CASES

ARGUED AND DETERMINED

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FALLS OF NEUSE MANUF'a CO.

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and others v.

GEORGIA HOME

INs.

CO.

«(Jircuit Court, W; D. North Carolina. October 15, 1885.)

1.

EQUITY PRACTICE-CONTRIBUTION.

Where several actions, removed from a state court, are based upon insurance policies on the same property, based on the same application, issued at the same time and by the same agent, containing a clause for contribution, the court will order one of the causes to be transferred to the equity docket, and the other defendants to be made parties, and the pleadings in that case to be reformed according to the equity practice. In such case the plaintiff will be enjoined from further proceedings in the other actions until a final decree in the cause so transferred.

2. 8.

SAME-INJUNCTION.

SAME-DOMESTIC COMPANY.

In such case an action against a resident defendant company pending in the state court will be staled until such final decree, and such company will be made a party to the SUIt so transferred.

Motion to Consolidate, and Transfer to the Equity Docket. The plaintiffs instituted an action against the defendant for the recovery of $5,000 upon an insurance policy in the state court. They at the same time, in the same court, instituted separate actions against eight other insurance companies, one of which was incorporated in North Carolina, upon policies issued at the same time, upon the same property, and upon the same application. All the policies contained the following stipulation:
"In case of any other insurance on the property herein jnsured, whether valid or not, or made prior or subsequent to the date of this policy. the assured shall be entitled to recover of this company no greatel' proportion of the loss sustained than the sum hereby insured bears to the whole amount so insured thereon; and it is here!.y declared and agreed that in case of the assured holding any other policy in this or any other company on the property insured,

v.26F.no.l-l

FEDERAL REPORTER.

subject to conditions of average, the policy shall be subject to average in like manner."

The non-resident insurance companies removed the actions against them, respectively, to the United States circuit court, under the act of congress of 1875. At October term, 1885, of the court, the defendants in the actions removed, being liahle each for a proportionate part of the loss, (if liable at all,) insisted that, as each company was liable to contribute only its proportionate amount of the loss, there should be a single ascertainment of the loss incurred, so as to bind all the companies, and that each should be held (if at all) for the proportion of that Bum which the amount insured by it bore to the total amount of insurance, and that, as there could be no consolidation of the suits except in a court of equity, and as the element of contribution was one of equitable jurisdiction, and that as the cases were removed from a court in which, under the new Code of Civil Procedure, law and equity were merged, and the distinctions between law and equity abolished, in order to completely determine the rights of the parties, and to prevent circuity of action, the several causes should be transferred to the equity side of the docket and consolidated. Watson If Glenn, J. C. Buxton, and Fuller c/; Snow, for plaintiffs. W. W. Crump, Graham c/; Ruffin, Schenck c/; Price, and John W. Hinsdale, for the insurance companies. BOND, J., (DICK, J., concurring,) made the following order: . This cause coming on to be considered upon the motion of theseveral defendants that this cause be transferred and put upon the equity docket of this court, this court doth now declare that the said several insurance companies-to-wit, the Georgia Home Insurance Company, the Virginia Fire & Marine Insurance Company, the Westchester Fire Insurance Company, the Imperial Fire Insurance Company, the Virginia Home Insurance Company, the Rochester German Insurance Company, and the North Carolina Home Insurance Company-are necessary and indispensable parties to the cause in order that the rights of all the parties may be duly ascertained and administered, and that the same can only be done by a court of equity. It is thereupon ordered and decreed that this cause be transferred and put upon the equity docket of this court for trial, and that the pleadings of parties in said cause be reformed according to the equity practice of this court. And it thus appearing to the court that the North Carolina Home Insurance Company is a necessary and indispensable party to this cause, it is further ordered and decreed that the plaintiffs proceed, according to the course of this court, to make the said North Carolina Home Insurance Company, and the other insurance companies, parties to the suit transferred. And it is further ordered that the plaintiffs be enjoined from further proceeding in any action or cause now pending in this coud

CENTRAL TRUST (,'0. V. WABASH, ST. L. & P. RY. CO.

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against any of the defendants first above enumerated, until there shall be a final decree rendered in the cause hereby directed to bE' framed and put upon the equity docket of this court. And it further appearing to the court, by the admission of all par. ties in open court, that the plaintiffs have a suit against the said No;:th Carolina Home Insurance Company, touching the same sub· ject.matter now pending in the superior court of Surry county, in the state of North Carolina, it is further ordered and decreed, in pursu· ance of the court's intention, that the rights of all the parties in interest may be equally and fully administered, that the said plaintiffs be enjoined, and they are hereby enjoined, from further proceeding in said cause until said final decree may be rendered in this court sitting as a court of equity; and in the tiIean time that this cause, together with the other causes now pending in this court between the said plaintiffs and any of the said insurance companies, remain and be upon the law docket of this court, until the further order of this court, and, on motion of counsel for each and everyone of said insurranee companies, they are allowed to be made, and are hereby made, parties defendant to this cause as transferred.

CENTRAL TRUST

Co. and another v. WABASH, ST. L. & P. Ry. Co. and others, and another, Intervenor. 1

(Circuit Oourt. E. D. Missouri. December 10, 1885.)
RECEIVERS-PERMISSION TO CROSS TRACKS 011' RAILROAD AND LAY TRACK nq FRONT OF DEPOT.

Temporary permission granted arailroad company to construct and operate its road in front of a depot, and across tracks of road in receivers' hands.

In Equity. Intervening petition. The intervenor alleges that it is a corporation, and has been authorized by an ordinance of the city of St. Louis to construct its track through said city along a designated route, and that the construc· tion of its track along said will necessitate its crossing the tracks of the Wabash, St. Louis & Pacific Railway Company, now in the hands of receivers, at several places, and asks permission to lay its track, and cross the Wabash tracks, where necessary, upon payment of damages. The receivers and the defendant, by their separate answers, allege that the ordinance referred to in the inter· venor's petition is void; that at the time it was passed the intervenor was not incorporated, and was consequently unable to take any thing under such an ordinance; and that the construction of the in.
1 Reported

by Benj. F. Rex, Esq., of the St. Louis bar.

FEDERAL REPORTER.

tervenor's track along the proposed route, and along Lewis street, will interfere with the use of the Wabash depot on that street, by impairing access thereto; that the construction of such a track along said street is not such a burden as was contemplated when said street was dedicated to public use; and that the property in said receiveru' hands will suffer great damage if the intervenor's track is constructed along said street, and across the Wabash tracks, as proposed. The Wabash, St. Louis & Pacific Railway Company, by its answer, further denies that this court has jurisdiction over the matter, because the circuit court of the city of St. Louis is vested with exclusive jurisdiction over the condemnation of property in aaid city for railroad purposes by the constitution and laws of Missouri. The petition having been referred to a master, he recommended that the intervenor's prayer be granted, upon condition that the transfer company pay the cost of constructing and maintaining all crossings; and that, in operating the road at such crossings, the intervenor shall yield the right of way to the Wabash trains. Hitchcock, Madill cf: Finkelnburg, for intervenor. H. S. Pr'iest, for receivers. Henry T. Kent, for defendant. BREWER, J., (omlly.) 'fhis is not a case where a foreign corporation comes to this state and sues a domestic corporation, or where the controversy is between citizens of different states, and where there is imposed, upon us the absolute duty of determining the ultimate rights of the parties. We have possession of this road by our receivers. That possession is temporary. While it is true we might impose a lien upon the road permanently, following the road through all time, and binding upon whoever should succeed to the title, it does not seem to us that we ought to go beyond the absolute necessities of the case. Considering that our possession is temporary, the orders we make should have a temporary effect only, if by so doing we do not prejudice ultimate and further questions. Now, so far as the validity of intervenor's incorporation is con-' cerned, it is a de facto railroad corporation. If there is any fraud which was perpetrated in its organization, the attorney general of the state can institute proceedings by quo warranto to oust it, and that will determine all the rights asserted, or attempted to be exercised. So far as the validity of the ordinance is concerned, it appears to be sufficient to justify us in the action we propose to take. You want the privilege of crossing the tracks in possession of the receivers. You want the privilege of laying your tracks along a street, which, as the master says, will impair access to a depot which belongs to, or the fee of which is in, the Wabash Railroad Company, and which is in possession of our receivers. Now, whether it is necessary that the power of eminent domain should be exercised to appropriate absolutely the right to cross these tracks; whether that constitutional provision of the state of Missouri, that no property shall be

CENTRAL TRUST CO. 11. WABASH, ST. L. & P. RY.

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taken or damaged for publio use without oompensation, is appliclI.ble beri or not,-I do not think it is neoessary for us to determine. Whether this is simply one of those consequential injuries to whioh that section does not apply, or whether it oomes within the plain scope of the section as a "damage" done to the property which actually belongs to the Wabash Company, I think, are questions that may be appropriately relegated to and settled in the tribunals of the. state, ane by those who shall, within a short time, certainly very brief we hope it may be, become the possessors, owners, and managers of this Wabash road. It is fair, however, to those parties who may subse. quently come into control as well as become the owners of this property that security should be furnished to them as against any wrong which may be done by our directing the receivers to permit the crossings; for if that section of the constitution of your bill of rights does apply, it is certainly true that after occupation-after the damage is done-the party injured has a cause of action for the damages; and so, if it be true that the laying of your tracks on that street, in front of that depot, is a damage to the property within the scope of that seotion, you are responsible after it is done to an,y action which the Wabash road may maintain for damages. Back of that, however, is another question which I ought to refe11 to; and that is, that it is not gracious in the federal court, which has taken possession of property by its receivers, to make that possession an obstacle to any proposed public improvement. We should, so far as lies within our power, extend every facility to every proposed publio improvement, simply aiming to preserve the rights which attach· to property while it is in our possession, and that is all. It seems to us that iii will be fair for us in this case to overrule the exceptions to the master's report, pro forma, permit its confirmation, and direct the receivers to permit the crossing upon entering into the stipulations suggested in the master's report. As to the last one, that the Wabl1sh Company shall have the precedent right of way, I suppose all that is meant by that is that when two trains approach, at or near the same time, thtl Wabash road shall have the preference in crossing. That, perhaps, might be made a little more definite in the stipulation, and that stipulation should be signed by the company. Therefore we confirm the report of the master, in part, with the further stipulation (and to that extent we overrule the master's report) that you give a bond, with sufficient securities, in the SUfi of $50,000, to pay all damages which shall hereafter in an appropriate action be awarded to the receivers, or to the Wabash road, or its successors, for any damages which the property sustains by reason of your crossing the tracks and laying tracks in the manner proposed. Mr. Hitchcock. There is only one thing I wish to suggest, and I think that I may assume to say what I know is the purpose of the transfer company, that they will not make any objection to the finding of the court, if, as we understand it, we are not to be put in a

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FEDERAL REPORTER.

position to be debarred from the fruit of the order;· that is, we should not be put in a position to be enjoined on the ground that we had not made compensation before we undertook to do this. The Oourt, (BREWER, J.) We have possession of the road, Mr. Hitchcock, and, as far as we can, give permission to occupy during the possession of the receivers. Mr. Hitchcock. The receivers, we do not think, would be likely to do it; but we submit, whether the Wabash, which is the party to do it, will be put in a position, if they choose to seek damages, which shall take away from us the fruit of this order. The Oourt. That is a question, I think, which we ought to relegate to the state courts to settle. Mr. Hitchcock. This order will give us, conditionally, the right to do what we desire, on the conditions specified. The Oourt. Yes. Mr. Hitchcock. That is, on condition of giving a bond in the sum of $50,OOO? The Oourt, (TREAT, J.) I doubt very much whether the report of the master, as presented to us, involves what you call proceedings for the condemnation of property. This property is in the possession of the officers of this court, and this proposed action is more in the nature of a license to do certain things. That is the meaning of all this,that the receivers permit these things to be done upon your giving a bond, which, of course, extends as long as we have any control over the road. What may happen thereafter somebody else must provide for. Mr. Priest. I understand your honors to mean that no rights which the receivers might have, by reason of their control of the road, to any damages occasioned by reason of this interference, are to be determined in this matter; that this, in fact, amounts to an adjudication uf nothing, so far as the ultimate rights of the parties are concerned. The Oourt, (BREWER, J.) In view of the situation, we think it would be ungracious and improper in us to stand in the way of what is apparently a public improvement; and as to the mere matters of compensation, damages, and things of that kind, we do not think we ought now to determine them. Mr. Priest. Then the receivers may be so advised by counsel not to institute a suit to recover damages by reason of this occupation; in other words, this finding of Jour honors leaves it in that way, as I understand? The Oourt, (BREWER, J.) The mere question of damages can be litigated hereafter. As to whether and how much these receivers are damaged during the brief time they occupy the road, may present a different question. Mr. Hitchcock. Is this bond to be made to the benefit of the receivers of the Wabash road, or its assigns? The Oourt, (BREWER, J.) We have in our state a provision that

CENTRAL TRUST 00. t1. WABASH, ST. L. " P. BY. 00.

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bonds in similar proceedings may be given to the state, alid sued upon by any person entitled to the benefit of them. Mr. Priest. There is no such provision in our law. Treat, J. You' can make it to the clerk of the court. Brewer, J. Conditioned for the payment of all damages which may accrue to any person interested by reason of crossings, ete. Treat, J. I would like to have it a little more definite in reference . to this preference of right of way. Perhaps all railroad men know what it means. Certainly it does not mean that the Wabash can leave a whole train to stand indefinitely on the crossing, so that the train of the other road cannot cross. I should like to have it a little more precise on that point. Mr. Priest. I think we understand the order and the spirit in which it is. intended. Mr. Hitchcock. It is a thing understood among railroad men that where trains approach a crossing, and the question is raised which 'shall stop, that the older company shall have the right to, go over first. Treat, J. Well,you can prepare the order in that form. Mr. Priest. There will be no disagreement about that matter. Treat, J. The only thing is to exclude a conclusion. Mr. Priest. I wish to suggest, in case the intervenor should want to appropriate that part of the property not expressed in the dedication which constitutes, properly, the right of way of the Wabash Company, that the bond ought to be increased. The finding of the master only goes to the extent of this piece of property on which he has reported, viz., the crossings and the depot property, and does not include property lying on North Market street. Brewer, J. We have no data to estimate that. Mr. Priest. There was testimony in regard to the measure of damages. Mr. Hitchcock. That was reserved by consent of all parties. That matter can go back. We do not think we slJall want to use that. Brewer, J. Perhaps you should send that back to the master. Mr. Hitchcock. I suggest the confirmation of the report be accompanied with an order that the matter be referred to the master for further consideration, with leave to the intervenor to apply for a reference to the master in the event it is desired to construct tracks on that land. , Mr. Priest. I suggest that all difficulties of that sort can be obviated by increasing the bond to $75,000. Brewer, J. We do not think there is any occasion for that. It is' pretty large, anyhow, and that would be increasing it upon a mere possibility. If they do not want to occupy it, there will be no use of speculating as to damages.
(December 11, 1885.)

Counsel for intervenors stated that he had prepared and was ready to submit an order in accordance with the finding of the court ren-

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FEDERAL REPORTER.

dered yesterday. Counsel for the receivers stated that they had not had an opportunity to examine the order carefully j but, from the casual examination which they had given it, they hail discovered some parts of the order were objectionable, and not in accordance with the finding of the court on yesterday. Treat, J. You will understand that we direct our receivers to allow . these tracks to be laid upon the party giving bond to answer to any damages that may accrue to the receivers or their successors, and there we stop. We have nothing more to say. We hope to get rid of this property at an early day, and then the purchasers may litigate these matters wherever they please. We are not going to charge a perpetuity or burden upon this property while it is in our possession temporarily. Mr. - - . But while it is in the possession of the court it will permit these crossings to be made? Treat,.J. Yes. Mr. Priest. I understood this question to be addressed to Judge' BREWER, on the supposition that the Wabash Railway Company for itself might undertake to prevent the location of these tracks, so far as its interests were concerned,-that is, a remainder interest, not a present possession or interest, but whatever future interest it may have, -that the courts would be open to it for the protection of those interests in any mannerit might deem advisable. Treat, J. The simple proposition was this. Perhaps you did not catch the remarks of Brother BREWER in their entirety, and I did not wish to supplement them, except on one or two points, that the finding might be understood. Here is a property, as far as the court is at present advised, by which you have spurs, so to speak, running down to the river in every direction. Here is a rival road, if you choose, that cannot accomplish its ends without crossing your various spurs. Now your various spurs depend upon different titles. For some you have a license from the city. If we take up for adjudication each one of these crossings, with separate interests, there might be very important separate inquiries. In regard to the depot, you have the question of "damages," as well as the condemnation of the absolute right of property elsewhere. There are many grave questions involved, but this court did not choose to pass upon those at all, for the reason that this property is in the hands of the receivers of this. court temporarily. What shall be done with the property while in the hands of the receivers is one question, and the court would not undertake to adjudicate, through the process of condemnation, or otherwise, the ultimate determination of questions connected with this vast property. It is no part of the business of this court, when this property is in the hands of the receivers, to adjudicate such questions at all. We cannot go back and create any rights or liens on this property that shall pass, not only as against the present owners of the property, but against all purchasers hereafter, or cstab-