right of way for the road between stations A and B at their own cost, and without expense to the company. (4) The intervenors to pay for all trestles, culverts, and bridges necessary for the road. (5) The company to complete the road within 90 days from April 1, 1888, provided the bridges be completed within six weeks from the date of the contract; but in any event the road to be completed within four months from that date. (6) That portion of the road constructed between stations A and B to be .,perated before the completion of the entire road,provided the contractors therefor agree. (7) The intervenors to pay the company thousand dollars for each mile of the road constructed, exclusive of the eost of bridges, trestles, and culverts, fifteen thousand of which to be paid on. the execution of the and seventeen thousand of which is to have been theretofore received by the company; therein the balance to be paid upon the completion of the road, in negotiable paper acceptable to the Bank of California, and payable four months aMr (late thereof. (8) An acknowledgment by the intervenors of the execution of an assignment of even date to the street-car company of., all,of the franc.i1ises granted to the interyenors by the city of San Diego, !ind.of all their right, title, and interest in and to said railroad, includ-: ingalltrestles, culverts, and bridges" which assignment was at the same time placed in esqrow with the First National Bank of San Diego, to be the. com pany when the road should be completed and in 9peration, as provided by the contract. (9) Upon thedeli,very of the assignment the street-car company to operate the road as a belt road for through the said Klauper, Steiner, Choate, and Castle addition, and, in said operation to run not less than three regular trains per day, umwoidable delays and accidents alone excepted. For a violation of Which covenants, or any of them, and as apenaIty inuring to the ben- . eftt of the intervenors, l'a forfeiture. thereupon shall ensue of all fran¢hises, bridges, trestles. culverts, ties, rails, and road-bed, built as aforein accordance with the terms hereof," to the intervenors. .;" By the contract entered into between the intervenors and the defendcompany on the day of December, 1888, the contract (jIi"April 2, 1888, was so changed, in consideration of $12,695.88, paid to the, pompany by the intervenors, as to provide that the company ellOpJd operate the whole of the line of road from the intersection of D and '.I:'welfth streets. in. the city of San Diego, up Switzer canon, through the Klauber, Steiner, Choate, and Castle addition to the intersection of Pacifi(l avenue ",ith Steiner street, in said addition, for a period of 10 from DecempE:r 3, 1888, apd illsuch operation to run not less than trains over the entire length of said road each and ·every day <luring said term, unavoidable delays and accidents alone further agreeing that, if the company should at any time said 10 years fail to run the trains as then,as a penfor such failure, to forfeit to the intElrvel10rs all of said road from llaid and Twelfth streets to said intersection of Pacific 'Steiner streets, together with all the franchises, bridges, fresges,culverts, ties, and right of way of said road between
FARMERS' LOAN, & TRUST CO. II. SAN DIEGO STREET-CAR CO.
said intersections, and thereupon the said street-car company would execute an instrument in writing, conveying to the intervenors all of said property. There are other provisions and stipulations contained in the agreement of December 3d not necessary to be stated. The cross-bill alleges that the defendant street-car company constructed and equipped the line of railroad provided for by the contracts, but solely with funds paid by the intervenors thereunder, and that the intervenors procured and transferred to the company the franchises and rights of way, and made the payments as they agreed, aggregating in amount $73,695.88, all of which the defendant company received under and in pursuance of the contracts. It is further alleged in the crossbill that the defendant company operated the said road in accordance with its said agreements until on or about the 25th day of February,_ 1889, which was a date subsequent to the commencement of this suit, the bill herein having been filed February 18, 1889. And it is averred "that said intervenors have been informed, and upon such information and belief allege, that prior to February 18, 1889, some of the bondholders represented by the plaintiff' and the defendant corporation, conspiring andconJederating together, agreed between themselves to file a; bill of complaint in the United States circuit court of the southern district of California, asking for a foreclosure of a mortgage of two hUlldred and fifty thousand dollars, alleged to have been given by the defelldant to the plaintiff, and that the entire property of the defendant, the San Diego Street-Car Company, should be sold by virtue of proceedings to be had thereunder, and that by such sale thereof to deprive these inter-. ",enors of their rights obtained by virtue of these contracts. alid to agree to appoint the president of the defendant corporation the receiver, and thereby secure to themselves the aforesaid rights, franchises, privileges, and so forth, belonging to the aforesaid railroad extension as their property, and to operate said road according to their own advantages, and deprive the intervenors herein of all interest in said extension and the t;lse of the same; and that, acting in furtherance of said conspiracy and fraud ulent com bination aforesaid, after Milton Santee had been appointed receiver, he, the said stopped the running of trains over the extension of said road constructed :with the money furnished by the intervenors herein for the! purpose of depreciating, and does thereby so depreciate, the value of said extension, and will, if continued,entirely ruin the same, and cause the same to become entirely worthless; since time the defendant and the receiver appointed by this honorable court to take charge of and operate said road have wholly neglected and refused to run any trains over said line of road or !.lny part thereof, and the said defendllnt and its receiver still refuse to operate said line of road, whereby, and by reason of said failure and refusal of said.compa.ny to operate the entire line of said road as in said contracts provided, the of said contraots have been wholly lost to the intervenors,and since which time they have been, and are now, deprived of the advanfor in said agreements; and the right to have and demand a conveyance from said defendant or the entireline of the extension of
said road from theintersecti.onof Dahd Twelfth streets to and through land to a point where Steiner street intersects Pacific avenue, including franchisfls, rights of way, bridges, culverts, trestles, ties, rails, and road-bed, has accrued to said intervenors." The cross-bill further alleg-es that by reasot1 of certain stated provisions of the charter, and of an ordimmce of the city of San Diego, the franchises granted to the intervenors and by them assigned to the defendant company are in danger of becoming forfeited by reason of the non-operation of that portion of the road constructed under the aforesaid contracts, and upon information and belief alleges that the defendant company has not "sold and disposed of two hundred and ififty thousand dollars of bonds provided for, and secured by said alleged mortgage, for the uses and purposes of said street-car company, or any considerable portion thereof." The prayer of the cross-bill is that the defendant company be required to furnish a list of the bonds issued, and show to whom they were sold, for what consideration, and what was done with the proceeds; that the rp... ceiver appointed by this court be required to execute to the intervenors a deed conveying' to them the entire line of road as constructed from the intersection ofDand· Twelfth streets to the intersection of Steiner street in the Steiner, Klauber, Choate and Castle addiwith tion to the city of San Diego,together with the franchises and rights of way therefor; that it be decreed that the mortgage in question does not embrace any portion of the road oonstructed under the contracts made between intervenors and the defendant· company, nor any of the franthe determination of · chi8esor rights of way aforesaid; this suit, the receiver be directed to operate the said portion of said road in ·accordance with the terms of said contracts, etc. From this statement it is very clear that the claim set up by the intervenors to the property referred to in the cross-bill is adverse to the complainant·tll:lwell as the defendant to the suit. They not only allege that portioilofthe road which was constructed under the contracts setup in the croSs-bilI, with the franchises and rights of way therefor, WI1S not covered by ,the mortgage, butl1ssert title in themselves as against bbthcomplainant and defendant by reason of the alleged faHureof the recl'liv.er to operate such portion of the road, rind ask that he be decreed to execute a eonveyance thereof to them.' It is well settled that such adv(lrse'claims c8nn6t be litigated and settled in a foreclosure proceeding. Diitl'JV. Reyn()lds,96 U. S. 340; MaOomb v. Spangler, 71 Cal. 423, 12 PM. Rep. 347., 0f course, under the decree of foreclosure no greater interest can 'be sold than the at the time of the execution of 1h61 mortgage, 6r subsequently acquired. Rights superior to his are in nOI'wise ati'ooted; and where property is subsequently acquired by the is embraced by the terms of the mortgage, if it is acquired subject to conditions, a' purchaser at a judicial sale under the fuottga'ge.would undoubtedly take sUbject to theeame But 'opinion; the questions sought to be raised by the intervenors and determined in this proceeding, I think it properto,direot· the attention of counsel for the c<>mplainant at1d the de-
!rEXAS 4t iP. RY. CO. fl. CITY Oil' NEW ORLBANB.
fendant to the suit,at whos,ejoint request the president of the l1efendant company was appointed receiver; to the question as to whether this court ought not to order the receiver to operate that portion ,of the road referred to in the cross·bill, in accordance with the terms of the contracts under which it was constructed. It is ordered that the amended answer of the intervenors be stricken from the files, and that the demurrers to the CJ:O&l-bill be sustained, and the cross-bill be dismissed.
& P. Rv.Co.
E. D. LO'Uiriana. AuguBt 24, 1889.)
An injunction pendente tite, from interfering with ,complain"nt in the erectiQn and maintenance of "uoh structures as it was authorized to , and maintain under the authority ot tlle 'ordinance, did not protect' complainant in the erection,oUhe pilingll;;or other ou,tside the wharf Une ot'theoity. & NAVIGABLE W .Oil' COUBTll-INroNCTION., · ' · '.'. " The MiSsissippi rivel",being a navij1;able Btream, is within the exclusive' Control , of congress, and neither the city of New Orleans nor the' state of Louisl.8.na,C8Il authorize any obstrlwtion of its navigl1otjOJl; .:nor can tile courts extend tbe, , so as to protect complainant in, the 'erebtion of strUcture,B outside th" wlial'f line ,of the city. " ' ,
, ,:BiV ordinance of th,e cit:v of New Orleans, the right was conferred on complainant , railroad company to inclolleand occuPY * * * that portion of the levee. batture, and wharves in the city in front of itB riparian ,property, acquired or to be !'l"l.uiied, between certain s,treets, ",nq to erect and maintaintllere\lu Buch ferry facIlitieB, wharves, piers, warehouses, tracks, depotB, eto., as Bhould be necessary and convenient for the transfer'of carB, engineB, passengers,and freight, and in the traIiBQf its business. , Held, that the right to erect. t1:lese improvements .con· fined to BO much of the levee and wharf 9f tile city lW lay in front of 'tlJEl riparian property of the complainant, and didnQt extend beyQndthe wharf line; and. the QrdinaD,(l6did nC?t authprize :the placing o,f ,piles, or any QtherBtructure" ontsido of the line of the Clty wharf. ' ' ,
InEquity. ,'" Howe & Prentiss, for complainant. <brleton Hoot, for defendllllt. '
The questions now to be decided arise, upon the motion KIf ,the defendantto ,modify or construe the scope and effect of an injunction I !pendente. lite, heretofore granted'in this cause, and:npon of :complainant to' grant an: ,additional injunction pendente lite., .Each illOtion is supported by affidavits., The supplemental and ,bill upon which the injunction pendente lite was graAted, which it ill ;asked shall be continUed and modified, in substance alleges that " virtue ofeertain ,OrdinanceS, made and promulgated by the ,eoup.<lil of the '. ,the & Pacific RaiLwaYiComr' paDj; pfwbich the is the successor,' waa,a,uthol'ized and em- " under certain conditions therein stated, itLElStabliilb: 811dmain,1aint fi?rits use andl.beuefit, upon the nver; front Of the: Mississippi ,nverjiwith,in"theco,rp()Jfl4ielimite of said oity,iaq.d within