TEXAS & P. UY·. co.
CITY OF BATON ROUGE.
Another question that was raised was in regard to the costs of the appeal which was taken by the stockholders from the decree formerlyentered in this case. The former decree was reversed on this appeal, and the appellants in that case recovered costs against the appellee. The appellee also incurred expenses in the printing of records and brief.<;I, etc., upon this appeal, all of which it would be unjust to charge against Mrs. Irons, the complainant in this case, becauBe she stands merely in a representative capacity, prosecuting this suit for the benefit of the creditors of the bank; and hence it to me that it is just, and I shall have it so provided in the decree, that, on the payment of the mOl.ley assessed against the stockholders into the hands of the clerk of the court, the clerk first ascertain the amount of costs which were recovered against the appellee, and also tax the costs which the appellee incurred .in the defense of that appeal, and deduct, before any dividend is made to the creditors, the expenses thus incurred. This will protect Mrs. Irons, I think, which should properly be done. A decree may also be prepared, directing the defendant stockholders to pay, and I presume it will be more for them-(this is merely a suggestion of my own, and has not been made by their counsel)-and my suggestion is that an instaUment 0[25 per cent. be paid in 30 days, an installment of 25 per cent. in 60 days, an installment of25 in 90 days, and the balance in 120 days; making the decree all paid up in 120 days. If this is not desired by the counsel .representing stockholders, a decree may be Dlade for the PaY1 ment of the whole amount in 60 days. The counsel mayconsultt.9gether about that. The clerk will, under the direction ofthe master, tax the costs that were neces::>arily incurred against the defendants in resisting the claim of the People's Bank of Belleville, and the decree will· adjudge these costs to be paid by the People's Bank of Belleville; but .the cost o£the master's fees upon th.is reference may go into the general costs of the Cll.se, because it is impossible to divide it, and see how much of the labor done by the master upon this reference was given to the claim of the People's Bank of Belleville, and how much to the general.adjustment against each stockholder.
& P. Ry. Co. ". CITY
OF BATON RoUGE et
(Oircuit Oourt, E. D. Louisiana. June 8, 1888.)
INJUNCTION-RIGHTS PROTECTED AND WRONGS
Complainant. having the right under its charter of transporting its passengers and freight across a river by, means of its own boats. agreed. for a con· sideration. to use for such purpose only the public ferry operated bya.private party under a lease. The ferry proving inadequate, complainant commenced running its own boats for purposes of transportation. Held. that equity would not protllc.t complainant from the consequences of its failure to comply with the contract, by enjoin inK the operators of the ferry from interfering with the operation of complainant's boats.
apublication delayed by inability to obtain copy of opinion at time of delivery"
FEDERAL REPORTER. In<:mquity. On motion Jor, an injunction. The Texas & ·Pacific Railway Company entered into s contract with the ciiyofBaton Rouge and Gebelin & Philips, by the terms of which the said railroad company, in consideration of certain priV'ileges granted by the city, agreed to transfer its freight and passengers from West Baton Rouge to the city of Baton Rouge, by means of the public ferry which had been leased by the city to said Gebelin & Philips. The ferry being deemed inadequate, the company chartered other boats, and sought to exetcisethe privilege granted by its charter of transporting its freight and passengers by means of its own boats. A restraining order having been issued, the complainant company asks that an injunction issue, pending suit, reStraining the said cityi of Baton Rouge, and Gebelin & Philips from interfering with the conduct orits business in so transporting freight and pallsengers. . W.W. Haw6, for complainant. Farrar, Jonas « Kruttschmidt, and Bird, for defendants. Before PAkDEE and BILLINGS, JJ.
PARDEE, J. On the showing made we are of the opinion that the complainant under its charter, has the right to run, operate, and control transfer-boats to and from its rail terminus in West Baton Rouge to and from the city of Baton Rouge, for the transportation of its freight, passengers, and employes, (see Harrisonv. Railway 00., 34 Ln. Ann. 462; Hepting v. ilailway Co., 36 La. Ann. 898;) that, in landing its boats within the limitsofthe city of Baton Rouge, it is subject to the general police regulations and control of said city, and can only exercise svecial privileges therein by lawful grant of the said city, (see Packet Co. v. Catlett;;burg, 105 U.S; 559;) that the right to operate such transfer-boats is not affected nor litnited by the legislative grants to said city to operate or license pUblic ferries to and from the west bank of the river, (see Conway v. Tay7m'8Ex'r, 1 Black, 603, 632;) that the complainant may exercise the right by chartering or hiring boats and barges to perform the said service ilubstantially as in the contract attached to complainant's bill; and that for so exercising the rights under its charter the complainant cannot be lawfully interfered with by the defendants, either by denying proper landing or by arresting and harassing employes. that within the last two years the comWe finei, op the showing plainant and the defendants, the city of Baton Rouge and Gebelin & Philips, the latter being the lessees of the public ferry, entered into a contract to the substantial effect that, in consideration of a specified landing an<i. wparf privileges gratited by the city to .pOO1plainant, the COlnplainant would operate no transfer-bo!tt for the transler of passengers, but wouldtrahsfer them by the public ferry. It is theimpaitment of this contrapt, '\Vhich gives fise to this suit. The that the facilities furnished by the public ferry are of "very inadequate capacity'aildineffective power, *. * * andWhich ao not and l,'annot furnish the necessary accommodations" for com plainant's largely increasing business,and, that the public ferry-boat does not ply from and to
landings suitable to accommodate complainaDt'sb'usinesB, and does not :cross ,between sunsetand to meet complainant's passenger travel, , bas chartered boats to do an its transfer service. The defendants (:lebalin & Philips allege their ability to perform' all needful service,' their willingness to run their boat at such times, and from and to such lariaings .as will fully meet ,the wants I)f complainanfs passenger traffic, and that they have not been put in default; and this last is conceded. The injunction asked for is to restrain the city of Baton Rouge and Gebelin & Philips from arresting and harassing complainant's employes in carrying on complainant's legitimate business. As the issues between the parties are presented to us, itseems that the controversy is one for the determin'ation of a court oflaw in regular course, and that, while the dafendants ought not to resort to police proceedings to enforce specific perfom1ance of the contract, the complainant ought not to have protection from a court of equity against the legitimate demands arising out of its failure to comply with its contract. On the case as made the injunction ,pending the suit is refused, and the restraining order heretofore issued is -dissolved. BILLINGS, J., concurs.
(Gircuit (Jourt, No D. I01JJa, E. D. ,December 18, 1888.)
,,1. TUATtON-Tu'l)TLE-AcTION 'ACTION. ' ,
TO QUIET-LnI:ITATIONs-CmOiENCE¥ENT OF " .
Code Iowa, § 2599, provides that actions in a court of record shall be commenced, by ser"ing defendant, with a notice. Title. 17 of the Code. which is: "Of the limitation of actions," chapter2, enacts the time within whichactiop,s of the various classes named, not including actions in regard to land, based on tax titles, may be brought; and section 2582,a part of the chapter, provides , that the delivery of the notice to the sheriff with intent that it shall be served immediately; or the actujl,l service by another person, is the commencement oithe action. Held. that the latter provision as to what constitutes the commencement of an action applies only to those named in that chapter, and that former provision. being the g-eneral rule, determines what shall be the commencement of an action on a tax title to quiet adverse claims.
. Where a purchaser at a tax sale brings an action to quiet title. under a city treasurer's deed, and afterwards amends the petition, setting up a, deed from the countytreasnrer, the action as to the land in the latter deed Is not deemed to have been commenced till such amendment, within the meaning of Code Iowa; § 902, requiring actions for the recovery of land sold for taxes to be brought within five years from execution and recording of the treasurer's deed. ':8. SAME. Under Code Iowa, § 897, providing that when a connty treasurer's deed on a sll-le for taxes is executed and recOrded the title shall vest; an action to quiet titlo by a purchaser who has neglected to complete his title.1;>y. b;aying his deed recorded, for the period of limitation during which defendants have been in possession, is barred.