NORTHERN PAC. R. CO. 11. AMACKER.
vested with the title to all of the testator's real property, (including the property now in controversy,) to hold upon certain active trusts. They were given power to sell, mortgage, or lease all the property committed to their charge, and to reinvest the proceeds as they deemed advisable. It can hardly be doubted that, under the provisions of the will, they had the right to buy in an outstanding claim that was a cloud upon their title, and that a court of equity or probate would allow them to \ take credit for such an on account of the trust-estate. But, in any event, an agent of the complainants, who has violated his trust, cannot be permitted to make such a defense. It does not lie in his mouth to say that no relief should be granted because the court will probably grant relief upon conditions with which the complainants have no right to comply. It may be that the rents and profits of the property, while the defendants have been in possession, will be fully adequate to reimburse them for their expenditures in purchasing the interest of the remainder-men, without requiring any expenditure on the part of the trustees. 5. A decree will accordingly be entered in favor of the complainants, adjudgiJ;1g that the defendants hold the legal title to the property in controversy in trust for the complainants, and further adjudging that such title be divested out of the' defendants, and vested in the complainants, as trustees under the will of Edwin Chaffin, deceased. A reference will also be ordered to one of the standing masters in .chancery, to take an account of the rents and profits which defendants have received during their occupancy, and in stating such account the defendants Will receive credit for all expenditures on account of taxes, iasuranoo, and iinprovements, as well as for all sums expended in purchasing the interest of the remainder-men.
(Co£rcwtt Ooon Qf AppeaZ8. Ninth OircuU.
January 26, 1899.)
A bill to quiet oomplainant's title to 160 acres of land platted by defendants u IUl add,ition to a oity averred that complainant" is seised tllereof in fee-simple, " that eight lots tbereof were in possession of two defendants, and the balance "is vacant, unimproved .land. " . HeW, that the averments should be construed together, and meant that complainant was seised in law and not in fact, and therefore not in actual possession of the land, and, under Code Civil Proc. Mont. 866, providing that an action may be brought by any person "in possession" to determine adverse claims, that the bill was bad on demurrer·
.. Sll4E-MuTIPLICITY 011' SUITS.
Such bill will not be sustained on tbe ground of avoiding a multiplicity of suitt. it appearing that only two defendants are in possession claiming title and exercl.. ing ownership, nor will it be sustained on the ground of the extensive land IJ(llIs_ sious of complainant under a land grant, and the hardship of takinr poaaeasloll 01 all suoh lands before bringing 4;6 1l'eQ.. Rep.2llll, aflI.rme4.
Court' of the United States far the District of ,'" 'j " , , ' Bill::by the Northern Pacific RailroadCotnpany against Maria'A.,macker and others, to quiet complainant's title 'to certain lands. ComplIDnill1t appeals'ironia. decree sustaining defendant's demurrer to theeomplaint and dismissing the complaint. ,F/N.' JJudley, for appellant. ' Massefia Bullard and ThOmas O. Bach, for appellee. Bef9teHANFORD, HAWlJi;y, and MORROW, District JudgeS.' Montana; from the MdRitow, District Judge. This is a suit in equityseeking a decree declilring that the defendants have rIo estate or interes,t whatever in or to certaHi lands and premises in Montana claimed by the complainant, that the title of the complainant is gopd and valid, and' that the said defell'dlints be 'forever enjoined alld restrained from,assertirig any claim in ortosiiid lands or premises adverse to the complainant. The land is described as the W. i of the N. W. t, S. E. t of the N. W. l,and S. W;f"ofN. E. t, olsEl-etlon 17 ,township 10 of range 3 W., principitl"meridianofMont&ha. The complainant claims title'to this land under the act ofcongreas f!.pproved July 2, 1864, providing for the creation: iiM organization 'of ,the Northern Pacific Railroad Compimy, and granting'td'the company every 'alternate ,section of public land not mineritl;'desighated 'to the amount of 20 alternate sections per'mUe of'saM railroad line through theteiTitories of the Uniteli'States, and 10,alternate sections of landpei'niile i em each side of safd railroad wherever it passes through any state,'andwheneV'er on the line thereof the United States has fullti.tle, ,not 'reserved, sold, granted, or otherwise appropriated, and free from or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general The bill alleges that the complainant duly accepted the conditions and of act, and fiilfed the of its road throup;h the territory of Montana, February 21, 1872, and on July 6, the liue of its opposite 1882, it to and past the land 111 controversy, andthtJreafter constructed and completed that portion of its railroad along said line of definite loca:tion; that the land involved in this suit is within 40 miles of complainant'sline of roild, and that said land was,at date of the fixing of the general route on February ,21, 1872, and at the date of fixing the definiteline of the road on July 6, 1882, public land, to which the United States had full title, not reserved, sold, granted, or otherwise appropriated. and free from p're-emption or other claims or rights. Til is allegatj,on is modified by the, statement that in 1868 certain persons filed under' the provisions of the laws of t,ha United., pre.el1lpti0tl rights to st:Mlers on the public domain, whereby they made pre-emption claims to 'the various subdivisions of the land in question; that one A. J.cWitterfiled one of said
NORTHERN ,PA.c··· OO.,,,. AMACKER.
statements May 13, 1868, claiming the N. W. t of the N. W. l ofsJ\id section 17; that one William M. Scott filed anothel of said declaratory statements October 5, 1868, the S. i of N. W. t of said section 17; that one Jerome S. Glick filed another of said declaratory statements November 27, 1868, claiming the W. i of theS. E. t, the S. W. l of the N. E. i, and the S. E. l of the S. W. t of section 17. and Robert C. Wallace filed another of said declaratory statements December 13, 1869, claiming the S. W. l of the N. E. l of said section 17 j but it is alleged that the said claimants did not at any time inhabit or improve the lands so claimed, or erect dwellings thereon; that in February and March, 1868, all the lands in said townwere surship 10 N. of range 3 W. of principal meridian of veyed by and under the direction of the United States surveyor general of the district of Montana, and return made of the official plat of said survey to the commissioner of the at Washington, D. C., and on July 23, 1868, the same was regularly filed in the land· office at Helena, Mont., and, that by said survey it was determined that said land was agricultural, and not mineral, in character. It is furtheI the general course of complainant's road stated that notice of was not received at the land-office at Helena, Mont., until May 6,1872, at which date there was received from ,the commi$sioner of the general route land-office a diagram, showing that portion of the line of of said railroad extending through said land-district. together w,ith an order instructing the land-officers to withdraw from sale, pre-emption, or other entry, all public lands in odd-numbered sections within' 40 miles on each side of the line of general route of said railroadj that prior to the receipt of said diagram and order of withdrawal at the land-office at Helena, to-wit, on May 3, 1882. one McLean applied under the homestead act of May 20, 1862, to enter the said subdivision of section 17 as a homestead, and he thereupon made an affidavit, as required bylaw, and filed the same with the register of the land-office and paid the receiver the sum of $10; but it is alle/l:ed that McLean did not then nor at any time reside upon or cultivate said land tor the term of five years, or for any time whatever; that in 1879, pursuant to a circular of instructions issued by the commissioner of the general landoffice, the register and receiver of the land-oflice at Helena notified McLean to appear and show cause within 30 days why said entry should not be canceled for failure to make proof of compliance with the provisions of the homestead law; that, McLean failing to respond to saiel notice, the commissioner of the general land-office, on September 11, 1879, canceled said entry; that aLout August 20, 1882, McLean died, leaving a widow, Maria McLean, who on March 15, 1883, made application purchase said land under the provisions of the act of congress approved July 15, 1880; that the commissioner of the general land-office allowed said purchase to be made, whereupon the complainant appealed from said action to the secretary of the interior, who held that the land walt from the grant to the Northern Pacific Railroad Company,and ,allowed the apv;licant to purchase the land, and thereafter, on or aho\lt
June 17,1887, the United States issued to said Maria McLean its patent for saip.land; that after the death of McLean, bis widow, Maria McLean,marriedJohn J. Amacker, one of the defendants in' this suit; that the defendants claim title' under said United States patent to Maria McLean, and by reason of the issuance of said patent to her the United States refuses to issue to complainant a patent for said The complainant alleges that certain of the defendants have catlsed said land to bA surveyed into town-sites. with blocks, lots, streets, and alleys, filed the plat of said town-site in the office of the count)' recorder for the county of Lewis and Clarke, as an addition to the city of Helena, and dedicated said streets and alleys to the public use, said addition to be known as "McLean Park Addition to Helena i" that two of the defend· ants are in possession of, and claim title to, eight of said lots, but that the remainder of said land is vacant, unimproved land, and that the complainant is seised thereof in fee-simple; that the premises are of the value of $30,000. To this bill defendants demurred, on the ground that by the plaintiff's own showing it was not entitled to the relief prayed for. The coun below stlstained the demurrer, and dismissed' the bill. Plaintiff appealed., ' The land grant of the NorthetnPacific Railroad Company,: under the act of July 2,,1864, was a grant of quantity to the extent of 20 alter· nate sections'per mile on each side' of the line of the road through the territories of the United 'States,and 10 alternate sootionsof land per mile on 'each'side of the road whenever it should pass through a state. This grantwasi'however, subject todiminutionin'quantity within these limits by reasOn of the fact that when the line should be definitely fixed the United States might not have full title to all the odd-numbered sections within the limits of the grant,' These particular sections might not all be.free from pre-emption or.other claims or' rights, and some sold, granted, or otherwise appropriated. This might be probable 108s to the railroad company of land in place within these primary limits was anticipated by congress, and to make good such deficiency, and relieve cHtim:ants under the public land laws of the United States from controversies with the railroad company concerning the va· lidity of their claims, provision was made for compensating the company for such loss within the limits of an additional or indemnity grant. It was accordingly provided in section 3 of the act of July 2, 1864, that wheqev:er, prior to tbe time when the line ('Jf the road should be definitely fixed, any of said sections or parts of sections shall have been granted, sold,reaerved, occupied by homestead settlers. or preor 'otherwige disposed of, other lands should be selected by said compl1nyill'lieu thereOf; under the direction of secretary of the inteiiof; in 'alternate sections, and designated by oddntimbers, Dot more fihan 10 beyond the limitllof said alternate sections. By joint 'resolution '6(:M:ay31, 1870, these indemnity limits were extended by :cotl.gress'10 rb.iles further on each side of the 'toad, making what has 'been kridWb. and designated as the" Second Indemnity Limits." ,The
NORTHERN PAC. R. 00. fl. AMACKER.
grant was, therefore, not only one of quantity, but it was also in the nattire of a float, to be located within the limits of certain exterior boundaries, containing such a number of odd-numbered sections as would enable the company to obtain by selection within such exterior boundaries the full quantity of land granted. The title of the company to lands within the primary limits attached to specific odd-numbered sections as soon as they were capable of identification by the fixing of the definite line of the road opposite to them, and the filing of a plat thereof in the office of the commissioner of the general land-office. St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. Rep. 389. The right of the company to lands within the indemnity limits, selected in lieu of lands lost in place within the primary limits, attached at the date· of the selection of such lands for that purpose. Ryan v. Railroad Co., 99 U. S. 388. The land in controversy in this suit is 'part of an odd-numbered section within the primary limits of this grant, and, although it was lost to the complainant, so far as the action of the land department of the government was concerned, by the issuance of the patent to' Maria MeLean on, June 17, 1887, it is nowhere alleged in the bill that this quantity of land has been wholly lost to complainant by reason of such action. This suit was not commenced until September 4, 1890, or more than three years after the patent was issued to Maria McLean. This, period certainly affordedlimple time to enable the complainant to make selection of a: like quantIty of land within the indemnity limits, to make good the loss. . It will be observed that the claim of Maria McLean was contested by the complainant before the secretary of the interior, and that the patent was not issued to her until after that oontest had been decided by the secretary in her favor, and adversely to the complainant. By, reference to the clause of section 3 of the act of July 2, 1864, we find that selections of land by the railroad company in lieu of lands lost in place are directed to be made under the direction of the secretary of the interior. The same officer who determined that this land did not belong tothecomplainant is charged with the duty of withdrawing from other disposition a sufficient quantity of lands within the indemnity limits to make good those lost in the granted limits. Prei!t v,Railroad Co., 2 Dec. Dep. Int. 508. Pursuant to this authority, the sooretary of the interior has from time to time directed the commissioner of the general land-office lis to methods of procedure that would secure the adjustment of complainant's grant at the earliest possible time, and provide for the opening to settlement, as speedily as possible, of all lands Within the indemnity limits of snch grant not actually required to supply the lands lost in place within the original granted limits. 4 Dec.: Dep. Int. 90; Darland 'v. Railroad Co., 12 Dec: Dep. Int. 196. Moreover, .congress, 'by the act of March 3, 1887, directed the secretary of the interior to immediately adjust, in accordance with the decisions of the supreme court, each of the railroad land grants made by congress to aid in the construction of such railroads. These meas-ures have all' been taken for the express purpose of expediting the set-
tIement arid adjustment of all claims involved in the grants to the rail. . roads, whether within the original or indemnity limits. We think the acquiescence of complainant with the decision of the secretary of the interior for a period of more than three years, under the pending. conditions, raises a presumption that it has made a selection of lands in the indemnity limits in lieu of those described in the patent to McLean.· If it has, the most that can be said is that, under the terms of the grant, the complainant has the legal title to the land in. volved in this suit, and this is not sUfficient. In v. 00ck8, 23 Wall. 466, it was held" to be the universal practice ofcourls of equity to dismiss the bill, if it be grounded upon a merely legal title. In such a case, the adverse party has a constitutional to a trial by jury." But if, on the other hand, no indemnity selection has been made, then the injury complainant .hassustained by reason of the loss of this portion of its grant should be made to appear in the bill by proper averment. It is proper. to say here that this defect in complainant's bill was not suggested either in the court below or upon the argument in this court. We will thel'efore proceed toconsider whether the bill states facts sufficient in other respects to show a right to appeal to a court of equity 10r the relief prayed. The bill alleges thattwo of the defendants are in possession of eight of the lots in the town-site into which tbe land has .been divided. It asserts, in effect, that tbe complainant is the owner of the legal title to the whole tract, but it <108S not claim possession to any part of it, unless the averment that the complainant" is seised thereof in fee-simple" may be construed as alleging. !luch a claim to tbe remainder of the land nut admitted to be in possession of the two defendants. But this averment is qualified by the .further allegation that the land to which it refers "is vacant, unimproved land." "There is a seisin in deed, and a seisin in 1awiand theciitference between the two is that in one case an actual possession bas been taken, and in the other there is a right like that of an heir upon de.'«lent from an ancestor, while the possession is vacant, before he has made an actual entry." 3 WashQ. Real Prop. 138. The averments of the complaint, construed together, must be taken as meaninp; tbat the complainant is seised in law, and not in deed, and is therefore not in actual possession of the land. This brings us toa question, whether it is necessary for the complajnant in a suit of this character to show by an averment in the bill that he is in possession of the premises. In Orten v. Smith, 18 How. 265,the supreme court declared the rule to be that "those onl)' who have a clear legal and equi,t,able title to land connected with possession have any right to claim the interposition .of a court of equity to give th'em peace or dissiIn U. S. v. Wilson, 118 U. S. 86, 6 Sup. Ct. Rep. pate a cloud on 991, the suit was in equity to have the conveyance of an adverse title declared fraudulent Rnd void, and removed as a cloud on complainant's title. The court said: "Having the legal title, then, but being ki'pt ont of pOllSesslon by defend. antllholding adversely, the remedy oftha.Unlted States is at law to recover possesllign. EqUity in suc.llcasee has no unless it Ja reqUired to
CO.· ,,: 'AMAcKEB.
remove obstacles which preventasllccessful resort to an actio.n of ejectment, or when, after repeated actions at law. its jurisdiction is invoked to prevent a mUltiplicity of suits, or there are other specified equitable grounds of relief. Bills quia timet, such as this is, to remove a cloud from a legal title. cannot bebronght by one not in possession of the real estate in controverSy, because the law a remedy by ejectment. which is plain, adequate, and complete. This is the familiar doctrine of this court." This doctrine was again declared in Prost v. Spitley, 121 U. S. 552,7 Sup. Ct. Rep. 1129, where the court said: "A person out of possession cannot maintain such a bill, (1\ bill to remove a cloud upon title, and to quiet the possession of. real estate'J whether his title is legal or equitable; for if bis title is It'gal, his remedy at law, by action of ejectment, is plain, adequate, arid complete; and it his title is equitable. he must acquire the legal title, liHd then bring ejectment. I. The case of HoUand v. Cha1l.eri., 110 TJ. S. 15,3 Sup. Ct. Rep. 495, was a bill in equity to quiet title, fOUllded p.pon a statute of Nebraska, which provided"That an action may be brought and to final decree. judgment, 01 order by any person or persons. whether inadual posses,sion or not. c1aimin8 title to real against any person.or persons who claiI11.an adverse estate or interest thereon. for the purpose ot determining such estate, and qUieting the title to such real estate." The supreIIle court held that this st8.tute dispensed with the general rule Qf the (l()urfa of equity that in order to maintain a bill to quiet title it is necessaJ1. that the party should be in possession, and in most cases that ehould have been established at law, or founded upon indisputable or long-continued possession. The court, in explainingthe l'Ule, of equity jurisdiction jn the absence of such a statute,
"A bn, Q( peace against an individual an unsuccessful to rllal property ,would formerly lie only where the plaintiff was in possession, aM, his right had been successfully maintained. The equity of the plaintiff In such cases arose from the protracted litigation for the possession oftha property, which the action of ejectment at COlnmon law permitted. That action being founded upon a fictitious demise, between fictitious parties, a reCovel'Y in one action constituted no bar to another silnilar action, or to any number of such actions. A change in the date of the alleged demise was sufficient to support a new action. Thus the party in possession, though successful in every instance, might be harassed and vexed. if not ruined, by a litigation constantly renewed. To put an end to such litigation. and give repose to the successful party, courts of equity interfered and closed the controversy. To entitle the plaintiff to relief in such cases the concurrence of thr,ee particulars wasessential.-he must have been in possession of thepropertYi J!:e must have been disturbed in its possessionby repeated actions ""t)aw ; and he must established his right by successive judgments in his Upon these facts appearing, the court would interpose, and grant a perpetual injunction to qUiet the possession of the plaintiff against any further litigalIion from the same source. It was only in this way thahdequaterelief could beaftorded.against vexatious litigation. and the irreparable mischief whlc:hit 'ntailed," . " . . .. . · · J The oourtfurther explained:
.. A. bill quia timet, or to remove a cloud upon the t,itle of real estate, differed from a bill of peace in that it did not seek so much to put an end to vexatiou8 litigation respecting the property as to prevent future litigation, by removing existing causes of controversy as to its title. It was brought in view of anticipated wrongs or mischiefs, and the jurisdiction of the court was invok,ed because the party feared future injury to his rights and interests. Story, Eq. Pl. § 826. To maintain a suit of this character it was generally neethat the plaintiff should be in possession of the property, and, except where the defendants were numerous, that his title should have b6en established at law, or be founded on undisputed evidence or long-continued poesession. " statute of Nebraska, as stated by the court; authorizes a suit in of these classes, of cases without reference to all.y'previous judicial determmation of thee validity of the plaintiff's right, and without reference to his possession; and the bill was sustained on that ground. But there is no such statute in Montana. The onl,. law tin the subject appears to be section 366 of the Code of Civil Procedure of that state, which ' provides: '..An action may be brought by any person in possession, by himself orb18 tem\J1t, of real property, any person who clailns an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest." . This is the language of section 254 of the old practice act of California, adopted in 1851, and the Montana section was doubtless copied of 1851 was superseded by seefrom that act; but section 254 of tion 738 of the Code of ,Qivil Procedure of California, approved March 11, 1872, which took effect January 1,1873. ,The 'latter section provides: "An action may be brough,t by anypersori against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim;" the provision relating to possession being omitted. During the existence of section 254 of the practice act the decisions of the supreme court of California were uniform to the effect that an could not be maintained under its provisions for the purpose of determining an adverse claim to ,()r estate or interest in real property unless the plaintiff, at the time of the commencement of the action,was In the actual possession of the property himself, or inpossessionby his tepant. Dunlapv. Kelsey, 5 Cal. 181; Ritchie v. Dorland, 6 CaL 33; Mining Co. v, Fhmiont, 7 Cal. 319; Rico v. Spence, 21 Cal. 504; Lyle 25 Cal. 437; Ferris v. Irving, 28 Cal. 645. To the same effect is Coolidge v. Forward,(Or.) 2 Pac. Rep. 292. In Curti8 \T. Sutter, 15 Cal,259, it was held that this section enlarged the class of cases in which equitable relief could formerly be sought in quieting title. n of equity in cases where b}lls of pl",8.ce would not lie, and it was explained that under thIS statute It was unnecessary plaintiff to delay seeking the equitable interposition of the court until he had been disturbed in his possession by the institution of a suit 'against him, and until judgment in such suit .had passed. in his favor. It was sufficient if, while in possession of the property, a party out of possession claimed an estate. or interest adverse to him, It
NORTHERN PAC. R. CO. V. AMACKER.
will be observed that while it was determined that this section enlarged the equitable jurisdiction of the courts in cases formerly reached by bills of peace and quia timet, it still required that the plaintiff should be in possession of the property to enable him to seek such relief. Where a different rule has obtained, it has been under a statute similar to the one in Nebraska. Section 738 of the present Code of Civil Procedure of California is snch a statute, and under its provisions the plaintiff out of possession, but claiming an estate in real property, is enabled now to proceed in equity to remove a cloud therefrom, or quiet the title to the same, as wae decided in Holland v. OhallR:n, BUpra, with respect to the stat-. ute of Nebraska. The case of Southern Pac. R. Co. v. Wiggs, 43 Fed. Rep. 333, was brought under the provisions of this statute, and, although the question of possession was apparently not in controversy, its existence explains the position taken by the learned judge in sustaining the equitable jurisdiction of the court. But it is urged that the sufficiency of this bill must be considered with reference to the allegation that the complainant can have no adequate relief except in a court of equity. Section 723 of the Revised Statutes of the United States provides that "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." It has been decided that this provision is merely declaratory, making no alteration .whatever in the rules of equity on the subject of legal remedies, but only expresses the law which has lI;overned proceedings in equity since their adoption in the courts of England. In the case of Whitehead v. Shattuck, 138 U. S. 151, 11 Sup. Ct. Rep. 277, the supreme court said:
"It would be difficult, and perhaps impossible, to state any general rule which would determine in all cases what should be deemed a suit in equity as distinguished from an action at law, for,particular elements may enter into conSideration which would take the matter from one ,court to the other; but this maybe said: that where an action is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is one at law. An action for the recovery of real property, including damages for withholding it, has always been of that class. The right whicb in this case the plaintiff wishes to assert is his title to certain .l'eal property; the remedy which he wishes to obtain is its possession and enjoyment; and in a contest over the title both parties have a constitutional right to call for a jury."
In the case at bar two of the defendants are in possession of certain subdivisions of the tract in dispute. As agaiust them, upon the facts stated, a suit of ejectment would afford a plain, adequate, and complete remedy. If the remainder of the land is unoccupied, as alleged, we see no reason, as was eaid by the learned judge in the court below, why the complainant cannot take possession of the same, and then bring the appropriate action to determine thtl title to the same. The extensive land possessions of the complainant, and the hardship of taking possession of its lands before bringing such an action, cannot properly be considcered in this case. The land involved in this suit amounts to about 160
acres. .TherQC/lu difficulty in possession of an unoccupied'tnwt of land of such; di'il)ensions, I09at,ed: asJhis is; and we are not at liberty to il,llport into this,case other tracts that .may be involved iQ like controversy and embraced in complainant's gl'a,ntof 45,ooQ,000 of acres. .. . , It is furthet, argued, .in favor of the equitable jurisdiction claimed it wUlavoid a multiplicity of But it appears for this. that only two af the defendants are.inpossession, clairuingtitle and exwould certainly not require more ercising ownership as to eight lots. possession, and indeed the law than one suit to determine their right is well settled that, under the practice act adopted in Montana, the plaintiff in aniactioll in tbe nature,,()f t;ljectment may join any number of defeI)dl\nts :Without regard to the extent or charactflr of their posses. San Francisco v. H Cal. 461. :,It appears, therefore, thlltthe bill.does not present a case coming the equity jurisdiction oOha.cQurt. .' " The. decree ,of the circuit court is therefore
UNION PAO. ltV. CO.
(C£rcuit Court Qf Appeals, Ef,ghth Circuit. February 8, 1899.)
INJURY' TO, EMPLOYB-OPINION EVJDENpB..
. In an 'action for the death of plaintiff'. husband, a looomotive engineer. alleged to have been caused by the faulty construction of a 'pcrtion of defendant's railroad, an ,engineer, testifying for plaintiff as to the faulty condition, should not be allow,ed, on cross:elCamination, to state that the engineers on the road were all aware of such condition, it being a mere inference. Ordinary care In the construction of a railroad through a cut in a mountain side, which.was alleged to be faUlty in not providing. a culvert under the track to carry off the washings from a gully, cannot oe shown by the opinion of a witness that cut was construoted and the water run out of it exactly as others are ordinarily constructed on roads running throu'gh such places. In· introducing impeaching testimony, by .showing former oontradlotory statements, .itis within the discretion of the trial oourt to permit a leading question to be put to a witness.where that mode of interrogation is best calculated to elicit the truth.' . .'
... NEGLIGENCE-BuRDEN 011' PROOll'.
In an.actlon to recover for the death of plaintiff's husband, alleged to have been caused by defendant's negligence, a to charge that the burden is on plaintiff, in the. ;llrst instance, to show that 'plaintiff" was in the exercise of due care, being misleading In the use of the word, "plaintiff," is properly refused.
6. B.ulm-MISI.EAD'ING INSTRUCTIONS.
Plaintiff's intestate, an engineer in defendant's employ on a division of Its rallroad constructed along the foot of mountain ranges, was killed by the derailment of his engine by reason Of sand and gravel on the traCk, which. during a storm, had washed down from the mountain side, through a natural gulley. into the railroad cut, and, there being no oulvertfor its escape under the track, was deposited thereoa