different from a pure speculation in public lands at the expense of bona fide settlers. The rulings of the Land Department have been along the line of a recognition of the fact that attempts in good faith by a party to obtain from a railroad company for bona fide settlements lands believed to belong to it or expected to be acquired by it, present cases which were intended to be included within the act of 1887, and entitled to its protection. In re Campbell, 12 L. D. 247; Telford v. Keystone Lumber Co., 18 L. D. 176; 19 L. D. 141; Holton v. Rutledge, 20 L. D. 227; Austin v. Luey, 21 L. D. 507. It must be borne in mind that the purpose of section 5 was not relief to the company, but to one dealing with it. Ireland by his contract had obtained rights from the company even if he had not assumed obligations to it. The land was the property of the government, and property to which the company acquired no title, but being within the limits of its grant it had claimed a right and contracted with Ireland as though it had or would receive the title. Section 5 gave to Ireland only a right to purchase this land from the government-a preferential right-paying to the government its price, no portion of which was to pass to the railway company, and gave him that preferential right because of his dealings with the company. He had sought to obtain title to this land from the company. He had made a contract by which, if the company acquired title, he could obtain that title; and Congress, by section 5, simply provided that, having so acted in respect to this land, he should have a preferential right of purchase. The company neither gains nor loses. The government receives its price for the land, and is, therefore, fully protected, and Ireland receives that, in respect to which he certainly has some equitable claim of consideration, a preferential right of purchase. The third party is the settler under the land laws, and we pass to consider his status and rights. A settler is, as has often been said, favored in law, but it does not follow therefrom that he is the only one whose equities are to be consid ered. Congress, by section 5, made provision for his protection-such provision as it deemed sufficient. While it gave to purchasers from the railway company a preferential right of purchase it excepted therefrom lands which at the times of such purchase "were in the bona fide occupation of adverse claimants under the preëmption or homestead laws of the United States, and whose claims and occupation have not since been voluntarily abandoned." In other words, it said that no purchaser from the railway company should have a preferential right of purchasing any lands which at the time of his dealings with the railway company were in the hands of a bona fide settler under the laws of the United States, unless such settler should voluntarily abandon his settlement. As between a purchaser from the railway company and a settler on the lands, the settler was given the prior right. But the defendant was not a settler at the time of Ireland's contract, nor, indeed, until many years thereafter. Neither did he come under the protection of the second proviso, for, although his settlement was after December 1, 1882, it was not until long after the passage of the act. It is well to look further into his equities. It will be borne in mind that he did not go upon the land until April, 1891. The tract was within the indemnity limits of the company's grant, and was, therefore, subject to selection. It had been withdrawn from entry under the land laws, and that fact appeared on the records of the local land office. It had, in fact, been selected by the company, and that selection had not been cancelled. Ireland's contract of 1883 was of record in the office of the register of deeds of the county, and shown on the books of the company. The defendant applied for leave to enter the lands as a homestead, and was denied such leave by the local land officers on the ground that it was within the twenty-mile indemnity limits of the railway company's grant, and had been selected by the company. He was charged with knowledge of the act of Congress giving a preferential right of purchase from the government in case the company's title should in any way fail. Notwithstanding all this, he remained upon the land and put his improvements on it, and now claims to be entitled to the rights of a bona fide settler. He does not come within the letter of the statute, nor does he come within the reach of any reasonable equities. He evidently took his chances on the possibility of the company's failing to obtain title and a subsequent failure of Ireland to insist upon his preferential right of purchase. He went upon the land with full knowledge of all the facts, which showed that he had no right to enter, speculating upon possibilities which have not been realized, and having so speculated he cannot complain if he suffer the consequences which often attend the failure of a speculation. We think the judgment of the Supreme Court of Minnesota was right, and it is Affirmed. MOSHEUVEL v. DISTRICT OF COLUMBIA. ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 6. Argued October 13, 1903.-Decided November 30, 1903. There is no rule of law in the District of Columbia that where a defect exists in a highway and is known to one who elects to use such highway such election, even if justified by the dictates of ordinary prudence must, as a matter of law, entail the consequences of a want of ordinary care and prudence. Where a hole exists in a sidewalk as the result of negligence on the part of the authorities, and renders ingress and egress from a house more or less dangerous, it is not such contributory negligence per se on the part of an occupant of such house having knowledge of the hole to try to step over it, as had been done on previous occasions, instead of going around it as will justify the direction of a verdict for the defendant. It is for the jury to determine from all the conditions whether the situation of the defect and the hazard to result from an attempt to step over it was so great that plaintiff, with the knowledge of the situation, could not as a reasonably prudent person have elected to step over, instead of going around it. Argument for Plaintiffs in Error. 191 U.S. THE facts are stated in the opinion of the court. Mr. Henry E. Davis and Mr. Charles Cowles Tucker for plaintiffs in error: The Brewer case, 7 App. D. C. 113, which was the authority for dismissing this case is not analogous and if it were the decision in that case is erroneous. See Coffin v. Inhabitants of Palmer, 162 Massachusetts, 192; Maultby v. Leavenworth, 28 Kansas (2d ed.), 531; Huntington v. Breen, 77 Indiana, 29. The lower court adopted the theory that mere knowledge of a defect in the highway will preclude recovery from a municipality for an injury received. In this case the testimony shows that the injury was largely caused by a miscalculation or error of judgment. The authorities are clear that mere error of judgment does not amount to contribuțory negligence per se, McClain v. Railroad, 116 N. Y. 459, and mere miscalculation as to one's proximity to the known dangerous part of a highway will not have the effect of establishing conclusively a want of ordinary care. Blood v. Tyngsborough, 103 Massachusetts, 509; Jones v. R. R. Co., 128 U. S. 443. That mere knowledge of a dangerous defect in a sidewalk is sufficient to preclude recovery regardless of circumstances is not the law. Kane v. Northern Central R. Co., 128 U. S. 91; East St. Louis v. Donahue, 77 Ill. App. 574, distinguishing Kewanee v. Depew, 80 Illinois, 119, and see Graney v. St. Louis, 141 Missouri, 185; Seybold v. R. R. Co., 18 Ind. App. 390; R. R. Co. v. Crist, 116 Indiana, 446; Corts v. Dist. of Col., 5 Mackey, 286; Clayards v. Dethick, 12 Ad. & Ellis, 439; 64 Eng. Com. Law Rep. 439; Williamsport v. Lisk, 21 Ind. App. 414. One injured upon a street he knew to be dangerous need not show that he exercised extraordinary care while upon such street. Hanlon v. Keokuk, 7 Iowa, 488: A fortiori he is not obliged to keep off from such a street altogether. Rice v. Des Moines, 40 Iowa, 638; Reed v. Northfield, 13 Pick. 94. He may proceed, if consistent with reasonable care to do so; and his negligence is a question for the jury, depending on all the surrounding cir 191 U.S. Argument for Plaintiffs in Error. cumstances. Kelly v. Fon du Lac, 31 Wisconsin, 179. A person having knowledge of a defect or obstruction is bound to use care according to the circumstances to avoid injury. Smith v. Smith, 2 Pick. 621; Thompson v. Bridgewater, 7 Pick. 188; Rindge v. Coleraine, 11 Gray, 157; Crumpton v. Solon, 11 Maine, 335; Jacobs v. Bangor, 16 Maine, 187; Garmon v. Bangor, 38 Maine, 443; Noyes v. Morristown, 1 Vermont, 353; Folsom v. Underhill, 36 Vermont, 580; Koch. v. Edgewater, 14 Hun, 544; Nicks v. Marshall, 24 Wisconsin, 139; Earleville v. Carter, 2 Bradw. 34; Craig v. Sedalia, 63 Missouri, 417; Moore v. Shreveport, 3 La. Ann. 645. Accordingly, if the obstruction or defect in the highway is of such a nature that it will be consistent with reasonable care to attempt to pass by it, one using the highway is entitled to make the attempt. Thomas v. Western Union Tel. Co., 100 Massachusetts, 156-158; Fox v. Glastenbury, 29 Connecticut, 204; Baltimore v. Holmes, 39 Maryland, 243; Gilbert v. City of Boston, 139 Massachusetts, 313; Kane v. Nor. Cent. R. R. Co., 128 U. S. 94; Commissioners v. Burgess, 61 Maryland, 31; Commissioners v. Broadwaters, 69 Maryland, 533; Nichols v. Laurens, 96 Iowa, 380; Fitzgerald v. Conn. River Paper Co., 155 Massachusetts, 155; Lyman v. Inhabitants of Amherst, 107 Massachusetts, 339; Elliott on Roads & Streets, 2d ed., sec. 636, and cases cited. For other cases in-the different States, see Reed v. Northfield, 13 Pick. 94; Smith v. Lowell, 6 Allen, 39; Snow v. Railroad, 8 Allen, 441, 450; Frost v. Waltham, 12 Allen, 85; Fox v. Sackett, 10 Allen, 535; Mahoney v. Railroad, 104 Massachusetts, 73; Lyman v. Amherst, 107 Massachusetts, 339; Whitaker v. Boylston, 97 Massachusetts, 273; Humphreys v. Armstrong Co., 36 Penna. St. 204; Smith v. St. Joseph, 55 Missouri, 449; Rice v. Des Moines, 40 Iowa, 638; Griffin v. Auburn, 58 N. H. 121; Erd v. St. Paul, 22 Minnesota, 443; Aurora v. Dale, 90 Illinois, 46; Dooley v. Meriden, 44 Connecticut, 118; Turnpike Co. v. Jackson, 86 Indiana, 111; Coates v. Canaan, 51 Vermont, 131; Montgomery v. Night, 72 Alabama, 411; Bullock v. New York, 99 N. Y. 654; Pomfrey |