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to do. The object of the writ is to enforce ter bis position. If he had any such rights, the performance of an existing duty, not to and desired to maintain them, he should have create a new one."

*abstained from putting himself in a position Moreover, the obligation must be both per where he voluntarily took advantage of the emptory, and plainly defined. The law must second opportunity to secure the work. A not only authorize the act (Com. v. Boutwell, party cannot avoid the legal consequences of 13 Wall. 526), but it must require the act to his acts by protesting, at the time he does be done. “A mandamus will not lie against them, that he does not intend to subject himthe secretary of the treasury unless the laws self to such consequences.

In the case of require him to do what he is asked in the Bank of U. 8. v. Bank of Washington, 6 Pet. petition to be made to do" (Reeside v. Walk 8, certain payments had been made to the er, 11 How. 272. See, also, Secretary v. Mc first bank upon a decision by the court be Garrahan, 9 Wall. 298); and the duty must low, with notice that the payer intended to be “clear and indisputable" (Commissioners take the case to be supreme court of the V. Aspinwall, 24 How. 376). Now, at the United States, and would expect the payee, time that this application was made for a the Bank of the United States, to refund the mandamus against Secretary Lamont, the re money if that court should reverse the deci. lator had entered into a contract to do the sion of the court below, and hold that it was work in question at a lower price than that not due. The court said: “No notice whatmentioned in the first advertisement and bid, ever could change the rights of the parties so and on different terms. This contract had as to make the Bank of the United States been entered into by bim voluntarily. We responsible to refund the money.” cannot perceive any duty which under these The whole case of this relator is covered by circumstances rested upon the secretary of Gilbert v. U. S., 8 Wall. 338, in which this war to sign such a contract with the relator court, through Mr. Justice Miller, said: "If as would be required by the mandamus the claimants had any objection to the provi. which is prayed. It cannot be reasonably sions of the contract they signed, they should contended that he is under any obligation to have refused to make it. Having made it sign two contracts with the same person for and executed their mouths are closed the same work at a different price and under against any denial that it superseded all predifferent conditions. Nor can it be urged vious arrangements.” The claim that the with any greater reason that the relator was purpose of the mandamus which is here askentitled to have signed a contract to do work ed is not to determine the existence of a con. for 19.7 cents per cubic yard, which he had tract, or of rights arising thereunder, but on. subsequently made a voluntary contract to ly to require the furnishing of evidence, simdo for 13.7 cents per cubic yard, and upon ply changes the form of the contention with. conditions different from those mentioned in out affecting its real merits. If, as we have his first proposal. In order to justify the is shown, there is no duty resting upon the secsue of the writ, then, it would be necessary retary to enter into the contract here claimed, for us to hold that the second contract was necessarily there can be no duty on his part void, and thereby to relieve the relator from to put into the hands of the relator evidence obligations which he has assumed, and release of the contract having been entered into. him from the binding force of terms and stip Judgment affirmed. ulations to which he has subjected himself. Inasmuch as no such duty as that which the granting of this writ would seek to enforce

(155 U. S. 252) exists, and no right subsists in the relator

THE BREAKWATER. which this writ could secure him, there is no ground for issuing it. The writ of man

THE BREAKWATER v. NEW YORK, L. E.

& W. R. CO. damus cannot be used to set aside a contract which has been voluntarily entered into. De

(December 3, 1894.) troit Free Press Co. v. State Auditors, 47

No. 61. Mich. 135, 10 N. W. 171.

COLLISION BETWEEN STEAMERS FERRY BOAT But, even if the writ of mandamus could be

LEAVING SLIP-CROSSING COURSES-DUTY

TO STOP AND REVERSE. so perverted as to make it serve the pur

1. In view of the large number of ferry poses of an ordinary suit, the relator is in no

boats plying between New York and the oppoposition to avail himself of such relief. He site shores, and of the necessity that their entered of his own accord into the second trips be made with great frequency and regucontract, and has acted under it, and has tak

larity, steamers plying up and down the river

should keep a sufficient distance from the en advantages which resulted from his ac

docks, and hold themselves under such control, tion under it, having received the compensa as to enable them to avoid ferry boats leaving tion which was to be paid under its terms.

their slips upon their usual schedules of time. Having done all this, he is estopped from de

2. A ferry boat left her slip at New York

on her regular trip across the North river, in nying the validity of the contract. Oregoni.

a strong ebb tide and northwest wind, at a an Ry.Co.v. Oregon Ry. & Nav. Co., 10 Sawy. time when a steamship coming up the river to 464, 22 Fed. 245. Nor does the fact that in

her pier above was 880 feet below the ferry

slip, and 400 feet out in the river; and a collie making his second contract the relator pro

sion between them occurred a short distance tested that he had rights under the first bet below the slip. Held, that no fault could be

266

263

*254

Imputed to the ferry boat in leaving at that which was operated by the New York, Lake time, it being clear that the collision might Erie and Western Railroad Company. The have been avoided by prompt and decisive action on the part of the steamship, after the fer

more northerly of those slips was bounded ry boat left the wharf, in keeping out of the on the north by a pier known as 'No. 20' (new way of the ferry boat, as required under the number), which was the first pier to the rules. 3. The ferry boat, as she began to move,

north of pier 29 (old number), and extended sounded the usual long, single whistle to warn

out into the river about 150 feet further than approaching vessels, and, receiving in reply a pier 29 (old number) and the piers below it single whistle from the steamship, proceeded Those slips were at the foot of Chambers with her helm hard a-port and her engine at full

street speed, the vessels meantime exchanging single whistles a second and third time. The steam "(3) Shortly before the collision the Pa. ship stopped her engine as she sounded her first vonia left her upper or northerly slip, on the whistle, but did not reverse until the ferry boat sounded her second whistle. Held, that rule 19

New York City side, on one of her regular became operative from the moment the ferry trips, bound to her slip across the river in boat got under way, and the steamship was in New Jersey, which latter slip was to the fault in not reversing promptly, it being evi north ward of Chambers street. dent that her doing so would have prevented the collision; but that the failure of the ferry

"(4) The distance from the upper or norther boat to stop and reverse was not a fault, as by ly rack of the slips at Chambers street to the slackening speed her tendency to sag down the upper or northerly side of the pier at Barclay river would have geen greatly increased.

street, which was the fourth street south of Appeal from the Circuit Court of the Unit Chambers street, was 88144 feet.

The upper ed States for the Eastern District of New slip at Chambers street was 8712 feet wide. York.

The whole slip was 200 feet wide. * This was a libel in admiralty for a collision “(5) At the time the Pavonia left her bridge, which took place on December 16, 1887, be the Breakwater was about off Barclay street, tween the steam ferry boat Pavonia, of the coming in from sea on one of her regular trips Erie Railway Line, as she was leaving her to her berth at the foot of Beach street, which slip at the foot of Chambers street in the was to the north of Chambers street. North river, and the steamship Breakwater, “(6) The tide was strong ebb, the wind was of the Old Dominion Line, as she was com. northwest, and the weather was clear. ing up the river to her berth at the foot of "(7) The Pavonia started to move slowly Beach street above the ferry slip.

out of her slip under a hard a-port wheel, * The collision occurred a short distance be. which was fastened in the becket, and so low the ferry slip, the Breakwater striking remained until the collision. As her bow the Pavonia on her port side a little abast emerged, the effect of the wind and tide was her wheel, and seriously damaging her. The to swing her bow somewhat down the river; libel charged the Breakwater with having but this swing was overcome before the colll. been in fault for not keeping out of the way sion, at which time her bow was on a swing of the ferry boat, as required by the star up the river. The wind and tide had the board-hand rule; and for coming up the river effect also to set her bodily down the river. too near the shore and at too great speed. Her course, from the time of her starting un. The answer attributed the collision either to til the collision, was the usual course of ferunavoidable accident, or to the negligence ry boats on leaving their slips under like cir. of the ferry boat in leaving her slip, either cumstances. The course of the Breakwater without seeing the Breakwater, or at a time from the vicinity of the Battery was along when, if she had seen her, she must have the New York docks. As she neared the known there was danger of collision in so Cortlandt street ferry slip she approached leaving.

closer to the docks, and from that time conThe district court found the Breakwater tinued on a course about 400 feet therefrom. to have been wholly in fault (39 Fed. 511), "(8) The Pavonia sounded the usual long, and upon appeal to the circuit court this de single whistle to warn approaching vessels cree was affirmed by Mr. Justice Blatchford as she commenced to move. Shortly thereaft. upon the following finding of facts:

er the Breakwater sounded in reply a single “(1) The steam ferry boat Pavonia, owned whistle, at which time the l'avonia was movby the New York, Lake Erie and Testern ing slowly, her bow having reached about the Railroad Company, and the steamship Break: outer end of pier 20 (new number). The Pawater, owned by the Old Dominion Steam vonia immediately replied by a single whis. sbip Company, collided with each other at or tle, which was answered by a single whistle about 1:50 o'clock p. m. on the 16th day of De from the Breakwater. The Pavonia, when cember, 1887, in the North river, about abreast her stern was about as far out as the outer of the middle of the slip between pier 28 (old end of pier 20, (new number), sounded anoth. number), known as the 'Fall River Pier,' and er single whistle to the Breakwater, which pier 29 (old number), known as the 'Provi. was answered by the Breakwater by a sin. dence Pier,' and about 400 feet out in the gle whistle. Before the collision the Pavonia river from the ends of those piers.

sounded alarm whistles. 2) Immediately adjacent to pier 29 (old "(8) As soon as the Pavonia received the number), and to the northward thereof, there first whistle from the Breakwater, her en. were two slips of the Pavonia or Erie ferry, gine was put to full speed ahead, and so con.

•256

tinued until the collision. As soon as the Edward L. Owen and Frank D. Sturges, Breakwater sounded her first whistle, her en. for appellant. F. A. Wilcox and Geo. B. gine was immediately stopped, and, when Adams, for appellee. the Pavonia sounded her second whistle, the engine of the Breakwater was immediately • Mr. Justice BROWN (after stating the put full speed astern.

facts in the foregoing language) delivered “(9) The speed of the Breakwater at the the opinion of the court. time she sounded her first whistle was about The principal contention of the appellant six miles an hour, but at the time of the col. is that the Pavonia was in fault for leaving lision her leadway by the land was almost her slip at the time she did, in view of the entirely, if not quite, stopped.

strong ebb tide, northerly wind, and the **(10) The stem of the Breakwater struck proximity of the Breakwater. the Pavonia on the port side of the latter a The facts were that, at the time tho Pa. little abaft her wheel, cut through her guard vonia left her bridge, the Breakwater was into her hull, and the Pavonia was thereby oft Barclay street, about 880 feet down the seriously damaged.

river, pursuing her course up the river abo.it "(11) If the engine of the Breakwater had 400 feet distant from the outer line of the been promptly reversed when she blew her piers. It is true that there was a strong ebb first whistle, her headway could have been tide and a northwest wind; but, although entirely stopped in going her length of 212 the effect of this was to swing the Pavonia's feet, and the collision would have been avoid bow somewhat down the river as it emerged ed.

from the slip, this swing, with the aid of her "(12) The New York, Lake Erie and West wheel, which was put hard a-port, was overern Railroad Company suffered damages by come before the collision, at which time her reason of the collision as follows, viz.: Re bow was on a swing up the river. While pairs to the Pavonia, $4,770.02, with interest the wind and tide had the effect of setting from February 1, 1888; demurrage, $2,800, her bodily down the river, this was an inwith interest from June 18, 1889.

cident which the pilot of the Breakwater "On the foregoing facts I find the following must or ought to have anticipated, and, being conclusions of law:

warned by the Pavonia's whistle that sho “(1) The Breakwater was in fault because, was about leaving her slip, ought also to haring the Pavonia on her own starboard have provided against. side, and being on a crossing course, she did In view of the large number of ferry boats not keep out of the way of the Pavonia, and plying between New York and the opposite in not taking into consideration the probable shores, sometimes as often as once in three and usual course of the Pavonia under the cir. or four minutes from the same slip, their cumstances of the tide and the wind, and in departure at any moment is a contingency not reversing her engine at the time she gave which ought to be reckoned upon and guardher first whistle.

ed against. There is a necessity that these “(2) The Pavonia was without fault.

transits be made with great frequency and "(3) In the suit brought by the New York, regularity, not only ia order that the public Lake Erie and Western Railroad Company it may be accommodated, but that ferry boats is entitled to a decree for $4,770.02, with in. arriving from the opposite shores shall not terest from February 1, 1888, and for $2,800, be compelled to lie in the stream, with a with interest from June 18, 1889, and for its chance of encountering other vessels, to

costs in the district court, taxed at $159.75, await the departure of their consorts from , and for its costs in this court, to be taxed.

the New York slip. Steamers plying up and “(4) In the suit brought by the Old Domin. down the river should*therefore keep a suffi. ion Steamship*Company, a decree must be cient distance from the dock, and hold thementered dismissing the libel and awarding to selves under such control, as to enable them the New York, Lake Erie and Western Rail

to avoid ferry boats leaving their slips upon road Company its costs in the district court,

their usual schedules of time. The respecttaxed at $41.95, and its costs in this court, to ive obligations of ferry boats and other be taxed."

steamers were fixed in accordance with this Subsequently, and upon motion of the claim. rule, by Judge Betts, as early as 1845, in the ant, the court made the following additional case of The Relief, Olcott, 104, Fed. Cas. No. finding:

11,693, in which he spoke of the rights of fer"The Breakwater is an iron steamer of ry boats “to an undisturbed passage between 1,100 tons' burden and 212 feet long. Before their landing places, in the performance of and at the time of the collision, her master, their duties in that capacity, as a species of chief officer, quartermaster, and a Sandy privilege or immunity not accorded to other Hook pilot, who was only a passenger, were

vessels,” and declared it to be the duty of in her pilot house. The second officer was on other steam vessels to keep as near as posthe forward deck, in front of the wheel sible to the center of the stream in passing up bouse."

and down, in order that the exit from and From the decree of the circuit court the entrance into the ferry slips should not be owners of the Breakwater appealed to this checked or embarrassed by the presence of court

other vessels passing close to them. This

* 263

practice has been acquiesced in for at least immediate effect of the wind and tide, strik. half a century, and has been repeatedly rec ing the ferry boat broadside, would cause her ognized by the local courts. The Favorita, to sag down the stream as she passed the 8 Blatchf. 539, Fed. Cas. No. 4,695; The Mon outer end of the pier, and was bound to proticello, 15 Fed. 474; The John S. Darcy, 29 vide against this contingency. This she failed Fed. 644; The West Brooklyn, 45 Fed. 60, to do effectively. As she sounded her first 1 C. C. A. 415, 49 Fed. 688; The Brooklyn, 62 whistle her engine was stopped, but not until Fed. 759. The Favorita was also affirmed by the Pavonia sounded her second whistle did this court upon a similar recognition of this she reverse. rule, 18 Wall. 598.

In this connection, counsel for the BreakIt is hardly necessary to say, however, that water claims that rule 19, requiring, in the It would not be applicable if the circumstan case of crossing steamers, that the one hav. ces were such as to indicate that it would be ing the other upon her starboard side shall impossible for an approaching steamer to keep out of the way of the other, has no apavoid the ferry boat. This seems to have plication. We think, however, the rule be been the case in The Columbus, Abb. Adm. came obligatory from the moment the* Pa384, Fed. Cas. No. 3,043, since it can hardly vonia got under way, when it became her be supposed that the judge who decided the duty to keep her course and speed, and that case of The Relief should have intended to of the Breakwater to avoid her. The Britanoverrule that case within three years without nia, 153 U. S. 130, 14 Sup. Ct. 795. It was at least calling attention to the fact. Per said by this court in the case of The Pacific haps, too, the practice here suggested might (Steamship Co. v. Rumball), 21 How. 372, 384, bu subject to some modification in a harbor and The Wenona, 19 Wall. 41, 52, that "rules less crowded than New York, where the of navigation, such as have been mentioned, transits of the ferry boats are made with less are obligatory upon vessels approaching each frequency. As Mr. Justice Davis remarked other from the time the necessity of precauin the case of The Favorita: "Manifestly, the tion begins, and continue to be applicable as rules of navigation must vary according to the the vessels advance, so long as the means and exigencies of business and the wants of the opportunity to avoid the danger remain." public. The rule which would be applicable Where rules of this description are adopted in a harbor where the business was light, and for the guidance of seamen who are unlearned the passage of vessels not liable to be *im in the law and unaccustomed to nice distincpeded, would be inapplicable in a great thor tions, exceptions should be admitted with oughfare like the East river.” As it is clear great caution, and only when imperatively rein this case that a collision might have been quired by the special circumstances mentioned avoided by prompt and decisive action on the in rule 24, which may exist in :ay particular part of the Breakwater after the Pavonia left case, rendering a departure from them necesthe wharf, and that with proper management sary in order to avoid immediate danger. there was no risk of collision, we think that The moment the observance or nonobservance no fault can be imputed to the latter in leav of a rule becomes a matter of doubt or discre ing at the time she did.

tion, there is manifest danger, for the judgWas she in fault for her manner of leaving? ment of one pilot may lead him to observe The finding is that, as she began to move, she the rule, while that of the other may lead sounded the usual long, single whistle to warn him to disregard it. The theory of the claimapproaching vessels, and, :s her bow reached ant that a vessel at rest has no right to start the outer end of the pier, she received in reply from her wharf in sight of an approaching a single whistle from the Breakwater. From vessel, and thereby impose upon the latter this moment, at least, the statutory rules of the obligation to avoid her, is manifestly navigation became operative, and required the untenable, and would impose a wholly unnecferry boat to keep her course and speed, and essary burden upon the navigation of a great the Breakwater to keep out of her way. But, port like that of New York. In the particular that there might be no misunderstanding as case, too, the signals exchanged between the to her intention, the Pavona again gave a steamers indicated clearly that the Breakwasingle whistle, in reply to that of the Break ter accepted the situation and the obligation water, and the latter answered by another imposed upon her by the starvvard-hand rule, single whistle. Finding 8 indicates, also, that and was bound to take prompt measures to the same signals were exchanged the third discharge herself of such obligation. time. Under these circumstances there cer No fault is to be imputed to the Pavonia tainly should have been no misunderstanding for her failure to stop and reverse, since it is as to the proposed movements of each vessel, quite obvious that if she had slackened speed and no misapprehension as to their respective ber tendency to sag down the river would duties. The Pavonia fulfilled her obligation have been greatly increased, and she would by keeping her wheel hard a-port and her en practically have been at the mercy of the gine at full speed, to counteract the tendency wind and tide. Her only safe course was to of the wind and tide to carry her down the do precisely as she did, -put her wheel hard river. The Breakwater knew, or was bound a-port and her engine at full speed. The to know, as well as the Pavonia, that the duty to slacken speed manifestly does not

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apply where the effect would be to carry a steamer bodily down the current upon another vessel which is trying to avoid her.

That the Breakwater did not reverse with sufficient promptness is evident from the fact that, at the time the Pavonia started, she was off Barclay street, a distance of nearly 900 feet, while the collision occurred abreast the slip immediately below the one from which the Pavonia started, or about 580 feet from where the Breakwater was when the Pavonia left her bridge, while, if the Break. water had promptly reversed, she would have stopped within her own length (212 feet) or about 300 feet below the spot where the collision took place.

Upon the whole, notwithstanding the earaest argument of appellant's counsel, we think the decision of the circuit court was correct, and its decree is therefore affirmed.

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(155 U. S. 354) LAKE SUPERIOR SHIP CANAL, RAILWAY & IRON CO. v. CUNNINGHAM.

(December 10, 1894.)

No. 49. PUBLIC LANDS-RAILROAD GRANTS SURRENDER

BY STATE WIEN AUTHORIZED GRANT OF LANDS INCLUDED IN PRIOR GRANT EFFECT FORFEITURE OF PRIOR GRANT CONFIRMATION OF TITLE OF SUBSEQUENT GRANTEE-HOMESTEAD ENTRY-Boxa FIDE CLAIMAST WHAT CONSTITUTES.

1 Act June 3, 1856 (11 Stat. 20), granted lands to Wisconsin to aid the Fond du Lac R. Co. Act June 3, 1856 (11 Stat. 21), granted to Michigan lands to aid railroads from Marquette to the Wisconsin state line, and from Ontonagon to such state line, and provided that the lands were subject to the disposal of the state "for the purposes aforesaid and no other," and that if the roads were not completed in 10 years the lands unsold should revert to the United States. Act Mich. Feb. 14, 1857, accepted such grant, and transferred the lands in aid of a road from Marquette to such state line to the Marquette R. Co., and the lands in aid of a road from Ontonagon to the state line to the Ontonagon R. Co. Such companies were afterwards absorbed by the Fond du Lac R. Co., and it filed in the general land office maps of definite location of its road. Its property subsequently passed by foreclosure to the c. & N. W. R. Co., and the land department certified lands along the line of such roads in satisfaction of the grants. By request of the latter company, the Michigan board of control, by authority of the legislature (Laws Mich. 1861, p. 123), conferred the grant to the Marquette R. Co., and its franchises, on the P. R. Co., and requested congress to authorize a relocation of its lands so as to conform to a new route to be adopted by it. Joint Resolution July 5, 1862 (12 Stat. 620), authorized the change, and provided that on the filing of a list of "the said railroad lands" in the land office, “as now selected and certified" in such office, with the certificate of the governor of surrender by the state, and nonincumbrance of such lands, the state should be entitled to a like quantity of lands on the new line. Prior thereto, congress authorized a relocation of the Fond du Lac line in Wisconsin, so as to connect with the new Marquette line. Joint Resolution Mich. Feb. 21, 1867 (1 Laws Mich. 1867, P. 317), authorized the governor to execute such certificate as to the land "on the original line of said road" from Marquette to the Wisconsin

state line. Hed, that the governor had no authority to execute a certificate of surrender and nonincumbrance of the lands granted in aid of the railroad from Ontonagon to such state line on a change of route of such road and of the main line in Wisconsin, and the release to the state of such lands by the C. & N. W. R. Co., and the making and filing of such certificate in the general land office, did not transfer the lands to the United States.

2. The facts that the original plan was to construct a main line from Fond du Lac northerly to the state line, and two branches thence to Marquette and to Ontonagon, respectively, and that the original route of the main line was abandoned, and a new route further east substituted, did not show an intent by congress and the legislature of Michigan to authorize a change of route of the road from Ontonagon to the Wisconsin state line, and a release to the United States of the lands granted along the line of the original route.

3. Acts March 3, 1865 (13 Stat. 519), and July 3, 1866 (14 Stat. 81), granted lands to Michigan to aid a ship canal and harbor at Portage Lake, Keweenaw Point, and Lake Superior. The state accepted the grants, and conferred them on a canal company, which completed the canal, and received a certificate of completion from the governor. The title to all of such company's property passed by foreclosure to a new company. Held, that the latter company obtained no title to lands selected by the state's agent appointed to make selections covered by such grants, with the ap proval of the secretary of the interior, which were part of lands granted by Act June 3, 1856, to aid in constructing a railroad from Ontonagon to the Wisconsin state line.

4. Act March 2, 1889, declares a forfeiture of lands coterminous with the uncompleted portion of any railroad in aid of which the grant of 1856 was made. Sections 2 and 3 provide that “this act” shall not prejudice any right of the Portage Lake Canal Co., or the Ontonagon R. Co., or any person claiming under them, to apply to the courts or congress for any relief to which they are entitled, nor any right of forfeiture "as hereby declared,” or recovery of the United States of any lands claimed by such companies, nor the right of any person claiming adversely to such companies or their assigns, under the laws of the United States; that when any lands forfeited by section 1, or for any cause resumed by the United States from grants for railroad purposes to Michigan, have heretofore been disposed of by the United States, or under state selections, confirmed by the secretary of the interior, under the public land laws, where the consideration received is retained by the government, the right of all persons holding under such disposals shall be confirmed, provided that, where the original cash purchasers are the present owners, this act shall confirm the title only of such cash purchasers as purchased without fraud, and in belief that they were thereby obtaining valid title from the United States, and that sales or entries in such state selection shall be confirmed, on which were bona fide pre-emption or homestead claims on May 1, 1888, asserted by actual occupation under color of the laws of the United States, and all such claims were confirmed. Held, that the title of the canal company was confirmed as to the lands selected and certified, with the approval of the secretary of the interior, in satisfaction of the canal grant, which were within the railroad grant to the Ontonagon R. Co., and which were forfeited by section 1, subject only to bona fide pre-emption or homestead claims existing May 1, 1888, asserted by actual occupation of the land, etc.

5. The term "homestead claim," in such act, includes a case of a person who, on May 1, 1888, was in the actual occupation of the land, with a view of making a homestead,

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