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admitted, the homestead entry of Turner | MILLER delivering its opinion: “The recupon the land in controversy excepted it from the operation of the land grant under which plaintiff in error claims title. The doctrine first announced in Wilcox v. Jackson, 13 Pet. 498, that a tract lawfully appropriated to any purpose becomes thereafter severed from the mass of public lands, and that no subsequent law or proclamation will be construed to embrace it, or to operate upon it, although no exception be made of it, has been reaffirmed and applied by this court in such a great number and variety of cases that it may now be regarded as one of the fundamental principles underlying the land system of this country. In Witherspoon v. Duncan, 4 Wall. 210, this court decided, in accordance with the decision in Carroll v. Safford, 3 How. 441, that "lands originally public cease to be public after they have been entered at the land-office, and a certificate of entry has been obtained;" and the court further held that this applies as well to homestead and pre-emption as to cash entries. In either case, the entry being made, and the certificate being executed and delivered, the particular land entered thereby becomes segregated from the mass of public lands, and takes the character of private property. The fact that such an entry may not be confirmed by the land-office on account of any alleged defect therein, or may be canceled or declared forfeited on account of noncompliance with the law, or even declared void, after a patent has issued, on account of fraud, in a direct proceeding for that purpose in the courts, is an incident inherent in all entries of the public lands.

ord shows that on July 25, 1866, Miller made a homestead entry on this land which was in every respect valid. It also shows that the line of definite location of the company's road was first filed September 21, 1866. In the language of the act of congress, this homestead claim had attached to the land, and it therefore did not pass by the grant. Of all the words in the English language, this word 'attached' was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the proper land-office, by which the inchoate right to the land was initiated. It meant that by such a proceeding a right of homestead had fastened to that land, which could ripen into a perfect title by future residence and cultivation. With the performance of these conditions the company had nothing to do." "It is argued by the company that, although Miller's homestead entry had attached to the land, within the meaning of the excepting clause of the grant, before the line of definite location was filed by it, yet when Miller abandoned his claim, so that it no longer existed, the exception no longer operated, and the land reverted to the company; that the grant by its inherent force reasserted itself, and exended to or covered the land as though it had never been within the exception. We, are unable to perceive the force of this proposition. *No attempt has ever. been made to include lands reserved to the United States, which reservation afterwards ceased to exist, within the grant, In the light of these decisions, the almost though this road, and others with grants uniform practice of the department has in similar language, have more than once been to regard land, upon which an entry passed through military reservations for of record valid upon its face has been made, forts and other purposes, which have been as appropriated and withdrawn from sub- given up or abandoned as such reservasequent homestead entry, pre-emption set-tions, and were of great value. Nor is it tlement, sale, or grant until the original understood that, in any case where lands entry be canceled or declared forfeited; in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws. The correctness of this holding has been sustained by this court in the case of Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. Rep. 566, and the principle applied to a railroad grant act, which contained the same exceptions as those embodfed in the act under which the plaintiff in error claims title to the tract in controversy. In that case a homestead claim had been made and filed in the land-office by one Miller, and there recognized by a certificate of entry, before the line of the company's road was located. Subsequently to the location he abandoned his entry, and took a title under the railroad company, and his homestead entry was canceled. One G. B. Dunmeyer then entered the land under the homestead law, claiming that, by the cancellation for abandonment, it had passed back into the mass of public lands, and was not brought within the grant; and upon that claim ousted the defendant in error, who afterwards brought his action against the railroad company for a breach of covenant, obtaining a judgment in the court below, which was afterwards affirmed by this court. The court said, Mr. Justice

had been otherwise disposed of, their reversion to the government brought them within the grant. Why should a different construction apply to lands to which a homestead or pre-emption right had attached? Did congress intend to say that the right of the company also attaches, and whichever proved to be the better right obtained the land?"

Counsel for plaintiff in error contends that the case just cited has no application to the one we are now considering, the difference being that in that case the entry existing at the time of the location of the road was an entry valid in all respects, while the entry in this case was invalid on its face, and in its inception; and that this entry, having been made by an agent of the applicant, and based upon an affidavit which failed to show the settlement and improvement required by law, was, on its face, not such a proceeding, in the proper land-office, as could attach even an inchoate right to the land. We do not think this contention can be maintained. Under the homestead law three things are needed to be done in order to constitute an entry on public lands: First, the applicant must make an affidavit setting forth the facts which entitle him to make such an entry; second, he must make a formal applica

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tion; and, third, he must make payment by the act of July 1, 1862, (12 St. 489,) and of the money required. When these three that of July 2, 1864, (13 St. 356,) and Sangrequisites are complied with, and the cer- er claimed under a subsequent patent tificate of entry is executed and delivered to which recited, among other things, that him, the entry is made,-the land is entered. the former patent had been erroneously isIf either one of these integral parts of an sued. The land in controversy had been entry is defective,-that is, if the affidavit within the boundaries of a claim made unbe insufficient in its showing, or if the ap-der a Mexican grant, which was pending in plication itself is informal, or if the payment the land department of the United States is not made in actual cash,-the register at the time the order withdrawing the railand receiver are justified in rejecting the ap- road lands from entry was made. The plication. But if, notwithstanding these Mexican claim was rejected a few days defects, the application is allowed by the thereafter because of its fraudulent characland-officers, and a certificate of entry is de- ter. Under that state of facts, the contenlivered to the applicant, and the entry is tion of the railroad company was that, the made of record, such entry may be after- Mexican claim having been declared invalid, wards canceled on account of these defects the land in controversy became subject to by the commissioner, or on appeal by the the operation of the granting acts, and secretary of the interior; or, as is often the therefore passed to the company. But this practice, the entry may be suspended, a court declared otherwise, and held that the hearing ordered, and the party notified to land never became subject to the grant, show by supplemental proof a full com- and that the claimant under the second pliance with the requirements of the depart-patent had the better title. ment, and, on failure to do so, the entry In addition to this, section 2308 of the may then be canceled. But these defects, Revised Statutes provides: "Where a parwhether they be of form or substance, by no ty at the date of his entry of a tract of land means render the entry absolutely a nul-under the homestead laws, or subsequently lity. So long as it remains a subsisting en- thereto, was actually enlisted and employed try of record, whose legality has been passed in the army or navy of the United States, upon by the land authorities, and their ac- his services therein shall, in the administration remains unreversed, it is such an appro- tion of such homestead laws, be construed priation of the tract as segregates it from to be equivalent, to all intents and purthe public domain, and therefore precludes poses, to a residence for the same length of it from subsequent grants. In the case be-time upon the tract so entered," etc. That fore us, at the time of the location of the com- act is a curative act, or, rather, one putpany's road an examination of the tract- ting a construction upon the prior act of books and the plat filed in the office of the 1864, under which the Turner entry was register and receiver, or in the land-office, made. The effect of it is to declare service would have disclosed Turner's entry as an in the army or navy of the United States entry of record, accepted by the proper by the applicant, at the date of an entry officers in the proper office, together with made under the act of 1864, equivalent to the application and necessary money,-an actual residence upon the land by him. In entry the imperfections and defects of which that view of the case the affidavit in the* could have been cured by a supplemental Turner entry was sufficient; for, in conaffidavit or by other proof of the requisite templation of law, he was then residing upqualifications of the applicant. Such an on the tract embraced in his entry. entry attached to the land a right which the road cannot dispute for any supposed failure of the entryman to comply with all the provisions of the law under which he made his claim. A practice of allowing such contests would be fraught with the gravest dangers to actual settlers, and would be subversive of the principles upon which the munificent railroad grants are based. As was said in the Dunmeyer Case, supra: "It is not conceivable that congress intended to place these parties [homesteading upon this court, in any sense. But on and pre-emption claimants on the one hand, and the railway company on the other] as contestants for the land, with the right in each to require proof from the other of complete performance of its obligation. Least of all is it to be supposed that it was intended to raise up, in antagonism to all the actual settlers on the soil, whom it had invited to its occupation, this great corporation, with an interest to defeat their claims, and to come between them and the government as to the performance of their obligations."

The conclusion at which we have arrived is in harmony with the later rulings of the land department. See Graham v. Railroad Co., (this case,) 1 Dec. Dep. Int. 382; Railway Co. v. Forseth, 3 Dec. Dep. Int. 446; Extension Co. v. Gallipean, Id. 166; Railway Co. v. U. S., Id. 479; Railway Co. v. Leech, Id. 506; Railway Co. v. Whitnall, 4 Dec. Dep. Int. 249; and many others of like tenor and effect. It is true that the decisions of the land department on matters of law are not bind

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questions similar to the one involved in this case they are entitled to great respect at the hands of any court. In U. S. v. Moore, 95 U. S. 760, 763, this court said: "The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. officers concerned are usually able men, and masters of the subject. Not unfrequently they are the draughtsmen of the laws they are afterwards called upon to A question somewhat analogous, in prin- interpret." See, also, Brown v. U. S., 113 U. ciple, to the one in this case, arose in New-S. 568, 571, 5 Sup. Ct. Rep. 648, and cases there hall v. Sanger, 92 U. S. 761. In that case, Newhall claimed under a patent issued to the Western Pacific Railroad Company, for land supposed to be within the grant made

cited; U. S. v. Railroad Co., 98 U. S. 334, 341; Railroad Co. v. Railroad Co., 112 U. S. 414, 418, 5 Sup. Ct. Rep. 208. Other subsidi ary questions have been argued by counse

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for plaintiff in error. but they are all virtually disposed of in the foregoing.

and superior title to that of plaintiff's, and the title to which is in the defendants in For the foregoing reasons we concur with this cause. X. B. SAUNDERS, W. T. RUCKthe court below that Turner's homestead ER, F H. SLEEPER, and A. M. MONTEITH, entry excepted the land from the operation Attys for Defendants."

of the railroad grant; and that upon the By this agreement it will be seen that cancellation of that entry the tract in ques-the sole question at issue was whether the tion did not inure to the benefit of the com-land in controversy was covered by the 11pany, but reverted to the government, and league grant to Maximo Moreno. A plat became a part of the public domain, sub- of that survey is found in the bill of excepject to appropriation by the first legal ap- tions. On the trial, which resulted in the plicant, who, as the record shows, was the judgment which we are now called to redefendant in error Julia D. Whitney, née consider, and which, as we understand it, Graham. The decree of the supreme court was the fourth time the case had been tried of Minnesota is affirmed. by a jury, the defendant introduced the deposition of F. W. Johnson, the surveyor (132 U. S. 394) who had made the survey under the Moreno grant. It seems that his deposition had been taken twice in this action, and, though the details of those trials are not before us,

AYERS et al. v. WATSON.

(December 9. 1889.) WITNESS-IMPEACHMENT.

On a fourth trial, where defendant intro-it had no doubt been used in them. But duces in evidence the deposition of a deceased witness, a deposition previously made by him in a suit between different parties, and containing statements inconsistent with the former, is not admissible to rebut it, where it has been used on three former trials during the witness' life, in each of which plaintiff cross-examined him, and did not refer to the previously made deposition.

In error to the circuit court of the United States for the northern district of Texas. W. E. Earle, for plaintiffs in error. W. Hallett Phillips, for defendant in error.

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prior to the trial which we are now reviewing he had died. It appears from the bill of exceptions that in these depositions he had been cross-examined by plaintiff's coun-> sel. Plaintiff, in rebuttal to this testimony of Johnson, offered in evidence a deposition of the said Johnson taken in 1860, in a suit between other parties, in which his testimony with regard to the matters to which he testified in the depositions offered by defendant varied materially from these latter depositions. To the introduction of this deposition of 1860 the defendants objected, MILLER, J. This is an action of eject- and, their objection being overruled, took ment brought by Watson, the original this exception. As we think the judgment plaintiff, in the district court for the coun- of the court below must be reversed on acty of Bell, in the state of Texas, and after-count of this ruling, all that relates to it in wards removed into the circuit court of the the bill of exceptions is here reproduced: United States for the northern district of"It was admitted by both parties that the that state. It was twice tried before a upper and lower corners on the river of the jury, which failed in each of these trials to Maximo Moreno 11-league grant are extant come to an agreement. It was tried a third as called for in the original grant to Maxitime, which resulted in a verdict and judg-mo Moreno, and their corners are not in ment for the plaintiff. A writ of error was dispute. The defendant read in evidence taken to that judgment, by which it was the depositions of F. W. Johnson, taken in brought to this court and reversed. The 1878 and 1880, in which he testified that he case is reported as Ayers v. Watson, 113 U. was principal surveyor for Austin's colony. S. 594, 5 Sup. Ct. Rep. 641. It was thereup- *The first survey made was the on remanded to the circuit court for a new Maximo Moreno 11-league survey. This surtrial, where a verdict was again had for vey was commenced at the point opposite the plaintiff, and the judgment rendered on the mouth of the Lampasas river, as called that verdict is before us for review. The for in the field-notes of the grant, and a details of the controversy may be found in line was run thence on the course called the report of the case above mentioned. for in the grant, the distance called for, the While it was pending in the district court chain being used to measure the distance. of Bell county the following agreement be- The north-west or second corner called for tween the parties was made, which simpli- in the grant was thus established by him, fies the case very much:*"A. E. Watson v. the distance giving out in the prairie. 'In Frank Ayers et al. It is agreed and ad-running the west line I made an offset to mitted by the defendants, for the purpose avoid crossing the Leon river, which was of this trial, at this term of the court, that about 50 or 60 varas wide. This offset was A. E. Watson, plaintiff in this cause, is en- made soon after leaving the beginning cortitled to all the right, title, and interest ner, there being a peculiar bend in the river granted by the state of Texas to the heirs at that point. From the north-west corof Walter W. Daws on September 16, A. D. ner thus established the second line was 1850, said land patented being one-third of run the course and distance called for in a league, described in said patent No. 542, the grant. Several streams were crossed vol. 8, and which said land is described in on this line at distances not now recolplaintiff's petition; but defendants say lected, and the north-east corner estabthat said one-third of a league of land so lished on two small hackberries in Cow patented as aforesaid to the heirs of Walter Creek bottom. From the north-east or W. Daws is covered by the grant of the gov-third corner so established a line was run ernment of Coahuila and Texas to Maximo in the course called for in the grant to San Moreno of eleven leagues of land, as set Andres river. This last line was marked, forth more fully in defendants' petition; but not measured, because it was not usual which said eleven-league grant is an older or necessary to measure the closing line.' It

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was admitted by the defendant that the dis- I have established the same principle, which tance as measured on the ground from the has thus become a rule of property in that north-east corner to a creek called for in the state, which should be followed in this case. grant was some four thousand varas more If the principles stated in the decision of the than the distance called for,-that is, the California court, and in the decisions of the distance is 7.500, instead of 3,500 varas; and supreme court of the state of Texas, were on cross-examination, being asked to ac- indeed applicable to the case before us, we count for the discrepancy, said the distances would hesitate very much in reversing the called on that line were not measured, but judgment on this ground, and, indeed, guessed at. No part of the east line was should be inclined, on the weight of those measured. The exterior lines were marked authorities, and in the belief that in the with blazes. The corner trees and bearing main they are sound, to overrule the extrees, where there were such, were marked ception. But the objection in the present' with blazes, with two hacks above and two case to the deposition of Johnson, taken, in below. In answer to a question, on cross-1860, does not rest upon the ground that it examination, he said that he did not begin is hearsay testimony, or that it does not the survey at the south-east corner, but he come within the general principle which began at the south-west corner, at the three admits declarations of persons made durforks, at the mouth of the Lampasas, and ing their life-time of matters important to actually traced the lines in the order set the location of surveys and objects showforth in the field-notes. "The field-book con- ing the line of those surveys. Johnson's taining the same, which I kept, I examined, deposition of 1860, if it stood alone and which I don't remember to examine until a was introduced upon the trial of this case month ago, and as herein before stated.' for the first time as independent testimony The plaintiff. in rebuttal to Johnson'stesti- in favor of plaintiffs, might be admissible. mony, as above set forth, it appearing that It is not necessary to decide that question said Johnson died in 1884, offered to read in because such is not the character of the cirevidence a deposition of said Johnson, taken cumstances under which the testimony was in 1860, in a certain suit then pending in Bell admitted. As we have already said there county, Tex., wherein David Ayers was had been three trials of this action, during plaintiff and Lancaster was defendant, in which Johnson was alive and was a comwhich he stated, in answer to a question petent witness for either party. All his testherein propounded, that he 'began the timony was given by way of deposition. Moreno survey at the south-east corner, This only renders the manner of taking it and ran thence northerly. The north line more deliberate, and if it was to be contrawas then run westwardly, and the third, if dicted by anything he had said on former run at all, was run southwardly to the riv- occasions, made it the more easy and reaer. I am of the opinion that no western sonable that plaintiff should have called his line was run, but was left open; but the attention to the former statements which eastern and northern lines were run and they proposed to use. It will be observed measured. It was not usual to measure that the plaintiffs did not introduce, or the closing line. To the reading of which offer to introduce, this deposition of Johnlast-mentioned deposition, proven to be in son of 1850 as a part of their case, when it the handwriting of Johnson, taken in 1860, was their duty to introduce their testithe defendants objected, upon the ground mony. They, therefore, did not rely on it that the deposition had been taken in an- as independent testimony in their favor. other and different cause, between other But after Johnson's deposition had been parties, before the institution of this suit; given in the case itself, and he had been and, the same witness having testified in cross-examined by the plaintiffs in that depanswer to interrogatories and cross-inter-osition in regard to his testimony, and aftrogatories propounded herein in 1877 and er he was dead and could give no explana1880, respectively, it was not competent as tion of his previous testimony of 1860, original evidence, nor admissible to contra- which might show a mistake in that depodict or impeach the testimony of the wit-sition, or give some satisfactory account of ness Johnson, as given in his deposition it consistent with his testimony in the prinread by the defendants, notwithstanding the death of Johnson; which objection the court overruled, and admitted the testimony so objected to; to which ruling of the court the defendants then and there except ed, and still except, and the same is allowed as exception No. 1."

A very earnest and able argument is presented to us to sustain this ruling, upon the general ground of the liberality of courts in admitting what would be otherwise called "hearsay evidence" in regard to boundaries, such as tradition, general understanding in the neighborhood, declarations of persons familiar with the boundaries and with the objects on the lines of the survey, and others of similar character. An opinion of Mr. Justice FIELD, delivered in the supreme court of California in 1860, in the case of Morton v. Folger, 15 Cal. 277, is much relied on in this case, and it is also said that the courts of the state of Texas

cipal case, this old deposition is for the first time brought forward to contradict the most important part of his testimony given on the present trial. The importance of this matter, as it was presented to the jury, will be readily understood when we revert to the fact that the two southern corners of the survey are established without question, and are found on the San Andres river, and the controversy concerns the question whether the east line and the west line of that survey, which are straight lines almost due north, extend so far north that the northern line between these lines is so far north as to include the survey of Daws, under which plaintiff claims. In the principal deposition of Johnson, as we have seen by the bill of exceptions, he states that this survey commenced at the southwestern corner on the San Andres river, and was run northward the distance called for in the grant, and actually measured by the

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chain. The north-west or second corner | is given orally in court before the jury, or called for in the grant was established by is taken by deposition afterwards read to him, the distance giving out in the prairie. them. In all such cases, even where the From the north-west corner thus estab-matter occurs on the spur of the moment lished, the second, the line was run for the in a trial before a jury, and where the obcourse and distance called for in the grant, |jectionable testimony may then come for and the north-east corner established on the first time to the knowledge of the optwo small hackberries on Cow Creek bot-posite party, it is the rule that, before those tom. From the north-east or third corner former declarations can be used to impeach thus established the course was run to the or contradict the witness, his attention San Andres river. This last line was marked, must be called to what may be brought but not measured, because it was not nec-forward for that purpose, and this must essary to measure the closing line. In an- be done with great particularity as to time swer to questions on cross-examination, and place and circumstances, so that he can he said he did not begin at the south-east deny it, or make any explanation intendcorner, but he began at the south-west cor- ing to reconcile what he formerly said with ner, and actually traced the lines in the or- what he is now testifying. While the courts der set forth in the field-notes. He said the have been somewhat liberal in giving the field-book, containing these notes, "I kept opposing party an opportunity to present and examined, which I do not remember to to the witness the matter in which they have examined till a month ago, as herein- propose to contradict him, even going so before stated." The deposition offered by far as to permit him to be recalled and plaintiff states distinctly that he began the cross-examined on that subject after he has Moreno survey at the south-east corner, left the stand, it is believed that in no case and ran thence northerly. The north line has any court deliberately held that after, was then run westwardly, and the third, the witness'* testimony has been taken, if run at all, was run southward to the riv- committed to writing, and used in the er. And he further says: "I am of the opin-court, and by his death he is placed beyond ion that no western line was run, but was left open, but the eastern and northern lines were run and measured. It was not usual to measure the closing line." It was admitted that the distance as measured on the ground from the north-east corner to a creek called for in the grant was some 4,000 varas more than the distance called for, and the witness on cross-examinations in the principal depositions read by the defendant in this case, being asked to account for this discrepancy, said: "The distances called on that line were not measured, but guessed at. No part of the east line was measured." The discrepancy between these two depositions is manifest, and that discrepancy is in a matter which relates directly to the question whether the Moreno grant as it was surveyed included the land embraced within the Daws grant, under which plaintiff asserts claim. If the jury believed in the truth of the depositions of Johnson taken by the defendant in this case, at which he was cross-examined by the plaintiff, it affords the strongest evidence that the Daws claim was included in the lines of the Moreno survey. This deposition is supported by the field-notes and by the reference of Johnson himself to those field-notes a very little while before he gave his deposition. If, on the contrary, the eastern line was the one which was actually run and measured, beginning at the south-east corner of the survey on the San Andres river, then the fact that that line was actually run and measured would probably have a very great influence in the mind of the jury on the question in issue. And, whether this was so or not, the contradictory statements of Johnson under oath might destroy the value of his testimony before the jury.

the reach of any power of explanation, then in another trial such contradictory declarations, whether by deposition or otherwise, can be used to impeach his testimony. Least of all would this seem to be admissible in the present case, where three trials had been had before a jury, in each of which the same testimony of the witness Johnson had been introduced and relied on, and in each of which he had been cross-examined, and no reference made to his former deposition, nor any attempt to call his attention to it. This principle of the rule of evidence is so well understood that authorities are not necessary to be cited. It is so well stated with its qualifications and the reasons for it, by Mr. Greenleaf in his work on Evidence, (volume 1, §§ 462-464, inclusive,) that nothing need be added to it here except a reference to the decisions cited in his notes to those sections. See, also, Weir v. McGee, 25 Tex.Supp. 32. It will thus be seen that the principle on which counsel for plaintiff in error objected to this deposition of Johnson is not in conflict with the case of Morton v. Folger, 15 Cal. 277, nor with any case to which we are cited, decided by the supreme court of Texas. That ground, as stated in the bill of exceptions, is "that the deposition had been taken in another and different cause, between other parties, before the institution of this suit; and the same witness having testified in answer to interrogatories and cross-interrogatories propounded herein in 1877 and 1880, respectively, it was not competent as original evidence, nor admissible to contradict or impeach the testimony of the witness Johnson, as given in his deposition read by the defendant, notwithstanding the death of Johnson."

We are very clear that the deposition of The circumstances under which the for- 1860 was improperly admitted, and its immer statements of a witness in regard to portant relation to the issue tried by the the subject-matter of his testimony, when jury was such that the judgment rendered examined in the principal case, can be in- on it must be reversed, and the verdict set troduced to contradict or impeach his tes- aside, and a new trial granted. There are timony, are well settled, and are the same other assignments of error, the considerawhether his testimony in the principal case | tion of which is not necessary in the decision