be carried on at a profit, whether through the misconduct of his copart-: ner or from a failurnoMbElfbl1l;iuesaitself'"iSo,'if;he has been induced to enter into the partnership contract through the decei.t of his copartner, he may'Withdraw:Wli\fuever the frauclpracticeduporr him becomes known. In neither case is he until,th;e lilAitationo£' time; but isaflibertyat once to ask (lP of ,. Toe -lMl'ls not multifarIOus;. It has a sImple purpose, the dIssolutIOn and winding up ()fthe concern. for relief are /38.In,e series of relate to the same subject-matter, and,cao 'be, conveniently settled in one suit. They are'all'l>fop'el'lyjoined'in 8he bill.
UNITED STATES tI. NORTHERN PAC.
::Lf,'.;,' '!::':'.;', ''',I
R. Co. et ale
; :; ,,(
,i '(; ,4otlJilotag.,July':9,'l8M,'l§l'lIDied publio'landS to ihe'Nl'l'l.R:;Co., and authorized !II !ro\Il by the, most eligible I." to 'b'edetel"mlned' Oysltidcolnpal1Y; wi.tl:l1n t11e UUlted' States and on ,a line forty·fifth ,rot, IBiIitnd,81>1:4" !some, 'PolO,,',..'on,puge,t,sound. W, ith a, , , val,ley ,of. ,tQ a pQjllt,8t, Por.tland, Or. ", 'Hetd,'iiia\i It'waS oplionill'wltbtne cO,mpany whether 11; would1)ul1d the branch to , ··, ,The rclaij,lIe ,giving. it auth:ority to ao'so :did riilit 1111111;, itu'ight to choose sound. ! ) A'ot: Cd1Ilc. May 81, 'l:870( IUtthorizll1g .ald company to lobate'andOODstruct, under ,alld 8114 grlloDts JIIo a,ctof inCQrporaUOl1, COlig.,'J'uty 2,1864,) Us ,main line. tol'uget sound via the Columbia river, etIo,', is an Bwrovli.hnd eopfirmliition 'of the location of Its lil1etheretofore madll by : thll CC>lumbia to ;puget sop u.. '
" " "0'
,41p\lationof land to said 'oompanyunder Act Cong.. July 9, 1864, Was a grant t.ook, effect as of thatgatll upon the location by the company Of Its road, and approval thereof by congress: '
'", SA.uB-o-EJ'J'1W'1" lOP DONA.TrON'.....FILINQ: OpMAP.
, . Soctipn 6,Qf'l\aid actprpvldell the !!hall caU!!. the lands to be sur"eyed fot40' mires on eachsid'e 'of the entire,liue,ot the rlJad af,ter. the general route 'shall bei :fi:lllec1l" "and the otld'86etions of land hereby granted'shai1 not be liable to pr au.rve.y:sd, by s.aid company. '. lIeUl,' tl1at the act Withdrew the lands from !labIlity, to pre-emptIOn after the route should be fixed; and, ou the filing by the company of a map of the route with the, interior,thegl'lUlt,.beca\Ile :C6rtai!:lj and attachlld to the odd sections of the land within the 4O-miIe limIt. &.SllfB-'NMLlI:cT OP'SECRETARYOl!' THE Imino·. ' Wiheu the rp,ute was adopted 'bY' t1;le,coiupany.and amap desmnating It was filed with. tne of the iI/.t6ri\ir, ,the route witnin the' meaning of ,tM'l.<lll\'and'Do sUbsequentneglecll'of the 'secretary COUlQ the 'rights ot the
J , , ;'/
tim bElr ,cilt in: 1886; upon, the. N. W. tot Secti01l17, township 18, range 4 W. of the WiIlamette meridian, alleged to be public lands. The,defense,.is,that the/38.idrland was not
_ . · . . . ,,,
UNITED sTATES.". NORTHERN . pAc. CR. C,O.
public was owned in fee-simple by one Aaron Kinney, and that' the cut by the authority of said Kinney. The ownership of the land is th.e main issue in the case. The land was claimed by the Northern Pacific Railroad Company to be a portion of the land granted: to it by the act of congreSij of July 2, entitled" An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route." 13 St, 365. The lands granted by this act were conveyed to trustees by trust-deed in due form, to secure bonds issued by the corporation to raise moneys to build the. road, with power to sell, bearing date July 1, 1870. The trust-deed .was made by authority of a joint resolution of congress approved May 31, 1870, (16 St. 378.) The trustees conveyed the land in question to James'B. Montgomery pnSeptember 9, 1870, and by subsequent. conveyances, whatever title vested in the Northern Pacitio Railroad Company by said act and joint resolu-, tion of congress so conveyed to Montgomery became' vested in saiddafendant, Aaron Kinney, and was in him at the time the timber in question was cut and removed. The timber was cut by authority of defend·' ant, Kinney. On March 6, 1865, in pursuance of the provisions of the said granting act of July 2, 1864, the president ,of the Northern Pacific Railroad Company, by direction of the company, forwarded to the secretary of the, interior a map, of. the general route of the road from a point on Lake Superipr, to a. point on Puget sound, and in an accompanying couimu·' nication : "lJnder authority froto the board of directors of the Northern Pacific'Railrdad Company,I have designated on the accompanying map. iured ink, the genel'alline of their railroad from a point on' Lake Superior in the state of Wisconsin, to a point on Pugetsollnd in Washington Territory, via, the Columbia river, adopted by saidcom-: pany as the line of its railroad, subject only to such variations as may be' found necessary after more specific surveys," and asking that the lands, granted to the I company be withdrawn from sale ill conformity with I law. No action was taken by the interior department upon this map, or the accompanying request. The line of the route indicated ran in a westerly' direction ; was wholly north of the forty-fifth degree of north latitude, and within the territory of the United States. On Au-' gust 13, 1870, the same company filed with the secretary orthe interior, and with the commissionel' of the land-office, another map shOWing the' general route ofits main line from' a point on Puget Bound following' al-' most identically tbe Bame route as that indicated on the map filed March 6, 1865, and on the day of filing, this last map, August 20, 1870, 20 sections oflandper mile on each side of the lineindicatedhy said map were withdrawn ii-om sale by the secretary, of the interior for the benefit of the said companY,atl'd.. oll Septemher 13, 1873, said compailyduly , tiled its map of definite location oi'the line of said road from Kalarhato Tenino .in Washington Territory,s. distance of 65 miles: 'In 1871,' 1872, and ·1873 said railroad companyconsttUcted 'its line ! of road from Kalamaontbe Columbia WashingtoftTerritiJryin'
. ·FEDERAL REPORTER,
a northerly direction to Tenino,-a distance of 6.5 miles, forming a tion o( a direct line of road since completed, from Portland, Or., to Tacoma, on Puget sound, in said territory, the western terminus of said road. That portion of the railroad from Portland, up the Columbia river,to a point where the,Northern Pacific Railroad strikes the Columbia hasnev:erbeen constructed by said company. The land in question is within Washington Territory, north of the forty-fifth parallel of north latitude" .nnd is within 40 miles of the line selected by the Northern Pacific Railroad Company, for the main line of its road fr;m Lake Su rior to Pugetsound by way of the valley of the Columbia river as indicated on the map forwarded to the secretary of the interior by said company on :ltfarch 6,,1865, and is within 40 miles of the line selected, as the mainline of its road down the Columbia river to Puget sound, as indicateq, <Hl. said map filed with the secretary of the interior on Augllst and is within 40 miles of the line of the road as definitely lqcated:andnow constructed from KB.lama to Tenino, and Tacoma on Puget'SQund. The road as constructed from Tacoma to Portland, runs for about h.alf its distance by way of the valley of the Columbia river to Portland, the whole length of the said portion of the road being 105 miWs. Afttlr the withdrawal by the secretary of the interior, of said l!tnds, ip the interest of the Notthern,Pacific Railroad Company, on gust 13, 1810.,the land depa,rtment at Washington, and the department of the interior reful,ledall applications for settlement, north of the CoIllmbia river, withill the limitS of the said p;rant to the Northern Pacific Railroad Company, until the,9th day of November, 1888. The tract of land in question together with other lands was listed by the Northern Pacific Railroad Company,Qn March 31, 1885. On November 9, 1885, the general: land-office rejeeted the said list including the land in question, so ll1ade by the Northern Pacific Railroa,d Company; and on October 29, 1887,. the department of the iilterior, on appeal affirmed the rejection.The, ;land in question had been withdrawn from sale by the !l,tnd department, and the Northern Pacific Railroad Company had definitely located, and,put in operation its road from Kalama to Tacoma, at the time it' executed by its trustees its deed to said la)ld in question., toJ. B. Montgomery,-the grantor of defendant, Kinney. 11,1 1870 there was a corporation-existing in Oregon, orp;anized for the purpose as expressed in its articles of incorporation, of building a railroad fromf-ortland, Or" throughtheWillamette valley, to the southern. boundary of the, state. An act of congress was passed May 4, 1870, granting lands to this company to aid in the construction <)f a road from 8; point near Forest Grove, on:its road to the southern boundary of the state, to Astoria, ,this not being a part of the road designated in its articles of incorporatioI;l. 16 St. .94. The Oregon Central Railroad Company filed of the grant May 4, 1870" and its map ,of definite location JrpmAstoria, to Castor Creek,near Forest Grove, on January31, 1872"b1.1t it has.constructed no part of this line so located.' The land in questi<,>n lies within 20 miles. of the line indicated in this map of location, bu.t it is on the side of the Columbia river, in Wash':
UNITED STATES tl. NORTHERN PAC. R. CO.
ington Territory, now a state. On January 31, 1885, congress, for fail· ure to build the road, passed an act declaring the said grant to the Oregon Central Railroad Company forfeited. 23 St. 296. Louis L. McArthur, U. S. Atty., for complainants. RujuB Mallory, for defendants. Before SAWYER, Circuit Judge. SAWYER, J., (after stating thefact8 as above.) The language of the act authorizing the Northern Pacific Railroad Company to construct a railroad is: '''Said corporation is hereby authorized and to layout, locate;
construct, furnish, maintain and enjoy a continuous railroad and telegraph line. with the appurtenances, namely, beginning at a.painton l.ake Superior, in the stateof Minnesota. or Wisconsin; thenee westerly by the most eligible railroad routed'S, shall be determined by said company, within the territQry of the United States, on a line northof the forty-fifth degree of latitude, W some point on Puget's sound, with a branch. via the valley ot the ColumUia river. to a point at or near Portland, in the state of Oregon, leaving the main trunk·line atthe most suitable place, not more than three hundred miles frotil its western. terminus." 13 St. 366. .
The controlling question presented, is, whether, upon reaching the lumbia nv.er, instead of crossing the Cascade mountain range betweeti the Columoia andPuget sound, upon finding a eligible rOtlle for its road, the company with its road could follow down the Columbia River valley to and past Portland, cross over, and go north to Puget £lound, thereby altogether dispensing with its branch to Portland. Inmy judgment it was fully authorized to do so. 'Fhe object of congress was to have a railroad constru.ctedfrom some point on Lake Superior, to some point on Puget sound, and upon the most eligible route. No survey had yet been made in such manner as to determine the most desirable route'; It \vas probably supposed that some reasonably.practicable route might be found over the mountain range, and in that case it would probably be adopted. In that case also, it would be important to have a. conneetion with Portland, the largest town' in this new north-west. But gress put no such limitation as to the route, llponthecorporation. The language of the act is broadal1d comprehensive; with but the fewlimitations expressed, and congress doubtless, expressed the limitations tended them to be. It authorized the corporation to. "layout, locate ;and construct * * *0. continuous road." It was limited as to its beginning to some point on Lake Superior, but it might be in either Wis.consin, or Minnesota, leaving the largest discretion in the company to determine the starting-floint. Having determined this point, the road was to run "thertce westerly by the most eligible railroad route, as shall be ,determined by the company." Butitis to be "within the UniMq States," :and "on a line north of the (arty-fifth degree of latitude; to ()n Pugetsound." These were theol1ly limitations put upon the company's authority to locate its road. The corporation was to select the terminus on the Sound,aswellas the point of commencement. It was to select the "mdst eligible rail'road route," ana thequestioD
determined \>y sa,j,drQpmpany," prescrihed limits. to confel: this authority in more specific, qomprehensive terms. Thecorppa.Jl.Y .the route which appeared to it .to be It looated its. eastern terminus on most eligible, after Lake Superior, then ran its route in a westerly direction to the Columbia river, down that river, through Portll;tnq. .to Kalama, oQthe Columbia, then up the valley of another river to a point on Puget sound. This Nptedrpm"theppint on Lake Superior, to the selected oIl: fulfilled, the of the act of congress. It ran in westerly direction, from Lake Superior to Puget sound; it was the by saidco:nwany" after thorough examination to be "the It wa&:aJl "within the territory of the United States," p,ndW8S a line northof.the forty-fifth degree of north Iati tude," all thawa)'to·the"point on Pttge:tsound."The line. selected therefore, in eveij'parlicular and conditions of the statttt6ry is ,tp,e of the line, obviated the, ne:of building a' ,Portland, as the mllin !}ine itself adopte<i carried road to and through 'Portland. Both objects of congress were accomplished by one main line, no longer than a main line, on the other tbe.brBrJ).ch together,Jfs<;>'long. But the company did not .ob,rq\lte ligate itselqo,b\lild, a brl1nQh,roaq. to Portland at all. It simply had the right-p,n: . do ;80 };taP. it been necessary, or So, . 8$ between the point where the mainline thus the river, aod Portland, and therew!l& less in the of the road, the comneed for panyfoun4 Jtmore anel speedy to first build the roll-d frotn IAke,Superior, to the. Columbia, and:from fo.rtland.totlwSound, ang,thQsedivisions 9f the roag were first built p,nd the company failed to construct point eastern division intersects theColum,rivel', J4 itwas expending its energies and these two di eastern and western, the road up the Columbia river fJ;'o.m junction of the road extending from that the company was (by act Qf to locate their main line as they did. col1structa branph py the valIey:oOhe of the right of the compllnyto uponex4Q.lination, to be the most eligible·Une fOJ: main roaq., .wit,hin the limits ,expressly designated. It is not .lLlimstraiu,ed constrClction to inflll' such a Umitation. from language 'where the other provisioPB ,of the .. Iksirnp).y,·:is a grant,ora right to: make aibranch . . ';1 i... . . 31, 1870, before an11()cation by the Oregon Central .C9mpllny (16 St. ,378;}recognized a,nq thislqcll.#onof having been properly made, ,OPlAPany" that. "authorizing
UNITED STATES ". NORTHERN
the Pacifip Railroaq'Company to issue its bonds structioq. p.f its rQad and to secure the same .l>ymqrtgage, and for ,othe! resolution addition to eIPpolVflring the compaljly to also, authorized it ,"to JOC1l.te an4 Q(lIl,,struqt uIld.er' the .provisions and with the and dQti!Jl for in its ll,ct of ipporporation (the of 18!34) its, via;thepolumbia qver, with t!J.e;,right to 10cat4 branch. from SOme couvenient point,:Qn its maiIltruJ;lk lint} ,a.cross tlW CasC1l.<le m()nntains to Pup;et souQ.q." Could ;1;)e,:a and approvlli of the 10catioIl:;of the main line dowljl the Columbia. river ,as. properlymade;uU<ler of the incorporation : ThisisAo legislativa, of the act,' C01'to that giventg it 'lay,thecorporatioD' . ' AhU events it the;lQ!Jll,tioris, and the.connrmation relates backto the date of the 10catiAn and to the date of .the,act. I. feel in saying that legally made undl'r the'l1ct, and if thllit this resolution confirms it., grant July 2, , of, generalloC1l.tion of this portiollof .the line 'wasfilefl in fhe il)tj:lli.!lr ipMar,ch, 1865. :Trl,le, the secretal;'y of not on this OccasiQDgive notice of 81 witqdrawalpf lapds , sale, etc! Bu.t ,tp,en the statnt\:lgid; not requirl': hirq' 10 do so. But section 6 provides that "the president of the Unite4 lands. to ,bEl ,jlUrveyedfo,r forty JJJ,ile!!! in ord;1Oth side!!!, qf.i ,tqp,entirelineo(saidroad, after thEl" req\lired by of said, mHroad, ,ofland herebygrarited not be liabl<\ in ,salljl, orpre-,erop,tion before or after theyaresurveyecke:x;cElpt '!?y said coqipllny, as. providedjn this Tqus:the act itself .p,rewtlle land,s upon the of the map 9r "after the general r,Q,¢e done by the filing; of the map .oithe route selected. cpmpahy, by filing the map;,had indicateq i¥! and the before uncertain, now became'certain, andattallhed to the odd sections of the, land within the40-pille limi.t. No notice was ,re<iuiredto secretary. Buttzv. &Jj},r;qad 00., 119 U. 'S. 55, Rep., 100; Df/TI.ny v. Dod8on, 13 Sawy.84, 32 Fed. Rep. 899. But i( notice had been provided for, the failure of the secretarY J to have affecte.9. the rights of the after it, had performed part. The neglElct af the secretary, ofthe interior ,wo\lld company's rights. Van Wyck v. Kn.evals,l06 : 1 flu :&eP. 336. And.in this case as we have SeeD, "after the general :rou.tesbnll he fixed," the odd sections are not to grant to any era1.r.ou te.Wl:\S fix.ed Wit.h.in.th.e. ,rpeani.ug of t..h.,e. ,a¢t on .. . the filing of the map Another, desigp.ating,tlle same line was filed August 13, 1870, upon which upon the same day, the secretary of the interior formally withdrew the lands, and issued his notice, and the road was actually constructed and completed on this line in the years 1871-2 and 3. The title therefore, became indefeasible, the conditions subsequent as to this part of the line, having been fully
performed. The grant to, the Oregon Central Railroad Company was nohnadetill May 4, 1870,long after the grant to the Northern Pacific Company, and the filing of its first map of general location. And it did file its map of location till Janum-y 31, 1872, for the first time it( became definite. This was long after of its second map by the: Northern Pacific Company, and after the passage of the resolution 'of congress of May"31, 1870, recognizing and approving the locatiol1'of its main route via the Columbia river and adjacent to the land in qilestion; and if there#'as any defect before, the approval operated' bY'relation and took effect from the date of the first act, and the locatioriunder it. Besides the :Oregon Central Railroad Company never built the 'branch of its road, or any part of it, and congress passed an act:decl'aring its right, whatever it was, forfeited, on January 31, 1885. -The to the Northern Company therefore, first attached,' and there wasnothing :left upon which the grant to the Oregon Central' could operate, eithEli' at the date of the filing of its map of looatioIt in January, 1872,Or'l},t,'the date olthe granting act, May 4, 1810.' 'It does not appear that the Northern Pacific Raill'oad'Companyever accepted or acted tinder'the joint resolution of April 10, 1869, (16 St. 57;,)anli it is understood that it did not, but' declined to accept it. There is no presumption without 'evidence that it did accept any rights under it. , The grant to the Northern Pacific', Railroad Company was a grant in only to' be defeated ' by a failure to perform the condiand byproperprQceeding taken on the part of the United States to divest the titleahd revest it in the government. But theeonditions having been fully complied with, so far as this portion of the roadwfts concerned, the title has'tIOw become perlect and indefeasible. The: title is now, and it was at the time of the cutting of the timber in question perfect in the defendant, Kinney, the holder of the title of grantee of the Northern PaeificRaiIroad Company. As to the, last point I have recently gone over tbe whole subject in the case of Francoeur v. Newhouse, 14:Sawy. -,40 Fed. Rep. 618, and cited numerousauthoritie& on the points decided to which and the authorities therein 'cited, reference is made without going over the subMr. Justice FIE'LD in Denny v. Dod-. j'ect again. See also the Bon,13 Sawy.69, 32 Fed. Rep)899, and the opinion of this court in U. S. v. Road 00., 40 Fed. Rep. 114, (recently decided.) , The result is, that the no title to, or interest in the land in at the time of the timber cutting complained of, and there must. be judgment for defendants. It is so' ordered. Let the finding of fact, b& iP accordance with the statement preceding this opinion, and in the stipulation of the parties, as to the facts,oD.' file in the case.
ESTILL tI. NEW
L. E. & W. R. CO.
et al. v.
NEW YORK t
L. E. & W. R. Co.
LEONARD et al. v. SAME.
(C(rcu(t Cowrt, W.
November 19, 1888.)
course ot the journey on the cars, and within a day or twp B,fter the collision; that other miscarriages to the number of 103 ooourred in the herd at short intervals during 00 daye after the 'collision. There was testimony tending to show that the transportation ,of pregnant co:ws by rail wpuld not be apt to produce miscarriages. Ex. perts testified that several miscarriages occurring in a berd Of pregnant cows would quite likely cause other ,cows to abprt that had sustained no physical injury. Beld, that there was sufficient evidence to warrant a jury in finding that all the abortions were the result of the collision.
.. BAlDI·-!4RABuRE 01' DA)(AGIIll.
In an aotion against a railroad company for injuries to cattle in a collision, many 01 which were cows with calf, it was shown that 5 cows lost their calves in the
In ,such case, the oattle befog l,mported stook intended foJ;' breeding purposes, and the weight of testimony being that the value of a cow as a breeder is permanently depreciated by suffering a miscarriage, held, that the measure of damage for the abortions, if found to have been occasioned by the collision, was the difference between the Value of the animals at the point of destination in their injured condi· tion and their value at the same place if delivered uninjured.
BAlDI-V4LUE 01' CATTLE-NOTIOE T() CARRIER.
Dsfendant'sliability for damages for its negligence is not lessened by the fact that it reoeiV'ed no notice floom plaintiffs that the cattle received for shipment were intended for breeding purpQ86S; especially where it knew that they had been im· ported EUrope, and were being shipped westward. away from the markets for beef c a t t l e . ' ,
At Law. On motion for new trial. These are actions by Estill & Elliott and by Leonard Bros. against the New York t Lake Erie & Western Railroad Company for injuries to Btock. There was a. verdict for plaintiffs in each case, and defendant moves for a, new trial. DraffM k Williams, Cosgrove k Johnson, and O. Guitar, for plaintiffs. PoUard k Werner and Ja'T1"U!8 A. Buchanan t for defendant. Before THAYER and Pan.IPs t JJ. THAYER t J. These cases were tried together before me while holding the circuit court in the central division of the western district of Missouri during the illness of the late Judge KREKEL. At my request, Judge PHII__ IPS sat with me on the hearing of the motion for a new trial t and subsequentlyexamined the stenographerts report of the testimony. At my solicitation t he hag prepared and forwarded to me a written statement of his vit'ws touching the merits of the motion. The views expressed by Judge PHILIPS (which are herewith submitted) are so comprehensive of the questions raised by the motion for a new trial, and are so fully in accord with my own, that I shall only supplement what he has said by a few additional observations, chiefly concerning the contention that the are excessive. v.41F.no.14-64: