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Dissenting Opinion: Brewer, Gray, Shiras, JJ.

and, therefore, still the property of the government ? Or, if the State is under obligation to refund the money thus improperly collected in the way of taxes, what then results? The State or county has regulated its tax levy and its expenditures upon the supposition that these lands were subject to taxation. If the title has not passed from the government they are not taxable, and a new burden must be cast upon the property of individuals within the territorial limits to make good the unexpected deficiency of public funds.

It is well known in the history of this and similar land grants that there was an earnest effort to relieve many of the lands from the burdens of state taxation an effort which brought to this court the cases of the Kansas Pacific Railway v. Prescott, 16 Wall. 603, and Union Pacific Railroad v. McShane, 22 Wall. 444. This litigation was carried on on the part of the railroad companies under the superintendence and direction of Hon. John P. Usher, who was Secretary of the Interior at the time of the passage of these land grant acts, than whom perhaps no one was more familiar with the land laws of the United States; and dåring all that litigation there was not even a suggestion that the absolute transfer of the title at the time of the definite location was, as to any particular tract, delayed by the question thereafter to be determined as to whether the lands were mineral or not.

Turning to legislation other than that respecting railroad land grants, we find by section 2258 of the Revised Statutes that preëmptions are not allowed of “lands on which are situated any known salines or mines.” In section 2302, in reference to homesteads, it is enacted : “Nor shall any mineral lands be liable to entry and settlement under its provisions.” Section 2392, in reference to town sites, reads : “No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar, or copper; or to any valid mining claim or possession held under existing laws.” In one of these three clauses the word “known" is used, but not in the others. Is thereby any difference intended as to what shall be excepted from the scope of the authority to acquire lands? That in reference to town sites, as heretofore decided

Syllabus.

in Davis v. Weibbold, 139 U. S. 507, includes only known mines.

I deem it unnecessary to pursue this discussion further. Many other considerations of equal significance might be adduced. It is enough to say in conclusion that the uniform and settled rule of decision heretofore has been that identification of the particular tracts which pass under a grant was complete at the time of the definite location of the line of the road. Congress, with a knowledge of that frequent ruling, has never by any act directed a change. It is to be presumed that the legislation of the various States has been cast upon that as the law of the land. To now overthrow that and establish a new rule not merely unsettles the question of title to the lands within this vast area, but it may produce complications which we do not now perceive in the rights of individuals and counties, and even of the States along the line of this road. If ever there was a case in which the rule stare decisis should prevail, this is one.

I, therefore, dissent from the opinion and judgment in this case, and am authorized to say that MR. JUSTICE Gray and MR. JUSTICE SHIRAs concur in this dissent.

NORTHERN PACIFIC RAILROAD COMPANY v.

HAMBLY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF NORTH DAKOTA.

No. 187. Submitted December 21, 1893.- Decided May 26, 1894.

A common day laborer in the employ of a railroad company, who, while

working for the company under the order and direction of a section “boss” or foreman, on a culvert on the line of the company's road, receives an injury by and through the negligence of the conductor and of the engineer in moving and operating a passenger train upon the company's road, is a fellow-servant with such engineer and such conductor, in such a sense as exempts the railroad company from liability for the injury so inflicted.

Statement of the Case.

This was an action by Hambly to recover damages for personal injuries sustained by him while acting as helper to a crew of masons engaged in building a stone culvert for the defendant company on its right of way about two miles west of Jamestown in North Dakota. Upon the trial of the case before a jury, the following facts were proven and admitted to be true by both parties, viz.: “That the plaintiff was a common laborer in the employ of the defendant company, and at the time he received the injury, which is the ground of this action, he was in the service of the defendant, working under the direction and supervision of a section boss' or foreman of the defendant company, assisting in building a culvert on defendant's line of railroad, and that while so engaged, the injury complained of and for which he sues, was inflicted upon him by being struck by a locomotive of a moving passenger train on the defendant's road, (said train belonging to the defendant, and being operated by a conductor and engineer in its employ,) and that the injury he received by coming in contact with said passenger train, and which is the injury sued for in this cause, was due solely to the misconduct and negligence of the conductor and locomotive engineer on said passenger train, in operating and conducting the movements of said train.”

Upon the foregoing facts, defendant prayed for an instruc: tion to the jury that the engineer and conductor of the passenger train were fellow-servants with the plaintiff, and hence that the defendant company was not liable for the injury received by the plaintiff through their negligence. Upon the question of giving such instruction the opinions of the judges were opposed, and the Circuit Judge being of opinion that the plaintiff and said conductor and engineer were not fellowservants in the sense that would exempt the defendant from liability, so instructed the jury, which returned a verdict for the plaintiff in the sum of $2500, upon which judgment was entered. Defendant thereupon moved for a new trial, upon the granting of which the judges were opposed in opinion. The motion was denied, and the judges certified the following questions for the opinion of this court:

Argument for Defendant in Error.

“1. Whether, on the admitted facts of this case hereinbefore set out, the jury should have been instructed that the plaintiff and said conductor and engineer were fellow-servants, and that they should return a verdict for the defendant.

"2. Whether, on the facts hereinbefore set out, the court should have set aside the verdict and judgment in the case and granted defendant a new trial.

"3. Whether the plaintiff, who was a common day laborer in the employ of the defendant, (which is a railroad company owning and operating a line of railroad,) and who was at the time he received the injury complained of working for the defendant under the order and direction of a section "boss' or foreman on a culvert on the line of defendant's road, was a fellow-servant with the engineer and conductor operating and conducting a passenger train on the defendant's road, in such a sense as exempted the defendant from liability for an injury inflicted upon plaintiff by and through the negligence of said conductor and engineer in moving and operating said passenger train.”

Mr. James McNaught, Mr. A. H. Garland, and Mr. H. J. May for plaintiff in error.

Mr. S. L. Glaspell for defendant in error.

In Chicago, Milwaukee &c. Railway v. Ross, 112 U. S. 377, it is assumed that the conductor of a train of cars has entire control and management of the train to which he is assigned, and is the superior of the engineer. On the other hand, Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, holds the engineer to be a fellow-servant of a brakeman of another train, working a switch. It is therefore important to know whether the negligence in this case is to be charged to the engineer or to the conductor, and in what it consisted. In the certificate the negligence is attributed to them jointly ; but the facts constituting negligence are not stated; and this court is called upon to give an opinion upon a purely hypothetical question which may be wide of the real question at

Argument for Defendant in Error.

issue. How can the conductor and engineer be jointly guilty of the proximate act which resulted in the injury to defendant in error? If the fault was that of the conductor, then is the railroad company liable as for the acts of its representative or vice-principal; but if the fault was that of the engineer, then he is held to be a fellow-servant.

The maxim, respondeat superior, does not apply so as to make a master responsible for injuries caused to one servant by the negligence of another in the same common employment, but this exception to a general rule has been subjected to various limitations.

As a limitation upon the fellow-servant rule, the exception has been made and is now quite well established, that when servants are engaged in distinct and separate departments of service, where their employment does not require coöperation, and does not result in mutual contact or bring them together in such relation that they may exercise upon each other an influence promotive of caution or safety, the rule does not apply.

The reasons for the fellow-servant rule do not fit the facts of this case. There are two principal reasons urged for exempting the master from liability to one servant for an injury caused by the negligence of another servant in the same employment: (1) That the servant contracted his services with reference to and assumed the risk resulting from the negligence of his fellow-servant. (2) The expediency of throwing the risk on those who can best guard against it.

The first reason is inapplicable here, because it applies only to the ordinary risks of the service. Baird v. Pettit, 70 Penn. St. 477.

The second reason was first declared by Shaw, C. J., in Farwell v. Boston & Worcester Railroad, 4 Met. (Mass.) 49. But it was not a good reason when enunciated ; and when applied to railroad corporations of the present day it is entirely unfounded and misleading.

To say, as in the Farwell case, that the engineer who was injured was an observer of the conduct of the switchman who negligently left a switch open, and could best guard against

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