(Circuit Court, W. D. Tennessee.
In Equity. Finlay Peters, for petitioner. Gantt Patterson, for defendants. HAMMOND, D. J. The practice adopted in this case, of referring the petition to a master before any decree settling the rights of the parties upon the issues made by the pleadings, has resulted in trying intricate questions of law and fact
WA.RD.". P. & M.R. CO.
upon exceptions to the master's report, which does nothing more than ascertain the quantum of damages alleged to have ibeen sustained. It is a practice that has been justly condemned as intolerable, is certainly inconvenient and perplexing to the' court, and should not be resorted to in thefuture. Cobb v. Jameson, 1 Tenn. Ch. 604; Eu,bank ·v. 'Wright, 2 Tenn. Ch. 538; Patten v. Cone, 2 Leg. Rep. (Nashville,) 173.' Technically, the' decree' of reference is an adjudication against the 'receivers that damages have been sustained for which they are liable, and, strictly taken, the only question would be as to the amount; but such has not been the understanding oBhe parties, and I have considered the questions as if the case were before me upon the pleadings and theproof. The petition is filed to' recover damages to the petitioner's crops by straying animals, through the alleged negligo 11ce of the receivers of this court, while operating the railroad. Theclaim is for about $1,581, and the master has allowed $9')'8.27. the receivers insisting that at most the proof shows only $372.50. Exceptions to this report are filed by both sides, and they raise the questions to be determined. The negligence complained of was a failure to keep the cattle-guards on the line of petitioner's field, through which the road passes, in a condition to exclude the animals. The dJfences are these: (1) That the railroad company was under no obligation to fence or guard ,the crops of petitioner; (2) that thl cattle-guards were not negligently kept; (3) that the damag6 occurred by the negligence of the petitioner herself. 'T'he proof on some points is very conflicting, but J. think the following statement contains the facts proved, and are those upon which the rights of the parties must be de· termined: ' The petitioner, beiug the owner of a field of about 500 acres of enclosed and cultivated land, granted the railroad the right of way of the necessary width, not exceeding 100 feet on each side from the center of the road, and agreed in writing to make a deed to the right of way whenever the-