paid interest Gn $34,000 of bonds to the mjle, The return referred to is niade .on forms submitted by and under the item of "operating expenses" only ordinary repairs and replacements are al· is replaced by an adelowed. In case an insufficient wooden a betterment, and not permitted quate iron bridge, that is to figure in the returns as a parlof the operating expenses. The bill and cross bill show that, if such. betterments, which can only be made or procured out of the earnings of the road, were allowed in the return of operating expenses, the revenue earned and rendered as net revenue would not have been equal, by several hundred thousand dollars, to the interest on the bonded indebtedness; that the bonded indebtedness outstanding against this road being in excess of the value fixed by the commission, to the extent of more than 50 per cent., the company bas no means of providing for such betterments, if not at all allowed to charge them at any time against the gross earnings of the road. More than this,)t is shown that the rOlld has never at any time paid any dividend upon lUI stock. On the whole case, as made in the case of the Houston & Texas Central Railroad Company, it seems clear to me that the sys-. tem of rates adopted and enforced by the commission does not afford to the owners of this property the equal protection of the law, and takes from the owners and stockholders the property they have therein, without justcompensation, and that, therefore, therates mllst be held to be low, unjust, and confiscatory, and should not be submitted to, and. cannot be suffered to be enforced. As already said, the case madef9r relief in each of the other suits seems to be stronger than the case of the Houston & Texas Central Railroad Company; and the evidence appears to me to shQw clearly that the system of rates imposed is, as to each of the roads, unreasonably low, unjust, and confiscatory. in each case is granted, to the extent Therefore the prayer of tb,e of enjoining the roads from adopting the rates heretofore promulgated by the commission, and enjqilling the commission and the attorney general from enforcing the same, and enjoining all persons claiming thereunder from prosecuting tlie railroads, or any of the officers thereof, for the of the ",ystem of rates heretofore promulgated b,Y the commission.
BRYARet alp v. CAMPBELL. (Cli'cult Court of APPl!lils,. Third Circuit. December 5, 1898.)
ABATEMEN'l'-DISMtSSAL Fon·ABAN):,ONMENT-JU])GMENT IN SECOND ACTION.
Pending an appeal In Ii suit In equity to .enforce a conveyance of lands. tbe <:ommencement by of an action of ejectment against the defendant to recover the same lands, and the rendition of a verdict and judgment therein adverse to the plaintiff, may properly be treated by the appellate court as an abandomitent of the equity suit, or as a conclusive adjudication against the plaintiff of the facts on which the case rests. either of which will a .dismlssal of the bill.
Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. This was a suit in equity. L. ,E.]3arton and EdWlll'd Campbell, for appellants. Wm" B. Rodgers, for appellee.
LONDON & BAN FRANCISCO BANK V. CITY OF OAKLAND.
Before DALLAS, Circuit Judge, and BUTLER and KIRKPAT· RICK, District Judges. BUTLER, District Judge. In January, 1877, James Bl'J'ar was declared a bankrupt; .and soon thereafter certain land to which he had title was offered for sale by his assignee. His wife, Jane Bryar, thereupon petitloned the district court for an order to restrain the sale, averring that the property was hers; the deed for the same having been made to her husband by mistake. While the application was pending the assignee sold the land to Campbell. Subsequently (June 29, 1878) Campbell was brought in as a defendant; and later (June, 1879) the petition was amended by inserting a prayer for conveyance of the land by Campbell to the petitioner. Thus the proceeding became substantially a suit between l\frs. Bryar and Campbell, for the property in controversy. Subsequently the court adjudged it to her, and decreed that Campbell con \-ey accordingly. July 16, 1879, the latter appealed to the circuit court. While the appeal was pending the land was sold under a executed by James Bryar October 2, 1874, and purchased by Wi] Ham Rogers, who conveyed to Campbell. In 1880 Mrs. brought an action of ejectment against Campbell; and on the trial a verdict was rendered against her, and judgment entered aeco]'(}ingly. January 28, 1896, the plaintiff moved the court to dismis:the appeal (for imperfection) which motion the court refused With these facts appearing on the record the appeal came to hearing in 1897, and the bill was dismissed. 78 Fed. 657. The refusal to strike off the appeal, and the dismissal of the bill, constitute the errors assigned. The case is extraordinary; but in any view that can be taken of it, the action of the circuit court (in both respects complained of) must be affirmed. Granting that the district court had judsdiction to enter the decree (which may well be doubted, to say the least) and that the circuit court had authority to do more than reverse, and dismiss the bill, for want of such jurisdiction, its refusal of the motion, and dismissal of the bill on the merits, must be affirmed; because, first, the suit at law must be treated as an abandon· ment of the proceeding in equity, and second (if not) the verdict of the jury must be regarded as a conclusive finding of the facts, on which the iJlaintiff's case rests, against her. The derJ'ee is therefore affirmed.
LONDON & SAN FRANCISCO BANK, LImIted, v. CITY OF OAKLAND et aI. (Circuit Court of Appeals, l'\inth CircuIt. No. 444.
DEDICATION OF STREETS-FILING OF PLAT.
October 3, 1898.)
A map or plat of a town signed and acknowledged by the owners of the land, and duly filed and recorded, and by reference to which such owners partitioned the property by deeds between themselves, constitutes