277, 888 U. S. v. Telephone Co., 128 U. S. 352, 9 556 Page 291 ..171, 172 Walsh v. Sexton, 55 Barb. 251. Ward v. Todd, 103 U. S. 327, 26 L. Ed. 926 Warner's Est., 207 Pa. 580, 57 Atl. 35. 441 Warren v. Burt, 7 C. C. A. 105, 110, 58 Fed. 101, 106. Waterloo Min. Co. v. Doe, 27 C. C. A. 50, 82 Fed. 45. 597 688 Waterman v. Mackenzie, 138 U. S. 252, 255, 256, 11 Sup. Ct. 334, 34 L. Ed. 923. 596 Watkins v. Birmingham, etc., Co., 120 Ala. 147, 24 South. 392, 43 L. R. A. 297.. Watts v. Railroad Co., 39 W. Va. 196, 205, 19 S. E. 521, 23 L. Ř. A. 674, 45 Am. St. Rep. 894. 95 U. S. v. Waddell, 112 U. S. 79, 5 Sup. Ct. 36, 28 L. Ed. 673.... 180 634 U. S. v. Wroblenski (D. C.) 118 Fed. 496.. United States ex rel. v. Port of Mobile (C. C.) 12 Fed. 768.. 162 Wayne Knitting Mills v. Nugent (D. C.) 104 Fed. 530. 928 United States Savings & Loan Co. v. Har- 575 138 812 Valencia, The, 165 U. S. 264, 17 Sup. Ct. 976 Vane v. Newcombe, 132 U. S. 220, 238, 10 Sup. Ct. 60, 65, 33 L. Ed. 310. 461 Van Frank v. Brooks, 93 Mo. App. 412, 67 S. W. 688. 459 Van Frank v. Mfg. Co., 89 Mo. App. 573.. Veiths v. Hagge, 8 Iowa, 163, 174. 459 265 Victory, The, 168 U. S. 410, 423, 18 Sup. Ct. 149, 155, 42 L. Ed. 519. 69 Vintschger, In re (C. C.) 50 Fed. 459. 831 Volant, The, 1 Rob. A. 383. Volk v. Sturdevant, 39 C. C. A. 646, 99 Fed. 532..... 172 Western Union Tel. Co. v. Burgess (C. C.) 108 Fed. 26, 33.. 564 88 Waco Hardware Co. v. Stove Co., 33 C. C. A. 511, 91 Fed. 289. Wadd v. Hazelton, 137 N. Y. 215, 219, 220, 33 N. E. 143, 21 L. R. A. 693, 33 Am. St. Rep. 707.. Wadleigh v. Janvrin, 41 N. H. 503, 520, 77 Am. Dec. 780.. Western Union Tel. Co. v. Railroad Co., 178 U. S. 239, 20 Sup. Ct. 867, 44 L. Ed. 1052.. 594 483 Westinghouse v. Granite Co. (C. C.) 103 Fed. 951. 214 .290, 294 6 Wainer v. Insurance Co., 153 Mass. 335, Wager v. Hall, 16 Wall. 584-600, 21 L. Ed. 504.... .826, 827 Westinghouse Co. v. Roberts (C. C.) 125 Fed. 6. 215 452 448 Walcott v. Watson (C. C.) 46 Fed. 529.. 485 Walker v. Crews, 73 Ala. 412. 294 ..... Walker v. Miller, 8 C. C. A. 331, 59 Fed. 869 566 Whaley v. Lawton, 53 S. C. 580, 31 S. E. 660 968 CASES ARGUED AND DETERMINED IN THE UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS. PEYTON et al. v. DESMOND. (Circuit Court of Appeals, Eighth Circuit. February 15, 1904.) No. 1,878. 1. VENUE-ACTION TO RECOVER FOR TRESPASS TO REAL ESTATE-LOCAL OB TRANSITORY, ACCORDING TO LAW OF STATE WHERE BRought. Whether an action to recover pecuniary damages for trespass to real estate is real and local, or is personal and transitory, is essentially a matter of state policy or local law, and must be determined by the view taken of the nature of the action in the state in which it is brought. 2. SAME-MINNESOTA. In Minnesota an action to recover pecuniary damages for trespass to real estate in another state is viewed, not as relating to the real estate, but only as affording a personal remedy, and transitory. 3. SAME-PLEADING-ACTION TO RECOVER FOR CUTTING AND REMOVAL OF TIM BER-WHEN TRANSITORY. Where the facts stated and the relief demanded show that the gravamen of the action is the conversion of lumber manufactured out of trees wrongfully cut and removed from plaintiff's land by defendant, and that the purpose of the action is to recover the value of the lumber, and not damages for any depreciation in the value of the land, the action is transitory, although the trespass to the land is stated as illustrating the character of the conversion, and as bearing upon plaintiff's right to recover the value of the manufactured lumber. 4. SAME. The giving of an instruction in such an action, at the request of the defendant, that the measure of damages recoverable was the value of the logs as they stood in the trees, could not change the nature of the action, whether or not it stated the correct measure of damages; nor can it be invoked by defendant to defeat the jurisdiction of the court. 5. PUBLIC LANDS-PROCEEDINGS TO ACQUIRE TITLE-JurisdictiON OF LAND DEPARTMENT. The jurisdiction of the Land Department over public lands continues so long as the legal title remains in the United States, and the decisions and rulings of that department in proceedings to acquire title to such lands, prior to the act which passes the legal title from the government, are interlocutory, and are as much open to review or reversal by the 129 F.-1 Land Department, while the legal title remains in the United States, as are the interlocutory decrees of a court open to review upon the final hearing. 6. SAME-FINAL ACT OF LAND DEPARTMENT TERMINATION OF JURISDICTION. The issuance of a patent, or such other act as passes the legal title from the government, is the final act, and the expression and entry of the final judgment, of the officers of the Land Department, and marks the termination of the jurisdiction of these officers. 7. SAME-NOTICE OF PROCEEDINGS IN LAND DEPARTMENT. The power of the Land Department to review its prior rulings, and to cancel existing entries, while the legal title remains in the United States. is not unlimited or arbitrary, and can be exercised only after notice to parties in interest and due opportunity for a full hearing. 8. SAME CONVEYANCE BY ENTRYMAN PRIOR TO PATENT-RIGHTS ACQuired. One who purchases from an entryman, on the faith of a final receipt or patent certificate, before the issuance of a patent, takes only the equity of his vendor, subject to the authority of the Land Department to cancel the entry, while the legal title remains in the United States, if it is found that the entry is based upon an error of law or a clear misapprehension of the facts, which, if not corrected, will lead to the transfer of the government's title to one not entitled to it. 9. SAME-DECISION OF LAND DEPARTMENT AS TO MATTERS OF FACT CONCLUSIVE IN COLLATERAL PROCEEDING. The Land Department being a special tribunal to which Congress has confided the administration of the public land laws, the final judgment of that department as to matters of fact properly determinable by it is conclusive, when brought to notice in a collateral proceeding. 10. SAME-EFFECT OF STATE STATUTE. A state statute, purporting to regulate the effect of final receipts issued by the Land Department of the United States, cannot restrict the authority of the officers of that department in the disposition of the public lands, or withhold from the grantees of the United States any of the incidents of the transfer of the government title. 11. SAME-APPLICATION Of Doctrine OF RELATION. The doctrine of relation is applicable to public land transactions, and, where necessary to give effect to the intent of the statute or to cut off intervening claimants, the patent is deemed to relate back to the initiatory act. 12. SAME-HOMESTEAD PATENTEE-RIGHT TO RECOVER FOR TIMBER CUT AFTER INITIATION OF CLAIM AND BEFORE ISSUANCE OF PATENT. A patent issued under the homestead laws relates back to the initiation of the claim, and gives the patentee the right to recover the value of timber wrongfully cut and removed from the land after the initiation of his claim, as established by the patent proceedings, and prior to the issuance of the patent. In Error to the Circuit Court of the United States for the District of Minnesota. This action was brought in the Circuit Court of the United States for the District of Minnesota, Fifth Division, December 29, 1898, by George E. Desmond, a citizen of Wisconsin, against Hamilton M. Peyton and Levi A. Barber, citizens of Minnesota, and residents of the Fifth Division of the Minnesota District. The complaint alleged that the plaintiff made homestead settlement in 1890 upon a stated quarter section of public land in Wisconsin, containing merchantable pine timber aggregating 3,600,000 feet, board measure; that continuously thereafter he resided upon and occupied the land, and obtained a United States patent therefor May 16, 1898, by full and regular compliance with the homestead law; that in the winter of 1893 and 1894, 11. See Public Lands, vol. 41, Cent. Dig. § 315. |