Oregon & California R. Co. v. United States and payment were made would be matter of record, and if they were not so made the original claim was canceled by operation of law, and required no cancelation on the records of the Land Office to carry the forfeiture into effect. The law forfeited the right and canceled the entry just as effectually as if the fact were evidenced by an entry upon the record." The case of Whitney v. Taylor was distinguished upon the ground that, in that case, "there was no period within which a pre-emptor was compelled to prove up and pay for his claim, except that it should be done before the land was offered at public sale by the proclamation of the President." It was held that, as the thirty months allowed to Flett had expired years before the filing of the map of definite location, there was no existing claim at that time, and that the grant of the railroad company took effect. "Thereafter there was no claim, for it had ceased and determined, and with reference to the right it was of no more validity after the expiration of that time than if the statement had never been filed." Recurring now to the case under consideration, it appears that by the 6th section of the Oregon donation act (9 Stat. at L. 498, chap. 76), it was incumbent upon the settler to notify the surveyor general, within three months from the commencement of his settlement, of the precise tract claimed by him; and by § 7, within twelve months from the time the settlement commenced, he must prove to the satisfaction of the surveyor general that the settlement and cultivation required by the act had been commenced, and that at any time after the expiration of four years from such settlement might prove the fact of continual residence and cultivation required by the 4th section, when, upon such proof being made, the surveyor general issues the proper certificate, forwards the same to the Commissioner of the General Land Office, whose duty it is to issue patents for the land. It is true that by the act of July 26, 1894 (28 Stat. at L. 122, chap. 163, U. S. Comp. Stat. 1901, p. 1522), where proof of settlement had been made under the donation acts and notice given as required by law, but there had been a failure to execute and file in the Land Office proof of continued residence and cultivation of the land so settled upon, so as to entitle the donees to patents, such claimants, their heirs, devisees, assigns, and grantees, were given the right, until January 21, 1896, "to make and file final proofs and fully establish their rights to donations" under the aforesaid act of Congress, and, upon failure to do so, they were to be held to have abandoned their claims. But by § 2 of the same act the Commissioner of the Land Office was given the right, if such right existed, "to allow or direct hearings to be instituted to show that a donation claimant has abandoned the lands described in his notice, or prevent the Commissioner, when Oregon & California R. Co. v. United States it is proved that such claim is invalid or abandoned, from canceling the same upon the official records, and thereafter disposing of the lands as a part of the public domain;" and by 3, "nothing in this act contained shall be construed to impair or affect any adverse claims arising under any law of the United States other than said donation act, to or in respect of the lands in this act referred to." It is entirely clear that the position of the government in this case is not strengthened by anything contained in this. act, since it was intended only for the relief of those who had resided continuously upon and cultivated the lands specified in the original donation notification, but had through mistake or negligence omitted to make and file their final proofs. and fully establish their rights to such donations. Such donees were given until January 1, 1896, to make such final proof and obtain their patents; but they were not given thereby the right to perfect their claims to lands which they had abandoned before completing a continued residence of four years thereon. This inference is rendered only the more clear by the 2d section, which authorizes the Commissioner, when it is proved that such claim is invalid or abandoned, to cancel the same upon the official records, and by the 3d section, which expressly saves adverse claims arising under any law other than the donation act. It is clear that title to the land here in question never passed from the United States under the donation acts of 1850 and 1853, since the donation was only made to those "who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act. Hall v. Russell, 101 U. S. 503, 25 L. Ed. 829; Maynard v. Hill, 125 U. S. 190, 31 L. Ed. 654, 8 Sup. Ct. Rep. 723. As these conditions were never complied with, the land continued to be the property of the United States, to which the railroad grant subsequently attached, unless such grant was defeated by the fact that the donation notification still remained of record in the office of the surveyor general. As the land had neither been "granted, sold, occupied by homestead settlers, pre-empted, or otherwise disposed of," the bill can only be sustained upon the ground tat at the time land was selected it was "reserved" from sale. But for what purpose was it reserved? Not for the donation settler, since he had abandoned the land fifteen years before; not for the United States, since every possible encumbrance had been removed from them, and they had lapsed into their original conditions of public lands, open to pre-emption or sale. It is true the donation notification had not been formally canceled, but the donation acts made no provision for such cancelation, although it may, perhaps, have been within the power of the Land Department to take such action even prior to the act of 1894. This, however, was not done, Oregon & California R. Co. v. United States and the land might have remained in that condition permanently, had not some other person applied to enter or purchase it by showing that it had been abandoned by the original donee. But, if this may be done by an individual pre-emptor, why may not a railroad company do the same thing by claiming the land under its grant, and showing in defense to this suit that it had actually been abandoned? It may be said that presumptively the land had been reserved, as shown by the donation notification, and for aught that appeared the donee might still be in possession; but we know of no reason why the railroad company may not show the actual facts as well as an individual who might desire to enter the land upon his own account. Even admitting that the donation notification was on file in the office of the surveyor general, there was no proof, required by § 7 of the act to be filed within twelve months from the time of settlement, that the settlement and cultivation required by the act had been commenced; nor after the expiration of four years from such settlement was there any proof of continual residence or cultivation, required by the same section. The record which informed the company that the land had been settled by a donee also apprised it that the provision of the statute had not been complied with. We think that, considering the fact that fourteen years had elapsed since the original settlement, the railroad company would be authorized to infer that the donee had abandoned the land, as in fact appears to have been the case. Under the facts of this case, we think the lands were not reserved within the meaning of the granting act. But, even if the position of the government be correct, and the patent be subject to cancelation, we see nothing to prevent the railroad company from again selecting the same land to make good its losses within the limits of its primary. grant, no intermediate rights being shown to have accrued. If such be the fact, it would be useless to direct the cancelation of the patent, as it would become the duty of the Land Department to issue immediately a new one for the same property. Germania Iron Co. v. United States, 165 U. S. 379, 41 L. Ed. 754, 17 Sup. Ct. Rep. 337; United States v. Central P. R. Co., 26 Fed. 479. The decrees of the courts below are therefore reversed and the case remanded to the Circuit Court for the District of Oregon, with directions to dismiss the bill. MR. JUSTICE MCKENNA, having filed the bill in this case as Attorney General, did not participate in this decision. 8 RR R-3 CHICAGO, R. I. & P. Ry. Co. v. COLLIER. (Supreme Court of Nebraska, June 19, 1901.) Carriers-Limiting Liability. Section 5, art. 1, c. 72, Comp. St., does not impliedly give the right to a railway company to limit its liability, under section 3 of the same article, by stipulation. Witness-Jurors. A juror is not, by reason of such position, rendered incompetent to testify in the cause in which he sits. Code Civ. Proc. § 328. Commissioners' Opinion. Department No. 1. District Court, Lancaster County; Hall, Judge. "Not to be officially reported. Error to Action by Nettie Collier against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed. W. F. Evans, L. W. Billingsley, R. J. Greene, and M. A. Low, for plaintiff in error. Webster, Rose & Fisherdick, for defendant in error. HASTINGS, C. This case is brought here on error from a verdict and judgment of $530 against defendant below for injuries alleged to have been received in a wreck near Lincoln, on defendant's railway. There are 125 separate assignments of error in the petition. Only two points, however, were urged on argument and in plaintiff's brief, and they alone will be considered. It is conceded that the main contention, the unconstitutionality of section 3, art. 1, c. 72, Comp. St., has been decided adversely to the road in other cases. Chicago, R. I. & P. Ry. Co. v. Zernecke, 59 Neb. 689, 82 N. W. 26, 17 Am. & Eng. R. Cas., N. S., 76, 55 L. R. A. 610; Chicago, R. I. & P. Ry. Co. v. Young, 58 Neb. 678, 79 N. W. 556, 14 Am. & Eng. R. Cas., N. S., 343. It is claimed, however, that this case differs from any of those heretofore decided involving this same transaction, in two particulars, viz., that a juror in the case was sworn as a witness, and that the plaintiff below was riding on a free pass which provided that the road should not be liable for his injuries. As to this last, also, it is conceded that this court has held such stipulations void. O. & R. V. Ry. Co. v. Crow, 47 Neb. 84, 66 N. W. 21; Chicago, R. I. & P. Ry. Co. v. Young, 58 Neb. 678, 79 N. W. 556, 14 Am. & Eng. R. Cas., N. S., 343; Missouri Pac. Ry. Co. v. Tietken, 49 Neb. 130, 68 N. W. 336, 5 Am. & Eng. R. Cas., N. S., 262, 59 Am. St. Rep. 526. It is claimed, however, that this ruling was made without considering the effect of section 5 of the act of 1867 (Laws 1867, p. 89), above mentioned, which counsel assert either modifies section 3, or is to be taken as repealing it. We are not able to sustain this contention. Section 5 has heretofore been construed by this court as relating to other matters than section 3. Its provisions that notice must be brought to the knowledge of the other party and assented to by him before it can have any effect to limit the carrier's liability Chicago, etc., Ry. Co. v. Collier have been supposed to relate to matters other than its liability for safety of passengers. It is admitted that, in the absence of section 5, the doctrine, "Expressio unius exclusio alterius," would prevent the existence of any limitations on the liability for passengers' safety other than the two mentioned in section 3. There would seem to be no difficulty in construing section 5 as applying to the numerous other liabilities of a carrier. The mere implication of permission to limit liability contained in a provision that it shall not be limited in one particular way, i. e., by notices and contract clauses not brought to the other party's attention, cannot be held to control the positive provision of section 3 as to what the company shall be liable for. We see no reason to depart from the former decisions of the court in regard to such stipulations. In regard to the swearing of a juror as a witness, no party ought to be compelled to try his case to a jury of witnesses, as things are now, however it may have been in the early days of our legal system. But there is no objection to the juror as a juror in this record. The error complained of is the taking of his evidence. How could the fact that he was a juror affect his knowledge of facts or the truthfulness of his statements of them? Section 328 of the Code makes of a person of capacity sufficient to understand the obligation of an oath a competent witness, except as otherwise therein declared. We do not find jurors in the list of exceptions. The trial judge is expressly included among the competent witnesses by section 348. The calling of jurors as witnesses is sanctioned by Greenleaf in a note to section 363 of his work, while excluding the judge as incompetent to both sit as such and testify. Apparently the compilers of the Code had no doubt that their general provisions were strong enough to include jurors. Dicta of this court in Richards v. State, 36 Neb. 18, 53 N. W. 1027, and Wood River Bank v. Dodge, 36 Neb. 708, 55 N. W. 234, are to the same effect. For this reason, possibly, no mention by statute was made of them while including the judge. As an objection to the competency of evidence, the fact that it comes from a juror seems clearly insufficient. An objection to a juror that he was an important witness in the cause would stand on very different ground. But there is none in this record. The voir dire examination of the jurors was not preserved. Presumably both parties knew, or ought to have known, when he was sworn as a juror, just what knowledge he had. The defendant, having made no objection then, can make none now to his acting as a juror. The plaintiff had a right to rely on the broad provisions of our statute, that every one having knowledge of the case may be required to speak, with the prescribed exceptions. In our opinion, the case should be affirmed. |