627 And I think, inthis1,ealle we may may go hehind:Jts ,designation, and See wbat the actual damages are, iindawardthetm " Then, either on ,the that this is a partnership transaction; the coUrt 11laygi've such rebef is right andjust, or on the ground that' when the-court. hasjurisdictiori-hasthe case-it may refuse to sorouch o'fthe contract as is inequitable or harsh, or will work a hardship on the plaintiff J. p.Tilley; or" because may eonstrue'the:sum named in the bond asa penalty, it may give such relief as may be responsive to the demands of equity and good conscience. The relief thllt would rneeHhisdemandwould be to decree the amount of the $30,000 advanced,with 6 per cent. interest on the same, less tbe year's interest already paid in advance, and to decree the foreclosure of the mortgage given to secure the payment of the debt, and tb cancel the remaining part of the contract; and such will therefore be the decree in this 'case.
& S. F. R. Co. v.
(otrcuit Court, W. D. Arkansas. Oct. 81,189'J.)
.. HARRIED WOMAN'S SEPARATE ESTATB-CONVEYANCES.
Under the constitution and laws of Arkansas, a married womanmay'own real and personal property separate and apart from her husband, anel she may devise, bequeath, andcotlvey the same as if she were a feme sole. As to such property she is suiiurls. ' ' ' ' '
A nonre'sident railroad comJ.lany, which has not, become domesticated unqer the constitution of Arkansas, cannot condemn or appropriate la.nds for a right of way, for depot grounds, car yards, or machine shops. .
If such a railroad company acquires a right to come into the state to do business, but still remains a corporlltiou, and it undertakes to acquire a right of way, etc.lby condemnation proceedings against a married woman, who owns real estate as ner separate property, and such married woman takes part in such condemnation proceedings, and accepts the award, she from recovering by a suit of ejectment the lands condemned after she has: retained the money for a number Of years, and stillretaius it, although the lands wete oondemned illegally.
SAME-AcQUIIUNG LANDS BY AGREEMENT.
Although a constitutional provision of a state may prohibit a nonresident railroad company from acquiring lands for'the use of its road by condemnation or appropriatioI), still it may acquire such lands by an agreement with any citizen having a right to contract.
SAME-CONSTITUTIONAL PROVISION FOR CONDEMNATION.
The words "condemn or appropriate, .. used in the constitution of the state, mean a taking of private property under the right of eminent dQmain, and not bY con· tract. A woman may. under the laws of the state,. make a contract with a nonresident-railroad company haVing a right to do business in tile state, by which she may con"ey to it a right of way for its roadbed. car yards, machiue shops, etc. If she takes, part in condemnation proceedings whicb may be illegal, and accepts the damages awarded. and retains the same for over six years, when she brings suit t(} recover the land, still retaining its value found by the jury in the condemnation proclilEJdingsc1 her c011duct w,ill be con,strued, as amountill g, to It,D imPlied,COtltfract, with the railroaacompany for's right or way. etc., out of her separate property. It q,!.<l:&8an aequiesoence btY her,'and'in equity she wWbe'estopped. .
CONTRAOT-EsTOPPEL BY AOQUIESCENOE.
Q, 1l4··JB.DWOMU ..PBoPBRft. ·Whel1,'ilUdElr1 l&:ws of a state, tbe common-law disabilitles of a married wom.. tbe bavebeeu' eo far removed as 10'i\laoe her' iil a 'position: Where she is But JUN as to her sElPara1i!lprOPerty, sbe ii! subjeotto the 1&.w :of fm,pats. and sbe is estopped by her acta and deplarations, ana is subjeot tolfJI the presumptions wbioh the law indulges against..othel'8 with full oapacity toaC' for tbemselves. Tbe law presumes knew her Her ,for tbst. of t.ime, with pdssession atid enJoyment. of the. money. and a failure tq return It wben the property was b.Qnsparate property; !makes up a state of oase whiohoreates an estoppel, beoause it. amOUJ;lts to,a condition whieh mllst. lin equity and tr00d consoience be construedBs a ratiftoation of the act of tlie railroad company In paying her the money and,ta,ldng posseBsion of the property. L BAMB. " When ,be contracts 811 If unmarried she oan be ,estop:ped 811 if sole. I. SAME; . .' ' A married wQmlm who can under the' law hold property in 'her own right beoomel'l8ui JUN, and she bound by an estoppel in pat8, created by her silence. ', ' (Blit/4lb:us b1/, UwJ Court.)
'InEquity. Suit the St. Louis & San Francisco Railroad Company against Mary A. Foltz to restrain the prosecution by her of an action of ejectment against the railroad company. Heard upon bill and answer and on the pleadings and· exhibits in the action of ejectment as exhibits. Decree in favor of for a. injunction. Defendant set up io'her'eoinplaint in the action Of ejectment that she was entitled to the immediate possession of certain lands therein described, for the' reason that plltihtiffundertook, in the state circuit court of Sebastian county, Ark., to condemn, under the laws of the state, the,aaid lands to be, used for a roadbed and right of way for its said railrpad, ,as' well as for caralld machine shop phrposes. Said suit WitS removed to this court on the application of plaintiff, on the ground that it was a nonresidentcorporation,-acitizenof the state of Missouri. At.the November ,term, on. January 15, 1884, of this court, condemnation proceedings were had in this court, and the jury assessed the damages of plaintiff at $4,180.84. Said amount was paid into court by plaintiff, and paid by order· of the court to defendant, and accepted by her, and the judgment of the court was entered vesting the said lands. in. plaintiff, to be used by it for the purposes, aforesaid. The defendant in her and amended Complaint claims that plaintiffhaa the Hght to the use of about 24 acres of said land. because it has not used it for the purpose for which it wascondemnedj plaintiff' had no right to condemn, because it was a again, nonresident corporation, and it could not, under the constitution of the state, take property by cO,ndemnation proceedings; that the right of eminent domain cannot be exercised in favor of such a corporation; that all the condemnation proceedings were a nullity, and that no right or title passed to plaintiff by them.. Pending the suit in ejectment, filed its bill praying thafdefendant be restrained the wit4her suit at bar, for the reason that her conduct in accepting thesuIllof $4,180.84,-the amount awarded by the jury proceedinga,-and holding the same, and Dot returning eaid sUm into court, amounts to an estoppel in 'pailL Plaintiff.. in its bill ,in equity, further asks that its title be quieted to said
IT. LOUIS II: B.' F. B. CO.: t. FOLTZ.
land, and that the cloud growing out of'the claim of defendant be removed. .To this bill in equity defendant filed an answer. By agreement of parties the case was heard by the court upon the bill and an· swer, and the complaint and answer in the action of ejectment, and 'all exhibits in said suit were considered as exhibits in the equity case. Mrs. Foltz did not claim the right to recover the whole of the 31.07 acres, but that amount, less 7 acres, used by the railroad for ita roadbed and car track. Tabor, Hendrick & Hortlm, for plaintiff. B. R. Davidson, for defendant.
PARKER, District Judge. The first question is: Did the St. Louis &: San Francisco Railroad Company, at the time this property was con·, demned, ha.ve a right to take property by condemnation proceedings, it, being a railroad corporation residing in Missouri? ' Section H,art. 12;, of the state constitution, provides that no foreign corporation shall "have power to condemn or appropriate'property." This means that a corporation which is not ad:omestic one cannot use the power of emi· nent domain to acquire property, for its uses; that a railroad company which does not, become domesticated; cannot use the right, of ,eminent domain to acquire necessary realestateforits right of way, depot grounds, machine shops, etc. The St. Louis & San Francisco Railroad Company was, at the time of the condemnation proceedings, a foreign corporation, the same being chartered by the state of Missouri; but by the laws of the state of Arkansas (Sess. Acts, approved March 16, 1881, § 5) the St. Louis & San Francisco Railroad Company had a right to come into the state upon certain conditions. A part of said section 50f ,said act is as follows: "Any railroad company incorporated by or under the laws of any other 5tate, and having a line of railroad built or partly built to or near any bound. ary of this state, and desiring to continue its line of railroad into or through this state, or any branch thereof, may, for the purpose of acquiring the right to build its line of railroad, lease or purchase the property, rights, privileges, lands, tenements, immunities, and franchises of any railroad company or· ganized under the laws of this state, which I'lllid lease otpurchase shall carry with it the light of eminent domain held and acqUired by said company at the time of lease or sale, and thereafter bold, use, maintain, build, construct. .own, and operate the said railroad so leased or purchased as fully and to the same extent as the company organized nnller the laws, of this state might or .could have done; and the rip;hts and powers of such company, and its corporate name, may be held and used by such foreign railroa<l company as will best subserve itl; purpose, and the bnildingof'said line of railroad. ,.If( "" ",,"
We find the facts to be that in September, 1880, a railroad qompany, called the Missouri, Arkansas & Southern Railroad Company I was, in· corporated under the laws of Arkansas for the purpose of constructing a railroad from a junction with the St. Louis, Arkansas & Texas Railroad .company, organized under the laws of the state of Arkansas, at,Fayetteville, Ark., through a portion of the counties of Washington, Crawford, .and Sebastian, to a junction with the Little Rock Ft. Smith Railway
':'FEDER.A.L'REJOKTER ,voL, }i:2.
at county; that in January, 1882, said Missouri,;IArJransas&'Southern RMll'Ol1dCompany sold and conveyed to theSkLoliis &d3anFranciscoRaiipoadiCompany all its railroad, comwith all its;, l'iights, privileges, franohises, and pleted andimrnunities'Q!J1ot)gingorinanywiseiappertaining to the'rimning, operation, or'tDliintenanceof,the same,.t<>gether with an the depots, etc., and rollingstbok,.and other'ohlittels;'ett:,\ connected with and used in or about the same, and all of its real estate, etc., which it had any interest in. This the Missouri, Arkansas & Southern Railroad Company, under the law above set out, could rightfully do; and altboughjby such sale, the property in controversy did not pass by the conveyance to defendant of the Missollrl, ArkanlSas& Southern RailroadCompimy and its rights and privileges and franchises; ,because stich company had not yet ekercised the right of eminent domain 'ltSfto the property in' controversy, y.et ,the effect.of suoh' conveyance;was, to give the defendant' a legal status in ,the state, with a . full right to dd' business as a railroad corporation therein, although !it wBs'still a foreign corporation. Weare here brotight1face toface with the'question whether Mrs. Foltz, a/married woman, holding the property in ber own right as her separate property,after she has 1:a:ken part iilthe condemnation proceedings instituted by plaintiff, wlrichwas oIegallydrithe ,state to do' business, but a citizen thereof, and therefore, uilderthe constitution, having no rigbtto condemn property for its uses,: and after she haS taken the money foundby.thejnrytoblliitihe value' of;theland,and keeps the same, is by an estoppel tin the land' in controversy. To the iay;mind,controlled, bya SenS60£ justice andrigbt, it would look as though she land.- She bas bad the use of the $4,180.84 for six years, seven months, and five days, up to tbe ber eqitj"and tbis use, at 10 per cent., would be wortb does not'look hardly right that she should have this money;the'iilteiest ontheisame, and the land as well. Still, if the law gives it to her, iHs rig1itkh\l shOl)ld ,have it. The railroad company, being rigbt,fully ip the an agreern;ent with Mrs. Foltz, one WllrY; fQr,although law may probibit a partyfrom acquiring &r,right, yet, if not against public polie'y or immoral to dothe:act conferring the right, the same may be acquired by agreement with'aciUzeni: ,Trere is n?thing in the constitutional sion' prohibiting rl;l.i1roil;dcompany from agreeing witb of a state, wbeJ,lH, is rightfl1Jly ip' the state to do business, for a right of way. If :Mrs. ,]fQ)tjZ,.()Ould agree with the company fora right of do that which amounts to an imway,could she, ,as a married plied agreement? u,J,ltler'theconl l1l on-law disability of coverture, Ido not thilik'she could wai\-e 'the consti,tutiona} provision , which, in effect, is one 'in her favdi";' " nut disability of coverture hits' Been retiloved bjartible 9, § 7; 'of the constitution of the state, which isthat" the: relilan9:MHloo'al property of a ferne covert in this state, ac-' qUired marrjnge, whether oy gift, grant, inheritance, devise, '(jf'otherWiSe, shall,' sblong as she may choose, be and re-
ST. LOUIS & S. F.R,' CO. 'D. FOLTZ.
main her separate estate and property, apd may be devised, bequeathed, or conveyed by her, the saine as if she was a feme BOle; and the same shall not be subject to the debts of her husband." The act of April 28, 1873, (sections 4623-4(i)31,Mansf. Dig;,) passed in pursuance of this constitutional provision,gives to a married woman sole and entire control over her property, and authorized her to sue and be sued alone in the courts in respect to her property. It repealed by implication so much of the act of December 14, 1844, as exempted married women from the operation of the statute of limitations. Garland Co. v. Gaines. 47 Ark. 558, 2 S. W. Rep. 460. From my examination of the law I conclude that Mrs. Foltz, under the law of this state removing the disabilities of married women, has imposed on her corresponding liabilities; that, as to the property in controversy, she is suijuria. I think that Herman on Estoppel and Res Judicata, at section 1105, expresses the true rule when he says: . "Under the various statutes. removIng the common-law disabilities from married women, corresponding liabilities have necessarily been imposed on them. They take the civil rights and privileges conferred subject to all the incidental and. correlative burdElns and obligations, and their rights and obligaare to be determined by the same rules of law and evidence by which the'rigbts and obligations of the other sex are to be determined underlike circumstances. To the extent and in the matter of business in which tbeyare by law permitted to engage, they owe the same duty to those with whom· they deal, and to .th6 public, and may be bound i11l the same manner. 3sif they were unmarried. TheIr common-law incapacity cannot serve as.a shield to them from the consequences of their acts when they have statutory capacity to act. A. married woman is suijuris to the extent of the enlarged capacity to act conftlrred by statute, and may be estopped by her acts and declarations, and is SUbject to all the pres'ltmptions which the law indulges against others with full 'capacity to act for themsel ves." . The above doctrine is fully sustained by Dr. Pomeroy's Equity Jurisprudence, which says: "Upon the questiohllow far the doctrine of equitable estoppel by contract applies to married women, there is some conflict among the decisions. The tendency of modern authority, however, is strongly towards the enfOl'ceml'Dt of the estoppelagainst women as against persons sui juris. with little or no limitation on account of .their disa1?i1ity. This is plainly so instates where the legislation has. freed their property from all interest or control of their husbands. and has clothed them with partial or complete capacity to deal with it as though they were single. " In Dobbin v. Cordiner, 41 Minn. 1M, 42 N. W. Rep. 870, the supreme court of Minnesota said: "Married women cannot eIJjoy their enlarged" rights of action and of prop,erty and rem/l.in irresponsible for the ordinary legal and equitable results of their conduct. Incident to this power of married women to deal with othel's is the capaeity to be bound and to be estopped by their conduct, when the enforcement of the principle of estoppel is necessary for the protection of those with whom they deal. * * *" I take it that it a, true principle that Mrs. Foltz could have made a contract with the railroad company to sell them the land she held in her -own right. If she could make such a contract, then she may, by her
conduet'imake a coIitractby implication. ,Her conduct may amount to an,equitable estoppel, and thus oreatein this case an implied executed because the railroad has the land, and she has the value thereof. If she can make an agreement,and be bound by it when she may renounce any constitutional provision prohibiting the railroad company from becoming the owner of real estate by condemnation., .'She may waive such a constitutitional provision, as it has nothing, in it prohibiting a private citizen from givingor. selling lands for right of way·, etc.; too. nonresident railroad company. Etmbury v. Conner, 3 N. Y. 511,>i3Amer. Dec. 325. Principal case anu notes and authorities therein .cited. Mrs. Foltz, ,in this could act as though she was a feme Bole. She was' Bui juris; and. when she entered.into!the condemnation suit, and accepted the award mlide,andhas kept the same, she is not in position to assail or deny the validity; of the proceedings. Her action in that regard amounts to an equitable estoppel. In Wat611 £b. v. Middaugh, 12 it'twas held that a party acceptingllnd 'retaining the fund of estopped.from assailing the judgment itself. That was 11 11e1'y muph 'li'ke 'this','as it was a condemnl1tion proceeding w to condemn b/3cause Of-w'ant of jurisdiction. It presumed to know Then, in legal conteI;l;lpll\tM>>>, ,¥rs. Foltz knewthec illegalitY9f this con¢lernnation at;theAiim'e.l.itwas made, and, knowing this, she accepted the value of herllhjdf!IlS! ftlundby the jury, and kept it from the time of the condemn,atipn", time of bringing this suit, when she for the first time procE\l'lding by assailing its legality. Her as an acquiescence by her in tbe:validity of the proceediQgf!,anqas creating a condition put of which springsinto ex.istence an implied contract between ·hel'selfand the railroad company, wl)ich her receiving and retaining the money and the railroad company receiving the land.. In PrY7<bylowicz v. Railroad Co., 3 586, 17 Fed. Rep.. 492,}t that "the owner ofland ,which has been taken by a railr.oad for its right oLway may by his own act estop himself from demanding actual payment of the compensati.ona.s ll.condition precedent tn the taking for the public use. If the owner giyes license, either expressed odairly implied i. if he expressly conserIs, oro\vithfull knowledge taki'ng 110 o,bjection, but permits a puhlic corporation to enter upon the land and expend money, and carryint()operation,thepurposes for which it is may not then be permitted to the parties from the possession for want of paymenV''.I'hat was a case where there was no compensation paid. This is a fullcompensittion was paid·. Challcellor COTTENHAM, ,case of 1)uke of Lei3ds v. Ea,,'l of Amherst, 2 Phil. Ch, 117123, said: ··."Ifia party having a right,stands by and. sees another dealing with the property in' a ttlQ,nner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain." It is olaimed in thisoase that the railroad company has lost its right.
121 Pac. Rep. 565.·
to this property by nonuser for the purpose for which it was obtained. There is no evidence of the intention of the railroad company to abandon the use of the land for the purpose for which it was obtained, ex<lept itsnol1user for that purpose up to this time. Under the circum'.stances of this case, that is not enough to show an abandonment. JohruIton v. H.'lJde, 33 N. J. Eq. 632. At the tirnethe railroad company obtained the property from Mrs. Foltz there was no condition that it was to be used for machine shops, etc., within a certain time. A railroad may properly provide for future requirements af a more extended traffic, and may condemn more land than it at present needs, but only what may in good faith be presumed necessary when its traffio shall be extended. Mills, Em. Dom. § 58; note, p. 352, 27 Amer. & Eng. R. Cas., (In re Staten Island Rapid Transit R. Co., [N. Y. App.] 8 N. E. Rep. 548.) The acts of Mrs. Foltz are of a character to create a condition where the railroad company holds the property by an implied contract. This is equivalent to a grant by Mrs.. Foltz. This property, obtained by grant, expressed or implied, is not lost by a mere nonuser for the length of time the railroad company has held the property. Barnes v. Lloyd, 112 Mass. 224. In Eddy v. Chace, 140 Mass. 471, 5 N. E. Rep. 306, the supreme court of Massachusetts said:
"Mere nonuser of an easement like the one in question, thougb continued for more than 20 years, will not extinguish it. The owner of an easeolent may abandon it, but mere nonuser does not show an abandonment. To;effect this the nonuser must originate in or be accompanied by some decided and uneqUivocal acts of the owner inconsistent with the continued existence of the easement, and showing an intention on his part to abandon it. '.'
There may have been a nonuser af the part of the land in controversy for tbe time the railroad company bas .had it, but that does not of itself amount to an abandonment of the land. There must be other evidence of an intention to abandon it. Johnston v. Hyde, 33 N. J. Eq. 642. I think tbat the injunction should be made perpetual to restrain Mrs. Foltz from proceeding w.ith her action of ejectment for the recovery of the lands in controversy, and it is so decreed.
et ai. v. McDONALD.
(Circuit Court of ...4ppeals, Fou'l'tJl, Circuit. October 11, 1892.)
BOUNDARIES-NATURAL STREAM-RIPARIAN RIGlI'l'So
Where the calls in a conveyance of land are for two corners. one at high-water mark on the bank of a stream, and the other at the stream, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, and all riparian rights pass, unless a different intention of the parties is·shown by either their conduct or the conveyance. County oj St. Cl,a,ir v. Lovingston, 23 Wall. 46, and Rdilroad Co. v. Schwrmeier, 7 Wall. 272, followed. 47 Fed. Rep. 757, affirmed. . .