NADDOtl. BARDON.

493

where it was 10 years, and the suit was grounded on an express trust, (Naddo v. Ba1'do'll, Empra;) where it was 14 years, (Railroad Co. v. Sage, Empra;) and where it was 28 years, (Felix v. Patrick, Impra.) The list of cases might be multiplied indefinitely. They embrace all kinds of obligations and property rights, and turn upon facts as varied as the transactions of men. It is not necessary to look heyond the decisions of this court for authorities to support the proposition that complainant, if he ever had any rights, has long since lost them by laches of himself and those under whom he claims. Rail1'oad Co. v. Sage, supra; Naddo v. Bardon, 8Upra. The doctrine of these cases is fully supported by the authorities cited in the opinions and by the recent judgments of the supreme court in the cases of Galliher v. CadweU, supra, and Felix v. Patrick, supra. The decree of the circuit court is affirmed.

NADDO

v.

BARDON

et al.

(Oircuit Court of Appeals, Eighth Oircuit. July 5, 1892.)

No.ll2.

1. L&.OIDllB-WJUT
   

Plaintiff sued to recover land formerly owned by him and claimM by defendants under an execution sale, recorded deeds executed by his attorney in fact, and tax titles. Plaintiff alleged that the judgment was void, and that the other transfers were avoided hy fraud on the part of the attorney. The suit was brought 17 years after the execution sale and the deeds of the attorney, and 13 years after the tax titles were recorded. To excuse his delay he alleged that for 10 or 12 years be had lived in Canada, and that "until recently he had not learned of the extent to which the transfers" sought to be avoided had been made; that for about 10 years he had known that the attorney and others claimed that he had lost all rights in the land, but until recently he had been too poor to enforce his "rights. HeW, that he was of laches, which the allegations of the bill were not sufficient to excuse. 47 Fed..Rep. 782, affirmed. 'rhe fact that defendant was complainant's trustee under an express trust will not avoid the effect of laches where the bill itself alleges that more than 10 years filed defendant claimed that complainant had lost all right to the subject of the trust, and refused to account to him. 47 Fed. Rep. 782, affirmed.

CONSTITUTES-ExcUSE.

SAME-EXPRESS TRUST-REPUDIATION.

8.

SAlIrE-FRAUD-WHAT CONSTITUTES.

Where a person assumes the management of property under a power of attorney only days before his principal's title thereto is divested by the expiration of the period of redemption from a sheriff's sale, his failure to discharge the judgment and rede.em from prior tax·sales is not, in the absence of a showing of means wherewith to accomplish these purposes, such a fraud as will avoid the effect of laches on the principal's suit to recover the property from the agent or his g-rantees claiminll: under such sheriff's sale and tax titles.

Appeal from the Circuit Court of the United States for the District of Minnesota. Affirmed. Statement by· BREWER, Circuit Justice: This case comes on appeal from the circuit court of the district of Minnesota. In that court a demurrer to the bill was sustained, and a decree entered dismissing the bill.

,Tbe fac.tlJ, as,tbe,.appjlart{rom tbebill,. are,in,ageneral·.way, 10.ws: . appelJantonJanuary. 1, 18Q3, .reoeived. from· the United States a po.tel}tfor,tbe .land in controversy, situated iuSt-Louis oouh.by,Minn., to wit: The S; W. .ioLthe N. E. section 5. township:.49,nange 14. On June 26,1863, plaintiff, intendipg to remove, andin fact the province of Quebec, Can., executed a can· veyanoe to his nephew, Pierre Etu. Though in forula warranty deed, it was intended by the parties only as a power of attorhey to enable said Eta and control the property in the absenceof.plaintiff. On July7,iJ864, having returned to the county of St. Louis, and Pierre Etu having removed to Canada, the latter conveyed thelarid to plaintiff by.a.deethexecuted in Canada, in the French language, duly executed according to theJaws of Canada, but not witnessed or ackuO\yledged a(}o cording to the laws of this state. In September, 1870, plaintiff removed to Marquette county, Mich., where he resitled 12 years, and then removed to Canada, Ii ving. there till the commencement of this suit. During all these years he never revisited the county of St. Louis. On the 24th of Septem ber, 187Q, qe executed a power of attorney to one Richard G. CObUflI, giving him' power to se)) IUld convey the lands, with right of substitution. and. in 1872, a suit was brought against plaintiff by J. D. Ensign in the district court of said county of St. Louis, and a writ of attachment issued. Insuch suit a judgment was rendered, and under the judgment a levy and sale was made of the trap,t in controvers1,toJohn C" Hunter, of Duluth, for the sum of $400. A certjfi· cateo.r sheriff on the 10th dily of March, 1873. The title conveyed by this,sale passed' to James Bardon by certain c 111July 15,.18751.and JUlie 1, 1876. On 7,1874, byproperwritten instl'ument, James Bardon was substituted by Ri( h:lrd G. qOqijl'nas agent plaintiff nnder the authority given in the power and on May 18, 1874,0. quitclaim deed was executed by said stich vowerot' attorney aild substitution by which the land was conveyed to John Q. Hubbard, antI on the next day said Hubbard,luld,er .previolls arra,ngement, reconveyed the land to said Jt.lm6!1 Bardon individually, the consi(leratlon eXlJressed in each of these All the imtruments up to and indeeds beirigthesuJl1 of cludiIigtlle deed to Hl"ibbard were dulyapd promptly recorded in the of deeds of the county; but the deed of reconveyon recOrd/a.r oVer ayanr, and riottiH June 4, 1875. Bardon obtained a quitclaim deed to himself from that there ,was a defect in the latter's conveyance to plain'tilt', arid that such quitclaim deed would perfect the title of plaintiff. On June 4, 1875, Bardon bonght the land at a tax 'salefor:thdllUck taXies off1872,'and took!ttie deedto'himseH. ' In 1878 the land was sold at another tax sale for the taxesof 1874, and, bid in in the name of Mary Bardon, the'.Bisteriofsaid by her Conveyed tohhimJ' :;These'd-eeds were', aJs(!) promptly: recorded. On Fehrul\HY; 4,i,;;18.80,.JJlinesBnrdou veyed: the' pro:party: to Henry W. Sage for a consideration stated in tooi·<il.eed9L$2,250.: Some,other

titles through various transactIons passeq.to W. Paine, who on June 19, 1886, platted the laud as an alldition to the city of Duluth, nn.dertlie name and style of "West Park DivisiQuof Duluth,".whioh plat wason August 30,1886, duly recorded. ThereafteJ; lots were sold in this addition by him to different persons. On May 11, 1891,this suit was, commenced. Some 94 persons defendants,-James the substituted attorney, and the others, lot l1n,d block holders :i.n the West Park division. The bill sets out the various over 120 in number, by which these parties hold title. The oircuit court sustained the demurrer, and dismissed the bill on the ground of laches. F. O. Clark, H. S. 'Inrd, and Alfred RUBBell, (Clark Jc Pearl, on the brief,) for appellant. . R. R.· Briggs, Walter Ayers. and Alfred Jaqt.Ul$, (Jaques Jc Hudsrm, Oharla H. Clague, Thom.as Fairfax, Byrrma A. Porter, James H. Porter,lJt(I,1"Jj Kirchman, lUld Arnold Pfffer, on the brief,) for appellees. Before BBEWER, Circuit Justice, and CAWWELL and SANBORN, Circuit Jndges. BBEWEB,Cireuit Justice, (fJjttJr. stating the facts.) No doctrine is so who]esome','when wisely administered, as that of laches. It prevents the resurrection of stale titles, and the spying out from the records of ancient and abandoned rights. It requires of' every owner that he take care of.his property, and of every claimant that he make known his claims. It gives to the actual and longer possessor security, and induces and justifies him in all efforts to improve and make valuable the property he holds. It is a doctrine received with favol', because its proper application works out justice and equity, and often bars the holder of a. mere technical right, which he has abandoned for years, from enforcing it ,when its enforcement will work large injury to many. The general facts we have stated instantly suggest that this is a. proper case in which to apply and enforce that doctrine. Plaintiff, in 1870, left the property, and moved to a distant country. So far as appears from the bill, from the time of his removal to the bringing of this suitover 20 years-he not only never saw the property, but also never did a single thing to protect his possession, or give notice of any rights in it. Seventeen years before'the commencement of this suit the legal,title passed from him, and 80 passed by recorded deed made by an agent under power of attorney; if not by the Ensign judgment and sale. Two tax titles, in 1875 and 1878, were added to those made by the sheriff's sa1eand the deed under the power of attorney, and 13 years elapsed after these titles were placed on record with no note of warning from him to anyone that he stPl had or claimed any right to or interest· in the property. The land· is a tract of about 40 acres, so near to the city of 'Duluth as to become an addition to it. By the census of 1870, Duluth was a stnall place, having a population of 3,131; by that Of 1890, a large and prosperous city 0[33,115 inhabitants. This rapid increase in tqgether with thedllvlllopment of railroad and otherinduBo

tl'abfli'$'e7 tQOk:pls()e

DDPAL :aEPOBTJm,

voL 51.

tries, bfwhieh, the court may fairly take judicial notice, make it e'Vident that this addition to the city must<have wonderfully increased in value. The nlultitude of deeds which the plaintiff describes in his bill show that nlany persons have bought lots relying upon the recorded title, and his allegation is that many of thesepurchal:lers have made improvements on the lots 8c) purchased by the erection of dwelling houses. In other words, he sutnmons hltocourtnearly 100 persons who have in good faith made hom'es orf the lots in this addition, relying on the sufficiency Of the' titles purchased, and without a warning from him that he had anyClaiIns upon the property. Surely, unless there be some strong and clear 'excuse for his silence these many years, and good conscience forbid that he should now dispossess them of their homes,and take to himself<the value,which their labors, coupled with that of their fellow citizens, himself not among the number, have given to this property. The excuses tendered. are absence, :ignorance, and poverty. We quote from the bill the allegations in respectthereto: > <."And y()ur orator alleges .that forab6ut ten or twelVll years last past be has 'tesidEld itrCanada, but. tnat,the transfers of the property of your orator, as previously set forth. and as appear by the records of the register of deeds for the said county, have been made without the knowledge and consent of your orator. :A.ndyout orator has tlot unt.ilquite reQentlylearned of extent to w,hicb /luch transfers have b,e.en made·. ,A-nd your orator further alleges tl)at for. about ten yeafS he has known that. the said James Bardon and others that ,he had lost or forfeited hls'rights to the said land. and that the. said OOllon refused to account.to him his transactions with regard'totbe i!ajDe, but your orator has during aU said time since learning of such wrongfuI and fraudulent dealings on the part of said James Baluon, been poor and unable to pay the expense ,of litigatjon necessl'ry. to enforce his rights in the and has been unable to procure, until recently, tbeassistance necellsaJ:,y to enforce his rights.... . . It appears elsewhere, as heretofore stated, that he has never been back: to St. Louis county sinoe he removed therefrom in 1870; so thathe has been absent from the' county in which the land is situated for over. 20 years, the last 10 years 0{ which he has lived in a different country. But of itself is no excuse. Travel and communication are eD.sy. If he could not or did Dlilt ,care to go to Duluth, he could easily have written and ascertained exactly what was done with the property, . aildWith equal ease have given notice of his claims. This is not a.case - wherb a party is ignorant, of the property or his title, as if it had deoscendedtohim by inheritance through the death of an ancester, ofwbose death he was unaware, fOt he had himself taken the title from the government, and had lived upon the property. There cannot be one law of laeih8fjfortbe resident and another for the nonresident. In the case of Broderick's Will, 21 Wall. 503, 519, the supreme court, in reference to a '!imibir excuse, said: . "'Th.,y do not pretend that the facts of the fraud are shrouded in concealIMnt., but their plea lived in a remote and secluded reKion, far froll;\meaqs of ·.and never heard of Broderick'a.death. or of tbe of hili property. or of any events connected with the settlement of his ee. tate, until.many years after these events had transpired. Parties cannot thus, by'their'seclusion from the means of information, claim'exemption from the

NADDO' 'V. BARDON.

497

Jaws that control human affairs, and set up a right to open up all the transactions of the past. The world must move on, and those who claim an interest in persons or things must be charged with knowledge of their Btatus and condition, and of the vicissitudes to which they are subject." See, also, McQuiddy v. Ware, 20 Wall. 14. . Neither is his poverty any excuse for his laches. It is to the glory of our profession in this country that it is ever ready to champion the cause of thE" poor; and no man who has a just claim, and makes an effort to assert it, will ever fail 01 securing the needed professional assistance. The courtslit'e always open, and the lawyers are always willing and at hand; and if he fails to establish his rights it is because he does not make an effort to assert them. In Hayward v. Bank, 96 U. S. 611, 618, it was observed: ".No sufficient reason is given for the delay in SUing. His poverty or pecuniaryembarrassment waS not a sufficient excuse for postponing the assertion ·of· his rights." And in the recent case of Washington v. Opie, 146 U. S. - , 12 Sup. Ct" Rep. 822, a similar excuse was presented, and adjudged insufficient. See, also, De Estrada v. Water 00.,46 Fed. Rep. 280. Nor is mere ignorance. unexplained, an excuse. Indeed, his ignorance, as disclosed by the bill, was not as to the fact, but only as to the extent of the adverse rights. Notice the way in which this matter of ignorance. is stated: He alleges that the transfers, set out at length in the "inadewithout the knowledge and consent of your orator; and bill, your orator has not until quite recently learned of the extent to which such transfers have been made." All that can be justly inferred from this is'tha,ta.s each transfer was made it was made without his knowledge or consent. How soon thereafter he became aware thereof is not disclol;led. That he only quite recently learned of the extent to which they had been made carries with it the implication that he long since knew, of some transfers. In other words, he did not know of all until, on examination by himself or counsel, he found them on the record. And that this is the true construction is strengthened by the clause following, in which he alleges "that for about ten years he had known that the saicl James Bardon and others claimed that he had lost or forfeited his rights to said land, and that the said Bardon refused to account to him for his transactions with regard to the same." This is a clear deClaration,thltt for more than 10 years prior to the suit he knew that his title was disputed, knew that his agent repudiated all responsibility, and yet he .took no Elteps to enforce or even make known his rights. Surely, unless we ignore all the decisions of the supreme court of the United States, as well as those of other courts in respect to the necessity of prompt action in order to call into exercise the powers of a court of equity, we must hold that this delay of 10 years after knowledge is such laches as will bl;l.r plaintiff of relief. The case of McQuiddy v. Ware, 20 Wall. 14, is closelyin point in this respect. In that case the title of the plaintiff to certain property had been divested, or sought to be, by judicial proceedings during the late war, he being at that time in the Confederate v.51F.no.8-32

'4'98

FEDEJV,U.

vQl. 51.

States; and: ,etno challen'gewaSm'ade,by him oftbQae, :proeeedings until six::yehftl'aftel' its, closej 'and in respect to that the court observed: , '·Wbythm) delay?Tbe. J;ita.itltiff sllYIil ne was in ignorance of them until recently. and that. 8S soon as 'he'ascert'ained them, he tooksttJps' to' assert bis rights. Sueha general llt;)t suffl,ce to tne interposition It,Will not do to remain willfully a thing has' beenfr\3eatld un interrupted 'comm Un ication andMJssouri since the war closed,8'ridthe courts whereJaccessible fOr the prosecution .of any cause of action;· Besides, in the very nltt'iite of things, thecomplainant:rnust have known soon after it :curreld,tbat ,an improved by him, was in the possession o( advers8claimants. notice sufficient to put on inqUiry, and thl/J WQuld hayeresulted all the facts stated, in the bill. 'There is no reason 'given for the del'liy, nor any facts and circumstances on which any satisfactory excuse can be predicated."
j,(1 .," :', .'

rI

r: ,-

But,it is. earnestly sai4,:by counspl that, while laches.is often invoked in cases of constructive fraud and resulting trusts, it is never accepted as a of an trust apd II.ctual the leading How".5q1" and Prevo8t v.vGmtz, 6 Wheat. 481, are ci'ted. It is doubtll',ss true tbat, where an expre/ls trust is once shown, to" it is presumed to cOJ;ltinul;l; and thel'efqre no lapse of Uml;l W'Ul. an actiAn, under it. . But when that repu?iation is. home to trust, the case Isbl:0llgpt wlthm. ordmary rules of ll\ches." Speidel v.']fenrici, 120 7 Sup. Ct. R,ep., Herl;l, as ,we have seen, tile plaintiff. allege,S that he knew of tbe exist¢npeof that his,qwn title was dIsputed, and that his agegt,iepudiated al(6bligationsmore t,han 10 years before he commencedtbis suit. disavowal of the trust was not bv indirection,'ora fl:pndhe cQJ;lquct of thetrustee,btit direct and unequivocal. :He admlts that his trustee clllimed that he had lost all rigbtsiJ;l the and refused to accounttq him, and that he had kn.own this fact for years. .Thus he shows a known and distinct repudiat,i911, land one of IOIlg stancHIlg. In the recent case of Hammond v. Ct. Rep. 418, it appeared that the aschargedbere, through an intermediary at the\r ()wnsa\e', and that CQ'lr;t,: through Jhe chief said: ."Each be governed by its own circ,:!.mstances, since, though yearsmay?e, 11l1fficient defeattQe ,action in case, a long.,er may be held reqlllBlte lD another, 4iepen4ient upon the SItuation of the pa,rties. of their knowledge 9r' means of infol'mation, great changesin'values,'the'want of probable gl'onndsfor the imputation of intentional· fraud; the destruction of speciflctestilriony. the absence of any i'easonable impediment 01· hindtance to the assertion of the alleged rights, and the like. Marsh Wall.17l:!; Landsdale v. Smith. 106 u. s. 391.1 Slip. Ct. v. Haggin, U. s. 10 Sup. Ct. Rep. 942: Mackall v,, U. S. 556. 11 :sup. Ct. Rep. 178: Hanner v. 1,38 11 Sup. Ct. Rtip.408. the doctrhie 1's established that a trustee cannot purchastr or deal in :the tt'ust property for Disown benefit,·or. on his own hehaIf, dirl'ctly or indJ.l'ectly. But such a pur. <lhasa is,not absolutely void. It ill onlyv;oidal;lIe:anA,as it may be confirmed

,,!'

, ' .

v.

,

c·

. ·

·

.;':','

_

. , .

·

..

,

NA,DDOt'. BARDON.

499

by the parties intl'resteddirectly, 80 it maybe by long acquiescence or the absence of an election to avoid the conveyance within a reasonable time after the facts come to the knowledge of the cestui que tn.tst."

-And quoted the language of Mr. Justice GRIER in Badger v. Badger, 2 Wall. 87, 95, that a party seeking to avoid laches "should set forth in his bill what were the impediments to an earlier prosecution of his claim; how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance; and how and when he first came to a knowledge of the matters alleged in his bill; otherwise the .chancellor may justly refuse to con::;ider his case on his own showing, without inquiring whether there is a demurrer or formal plea of the statute of limitations contained in the answer." See, also, the cases of Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. Rep. 862, and Gnlliher v. OtdweU, 145 U. S. 368, 12 Sup. Ct. Rep. 873. But is this a case of actual fraud? Bardon, the alleged wrongdoer, was not substituted as agent until March 7.1874; and the deed which he executed was on May 13, 1874. But the property was sold on the 10th of March, 1873, Qllan execution sale, and the time for redemption expired on the 10th of March, 1874;, soBardon's responsibility as agent or trustee never arose until within three days of the time for the deed under the sheritFs sale. It was no fault of his that the land was sold under that sherifl"s sale, nor that the land had been theretofore sold for taxes; and no misconduct or fraud is charged against Couurn. the original agent and attorney; nor does it appear that from the time hlJ was substituted as agent9fattorney he had. received or CQuid have realized a single dollar 101' the payment of this judgment or· the discharge of the taxes. Where, then, was the actual fraud? It is true the bill alleges" that from the time of the making of the said power of attorney to the said Coburn by your orator up to the present time the said property has been of large value, and the proceeds from the use of the same from the very first were ample, and more than ample, to pay all taxes and expenses that could legally be brought against the said land;" and also that "the said land was worth from eight to ten thommnd dollars, at least, when the said Bardon eonveyed the same to the said Hubbard for one dollar, and took a deed back to hirrJself for the amount as aforesaid." And it also appears from the power of attorney given to Coburn that there WIlS a clearing offour acres on which plaintiff had erected a shanty. But surely, if Coburn, during the years of his agency, was unable to realize from the property money enough to pay the taxes and discharge this judgment, it could hardly be expected that Bardon in three days could accomplish that result. It is also true that the plaintiff alleges that the judgment was rendered without personal service, and that it was informal, irregular, llnd void. But it appears that he had property within the jurisdiction of this court, to wit, the land in controversy; that it was subject to attachment, and that the statutes of Minnesota author· ized suits by attachment against nonresidents. The proceedings were had in a court of general jurisdiction, in favor of whose validity are aU presumptions; and no defect in the proceedings is pointed out, nothing

000

FEDERAL R];;PORTER,

vol. 51.

ipjQstifythe general allegation that the was informal, irregular, and void. Canit be that under such a allegation the court is to treat as void? Counsel urge that it is sufficient to put the defendants upon answer; and that, when the facts are all presented, they will show how and why the judgment is void. But it is a familiar rul\3 that a party who seeks to explain laches must make a full, clear, and specific statement of all the facts upon which he relies. No generaJity of statement will suffice. And when the title which is challenged rests partly upon a sale under a judgment of a court of general jurisdiction, an averment that the judgment was informal, irregular, and void, without the specification of any fact showing its invalidity, will be considered as a mere allegation or a conclusion of law, and not as a statement of fact. So that, upon the facts as presented in the bill, this alleged wrongdoer, Bardon, the substituted agent,assumed responsibility to the plaintiff only three days before the plaintiff's title was cu t off; and there is no such shClwing of mettns, coupled with duty, as makes his failure to protect the. plaintiff's title an enormous wrong and fraud. While we do not mean td say that there .was no breach of duty, yet the the facts as stated: is that Bardon, reasonable and natural inference having, no obligations to. the plaintiff, saw that by the attachment proceedings and. execution sale the title was passing away, and intending or having arranged to purchase the sheriff's title, sought to make it clearer and stronger by adding a conveyance under ,the power of attorney. In other words, it was not the effort of an agent to rob his principal, but the eflortofa. stranger to get an agent's deed tostrehgthen an{lther title. In that aspect of .the case, Bardon's conduct, though, if challenged, promptly, subject to condemnation, was not such gross and outrageous fraud as will long years thereafter outweigh the laches 0, plaintiff. Indeed,as there is no specific allegation that plaintiff was ignorant o[t11e proceedings in the Enaign Chae, his long-continued inaction after knowledge of the, various tr/wsfers is suggestive of the fact that he recognized that his title was destroyed by that sale, and that he therefore ceased to take lmy .interest in or pay any attention to the property. In any view that we have been able to take of this case, it seems to U6 that, if any rights remained to the plaintiff after that SMa, his long delay in assertingthem hasnotbeen excused; arid that the decree of the circuit court iii dismissing the bill on the ground of laches was correct, and it must be affirmed.

IN BE. HANDEa80N.

liOl

In re

1.

MANDERSON et· aZ.

(Of'l'Ctdt CO'lI!rt of AppeaZs, Third Oi'l'cuit.

August til, 1892.)

EMINENT DOMAIN-CONDEMNATION BY UNITED STATBll-COMPIIN8ATION.

t.

L

Act March 3, 1891, authorizes the secretary of war to modify existing plans for the excavation of Petty's island and the adjacent shoals in the Delaware river, but declares that ths title to any additional lands "acquired" for this purpose shall be vested in the United States without charge. Held that, in view of this express declaration that no compensation shall be paid, the government has no constitu· tion II power to institute condemnation proceedings to obtain such lands, and that thertl is nothing in the acts of April 24 and August I, 1888, giving officers of the government general authority to proceed by condemnation, which qualifies or removes thi3 co:ldition against compensation. 48 Fed. Rep. 896, affirmed. A suggestion that the compensation would be paid by voluntary contributions ill without merit, for that resoucce is too uncertain to justify condemnation. 'the circuit COll.rt of appeals could not take'judicial notice of independent proceedi,ngs in the trial. court and ot,her courts of the circuit, for the condemnation of other lands such proceedings Dot being a part of the record.
COURT 01.' Ar:'EALs-JUDIOIAL NOTIOE. .

8.IME.

Error to the District Court of the United StateS for the District of New Jersey. Petition for the condemnation of lands belonging to Andrew Manderson and others for the use of the United States. The petition was dismissed below for want of authority in the government to maintain the proceeding. 48 Fed. Rep. 896. The writ of errOl" was sued out to review this judgment. Affirmed. J. Warren Coulston and Samuel Dicksoo, (Henry S. White, U. S.Atty., .and C. V. D. Joline, on the brief,) for plaintiff in error. Wm. a. Hannis, for defendants in error. Before DALLAS, Circuit Judge, and BUTLER and WALES, District . Judges. W ALES, District Judge. Proceedings were instituted in the court below forthe condemnationof certain lands lying within the state of New J ersey, and which are required by the United States for continuing the improve'Uent of the harbor at Philadelphia. A petition was filed by the proper officer of the government, desoribing the lands necessary to be taken, their owners, and setting forth the substance of the sev,eral acts of congress which, it is alleged, authorize the said proceedings. The acts of congress referred to in the petition are: · (1) The act of March 3, 1891, entitled "An act making appropriation for sundry' civil expenses of the government for the fiscal year ending .June thirtieth, eighteen hundred and ninety-two, and for other purposes," and containing the following appropriation: .. Enginee'rDepartment. For improving harbor at Philadelphia, Pennsyl-

vaniaj continuing improvement; removal of Smith's island and Windmill ,island, Pennsylvania, and Petty's island, New Jersey, and adjacent sbol\18,·,three hundred thousand dollars: provided, that the plan for the,improvement may be modified by changing the line limiting the excavation on Petty's ·;island to such position .as the secretllry of war may consider desirable, and ,the material to be removeq.·frolQ,said anll shoals under this approriation, and appropriations heretofore made, shall be deposited and spread