there settled by a series of decisions by the supreme court that the rights of municipal corporations in such property are not affected by adverse possession, however long continued. Hoadley v. City and County of San Francisco, 50 Cal. 265; People v. Pope, 53 Cal. 437; County of Yolo v. Barney, 79 Cal. 375, 21 Pac. 833; Orena v. City of Santa Barbara, 91 Cal. 621, 28 Pac. 268; Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145; Ames v. City of San Diego, 101 Cal. 390, 35 Pac. 1005. The bill does not set forth the precise nature of the defendant's claim of title to the land in controversy. It alleges only that the defendant claims some right of title to said lot adversely to the complainant. But that in fact it is the contention of the defendant that the land in controversy is, and for a considerable period of time has been, owned by it as a public park, was not disputed on the argument of the case, and it is attested by the defendant's official and public maps. The date when that contention had its inception, whether or not it was antecedent to the complainant's possession, or upon what grant or proceedings it is based, the bill does not disclose. It is clear, therefore, notwithstanding the averment of ownership in fee simple, that upon the facts alleged in the bill it is not shown that the complainant is the owner in fee simple of the premises in controversy. On the contrary, the bill contains allegations of fact which indicate that the legal title is vested in the defendant, that the defendant acquired such legal title by a patent from the United States under proceedings authorized by a statute of congress, and that, so far as the patent affects lands which, prior to the enactment of the statute, were held by lot holders under previous grants, it conveys the title in trust for such lot holders. The bill alleges also that the defendant has, so far as the complainant is concerned, violated the trust which was imposed upon it, and has asserted against him a title which was acquired for his benefit. It may be conceded that, if the bill does, in fact, show that the title so acquired was for his benefit, there can be no question of his equitable remedy. The estate in lands of a cestui que trust is one of which the law courts take no cognizance (Bagnell v. Broderick, 13 Pet. 436, 10 L. Ed. 235; Foster v. Mora, 98 U. S. 428, 25 L. Ed. 191; Langdon v. Sherwood, 124 U. S. 85, 8 Sup. Ct. 429, 31 L. Ed. 344), and unless it can be clearly seen that the statute of limitations has run against the trustee of an estate in lands, or that from circumstances or from lapse of time the presumption will arise that a conveyance of the trust property has been made to the cestui que trust, a court of equity is not required to relegate the latter to his legal remedy, since it cannot be seen with certainty that such remedy will be adequate. But the bill falls short of showing that the complainant is one of the lot holders "under grants from the pueblo, town, or city of San Francisco, or other competent authority." There is a general allegation in the bill that, "through his grantors, he is the lot holder of said lot under said grants from defendant's municipal predecessor," but that allegation is followed by an averment which specifically sets forth the nature of the alleged grant. The averment is that in the month of July, 1850, the complainant's grantors and predecessors 40 C.C.A.-26 in interest entered into the possession of the tract of land, and from that time until the year 1895 held the same adversely under a claim of title, etc.; "and thereupon your orator avers that, through his predecessors and grantors, he was and is, with respect to said lot, one of the lot holders under grants from the city of San Francisco, and one of the beneficiaries mentioned in the decree hereinbefore set forth." It thus appears that the complainant claims to be a lot holder, not under grants, but solely by virtue of an adverse possession, which had its inception two years prior to the time when the city of San Francisco filed its claim before the board of commissioners, upon which claim, and in final adjudication thereof, the decree referred to in the bill was rendered. Such adverse possession is not sufficient to show that the complainant, or any of his grantors, became, by reason thereof, a beneficiary of the trust, and of the title which was confirmed to the city of San Francisco, for he was not a lot holder under "grants from the pueblo, town, or city of San Francisco, or other competent authority." To lot holders under such grants the benefits of the title given to the city in trust extended, and to no others. Taking together all the averments of the bill, it does not appear therefrom that the complainant had such title or interest in the land in controversy as entitles him to relief. The demurrer to the bill for want of equity was properly sustained, and the decree will be affirmed. ROSS, Circuit Judge (concurring). The bill in this case, rightly construed, does not, in my opinion, show that the complainant, or any of his predecessors in interest, ever had any grant from the pueblo or city of San Francisco, but, on the contrary, that the complainant's alleged rights to the lot of land in controversy are based entirely upon a possession thereof held by him and his predecessors in interest in hostility to all the world, including the pueblo and city of San Francisco. The bill does not, therefore, show that the complainant, or any of his predecessors in interest, is, or ever was, a beneficiary of the decree of confirmation entered in the United States circuit court on the 18th day of May, 1865, under and pursuant to the act of congress of March 3, 1851. It therefore fails to show any equity in the complainant for the cognizance of a court of equity, and hence the demurrer was properly sustained, and the bill properly dismissed, by the court below. (100 Fed. 359.) MISSOURI, K. & T. RY. CO. et al. v. BYRNE. (Circuit Court of Appeals, Eighth Circuit. February 12, 1900.) 1. PLEADING-JOINDER OF CAUSES OF ACTION. A cause of action against a railroad company to recover damages on account of the defendant's negligence in the construction and maintenance of cattle yards at a shipping station, by reason of which certain cattle of plaintiff, placed in the yards while awaiting shipment, escaped, and were lost and injured, may properly be joined with a separate count to recover for the negligent killing of some of the same cattle by an engine on defendant's road. 2. EVIDENCE-TRANSACTION WITH AGENT SINCE DECEASED. There is no statute or rule of law in force in the Indian Territory which makes a party to a contract or transaction incompetent to testify to it because the agent of the other party, with whom the contract was made or the transaction had, is dead. 3. CARRIERS OF LIVE STOCK-DEFECTIVE YARDS-MEASURE OF LIABILITY. A railroad company which constructs yards by the side of its track to facilitate the loading and unloading of stock is not responsible as a common carrier for stock placed in such yards by the owner to await shipment, but is bound only to the exercise of ordinary care in the construction and maintenance of its yards. 4. NEGLIGENCE-ACTIONS-QUESTIONS FOR JURY. What was the proximate cause of an injury is ordinarily a question for the jury, and when it has been determined by them their finding is conclusive, unless it can be said that all reasonable men must draw a different conclusion from the facts of the case. Caldwell, Circuit Judge, dissenting. In Error to the United States Court of Appeals in the Indian Territory. Clifford L. Jackson, for plaintiffs in error. N. B. Maxey (G. B. Denison, on the brief), for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. SANBORN, Circuit Judge. On December 20, 1892, the assignors of Patrick J. Byrne, the defendant in error, were notified by the agent of the Missouri, Kansas & Texas Railway Company that it would furnish cars to ship their cattle the next morning, and that he should "bring his cattle in." Thereupon he drove them in, and put them in pens, at the station of Eufaula, which the railway company had constructed and maintained to facilitate the loading, unloading, and shipment of cattle. During the night the cattle broke down two posts and a corresponding portion of the fence, and 150 of them escaped from one of the pens. Nineteen of them were killed on or near the railroad track by an engine which ran into them,. 94 were recovered, and possibly 37 were lost. The defendant in error sought to recover for the cattle lost and killed, for the injury to those recovered, and for the expense of recovering them. In the complaint upon which the action was tried there were two counts, each for the recovery of the same items of damages, which amounted in the aggregate to $1,802.50. The first count charged that these damages were inflicted by the negligence of the company in constructing and repairing its cattle pens, and the second. charged that they were inflicted by the negligence of the company in running its engine upon the cattle after they had escaped from. the pens, and while its engineer might have seen them upon the track, and might have prevented the collision. The court thereupon. charged the jury, in effect, that, if they found that the railway company was negligent in the construction or maintenance of its cattle pens, they might return a verdict against it for such loss of the defendant in error as was the direct, natural, and proximate effect of that negligence; that the direct, natural, or proximate effect of a given cause was that effect which persons of ordinary judgment might reasonably conclude would follow such a cause as a result thereof; that, if the killing of the 19 cattle on the railroad tracks was the direct, natural, and proximate result of the negligence in maintaining the cattle pens, they should return a verdict for the cattle so killed, under the first count of the complaint; but if that killing was not the direct, natural, and proximate effect of that negligence, but was caused solely by their collision with the engine, then they could not return a verdict for the dead cattle under the first count of the complaint, but might do so under the second count, if they found that the railway company failed to exercise ordinary care in running the engine and train which struck them. The jury returned a verdict under the first count of the complaint for $743, and under the second count "for 19 cattle killed by train, at $25 per head, amounting to $475." In other words, the jury found that the killing of the 19 cattle by the engine on the railroad tracks was not the natural or probable effect of a failure to exercise ordinary care in the construction of the cattle pens, but that its proximate cause was the collision of the engine with them. There are numerous assignments of error. Some of them are that the court refused at the close of the trial to instruct the jury to return a verdict for the plaintiff in error upon the first count of the complaint; that it refused to instruct them to return a verdict in favor of the railroad company upon the second count of the complaint; that it denied the motion of the railway company to compel the defendant in error to elect upon which count he would proceed to trial; that it permitted Grayson, who had the transaction with the agent of the company, to testify to the conversation between them which induced him to put the cattle in the pens, although the agent was dead; and that the court refused to instruct the jury that the railway company did not receive the cattle for shipment, or take possession or assume charge of them by permitting them to be placed in the pens. There was no inconsistency between the causes of action set forth in the two counts of the complaint, and the motion to compel an election was properly denied. Both causes were based on the negligence of the company, and none of the facts essential to the maintenance of either cause were inconsistent with those that were indispensable to the maintenance of the other. Great Western Coal Co. v. Chicago G. W. Ry. Co., 39 C. C. A. 79, 98 Fed. 274. There is no statute or rule of law in force in the Indian Territory which makes a party to a contract or a transaction incompetent to testify to it because the agent of the principal with whom he made or had it is dead, and there was no error in the admission of the testimony of Grayson. Rev. St. § 858; Mansf. Dig. Ark. § 2857. It is undoubtedly a sound legal proposition that a railway company which permits stock to be placed in the pens which it has prepared by the side of its tracks to facilitate loading and unloading it does not thereby receive it for shipment, or take possession or assume charge of it as a common carrier or keeper. The limit of its liability is for the exercise of ordinary care in the construction and maintenance of its pens. But we hesitate to say that this proposition was not substantially given to the jury, although not in the words of the request of the company, and perhaps not as clearly and incisively as it might have been. There is, however, one assignment of error which must be sustained, and which renders a more extended notice of others unnecessary. It is that the court refused to instruct the jury that they must return a verdict for the railway company upon the second cause of action. The sole basis of that cause of action was the negligence of the engineer in running his train upon and killing the 19 cattle on the railway tracks, and the jury returned a verdict against the company for $475 on this account. A careful perusal of the entire record fails to disclose any evidence of negligence or dereliction of duty in the operation of the train which killed these cattle. They were bunched on the railroad track some distance from any station, in the night, when a train came along and struck them. The proof is plenary and undisputed that the engineer in charge of the train was watchful, active, and careful, and that after he discovered the cattle it was impossible for him to avoid a collision. In this state of the case the court should have instructed the jury that there could be no recovery on this cause of action. It is contended that this error is not fatal, because the killing of the cattle may be attributed to the negligence of the company in the construction and maintenance of its pens, which permitted the escape and the killing. It is said that there would have been no killing if there had been no escape, and no escape if there had been no negligence in maintaining the pens. But this contention ignores the real question in the case, and also the pregnant fact that the verdict of a jury has properly answered that question adversely to the major premise of the argument. The question was whether or not the negligence of the company in maintaining its cattle pens was the proximate cause of the killing of the 19 cattle on the railroad track by the engine. The mere fact that they would not have been killed if they had not escaped does not answer this question, for they would not have been killed although they did escape if they had not bunched themselves on the railroad track, or if the train had not come along and struck them at the exact moment when they were on the track and in its way. Post hoc is not necessarily propter hoc. The question was whether the killing by the engine was the natural and probable result of the negligence in the maintenance of the pens, not whether it was subsequent to that negligence, nor whether it would not have occurred in the absence of that negligence. An injury that is the natural and probable consequence of an act of negligence is actionable because that act is its proximate cause, but an injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, nor is an injury that is not the natural consequence of the negligence complained of, and that would not have resulted from it, but for the interposition of some new, independent cause that could not have been anticipated. The question, then, was whether the bunching of the 19 cattle on the rail |