passenger of his own safety, and "amount | v. Lake Eric & W. R. Co. 175 U. S. 348, 44 to a wilful indifference to the injury liable L. ed. 192, 20 Sup. Ct. Rep. 136. to follow." This definition was approved in subsequent cases. It was also approved in the case at bar, and the plaintiff in error, it was in effect declared, was precluded from any defense but that of negligence as defined, or that the injury resulted from the violation of some rule of the company by the passenger brought to his actual notice, and the company, as we have said, was not permitted to introduce evidence that the derailment of its train was caused by the felonious act of a third person. The statute, thus interpreted and enforced, it is asserted, impairs the constitutional rights of plaintiff in error. The specific contention is that the company is deprived of its defense, and not only declared guilty of negligence and wrongdoing without a hearing, but adjudged to suffer without wrongdoing, indeed even for the crimes of others, which the company could not have foreseen or have prevented.

Thus described, the statute seems objectionable. Regarded as extending the rule of liability for injury to persons which the common law makes for the loss of or injury to things, the statute seems defensible. And it was upon this ground that the supreme court of the state defended and vindicated the statute. The court said:

"The legislation is justifiable under the police power of the state, so it has been held. It was enacted to make railroad companies insurers of the safe transportation of their passengers, as they were of baggage and freight; and no good reason is suggested why a railroad company should be released from liability for injuries received by a passenger while being transported over its Îine, while the corporation must respond for any damages to his baggage or freight."

Our jurisprudence affords examples of legal liability without fault, and the deprivation of property without fault being attributable to its owner. The law of deodands was such an example. The personification of the ship in admiralty law is another. Other examples are afforded in the liability of the husband for the torts of the wife the liability of a master for the acts of his servants.

It seemed to the able judges who decided Coggs v. Bernard [2 Ld. Raym. 909], that on account of the conditions which then surrounded common carriers public policy required responsibility on their part for all injuries to and losses of goods intrusted to them, except such injuries and losses which occurred from the acts of God or public enemies, and many years afterwards Chancellor Kent praised the decision of cases which declined to relax the rule to excuse carriers for losses by fire. That rule was not and has not been extended by the courts to passengers, and Chief Justice Marshall, in speaking for this court in Boyce v. Anderson, 2 Pet. 150, 7 L. ed. 379, refused to apply the rule to slaves, saying: "The law applicable to common carriers is one of great rigor. Though to the extent to which it has been carried, and in the cases to which it has been applied, we admit its necessity and its policy, we do not think it ought to be carried farther, or applied to new cases. We think it has not been applied to living men, and that it ought not to be applied to them."

But because courts have not extended the doctrine to carriers of passengers, it does not follow that a state legislature is precluded from doing so. The common-law doctrine was declared by Chief Justice Holt in Coggs v. Bernard to be "a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point.

That reason may not apply to passengers, but other reasons do, which arise from the conditions which exist in and surround modern railroad transportation, and which may be considered as strongly justifying a rule of responsibility for injury to passengers which makes sure, as the common rule law does, that responsibility be not avoided by excuses which do not exist, or the disproof of which might be impossible.

In Missouri P. R. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. Rep. 1161, a statute of Kansas abrogating the com- We might extend the discussion and ilman-law rule exempting a master from lia-lustrate it by other cases, but, however inbility to a servant for the negligence of a teresting such discussion might be, we do fellow servant, was sustained against the not think it is necessarily demanded by this contention that such statute violated the record. We think plaintiff in error is pre14th Amendment of the *Constitution of the cluded from objecting to the rule of liabil United States. And in Minneapolis & St. L. ity expressed in § 3. That rule of liability R. Co. v. Herrick, 127 U. S. 210, 32 L. ed. was accepted by plaintiff in error as a part 109, 8 Sup. Ct. Rep. 1176, a statute of Iowa and as a condition of its charter. "It was which extended liability for the "wilful incorporated under the laws of the state of wrongs, whether of commission or omission," Nebraska," is the allegation of the petitionof the "agents, engineers or other employees" er. "It is a domestic corporation of railroad companies, was vindicated of the state of Nebraska," is the allegation against the double attack of being an un- of the answer. It was incorporated, therejust discrimination against railroad cor- fore, under the railroad incorporation act of porations and the deprivation of property 1867, and the liability which has been enwithout due process of law. See also Tullis forced upon it by the decision of the supreme

289.

court of the state is the liability declared | ansas to the Pacific Coast" (14 Stat. at L. by 3 of that act. That liability, we re- 292, chap. 278), such road being incorpopeat, plaintiff in error accepted with its in-rated under the name of The Atlantic & corporation, and cannot now complain of it. Pacific Railroad Company, there was Waters-Pierce Oil Co. v. Texas, 177 U. S. granted to such railroad company28, 44 L. ed. 657, 20 Sup. Ct. Rep. 518. We "Sec. 3.. need not repeat the reasoning of WatersPierce Oil Co. v. Texas. The case followed and applied the doctrine of many prior cases. Judgment affirmed.

Mr. Justice Gray did not hear the argument, and took no part in the decision.

(183 U. S. 675)

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 whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted,

SOUTHERN PACIFIC RAILROAD COM- or otherwise appropriated, and free from

PANY, Piff. in Err.,

v.

ISAAC T. BELL.

Railroad land grants-withdrawal from settlement-lands within indemnity limits. The Secretary of the Interior was not authorized, by the act of July 27, 1866 (14 Stat. at L. 292), making a land grant in aid of the Southern Pacific Railroad, to withdraw from settlement lands within the indemnity limit

pre-emption, or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the Commissioner of the General Land Office; and whenever prior to said time any of said sections or parts of sections shall have been granted, sold, reserved, or occupied by homestead settlers, are pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior,

of such grant in advance of any selections by in alternate sections, and designated by odd the railroad company based on ascertained numbers, not more than 10 miles beyond the losses in the place limits, in view of the pro-limits of said alternate sections," etc. visions of § 6 that the "odd sections of land "Sec. 6. And be it further enacted, That hereby granted shall not be liable to sale or the President of the United States shall entry or pre-emption, before or after they are cause the lands to be surveyed for 40 miles surveyed, except by said company as pro- in width on both sides of the entire line of vided in this act," but that the provisions of the pre-emption and homestead laws "shall be said road after the general route shall be and the same are hereby extended to all fixed, and as fast as may be required by the other lands on the line of said road when construction of said railroad; and the odd surveyed, excepting those hereby granted to sections of land hereby granted shall not be sald company." liable to sale or entry or pre-emption, before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, eigh

[No. 20.]

Argued and Submitted December 5, 6, 1901. teen hundred and forty-one, granting preDecided January 13, 1902.

'N ERROR to the Supreme Court of the

emption rights, and the acts amendatory thereof, and the Act entitled 'An Act to Secure Homesteads to Actual Settlers on the

I State of California to review a judgment Public Domain, approved May twenty,

which affirmed a judgment of the Superior Court of Fresno County in favor of defendant in a suit to recover real property. Affirmed.

See same case below, 125 Cal. xix, 58 Pao.

1116.

Statement by Mr. Justice Brown: This was a complaint in the nature of a bill in equity filed by the Southern Pacific Railroad Company in the superior court of Fresno county, California, against Isaac T. Bell, praying to be declared the rightful owner of a certain quarter section of land in that county, and that it be adjudged that the defendant Bell holds the legal title to said land in trust for the plaintiff, and requiring him to convey the same to it free of all encumbrances.

The facts of the case, as set forth in the complaint, are substantially as follows: By "An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line from the States of Missouri and Ark

eighteen hundred and sixty-two, shall be, and the same are hereby, extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company."

By 18 of the same act authority was given to the Southern Pacific Railroad Company, incorporated under the laws of California, "to connect with the said Atlantic & Pacific Railroad, formed under this act, at such point near the boundary line of the state of California, as they shall deem most suitable for a railroad line to San Francisco, and shall have a uniform gauge and rate of freight or fare with said road; and in consideration thereof, to aid in its construction, shall have similar grants of land, subject to all the conditions and limitations herein provided, and shall be required to construct its road on the like regulations, as to time and manner, with the Atlantic & Pacific Railroad herein provided for."

On November 26, 1866, the plaintiff accepted the terms and conditions of the char

Messrs. Maxwell Evarts and L. E. Payson for plaintiff in error.

Mr. Joseph H. Call submitted the case for defendant in error.

ter and grant of July 27, 1866, as above 475, 57 Pac. 388. Whereupon plaintiff set forth, and on January 3, 1867, duly sued out a writ of error from this court. fixed the general route of its line of road, designating the same by a plat thereof filed in the office of the Commissioner of the General Land Office. This plat and designation having been duly approved and accepted by the Commissioner and Secretary of the Interior on March 22, 1867, all the odd-numbered sections of land lying with-ion of the court: in 30 miles of the railroad, as shown upon the plat, were withdrawn from sale or location, pre-emption or homestead entry, and have ever since remained so withdrawn.

Thereafter, and prior to November 8, 1889, the company duly constructed and equipped the entire railroad provided for in said act, and along the line designated upon the plat filed on January 3, 1867, and the road so constructed, except that part which extends from Mojave to the Needles, was duly accepted and approved by the President and Secretary of the Interior.

Mr. Justice Brown delivered the opin

This case involves a priority of right as to certain lands within the indemnity limits of the grant to plaintiff by act of Congress of July 27, 1866, and a patent for the same lands issued to the defendant as a settler under the land laws of the United States.

It presents the single question whether the railroad company had a right, on July 26, 1893, to select the land in dispute as lieu lands, notwithstanding the defendant had nearly one year before and on September 15, 1892, received a patent for the same. This involves the further question whether the lands in dispute were subject to preemption and sale after the filing of the plat designating the line of the road; and this turns upon the meaning of the words, "land hereby granted," used in §*6, wherein it is

proviso in the same section, that the preemption act of 1841, the homestead act of 1862, and the acts amendatory thereof, "shall be and the same are hereby extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company.'

A certain quarter section of land within the granted limits of the railroad, as constructed and shown on the map, having been granted and otherwise disposed of, prior to the time when the line of the route was designated by the plat filed with the Commissioner of the General Land Office, the quar-enacted that the "odd sections of land hereter section of land in dispute in this case, by granted shall not be liable to sale or enwhich was within the indemnity, but not try or pre-emption, before or after they are within the granted limits of the road, be- surveyed, except by said company, as proing more than 20 but within 30 miles on vided in this act," which language must also one side of the road as constructed, was sebe construed in connection with the further lected by the railroad, in lieu of the quarter section above described as having been granted and otherwise disposed of by the United States. The land so selected was at the time the act of July 27, 1866, was passed, vacant and unappropriated public land of the United States, not mineral, to which the United States then had full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, and such land has ever since so remained, except as it has been affected by the acts of the parties to this suit. The company had not, at the time the selection was made, nor has it since, selected or received lands to the extent or amount earned and acquired by it in virtue of the grant and the provisions of the granted act.

There is no dispute that the land "hereby granted" extends to all the odd-numhered sections within the place limits; that is, within 20 miles of each side of the road. The real question is whether it extends to the indemnity lands, 10 miles beyond this limit, so much of which the company was authorized to select in lieu of lands unavailable to it within the granted limits.

The relative rights of railroads and of all of which are couched in similar lansettlers under these congressional grants,

The complaint further alleged that not-guage, have been the subject of much litiwithstanding the rights of the company segation in this court, the main object of which has been to fix the time when the cured to it by the act of July 27, 1866, the right of the roads to particular lands withUnited States issued a patent for the quar-in both the place limits and the indemnity ter section so selected in lieu of the other, to the defendant, who claims the legal title to said land in fee simple and free from any trust or obligation to the plaintiff.

To this complaint the defendant interposed a general demurrer, which was sustained, and the plaintiff having refused to amend his complaint, a final judgment was entered against it and an appeal taken to the supreme court of California, where the judgment of the superior court of Fresno county was affirmed upon the authority of another case against one Wood. 124 Cal.

limits finally attaches as against both prior and subsequent settlers. Although at the last term of this court the question involved in the case under consideration was practically settled in Hewitt v. Schultz, 180 U. S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309, the progressive steps by which the conclusion in that case was reached will show the difficulties which have attended the solution of these questions, and, as we think, indicate the logical necessity of affirming this case. Two objects have been kept steadily in view: First, securing to the

829.

27 L. ed. 201, 1 Sup. Ct. Rep. 336, it was again held that the grant of the place lands was in præsenti, and attached to the sections as soon as a map showing the definite location of the road was filed, and that a party who had subsequently entered a por

railroad the benefit of the lands actually granted; second, protecting, as far as possible, the right of the public to lands not actually granted, or necessary to indemnify the roads for lands which have become unavailable to it within its granted limits, by reason of the fact that they had been other-tion of the land covered by the grant, and wise disposed of prior to the designation of the line of the road.

In the first of these cases, Schulenberg v. Harriman, 21 Wall. 44, 22 L. ed. 551, it was held that the act of June 3, 1856, granting lands to the state of Wisconsin, to aid in the construction of railroads, was a grant in præsenti of lands within the granted limits, and passed the title to the odd sections designated to be afterwards located; but, until such designation, the title did not attach to any specific tracts, and that when the route was fixed the title which was previously imperfect acquired precision, and became attached to the lands as of the date of the grant. There was no question of indemnity lands involved.

procured a patent for the same, might be required to execute a release of the premises to the company. It was said by Mr. Justice Field, in that case, p. 365, L. ed. p. 202, Sup. Ct. Rep. p. 337, that the grant cut off all subsequent claims from the date of this act, with certain exceptions specifically named, and passed the title as fully as if they had been then capable of identification.

The principle of this case was still further applied in St. Paul & S. C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720, 28 L. ed. 872, 5 Sup. Ct. Rep. 334, to two conflicting grants, and it was held that as the title to the lands was within the place limits, it related back, after the road was located, to the date of the grant, priority of date of the In Leavenworth, L. & G. R. Co. v. United act of Congress, and not priority of location States, 92 U. S. 733, 23 L. ed. 634, it was of the line of the road, giving priority of held that a similar grant, though operating title. A distinction was drawn in this case in præsenti, did not apply to lands set between the land within the place limits and apart for the use of an Indian tribe under land within the indemnity limits, and it was a treaty, and that it was immaterial that said that in case of the latter neither priorthey subsequently became a part of the pub-ity of grant, nor priority of location, nor lic lands by the extinguishment of the Indian rights. This doctrine was extended in the next case, Newhall v. Sanger, 92 U. S. 761, 23 L. ed. 769, to lands within the boundaries of an alleged Mexican or Spanish grant, which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road.

In Ryan v. Central P. R. Co. 99 U. S. 382, 25 L. ed. 305, the rule laid down in the last two cases was qualified and limited to lands within the place limits, and it was held that, as the lands in Ryan v. Central P. R. Co. were within the indemnity, but not within the place limits, "the railroad company had not and could not have any claim to it until specially selected." The land in dispute was within a tract formerly covered by a Mexican claim, which, although sub judice at the date of the act, had been finally rejected as invalid before the railroad company had selected it as part of its lieu lands. When so selected "there was no Mexican or other claim impending over it." This case practically holds that the title to indemnity lands inures to the railroad company only when selection is made.

priority of construction, gave priority of right; but this was determined by priority of selection.

The case of Buttz v. Northern P. R. Co. 119 U. S. 55, 30 L. ed. 330, 7 Sup. Ct. Rep. 100, is in seeming conflict with Leavinworth, L. & G. R. Co. v. United States, 92 U. S. 733, 23 L. ed. 634, inasmuch as it was held that the grant by act of July 2, 1864 [13 Stat. at L. 365, chap. 217], to the Northern Pacific Railroad, of lands to which the Indian title had not been extinguished, operated to convey the fee to the company subject to the right of occupancy by the Indians; but the case is distinguishable, as there was in the 2d section of the act a proviso that the United States "should extinguish, as rapidly as might be consistent with public policy and the welfare of the Indians, their title to all lands falling under the operation of this act, and acquired in the donation to the road." The prior case was not cited in the opinion.

The conclusions to be deduced from these cases are

(1) That as to lands within the primary limits, the grant takes immediate effect, and attaches to particular lands when the map of definite location is filed; that the Secre

such map, give notice of a withdrawal from sale of all the odd-numbered sections within the granted limits, and that the title so acquired by the railroad company relates back to the date of the grant, and takes precedence of all titles subsequently acquired, except those specifically named.

This view, that the act conferred no rights to specified tracts within the in-tary of the Interior may, upon the filing of demnity limits until the grantees' right of selection had been exercised, was subsequently confirmed in Cedar Rapids & M. River R. Čo. v. Herring, 110 U. S. 27, 28 L. ed. 56, 3 Sup. Ct. Rep. 485, and Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 112 U. S. 414, 28 L. ed. 794, 5 Sup. Ct. Rep. 208, although it had been stated only as a suggestion in Grinnell v. Chicago, R. I. & P. R. Co. 103 U. S. 739, 26 L. ed. 456.

In Van Wyck v. Knevals, 106 U. S. 360,

(2) That to lands within the indemnity limits, the company takes no title until a deficiency in the place limits has been ascertained and the company has exercised its

089.

189.

right of selection, with perhaps some rare | firmed the decision of the Commissioner, exceptions. See St. Paul & P. R. Co. v. and a patent was issued to Hewitt, June 22, Northern P. R. Co. 139 U. S. 1, 35 L. ed. 77, 1895. 11 Sup. Ct. Rep. 389.

The last case upon this subject is Hewitt v. Schultz, 180 U. S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309, which involved the title to a quarter section of land in North Dakota within the indemnity limits that is (as applied to territories), between the 40 and 50 mile limits of the Northern Pacific Railroad land grant. Plaintiff Hewitt claimed title as a settler under the pre-emption laws; defendant as a purchaser from the railroad company, under its grant of July 2, 1864. 13 Stat. at L. 365, chap. 217. The 3d and 6th sections of this act were, ex-declare that it did not exclude from the cept as to the name of the railroad and a few immaterial words, identical with the corresponding sections of the Atlantic & Pacific act of July, 1866.

On March 30, 1872, the railroad company filed a map of its general route through the territory of Dakota, and the local land of fice was thereupon directed to withhold from sale or location all the odd-numbered sections within the place limits of 40 miles, as designated on such map. On June 11, 1873, the company having filed a map of the definite location of its line, the local land office was directed to withhold from sale, or entry, all the odd-numbered sections within the 50 mile limits. This action was taken pursuant to the practice at that time prevailing in the General Land Office.

The land in dispute was more than 40, but within 50, miles of the line of definite location; that is, was within the indemnity limits, and the controlling question in the case was whether it was competent for the Secretary of the Interior to withdraw *the odd-numbered sections within such indemnity limits; that is, between the 40 and 50 mile limits.

It was contended upon the argument in this court that the words "the odd sections of land hereby granted," used in the 6th section, referred to the lands described in the "lst" (3d) section of the act; that is, to those within the place limits, which were free from pre-emption and other claims, and unappropriated prior to the definite location of the road; and that, as to "all other lands on the line of said road, when surveyed," the act expressly declared that the pre-emption and homestead acts should extend to them; "that Congress took pains to operation of those statutes any lands except those granted to the company in the place limits of the road which were unappropriated when the line of the railroad was definitely fixed; and that if at the time such line was 'definitely fixed,' it appeared that any of the lands, granted, that is, lands in the place limits, had been sold, granted, or otherwise appropriated, then, but not be fore, the company was entitled to go into the indemnity limits beyond the 40 mile and within the 50 mile line, and under the direction of the Secretary of the Interior, and not otherwise, select odd-numbered sec tions to the extent necessary to supply the loss in the place limits."

The court, treating the question as one of grave doubt, based its views largely upon the practice of the Land Office since 1888, and of the opinions of Secretary Lamar in the Atlantic & P. R. Co. 6 Land Dec. 84, and of Secretary Vilas in Northern P. R. Co. v. Miller, 7 Land Dec. 100. The opinion of Secretary Lamar indicated that some of his predecessors had assumed that the power to withdraw lands within the indemnity limits could be exercised upon a defHewitt settled upon the land April 10, inite location of the railroad before the loss 1882, more than a year before the within the place limits had been ascertained, drawal was made, and it was not until March 19, 1883, that the railroad company filed in the local land office its selection of land, embracing the land in dispute within the indemnity limits.

but treating it as an original proposition, he thought the words of the act, "that the odd-numbered sections of land hereby granted shall not be liable to sale, or entry, or pre-emption," indicated clearly the legis lative will that none other should be withdrawn than the odd-numbered sections within the granted limits. Mr. Secretary Vilas, considering the same subject, said: "In my opinion.-and it is with great deference that I present it,-the granting act not only did not authorize a withdrawal of lands in the indemnity limits, but forbade it. The dif ference betwen lands in the granted limits and land in indemnity limits, and between the time and manner in which the title of the United States changes to and vests in the grantee, accordingly as lands are within one or the other of these limits, has been clearly defined by the supreme court, and it is sufficient to state the well-settled rules

On April 4, 1883, Hewitt submitted his final proofs for the land, tendered the price, and demanded a patent; but his proof was rejected on the ground that the land had been withdrawn from entry under the act of July 2, 1864. Hewitt appealed to the Commissioner of the General Land Office, who affirmed the decision of the local land office, October 5, 1883. He was ousted of his possession the following year by the defendant Schultz, who had taken a deed from the railroad company. On August 15, 1887, the order of withdrawal of the indemnity lands was revoked, and, upon a review by the Commissioner of the General Land Office of his former decision, the ruling of the local land office was set aside, Hewitt's final proofs ad-upon this subject." mitted, and the selection by the railroad The same question arose in Northern P. held for cancelation. The company appealed from the decision in favor of Hewitt to the Secretary of the Interior, who af

R. Co. v. Davis, 19 Land Dec. 87, and in Northern P. R. Co. v. Ayers, [24 Land Dec. 40], wherein Secretaries Smith and Francis

889.