and cure in case of mutilation; and by the German Code he appears to be entitled to an indemnity in all cases for injuries in curred in defense of his ship; and by the Dutch Code, the sailor, if disabled, is entitled to such damages as the judge shall deem equitable. In all of them there is a provision against liability in case of injuries received by the sailor's wilful misconduct. Except as above indicated, in a few countries, the expense and maintenance and cure do not seem to constitute a privilege or lien upon a ship, since by the French Code, article 191, classifying privileged debts against vessels, no mention is made of a lien for personal injury. The other Continental and South American Codes do not differ materially from the French in this particular. Probably, however, the expenses of maintenance and cure would be regarded as a mere incident to the wages, for which there is undoubtedly a privilege. adopted in general admiralty rule 16, de- The statutes of the United States contain no provision upon the subject of the liability of the ship or her owners for damages occasioned by the negligence of the captain to a member of the crew; but in all but a few of the more recent cases the analogies By the English merchants' shipping act of the English and Continental Codes have (17 & 18 Viet. chap. 104, § 228, subd. 1), been followed, and the recovery limited to "if the master or any seaman or apprentice the wages and expenses of maintenance and receives any hurt or injury in the service cure. The earliest case upon the subject is of the ship to which he belongs, the expense that of Harden v. Gordon, 2 Mason, 541, of providing the necessary surgical and Fed. Cas. No. 6,047, in which Mr. Justice medical advice, with attendance and medi- Story held that a claim for the expenses of eines, and of his subsistence until he is cure in case of sickness constituted in coneured, or dies, or is brought back to some templation of law a part of the contract for port in the United Kingdom, if shipped in wages, over which the admiralty had a [171]the *United Kingdom, or, if shipped in some rightful jurisdiction. The action was in British possession, to some port in such pos-personam against the master and owner for session, and of his conveyance to such port, wages and other expenses occasioned by the and the expense (if any) of his burial, shall sickness of the plaintiff in a foreign port in be defrayed by the owner of such ship, with the course of the voyage, all of which were out any deduction on that account from the allowed. The question of indemnity did wages of such master, seaman, or appren- not arise in this case. but the court held tice." that upon the authority of the Continental Codes, and by its intrinsic equity, there was no doubt of the seaman's right to the expenses of his sickness. This case was followed in The George, 1 Sumn. 151, Fed. Cas. No. 5,329, and in Reed v. Canfield, 1 Sumn. 195, Fed. Cas. No. 11,641. Though the last case did not involve the question of indemnity, Mr. Justice Story, in delivering the opinion, remarked that "the sickness or other injury may occasion a temporary or permanent disability, but that is not a ground for indemnity from the owners. They are liable only for expenses necessarily incurred for the cure; and when the cure is completed, at least so far as the ordinary medical means extend, the owners are freed from all further liability. They are not in any just sense liable for conse quential damages. The question, then, in all such cases is, What expenses have been virtually incurred for the cure?" These provisions of the British law seem could not be sustained, as the "negligence[173] mon employment. The court, however, | appliances, so that the case was one really went on to consider whether the negligence, of unseaworthiness. In the case of The Å. upon the recognized principles of maritime Heaton, 43 Fed. 592, a seaman was allowed law, entitled the libellant to compensation to recover consequential damages for neglifrom the ship or her owners in cases not arising from unseaworthiness. After going over the Continental Codes, the cases above cited, and a few others, Judge Brown came to the conclusion that he could find "no authority in the ancient or modern Codes, in the recognized text-books or the decisions on maritime law, for the allowance of consequential damages resulting from wounds or hurts received on board ship, whether arising from ordinary negligence of the seaman himself or of others of the ship's company. Considering the frequency of such accidents and the lasting injuries arising from them in so many cases, the absence of any authority holding the vessel liable beyond what has been stated is evidence of the strongest character that no further liability under the maritime law exists." The general rule that a seaman receiving injury in the performance of his duty is entitled to be treated and cured at the expense of the ship was enforced in The Atlantic, Abb. Adm. 451, Fed. Cas. No. 620, though it was said in this case, and in Nevitt v. Clarke, Olcott, 316, Fed. Cas. No. 10,138, that the privilege of being cured continues no longer than the right to wages under the contract in the particular case. In The Ben Flint, 1 Abb. (U. S.) 126, 1 Biss. 562, Fed. Cas. No. 1.229, the claim to be cured at the expense of the ship is held to be applicable to seamen employed on the lakes and navigable rivers within the United States. See also Brown v. Overton, 1 Sprague, 462, Fed. Cas. No. 2,024; Croucher v. Oakman, 3 Allen, 185; Brown v. The Bradish Johnson, 1 Woods, 301, Fed. Cas. No. 1,992. gence of the owners in not providing suit- Upon a full review, however, of English and American authorities upon these ques tions, we think the law may be considered as settled upon the following propositions: 2. That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship. Scarff v. Metcalf, 107 N. Y. 211, 13 N. E. 796. In The Edith Godden, 23 Fed. 43, the ves- 1. That the vessel and her owners are liasel was held liable in rem for personal in- ble, in case a seaman falls sick, or is woundjuries received from the neglect of the owned, in the service of the ship, to the extent er to furnish appliances adequate to the of his maintenance and cure, and to his place and occasion where used; in other wages, at least so long as the voyage is conwords, for unseaworthiness. This is read- tinued. ily distinguishable from the previous case of The City of Alexandria, 17 Fed. 390, and is in line with English and American authorities holding owners to be responsible to the seamen for the unseaworthiness of [174]the ship and her appliances. *In The Titan, 23 Blatchf. 177, 23 Fed. 413, the ship was held liable to a deck hand who was injured by a collision occasioned partly by fault of his own vessel. The question of general liability was not discussed but assumed. In the case of The Noddleburn, 12 Sawy. 129, 28 Fed. 855, the question of jurisdiction was not pressed by counsel, but merely stated and submitted. The case is put upon the ground that, as the accident was occasioned by the master knowingly allowing a rope to remain in an insecure condition, the vessel was consequently unseaworthy. In Olson v. Flavel, 13 Sawy. 232, 34 Fed. 477, libellant was allowed to recover damages for personal injury suffered by him while employed as mate; but if there were any negligence on the part of the respondent, it appears to have been not providing proper 3. That all the members of the crew, except, perhaps, the master, are, as between themselves, fellow servants, and hence seamen cannot recover for injuries sustained through the negligence of another member of the crew beyond the expense of his maintenance and cure. 4. That the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident. It will be observed in these cases that a departure has been made from the Continental Codes in allowing an indemnity be yond the expense of maintenance and cure in cases arising from unseaworthiness. Jing insufficiently protected (The Theta This departure originated in England in the [1894] Prob. 280), or to loss of life (The merchants' shipping act of 1876, above Vera Cruz, L. R. 9 Prob. Div. 96). As we quoted (Couch v. Steel, 3 El. & Bl. 402; have indicated above, the statute was conHedley v. Pinkney & Sons' S. S. Co. 7 Asp. fined to cases of damage done by those in M. L. Cas. 135 [1894] A. C. 222), and in charge of a ship with the ship as the "noxthis country, in a general consensus of opin-ious instrument," and that cases of damion among the circuit and district courts, that an exception should be made from the general principle before obtaining, in favor of seamen suffering injury through the unseaworthiness of the vessel. We are not disposed to disturb so wholesome a doctrine by any contrary decision of our own. 2. It is insisted, however, that a lien is given upon the vessel by a local statute of [176] Wisconsin (Rev. Stat. 1898, § 3348), '*repeating a previous statute upon the same subject, which provides that every ship, boat, or vessel used in navigating the wa ters of that state shall be liable "for all ages done on board the ship were not, within the meaning of the act, damages done by the ship. In the case under consideration the damage was not done by the ship in the ordinary sense of the word, but by a gangway, which may be assumed to be an ordinary appliance of the ship, being blown against the libellant by the force of the wind. It results that the first and third questions must be answered in the negative. damages arising from injuries done to per- SAN JOSE LAND & WATER COMPANY, sons or property by such ship, boat, or vessel," and that the claim for such damages shall constitute a lien upon such ship, boat, or vessel, which shall take precedence of all other claims or liens thereon. As the accident happened within 3 miles of the port of Milwaukee, and as the Constitution of Wisconsin fixes the center of Lake Michigan as the eastern boundary of the state, there is no doubt that the vessel was navigating the waters of that state at the time of the accident. But the vital question in the case is whether the damages arose from an injury done to persons or property by such ship, boat, or vessel. The statute was doubtless primarily intended to cover cases of collision with other vessels or with structures affixed to the land, and to other cases where the damage is done by the ship herself, as the offending thing, to persons or property outside of the ship, through the negligence or mismanagement of the ship by the officers or seamen in charge. To hold that it applies to injuries suffered by a member of the crew on board the ship is to give the act an effect beyond the ordinary meaning of the words used. Would it apply, for instance, to injuries received in falling through an open hatchway; or to a block blown against a seaman by the force of the wind, though the accident in either case might have resulted from the negligence of the master? We think not. Plff. in Err., บ. SAN JOSE RANCH COMPANY. (See S. C. Reporter's ed. 177-185.) Error to state court-Federal question¬ railroad land grants forfeiture-bona fide purchasers-rights as against prior appropriators. 1. 2. 3. A Federal right is "specially set up or Land within the indemnity limits of the One who enters on public land and constructs The act in this particular uses the same language as the 7th section of the English admiralty court act of 1861, which declares that "the high court of admiralty shall have jurisdiction over any claim for damage done by any ship." Construing that act, it has been held by the court of admiralty that it applies to damages occasioned by a vessel coming in collision with a pier (The Uhla, L. R. 2 Adm. & Eccl. 29, note), and also to cases of personal injury (The Sylph, L. R. 2 Adm. & Eccl. 24, where a diver, NOTE. On writs of error from United States while engaged in diving in the river Mersey, Supreme Court to state courts-see notes to was caught by the paddle wheel of a steam-Hamblin v. Western Land Co. 37 L. ed. U. S. er and suffered considerable injury); but not to a case where personal injuries were sustained by a seaman falling down into the [177] hold of a vessel, *owing to the hatchway be 267; Kipley v. Illinois, 42 L. ed. U. S. 998; and Re Buchanan, 39 L. ed. U. S. 884. As to land grants to railroads-see note to Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 28 L. ed. U. S. 794. subsequent purchasers of the land from the Southern Pacific Railroad Company, whose only claim to such land rests upon the right of purchase from the United States, given by the act of March 3, 1887 (24 Stat. at L. 556, chap. 376, U. S. Comp. Stat. 1901, p. 1595), § 5, to bona fide purchasers from railway companies of forfeited lands. 4. Bona fide purchasers of forfeited lands from a railroad company, who are not in possession and have not attempted to exercise their right under the act of Congress of March 3, 1887 (24 Stat. at L. 556, chap. 376, U. S. Comp. Stat. 1901, p. 1595), § 5, to purchase the lands from the United States, are not, by reason of such right to purchase, entitled to maintain an action to quiet title against persous claiming an adverse interest therein. [No. 113.] portion of which the San Dimas creek flows; Submitted December 2, 1902. Decided such lands. Upon this state of facts the superior court entered a judgment in favor of the de IN ERROR to the Supreme Court of the fendant, which 473, 02 Tue, 260. Where a decree court. 129 Cal. 62 Pac. State of California which affirmed a judgment of the Superior Court in favor of defendant in an action to quiet title. Affirmed. See same case below, 129 Cal. 673, 62 Pac. 269. Statement by Mr. Justice Brown: [178] *This was an action brought in 1889 by the Land & Water Company, under the Code of Civil Procedure of California, to quiet the title of the plaintiff and determine the nature of the adverse claim of the defend ant to the half of a quarter section of land, which had been sold by the Southern Pacific Railroad Company February 28, 1887, to plaintiff's predecessors in title, as part of its land grant of 1871. The case was tried in 1890, though the decree was not entered until 1897. The facts found by the court were substantially that the Southern Pacific Railroad Com upon the plaintiff sued out this writ of error. Mr. W. H. Anderson submitted the cause for plaintiff in error. Messrs. James Anderson and Richard Dunnigan were with him on the brief: This is an action under a state statute which permits the holder of any kind of interest in real property, whether equitable or legal, to maintain an action to determine the claims of others adverse to him; and this, whether in or out of possession, the only limitation being that the holder of an equitable title may not maintain the action against the holder of the legal title. Pennic v. Hildreth, 81 Cal. 130, 22 Pac. 398: Pierce v. Felter, 53 Cal. 18: Tuffree v. Polhemus, 108 Cal. 670, 41 Pac. 806. The act of March 3, 1887, confers some right or interest in the land upon the bona fide purchaser thereof in good faith for value from the railroad company, which may be enforced and protected. pany had accepted the benefit of a land grant made March 3, 1871, to the Texas & Pacific railroad, filed its map of location April 3, 1871, and on August 12, 1873, Sethman v. Clise, 17 Land Dec. 307; Steformed a new corporation, also known phan v. Morris, 21 Land Dec. 557; Telford as the Southern Pacific Railroad Comv. Keystone Lumber Co. 19 Land Dec. 141; pany built and constructed a road from Tehachapi pass by way of Los Angeles Gasper v. St. Louis River Water Power Co. to Yuma, and selected the land in question 22 Land Dec. 587; Durrell v. Windom, 23 under the act of March 3, 1871; that such Land Dec. 508; Hunt v. Maxwell, 23 Land land was within the place limits of the Dec. 183; Holton v. Rutledge, 20 Land Dec. Southern Pacific, and also within the indem-227; Skinvik v. Longstreet, 22 Land Dec. nity limits of a land grant to the Atlantic & 32; Yocum v. Keystone Lumber Co. 22 Land Pacific railroad by act of July 27, 1866. Dec. 558; Union P. R. Co. v. McKinley, 14 This latter company never complied with Land Dec. 237. the terms of the grant, and never built its road. That on February 28, 1887, the Southern Pacific agreed with two parties named Nolan and Heckenlively to sell them this land, and, after the receipt from the United States of a patent therefor, to deliver them a deed; that by subsequent conveyances, and on August 29, 1888, the right of the grantees became vested in the plaintiff, the San José Land & Water Company; that the land is situated in San Dimas canyon, through a The right of a homestead settler who has made entry, but has not made final proof of residence and cultivation, or obtained a patent, amounts to an equitable interest in the land, subject to the future performance of certain conditions; and, until forfeited by failure to perform the conditions, it must prevail, not only against individuals, but against the government. McGuire v. Brown, 106 Cal. 660, 30 L. R. A. 384, 39 Pac. 1060. The effect of a withdrawal of the lands 189 U. S. from settlement, by virtue of a grant to the railroad company, is well settled. St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 1, 17, 35 L. ed. 77. 84, 11 Sup. Ct. Rep. 389; Buttz v. Northern P. R. Co. 119 U. S. 69, 30 L. ed. 336, 7 Sup. Ct. Rep. 100; Sage v. Swenson, 64 Minn. 517, 67 N. W. 544; Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689; Williams v. Baker, 17 Wall. 144, 153, sub nom. Cedar Rapids & M. R. Co. v. Martindale, 21 L. ed. 561, 563; United States v. Des Moines Nav. & R. Co. 142 U. S. 510, 546, 35 L. ed. 1099, 1109, 12 Sup. Ct. Rep. 308; Riley v. Welles, 154 U. S. 578, 19 L. ed. 648, 14 Sup. Ct. Rep. 1166; Wood v. Beach, 156 U. S. 548, 39 L. ed. 528, 15 Sup. Ct. Rep. 410; Northern P. R. Co. v. Musser-Sauntry Land, Logging & Mfg. Co. 168 U. S. 608, 611, 42 L. ed. 598, 599, 18 Sup. Ct. Rep. 205. The right to acquire any kind of interest | in the United States public domain, whether it be a right to settle upon, to appropriate water upon it, or to construct or maintain a ditch upon it, or to divert water upon it, is confined to such portion of such domain as is legally known as "public land." By public lands is meant such land as is open to sale or other disposition under the general laws. Land to which any claims or rights of others attach does not fall within the designation of public lands. Bardon v. Northern P. R. Co. 145 U. S. 535, 36 L. ed. 806, 12 Sup. Ct. Rep. 850. The term "public lands," in a statute au thorizing location of scrip, does not include "tide lands." The words "public lands" are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws. Mann v. Tacoma Land Co. 153 U. S. 274, 38 L. ed. 715, 14 Sup. Ct. Rep. 820. One who has acquired a right to maintain a pipe line over public lands cannot, after the rights of others have intervened in the land, acquire any new rights on the land different from those already acquired by virtue of his old easement. McGuire v. Brown, 106 Cal. 670, 30 L. R. A. 384, 39 Pac. 1060; Sturr v. Beck, 133 U. S. 541, 33 L. ed. 761, 10 Sup. Ct. Rep. 350. One who has an easement for a ditch cannot change it to a 12-inch pipe line. Allen V. San Jose Land & Water Co. 92 Cal. 138, 15 L. R. A. 93, 28 Pac. 215. By parity of reason, a 12-inch pipe across the land cannot be changed to a 14-inch pipe connected with a forebay or dam constructed upon the land. Mr. W. H. Anderson also filed a separate brief for plaintiff in error: The court's opinion upon writ of error from the decision of the highest judicial tribunal of the state is part of the record. Cousin v. Labatut, 19 How. 202, 15 L. ed. 601; Murdock v. Memphis, 20 Wall. 633, 22 L. ed. 443; Gross v. United States Mortg. Co. 108 U. S. 485, 27 L. ed. 795, 2 Sup. Ct. Rep. 940; Fire Asso. of Philadelphia v. New York, 119 U. S. 116, 30 L. ed. 346, 7 Sup. Ct. Rep. 108: Creiger v. Shelby R. Co. 125 U. S. 44, 31 L. ed. 678, 8 Sup. Ct. Rep. 752; Scudder v. Coler, 175 U. S. 36, 44 L. ed. 64, 20 Sup. Ct. Rep. 26. Where the record affirmatively shows that a Federal question was raised, that is, that it was "set up" or "claimed,"-whether that fact is deducible from the pleadings or from the judgment or from any other part of the record, it is sufficient to confer jurisdiction; and it is immaterial where, when, or how it was raised, provided it was raised prior to the final judginent, and was determined and passed upon adversely in the final judgment. Maxwell v. Newbold, 18 How. 511-516, 15 L. ed. 506-508; Sully v. American Nat. Bank, 178 U. S. 289, 44 L. ed. 1072, |20 Sup. Ct. Rep. 935; Gross v. United States Mortg. Co. 108 U. S. 484, 27 L. ed. 797, 2 Sup. Ct. Rep. 940; Fire Asso. of Philadelphia v. New York, 119 U. S. 116, 30 L. ed. 346, 7 Sup. Ct. Rep. 108; Sayward v. Denney, 158 U. S. 180, 181, 39 L. ed. 941, 942, 15 Sup. Ct. Rep. 777; Meyer v. Richmond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106; Dewey v. Des Moines, 173 U. S. 193201, 43 L. ed. 665-667, 19 Sup. Ct. Rep. 379. Mr. John S. Chapman submitted the cause for defendant in error: Under U. S. Rev. Stat. § 709a, title, right, privilege, or immunity claimed under the Constitution must be specifically made. And, more than that, such right or title must be specially set up or claimed on the record. Murdock v. Memphis, 20 Wall. 590, 634, 22 L. ed. 429, 444; Clark v. Pennsylvania, 128 U. S. 395, 397, 32 L. ed. 487, 488, 9 Sup. Ct. Rep. 2, 113. The arguments of counsel cannot be looked into to show a Federal question. Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639. Nor are the assignments of error available to show the Federal question, for they are not a part of the record. Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Fowler v. Lamson, 164 U. S. 252, 41 L. ed. 424, 17 Sup. Ct. Rep. 112. Nor is it sufficient that such a claim appears in the petition for the writ. Clark v. Pennsylvania, 128 U. S. 395, 32 L. ed. 487, 9 Sup. Ct. Rep. 2, 113. Nor can it be made out by the certificate of the judge. Caperton v. Bowyer, 14 Wall. 216, 236, 20 L. ed. 882, 885; Dibble v. Bellingham Bay Land Co. 163 U. S. 63, 41 L. ed. 72, 16 Sup. Ct. Rep. 939. The claim made must be distinct and positive, and not left to mere inference. "Specially set up" means unmistakably, distinctly, and positively brought to the attention of the court. F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 652, 41 L. ed. 1149, 1151, 17 Sup. Ct. Rep. 709; Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 66-70, 43 L. ed. 364, 368, 369, 19 Sup. Ct. Rep. 97. A special reference must be made to the |