2. Under the homestead laws of the United
States no person by filing upon a piece of land ac-
quires any ownership in the same; he obtains an
inchoate title, which is only completed when he
has resided upon the land the period of time men-
tioned in the statute, and proved his right to the
title, and paid for the same.-Schoolfield v. Houle,
(Colo.) 22 P. 781.

3. Fences and natural barriers may constitute
such inclosure of public lands as to give actual pos-
session to one making or using the inclosure, and
another cannot acquire a pre-emption or homestead
claim thereto by intruding upon such possession;
but, where the fences are dilapidated and down in
places, and it does not appear that anything has
been done to repair them, or that herders or other
means are employed to prevent the escape of stock
pastured on the land, or the intrusion of other
stock, another may make valid settlement on, and
acquire title to, the land, under the homestead law.
-Bullock v. Rouse, (Cal.) 22 P. 919.

Alcalde grants.

4. An alcalde grant of a laguna survey lot con-
veyed the absolute title, and no portion of the land
so conveyed can be appropriated for a street with-
out the award of proper compensation.-Spaulding
v. Bradley, (Cal.) 22 P. 47.

5. Grants of two lots from the alcalde of San
Francisco described them as 100 varas square, and
numbered 15 and 25, as "marked on page 4, District

Record B." Such record was referred to as con-

taining a "plan" or "plat," and showed the loca-
tion of the premises described in the grants. The
petitions for the grants contained a description of
the land, which was referred to in the grants. Lot
25 was described as "bounded on the west by lot 15
of said plat," and lot 15 as bounded on the north
by lot "numbered 1 on page 4 of District Record,
on the west by lot number 11 of the same plan, and
south and east by land yet unsurveyed: said land
lying in the western vicinity of San Francisco,
and near the road to the Presidio, and numbered 15
on the plan referred to in the petition." Held, that
it could not be said, as matter of law, that the
land was not sufficiently identified.-Spaulding v.
Bradley (Cal.) 22 P 47
Inclosure.

6. Defendant, owning a number of sections of
land designated by odd numbers, the title to the al-
ternate or even-numbered sections being still in the
government, undertook to inclose a part of its lands
by a series of fences erected wholly within the
limits of its own property, the practical effect of
which, however, was to inclose with it many of
the even-numbered sections of public land. In a
proceeding by the United States for injunction,
under act Cong. Feb. 25, 1885, (23 U. S. St. 1883-
85,) declaring unlawful the inclosure of public
lands made by any person without claim or color
of title to any portion of the lands so inclosed, held,
(per SAUFLEY, J.,) that the statute, so far as it for-
bids, as a nuisance, the erection by defendant of
a fence wholly within the limits of its own land,
is not a legitimate exercise of the police power, but
an unwarranted invasion of private property, and
is unconstitutional and void.-United States v.
Douglas-Willan Sartoris Co., (Wyo.) 22 P. 92.

7. Per CORN, J. Notwithstanding the appar-
ent meaning of the language used, the act of Feb-
ruary 25, 1885, was not intended to forbid the erec-
tion by a land-owner of a fence wholly within the
limits of his own land.-United States v. Douglas-
Willan Sartoris Co., (Wyo.) 22 P. 92.

8. Actual residence is not required by Pol. Code
Cal. $$ 3442, 8443, providing that "settlers" upon
swamp lands belonging to the state, who occupy
the same for farming purposes, and whose occupa-
tion is evidenced by actual inclosure, or by monu-

9. Under the third section of the act of admis
sion of the state of Kansas into the Union, irrevoca-
bly granting to the state, for the use of schools, the
sixteenth and thirty-sixth sections of the public
lands, the grant embraced those sections of Indian
lands within the state in which the Indians had a
right of possession only.-Roberts v. Missouri, K.
& T. Ry. Co., (Kan.) 22 P. 1006.
Railroad grants.

10. Where a right of way is given to a railroad,
over certain lands, by an act of the legislature, and
afterwards, and before the location and construc-
tion of such railroad, such act is repealed, the
railway company secured no right of way by sub-
sequently constructing its road over such lands.-
Roberts v. Missouri, K. & T. Ry. Co., (Kan.) 22 P.
1006.

11. The act of July 26, 1866, (14 St. U. 8. 289.)
giving a right of way over the Osage ceded lands
reserved by the United States for the Great and
Little Osage Indians, gave such right only over
such lands as had not previously been disposed of by
the government.-Roberts v. Missouri, K. & T. Ry.
Co., (Kan.) 22 P. 1006.

location of a railroad, but which had been volun-
12. A homestead entry, made before the definite
tarily abandoned before such definite location, al-
though the filing thereof was not canceled until
after the location, did not operate to except the
land from the grant to the railroad company, under
the provisions of the act of congress of March 3,
1863, donating to the state of Kansas lands to aid
in the construction of certain railroads and tele-
graphs. Emslie v. Young, 24 Kan. 732.-Young v.
Goss, (Kan.) 22 P. 572.
Swamp lands.

13. Const. Cal. art. 17, § 8, provides that state
lands which are suitable for cultivation shall be
granted only to actual settlers. The term "actual
settlers," which has been construed to mean "act-
ual residents," is repeated in Pol. Code Cal. § 3495,
which relates to land suitable for cultivation, but
the word "actual" is omitted in the provision as to
swamp land. Held, that actual residence is not
essential to a settlement on swamp land, as it is not
land "suitable for cultivation. "-McIntyre v. Sher.
wood, (Cal.) 22 P. 937.
School lands.

14. Pol. Code Cal. § 3499, provides that all appli-
cations to purchase school land, filed in the survey-
or general's office, must be retained by him 90 days
before approval, and must be approved by him
(when there is no conflict) at the end of six
months, subject to the requirements of sections
3406, 3407, which relate to the acceptance by the
United States of the land as part satisfaction of
the grant to the state; and all applications not
approved after six months, where approval has
not been demanded, or the contest referred to the
court, or demand for reference made, as provided
for by section 3414, shall be null and void. Held,
that the provision invalidating applications six
months after filing, when no demand for ap-
proval is made, refers to applications in con-
test cases only, as no demand for approval is nec-
essary where there is only one application.-Bar-
num v. Bridges, (Cal.) 22 P. 924.

15. A deed of school lands, made before a cer-
tificate of purchase was issued to the grantor,
passes no interest under the statute of California,
in force in 1869, providing that a subsequently ac
quired title shall pass to the grantee where the
grantor had made no application to purchase the
land, nor had paid anything on it.-People v. Blake,
(Cal.) 22 P. 1142; Same v. Hemme, Id. 1143.

16. Where the record is silent as to whether a
deed conveying the interest of one who holds a

17. Under Rev. St. U. S. § 2325, requiring a claim
ant for a land patent to file a certificate of the
surveyor general that $500 in labor or improve-
ments has been expended on the land, the certifi-
cate is conclusive evidence of the fact, and in an
action to annul a patent for want of such labor or
improvements it is error to strike out of the an-
swer an averment that the surveyor general had
decided that such requirements had been complied
with.-United States v. King, (Mont.) 22 P. 498.

18. Where it appears, in such action, that an.
other had filed an adverse claim on the land, and
that a quartz vein had been discovered thereon,
and a claim filed, and there is a substantial conflict
in the testimony as to whether the patentees dis-
covered any mineral lead or vein, the evidence is
not so clear and convincing that no such discovery
was made as to authorize the cancellation of the
patent.-United States v. King, (Mont.) 22 P. 498.

Titles derived from states.

20. Act Cong. March 3, 1853, § 7, "for the sur-
vey of public lands in California, the granting of
pre-emption rights therein, and for other pur-
poses," provides "that where any settlement, by
the erection of a dwelling-house or the cultivation
of any portion of the land, shall be made upon the
sixteenth and thirty-sixth sections, before the
same shall be surveyed, or where such sections
may be reserved for public uses, or taken by pri-
vate claims, other land shall be selected by the
proper authorities of the state in lieu thereof."
Under Rev. St. U. S. § 2395, the government sur-
vey of public lands is made by running and mark-
ing the lines of the townships and sections, and by
marking the corners of the townships, sections,
and quarter sections. Held, that the state could
not acquire lands in the sixteenth or thirty-sixth
sections prior to survey, and that the purchaser
of such land from the state, before all the lines and
corners of the section were run and marked by an
approved survey, took no title.-Bullock v. Rouse,
(Cal.) 22 P. 919.

Application for purchase.

21. Pol. Code Cal. § 3500, provides that an ap-
plication to purchase state lands must state "that
there is no valid claim to such land other than that
of the applicant; * * that he has not entered
any land in part satisfaction of the unsold portion
of the 500,000-acre grant." Held, that an applica-
tion stating that there was no valid claim other
than the applicant's, but failing to state that he
had not "entered any land," etc., creates no such
claim as will entitle the applicant to question the
validity of a certificate of purchase issued to an-
other. Cucamonga Fruit & Land Co. v. Moir,
(Cal.) 22 P. 55.

22. A certificate of purchase from the state is
not void though the application and affidavit are
defective. Cucamonga Fruit & Land Co. v. Moir,
(Cal.) 22 P. 55.

Sale of improvements.

23. One who has made improvements on public
lands may sell them, and they will constitute a
good consideration for a promise to pay the price.
-O'Hanlon v. Denvir, (Cal.) 22 P. 407.
Assignment of location certificate.

inures to the benefit of his grantee. -Stinson v.
Geer, (Kan.) 22 P. 586.

25. Where the locator of a military land war-
rant locates the same upon public land, and subse
quently sells, transfers, and assigns his certificate
of location to another person for a valuable consid-
eration, but does not in all respects follow the
forms and regulations for assignment of land war-
rants and locations, as prescribed by the commis-
sioner of the general land-office, the grantee takes
the interest and estate of the locator, and becomes
the equitable owner thereof.-Stinson v. Geer,
(Kan.) 22 P. 586.

Public Policy.

Conditions in will, see Wills, 6.
Validity of contracts, see Contracts, 3–6.

QUIETING TITLE.

When action lies.

1. An action to quiet title does not lie under
Code Civ. Proc. Cal. § 738, where defendant claims
no adverse title to plaintiff.-Harrigan v. Mowry,
(Cal.) 22 P. 658.

2. Code Civil Proc. Cal. § 318, providing that
no action for the recovery of real property shall be
maintained unless plaintiff had possession within
five years before the commencement of the action.
and section 319, providing that no cause of action
arising out of title to real property shall be effect-
ual unless plaintiff shall have been so possessed, do
not apply to actions to quiet title, as they may be
brought without reference to the question of pos-
session, under section 738, which provides that "an
action may be brought by any person against an-
other, who claims an estate or interest in real
property adverse to him, for the purpose of deter-
mining such adverse claims, "and section 380, regu-
lating the procedure "in an action brought by a per
son, out of the possession of real property, to de
termine an adverse claim of an interest or estate
therein."-Brusie v. Gates, (Cal.) 22 P. 284.

3. Where land is conveyed by a deed absolute
in form, to secure an indebtedness, the owner of
the equitable title cannot have the same quieted
without a payment of the debt, though it be barred
by the statute of limitations.-Rodriguez de Caza-
ra v. Orena, (Cal.) 22 P. 74.

Who may sue-Execution purchaser.

4. A purchaser at an execution sale of land may
bring his action to remove a cloud from the title by
canceling a supposed fraudulent deed of the judg
ment debtor, and to recover possession of the prem-
ises.-Stock-Growers' Bank v. Newton, (Colo.) 22
P. 444.

Administrator.

24. If the holder of a military land warrant
cates the same upon public land, and receives the
usual certificate therefor, he then has the right to
transfer or sell the land; and, if he exercise such
right before a patent has issued to him, the patent

8. In an action to quiet title, it is sufficient to
describe the land as a certain lot, part of a larger

Answer.

9. In an action to quiet title by an administrator,
& general denial puts in issue plaintiff's ownership
of the land, and the fact that he is administrator,
and is not demurrable on the ground that it does not
set up defendant's claim or disclaim.-Pennie v.
Hildreth, (Cal.) 22 P. 398.

10. An answer in an action to quiet title, alleg.
ing that plaintiff's only interest in the property is
by virtue of a mortgage, is not demurrable on the
ground that it does not show an offer to redeem or
a tender of the amount due.-Pennie v. Hildreth,
(Cal.) 22 P. 898.

11. An answer alleging that defendant claims
under an agreement with plaintiff's mortgagor,
whereby defendant is to receive a conveyance of
an undivided nair of the land on payment of the
purchase price, and that an action is pending be-
tween defendant and the mortgagor's personal rep-
resentative, to which plaintiff is a party, to settle
partnership accounts and sell the land, without
alleging payment of the price, or any excuse for
failure to pay it, or that, on settlement of the ac-
counts, defendant will be entitled to any interest
in the land, is demurrable.-Pennie v. Hildreth,
(Cal.) 22 P. 398.

19. In an action to quiet title a finding that'
plaintiff was not the owner of the property in con-
troversy, and was not entitled to possession there-
of, is a finding of the fact in issue, and is sufficient
without a finding of the facts respecting such own-
ership.-Daly v Sorocco (Cal.) 22 P. 211.

20. As the right to maintain the action is based
wholly on the ownership and right to possession,
a failure to find on certain other issues is not cause
for reversal.-Daly v. Sorocco, (Cal.) 22 P. 211.
21. Where the pleadings admit that the fee is
held by plaintiff, a finding that an undivided half
interest is owned by another, without finding the
facts from which such legal conclusion is drawn,
is insufficient to support a judgment against plain-
tiff for half the land.-Traverso v. Tate, (Cal.) 22
P. 1082.
QUO WARRANTO.

Jurisdiction.

no issue was raised as to whether the deed was
made to delay or defraud the creditors of the ven-
dor, generally.-Traverso v. Tate, (Cal.) 22 P. 1082.

Misjoinder of causes.

14. There is no misjoinder of causes of action in
a complaint to quiet title to several tracts of land
not contiguous, where the adverse claimants are
the same.-Pennie v. Hildreth. (Cal.) 22 P. 398.
Evidence.

15. It appeared that defendant conveyed all his
interest in a certain tract of land to plaintiffs'
decedent; that thereafter the land in suit was
set apart to plaintiffs' decedent in a suit for par-
tition brought by defendant; that decedent left
a will, whereby his whole estate was to be di-
vided between his two sisters; that one of the sis-
ters died after the testator; that plaintiffs are the
special administrator, the surviving sister and her
husband, and the children of the deceased sister,
and the husband of one of them; and that the will
was duly probated in another state, and the special
administrator appointed in California. Held, that
a judgment for plaintiffs was warranted, and it was
unnecessary for plaintiffs to prove that the de-
ceased sister's children succeeded to her interest,
or that defendant held adversely, or that plaintiffs
were in possession.-Miller v. Luco, (Cal.) 22 P.
195.

16. In an action to quiet title to land claimed by
plaintiffs under the will of a decedent, a sheriff's
deed reciting a judgment and execution against
the administrator of plaintiff's decedent, and the
sale of his interest in the land, is inadmissible.-
Miller v. Luco. (Cal.) 22 P. 195.

17. Where plaintiff conveys land to defendant
in trust for herself, which defendant is to recon-
vey at the end of five years, the fact that, at the
expiration of that time, plaintiff is in possession
of the land does not authorize a finding that the
legal title is in her.-Harrigan v. Mowry, (Cal.) 22
P. 868.

Rents and profits.

18. When land is conveyed by deed absolute to
secure an indebtedness, and plaintiff sues to quiet
his title defendant, who had been in possession of

2. The fact that the person against whom the
action is brought is a member of the board of su-
pervisors of the city and county of San Francisco,
which board, the consolidation act, § 67, p. 16, de-
clares, "shall be the judge of elections, returns, and
qualifications of its own members," does not take
away the court's jurisdiction.-People v. Bingham,
(Cal.) 22 P. 1039.

To determine title to office.

3. Code Civil Proc. Colo. c. 28, passed in obedi-
ence to article 7, § 12, of the constitution, and pre-
scribing an enlarged proceeding by information in
the nature of quo warranto, and regulating the
method of trial, is exclusive as to the forum and pro-
cedure, and, as it covers only actions, in the name
of the people, to determine whether an office has
been usurped, etc., an unsuccessful candidate for
mayor of Denver is estopped by instituting such
proceedings in preference to the method authorized
by the charter to have his own right to the office
determined; and his case is not covered by a pro-
vision in the information statute authorizing the
right of the contestant to be determined in a prop-
er case.-People v. Londoner, (Colo.) 22 P. 764.

4. One who is a freeholder, resident, and elect-
or within the city is sufficiently interested to insti-
tute quo warranto proceedings to determine the
right to office of the person acting as mayor; nor
is he disqualified to institute the proceedings by
the fact that he was the opposing candidate.-Peo-
ple v. Londoner, (Colo.) 22 P. 764.

5. As Code Civil Proc. Cal. § 803, authorizes
the attorney general to bring the action, in the
name of the people, on his own information, or on
the complaint of a private party, it is not necessary
for the complaint to show that the relator is enti-
tled to the office, or that any one else claims to be
entitled to it.-People v. Bingham, (Cal.) 22 P.1039.

6. Const. Colo. art. 7, § 12, providing that the
general assembly shall by general law designate
the courts and judges by whom election contests
shall be tried, does not take away the remedy
by quo warranto authorized by article 6, § 3,
but provides a concurrent remedy, which is usu-
ally instituted by or on behalf of an unsuccessful
candidate for an office, to determine his right
thereto, while quo warranto proceedings are in
the name of the people, to determine the right of
the incumbent to the office.-People v. Londoner,
(Colo.) 22 P. 764.

7. The charter of Denver city, art. 4, § 9, pro
viding that if the election of a mayor shall be con-

6. In an action for personal injuries, an allega
tion that the accident occurred at a place where
defendant's railroad track crossed a certain street

RAILROAD COMPANIES.
See, also, Carriers.

Railroad grants, see Public Lands, 10-12.
Land grants-Taxation.

1. Act Cong. July 1, 1862, § 8, provided "that
there be, and is hereby, granted" to a railroad com-
pany, for the purpose of aiding in the construction
of said railroad, certain sections of public lands
along the proposed line, reserving all mineral land
from the operations of the act, and provided that
patents should issue to the company for the lands
granted, at the completion of the road. Held, that
the act was an absolute donation, and imported a
grant in præsenti, and the company, having com-
pleted its road, could not evade taxation on the
land, under the act of 1886, on the ground that such
land had never been "selected by, set off, certified,
or listed" to it by the government of the United
States, as the identification of the land could be
determined on the trial.-State v. Central Pac. R.
Co., (Nev.) 22 P. 237.

2. Act Cong. July 10, 1886, provides that "no
lands granted to any railroad corporation by any
act of congress shall be exempt from taxation by
states, territories, and municipal corporations on
account of the lien of the United States upon the
same for the costs of surveying, selecting, and con-
veying the same, or because no patent has been is-
sued therefor." Held, that congress delegated to
the states and territories the right to tax the lands
granted to railroad companies, though the latter
had not paid the costs of surveying and selecting
such lands.-State v. Central Pac. R. Co., (Nev.)
22 P. 237.

Negligence.

3. Plaintiff was injured by a train while push-
ing off from a wharf in a boat. He might have
easily escaped injury if he had changed his posi-
tion in the boat, or had entered it at another place,
and could have seen and heard the approaching
train from a distance. His testimony showed that
his mind was so fixed on the boat that he paid no
attention. Held contributory negligence, warrant-
ing a nonsuit.-Trousclair v. Pacific Coast Steam-
Ship Co., (Cal.) 22 P. 258.

4. Where plaintiff was injured by defendant's
train, while pushing off from a wharf in a boat,
through his own negligence, it is immaterial that
defendant was negligent in having its tracks too
near the edge of the wharf, in having only two men
in charge of the train, in using inferior brakes,
and that it had no wharf franchise, in the absence
of evidence that the injury was willful and wanton.
-Trousclair v. Pacific Coast Steam-Ship Co., (Cal.)

22 P. 258.

Accidents at crossings.

5. Where a person with a teain crossing a rail-
road on the highway of a village is injured by an en-
gine, running rapidly backward at the rate of 30
miles an hour, without any signal given, and such
person has looked up and down the track and fails
to discover the engine, and there is a heavy snow

7. In an action for personal injuries received
at defendant's railroad crossing, the injury was al-
leged to have been caused by plaintiff's team tak-
ing fright at defendant's engine near the cross-
ing. Held, that an instruction, that it was the
duty of defendant's employes in charge of the en-
gine, not only to give notice by bell or whistle, but
to slow up and see that the crossing was clear,
and that it was defendant's duty to station a flag-
man at the crossing, is erroneous, as invading the
province of the jury to determine the proximate
cause of the injury, and imposing too great a de-
gree of care on defendant, and as being a direction
to find for plaintiff if the injury would not have
occurred had defendant stationed a flagman at the
crossing.-Carraher v. San Francisco Bridge Co.,
(Cal.) 22 P. 480

8. In an action for personal injuries received
at defendant's railroad crossing, evidence that de-
fendant used a certain coal-house which obstructed
plaintiff's view of the track, and shifted it when it
shifted the track, supports a finding that such
coal-house was erected and maintained by defend-
ant.-Carraher v. San Francisco Bridge Co., (Cal.)
22 P. 480.

9. In an action for personal injuries received
at defendant's railroad crossing, an instruction
that "it is also claimed" that certain erections
constituting obstructions to plaintiff's view "were
placed there by the defendant" is not erroneous as
assuming that such was the fact.-Carraher v.
San Francisco Bridge Co., (Cal.) 22 P. 480.

Stock-killing cases.

10. In an action against a railroad company for
alleged that, if the whistle of the locomotive which
stock killed at a crossing, the bill of particulars
killed the stock had been sounded, as prescribed

by law, the person in charge of the stock could
by the jury of any failure of the locomotive to
have prevented any injury. There was no finding
sound its whistle, and it appeared from the in-
structions and findings that a verdict for plaintif
was returned on the theory that defendant negli
gently permitted the growth of a high hedge near
the crossing in question, which obstructed obser-
vation of the approach of trains. The plaintiff
and the person in charge of the stock were well
acquainted with the crossing and the hedge. Held,
that the verdict should be set aside.-Atchison, T.
& S. F. R. Co. v. Hawkins, (Kan.) 22 P. 322.

11. Misc. Laws Or. §§ 4044-4049, making a rail-
road company liable for the value of stock killed
or injured by moving trains, etc., on any unfenced
part of its road, and providing that proof of the
killing or injury shall be conclusive evidence of
negligence on the part of the company; that con-
tributory negligence on the part of plaintiff may be
set up as a defense; but that allowing stock to run
on common, unfenced range, or uninclosed land
owned by him or in his possession, shall not be
deemed contributory negligence,-entitles an own-
er of stock to recover in such case, where he alleges
that defendant owned or operated the railroad,
that its track was unfenced, and that the killing or
injury was done on or near the track by a moving
train, etc., on the track; and negligence on the
part of defendant need not be alleged.-Hindman
v. Oregon Ry. & Nav. Co., (Or.) 22 P. 116.

12. The provision of sections 4044-4049, that al-
lowing stock to run on common, unfenced range, or
uninclosed land owned by, or in the possession of,
the owner of the stock shall not be deemed con-
tributory negligence where such stock is killed on