ditTerence of: the"8Utname.is not worthyof,seril)JlS ,CQnsideratiOnftamwouldnot be if··the· appellant had proved which ing he prefoorred. The learned counsel for the appellan:t'citedtheSt. Paul City Directory in support: of the contention that 'i' is of the appellant's llame, and that the proper spelling it is a trom "Biglow,," Ona question of spelling and pronuncil1tion, we think Professor· Lowell and Webster's Dictionary are safer guides than the City Directory of St. Paul. Prof. Lowell spells the name "Biglow," (The Biglow Papers,) and when it is spelled with an.Pe·" that letter is obscure or mute, (Webst. Itis the same name irilaw, whether spelled with or without the "e," and, if the appellantdid not know this when he read the pUblished summons, it was because he did not know his own name when he saw it. The decree of the ciruuit court is affirmed.
(C-£rcuitCo1i/rt,:D. Washington, W. D. August 10, 1892.)
Where a c:ity takes posS(j.sionOf private lands, and constructs a stl'6et and stree' railway thereon, in the absence of the owner and without her kno,wledg'e, consent, or acquiescence, she can thereafter maintaili ail action for the recovery thereof, notwithstanping the publipuse.
4tLaw. Action byJ,.iUian I. Green against the city of Tacoma and possession ofland as a street. Demurrer to others complaint overruled .. J. C.StailrY¥p, for plajlltiff. F.ll. Murrwy, City Atty., nnd Crowley &;0 Sullimn, for defendants. District Judge. In her original complaint the plaintiff claimed ditlllltges·equal totbe value ofa strip orland situated in the city of Tacoma, which \vithout her consent the city has.attemptAd to devote to publicnse.as a ,street., Uponthe authority ofthedecision of the supreme court ,of .this state. in Oity oj TClcoma v. State, 29 Pilc. Rep. 847, this court, held. that the attempt of the city to IIp.propriatetbe saitlland was without legal authority, that the plaintiff had not been divestetl of her title,. andi·th:erefore.she could not eXllct com pensationas if she had . been 'deprh'ed ,oLsaid :prClperty; arid on that ground ,sustained a demur:rer iThe plaintiff then filed an amended complaint setting upiher.title·to.theland as owner in lee, and alleging ouster and wrongtulwithholding ,ofpossession i by,thecity, and praying (or a judg.. manV thatslie rec()verthe sll.idpren:l'ises, and for damages, including loss ,of rents and profits,' and compensatitm tor injttriesdone by grading the street and constructing: a jstreetrailway therein, whiuh acts oftrespa:as
,,:GRl!)E:N ,'D.mTY: OF ,TACOMM
alleged to have been committed in her absence, and without her knowledge or consent.. Tbeseveralstreetrailway companies joined with the city as defendants now appear and demur to said amended comground thabthe· same does not state facts sufficient to conplaint stitute a cause of action. The laws of this state give to an owner of real property who is entitled to the immediate possession thereof a right of action against any person who, being in possession,polds the againstt4e owner's will, or whoc1aims 'the title to, or an interest in, said propet:ty adverSely tosnch owner. And in such action tion affecting the title and right of possession maybe determined,and the owner may recover possession of the property, and damages. 2 Hill's Code I §629. The authorities cited in support of the demurrer are not in point. In thecaseiof Oincinnati ,v. White, 6 Pet. 431, the supreme court of the -United States held that, after the dedication of land to public use by an equitable owner, the holder of the legal title could not maintain ejectment to recover it. This was on the ground that the plaintiff in an ejectment case must have the legal a clear right of possession. Other authorities cited by counsel for the' defen'dants are cases "-which,'were deCided adversely to the plaintiffs therein on,various grounds; the decision in each case being founded upon some general lind familiar rule of law or principle of equity, as in the case of Railway (}). v. Smith, 15 N. E.Rep. 256, in which the supreme court of Indiana held that a landowner who stands by and acquiesces until a railroad company has expended 'money, and constructed its track across his land,so that the track at that· point has become part of its line, cannot, in a court of equity, maintain an injunction suit against a corporation which has succeededtodtsright and franchiseR, by purchase at forecldsnre sale, without notice of any claim or objection on the part of such landowner. In ,the case·at bar the amended complaint does not show that the plaintiff h8s6veracquiesced in the construction of a railroad across her property, or stood by and kept silent while the expenditure of money was ingmade, nor any facts from which an estoppel can arise. On the' contrary, she alleges, as if anticipating such a defense, that she. was not presentwnen the trespasses'complained of were committed,. and ;riot informed thereof until after they were committed. Mere failure on the part of a land,owner to constantly guard his premises, andwarn intruders not to trespass thereon, cannot be sufficient cause for denying him a right of action to recover his own. Lewis, Em. Dom. §§ 647 I 648. Demurrer overruled.
STATES t1. BAXTJeB.
(OInluit CotWCo! Appeal8, Eighth 06rcmit.
, 'When' a writ of error from the circuit court of appeals ill allowed within the lib "p?-opths fixed by the stat.ute, (2(i St. at p. 826, 5 11,> but is not aotually issued 'bY the"clerk until after the expiration thereof, it will be dismissed, f()1', in the legal lense, · writ of error 18 not broughtuiltn it is1lled in the court below.
01' EBBO":-TI1iI'8 01' SUING OUT WBl'l.
In Error to the Circuit Court of the United States for the District of MinQElSQtll. Action by George N.,Baxteragainst the United States to recover Jl10neys claimed to! bel due him, as district attorney. Judgment for plaintiff. Both patties bring error. Plaintiff moves to dismiss defendapt's writ of error. Dismissed. (]eorge N. Baxter, for the' motion. , G. Hay, opposed. ;ae!Qre CALDWll:LLand SANBORN, Circuit Judges, and SRmAS, District JudgE,l.
SANBORN, Circuit Judge,' delivered the opinion of the court. ThE,l judgment in thisC8se was rendered.August 31,,1891; and while of error Wll.SalIowed by the acting circuit judge, February 8, 1892, .it was, without fault of the district attorney, not actually issued until after March 6, 1892. No juqgmentor decree of the circuit court can be reviewed in'this court upon"writ of error unless the writ is sued out within six -months after the entry of the judgment: 26 St.U. S.p. 826,§ 11. In Brooks v. Norris, 11 How. 207, the supreme court, speaking by Chief Justice TANl\1Y, said: "The w,rit of error is 'DGf; brought. in the legal meaning of the. term, until Is lHlld In the court which ,rendered the jUdgment It is the filing of the the',reQord from the Inferior to the appellate court, and tbe'pei'iod ()fllmitation must be accordingly." And in Scarborough y.Pargoud, 108U. S. 567, 2 Snp., Ct. ,Rep. 877, that court expressly the ver;y question presented in this case, and held that where :writ. was by the judge,. but Wlj.S not aCtually issued by the 'clerk within the time limited it out,the writ must be dismissed. Cumming8 v. Jemes, 104 U. S. 419; MUBBina v. Cavazo8, 6 Wall. 355, 360. It follows that the writ of error in this case was not brought within the time limited by law, and this court is without jurisdiction. For this reason the writ is dismissed.