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tending in their own direction, when it departs beyond the vertical planes of the side lines, is an expansion of the rights which would be conferred by a cominon-law grant.”
Of similar import is State v. District Court of Second Judicial Dist. of Silver Bow Co. (Mont.) 65 Pac. 1020.
In Doe v. Waterloo Min. Co. (C. C.) 54 Fed. 935, Judge Ross said: *Except as modified by the statute, no reason is perceived why one who acquires the ownership or possession of such lands should not hold them with and subject to the incidents of ownership and possession at common law.”
In Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. (C. C.) 63 Fed. 540, Judge Hawley said:
"Hands off of any and every thing within my surface lines, extending vertically downward, until you prove that you are working upon and following a vein which has its apex within your surface claim.”
We find no error in the decree of the circuit court. The decree is affirmed.
(113 Fed. 903.)
UNITED STATES V. VAN WINKLE.
No. 733. 1. MINERAL LANDS—CUTTING TIMBER-CHARACTER NF LAND-DETERMINATION
On an issue whether public land on which timber was cut by defendant was mineral land, within Act Cong. June 3, 1878, authorizing residents of certain mineral districts to cut timber on mineral lands, a geological map of the territory in which the lands were located, issued by authority of interior department, was admissible for use in connection with the evidence of witnesses, and to show the general nature of the land described, its elevation and surroundings, and its situation with relation to lands proven to be mineral, where not in any way purporting to show the nature of the land in controversy, or to indicate that it was
mineral. 2. SAME-Public RECORDS-HARMLESS ERROR.
The admission of a certified copy of the “general description of the survey" of the township in which the land in controversy was situated, containing no reference to the particular land, but referring in general terms to the township, stating that it was mountainous, and that considerable placer mining had been done along a certain creek, and expressing the opinion that undeveloped quartz ledges existed in the ridges,
eren if error, could not have prejudiced plaintiff. 8. SAME-DIRECTION OF VERDICT.
There being evidence that in cutting the timber defendant acted under what he believed to be the lawful authority of the United States, a request that the court direct a verdict for the United States for the full amount prayed for, on the ground that it had been proven that the lands were public lands, and that defendant had cut the timber without
authority, was properly refused, because ignoring defendant's good faith. 4. SAME-MEASURE OF DAMAGES.
In case defendant cut the timber in good faith, he was only liable for the value of the timber as cut, and not as manufactured. In Error to the Circuit Court of the United States for the District of Idaho.
The United States brought an. action against Isaac Van Winkle, the de fendant in error, to recover the value of 90,000 feet of luniber, of the manufactured value of $7 per thousand feet, which lumber and logs were alleged to have been wrongfully and unlawfully cut from the public domain of the United States in the land district of Boise, Idaho. The defendant in error set up the defense that the lands from which said lumber and sawlogs were cut was mineral land of the United States, within the meaning of the act of Congress approved June 3, 1878, entitled "An act authorizing the citizens of Colorado, Nevada and the territories to fell and reinove timber on the public domain for mining and domestic purposes," section 1 of which provides as follows: "That all citizens of the United States and other persons, bona fide residents of the states of Colorado or Nevada or either of the territories of New Mexico, Arizona, Wyoming. Dakota, Idaho or Montana, and all other mineral districts of the United States, shall be and are hereby authorized and permitted to fell and remove for building, agricultural, mining or other domestic purposes any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under the existing laws of the United States except for mineral entry, in either of said states, territories or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the secretary of the interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: provided, the provisions of this act shall not extend to railroad corporations." The jury returned a verdict for the plaintiff in error for the sum of $35.
R. V. Cozier, for the United States.
GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court.
We are precluded from considering the interesting and important question principally discussed in the brief of the plaintiff in error, whether the circuit court erred in the instructions given and refused to the jury concerning the meaning of the words "mineral lands," as used in the statute of June 3, 1878, for the reason that it appears from the record that no exception was taken to the instructions so given or refused. There remain, therefore, for our consideration, only the rulings of the court in admitting certain documentary evidence, and in denying the request of the plaintiff in error for peremptory instruction to the jury to find a verdict in its favor. The defendant in error, to support his defense, offered in evidence a geological map of Boise Basin, in which were located the lands from which the timber was cut, the map having been issued by the authority of the department of the interior as “Part III., P. I, XCVI., 16th Annual Report of the Director of Geological Survey.” It was admitted in evidence, over the objection of the plaintiff in error, that it was incompetent and hearsay. The map was identified, and shown to be substantially correct, so far as it represented the location of mines thereon. It was used in connection with the evidence of several witnesses. We think it was admissible for that purpose, as well as for the purpose of showing the general nature of the land described in the complaint, its elevation and surroundings, and its situation with relation to lands which were proven to be mineral. It does not in any way purport to show the nature of the precise land in controversy, or to indicate that it was mineral land. We are unable to perceive how its admission in evidence could have been harmful or prejudicial to the plaintiff in error.
Error is assigned to the admission of the certified copy made by the surveyor general of Idaho of the "General Description of the Survey" of the township in which the lands are situated. The general description so admitted in evidence contains no reference to the particular land which is the subject of the suit. It refers in general terms to the township in which the land is situated, states that it is mountainous, etc., and that there has been a great deal of placer mining done along Grimes creek, and expresses the opinion that undeveloped quartz ledges exist in the ridges. We are inclined to the opinion that in an action such as this, where the nature of the land in controversy was a question in issue involved, reference might properly be had to the records of the land office as prima facie evidence, at least, of their character; but, in any view of this particular evidence, the plaintiff in error could not have been injured by its admission.
Vor was the plaintiff in error entitled to a peremptory instruction to the jury to find a verdict as requested. The request was that the court direct a verdict for the plaintiff for the full amount prayed for in the complaint, upon the ground that it had been proven that the lands were public lands, and that the defendant had not only entered and cut timber of the quantity and value manufactured, as charged in the complaint, but that he had done so without authority from the plaintiff in error, and without effort or attempt to comply with the rules and regulations of the secretary of the interior governing the cutting of timber from the public lands. This instruction, as asked for, ignores the right of the jury to take into consideration the question of the good faith of the defendant in error in cutting the timber as he did upon the public lands. There was evidence that in cutting the timber he acted under what he believed to be the lawful authority of the United States. Such being the case, it was the province of the jury to determine whether his action was in good faith, and to measure the damages accordingly. If he acted in good faith, the law required the verdict of the jury to be for the value of the timber as cut, and not as manufactured. Gentry v. U. S., 41 C. C. A. 185, 101 Fed. 51. In the charge which was given by the court, the jury was instructed that in fact the defendant had not complied with the rules and regulations of the secretary of the interior concerning the cutting of timber upon government lands. From the amount of the verdict, which was $35, it is evident that the jury found that the timber was cut in good faith.
We find no error for which the judgment should be reversed. It is accordingly affirmed.
(113 Fed. 905.)
RABE v. CONSOLIDATED ICE CO.
No. 32. 1. MASTER AND SERVANT-GUARDING MACHINERY-FACTORY-WIAT Consti
TUTES-COMMERCIAL ICE HOUSE.
A commercial ice house, which is extensively equipped with machinery, and in which numerous operators are employed, is a "factory," within Laws N. Y. 1897, c. 415, providing that “shafting, set screws and machinery of every description shall be properly guarded" by the owners of factories where machinery is used, and declaring that the term "fac. tory" shall be construed to include also a “mill, workshop or otber manufacturing or business establishment where one or more persons are em
ployed at labor." 2. SAME - HARMLESS ERROR.
Error in charging that the factory statute had no application to a commercial ice house was harmless, where the court further charged that it was a rule of common law, irrespective of statute, that machinery must be safe, and that in the case of a set screw (the instrument by which plaintiff was injured) it might be dangerous or safe according to its situation, and according to the parties called on to work on the machine, and therefore left to the jury to determine as a question of fact whether the screw was dangerous or safe, the state courts having construed the statute as not imposing duties on an emplorer greater than those imposed by the common law, etc.
In Error to the Circuit Court of the United States for the District of New York.
John S. Wolfe, for plaintiff in error.
WALLACE, Circuit Judge. The plaintiff in error was the plaintiff in the court below, and brought this action to recover damages for personal injuries alleged to have been received by the negligence of the defendant. He was an employé of the defendant, assigned to attend certain friction apparatus in the elevator room connected with the defendant's ice house. In the same room, but at some little distance from his post of duty, there was a revolving shaft having a collar and a projecting set screw. The plaintiff had no duties with respect to this part of the apparatus, or which would take him to the place at which the collar and set screw were.
Nor did any of the employés have any occasion to go there except to oil or repair the apparatus when the shaft was not in motion. While the plaintiff was attending to his ordinary duties, he observed a rope winding upon the shaft near the set screw, which had been thrown there by the inadvertence or carelessness of some of the employés, and as the rope endangered the apparatus the plaintiff immediately went to it, and attempted to remove it. In the attempt he was badly hurt, the set screw being the cause, or a contributory cause, of the accident.
By statute (Laws N. Y. 1897, c. 415) it is provided, among other things, that “shaiting, set screws and machinery of every description shall be properly guarded” by the owners of factories where machinery is used. The statute declares that the term "factory shall be construed to include also “mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor."
It is insisted for the plaintiff in error that upon the trial of the action the court below erred in instructing the jury that the factory statute had no application to the case, and the only assignment of error is based upon the exception taken to that part of the judge's charge. The material part of the judge's charge was as follows:
"The controversy upon the part of the plaintiff is based upon the negligence of the defendant in failing to guard the set screw at the free end of this revolving shaft, and in that connection the law of the state of New York of 1897 has been called to your attention, which I think has been correctly stated as providing that all set screws in manufactories where operatives are employed shall be guarded. Of course, you appreciate just what this set screw is. In this case it was placed there to fasten a collar so that it would not revolve,-so that it would stay upon the larger motive power shaft,-which, according to the testimony, was revolving at the rate of from 42 to 125 revolutions a minute. The head of the screw protrudes above the collar, and when rapidly revolving it may not be seen by the operative. It is in such a situation that it would be apt to catch upon any'thing that was thrown in its way. This law provides that such set screws shall be guarded, but I think I will charge you, as a matter of law, that the law of the state of New York in this regard has no application whatever to this controversy for many reasons which it is unnecessary for me to detain you with. As I have said before, it is a rule of common law, irrespective of any statute of the state, that machinery must be safe. In the case of a set screw, it may be dangerous or safe according to the locality in which it is. placed, and according to the parties who are called upon to work upon the machine; and that, I think, is a question which, under all the circumstances of the case, should be submitted to you to determine. Of course, if this set screw was guarded, as some set screws are guarded, by a hood placed over it, and kept in position by a sunken screw, it could not have caught upon the rope, or the rope could not have caught upon it, and it is the contention of the plaintiff that it was the failure to provide a proper guard for the set screw that caused the accident. On the other hand, the defendant insists that this screw was guarded properly, even within the rule of the statute of the state; guarded by reason of its position; guarded because it was in a place where the plaintiff had no right or occasion to go when occupying his position by the lever, and where no one went except to oil the machinery at this particular point. There was an opening through which the elevator passed (4x6 feet), and the opening was filled with machinery to a certain extent. Upon the extreme southern end of the shed was this small platform or space 18 to 20 inches wide between the opening and the end wall. It was there that the free end of the shaft revolved, and it is said that being in that position, no one having any occasion to go there, that it was in fact guarded, and as safe as if the set screw had been on the outside of the extreme southern wall of the building. This is a question which, think, under the evidence in the case, is for you to determine."
We think that a commercial ice house, which is extensively equipped with machinery, and in which numerous operatives are employed, is a factory, within the meaning of the statute. The purpose of the statute is to throw a safeguard around the workmen employed in business establishments where machinery is in use which may endanger those who are likely to be brought into contact with it, and to whom its presence, if it is not protected, is a constant menace. So far as is consistent with the language of the statute, that purpose should be given effect. The language is sufficiently comprehensive to include a commercial ice house. By the statutory definition, a factory includes, not only a manufacturing establishment, but a business establishment where one or more persons are employed at labor, and the particular enumeration preceding the term, or other manufacturing or business establishments," is too meager to restrict the meaning of the term by the application of the rule ejusdem generis. We think, however, that no error prejudicial to the plaintiff was committed by the trial judge in his instructions. In Freeman v. Mills Co., 70 Hun, 530, 24 N. Y. Supp. 403, affirmed