the ten years be computed from the approval of the state's application for the segregation, and empowered the Secretary of the Interior, in his discretion, to prolong the period five years. In the original act there was a provision that "as fast as any state may furnish satisfactory proof, according to such rules and regulations as may be prescribed by For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ↑ Comp. St. 1913, § 4685. tt Comp. St. 1913, § 4687. the Secretary of the Interior, that any of said lands are irrigated, reclaimed, and irrigated, reclaimed, and occupied by actual settlers, patents shall be issued to the state or its assigns for said lands so reclaimed and settled," and the amendment of 1896 brought into the act a further provision that "when an ample supply of water is actually furnished in a substantial ditch or canal, or by artesian wells or reservoirs, to reclaim a particular tract or tracts of such lands, then patents shall issue for the same to such state without regard to settlement or cultivation." Following the segregation in 1899 the state took appropriate steps to provide canals and a supply of water whereby the lands could be irrigated, reclaimed, and brought under cultivation, and before December, 1910, caused to be completed a suitable system of canals actually furnishing an ample supply of water to irrigate and reclaim 49,858.16 acres, including the tract in question. Proof of this was made to the Secretary of the Interior in the mode prescribed by existing regulations (see 26 Land Dec. 74; 37 Land Dec. 624, 631), and that officer, finding the proof sufficient, directed that the 49,858.16 acres be patented to the state. This direction This direction was given December 21, 1910, and the patent was issued January 9, 1911. While the canal system was in process of completion, and after water was provided for some of the lands, the plaintiff, who possessed the necessary qualifications and had acquired the requisite perpetual water right, applied to the state to make entry of the tract in question and made the prescribed preliminary payments. See Idaho Rev. Codes 1908, § 1626. The entry was allowed and the plaintiff settled upon the tract, made it his place of residence, irrigated and reclaimed it, and brought it under actual cultivation. Thereafter, on June 25, 1909, he submitted to the state due proof of what he had done, paid the balance of the purchase price, and received from the state a certificate of final entry. See Rev. Codes, § 1628. Nothing more was required of him by the Carey act, by the law of Idaho, or by any regulation made under either. He received a patent from the state February 11, 1911, about a month after it received one from the United States. January 9, 1911, the day the state received a patent from the United States, was the date as of which property was required by the law of Idaho to be assessed for taxation for the ensuing year. Rev. Codes, § 1653. This tract was so assessed, and the tax in question was based upon that assess ment. The assessment, the tax, and the intended sale were all free from objection, if the tract was within the taxing power of the state on January 9, 1911. At that time the United States no longer had any beneficial interest in the tract. Every condition upon which the ownership was to be transferred to the plaintiff had been fully performed. Thus the equitable title had passed to him and he had a present right to the legal title. The state received the latter as a trustee for him and was in duty bound to give him a patent,a duty which it promptly discharged, although not until after the time for the assessment. Neither the Carey act nor the agreement thereunder with the state purported to exempt the land from taxation, or to take it out of the settled rule respecting the taxing of lands acquired under the public land laws. According to that rule, as this court frequently has said, when the proceedings for the acquisition of the title have reached the point where nothing more remains to be done by the entryman, and the government no longer has any beneficial interest in the land, and does not exclude the entryman from the use of it, he is regarded as the beneficial owner and the land as subject to taxation, even though the duty of passing the legal title to him has not been discharged, the principle underlying the rule being that one who has acquired the beneficial ownership of the land, and is not excluded from its enjoyment, cannot be permitted to use the fact that the naked legal title remains in the government to avoid his just share of state taxation. Carroll v. Safford, 3 How. 441, 11 L. ed. 671; Witherspoon v. Duncan, 4 Wall. 210, 18 L. ed. 339; Wisconsin C. R. Co. v. Price County, 133 U. S. 496, 505, 33 L. ed. 687, 692, 10 Sup. Ct. Rep. 341; Winona & St. P. Land Co. v. Minnesota, 159 U. S. 526, 530, 40 L. ed. 247, 249, 16 Sup. Ct. Rep. 83; Hussman v. Durham, 165 U. S. 144, 147, 41 L. ed. 664, 665, 17 Sup. Ct. Rep. 253; Sargent v. Herrick, 221 U. S. 404, 406, 55 L. ed. 787, 788, 31 Sup. Ct. Rep. 574. That the title was being passed through the state to the entryman or purchaser rather than by a direct conveyance is immaterial, the determinative fact being the absence of any beneficial interest in the land on the part of the United States at the time of the assessment. It follows that no Federal law or right was infringed by the tax. Judgment affirmed. (237 U. S. 648) ST. LOUIS, IRON MOUNTAIN, & SOUTH-1 COURTS (§ 399*) - ERROR TO THE STATE v. 4. The excessiveness of an award for J. T. CRAFT, Administrator, etc. pain and suffering of a deceased railway DEATH (77)-EVIDENCE-SUFFICIENCY-employee in an action brought under the employers' liability act of April 22, 1908 CONSCIOUS SUFFERING. 1. The jury reasonably could find that (35 Stat. at L. 65, chap. 149, Comp. Stat. a railway employee endured conscious pain 1913, § 8657), as amended by the act of and suffering during the half hour which April 5, 1910 (36 Stat. at L. 291, chap. 143, he survived after a car had passed partly | Comp. Stat. 1913, § 8662), is a question of over his body, where there was evidence fact which is not open to revision in the that while he was pinned beneath the car Federal Supreme Court on writ of error he was "groaning every once in a while," to a state court. and that during the efforts of others to ex- [Ed. Note. For other cases, see Courts, Cent. tricate him from his position "he would Dig. § 1059, 1030; Dee. Dig. § 399.) raise his arm" and "try to pull himself." [Ed. Note. For other cases, see Death, Cent. Dig.96; Dec. Dig. § 77.") [No. 776.] Decided June 1, DEATH (82)--DAMAGES-FEDERAL EM- Argued May 12, 1915. PLOYERS' LIABILITY ACT CONSCIOUS 1915. N ERROR to the Supreme Court of the State of Arkansas to review a judg ment which modified, and affirmed as modified, a judgment of the Circuit Court of Jackson County, in that state, in favor of plaintiff in an action under the Federal employers' liability act. Affirmed. See same case below, - Ark. —, L.R.A. 2. Such pain and suffering as are substantially contemporaneous with death, or are mere incidents to it, as well as the short periods of insensibility which sometimes intervene between fatal injuries and death, afford no basis for a separate estimation or award of damages under the act of April 5, 1910 (36 Stat. at L. 291, chap. 143. Comp. Stat. 1913, § 5662), amending the employers' liability act of April 22,-, 171 S. W. 1185. 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), by providing that any right of action given by that act to the person suffering injury shall survive to the personal representative for the benefit of the same beneficiaries in whose behalf the right of action created by the original act is given, but that there shall be only one recovery for the same injury. [Ed. Note. For other cases, see Death, Cent. Dig. 106; Dec. Dig. § 82°) FICIARY. The facts are stated in the opinion. Messrs. Troy Pace, Edward J. White, and E. B. Kinsworthy for plaintiff in error. Messrs. William E. Richardson, Jackson H. Ralston, Gustave Jones, and Lon L. Campbell for defendant in error. Mr. Justice Van Devanter delivered the opinion of the court: This was an action under the employers' liability act of April 22, 1908, 35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657, and the amendment of April 5, 1910, 36 3. The recovery in an action brought Stat. at L. 291, chap. 143, Comp. Stat. by the personal representative of a deceased 1913, § 8662, by an administrator to rerailway employee under the employers' liability act of April 22, 1908 (35 Stat. at Cover for injuries to and the death of his L. 65, chap. 149, Comp. Stat. 1913, § 8657), intestate. The action was for the benefit as amended by the act of April 5, 1910 (36 of the father, there being no surviving Stat. at L. 291, chap. 143, Comp. Stat. 1913, widow, child, or mother, and the damages § 8662), may include both damages for sought were for (a) pecuniary loss to the the decedent's conscious pain and sufering father by reason of the death and (b) conduring the period intervening between fatal scious pain and suffering of the decedent injuries and death, and damages for the before the injuries proved fatal. In the pecuniary loss sustained by the relative or trial court the plaintiff had a verdict and next of kin for whose benefit the action is supreme court of the state, after reducing the latter sum to $5,000, aflirmed the judg ment. L.R.A., 171 S. W. 1185. brought, in view of the provision of the judgment awarding $1,000 for the pecunian endatory act that any right of actionary loss to the father and $11,000 for the given by the original act to a person suffer- pain and suffering of the decedent, and the ing injury shall survive to the personal representative for the benefit of the same beneficiaries in whose behalf the right of action for death is given, although the amendment concludes with the clause, "but in such cases there shall be only one recovery for the same injury." justified an assessment of damages for the Without questioning that the evidence father's pecuniary loss, the defendant in [Ed. Note. For other cases, see Death, Cent.sists, as it did in both state courts, that the recovery could not include anything for Dig. 1 106; Dec. Dig. § 82"} *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes pain and suffering of the decedent, first, because there was no evidence that he endured any conscious pain or suffering, and, second, because the statute requires that the recovery in such cases be restricted to either the pecuniary loss to the designated beneficiaries or the damage sustained by the injured person while he lived, and does not permit a recovery for both. The first objection must, as we think, be overruled. The record discloses that the decedent survived his injuries more than a half hour, and that they were such as were calculated to cause him extreme pain and suffering, if he remained conscious. A car | passed partly over his body, breaking some of the bones, lacerating the flesh and opening the abdomen, and then held him fast under the wheels with a brake rod pressing his face to the ground. It took fifteen minutes to lift the car and release his body, and fifteen minutes more to start him to the hospital in an ambulance. It was after this that he died, the time not being more definitely stated. As to whether he was conscious and capable of suffering pain the evidence was conflicting. Some of the witnesses testified that he was "groaning every once in a while," and that when they were endeavoring to pull him from under the car "he would raise his arm" and "try to pull himself," while others testified that they did not notice these indications of consciousness, and that he seemed to be unconscious from the beginning. The jury found that he was conscious, and both state courts accepted that solution of the dispute. Of course, the question here is not which way the evidence preponderated, but whether there was evidence from which the jury reasonably could find that while he he lived lived he endured conscious pain and suffering as a result of his injuries. That question, we are persuaded, must be answered in the affirmative. But to to avoid avoid any misapprehension it is well to observe that the case is close to the border line, for such pain and suffering as are substantially contemporaneous with death or mere incidents to it, as also the short periods of insensibility which sometimes intervene between fatal injuries and death, afford no basis for a separate estimation or award of damages under statutes like that which is controlling here. The Corsair (Barton v. Brown), 145 U. S. 335, 348, 36 L. ed. 727, 731, 12 Sup. Ct. Rep. 949; Kearney v. Boston & W. R. Corp. 9 Cush. 108; Kennedy v. Standard Sugar Refinery, 125 Mass. 90, 28 Am. Rep. 214; Tully v. Fitchburg R. Co. 134 Mass. 499, 504; Mulchahey v. Washburn Car Wheel Co. 145 Mass. 281, 1 Am. St. Rep. 458, 14 N. E. 106; St. Louis, I. M. & S. R. Co. v. 35 S. C.-45. Dawson, 68 Ark. 1, 4, 56 S. W. 46; Burch v. St. Louis, I. M. & S. R. Co. 108 Ark. 396, 408, 158 S. W. 139. By the common law the death of a human being, although wrongfully caused, affords no basis for a recovery of damages, and a right of action for personal injuries dies with the person injured. Mobile L. Ins. Co. v. Brame, 95 U. S. 754, 756, 24 L. ed. 580, 582; The Harrisburg, 119 U S. 199, 204, 213, 30 L. ed. 358, 359, 362, 7 Sup. Ct. Rep. 140; Martin v. Baltimore & O. R. Co. (Gerling v. Baltimore & O. R. Co.), 151 U. S. 673, 697, 38 L. ed. 311, 320, 14 Sup. Ct. Rep. 533; Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 67, 68, 57 L. ed. 417, 420, 421, 33 Sup. Ct. Rep. 192. 33 Sup. Ct. Rep. 192. Therefore in cases like this the right of recovery depends entirely upon statute law. Here the state statute is not applicable because superseded, as respects the class of cases to which this one belongs, by the Federal employers' liability act. Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 53-55, 56 L. ed. 327, 347, 348, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 67, 68, 57 L. ed. 417, 420, 421, 33 Sup. Ct. Rep. 192; St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 158, 57 L. ed. 1129, 1133, 33 Sup. Ct. Rep. 651, Ann. Cas. 1914C, 156; Taylor v. Taylor, 232 U. S. 363, 58 L. ed. 638, 34 Sup. Ct. Rep. 350, 6 N. C. C. A. 436. So, it is by that act that we must test the objection that the recovery could not include damages for the decedent's conscious pain and suffering along with damages for the father's pecuniary loss. The original act was adopted by Congress April 22, 1908. In its 1st section it provides for two distinct rights of action based upon altogether different principles, although primarily resting upon the same wrongful act or neglect. It invests the injured employee with a right to such damages as will compensate him for his personal loss and suffering,-a right which arises only where his injuries are not immediately fatal. And where his injuries prove fatal, either immediately or subsequently (Michigan C. R. Co. v. Vreeland, 227 U. S. 68, 57 L. ed. 421, 33 Sup. Ct. Rep. 192; Louisville, E. & St. L. R. Co. v. Clarke, 152 U. S. 230, 238, 38 L. ed. 422, 424, 14 Sup. Ct. Rep. 579), it invests his personal representative, as a trustee for designated relatives, with a right to such damages as will compensate the latter for any pecuniary loss which they sustain by the death. At first there was no provision for a survival of the right given to the injured person, and so, under the operation of the rule of the common law, it would die with him. Of the right given to the personal repre- injured person "shall survive" to his persentative we said in the Vreeland Case, p. sonal representative "for the benefit of" the 68: "This cause of action is independent of same relatives in whose behalf the other any cause of action which the decedent had, right is given. Brought into the act by and includes no damages which he might way of amendment, this provision expresses have recovered for his injury if he had the deliberate will of Congress. Its terms survived. It is one beyond that which the are direct, evidently carefully chosen, and decedent had, one proceeding upon alto- should be given effect accordingly. It does gether different principles. It is a liability not mean that the injured person's right for the loss and damage sustained by rela- shall survive to his personal representative tives dependent upon the decedent. It is and yet be unenforceable by the latter, or therefore a liability for the pecuniary dam that the survival shall be for the benefit of age resulting to them, and for that only." the designated relatives, and yet be of no And in American R. Co. v. Didricksen, 227 avail to them. On the contrary, it means U. S. 145, 149, 57 L. ed. 456, 457, 33 Sup. that the right existing in the injured perCt. Rep. 224, we said, referring to the orig. son at his death-a right covering his loss inal act: "The cause of action which was and suffering while he lived, but taking no created in behalf of the injured employee account of his premature death or of what did not survive his death, nor pass to his he would have earned or accomplished in representatives. But the act, in case of the the natural span of life-shall survive to death of such an employee from his injury, his personal representative to the end that creates a new and distinct right of action it may be enforced and the proceeds paid for the benefit of the dependent relatives to the relatives indicated. And when this named in the statute. The damages recov-provision and § 1 are read together the erable are limited to such loss as results conclusion is unavoidable that the personal to them because they have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee. The damage is limited strictly to the financial loss thus sustained." If the matter turned upon the original act alone it is plain that the recovery here could not include damages for the dece dent's pain and suffering, for only through a provision for a survival of his right | could such damages be recovered after his death. But the original act is not alone to be considered. On April 5, 1910, prior to the decedent's injuries, the act was "amended by adding the following section:" "Sec. 9. That any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and if none, then of such em ployee's parents; and if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury." No change was made in § 1. Taylor v. Taylor, 232 U. S. 363, 370, 58 L. ed. 638, 641, 34 Sup. Ct. Rep. 350, 6 N. C. C. A. 436. It continues, as before, to provide for two distinct rights of action: one in the injured person for his personal loss and suffering where the injuries are not immediately fatal, and the other in his personal representative for the pecuniary loss sus tained by designated relatives where the injuries immediately or ultimately result in death. Without abrogating or curtailing either right, the new section provides in exact words that the right given to the representative is to recover on behalf of the designated beneficiaries, not only such damages as will compensate them for their own pecuniary loss, but also such damages as will be reasonably compensatory for the loss and suffering of the injured person while he lived. Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person, and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries, and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong, but a single recovery for a double wrong. Davis v. St. Louis, I. M. & S. R. Co. 53 Ark. 117, 7 L.R.A. 283, 13 S. W. 801; Com. v. Metropolitan R. Co. 107 Mass. 236; Bowes v. Boston, 155 Mass. 344, 349, 15 L.R.A. 365, 29 N. E. 633; Stewart v. United Electric Light & P. Co. 104 Md. 332, 8 L.R.A. (N.S.) 384, 118 Am. St. Rep. 410, 65 Atl. 49; Mahoning Valley R. Co. v. Van Alstine, 77 Ohio St. 395, 14 L.R.A. (N.S.) 893, 83 N. E. 601; Brown v. Chicago & N. W. R. Co. 102 Wis. 137, 44 L.R.A. 579, 77 N. W. 748, 78 N. W. 771, 5 Am. Neg. Rep. 255; Nemecek v. Filer & S. Co. 126 Wis. 71, 105 N. W. 225; Eichorn v. New Orleans & C. R. Light & P. Co. 112 La. 236, 104 Am. St. Rep. 437, 36 So. 335; Vicksburg & M. R. Co. v. Phillips, 64 Miss. 693, 2 So. 537. Much stress is laid upon the concluding clause in the new section, "but in such |