SEYMOUR D. THOMPSON, ST. LOUIS, FRIDAY, MARCH 12, 1875. :{ } In the case of Lownsberry v. Rakestraw, which we elsewhere publish, our readers will find an interesting and important decision of the Supreme Court of Kansas, on questions growing out of titles to lands derived through Indian patentees. In the Western states and territories many questions are daily arising out of the conflicts between settlers and the Indians, under the various treaties whereby the usufructuary Indian titles have been extinguished. The right to enquire into the sufficiency of the grounds upon which patents have been awarded by the "chiefs and headmen," and other tribunals provided for the decision of questions arising under these treaties, has been very generally asserted by the district courts of Kansas. The supreme court in this case, however, denies such right, and places these tribunals on the same footing as other courts and officers vested with a discretion. POLITICAL ARTICLES.-One of our city subscribers writes us a courteous letter objecting to the tone of an article in our issue of February 26, on the Arkansas case. We are inclined to think, on reading the article again, and considering how the language would strike the reader, that his objection is well taken. The difficulty of writing articles of this kind, is, that it is almost impossible to eliminate, in the discussion of questions which relate to current constitutional history, matters of constitutional law from party politics. Considering this difficulty, and the manifest needs of our readers, we shall endeavor to avoid such discussions hereafter in the columns of the JOURNAL, and shall labor to keep it more closely in the groove of practical usefulness. Hon. JOHN F. DILLON, In Hiner v. The Sea Gull, 2 Law Times R. 15, heard before the late Chief Justice Chase, in the Maryland circuit, the husband sued in admiralty for the death of his wife, and the right of action was sustained. And see, also, Price v. Highland Light, decided in the same court, 2 Law Times R. 118, and Plumer v. Webb, Ware, 80. It is observable that in none of the judgments which rest upon the supposed common law doctrine, is there any attempt to support the doctrine upon grounds of reason or justice or policy. It is a settled principle of the English law, that if a servant or minor child is injured by the negligence of the defendant, so as to be disabled from rendering service, an action, by the master or father, lies for the loss thereby occasioned. Hodsall v. Stalebrass, 11 Ad. & El. 301. It is also settled in such a case, that if the servant or child injured, should, after the lapse of a year, or other stated period, die, the master or father would have his action, notwithstanding the death; but it is said, on the authority of Baker v. Bolton, 1 Campb. 493, that the damages can only be considered down to the moment of dissolution. This conclusion is, obviously, illogical, and it is unsound on legal principles. From what does the cause of action arise? Clearly from the negligent act of the defendant, which produces the injury, and not from the death of the person, subsequently resulting from the negligence. If the negligence of the defendant permanently maims the servant or child, but does not kill it, entire damages may be prospectively assessed. All damages growing out of the wrongful act, though in point of time they will not occur until after the judgment, may be taken into conIn the Southern Law Review, articles on questions of polit-sideration. As to this, the cases agree, and Hodsall v. Staleical science and constitutional policy, written by eminent bras, supra, is precisely in point. jurists, will occasionally appear. Thus, we are now putting This being so, why does the supervention of death, a month in type, for that periodical, the fourth and last of a very or a year after the negligent act of the defendant, which negvaluable series of articles on Modern Theories of Govern-ligent act is the ground of the action, necessarily limit the ment, by Chancellor Cooper, of Tennessee; and also an estimate of damages to those that have then happened to the able paper by an eminent constitutional jurist, on the "Legal master, father or husband? Aspects of the Louisiana Case." Right of Action for Injuries Resulting in Death. The opinion in Sullivan v. Union Pacific Railroad Co., (1 Cent. Law Jour. 595), has called out considerable comment. Most of the criticism has been favorable, and the main objection which has been urged against it is that it disregards a settled rule of the common law. West. Jurist for January, 1875 If the question is not concluded by previous adjudications, it is admitted on all hands that the view taken in the opinion in Sullivan's case, is, on principle and reason, correct. Let us see how the question stands. The civil law, and the French and Scotch law founded upon it, give the right to such an action, notwithstanding the death. So in the courts of admiralty, which are not bound by the common law adjudications, whatever they may be on the point under consideration, and are free to decide according to natural justice, concur in holding that actions like the present are maintainable. Cutting v. Seabury, 1 Sprague, 522. Lord Ellenborough answered this question in Baker v. Bolton. He told the jury that the plaintiff, a husband, could only recover damages for the loss of his wife's services during "the period of her existence," and gave as a reason that "in a civil court the death of a human being cannot be complained of as an injury." But the action was not for the death, but for the negligence, and the damages in such an action are not for the death, but for the loss of service which the defendant's negligence caused, and it is quite immaterial whether the culpable negligent act deprived the plaintiff of the loss of service by wholly disabling the servant injured, from lobor, or by depriving the servant of his life, and therefore of his power to serve. It is evident, therefore, that the asserted principle, that the death of a human being cannot, at the common law, be the basis of a civil suit, has no application to an action by the master, father or husband, for being wrongfully deprived of the loss of the service of his apprentice, minor child or wife. It is admitted, that if the negligent act is not so great as to take life, the defendant is liable to the master or father for the loss of service thereby occasioned, but it is contended in question was admitted " into our columns. 3. That it that if the wrongful act is so great as to take life at once, was "scurrilous." 4. That it evidently was not written by then the master or father has no right and no remedy what- "a clear-headed lawyer." 5. That it was not written by ever against the wrong-doer. Certainly, those who contend one prompted by any pure interest in the upholding of legal that there is any such anomalous and unreasonable exception principles and the aims of justice. 6. That it was prompted to the general principles of the law, ought to make out a clear by one who is personally interested in defeating the bill now case showing it. The cases, English and American, all rest before the legislature, and who desires to influence the legisupon the nisi prius decision of Lord Ellenborough on Baker v. ture by representing it as a lawyer's trick, designed to subBolton, the facts of which are confessed to be "loosely stated" serve the purposes of the defendants in certain suits now pend(L. R. 8 Exch. 100, per Kelly, C. B.), and in which his lord-ing in the courts of Saint Louis. 7. That the CENTRAL LAW ship gives no reasons and cites no authorities for the propo- JOURNAL has been guilty of "trickery." sition he advances—a proposition, which, as shown above, had no application to the case on trial. No prior case to that effect can be found in the English books, unless Higgins v. Butcher, Yelv. 89, be so regarded, and if so, it proceeded upon the now exploded doctrine that the felony drowned the private action. White v. Spettigue, 13 M. & W. 603; Wells v. Abrahams, Law Rep. 2 C. P. 615; Osborn v. Gillett, Law Rep. 8 Exch. 88. So that it remains true that the English law reports contain no prior case supporting the doctrine of Baker v. Bolton. It is also true that no prior case can be found in the English books laying down a contrary doctrine. Is the conclusion a just one, because no previous cases can be found, that Lord Ellenborough must be assumed to have declared a correct and well-known principle of the common law? If any such principle of law was well known and established, the law reports or treatises of eminent lawyers would contain evidence of it. But there is no case declaring the broad principle asserted by Lord Ellenborough, nor is it asserted in the elementary works. On the contrary, Mr. Smith, in his ex-without consulting any one upon the subject, or without even cellent works assumes the contrary. Master and Servant, 3 ed. 139 The American cases generally follow Baker v. Bolton. But there are decisions the other way. Shields v. Yonge, 15 Ga. 349; James v. Christy, 18 Mo. 162; Ford v. Monroe, 20 Wend. 210; Plummer v. Webb, Ware 80. It is, however, conceded that the current of American decisions is otherwise, but they all rest upon the authority of Baker v. Bolton, or the principle which is there declared. By those who conceive it to be the duty of a court to decide according to the greater number of adjudicated cases, the conclusion in Sullivan's case will be regarded as erroneous. But those who consider the law to be a science founded upon reason, by those who, while they reverence precedents, will not | slavishly follow them, it may, perhaps be concluded that the court was right in refusing to carry into a new region an anomalous and indefensible principle of law, resting on so slight and questionable a foundation as Baker v. Bolton, with- | out any prior, authentic evidence or memorial of its exist ence. Spanish Land Titles Again. We have evidently struck some one in the pocket. In the St Louis Globe, for the 3d instant, appears an editorial article calling attention to the article which appeared in a former number of this journal, under the head of "Spanish Land Titles" (ante, p. 134), and making several assertions concerning it, which we separate from each other and number as follows: 1. That the CENTRAL LAW JOURNAL is one of the best of its kind published in the country. 2. That the article We will proceed to answer the allegations of this bill of complaint in detail: 1. We admit that the CENTRAL LAW JOURNAL is one of the best journals of its kind published in the country. 2. We deny that the article in question was " admitted" into our columns; but on the contrary, we assert that it was written by the editor of this journal. 3. We deny that it was "scurrilous." 4. We have not any knowledge or information sufficient to enable us to form a belief as to whether or not the article in question was written by "a clearheaded lawyer," and we leave the plaintiff to make such proof under this head as may be material. 5. We deny that the article in question was not written by one prompted by any pure motive in upholding legal principles and the aims of justice; but, on the contrary, we assert that his sole motive in writing it was to uphold legal principles and the aims of justice. 5. We deny that the article in question was "prompted" by any one, or that the writer of it is personally interested in the matter to which it relates; but we assert that it was written knowing the name of the honorable gentleman who introduced the bill; and that it was written under a strong and honest conviction that the purpose of the draftsman of the bill was to manufacture evidence to enable him to succeed in certain suits now pending. 7. We deny, and despise the assertion, that in writing that article we were guilty of "trickery.” Having thus answered in detail the allegations of the complainant's bill, we now propose to set up certain facts by way of new matter: 1. We charge that the Globe editorial was not written by the editor of that journal, but that it was written by a prominent lawyer of Saint Louis. 2. That the said lawyer is of counsel for the defendants in certain suits pending in the courts of Saint Louis, known as Hammond's heirs against Lindell's heirs, Conway's heirs against Lindell's heirs, and the Board of Public Schools against Lindell's heirs, involving the title to a tract of land of great value near the corporate limits of Saint Louis. 3. That the said lawyer or some of his associates, is the author of the bill in question. 4. While we accord the most upright intentions to the member of the legislature who introduced the bill, who, we are assured, is incapable of anything which savors of trickery or fraud, and who has, in the columns of the Saint Louis Republican of February 20th, put forward the only substantial arguments in its favor which we have seen, yet we fully believe, on evidence intrinsic and extrinsic, that the object of the counsel who drew the bill, was to change the rules of evidence in the interest of the defendants in the above named suits against Lindell's heirs. First let us examine the intrinsic evidence: (1.) The testimony is to be admitted only " in suits pending." The suits against Lindell's heirs are "pending." (2.) Such evidence cannot be used in evidence in a proceeding between different is to be admitted only on the part or in behalf of defendants. | parties, or even between B. and C. Lindell's heirs are defendants. (3.) In order to be entitled to avail themselves of this testimony, such defendants must have had ten years possession-not ten years adverse possession. Lindell's heirs, at the time of the bringing of these suits against them had had more than ten years naked possession, but less than ten years adverse possession. It may be said that if they had had ten years adverse possession, they would not have needed this evidence, since their title would have been thereby perfected under the statute of limitations; yet it is nevertheless seen, that the bill in this particular, fits their case. Nor is it true, as stated in the Globe editorial, that the provision in the acts of Congress, under which the testimony named in this bill was taken, was "intended to be a method for perpetuating the evidences of the possessions of the various claimants under the Spanish and French governments prior to 1803, so as to vest the title under the treaty." These acts nowhere speak of perpetuating testimony. The object of taking this testimony was simply to furnish evidence to the proper department of the government on which it might proceed in confirming the titles of these ancient possessors. As fast as the titles of the respective claimants were confirmed, the testimony adduced by them accomplished its obtempt now, after the lapse of half a century, to revive it by legislative enactment for other and different purposes, and to conclude the rights of those whose ancestors, devisors and grantors were not parties to the proceeding, were not notified to attend, had no opportunity to cross examine the witnesses, or to adduce counter-testimony, would be a wanton and uncalled-for infraction of one of the soundest principles upon which justice is administered. Secondly, the extrinsic evidence which induces us to believe that the bill in question was framed by the gentleman indi-ject, spent its force and became functus officio; and the atcated, and for the purpose indicated, is that this has been distinctly charged in the Saint Louis Republican of the 6th instant, and, up to the time of our going to press, has not, so far as we have heard, been publicly denied. So much by way of answer. Now, by way of explanation, we will say that we do not charge corrupt motives upon the counsel whom we suppose to be the author of this bill. We fully recognize the fact that a lawyer-particularly a good and faithful lawyer, may become so wrought up with zeal for his client's interests, that measures which, to disinterested persons would seem the very essence of injustice, might seem to him perfectly just and proper; and such may be the case before us. Since the above was written, we have seen an editorial in the Globe, of the 8th instant, which states that this bill has been approved by the bar association. This is a mistake. It has never been discussed by the bar association, nor has it been approved by the committee of that association, on the amendment of laws. We have conversed with several members of the bar with reference to it, and have yet to meet one who is in favor of it. Taxation in Aid of Private Enterprises. [Concluded from last week, page 159.] II. THE COMMERCIAL NATIONAL BANK OF CLEVE- In error to the Circuit Court of the United States for the District of Kansas. Mr. Justice MILLER delivered the opinion of the court. This question is a local one, and not of interest to many of our readers. It would not be proper, therefore, for us to consume much space in its discussion, even though our information enabled us to enter into its details intelligently. But it frequently happens that courts of equity refuse to hear evidence and dismiss suits "for want of equity on the face of the bill." On a similar principle it seems to us that the bill to quiet titles to land" contains on its face vices which should condemn it in the mind of every right thinking man. It raises to the grade of evidence a class of testimony which Supreme Court of the United States, No. 741.—October Term, 1874. the Supreme Court of Missouri and the Supreme Court of the United States have deliberately repudiated. It lets in this evidence at the instance of naked ten years' possessors of even part of the land in controversy, and denies the same right in other cases to the most meritorious of heirs suing for their patrimony. This is foul play. In all candor and fairness, if these old affidavits are capable of being used in the elucidation of the truth, why not allow any party to introduce them, and let them speak for what they are worth, according to the rules of evidence? Again, a bill which seeks to change the rules of evidence so as to give the advantage to one of the parties in a pending suit, is special legislation in its most pernicious form, although it may assume the This is all that is necessary to be said, and it shows that the case specious garb of a general law. Furthermore, this bill raises comes within the principle of the one just decided, and that the to the dignity of evidence affidavits which were taken in pro-judgment of the circuit court holding the bonds void must be ceedings between the United States and certain claiments, and permits them to be used against claimants who were not parties to the proceeding in which they were taken, either by themselves or those through whom they claim. It thus violates that familiar and necessary rule of evidence that depositions taken in a suit or proceeding between A. and B., The only difference between this case and that of the Citizens' Bank v. Topeka, just decided, is that the bonds were issued before the general act of February 29, 1872, there being at that time no statute of Kansas which professed to authorize the proceeding. But after the vote in favor of issuing the bonds, an act of the legislature ratified the vote and authorized the city officers to decipal and interest. They were issued to a private corporation to aid in constructing and operating foundry and machine shops. liver the bonds and to levy the taxes necessary to pay their prin affirmed. THE CITIZENS' SAVINGS AND LOAN ASSOCIATION OF Mr. Justice CLIFFORD dissenting. Unable to concur either in the opinions or judgments in these cases, I will proceed to state, in brief terms, the reasons which compel me to withhold my concurrence. Corporations, of a municipal character, are created by the legislature, and the legislature, as the trustee or guardian of the public interest, has the exclusive and unrestrained control over such a franchise, and may enlarge, diminish, alter, change, or abolish the same at pleasure. Where the grantees of a franchise, as well as the grantors, are public bodies, and the franchise is created solely for municipal objects, the grant is at all times within the control of the legislature, and consequently the charter is subject to amendment or repeal at the will of the granting power. Hartford v. Bridge Co., 10 How. 534; 2 Kent Com. (12th ed.), 275; Bissell v. Jeffersonville, 24 How. 294; Darlington v. Mayor, 31 N. Y. 187; Granby v. Thurston, 23 Conn. 416. Errors of indiscretion which the legislature may commit in the exercise of the power it possesses, cannot be corrected by the courts, for the reason that the courts cannot adjudge an act of the legislature void unless it is in violation of the federal or state constitution. Benson v. Mayor, 24 Barb. 248; Clark v. Rochester, 24 Id. 446; Bank v. Rome, 18 N. Y. 38. hibit the passage of such a law as that under which the bonds were issued. (4) Because it is not competent for a federal court to adjudge a state statute void which does not conflict in any respect with the constitution of the United States or that of the state whose legislature enacted the statute. Unwise laws, and such as are highly inexpedient and unjust, are frequently passed by legislative bodies, but there is no power vested in a circuit court, nor in this court, to determine that any law passed by a state legislature is void if it is not repugnant to their own constitution nor the constitution of the United States. Vague apprehensions seem to be entertained that unless such a power is claimed and exercised inequitable consequences may result from unnecessary taxation; but in my judgment there is much more to be dreaded from judicial decisions which may have the effect to sanction the fraudulent repudiation of honest debts, than from any statutes passed by the state to enable municipal corporations to meet and discharge their just pecuniary obligations. NOTE. The opinion of the circuit court will be found reported in 2 Dillon C. C. R. 353. Titles Derived from Indian Patentees. D. M. VALENTINE, [Syllabus by the Court, BREWER, J.] 1. Conclusiveness of Judgments.-Where the determination of any question involving discretion is committed to any officer or tribunal, his or their decision within the limits of jurisdiction conferred is conclusive thereof, and can be attacked collaterally only for fraud. State constitutions may undoubtedly restrict the power of the legislature to pass laws, and it is plain that any law passed in violation of such a prohibition is void, but the better opinion is, that where the constitution of the state contains no prohibition upon the subject, express or implied, neither the state nor federal courts can declare a statute of the state void as unwise, unjust or inexpedient, nor for any other cause, unless it be repugnant to the federal constitution. Except where the constitution has imposed limits upon the legislative power, the rule of law appears to be that the power of legislation must be considered as practically absolute, whether the law operates according to natural justice or not in any particular case, for the reason that courts are not the guardians of the rights of the people of the state, save where those rights are secured by some constitutional provision which comes within judicial cognizance; or, in the language of Marshall, chief justice, "the interest, wisdom and justice of the representative body furnish the only security in a large class of cases not regulated by any constitutional provision." Bank v. Billings, 4 Pet. 563; Cooley on Const. (2d ed.), 168; Calder v. Bull, 3 Dall. 398. Courts cannot nullify an act of the state legislature on the vague ground that they think it opposed to a general latent spirit sup-tary of Interior. Where it was also provided by treaty that such designated halfposed to pervade or underlie the constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Walker v. Cincinnati, 21 Ohio St. 41. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism. Golden v. Prince, 3 Wash. C. C. 313. Subject to the federal constitution the legislature of the state possesses the whole legislative power of the people, except so far as the power is limited by the state constitution. Bank v. Brown, 26 N. Y. 467; People v. Draper, 15 N. Y. 532. Our own decisions are to the same effect, as appears by one of very recent date, in which the court says that "the legislative power of a state extends to everything within the sphere of such power, except as it is restricted by the federal constitution or that of the state." Pine Grove v. Talcott, 19 Wall. 676. Apply those principles to the case before the court, and it follows, as it seems to me, that the judgment in each case should be reversed for the following reasons: (1) Because the demurrer to the declaration in each case should have been overruled. (2) Because the bonds, to which the coupons sued on were attached, were issued in pursuance of the express authority of the legislature vesting that power in the corporation defendants. (3) Because the constitution of the state does not, in any manner, pro 2.-. * * * * Designation of Patentees by Chiefs and Head-men of Indian Tribe. So where it was provided by treaty that the Osage "half-breeds," "not to exceed twenty-five in number, who have improvements on the north half of the lands sold to the United States, shall have a patent, ** said half-breeds to be designated by the chiefs and head-men of the tribe;" held, that the designation by such chiefs and head-men, was conclusive as to the right of the party designated to receive a patent, and that in a suit brought by the grantee of such patentee to recover possession of the land, no enquiry could be made into the question whether such patentee was a half-breed of the Osage tribe, or whether he had any improvements on the north half of the lands sold to the United States. 3. Effect of Selection by Designated Half-Breed, and Approval by Secre breeds should receive patents for eighty acres each, "to include as far as practicable their improvements, * * all of said lands to be selected by the parties subject to the approval of the secretary of the interior;" held, that a selection of an eighty acre tract by one of the designated half-breeds, and the approval of that selection by the secretary of the interior, gave to such half-breed a vested interest in the land, and was conclusive as against all persons claiming title acquired subsequently to the selection, and that the holder of such subsequently acquired title could not show as a defence to an action brought by the grantee of such half-breed, that such half-breed never had any improvements on the land. 4. Effect of Mistake in Making Selection.-Where the land selected was incorrectly reported to the secretary of the interior, the mistake could be corrected, even though the patent had already issued, and the correct selection submitted to his approval; but where the party making the selection is aware of the mistake, makes no objection thereto or effort to have it corrected, and assents to its submission to the secretary for approval; held, that such action was virtually a selection of the tract reported to the secretary. All the justices concurring. C. F. Hutchings, for plaintiff in error; Stilwell & Baylies, for defendant in error. Opinion of the court by BREWER, J. The material facts are as follows: On the 29th of September, 1865, the Osage Indians made a treaty with the United States, which was ratified and proclaimed January 21, 1865 (14 U. S. Stat. 687), by which they conveyed certain lands to the government, "to be surveyed and sold under the direction of the secretary of the interior, on the most advantageous terms for cash, * * * but no pre-emption or homestead settlement shall be recognized; and the jury find from the evidence, that the chiefs and head-men of after reimbursing the United States, the cost of said survey and the tribe, before the 10th day of April, 1869, designated William sale, * * * the remaining proceeds of sales shall be placed Tinker as one of the half breeds of the Osage tribe of Indians who in the treasury of the United States to the credit of the civilization should have a patent for 80 acres of land, under the provision of fund," etc. See first article of the treaty. By the 14th article it is the 14th article of the treaty of September 29, 1865, and that the provided, "that the half breeds of the Osage tribe of Indians, not said Tinker selected the land in controversy before the 10th of to exceed twenty-five in number, who have improvements on the April, 1869, and his selection was afterwards approved by the secnorth half of the lands sold to the United States, shall have a pat-retary of the interior, then the said Tinker had, on the 10th of ent issued to them, in fee simple, for eighty acres each, to include, | April, 1869, a vested right in the land in controversy, and the deas far as practicable, their improvements; said half breeds to be fendant could obtain no title to the same, as against Tinker or his designated by the chiefs and head-men of the tribes, grantees by purchase, under the joint resolution of Congress, ap # * * and all of said lands to be selected by the parties, subject to the ap- proved April 10, 1869." The same rulings appear elsewhere in inproval of the secretary of the interior." structions given and refused. In their brief, counsel for Rakestraw say: "The fact that said Tinker was designated as one of the twenty-five of the Osage tribe of Indians entitled to patents, is not questioned by defendant in error, as the case now stands, but the two vital points we rely on in opposition to his right to rightfully receive a patent for the land in controversy, are: never had any improvements on said land; and, 2. That he never selected said land as his head-right." On the 10th of April, 1869, Congress passed the following joint resolution: "Resolved, by the senate and house of representatives of the United States of America, in Congress assembled, That any bona fide settler, residing on any portion of the lands sold to the United States by virtue of the first and second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indians, September 29th, 1865, and proclaimed January 21st, 1867, who is a citizen of the United States, or shall have declared his intention to become a citizen of the United States, shall be, and hereby is, entitled to purchase the same in quantity | not exceeding one hundred and sixty acres, at the price of one dollar and twenty-five cents per acre, within two years after the passage of this act, under such rules and regulations as may be prescribed by the secretary of the interior. "Provided, however, That both the odd and even numbered sections of said lands shall be subject to settlement and sale as above provided. And provided further, That the sixteenth and thirty-sixth sections in each township of said lands shall be reserved for state school purposes, in accordance with the provision of the act of admission of the state of Kansas. Provided, however, That nothing in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties." In September, 1867, the twenty-five half breeds were "designated by the chiefs and head-men," and the lands selected by the parties, as provided in said 14th article. William Tinker was designated as one of these half breeds, made his selection, and thereafter a patent, for the land in controversy, was issued to him, of date June 10, 1870, which recites that it was issued under this 14th article, and shows the approval, on the 15th of June, 1869, by the secretary of the interior. On September 30, 1870, Tinker and wife deeded to Lownsberry, and this was his claim of title. In January, 1866, Rakestraw moved upon the land, made improvements upon it, and afterwards, having all the personal qualifications requisite, obtained a duplicate receipt for it, under the joint resolution of 1869, though this receipt was thereafter cancelled by the officers of the land office, as issued by mistake. It appears prob. able, from the testimony, that prior to Rakestraw's occupation, and prior to the treaty, there had been some improvements on the land, though whether owned by Tinker or not, is doubtful, but that all had been removed or destroyed prior to those dates. It was claimed that the land selected by Tinker was not the land embraced in the patent, and that, through some mistake or design, a change had been made intermediate to the selection and the patent. Upon these facts the court charged the jury as follows: "Should you, therefore, find, from the evidence, that on the 29th day of September, 1865 (that being the date of said treaty), the said William Tinker had no improvements, as hereinbefore defined, on the land in controversy, and that long prior to the issuing of said patent to Wm. Tinker for the land in controversy, the defendant, Rakestraw, had a lawful and bona fide settlement upon said land, as defendant has, in his answer, averred, the issuing of the patent to Tinker, in itself would not operate to divest defendant of any right he may have acquired before the issuing of said patent by virtue of settlement and improvements." It also refused this instruction: "If 1. That he In these rulings, we think the learned court erred. Prior to April 10, 1869, Rakestraw's possession and occupancy gave him no rights in the land. He was simply a naked trespasser, whose possession, no matter how long continued, could never ripen into a title. Wood v. The M. K. & T. R. W. Co., 11 Kansas, 323. It is, therefore, so far as respects the occupancy by other parties, of any title from the United States, under the provisions of the treaty, as though the land were wholly unoccupied and vacant. it is true that only such half-breed Osages as had improvements on the north half of the lands were to be entitled to patents, yet the treaty provided a tribunal for determining who should thus receive patents, and the determination of that tribunal is conclusive. Testimony is no more admissible to show that William Tinker was not an Osage half breed, or that he had no improvements While on the north half of the lands, than it would be after the final determination of this case to show that the facts upon which the judgment was based did not exist. United States v. Arredondo, 6 Peters, 729. Counsel in their brief do not seem to contest this proposition, or, at least, do not rest their case upon any denial of it. Nor did the court instruct the jury in direct opposition thereto, though it refused an instruction asserting it, and did charge the jury that Tinker must have possessed the qualifications named, to be entitled to a patent. Such ruling would be very apt to convey a wrong impression to the jury. The treaty not only provided for designating the individuals, but for the selection of their lands, giving to the individuals named, the privilege of making this selection, subject only.to the approval of the secretary of the interior; and while it contemplated that such relations should include their improvements, yet it did not make this absolutely inoperative. It says, "as far as practicable." It thus contemplated the possibility of selections outside of the improvements. Perhaps the selection of one half-breed would cover the improvements of another as well as his own. Perhaps other selections authorized by the treaty might conflict. Perhaps there might be conflicting titles to the same improvements. Whatever may have been the the reason, the fact is apparent that the treaty contemplated the possibility that some selections might not cover the parties'improvements; hence the mere fact that selections did not include the party's improvements would not necessarily defeat the selection. Again, it provided for a selection, subject to the approval of the secretary of the interior. Such approval was conclusive as against any rights which did not exist at the time of the selection. The approval related back to the selection and confirmed it. The title thus acquired was good as against any one who did not then have a better claim. The only parties who at the time had any interest or rights in the land, were the Osage Indians, the government and Tinker. No one else could question the validity of the selection. So that whether Tinker had any improvements on the land |