87 FEDERAL REPORTER.

the breakwater soon parted after the lines to the schooner were cut, and she drifted across the Erie Basin, and collided with the dock on the opposite side, causing damage to the canal boat and to herself. The following diagrams are prepared by the court simply as illustrations. They are not drawn to a scale, and are introduced solely to make the situation more intelligible. No. 1 shows the vessels when moored to the breakwater, No. 2. after the Fitzpatrick's lines were parted and she had swung around at right angles to the breakwater:

LAKE

No. 1.

ERIE

The Gibson.

No negligence is imputed to the canal boat, except that she was not sufficiently manned. This proposition cannot be maintained either on the law or the facts. Two persons were aboard at the time, a sufficient number for all ordinary contingencies. It is said that if her captain or steersman had been on board she might have been cut loose, and so have avoided the accident. But this is highly problematical. She had no notice that the lines from the elevator to the schooner were to be cut. Apparently her safest course after the elevator was adrift was to remain where she was. Had she cast off her lines she might have encountered more serious difficulties. She had no means of propulsion, and might have drifted helplessly upon the rocks or sunken wrecks of "the middle ground." She certainly would have collided with something. In these circumstances she was not at fault in maintaining her position.

The Fitzpatrick.

It must be conceded that the initial cause of the accident was the parting of the schooner's head lines. Had these held, the vessels would have been perfectly safe. The schooner was sheltered from the wind, to some extent, by the breakwater, which must have been from six to ten feet above the water of the basin. The schooner's side was about nine feet above the breakwater. That her lines parted affords a presumption that they were insufficient. When the schooner swung around she carried the Cyclone with her. The latter's spuds were broken, and it is a fair presumption that this was caused by the schooner striking against her. No other sufficient cause is proved or suggested. The elevator was then helpless, made so by the act of the schooner. Their relative obligations were thus changed, and it cannot be asserted that after depriving the elevator of her principal means of anchorage the schooner owed her no greater obligation than before. The master of the schooner testifies that he had all the lines out to the breakwater that it was possible for him to use. Assuming that he is correct in this statement, it was still his duty, having placed the elevator in a situation of danger, to act with discretion and prudence, and not subject her to additional and unnecessary risk. The schooner was not called upon to remain where she was, as the subsidence of the water would place her in great peril; but in releasing herself it was her duty not to subject the other vessels to danger which could have been avoided. Having informed the foreman of the elevator that "if he wished to take his own chances he could stay right alongside of the schooner," she should, if she intended to cut the lines, at least have given timely warning of her intention. The schooner was not justified in cutting the lines at the time and in the manner shown by the proof. The danger was not then imminent, and insufficient notice of the schooner's intention was given to the elevator. The latter had not sufficient time thereafter to secure other assistance or provide additional means of safety. If the elevator had known

that her lines were to be cut, she might have taken a number of precautions to insure her against drifting across the basin. Had the canal boat known of this in time, she could have procured the services of a small tug and been towed to a place of safety.

The Cyclone.

Assuming that the Cyclone was properly equipped for ordinary purposes, she certainly was in no condition to cope with the situation which confronted her on the morning in question. From the time she was swung around by the schooner, and rendered comparatively helpless by the breaking of her spuds, to the time when she was finally set adrift, six hours elapsed. During this time she did practically nothing to better her condition, except to put out an additional line. She had two lines to the breakwater, but she could have put out other lines. The foreman testified that he knew the lines he had out to the breakwater would not alone hold the elevator. There was a line several hundred feet in length on the elevator which was not used. This could have been utilized, and any number of additional lines could have been procured. The Cyclone had no anchor. An anchor might have held her at least until she could have procured the assistance of a tug. That such assistance would have been available is demonstrated by the fact that after she drifted across the basin a tug got a line to her, and arrested her further progress. A tug came to her during the morning and offered help, but the offer was not accepted. The harbor of Buffalo was full of tugs, and one was lying near to assist the vessels when called on. After being warned repeatedly to do something to relieve the situation, the Cyclone persisted in doing nothing. The conclusion cannot be resisted that the accident was the result of the joint fault of the Fitzpatrick and the Cyclone. It follows that the libelant is entitled to a decree against the Fitzpatrick and Cyclone with costs. The Cyclone is entitled to a decree against the Fitzpatrick for half her damages and half her costs. There should be a reference to compute the amount due.

FLORIDA C. & P. R. CO. v. BELL et al.

(Circuit Court of Appeals, Fifth Circuit. May 24, 1898.)

1. FEDERAL COURTS-JURISDICTION.

No. 599.

The federal courts have jurisdiction of an action to recover possession of lands which plaintiff claims by virtue of pre-emption under the laws of congress, and which defendant claims under an act of congress granting land to railroads, and where it appears that defendant resisted the plaintiff's pre-emption claim in the different stages of the prosecution thereof. 2. SAME.

The federal courts have jurisdiction of an action for mesne profits of land during the time between plaintiff's pre-emption entry and the issuance of the patent.

3. PLEADING-JURISDICTION.

The jurisdiction of a court does not depend on defendant's answer, and cannot be taken away by it.

4. PLEADING.

A plea that "plaintiff is a person non compos mentis and insane, and cannot maintain the said above-entitled suit," is not good.

In Error to the Circuit Court of the United States for the Southern District of Florida.

This was an action by William J. Bell and others against the Florida Central & Peninsular Railroad Company to recover possession of land and damages for the occupation and use thereof. There was a judgment for plaintiffs in the circuit court, and defendant brings

error.

J. C. Cooper, W. W. Howe, W. B. Spencer, and C. P. Cocke, for plaintiff in error.

H. Bisbee, for defendants in error.

Before PARDEE and MCCORMICK, Circuit Judges, and SWAYNE, District Judge.

McCORMICK, Circuit Judge. This case is brought here on a writ of error to the circuit court of the United States for the Southern district of Florida. The declaration, filed in that court, December 29, 1896, is as follows:

"William J. Bell, John W. Bell, Frank A. Bell, who at and before the time this suit was commenced were citizens of the state of Texas, E. A. Bell, Matilda P. Feihe (née Bell), all heirs of and children of Louis Bell, late of Hillsborough county, state of Florida, deceased, George A. Bell and Simon Bell, heirs of and grandchildren of the said Louis Bell, and Antone Feihe, the husband of said Matilda P. Feihe, plaintiffs, by H. Bisbee and Padgett & Forrest, their attorneys, sue the Florida Central & Peninsular Railroad Company, a corporation organized and existing under the laws of Florida, the defendant, because the defendant heretofore, to wit, in the year 1890, took possession of, as its railroad bed and right of way, and built its railroad of four tracks across and through and upon, a strip and parcel of land, being a part of lot 8, section 2, township 29 south, of range 18 east, according to the surveys. maps, and pats thereof made by the government of the United States, and under and according to the laws of the said United States, which said lot 8 is in Hillsborough county, state of Florida, and in the said Southern district of Florida; which said strip and parcel of land, so taken as aforesaid by 87 F.-24

the defendant, and which the said defendant is in possession of and was in possession of at the time of the commencement of this suit, contains about seven acres, of the value of $30,000, to which the plaintiffs claim title; and the defendant has received the rents and profits of said land since the 1st day of December, 1889, of the yearly value of $4,000, and refuses to deliver the possession of the said land to the said plaintiffs, or to pay the rents or profits thereof. And the said plaintiffs allege that, in and by the construction of its said railroad upon, over, and through the said strip and parcel of land by the defendant, the defendant has dug up the said land in making its roadbed, and has taken away and removed the plaintiffs' fences thereon, and the soil and sand thereof, and other wrongs and trespasses and injuries to the said land and to the plaintiffs' possession and freehold committed, to the plaintiffs' damage of $10,000, exclusive of such rents and profits, which the defendant neglects and refuses to pay to the plaintiffs. And the plaintiffs allege that they claim title to the said land under and by virtue of a patent granted by the government of the United States of America to the said Louis Bell and his heirs, upon a pre-emption claim for said land under the laws of the United States, originally commenced and filed in the local land office of the United States of America at Gainesville, Florida, in 1883, and prosecuted by the heirs of the said Louis Bell and his heirs, the plaintiffs, in said land office, and upon appeal in the general land office of the government; and upon and from an appeal from the decision of the commissioner of the said general land office to the secretary of the interior of the United States the said heirs prosecuted the pre-emption claim, until, by the order and decision of the said secretary, the said patent was granted. And the plaintiffs allege that at various and sundry times during the said prosecution of the said pre-emption claim in the general land office aforesaid, and in the office of and before the said secretary, the defendant claimed, insisted, and contended that the plaintiffs were not, under any of the laws of the United States, entitled to have a patent to said land granted to the said Louis Bell and his heirs; and the said defendant, at the time of the commencement of this suit, claimed and insisted that the plaintiffs derived no title to the said land under and by virtue of the patent, and at said time claimed that under the laws of the United States of America, and especially under and by virtue of the first section of an act of congress entitled 'An act granting public lands in alternate sections to the states of Florida and Alabama, to aid in the construction of certain railroads in said states,' approved May 17, 1856, it was entitled and had the right to locate the route of its railroad and construct the same through the said lands, and to be in possession thereof, on the ground, among other grounds, that the said section 8 was a part of that tract of land, which constituted at one time a military reservation known as the 'Fort Brooke Military Reservation,' at Tampa, state of Florida. And the plaintiffs allege that after the passage of an act of congress entitled 'An act to provide for the disposal of abandoned and useless military reservations,' approved July 5, 1884, they contended for and claimed title to, and a patent to, the said parcel of land under and by virtue of the first proviso of the second section of the last-mentioned act of congress, both in the office of the said general land office and of the secretary of the interior, and the defendant appeared in both of the said offices by its counsel, and there claimed and contended, and at the commencement of this suit claimed and contended, that the plaintiffs were not entitled to a patent or title to said parcel of land under the said proviso of the said act of congress, and at the times aforesaid it claimed and insisted that it was entitled to locate the route of its railroad through said parcel of land, and to be in the possession thereof, under and by force of the third proviso of the aforesaid act of congress approved May 17, 1856; to the plaintiffs' damage of $40,000."

To this declaration, the Florida Central & Peninsular Railroad Company, the plaintiff in error, on February 1, 1897, submitted the following plea:

"Now comes the defendant in the above-entitled cause, by John C. Cooper. its attorney, and for a plea to plaintiffs' declaration says it is not guilty as alleged in said declaration."