RAINEJ· V. BALTIMORE .. O. R. CO.
word, its wholly unnecessary. Whenever it fairly appears from an instrument, notwithstanding its form, that it is intended to afford a security, an equitable lien exists in favor of the person for whose behalf the provision is made. Jones, Mortg. 162. Company now owns and operates The Wabash, St. Louis & the property which the Toledo, Wabash & Western Company acquired from the Toledo & Wabash Company, and denies its liability on the equipment bonds. There is nothing to prevent the holders of these bonds fromaElserting aga.inst the present owners of this property the equitable lien which they were entitled to under the consolidation 4-11 subsequent interests have been acquired agreement of with knowledge of this agreelillent. Thesear.e briefly my reasons. for holding that the equipment bonds are a charge. upon the property now owned .by the Wabash, St. Louis & Pacific Company, belonged to the Toledo & Wabash Company. A decree will be. entered declaring such. a. charge, and for aocrued ---interest. The case would have been decided at an earlier day but for 0. statement made by the complainant's counsel that the matter in dispute !night be amicably adjusted. .
Motion for rehearing, argued befOre Justice and Judge WOODS. was denied, and decree ordered to be entered in accordance with JUdge decision.
& O. R. Co. and
(OirC'Uie Oourt, W. D. PtmnSuZfJanfa. ·:March 26, 1883.
RAn.nOAD - CoNSTIlUCTION LAND-OWNER. LoCATION INJUNCTION THREATENED INJURY TO
Where, during the progress of the construction of a line of railway over a tract of land, a dispute arises between the land-owner and railroad company as to the true location of the railway under a written grant of way, and the question of fact is disputable and depends upon parol testimony, the court will not arrest the construction of the road by preliminary injunction, but will reserve the determination of the question for tinal hearing, no injury being threatened the land-owner which may not be compensated pecuniarily; but the court will require ainple security to be given the land-owner for all damages recoverable by him in c use of a tinal decision advcrile to the company.
In Equity. Sur motion for a preliminary injunction. John Dalzell and Hon. J. S. Black, for complainant. Shiras, Jr., D. T. Watson, and Knox It lleed, for defendants. Before McKENNAN and ACHESON, JJ. ACHESON, J. On the twenty-ninth day of September, 1880, the Baltimore & Ohio Railroad Company and the complainant entered into a written agreement, whereby the company covenanted "to construct and complete, or cause to be constructed and completed by a company authorized so to do, at the earliest practicable period, and not later than the thirtieth day of November, 1880, a branch railroad extending from and connecting with some point on the line of the Pittsburgh & Connellsville Railroad, north of Connellsville, to the mouth of Dickinson run, on the south bank of the Youghiogheny river, and to connect the same with the siding" of the complainant; "said branch road to be of the same gauge and character as the Pittsburgh & Connellsville Railroad." On the part of the complainant, the agreement contains the stipulation following, to-wit:
"Said Rainey agrees to give said first parties, [the Baltimore & Ohio Railroad Company,] or the corporation building said branch road, free of cost, a right of way for said branch road over the property of said Rainey, extending along the bank of the Youghl.ogheny river, on the north of his siding, at a proper distance therefrom; reserving, however, to said Rainey and his assigns the right of crossing said track."
The agreement embraces provisions touching other matters, none of which it is necessary to recite, save the concluding clause, which is in these words: .
.. It is further agreed by said first party that upon any failure or default made in regard to carrying out in good faith the covenantl:l and guaranties herein stated, that then it will forthwith redeem and pay in cash said traffic bonds and interest, and forfeit any rights acquired by virtue of this contract, excepting that there shall be no forfeitul"e of said right of way for said branch road."
The BaltImore & Ohio Railroad Company commenced building this branch road in the summer or early fall of 1880, but it was not until July, 1881, that the rails were laid from the point of junction with the Pittsburgh & Connellsville Railroad to a point on the complainant's property opposite his coke ovens then erected. Connection was then made with the complainant's siding in front of his coke ovens, and the railroad extended westwardly over his property the distance of some 200 feet beyond the point of connection. The line of rail-
RAINEY V. BALTIMORB .. O. B. CO.
road sO' constructed over the complainant's property was aJong the bank of the Youghiogheny river, on the north of the complainant's siding as it then existed,and was at a. proper distance therefrom. The railroad company then suspended the further construction ofits road over the complainant's property, but the evidence tends to show that work on other porbions of the line of road was thereafter prosecuted without interruption. From the time the connection was made with the complainant's siding, as above mentioned, he has shipped his coke over the railroad so far as built to the Pittsburgh & Connellsville Railroad. On October 5, 1882, the railroad company resumed work upon the property and commenced to extend its road over thesame westwardly from the point it had reached in July, 1881; but a conflict in respect to the true line of location immediately arose between the parties and their respective employes. After July, 1881, the complainant had extended his siding westwardly, and he was engaged in its farther extension in that direction when the railroad company recommenced work at that point. The complainant's land in many places rises very abruptly from the Youghiogheny river, and along the entire river front the ground suitable for railroad tracks lies within narrow limits. Hence the conflict bEitwen the parties, the complainant claiming the right to construct his extended siding and the railroad company its road upon substantially the same line. The real dispute between the parties is just here. Other questions have, indeed, arisen and are involved in the case, but this is the root of the controversy. The complainant insists that the siding mentioned in the written agreement· was not a siding then existing or visibly located upon his property, but a prospective siding thereafter to be constructed through his entire property, according to a survey and location already made, and of which he claims the Baltimore & Ohio Railroad Company then had knowledge. On the other hand, the defendants, denying such kJ;lOwledge, maintain that as early as February, 1880, the en. tire line for said branch railroad had been surveyed, located, and finally and legally adopted, and that the same was visibly and plainly marked upon and through the complainant's land; that this location was known to him at and before the time'the agreement of September 29, 1880, was executed; that before said date the complainant had located and defined his siding upon the ground, and the same was then actually graded, and was the siding referred to in the agreev.15,no.1l-49
nient; that to that and the. route for the railroad westwardly thereof, as then located and ma.tked upon the,ground, and ,that in the -construction of the road the defendants have conformed and are conforming to that location. In December last we hea,rd and refused a motion for a preliminary injunction against the Baltimore & Ohio Railroad Company to restrain it from constructing the said branch road over the complainAnt'sproperty on the line oflocationclaimed by it. But, while refusing the motion, we require'd the companY,to give the complainant ample security for the payment of all,damages recoverable by him in case .·the right 'claimed by the said company upon his property should, on heiJ,ting, be d:eoided adversely W it. This we did because, UP0J;l tha affidavits then submitted to us, ;we regarded the question of fact as to what was the true location of thera.ilroad over the defendant's property, undedhe agreement,! asdispu:table. We were of opinion 'that 'We could not safely that question, or take action in :respect to it, llntil final hearing; when, if. OU1;' decision were in favor ,of the complainant,wecould compel the railroad company to remove its track and restore the;complainant's premises to their former condition, and makebiUil adequate compensation in damagos. No injury was OJ;' is threatened to the complainant that may not be thus to arrest the railroad company in the constructionof its road might result in embarrassments and lossos vory difficult (If pecuniary' :Keeping in mind the well-known principle which requires cOurts of equity, in the grantingor withholding of a prelim.inary injunetio)lin a case involving a controverted question of fact, to balance the inconveniences and injury likely to be incurred by the respe.ctiveparties, our conclusion was that in the present instance such injunction should be denied. Recently the complainant amended his bill by making the Pittsburgh, McKeesport &Youghiogheny Railroad Company a party defendant, and by introducing new matter. We thereupon allowed the complainant to renew his motion for a preliminary injunction, and it. has been again fuUy and ably argued, and the case reconsidered. Havingcarefullyre-examin\:ldthe grounds of our former refusal to grant a preliminary injunction, we are entirely satisfied of the sound;ness of the conclusion we then reached. Indeed, the additional affidavits submitted on the part oHhe confirm us in the view that we should forbear making any deQree affecting the rights of the parties until final hearing.
As to the questions raised by the amendment, it only be i said that we do not de,em it proper at this stage of the case to discuss them, or express our views in'respect thereto. The motion for a preliminary injunction is denied.
(Otrcuit Court, W. D. TennelBe& M"rch 21, 1883.)
EQUITY PRACTIOE-INFANT DEFENDANTS-Co8T8-REOEIVER.
Where a bill is filed to avoid deedS for fraud, and the property Is placedtn, the hands of areceiver,the current expenses of minor defendants for costs qf litigation will not be paid'out of funds in 'the hands of the receiver.
SAME - GUARDIAN AD LrrEM: MINORS.
DEFENDING IN FOR!IL\. PAUPERIS "
Although it is the settled practice in Tennessee that infants can neither sue nor defend in forma pauperis, such is not the rule of the federal courts o.f equity, in which they may so sue or defend.
In Equity. T. B. Edgington, for plaintiffs. George Dent and C. W. FraiJaer, for defendants. HAMMOND, J. This bill seeks to avoid certain conveyancesfron1 . the ancestor of the plaintiffs to the ancestor of the defendants, for alleged fraud in their procurement. A receiver has been appointed, and the property is now in his possession. The defendants are tak.; ing proof before an examiner of 'this court. Application was made to require the examiner to await the final result for the payment olhis fees, which was refused unless the defendants would take the oath I prescribed for indigent suitors applying to sue without costs. This was declined, whereupon application was made to pay the examiner's fees out of funds in the hands of the receiver, which was likewise' refused. But it being stated that three of the defendants are minors, represented by their guardian ad litem, the application was reserved as to them. The guardian ad litem is one of the adult defendants, a brother of the minors, and a lawyer of this court, making these applications, while the other adult defendant is their mother. There is nothing definitely shown as to the actual circumstances of these defendants, though the defendant making this application offers to produce affidavits of want of means to pay the expenses of taking the proof,-whether