having appeared specially, for the purpose of the motion only, there is no waiver of jurisdiction.

For the reasons here assigned, the motion to quash the service of summons will be allowed, and such will be the order of the court.

KUHN v. FAIRMONT COAL CO.

(Circuit Court, N. D. West Virginia. April 16, 1907.)

COURTS-FEDERAL COURTS-FOLLOWING STATE DECISION-RULES OF PROPERTY. Where the highest court of a state decided that a deed to coal underlying certain land did not contain an implied covenant obligating the grantee to sustain the surface, such decision became a rule of property, which would be followed by the federal courts as to land located in such state when called on to determine the effect of a similar deed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, §§ 958, 959. Conclusiveness of judgment between federal and state courts, see note to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters' Bank v. City of Memphis, 49 C. C. A. 468.1

Trespass on the Case. Upon demurrer.

H. W. Williams and Harvey W. Harmer, for plaintiff.
John Bassel, Z. T Vinson, and C. Powell, for defendant.

DAYTON, District Judge. Barton W. Kuhn, a citizen of Ohio, has brought this original action of trespass on the case against the Fairmont Coal Company, a West Virginia corporation, alleging himself to be the owner of a certain tract of land in Marion county, this state, containing 91 acres, the coal underlying which he on November 1, 1899, sold and conveyed to Johnson N Camden, "with right to enter upon and under said land, and to mine, excavate, and remove all of said coal, and remove upon and under the said land the coal from and under adjacent, coterminous, and neighboring lands, and also the right to enter upon and under the tract and make all necessary structures, roads, ways, excavations, airshafts, drains, drainways, and openings necessary or convenient for the mining and removal of the said coal and the coal from coterminous and neighboring lands to market"; that this right to the coal, by various conveyances, has vested in the defendant, Fairmont Coal Company, which has so mined it and removed the supporting pillars as to cause the surface to break, crack, rend, and sink so as to damage the value thereof, for farming and other purposes, to the extent of $10,000. To this declaration the defendant company has appeared, craved oyer of the deed set forth in the declaration, and, when read to it, has demurred and alleged that such declaration presents in law no cause of action against it.

It is this demurrer that I am to pass upon. It seems from the records and reports of the Supreme Court of Appeals of West Virginia that, prior to the institution of this suit, one Leander Griffin in the circuit court of Harrison county, this state, instituted a like action of trespass on the case, upon a contract or deed containing precisely the same covenants as to the removal of the coal that are presented here, claiming similar damages for injury to the overlying surface. This

action was heard by the state court, and it was by the judge thereof decided that, under the grant of the deed to the company of all the coal underlying the land and the right to remove the same, there was no implied reservation that the grantee must leave enough coal to support the overlying surface, and that no cause of action therefore existed in the plaintiff owner of such surface for damages done it by the mining out of the coal. To this judgment of the lower court a writ of error was sued out to the Supreme, Court of Appeals of the state, where the question was most elaborately considered after argument twice had, upon the original and rehearing, and that court, with but one dissenting voice, affirmed the holding of the lower court. Three very elaborate and able opinions are filed, two in affirmance and one for dissent, which cover some 50 pages-53 S. E. 24-75 (59 W. Va. 480, 2 L. R. A. [N. S.] 1115)-and in which the authorities, pro and con, are given and fully discussed.

The first question for me to determine is whether I should follow the construction of this contract thus given by the court of last resort of the state; for, if it is my duty so to do, under that construction, the plaintiff here will have no cause of action, and the demurrer must be sustained. It cannot be gainsaid that by the deed in controversy the plaintiff parted with his title to the coal underlying his land, and that, through this deed and subsequent conveyances, title to the same has become vested in the defendant company. This coal in its natural state is as much real estate as is the surface. This decision of the Supreme Court of Appeals of the state in the Griffith Case, containing precisely the same words of grant and covenant, must therefore be held to be one relating to the property right and title of the parties to real estate in West Virginia, and to establish the local law as to real estate so held. Without attempting to discuss the broad question of just when and to what extent federal courts will follow the decisions of state courts, which question has given rise to so much and to a considerable extent diverse opinion, it is sufficient to say that it is now settled beyond peradventure that the federal courts will in all actions at law follow and be governed by such decisions of the state courts of last resort which relate to and define the property rights and title to real estate within the confines of such states. In Jackson v. Chew, 12 Wheat. 153, 167 (6 L. Ed. 583), it is said:

"It has been urged, however, at the bar that this court applies this principle only to state constructions of their own statutes. It is true that many of the cases in which this court has deemed itself bound to conform to state decisions have arisen on the construction of statutes; but the same rule has been extended to other cases; and there can be no good reason assigned why it should not be, when it is applying settled rules of real property. This court adopts the state decisions because they settle the law applicable to the case; and the reasons assigned for this course apply as well to rules of construction growing out of the common law as the statute law of the state when applied to the title to lands. And such a course is indispensable, in order to preserve uniformity; otherwise, the peculiar Constitution of the judicial tribunals of the states and of the United States would be productive of the greatest mischief and confusion.".

In Bucher v. Cheshire R. R. Co., 125 U. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795, the Supreme Court has held:

"The courts of the United States adopt and follow the decisions of the high-
est court of a state in questions which concern merely the Constitution or laws
of that state; also where a course of those decisions, whether founded on
statutes or not, have become rules of property within the state; also in regard
to rules of evidence in actions at law; and also in reference to the common
law of the state, and its laws and customs of a local character, when estab-
lished by repeated decisions."

At page 583 of 125 U. S., page 974 of 8 Sup. Ct. (31 L. Ed. 795),
in the opinion in this case, Mr. Justice Miller defines "the rules of
property" referred to above to be those rules governing the descent,
transfer, or sale of property, and the rules which affect the title and
possession thereto. See, also, Hinde v. Vattier, 5 Pet. 398, 8 L. Ed.
168; Van Rensselaer v. Kearney, 11 How. 297, 13 L. Ed. 703; Christy
'v. Pridgeon, 4 Wall. 196, 18 L. Ed. 322; Williamson v. Suydam, 6
Wall. 723, 18 L. Ed. 967; Williams v. Kirtland, 13 Wall. 306, 20 L. Ed.
683; Walker v. Commissioners, 17 Wall. 648, 21 L. Ed. 744; Town-
send v. Todd, 91 U. S. 452, 23 L. Ed. 413; U. S. v. Fox, 94 U. S. 315,
24 L. Ed. 192; Barrett v. Holmes, 102 U. S. 655, 26 L. Ed. 291;
Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. 354, 33 L. Ed. 696; Ran-
dolph's Ex'r v. Quidnick Co., 135 U. S. 457, 10 Sup. Ct. 655, 34 L.
Ed. 200; De Vaughn v. Hutchinson, 165 U. S. 566, 17 Sup. Ct. 461,
41 L. Ed. 827; Traction Co. v. Mining Co., 196 U. S. 239, 25 Sup. Ct.
251, 49 L. Ed. 462.

But, in addition to all these authorities, I think the question deci-
sively settled by the case of Foster v. Elk Fork Oil & Gas Co., 90
Fed. 178, 32 C. C. A. 560, arising in this state and decided by the
Circuit Court of Appeals for this circuit, where it is held:

"The decisions of the courts of a state as to the construction and effect of
mining leases therein establish a rule of property which will be recognized and
followed by the federal courts."

No better case, it seems to me, could be found to illustrate the wis-
dom of this rule so uniformly upheld by federal decisions than the one
at bar. Suppose this court should not follow the ruling made by the
state court, but, on the contrary, should hold the opposite. In such
case, the right, title, and interest of this coal company in and to the
coal held by it under these contracts with identical terms would be whol-
ly dependent upon the residence of the several vendors. So long as
such vendor remained a citizen of West Virginia, he would be bound
by the decisions of the courts of the state holding the company to have
the unrestricted right to mine out and remove its coal in its entirety,
regardless of damage done to the overlying surface. The moment.
he became a nonresident he could appeal to this court, holding that
the company's right, title, and interest to its coal was limited by an en-
forceable implied liability to remove only so much thereof as could
be safely done without danger to the overlying surface. The mis-
fortune, not to say absurdity, of such a situation, makes uniformity.
of decision a necessity, and the Supreme Court has wisely held that,
whether federal courts in such cases may approve or disapprove of the
judgment of the state court, they will nevertheless follow them. A
striking illustration of this consistent course on the part of the Su-
preme Court appears when we remember that, in 1819, Chief Justice

Marshall rendered the opinion in Baptist Association v. Hart, 4 Wheat. 1, 4 L. Ed. 499, a Virginia case, wherein he held a devise to this religious body void, both as a conveyance to a voluntary association and as a charity, ruling that courts of equity had no power to administer such charities. This doctrine was reaffirmed in Kain v. Gibboney, 101 U. S. 362, 25 L. Ed. 813, another Virginia case, in 1879, although in Russell v. Allen, 107 U. S. 163, Mr. Justice Gray, at page 167, 2 Sup. Ct. 327, 27 L. Ed. 397, says the original case was decided upon an imperfect survey of the early English authorities, and upon the theory that the English law of charitable uses, which, it was admitted, would sustain the bequest, had its origin in the statute of Elizabeth which had been repealed in Virginia. That theory has since, upon a more thorough examination of the precedents, been clearly shown to be erroneous. Vidal v. Girard's Ex'rs, 2 How. 127, 11 L. Ed. 205; Perin v. Cary, 24 How. 465, 16 L. Ed. 701; Ould v. Washington Hospital, 95 U. S. 303, 24 L. Ed. 450. And the only cases in which this court has followed the decision in Baptist Association v. Hart have, like it, arisen in the state of Virginia, by the decisions of whose highest court charities, except in certain cases specified by statute, are not upheld to any greater extent than other trusts. Wheeler v. Smith, 9 How. 55, 13 L. Ed. 44; Kain v. Gibboney, 101 U. S. 362, 25 L. Ed. 813.

The demurrer to this declaration must therefore be sustained, as presenting in law no cause of action.

THE C. VAN COTT.

(District Court, S. D. New York. February 19, 1907.)

1. TOWAGE-LEAVING TOW AT END OF PIER IN EAST RIVER-LIABILITY OF TUG FOR INJURY OF TOW IN COLLISION.

A tug was chartered to tow a canal boat to a certain pier in East river, where she was to be shortly picked up by another tow and taken to her place of loading. On reaching the pier she was placed at the end of the same outside of three other boats also waiting for the same tow, where she remained in violation of the state statute until she was injured in a collision with another vessel. The evidence tended to show that the position was a convenient one from which to be picked up by the other tow, and that the master made no objection to the place, and the master of the tug testified that if objection had been made he would have placed her elsewhere. Held, that the tug was not in fault and could not be charged with liability for the damages resulting from the collision.

In Admiralty.

James J. Macklin and La Roy S. Gove, for libellant.
Alexander & Ash, for claimant.

ADAMS, District Judge. This action was brought by Thomas A Quigley, the owner of the canal boat William S. Deyo, to recover half of the damages sustained in consequence of a collision between the Devo and a boat in tow of the steamtug Chauncey M. Depew on the 15th of May, 1903. In the first instance all of the damages were sought to be recovered from the Depew and this court allowed a full

recovery. The Chauncey M. Depew (D. C.) 130 Fed. 59. On appeal, the recovery was reduced to one half on account of the Deyo lying at the end of the pier in contravention of the Laws of New York prohibiting vessels from so lying, 139 Fed. 236, 71 C. C. A. 362. The Van Cott towed the Deyo to the pier where she was injured and left her there.

The principal allegations of the libel are:

"Third: That on or about the 15th day of May, 1903, the said Propeller C. Van Cott for a valuable consideration took the said Canal boat William S. Deyo in charge to be towed to a place of safety to wait for the towing tug of the Port Reading tow; that the said Propeller C. Van Cott took the said canal boat in tow on the afternoon of that day and illegally and unlawfully left her at the end of the pier at 91st Street East River outside of three other boats which were lying at the said pier contrary to the provisions of the Statutes of the State of New York; that said canal boat was permitted to lie at the end of said pier till the evening of said day when the said canal boat was struck and seriously injured by a barge in tow of the Steamtug Chauncey M. Depew.

Fourth: That by reason of being left to lie at the end of said pier illegally and unlawfully by the said Propeller C. Van Cott the libellant was able to recover only one-half of his damages as aforesaid against the said Steamtug Chauncey M. Depew and the same was so decided by the United States Circuit Court of Appeals in an action by the libellant against the said Steamtug Chauncey M. Depew to recover the damages aforesaid."

The principal allegations in the answer are:

"Third: Claimant, upon information and belief, answering the third article of said libel admits that on the 15th day of May, 1903, the steamtug 'C. Van Cott' left the canal boat 'William S. Deyo' at the end of the pier at the foot of 91st Street, East River, outside of three other canal boats. That the master of said canal boat carelessly and negligently permitted her to remain there during the succeeding night until she was struck by a boat in tow of the tug 'Chauncey M. Depew'; and denies each and every other allegation contained in said article.

Seventh: On the afternoon of the 15th day of May, 1903, the steamtug 'C. Van Cott' was hired by the libellant to tow the canal boat 'William S. Deyo' from Astoria to the end of the pier at foot of Ninety-first Street, East River and leave her there for the Port Reading tow. Said canal boat at said time was light and was bound for a loading berth in the State of New Jersey. The northerly side of said pier is occupied by an ice company and vessels are not permitted to land there. On the southerly side the water is shallow, so it is not safe for tugs to enter the slip on that side of the dock. It is usual and customary for vessels bound for the Port Reading tow to be left temporarily at the end of the wharf, so that they can be readily taken in tow and brought to their destination by the tugs of said towing company. The Van Cott reached said place with said canal boat at about 6 P. M. The tide at the time was low water ebb and the weather clear. On her arrival she found three vessels were made fast abreast of each other at the outer end of the pier also waiting for the Port Reading tow, and the steamtug Van Cott, at the request of the master of said canal boat, made the Deyo fast outside of said vessels, and left her there in safety. It was the expectation at the time that she would be shortly picked up by the said Port Reading tow and taken thence to her loading berth. Said tug performed her said services carefully and properly in accordance with its contract with the master of said canal boat, and her bill for services was approved and paid.

Eighth: The damages complained of in the libel were not caused by or through any fault or act of negligence of said steamtug, but were caused by the fault and negligence of said canal boat in remaining during the night in her berth and in not hauling alongside of the southerly side of the pier which she could readily have done."