ilar articles, and which his own manufacture does not possess in the estimation of purchasers."

In respect to the "Murad" brand, at least, the statements of the affiant Anargyros find some corroboration in the averments of the bill itself.

While we do not think final disposition of the case should be made in advance of a trial upon the merits, we are of the opinion that upon the showing made the court below should not have granted the preliminary injunction, and should have vacated the restraining order, leaving the rights of the parties to depend upon a trial upon the merits. The order is reversed, with instructions to vacate the restraining order.

MCKINNEY v. BIG HORN BASIN DEVELOPMENT CO.

(Circuit Court of Appeals, Eighth Circuit. January 11, 1909.)

1. WATERS And Water Courses (§ 222*)—DESERT LANDS-GRANT TO STATES FOR RECLAMATION-VALIDITY OF CONTRACT BY IRRIGATION COMPANY.

Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422, as amended by Act June 11, 1896. § 1, c. 420, 29 Stat. 413, and Act March 3, 1901, c. 853, § 3, 31 Stat. 1188 (U. S. Comp. St. 1901, pp. 1554, 1556, 1557), for the purpose of aiding the public land states in the reclamation of desert lands therein and the sale thereof to actual settlers in tracts not exceeding 160 acres each, authorized the Secretary of the Interior, upon proper application of a state, and the filing of a map and approved plan of irrigation, to contract with it to donate and patent to such state not exceeding 1,000,000 acres as the state shall cause the same to be irrigated, reclaimed, and occupied. The state is authorized to enter into contracts to cause the lands to be irrigated and induce their settlement, to provide for a lien thereon for the actual cost and necessary expense of irrigation, but is required to hold any surplus money derived from their sale, in excess of the cost of reclamation, as a trust fund, and apply the same to the reclamation of other desert lands therein. Rev. St. Wyo. 1899, § 934 et seq., provide for the acceptance of such grant, and vest the selection, management, and disposal of the lands in a State Board of Land Commissioners, and authorize the board to enter into contracts with any person or corporation proposing to reclaim lands, which contracts shall contain complete specifications of the proposed irrigation work, and its estimated cost, and the price and terms per acre at which such works with perpetual water rights shall be sold to settlers, with the price and terms on which the land will be sold by the state to settlers, "provided that such price and terms for irrigation works, water rights and for lands to be disposed of by the state to settlers shall in all cases be reasonable and just." They require the board immediately on the commencement of work by a contractor to give notice by publication in the county in which the land is situated that said land is open for settlement. the price at which it will be sold to settlers by the state, and the contract price at which settlers can purchase perpetual water rights. Held, that a contract made by a company which intended to, and afterward did, obtain a license from the board to construct irrigation works covering certain lands, by which it gave to a third person the exclusive right to make contracts with settlers on such lands on its behalf for perpetual water rights, at not less than $19 nor more than $30 per acre, in his discretion, and to give him all that was obtained above $19 per acre, was contrary to the intent of the law and to public policy, and would not be enforced in equity, since it not only violated the requirement of the law that the charge should in all cases For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

be just and reasonable, but made it impossible for the board to give the required notice of the price at which such water rights would be sold to settlers, and disenabled the company from performing the function contemplated by the grant from the state by contracting with settlers, leaving such function to be exercised arbitrarily by the other party to the

contract.

[Ed. Note. For other cases, see Waters and Water Courses, Dec. Dig. § 222.*]

2. CONTRACTS (§ 138*)-CONTRACT VOID AS AGAINST PUBLIC POLICY-RATIFICA

TION.

Such contract being void as against public policy, the company could not be estopped to deny its validity by permitting the other party to proceed thereunder.

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 690; Dec. Dig. § 138.*]

3. EQUITY (8 427*)-DecrEE-NATURE AND EXTENT OF RELIEF.

While, under a general prayer for relief in a bill in equity, complainant may have any relief to which he shows himself entitled, it must be founded on and consistent with the facts set up in the bill, and with some theory of the case on which the bill was based.

[Ed. Note. For other cases, see Equity, Cent. Dig. §§ 1009-1014; Dec. Dig. § 427.*]

4. SPECIFIC PERFORMANCE (§ 128*)-DECREE-NATURE OF RELIEF.

The complainant in a suit in equity to enforce specific performance of a void contract cannot recover on a quantum meruit for services performed thereunder, his right of action therefor, if any, being at law, where the parties are entitled to trial by jury.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 412, 415; Dec. Dig. § 128.*]

Appeal from the Circuit Court of the United States for the District of Wyoming.

On the 29th day of July, 1904, S. L. Wiley and F. C. Rutan, as parties of the first part, and George M. McKinney, the appellant, as party of the second part, entered into a written contract to the following effect, in so far as concerns the questions to be decided:

After reciting that the Big Horn Basin Development Company (a corporation created by the laws of the state of Wyoming) was about to enter into a contract with the state of Wyoming for the construction of certain irrigation works, whereby the state was about to grant to the company the right to charge not exceeding $30 per acre to settlers for water rights, etc., if stipulated that, upon the execution of said contract between the state and the company, the parties of the first part would use their best endeavors to cause a contract to be executed between the company and the party of the second part, whereby the company would grant to the complainant the exclusive privilege and authority of making contracts with settlers upon said lands to furnish water, it being understood that said contracts were to be approved by the company. The price at which said contracts might be made to settlers should be not less than $19 nor more than $30 per acre, and the compensation to be received by the complainant for his services should be an amount equal to the difference between the $19 per acre and the contract price per acre to said settler.

The contract then provides for payments by the settler in annual installments to the company, and for the manner of payment out of the same to the complainant.

It then directs that no contract shall be negotiated by the complainant except upon and until the lands upon which such contracts were to operate shall be selected and designated to the complainant by the company; provided, that the total amount of such lands shall be 250,000 acres, more or less, as may appear by the segregations thereof to the state, and shall be designated to the comFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

plainant in amounts of not less than 25,000 acres at any one time, the complainant agreeing that he would negotiate contracts upon at least 40,000 acres for each and every year after lands to that amount have been designated to him, the company reserving unto itself certain of said lands for town and mill sites and water-power purposes.

It was then provided that, in case of failure by the complainant to negotiate contracts to the amount mentioned, for any one year, at the option of the company, this should operate as a forfeiture of all right of the complainant to further negotiate contracts; and in case any of said lands upon which contracts have been negotiated should revert or the settler lose his rights thereto, or the company should acquire the same, then the right to compensation thereon should cease, and the company, at its option, might permit or require the complainant to recontract said lands as an original contract, the complainant to be compensated therefor as if it were an original sale.

The bill avers that immediately after the delivery of said writing the defendant adopted the same as its agreement, and directed the complainant to set to work in procuring settlers to locate upon said lands, and to enter into contracts for water with which to irrigate the same. That in obedience to said directions the complainant, on or about the 1st day of August, 1904, began work under said contract, and thenceforth, until the happening of things thereinafter set forth, devoted his time to the performance of the promises therein mentioned; and that to that end he employed a large number of persons to assist him in the work, they to be compensated at the rate of $5 per acre in respect of all water contracts negotiated by them; that in the prosecution of his undertaking he made publication in various ways, and issued circulars to invite settlers to deal with him; and that "all of said things were done during the month of August, 1904, and were done at the request and by the direction of the defendant, and with the knowledge, consent, and approval of the defendant, its officers, directors, and stockholders."

It then appears from the allegations of the bill that the Board of Land Commissioners of the state did not enter into a contract with the defendant company until the 24th day of September, 1904, whereby the defendant undertook to construct the canal and reservoir in accordance with the plans referred to in the contract, by which contract the company was granted the exclusive right to procure qualified persons to settle upon and occupy the lands described therein, and to sell and dispose of water rights of the said irrigation system to said settlers at the price of not exceeding $30 per acre, the state agreeing to allow the entry of and payment for such lands to such settlers at the price of 50 cents per acre.

The bill then sets out that the complainant procured a large number of persons, say 350, qualified to make settlement on the lands, to make written application for contracts for the purchase of 50,000 acres of said lands and water rights, which were delivered to the defendant. That on the 31st day of March, 1905, the complainant bad in progress negotiations with several hundred other persons qualified to make locations, and who were ready to enter into contracts therefor, when the defendant instructed him to desist from selling said lands and water rights, and informed him that when it was ready to resume the sale of its lands and water rights it would notify him. That he has from that time thenceforth been ready and willing to proceed with his undertaking under said contract, but that on the 1st day of April, 1906, the defendant informed him that it would not permit him to complete the performance of the contract, and has so continued to refuse; and that the defendant is and for some time past has been itself selling said lands and water rights.

The bill then proceeds to aver that by means of the matters aforesaid "the defendant adopted and assumed the said contract of July 29, 1904, in equity, and is in equity bound and obligated thereby as fully and completely as though said writing had been drawn up in the name of the defendant, and signed, sealed, and delivered to the complainant by it. And the complainant avers that by means of the premises he was and is in equity entitled to the exclusive privilege and authority of making contracts between the defendant and such settlers upon said lands in regard to the furnishing of water for said lands." It is further asserted that the complainant is entitled to a decree confirming said contract, and to an injunction restraining the defendant from entering in

to any contract with settlers upon said lands in regard to the furnishing of water, except such contracts as have been negotiated and shall be negotiated and made by the complainant in behalf of the defendant, so long as he shall sell annually the quantity of water rights required by his contract; and that the defendant be required to account to the complainant concerning all contracts for the furnishing of water for said lands made and entered into by the defendant, and for all moneys received by it in respect of such contracts, and to decree the payment of compensation to the complainant in respect of such contracts, at the rates and in the amounts specified in said contract of July 29, 1904; or, as an alternative, that the court make a decree establishing said contract of July 29, 1904, and that the defendant pay to the complainant all of his damages, past, present, and future, resulting from the abrogation and breach of said contract; and that defendant be required to pay to him the sum of $11 per acre for every acre of water rights so put under contract as aforesaid, amounting to the sum of $550,000, and damages for the breach of the contract at the rate of $6 per acre for each and every acre of said land so segregated as aforesaid over and above the said 50,000 acres.

To this bill the defendant demurred, on the ground that the complainant has not, by said bill, made or stated such a case as entitles him in a court of equity to any discovery or relief from or against the defendant touching the matters contained in the bill, or any such matters.

The Circuit Court sustained the demurrer, and the bill was dismissed, “without prejudice to the complainant's right to bring an action at law in such form as he may be advised."

From this decree the complainant has appealed to this court.

The acts of Congress under which the lands in question were ceded by the United States to the state of Wyoming are Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 (U. S. Comp. St. 1901, p. 1554), Act June 11, 1896, c. 420, § 1, 29 Stat. 413 (U. S. Comp. St. 1901, p. 1556), and Act March 3, 1901, c. 853, § 3, 31 Stat. 1188 (U. S. Comp. St. 1901, p. 1557), which merely extends the time for reclamation by the state.

The substance of the congressional enactments is that, to aid the public and states in the reclamation of desert lands therein, and the settlement, cultivation, and sale thereof in small tracts to actual settlers, the Secretary of the Interior was authorized, upon proper application of a state, to contract with it to donate and patent to the state not exceeding 1.000,000 acres in each state, as the state may cause to be irrigated, reclaimed, and occupied, and not less than 20 acres of each 160-acre tract cultivated by actual settlers, within 10 years next after the passage of the act. Before the application of the state is allowed or any contract made or any segregation of any land from the public domain is ordered, the state was required to file a map of the lands proposed to he irrigated, with a plan showing the mode thereof, that it was sufficient to thoroughly irrigate and reclaim said land preparatory to the raising of ordinary agricultural crops, and also showing the source of the water supply to be used for irrigation. The states so contracting were authorized to make all necessary contracts to cause the lands to be reclaimed and to induce their settlement and cultivation, in accordance with and subject to the provisions of the act; the state being prohibited to lease any of said lands, or to use or dispose of them in any way, except to secure their reclamation, cultivation, and settlement. A lien is authorized by the state, and by no other authority, on and against the separate legal subdivisions of lands reclaimed, for the actual cost and necessary expenses of reclamation, and reasonable interest thereon. And when an ample supply of water is furnished to reclaim a particular tract or tracts, then patents should issue to the state for the same, without regard to settlement.or cultivation.

Section 4 of the act of August 18, 1894, contained the following provision: "As fast as any state may furnish satisfactory proof according to such rules and regulations as may be prescribed by the Secretary of the Interior, that any of said lands are irrigated, reclaimed and occupied by actual settlers, patents shall be issued to the state or its assigns for said lands so reclaimed and settled: Provided, that said states shall not sell or dispose of more than one hundred and sixty acres of said lands to any one person, and any surplus of money derived by any state from the sale of said lands in excess of

the cost of their reclamation, shall be held as a trust fund for and be applied to the reclamation of other desert lands in such state."

The Revised Statutes of Wyoming of 1899 pertinent to this question are as follows:

Section 934 accepts the conditions of section 4 of the act of Congress, together with the grants of land to the state under the provisions of the act. Section 935 vests the selection, management, and disposal of said lands in the State Board of Land Commissioners, designated "The Board."

Section 940 provides that any person, association, or incorporated company constructing or having constructed ditches, canals, or other irrigation works to reclaim such lands shall file with the board a request for the selection on behalf of the state, by the board, of the lands sought to be reclaimed, which shall be accompanied by a proposal to construct the irrigation works necessary for the complete reclamation of the lands to be selected, the proposals to be prepared in accordance with the rules of the board and the regulations of the Department of the Interior; stating the source of the water supply, the location and dimensions of the proposed works, the estimated cost thereof, the price and terms per acre at which perpetual water rights will be sold to settlers, said perpetual rights to embrace a proportionate interest in the canal or other irrigation works, together with the rights and franchises attached thereto, etc.

Section 941 provides that the board shall have authority to prescribe that each proposal shall be accompanied by a certified check in an amount to be designated by the board, to be held as a guaranty of the execution of the contract with the state, etc.

Section 942 provides that such person or company making application shall file with the State Engineer application for a permit to appropriate water for purposes of reclamation of the lauds described, to be accompanied by maps of the land selected, and the proposed irrigation works, to he prepared in accordance with the regulations prescribed by the State Engineer and the rules of the Department of the Interior.

Section 943 provides for the examination of the proposal by the chief clerk to see that it is in form, and for report by the engineer as to whether the proposed work is feasible, and that the canal or ditch can be supplied without undue diversion of the public waters of the state.

Section 944 directs where the matters aforesaid shall be filed in the local land office.

Section 946 declares that, upon the withdrawal of the land by the Department of the Interior, it shall be the duty of the board to enter into a contract with the parties submitting the proposal, and that such contracts shall contain complete specifications of the location, dimensions, character, and estimated cost of the proposed ditch, canal, or other irrigation work; the price and terms per acre at which such works and perpetual water rights shall be sold to settlers; the price and terms upon which the state will dispose of the lands to settlers: Provided, that such price and terms for irrigation works, water rights, and for lands to be disposed of by the State to settlers shall, in all cases, be reasonable and just.

Section 947 declares that no contract shall be made by the board which requires a greater time than five years for the construction of the works, and all contracts must state that the work shall be begun within six months from the date of the contract, etc.; and at least one-tenth of the construction work shall be completed within two years from the date of such contract, and the work shall be diligently and continuously prosecuted.

Section 948 deals with the matter of the failure of the parties having contracts to comply therewith within the prescribed time.

Section 950 provides that immediately upon the withdrawal of any land for the state by the Department of the Interior, and the inauguration of work by the contractor, it shall be the duty of the board, by publication in a newspaper published in the county in which the land is situated, for a given time, "to give notice that said land is open for settlement, the price for which said land will be sold to settlers by the state, and the contract price at which settlers can purchase perpetual water rights."

Section 951 prescribes the qualifications of such settlers, and requires that