Topeka to Atchison, we think completely answers the proposition, and leaves room for no other conclusion than that it would have been the duty of the court to set aside any verdict which had been rendered upon the contrary hypothesis.

2. It is insisted that, even if there was no proof of negligence on the part of the company because of its failure to move the cattle by way of Topeka to Atchison, they should have been detained at the Strong City and Wellington feeding stations "until the flood, which had been on in the Kaw River, had subsided." And, although argued as a separate proposition, involved in and connected with the contention just stated, it is urged that the railway company was negligent in deviating the shipments to Kansas City, thereby taking the cattle into the lowlands at the mouth of the river in front of the approaching flood. But we think these contentions are disposed of by the statement of the undisputed facts which we have heretofore made. Whether, irrespective of negligence, the railway company, as a matter of law, was without the lawful power when the break in the lines occurred to seek to discharge its duty to forward promptly, by sending the cattle via Kansas City, is a subject which we shall hereafter separately consider. The propositions we are now considering are, therefore, to be tested solely by considering whether there was any proof tending to show negligence in sending the cattle via Kansas City. That the stock yards at Kansas City under ordinary conditions were a fit connecting point to send the cattle, in view of the break in the line of connection to Atchison via Topeka, cannot be disputed. The propositions therefore reduce themselves to the contention that the flood conditions were such that it was negligence on the part of the carrier to send the cattle to Kansas City, because the railroad officials knew, or should have known, that it would be unsafe to send them to that point. We are of opinion, however, that the undisputed facts which we have recited, concerning the cligibility and safety of the stock yards at Kansas City under normal conditions, and the unexpected and unprecedented character of the flood which subsequently

engulfed those parts, entirely dispose of the contention. But the want of merit in the proposition does not alone depend upon these general considerations, as we think that the record abundantly shows that there was no reasonable ground whatever for the contention that the officers of the Atchison company were in any way lacking in diligence in endeavoring to ascertain the flood conditions and the probability as to a further rise in the river, which might render it hazardous to take the cattle to Kansas City. This is also indisputably shown by the negotiations with the Burlington and Missouri Pacific roads in respect to receiving the cattle at Kansas City as it is manifest that those officials, like all others concerned in the vast interests which were destroyed by the flood in question, had not the slightest suspicion, or reason to indulge in the suspicion, that a flood of such unprecedented and injurious proportions would come upon Kansas City. These considerations and those which we have previously stated effectually also dispose of the last contention as to acts of alleged negligence on the part of the railway company, viz., that the railway company was negligent in failing to move or cause to be moved the cattle from their position of peril in the stock yards at Kansas City before the arrival of the climax of the flood.

It remains only to consider the proposition that, irrespective of the absence of all negligence, the railway company was as a matter of law responsible, because of an alleged wrongful deviation, caused by carrying the cattle via Kansas City instead of via Topeka to Atchison, for delivery there to the Burlington road. No express agreement was shown to carry the cattle to Atchison via Topeka. But as that route was the usual and most direct one for such shipments, and as the owners were to be subjected to the expense of feeding en route, we shall assume, for the sake of argument, the best possible view for the plaintiffs, viz., that the duty of the railway company, under normal conditions, was to transport the cattle by that route. But this general duty, assumed though it be, was in the very nature of things restrained and limited by the right

of the carrier, in case of necessity, especially in order that it might carry on the operations of its road, to resort to such other reasonably direct route as was available under existing conditions to carry freight of this character to destination. By the admiralty law, a departure from the regular course of a shipment when done under the usage of trade is no deviation. Hostetter v. Park, 137 U. S. 31, 40. So, also, in Constable v. National S. S. Co., 154 U. S. 52, it was said: "In the law maritime a deviation is defined as a 'voluntary departure without necessity or any reasonable cause, from the regular and usual course of the ship insured.'" As we think the undisputed proof to which we have referred not only established the existence of the necessity for the change of route, but also, beyond dispute, demonstrated that there was an entire absence of all negligence in selecting that route, we are clearly of opinion that no liability was entailed simply by reason of the change, even if that change could in law be treated as a concurring and proximate cause of the damages which subsequently resulted. Affirmed.

ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY v. DONOHUE.

ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.

No. 440. Submitted January 10, 1908.-Decided May 4, 1908.

A homesteader who initiates a right to either surveyed or unsurveyed land and complies with the legal requirements may, when he enters the land, embrace in his claim land in contiguous quarter-sections if he does not exceed the quantity allowed by law and provided that his improvements are upon some portion of the tract, and that he does such acts as put the public upon notice as to the extent of his claim. Ferguson v. McLaughlin, 96 U. S. 174, distinguished.

Under the land grant act of August 5, 1892, 27 Stat. 390, chap. 382, the right of the railway company to select indemnity lands, non-mineral and not reserved and to which no adverse right or claim had attached or been initiated, does not include land which had been entered in good faith by a homesteader at the time of the supplementary selection, and on a re

Argument for Plaintiff in Error.

210 U.S.

linquishment being properly filed by the homesteader the land becomes open to settlement and the railway company is not entitled to the land under a selection filed prior to such relinquishment.

101 Minnesota, 239, affirmed.

THE facts are stated in the opinion.

Mr. Thomas R. Benton for plaintiff in error:

The right of Hickey under the homestead laws had not attached or been initiated to the land in controversy prior to and at the time of the selection of the land by the railway company under the act of August 5, 1892.

Hickey never in fact settled or resided upon, occupied or improved, or in any manner indicated an intention to claim the land in controversy under the homestead law, or otherwise, prior to the selection thereof by the railway company.

Hickey's settlement, improvement and occupation of lot 15 of section 4, was not a settlement, improvement or occupation of the land in dispute and was not a bar to the railway company's selection of the latter.

A settlement upon any part of a quarter-section is in legal effect a settlement upon that entire quarter section, Quinby v. Conlan, 104 U. S. 420, but a settlement on part of one quarter section is not in legal effect a settlement upon another quarter section or another section. Ferguson v. McLaughlin, 96 U. S. 174; Reynolds v. Cole, 5 L. D. 556; Brown v. Cent. Pac. R. R. Co., 6 L. D. 151; U. Pac. R. R. Co. v. Simmons, 6 L. D. 172; Hemsworth v. Holland, 7 L. D. 76; Pooler v. Johnson, 13 L. D. 134; Staples v. Richardson, 16 L. D. 248; Peasley v. Whitney, 18 L. D. 356; Perry v. Haskins, 23 L. D. 50; Kenny v. Johnson, 25 L. D. 394.

Hickey's homestead claim was not presented to the district land officers until after the allowance of the railway selection. It was subsequently relinquished and canceled and was not, therefore, a bar to the railway selection. Northern Pacific R. R. Co. v. Dean, 27 L. D. 462; Northern Pacific R. R. Co. v. Fly, 27 L. D. 464; Oregon &c. R. R. Co. v. United States, 190 U. S. 186; Shepley v. Cowan, 91 U. S. 330; Sturr v. Beck, 133 U. S. 541

210 U. S.

Argument for Defendant in Error.

The entry of the land in controversy by Hickey's heirs was never completed and did not operate to cancel the railway company's selection. Whitney v. Taylor, 158 U. S. 85; Norton v. Evans, 82 Fed. Rep. 804; Wagstaff v. Collins, 97 Fed. Rep. 5. The allowance of the Hickey homestead entry by the district land officers did not operate to cancel the railway company's selection which was still pending. Northern Pacific R. R. Co. v. Reed, 27 L. D. 651, cited by the court below, discussed and distinguished.

The abandonment and relinquishment of the Hickey homestead entry did not restore the land in controversy to the public domain and open it to entry by defendant in error under the timber and stone land law. The railway selection was pending and undetermined at the time of the relinquishment and cancellation of the Hickey entry. The land was not, therefore, open to entry by the defendant in error. New Orleans v. Payne, 147 U. S. 261, 266.

Mr. John R. Donohue, defendant in error, pro se:

The right of Hickey under the homestead laws of the United States had attached and was initiated to the land in controversy prior to and at the time of the attempted selection of said land by the railway company under the act of August 5, 1892.

The question of Hickey's settlement and occupation was at issue in the Land Department, and was by it found in favor of Hickey; giving to this the most favorable construction possible for the railway company, it was at best a mixed finding of fact and law, and as such was conclusive and controlling upon the court. Gertgens v. O'Connor, 191 U. S. 237; Vance v. Burbank, 101 U. S. 514; Moore v. Robbins, 96 U. S. 530; Carr v. Fife, 156 U. S. 494; Stewart v. McHarry, 159 U. S. 643; Aurora Hill Con. Co. v. Mining Co., 34 Fed. Rep. 515; Jefferson v. Hun, 11 Pac. Rep. 351; Calhoun v. Violet, 47 Pac. Rep. 179.

By reason of Hickey's settlement and the completion of entry by him and his heirs, the land in controversy was segregated from the mass of public land, and was not open for selec