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
FBANKLE 11. JACKsoN.
, In such cause of Mtion accrues against the railroad at the tIme of its occupation of the stre,et, and Ii! barred,liKe any other cause of action, after the lapse of the prescribed number of years from that date, so that for each day's ,continuance of the occupation a new cause of action does not a.rise. 1 A change in the ownership of, the railroad property neither revives the old nor creates 'a new cause of action. s Althongh a ra.ilroad company may have acquired the right to lay a track along a street, and run its trains thereon, yet, if it leaves its cars standing on the track so as to improperly obstruct travel, the abutting lot-owners may recover for such improper use of the street, and the cause of action for such injuries arises as often and whenever they occur; and for each day's continuance of the wrong a ne". cause of actIon arises. But it is not an improper use of the iltreet to I;un trains at night as well as during the day, to run heavy freight trains, and to rin£ bells and sound whistles. corporation is the proper party in whose name suits by or against the corporation maybe conducted.'
'fO SUIT. A recllicver duly appointlld to take charge of the property and bl1s1ness of &
:BY LEAVING' CARS STANDING
8. SAME-OBsTRUCTING THE STJi:ll:ET
In Equity. Brmline' & Putnam, for plaintiff. , E. a.Wolcott, for defendant.
BREWER, J. This CasE:) .issubmitted on demurrer to the second ana third of the answer. In her coroplaint, plaintiff allegQS that since .January ahe has been the owner of certain lots ontha porner of 'Fifteellthand WynkoQP in Denver, on which, in that year, she built has since kept a hotel. She further alleges that prio:r to 1879 the Denver & Rio Grande Railway Company entered,upon said Wynkoop ,.street,and laid down a: railroad track, and that in 18&0 it also laid down ,.;8, side track the .main track and the sidElwalk, and on the side ·of o her property, and that thiswaadQnewithout her that the said compaIlYWled. tb,is cars,and loading ,and unloading coal at Iillhours . >Qf the aQd night, .converting that portion of the street into a coal,:yard. She aJso alleges that this continued until July, when the defendant was receiver of f?aidrailway company by t4is cl)urt, .aIldWo).t pOEjsessionof al,lits property, and that he has since continued , .to use, said track and sidetrack in the same The seeonli; count in tl1.e answer that.the r(l.i1way company entered in,l$71, and.cou!Jtructed, and since, up to the time oithe appointment .of.defendltn,t.as receiver,uaed the. main track under the authority of an :o:r:dina,nce'of the city of Denver. The third count pleads that in 1882 the railway company, upon the street under like authority, and ·constructed the side track.
tbe MJ,le ota see Terre & L. R. Co. v. Bissell, <Ind.) 9 1,44, and note; 'PittsburgbJunction R. Co. v. McCutcheon, (Pa.) 7 At!. Rep. 'South" .ern Ry'. C<l. 'V.' Brown, (Fla.) South, Rep. 512. ' , ' lSeeCbl:cago & E. I. R.Co. v. McAuley, (Ill.)llN. E. Rep. 67;, Bizer v.OttUJ$.wally.draulic P0\'o1er\Jo., (Iowa,) 30 N. W. Rep. 172, and nQte. . ' .' .; ISee )Ietropolitan Elevated R. Co., (N. Y.) 10 N. E. Rep. 628., ' --See:Whibburnig Case., ante, 167, and'Dote. ).. :. J · "
The question presented by the demurrers is whether the facts alleged disclose a of a<;:tion continuous in its nature, and therefore giving each a r;lew ,.,ction, Qr one its nature, and arising solely and fu11Y at the time of the first entry' and occupation of the street. I had occasion, when on the supreme bench of Kansas,. to examine, in connee-tion with 1pytlwn thisq],lestion in several cases and in many aspects, and I shall therefore do no more now than state my conclusions, .and refer to those . . the cOnstitution laws of .!'lo. IItate, compensation . (1) is limited to ,('property taken," and'does not cover" property damaged," , alld fee of the street is riot ill. the adjacent 10t-9wner, the mere use of the street by a railroad. ,when by law, for the laying down of track, and the running of trains, gives DO cause of action to I re,sultto hiD.? t,herefrom. The mterference WIth the free use of the street he suffers m common with all, pro bono publico, although he may suffer more than others. Rauroad Co. v. Garside, 10 Kan. 552, and cases cited. ' . (2) Where, however, as in this state, "propeiitydamaged" is within the the constitlltional guaranty of compensation, then any value of whose lot is diminished by the laying of a railroad track and the'running df trains in astreet in front thereof, may have an action for . such damages.Oity ojDenvt!rv.Bayer, t Colo. 118, 2 Pac. Rep.6. (3) 'In :a.l:l cases in which II. 'cause of action may exist, and in whioh it springs. solely from the down of the traok, ·and the subsequent an. and lawful manner, is but a.smglecQ,llseof actIOn; It lllvoives, for the purpose of determmmg the compensation, the questionofa diminution in value of the lot caused . by the construction of the railroad; it arises at the time of the occupa!tion of the 'street by the railroad company; and it is barred. like any other calise of action, after the lapse of the prescribed number of years from that date. A change in the ownership of the railroad property neither revives an old nor creates a new cause of action. 'IUnlike ·ae-'tions fOl'trespass to realty, where the plaintiff can only recover for the injury done up to the commencement of the suit,insliits of this kind a . single recovery may be had for the whole damage to result from the act, . th'e injury being continuing and permanent." 0i1y :of Denver v. Bayer, 70010.'113, :2. Pac. Rep. 6; Railroad 00. v.Mml ,:11Kan. 224; Railr roal:lCb. v. TWine, Kan. 585; Railroad Co. v. Andr8W8, 26 Kan. 702; J'gulhoUand v.D. Mo, A. &: W. R. Co., 60 Iowa, 740; 13 N. W. Rep. 726; Railroq,rJCo. v. Loeb, (Sup. Ct. Ill.) 8 N. E. Rep.. 464; 'Railroad 0>. v. 10 Bush, 393; Railroad Co. v. EBterle, 13 Bush, 669; Fowle v. New Haven &: N. Co., 112 Mass. 334. ' . railroad company, n?t be l.iable in for the , . _,;O,cCl,lPA.!'\()q. oCa street, and of Its tralJ;lsthereon m a ,cllstomary, reasonable, and proper manner, or has pp,id,the full damages al" I.}t)wedtherefor, ··it:may still ,be liable to damages for a;ny unreasonable, .and ,wJ,'Ongful of its track. The. right to Use a improper, street for the ruhning of trains to establish it repair shop
. A railroad company may be liable to if it obstructs the street by unreasonably and improperly leaving its cars standing ,thereon. It cannot abuse th!'l right given it, to an,other's damages. Wl1at'ever l:\se is reasonf!;ble and proper, it may 'enjoy without liability. When it 'golils Qeyond it liable, as any other wrong-doer. What use is reasonable and proper will, of course, vary with the circumstances, aI.1d be absolutely determined in ignorance of the surroundings. A: for injuries, they being changing and temporary in theirl1ature, anISes whenever and as often as they occurj and for each the'wrong a new cause of action arises. 10 !(an" 2g':Kan., 2() Kan. 702, S'!J,pra. Applying these prinCiples to the case at bar, demurrer to the second count in the answer must be overruled. Such count clearly states a full defense to any action on account of the main track. It was placed in 1871, and· whatever right of action J:nay have been for the construction ofsuj)h trapk, and t}le rtinning of trains thereon in an ordinary and proper manner, arose at that time, and is long since WQ. improper qlle of such track is alleged. It is proper to run ,trlJ,iQRIDItJM>nigptas !tS the daytime, to run heavy freight trains, to ring lW-P. whistleel' and no unreasopable or improper conduct ill is sho:w:n. , ,to the side track, the occupation having commenced in ·. the of liIXliiatiPJls (ioes not bar. A receiver, duly appoinmd c;ll;ulrge of the prpperty, and business of a corporation, is a proper party, in whose name suits by or against the corporation may be conducted. It be doubtful whether the plaintiff is intendt.Q lcou,Jlltl¥>]Ply UPPJlt}le oJ,'iginal inva,siqJl of her rights by the occupa.tiop.p Ul82, tp'l:l J:llanner of \lae allege<l being simply matter of or relies also upon a Wrongful and improper If the latte.!;, it that the complaint should be amendl'ld so to clearly pfiltween the two causes of actioljl, and state each separately. Ida not stop to determine thatque$tion. . to thethi,rd count in the answer will be sustained.
LYON and others'll.
(Of!rC'Uit Oo'!trt, R. D. Virginia. Februllory, 1887.)
FOR BENEFIT OF OR.EDITORS-USE OF WIFE'S MONEY-WIFE AS
, If a,q.1wP/lnd. not acting in a fiduciary character as to the wife's, income. of w1J.i(lhshe personally has entire control. collects such income habitually with cpnsent and acquiescence, and mixes those collections with his own ,m.oneys,ll-nd does not, at or before the time of his collecting them, give proot bYh¥! own declarations or MtS that he receive$ them as hers for, her separate use, and holds them as a debt due from himself to her, and she permits this appropriation of her income by him to go on for It protracted period, then, and in such a condition of affairs, she cannot afterwa.rds,on the occurrence