«t JtweaU, FokrQt Otrettit.
.Il decrae fixing the priQrltyof claiwsagaiust all illBolventcorporation, and directing the 'sale of its property for their 'paymeht, is a final deoree, Within equity rule .ss, relating to rehearings; .' ' '.BILL OF RBVIBW-ApPARENTdERROR. , a deoree fixesthepriorlty Of olalll\s, against an, insolvent corporation un·
de,rthEl authority Of an act of, the state legiBlat1,lre,theqnestion of the validity of the aot· not being raised at the'time, a bill of ,revlewwil1 not Ue for apparent error, because the act is llubsequently adjUdged ubconstitutional and void by the state courtll qnthe ground ofa dllllCeotive title.
pribr 1;0 the lien of mortgagebopd'holders llnder authority of an act of the state legislation, (as to, the Validity of Which no qUllstion was raised.) and its property was directed to be sold., o,f the. bondholders became the purchaser, the others months thereafter giVing a bond as security fOt,' 'tHe deferred paym,ents, the state, court declared the ,l1-ct 1,Inconstitutional and vOld because of a defective tItle; whereupon the mortgage bondholders filed a petition for rehearing, (Which was treatea 8S' a. bill for' reView ) praying ,a vacation of so m1,l(lh of the decree as awarded, pTiorityto the Bupplyc1 alms. Held, it not appearing that complainants had performed ,the decree as to deferred payments. nor offered to place the supply olaiIn,creditorlilln the, sam"" positiOn alii ,before t,he decree was entered, and owing to the lapse of time, the petition should have been dillmislled. Knox v. Iron 00., 42 Fed. Rep. 378, reversed.
l:Ii proceedings agaillst all ipsol'veof,eollloration claims,for supplies were adjudged
Appeal from: the Circuit Court of the, United States for the Western District of Virginia. ,Re..ersed. StateIXlent by ,FULLER, Circuit Justice: This was abUI filed by Samuel Knox against the Columbia Liberty bon Company, the company had purchased a. large tract of .iron or,e anq,woodlatJd. tor the expressed consideration' ()f $270,000, in 6 percent. first mortp;age bonds to which ,was paid.jn its the amount of $1.50,000, thatotal issue of which was for $219,000, the having been as collaternl security, and in 6 per cent. ,bonds to, ,the amount of $145,OOO;Jthat the mortgages and We.)16 sacured Upon the tract of land, and all the bore the proper.ty of 1pei company of every description, and its corporate franchises. It. ",as further averred that complainant was. the holder of cerof both ,issues; that default had been made tain of said in the interestafterdemandj that complainant had made loans .tEl" the which it had failed aild was unable to pay, and that there were other liabilities represented by promissory notes, open accounts for merchandise and supplies, and for wages and salary; that the company was insolvent, and had not the funds to carry on its ordinary business, although a large income could be derived therefrom, and to avoid the sacrifice of the property, and the disastrous consequences of suspending its business, it was necessary that a court of equity should interpose for the immediate appointment of a receiver, with power to administer the company's affairs. The bill prayed for such appointment, for injunction, and general relief. The company filed its answer, in which it "admitted the truth of the averments, and
HOFFMAN fl. KNOX.
submitted its interests to the court;" and the court appointed two receivers for the company, with authority to continue its operations, and with instructions to report to the court the condition and circumstances of the company, and its liabilities and debts. On September 30, 1886, several creditors of the company filed a petition in the cause by leave of court, on behalf of themselves and other similarly situated, setting up certain supply claims recorded by them under the act of the general assembly of Virginia of April 2, 1879, averring thatreceivers' certificates had been issued; that there were many other like claims; that the affairs of the company were not improving; and praying that the proper accounts might be taken, and a. decree for the sale of the property be granted. On October 14, 1886, the cause was referred to a special master to ascertain and report the debts outagainst the company, not including the first and second mortgage bonds, and the priorities of the debts, if any. On the 4th of Feb. ruary, 1887, a petition was filed on behalf of one Pollard and all other creditors of the company who might avail themselves of the benefit of the same, praying for the removal of the two receivers, and the appointment of a single receiver. This petition (and rule thereon rendered) was answered by both of the receivers, one of whom stated "that he accepted the position of receiver of said company only at the request of Mrs. Mary W. PAarson, George W. Pearson, and Chas. L. Pearson, of Trenton, N. J., the largest holders of the capital stock of said company, and who now own or control a majority of both the first and second mortgage bonds, and of the complainant Samuel Knox, the petitioner Pollard, and Jacob Wissler;" and expressing entire willingness to relinquish the trust. On the 17th of February, 1887, Mary W. Pearson, Charles L. Pearson, and George \V. Pearson, of New Jersey, ·filed their petition in the cause, by leave of court, setting forth their ownership of 1,885 shares of the capital stock of the iron company; and also that they were holders of 107 of the first mortgage bonds of the company in their own names, and others as collateral; and also of 112 of the second mortbonds; and stating that they were not satisfied with the present management of the receivers; that one of said receivers was named at the instance and request of said petitioners and others, and still had their entire confidence, but that a disagreement between the two mil. itated against the proper management of the trust; and they requested the appointment of one Wissler as sale receiver. Thereupon the receiverd were removed, though not upon any ground reflecting upon them personally, and Wissler appointed. On February 14, 1887. the report of the master was filed, setting forth the outstanding indebtedness, not including the first and second mortgage bonds, and awarding priority to the labor and supply claims as stated therein. To this report exceptions were filed on behalf of a large num ber of claimants and creditors, and among others, on the 14th of March, 1887, exceptions by Mary W. Pearson, Charles L. Pearson, George W. Pearson, and H.ff. Yard, creditors and bondholders of the company, their 1st, 2d, and 3d exceptions being:
·Ils··it reporbsd all labor claims open on thebooksoNlsll'l company 10. 18,86·. Vl\that d;ty per the sevl'l'sl statements tiled .. ·.. claims fell.due.on saidJllne 10. '1886'; and if even ilohecorded.on th'e 14th of October, 1886. sh9u1d be reported as subsisting liens, 'tn'eanillg of the statute, and must be teported witll priority as 'ot tbatdate wHh 'the common class, 'With all that stood ui'K'ecordedon that day; 'even should any of them havebeett recorded afterWilmS.'., (2) Because:tle:reports the words , office agent,' used III the statute. 8l!lapplyingto the. of said Columbia Iron Com. As tl¥! words' conductors' and ·captains.' as to the of managers';" .' qp
. i,·'! ,; ,
Sev;eml other exceptions questioned the allowance of particular items as liens, or in respect of priority or of amount. The report was recommitted\ with instructions to consider any testimony upon the various exceptions, and another'report was made on May 11,1887, to which exceptions were filed. The report and exceptions related particula.rly to the:iconstruction of the statutes of Virginia in relation to labor and supply-: claims. and as to whether claimants were barred under that statute,and generally to the classification of claims. The report Wa<.! again recommitted; and 011 June 17, 1887, the court by decretal order of that date directed the master to make. state, and settie the following accounts: (1) An account of the indebtedness of the company due by mortgage or deed·of trust upon its property, and by whom and in what proportions held, and how evidenced, and the priorities or equities among the several holders or claimants thereof. (2) An account of other indebtedness of the company, together with any priorities by way of lien or otherwise; and intbis connection stating specially any lien of any sort that might subsist against any part of the company's property, so stated that there might appear a full arid correct arcoulit of the company's indebtedness, and with the respective priorities of the same, with a view to a sale of the property. (3) An account of the property, real and personal, of the company. (4)' Any other account which any party in interest may require or the commissioner may deem of importance. On 31st, a partial report of the special master was made. This was followed by a decree September 8, 1887, disposing of the various exceptions to the master's reports, overruling, among others. the first exception of Mary W.Pearson and others, and sustaining exceptions to particular items. It was decreed, among othp.rthings, that all claims for labor and supplies that had not matured more than six month!! before the order of reference, October 14, 1886. or, having matured more than six months prior thereto, had been recorded, should be liens upon the property and franchises of the company superior to that of the bondholders of the company, ,and must be paid before said bonds; that all claims which had matured more than six months prior to October 14, 1886, and not recorded as required by the statutes of Virginia, within six months after maturity, were not liens on the company's property, and were subordinate to the bondholders; that, as between claims for labor and supplies furnished said company, the labor claims were prior, and must be paid firstj!1nd that the president, treasurer, secretary, and
HOFFMAN' !7. KNOX.
manager were not entitled to priority, but must be treated as general creditors. It was further ordered and decreed. ,that the special master proceed and complete his accounts .as directed by the decretal order of June 17, 1887, stating therein all liens upon the property of the companyin .the order of their priority, in accordance with the opinion of the court expressed in the decree. The disposition of one claim was reserved for further consideration on the master's report; On Septemb!:lr 24, 1887, a report was made by the master, stating the accounts specifically as directed. Exceptions were filed to this report by Mary W. Pearson and others in respect of two specified claims. On October 14, 1887" a decree was entered reciting that the cause came on to. be heard upon the 'papers formerly read and proceedings theretofore had, the report of September24th, etc., and overruling the exceptions to the report, which report was, approved and confirmed, and special commissioners appointed Call partiesin interest waiving delay for redemption) to make sale of the property in question, at public auction as prescribed, for one quarter cash on confirmation, and. the balance in one, two, and three years, with interest from day of sale. The property was accordingly sold on January .5, 1888, to George W. Pearson, tor $51,000, and by decree of May 26, .1888, the report of the sale, under the decree of October14, 1887, was confirmed, there being no exceptions; & deed directed to be given; payment of the costs of suit and of sale out of the cash payment and distribution of the. balance ordered; and settlement of the receiver's accounts. Provision was also made for the collection of the deferred payments, to be disbursed under future order of court. . May 8, 1889, Mary W. Pearson, George W. Pearson, and Charles L. Pearson,on behalf of themselves and all other holders of the first mortgage bonds of the company, applied to the court for leave to file a petition for rehearing pr bill of review to review the decrees of September 8, 1887, and October 14, 1887, and on July 19, 1889, leave to do so was granted. The prayer of this petition or bill of review was that the decrees named should be reviewed, reversed, and set aside, so far as they established and adjudged the rights of other creditors of the company to be superior or equal to those of petitioners. The petition set forth the various ordal's, proceedings, and decrees heretofore referred to, and claimed that there were no superior equities infllvor of the labor and supply claims entitling them to a lien superior to the mortgage bonds; that the acts of the legislature of Virginia, which it had been held created a prior Hen in favor of these claims, were unconstitutional and void; that the petitioners were entitled to a vendor's lien upon the property; and that the special master erred in refusing to recognize this lien, and in giving the labor and supply claims superiority to the first mortgage bonds. To the filing of this petition or bill the labor and supply claimants objected, and after it had been filed, by leave of court, demurred.assigning as grounds that the petitioners had no vendor's lien; that the acts of the Virginia legislature referred to were not unconstitutional and void; and that the petition did not allege that the matters
FEDERAL REPOltTER, vol. 50.
therein setup had beGndiscovered' after the rendition of the decrees complained of, and could not have been produced by the use of due diliThey also filed an answer in which they denied anyerror in the decrees, the existence of allY vendor's lien, and the unconstitutiollality of the legislative acts; and contended as to the latter that, if a defect existed, it had been cured by Aection 2485 of the Code of 1887. They also insisted that their equities were superior to those of the !bondholders, and that the latter were estopped by the decrees, and their own acquiescence in them, or by lapse of time. The answer further claimed that the capital stock of the company had never been paid in, and constituted a fund for the payment of debts. December 19, 18&9, the court rendered a decree,which sustained the first ground that as to the vendor's lien, and overruled the others, and of reheard and set aside the decrees in question, and referred the cause to aspeoial,roaster, who reported, February 17,1891, that only the mortgage bonds which were held as collaterals for loans by the company ought to be held to have been negotiated, and to constitute valid liens under the that the bonds apportioned among themselves by the original corporators of the company could not, as against the creditors of the company, be said to have been negotiated, and were not, therefore, liens; that the labor claims Were prior liens upon the franchises ahd property of the company, and that the supply claims were also such prior that, if this were not so, the sale should be set aside, and stich creditors permitted to bid; and that there were unpaid subscriptions to the amount of $218,625, which he was of opinion was a trust fund for the payment of debts, and should be collected from the delirtquetlt subscribers. Various exceptions were filed by the parties in On July 1, 1891, the court entered a decree that the labor and supply claims had no priority, and that the capital stock of the company had been fully. paid, and was not liable to assessment for the payment of debts, and directing payment in the order therein stated. From these decrees the labor and supply creditors wete allowed an appeal. John E.Roller, for appellants. '(leo. E.'8ipe' and John T. Harri8, Jr., for appellees. . S. Oonrad, for Mary W. Pearson and other petitioners. ! BElfore 'FULLER, CireuitJustice, BOND, Circuit Judge, and Hughes, District Judge. Circuit Justice, after stating the facts, delivered the opinion of the court. By the decrees of September 8 and October 14,1887, all claims against the property in question, and the order of their priority, and the tion8 to' the various reports, were disposed of,and the then fillal report of the master, as amended and reformed in accordance with the views of the court, was approved and confirmed, and thereupon commissioners were appointed to E'eU the entire property upon the terms of one fotn'th"cash',and the balance payable in one, two, and three years, with
interest from the date of sale, with security. The sale thereupon took place and was confirmed May 26, 1887, and distribution made of the cash payment, and a final settlement with the receiver was directed. It seems to us that these decrees were and must be regarded as constituting a final decree in the case. We treat them together because the decree of September 8th, while it disposed of nearly all the claims and exceptions, reserved the determination of a specific claim or claims, which was arrived at by the adjudication of October 14th, and it was the ter, which, all these matters being concluded, decreed the sale. If an appeal had been taken by the present appellees to the supreme court of the United States, and the decree had been affirmed, the court below would have had nothing to do but to execute the decree which it had already entered. What remained to be done was merely in execution of what been determined, such as the collection of the outstanding pa'y: ments,settling the receiver's accounts, payment of costs, and the like; and this is no less so because some other creditor might turn up, and seek to come in under the decree. The bringing of the fund into court was for the final distribution as decreed, and not to be held pending the ascertainment of the principles upon which it should be distributed. Hill v. Railroad Co., 140 U. So 52, 11 Sup. Ct. Rep. 690; Bank v. Sheffey, 140 U. S. 445, 11 Sup. Ct. Rep. 755. The petition for presented May 8, 1889, came too late. Equity rule 88. The circuit court held, however, that the petition could be treated as, and in fact was, a bill of review for errors apparent, and might be filed as such. Considered in thisaspect, diet the court err in the decree entered thereon December 19, setting aside the decrees of September 8 and October 14; 1887, "in so far as they gave priority to the claims of the supply and labor creditors of the said Columbia Liberty Iron Company as superior to the rights of the first mortgage bondholders?" This question is to be determined without resort to the proofs, upon the pleadings, proceedings, and decrees which in this country constitute the record proper. Assuming that these were fully set forth in the bill, the demurrer raised the question. Being overruled, the decrees were reversed; if sus· tained, the bill would have been dismissed. Other matters are referred to, but they may be disregarded on this inquiry, and the bill taken as a pure bill of review for error apparent, thus stateu by the circuit court, in its opinion, which will be found reported in 42 Fed. Rep. 378: "In the master's reports, as conlirmed, priority is given to certain labor and supply claims, contracted by the company before the appointment of the receivers, over the bonds secured by the mortgage. This priority was in accordance with the proVisions of two acts of the general assembly of Vir. ginia, approved, respectively, March 21, 1l:l77, and April 2, 1879. Since the 'entry of the decrees of Septemher 8 and October 14, 1887, in this cause, the Virginia statutes giving labor and supply claims a priority over the liens of the mortgage bondholders have, as to supply claims against railroad corporations. been declared by the court of appeals of Virginia to be unconsti,tutional, as in violation of article 5, S 15, of the constitution of Virginia. Fidelity [m., etc., Co. v. Shenandoa'h, Val. R. Co., 86 Va. 1, 9 S. E. Rep. 759.
has also,' (un argument. in Fidelity Ins., etc., Co. v. Iron the act of April 2, 1879, to be unconstitutional as Qoth labof.and' supply claims against mining corporations. It isin view 'of, these decisions that these petitioners ask leave to file'thelrpetition to have'this cause reheard, and the deci'ees of September 8 and ·October 14, 1887, revie'wed and re:versed. ... ... , ... But if it could be concededtbatthe decrees of SeptembedI and of October 14, 1887, are final decrees, is of opillionthat the petition can be treated as, and in fact is, a bill ot,reviewfor:errol's, apparent on the face of the record. and might be filed as such, The'recen:t decisions referred to, as deciding that the statute giving labot'and snpply claims the priority over the lien of the mortgage bondholders ,is: ,unconstitutional, clearty presents a question of error on the face of tlliHeCOl'd. · .... * Since the rendition of the decrees complained of, the highest state court bas declared the statute upon which the lien i'ests, or out of which it arises, to be invalid because unconstitutional, and federal courts notice and accept sucb decision." To sustain,a bill of review for errqrof law apparent, the decree complained ofmul!!t. be "contrary to some statutory enactment, or some prinrecognized and acknowledged, or settled by ciple or ruleo! law or decision, or: be at variance- with the forms and practice of the court." 2 Daniell, Ch. Pro (5th Ed.) *1577. The general rule is that such a bill does not lie a mere error, which would, in effect. render it nothing mote ;thaD a substitute for an appeal. In Perry v.Phelip8, 17 Ves. *174, *177, LordELl)oN said: "There:is a great distinction between error in the decree and error apparent. The qescription does not apply to erroneous judgments. and this of el'lsential importancej as, if I am to hear this case, upon the ground that the jUdgment is and that the.re is no error apparent, the consequence is that in every instance a bill of review may be filed; and ,the question'whether the case is welldeeided will be argued in that shape. not whether.the is right or wrong on the face of it. The cases of erof this sort, an infant not having a day ror appareutdoundinthe ·· not merely an erroneous jUdgment." to show So, alsots decree against the statute law is the subject for a bill of review, as, for example, a decree directing a legacy to be distributed con'trary to the 'statute of distributions. Story, Eq. Pl. § 405. So where a decree was-entered for'the sale of mortgaged premises, capable of division; to the whole mortgage debt, when only a small part of the debt was due. Jamea V. F/i$k, 9 Smedes & M. 144. And where a foreclosure decree was made contrary to the terms of the mortgage. Mickle v. Maxfield, 42:Mich. 304, 3 N. W. Rep, 961. These are manifest errors not open to controversy, and while the modern practice has tended to allow pf first Instance to review or reverse its own decrees, for of the law to the facts found, whenever an appellate tribunal would, do so for the samecauae, this has certainly not been carried ·Sl> far as to ignore the rule in principle. That princi-. ple is that thetemedy for mere error in a final decree is by appeal, aud that the which,s)1(jh a decree may be impeached bj¥ bill of reviewiTIust be more than of mistaken judgment. . The grounpupon which the supreme court ofappeals of Virginia proceeded, and the circuit court, following, the .rule laid down by that court,
aOFVMAN t:. KNOX.
in the cases referred to, was that the acts in question, 80 far as they related to supply creditors and to mining and manufacturing companies, were unconstitutional and void, as in violation of the provision of the state constitution that "no law shall embrace more than one subject, which shall bQ expressed in its title." Const. Va. art. 5, § 15. It is ordinarily held that, if the subject of anaet be expressed in the title in general terms, it will be sufficient under constitutional provisions like that quoted. The determination of the question whether the title of a particular act it'! comprehensive enough to reasonably include the several objects which the statute assumes to affect is one of great delicacy, and upon which opinions might well differ; and a decree rendered upon one view or the other, while it might be reversed by the appelJate court as erroneous, can hardly be said to carry that error upon its face which is required as the basis of a bill of review. If the question of the validity of these laws was raised in this case before the rendition of the final decree, and the circuit court erroneously determined that they were not obnoxious to constitutional objection, the remedy for such error would have been by appeal, and we do not think that the circuit court, because after the lapse of the term it arrived at a. different conclusion in another case, could properly entertain a bill of review to impeach such a decree. The presumption was in favor of the constitutionality of the statute and the burden of proof on the party setting up its unconstitutionality; and if the court, upon its attention being drawn to the subject, judicially the acts as valid, that determined the question for the case, if permitted to remain undisturbed without invoking the interposition of an appelJate tribllnal. The fact that nearly 18 months alter the decree of October 14, 1887, the court of appeals of Virginia decided theSE> InwR to be unconstitutional for the reason stated, was not enough in itself to create error of law apparent, and justify a bill of review on that groll'nd or that of new matter in pais. Undou btedly, the courts of the United States, as a general rule, properly follow the construction placed upon the constitution or laws of a state by the decisions of it'i highest tribunal, unless they conflict with or impair the efficacy of some provision of the federal constitution or a federal statute or a rule of general commercial law, (Gormley v. Clark, 134 U. S. 328, 348, 10 Sup. Ct. Rep.554;) but this rule cannot be applied where the construction contended for has not been announced at the time of the final adjudication by the United States court, so as to make the latter erroneous on its lace by relation. On the other hand, we cannot find that these bonllhoJders raised any question whatever as to the validity of these laws, but, on the contrary, the exceptions they filed were directed to throwing out particular claims as not within the terms of the statutes, or claims in whole or in part as barred thereunder. It is a general rule that a bill of review will not lie to impeach a consent decree. Thompson v. Maxwell, 95 U. S. 391. And if these complainants chose to acquiesce in the allowance of these claims under these statutes, they had a perlect right to do so, but ought not.now to be allowed, in view of a decision rendered eighteen months after this decree, to say
that erl"or was committed in particulars which they waived by their conduct. They could not 'approbate and reprobate at the same time, and, iti the interest of the stability of judicial decision, their want of diligence ought to be held fatnl to their application. The last of these decrees was rendered October 14, 1887, and the sale of the property was made thereunder. The amount bid at the sale was $51.000, and no exceptions were taken, (presumably because that was sufficient to cover the preferential claims, or nearly so,) notwithstanding, as alleged, the property cost the ancestor of the Pearsons nearly $200,000, and was sold to the company by them for some $219,000 first mortgage bonds, $101,000 second mortgage bonds, and stock of the company to the amount of $499,625, which bonds and stock the circuit court held were fully paid for by the property so sold. The purchase was made by one of the complainants in the bill of review, whose bonds for the deferred payments were secured by his cocomplainants as sureties. The relief sought was not the vacation of'the decrees of September 8 and. October 14i 1887, but only of so much thereof as awarded these priorities, and the application to file the bill was not made until thE! 8th of .May, 1889, the decision of the court of appeals of Virginia having been anhounced on the 11th day of the preceding April. ° The decree rendered reviewed and reversed only so much of the prior decrees as gave priority to appellants' claims, and thereby the opportunity to bid, or get others to bid, at the sale of this valuable property, was cut off by' the very decrees which were only reversed so far as their claims were concerned. It may be that such opportunity would have availed nothing, but that does not change the niatter in principle. It is the rule, subject, however,. to' some exceptions, that, before a bill of review can be filed, the decree must he first obeyed and performed. Thus, if money is directed to be paid, it ought to be paid before the bill of review is filed, though it might afterwards be ordered to be refunded. Rickerv. Powell, 100 U. 8.104, 108. It does not appear that these complainants had performed the previous decree when their bill of review was permitted to be filed. On the contrary, they objected that the second payment then due might be disbursedunder the prior decree, and it would be impossible for them to recoup. Nor did they ask that the sale be set aside, nor in any manner offer to place these creditors in the same situation that they occupied before that decree was entered; but, after having proceeded upon the theory of the validity of these laws, they came forward with their bill of review to obtain a reversal of so much of the decrees as was opposed to their interests, leaving what was made in their favor to stand. We are of opinion that they were called upon to present their contention before, if they intended.to insist upon it. Cases are not to be tried by piecemeal, and it would.open a wide door to persistent litigation if parties should obepermitted to lie back, and then renew controversiE!s in this manner. The decrees of the circuit court appealed from are reversed, and the cause remanded, with °adirectionto dismiss the petition for rehearing or
WESTERN UNION TEL. CO.
bill ofreview, and for further proceedings upon tht:l basis of the finality of the decrees of September S and October 14, 1887, in conformity to this opinion. ' .
PACIFIC POSTAL TELEGRAPH CABLE CO. SAME
& E. Ry. Co.
April 4, 1892.)
(Circuit Court, D. Washington, N. D.
TELEGRAPH COMPANIES-GRANT BY RAILROAD-CONSTRUCTION.
A contract whereby a railroad company grants to a telegraph company a rlght of way along its road for a telegraph line, and agrees that it will.not grant such right for the construction or: any other telegraph line, does not vest ill the telegraph company such an exclusive interest in the railroad's right of way for telegraph purposes as would entitle it to an injunction against the construction of another telegraph line thereon.
SAME-EXCLUSIVE RIGHT OJ!' WAy-ULTRA VIRES.
A contract by which a railroad company underta¥es to grant the exclusive right to construct and maintain a telegraph line along its road to a single company is uUra vire8 and void.
In Equity. Bill for an injunction to prevent the Western Union Telegraph Company from constructing and operating a telegraph line on the right of way of the Seattle, Lake Shore & Eastern Railway Companybetween certain stations. The court having a restraining order pendente lite, the defendants moved to vacate said order. Motion granted. Struve McMicken and H1lghes, Hastings Stedman, for plaintiff. Turner McCutcheon, for defendants.
HANF6'RD, District Judge. The only ground for the restraining order, which, at the time it was made, seemed to me to justify it, is that the complainant daims to be the owner of an interest in the strip of land known as the right of way of the defendant the Seattle, Lake Shore & Eastern Railway Company, upon which the defendant the Western Union Telegraph Company proposes to enter, and construct and operate a telegraph line, without the consent of the plaintiff, and without compensation to for such appropriation and use of property to which it claims title·. Upon the present hearing this appears to me to be the only ground of complaint, worthy of cOllsideration, against .either of the I would regard it as sufficient if the claim of title appeared to be valid. The. defendants, however, deny that plaintiff has anr title· to the. premises, or any interest therein other than an easement; that is to' say. a right of way for its own telegraph line. The only basis for the plaintitf's claim of title is found in the