,I,wli.j(:c;"·:I '.'" hns¥IJVANtA R.,C6.
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'11. NATtON:AJ.. DOCKS
C. R'Y. Co.
The decisionaf the htg;hest court in the state of New Jlerseyas to the right of one railroadoompany to cross the landllof allother railroad .cqmpany in the same state is cQncJusivef "-9d CllnnQt be reviewed by the United circuit court in a suit the sailie' partielil. invoivingthe lIame subject-matter,though a federal question be Involved..: . ",
SAME-INJUNCTION-DISMISSAL OP BU,L-F'R:lCTIOE.
oP RoAD-RES JU:\>ICATA.
A motion to dillmiss a bill for, an injunction filed by the' proprietor company will not, however. be:grantll4; though the:lnjnnction be refused·.since the bill may be ,avaUable tocompillinantto the, mutual use of the premises by the parties.
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by the pennsylvania Railroad Company against Jersey Junp!ion ConneotiIlg Railway Company frqW prosecuti,ngpertain condemnation proceedings. motion a prelil:niIlllty injunctioIl,wasdenied j also defendant's motion to qi13w-\ssthe bill; IUld the.cause was retained to regulate the muhml \Jse ,ofthl'lpremises. '. ,;, B. Vredenburgh,$amtul H. Grey, and Joseph D. Bedle, for com.plainant., . .... ' DWkin8O'f/. & Thomp8011.j ,Gilbert Oolli'TU11 and John R. Emerg, for defend-
In Equity.: National to restrain
AOHF..80N, Circuit Judge. The court is a5ked by a preliminary injunction to restrain the defendant company from further prosecuting certain condenmation proceedinp;s instituted .by it under the general railroad law' ofthe state of Ne\VJersey, and from taking thereunder, or other· 'wise, '8ny' propertyorlanns'of the complainant, or constructing upon said 'property and lands its proposed railroad. On the other hand, the de'fendant n10veS the court to dismiss the .bill. I have examined the whole 'calle with the care which its, importance dtlmands, but I do not deem it lleeessary at this time to express an opinion upon all the questions which 'the 'Mansel regard as here involved, and which they have argued so ably. 'I"ehallconsider the case in a single aspect only. In the state of New Jl3H!ey it is authoritatively settled that the supre.ne court, on certiorari 'p10secbted .by the landowner, bringing up the appointment of commisliiohel'll in condemnu Uon· has the right, by virtue· of its gen,era} supervisory jurisdiction over all inferior tribunals proceeding in a summary way, to inquire into and determine all questions, whether of -fact or law, which atJect'theright of the company seeking the condemnationto take the plaintiff's land. MorriB &: E. R. Co. v. Hudson Tunnel , R.Ca., 88 N. J.Law, 548. Now, long before our equitable jurisdichere invoked, ,the''ComplainantproQured the allowance of a writ of certiorari, where.by the condemnation proceedings in question were removed into the supreme court of New JerseYi and thereupon reasons were filed in thA,t court by the complainant for setting aside tbe said proceedings and the order appointing the commisE'5a!lers, which raised every
CO. V.NATIONAL DOCKS &N. J. J. C. BY. CO.
question affectingthe right of the defendant company to appropriate to its uses the complainant's property or lands. Upon an inspection of the record, it is, 1 think, quite evident that upon those reasons or causes assigned the whole controversy between these parties, so far as the right of appropriation is concerned, was before the state court for adjudication. The supreme court, for reasons expressed in its opinion, set aside the condemnation procel'dings, (18 Atl. Rep. 574 j) but, upon a writ of ertor suell out by the defendant company, the comt of errors and appeals of the state of New Jersey reversed the judgment M the supreme court, and remitted the record to that court, (21 Atl. Rep. 570,) which ultimately affirmed the order appointing the commissioners. The comt of errors and appeals in its opinion declared that one railroad company may condemn the right to cross the lands of another company or the same character, although those lands may be necessary for the railroad purposes of the latter company, subject only to the qualification that the manner of crossing is not to be destructive of the ability of the road crossed to exercise its franchises funy, fairly, and freely; that in such a condemnation all that is acquired is the privilege or easement of crossing; and that after such condemnation the place of crossing is to be and remain in the common use of both railroad companies, for the exercise of their respective franchises. Upon the prools prellented, the coqrt held that the projected crossing of the complainant's land by the defendant company was neither destructive to the ability of the complainant fully and fairly to exercise its franchises and perform its duties, nor of such a character that the company could not be adequately compensated in damages, and therefore that it was a lawful crossing. Sucb being the decision of the highest court of the state of New Jersey upon the right of one railroad company to cross lands situated within that state belonging to another railroad company, made in a suit involving the hhmtical condemnation proceedings herein drawn in question, and between the parties to the present suit, we must, upon well-settled principles, regard the decision as the law ofthis case. It is, however, alleged that under the condemnation proceedings the defendant company proposes to take "out and out" a part of the complainant'sland which is necessary for the purposes of its franchises, including, as it does, a part of its "Harsimus" abutment and right of way and ground condemned by it for other railroad purposes, and that the right to make such absolute appropriation has not been passed upon by the state courts. But, upon a careful reading of the petition in the condemnation proceedings, I am of the opinion that it is limited to a right of crossing, and that no greater right can be acquired under those 1'roceedings. The defendant's counsel so contend here, and I think their position is undoubtedly correct. Aside from this view, however, this matter was before the state courts. Clearly it was involved in the issues there tried, and the question here raised must be taken to have been passed on by the court of errors und appeals, and adjudged against the complainant. BeWit v. Morgan, 7 Wall. 619. We cannot, then, avoid giving a conclusive effect to the judgment of the state court, Certainly
FEDERAL REPORTER, vol. 51.
it is· not within the province of a court of equity to act as a court of review.as iespects alleged errOrS of a court oflaw. Tilton v. Cofield, 93 U. S. 163;!' Nor does it make any difference that there is here involved a federal question, for the decision olthe court of errors and appeals upon lmchquestion is reviewable only by the supreme court of the United States; The motion for an injunction must be denied. But we are not prepared to say that this bill may not be available to the complainant to regulate the mutual use of the premises by the two railroad companies intheexereise of their respective franchises, and the motion to dismiss wHlbedenied. And now, July 12, 1892, the motion for an injunctIOn is ro;v,erruled j and the restraining order is dissolved. The motion to dismiss bill is denied.
MARR et al.
(O£rcuit Court, D. Minnesota. 1892.)
, ,of'sllcqcontract is vague, uncertain, and fragmentary, will not be enforced 20 years , atter the alleged date thereof. lind when the relation of the parties and surround" rebut the presumption of the existence of such contract. pertormance of a contract for the sale of land rests in the discretion of ,thebl>iIr1l, and will not tie decreed when it would work a hardship or injustice to parties, in SUch a case, may be left to their remedies at law.
"'.' Sl;leCiftc P!lrformanceof an alleged oral contract to convey land, when the proot
8·. li\.pI;&....p,:!"ROVEMENTS-EQUlTJES, , " 'De':fElndant bought a farm in order to secure a home for her indigent brother and 'h'isf&mily.taking the deed in her own name. He took possession. and lived thereon " Y,ears, un-til, hi!!, making some improvements, but in the meau time advanced hhn money far exceeding the value thereof. Hel,d, in a suit , . widow for specUi<r: performance 9f an alleged oral contraot to sell the farm to deceased, that there was no equity arising in complainant's favor because of the improy;ements. _, , , " 'VEl!irvok'l.Nn 'PI'IRcnASiIlR-'"Ta:E -CONTRACT-PROPOSITION AND ACCEPTANCE. offer of sale oVand standll :fo,r 2() years, and until after the death of, the Var,ty to 'whom it is made, compliance with its terms, the Widow and sole aeviseeof such party cannot accept the proposition, and offer to perform it, and,tllereby make a contract binding upon the proposer.
In Bill by Mary Marr, and Mary Jane :Marr as executrix; ,of the estate of Dennis Washington Marr. deceased, against Charlotte R.ijhaw, to enforce the specific performance of an oral contract to convev land. Bill dismissed. Kneeland, for. complainants. ,Lightner, for defendant. .CircuitJudge, and NELSON, District Judge. SANBORN, Circuit This is a suit inequity to enforce the to convey a tract of about 170 acres specific performance of a ofland near. the city of¥inneapolis, brought by Mary Jane Marr, who