and break up the union thus formed; that is, to renew the break, and put the ankle straight; and so serious was the character of the injury, and the condition of the limb in which it was then found, that subsequently it had to be broken over again. This doctor further testified as to the painful character of the injury by reason of its location.

"Respondent seeks immunity from liability to the libelant because of calling in the doctors at Perth Amboy and Norfolk, and also to excuse itself for bringing libelant away from New York, instead of sending him to the hospital there, because, it claimed, the libelant did not ask to be either formally discharged or sent to the hospital. This will not do, even assuming the facts to be as contended for by the respondent, with which the court does not agree. No formal discharge of the libelant was necessary; his voyage had ended. Nor was it necessary for him to demand to be sent to a hospital. The duty imposed upon the ship was an affirmative one; that is, to care properly for a crippled seaman, and see that he was afforded prompt and proper medical and surgical treatment; and he should have been sent to the hospital in his then condition, and under no circumstances should the ship have put back to sea with a seaman, at the end of his voyage, in the crippled condition in which he was. Once countenance this conduct, and the custom would soon prevail for the substitution of the inexperienced officer of the ship, acting as doctor, in unsuitable quarters on shipboard, for the intelligent care and comfortable provision of crippled seamen at the hospitals of the country. In The Iroquois, 194 U. S. 240, 24 Sup. Ct. 640, 48 L. Ed. 955, supra, much the same contention was made as is here set up; that is to say, the defense was that the libelant made no complaint that the bones of his limb had not united, or of the failure of the master to turn about and put into a nearby port for medical treatment. But the court, speaking through Mr. Justice Brown, in discussing the first question said: 'Yet with a careful examination, such as the master was bound to make, we think he should have detected it' and in reference to the latter: 'We lay no stress on the fact that the libelant did not ask to be taken into an intermediate port. He was a boy, largely ignorant of his rights and duties. The master was his legal guardian, in the sense that it is a part of his duty to look out for the safety and care of his seamen, whether they make a distinct request for it or not. If, on arriving at Valparaiso, the bones were found not to have knitted together, there was at least a chance of securing their union by proper treatment. If, upon the other hand, they had united, there was a certainty of securing ultimate recovery by careful nursing, and by the use of facilities which the hospital undoubtedly would have, and which the ship had not. To put it in a light most favorable to the master, he speculated upon the chance that a union of the bones had taken place, without seeking to inform himself of the fact.' And in this same case the Supreme Court criticised the action of the ship's master in allowing a crippled seaman to remain in the forecastle of the ship, instead of placing him in the cabin, where he could have been more comfortably provided for. In that case, it is true, the injury was of a more serious character than here, though not more painful; and it may be said that there was not the same need for the transfer from the forecastle to the cabin; but manifestly, if upon reaching New York no relief was afforded the libelant, and he was taken back to sea at the end of his voyage, he should at least have received better treatment than to have been kept in the ship's forecastle.

"Thus far, the court has assumed that the libelant did not ask either to be discharged at New York or sent to the hospital. On these questions the evidence is conflicting. Libelant testifies one way, and the master the other. The court had not the benefit of hearing the master testify, as his evidence was taken by deposition; but it saw and observed the demeanor and conduct of the libelant on the stand, and was impressed with the truthfulness of his statement, and is therefore inclined to adopt his statement in this conflict, particularly as it is hardly possible that with an injury of this painful character he would either have wanted to be taken back to sea, or have failed to ask for all the relief and treatment which could be furnished him. The court is the more strengthened in this view from the fact that the ship's master seemed to have treated this injury as not serious; and according to libel

ant's evidence, when at the end of 10 days he insisted on going to the hospital, the master replied that there was nothing the matter with the leg-'Get up and get to work.' Whatever may have been the view of the master as to the character of the injury, and of the doctors who were called in, it should not operate to relieve from liability in this case, in the light of the relationship existing between the ship's master and its seaman, and the degree of care due to a seaman injured in the ship's service. The captain, in his evidence, says: "Could not see anything on his foot; but it was swelling up a little, and it was bent a little;' and the two physicians called in each testified as to its greatly swollen condition, and of their efforts to reduce the same.

"If the master and these two doctors did not know that this was a serious condition, or the doctors did not know the difference between a sprained ankle and broken ankle, certainly the consequences of such lack of information on their part ought not to be visited upon the libelant, and he denied a reasonable recovery for the suffering and additional injury he sustained as a consequence. He had no voice in the selection of doctors; was himself subject to the orders of the ship's master, and was confined on shipboard in a crippled condition, where he could secure no relief save through the ship's master; and he was not responsible in any sense for what was done; and, whatever may have been the motives of those acting, the fact is they were wrong in all they did-manifestly and patently wrong. To deny the right of recovery to the libelant would be to enable the ship's master, with a seaman having a broken ankle, to speculate on the chances of a sprained ankle, and visit the consequences of miscalculation, in addition to the suffering and affliction that ensued, upon the innocent seaman.

"In conclusion, the court thinks that an award of $500 should be made to the libelant for the additional suffering imposed upon him, and for the apparently aggravated character of the injury he sustained; the same to be paid in addition to all expenses incurred for medical treatment and cure of libelant, which in this case have been considerable, and on account of which the damages are fixed at so small an amount."

The decree complained of is without error, and is hereby affirmed.

ARCHER v. BEIHL.

(Circuit Court of Appeals, Ninth Circuit. February 6, 1905.)

No. 1,087.

1. ADVERSE POSSESSION-COLOR OF TITLE-PLEADING.

Where, in ejectment, defendant alleged title under a quitclaim deed from S., specifically describing the property, and alleged that said parcel "is a part of the identical property which is the subject of controversy in this action," and that, since the original entry on the lot by F., he and his grantees, of whom S. was one, had been in quiet, uninterrupted, open, and notorious possession thereof, etc., the answer sufficiently alleged that defendant claimed the land under the deed as color of title.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 646-650.]

2. SAME.

Where a quitclaim deed was claimed to have conveyed the property in controversy to defendant, and possession of at least a portion of the land in controversy was taken under the deed, it was sufficient to give color of title, though there was nothing contained therein showing that the grantor claimed any interest in the property at the date of its execution.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Adverse Possession, 88 415-427.]

3. SAME-INSTRUCTIONS.

Where, in ejectment, defendant claimed under a quitclaim deed as color of title, and it was impossible under any construction of the deed 136 F.-8

to make its description fit the premises involved in the action, it was error for the court to permit the jury to find for defendant for the whole of the property in controversy.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 463, 464.]

4. SAME EVIDENCE.

Where, in ejectment, defendant claimed by adverse possession, under a quitclaim deed, as color of title, it was error for the court to charge that the jury might find, from the bare fact that defendant testified that at the time he received the deed the grantor put him in possession, that the grantor at that time "had some right title or interest in the land, such as actual possession," and that defendant "did obtain some sort of title thereto by his acts and the surrender of possession by the other parties."

In Error to the District Court of the United States for the First Division of the District of Alaska.

The plaintiff in error and the defendant in error were respectively the plaintiff and defendant in the court below, and they will be designated by the latter terms in this opinion. The plaintiff brought an action of ejectment against the defendant to recover the possession of a portion of lot 1 in block 2 in the town of Douglas City, on Douglas Island, Alaska, described as follows: Beginning at a point on the north boundary line of B street, 150 feet northeasterly from the corner of said block No. 2 at the intersection of B and Fourth streets; thence northwesterly at right angles to B street across said lot 1, block 2, 50 feet; thence along the north boundary line of said lot in a southwesterly course toward Fourth street, 25 feet; thence at right angles to the last course, 50 feet, to B street; thence along the south boundary line of said lot to the place of beginning. The defendant answered, denying that the plaintiff ever at any time owned, occupied, or possessed the said premises, and alleging that in May, 1886, one Joseph Farnsworth entered the ground so described as lot 1 in block 2, which was at that time unoccupied, unpossessed, and unappropriated public land of the United States; that he caused certain improvements to be made on said lot according to the local rules and regulations made by the citizens of Douglas City, and caused a notice of his location to be recorded in the office of the local recorder of said town; that on November 19, 1886, he sold and transferred said lot to Wm. Nelson; that on February 24, 1890, said Nelson conveyed the same to Peter Roblin; that on March 3, 1895, said Peter Roblin conveyed the same to Mary A. Sakaloff; that prior to said last-named date, to wit, on May 5, 1894, the said Mary A. Sakaloff and her husband quitclaimed to the defendant, by a proper instrument in writing, a certain portion of lot 1, block 2, "being 25 feet in length and fronting toward the beach on Gastineaux Channel, together with the one-story frame building situated thereon," and that said parcel "is a part of the identical property which is the subject of controversy in this action." The answer further alleged that, ever since the original entry of said lot by Joseph Farnsworth, he and his grantees have been in the quiet, uninterrupted, open, exclusive, and notorious possession thereof up to the time of the said conveyance to the defendant, and the defendant ever since said last-named date has been in the quiet, uninterrupted, open, notorious, and adverse possession of the said property, and has made valuable improvements thereon of the value of $1,000, and that he is now the owner and in possession of all of said 25 by 50 feet of said lot 1 in block 2, together with the improvements thereon. The defendant in his answer expressly disclaimed any interest in or title to any part of the premises described in the complaint, "excepting the land conveyed to him by Mary A. Sakaloff and her husband." On the trial of the cause before a jury the plaintiff introduced in evidence a quitclaim deed from Wm. Nelson to Peter Roblin, of date February 24, 1890, quitclaiming all of lot No. 1 in block No. 2 in Douglas City, Alaska, according to the plat of said town made by Geo. W. Garside; a quitclaim deed from Peter Roblin to Mrs. Mary A. Sakaloft. of date March 3, 1895, quitclaiming the same property; a quitclaim deed

200 FT.

from Mary A. Sakaloff to Emery Valentine, dated April, 1897, quitclaiming the south 150 feet of said lot No. 1 in block No. 2; and a quitclaim deed from Emery Valentine and wife to Sarah Archer, of date June 12, 1897, quitclaiming the premises described in the deed last above mentioned. The plaintiff introduced also the evidence of Geo. W. Garside, the original surveyor of the town of Douglas City, who testified that the lines of Fourth street and B street run, according to the true meridian, very nearly northeast and southwest; and in connection with his testimony the plaintiff introduced in evidence a plat of the said block 2, showing that lot 1 was fractional, and did not include a triangle used for a saw mill site, marked by a line drawn from the point of junction of lots 1 and 2 on Third street to a point on B street some 20 or 25 feet northeast from the point of beginning

of the description of the tract in controversy, as set forth in the complaint. The plaintiff introduced also the evidence of M. B. Archer, her husband, who testified that when the plaintiff purchased from Mrs. Sakaloff she was put in possession of a house on the south end of said lot; that the defendant's house stood on the north end of said lot, partly on the lot and partly on B street, and that about one-half of said house was in the street; that about January, 1900, the defendant constructed a kitchen at the rear of his house on a portion of the lot covered by the plaintiff's deed; that the witness notified the defendant that he was on the plaintiff's ground, but that the defendant then stated that his deed "also covered 50 feet southerly from the intersection of the line of the mill site." He further testified that there was only about 20 or 25 feet between the mill site and the north end of plaintiff's ground, and that, measured along the line of lot 2, there was 50 feet of ground in lot 1 north of plaintiff's ground.

The defendant introduced a quitclaim deed to himself from Mary A. Sakaloff and husband, dated May 5, 1894, quitclaiming "25 feet in width and fronting north toward the beach and 50 feet in depth and being the northeast corner of Lot No. 1 in Block No. 2 as per plat of survey of said town of Douglas surveyed by Geo. W. Garside together with the one story frame

building and annexes thereto situated upon the above described premises." The defendant testified that at the time when he received said deed he was put in possession by the grantor of the ground in controversy, and had held such possession ever since. To this testimony the plaintiff objected, for the reason that the defendant in his answer had relied on his deed from Mary A. Sakaloff, and had pleaded no title by prior possession. The court overruled the objection, to which ruling the defendant excepted. The defendant further testified that the house on the north end of the lot referred to in his deed is partly on the ground in controversy. The court, in charging the jury, gave instructions, some of which were excepted to, and refused to give certain instructions requested by the plaintiff, to which the plaintiff excepted. The jury returned a verdict for the defendant, and judgment was rendered thereon for the defendant for the whole of the property in controversy. Among other instructions the court gave the following: "If you find that the deed from the Sakaloffs to Beihl conveyed a strip of land 25 feet in width across said lot, by 50 feet along the length of said lot, running from the northerly end thereof in a southerly direction, and that the buildings of Beihl are within the exterior boundaries of such piece or parcel of land, and that his rights are older, both as to the conveyance and possession, then you should find for the defendant, so far as that matter is controlled by the conveyance. If you find by the weight and preponderance of the evidence that the defendant had been in quiet, adverse, uninterrupted, and notorious possession of said strip of land 50x25 feet, a part of said lot in dispute in this case, under color and claim of title, for seven years or more prior to the bringing of this action, then his title thereto is conclusively clear against all persons except against the United States, and you should so find. * If you find from the evidence in this case that at the time of making said deed by the Sakaloffs to Beihl the Sakaloffs had some right, title, or interest in said land, such as actual possession, and they surrendered their possession and right of possession, and any buildings that might be thereon, to the said Beihl for a consideration, then the said Beihl did obtain some sort of title thereto by his acts and the surrender of possession by the other parties." To all of which instructions the plaintiff excepted, and he now assigns the same as error.

*

Malony & Cobb and Alfred Sutro, for plaintiff in error.

Z. R. Cheney and Lorenzo S. B. Sawyer, for defendant in error. Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court.

This record comes to us in a very unsatisfactory condition. The statement of the evidence in the bill of exceptions is terse in the extreme, and affords but meager information of the facts. There is no definite testimony as to the location of the house or lot, the possession of which was surrendered to the defendant by Mary A. Sakaloff. There is no testimony that that tract which in the deed to the defendant was described as a parcel 25 feet by 100 was ever pointed out to the defendant, or was inclosed or in any way marked on the ground, or that the defendant ever actually or visibly occupied any precise tract of ground by using the same or marking the same or exercising acts of ownership over it. The deed under which the plaintiff claims from Mary A. Sakaloff is the south 150 feet of lot 1. There is no difficulty in determining the location of the premises so conveyed. They include the land in controversy. The quitclaim deed under which the defendant claims was made a year before Mary A. Sakaloff had acquired any title or right of possession of record. It quitclaimed a parcel "25 feet in width front