York to Hamburg, became disabled about | ment with a passing steamship to pay £500 340 miles from Queenstown. The weather for half an hour's towage, in order to get was fine and the sea smooth, but after toss- his engines to work. The hawser broke iming about for four or five days, she hoisted mediately after the completion of the agreed signals of distress. Another steamer bore time, and the steamship refused to continue down upon her bound from Antwerp to Phil- the towage. It was held that although no adelphia, and demanded £20,000 to take her benefit had resulted from the service, the to Queenstown. The master of the Silesia agreement had been duly carried out, and offered £5,000, and finally agreed to pay that it was not, under the circumstances, £15,000, under threat of the other steamer manifestly unfair and unjust, and therefore to leave him. The service occupied three the stipulated sum must be paid. The case [200]days. *The court set aside the agreement as was certainly a hard one, but the court held exorbitant, and awarded £7,000. Evidently that, notwithstanding the services lasted advantage was taken of the helpless condi- but thirty minutes, the whole £500 should tion of the Silesia, and the agreement was be paid. signed under compulsion. men, who agreed for a consideration which amounted to but little more than a shilling apiece to undertake the salving of a vessel worth £700. The salvors labored for two hours at great risk of their lives, and the court naturally held the consideration to be merely nominal. In none of these cases, except, perhaps, In The Prinz Heinrich, L. R. 13 Prob. Div. that of The Phantom, was the agreement set 31, the master of the Prinz Heinrich, which aside except upon proof of corruption, supwas in a position of serious danger, and pression of facts, or circumstances amountashore upon a barbarous and thinly inhab-ing to a compulsion. In the case of The ited coast, entered into a written agreement Phantom the circumstances were peculiar. with the master of the salving steamer, The salvors were seven ignorant longshorewhereby he agreed to pay £200 a day for every day the latter stood by and assisted by towing to get the Prinz Heinrich off, and in the event of her being got off, or coming off the rocks during the continuance of the agreement, to pay £2,000 in addition. The Prinz Heinrich came off the same day, either owing to the jettison of her cargo or to the towing of the salving steamer. The court held the agreement to be reasonable, and that the salvors were entitled to recover the full £2,200, although the Heinrich was so much damaged that she was subsequently sold for £3,500. The cargo was valued at £14,000. This is a strong case in favor of sustaining the agreement. In The Mark Lane, L. R. 15 Prob. Div. 135, a steamer becoming disabled in the Atlantic Ocean in fine weather, about 350 miles from Halifax, agreed to pay another steamer £5,000 to tow her to Halifax, and, in case of failing in the attempt to reach there, to pay her for the services rendered. The value of the property saved was somewhat less than £30,000. The contract was set aside, apparently because of the stipulation in the agreement to pay for the services rendered even if they were unsuccessful. The court found the contract to have been signed under compulsion and threat of the salvage steamer to leave her if the master refused. In The Rialto [1891] P. 175, a steamer in the Atlantic fell in with another which had broken her main shaft. Her master thereupon entered into an agreement that the owner should pay £6,000 for being towed to the nearest port, believing that unless he consented to such terms the salvors would not assist. The distance towed was about 450 miles, and the value of the saved prop[201]erty £38,000. The weather was fine when the contract was made. There was no serious risk to the salvors or their vessel. The court found the contract to be inequitable, that the parties stood on unequal terms, and reduced the amount to £3,000. Under the continental system the courts appear to exercise a wider discretion, and to treat contracts as of no effect when made while the vessel is in danger. Some intimations go so far as to say that they will be disregarded whenever made before the services are rendered. The doctrine of these courts seems to have arisen from the following extract from the fourth article of the Rules of Oleron: "And yf it were so, that the mayster and the marchauntes have promised to folke, that shuld helpe them to save the shyp and the said goodes, the thyrde parte or half of the said goodes which shuld be saved for the peryll that they be in, the justyce of the[202] country ought well to regarde what payne and what labour they have done in saving them, and after that payne, notwithstanding that promise which the said mayster and the merchauntes shall have made, rewarde them. This is the judgement." By the German Commercial Code, art. 743, it is enacted that, "when during the danger an agreement has been made as to the amount of salvage or payment for assistance, such agreement may nevertheless be disputed on the plea that the amount agreed upon was excessive, and the reduction of the same to an amount more in accordance to the circumstances of the case may be demanded." Under the Scandinavian Code, art. 27, the master may, within two months, bring the question of contract before the court, which can refuse the amount if considerably in excess of a reasonable payment for the services performed. Even if it be agreed that the amount be settled by arbitration, the person liable to pay may repudiate the agreement if he does so within fourteen days. The most ravent case in the English courts is that of The Strathgarry [1895] P. 264. In this case a master of a vessel whose cylin- By the Commercial Code of Holland, art. ders were disabled entered into an agree-568, every agreement or transaction regard ing the price of assistance or of salvage may be modified or annulled by the judge, if it has been made in the open sea or at the time of stranding. Nevertheless, when the danger is passed, it shall be lawful for both to make regulations or agreements as to the price of assistance or salvage. By the Commercial Code of Portugal, art. 1608, and by that of the Argentine Republic, § 1469, every agreement for salvage made upon the high seas or at the time of stranding, with the captain or other officer, shall be null both with respect to the vessel and to the cargo; but after the risk has terminated the price may be agreed upon, although it will not be binding upon the owners, consignees, or underwriters who have not consented to it. The French, Belgian, Italian, Spanish, and Brazilian Codes have no special provisions upon the subject, and the question of sustaining or angulling them is rather a question of fact than of law. having given up his idea of getting her off with her own anchors, telegraphed his owners and also Lloyds' agent at Galveston, who appear to have sent Mr. Clarke, one of the libellants, *down on Sunday evening. He of-[204] fered to undertake the relief of the ship for what the court would allow him. This offer the master declined. About the same time Mr. Sorley, Lloyds' agent, came down to the vessel, saw her situation, remained there two days, and advised the master to invite bids for her relief. He obtained two bids, one for $24,000 and one made by the libellants for $22,000, and on the advice of Sorley and of his owners, Pynam, Bell & Co., of Newcastle-on-Tyne, with whom he kept in constant communication by cable, he accepted libellants' bid, and a contract was entered into, whereby they agreed to float the Elfrida and place her in a safe anchorage, and to complete the job within twenty-one days from date. The master agreed to pay therefor the sum of $22,000, but reserved the 203] *We have examined the cases cited by coun- right to abandon the ship in lieu of this sel in the Revue Internationale de Droit Mar- amount. At the request of the owners he itime, and find that they are more favor- also inserted a further stipulation that if able to the respondent than the English and the libellants should fail to float the ship and American authorities. In short, they ap- place her in a position of safety within twenpear to pay much less regard to the ty-one days, they should receive no compensanctity of contracts than obtains un-sation whatever for the work performed, or der our system, and we are loath to accept them as expressing the true rule upon the subject. Indeed, we have had frequent occasion to hold that the maritime usages of foreign countries are not obligatory upon us, and will not be respected as authority, except so far as they are consonant with the well-settled principles of English and American jurisprudence. The John G. Stevens, 170 U. S. 113, 126 [42: 969, 975], and cases cited. The facts in this case are somewhat peculiar, and, in entering into the contract, unusual precautions were taken. On October 5, the Elfrida in entering the river grounded by the stern about mid-channel, her bow drifting over toward the west jetty. Her crew were unable to get her off, either upon that or the following day, when, owing to the sea rising, she was carried over the jetty and a very considerable distance further on to the beach (about 600 feet), where she remained in seven or eight feet of water, gradually working inward and making a bed for herself in the sand, which had a tendency to bank up about her bows. She appears to have been at no time in imminent peril, but her situation could have been hardly without serious danger, unless she was released before a heavy storm came on, which might have broken her up or driven her so far ashore that her rescue would have been impossible. It was shown that in previous years a number of vessels had gone ashore in this neighborhood, several of which were lost by bad weather coming on. In other cases the difficulty of getting them off had been very largely increased by similar causes. The testimony shows that while the Elfrida lay there the wind was at times blowing a gale with a rough sea, in which the ship strained and bumped heavily. On Saturday the 6th, the day of her final stranding, the master the labor, tools, or appliances furnished. For the work actually done the stipulated she proved to be so much damaged that she We give no weight to the advice of Pynam, cided December 12, 1898. no step without the advice of his owners and Argued and Submitted April 21, 1898. De- 'N ERROR to the United States Circuit years of age, perfectly honest, and of large I Court of Appeals for the Seventh Circuit to review a judgment of that court affirming a judgment of the United States Circuit Court for the Eastern District of Wisconsin dismissing the complaint in an action brought by the United States, plaintiff, against George Loughrey et al. to recover the value of timber cut from lands in the state of Michigan. Affirmed. See same case below, 34 U. S. App. 575. experience in these matters. Sorley visited the vessel, saw her situation, and advised an acceptance of the bid. The value of the ship is variously estimated at from $70,000 to $110.000,, but the sum for which she was insured, £18,000 or $90,000, may be taken as her approximate value. Under the stringent circumstances of this contract, we do not think it could be said that an agreement to pay one quarter of her value if released, could be considered unconscionable or even exorbitant, and, unless the fact that it Statement by Mr. Justice Brown: proved to be exceedingly profitable for the This was an action originally begun by the libellants is decisive that it was unreason- United States in the circuit court for the able, it ought to be sustained. For the eastern district of Wisconsin, to recover the reasons above stated we think that the value of timber cut from the north half of disproportion of the compensation to the the northwest quarter of the northeast quarwork done is not the sole criterion. Very ter of section thirteen, township forty-four few cases are presented showing a contract north, of range thirty-five west, in the state entered into with more care and prudence of Michigan. The complaint charged the than this, and we are clear in our opinion cutting of the timber by one Joseph E. [206]that it should be sustained. *Had the agree Sauve, and that he removed from the lands ment been made with less deliberation or 80,000 feet of timber so cut, and left the balpending a peril more imminent our conclu-ance *skidded upon the lands. The defend-[207] sion might have been different. The decree of the Circuit Court of Appeals must therefore be reversed, and the case remanded to the District Court for the Eastern District of Texas with directions to exeeute its original decree. UNITED STATES, Plff. in Err., v. CHARLES LOUGHREY et al. (See S. C. Reporter's ed. 206-232.) Railroad land grant to Michigan-timber cut upon the lands forfeiture of the grant did not give the United States the right to recover for timber previously cut-right to bring the action. 1. 2. 3. The land grant to the state of Michigan in aid of the construction of railroads, by the act of Congress of June 3, 1856, vested the fee of the lands in the state, subject to a condition subsequent that if the roads were not completed in ten years the lands unsold should revert to the United States. The timber cut upon such lands prior to the forfeiture under said act belonged to the state. The forfeiture of such land grant by the act of Congress of March 2, 1889, did not operate by relation to revest in the United States title to timber which had been cut prior to 420 ants were charged as purchasers from Sauve. The amount of timber cut by Sauve was alleged to have been 600,000 feet, and the time of the cutting in the winter of 1887-8 and prior to the first day of March, 1888. The case was tried by the court without a jury upon facts stipulated as follows: First. The defendants, prior to the first day of March, 1888, cut and removed from the north half (%) of the northwest quarter (NW. 4), and the northwest quarter (NW. 14) of the northeast quarter (NE. 14), and the southeast quarter (SE. 4) of the northeast quarter (NE. 4) of section thirteen (13), in township forty-four (44) north, of range thirty-five (35) west, in the state of Michigan, four hundred thousand (400,000) feet of pine timber, and converted the same to their own use. Second. That such cutting and taking of said timber by the defendants from said land was not a wilful trespass. Third. That none of the lands in question were ever owned or held by any party as a homestead. Fourth. That the value of said timber shall be fixed as follows: That the value of the same upon the land or stumpage, at $2.50 per thousand, board measure; that the value of the same when cut and upon the land, $3.00 per thousand, board measure; that the value of the same when placed in the river was $5.00 per thousand, board measure; ure. that the value of the same when manufac- | necessary to be mentioned, "every alternate Fifth. That the lands above described were a part of the grant of lands made to the state of Michigan by an act of the Congress of the United States approved June 3, 1856, being chapter 44 of volume 11 of the United States Statutes at Large, and that said lands were accepted by the state of Michigan by an act of its legislature approved February 14, 1857, being public act No. 126 of the laws of Michigan for that year, and were a part of the lands of said grant within the six-mile limit, so called, outside of the common limits, so called, certified, and approved to said state by the Secretary of the Interior, to aid in the construction of the railroad mentioned [208]*in said act No. 126 of the laws of Michigan of 1857, to run from Ontonagon to the Wisconsin state line, therein denominated "The Ontonagon & State Line Railroad Company." The finding of facts by the court was in accordance with the foregoing stipulation, with the additional finding that said railroad was never built, and said grant of lands was never earned by the construction of any railroad. And as conclusions of law the court found: First. That the cause of action sued on in this case did not, at the time of the commencement of this action, and does not now, belong to the United States of America. Second. That the defendants are entitled to judgment herein for the dismissal of the complaint upon its merits. No exceptions were taken to the findings of fact, and no further requests to find were made. Exceptions were only taken to the conclusions of law found by the court, and for its failure to find other and contrary conclusions. Upon writ of error sued out from the circuit court of appeals, the judgment of the circuit court dismissing this complaint was affirmed. 34 U. S. App. 575. Whereupon the United States sued out a writ of error from this court. To entitle the plaintiff to recover in this action, which is substantially in trover, it is necessary to show a general or special property in the timber cut, and a right to the possession of the same at the commencement of the suit. There is no question that the lands be[209]longed to the United States prior to June 3, 1856. By an act of Congress passed upon that date (11 Stat. at L. 21, chap. 44), it was enacted that "there be, and hereby is granted to the state of Michigan, to aid in the construction of railroads from Little Bay de Noquet to Marquette, and thence to Ontonagon, and from the last two named places to the Wisconsin state line," with others not 1. Under this act the state of Michigan took the fee of the lands to be thereafter identified, subject to a condition subsequent that if the roads were not completed within ten years the lands unsold should revert to the United States. With respect to this class of estates Professor Washburne says that, "so long as the estate in fee remains, the owner in possession has all the rights in respect to it which he would have if tenant in fee simple, unless it be so limited that there is properly a reversionary right in another, something more than a possibility of a reverter belonging to a third person, when, perhaps, chancery might interpose to prevent waste of the premises." 1 Wash. Real[210] Prop. 5th ed. 95. As was said in De Peyster v. Michael, 6 N. Y. 467, 506 [57 Am. Dec. 470], a right of re-entry "is not a reversion, nor is it the possibility of reversion, nor is it any estate in the land. It is a mere right or chose in action, and, if enforced, the grantor would be in by a forfeiture of a condition, and not by a reverter. . It In the case of Schulenberg v. Harriman, 21 ceding this, granting public lands to the no title to the lands at the time of the tresstate of Wisconsin to aid in the construction pass, and no right to the possession of the of railroads in that state, and precisely simi- timber, are in no position to maintain this lar to this act in its terms, was construed by suit. Neither a deed of land nor an assignthis court as a grant in præsenti of title to ment of a patent for an "invention carries [212] the odd sections designated, to be afterwards with it a right of action for prior trespasses located; that when the route was fixed their or infringements. Such rights of action are, location became certain, and the title, which it is true, now assignable by the statutes of was previously imperfect, acquired precision most of the states, but they only pass with and became attached to the lands. As it is a conveyance of the property itself where the stipulated in this case that the lands from language is clear and explicit to that effect. which the timber was cut were a part of the 1 Chitty, Pl. 68; Gardner v. Adams, 12 Wend. grant of June 3, 1856, to the state of Michi- 297, 299; Clark v. Wilson, 103 Mass. 219, gan, and were a part of the lands within the 223 [4 Am. Rep. 532]; Moore v. Marsh, 7 six-mile limit, certified and approved to the Wall. 515 [19:37]; Dibble v. Augur, 7 state by the Secretary of the Interior, no Blatchf. 86; Merriam v. Smith, 11 Fed. question arises with respect to the identity Rep. 588; May v. Juneau County, 30 Fed. of the lands. Rep. 241; Kaolatype Engraving Company v. Hoke, 30 Fed. Rep. 444. The case of Schulenberg v. Harriman was also an action for timber cut upon lands granted to the state, against an agent of the state who had seized the logs, which had been cut after the ten years had expired for the construction of the railroad, but before any [311]action had been taken by Congress to forfeit the grant. The complaint in the case alleged property and right of possession in the plaintiffs. It was stipulated by the parties that the plaintiffs were in the quiet and peaceable possession of the logs at the time of their seizure by the defendants, and that such possession should be conclusive evidence of title in the plaintiffs against evidence of title in a stranger, unless the defendant should connect himself with such title by agency, or authority in himself. The title of the plaintiffs was not otherwise stated. It was held that the title to the lands did not revert to the United States after the expiration of the ten years, in the absence of judicial proceedings in the nature of an inquest of office, or a legislative forfeiture, and that until a forfeiture had taken place the lands themselves and the timber cut from them were the property of the state. Said Mr. Justice Field, in delivering the opinion of the court, p. 64: "The title to the land remaining in the state, the lumber cut upon the land belonged to the state. While the timber was standing it constituted a part of the realty; being severed from the soil its character was changed; it became personalty, but its title was not affected; it continued, as previously, the property of the owner of the land, and could be pursued wherever it was carried. All the remedies were open to the owner which the law affords in other cases of the wrongful removal or conversion of personal property." The same rule regarding the construction of this identical land grant was applied by this court in Lake Superior Ship Canal, R. & 1. Co. v. Cunningham, 155 U. S. 354 [39: 183]. Indeed, the principle is too well settled to require the citation of authorities. The case of Schulenberg v. Harriman, 21 Wall. 44 [22: 551], differs from the one under consideration in the fact that no act forfeiting the grant was ever passed; but it is pertinent as showing that under a statute precisely like the present the title to the timber cut before such forfeiture is in the state, and not in the general government. It follows that the United States, having So, where a landowner, intrusts another with the possession of his lands, either by lease, by contract to sell, or otherwise, the right of action for trespasses committed during such tenancy belongs to the latter, and except under special circumstances an action for a trespass, such as the cutting of timber, will not lie in favor of the landlord. Greber v. Kleckner, 2 Pa. 289; Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468; Cutts v. Spring, 15 Mass. 135; Lienow v. Ritchie, 8 Pick. 235; Ward v. Macauley, 4 T. R. 489; Revett v. Brown, 5 Bing. 7; Harper v. Charlesworth, 4 Barn. & C. 574; Graham v. Peat, 1 East, 244; Lunt v. Brown, 13 Me. 236; 2 Greenl. Ev. § 616. Although, as was said by Lord Kenyon in Ward v. Macauley, 4 T. R. 489, "the distinction between the actions of trespass and trover is well settled; the former are founded on possession; the latter on property;"—yet they are concurrent remedies to the extent that, wherever trespass will lie for the unlawful taking and conversion of personal property, trover may also be maintained. The plaintiff is bound to prove a right of possession in himself at the time of the conversion, and if the goods are shown to be in the lawful possession of another by lease or similar contract he cannot maintain trover for them. Smith v. Plomer, 15 East, 607; Wheeler v. Train, 3 Pick. 255; Gordon v. Harper, 7 T. R. 9; Ayer v. Bartlett, 9 Pick. 156; Fairbank v. Phelps, 22 Pick. 535. It does not aid the plaintiffs' case to take the position (the soundness of which we by no means concede) that the state held the lands as trustee to deliver them over to the railroads *upon certain contingencies, and to[213] return them to the United States in case the conditions subsequent were not performed, since nothing is better settled than that a trustee has the legal title to the lands, and that actions at law for trespasses must be 1 Perry, brought by him, and by him alone. Trusts, § 328, and cases cited; Fenn v. Holme, 21 How. 481 [16: 198]. Certain cases having a contrary bearing will now be considered. Several of these are to the effect that if a man leases an estate for a term of years, and the tenant unlawfully cuts timber, the lessor may sue in trespass, and perhaps in trover, upon the ground that |