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The case of Pratt v. Grand Trunk R. Co. 95 U. S. 43, 24 L. ed. 336, and the other cases referred to by counsel in his argument at the bar, have no application in the view we take of the facts. The Pratt Case was fully commented upon in Texas & P. R. Co. v. Clayton, 173 U. S. 348, 43 L. ed. 725, 19 Sup. Ct. Rep. 421, in the course of the opinion of the court and it seems to be too clear for argument that the case does not justify an inference that the facts which we have just detailed in regard to this cotton constitute a delivery, either constructive or actual, to the steamship company, or to the pier of that company.

pany's pier at the port of New Orleans, | in such case, the preceding carrier is not deeven upon the assumption that the pier at vested of his liability. Westwego was the point agreed upon between the railway and the steamship companies, where the delivery of the cotton was to be made when it was delivered. How can it be said that there was a delivery to this steamship company upon the facts above detailed when, by agreement between the parties, the company was not to take the property until it sent a steamship to the pier for that purpose? Until it was delivered to it at the steamer's side the steamer had neither possession nor control over it. By the bill of lading the defendant could in certain contingencies, and at any time before delivery to the ship, send the cotton by another steamer. Until the ship did come to the pier, there can be no question of actual delivery in this case.

Nor does the notification to the steamship company that there was cotton at the pier awaiting or ready for delivery to it make such notification a constructive delivery of the cotton, and terminate the liabil ity of the railway company. Here was a pier containing thousands of bales of cotton, destined to various European ports, and by various lines of steamers, with a special right to the railway company, mentioned in clause 11, to send the cotton mentioned in any particular bill of lading by a steamer of a line other than the one mentioned in the bill, and no obligation of the steamship company to send for the cotton until there was a quantity of 500 bales in some cases, and in others until there were from 1,500 to 2,000 bales ready for the particular steamer. A notification to a steamship company by means of a "transfer sheet," which was taken to be a notice that there was cotton at the pier ready for delivery to a steamer when it came, did not necessarily take away the right of the railway company to send that cotton by another steamer, and the company which was notified and sent a steamer would have no ground of complaint if, upon the arrival of the steamer at the pier, other cotton consigned to the same port were given it to the same amount. There being only this conditional obligation to send for cotton on the part of the steamship company, and none upon the part of the defendant to at all events deliver the specified cotton to the former, and the steamship company not having sent a ship to the pier, there was no limitation of the defendant's liability wrought by the notification.

Whatever may generally be the effect of a notice to a connecting carrier, upon the question of terminating or altering the liability of a preceding carrier for the goods, it is quite clear that it has no effect in diminishing the liability until actual delivery in a case where the preceding carrier still continues to have full control over the goods and has a choice as between connecting carriers, and may, notwithstanding such general notice, deliver the goods under certain

We are therefore of opinion that the court below did not err in directing a verdict for the plaintiffs for the value of the cotton, and the judgment in their favor is affirmed.

(183 U. S. 602)

MIDWAY COMPANY, Piff. in Err.,

v.

FRANK W. EATON, Leonidas Merritt,
Merrill M. Clark, Richard H. Fagan, and
Margaretha Lonstorf.

Public lands-Sioua half-breed scrip-validity of power of attorney to locate and sell-improvements-direct connection of half-breed with land.

1.

Powers of attorney to locate Sloux halfbreed scrip, and to sell the lands located therewith, do not amount to an assignment of such scrip, in violation of the provisions of act of July 17, 1854, in pursuance of which such scrip was issued, that "no transfer or conveyance of any of sald certificates or scrip issued shall be valid."

2. The erection of a house 14 by 16 feet in

3.

4.

size, upon unsurveyed lands, is a sufficient
improvement to satisfy the provision of act
of July 17, 1854, for the location of Sioux
half-breed scrip issued under that act, upon
any "unsurveyed lands
upon which
they (the half-breeds) have respectively made
improvements."

Improvements caused to be erected upon unsurveyed land by an attorney in fact of a Sioux half-breed to locate scrip issued under act of July 17, 1854, are made by the halfbreed, within the meaning of the provision of that act that such scrip may be located upon any "unsurveyed lands upon which they (the half-breeds) have respectively made improvements."

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No direct connection with the land or claim for personal use by one to whom Sloux halfbreed scrip has been issued under the act of July 17, 1854, is essential to the validity of a location of such scrip under the provisions of the act authorizing such location upon "any unsurveyed land upon which they (the half-breeds) have respectively made improvements."

[No. 80.]

circumstances to another carrier for fur-Argued December 4, 5, 1901. Decided Janther transportation. Until actual delivery

uary 18, 1902.

⚫642

'N ERROR to the Supreme Court of the provements had been made thereon, consist

I State of Minnesota u review a judgmenting or a house 14 by 10 feet, by and under

affirming a judgment of the District Court for the County of St. Louis, which adjudged the validity of locations of Sioux half-breed scrip. Affirmed.

See same case below, 79 Minn. 442, 82 N.

W. 861.

Statement by Mr. Justice McKenna:

This is an action to quiet title, and was brought in the district court in the eleventh judicial district, county of St. Louis, state

of Minnesota.

the authority of the said Frank W. Eaton." On the 20th of July, 1885, the lands having been duly surveyed, a plat and survey of the township in which the lands were situated were "duly filed in the local land office at the city of Duluth, Minnesota, and thereupon, and on the 21st day of July, 1885, upon application of the said Orillie Stram, acting by and through her said attorney in fact, said certificate of Sioux halfbreed scrip number 19D was adjusted to and upon the lands in controversy" (they The plaintiff in error claims title under were specifically described), and the scrip a United States patent issued to its grantor, was then and there duly located upon said one Frank Hicks, upon a homestead settle- lands as surveyed lands, and the locations ment. The defendants in error claim under were allowed by the officers of the local land locations of what is commonly known as office at Duluth, there not being at that "Sioux half-breed scrip," issued under the time, nor at the time the scrip was located act of July 17, 1854. 10 Stat. at L. 304, upon the lands when unsurveyed, nor at any chap. 83. These locations, it is alleged, other time, any valid adverse claim to said were prior in time and right to the claim lands; and on the 21st of July, 1885, reof Hicks, and therefore the patent was illeg-ceiver's final receipts and certificates of enally issued to Hicks. It was prayed that try were duly and regularly issued to said the title represented by the patent be ad- Orillie Stram, and duly and regularly rejudged to be held in trust for the defend-corded in the counties of Lake and St. Louis, ants in error, and that the plaintiff in error Minnesota, within a few days thereafter. be required to convey such title to them in proportion to thei- interests set forth in

their cross bill.

The controversy turns upon the validity of the scrip locations. Their validity was adjudged by the district court, and by the supreme court of the state. 79 Minn. 442, 82 N. W. Sul. This writ of error was then sued out.

The facts as found by the court are: That under the act of July 17, 1854, and in pursuance of said act, there were issued to Orillie Moreau certificates commonly known as Sioux half-breed scrip numbered 19E and 19D, which entitled her to select and take 160 acres of the public lands of the United States of the classes mentioned in said act; "that thereafter, and on the 16th day of June, A. D. 1883, the said Orillie Moreau, then Orillie Stram, never having theretofore made use of the said certificates of scrip, and the same never having been in any manner extinguished or satisfied, through the defendant Frank W. Eaton, who had theretofore been by her duly empowered as her attorney in fact for that purpose, presented said scrip at the local land office in Duluth, Minnesota, and then and there made application to locate the same on certain then unsurveyed lands of the United States in said district in which said land office was located, and did then and there enter and file upon by virtue of said scrip the lands for which said application was made as aforesaid, and filed therewith a diagram or plat of said land embracing a sufficient description thereof to properly designate the same, which lands were in said application described by metes and bounds;" and that the same were "lands not reserved by the government of the United States for any purpose whatsoever;" and also that "prior to the location of said scrip upon said land as above found im

The "rights and interests" of Orillie Stram, by sundry mesne conveyances, were conveyed to the defendants in the proportions respectively as follows: "Frank W. Eaton, the undivided 13-36, Merrill M. Clark, the undivided 9-36, Margaretha Lonstorf, the undivided 8-36, and Richard H. Fagan, the undivided 6-36; and the said defendants are still the owners of the said lands in said proportions."

That on the 20th of July, 1885, one Thomas Hyde and one Angus McDonald respectively made application to make preemption filings on portions of the lands in controversy, which applications were denied both on the ground of the prior locations of the scrip and that the applications were not made in good faith, but in fraud, and in violation of the pre-emption laws. And it was determined by the local land office and sustained by the Commissioner of the General Land Office, and by the Secretary of the Interior, that neither Hyde nor McDonald ever had or obtained any rights whatsoever by reason of their application or any subsequent proceedings, but, notwithstanding, said Hyde and said McDonald "made an attack upon the said decisions of the Land Department some time in No vember, 1885, and upon the location of the said certificates of scrip and the entry of lands thereunder." A hearing was had on the 6th of April, 1886, and the local land officers sustained the scrip locations. An appeal was taken to the Commissioner of the General Land Office, and he held "adversely to the scrip locations." An appeal was then taken to the Secretary of the Interior. A hearing was had before the Secretary February 18, 1889, and he held and determined that neither Hyde nor McDonald had any interest or valid claim to the lands, but, notwithstanding, also held that the scrip locations were illegal and invalid,

of the Secretary of the Interior rendered on the 18th of February, 1889, and that said Hicks had at all times full knowledge of all rights and claims of the defendants." That the findings of fact of the Secretary of the Interior were fully sustained by the evidence in the cause presented to him, "except that it is found as a fact by this court that the improvements caused to be erected by Frank W. Eaton upon the said premises consisted of a house about 14 by 16 feet in

and that neither Orillie Stram nor those claiming under her were entitled to the lands for the following reasons: (1) that the improvements made upon the land when it was unsurveyed were not made under the personal supervision of Orillie Stram, and that she had not had personal contact with the land; (2) that the power of attorney to Eaton to locate the scrip, and the power of attorney executed at the same time to Leonidas Merritt to sell the lands which should be located, operated as an as-size; and it is further found as a fact that signment of the scrip, and were in violation of the act of July 17, 1854, and the entry of the lands therefore was not for the benefit of said Orillie Stram; (3) that the subsequent location and adjustment of the scrip to the lands after the latter were surveyed were ineffectual in view of the previous attempt to locate the scrip, and in view of his (the Secretary's) decision relative to the question of improvements; (4) that Orillie Stram had no power to alienate the lands before location of the scrip, or to contract for the sale of them, or to grant a power of attorney to sell the same for her after they should be located, but held that she had the right to sell immediately after location of the scrip. As a deduction from these conclusions, the Secretary held that the lands were still public lands, and open to entry. The decision of the Secretary was attached to the findings as an exhibit.

That on the 31st day of March, 1886, and prior to the hearing had before the local land office at Duluth, the said Orillie Stram and her husband Roman Stram made and executed a deed for seven ninths of the land in controversy to Frank W. Eaton, with warranty of title. The deed was subsequently recorded in St. Louis and Lake counties.

The deed recited the location of the scrip in the land office at Duluth, June 16, 1883, by Eaton, as the constituted and appointed attorney in fact of the Strams, and that the title thereby vested in Orillie Stram. It also recited the survey of the lands and the adjustment of the scrip and entry to such lands, and "thereby the aforesaid scrip and entry were adjusted July 21, A. D. 1885, thereby specifically and perfectly describ ing the land filed upon for me, the said Orillie Stram, by the said Frank W. Eaton, and intended to be entered on June 15, a. D. 1883, in the name of the said Orillie Stram, by our attorney in fact, the said Frank W. Eaton." It also recited the power of attorney given to Leonidas Merritt, acknowledged it, and ratified and confirmed the conveyance by him to Eaton.

It was further found that in pursuance of the decision of the Secretary of the Interior the lands were attempted to be thrown open to public entry, and a patent was subsequently issued to Frank Hicks, and that Frank Hicks and his wife conveyed the same to the Midway Company, the plaintiff in error, "who now holds whatever title thereto inured to the said Frank Hicks." That neither Orillie Stram nor her husband, nor any of the defendants, "were in any manner parties to the proceedings to the decision

from the evidence before the Secretary of the Interior in said cause presented to him by the record upon said appeal, it did not appear that the scrip referred to in the decision of said Secretary had passed through many hands or through any hands before coming into the hands of the said Frank W. Eaton; nor did it appear that the powers of attorney to locate said scrip and to convey the land located therewith had been executed by the said Orillie Stram years be fore the location thereof by the said Frank W. Eaton, but that, on the contrary, it ap peared from the evidence before the Secretary that said powers of attorney were executed by the said Orillie Stram about one week before the location of the said scrip by the said Frank W. Eaton, and that the said powers did not contain the names of the grantees. It is further found as a fact that it did not appear from the evidence before the said Secretary that the said Orillie Stram never saw the said lands; it did not appear from the evidence before the said Secretary that she had sold the said scrip long prior to the location thereof; it did not appear from the evidence before the said Secretary that for a long time she directly and positively repudiated Eaton and Merritt as her attorneys in fact, denying that they acted for her in any capacity whatsoever."

Messrs. Walter Ayers and P. H. Seymour for plaintiff in error.

Messrs. Jed L. Washburn, Luther C. Harris, Charles A. Towne, and William D. Bailey for defendants in error.

Mr. Justice McKenna delivered the opinion of the court:

The decision of the controversies in this case depends upon the validity or invalidity of the scrip locations, either originally when the land was unsurveyed, or subsequently when the location was adjusted to the land as surveyed.

The act of Congress of July 17, 1854 (10 Stat. at L. 304, chap. 83), authorized the issue of scrip to the half-breeds of the Sioux Nation of Indians in exchange for certain lands, which scrip might be located (1) upon any land within the Sioux half-breed reservation; or (2) "upon any other unoccupied lands subject to pre-emption or private sale;" or (3) "upon any other unsurveyed lands not reserved by government, upon which they [the half-breeds] have respectively made improvements. It is provided in said act "that no transfer or conveyance

of any said certificates or scrip shall be valid."

bar, an exactly contemporaneous construction of the act of 1854 by the Land Department. The first circular of instructions was not issued until March 21, 1857. It is,

to the support of the contentions of the defendants in error. The circular stated that the scrip "must be located in the name of the party in whose favor the scrip is issued, and the location may be made by him or her in person, or by his or her guardian." And further: "You will observe that this scrip is not assignable, transfers of the same being held void; consequently, each certificate, as hereinbefore stated, can only be located in the name of the half-breed; and such certificate or scrip are not to be treated as money, but located acre for acre.'

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On the latter provision of the act the plaintiff in error bases the contention that the scrip is not assignable, and that the pow-however, not without value, and it tends er of location is strictly personal to the Indian, and must be made whether on surveyed or unsurveyed land either by him or for his benefit, and that the improvements on unsurveyed land must be made under his personal supervision and direction; that he must come in personal contact with the land. And it is hence asserted that the powers of attorney given to Eaton and Merritt were virtual assignments of the scrip, and frauds upon the act of Congress; that the improvements were made, not by Orillie Stram, the half-breed, or for her benefit, but by Eaton, and for his benefit; and that the In the circular issued February 22, 1864, subsequent adjustment of the locations of those instructions were repeated, and the the land after its survey was made for him, following added: "When not located by not for her; for his benefit, not for hers. the reservee in proper person, the applicaOn the other hand, the defendants in error tion to locate must be accompanied by the contend that the prohibition against the as- affidavit of the agent that the reservee is signment of the scrip is strictly of the scrip living, and that the location is made for the as such, not of the rights or powers con- sole use and benefit of said reservee." Prior ferred by it. That the provision of the stat- to the issuance of the circular of February ute is not a prohibition upon the alienation 22, 1864, to wit, in 1863, a contest came on of the land, but is intended to protect the appeal to the Land Department, between a government against controversies about the location made by Sioux scrip which was transfer of the scrip, and to require and se-issued to one Sophia Felix, and a claim uncure all of the steps and proceedings to be der a pre-emption settlement. The Commisin the name of the Indian, and the title to sioner of the Land Department decided be issued in his name. It is claimed, there- against the scrip location on two grounds, fore, that the requirements of the statute one of which was: "That "the location of have been observed; that the locations were the scrip, although made in her name, was made in the name of the Indian, and for her not made by her in person, nor by her guarbenefit. And it is also claimed that if there dian or duly authorized agent, for her use was any defect in the location upon the land and benefit, but by an unauthorized person, when unsurveyed, by reason of the insuffi- and for the use and benefit of a person havciency of the improvements or by whom ing no legal interest therein."" erected, that defect was supplied by the The decision was reversed by the Secrelocation of the scrip after the land was sur-tary of the Interior, who stated, through veyed, and the acceptance of the location of Otto, Assistant Secretary: the scrip by the local land office, there being then no adverse rights to the land. And further that the power of Eaton to make the location for the Indian was ratified by her (if it needed ratification), and all rights which inured to her were conveyed by her warranty deed to Eaton.

These contentions exhibit the controversy between the parties, and present the only questions upon which we think it is necessary to pass, and the questions are certainly close ones. The Interior Department has not always given the same answer to them, and the latest decision of that Department is opposed in the case at bar by the courts of Minnesota.

It is natural to respect the rulings of the Land Department upon any statute affect ing the public domain, and if the rulings were contemporaneous with the enactment of the statute they afford a somewhat confident presumption of its meaning. One of the reasons is that the officers of the Land Department may have recommended the statute indeed, may have written its words or, at any rate, were familiar with the circumstances which induced the legislation. We have not, however, in the case at

"As to your second objection, I remark that this kind of scrip is by the law declared to be not assignable. In this case Sophia Felix has signed the application to locate her own scrip. The signature must be treated by us as genuine, when there is no proof to the contrary; and when she has made no complaint against this use of her scrip. The fact that the scrip was carried to the land office and the business transacted by another person, does not affect the validity of her entry of the land.

"As the certificate of location issued in her name, and the patent will issue to her, neither the register's report nor the affidavits of third parties can be admitted to establish the interest of any other person in the location.

"We could not recognize such interest if an assignment in writing was produced and duly proven to have been executed by the half-breed-whether she could sell or did sell the land after the location of her scrip we need not inquire, and the validity and effect of any such sale or assignment must be left to the arbitrament of the courts of law. The location is valid on its face, and the owner of the scrip, so far as she is rep

609.

*611

resented at all, demands the patent to issue in her name, and my decision is that she is entitled thereto."

In 1872 a special circular was issued (1 C. L. L. 723) which contained the following direction:

That the application must be accompanied with the affidavit of the Indian, or other evidence that the land contains improvements made by or under the personal supervision or direction of said Indian, giving a detailed description of said improvements, and that they are for his personal use and benefit; in other words, you should be satisfied that the Indian has a direct connection with the land and is claiming the same for his personal use. Unless such evidence is filed, you will reject the application.

"In 1878 a new circular was issued which repeated the provisions of the circulars of 1864 and 1872, above quoted. 2 C. L. L. 1355; 5 C. L. O. 126."

Then came the decision of the Secretary of the Interior, Vilas, in Allen v. Merrill, 8 Land Dec. 207, and in Hyde v. Eaton [12 Land Dec. 157]. They were affirmed on review by Secretary Noble. Those cases laid down the propositions upon which plaintiff in error relies in the case at bar. Between the decision in those cases and that in the Felix Case there was an interval of thirty years, and pending that interval there were decisions of the courts which took the same view as Secretary Otto expressed in the Felix Case.

In Gilbert v. Thompson, 14 Minn. 544, Gil. 414, a conflict of titles was presented based upon deeds from one Amelia Monette, a Sioux half-breed. The action was ejectment, and the deed which plaintiff relied on was executed by Amelia in person May 29, 1867; the deed upon which defendant depended was executed by her attorney in fact, Benjamin Lawrence, July 18, 1857, under a power of attorney dated May 27, 1857. The power of attorney authorized Lawrence to act for Amelia as follows:

"For me and in my name to enter into and take possession of all the real estate belonging to me, or of which I may hereafter become seised, situated in the county of Wabasha, in the territory of Minnesota; and for me to lease, bargain, sell, grant, and confirm the whole or any part thereof; and for me and in my name to make, execute, acknowledge, and deliver unto the purchaser or purchasers thereof good and sufficient conveyances."

Affirming the judgment which passed for defendant. the supreme court of the state said by Chief Justice Gilfillan:

"The act of Congress of 1854, under which Sioux half-breed scrip was issued, provides 'that no transfer or conveyance of any of said certificates or scrip shall be valid.'

"It was the intention of Congress that the right to acquire public lands by means of this scrip should be a personal right in the one to whom the scrip issued, and not property, in the sense of being assignable; but no restraint is imposed upon the right of property in the land after it is acquired

by location of the scrip. In the scrip itself the half-breed had nothing which he could transfer to another; but his title to the land, when perfected under it, was as absolute as though acquired in any other way. It follows that any attempt to transfer the scrip, directly or indirectly, would be of no effect as a transfer. The title to the scrip would remain in him, and the title to the land acquired by it would vest in him, just as though no such attempt had been made. Such attempt to transfer would not involve any moral turpitude nor the breach of any legal duty, as is the case with an attempt to transfer a pre-emptive right. It would be simply ineffectual, because the scrip is not transferable.

"A power of attorney, so far as it intended to operate as a transfer, would be of no avail; the right of the half-breed in the scrip and land would remain the same; it could not be made irrevocable, nor create any interest in the attorney. Should the attor ney sell under it, he would be accountable to his principal precisely as in the case of any power to sell; but a simple power to sell, executed by a half-breed, is good till revoked, and would extend to lands subse quently acquired by means of scrip, if such lands came within its terms. We think such a power could not be varied by parol proof that the parties had an intention not expressed in it, even to defeat the power, except on the same grounds as would admit such proof in other cases. The intent to transfer the scrip not being illegal, but only ineffectual, could not affect the power where not expressed in the same instrument, or in one equal in degree, as evidence. Whether the power to sell would be upheld in an instrument, upon its face a transfer, the former being only incidental, we do not decide."

Gilbert v. Thompson was affirmed and applied in Thompson v. Myrick, 20 Minn. 205, Gil. 184. The latter case came to this court (99 U. S. 291, 25 L. ed. 324), and its doctrine was approved. The suit was for specific performance. Thompson, who was plaintiff in the court below, was in occupation of the land to which he was desirous of obtaining title. Myrick was "attorney in fact (duly constituted) of Francis Longie and Joseph Longie, his son, then a minor under the age of fourteen years, and of Francis Roi and Henry Roi, his son, then a minor under the age of fourteen years, and was duly authorized to locate certain half-breed scrip issued to said Joseph and Henry in accordance with the provisions of the act of Congress approved July 17, 1854."

With a view to the location of the scrip for the benefit of the beneficiaries, Myrick placed the same with powers of attorney in the hands of Thompson, and at the same time entered into a written agreement with Thompson, in which he agreed that upon the location of the scrip he would secure the title to the land located to be lawfully vested in Thompson. The consideration was $2,800, evidenced by a note payable in one year from its date, and to be secured upon the land as soon as Thompson should acquire

612

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