boarding, clothing, and education of the childrer of said tribe." Id. 687-693.

After this treaty, and apparently for the purpose of protecting and fulfilling its provisions, various acts and joint resolutions were passed by congress, which are to be taken into consideration when disposing of this case.

A joint resolution was passed April 10, 1869, declaring: "That any bona fide settler residing upon any portion of the lands sold to the United States, by virtue of the first and second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indians, September twenty-ninth, eighteen hundred and sixtyfive, and proclaimed January twenty-first, eighteen hundred and sixty-seven, who is a citizen of the United States or shall have declared his intention to become a citizen of the United States, shall be, and hereby is, entitled to purchase the same in quantity not exceeding one hundred and sixty acres, at the price of one dollar and twenty-five cents per acre, within two years from the passage of this act, under such rules and regulations as may be prescribed by the secretary of the interior: provided, however, that both the odd and even-numbered sections of said lands shall be subject to settlement and sale as above provided: and provided, further, that the sixteenth and thirty-sixth sections in each township of said lands shall be reserved for state school purposes in accordance with the provisions of the act of admission of the state of Kansas: provided, however, that nothing in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties." 16 Stat. 55. In the act of July 15, 1870, making appropriations for the current and contingent expenses of the Indian department, and for fulfilling treaty stipulations with various Indian tribes, provision is made for the removal of the Great and Little Osage Indians, whenever they agree thereto, from their lands in Kansas, "to lands provided or to be provided for them for a permanent home in the Indian Territory," the lands so to be provided "to be paid for out of the proceeds of the sales of their lands in Kansas." The sum of $50,000 was appropriated to meet the expenses of such removal and to aid in subsisting the Indians during the first year, "to be reimbursed to the United States from the proIceeds of the sale of the lands of the said Indians in Kansas, including the trust lands north of their present diminished reservation, which lands shall be open to settlement after survey, excepting the sixteenth and thirty-sixth sections, which shall be reserved to the state of Kansas for school purposes, and shall be sold to actual settlers only, said I settlers being heads of families, or over twenty-one years of age, in quantities not exceeding one hundred and sixty acres, in square form, to each settler, at the price of one dollar and twenty-five cents per acre;

payment to be made in cash within one year from the date of settlement or of the passage of this act; and the United States, in consideration of the relinquishment by said Indians of their lands in Kansas shall pay annually interest on the amount of money received as proceeds of sale of said lands at the rate of five per centum, to be expended by the president for the benefit of said Indians in such manner as he may deem proper." 16 Stat. 335, 362.

By an "act for the relief of settlers on the Osage lands in the state of Kansas," approved May 9, 1872, it was provided: "That the Osage Indian trust and diminished reserve lands in the state of Kansas, excepting the sixteenth and thirty-sixth sections in each township, shall be subject to disposal, for cash only, to actual settlers, in quantities not exceeding 160 acres, or one-quarter section to each, in compact form, in accordance with the general principles of the preemption laws, under the direction of the commissioner of the general land office: provided, that claimants shall file their declaratory statements as prescribed in other cases upon unoffered lands, and shall pay for the tracts, respectively, settled upon within one year from date of settlement where the plat of survey is on file at that date, and within one year from the filing of the township plat in the district office where such plat is not on file at date of settlement." An actual settler upon those lands, who had failed to pay for and enter the land settled upon by him under the act of July 15, 1870, was given three months in which to file his declaratory statement, and he was required to prove his claim and pay for the land before January 1, 1873, interest at the rate of 5 per cent. to be paid from the day when payment should have been made under the act of 1870. 17 Stat. 90.

On the 23d day of June, 1874, congress passed an act declaring: "That all actual settlers upon the Osage Indian trust and diminished reserve lands in the state of Kansas shall be allowed one year from the pas sage of this act in which to make proof and payment: provided, that all purchasers who avail themselves of the provisions of this act shall pay interest on the purchase price of their lands at the rate of 5 per centum from the date when payment was required by previous laws to date of actual payment: and provided further, that no further extension of payment shall be granted than that provided for in this act, and that all occupants now upon said Osage lands shall file their application to purchase the lands occupied by them within three months after the passage of this act, or forfeit all right or claim to the same." 18 Stat. 283.

By an act approved August 11, 1876, providing for the sale of Osage ceded lands in Kansas to actual settlers, the privilege was given to any bona fide settler, a citizen of the United States, or who had declared his

52

intention of becoming such, and residing at the time of completing his or her entry, as in that act prescribed, upon any portion of the lands sold to the United States by the treaty of 1865-67 with the Great and Little Osage tribes, to purchase the same, not exceeding 160 acres, at the price of $1.25 per acre, within one year from the passage of the act, under such rules and regulations as may be prescribed by the secretary of the interior; the purchaser paying one-fourth of the price at the time of his entry, and the remainder, with 5 per cent. interest, in three annual payments, notes therefor to be given to the United States. 19 Stat. 127, 128, §§ 1, 3.

Then came the act of May 28, 1880, "for the relief of settlers upon the Osage trust and diminished reserve lands in Kansas." The first section gives 60 days after a day to be fixed by public advertisement in the proper land districts (not later than 90 days after the passage of the act) within which actual settlers on such lands may prove their claims and pay the purchase price, one-fourth in cash, and the balance in three annual installments. In case of default, the lands were to be sold as provided in the act. By other sections it is provided:

"Sec. 2. That

all the said Indian lands remaining unsold and unappropriated and not embraced in the claims provided for in section one of this act, shall be subject to disposal to actual settlers only, having the qualifications of preemptors on the public lands. Such settlers shall make due application to the register with proof of settlement and qualifications as aforesaid; and, upon payment of not less than one-fourth the purchase price shall be permitted to enter not exceeding one quarter section each, the balance to be paid in three equal installments, with like penalties, liabilities and restrictions as to default and forfeiture as provided in section one of this act. Sec. 3. All lands upon which such default has continued for ninety days shall be placed upon a list, and the secretary of the interior shall cause the same to be duly proclaimed for sale in the manner prescribed for the offering of the public lands, * but such lands * shall be sold for cash to the highest bidder at not less than the price fixed by law; and if any of said lands shall remain unsold after the offering as aforesaid, they shall be subject to private entry for cash in tracts not exceeding one quarter section by one purchaser." 21 Stat. 143, c. 107.

*

In the same year an act was passed-June 16, 1880-to carry into effect the second and sixteenth articles of the treaty of 1865, proclaimed January 21, 1867. The preamble of the act is as follows: "Whereas, by the act for the admission of the state of Kansas into the Union, approved January twenty-ninth eighteen hundred and sixty-one, the United States granted to said state the sixteenth and thirty-sixth sections of every township

of public landı în said state,' but especially provided that the lands embraced within the Indian reservations in said states should not be alienated for any purpose except with the consent of the Indians of such reservations, and in accordance with the conditions of the treaty authorizing such alienation; and whereas, by the treaty between the United States and the Great and Little Osage Indians, proclaimed January twenty-first eighteen hundred and sixty-seven, a trust was created for the disposal of the lands of said Indians in the state of Kansas, the metes and bounds of which said lands are specifically set forth in said treaty, by which the United States bound itself to convey and sell any and all of such lands ‘at a price not less than one dollar and twenty-five cents per acre, as other lands are surveyed and sold,' and to place 'the proceeds of such lands as they accrue, after deducting all expenses incident to the proper execution of the trust, in the treasury of the United States to the credit of said tribe of Indians;' and whereas it is claimed that under the operation of the treaty herein referred to there are moneys due, both on account of grants and sales of lands which have not been placed to the credit of said Indians, as provided for in said treaty."

The act provided: "That the secretary of the interior is hereby authorized and directed to cause an account to be stated of the number of acres of the Osage lands in the state of Kansas that have in any way been alienated by the United States, either by the act of January twenty-ninth eighteen hundred and sixty-one, entitled 'An act for the admission of Kansas into the Union,' or since the creation of the trust for the sale of these lands by the treaty between the United States and the Great and Little Osage In dians, proclaimed January twenty-first eight. een hundred and sixty-seven, and of the money received by the United States on account of the sales of such lands, and to certify the difference between the sum SO received and the sum that would be due said trust at the date of the account herein provided for had all of said lands so alienated been disposed of as provided for by said treaty. That a sum of money equal to the amount certified by the secretary of the interior, in pursuance of the foregoing section, to the secretary of the treasury, is hereby appropriated out of any moneys in the treasury not otherwise appropriated, which the secretary of the treasury is directed to place to the credit of the secretary of the interior, as custodian of said trust funds, and, after defraying the cost of survey and sale of said lands and other expenses contracted by the United States or the Osage Nation in the execution of said trust, the balance of said funds shall be placed in the treasury of the United States, to the credit of said Indians, to be invested and distributed in accordance with existing treaties: provided, that a like

tary of the interior, and on the 5th day of

sixth sections, given by the United States to the state of Kansas, within the limits of the Osage lands ceded by the first article of the treaty aforesaid." 21 Stat. 291, c. 251.

This brings us to the act approved December 15, 1880, the preamble of which declares that the Ft. Dodge military reservation was no longer needed for military purposes. That act made it "the duty of the secretary of the interior to cause all that portion of the Fort Dodge military reservation, in the state of Kansas, being and lying north of the land owned and occupied by the Atchison, Topeka and Santa Fé Railroad Company for right of way for its railroad; (and to cause the same) to be surveyed, sectionized, and subdivided as other public lands, and after said survey to offer the said lands to actual settlers only, under and in accordance with the homestead laws of the United States: provided, that the said Atchison, Topeka and Santa Fé Railroad Company shall have the right to purchase such portion of said reservation as it may need for its use adjoining that now owned by it, not exceeding 160 acres, by paying therefor the price at which the same may be appraised under the direction of the secretary of the interior." 21 Stat. 311, c. 1 (46th Cong. 3d Sess.).

The lands here in dispute are within the overlapping limits of the Osage trust and diminished reserve lands and of the Ft. Dodge military reservation, and lie north of the land owned and occupied by the Atchison, Topeka & Santa Fé Railroad Company for right of way for its railroad.

As already stated, Frost had in view, when making his entry, the provisions of the act of congress of December 15, 1880. He immediately settled on the land, and within six months built a house, and moved his family into it. One Boyd filed a pre-emption statement for the lots applied for by Frost, as well as for other lots. He subsequently relinquished all claim to so much of the land as conflicted with Frost's claim.

On the 5th day of November, 1881, Wenie, the appellee, filed his pre-emption declaratory statement for the land embraced in Frost's entry. He proceeded under the act of May 28, 1880. Wenie's, as well as Boyd's, application was rejected by the local land officers, and that ruling was sustained by tue commissioner of the general land office and by the secretary of the interior. Frost then proceeded to make his final proofs, and they were accepted by the local land officers. He paid $110.80 for the land, taking the benefit of section 2301 of the Revised Statutes, which allowed payment of the minimum price for land entered at any time before the expiration of five years.

Wenie appealed, but his appeal was dismissed by the commissioner of the general and office. He then appealed to the secre

versed the ruling of the commissioner. 6 Land Dec. 175. Thereupon the homestead entry of Frost was canceled, and Wenie was permitted to perfect his pre-emption filing of November 5, 1881. Upon a review of the decision of Acting Secretary Muldrow it was affirmed by Secretary Vilas. Id. 539. This decision was followed by one rendered by Secretary Noble, recognizing the previous ruling by his predecessor. 9 Land Dec. 588. On the 20th day of January, 1890, a patent was duly issued to Wenie.

It was admitted that Frost had previously exercised his right under the law, as a pre-emptor, to purchase Osage lands.

The decree below sustained the action of the interior department, and the bill, being held insufficient upon demurrer, was dismissed, with costs to the defendants.

W. T. S. Curtis, S. Shellabarger, and A. A. Hoehling, for appellant. Samuel F. Phillips, F. D. McKenney, and W. H. Lamar, for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The act of May 28, 1880, for the relief of settlers upon the Osage trust and diminished reserve lands in Kansas, provided that all of those Indian lands remaining unsold and unappropriated (and not embraced in certain claims which it is unnecessary here to mention) shall be subject to disposal to actual settlers only, "having the qualifications of pre-emptors on the public lands," each settler being permitted "to enter not exceeding one quarter section each."

The act of December 15, 1880, directed the secretary of the interior to cause all that portion of the Ft. Dodge military reservation lying north of the right of way of the Atchison, Topeka & Santa Fé Railroad to be surveyed, sectionized, and subdivided "as other public lands," and, after survey, "to offer the said lands to actual settlers only, under and in accordance with the homestead laws of the United States."

Only about one twenty-fifth part of the lands embraced in so much of the Ft. Dodge military reservation as is described in the last-named act were Osage trust lands. 6 Land Dec. 541.

Did congress intend, by the act of December 15, 1880, to open to entry by homesteaders lands of the class which, by the act of May 28, 1880, were opened to entry only by actual settlers having the qualifications of pre-emptors?

It is to be observed that, although the words of the act of December 15, 1880, are broad enough, if literally interpreted, to embrace all the lands within the abandoned Ft. Dodge military reservation north of the Atchison Railroad, there are no words in it of express repeal of any former statute. It

seaworthiness, especially when they form part of a long list of excepted causes, all the rest of which relate to matters arising after the commencement of the voyage. 43 Fed. 681, and 50 Fed. 567, affirmed. Mr. Justice Brown, Mr. Justice Harlan, and Mr. Justice Brewer, dissenting.

3. A memorandum of agreement for the shipment of cattle, specifying the terms of the contract, and signed by the shipper and the ship's agent, is merely preliminary to the bill of lading, and is superseded thereby; but, even if this were not the case, a stipulation in such memorandum that the shipper assumed all risk "of mortality or accident, however caused, throughact the voyage," is not to be construed as affecting the implied warranty of seaworthiness, but rather as applying only to matters arising after commencement of the voyage. 43 Fed. 681, and 50 Fed. 567, affirmed.

4. A carrier is liable for losses incurred on a shipment of cattle through shrinkage in weight and fall in market value, where the delay is occasioned by breach of the warranty of seaworthiness, although such breach was due to a hidden defect in the propeller shaft, not attributable to the carrier's negligence. 43 Fed. 681, and 50 Fed. 567, affirmed. Mr. Justice Brown, Mr. Justice Harlan, and Mr. Justice Brewer, dissenting on the ground that there is a clear distinction between the loss of or direct damage to goods on account of unseaworthiness, and losses arising from mere delay; and that for the latter the carrier is not responsible, when he has used due diligence to make the ship seaworthy.

5. Loss occasioned by fall in market value during delays attributable to the carrier's fault is not too speculative to form the basis of damages, where, at the time the contract of carriage was made, both parties knew and contemplated that the cattle were to be sold in a given market on the first possible market day after arrival. 43 Fed. 681, and 50 Fed. 567, affirmed.

Appeal from the Circuit Court of the United States for the District of Massachusetts. *This was a libel in admiralty by a shipper of cattle against the steamship Caledonia to recover damages caused by the breaking of her shaft. The district court decreed in favor of libelant (50 Fed. 567), and claimants appealed. The circuit court found the following facts and conclusions of law:

"This was a libel in admiralty, in a cause of contract, civil and maritime, by a shipper of cattle against the steamship Caledonia, to recover damages caused by the breaking of her shaft.

"The Caledonia was one of the Anchor Line of transatlantic steamships, owned and employed by the claimants, Henderson Brothers, as common carriers. The plaintiff was a dealer in and exporter of cattle. "The terms of the contract between the parties were as expressed in the following memorandum of agreeement, made before the shipment of the cattle, and in the following bill of lading, signed at the time of shipment, and afterwards accepted by the libelant:

"Memorandum of Agreement

"Concluded at New York, the twenty-fifth day of May, 1885, between Messrs. Henderson Brothers, 7 Bowling Green, New York, agents of the steamer Caledonia, hereinafter

described as "the party of the first part," and Mr. M. Goldsmith of New York, hereinafter described as "the shipper," of the second part.

""The agents of the steamer agree to let to said shipper suitable space, as under noted, for the transportation of live cattle; that is to say, on the steamship Caledonia, for about two hundred and seventy-five to three hundred head of cattle on and under decks. Steamer expected to sail from Boston for London about eleventh of June. The agents agree to fit the stalls in the style customary at the port of Boston, to the satisfaction of inspectors of Boston insurance companies and the shipper, who will assume all responsibility of same, and for various appliances of ventilation, after shipment of the cattle; and the steamer Caledonia undertakes to supply sufficient good condensed water for the use of the animals during the voyage. All water casks, buckets, hose, and similar appliances must be put on board by shipper of the cattle.

"A reasonable supply of fodder for the animals will be carried by the steamship Caledonia free of freight; but freight, if demanded, shall be payable on any unusual excess of fodder landed at port of destination. Hay and straw to be in compressed bales.

""The steamer Caledonia will also furnish free steerage passage for attendants (not exceeding one man to every thirty cattle) over and return, providing them with the necessary utensils for the voyage.

""The agents of the steamer agree to notify the said shipper, at least six days in advance, of the intended departure of the steamship, and, twelve hours prior to sailing, of the day and hour. In event of shipper failing to deliver the cattle to steamship within twenty-four hours after expiry of due notice as aforementioned, steamer is to have liberty to sail, and freight is to be paid in full by the party of the second part.

""The steamer Caledonia agrees to deliver the cattle at Deptford, and the shipper agrees to bear tonnage, dock, or shed dues when incurred. The cattle are to be delivered and received from steamship's decks immediately on arrival at the port of destination.

""The shipper agrees to ship all the cattle the steamship can carry as above mentioned, paying freight on same at the rate of forty-five shillings British sterling per bullock for all cattle shipped.

""The shipper agrees to prepay freight on the above-mentioned shipments in current funds at first-class bankers, selling rate for sight exchange, on the number of cattle shipped at Boston, vessel lost or not lost, and irrespective of the number landed at the port of destination; and the shipper assumes all risk of mortality or accident, however caused, throughout the voyage.

""The shipper agrees to deliver the cattle