630
FEDERAL ,REPORTER.
vol. 50.
The answer of Nd.13 states explicitly that" /18800n a8 the green: light andstaffligpts were seen, a signal was given;" and all agree that no signal was given until after the ferryboat had crossed; If the pilot of No. 13,moreover, intended to be understood as saying In his subsequent teatimonythathe saw not only the two white lights, but also the green light of the Buffalo 1,000 feet or more out in the river, and before the ferryto boat paBBed, this would convict No. 13 of gross fault in not the Buffalo and her tow when they were recognized so near, and so plainly involving risk of collision. Although signals are often unreasonably delayed, lam not willing to believe that in the case of heavy floats like these,. where the need of Rsignal when the vessels are first seen only a thousand feet distant is so imperative, a signal would have been omitted by the pilot of No. 13, had he seen the Buffalo's green and stafi' lights before the ferryboat crossed. I conclude, therefore, that neither pilot saw the colored light of the other until after the ferryboat had passed, because the colored lights were not visible, through the obscuration caused by the pilot house of the barge 011 the port side of No. 13. For this obscuration No.l3was responsible, and she must take the risk of navigating in that condition of her lights, and of her tow; because it was in violation of the rule of navigation tbat requires lights to be visiblefor 10 points around the horizon. The SeacauCUB, 34 Fed. Rep. 68, 70. No fault being established against the Buffalo, the libel as to her be dismissed with costs; and a decree entered against No. 13, with costs, witb an order of reference to compute the damages, if not agreed upon. '.
THE
BUFFALO.
CLARlt tI. THE BUFFALO.
\Df.Btrict COUrt, S.D. New York. INOS.
Hay
a, 181lS.)
OOLlJSTON....VE8$EL AT ANOHOR-FoG-MoVING STEAMER-NEGLECT TO HAn Sotnm-
'The schooner R. was at anchor in t,he usual anchorage ground in President roads, Boston harbor, in a dense fog, and was property ringing her bell Held, that the .R. was entitled to recover the d.. occ,asloned by her being run Into by the steamer B:, which was slOWly moving across the anchorage ground for deeper water, at least ·l,2()O feet out of the ordinary course of sucb steamers, tbere being no djjJlculty, If, as alleged, the compass was unreliable, In ascertaininjf her position itl the fog by soundings, which the steamer had neglected to make.
In Admiralty. Libel for collision. OllJtn, Gray Sturgea, for libelant. ,FOBtel' ThO'f!l.BO'fl, for ·
Decree for libelant.
... BROWN, District Judge. At a little before 3 o'c1ocltin the morning of August 23, 1892,tbe lihelanfs schooner Luther A. Roby, while lying at anchor in President roads in the harbor of Boston, was run into by
631 the steamship Buffalo, in a dense fog; and her bowsprit broken,her headgear carried away, with other damage, for which the above libel was filed. The Buffalo was outward bound; the weather was clear at aJittle past '2 A. M. when she left her dock, but in about 20 minutes after she had got around and headed upon her course, she ran into a dense fog, when at Castle island. where the channel is narrow and does not furnish suitable an()horage ground.: She, therefore, continued on slowly in the first of the ebb tide, .sounding her fog whistle and intending soon to come to ancbor. No bell was heard from the schooner, nor was the schooner seen until she Was within one or two hundred feet of the Buffalo, when her masts appeared first in the lighter fog above, a very little on the Buffalo's port bow, and too near to avoid collision. The Buffalo's engines were thereupon put ahead half speed, and her helm hard aport, which probably prevented greater damage by enabling her to clear the schooner's hull. For the claimants it is contended that as no bell was heard, none was properly rung upon the schooner. . One man, the night watch, was alone on deck. The testimony, DO doubt, shows that when the steamer's approach was recognized by him, he rang the bell more continuously and noisily than before, so that several men below came speedily on deck; some, a little time before collision, and others, at thenioment of collision. But the fact that several of them were thus roused and came up before C:lollision, shows that the master of the Buffalo and others are mistaken when they claim that no bell was rung until after collision. If, as they say, they did not hear any bell before collision, the reason why they did not heed or notice it must. be sought in some other circumstatlcethan that the bell was not rung. The explicit testimony of the lookout that he bad been previously ringing the bell at proper intervals, is confirmed by several witnesses on board the schooner; and the fact .that he did recognize the steamer's approach at some little distance, and did then.ring the bell continuously and Iiolently, is proof that he was attentive to his duties. The pilot of the steamer, on the other hand, testified that he was about to anchor. He says: "We intended anchoring about where the stern of this schooner wu. We had taken it up. I says: · We cannot proceed. We have got to anchor. I have got to get a couple of lengths further to the eastward before we can anchor in order to get more water.'" The hands were already forward to attend to this. Among the different causes that might prevent the schooner's be]] from being heard or noticed, partial preoccupation of the mind by other duties is certainly not to be exC'luded. I cannot find from the testimony that the schooner's bell was not properly rung. The schooner was at anchor in a usual and proper place, and her bell was properly rung. The steamer is, therefore, legally bound to pay the damage she caused, unless it resulted from inevitable accident. SteamShip 00. v. Calderwood, 19 How. 241, 246; TIu Granite State, 8 Wall.
632
PEDERAL
REPORTER,.vol. 50.
310; The Louisia,na, ld. 164, 173. The circumstances do not justify the finding of inevitable accident. The real cause of the collision is found in the fact that the steamer was, and for some time had been, considerably to the southward of the usual and proper course, whether in leaving the harbor, or in .search of anchorage ground for such a vessel. The schooner had come to anchor in 3t fathoms of water, between Spectacle and Castle islands, probably aboutt of a mile S. E. by S. of black buoy No.7. The steamer drew 221 feet of water forward, and she could not ancbor safely wbere the schooner lay. In goingfurtber to tbe soutbeastward toget a proper depth of water, as was doubtless the pilot's intention,he bad no business to be running, as he was, across anchorage ground 'i'n fog at least 1,200 ftlet to the soutbward of the ordinary course of such· steamers in .going between buoy, No.7 and the "Lower Middle." The Middletown, 44 Fed. Rep. 941. ' :I tinn it difficult to understand fully the account given by the pilot of his course. That he made some attempt, however,to correct his false 'position, is clear; If there was difficulty, as he intimates there was, in steering by compass, as the steamer was an iron sbip and light, there was no difficulty in determining the proper line of her course by soundin'gs between Castle island and the Lower Middle; and soundings would 'have made clear toathe should be more to the northward. This alobe .is '. sufficient to prevf;lnt the collision from being treated as an inaccident. There is considerable difference in the estimates of the speed of the Buffalb i 'at 'the time of collision. . Mr. Limerick, who was near .the steamer'st>ort rail as the broken bowsprit went past bim, estimates the time at "'not more than ten or fifteen' seconds" between the first blow and the second, which were 90 feet apart; and that the bowsprit drew along the port rail at about a walking speed. Both these estimates would,indicate a speed at that time of about 31 knots. It is unnecesgary,however, to 'comment further upon the testimony on this point, as I cannot find the schooner il\ fault, ,or the accident inevitable. Decree for the libelant, with costs.
STAYTON KIN. CO. ". WOODY.
633
STAYTON MIN.
Co.
tI. WOODY
ee ale
(CircUit Court, N. D. Cali,forn:£a. May 9, 1899.)
1.
FEDERAL JURISDICTION-VALIDITY 011' RAILROAD GRANT-ADVERSE HOLDING.
In ejectment, plaintiff claimed title under a railroad land allegir.g as ground of federal jurisdiction that defendants denied tbe valIdity of the I'rrant. The pleadings and evidence showed that defendants not only asserted the validity of the grant, but themselves claimed title tbrough one holding under the grant. Held, tbat the action must be dismissed for want of jurisdiction. . An allegation by defendants that G., their predecessor in interest, at a certain time was holding the premises in controversy adversely to B., plaintiff's predecessor in title, who.beld under the railroad grant, there being no allegation that G. or his successors were so holding adversely to B. at the time the action was brought, was insufficient to show a holding adverse to the grant.
9.
SAME-PLEADINGS.
At Law. Action of ejectment by the Stayton Mining Company against M. F. Woody and others. Dismissed for want of jurisdiction. Joseph D. Redding, for plaintiff. CarroU Cook, J. E. Foulds, and William Hoff Cook, for defendants. McKENNA, Circuit Judge. This is an action Qf ejectment. To justify the jurisdiction of the court the plaintiff alleges that it derives title under an act of congress passed July 27, 1866, entitled" An act granting lands to aid in the construction of a railroad and telegraph line from the atates of Missouri and Arkansas to the Pacific coast," (14 U. S. St. p. 292,) and that defendants deny the validity of said act of July, 1866. The defendants, in a preliminary answer, not only directly traverse this allegation, but expressly admit the validity of said act of July, 1866, and, fortifying the answer, allege further a contract of plaintiff with one Griffen, whose successors they allege they are, by which plaintiff agreed to convev to him the title which it should receive from the Southern Pacific Railroad Company, and which it was negotiating for at tlie time {)f said contract. The plea ofdefendants was referred on the 14th day {)f September, 1891, to S. C. Houghton, Esq., described as a master in ehancery, to report his condusions thereon. The master took testimony, and reported February 8, 1892, "that defendants' plea is good." The plaintiff excepts to the report on the ground that the master's conclusions are not justified by the evidence, and defendants move for its eonfirmation and a dismissal of the action, and for costs. The parties have stipulated in writing waiving a trial by a jury. I have carefully considered the pleadings, argument of counsel, and the testimony, and eoncur with the master" that defendants' plea is good," and that this court has no jurisdiction of the action. The evidence shows that the defendants rely for defense not by denying the validity of the act of congress of July 27, 1866, but by asserting its validity; not by denying the title of the Southern Pacific Railroad Company, dependent on said act, but by claiming that title through an agreement with their predecessor in interest, one Griffen. But plaintiff's counsel says defendants claim to hold possession of part of the premises under a mining cl8,im, and