948
92 FEDERAL REPORTER.
. Wm. E. Simonds, for plaintiff. A. 'M. for defendants. PER eCRIAM. An attorney's docket fee, under section 824, Rev. St. U. S., is only taxable upon final hearing, or upon a rehearing allowed upon the merits of the case, on demurrer to pleadings, and then only when such hearing disposes of the case. 'fhe decree in this case, although for costs, and authorizing execution, is final only as to an interlocutory motion.
DE ROUX et al. v. GIRARD et at (Circuit COUl't, E. D. Pennsylvania. I'Oo.55. COSTs-FINAL HEAHTKG IN EQUITY-DOCKET FEE.
April 5, 1899.)
Where defendant demurred to a bill in equity on the ground that it did not connect her with the cause of action, and plaintiff filed a replication, and, before the issue of law was argued. plaintiff discontinued thc suit pUl'suant to a stipulation whereby defendant agreed to such a course, there was no "final hearing," within Rev. St. § 824, entitling defendant to a docket fee of $20.
Appeal from Taxation of Costs. Carrie B. Kilgore, for complainants. H. A. Ingram, for respondents. McPHERSON, District Judge. Among other defendants. this bill in equity was brought against Caroline G. HIIDsworth, who demurred upon the ground that the bill did not connect her with the plaintiffs' cause of action. The plaintiffs filed a replication, but the issue of law thus formed was neither argued nor decided; for within a few weeks the plaintiffs discontinued the bill ago.inst Mrs. Hunswnrth. Her counsel regards this disposition of the case as a "final hearing." within the meaning of section 824 of the Revised Statutes, and to be allowed the docket fee of $20. 'L'he decisioil8 are not in complete harmony upon the question what constitutes a final hearing; but we need not examine them now, fo·r it further appears that "Mrs. Hunswnrth signed the following stipulation: "I herebj a.gree to tllt' above discontinuance;" and this, as it seems to us, relieves the pending controversy of all difficulty. We think that the case was disposed of by consent of parties, and not by a.ny action that could be construed as "a hearing," either final or otherwise. So far as the docket fee of $20 is concerned, the appeal is sustained.
EASTERN OREGON LAND CO. V. COLE.
949
EASTERN OREGOX LA:'\D CO. v. COLE et aI. (Circuit Court of Appeals, Ninth Circuit. Xo.45:1. February 6, 1899.)
1.
EJECT)IENT-DEFENSES-ADVERSE POSSESSION-NoTORIOUS OWNERSHlP-EvI· DENCE.
\Vhere, in ejectment, defendant's possession of the land in controversy was admitted, evidence that his grantor had been uniformly consi(1ered the owner, in the community where the land was situatel1, for a period sufficient to establish defendant's claim of title by adverse possession, was admissihle to show the character of plaintiff's possession.
2. SAME-INSTRUCTIONS-ADVERSE POSSESSI0N-DEFINITIOK-COLOR OF Tl'rLE.
A charge that if plaintiff and his predecessors in interest had held "adverse. actual, open, and continuous possession of the premises in controversy for a period of 10 years, a complete title was thereby acquired," correctly defines "adverse possession," since the word "adverse," is a general term, and includes a cIa im under color of title. FAILUHE TO REQUEST INSTHUCTIONS EF" F'ECT,
3. REVIEW - OMISSION '1'0 CHARGE -
'''here no requests to charge are made, an omission to charge on a particular point, or an objection that a particular instruction was not sufficiently definite, eannot he assigned as error on appeal.
In Error to the Circuit Court of the United States for the District of Oregon. This was an action of ejectment commenced by the plaintiff in error in the circuit court of the L"nited States for the district of Oregon on the 2Gth day of September, 189(;, against T ..J. Cole, .J. L. Cole, a11(1 Emory Cole, to recover the possession of certain lands in county, Or., within what is known as the "Dalles Hoad Land Grant." and for damages in the ;;um of $3,600 for withholding the same. The plaintiff alleged ownership of the land in fee simple. under an act of congress entitled "An act granting lands to the state of Oregon to aid in the constmction of a military wagon road from Dalles City. 011 the Columbia river, to Fort Boise, on the Snake river," approved February 2;-', 18l)7. 14 Stat. 400. It was further alleged: That the act of congress granted to tlw state of Oregon certain lands to aid in thE' constl'llction of a military road from Dallas City, on the Columbia river, by way of 'Vatson, Canyon City. and Mormon 01' HumboIc1t Basin, to a point on Snake river opposite Ft. Boise, in Idaho territory. 'fhat these lands consisted of alternate sections of public lands, designated by odd numlJers, to the extent of three sections in widlh on eaeh side of said road. That the lands thereby granted to the ,,'tate should be disposed of only in the follow· ing manner: '''l'hat is to say, that the governor of said state shall certify to the secretary of the interior that ten consecutive miles of said road are com· pleted, then a quantity of land hereby granted, not to exceed thirty sections, shall be sold, and so on from time to time until the road shall be completed," That on the 20th day of October, 18G8, the legislatin, assembly of the state of Oregon passed, and the governor of the state approved, an act entitled "An act dedicating cei-tain lands to the Dall{,s Military Road Company." 'l'hat this act set forth the aet of congress, and granted to the Dalles :\Iilitary Hoad Company all lands, right of way, rights, privileges, and immunities granted or pledged to the state of Oregon by said act of congress, and al;;o granted and pledged to said the Dalles Road Company all moneys. lands. rlghts. privileges, and immunities which might thereafter be granted to the state of Oregon to aid in the construction of said road. That prior to the 23d llay of ,Tune, 1869, the Dalles Military Hoad Company surveyed and definitely located the line of its said wagon road between the points and npoll the route designated in said act of congress and in the said act of the legislative as· sembly of the state of Oregoll, and had fully constructed and completed said road, and filed in the execntive office of the governor of the state of Oregoll a plat or map of the said Dalles Road, upon which was