the act of Congress of April 30, 1900, 31 Stat. 141, 142, c. 339, to provide a government for the territory of Hawaii, are as follows:

"Section 1. That the phrase 'laws of Hawaii,' as used in this act without qualifying words, shall mean the Constitution and laws of the Republic of Hawaii in force on the twelfth day of August, eighteen hundred and ninetyeight, at the time of the transfer of the sovereignty of the Hawaiian Islands to the United States of America. The Constitution and statute laws of the Republic of Hawaii then in force, set forth in a compilation made by Sidney M. Ballou under the authority of the Legislature, and published in two volumes, entitled 'Civil Laws' and 'Penal Laws,' respectively, and in the Session Laws of the Legislature for the session of eighteen hundred and ninety-eight, are referred to in this act as 'Civil Laws,' 'Penal Laws,' and 'Session Laws." "Sec. 5. That the Constitution, and, except as herein otherwise provided, all the laws of the United States which are not locally inapplicable, shall have the same force and effect within the said territory as elsewhere in the United States: provided, that sections eighteen hundred and fifty and eighteen hundred and ninety of the Revised Statutes of the United States shall not apply to the territory of Hawaii.

"Sec. 6. That the laws of Hawaii not inconsistent with the Constitution or laws of the United States or the provisions of this act, shall continue in force, subject to repeal or amendment by the Legislature of Hawaii or the Congress of the United States."

The chapter of Ballou's Civil Laws on the subject of eminent domain commencing with section 1542 and ending with section 1560contains various provisions that are not inconsistent with the Constitution or any law of the United States, all of which, where applicable to the present case, are made controlling by the above-quoted provisions of the act of Congress of April 30, 1900, 31 Stat. 141, 142, c. 339. But those provisions of Ballou's Civil Laws on the subject of eminent domain, conferring on the Circuit Court of Hawaii "power to try and determine all actions arising under this act, subject only to an appeal to the Supreme Court in accordance with law" (section 1546, Ballou's Civil Laws), and the "power to determine all adverse or conflicting claims to the property sought to be condemned and to the compensation or damages to be awarded for the taking of the same" (section 1552, Id.), are inconsistent with the above-quoted provisions of the act of Congress of August 1, 1888, 25 Stat. 357, c. 728 [U. S. Comp. St. 1901, p. 2516], conferring upon the United States courts jurisdiction of actions for the condemnation of land for the use of the United States. Sections 1546 and 1552 of Ballou's Civil Laws of Hawaii are therefore inapplicable to the present case. Nor is there found in any of the provisions of those laws, on the subject of eminent domain, any provision expressly requiring actions for condemnation of land for public use to be tried without a jury, but the concluding words of the chapter on the subject are that "where not expressly provided in this act the procedure shall be the same as in other civil actions." The chapter on "Civil Procedure in Courts of Record" provides that civil actions shall be commenced by filing a sworn petition (section 1215). Section 1223 thereof provides for the appearance of the defendant, and prescribes two forms of answers, one admitting the allegations of the petition, which shall "form an issue of law to be determined by the court," and the other denying the truth of the facts stated in the petition, which shall “form an issue of fact to be determined by the jury."

The proper conclusion to be drawn from these provisions is that by the Hawaiian statute itself an issue of fact in respect to the value of land sought to be taken by the United States in the exercise of the power of eminent domain shall be tried by a jury.

The judgment is reversed, and the cause remanded to the court below for a new trial.

McCUNE v. ESSIG et ux.

(Circuit Court of Appeals, Ninth Circuit. May 4, 1903.)

No. 924.

1. REMOVAL OF CAUSES-FEDERAL QUESTION.

A suit by the daughter of a deceased homestead settler to recover an interest in the land, which after his death was patented to his widow under the homestead law, necessarily involves a construction of such law, which alone determines the right in which the widow took title, and is removable on that ground.

2. PUBLIC LANDS-HOMESTEADS-TITLE CONVEYED BY PATENT TO WIDOW.

A homestead settler has no devisable or descendible interest in the land until he has completed the term of residence required to entitle him to make final proof, and in case of his death before that time the patent to his widow, who completes the residence and makes the final proof, conveys the land to her absolutely, and no interest therein passes to the children of her deceased husband.

Appeal from the Circuit Court of the United States for the Eastern Division of the District of Washington.

For opinion below, see 118 Fed. 273.
Merritt & Merritt, for appellant.
Graves & Graves, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge. William McCune and his wife settled upon a quarter section of land in Lincoln county, Wash., under the homestead law of the United States, and on April 4, 1884, he filed, in the proper district land office, a claim to said land as a homestead. In the same year he died intestate, his widow, Sarah McCune, and his daughter, the appellant herein, surviving him. On December 17, 1889, Sarah McCune, then Sarah Donahue, made proof in the land office of full compliance with the requirements of the homestead law, and on March 6, 1891, a patent was issued to her therefor, granting the said land to her, "to have and to hold the said tract of land, with the appurtenances thereof, unto the said Sarah Donahue, and to her heirs and assigns, forever." Subsequently she conveyed the land to the appellees. The present suit is brought by her daughter to establish a claim to an undivided one-half interest in the land, on the theory that, although the patent was issued to her mother, the homestead was, by virtue of the law of Washington, community property, and William McCune, before making final proof and before completing his residence, had a vested, inchoate, or equitable title to the

12. See Public Lands, vol. 41, Cent. Dig. § 75.

homestead, and that upon his death his right or equity descended in equal shares to the widow and to the appellant according to the law of the state in which the land is situated. The Circuit Court held adversely to this contention.

On the appeal the question is presented whether the cause was removable from the state court to the Circuit Court of the United States. It is contended that no federal question is involved in the controversy, for the reason that, the patent having issued to the widow of William McCune, the only question involved is one of the construction of the statutes of descent of the state of Washington. We think the true controversy in this case concerns the construction to be given sections 2291 and 2292 of the Revised Statutes [U. S. Comp. St. 1901, pp. 1390, 1394]. The first of these sections prescribes the conditions under which land may be entered under the homestead law, and declares that "no certificate, however, shall be given or patent issued therefor until the expiration of five years. from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry; or if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, proves by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land had been alienated except as provided in section twenty-two hundred and eighty-eight, that he, she, or they will bear true allegiance to the government of the United States; then, in such case, he, she, or they, if at that time citizens of the United States, shall be entitled to a patent as in other cases provided by law." Section 2292 further provides: "In case of the death of both father and mother, leaving an infant child or children under twenty-one years of age, the right and fee shall inure to the benefit of such infant child or children." The statute expressly authorizes the issuance of the patent to the widow of the deceased homestead settler. It makes no provision for the children of such settler, and in its terms contains no recognition of any right initiated by him. The question presented is whether or not the widow was a donee in her own right of the land from the United States. If she were such donee, the statutes of the state of Washington were powerless to divest her of her interest or to charge with a trust the title so patented to her. The whole case turns on the construction of the homestead act, and clearly exhibits, in our opinion, ground for removing the cause to a court of the United States. The law of the state of Washington governs the descent of lands lying within the state, but the question here is whether there had been any descent of land. That question depends on the nature of the estate which the widow of William McCune took in the land by virtue of her compliance with the homestead law, and the patent which issued to her.

Counsel for the appellant rely upon Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. Ed. 656; Romie et al. v. Casanova, 91 U. S. 379, 23 L. Ed. 374; McStay et al. v. Friedman, 92 U. S. 723, 23 L. Ed. 767; Hoadley v. San Francisco, 94 U. S. 4, 24 L. Ed. 34;

Blackburn v. Portland Gold Mining Co., 175 U. S. 571, 20 Sup. Ct. 222, 44 L. Ed. 276-as supporting the doctrine that, after the United States has parted with its title to land, any dispute concerning the same which does not bring in question the validity of the grant presents no federal question, and they assert that in this case they make no question of the validity of the grant to the widow of William McCune, but they contend that the question whether she took the beneficial interest as well as the legal title depends upon the effect to be given to the state statutes, and not upon the acts of Congress. None of the decisions so cited applies to the case which we have before us. The case chiefly relied upon is Hoadley v. San Francisco. In that case the grant was of the right and title of the United States to lands within the corporate limits of the city of San Francisco. It was a grant to the city and to its successors for certain beneficiaries. Hoadley claimed to be one of the beneficiaries, and the court said that the question involved "did not arise under the laws of the United States, but under the ordinances of the city as ratified by the act of the Legislature." In that case the trust was expressed in the grant. The only question before the court was, who were the beneficiaries? We agree with the Circuit Court that an apt rule is found in the opinion of the Supreme Court in the case of Wilcox v. McConnell, 13 Pet. 517, 10 L. Ed. 264, in which the court remarked:

"We hold the true principle to be this: that whenever the question in any court, state or federal, is whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to the state legislation, so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States."

The Supreme Court entertained jurisdiction of similar cases in Bernier v. Bernier, 147 U. S. 242, 13 Sup. Ct. 244, 37 L. Ed. 152, and Hutchinson Investment Co. v. Caldwell, 152 U. S. 65, 14 Sup. Ct. 504, 38 L. Ed. 356. We find no error in the ruling of the Circuit Court in refusing to remand the cause to the state court.

Nor do we find error in the conclusion which was reached by the Circuit Court on the merits of the case. The estate granted to a homestead settler is granted on conditions precedent. These conditions are residence for the required time, cultivation, and final proof. Until all of these conditions are complied with, the law gives him no more than the right of possession. It provides that, in case of his death before the completion of the conditions, his widow shall have all the rights which he would have had. His right is extinguished by his death, and she, in virtue of the fact that she is his widow, is designated as the donee of the land. The statute provides for the rights of the children only in case of the death of both father and mother before the final proof and declares that the right and fee shall inure to the benefit of such children. In Bernier v. Bernier, 147 U. S. 246, 13 Sup. Ct. 244, 37 L. Ed. 152, the court held that if the homestead entryman die a widower, without acquiring patent, the right to complete the proofs and acquire the patent passes to all his children, as well to those who are adults as to those who are infants. That conclusion was reached

by construing together both section 2291 and section 2292. In the course of the opinion the court remarked that the object of the sections in question was "to provide the method of completing the homestead claim and obtaining a patent therefor, and not to establish a line of descent or rules of distribution of the deceased entryman's estate." This expression of the opinion is relied upon by the appellant as authority for the contention that the title so granted under the homestead law was not intended to be free from the control of the state statutes of descent, but we find in it no such meaning. The court in that case recognized the right of all the surviving children of the entryman to share equally in the homestead, but so held, not out of consideration of a state statute of descent, but on account of the meaning of the two sections so quoted from the homestead law; in other words, the court applied and gave force only to the homestead law as it was expressed, and very correctly observed that it was not the purpose of the homestead law to establish a line of descent or rule of distribution, but it was to determine who were the grantees of the government and who were entitled to receive the patent therefor.

The case of Hall v. Russell, 101 U. S. 503, 25 L. Ed. 829, is, we think, directly in point. That was a case which involved the construction of the donation act, an act in which the terms of the grant are much stronger than in the case of the homestead law, the language thereof being: "There shall be, and hereby is, granted;" the grantee being any qualified settler or occupant of the public lands "who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act." It further provided that, if a settler died before the expiration of the required. four years of continued possession, all his rights should descend to his heir at law, including his widow. The court held that, until such settler was qualified to take, there was no actual grant of the land, and that if such a settler should die after a residence thereon of less than the required four years he had no devisable interest therein.

The appellant invokes the doctrine of relation as it is expressed in Shepley v. Cowan et al., 91 U. S. 330, 23 L. Ed. 424. In that case the court held that where a state seeks to sell land as part of the lands included in a grant to it, and a settler seeks to acquire a right of preemption to the same land, the party taking the first initiatory steps, if the same have been followed up to patent, acquires the better right, and that the patent relates back to the date of the initiatory act and cuts off all intervening claims. That doctrine has no application to the facts of the present case. There were no rival claims to the land which was included in the homestead which was granted to the widow of William McCune. Her right was not adverse to that of her husband. By virtue of the fact that both were settlers on the land for the purpose of obtaining a homestead, and her husband died before the conditions of the grant were complied with, she became the donee of the title. Her husband had nothing to which the doctrine of relation could apply.

In the case of Shepley v. Cowan the court referred to its previous decision in Gibson v. Chouteau, 13 Wall. 100, 20 L. Ed. 534, where the doctrine of relation was thus defined: