The facts are stated in the opinion.
Messrs. Marcus A. Smith and Barnes
& Martin for appellant.

of the guns of Morro and of the shore bat | said territory in and for the county of Co-
teries. In fact, when the shot was fired she chise to quiet title to certain mining claims
was within the range of the Morro's guns. in an action by Adolph Cohn against
The evidence is overwhelming that she did Angelina Daley et al. The other defendants
not change her course until after the shot having made default, judgment was rendered
was fired, even though she may have stopped on the trial for the defendant Daley. Af
as soon as she saw the signal. The turning firmed.
point into the Culebra or Virgin Passage
was perhaps forty miles to the eastward, and
while she could have passed the port of San
Juan on the course she was on, it would have
been within a very short distance. The dis-
regard of her duty to shun the port and not
approach it was so flagrant that the inten-
tion to break the blockade was to be presumed
though we do not hold that that was a pre-
sumption de jure.

The ship's log was not produced until three hours after she was boarded, and it now appears that the papers furnished the boarding officer, "said to be all the ship's papers," did not include two Spanish bills of health in which San Juan was entered as the vessel's destination. These were destroyed after the ship reached Charleston, and were, therefore, ]in the ship's possession when the other papers were delivered. Had they been shown, as they should have been, can it be denied that they would have furnished strong corroboration of criminal intent? Or that their destruction tended to make a case of "strong and vehement suspicion?"

The entire record considered, we are of opinion that restitution of the Olinde Rodrigues should be awarded without damages, and that payment of the costs and expenses incident to her custody and preservation, and of all costs in the cause except the fees of counsel, should be imposed upon the ship. The decree of the District Court will be so modified, and as modified affirmed.

Mr. Justice McKenna dissented on the ground that the evidence justified condemnation.

ADOLPH COHN, Appt.,

v.

ANGELINA DALEY and A. J. Mehan.

(See S. C. Reporter's ed. 539-545.)

Appeal from territorial judgment-when it will be assumed that the evidence supports the judgment.

1. It must be assumed that the evidence supports the judgment, on appeal from a territorial court, in which there is no statement of

2.

facts in the nature of a special verdict, under the act of Congress of April 7, 1874.

A statement of facts not filed within the time required by Ariz. Rev. Stat. §§ 843-845, cannot be considered as part of the record on appeal from the supreme court of that terrltory. [No. 136.]

Argued and Submitted April 4, 5, 1899.

cided May 15, 1899.

Messrs. James K. Redington and James
Reilly for appellee.

*Mr. Justice McKenna delivered the[539] opinion of the court:

This is an action to quiet title to certain mining claims in the territory of Arizona. *The appellant was plaintiff in the court[540] below, and the appellee was one of the defendants impleaded with A. J. Mehan, Dewitt C. Turner, and Bell H. Chandler.

Appellant claims to derive title from one
A. J. Mehan under an execution sale upon a
judgment obtained by him against Mehan in
one of the justices' courts of Cochise county,
in said territory, and a deed executed in pur
suance of such proceedings and purchase.

The appellee denied the ownership of appel-
lant, and asserted a superior right upon the
following allegations: That on the 11th of
April, 1890, and for more than five years be-
fore, she and one James Daley were husband
and wife, and lived together as such. At
the time of the marriage he owned no money
nor property of any kind, but that she had
three thousand dollars "in United States coin
and currency"; and prior to the 11th of
April, 1890, she and Daley used all of said
money "in prospecting for, locating, and pro-
curing, preserving, and maintaining titles to
mines and mining claims," and owned the
claims in controversy on the said 11th of
April. During the coverture she was unedu-
cated and utterly ignorant of the language,
laws, and customs of the United States and
the territory, and Daley was fairly well
versed therein; and, confiding and relying on
"the advice of her said husband," advanced
him her money "to procure, preserve, and
maintain the title" to the mining claims, and
he took advantage of her ignorance and the
confidence reposed in him, "and took and
kept the title to all of said mining claims,
name," without her knowledge or consent,
and interests in mining claims in his owr
and on the 11th of April, 1890, he abandoned
municated with her.
her, and has not since returned to or com-

On the 2d of September, 1890, Daley con-
veyed the claims by deed duly acknowledged
and recorded in the recorder's office of Co-
chise county, of said territory, to A. J. Me-
han, who gave no value therefor, and who
had full notice and knowledge of all her equi-
ties.

The appellant claims to own the claims by virtue of an attachment, judgment, execution De- sale thereunder, and a constable's "deed in the[541] case of Adolph Cohn v. A. J. Mehan. Cohn was plaintiff in the action and the purchaser

APPEAL from a judgment of the Supreme Court of the Territory of Arizona affirming the judgment of the District Court of

at the sale, and at that time and long prior
thereto had full notice and knowledge of her
equities, and notice and knowledge that Me-

of counsel with, plaintiff, and James Reilly, Esq., attorney for defendant Angela Dias de Daley; Allen R. English, Esq., for counsel." Following this recital is a verbatim transcript of the proceedings and of the evidence by question and answer, and of the rulings of the court. It concluded by the following recital:

han had given no value for his conveyance. | twenty-seventh day of May, A. D. 1892, at
On the 15th of September, 1890, Mehan con- 9.30 o'clock A. M., before the court (Hon.
veyed an undivided half interest in the Richard E. Sloan, presiding) sitting with-
claims, by a deed duly acknowledged and re-out a jury, in the presence of W. C. Štaehle,
corded, to Dewitt C. Turner, and on the 22d Esq., attorney for, and W. H. Barnes, Esq.,
of November, 1890, a like deed of one-third
interest to the defendant Bell H. Chandler,
neither of whom gave value for his convey-
ance, and both of whom had notice of her
equities, and of Mehan's knowledge thereof,
and that Mehan had given no value for his
conveyance. On the 8th day of January,
1891, the defendant Turner conveyed an un-
divided one-sixth to the defendant F. C.
Fisher, who had knowledge of her equities,
and the notice and knowledge of the prior
parties. On the 15th of October, 1890, she
commenced an action for divorce from said
Daley, and on the 14th day of May, 1891, a
decree was rendered therein in her favor dis-
solving the marriage and awarding her the
mining claims in controversy, and permitting
her to resume her maiden name of "Angela
Dias."

On the 18th of October, 1890, and before Cohn bought the claims, she commenced an action against Daley, Mehan, and Turner to quiet the title to the claims, and caused to be filed in the recorder's office of the county where the property was situated a notice of the pendency of the action, containing a statement of the nature of the action and of her ownership of and a description of the claims; and Adolph Cohn took title from Mehan after the filing and recording of such notice.

She prayed to be decreed owner of the claims, and that defendants be adjudged to have no interest in them, and that their deeds

be canceled.

The other defendants made default, and the trial proceeded on the issues made between appellant and appellee, and judgment was rendered for her and duly entered. A motion for a new trial was made, but was overruled on the 26th day of November, 1892. A bill of exceptions was submitted by the [542]appellant on the 1st of December, 1892, and settled and allowed on the 15th of said month by the judge who presided at the trial, after objections made by appellee were heard and considered.

The bill of exceptions recites "that on the 27th of May, 1892, the above cause came on regular for trial, and during the progress thereof the following proceedings were had. as more fully appears in the statement of facts filed herein expressly referred to, and the exceptions to rulings of court as therein shown are made a part of this bill of excep

tions."

Then follows an enumeration of the rulings and the motion for new trial and the ruling thereon.

A statement of facts or what is called such was submitted to the counsel of appellee on the 16th of December, 1892. It was entitled in the court and cause, and contained the following recital:

"Transcript of shorthand notes of testimony, &c., taken from the trial of the aboveentitled cause, at the courtroom of said court, in the city of Tombstone, on Friday, the

The foregoing 102 pages and documents herein referred to and to be copied into the transcript of the clerk when directed is submitted to the opposite party, the defendant, by plaintiff as a full statement of facts in the trial of this cause, and is by the plaintiff agreed to as such.

Dec. 16th, 1892.

W. H. Barnes,
Att'y for Plaintiff.

The record contains the following:

of

We agree that the foregoing-pages typewriting entitled in the above cause con-[543] tain a transcript of the reporter's notes taken at the trial of said cause, which was filed therein with the clerk of the court November 25th, 1892, but said pages also contain matter not in such transcript when so filed, to wit:

"Clerk will here copy said notice in tran-
script," and many such commands, commenc-
ing on page 3 of transcript, all commanding
or directing the clerk to insert in his tran-
script all the documentary evidence intro-
duced by plaintiff (appellant) at the trial,
but none, except in one instance, of the doc
umentary evidence of defendant (appellee),
though defendant introduced in evidence
many documents, including the deposition of
A. J. Mehan, as shown by said transcript,
pages 37 to 40, inc., and the alleged "state
ment of facts" is not such nor even a fair
statement of the evidence, and we do not
agree thereto.
James Reilly,

Attorney for Angela Diaz.
Allen R. English,
Of Counsel.

Counsel for plaintiff in the above-entitled cause of Cohn v. Mehan et al., having heretofore, to wit. on the 16th day of December, 1892, submitted to me a statement of facts in said cause, and the same having been thereupon submitted to counsel for defendants, and being by them disagreed to as correct, and being likewise found by me to be evidence, said counsel for plaintiff did thereincomplete because omitting documentary after, to wit, on the 6th day of March, 1893, ment of facts in said cause, and the same submit the foregoing as an amended statewas on said sixth day of March, 1893, by me approved and signed.

Richard E. Sloan, Judge.

A completed statement was not filed till May, 1893. The judgment was affirmed on appeal to the supreme court of the territory, and the case was then brought here.

If the so-called statement of facts was iled in time under the Arizona Revised Statutes, it was not "a statement of the facts in the nature of a special verdict made and certified by the court below" under the act of April 7, 1874. 18 Stat. at L. 27, 28, chap. 80. We must assume, therefore, that the evidence supports the judgment. Marshall v. Burtis, 172 U. S. 630 [ante, 579].

Was the statement filed in time to become a part of the bill of exceptions? Certainly not, if it was not on file at the time of the settlement of the bill of exceptions or did not afterward become a part of the record. It was submitted on the 16th of December, but not agreed to. It was not approved and signed by the judge who tried the case until March, 1893, and not filed until May, 1893.

The Revised Statutes of Arizona provide

as follows:

"843. (Sec. 195.) After the trial of any cause either party may make out a written statement of the facts given in evidence on the trial and submit the same to the opposite party or his attorney for inspection. If the parties or their attorneys agree upon such statement of facts, they shall sign the same, and it shall then be submitted to the judge, who shall, if he find it correct, approve and sign it, and the same shall be filed with the clerk during the term."

"844. (Sec. 196.) If the parties do not agree upon such statement of facts, or if the judge do not approve or sign it, the parties may submit their respective statements to the judge, who shall from his own knowledge, with the aid of such statements, during the term, make out and sign and file with the clerk a correct statement of the facts proved on the trial, and such statement shall constitute a part of the record." "845. (Sec. 197.) The court may by an order entered upon the record during the term authorize the statement of facts to be made up and signed and filed in vacation, at any time not exceeding thirty days after the adjournment of the term.'

The record shows that the November term of the court at which the case was tried was finally adjourned December 29, 1892. The statement was therefore not filed within the time required by the statute, and cannot to be considered as part of the record.

Leave granted to file petition for rehearing, and counsel allowed thirty days to file additional briefs, March 6, 1899. Rehearing granted and case taken on briefs heretofore filed, April 17, 1899. Decided May 15, 1899.

A Court of the Territory of New Mexico on

PPEAL from a judgment of the Supreme

petition for rehearing of the cause, which is
reported in 172 U. S. 171, 186, ante, 407, 413,
where judgment of the Supreme Court of the
Territory was affirmed. That judgment is
reversed, and the cause remanded for further
proceedings.

Mr. Frank W. Clancy for appellant.
Robert Dunlap for appellees.
Messrs. C. N. Sterry, E. D. Kenna, and

*Mr. Justice McKenna delivered the[545] opinion of the court:

This case was submitted with No. 106, which was between the same parties, and on the authority of the opinion in that case the judgment of the supreme court of the territory was affirmed. 172 U. S. 171, 186 [ante, 407, 413].

The cases were argued together, and it was supposed involved identically the same questions dependent upon a statement of facts which were stipulated. No distinction between the cases *was indicated in the oral[546] argument, and a reference of a few lines in a brief of thirty-five pages was overlooked.

In the petition for rehearing our attention was called to the fact that there is a substantial difference between the matters involved in this cause and those arising in No. 106. The difference is this: In 106 the right of way was in Bernalillo county through land which was public domain, whilst in this case the right of way is in Valencia county across the public domain for 33 miles only, and for 60.7 miles over land which was held in private ownership at the time of the grant to the railroad by the act of 1866. In other words, the railroad company derived its right of way for 33 miles in Valencia county under section 2 of the act of July 27, 1866, and to 66.7 miles unIt follows that on the record there is noth-der the power conferred by section 7 of said ing for our review, and judgment is affirmed.

The rulings of the court, as exhibited in the bill of exceptions, are assigned as error. But for an understanding of the rulings the testimony in the case is necessary, and we 45]1 re precluded from looking at it, because it is not properly a part of the bill of exceptions, for the reasons we have given.

TERRITORY OF NEW MEXICO, Appt.,

v.

UNITED STATES TRUST COMPANY OF
NEW YORK et al.

(See S. C. Reporter's ed. 545-551.)

Exemption from taxation of railroad right of way-separate valuation.

1. The exemption from taxation of a railroad

act. This difference was not adverted to in
No. 106, and we will now consider the effect
of it. In the opinion in 106 we said:

"The right of way is granted to the extent of two hundred feet on each side of the railroad, including necessary grounds for station buildings, workshops, etc. What, then, is meant by the phrase, 'the right of lant. Per contra, appellee contends that the way?' A mere right of passage, says appelfee was granted, or, if not granted, that such a tangible and corporeal property

was

granted, that all that was attached to it became part of it and partook of its exemption from taxation.

"To support its contention appellant urges the technical meaning of the phrase, 'right of way,' and claims that the primary presumption is that it was used in its technical sense. Undoubtedly that is the presumption, but such presumption must yield to an opposing context, and the intention of the legislature otherwise indicated. Examining the statute we find that whatever is granted is exactly measured as a physical thing, not as an abstract right. It is to be two hundred feet wide and to be carefully broadened, so as to include grounds for the superstructures indispensable to the railroad."

2. It is contended by the appellee that the assessment was invalid because the laws of the territory required the assessment of the[548] right of way and its superstructures to be made as an entirety.

The contention is technical. It is not complained that the valuation of the superstructures was excessive, but that they were assessed as personal property, and hence invalidly assessed, because by the laws of the territory the term "real estate" includes lands to which title has been acquired and improvements, and the term "improvements" includes all buildings, structures, fixtures, and fences erected upon or fixed to land, whether title has been acquired or not.

The record does not afford the means of judging of the contention as clearly as might be wished, but we think it is not tenable.

The intervening petition, which is the basis of the proceedings, proceeds upon the ground that omissions were made in assessments of property to the railroad company for a series of years beginning with the year 1892 and ending with 1896, and that additions were made of said property under the laws of the territory for said years. The valuation of the property and the taxes levied against it are stated, and a description of the property is attached.

After further consideration of what was granted, we also said: "The interest granted by the statute to the Atlantic & Pacific Railroad Company therefore is real estate of corporeal quality, and the principles [847]of such apply. One of these, and an elemental one, is that whatever is erected upon it becomes part of it." And we concluded that not only the right of way was exempt, but all its superstructures were exempt. But our conclusion was expressly based on the terms of the statute, and we took care to affirm the rule of construction which had been announced many times and in many ways, that It is alleged that the receiver of the comthe taxing power of the state is never pre-pany refuses payment because he claims that sumed to be relinquished unless the intention be expressed in terms too clear to be mistaken. If a doubt arise as to the intention of the legislature, that doubt must be solved against exemption from taxation.

Applying this rule to the act of July, 1866, the exemption from taxation must be confined to the right of way granted by the United States by section 2 of the act, and to the superstructures which become a part of it, and not to the right of way which the railroad company may have acquired under section 7, or independently of that section. Section 1 creates the corporation and authorizes it to construct and maintain a continuous railroad and telegraph line from and to certain points, and invests the company with the powers, privileges, and immunities necessary to effect that purpose. Section 2 provides: "That the right of way through the public lands be, and the same is hereby granted, to the said Atlantic & Pacific Railroad Company for the construction of a railroad and telegraph line as proposed. Said way is granted to said railroad to the extent of one hundred feet in width on each side of said railroad where it may pass through the public domain, and the right of way shall be exempt from taxation within the territories of the United States."

The right of way which is granted and the right of way which is exempt from taxation is precisely identified by the natural and first meaning of the words used and their relations. It would require an exercise of construction to extend the exemption, and even if there are reasons for it, there are certainly reasons against it, and in such conflict the rule requires that the latter shall prevail.

the property is exempt from taxation under
the act of July, 1866; but it is also alleged
"that the said exemption from taxation ex-
tends only to the right of way granted to
said railroad company on each side of its
railroad where it may pass through the pub-
lic domain, and does not extend to any im-
provements made upon the right of way,
nor to the said right of way itself where it
passes through land not included in the pub-
lic_domain."

It is prayed that "the said taxes, so levied
as aforesaid," be declared a lien on the prop-
erty in the hands of the receiver, and that he
be ordered "to pay the said taxes." General
relief is also prayed.

To the petition of intervention the receiver submitted pleas respectively to the claim of taxes for each of the years. The pleas were substantially alike, and alleged the assessment of the company's property for each of the years, with a description or designa-[549] tion of it, the value at which it was assessed, and the taxes levied against it and the amounts of taxes paid by the company.

In the first plea it is alleged that the company through its officers made a return to the county assessor of its property situated in the county, and a copy of the return is at tached and made part of the plea. Discriminating the property upon which the taxes were paid and that in the return of the company assessed, the plea alleges:

"That the other property returned by the taxing officers of said railroad company for said year was and is the property upon which the taxes are paid as above stated, and as shown by Receiver's Exhibits 3 and 4.

"That the only pretended or claimed levy of taxes against any property of the Atlantic & Pacific Railroad Company for the said