PROEBSTEL V. HOGUE.
581
stockholders. No declaration of a dividend was necessary to-complete the equitable right of these stockholders to this amount. Board· man v. Lake Shore Mich. R. Co. 84 N. Y. 157; Richardson v. Vermont Mass. R. 00. 44 Vt. 613; Dent v. London Tramways 00. .L . R. 16 Ch. Div. 353. None of the eases cited for the defendants ap.. pear to be contrary to this. In most or all of them the profits applicable to the preferred stock or superior right did not exist in fact; and the right to the profits, if they should exist, was recognized. It is further suggested that if these profits were 8a situated that anyone became entitled to share in them on account of the preferred stock, that right would attach to the holders at that time, and would not pass to the orators by a mere transfer of tha stock afterwards. Fully-declared dividends might not so pass. But here was no declaration of a dividend upon this stock separating the share of the profits from the other assets belonging to the stock. The right to share in these profits remained aB a mere increment of the stock, and would pass a8 an incident to it. Boardml1n v. L. S. S. R. Co. 84 N. Y. 157. Upon the whole ease, the orators appear to be entitlel to a decree according to the prayer of the bill. Let there bea decree for the orators according to the prayer of the bill, with costs.
PROEBSTEL V. HOGUE
and others. March 9, 1883.)
'OiTcuit (Jom't, P. Oregon.
DOXATTON TO MARRIED PERSONS UNDER SECTION
5 OF THE DONATION ACT. Upon the death of a married donee, intestate, under sectiOn 5 of the donation act, (9 St. 497,) after compliance with the act. and before the issue of a patent, the share of the deceased in the donation descends to his or her heirs, under the local law of descents,-(Or. Laws, 547,) and is not affected by the prOVision in section 4 of said act, giving the share of a married donee, dying under like circumstances, to the survivor and children, or heirs of the deceased, in equal parts.
At Law. Action to recover possession of real property. Geo. II. Williams, for plaintiff. Joseph N. Dolph and Benton Killin, for defendants. DEADY, J. This action is brought to recover the possession of the N. t of the Wendell Proebstel donation, the same being situate in nomah county, and consisting of parts of sections 27 and 28 of town-
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"582
. FEDBRAL REPORTER."
ship 1 N., of range 1 E., and conta.ining about 160 acres,alleged to be of the'valueof $6,000·. Frotll ,the complaint it appears that Wendell Proebi!tel, On Novembet: 11;), 1852, settled upOt.l the donation in question under the donation act of September 27, 185Q, (9 St. 497,) and that at the time he was married to Jane Proebstel and otherwise qualified to become a married settler on the public lands in Oregon, under said act; that in May, 1853, he filed his notificationand'preliminary proof of said settlement, and o,n July 27, 1857, made his final proof of four years' residence and cultivation; that on March 31, 1866, a patent certificate was issued to him designating the N. t of the donation as inuring to his said wife Jane and the S. t to himself, and on August 30,1871, a patent was issuedfor the same in accordance thet:ewith. In June, 1867, said J anedied intestate "without ever having had any children, and leaving no lineal descendants and without any kindred in the United States, but leaving her said husband surviving and in possession of said landj" thlJ,t on November 18, 1868, and while said Wendell was in the possession of the donation, the plaintiff was married to him, and went to reside on the premises, whe1'e they rGmained until July 7, 1874, when said Wendell died intestate, "no children ever having been born to him, and leaving no lineal descendants," and leaving the plaintiff in the possession of the donation, where she remained until April 19, 1879, when the defendant Hogue wrongfully dispossessed her of the N. t thereof, and, together with his co-defendants, now wrongfully withholds the possession of the same from her. The complaint then further alleges "that by virtue of the provisions of said act of congress and the statutes of Oregon regulating the descent of real property" the plaintiff '''became, upon the death of her said husband, and now is, the owner in fee of the property wrongfully withheld from her by the defendants as aforesaid;" and "that she entitled to the present possession of said property-the same never having been sold or convej'ed by, through, or on account of the said husband." The defendant Philo Holbrook, answering, disClaims any interest in or claim to the possession of the premises; and the defendants Hogue, Catlin, and Muir demur to the complaint for that the court has no jurisdiction and the facts stated do not constitute a cause of action. Jurisdiction is not claimed in this case on account of the difference in the citizenship of the parties, ",ho are all understood to be citizeno of Oregon; but it is claimed upon the ground that the suit
_.
PROEBSTEL
HO(1UE.
583
ariSes under a law of the United States, to-wit, the dono;tionact of September 27; 1850, 8upra,underwhich Proebstel settled upon and occupied the premises. " , . . The first se,ction of the judiciary act of March 3;1876, (18 St. 470,) confers upon the circuit courts of the United: States jurisdiction "of all suits of nature at common law or in equity, when. the matter in dispute exceeds, . exclusive of lJosts, the sum or value' of $500, atising under the constitution or laws of theUriited Staws,'" In By. Go. '-fr. 'Mississippi, 102 U. S. 141, Mr. Justice HAR'LAit, speaking for the dourt, says'" that casesansirig under the 10;W!l of the United'States are such as grow out of tbetegislatiOll of congress, whether they'constit'utethe right of piivilege, dr clairil,or protection, or defense' of tha' party, in whole or 'in part, by whom they are asserted j" and he adds "that it is !lot suffiriient to -exclude the judicial power of the United States froin apartieular case, that itinvolves questions' which do not at all depend on 'the constitution or laws of the United States." To the same'offect is' Bybee v. Hawkett, 6 Sawy. 598, [So C.5 FED. REP. 1,]' decided in this court. The claim ofthe plaintiff in this case is thlitupon death of Jane, with the''ietlrtiremehts of the donaafter the tion act, and before the issue of the patent,1ihe donlition act gave her share in the donation said WendeU;and that thereafter, upon the death of the latter; it descended to herun:dM the- laws of Oregon. Compo 1874, p. 547. And itisbasedup<:mthe assumption that the express provision to that effect in section 4 of the donation act, concerning a married settler thereunder, is or ought to be held egually applicable to the case of married persons claiming under section 5 of· said conclusion, which might very act, as Wendell and Jane, and also properly have been alleged in the complaint, that by operation thereof Wendell took Jane's share in the donation upon her death: Admitting this, it is not disputed that the plaintiff, upon the death of the former, succeeded by descent, under the laws of Oregon, to the premises. But the proposition that Wendell succeeded to Jane's shate in the donation is denied by the demurrer-the defendants contending that upon the death of Jane such share was no longer within the operation of the donation act, but that the same descended tIJ her heirs under the laws of Oregon, under whom it is nnderstood they claim. The decision of this issue or question turns solely upon the proper construction of the donn.tion act. It matters not how it may be decided, or how probable or improbable is the claim of the plaintiff. I · " '.
584
REPORTER.
The determination of the question is the disposition of a case or suit arising under suoh act of congress. The jurisdiction is undoubted. By section 4 of the donation act there was granted. to every white settler on the public lands then residing in Oregon, "who shall have resided upon and cultivated the same for four successive years" and otherwise complied with the provisions of such act, if a single man, 320 acres of land, and if a married man, 640 acres,-"one-half to himself and the other half to his wife, to be held by her in her own right; and the surveyor shall designate the part inuring to the husband and that to the wife, and enter the same on the reoords of his office; and in all cases where such married persons have complied with the provisions of so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon, or since, and either shall have died before patent the survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased, in equal proportions, except where the deceased shall otherwise dispose of it by testament duly and properly executed according to the laws of Oregon." Section 5 of the same act granted "to all white male citizens of the United States" above the age of 21 years, "emigrating to and settling" in Oregon .between December 1, 1850, and December 1, 1853, and to all such citizens "not hereinbefore provided for, becoming one-and- twenty years .of age," in Oregon, and settiing there between said dates, "who shall in other respects comply with the foregoing section and the provisions of this law," if a· single man, 160 acres of land, or if a married one, 320 acres,-"one·half to the husband and the other half to the wife, in her own right, to be designated by the surveyor general as aforesaid." , Section 5,.as may be seen, is silent as to the disposition of the hus. band's or wife's share in the donation, in case he or she should die intestate before the issue of a patent therefor, and therefore the defendants contend that it descended to the heirs of the deceased, ac' cording to the local law. But the plaintiff maintains that the clause in section 4, providing for the disposition of the share or interest of the deceased in such contingency ought to be applied to a like case occurring under section 5. As will be seen this is nQt a mere question of interpretation of the words of the statnte, but of the construction of it, and its solution involves the inquiry, whether, taking into consideration the spirit and pUl'pose of the wl:ole act and the circumstances which led to its enactment, this c1<>use in section 4, that, by its language, is
585
limited to cases arising thereunder, was intended by the legislature to apply to similar cases arising under section o. The argument of the case has gone upon the theory that if upon the death of Jane her share in the donation did not descend under the local' law but went in the path prescribed by the donation act for like cases arising under section 4 thereof that then Wendell took the whole of it as survivor, while it appears upon the language of the act that he only took an equal portion with the heirs of Jane, be they near or remote, many or few. .' .' Counsel fot the plaintiff relies largely upon the case of Silver v.Ladd, 7 Wall. 219, in which it was held that the grant in section 4 em· braced 'an unmarried woman, as furnishing the key-note to the construction of the donation act-that it is a most benevolent one, and to be liberally 'Construed.· But m!mifestly the court only intended this liberal rule of construction to extend to questions arising under ·the act between the government and' persons- claitning rights a.s settlers, or donees thereunder, and not to questions arising between such set!.' tIers or donees or those claiming under' them; and even as thus un;." derstood,' it was applied to settlers under section 4. And so Mr. Justice MILLER, after stating (Silver v. Ladd, supra, 225,) that tion 4 of the act "was passed for the purpose of rewarding in a liberal manner a meritorious class who had taken possession of the country and held it for the United States under circumstances of great danger and discouragement," lays down the rule for the construction of the act, as between this "meritorious class" and the United States, as follows: "Anything, therefore, which savors of narrowness or illiberality in defining the class, among those residing in the territory in those ear\)' days, and partaking of the hardships which the act was intended to reward, who shall be entitled to its benefits, is at variance with the manifest purpose of congress."
By the language of the provision in question its operation is confined to settlers under section 4. They are designated therein as "such married persons"-that is, the married persons spoken of in the preceding words of such section; and also as the "married persons" who have complied with the act "so as to entitle them to the grant as above provided"-that is, as provided in the foregoing part of section 4. In Ohambers v. Ohambers, 4 Or. 153, the supreme court of the state held, upon this ground, that the provision was not applicable to the case of settlers section 5, and that the shares of the wife of a
586
FEDERAL,;RE;PORTEB.
settler under said section, upon her death, after compliance with 'the' act, descended to her ,heirs acoording to the local law of descents. Nor does this provision manifest any absolute or oontrolling purpose on the part of congress, even ,as to settlers under the fourth section, to establish a sort of joint tenancy in the don,ation betweon the husband and wife prior to the issue of the patent with the jus {Leerescendi or right of surviyorship to the longest For this survivorship, if it may ,be so called, was only to take effect in case the deceased did not dispose of his or her i:pterest by will; and even ,then it was limited to an eqlJal share in th,e donation with the children or heirs of the deceased, be the latter whom they may. Davenport v.. Lamb, 13 Wall. 428; Cutting v.Cutting, 6 Sawy.404; [S.C. 6 FED. REP. 259.]. And since the I'l>ct ·QfJuly 17, 1854, (to St. 306,) amendatory of the donation act, eit4er, of might have disposed of his or her interest in the donation by a saleand conveyance thereof, so, as, to cut off any right of survivorship under this provision in s8,etion 4., Barney v. 97 U. S. 652. But, on the other hand, the power to devise was unqualified, and under it the t6sta,.tor might dispose of his or her share of the donation to anyone, however remote from or unrelated to the survivor. There is nothing, then, in this provision in ,section 4: giving the surviving husband or wife an equal pOrtion in the deceased's share of tbe donation his Or her children or, heirs which calls for its aptodppations under section 5., Nor, in my ju.dgment. is there anything in the circumstances of the case tha,t requires the extension of this provision beyond the cases for which it purports to have been or that indicates it was or might have been the intention of congress to make it so. At the passage of the donation act there was no statute of descents in faxc,e, in Oregon. Prior to Septelllher12, 1849, when a person died in "the lawful possession of a land claim;" it was considered a part of his personal estate, and disposed of by hiil eX,ecutorsor administrators accordingly. Or. Laws 1843-49, p. 61. By an act of that data (Or. Laws p. 246) it was provided that "land claims shall descend to,und be inherited by the heirs at ll'low of .the claimant, in the same manner as is provided by law for the descent of real estate." But all that could have been meantodqtended by this. act was that sJ;lch "hei1"'( shouldha.ve the fii"stright to the possession of the claim, foJ' the territoriallegislatnre was expressly prohibited by section 6 of the
v;
HOGUE.
organic act (9 st. 323) from passing' any act "interfering wHh'Jt'he primary disposal of the soil." Nor was there any-law regulating "tlie descent of real estate" inOregoO:' other than the common law, and how far that was applicable or in force was a matter as yet undeter. mined. The territory had just been organized, and but ,one session of the legislature had been held, (1849.) The grant made by the fourth section of the act was confined to persons then in the 'territory or who should become resident thereof before the following Decem· ber-aprovision intended for the 'benefit of the immigrants of that year, then well across the plains. The greater portion of these con· templated beneficiaries had alreauy complied with the meritorious conditions of the act-residence and cultivation.-and were entitled to the grant as soon as the law could be put in operation, 80 as to enable them to make their n.otifications andproo!. Under this'state of things this provision was probably put in 'seetion 4 to meet the,contingency of the death ora ;narried donee under it, occurring between compliance with the act and· the iS8ue of a patent and before the locallegislalture ha.d established a law of descents for estates of inheritance in real property,therdorthe first'time existing in the' territory. But as to section 5 the easaw-ae different. This grant was made to persous coining into t'hecountry a.fter ))ecember 1, 1850, who should reside upon and cultivate the same for four successive years thereafter, and in the mean time the subject could be regulated by the territorial legiBlature, whose power under section (; of the organic act, supra, extended "to all rightful subjects of legi(31ation not inconsistent with the constitution and laws 'of the United States." And, in the case of persons dying before the completion of such residence and cultivation;' and before the right to the grant vested in the settler and his wife, so as tOgiV8 them an of inheritance therein,· provision was made for the'dispositionof the possessory right of the settler by section 8 of the'donMiQn act. OQ December 14, 1853, (Or. Laws 1853-4, p.8,Q,(),) territorial legislature passed an aot conoerning the descent of· real property, in which it was provided that, "when any persons be seized ,of any lands,tenements, or hereditaments, or any rig4t 'thereto, or entitled to any interest therein in fee-simple, or for the having lawfully devised the same, they shall subject to his debts," as prescribed. This law has })'eeri Bubstaritially.in force ever since, except the' periodhetweenJune 1, 1863, and Octobe'r 24, 1861; and under it, upon 'the: dea'th of jane Proebstel'in June, 1867, her share of the donation. in which she then had an, in-
588
FEDERAL REPORTER.
herita.ble estate, descended to her heirs-to her lineal descendants first, a.ndindefault of these, to her collateral heirs. These two sections,-the fourth and fifth,-although parts of one act, and containing some provisions in common, are in essentials different and independent grants. They are made upon different motives and considerations, for different quantities of land, and to a different class of persons. The first had its motive in the past and the second in the future. The one was made a8 a reward for immiaccomplished, and the other was gration and settlement offered as an inducement for future ,immigration and se,ttlement. Silver v. Ladd" supra, 22,7; Ch(l,mbers v.Chambers, supm, 155. In Barney v. Dolph, supra, 654, Mr. Chief Justice WAITE, who has towards a lucid and comprehensive exposition of this done so donation act, says,: "Section 4 was evidently intend,ed for the benefit is, the early settlers who at, the passage of the act were,occupying under the, land law of the provisional government; and that the provision ,in that section concerning tha disposition of the donation to' married persons in case of the death of one of the:q:l, after compliance with the, act and before the issue of a patent, is, "the language used, evidently" confined "in its effect to the married perso;n me;n.tioned" therein. The demurrer is sustained.
"CLARK.
by his .Next I' nend, v.
UmCAGO,
B. &Q. Ry. Co.-
(Circuit Court. S. D. Iowa. .January, 1883.) RAILROAD-NEGLIGENCE-INJURY To PASSENGERS-PLEADING.
The plaintUf in !l;suitagainst a railroad company to recover damages for In· juries wllile traveling as a passenger on the defepdant's cars through the defendant's negligence" is not bound to state in his declaration the particular factsedrlstittJ.'tingthc'negligence: It is sufficient to slate generally ,hat 'the injury was the result of the(defcndant1s negligence.
'. Action to recover damages pers90al tion: to make declaration ,more specific. 'Hagerman, McOrary et Hagerman, for plaintiff. $. H.Trirnble, for defendant. ,,' The opinion of the, court was orally by judge) who, discussed the requisites of a declaration in. sucll a. case Colorado Law neporter.