nDELITY TBUST .t SAFETY VAULT 00. C/. KOBlLE ST. BY. 00.
FIDELITY TRUST & SAFETY VAULT CO. v. MOBILE ST.
(Circuit Court, S. D. A.la.bama. October 22, 1892.)
EQUITY-PROTECTION OF RECEIVER.
A court will protect its receiver In the possession and use of tranchtsell and property committed to him.
The use of five blocks of the roadbed of a street railway In the hands 01 · receiver by another street railway company materially impairs the just enjoyment of the property, and will be enjoined, at the Instance of the receiver.
(loBPORATIONa-TAKING OF FRANCHISE BY ANOTHER.
.. One publlc corporation cannot take the franchise of another, which 11 In use, unless expressly authorized by the legislature, and then only by regular condemnation, and cannot take it at alllt thlI wlll materially a1rect its use.
4. RIGHT 01' WAy-DISPOSSESSION. . A franchise for a right of way is, In its very nature, exclusive, and en. possession of any portion thereof, tn actual use, is a t.ak1ng of the franchise pro tanto. Go SAME-GRANT BY CITY IRRBVOOABLE. The grant by a city of a right of way to a Btreetrallway company 1m. plles & contract not to reassert that right subsequently In favor of. another. 8. STREET RAILwAYs-FRANOHISE FOR HORSB CARS-FOR ELECTRIOITY. The erection of poles and wires for an electric railway does not Intel'ferewith the operation 01 a horse-car railway on the same roadbed by the receiver, who does not intend to use electricity on his road. 7. RECEIVER-PROTECTED IN RIGHTS USED. The. court will not, at the Instance of a receiver of a street railway who does not use electricity in his management, consider how its use by a competing company over five blocks of the Aame roadbed may atleot future purchasers, should they desire to introduce that motive power.
In Equity. On petition and motion of receiver for injunction. Granted.
The M;obile Street Railway Company defaulted in the payment of Interest on its bonds, and a bill was filed by the complainant above named, as trustee under the mortgage, to foreclose the mortgage and sell the property, and a receiver was appointed. During the progl'ess of the cause the city of Mobile passed an ordinance authorizing another strpet railway company to lay its track partly within and partiy without the ralls of the Mobile Street Railway Company, for five blocks, in the portion of the city, on Dauphin street, and run carll by electricity over this and the rest of an extensive route not otherwise contllcting. The Mobile Street Railway Company had been the right by the city previously to substitute electricity for mule'!, bnt had not, np to the filing of the bill In this cause, taken any steps In that direction, nor did tbe receiver make or contemplate any change. 'rhe cori:lpeling the Mobile Electric Railway Company, proceeded to ere<.-t poles on the margins of DauDhin street with the view of.availing itself of its franchise, when the receiver made this motion for an injunction.
Clark & Clark and Overall, Bestor & Gray, for receiver. S. T. Prince and G. L. & H. T. Smith, for Mobile Electrlc Ry. Co. TOULMIN, District Judge. Under the faetB of this case, the court has arrived at the following conclusions:
lReported b1 Peter J. Hamilton. Esq., of the Mobile, Ala., bar.
ceeding has arisen. Whether any such purchaser will exercise the privilege so granted to the Mobile Street Railway Company can now be but a matter of speculation. The relative rights of such purchaser and the Mobile Electric Railway Company can be settled when the issue arises between them. 9. My conclusion is that an injunction should be granted, restraining the Mobile Electric Railway Company, its officers, servants, and agents, from entering with their track upon, or in any manner interfering witb, the right of way and roadbed of the Dauphin Street Railroad, as now possessed, used, and operated by the receiver; and it will be so ordered.
WARREN et al. v.
(Circuit Court of Appt>als, 1"ifth Circuit. January 9, 1893.)
No. 47. 1. PROCEDURE-NoTICE OF HEARING. An award made by arbitr-ators pursuant to Rev. St. Tex. arts. 46, 49, 50,
is not binding when the arhitrators were 1I0t sworn prior to the hearing, unll when no notice lIf a l1eal'ing had aftpr the selection of a referee was givcn to one of. the parties, and he was not present either in person or by representative.
'.rhe faUure to give notice of thc heai'ing before the arbitrator, or to afford the parties any opportunity to be present, was a defect which will not readll:r be tal,en as waived by the conduct of the parties, especially when there is evidence which hinders the court from induiging presumptions Wholly in favor of the award. S. CONTRACTS-COl'i:STRUCTION.· executed an obligation for the payment of money conditioned to be void if the plaintiff realized out of the assets of a certain estate in his possession $7,000, or had an offer in writing of that sum which he refused. Contemporaneously with this contract, plaintiff, in writing, appointed a certain person his agent, "with power of attorney to sell said lands at minimum rates," and 8tipulated th2rein that he would not "cancel such appointmf'nt without appointing another agent with power of attorney to sell said lands," and notifying rlefendant of such appointment. Held, that under these contraets the agent had no authority to receive an offer of $7,000, and such offer could only be made to plaintiff in person.
Under the terms of this contract, an offer of $7,000, accompanied by a demand for a warranty deed, was not a fulfillment of the condition. plainti.fl' having expressed his willingness to accept the same, and give a decd cOllveJing such a title as he had received.
Appeal from the Circuit Court of the United States for the Northern District of Texas. In Equity. Suit by Thomas Tinsley against Henry M. Warren and others to foreclose a deed of trust to secure the payment of money. By a stipulation filed by the parties the controversy was submitted to arbitration in the manner provided by the Texas statute. The award of the arbitrators having been filed, plaintiff moved to set the same aside, which motion, after a hearing, was granted, and a decree entered in favor of plaintiff. A rehearing was subsev ..53F.no.8-44