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Cited and principle applied in Lowe v. Williams, 94 U. S. 651, 24 L. 216, holding petition for removal, filed pending appeal in State court, properly refused; Railroad Co. v. McKinley, 99 U. S. 148, 25 L. 273, holding, after one trial, right to another must be perfected before removal can be granted; Gifkins v. Sweetzer, 102 U. S. 180, 26 L. 130, holding removal properly refused after final determination by State court; Alley v. Nott, 111 U. S. 476, 28 L. 492, 4 S. Ct. 496, holding hearing of demurrer, on ground that complaint states no cause of action, a trial, and removal not allowable thereafter; Fisk v. Henarie, 142 U. S. 466, 35 L. 1083, 12 S. Ct. 209, reversing S. C., 13 Sawy. 49, 32 Fed. 425, remanding where petition was filed after three trials in State courts; McCallon v. Waterman, 1 Flipp. 653, F. C. 8,675, remanding, where petition was filed after default entered and before same was set aside; In re Frazer, 9 Fed. Cas. 729, remanding where petition was filed after decree and pending appeal; Davis v. Chicago, etc., R. R., 46 Fed. 308, holding petition too late where made after trial, resulting in disagreement of jury; Galpin v. Critchlow, 112 Mass. 340, holding cause cannot be removed after trial, although it resulted in disagreement; Jones v. Foster, 61 Wis. 29, 20 N. W. 786, holding words “at any time before trial," mean any trial, and application thereafter, too late. Cited and applied conversely in Baltimore, etc., R. R. v. Bates, 119 U. S. 467, 30 L. 438, 7 S. Ct. 286, holding petition in time when filed after new trial granted; Melendy v. Currier, 22 Blatchf. 504, 22 Fed. 130, refusing to remand where petition was filed after granting of new trial; Whitehouse v. Continental Ins. Co., 2 Fed. 499, refusing to remand where petition was filed before pleadings were complete; Brodhead v. Shoemaker, 44 Fed. 523, 11 L. R. A. 569, and n., refusing to remand where petition was filed pending trial de novo in appellate court; Brayley v. Hedges, 53 Iowa, 584, 5 N. W. 749, affirming removal, petition being filed after granting of new trial. Approved in Metropolitan Ins. Co. v. Ethier, 44 Mich. 145, 6 N. W. 201, denying removal on other grounds; Sharp v. Gutcher, 74 Ind. 363, allowing removal on petition filed after demurrer heard and before trial. Cited in 13 Am. Rep. 295, note, on removal of causes, and 22 Am. Rep. 80, note, on removal of causes. Distinguished in Ayers v. Watson, 113 U. S. 597, 28 L. 1094, 5 8. Ct. 642, holding mistrial, by reason of jury disagreeing, does not defeat right of removal; Field v. Williams, 24 Fed. 514, and Hone v. Dillon, 29 Fed. 468, both holding cause removable after decision on demurrer; Stone v. Sargent, 129 Mass. 509, holding cause removable after hearing before auditor, but before trial by court.

Miscellaneous.- Wooster v. Handy, 23 Blatchf. 118, 23 Fed. 53, holding hearing means hearing of cause on its merits and submission to court; State v. Newman, 24 Fla. 40, 42, 3 So. 470, holding final trial means trial in court of original jurisdiction; Jackson v. Gould, 74 Me. 577, holding removal only authorized where Federal courts could have entertained cause originally.

21 Wall. 44-65, 22 L. 551, SCHULENBERG v. HARRIMAN.

Replevin. Where complaint in replevin alleges property and right of possession, and answer traverses directly, any evidence going to disprove property or right of possession is admissible, p. 59.

Cited and applied in Young v. Glascock, 79 Mo. 577, admitting, in replevin, evidence that goods belonged to third party; Bosse v. Thomas, 3 Mo. App. 477, holding, under general denial, defendant may show property in himself, under Missouri code; Stern Auction Co. v. Mason, 16 Mo. App. 475, holding any fact tending to disprove plaintiff's right of possession may be shown under general denial; Thomas v. Ramsey, 47 Mo. App. 94, holding proof of fraud in acquisition of plaintiff's title, admissible under general denial in conversion; Gallick v. Bordeaux, 22 Mont. 476, 56 Pac. 963, holding, under general denial of claim and delivery, complaint generally alleging title, any facts tending to rebut plaintiff's clai may be set up; Conner v. Knott, 8 S. Dak. 306, 66 N. W. 461, holding defendant in claim and delivery may show, under general denial, that goods belong to third party; Chamberlin v. Winn, 1 Wash. 503, 20 Pac. 781, where defendant, under general denial, proved stranger owner of property; dissenting opinion in Turner v. Langdon, 85 Mo. 441, holding evidence that title is in stranger, admissible in replevin, majority holding prima facie title of plaintiff not rebutted.

Cited, but application denied, in Jones v. McQueen, 13 Utah, 185, 45 Pac. 203, deciding case upon other grounds.

Adverse possession.— Admitted quiet and peaceable possession by plaintiff is prima facie evidence of title, throwing burden upon defendant of establishing contrary, p. 59.

Public lands.- Under act of June 3, 1856, granting to Wisconsin certain sections, and providing for their disposal by legislature, upon completion of sections of railroad, conveyance before such construction passed no title, p. 59.

Cited and relied upon in Farnsworth v. Minnesota, etc., R. R., 92 U. S. 65, 23 L. 535, holding, under similar statute, conveyance by State to railroad, before construction thereof, passed no title; New Orleans, etc., Ry. v. United States, 124 U. S. 130, 31 L. 385, 8 8. Ct. 420, holding conveyance by grantee, before compliance with condition, passed no title against government; Lake Superior, etc., Co. v. Cunningham, 44 Fed. 829, 831, holding conveyance of railroad lands by State, before completion of road, invalid; Swan v. Miller, 82 Ala. 538, 539, 1 So. 67, and Mathis v. Tennessee, etc., R. R., 83 Ala. 415, 3 So. 794, both holding such conveyance by State under said grant, incapable of subsequent ratification; Sioux City, etc.. R. R. v. Countryman, 83 Iowa. 180, 49 N. W. 75, holding grant by State, before lands were earned by railroad, invalid; Jackson,

etc., R. R. v. Davison, 65 Mich. 431, 32 N. W. 733, holding State conveyance prior to railroad's earning land, void; dissenting opinion in United States v. Loughrey, 172 U. S. 222, 224, 230, 19 S. Ct. 159, 160, 162, arguendo, government can recover for timber cut by grantee after breach of condition subsequent, but before forfeiture.

Distinguished in Winona, etc., R. R. v. County of Deuel, 3 Dak. 18, 12 N. W. 566, holding State can contract to convey to company on performance of conditions; Chicago, etc., R. R. v. Lewis, 53 Iowa, 114, 4 N. W. 852, holding State can grant its interest in such lands, subject to completion of road.

Publie lands.- Act of June 3, 1856, providing "that there shall be, and there is, hereby granted," to Wisconsin, certain lands, to be applied to aiding railroad construction, and subject to qualified legislative disposal, and upon failure of completion, to revert to United States, passed a present interest, imperfect until route was fixed, when it acquired precision, p. 60.

Cited in the following cases, construing the same and like grants: Missouri, etc., R. R. v. Kansas, etc., Ry., 97 U. S. 496, 24 L. 1097, construing act of July 1, 1862; Railway Co. v. Alling, 99 U. S. 475, 25 L. 443, construing acts of March 3, 1875, 1877, granting right of way; Wright v. Roseberry, 121 U. S. 500, 30 L. 1042, 7 S. Ct. 989, construing act granting swamp lands to Arkansas; St. Paul, etc., R. R. v. Northern, etc., R. Co., 139 U. S. 6, 35 L. 79, 11 S. Ct. 390, construing grant of July 2, 1864, and holding it in the nature of a float; United States v. Southern Pacific, 146 U. S. 593, 36 L. 1097, 13 S. Ct. 155, construing act of July 27, 1866; Schow v. Harriman, 154 U. S. 609, 22 L. 556, 14 S. Ct. 1209, construing same act; United States v. Loughrey, 172 U. S. 210, 19 S. Ct. 155, construing same act; Cahn v. Barnes, 7 Sawy. 53, 5 Fed. 331, and Pengra v. Munz, 12 Sawy. 238, 29 Fed. 834, construing Oregon wagon-road grant of July 5, 1866; Southern Pacific v. Dull, 10 Sawy. 512, 22 Fed. 493, construing act of March 3, 1871; Francœur v. Newhouse, 14 Sawy. 354, 40 Fed. 620, construing grant of August 2, 1862; United States v. Dalles Military Road Co., 14 Sawy. 393, 41 Fed. 496, and United States v. Wallamet Road Co., 14 Sawy. 488, 42 Fed. 357, S. C., 44 Fed. 240, construing military-road grants of February 25, 1867; Taboreck v. Burlington, etc., R. R., 2 McCrary, 410, 13 Fed. 104, holding title passed to specific sections on location of route; Koehler v. Barin, 25 Fed. 165, construing act of May 4, 1870; Wineman v. Gastrell, 53 Fed. 700, 2 U. S. App. 449, construing swamp-land grant of March 3, 1852, to Mississippi, and collecting cases; Winona, etc., R. R. v. County of Deuel, 3 Dak. 16, 12 N. W. 565, construing act of March 3, 1857; Washington, etc., Co. v. Northern Pacific, 2 Idaho, 518, 21 Pac. 659, construing act of July 2, 1864; State v. Portsmouth Bank, 106 Ind. 445, 7 N. E. 386, construing swamp-land grant of September 28, 1850; Wright

Gish, 94 Mo. 115, 6 S. W. 706, construing act of June 10, 1852, and holding subsequent patentee took no title; Northern Pacific v. Majors, 5 Mont. 130, 131, 133, 2 Pac. 328, 329, construing act of July 2, 1864, reviewing authorities; Atlantic, etc., R. R. v. Mingus, 7 N. Mex. 368, 34 Pac. 594, construing act of July 27, 1866; Northern Pacific v. Miller, 20 Wash. 34, 54 Pac. 607, construing acts of July 2, 1864, and May 31, 1870; Northern Pac. R. R. v. Wright, 54 Fed. 69, 7 U. S. App. 502, grant of 1864 to plaintiff, vested present title. Cited and principle applied also in Leavenworth, etc., R. R. v. United States, 92 U. S. 741, 23 L. 637, holding above words import present grant, although survey may be requisite to give precision; Wisconsin, etc., R. R. v. Price County, 133 U. S. 509, 33 L. 694, 10 S. Ct. 346, holding title perfected on identification of land, relates back for purposes of taxation; New York Indians v. United States, 170 U. S. 17, 18, 42 L. 933, 18 S. Ct. 534, holding grant of Kansas lands to Indians, agreeing to remove there, one in præsenti, reviewing cases; Southern Pacific v. Orton, 6 Sawy. 198, 32 Fed. 479, holding railroad grant of July 27, 1866, vested right from passage of act, attaching to specific land on filing plat; Denny v. Dodson, 13 Sawy. 75, 32 Fed. 903, where grantee, under like grant, maintained ejectment against subsequent settler; United States v. Curtner, 14 Sawy. 545, 38 Fed. 9, holding like grant (July 1, 1862), protected grantee against all parties until it became specific; Southern, etc., R. R. v. Wiggs, 14 Sawy. 575, 43 Fed. 338, holding like grant to plaintiff barred from passage, all other acquisition of lands included therein; Parker v. New Orleans, etc., R. R., 33 Fed. 697, holding grantee, under like grant, took mortgageable interest; Lake Superior Canal Co. v. Cunningham, 44 Fed. 834, holding like grant cut off subsequent claims to land included therein; Northern, etc., R. R. v. Cannon, 46 Fed. 227, where grantee maintained ejectment; United States v. Willamette Valley Road Co., 55 Fed. 717, holding purchaser from State, of lands similarly granted thereto, to aid road building, acquired good title irrespective of patent; Northern Pacific v. Musser, etc., Co., 68 Fed. 998, 34 U. S. App. 66, holding like grant (July 2, 1864) conveyed present interest, shutting out subsequent locators; Swan v. Lindsey, 70 Ala. 518, holding purchaser, under like grant, took present title, capable of supporting ejectment prior to completion of road; Swan v. Larmore, 70 Ala. 563, where purchaser from grantee, under similar grant, maintained ejectment; Worthen v. Ratcliffe, 42 Ark. 348, lands donated on condition subsequent, that improvements be made, vests on delivery of deed, subject only to defeasance by owner for breach; McNee v. Donahue, 76 Cal. 504, 18 Pac. 441, holding act of 1866, quieting titles in California, operated as a grant in præsenti of surveyed public lands; Savannah, etc., Ry. v. Davis, 25 Fla. 922, 7 So. 30, holding grant fixed beyond change upon adoption of route; Daggett v. Bonewitz, 107 Ind. 278, 7 N. E. 901, holding subsequent patent to land within like grant, without effect; Chicago, etc., R.

R. v. Grinnell, 51 Iowa, 483, 1 N. W. 718, holding location of road fixed grant, which could not be divested by subsequent act authorizing change of routes; Atchison, etc., R. R. v. Bobb, 24 Kan. 678, holding settlement on land subsequent to location of road, gave no right of pre-emption; Winona, etc., R. R. v. St. Paul, etc., R. R., 26 Minn. 181, 2 N. W. 490, holding subsequent grantee of lands included in said grant, trustee for railroad, for whose benefit grant was made; Winona, etc., R. R. v. Randall, 29 Minn. 286, 13 N. W. 128, where grantee maintained ejectment against subsequent patentee; Wunderlich v. Spradling, 121 Mo. 377, 378, 25 S. W. 1066, where grantee maintained ejectment against subsequent patentee; Wilson v. Beckwith, 140 Mo. 385, 41 S. W. 992, holding like act of February 9, 1853, conveyed present interest to State, unimpressed with lien or trust in favor of United States; United States Trust Co. v. Atlantic & Pacific R. R., 8 N. Mex. 686, 47 Pac. 728, holding grant of right of way, exempted from taxation one in præsenti, and territorial taxation thereof illegal; Wardwell v. Paige, 9 Or. 521, upholding title of locator, under act of September 4, 1841, granting land to Oregon against subsequent patentee; Tarpey v. Salt Co., 5 Utah, 499, 17 Pac. 633, where grantee under like grant maintained ejectment; Wisconsin Central R. R. v. Price Co., 64 Wis. 591, 26 N. W. 97, holding lands so granted, taxable by State from date of selection; dissenting opinion in Barden v. Northern Pac. R. R., 154 U. S. 336, 338, 340, 38 L. 1005, 1006, 14 S. Ct. 1041, 1042, 1043, holding such grant included interest in minerals on lands subsequently identified by route taken, majority contra; Lake Superior Canal Co. v. Cunningham, 44 Fed. 840, citing principal case generally; Atlantic, etc., R. R. v. Mingus, 7 N. Mex. 387, 34 Pac. 601, construing act granting land to plaintiff as grant in præsenti, agreeing with majority on this point.

Cited, but not applied, in St. Paul, etc., R. R. v. Brown, 24 Minn. 578, holding such grant a valid executory contract to convey; Heydenfeldt v. Daney Gold, etc., Co., 10 Nev. 309, 310, 316, holding whether grant to State (July 4, 1866) was present or not, Congress could, with State's consent, and prior to its disposal of lands thereby, change terms of grant. Qualified in Shepard v. Northwestern Ins. Co., 40 Fed. 348, 353, holding grant does not divest government's title to any particular sections until they are earned and selected; Northern Pacific v. Sanders, 46 Fed. 248, holding like grant does not operate to withdraw particular lands from sale until line of road is fixed; Musser v. M'Rae, 38 Minn. 411, 38 N. W. 104, holding title does not attach to specific sections until selection of route; Layton v. Farrell, 11 Nev. 455, holding grant does not attach to specific sections prior to survey, and does not attach to sections previously pre-empted, other lands being granted to State in lieu thereof.

Public lands. Unless there are other words in a statute, restraining operation of words of present grant, these must be taken

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