SPIES '11. 'CltICAGO &: E. :I;n. CO.
fused to grant when aSkM:fordirectly. It is not understood that any question.' 'can be raised by ilemurrer to the bill that cannot be raised on final hemng on bill, answell, a.nd proofs. The righteof the parties are supposed to stand upon the I!ufflciency of the a.llegations in the bill throughout. A demurrer would be an experiment. The saving which might bl'l made in expense by it is not made to appear to be sufficient to warrant trying . Justice can probably be as well dorieby pursuing the usual course, on whicll the defendant ·started. Motion denied.
& E. 1. 'R.
(GfrC1,dtOourt, B. D. NetJJ York. Mareh21,l887.)
<\ ,: i:Ul
«\e-ttd oHr!U!t, the defendant e0qlPa,py t() . JIlents on Its part eontamed the deed of trust, aIidnot seelung ,to reaeli III ,any Wi!.ythe secUrity tirotitled in said deed, or .the in'eome;Of th6'road;'1tirough thUTJghts or powersad',the truatee, the lat,ter IS not a. ueC8I8&g );lar'y.
an "etlan by'!Io holder of the bonds of a railroad company. s8Curedby a
IQ -Et\'I1ity; On dea:turrer to bill. John W. Weed, for plaintiff. ' A:I,l.8te1tG. Fox. for defendant.
WaEELER,J. The bill allllges, in substance, that the dlefendlarit issuedbondsof$l,OOO eacb,-lo'tbe amount ofSl,OOOjOOO, byea:ch dfwhich it promised to pay the bearer the principal sum of $l,OOO'onthenrst December, 1907, and such interest on the first day of ,December annually, if any, as should be declared and fixed by the ;boaid ofdl. reetors,not exceeding 7 per cent., in accordance willma deed of trust to a trustee pledging and appropriating the net income and earnings oLthe road of the defendant as security for the payment of the principal and interest; that the deed of trust provides that the directors shall, in the ascertain, fix, and declare what amount of month of October to the payment of net earnings of the preceding yeatis interest on these bonds; that, if they adjudge that a specific sum is available for that purpose, they shall enter a resolve in the nature of a final aWllrd declaring what sum is available out of thatyear?snet,earningsf6'rthat and the .rate of interest payable bond; thlltthe pllyttient shall be adVertised; that the defeiidant willpromptly 'furnish the funds necessary to make the payment, and set ,apart so much netearnings as a specific trust fund for such payment; and that, if 'the 'defendai}tehall faiI to aeposit the full suih '00 pay the interest in any. year,the trustee shall havepower,athis iHscretion, and u,pon. the w:ritten request ,Of the,' of a IIiltj&rity . .. e b,o.nds, to demand, take, and hold possessIon of the road ap,d equlpments, and
receive thtHncome and revenue therefrom, u.ntil the net shall be sufficientt6payall the then;al'l\eal'Age&of intertlSt; tba.tthe orlil,tor has been theowner·and·holder ofeuch bondsj.to theamollPtof$62,500, since September,l, 1883; that sinoe;then the defendant, its officers and directors, .have:conspired to fraudulently compel the and other holders of the bonde to surrendeJ:: the same, and to fra,udulently withhold net earnings properly paya.ble thereon, and. for ·that purpose have made fa.lse,' fraudulent I and fictitious ascertainments.qf setting forth the particulars thereof, whereby the orator and other bondholders have been deprived of their share of the net income. The prayer of the bill is for the ascertainment and payment of the amount justly due for interest. The defendant has demurred to the bill. The only ground of demurrer urged or relied UPOQ is that the trustee is not in any manner made a party to the bill; and severa.l cases, and particularly Jforgan v.Rauway,Co., 21 Blatchf. 134, 15, Fed. Rep. 55, and Barry v. Rauway 00., 22 Fed. Rep. 631, are cited. If the orator was seeking to reach the income through the rights . or powers. of .the trustee conferred by the deed of trust, there is no question but that the trustee woubi be a Ilecessary party. .But that is not the'case. The oratorisseeking:anlytocoinpel the.<lefendant to fulfill its agreement fairly and honestly,and not undertakmg to reach any of the security provided by the deed of trust. The deed of trust is referred to for the specification of the amount of interest which the defendant agreed to pay,and is not sought to be enforced at all. The orator is not seeking to fore-close the mortgage, or to execute the pledge, but is endeavoring to collect the debt secured. The amount of the debt is in dispute, according to the bill, and an account or asCertainment is necessary to determine the amount. The trustee could not bring this suit, and has no interest in' it as trustee. 'The cases referred to are where the property securing the debts through 'a, trustee was sought· to be reached, and in that respect are distinguishable from this, i Demurrer overruled; the defendant to answer over by next May ruleday-
Oo.lo1'ado. / March "I, 1887.)
'l;RAILRoAD-1'RAClt IN STRBET-'-RIGB'rS 'OF ADJAOENTLo'l'-OwNEBS. . .A constit"tion compensation t.o owner of property by the publIc u,e, entitles the owner of a IotaQuttingon the street ,.to fe'cover'damages of 8 railroad c'ompany, diminishing the value of the lot by laying tracks alid running its trains through the streetinfront·of the lot.!
easement On a public stree!or inaY' notbe taken'or Impaltedwlthout cODlpenilatlon bemg Wade. Lohr v.¥etropol"itan Elevated R Co;, eN. Y.) 10 ,N.' E; .ReP. 528 : Terre HaUfe .&L; R Co. v. Bissell, (Ind.) E· note. .. , ' "'. ." ...., .' As to the right of compensation tor damages, direct and conseq,uential, sustained by the'abutting Owner in 'consequence of the buildiug and operation of'a railroad along