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ty, Wash. The case was tried to the court, and at the conclusion of the evidence of plaintiffs, judgment was ordered in defendants' favor. For convenience we use a map, which was introduced at the trial before the District Court.

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[1] By treaty, proclaimed April 11, 1859, between the United States and certain Indian tribes, the Indians ceded to the United States all their interest in a large part of the northwest portion of what is now the state of Washington, and by article 3 of the treaty there was reserved from out of the lands ceded 36 sections or one township of land on the northwestern shore of Port Gardner and north of the mouth of the Snohomish river and Tulalip Bay and Kwilt Ceda creek (platted as K-Will-Ceda), for the purpose of establishing thereon an agricultural and industrial school. 12 U. S. Stat. at Large, p. 927. On December 23, 1873, President Grant, by executive order, fixed the boundaries of the Tulalip reservation as follows:

"Beginning at low-water mark on the north shore of Steamboat slough at a point where the section line between sections 32 and 33 of township 30 north, range 5 east, intersects the same; thence north on the line between section 32 and 33, 28 and 29, 20 and 21, 16 and 17, 8 and 9, and 4 and 5, to the township line between townships 30 and 31; thence west on said township line to low-water mark on the shore of Port Susan; thence southeasterly with the line of low-water mark along said shore and the shores of Tulalip Bay and Port Gardner, with all the meanders thereof, and across the mouth of Ebey slough to the place of beginning."

246 F.-8

A survey of the reservation was made between August, 1873 and May 22, 1874, and thereafter an official map was made. This map was put in evidence, as were the field notes of the survey, together with a map upon which the field notes were platted. The latter map shows the tideland area deeded by the state of Washington to the predecessors in interest of the defendants, and what is called Smith Island and the tidelands attached to Smith Island, and part of the tidelands which have become the subject of this litigation appear.

The contention of the United States is that Ebey slough continues south far enough to include the triangular piece of tideland, and that the court erred in deciding that the mouth of Ebey slough was at a point which it is insisted is inside the slough and opposite the mouth of Kwilt Ceda creek. It is also argued that the southeastern boundary of the Indian reservation is not as fixed by the court, but follows in a straight line to the point of beginning across the mouth of Ebey slough, from the most southern tip, called Priest Point, of the reservation. Defendants' position is that the mouth of Ebey slough is as indicated in the government field notes, and that the southerly boundary of the Tulalip reservation is approximately a mile north of the north boundary of the tidelands in dispute. No controversy arises. over the east or north or west boundaries of the reservation; the decision depends upon what is the true southern bound. The sketch and maps introduced show that Ebey slough is one of several mouths of the Snohomish river. Steamboat slough, Union slough, and Ebey slough, and the Snohomish river, all empty into Port Gardner, and north of the tidelands involved; Ebey slough being the most northerly and approximately a mile north of Steamboat slough. The meander notes specifically fix the mouth of Ebey slough as approximately a mile north of the line which counsel for the United States would have determined to be the southerly boundary of the reserve, a straight line from the point of low water at the southernmost point of the reservation to the southeast corner of the reservation.

It is true that the language of the executive order names a course of the western boundary of the reservation as southeasterly, but the boundary line must run along the shore of Port Susan, and along the shores of Tulalip Bay and Port Gardner, "with all the meanders thereof, and across the mouth of Ebey's slough, to the place of beginning." But, as Ebey's slough empties into Port Gardner, meanderings thereof would be practically impossible before the point of beginning could be reached. It was therefore necessary apparently to aid the description in the executive order by inserting the words, "and across the mouth of Ebey's slough." We cannot depart from the requirement that the line of the water boundary of the reservation shall run coincident with the line of low-water mark along the shores of Port Susan, Port Gardner, and Tulalip Bay, "with all the meanderings thereof." These calls are definite. The maps prove that Port Gardner extends considerably north of the tidelands involved, and that the mouth of Ebey slough is a mile northward of them. The lands are separated from the reservation by a deep water channel on the north and west, and as no waters except Tulalip Bay and Kwilt Ceda creek are specifically granted by the terms of the treaty with the Indians, we think the true inter

pretation is that, inasmuch as Port Gardner extends north of the tidelands in dispute, the use of the words "and across the mouth of Ebey slough" is explanatory, rather than conclusively definitive.

Our conclusion is that the United States meant to grant to the Indians lands, with such accretions as might naturally belong thereto, but that there was no purpose on the part of the President to include tidelands which were wholly separated from the land of the reservation, and we think the District Court was correct in its view that the mere fact that the executive order reads "southeasterly with the line of low-water mark along the shore of and across the mouth of Ebey slough to the place of beginning," should not be held as fixing a line which extends across the waters of Port Gardner, but must be carried to the mouth of Ebey slough, notwithstanding the fact that such a course is not directly southeasterly to the point of commencement.

[2] It is contended by counsel for the United States that, even if it should be held that the tidelands in dispute are not within the boundaries of the Tulalip Indian reservation, nevertheless they belong to the reservation, because they are part of the reservation tidelands. It is admitted that the lands in dispute do not attach to any uplands of the reservation; and, this being so, such lands cannot be a part of the reservation tidelands, unless they are within the boundaries of the reservation. Furthermore, these particular tidelands do not constitute an island, but are attached to Smith Island, which is no part of the reservation. They have formed by accretion, but the accretion has been to Smith Island, and not to the Indian reservation lands. The judgment is affirmed.

(Circuit Court of Appeals, Fifth Circuit.

No. 3145.

November 7, 1917.)

1. MASTER AND SERVANT 278(18)—INJURIES TO SERVANT-JURY QUESTION. In an action against a railroad company for the death of a flagman run down by an engine, evidence held to warrant a finding by the jury that at the time he was struck the flagman was waving that flag, which meant that travelers could, with safety, use the crossing, and that the crossing was closed to engines and trains, despite a conflict in the testimony as to the color of the flag waved and that of the flag used to announce to travelers that the crossing was safe.



Where a flagman at a railroad crossing on a much-used street, after a long train followed by an engine passed the crossing, waved a flag, showing that the crossing was open to travel by the public, and continued to wave the same, it was not negligence per se for him to step on the track without looking to see whether the engine which last crossed was backing down the track, for one's doing or omitting to do what he has good and sufficient reason for believing he can safely do is not negligence, and the flagman had good reason to infer that an engine or train would not move over the crossing while he was waving the flag announcing that it was open to the public.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Negligence Per Se.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

3. MASTER AND SERVANT 289(30)—JURY QUESTION-CONFLICTING EVIDENCE. Where the evidence, in an action for the death of a railway flagman, as to his contributory negligence was conflicting, the question was for the jury.

In Error to the District Court of the United States for the Northern District of Alabama; Wm. I. Grubb, Judge.

Action by Mrs. Alice Maynord and E. R. Maynord, administrators of the estate of A. B. Maynord, deceased, against the St. Louis-San Francisco Railway Company. There was a judgment for plaintiffs, and defendant brings error. Affirmed.

Forney Johnston and W. R. C. Cocke, both of Birmingham, Ala., for plaintiff in error.

George P. Bondurant, of Birmingham, Ala., for defendants in error. Before WALKER and BATTS, Circuit Judges, and FOSTER, District Judge.

WALKER, Circuit Judge. This was an action under the Alabama Employers' Liability Statute (Code of Alabama of 1907, § 3910) by the administrators of the estate of A. B. Maynord, deceased, to recover damages for his death, which resulted from his being struck by the tender of an engine which was being backed along a railroad track, where it and several other tracks crossed a much-used part of a street in the city of Birmingham, Ala. The deceased was a flagman at this crossing. The waving of a red flag by him was a signal that an engine or train could go over the crossing, and was a warning to travelers on the street of danger at the crossing. The use by him of a flag of another color (one witness saying that the color was blue and others describing the flag as a green one) meant that it was safe for travelers on the street to go over the crossing.

Not long before the deceased was killed the engine the tender of which struck him had passed over the crossing while the red flag was being waved, headed in the direction opposite to the one in which it was backing when the deceased was struck. In going over the crossing it followed a long train, which continued to move beyond the crossing. After the engine got over the crossing, it was switched to another track, upon which it was backing over the crossing when the tender struck the deceased. There was evidence tending to prove that this backing movement was made while the deceased was waving the green or red flag, and while the crossing was being used by many travelers along the street.

[1] Some contentions made in the argument of counsel for the plaintiff in error (the defendant below) are based upon the suggestion that there was an irreconcilable conflict between the testimony of the witness who described the flag which he said the deceased was waving just before he was struck as a blue one and the testimony of the witnesses who said that the two flags which the deceased made use of were the red one and a green one. We are of opinion that it was open to the jury to find from the evidence as a whole that the flag the waving of which meant that travelers in the street could with safety use

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the crossing, and that it was closed to engines and trains, was a green flag, and that it was that flag which was seen by the witness who described it as blue. It well might be inferred that a witness of such an occurrence as the one in question in this case might get the impression that the color of a flag he saw used by the flagman was blue, though the fact was that it was green, and yet at the same time clearly distinguish that flag from a red one.

[2, 3] It is insisted in behalf of the plaintiff in error that the undisputed evidence showed that the deceased was guilty of contributory negligence, and that the court erred in refusing to give a requested instruction "that Maynord was guilty of contributory negligence in stepping or standing or remaining on or in dangerous proximity to the track on or near which he was injured, whether he was waving a green flag or a red flag or not." There was evidence to support a finding that prior to and at the time the deceased got on or very near to the track on which the engine and tender which struck him were backing he was waving the flag which meant that the crossing was closed to engines and trains and was safe for the use of travelers along the street, and that people and vehicles were moving over the crossing in both directions. If it was under such circumstances that the deceased approached the place at which he was struck, we are not of opinion that it was negligence per se for him to do so without first looking in the direction from which the engine and tender were backing. One's doing or omitting to do what he has good and sufficient reason for believing he can safely do or omit to do is not negligence. If the deceased had good reason to infer that an engine or train would not move over the crossing at the time he approached or got to the place at which he was struck, his going to or being at that place without looking for an approaching engine or train properly might be regarded as no more negligent than the conduct of a traveler along the street who went over the crossing in reliance on the invitation given by the signal of safety. The evidence on the issue of the deceased's contributory negligence was conflicting. The question was one for the jury. It follows that the quoted request for an instruction was properly refused. Birmingham Railway Light & Power Co. v. Hayes, 153 Ala. 178, 44 South. 1032; Louisville & Nashville, R. Co. v. Webb, 90 Ala. 185, 199, 8 South. 518, 11 L. R. A. 674.

In the trial issues were raised by the pleadings and the evidence as to the alleged negligence of the defendant's employés, as to contributory negligence of the deceased, and as to negligence of his coemployés after his peril was discovered by them. Complaint is made. of sundry rulings of the court in submitting these issues to the jury. Our conclusion is that no reversible error was committed in any ruling complained of. The questions presented are not deemed to be such as to call for further discussion or comment.

The judgment is affirmed.

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