agreement,reJied on.. Under thatas,pect ,the bill for a ,decree of sale and a division of proceeds case thE} parties themselves cp1,lldnot make partition. I do ,not think that bill ought to. bel\Uowed for the purpose of decreeing a partition. Proceedings for commenced,in the court of chancery for New Jersey be,applieation or for that, purpose mllde in this suit; fore and probably..they can be conducted with,greater, facility in that court, under,the provisions of the state statutes, than they can in this; and as to the lands and real, estate in New Yark and Missouri, this court has no is called upon to jurisdiction over them. Nor da 1 think that the hold the supplemental bill for the purpose of requiring the executor to and confile an inventory of the lauds, or of directing him about veying them. He is primarilyamenabll;1 in his cha.racter of executor and trustee to the orphans'courtofthe county of Morris, N. J.; and he has represen.ted, and it. is not disputed, tbat he has rendered his account to that court, and all the parties interested, including the complainant, were cite9. to appear and show cause why said account ;(,hould not be confirmed, and did appear accordingly, and the account was duly confirmed \yithout exception. If the executor should herealter refuse to perform any duty imposed upon him by the will in regard to selling the remainin,g lands of in New Jersey, the matter can be more properlyC?nsidered in a proceeding to be instituted for, that purpose. 'rhe billl:llld supplemental bill are dismissed, witp. costs.
et al., v. .KANSAS & A.
(Circuit Court, W;·D. Arkansas.
The court, in determining the·questionof gra/lting a temporary restraining order or a perpetual injunction, is governed solely by the laws of cvngress, the rules of the supreme court regulating equity practice, and the general rules,of procedure in equity casell aPl>licablo.OO ,the equity practice in the courts of the, United States, The court has jurisdiction of this case because it in"olves a federal question. 'l'he rights of the parties arise undeL' a law of the United States, al!d involve the, construction thereof. After the passage of the act of congress of 179s;and prior to the act of June 1, 1872, a,temPQrllory injunction or restraining order could not be granted without notice to the adverse party. 'But by the seventh section of the act of congress of June 1,1872, which is now section 718 of the Revised Statutes of the United States, if a bill is filed for an injunction, 1Iond a subprnna iss,ued notifying a defenda,ntto appear On a rule-day, and if in the mean time there i,8 danger that irreparable injury may be committed, the court, in the exercise of a sound discretion, will issue a temporary restl:aining order without notice; .
SAME-JURlsDICTION-FEDERAL QUESTION. '
SAME-TEMPORARY· RESTRAINING ORDER.
JURISDICJTION'IN EQUITY-AD)!lQUATlll RE?!EDY AT LAW.
. By section 723 of the Re'vised Statutes of the United States; suits in 'equity will \lot be. sustained in either bf·the· cQurts of the United States in any case where a plain, adequate. and complete remedy may ,be had at law. Tb,is sect,ionof the statute is merely'declaratory, and made D<> change in the pre"existing law." It serves merely to emphasize the rule already existing.
V. KANSAS ,:'lS.
& A. VA.-L.
If the remedy at Jaw is 'uot as plain, adequate, and comptete as one obtaillBb1e in equity in case ofa continued trespass, the party'may prevent·tlleinjurr by injunction, rather than wait until it is done, and then look for his damages III a court of law.
To bar equitable relief the legal remedy must be equally e1l'ectuaJ with the table remedy as to all the rights of a complainant. Where the remedy at law is not as practicable and as efficient to tile ends of justice, and its prompt administration, the aid of equity may be invoked. . The courts will by injunction to preV'ent wrongs of a repeated and continued 'cbllracter, but which occasion damages Which are estimable only by conjecture, and not by an accurate standard; that this is what is meant by irreparable damages or mischief, when we lise the expression in connection with an application for an injunction. If the damage is irreparable, it preseuts a state of case wb!lre the party, in the sense of section 723 of the Revised Statutes of the United States'; does not have a plain, adequate, and complete remedy at law; for, if he has such remedy, the damage is not irreparable.
SAME-TAKING PRIVATE PROPERTY WITHOUT COMPENSATION.
Private property, under the constitution of the United States, can be taken for public use only with just compensation.
SAME-PURPOSE OF TAKING-Ex.TENSION.
SAME-ESTIMATE OF DAMAGE.
If the additional use sought to be fastened on the land of plaintiffs by the construction of a wagon and footway bridge by defendant necessarily injures its value as a ferry-landing, then there is, for this reason, an additional servitude cast on the land, for which plaintiffs are entitled to additional pay.
SAME-EXERCISE OF POWER.
In this case the land condemned under the act of congress of .June 1, 1886, could be condemned but for one purpose, and that was for use as a right of way for a railway and a railway bridge. The condemnation of private property for public use must be to subserve the use authorized, ,and the power of condemnation can only be exercised when expressly granted, or when it exists by necessary implication, and it must be exercised in the manner granted. .
CHEROKEE NATION-TITLE TO LAND.
The Cherokee nation holds the fee to all the lands to which it has title. Individual citizens of the nation have a right of perpetual occupancy in lands improved and occupied by them under the laws Of the Cherokee Nation. By this rigllt of occupancy the individual Indian. citizen can hold and occupy tbe lands forev.er, and fully enjoy all profits arising them, and their right of occupancy may be trans-
ferreq,qy a grant to another-citizen of the nation, or it may descend by inheritance. PJ:acJ;ically they get all of the productions-of the land,and are entitled to its increased or peculiar value as tllOugh -they held it in fee. 17. 18.
SAME-RIGHT TO COMPENSATION.
The Cherokee citizen and occupant of lanJ has such a durable and permanent interest in his land as to entitle him to pay for an additional servitl.\decast on the same. The use of lands already condemned for use as a right of way for a railway and railway bridge, for approaches for a wagon and foot-passenger bridge, is not a use for railway purposes. and is not one authorized bv such first condemnation; and, before the same can be used for approaches for'a w:1gon and footway bridge, if such use in any way casts an additional burden on said laJ;\d, it must be condemned again by right of eminent domain, and this can only be done when authorized by the legislative power. In this case no such authority exists, either expressly or by necessary implication.
EMINENT DOMAIN-ADDITIONAL SERVITUDE-COMPENSATION.
(Syllabu8 by the Court.)
In Equity. Rogers & Read, for plaintiffs. Dodge & Johnson, D. 'w. Jones, and Forrester, of counsel,) for defendant.
B. Moore, (Clayton, Brizolara &
PARKER, J. The pbintiffs filed their bill in equity to obtain an injunction against the defendant. They allege that the defendant corporation, by virtue of an act of congress entitled "An act to authorize the Kansas & Arkansas Valley Ry. Co. to construct and operate a railway through the Indian Territory. and for other purposes," approved June 1, 1886, were invested and empowered with the right of locating, constructing, owning, equipping, operating, using, and maintaining a railway and telegraph and telephonp line through the Indian Territory, beginning at a point on the eastern line of said territory, at or near the city of Ft. Smith, in the state of Arkansas; thence running, by the most feasible and practicable route, in a north-westerly direction, through the Indian Territory, between the Arkansas river and Cowley county, and the Caney river, in Chautauqua county, Kan., as said corporation may select; and also another branch line, which is not relevant to the issues involved in this case, "with the right to construct, use, and maintain such tracks, turn-outs, and sidings as said company may deem it their interest to construct along and upon the right of way and depot grounds herein provided for." That by the second section of said act said corporation was "authorized to take and use for all purposes of a railway, and for no other purpose," a right of way 100 feet in width through said Indian Territory, for said main line and branch of said corporation, and"To take and use a strip of land 200 feet in width, with the length of three thousand feet, in addition to the right of way, for stations, for every 10 miles of road, with the right to uS6sl1ch additional grounds, where there are heavy cuts or fills. as may be necessary for the construction and maintenance of the road.bed, not exceeding 100 feet in width on each side of said right of way. or as much thereof as may be included in such cut or fill: prOVided, that no more than said addition of land shall be taken for anyone station : provided, further. that no part of the lands herein authorized to be taken shall be leased or sold uy the company, and they shall 1101. be used except in such manl1er and for such purpose only as shall be necessary for the construction and convenient
PAYNEV. KAl"SXS:'& A. VAL. R. CO.
operation of said railroad, telegraph, and telephone lines; and,whenany tioll thereof shall cease to be so used, such portion shall revert to the nlltion : taken." or tribe of Indians from which, the same, shall bave -That the third section of said act provided a method for the condemnation of said right of way, and provided that full compensation should' be paiqthe occupants of the right of way by the railway company before; its' road should be constructed for "all property to be taken or damage done by reason of the construction of such railway." That by virtue of the said act'of the said defendant proceeded to locate and construct its roads.' That defendant now has a large portion of said road in operation. That the road is constructed down to a point on the Arkan-' sasriver opposite to Ft. Smith, in the state of Arkansas, where said defendant now has in progress of construction. and almost completed, a railway, passenger, and wagon bridge across the Arkansas river. The bill further alleges that for several years last past the plaintiffs have been the owners and individual occupants, and as such have held, and now hold and occupy, the land in the Cherokee Nation opposite the city of Ft. Smith for several hundred yards both above and below the point where said bridge is located, and extending back several hundred yards from the bank of said river in said Cherokee Nation, and on both sides of said' railway. That heretofore the said defendant, under the provisions of the said act of congress, condemned a right of way 100 feet wide throngh said lands of plaintiffs, as described in said bill of plaintiffs; for a railway bridge, and for railway, telegraph, and telephone purposes, and for' no other purpose. That defendant has been in the quiet, undisturbed, and peaceful possession of said right of way ever since. That, long after said lands were condemned for the purposes aforesaid, the defendant conceived the idea in constructing the bridge hereinbefore described of converting it to or making it a passenger and wagon bridge. That the defendant secured the passage of another act of congress entitled" An act to authorize the construction of a bridge over the Arkansas river, in the Indian Territory," approved March 15,1890. That said act of congress provided, among other things"That the Kansas & Arkansas Railway Co., a corporation organized and existing under the laws of the state of Arkansas, and being empowered by act of congress approved. June 1, 1886. to construct its railway from a point on the eastern boundary line of the Indian Territory at or neal' Ft. Smith, AI'" kansas, through said territory, in a north-west direction, to a pQint on the northern boundary line of said territory, with the power to build a branch as therein provided, the construction and operation of which said line of railway' involves the construction of a bridge across the Arkansas river, in the In J dian Territory, from a point at or near Ft. Smith, be, and the said Kansas & Arkansas Valley Hailway, its successors and assigns, are hereby, authorized and empowered to construct said bridge across said river, and to maintain and operate the same as a railway, passenger, and wagon bridge." . The act further provides that the rates of toll which shall be charged for vehicles and foot passengers over said bridge shall be the same as those now established for like service by the laws of Arkansas. The bilL further alleges that under and by virtne of the last-named act said bridge
. ' ,FEDERAL .REPORTER,
haSrtbeen const.ructed ,OJ, arail\\lay,: pasSeI1ger, :anliwagon bridge. That said;act, authorizing the oia passenger and wagon bridge" gave no authorlty-fo defendal1ti t(r take, use, and condemn property for to said bridge. D\lr 'unller it can. t.he qefendant use the right of wllty optaillcd under' theaot: ofi. June 1, 1886, for approaches of the road-way. ,forwago;ns to its said qridge. The plaintiffs they not onJ.y the land hereiQ.before described as. 1he la'ly.s, custp.n\s, and usages of the Cherok Nation, but that tre, :ferry privile.ge !c the Arkansas river at FkSmith\ ,Ark., attache,s and that they have the .license ferry across that alldexclu!'h:e right froOl the OhE;T.qkeeNation to river; fl\)mtl;teCherokee side attbat point,and are nqw,and have been fQr, :interested, in r)1nni ll g a ferry at that point for the crossing of PJ!.!'l$'enger,s, wagons, stock 1 and..generaLtravel for hire. That they have a)argeamouJ;lt of moneyinvested in ferry. That defendant is now gra(,'I,ing! !!-nd constructing on right of Wl).y, condemned, as aforesaid, approaches for a ,'Yagon-way,and footway toits said bridge forthe accop:;unoc;lation of wagons, passengers,and general.travel,and has begun to constrqct apprqaclHl$On plaintiffs'land on both sides of said road, of way.. That said flpproaches qn said right of way are nowr:apidly approaching completion, ,and will be completed and used for the, purposes aforesfl,id unless defe,ndant is restraine,d. by this court. The plaintiffs further ,state thaUhe construction of saidr.oad-way on said other general travel on the right bridge Jor of way of defendant, all additional on the lands of plaintiffs. That the saIDllis unauthorized by the charter of defendant, and the same is in violation of law. That the opening of said bridge and the construction of the passep.ger and wagon way over the right of way of defendant, or over plaintiffs' lands, adjacent thereto, will utterly destroy the value of the ferry privilege attached to said land. The plaintiffs pray that defendant be. perpetually restrained and enjoined from further constructipg or grading of approaches or road-ways to its passenger or wagon bridge for the use or convenience of wagons, passengers, cattle, or other stock either upon or along their suid right of way, or upon or over the lands held and owned by plaintiffs adjacent to said right of way. That defendant be restrained from using, and that it do not suffer or· permit said grading along, its right of way, where the ,same runs through the lands of plaintifl's, except for the purposes for which the same was condemned. The plaintiffs pray a temporary restraining order. The court, upon the shpwing made in the bill, issued such temporary restraining.order, and also a subpama giving notice to defendant to appear on the next rule-day of this court, and plead to or answer the bill of plaintiffs. The defendant, by its counsel, filed a demurrer to the bill, and for cause thereof said: "(1) That said bill fails to set up facts sufficient to constitute a good cause of action against this defendant. (2) That said bill fails to set up facts sufficient to constitute a cause of action for equitable relief against this defend-
,mt. (3) There is no eqnityin said qUI" (!),ThBt plaintiffshavefuH, complete, and adequate relliedy at law byreasQo ot,anydamages or,iGjury suf... fered as alleged io, said bill." " ' At the same time defendant filed its motion to dissolve the temporary injunction heretofore granted in the case, for the reason"(1) Tlmt said writ of irijunction was issued 'without any notice of any kind whatever made or had upon this defendant. (2) The granting of the same without notice was in violation of section 3738 of Mansfield's Digest', which, by act of congress approved May 2, 1890, was extended over and made the law of the courts having jurisdiction in the Indian Territol'Y. (3) The granting of said injunction without notice was in violation of equity rule 55, governing United States courts in all equity proceedings. (4) Because the acts of the defendant in the prem ises in no manner worked an irreparable injury or wrong against plaintiffs. (5) Because defendant did not begin nor attempt to build approaches to its bridge for foot passengers and either on the land of plaintiffs or off of its right of way upon lands belonging to anyone else. (6) Because the plaintiffs have a fuIl, complete, and adequate remedy at law, if the defendant, as alleg!'d, is guilty of any trespass upon their rights. land, or other property. (7) Because said bill fails to set up facts sufficient, or any facts at all, which entitle the complainant to the interposition of a court of equity. (8) Because there is no equity in said bill entitling complainants to a writ of injunction or other equitalJle relief, as prayed for in said bill. ", By agreement the demurrer lind motion ,to dissolve were heard by the court at the same time. The first question to be considered is whether the temporary injunction should be dissolved because there was no notice given to the defendant of an application for the same before the same was granted. It is manifest that the court, in determining the question of granting a ternpantry injunction in this case, is not governed by the statute law of the state of Arkansas that may have been, by an act of congress, extendeQ. over the Indian country; but it is governed solely by the laws of congress, or the, rules of the supreme court regulating equity practice, and the general rules of procedure in equity cases applicable to the equity practice in the courts of the United States. It may be remarked that this court does not have jurisdiction of thig case because of the sion of the laws of Arkansas over the Indian Territory by the act of congress of May 2, 1890, but it has jurisdiction,because there is involved in it a federal question. The rights of the parties litigant necessitate the construction of an act of congn'ss. The rights of the parties arise under a law of the United States, and involve the construction thereof. Under the clause oithe act of congress of 1793, whiGh provided: "Nor shall a writ of injunction be granted in any case without reasonable previous notice to the adverse party or his attorney of the time and place of moving the same,"-a temporary injunction or restraining order could not be granted without notice to the ad verse party. But the part of the act of 1793 as above set out has been repealed by section 7 of the act of June 1, 1872. This section is now section 718 of the Revised Statutes of the United States, which is as follows:
.c "Wbenever notice is givenfdr a motion for an injunction out of a circuit or dilltrict court, the cOllrt or judge thereof may, if theI'e appears to be danger of irreparable injury from dplay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, In the discretion of the court or judge."
As the rule of equity practice is now established by the above section of the law, if a bill is filed for an injunction, and a subpama is issued noti(ying the defendant to appear on a rule-day, and if, in the mean time; there is a danger that an irreparable injury may be committed, the court, in the exercise of a sound discretion, will issue a temporary restraining order without notice. Chicago, B. & Q. Ry. 00. v. Bl<rlington, O. R. & N. Ry. 00.,34 Fed. Rep. 481; Central Trust Co. v. Wabash, St. L. & P. By. Co., 25 Fed. Rep. 1. By the allegations in this bill the injury complained of would have been fully sustained before a hearing could be had in the case, and therefore, if the party is entitled to an injunction to prevent the injury, without power in the court to temporarily restrain, it would be useless to him when he obtained the same. The point that no notice was given of the tern porary restraining order is not, in my judgment, well in this ca'3e. The defendant, in its motion to dissolve the injunction, for further cause thereof, states that its act in no manner worked an irreparable injury or wrong against plaintiffs, and that they have a full, complete, and adequate remedy at law, if defendant is guilty of any trespasses upon the rights of lilaintiffs, their lands or other property. These allegations go to affect the equity jurisdiction of the court, to which the right to issue an injunction belongs. By section 723 of the Revised Statutes of the United States, "suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law." This section of the statute "is merely declaratory, and made no change in the pre-existing law." Le:wis v. Cocles, 23 Wall. 466. It served merely to emphasize the rule already existing. Ne:w York, etc., Co. v. Memphis Water Co., 107 U. S. 214, 2 Sup. Ct. Rep. 279. If merely declaratory of the rule then existing, if we can find, from interpretations of the rules fixing equity and law jurisdiction by the courts of the country, when equity will take jurisdiction, we will have a rule for our guidance which we can safely follow. In Lewis v. Cocks, 23 Wall. 470, the supreme court of the United States said: "To bar equitable relief the legal remedy must be eqmdly effectual with the eqllitableremedy as to all the rights of the complainant. Where the remedy at law is not as practicable and efficient to the ends of justice and its prompt administration, the aid of eqUity may be in voked."
The Sa,JIle court, in Kilbourn v. Sunderland, 130 U. S. 514, 9 Sup. Ct. Rep. 594. says: , '<The jurisdiction in eqUity attaches unless the legal remedy, both in re'spect to the final relief and the mode of obtaining it, is as etlicient as the remedy which eqUity would confer under the same circumstances.".
PAYNE V. KANSAS & A. VAl". R. CO.
It seems to need but a moment's reflection to satisfy the mind that, equity, in a case of this kind, is more efficient to secure the ends of jus-: tice, and its prompt administration, than law; that greater justice can be more promptly sE'cured by an appeal to equity, that the wrong may be stopped in its inception, rather than compel the injured party, or the party about to be injured, to wait until all the wrong is done, and then drive him to his action at law to get damages in reparation of wrong of a repeated and continuing character, when the amount of damages is estimable only by conjecture, and not by any accurate standard. Mr. Pomeroy, in his Equity Jurisprudence, (section 1357, vol. 3,) says: "Jndges have been brought to see, and to acknowledge. contrary to the opinion of Chancellor KENT, that the common-law theory of not interfering with persons until they shall have actually committed a wrong is fundamentally erroneous; and that a remedy which prevents a threatened wrong is. in its essential nature, better than a remedy which permits a wrong to be done. and then attempts to pay for it by the pecuniary damages which a jury may assess." In Com. v. Railroad Co., 24 Pa. S1. 159, the supreme court of that state, in a most able opinion, declares that the courts will interfere by injunction to prevent wrongs of a repeated and continued character, but which occasion damages which are estimable only by conjecture, and not by any accurate standard, and that this is what is meant by irreparable damages, or mischief, in injunction cases. If this be so, then, when a state of case of that description exists, the damage is regarded as irreparable; and, if irreparable, it must be of a kind for which a party does not have a plain, adequate, and complete remedy at law, for, if he has such remedy at law, the damage is not irreparable. If the remedy at law is not as plain, adequate, and complete as one obtainable in equity in case of It continued trespass, the party may prevent the injury by injunotion, rather than wait until it is done, and then look for his damages in a court of law. High, Inj. § 702, says': "It is frequently a matter of difficulty to determine what constitutes such a degree of irreparalJle injury as to warrant a COUl't of equity in enjoining what might otherwise seem to be an ordinary act of trespass. for which an adequltte remedy Itt law might be found. * * * When the trespass coinplained of is repeated or continued, in the nature of a nuisanc'e, or when thewrongful acts continued. or threatened to be continued, may become the foundation of adverse rights, and occasion a multiplicity of suits to recover damages, the case presents such equitable features as to entitle complainant to, the aid of an injunction. So, too, a trespass which is continued, and ripen into au easement. may properly be enjoined." Mr. Foster, in his Federal Practice, (section 215,) says that"Injunctions to restrain trespasses are only granted when the trespass is destructive or continued. * * * An attempt bya railroad company to b.nild its road upon private property without payment of compensation may be thus prevented." Again, at section 210, he S:lys it may be granted "to suppress the continuance of a public or a private nuisance; to prevent a threatened destructive trespass." A private nuisance is anything done to the hurt of
,FEDUAT. BEPORVER t
the i}andsor tenements or :hereditaments.. of another; anything that linlawfully worketh hurt or inconvenience Or damage. 3 Bl. Comm.
215,216;:12 Bonv. Diet. 245. ':\VlwteveI'IlUn0Ys or does damage to'another is:a privMenuisanee. And. Lp,wDict-. 717., Thus we see a private as thus,distined, maybe prevented or suppressed by an injunction.,ifIh a case where private property has been taken by a ramroad company without c0odemnationby such company ,the remedy in eqnity in the shape of an, injunotion protects both the owner and those' acting under the authority, and is more speedy and efficacious in its operation than the ordinary legal remedy." Section 632, Lewis, Em. Dom. In Browning v. Railroad flo., 4'N". J. Eq. 47, the chancellor held: "If a R. R.,Oo.' claim a right to, enter upon land under color of law without hfwing complied with the requirements of that law, a comt of equity ,viII restrain their entry by injunction." In the case of Bonaparte v. Rail1"O(id Co., 1 Baldw. 229, the court, in treating of the remedy snys: "If his rights of property are about to be destroyed without the authority of law, or if lawless danger impends over them by persolls acting under color oflaw,wh...n the lawgivE's,theni no power, or when it is abused, mIsapplied, excet'ded, 01' not, strictly, pursued, and the act would subject the partyeommitting it to dflmages, in a court of law for a trespass, a court of equity will enjoin its commission." In Railroad Co. v. Owing8, 15 Md. 19\), the court held" that a R. R. Company may be enjoined from constructing its road without authority over private property, for the use ofwhieh it has not paid or tendered compensation, whether or not the injury is irreparable." In Bird v. Railroad Co., 8 Rich. Eq. 46, the court held that"An 'inj1mction will be 'granted where the act complained of is attended with results, destroying or materially altering the estate, or where defendants are attempting to make permanent appropriation of land admitted or proved to belong to plaintiff, and the license or warrant of the defendant to encroach UpOIl it is deerneddonbtful by the court. That a R. R. Company will be enjoined from appropriating land admitted or proved to belong to a plaintiff, when not authorized to do so by its Chat'tel·." These principles affecting equity jurisdiction are generally sustained by tlHdj;nglish equity courts.. This is source of olir chancery juris'diction. The American. ,chancery courts are generally as clear and explicit as the English chancery.courts in sustaining chancery jurisdiction in cases such as I ha,\I'e:referred to. This is the rule as to jurisdictioirth'aHssimply by sectiori 723 of the Revised Statutes of the The doct1'ft1eof the above eases is fully sustained by the case of Griffing v. Gibb,2 :Slack, 519: This was a case where an injunction waS prayed to prevent i'1jury to' a city lot in San Francisco. The case of EidemillC'i' v. ,Wyandotte City, 2 Dill. 376, is a case where un injunetiOI1'i#as' prayed to'prevent the making of an embankment on a road that ha:d' beElii'laid off through'the 'landofplaintifl';but the same had not been condemned and paid for. It was objected by the defendant that the complainantt<:are:not 'entitled to an injunction, because the injtiryco'tIiplaihed of 'was. notirrepsrable; and because they have a full Rnd'tidequate remooyat'ls,w. In reply to this JUdge DILLON said:
". KANSAS &; A,VAL:R.
road-way, falls, I think, the legal notion of an irreparahle injury, and gives a clear and recognized rig\)t to an injunction." ,',
"I deem it unnecessary to follow the coun'sel in'theirdiscnssion. The making of a high embankment of great width and length, to be nsed as a pnblic
The same principle is recognized in Northern Pac. R. Co. v; St. Pa1tl, M. &c M. R. Co., 1 McCrary, 302, 3 Fed. Rep. 702. There can, I think, be no doubt of the right of plaintiffs to an injunction, provided they have any equity growing out of any injury to a right they may possess. The defendant asserts that "there is no equity in said bill entitling complainnnts to a writ of injunction, or other equitable relief prayed for in the bill." This depends on the right or interest plaintiffs may have remaining in the property. which has, by right of eminent domain, been taken in accordance with law, and paid for. to be used for a specific purpose, and no other; for using for any other purpose was expressly prohibited by act of congress of June 1, 1886. Section 2 declares" that said corporation is authorized to take and use for all purposes of araB way I and fOf no other ptJrpose, a right ofway ," etc. The same section further provides that the lands herein authorized to be taken "shall not be used except in such manner and for such purpose only as be necessary for the construction and convenient operation of said railroad, telegraph, and telephone lines." If any other use than for railroad purposes: would cast an additional burden on the land of plaintiffs, the same could not be used for 'any other purpose than that for which it was condemned, unless express authority, or authority by necessary implication, was given, authorizing condemnation for such additional use. We do not find in this case any such authority given as would authorize the use of the right of way for any other than railroad purposes, but, on the contrary ,we find such use expressly prohibited by the aet of congress of June 1, 1886. It wasundel' this act of congress that the right of way ,,'as condemned, upon the application of defendant, and the same waspaid for as condemned byit. This power; granted by this act of congress, must be exercised for the purpose for wbich the power was granted, and forno' other purpose; for lands acquired by corporations for a specified purpose cannot be used for others. Green's Brice, Ultra Vires, pp. 104, 109-112; Imlay v. Railroad Co., 26 Conn. 255; Telegraph Co. v. Smith, 18 Atl. Rep. 910. The land taken by defendant in this case, nnderthe act of congress of June 1, 1886, was taken in invitum, and defendant only acquired an easement to it, and such easement as the act of congress authorized. But does the use of the railroad right of way by defendant for the purpose of building a wagon and passenger bridge subject the land of plaintiff's to a new use which injuriously ·affects the same? If it is a new use which does not injuriously affect the value of their land, then their estate in such land is not injuriously affected by the supervening servitude, and there is nota taking of; their property. In every caSe where there is a taking of private propertyfor public use it must be with just compensation. Article 5, Amendment to the Constitution of the United States. What is meant by the taking of private propertY,or, rather, what is meant by an additional taking? There has been one tak-
ihgby the defendankWas the use 'of its railroacl.right of way for the 'approachesofn wagon and passenger 'briflge an additional taking? Mr. 'Elliott,in his work on ROadsia'tJd Streets, 155, says if there is 0 . "Subjection of the land to an or any other blirden incompatible with the dominion of t,he owner, or tl;te s,erious interference w,ith thll use or theelljoyment of the property, it wiJIbe a taking, \vithin the meaning of the organic law. An incident aimexed to land maybe of value. and to wrest such a thingfro,m the owner fOl' a 'public use is to take from him his property. The term · property' is by no means limited to land itself, but embraces all the incidents which give value to the owner, and includes the right which pertains to theownersllipofthingsrealandpersonal; and, whenever there is a direct and substantial invasion of these rights, there is a taking, the constitutional sense, conferring upon the owner a right to COll1pensatidn." The supreme court ofthe United States in Pwnpelly v. Green Bay Co" 13 Wall. 166, says"That.it remains true that where real estate is actually invaded by snperinducedadditions of watpr. earth, sand, or other material, or by haVing any artificial structure placpd on. it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning or the constitution." -And, as a matter of course, one that gives the owner a right to additional compensation, because his land, if the additional burden is cast upon it, is taken for public use, and he is entitled to additional compensation, although the land may have been taken and paid for, if pllid for a use other than the one. for which it is taken the second time, as whatever use was contemplated in the original condemnation, and the damages resulting therefrom are the damages and use included in the assessment therefor; But a use beyond the purpose of that condemnation, and which could not, for the want of legal power,be included in it, would be a new create anew servitude, if it cast any additional burden use, and on the of plaintiffs, or on the right of way already condemned for a specHic purpose. rho question then presents itself, does this use of thE) right of way of defe,nqant, already condemned for railroad purposes, for the approaches to the wagon and footway part of its bridge, under the above rule laiddown, cast any additional burden on the adjacent land of plnintiffs? If such use affects the value of such property to an extent to whieh it was not affected by the original taking, then it is subjected to: a new use, which creates an additional burden upon its owner, and which, subjects the land to a new servitude, and consequently there is a taking of private property for public use, which has not been paid for. The proof Stl bmitted in this case shows that plaintiffs are the owners by right of perpetual occupancy of the lands on either side of the approaches to the wagon and footway part ·of the bridge for several hundred yards back of the river on the Cherokee side of it; that the sameis the river, front at the abov,e-named point; that there is now, and has been , for many yeats, a ferry owned in part by plaintiffs, used by them in crossing wagons, foot passengers, and live-stock of all kinds for hire over the Arkansas river; that said ferry now lands, and has for many years landed, on the ChE)rokee side of the riveronthe lands owQed by plaintiffs; that
& A. VAL. R. CO.
the same have a peculiar value because of their being particularly 'ldapted to use us the site of a ferry-landing. The plainiiffsshow the existence of the ferry, and its landing on their lands, to prove the eligibility of the same as a ferry-landing. Can this fact be taken into cor.3ideration in assessing the value of these lands? ADd are they rendered less valuable for use as a ferry-landing by the building of the bridge as a wagon and footway bridge? When private property is taken for public use, the owner is entitled to full cumpensation, which meangthe fair market value of the property at the time of the taking. In Boom Co. v. Patterson, 98 U. S. 408, the supreme court of the United States says: "The inquiry in such cases must be, what is the property worth in the market. viewed. not merely with reference to the uses to which it is at the time applied. but with reference to the uses to which it is plainly adapted? 'rhat is to say, what is it worth from its aV<lilability for valuable usesi' Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded valueless because he is unable to put it to any use. Others may be able to use it, and make it subserve the necessities or con veniencies of life. Its capability of being made thus available gives it a market value which can be readily estimated. So many and various are the cireumstances to be taken into aecount in determining the value of condemned for public purposes that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Excpptional circumstances will modify the most carefully guarded rule; but, as a general thing. we should say that the compensation to the owner ii:! to be estimated by reference to the uses for which the property is suitable, haVing regaru to the existing business or wants of the community. or as may be reasonably expected in the future." In the case of Railway Co. v. Woodruff', 49 Ark. 381, 5 S. W. Rep. 792, the supreme court of Arkansas fully recognized the above rule, and held that, in estimating the value of the land of Woodruff, the fact that such land had on it a site well suited for the landing of the end of a bridge might be taken into consideration in fixing the value of the same. The court further said: "In a proceeding to condemn a site for a railroad· briuge, evidence to show that the land required for that purpose possessed peculiar advantages as a bridge site is admissible as affecting the question of its value." In the case of Railway Co. v. McGehee, 41 Ark. 202, the land appropriated by the railroad was worthless for habitation or CUltivation, but its prospective value for a ferry-landing, to be established in the future, was allowed in the estimate of damages. Under the above rule the adaptability of the lands of plaintiff for ferry-landing purposes is a circumstance that they have a right to insist upon as an element that goes to make up the market value of their lands. If the defendant, by the construction of its wagon and footway bridge, necessarily injures the value of plaintiffs' lands, such value growing out of its adaptability as a ferry-landing, does it not take away this element of value? If 80, there is a burden cast upon the land by the defendant,a servitude of such a character as to injure, if not largely destroy, its value. If the act of defendant in. building its railroad bridge did not affect this peculiar value of the of plaintiffs, lUld its building its footway and wagon bridge does affect such value, or if its building its
railroad did not as largely affeot valu,e of such lands as: does the building of its wagon and foot bridge, then, by such last-named act, there is most certainly a new servitude cast on the land, .which affects its value. The peculiar value of this land grows out of the fact that it is eligible as the site of a ferry-landing. One of the elements.that largely makes it so eligible for such purpQse is that at that point on the river thereis a ferry, with a large patrorllige from the people. Take away that patroi;18ge,' and it is scarcely any more eligible or valuable as the site of than any other on the river. The building of the a wagon and footway bridge will very largely destroy the patronage of the ferry,aMin this way affect the value of tbe ferry-landing. The building of We bridge as a railroad bridge only could not tothjs extent affect tlHl,value of the land, because the. of patrona,ge the railroad would from the ferry would amount to scarcely nothing, .and, in condemning the land for railway purposes alone, there would be no injury of this' kind to take into consideration. I think we can therefore see that it i's clearly a new use,-a new servitude cast upon the land by the building of the wagon and foot bridge. A property which has been condemned for pUblic use unde.r the right of eminent domain cannot be subjected, under such condemnation, to an Ildditional charge, without another condemnation; for,whe11 the public use has ceased, the erty wiU'then revert to the- former owner. 'Mills, EIil. DomJ§·57. Some evidence 'has been offered to show that the valueQf this land as a ferrylanding site was taken into consideration 'when the tight of way for railroa,d purposes wa,s condemned.. C()uld .not he, as building of the railroador the railroad bridge could not materially affect the value of this land ',py the taking of patroriage from the ferry, which has its landing on the!?e lands, and thereby they are made mOre v!.iluable. Then theinjury to them by the building pf a wagon and could not 'have been eonsidere<i in the first condemnation, because defendant at that time had no to build s,uch abridge. Under the act of congress of June 1, 1886; the land could be condemned but for one that was, the purpose a. railway; for this taking private for public lise by the right of eminent domain, the exereiBe ofa resEjrved sovereign power, and sunh power can only be exercised when is grarlted, and in the manner granted. , Lewis, Em. Dom. § 2p7.' , The private property for public use must be to subsei-ve the use authorized. We'arenot toconsiderapy'direot injury to the ferry franchise, but we may consider the existence of this franchise, and the fact that it is being used, and,thata ferry is being run, which does a large business, and which on sidE) of the river has its landing onthe land of plaintiffs, tothe approach to the for these reasons the land is made more valuable. This is an evidentiar>' fact, to show the eligibility of this,land for ,It is claimed that this additio:t;lalbur;den ,can only be considere4,asaffectiI,lg the interest of the holder of ,the ,fee' this ll,lnd,th(lCherokpe Natioll. As between the holder oithe fee and an ordinary teniult this is true, but these plaintiffs,.
PAYNE v. KANSAS & A. VAL, R. CO.
under the laws of the Cherokee Nation, hold this land in such a way as to give them the tight of perpetual oCl1upancy. The reason why additional damages, growing:outof a new burden cast upon the ,property, goes to the owner of the fee is because the ordinary tenant is not likely new charge to have ap interest so durable as that it can be affected cast ,u pon the property. But if the party has such a 'pl:lrpetual interest in the property that it is manifest that the additional burden cast on it does injury to it, the reason of the rule ceases, and in justice a new principleshould operate.'While citizens of the Cherokee Nation do not have a fee'to the lands they d6cupy, they cart 'hold them forever, and fully enjoy the profits arising from them, and this right may be granted to their heirs, or may descend by inheritance. Practically they get all the productions of the land, the same as though they held it in fee. If there is any peculiar value to the land, it attaches to the right of possession, and the occupant gets the benefit of it. The plaintiff's have such a right to their lands as that they could resume possession of them whenever the original use for the purpose for which they were condemned shall be. finally abandoned; and, while they do not hold the fee to the land, I think their interest is so great as to entitle them, as perpetual occupants, to compensation for the additional servitude cast upon their lands, for this additional servitudeaff'ects them more intimately and more eff'ectively than it does the Cherokee Nation. The circuit court of the United States, in Northern Pac. R. Co. v. St. Paztl, AI. & M. R. Co., 1 McCrary, 302, 3 Fed. Rep. 702, declares: "The open and acknowledged possession of a party is sufficient to maintain injunction to prevent such possession being disturbed by being taken lor a R. R. right of way." I think this principle is justly applicable to the existing condition in this case. The remaining which was presented in argument is, has Congress conferred upon defendant the power to condemn the property of plaintiffs for approaches for a wagon and footway bridge? As already declared, there is an additional taking of the property of plaintiffs, because there is, in addition to the easement already enjoyed by defendant. the subjection of the property to an additional servitude, which amounts to another taking; and, be/ore there can be that taking, by the defendant, there must be authority for it. The right of eminent domain in government is the right to take private property by an extraordinary method; extraordinary, because it does not involve the consent of the owner. Because it may thus be asserted against the individual citizen, the party asserting it m11st assert it by the authority of the law-making power, when given in express terms or by necessary implication. Lewis, Em. Dom; ,§ 240, says: "The exercise of the power being against common right, it cannot be implied or inferred, but must be given in express terms or by necessary implication." When: the act of congress authorizing the building of the wagon and footway bridge fails to make any provision , for compensation, it is ,to be presumed that congress did not intend that the power> of eminent. domain SbOllld be exercised, but it contemplated .that the right might be obtained by negotiation, by contract with the
owners. This principle is fully sustained in Pennrrylvania R. Appeal, 93 Pa. $t 150. Judge Dillon, in his able work on Municipal Corpomtions, (section 469,) says:
"Not oniymust the authority to municipal corporations or other legislative·agents to take private property be expressly conferred. and the use for which it is taken specified, bilt the power, with all cGnstitutional and stat.. uto!'y limitations I\nd directions for its exercise. mnst he strictly constru(·u. Since the power to condemn private property against the will of the owner is a stringent and extraordinary one. basfJd upon public necessity, or an urgent public policy. the rule reqUiring the power to be strictly construed, and the prescribed mode for its exercise strictly followed. is a just one. and should, .within all reasonable limits, be inflexibly adhered to and applied."
The right of eminent domain is one which lies dormant in the state until legislative action is had pointing out the occasion, mode, conditions, and agencies for its exercise. Dyckman v. City of New York, 5 N. Y. 434; Cooley, Canst. Lim. 527; Allen v. Jones, 47 Ind. 438. The court in Water- Works Co. v. Bttrkhart, 41 Ind. 364, said: "No property can be taken for public use by condemnation or otherwise than by legislative aUlhority, and in the manner and for the pur:;Joses authorized." These declarations of a legal principle are fully sustained by all the authorities on the subject. It is claimed for the deiendantthat the act of congress ofJune 1, 1886, granting a right of way to the defendant for railroad, telegraph, and telephone purposes, and the act of congress of March 1.5, 1890, authllrizing the construction of defendant's bridge across the Arkansas river, at Ft. Smith, as a wagon and footway bridge, are to be construed as laws pari materia. I think this is correct. But by such construction w(,/ cannot evolve from these acts of congress the power to condemn the property of plaintiffs, unless such power, expressly or by necessary implication, exists in one or. the other of these acts, and unlells the purpose of the exercise of such power is to be found,' expressly or by necessary implication,in one or the other of them. Does it so exist? . As we hase already seen, by the .act of June 1, 1886, the defendant was authorized to take property ·and ·use the same for all purposes of a railway, and for no other purpose, __aright of way, etc.; and the section further provides that the lands taken "shall not be used except in such manner and for such purposes only as shall be necessary for the construction and con:venient operation of said railroad, telegraph, and telephone lines." Use of the lands for approaches of a wagon and footway bridge is not use for railroad, telegraph, or telephone purposes.. The ·use for railway purposes alone is the use to which the land authorized to be condemned was limited by the act of congress. Then tJlere is no exprees authority to condemn for the use of a footway and; wagon bridge in this act of congress, nor does it appear by necessary implication. But, on the contrary, a use ofthat.kind, as well as aU otheluses, exceptforrailway, telegraph, and telephone purposes, is expressly· prohibited. In the act of March 15, 1890, authorizing the building of a footway and wagon part of the bridge, there is not a word on the subject of the condemnation of pri-
AMATO V. NORTHERN PAC. R. CO.
vate property to be used in the construction of the bridge. There is therefore in this act no express authority to condemn, nor can it arise by necessary implication. If there is no authority in either act to do this thing, we cannot create an authority by construing the two acts as laws pari materia. If the authority does not exist in either of the acts, we cannot find its existence by putting them together. After a careful examination of C1ese laws of congress, and all the authorities upon the condemnation of private property for public use, I have arrived at the conclusion that defendant has now no power to condemn the land of plaintiffs for use as, an approach for a wagon and footway bridge; and to get the right, and use the same for such purpose, defendant must either go to congress for authority to exercise the right of eminent domain, or negotiate with plaintiffs for the use of the right of way as an approach to its wagon and footway bridge. It is in my judgment a matter of great regret that authority to condemn has not been given, as it works delay in the completion of a great thoroughfare, which will be an important agency in securing the development, progress, and prosperity of the country, and consequently of great and lasting benefit to the people. Yet when plaintiffs have a legal right, although it may be but a small one, when weighed in th e balance against the general good to be subserved by the early C0111pletiop of the bridge, still it is a right, no matter how small it may be, that must receive the full measure of protection afforded by the law, and it is a right of which plaintiffs can be divested alone in the manner provided by the law. I am sure no one, after a full investigation of this whole question, will ask that plaintiffs' rights be taken from them tyithout authority of law. The motion to dissolve the injunction, and the demurrer to the bill, will be overruled.
AMATO V. NORTHERN PAC.
(Circuit Court, S. D. New York.
June 24, 1891.)
Plaintiff's testimony was that he was working with other laborers for defendant railroad on the west bank of a river, and that it was the custom of the defendant at the and of ,the day to carry them on cars across the bridge; that on the day he was injured the boss told them they would have to walk, and that it would be safe, as no engine w01l1d cross for two hours; that on account of a lame side he was unable to keep :UP wita the others; that when part way over hesaw an engine coming, and tried to step asic..e, bnt caught his foot under the wheel. The bridge had a .single track, and there was liO room to walk at the sides, though one could step out of the way a train. track was frozen and slippery and it was after night-fall. Hdd, that the court properly left the question of the defendant's contributory negligence to the jury. 2. SAME-EvID1DrcE. The was no error In directing the jury that they could take into consideration the statement made by the boss that it would be safe to cross, and that no ell.gine wouid cross for two hours. ' .
IKJURY TO E1,lPLOYES-CONTRUlUTORY
At Law. The plaintiff, an Italian, 24 years of age, was, in 1888, in the employ of the defendant as a common laborer. On the evening of November v,46F.no.9-36