as citizenship is concerned, but passed under those of the Naturalization Law.

That the relator did not lawfully enter the country in conformity with its laws, so as to pass from the restriction of the Immigration Laws to the rights of the Naturalization Law, under either section contended for, is established by abundant authority. U. S. ex rel. De Rienzo v. Rodgers, 185 F. 334, 107 C. C. A. 452; U. S. ex rel. John Abdoo v. Williams (C. C.) 132 F. 894; In re Gayde (C. C.) 113 F. 588; Chin Yow v. U. S., 208 U. S. 8, 28 S. Ct. 201, 52 L. Ed. 369; Zartarian v. Billings, 204 U. S. 170, 27 S. Ct. 182, 51 L. Ed. 428; U. S. ex rel. Pola Patton v. Tod (D. C.) 292 F. 243; Nishimura Ekiu v. U. S., 142 U. S. 651, 12 S. Ct. 336, 35 L. Ed. 1146; U. S. v. Ju Toy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040; In re Camaras (D. C.) 202 F. 1019. Some of these cases were decided before, and some after, the enactment of section 5 of the Act of March 2, 1907.

It is true that in most of these cases the alien never left the actual physical custody of the immigration authorities. But in the case of U. S. ex rel. Pola Patton v. Tod, supra, the alien resided with her parents in this country from 1914 to 1923 under bond of departure, and under circumstances very similar to the case at bar. In re Camaras (D. C.) 202 F. 1019, the alien was temporarily admitted under bond of departure, and in the Nishimura Ekiu v. U. S. Case, the alien resided in the Methodist Episcopal Immigrant Home out of actual custody, pending a final disposition of the writ.

It seems, however, unimportant whether the alien was in the actual custody of the immigration authorities at the boundary line or was within its boundaries in the constructive custody of the authorities under a bond requiring the alien to be surrendered for deportation, as in the Patton Case, and in the case at bar.

The foregoing cases all hold, in substance, that, until the alien has been admitted in conformity to the Immigration Law, the alien cannot be said to have lawfully entered, dwelt, or resided within the country.

tioner gains no additional right of entrance by being allowed to pass the frontier in custody for the determination of his case.

De facto he is locked up until carried out of the country against his will." In U. S. ex rel. Abdoo v. Williams, supra, Judge Lacombe said: "It has been repeatedly held that the mere being at Ellis Island in the custody of the immigration authorities is not a landing within the meaning of any provision of the Revised Statutes, and that no landing has been effected until the immigrant has been passed by the authorities at Ellis Island."

In U. S. v. Ju Toy, supra, the court said: "The petitioner, although physically within our boundaries, is to be regarded as stopped at the limit of our jurisdiction and kept there while his right to enter was under debate."

In U. S. v. Wong Kim Ark, 169 U. S. 649, 686, 18 S. Ct. 456, 471 (42 L. Ed. 890), Mr. Justice Gray, delivering the opinion, said that the Naturalization Acts of the United States have been careful to limit admission to citizenship to those "within the limits and under the jurisdiction of the United States."

In Zartarian v. Billings, 204 U. S. 170, 27 S. Ct. 182, 51 L. Ed. 428, the court said of an alien: "Never having legally landed, of course [he] could not have dwelt within the United States."

In U. S. ex rel. De Rienzo v. Rodgers, supra, the court said: "Under the Act of March 2, 1907, citizenship is only conferred upon the minor child of a naturalized alien when (or if) he has begun to reside permanently in the United States. Until then, he is an alien, and he cannot begin to so reside if he belongs to a class of aliens debarred from entry into the country by the act to regulate the immigration into the United States. The language of Mr. Justice Day [Zartarian v. Billings, 204 U. S. 170] in regard to the law then under discussion [section 2172 of Rev. Stat.] may be applied with little change to the situation under section 5 of the Act of 1907, and it is still true that Congress has never said that a alien child, who has never begun to reside permanently in the United States, coming to join a naturalized parent, may land, when an idiot, or otherwise belonging to the excluded classes."

[3] Does the fact that officers of the immigration service and of the Department of Labor have been indulgent in not deporting the defective minor alien at once, but have permitted him to go to his father un

der deportation bond, make him an exception, and give him admission, or make his entry lawful? Can the mere manner of enforcement, or even nonenforcement, by the enforcing officers, change the law, or the status of those coming within its provisions? Do the acts or indulgences of the enforcement officers of the Immigration Bureau or Department of Labor waive the application of the statutes as to this alien, or estop the government from enforcing its laws, and deporting him? Manifestly not. Such has never been held. It would not be so, even if there were no such provision in the Immigration Law, as there is, viz., section 17. This section reads in part as follows: "Provided, that the decision of a Board of Special Inquiry shall be based upon the certificate of the examining medical officer and shall be final as to the rejection of aliens affected with any mental or physical disability which would bring such aliens under section 3 of this act." Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894.

How then can an alien be said to have lawfully entered the country so that he may "dwell" therein until he has been admitted pursuant to its Immigration Laws?

The defective minor alien can, therefore, no more "dwell" in this country under section 2172 of the Revised Statutes since the enactment of the provisions of the Immigration Law prohibiting his entrance than he can "begin to reside permanently" in this country under section 3 of the Act of March 2, 1907.

The principle is the same under both statutes. Until adınitted in conformity with the Immigration Law, he can acquire no rights of citizenship under either statute.

The petitioner cites and places much emphasis upon the case of U. S. ex rel. Sejnensky v. Tod (C. C. A.) 285 F. 523, 26 A. L. R. 1316, in which a woman as much disqualified to enter under the terms of the Immigration Law as is the defective minor alien here was held to have acquired citizenship by marriage to a citizen while in similar constructive possession of the immigra

tion authorities.

The Sejnensky Case is clearly distinguishable from the case at bar. Prior to the repealing act of 1922 (42 Stat. 1022) an alien woman, under section 1994 of the Revised Statutes (Comp. St. § 3948), automatically became a citizen upon her marriage to a citizen whether married abroad or in this country, without condition or qualification.

U. S. v. Williams (D. C.) 173 F. 626, Id., 184 F. 322, 106 C. C. A. 464.

There is, however, a condition precedent as to the citizenship of the minor alien, viz., "dwelling" in the country under section 2172 of the Revised Statutes, or "beginning" to "permanently reside in the United States," under the act of 1907. No such condition precedent was required for the citizenship of an alien woman who married a citizen. The Sejnensky Case, therefore, lacks such analogy as to be controlling here.

[4] The relator also suggests that the United States is estopped from asserting that the relator is not a citizen, and claims that the recital of his name in the naturalization certificate of his father is a judgment binding upon the United States, and only subject to attack in a direct proceeding for that purpose. This claim is of no avail, as such recitals in the certificate of naturalization are merely statutory formalities, and are in reality declarations by alien parent in his own behalf, and do not estop the gov ernment.

[5] The relator insists that he is not feeble-minded. He also asserts that he did not have a fair examination by the Board of Medical Officers of the United States Public Health Service, because there was prejudice and ill will aroused about him by certain newspaper articles, which he asserts prevented his having a fair examination.

It appears from the record in this case that the examination made on his arrival at the port of New York on January 27, 1921, was made by examining Surgeons Wildman, Faughman, and Scott. The examination of February 28, 1922, was made by examining Surgeons Wildman, Faughman, and Shockley.

On April 27, 1922, on his appeal, he was examined by a Board of Medical Officers of the United States Public Health Service, consisting of Drs. Wildman, Sandidge, and Loughran, at which examination Dr. Locke in behalf of the petitioner, and produced beof Syracuse was present as medical expert fore the examining surgeons his opinions and the records of the work of the plaintiff in the public schools of Syracuse.

He was later examined on April 2, 1923, by another Board of Medical Officers of the United States Public Health Service, in the presence of Dr. Benford, another expert from Syracuse, who was present in behalf of the relator, which examination was made by Drs. Weldon, Fuller, and Loughran.

All of these eight federal surgeons who examined him on these four different ex

and unprejudiced hearing. There was evidence to support the finding of the Board of Medical Officers, and of the Board of Special Inquiry.

[7] The findings in deportation and exclusion proceedings as to defective aliens under section 3 are final where there is evidence to support it. Low Wah Suey v. Backus, 225 U. S. 460, 32 S. Ct. 734, 56 L. Ed. 1165; U. S. v. Uhl (C. C. A.) 271 F. 676; Skeffington v. Katzeff (C. C. A.) 277 F. 131; U. S. ex rel. Fink v. Tod (decision by Judge Hough not reported), order affirmed 1 F.(2d) 246.

Writ dismissed, and relator remanded.

al. v. HUDNALL et al.

(District Court, S. D. Florida. January 30,

1925.) No. 215.

The respondent was not one of the examining surgeons of this Board of Medical Officers of the United States Public Health Service, who passed on this relator's mentality, and he had no power of appointment of those medical officers to or their removal from the Immigration Service. Nothing warrants any inference that these medical officers were in any way influenced by this newspaper article. Even if we assume that the respondent's views were correctly represented by the newspaper article, and further assume that the article came to the attention of the examining surgeons prior to the examination of April 2, 1923, this court cannot assume or find therein any reasonable ground for believing that the three examining surgeons on the 2d day of April were prejudiced in their findings, and did not give the relator a fair examination. True, Dr. Banford of Syracuse was present, and disagreed with them, and was of the opinion that the relator "in the ordinary course of nature will advance mentally to a point where he will be at least self-supporting." But that was not a very strong statement, and in any event it was their duty, while taking all the evidence into consideration, to decide according to their own judgment.

[6] There is no legal basis, therefore, for holding that the relator did not have a fair

1. Public lands 211-Title to Florida land held derived from Spanish government, though grant subsequently confirmed by United States.

Where the Spanish Governor of East Florida in 1817 granted a concession of land, which pursuant to his order was surveyed and a plat thereof filed, such action segregated the land from the public lands of Spain, subsequently ceded to the United States, and where, on petition of the heirs of a grantee of the concession, it was later confirmed by the United States commissioners in such heirs as a valid Spanish grant, and such confirmation approved by Congress, the heirs derived their title from the Spanish government, and not from the United States.

2. Husband and wife 276(6)-Conveyance of ganancial property by widow of Spanish grantee held to convey title.

The owner of a Spanish grant in Florida, which he acquired by purchase during marriage, died prior to 1825. Under the Spanish law then in force, the land was part of the ganancial property, the gananciales being subject to the payment of the common debts, and the remainder, after valuation to be divided equally, between the widow and his heirs, possession and administration of the property remained with the widow, with power of sale. The facts relating to the administration could not be shown, but in 1838 the widow conveyed the land by warranty deed. Held, that such deed vested title to the entire tract in the grantee.

3. Estoppel 70(1)-Heirs held estopped to assert title to land after 75 years.

Where the grantee of land from the widow of the owner of a Spanish grant and his successors in title took and held peaceable possession from 1838 to 1916, during which time it was subdivided and large improvements made

thereon, and it increased in value from $700 to

several millions of dollars, the heirs of the husband of the grantor held estopped to then

assert claim thereto.

4. Tenancy in common

14-Possession by grantee of entire tract of land from one cotenant, claiming adversely, is not possession of other cotenants.

Where one tenant in common deeds the entire property to a stranger, his possession, claiming sole ownership, is not the possession of other cotenants.

5. Navigable waters 38-Title to land between high and low water mark under Florida statute construed.

Riparian Act (Laws Fla. 1921, c. 8537),

and to the filled-in lands below high-water mark, along the St. Johns river, under the Riparian Act passed by the Florida Legislature in 1921 (chapter 8537), as owners of the uplands in December, 1856, when the first Riparian Act was passed. The answers pray for partition of the lands held in possession by the complainants as tenants in

common.

At the first hearing the defendants filed a motion to sustain various and sundry objections to testimony reserved by them before the examiner. I have examined these objections and motions to strike, but none of them seem to me well taken or of suffi

December 27, 1856, and be effective thenceforward, and gives to owners of land lying on a navigable stream the right to fill in, build docks, etc., between their lands and the channel, and vest title to such submerged land in them, construed in the light of its evident purpose, does not vest title to the submerged land in the riparian owners, unless and until such use is made of it.

In Equity. Suit by the Commodores Point Terminal Company and others against Charles F. Hudnall and others. Decree for complainants.

For prior opinion, see 283 F. 150. See, also, 279 F. 606.

E. J. L'Engle, Fleming, Hamilton, Diver & Fleming, P. H. Odom, Reynolds & Rogers, Cooper, Cooper & Osborne, and Cockrell & Cockrell, Knight & Adair, all of Jacksonville, Fla., William K. Jackson, of Boston, Mass., and R. H. Liggett, of Washington, D. C., for complainants.

John W. Dodge, and Stockton & Ulmer, all of Jacksonville, Fla., for defendants.

CALL, District Judge. This cause comes on for final hearing upon the bill of complaint, the answers of the defendants, the replications to that part of the answers of certain defendants praying partition, the testimony taken before the examiner by the parties, and certain depositions filed in the cause. The bill of complaint, with its exhibits, contains more than 240 pages, and I shall not attempt to give a résumé of it, but will refer to Judge Clayton's opinion, filed on the hearing of one aspect of this case, and reported in 283 F. 155 to 162, for a statement of the allegations of the bill.

The defendants, all except Mrs. Wilson, as the executrix of T. M. Wilson, who disclaims, answered the bill, and, as I understand their contentions, claim undivided interests in the lands contained in the "Hudnail grant," as heirs of two of the children of E. Hudnall, to the uplands of said grant,

discussion. Said objections insisted upon will be overruled.

[1] The first contention of defendants which I will take up is in respect to the title to the grant. The complainants contended that Hudnall acquired title from the Spanish government through the concession made by Gov. Coppinger to Hogan, who conveyed to E. Hudnall. The contention of the defendants is that this concession did not convey the lands, either in fee or equitably, but that when the commissioners, appointed to ascertain the private land claims under the Spanish government, confirmed the "Hogan grant" to the heirs of E. Hudnall, in 1826, and the report was approved by Congress, the heirs were then vested with title.

In considering this contention, it must be borne in mind that Gov. Coppinger, the Spanish Governor in 1817, made the concession to Hogan for 255 acres of land at the point asked in Hogan's petition, and ordered the lands surveyed, and that in a short time, about two months, the survey was made by the official surveyor, and plat made delineating the concession. It must be that these papers, the petition of Hogan, the concession by the Governor, and the report of the survey and plat purporting to show the lands surveyed in compliance with the concession, were duly returned to the proper officer, as either the originals or copies of same appear in the Spanish archives, delivered under the treaty of cession to the United States, and now in the custody of the commissioner of agriculture of the state of Florida, the custodian of same under the statutes.

I therefore find as a fact from the evidence that in 1817, before the cession by Spain of the Floridas to the United States, a valid concession of the lands in controversy was made to Hogan, and the concession was duly surveyed by the Spanish official whose duty it was to make surveys. As a