except the rear twenty-five feet thereof, has ever been occupied for railroad purposes.

"The eighty (80) acre tract, on which these leta were situated, was selected as the location of a portion of this town site, and sur- "In the year 1877 the defendant commenced veyed prior to June 20, 1872. In the year an action in the district court of Burleigh 1872 the attorney of the Lake Superior & county, territory of Dakota (now the state of Puget Sound Land Company-the company North Dakota), in which county the premthat first made this selection-commenced ises next hereinafter described were and are and thereafter continued to sell lots upon this situated, against certain parties, including the town site according to a plat thereof, which plaintiff herein, to recover the possession of was then made, and subsequently, on Febru- part of the premises here in question, which ary 9, 1874, recorded in the office of the portion is particularly described as follows: register of deeds of the county in which the Commencing at the *southeast corner of Main[265] land was situated. By the first of January, and Third streets in the city of Bismarck, the 1873, thirty buildings had been erected on the same being the northwest corner of block town site, and from that time until the eight (8), running thence east along the patent was issued the population of the city south line of said Main street, a distance of and the improvements in it continued to in- fifty (50) feet; thence south, parallel with crease. It was upon the town site thus the east line of said Third street, a distance selected and the plat thus made, which of seventy-five (75) feet to said east line of was afterwards adopte! as the plat and site said Main street, a distance of fifty (50) feet, of the city of Bismarck, that the patent to Mc- to said Third street; thence north, along said Lean was based, and this patent contained no east line of said Third treet, a distance of reservation of any right of way to the North- seventy-five (75) feet to the place of beginern Pacific Railroad Company. ning. Anu such proceedings were duly had in said action in said court (the same being a court of competent jurisdiction of the parties and subject-matter of said action) that the defendant in the action herein (the plaintiff in the action last above referred to) duly recovered in said action a judgment against the defendants in that action including the plaintiff in this action, for the possession of the premises last above described and for nominal damages for the withholding thereof.

"The congressional township embracing the premises in question was surveyed in the months of October and November, 1872, and the plat thereof filed in the General Land Office in March, 1873.

"That the value of the use and occupation of the premises in question, for six years prior to December 28, 1891, the date of the commencement of the action, is the sum of twenty-six thousand dollars.

"From the foregoing facts I find, as conclusions of law, that the plaintin is entitled to the possession of the premises above described, and to recover from the defendant the sum of twenty-six thousand dollars with interest thereon from the 28th day of December, A. D. 1891, at the rate of seven per cent per annum, and his costs and disbursements."

Mr. C. W. Bunn for plaintiff in error on both arguments. Mr. C. W. Holcomb filed a supplemental brief for plaintiff in error by leave of the court.

"On February 21, 1872 the Northern Pacific [264]Railroad Company filed in the Department of the Interior the map of its general route east of the Missouri river. This route passed about three quarters of a mile south of this eighty-acre tract. On May 26, 1873, it filed with the Secretary of the Interior, in the office of the Commissioner of the General Land Office, and he accepted, its map fixing the definite location of its line. The Interior Department thereupon designated such line upon its record maps for its use, and copies of such record maps were forwarded to and remain on file in the office of the register and receiver of the land office at Bismarck, having jurisdiction of that part of the public domain embracing the premises in question. The line thus fixed passed about two miles south of this eighty-acre tract. During the year 1872 grading was done by the company on this line extending in a continuous line from its grading east of the township in which this tract was located to a point onequarter of a mile west of the west line of this eighty-acre tract extended south to its intersection with the grading. During the year 1872 there was a line staked out across this tract substantially where the railroad is now constructed, but no grading was done on this line until the spring of 1873. In the year 1873 the railroad was constructed across this tract and has since remained and been operated upon it. The grading on its line of definite location two miles south was abandoned. The lots in question are within two hundred feet of the main track of this domain. railroad as actually constructed and more During the year 1872 there was a line than two miles from its line of definite loca- staked out across the tract, a portion of tion as shown on its map filed to definitely fix which is in dispute in this case, substantially this line, and have been occupied by the de- where the railroad is now constructed, but fendant, through its tenants, during the no grading was done on this line until the period in question; but no part of the same, spring of 1873. In the latter year the rail

Mr. Hiram F. Stevens for defendant in error on both arguments.

Mr. Justice Shiras delivered the opinion of the court:

By the second section of the act of July 2, 1864, creating the Northern Pacific Railroad Company, there was granted to that com-[266] pany, its successors and assigns, the right of way through the public lands to the extent of 200 feet in width on each side of said railroad where it may pass through the public

[ocr errors]

lowing communication addressed to the col-
lector of customs at New York:

Mr. Justice Brown delivered the opinion of the court:

Treasury Department, July 31, 1889. Sir: Referring to department letter of or cases exported by the petitioner were March 2, 1885, addressed to the then collect-"wholly manufactured" in the United States or at your port, in which a rate of drawback within the meaning of the section hereinafter was established on shooks used in the manu- cited. facture of boxes, you are informed that the department has recently given the matter further consideration, and it appears upon investigation that the boxes are made complete in Canada, with the exception of nailing, and that the only manufacture which they receive in this country consists in their thus being nailed together, which part of the labor is omitted to be done in Canada merely for the convenience in shipping to the

The single question presented for our consideration in this case is whether the boxes

United States.

The boxes appear to have been manufactured complete abroad, and in the condition imported resemble the finished furniture imported in pieces which the department has heretofore held to be dutiable at the rate applicable to finished furniture. (See Synop sis, 4272.)

The facts were, in substance, that the claimant imported from Canada in 1889 and 1890 box shooks, and from Europe steel rods, upon which duties were paid to the amount of $39,636.20 under the tariff act of March 3, 1883 (22 Stat. at L. 488, 502, chap. 121), which levied a duty of 30 per cent upon "casks and barrels, empty, sugar-box shooks, and[215] packing boxes, and packing-box shooks, of wood, not specially enumerated or provided for in this act." The box shooks so imported were manufactured in Canada from boards, which were planed and cut into the required lengths and widths for making into boxes without further labor than nailing them together. They were then tied up into bundles of sides, ends, bottoms, and tops, of from fifThe simple act of nailing them together is ience in handling and shipping. After importeen to twenty-five in a bundle, for convennot, in the opinion of the department, a tation, they were made up into boxes or cases, manufacture within the meaning of § 3019, by nailing the proper parts together with Revised Statutes, and the authority to al-nails manufactured in the United States out low drawback thereon is hereby revoked. You will accordingly receive no further entries for drawback in such cases.

Respectfully yours,

George C. Tichnor,
Assistant Secretary.
Collector of Customs, New York.

of the imported steel rods, and by trimming,
when defective in length or width, to make
the boxes or cases without projecting parts.

The ends and sides of the boxes were nailed together by nailing machines, and the sides trimmed off even with the ends by saws. Then bottoms were nailed on and trimmed in the same manner. After being filled, the tops for exportation. The cost of the labor exwere nailed on, and the boxes made ready

[214] *7. The Treasury regulations of 1884 referred to in finding 5, viz., articles 966, 967, and 968, are as follows:

"Art. 966. On articles wholly manufac-pended in the United States in the nailing, tured of imported materials on which duties about one tenth of the value of the boxes. handling, and trimming of the boxes was have been paid, a drawback is to be allowed The principal part of the labor in trimming on exportation, equal in amount to the duty the boxes was occasioned by the Canadian paid on such imported materials, less 10 per manufacturer not cutting the shooks into the cent thereof, except on exportations of refined sugars, in which case the legal retention required lengths and widths for making the boxes, the cost of which trimming the claimis 1 per cent. ant sometimes charged to the Canadian manufacturer.

"Art. 967. The entry in such cases will be as follows, and must be filed with the collector at least six hours before putting or lading any of the merchandise on board the ves-shooks, under Rev. Stat. § 3019, which reads sel or other conveyance for exportation.""

Upon this state of facts petitioner made claim for duties paid as above upon the

as follows:

Here follows a form of entry for exportation with oaths of exporter and of the proprietor and foreman of manufactory.

Article 968 contained a form of bond for exportation.

Upon the foregoing findings the court found the ultimate fact, so far as it was a question of fact, that the boxes or cases so exported were not manufactured in the United States, and, as a conclusion of law, that the claimant was not entitled to re

cover; and the petition was dismissed. Whereupon petitioner appealed to this court.

Mr. Edwin B. Smith for appellant. Messrs. Henry M. Hoyt, Assistant Attorney General, and Felix Brannigan, for appellee.

"There shall be allowed on all articles wholly manufactured of materials imported on which duties have been paid when exported, a drawback equal in amount to the duty paid on such materials, and no more, to be ascertained under such regulations as shall be prescribed by the Secretary of the Treasury. Ten per centum on the amount of all drawbacks so allowed shall, however, be retained for the use of the United States by the collectors paying such drawbacks respectively."

The question arises whether the boxes in question were "wholly manufactured" within[216] the United States of "materials imported" from abroad. The section above quoted uses the words "wholly manufactured of materiale imported," but we understand it to be con

ceded that the words "in the United States" | facture, but we may say generally that an should be considered as being incorporated article which can only be used for a particular into the section after the word "manufac- purpose, in which the process of manufactur tured." The provision would be senseless stops short of the completed article, can only without this interpolation. The objects of the be said to be partially manufactured within section were evidently not only to build up the meaning of this section; nor can we rean export trade, but to encourage manufac- gard the mere assembling and nailing totures in this country, where such manu-gether of parts complete in themselves and factures are intended for exportation, by destined for a particular purpose as a comgranting a rebate of duties upon the raw or plete and separate manufacture. Thus, prepared materials imported, and thus en chairs are made of bottoms, backs, legs, and abling the manufacturer to compete in for rounds, each one of these parts being made eign markets with the same articles manu- separately and in large quantities. If imfactured in other countries. In determining ported in this condition from abroad, and the whether the articles in question were wholly parts were assembled and glued or screwed manufactured in the United States, this ob- together here, we think it entirely clear that ject should be borne steadily in mind. such chairs would not be wholly manuThe primary meaning of the word "manufactured in the United States; and the same facture" is something made by hand, as dis- may be said of the staves heads, and hoops tinguished from a natural growth; but as ma- which constitute a barrel Upon the theory chinery has largely supplanted this primitive of the claimant, if all the parts which method, the word is now ordinarily used to constitute a wooden house were made denote an article upon the material of which separately, as they sometimes are, and imlabor has been expended to make the finished ported from abroad and put together in this product. Ordinarily, the article so manu- country in the form of a house, it would folfactured takes a different form, or at least low that the house must be said to have been subserves a different purpose from the orig- wholly constructed in this country. inal materials; and usually it is given a dif- It may be said generally, although not ferent name. Raw materials may be and universally, that a complete manufacture is often are subjected to successive processes of either the ultimate product of prior *succes-[218] manufacture, each one of which is complete sive manufactures, such as a watch spring, or in itself, but several of which may be required a penknife, or an intermediate product which to make the final product. Thus, logs are may be used for different purposes, such first manufactured into boards, planks, joists, for instance as pig iron, iron bars, lumscantlings, etc., and then by entirely different ber, or cloth; while a partial manufacture processes are fashioned into boxes, furniture, is a mere stage in the development of the doors, window sashes, trimmings, and the material toward an ultimate and predestined thousand and one articles manufactured product, such for instance as the different wholly or in part of wood. The steel spring parts of a watch which need only to be put toof a watch is made ultimately from iron ore, gether to make the finished article. If, for but by a large number of processes or trans-instance, the wheels, chain, springs, dial, formations, each successive step in which hands, and case of a watch were all imported is a distinct process of manufacture, and for from abroad, and merely put together in this which the article so manufactured receives country, we do not think it could be said that a different name. the watch was wholly manufactured within the United States. The same remark we think may be made with reference to the shooks in this case, which were practically worthless except for being put together for a box of a definite size.

The material of which each manufacture is formed, and to which reference is made in [2173019, is not necessarily the original raw material-in this case the tree or log-but the product of a prior manufacture; the finished product of one manufacture thus becoming the material of the next in rank. This case, then, resolves itself into the question whether the materials out of which these boxes were constructed were the boards which were manufactured in Canada or the shooks which were imported into the United States.

The distinction here made was alluded to in the opinion of this court in Worthington v. Robbins, 139 U. S. 337 [35: 181], in which the question arose whether "white hard enunel," used for various purposes, including watch dials, was dutiable as "watch materials," or as a simple manufacture. In deivering the opinion of the court Mr. Justice While the planing and cutting of the boards Blatchford said: "The article in question was, in Canada into the requisite lengths and to all intents and purposes, raw material. If shapes for the sides, ends, tops, and bottoms it were to be classed as 'watch materials,' it of the boxes, was doubtless a partial manu- would follow that any metal which could ulfacture, it was not a complete one, since the timately be used, and was ultimately used, boards so cut are rot adaptable as material in the manufacture of a watch, but could be for other and different objects of manu-used for other purposes also, would be dutiafacture, but were designed and appropriate ble as 'watch materials.' In order to be only for a particular purpose, i. e., for the 'watch materials' the article must in itself manufacture of boxes of a prescribed size, and bear marks of its special adaptation for use were useless for any other purpose. It is in making watches. The fact that the arnot always easy to determine the difference ticle in question was used in the manufacture between a complete and a partial manu-of watches has no relation to the condition

It is undoubtedly true that, according to our general railroad statutes and the special charters in this state, the payment or deposit of the amount of the land damages assessed or agreed is a condition precedent to the vesting of the title, or of any right in the company to construct their road, and that if they proceed in such construction without this, they are trespassers. And this has been repeatedly so held by this court.

of the citizen, to wit, to make compensation or give security for it. For this injury the citizen is entitled to redress. But his redrese cannot extend beyond his injury. It cannot extend to taking the personal chattels of the railroad company. They are not his and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. Then why should the materials laid down for the benefit of the publie be treated as dedicated to him? In the case of a common trespasser the owner of the land may take and keep his structures, nolens volens, but it is not so in this case; for though the original entry was a trespass it is well settled that the company can proceed, in due course of law, to appropriate the land, and consequently to reclaim and avail itself of the structures laid thereon."

"This may have led to the misapprehension in the present case, but it certainly is a very [272]serious misapprehension. In*these great public works the shortest period of clear acquiescence, so as fairly to lead the company to infor that the party intends to waive his claim for present payment, will conclude the right to assert the claim in any such form as to stop the company in the progress of their In Provolt v. Chicago, R. I. & Pac. R. R. works, and especially to stop the running Co. 57 Mo. 256, it was held that the conduct of the road after it has been put of a landholder in standing by while a railin operation, whereby the public acquire road company constructed its road, precluded an important interest in its continuance. him from recovering physical possession of the The party does not, of course, lose land covered thereby. Judge Wagner, after his claim or the right to enforce it in all quoting with approval the language of Chief proper modes. He may possibly have some Justice Redfield in McAulay v. Western Verrights analogous to the vendor's lien in mont Railway Co., hereinbefore cited, said: England, and here till the legislature cut it "The plaintiff did not attempt to obstruct off. But it is certain, according to the Eng- or in any wise impede the progress of the lish decisions, that he cannot stop the work, work. The plain inference was that he and especially the trains upon the road, if waived his right for prepayment of his damhe has in any sense, for the shortest period, ages and only intended to follow his clearly given to the company, either by his remedy on his judgment. His conduct express consent, or by his silence, to under- surely led the company to believe such stand that he did not intend to object to their was his purpose and induced them proceeding with their construction and opera- to pursue a course and expend large tion. If there was, then, a waiver in sums of money which, otherwise, they would fact, either express or implied, by acquiescence not have done. If plaintiff intended to rely in the proceedings of the company to the ex- on his rights and make present payment a tent of not insisting upon payment as a condi- condition precedent he should have objected tion precedent, but consenting to let the dam- and forbidden the company to interfere or to ages be and remain a mere debt, with or with- do any work on his land till the question of out a lien upon the roadbed, as the law may damage was settled. But this he did not do. turn out to be, then it is impossible to regard He acquiesced in the proceedings of the com the defendants in any sense in the light of pany to the extent of not insisting upon the trespassers or liable in ejectment." prepayment as a condition* precedent; and af{274) ter having done so, we do not think that he can maintain ejectment.

Justice v. Nesquehoning Valley R. R. Co. 87 Pa. 28, was a case where a railroad company was a trespasser, and its entry upon land not "If from negotiation in regard to the price in conformity with law, and it was held that of the land, or for any other reason, there is these irregular proceedings did not operate as just ground of inference that the works have a dedication to the landowners of the prop- been constructed with the express or implied erty of the company, placed upon the land, assent of the landowner, it would seem wholly so as to entitle said landowners to include at variance with the expectations of the said property in an assessment of damages parties and the reason of the case, that the under the railroad law, and recover their landowner should retain the right to enter upvalue as an accession to the value of the land taken by the company. In delivering the opinion of the supreme court, Chief Justice Agnew said:

on the land, or to maintain ejectment. There are other effective and sufficient remedies. A court of equity would unquestionably interfere, if necessary, and place the road in the "This is not the case of a mere trespass by hands of a receiver until the damages were one having no authority to enter, but of one paid from the earnings. 2 Redf. Am. Railw. representing the state herself, clothed with Cas. 2d ed. 353. But the only question we the power of eminent domain, having a right are called upon to decide is whether under the to enter, and to place these materials on the facts and circumstances of this case eject [273] and taken for a public *use-materials essen-ment will lie, and we think it will not." tial to the very purpose which the state has A similar question was decided in the case declared in the grant of the charter. It is of the Omaha and Northern Nebraska R. W. true the entry was a trespass, by reason of the Co. v. Redick, 16 Neb. 313. This was an omission to do an act required for the security action of ejectment for the possession of a 40

Lue owner through mesne conveyance of a large tract of land in the territory of Arizona, known as the Rancho de San Jose de Sonoita; that he had not voluntarily come into the court to seek a consideration of his title; that the title was open to question, and was in fact invalid and void; that the other defendants claimed some interests in the land, and praying that they all might be brought into court and be ruled to answer the petition, set up their titles and have them settled and adjudicated.

In an amended answer the administrator set forth the nature and extent of his title, and prayed that it be inquired into and declared valid. Reply having been filed, the case came on for trial, which resulted in a decree on March 30, 1894, that the claim for [221]confirmation of title be disallowed *and rejected. The opinion by Associate Justice Sluss contains this general statement of the facts:

The conclusion reached was that "the entire proceedings set forth in the expediente of this title and the final title issued thereon were without warrant of law and invalid." "On the 29th day of May, 1821, Leon Two of the justices dissented. Thereupon Herreros presented his petition to the in- the administrator secured an order of severtendente of the provinces of Sonora and Sin-ance and took a separate appeal to this court. aloa, asking to obtain title to two sitios of land at the place known as Sonoita. The intendente referred the petition to the commander at Tubac, directing him to cause the tract to be surveyed, appraised, and the proposed sale thereof to be advertised for thirty days.

"In obedience to this order the officer proceeded to make a survey of the tract, which was made on the 26th and 27th days of June, 1821, and on the completion of the survey he caused it to be appraised, the appraised value being one hundred and five dollars. Thereupon the proposed sale was advertised for thirty consecutive days by proclamation made by a crier appointed for that purpose, beginning on June 29, and ending on the 28th day of July, 1821. Thereupon, on the 31st day of July, 1821, the officer took the testimony of three witnesses to the effect that Herreros had property and means to occupy the tract. On October 20, 1821, the proceedings above mentioned, being reduced to writing, were by the officer returned to the intendente.

"On October 25, 1821, the intendente ferred the proceedings to the promoter fiscal for his examination.

the fees and charges required to be paid, and
with his concurrence the intendente and the[222
auction board ordered the expediente of the
proceedings to be reported to the junta su-
perior de hacienda for its approbation, so
that when approved the title might issue.

Mr. Justice Brewer delivered the opinion of the court:

The controversy in this case does not turn upon any defect in the form of the papers. The contentions of the government are that the officers who assumed to make the grant and to execute title papers had no authority to do so, and upon this ground it was held by the court of private land claims that the grant was in its inception invalid. Secondly, that if a valid grant was made it was one of quantity, and should be sustained for only that aniount of land which was named in the granting papers and paid for by the grantee.

It appears that the proceedings to acquire title were initiated by a petition to the in [223] tendant, or intendente, as he is called in the opinion of the court below, of the provinces of Sonora and Sinaloa, on May 29, 1821; re-that, so far as that officer was concerned, they were concluded and the sale completed on November 12, 1821. Nothing seems to have been done after this date until May 15, 1825, when the commissary general of the Republic of Mexico for the State of the West on application issued a title in the usual form. So the question is as to the power of these officers to bind the government of Mexico.

"On November 7, 1821, the promoter fiscal reported to the intendente the regularity of the proceedings and recommending that the land be offered for sale at three public auctions, and thereupon the auctions were ordered to be held.

"The first auction was held on November 8, 1821, the second on November 9, and the third on November 10, 1821.

"At the conclusion of the third auction the land was struck off to Herreros at the appraised value by the board of auction, of which board the intendente was a member and the president.

"There is no evidence that the sale was approved by the junta superior de hacienda. "On the 15th day of May, 1825, Juan Miguel Riesgo, commissary general of the treasury, public credit and war of the Republic of Mexico for the State of the West, issued a title in the usual form purporting to convey the land to Herreros in pursuance of the proceedings above referred to and professing to act under the authority of the ordinance of the intendentes of Spain of the year 1786."


"All these proceedings being concluded, on the 12th day of November, 1821, Herreros paid to the officers of the treasury the amount of tire appraisement, together with

Messrs. Rochester Ford and James C.
Carter for appellant.
John K. Richards, Solicitor General, for ap-
Matthew G. Reynolds and


Few cases presented to this court are more perplexing than those involving Mexican grants. The changes in the governing power as well as in the form of government were so frequent, there is so much indefiniteness and lack of precision in the language of the statutes and ordinances, and the modes of procedure were in so many respects essentially different from those to which we are accustomed, that it is often quite difficult to determine whether an alleged grant was

« ForrigeFortsett »