235]

236]

"Where a party entitled to claim the benefits of the preemption laws dies before consummating his claim, by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to file the necessary papers to complete the same; but the entry in such cases shall be made in favor of the heirs of the deceased preemptor, and a patent thereon shall cause the title to inure to such heirs, as if their names had been specially mentioned."

lands of the United States a right of preemption | pied. Speaking of the settlement in that case,
to them under the laws of the United States; the court, by Mr. Justice Miller, said: "So far
and, 2d, that the plaintiffs, as heirs at law of as anything done by him is to be considered,
the deceased, were equally entitled, with his his claim rests solely upon his going upon the
widow, under section 2269 of the Revised Stat- land and building and residing on it. There
utes, to the benefit of the patent obtained by is nothing in the essential nature of these acts
her. That section is as follows:
to confer a vested right, or, indeed, any kind
the preemption laws to make out any shadow
of claim to land, and it is necessary to resort to
of such right." The same doctrine was affirmed
in The Yosemite Valley Case, 82 U. S. 15 Wall.
77 [21: 82], the court observing that until all
the preliminary steps to the acquisition of the
title of the United States prescribed by law
have been complied with, the settler has not
acquired any title against the United States.
Among these are the entry of the land at the
appropriate land office and the payment of its
price. "Until such payment and entry," the
court added, "the Acts of Congress give to the
settler only a privilege of preemption in case
the lands are offered for sale in the usual man-
ner; that is, the privilege to purchase them in
that event, in preference to others. The Unit-
ed States by those Acts enter into no contract
with the settler, and incur no obligation to any
one that the land occupied by him shall ever be
put up for sale. They simply declare that in
case any of their lands are thrown open for sale
the privilege to purchase them in limited quan-
tities, at fixed prices, shall be first given to par-
ties who have settled upon and improved them."
Nothing was done in this case by the deceased
occupant beyond his occupancy, and therefore
nothing to initiate a title in him; not even the
privilege of purchasing the land was acquired
by him. His death occurred two years before
the surveys were made and returned.

Neither of these grounds is well taken. No portion of the public domain, unless it be in special cases not affecting the general rule, is open to sale until it has been surveyed and an approved plat of the township embracing the land has been returned to the local land office. A settlement upon the public lands in advance of the public surveys is allowed to parties who in good faith intend, when the surveys are made and returned to the local land office, to apply for their purchase. If, within a specified time after the surveys, and the return of the township plat, the settler takes certain steps, that is, files a declaratory statement, such as is required when the surveys have preceded settlement, and performs certain other acts prescribed by law, he acquires for the first time a right of preemption to the land, that is, a right to purchase it in preference to others. Until then he has no estate in the land which he can devise by will, or which, in case of his death, will pass to his heirs at law. He has been permitted by the government to occupy a certain portion of the public lands and therefore is not a trespasser, on his statement that when the property is open to sale he intends to take the steps prescribed by law to purchase it; in which case he is to have the preference over others in purchasing, that is, the right to preempt it. The United States make no promise to sell him the land, nor do they enter into any contract with him upon the subject. They simply say to him-if you wish to settle upon a portion of the public lands, and purchase the title, you can occupy any unsurveyed lands which are vacant and have not been reserved from sale; and when the public surveys are made and returned, the land not having been in the mean time withdrawn from sale, you can acquire, by pursuing certain steps, the right to purchase them. If those steps are, from any cause, not taken, the proffer of the government has not been accepted, and a title in the occupant is not even initiated. The title to the land remains unaffected, and subject to the control and disposition of the government, as before his Occupancy. This doctrine has been long established in this court. Thus in Frisbie v. Whitney, 76 U. S. 9 Wall. 187, 193 [19: 668, 670], where the subject was fully considered, it was held that occupation and improvement on the public lands, with a view to preemption, did not confer a vested right in the land so occu

Section 2269 of the Revised Statutes, upon which the plaintiffs rely, has no application to the case presented by them. That section was taken from section two of the Act of March 3d, 1843 (5 Stat. at L. 620), "to authorize the investigation of alleged frauds under the preemption laws, and for other purposes.' At that time no settlement on unsurveyed lands was permitted by the laws of the United States and the second section was intended to secure to the heirs of the deceased preemptor a claim to the benefit of the preemption laws, which he had initiated, but not completed before his death, "by filing in due time all the papers essential to the establishment of the same." His executor or administrator, or one of his heirs, was in that event allowed to file such papers. No claim of the deceased in this case was lost by any failure to file the necessary papers. The time for any papers to be filed did not arrive during his life.

The contention of the plaintiffs in error is, that the section, upon a correct construction, extends to heirs of a deceased occupant of unsurveyed public land of the United States, who during his life did nothing beyond its occupation and improvement, the same rights which are conferred upon heirs of a person entitled at the time of his death to the benefits of the preemption laws. It is upon the supposed denial of such rights to the plaintiffs by the court below that the jurisdiction of this court is invoked; it is upon that denial alone that the jurisdiction can be maintained. What we have said as to the legal effect of the de

[237]

The validity of an authority exercised under the United States is not questioned.

ceased's occupation and improvement shows | (9:989); Baltimore & P. R. Co. v. Trook. 100 U.
that no title was initiated or right of preemp- S. 112 (25:571).
tion created by them; and of course nothing
was left by the deceased to be completed by
his heirs, and hence there was no denial of any
rights to them under the statute, as claimed.
Judgment affirmed.

Millingar v. Hartupee, 73 U. S. 6 Wall. 258 (18:829); Re Craft, 124 U. S. 370 (31:449); Tarver v. Keach, 82 U. S. 15 Wall. 68 (21:82); Delmas v. Merchants Mut. Ins. Co. 81 U. S. 14 Wall. 661 (20:757); Bank of the Old Dominion v. Mc Veigh, 98 U. S. 332 (25:110): New York L.

[227] DISTRICT OF COLUMBIA, Piff. in Err., Ins. Co. v. Hendren, 92 U. S. 286 (23:709);

v.

LAWRENCE E. GANNON.

(See S. C. Reporter's ed. 227-229.)

Bethell v. Demaret, 77 U. S. 10 Wall. 537 (19:
1007); Rockhold v. Rockhold, 92 U. S. 129 (23:
507).

Mr. Chief Justice Fuller delivered the opin

Jurisdiction over judgments of District of Co-ion of the court:
lumbia - interest—jurisdictional amount—
federal question.

1. In cases brought here on writ of error for the
re-examination of judgments of affirmance in the
Supreme Court of the District of Columbia for the
purpose of determining the jurisdiction of this
court, the value of the matter in dispute is deter-
mined by the judgment affirmed without adding
interest or costs.

2. Where interest is part of the claim litigated, and the judgment provides for interest to run from a period antecedent to the rendition of the Judgment, or, in actions ex contractu, according to the terms of the contract upon which the action is based, the interest may be added for the purpose of determining the jurisdiction of this court.

3. In an action for personal injuries if, by the Judgment of affirmance in the Supreme Court of the District, interest is directed to be added to the judgment at special term, the interest will be part of the jurisdictional amount; but where, in such action, the judgment is affirmed in general term with costs but not with interest, interest will not be added to the judgment for the purpose of giving this court jurisdiction.

4. Where the instructions_refused by the trial court involved the Acts of Congress creating the District Government only as bearing upon the question of the liability of the District for negligence in failing to keep the streets in repair and by way of construction, and the validity of the Acts themselves or of the authority exercised under them was not denied, the jurisdiction of this court cannot be maintained on the ground that the validity of the authority conferred by Congress upon the District Commissioners is drawn in question.

The defendant in error recovered judgment in the Supreme Court of the District of Columbia, against the District, for five thousand dollars, in an action on the case for personal injuries on the 17th day of January, 1885, which judgment was affirmed in general term on the 28th of May succeeding, and the cause brought here on writ of error.

Under the Act of Congress of March 3, 1885,
(23 Stat. at L. 443), no appeal or writ of error
can be allowed from any judgment or decree in
any suit at law or in equity in the Supreme
Court of the District of Columbia, unless the [228]
matter in dispute exclusive of costs shall exceed
the sum of five thousand dollars, or unless the
validity of a patent or copyright is involved in
the suit, or the validity of a treaty or statute of,
or an authority exercised under, the United
States, is drawn in question therein.

The judgment in the case at bar, as rendered
at special term, was for five thousand dollars
and costs; and this was affirmed with costs, but
not with interest, the general term thereby
simply declaring that it was satisfied to let the
former judgment stand. In all particulars ma-
terial to the inquiry as to the value of the mat-
ter in dispute, the record is the same as in Bal
timore & P. R. Co. v. Trook, 100 U. S. 112
[25:571] where this court, speaking by Mr.
Chief Justice Waite, said: "In cases brought
here on writ of error for the re-examination of
judgments of affirmance in the Supreme Court
IN ERROR to the Supreme Court of the Dis of the District of Columbia, the value of the
trict of Columbia, to review a judgment of matter in dispute is determined by the judg
that Court affirming in General Term a judgment affirmed, without adding interest or
ment rendered at Special Term for $5,000 and
costs, in an action for personal injuries. Dis-
missed.

[No. 182.]

Argued March 5, 6, 1889. Decided April 1, 1889.

The facts are stated in the opinion.
Messrs. A. G. Riddle and Henry E. Da-
vis for plaintiff in error.

Messrs. S. S. Henkle and J. F. Ennis,
for defendant in error:

Interest upon the judgment below cannot be computed in making up the amount in dispute necessary to give jurisdiction in error or upon appeal.

Zeckendorf v. Johnson, 123 U. S. 617 (31:277);
The Patapsco, 79 U. S. 12 Wall. 451 (20:457);
New York Elevated R. Co. v. Fifth Nat. Bank,
118 U. S. 608 (30:259); Knapp v. Banks, 43 U.
S. 2 How. 73 (11:184); Western U. Teleg. Co. v.
Rogers, 93 U. S. 566 (23: 978); Walker v. U. S.
71 U. S. 4 Wall. 164 (18:319).

Interest is not part of the judgment itself.
Bank of U. S. v. Daniel, 37 U. S. 12 Pet. 32

costs."

The general rule has been repeatedly so laid down. Western U. Teleg. Co. v. Rogers, 93 U. S. 565 [23:977]; Walker v. United States, 71 U. S. 4 Wall. 163, 165 [18:319]; Knapp v. Banks, 43 U. S. 2 How. 73 [11:184]; New York Elevat ed R. Co. v. Fifth Nat. Bank, 118 U. S. 608 [30:259].

Where interest, instead of accompanying the judgment or decree as damages for the detention of a specific amount adjudged or decreed, is part of the claim litigated, and the judgment or decree is so framed as to provide for it to run from a period antecedent to the rendition of such judgment or decree, or, in actions er contractu, according to the terms of the contract upon which the action is based, jurisdiction may attach. Zeckendorf v. Johnson, 123 U. S. 617 [31:277]; The Patapsco, 79 U. S. 12 Wall. 451 [20:457]; The Rio Grande, 86 U. S. 19 Wall. 178 [22:60].

229]

[230]

[201]

This result would have followed here, if, by the judgment of affirmance, interest had been directed to be added to the judgment at special term. As it is, however, the judgment falls below the amount necessary to give us jurisdiction.

Upon the trial the following, among other,
instructions were asked for the defendant and
refused:

"The present government of the District of
Columbia having been imposed upon the people
of the District without any power or opportu-
nity on the part of said people to accept or reject
the same, the District cannot be held responsible
for the negligence of said government."
"The District of Columbia, under the form
of government existing at the time of the ac-
cident which is the subject matter of this suit
is not liable for damages resulting from said

accident.

cannot take cognizance of a suit to recov am-
4. The Admiralty Courts of the United States
ages for the death of a human being on
seas or on waters navigable from the sea, cauc
negligence, in the absence of an Act of Congress or
a statute of a State, giving a right of action there-
for.
[No. 1217.]

"If the care of the streets of the City of Washington, as a public duty is imposed by Submitted March 11, 1889. Decided April 1, the Statutes upon the District of Columbia, the performance of which is for the general bene

fit, and the District derives no profit from it,

then no action can be maintained against the
District for damages resulting from a neglect
to perform such public duty."

"The present form of government of the Dis-
trict of Columbia, consisting, as it does, of of-
ficers who are all appointed and paid by the
United States, without any power to levy taxes
or expend money except as directed by Con-
gress, is not of such a character as to make the
District responsible in damages for any negli-
gence of those officers."

It is contended on behalf of the plaintiff in error that the validity of the authority conferred upon the District Commissioners by Congress is drawn in question in this suit.

1889.

APPEAL from a decree of the Circuit Court

of the United States for the Southern District of New York, in a libel in rem in admiralty, awarding to the libelants certain damages for the loss of the pilot boat " Columbia," and of personal effects, and dismissing the libel in respect to the damages claimed for the loss of lives.

On motion to dismiss the appeal, united with a motion to affirm the decree. Motion to dismiss denied, and decree affirmed.

See S. C. sub nom. Van Pelt v. The Alaska, 33 Fed. Rep. 107.

The facts are stated in the opinion. in support of motion to dismiss: Mr. Geo. Bethune Adams, for appellees,

The sum in dispute in each case is not sufficient to give jurisdiction to this court.

The jurisdictional amount cannot be affected by the joinder of the parties in one action.

We do not agree with counsel in this view. The instructions above quoted involved the Acts of Congress creating the District Government only as bearing upon the question of the Oliver v. Alexander, 31 U. S. 6 Pet. 143 liability of the District for negligence in failing to keep the streets in repair, and by way of con- (8:349); Gruner v. U. S. 52 U. S. 11 How. 163 struction, and the validity of the Acts them-(13: 617); Rich v. Lambert, 53 U. S. 12 How. selves or of the authority exercised under them, 347 (13: 1017): Rogers v. The "St. Charles," 60 was not denied. The case of Baltimore & PU. S. 19 How. 108 (15: 563); Sampson v. Welsh, R. Co. v. Hopkins, ante, 908, is decisive that jurisdiction cannot be maintained on this ground

under such circumstances.

The writ of error will therefore be dismissed.

65 U. S. 24 How. 207 (16: 632); Seaver v. Bigelow, 72 U. S. 5 Wall. 208 (18: 595); N. O. Nat. Bkg. A880. v. N. O. Mut. Ins. Asso. 102 U. S. 121 (26:45); Chatfield v. Boyle, 105 U. S. 231 (26: 944); Elgin v. Marshall, 106 U. S. 578 (27: 249); Ex parte Balt. & O. R. Co. 106 U. S. THE DISTRICT OF COLUMBIA, Plaintiff in 5 (27: 78); Stewart v. Dunham, 115 U. S. 61 Error, . CLINTON H. EMERSON, No. 183. In error to the District of Columbia. Mr. Chief Justice Fuller remarked that the same questions were presented upon the record in this case as in the District of Columbia, Plaintiff in Error v. Lawrence E. Gannon, No. 182, just decided, and that for the reasons there given the writ of error must be dismissed.

CATHERINE A. METCALFE ET AL.,
Appts.,

0.

THE STEAMSHIP ALASKA, ETC., ET AL.
(See S. C. Reporter's ed. "The Alaska," 201-209.)
Jurisdiction as to amount-motion to dismiss or

(29: 329).

The instant this stipulation was given and substituted for the steamer, the question of amounts severally recoverable was finally determined.

Roberts v. The Huntsville, 3 Woods, 387; The White Squall, 4 Blatchf. 103; The Thales, 3 Ben. 327; 8. C. 10 Blatchf. 203; The Nahor, 9 Fed. Rep. 213.

No liability can be incurred in proceedings in rem beyond the amount of the stipulation given for the release of the vessel.

Henry, Adm. Juris. & Pro. 344; The Webb, 81 U. S. 14 Wall. 406 (20:774); The Ann Caroline, 69 U. S. 2 Wall. 538 (17: 833); The Wa nata, 95 U. S. 600 (24:461).

After the release of steamer the amendments,

[202]

increasing claims severally to $10,000, could
have no effect.

Lee v. Watson, 68 U. S. 1 Wall. 337 (17: 557).
The burden of showing jurisdiction is upon
appellants.

Hagan v. Foison, 35 U. S. 10 Pet. 160 (9:381);
The Jesse Williamson, Jr. 108 U. S. 305 (27: 730).
Damages must exceed $5,000 to give juris-
diction.

Walker v. U. S. 71 U. S. 4 Wall. 163 (18: 319).
Interest cannot be added.

Hemmenway v. Fisher, 61 U. S. 20 How. 255
(15:799); Lincoln v. Claflin, 74 U. S. 7 Wall. |
132 (19:106): Redfield v. Ystalyfera Iron Co. 110
U. S. 174 (28: 109); Supreme Court Rules, No.
23, par. 4; Udall v. The Ohio, 58 U. S. 17 How.
17 (15:42).

Where a want of jurisdiction is patent, the

"Now, therefore, the condition of the stipuMr. Justice Blatchford delivered the opin-lation is such, that if the stipulators underion of the court:

abide by and pay the money awarded by the
final decree rendered by this court or appellate
court, if any appeal intervene, then this stipu-
lation to be void; otherwise to remain in full
force and virtue."

Pearce put in exceptions and an answer to the
libel and the supplemental libel, denying the
liability. The district court, on a hearing on
pleadings and proofs, entered an interlocutory
decree, adjudging that the collision was caused
by the mutual fault of The Alaska and The Co-
lumbia, and referring it to a commissioner to
ascertain the damages. 27 Fed. Rep. 704.
The commissioner made his report, which was
excepted to by both parties, and a decree was
made by the district court awarding to the li-
belants certain sums as damages for the loss of
The Columbia and of personal effects, and dis-
missing the supplemental libel in respect of the
damages claimed for the loss of lives.

Both parties appealed to the circuit court, the claimant on the ground that the libelants were not entitled to any damages, or, if to any, that the damages allowed were excessive; the libelants on the ground that they were entitled [204] to full damages, instead of only half damages, and that the value of The Columbia had been allowed at too small a sum; and the libelants in the supplemental libel on the ground that they were entitled to full damages. Before these appeals were perfected, it was consented by the parties that the supplemental libel might be amended so that the claim for the loss of life should be $10,000 in each of the five cases, instead of $5,000.

The circuit court (33 Fed. Rep. 107) made a like decree with that of the district court, finding that both vessels were in fault for the collision, and dividing the damages and the costs of both courts between the respective parties; and dismissing the supplemental libel for the loss of the lives, without costs of either court to either party.

stead of $5,000, it might very well be that
some of the libelants would recover more than
$5,000, even on an apportionment of the dam-
ages. The fund of $25,000 is a common fund
for the benefit of the five parties; and, on the
facts of this case, the amount involved, on the
question of jurisdiction, if not the entire sum
of $25,000, is, at least, the sum of $10,000 in
each case. Gibson v. Shufeldt, 122 U. S. 27,
31 [30: 1083, 1085] et seq. and cases cited.

But there is sufficient color for the motion to
dismiss, to warrant us in entertaining the mo-
tion to affirm. Whitney v. Cook, 99 U. S. 607
[25: 446]; Hinckley v. Morton, 103 U. S. 764
[26: 458]; Micas v. Williams, 104 U. S. 556
[26: 842]; The S. C. Tryon, 105 U. S. 267 [26:
1026]: Independent School Dist. v. Hall. 106 U.
S. 428 [27: 237]; Davies v. U. S. 113 U. S. 687
[28: 1149].

On the merits, we are of opinion that this
case is governed by the decision in the case of
The Harrisburg, 119 U. S. 199 [30: 358], and
that this appeal was taken for delay only. In
the case of The Harrisburg, it was held that, in
the absence of an Act of Congress or of a stat-
ute of a State, giving a right of action there-
for, a suit in admiralty could not be maintained
in the Courts of the United States to recover
damages for the death of a human being on
the high seas or on waters navigable from the
sea, which was caused by negligence. It is
admitted by the counsel for the libelants that
the statute of New York (Code of Civil Pro-
cedure, § 1902), on the subject of actions for
death by negligence, does not apply to the
present case, because the deaths did not occur
within the State of New York, or in waters
subject to its jurisdiction. It is further to be
said, that that statute gives a right of action
only to the executor or administrator of the de-
ceased person, while the present suit is brought
by widows; and that the statute provides only
for a suit against an individual person or a cor-
The sums awarded by the decree of the cir-poration, and not for a proceeding in rem.
cuit court were paid, and the libelants in the
supplemental libel appealed to this court. The
object of the appeal is to obtain a decree here
that The Alaska is liable for the loss of the five
lives. The ground alleged for the motion to
dismiss the appeal is, that the sum in dispute as
to each of the five lives is not over the sum of
$5,000, and, therefore, is not sufficient to give
jurisdiction to this court. The view urged is,
that the amount originally claimed by the sup-
plemental libel for the loss of each of the five
lives was $5,000; that the stipulation in the
sum of $25,000, given to release The Alaska
from the five claims, was $5,000 for each claim,
the amount in dispute in each case being one
fifth of $25,000; and that the case stands as if
each of the five parties had commenced a sepa-
rate suit for $5,000, and five separate stipula-
tions had been given, each in that amount.

A distinction is sought to be drawn between the present case and that of The Ilarrisburg, on the ground that in that case the vessel was owned in Pennsylvania, while here The Alaska is a British vessel; and that in that case the wrongful killing occurred in the waters of the State of Massachusetts, while here it occurred on the high seas. But we see no sound distinction between the two cases. In the case of The Harrisburg, the alleged negligence which resulted in the death occurred in a sound of the sea, embraced between the coast of Massachusetts and the islands of Martha's Vineyard and Nantucket, parts of the State of Massachusetts. The question involved and decided in that case was, whether the Admiralty Courts of the United States could take cognizance of a suit to recover damages for the death of a human being on the high seas or on waters navigable from the sea, caused by negligence, in the absence of an Act of Congress or a statute of a State, giving a right of action therefor. That question was answered by this court in the negative, and the decision entirely covers the pres

But, as the stipulation is a unit, and is for
the sum of $25,000, and in it the stipulators
agree that execution may issue for the $25,000
against their property, and the condition of the
stipulation is, that the stipulators shall pay the
money awarded by a final decree (not exceed-ent case.
ing, of course, $25,000), and as the claim of
damages made by each one of the five parties
is, by the amendment of the libel, $10,000 in-

The motion to dismiss the appeal is denied, and the decree of the Circuit Court is affirmed.

[209]