Opinion of the Court 93 C. Cls. the instant case no such problem arises. Officers on the retired list receive benefits and privileges and any benefit or privilege is an emolument. Under the statutes and military regulations a retired officer is entitled to hospitalization in Navy Hospitals under certain conditions, and he is also permitted to buy merchandise procured by the Navy for resale to its officers and men. While living in the District of Columbia his children are entitled to attend the schools without payment of tuition. His name is carried on the Navy Register and he has the right to wear the uniform of his highest war-time rank on ceremonial occasions. All these matters are included by the word "emoluments." It is true that the word "emoluments" might also include pay and allowances, if the connection so indicated, but it does not. The pay was otherwise provided, and we see no reason to think that Congress intended by the use of the word "emoluments" to include anything except the emoluments of a retired officer. This would give the plaintiff just what any other retired officer would receive, which, we think, was plainly the intent of the statute. The use of the word "emoluments" made clear the award and was necessary to give the plaintiff the same status as other retired naval officers. Our conclusion is that the plaintiff is not entitled to receive the allowances for which he brings suit and that his petition must be dismissed. It is so ordered. JONES, Judge, and WHALEY, Chief Justice, concur. MADDEN, Judge, concurs: I concur in the result, and in the opinion of the Court except as it distinguishes the Sweeney and Ralston cases. As I have indicated in my dissenting opinion in the Christopher S. Long case, decided today, I see no material distinction between this case and those, and think they should be overruled. Judge Littleton has authorized me to say that he agrees with this view. 559 Opinion of the Court THE CREEK NATION v. THE UNITED STATES [No. L-137. Decided May 5, 1941] On Defendant's Motion to Dismiss Motion to dismiss; demurrer to the evidence; rules of the Court.— A motion to dismiss the petition upon the ground that the evidence produced by the plaintiff shows no liability is, in effect, a demurrer to the evidence, and as such is not a proper motion under the rules of the Court of Claims, following the decision of the court in Vogelstein & Co. v. United States, 55 C. Cls. 490. Mr. Paul M. Niebell for the plaintiff. Mr. E. J. Van Court was on the brief. Messrs. Clifford R. Stearns and Raymond T. Nagle, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. The facts sufficiently appear from the opinion of the court, per curiam, as follows: In this case the evidence for the plaintiff has been presented and the plaintiff has filed requested findings of fact, together with a brief. The defendant thereupon filed a motion to dismiss the petition on the ground that upon the facts and the law plaintiff has shown no right to recover. The parties agree that the motion is in effect a demurrer to the evidence, and have so treated it in their respective argu ments. The plaintiff, however, contends that there is no provision for a demurrer to the evidence in the rules of this court, and that such a proceeding is not recognized in the practice before it. The plaintiff therefore asks that the motion be overruled without considering the evidence and that the case be considered in the ordinary way. The issue so presented will be first considered. The defendant argues that such a motion is proper. But unless the rule is different in Indian cases the question now arising has been decided by this court adversely to this contention. It will be observed that defendant does not desire to have the case submitted upon the evidence which plaintiff has Opinion of the Court 93 C. Els. presented, as it might do, but desires to have this evidence considered and have the case dismissed if the evidence is held insufficient; but if a prima facie case is made out it will expect to introduce evidence on its part and then proceed to final submission. An identical situation arose in Vogelstein & Co. v. United States, 55 C. Cls. 490, in which defendant presented no evidence or request for findings of fact, nor admitted the correctness of plaintiff's evidence and requested findings, but sought to test the sufficiency of plaintiff's evidence by a demurrer thereto. The motion was overruled, the court holding that its rules prescribe the method of preparation of a case and make no provision for the suspension of the preparation of a case for trial by a defendant and its right to make a motion to test the sufficiency of plaintiff's evidence to sustain the cause of action. The court further held in effect that a general rule allowing such a practice would result in delay, inconvenience, and injury to the respective parties. The same rule is laid down in Smitheman v. United States, 48 C. Cls. 449, wherein a demurrer to the evidence had been filed, but the court said: If the court should undertake to sustain this demurrer, we would be establishing a practice so confusing as to be wholly impracticable. If plaintiff's evidence should be found to present a good cause of action, defendants would then claim the right to take their evidence, and the court would necessarily be constrained to permit a second hearing and in the regular way under the proper practice provided for us by the Supreme Court on a probably different state of facts from that developed by the use of the demurrer. Accordingly it was held that the demurrer should be overruled. The defendant cites the case of Monroe v. United States, 35 C. Cls. 199, in support of the motion. This case is considered and distinguished in the opinion rendered in the Vogelstein case, supra, and the situation therein was found to be different, especially that in the Monroe case, supra, the facts were directly agreed upon, so that the submission of the motion carried with it a complete submission of the case. It is argued on behalf of the defendant that a submission of the evidence at this time would save trouble and expense 561 Syllabus to the litigants, especially to the defendant. In Indian cases the testimony is usually in the form of depositions or documents and for that reason the court has not deemed it necessary to refer the evidence to a commissioner for a report upon the facts. But we find nothing in the rules which supports the contention of the defendant, and we think that to sustain defendant's motion would introduce a practice which, as said in the Vogelstein and Smitheman cases cited above, would in the long run be the cause of more uncertainty and delay than benefit. In many instances it would require the case to be twice submitted. It is therefore ordered that the defendant's motion, considered as a demurrer to the evidence, be overruled without prejudice to any defense which defendant may have, and the case proceed in the regular manner. THE CREEK NATION v. THE UNITED STATES [No. L-205. Decided May 5, 1941] Indian claims; error in survey; cession of lands occupied by plaintiff.— Where the defendant in 1881 purchased from the Creek Nation, plaintiff, 175,000 acres of plaintiff's lands immediately east of the so-called "Creek dividing line," and where in surveying said tract the defendant ran the eastern line thereof at such a distance from the "Creek dividing line" as to include 176,198.99 acres instead of 175,000 acres, all of which 176,198.99 acres were allotted and patented to members of the Seminole tribe, by whom they were occupied; and where in 1889, by treaty, the Creek Nation granted to the defendant all of its lands except so much of the former domain of said Creek Nation "as lies east of the said line of division, surveyed and established as aforesaid, and is now held and occupied as the home of said nation"; it is held that the plaintiff is not entitled to recover, since no part of the said 176,198.99 acres was "held and occupied as the home of" said Creek Nation when the agreement of 1889 was entered into. Same. Where in executing the treaty of 1898 the parties acted under a mutual misapprehension of facts as to the proper location of the eastern boundary of the tract but not as to the lands actually occupied by the Creeks; it is held that the plaintiff intended to grant to the United States the entire tract as surveyed, although it later developed that this tract in fact included slightly more than the 175,000 acres. Reporter's Statement of the Case 93 C. Cls. Same. It is a well established general rule that calls in a deed for natural objects or fixed artificial monuments control over calls for distances. Higueras v. United States, 5 Wallace, 827, 835, and other cases cited. The Reporter's statement of the case: Mr. Paul M. Niebell for the plaintiff. Mr. C. Maurice Weidemeyer was on the briefs. Mr. Wilfred Hearn, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. Mr. Raymond T. Nagle was on the brief. The court made special findings of fact as follows: 1. The amended petition in this case was filed pursuant to the acts of Congress of August 16, 1937 (c. 651, 50 Stat. Part I, 650); February 19, 1929 (45 Stat. 1229); May 19, 1926 (c. 341, 44 Stat. 568); and May 20, 1924 (c. 181, 43 Stat. 133). 2. By the treaty of June 14, 1866 (14 Stat. 785), the Creek Nation ceded to the United States the west half of its then domain, reserving to itself the eastern half thereof. In 1871 Frederick W. Bardwell surveyed and established the line dividing the western one-half from the eastern one-half of the Creek domain. This line was approved by the Secretary of the Interior on February 5, 1872, and was subsequently approved by the Creek Nation and by the act of Congress of March 3, 1873 (c. 322, 17 Stat. 626). 3. On March 21, 1866, the defendant entered into a treaty with the Seminole Nation (14 Stat. 755), under the terms of which a tract of 200,000 acres was granted to them immediately west of the "Creek dividing line." Before said line had been run the Seminoles were settled on what was supposed to be the tract granted them, but sometime after the line was run, it was discovered that this was in error and that they had been settled in part on lands retained by the Creeks. In the meantime the Seminoles had made substantial improvements on this land. To remedy this situation, the defendant on February 14, 1881, purchased from the plaintiff an additional 175,000 acres of its domain immediately east of the "Creek dividing line," as run by Bardwell, and bounded |