tice was ever given, to the Mortons or to this complainatit of the title or claim under which he was holding possession since :the 'date of the decree. In other words, he puts before the court a continuonspossession, commencing in 1869, before the rendering of the decree; and lasting until the present time, with no change in the circumstances of such possession, and no notice to the complainant since that decree. Now, if the testimony sustained this allegation of possession, open, continuous, and exclusive, (and it comes very far short of it,) it would not avail the defendant aught. By the decree, and the deed made in pursuance of it,all title and right of possession in Root were transferred to complainant. They were equivalent to a voluntary conveyance by him to Morton. Under these circumstances, no retention of possession was adverse to the title conveyed, and he could not bolster up Ii title based upon that possession until he had first given notice of his ihtention to claim adyersely. These are the substantial questions, and must be resolved in favor of the present complainant. When the matter was before me on demurrer, I ruled that this proceeding could be maintained, and that by this supplemental bill complainant had a right to execute 'the decree. I see' no necessity of reconsidering that question. I understand the rule in equity to be that when once a decree has been rendered the benefit of that decree can be obtained, not merely by the complainant, but by those holding under him. It would be strange that" after a decree had been rendered to quiet a complainant's title, any heir, devisee, or grantee from him should be put to the necessity of an suit for the purposes of securing the benefits of that adjudication. When the decree was rendered 'establishing the title of Morton, and quieting it as against any claim of defendant, that was an,adjudication which defendant was bound to accept as final, unless by suitable proceedirlgs in appeal he succeeded inreversillg it. Instead of pursuing his legal remedy byllppeal, he has Bought in this indirect way to set aside that decree. Equity will tolerate no such proceeding. A decree will be entered as prayed for,enjoining him from setting up any claim to this property, and directing the marshal. to put him out of possession, and restore pos- ' session to plaintiff.
J'ENIONS ". TRAGER·
(Oi'l'OO" 00U'l't, B. D. MisriBsippC. M. D. November 95,1889.
BotnrnARY LntE :l'BTWBBN LOUISIANA. A.ND MISSISSIPPI.
The line of run, b!ld, and marked by Andrew Ellicott, commissioner on the part of the United States, and William Dunbar, commissioner on the of 'Spain, in 1798, was the true boundary line between the territory of the United States and that of Spain prior to the purchl1-se of the latter territory, and Is, Bnd ever since has beent the boundary line. the states of Mississippi and Louisiana, irrespective 01 any mistakes or errors 'in running and ma.rking said line. John Jenkins,.plainti1!.'s,fl!o$er, purchased the land in controversy in 1831, and lDiInediately Weltt into actu!IJ possession. under a deed describing metes and bounds,
S; PVBJdO LAlfIls-PBEsUMPTION 011' PATENT,ll'ROM LAPSB OF TIME.
JENKINS 17. TRAGER.
and remained in possession until 1855, when he died. His executors under his will continued in possession until 1867l..!1Then this land was partitioned to plaintiff, who has held possession ever since. .l1eld., that the law presumes that a patent issued for the same from the United States, and that the conveyance, coupled with the possession, vested in the plaintiff a valid legal title to the land embraced within the calls of the deed, in the absence of proof to the contrary.
.. ADVERSE POSSESSION-RIGHTS OF GRANTEE.
The adverse possession of land by the grantor oannot avail the grantee, beyond the boundary line described in the deed. (Syl,l,abm by the OOurt.)
At Law. Ejectment. Nuge:nt &; Me Willie, for plaintiff. Calhoun &; Green, for defendant. HILL, J., (charging jU1·y.) The plaintiff, in his declaration, alleges that be is the legal owner of the land, and improvements thereoll, described "in his declaration, and IS entitled to the possession thereof, with the rents and profits thereon since, the 21st day of May, 1882, when it is alleged the defendant unlawfully deprived him of the possession of the . saIlle. To this declaration the defendant has pleaded not guilty, which throws upon the plainWf the burden of proving to your reasonable satisfaction the truth oLthe allegations made in the declaration. It is admitted that the defendant is, and was at. the time the suit was '. commenced, in possession of the land described in the declaration, though iOs insisted that it is in LouIsiana. The questjoo po be decided by you .is. to 'aScertain from the proof whether pr not the plaintiff was, at the _ he brought his suit, the legal owner of the land, and improvements thereon, as described in his. declaration. The certificate of the register of the land-office, given to Richard CoUins,Aated January 1, 1809. is evidence that Collins had entered 480 acres oflandlying on the east side oqhe rdississippi river, but, does pot describe the land so that it could 'be found, and, if there was no other evidence in the case., would bein'suffipient evidence to sustain the action. But the deed of Richard Collins and wife to William CoUins, evidently. was intended to eIPbrace the same land, and describes it as being in Wilkinson county, Miss., bounded on thewest side by the Mississippi river, and on the south by the line ,. of deIParkation the United States and the Spanish territory, being the same line now dividing the states of Mississippi and Louisiana. as shown by the evidence before you, was esThis Hile of tablished by Andl'ewEllicott, commissioner 00 the part of United States, and William· Dunbar, commissioner on the part of Spain, in 1798; an.d ha.s ever since been recognized by the states of Mississippi ),ndLouisianfj.ss the dividing lipe between them. It is conceded that the 18.1;1<1' described in the declaration is within the boundary set out ip this deed; if it lies. north of aajd demarkation ljne, lI.nd that if jt lies . it.
evidence to establish the plaintiff's title. The deeds and tranl.lcripts from the records of the probate courts of Adams and Wilkinson counties, read in evidence, establish the following facts: That William Collins conveyed the lands purchased from Richlitrd Collins and wife to John Wall, and that the heirs at law of John Wall conveyed whatever of title John Wall had in the same lands to John F. Carmichael; that John F. Carmichael died intestate, leaving his sister, Phcebe Carmichael, his only heir at law, to whom the land in controversy, together with other lands, descended; 'and that Phcebe Carmichael, on the 3d day of August, 1838, conveyed the land thus cast upon her by descent to John C. Jenkins, the father of plaintiff. The uncontradicted parol evidence establishes the fact that said John C. Jenkins, soon after his purchase, went into actual possession of the lands so purchased; that he cleared and cultivated a portion of them, and continued up to his death in such possession; tp.at his executors under his will continued in the possession thereof until the 28th of February, 1867, when they were partitioned, and the !:louth-west corner of the tract, embracing the land conveyed by Richard Collins and wife to William Collins, and through mesne conveyances vested in John C. Jenkins, was allotted to the plaintiff, who immediately went into the actual possession of the same. and so continued up to the bringing of this suit. This actual occupation, therefore, covered a period of about 50 years. From this possession, taken under the deed from Phcebe Carmichael,and so long continued, it will be presumed that a patent was issued by the United States to the original purchaser of the land, and that John C.Jenkins, in his life-time, had, and, the plaintiff, his son, has, a valid legal title to the land described in the 4eclaration, unless he be barred, as to that portion of it now in controverSy, by the adverse possessiCln of the defendant or Mrs. Cheatham, under whom he claims title. Such adverse possession, however. must be continual and unbroken for the spuce of 10 years next before the commencement of this suit, to be avuiledof by the defendant. The posses-sion of a part of the lauds conveyed to the plaintiff and his ,ancestor is a possession of all the lands included in the conveyance under which such possession was taken; but, as to any part of the land not described in the deeds relied on, the adverse possession can only extend to the portion in actual ocoupation adversely for 10 years without any break therein. This rule applies'to the adverse possession claimed on both sides. The first and most important question to be ascertained by you under the proof is as to where the original line of demarkation, fixed by the 'commissioners Ellicott and Dunbar, is, as that must fix the boundary, not only between the states of Mississippi and Louisiana, but between the land claimed by the parties to this suit; both asserting that line as their line and only boundary. The thirty-first parallel, north latitude, was agreed to be the line between the United States and Spain. and consequently between the states of MissiBBippi and Louisiana; and it was further agreed that the commissioners named should determine where that parallel was, and fix and mark its actual location. When that was
JENKINS fl. TRAGER.
done, the line of demarkation as fixed must remain to this day. whether there was any mistake made in determining, running, and marking it or not; and no subsequent agreement or survey can change or alter it, nor can the fact that the one state or the other exercised jurisdiction of any kind on the opposite side of the line, or that those residing on the one side or the other supposed they were living ill one state when they were in fact residing in the other state, be evidence of the place where the line of demarkation is, if the proof shows to your satisfaction that the commissioners actually ran and marked it at a different point. The surveys' and other written evidence upon the part of the plaintiff place the said line just south of the store-house and ground occupied by defendant, and is prima facie proof that this is the line fixed by the commissioners; but it is insisted upon the part of the defendant that the evidence introduced by him shows that this is not the true line, and that . the line run and marked by the sajd commissioners, properly retraced, is north of the said line, and north of the land in controversy in this suit. Whether this is so or not, you must determine from all the evidence in the cause, after caref911y considering and weighing it. It is insisted upon the part of the plaintiff that before. the line was retraced by the engineer, Babbitt, it was a matter of dispute, and doubtful, where the line of demarkation was fixed and marked by the commissioners, Ellicott and Dunbar; and that he and the defendant mutually agreed that said Babbitt should find out, as best he could, where the said line was, and rerun and remark it; and that when so rerun and remarked it should be the boundary line bp.tween them, no matter what the result should be; and that after the line was run and marked by said Babbitt, and found to be south of the land in controversy, defendant agreed to remove the houses and improvements, and that plaintiff was not informed he did not intend to do so, or to stand by the agreement, until just before this action was commenced. This agreement is denied by the defendant. You will determine from the testimony whether it was made or not. Where the line separating the lands of two persons is unknown, they may by parol agree and fix a line between them; but it must be mutually and unconditionally agreed to, and acted upon, by them. If, in this case, you shall find from the proof that the line run by Babbitt was actually agreed upon after it was determined and marked, and that the defendant agreed to reJDove his buildings within some future time, but that he changed his purpose, and did not notify the plaintiff of such change, and that the plaintiff relied upon the agreement and promise, the defendant would be estopped from repudiating such an agreement. As before stated, however, the agreement must have been mutually entered into between the parties, and acted upon by them, or the defendant must have entered into such agreement as would have induced the plaintiff to believe that the defendant conceded to him the right to the possession of the premises, and was only occupying them by the sufferance of the plaintiff. If this was the fact, then the agreement would be valid and binding, and would fix the boundary line between the parties to this suit, but could not affect in any way the line of demarkation be-
FEDERaL REPORTER,· vol.
tween the states of Mississippi and Louisiana fixedund marked by the commissioners Ellicott and Dunbar in 1798,eyen if that line was run by said commissioners north of the lands in controversy. If you believe this to be so, your verdict will be for the defendant, as this court would have no jurisdiction to try the issue between the parties, the premises beingin another state, while the agreement might be binding between the parties. It is claimed on the part of the deftndant that, although the land in controversy lies north of the real demarkation line between said states, and is in the state of Mississippi, yet that Mrs. Cheatham, under whom he holds, before his purchase, and he since such purchase, have held continuous adverse possession of the land in controversy for more than 10 years before this action was commenced, and, therefore, that the plaintiff is barred of his recovery. The conveyance from Mrs. Cheatham to plaintiff specifies the said. demarkation line as the northern boundary of the land conveyed, and any possession of the. lllndhad by her, to be availed of by defendant, can only be extended to that line. ,Any possessionW'hich Mrs. Cheatham may have had beyond that line cannot be availed of by defendant, as it is not embraced in his deed, and is not shown to be: clahned by Mrs. Cheatham, so as to show an outstanding title in her. If, after weighing and considerinJl; the, proof on both sides, you shall ,find the issue in favor of plaintiff, you will ascertain the value of the rellts of the land, and of the improvements described in the declaration, since the 21st day of May, 1882, up to the present time, the value of the improvements put thereon by, the defendant, and the value of the land without the improvements; and you will deduct the amount of the rents from the value of the improvements, and state the same in your verdict, or the balance of the rents Over the improvements, as the case may be. 'In weip;hing the evidence on ull these points, you will sider all that has been introduced' on both sides, including the testimony of the plaintiff and defendant, who are competent witnesses. The interest each has in the contl'oversyonly goes to his credibility. If you shall find conflicts in the evidence, you will reconcile the differences, if you can;bqt, if you cannot,you will determin" which statements are most probably true. If yollshall find from the proof that the plaintiff is not the legal owner, and entitled to the possesi)ion of the land under the instructions your verdict will be si!Jlply for the defendant.
t7.CLNCINNATI, N. 0." T. 1'. BY. CO.
WOODBURN 11. CINCINNATI,
N. O. & T. P. Ry. CO.
(Circuit Court, E. D. Tennessee. 8. D. December 20, 1889.)
C.lRRJl!JRS-OF GooD8-SmPPING CONTRAOT.
Plaintiff made a shipment on a road connecting with defendant's, and took a receipt from the agent, which stated that the company was "not accountable for weight. number, or condition of the packages." Following this was the name of plaintiff, destination of the goode on defendant's road, and the warde, "Valuation limited to $5.00 per 100 pounds in case of total lose." On the back was printed 110 statement that "when a valuation as agreed upon shall be named upon this shipping receipt, it is distinctly understood that such valuation shall cover loss or damage from any cause whatever;" also a printed statement that the owner of the goods, in accepting the receipt, w be bound by all its stipulations, written or printed, as fully as though sIgned by him. Plaintiff then signed and delivered to the company a paper stating that he had voluntarily shipped at a lower rate than general tariff. on condition that he release the company from all liability for loss or damage, and containing a formal release to the company, and all other railroad or transportation companies to whom the goods should be delivered for transportation. This release was attached to the manifest, went along with the goods, and was received by defendant. The shipping receipt was not under seal, or witnessed, and was retained by plaintiff. The goods were received by defendant at a freight rate agreed on between the roads. Held, that the shipping receipt and release were separate and independent papers, prepared and signed at the instance of the company receiving the goods j and that defendant could not, in its own interest, elect which of the two should be treated as the shipping contract. The shipping receipt, not having been executed as a contract under seal, and not having been regarded and treated as one by either of the railroad companies, and having been put forward as the rate of indemnity on a total loss when there was only a partial loss, cannot be made the basis of plaintiJ!'s recovery. .
As the release executed by plaintiff provided for a complete and unconditional exemption of the carrier from liability on account of loss or damage to property in the course of transportation, it is void, as against public policy, and plaintiff is entitled to recover for the full value of his goods lost,! . When the unconditional release came into the hands of the defendant's agents, together with the goods shipped, it was notice to defendant of the illegality of the transaction, and its liability must be determined by the principlee of the general . law.
.. BAME-LIABILITY OF CONNEOTING LINES.
At LaW. Action for damages. to freight. W. H. De Witt and Wheeler & Marshall, for plaintiff. Lewis Shepherd, for defendant. KEY, J. The plaintiff shipped a car-load of furniture and other household goods, at the city of Philadelphia, upon the Pennsylvania railroad. Their destination was Chattanooga. They came over the lines of the Pennsylvania Railroad to the city of Cincinnati, and were delivered to the defendant, and were started over its line to Chattanooga. On their way, two of defendant's locomotives, drawing trains in opposite directions, collided, and the car containing plaintiff's goods was wrecked, and most of his goods destroyed. This suit has been brought for the value of the goods, and a jury is waived, and the whole case is left to the court for decision.
Barris, (Ind.) 21 N. E. Rep. 340, and note; The Portuens6, Il6 Fed. Rep. 670, and note; Bull v. Railway Co., (Minn.) 48.N. W. Rep. 391. .
tract, see Railroad Co. v. Thomas, (Ala.) 3 South. Rep. 802, and note 2 j Express Co. v.
lRespecting the extent to which common carriers may limit their liability by: con-