3. That the legal title to the lands being in the State, it was the owner of the logs cut thereon, and could authorize the defendant as its agent to take possession of them wherever found; and

4. That, under the law of Minnesota, the plaintiffs having mingled the logs, cut by them on the lands of the State, with other logs belonging to them, so that the two classes could not be distinguished, the defendant had a right, after demand upon the plaintiff, to take from the mass a quantity of logs equal to those which were cut on the lands of the State.

The plaintiffs controvert these several positions, and also contend that under the stipulation of the parties and the pleadings in the 50*1 case, no proof of title in the State *was admissible; and that if the Acts of Congress vested a title in the State, that title was transferred by an Act of its Legislature, passed March 10, 1869, to a railroad corporation created for the purpose of constructing the railroads designated in those Acts.

The position, that under the stipulation of the parties and the pleadings no proof of title in the State to the logs was admissible, cannot be sustained. The complaint alleges property 59*] and right of *possession in the plaintiffs; the answer traverses directly these allegations and, under the issue thus formed, any evidence was admissible on the part of the defendant which went to show that the plaintiffs had neither property nor right of possession. Evidence of title in the State would meet directly the averment, upon proof of which the plaintiffs could alone recover; and the stipulation was evidently framed upon the supposition that title in the State for there was no other stranger-would be offered, and it provided for the inconclusiveness of the evidence against the possession or the plaintiffs unless the defendant connected himself with that title. The admitted quiet and peaceable possession of the property by the plaintiffs at the time of the seizure was prima facie evidence of title, and threw the burden upon the defendant of establishing the contrary.

Besides, it is evident, notwithstanding the words of transfer to the company contained in the first part of the 19th section of the Act of the State, that it was not the intention of the State that the title should pass except upon the construction of the road. Its concluding language is that "Upon the construction and completion of every twenty *miles of said [*60 railway, the said company shall acquire the fee simple absolute in and to all that portion of the land granted" to the State appertaining to the portion of the railway so constructed and completed.

We proceed, therefore, to the consideration of the several grounds upon which the defendant justifies his seizure of the logs in controversy, and claims a return of them to him.

1. That the Act of Congress of June 3, 1856, passed a present interest in the lands designated there can be no doubt. The language used imports a present grant and admits of no other meaning. The language of the 1st section is. "That there be, and is hereby granted to the State of Wisconsin" the lands specified. The 3d section declares "That the said lands hereby granted to said State shall be subject to the disposal of the Legislature thereof;" and the 4th section provides in what manner sales shall be made, and enacts that if the road be not completed within ten years "No further sales shall be made, and the lands unsold shall revert to the United States." The power of disposal and the provision for the lands reverting both imply what the 1st section in terms declares, that a grant is made; that is, that the title is transferred to the State. It is true that the route of the railroad, for the construction of which the grant was made, was yet to be designated, and until such designation the title did not attach to any specific tracts of land. The title passed to the sections, to be afterwards located; when the route was fixed, their location became certain and the title, which was previously imperfect, acquired precision and became attached to the land.

In the case of Rutherford v. Greene, 2 Wheat., 196, a similar construction was given by this court to an Act of North Carolina, passed in 1782, which provided that twenty-five thousand acres of land should be allotted and given to General Greene and his heirs within

the limits of a tract reserved for the use of

the army, to be laid off by commissioners appointed for that purpose. The commissioners, pursuant to the directions of the Act, allotted the twenty-five thousand acres and caused the quantity to be surveyed and the sur- [*61 vey to be returned to the proper office, and the questions raised in the case related to the validat which it commenced. The court held that the general gift of twenty-five thousand acres lying in the territory reserved became by the survey a particular gift of the quantity contained in the survey, and concluded an extended examination of the title by stating that it was the clear and unanimous opinion of the court, that the Act of 1782 vested a title in General Greene to the twenty-five thousand acres to be laid off within the bounds desig nated, and that the survey made in pursuance

On the 6th of March, 1820, Congress passed an Act for the admission of Missouri into the Union, and among other regulations to aid the new State, enacted "that four entire sections of land be, and the same are hereby granted to said State for the purpose of fixing the seat of government thereon, which said sections shall, under the direction of the Legislature of said State, be located as near as may be in one body, at any time, in such townships and ranges as the Legislature aforesaid may select, on any of the public lands of the United States." In Lessieur v. Price, reported in 12 How., 59, the operation of this Act was considered; and the court said:

"The land was granted by the Act of 1820; it was a present grant, wanting identity to make it perfect; and the Legislature was vested with full power to select and locate the land; and we need only here say, what was substantially said by this court in the case of Rutherford v. Greene, that the Act of 1820 vested a title in the State of Missouri of four sections; and that the selection made by the State Legislature pursuant to the Act of Congress, and the notice given of such location to the Surveyor General and the register of the local district where the land lay, gave precision to the title, and attached to it the land selected. The United States assented to this mode of proceeding; nor can an individual call it in question."

62*] *Numerous other decisions might be cited to the same purport. They establish the conclusion that, unless there are other clauses in a statute restraining the operation of words of the present grant, these must be taken in their natural sense to import an immediate transfer of title, although subsequent proceed ings may be required to give precision to that title and attach it to specific tracts. No individual can call in question the validity of the proceedings by which precision is thus given to the title where the United States are satisfied with them.

The rules applicable to private transactions, which regard grants of future application-of lands to be afterwards designated as mere contracts to convey, and not as actual conveyances, are founded upon the common law, which requires the possibility of present identification of property to the validity of its transfer. legislative grant operates as a law as well as a transfer of the property, and has such force as the intent of the Legislature requires.

A

The case of Rice v. R. Co., reported in 1 Black, 358, 17 L. ed., 147, does not conflict with these views. The words of present grant in the 1st section of the Act there under consideration, were restrained by a provision in a subsequent section declaring that the title should not vest in the Territory of Minnesota until the road or portions of it were built.

The grant of additional land by the 1st section of the Act of Congress of 1864 is similar in its language and is subject to the same terms and conditions as the grant by the Act of 1856. With the other grants, made by the Act of 1864, we are not concerned in the present case.

2. The provision in the Act of Congress of 1856, that all lands remaining unsold after ten

road be not then completed, is no more than a provision that the grant shall be void if a condition subsequent be not performed. In Sheppard's Touchstone it is said: "If the words in the close or conclusion of a condition be thus: that the land shall return to the enfeoffor, etc., or that he shall take it again and turn it to his own profit, or that the land shall revert, or that the feoffor shall recipere the land, these [*63 are, either of them, good words in a condition to give a re-entry-as good as the word 'reenter'-and by these words the estate will be made conditional." Shep. Touch., 125. The prohibition against further sales, if the road be not completed within the period prescribed, adds nothing to the force of the provision. A cessation of sales in that event is implied in the condition that the lands shall then revert; if the condition be not enforced the power to sell continues as before its breach, limited only by the objects of the grant, and the manner of sale prescribed in the Act.

And it is settled law that no one can take advantage of the non-performance of a condition subsequent annexed to an estate in fee, but the grantor or his heirs, or the successors of the grantor if the grant proceed from an artificial person; and if they do not see fit to assert their right to enforce a forfeiture on that ground, the title remains unimpaired in the grantee. The authorities on this point, with hardly an exception, are all one way from the Year Books down. And the same doctrine obtains where the grant upon condition proceeds from the government; no individual can assail the title it has conveyed on the ground that the grantee has failed to perform the conditions annexed. Shep. Touch., 149; Nicoll v. R. R. Co., 12 N. Y., 121; People v. Brown, 1 Cai., 416; U. S. v. Repentigny, 5 Wall., 267, 18 L. ed., 645; Dewey v. Williams, 40 N. H., 222; Hooper v. Cummings, 45 Me., 359; Southard v. R. Co., 2 Dutch., 13.

In what manner the reserved right of the grantor for breach of the condition must be asserted so as to restore the estate depends upon the character of the grant. If it be a private grant, that right must be asserted by entry or its equivalent. If the grant be a public one, it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, finding the fact of forfeiture and adjudging the restoration of the estate on that ground, or there must be some legislative assertion of ownership of the property for breach of the condition, such as [*64 an Act directing the possession and appropriation of the property, or that it be offered for sale or settlement. At common law the sovereign could not make an entry in person, and, therefore, an office found was necessary to determine the estate; but, as said by this court in a late case, "The mode of asserting or of resuming the forfeited grant is subject to the legislative authority of the government. may be after judicial investigation, or by taking possession directly under the authority of the government without these preliminary proceedings." U. S. v. Repentigny, supra; Finch v. Riseley, Poph., 53. In the present case no action has been taken either by legislation or

It

A common carrier cannot, even by express contract, limit its liability for loss occasioned by its own negligence.

New Jersey Steam Navigation Company v. Merchants' Bank, 6 How., 344; N. Y. Central R. Co. v. Lockwood, 17 Wall., 357, 21 L. ed., 627.

The plea admits the loss was caused by the carelessness and negligence and improper conduct of the defendant, its agents and servants, but seeks to avoid liability for the loss by force of the alleged agreement. That the demurrer was rightly sustained, follows from the decisions of this court above cited.

The carrier is bound to perform the service upon being paid therefor, and it is a dangerous policy to allow it to exonerate itself, even from its full liability at common law, by any artifice, to the injury of those who are, in the ordinary course of business, compelled to employ its services.

Filebrown v. G. T. R. Co., 55 Me., 462 and cases cited: Blossom v. Dodd, 43 N. Y., 264; Southern Express Co. v. Moon, 39 Miss., 822; Orndorff v. Adams Exp. Co., 3 Bush. (Ky.), 194; Jones v. Voorhees, 10 Ohio, 145.

The case of The Southern Express Co. v. Caperton, 44 Ala., 101, is, in all essential respects, the same as the one at bar. The court held that such a stipulation is unreasonable and tends to fraud and is inoperative.

Precisely similar is the case of Southern Exp. Co. v. Barnes. 36 Ga., 532; also, Blossom v. Dodd, above cited.

But a few days after the delivery of the money to the Company (April 23, 1862), New Orleans was captured by the Union forces, rendering it almost impossible for the defendant

v. Atna Ins. Co., 27 Vt.. 99; Amesbury v. Bowditch Ins. Co., 6 Gray, 596; Fullam v. N. Y. Ins. Co.. 7 Gray, 6; Peoria Ins. Co. v. Whitehall. 25 Ill., 466; Brown v. Roger Williams Ins. Co., 1 R. I., 30, 7 R. I., 301; Patrick v. Farmers' Ins. Co., 43 N. H., 621; Portage Co. Ins. Co. v. West. 6 Ohio St., 599; Portage Ins. Co. v. Stukey, 18 Ohio, 455; Merch's, etc., Ins. Co. v. Lacroix, 35 Tex., 249, 14 Am. Rep., 370; Carter v. Humbolt Ins. Co., 12 Iowa, 287; Riddlesberger v. Hartford Ins. Co., 74 U. S. (7 Wall.), 386; Brown v. Savannah Ins. Co., 24 Ga., 97; N. W. Ins. Co. v. Phoenix O. & C. Co., 31 Pa., 448; Edwards v. Lycoming Ins. Co., 75 Pa. St., 378; Leadbeater v. Etna Ins. Co., 1 Shepl., 267; Cray v. Hartford Ins. Co., 1 Blatchf., 28; contra, Eagle Ins. Co. v. Layfayette Ins. Co., 9 Ind., 443; French v. Lafayette Ins. Co., 5 McLean, 461.

Such condition may be waived. The waiver is generally a question for the jury. Mere silence is no waiver, nor is refusal to pay on other grounds nor talks about settlement, nor promise to write and inform insured what they will do. Columbian Ins. Co. v. Lawrence, 27 U. S. (2 Pet.), 25; Ripley v. Etna Ins. Co., 29 Barb., 552; Lambkin v. Western Ass. Co., 13 U. C., 361; Graves v. Wash. Ins. Co., 12 Allen, 391; Coursin v. Pa. Ins. Co., 46 Pa. St., 323; McFarland v. Peabody Ins. Co., 6 W. Va. 425; Gooden v. Amoskeag F. Ins. Co., 20 N. H., 73. The failure of a previous action commenced within the specified time, which failed for a technical reason, or in which nonsuit was granted, is not a waiver of this condition. Riddlesberger v. Hartford Ins. Co., 74 U. S. (7 Wall.), 386; Wilson v. Ætna Ins. Co., 27 Vt., 99: Brown v. Roger Williams Ins. Co., 7 R. I., 301; Arthur v. Homestead F. Ins. Co., 78 N. Y., 462, 34′ Am. Rep. 550.

Acts to constitute a waiver must be such as to amount to an agreement, express or implied, or to work a fraud on the insured if this waiver is not carried out. Gooden v. Amoskeag Ins. Co., 20 N. H., 73.

The insurer may, however, be estopped to plead the_condition, as where the failure of suit brought

in error to know that the consignee had not received the remittance.

In Semmes v. Hartford Ins. Co., 1 Wall., 158, 20 L. ed., 490, the court took notice of the period of the war, and held that the disability imposed upon the plaintiff thereby relieved him from the consequences of failing to bring suit within the time limited by the terms of an insurance policy. This principle would apply to the present case.

Mr. Justice Strong delivered the opinion of the court:

re

The defendants in the court below having been sued as common carriers for their failure to deliver at New Orleans a package received by them on the 23d day of April, 1862, at Jackson, Tennessee, pleaded that when the package was received, "It was agreed between them and the plaintiff, and made one of the express conditions upon which the package was ceived, that they should not be held liable for any loss of, or damage to, the package whatever, unless claim should be made therefor within ninety days from its delivery to them." The plea further averred that no claim was made upon the defendants or upon any of their agents, until the year 1868, more than ninety days after the delivery of the package to them, and not until the present suit was brought. To the plea thus made the plaintiff demurred generally, and the circuit court sustained the demurrer, giving judgment thereon against the defendants. Whether this judgment was correct, is the only question presented by the record which we can consider.

Notwithstanding the great rigor with which courts of law have always enforced the obliga

within the limited time was caused by his fraud or fault, or where he so acted as to induce insured to delay under a belief that his rights were safe, or that his claim would be paid. Andes Ins. Co. v. Fish, 71 Ill., 620; Derrick v. Lamar Ins. Co., 74 Ill., 404 Curtis v. Home Ins. Co., 1 Biss., 485; Grant v. Lexington Ins. Co., 5 Ind., 23; Mickey v. Burlington Ins. Co., 35 Iowa, 174, 14 Am. Rep., 494; Black v. Winneshiek Ins. Co., 31 Wis., 74 Fullam v. N. Y. Union Ins. Co., 7 Gray, 61; Ames v. N. Y. Union Ins. Co., 14 N. Y., 253; Ripley v. Astor Ins. Co., 17 How. Pr., 445; Mayor, etc., of N. Y. v. Hamilton F. Ins. Co., 10 Bosw., 537, 39 N. Y., 45 Peoria Ins. Co. v. Hall, 12 Mich., 202, Little v. Phoenix Ins. Co., 123 Mass., 380, 25 Am. Rep., 96; Killips v. Putnam F. Ins. Co., 28 Wis., 472; 9 Am. Rep., 506; Underwriters' Agency v. Sutherlin, 55 Ga., 266.

Where other conditions of the policy to be performed before suit, are such that the suit cannot be brought within the time limited, the condition imposing the limitation is void. Stout v. City Ins. Co., 12 Iowa, 371; Longhurst v. Star Ins. Co., 19 Iowa, 364: Mayor, etc., of N. Y., v. Hamilton Ins. Co., 10 Bosw., 537; Chandler v. St. Paul F. & M. Ins. Co., 21 Minn., 85, 18 Am. Rep., 385.

If assured was induced by acts of officers or agents of company to suspend for a certain time the performance of acts required on his part, after loss, such time should be added to the time limited for bringing action. Killips v. Putnam F. Ins. Co., 28 Wis., 472, 9 Am. Rep., 506.

A promise to pay, or an adjustment of the loss, waives the condition and makes it unnecessary to bring suit in the limited time. Ill. Mut. F. Ins. Co. v. Archdeacon, 82 Ill., 236, 25 Am. Rep., 313; Ames v. N. Y. Union Ins. Co., 14 N. Y., 253; Black v. Winneshiek Ins. Co., 31 Wis., 74.

An injunction obtained by a third party restraining the defendant from paying, and the holders from receiving, the loss will not waive the limitation. Wilkinson v. First Natl. Ins. Co., 72 N. Y., 499, 28 Am. Rep., 166.