440 .
FEDERAL REPORTER.
ST. LoUIS,
V. &
T. H.
R.
CO.
v.
TERRE HAUTE
& I. R. Co.
Court, 8. D. Blinoia. January 11,1888.) 1. RAILROAD COMPANIES WAIVER. LEASE OF ROAD CONSENT OF STOCKHOLDERS-
A railway company leased its road, and 19 years afterwards brougoht suit to set aside the lease because it was made without the stockholders' written con· sent, llS required by law. Held, that the requirement of consent was a per· sonal benefit which the stockholders waived by long acquiescence. . .
ll. CONTRACTS-VALIDITy-RATIFICATION..
The plaintiff and defendant entered irito a contract of doubtful validity. By subsequent enactment it became lawful to make such contracts. Held, that. recognition by the parties for 19 years thereafter was a ratification of the contract.
S. EQUITy-LACHES-ANNULMENT OF LEASE.
The plaintiff leased its road, and 19 years afterwards brought suit to declare the lease void. Held, that the plaintiff was guilty of such 1aches as will bar relief inequity.
4.
SAME-P:r,EADING-MULTIFARIOUSNESB.
A bill in equity praying that a lease be declared void, and for an accounting of themo.ney due by the terms of the lease, should it be. declared valid, is multifarious. .
In Equity. On demurrer to bill. TrumbuU, Robbin8 &: TrumbuU, John M. Butler, and J.T. Brooks, for
George Hoad,ly; William M. Ramsey, Greene·&: Humphrey, and John G. Williams, for defendant. Before GRESHAM, C. J., and ALLEN, D. J. GRESHAM, J. The complainant, the.St. Louis, Vandalia & Terre Haute Company wa$ chartered by an act of the general assembly of the state of Illinois, approved February 10, 1865, to construct and operate a railroad from the bank of the Mississippi river, opposite East St.Louis, to the eastern boundary of the state of Illinois. at a point most convenient for extending the sarile to the city of· Terre Haute, in .the state of Indiana; and this charter was amended by an act approved February 8, 1867. The defendant was chartered by an act of the general assembly of the state of Indiana, passed January 26, 1847, under the name of the Terre Haute & Richmond Railroad Company, with power. to eonstruct and operate a railroad from a point on the western line. of the state of Indiana, easterly through Terre Haute to Richmond, in the same state; and by an act passed March 6, 1865, the name of the defendant was changed to the name itnow·bears. The bill.avers that the complainant was not authorized by its charter to part with the possession of its property and franchises indefinitely, or for a fixed period of time, by a lease or other contract; and i.hat the defendant was not authorized by its charter to acquire, by like means, the possession, management, or control of any railroad located beyond the limits of the state of Indiana, for an indefinite or fixed period; that in
ST. LOUIS, V. & T. H. R. CO. 'V. TERRE HAUTE & I. R. CO.
4041
order to secure money to construct and equip its road, the complainant on April 6, 1867, executed a mortgage or deed of trust, dated January 1, 1867, conveying to trustees all its railway and equipment to secure the payment of bonds aggregating $1,900,000, drawing interest at the rate of 7 per cent. per annum, in which instrument it was provided that, beginning on July 1, 1872, there should be set apart and paid to a commissioner out of the earnings of the railroad, $20,000 annually, as a sinking fund for the redemption of these bonds; that on March 13, 1868, the complainant executed its second mortgage, or Cleed .of trust, to secure the payment of an additional issue of bonds aggregating $2,600,000, drawing 7 per cent. interest; that these two issues of bonds were all ilold, and the proceeds thereof applied to the construction and equipment of the railroad; that they are all outstanding and unpaid, and that. no sinking fund has been created, as provided in the first mortgage; that on the tenth of February, 1868, the complainant executed a pretended lease of· its railroad, property, and franchises to the defendant for the period of 999 years, which is set out in the bill as follows: "Whereas, a contract for the construction and equipment of the St. Louis, Vandalia & Terre Haute Railroad, belonging to a corporation of the state of Illinois, has beeu entered into this day, by which arrangements have been made to complete and equip said road between East St, Louis and the state line of Indiana, in the manner set forth in said contract; and whereas, the Terre Haute & Indianapolis Railroad Company, a corporation of the state of Indiana, has proposed to construct, without delay, a first-class railroad, being an extension of their present road from Terre Haute to the state line of Indiana, upon such location as will connect properly and directly with the St. Louis, Vandalia & Terre Haute Railroad at the state line of Illinois; and whereas, it is desirable that the said lines, when connected, should be operated by the Terre Haute & Indianapolis Railroad Company as one road between Indianapolis and St. I.ouis, and the said Terre Haute & Indianapolis·Railroad Company having proposed to lease and operate the said St. Louis, Vandalia & Terre Haute Railroad for a period of nine hundred and ninety-nine (ml9) years: "It is therefore agreed-First. That upon completion of the road between East St. Louis and the state line of Indiana, the Terre Haute & Indianapolis Railroad Company shall take charge of and operate the same with its equipment, for a period of nine hundred and ninety-nine (999) years, for which they shall be allowed sixty-five (65) per cent. of the gross receipts from all traffic moved over the line or business done thereon, and from the property of the company, as a consideration for workin,g and maintenance expenses, the remaining thirty-five (35) per cent. to be appropriated as follows: (1) To the payment of interest on the first and second mortgage bonds of the St. Louis, Vandalia & Terre Haute Railroad Company. according to their legal priority. (2) All the surplus of said thirty-five (35) per cent. to be paid over to the i::lt. Louis. Vandalia & Terre Haute Railroad Company (semi-annually) to be disposed of by it for the benefit of its stockholders. If the thirty-five (35) per cent. should. from any cause. not be sufficient in amount to protect the interest on mortgage bonds and sinking funds therefor, as they mature from time to time, together with the payment of taxes and proper cost of maintaining organization, so that the rights of stockholders may be preserved, then, and in that event, the lessee shall advance for the company whatever amounts may be needed to be accounted for under the yearly averages of this lease during the contract.
442 "It is that the Terre Haute & Indianapolis Uailroad Company, as lessee. shall enjoy all the rights. powers, and privileges of the St. LOuis. Vandalia & Terre Haute Railroad Company. so far as the same may be needful to maintain and operate said railroad; and to impose and collect tolls and rates for transportation. and do all other acts and things as fully and effectually as the said St. Louis. Vandalia & 'ferre Haute Railroad Company could do if operating said liUll; it being always understood and agreed that proceeds from through, or joint traffic or business shall be divided on the pro rata basis per mile for distances movedon the road of each party." '
The bill further avers that on January 12, 1869, and after the bonds, had been sold, as previously stated" the board of directors. of the complainant adopted a resolution declaring that tll,e defendant should be ai- , lowed 70 percent. out of the gross receipts, instead of 65 per cent., for operating the road, and that by agreement between the parties the should be modified only to that extent; that by a statute of the state of Illinois, in force at the time the pretended lease was executed, no railroad company in the state of Illinois was lillowed to lease its railroad and other, property and franchises to any foreign railroad compa,ny, without having first obtained the written consent of all stockholders residing in that state;. and that the pretended lease was executed without the written consent of 59 stockholders who then resided in Illinois; that on the completion ofthe construction and equipment of the road, on July 1,1870, the defendant took possession and control, of the same, and from that time to the present has operated ih,e entire property under the franchises granted to the complainant, and has received, in tolls and o'therearnings, more than, .21,600,000j'thatthe pretended lease is void, because neither the plaintiJi nor the defendant was authorized by the states which created them toenterinto such a. contract; that the defendant is liable as trustee to account to'thecomplainant fi.lr all the property embraced in the pretended lease, together with all receipts and profits derived from the management and operation thereof, and to restore immediately to the complainant after the full control and possession of all its property, and its deducting reasonable disbursemimts made by the defendant in the care, maintenance of the same; that the defendant hasrefus{jd to deliver to the complainant, on demand, its property, and the earnings derived therefrom; that during the entire period the defendant has been in possession of the. railroad, it has failed to pay over.to the to the terms of the lease, the latter's full share of the gross receipts; that there is now due the complainant from this upon the mortgage source, after payment of interest which has bonds, more than. 8500,000; that by reason of the defendant's failure to plake such payments as they became due the complainant has been unable to create any sinking fund, as required by the terms of the first mortgage; that the complainant entered into the contract supposing it nad lawful authority to do so, but it has been recently advised by its .counselthatit had no such power, and that the lease is null and void, and that it is its duty to repudiate the same, and resume possession of its property and franchises; that the complainant is liable to have its
ST. LOUIS, V. & T,'H. R.CO. V.TERRE HAUTE &: I. R.
co.
443
'Charter and corpoh'tte rights f{}rfeited by the state of Illinois; that by proper management the income of its property can be largely increased; that the present income is niorethan sufficient to pay the interest on its bondtld indebtedness, and create a sinking fund as required by the first mortgage; and that the first mortgage is liable to be foreclosed at any rtime on account of the failure .to create such sinking fund. the bill also further avers that whether the lease be valid or void, an -accounting is necessary to determine the amount of money received from the defendant in the operation of the road, which will require the examination oflong and complicated accounts, covering a period of 17 years; that the pretended lease is a cloud upon the complainant's title to its property; that the defendant is, daily withdrawing from the jurisdiction ,of this court large sums of money accruing from the operation of the road, which it will continue to do unless restrained by this court, or unless a receiver be appointed pendente lite. The prayer is that the If;lase be declared null and void; that the defendant be required to deliver to the complainant the possession of all property which it now holds under the lease; that the defendant be perpetually from disturbing the complainant in such possession; that an account be taken of allllloney received by the defendant, or which it might have received by proper management of the property, and that the defendant be required to p'ay to the complainant the earnings so found to have been received by the defendant, as well as the fair value of any property not accounted for, less reasonable disbursements and expenses as already stated; and that if the lease shall be held valid, an accounting be taken of the amount due under its terms from the defendant; and that the complainant have a decree for the amount so found due. The defendant demurs to the bill (1) because it djscloses no equity; (2) because it is multifarious and contradictory; and (3) because the (Jomplainant has a complete remedy at law. Section 1 of an act of the Illinois legislature, approved February 12, 1855, reads: "Section 1. That all railroad companies incorporated or organized under, or which may be incorporated or organized under the authority of, the laws of this state, shall have power to make such contracts and arrangements with each other, and with corporations of other states for leasing or running their roadS, or any part thereof, and also to contract for and hold in' fee-simple, or otherwise, lands or buildings in this or other states, for depot purposes, and also to purchase and hold such personal property as shall be necessary and convenient to carry into effect the object of this act." Section 1 of an act oBhe general assembly of the same state, approved February 16, 1865, reads: "Section 1. That it shall not be lawful for any railroad company of Illinois, or for the directors of any railroad company of Illinois, to consolidate their road with any railroad out of the state of Illinois, or to lease their road to any railroad company out of the state of Illinois, or to lease any railroad company vut of the state of Illinois, without having first obtained the written consent of all the stockholders of said road residing in the state of Illinois, and any eontract for such consolidation or lease which may be made without having
444
first obtained said written consent, signed by the resident stockholders'in n· linois, shall be null and void." In 1874 the last-named statnte was repealed, and the act of 1855 waa re-enacted, and on the eighth of February, 1867, an act was passed amending the complainant's charter, section 13 of which reads: "Said company shall have power to consolidate and connect its railroad with any other continuous line of railroad now constructed, or which may be hereafter constructed, either in this state or in the state of Indiana, upon sucb terms as may be agreed upon betweenthe companies so connecting or unit· ing; and for that purpose, full power is given to such company to make and execute such contract with any other company as will secure the object of said consolidation or connection." On the twenty-third of February, 1853, the legislature of Indiana passed an act, (Rev. St. §§,3971, 3972,) the first and second sections of which read: under the general "Section 1. Any railroad company heretofore or special laws of this state shall have the power to intersect, join, and unite its railroad with any other railroad constructed, or in progress of construction, in this state or any adjoining state, at such point on the state line, or at any other point as may be mutually agreed upon by said companies; and such ,railroad companies are authorized to merge and consolidate the stock of the respective companies, making one joint stock company of the two railroadlJ thus connected, upon such terms as may be by them mutually agreed upon in accordance wit,h the laws of the adjOining state, with whose road or roads connections are thus formed, prOVided their charters authorize said railroad to go to the state line, or to such point of intersection. "Sec. 2. Any railroad company heretofore organized. or whieh may hereafter be organized. under the general or special laws of this state, for the purpose of constructing a railroad from any point within this state, to the boundary line thereof. Is hereby empowered, to extend said railroad into or through any other state or states, under such regulations as may be prescribed by the laws of such state or states, into or through which said road may be so extended. and the rights and privileges of said company over said extension in the con· struction and use of said railroad for the benefit of such company, and in controlling and applying the assets of such company, shall be the same as if its railroad had been constructed wholly within this state." It is claimed that the Illin,ois statute of IS65 limited the power previ. QUsly conferred upon railroad corporl1tions of that state to consolidate or enter into leases with railroad companies outside of the state; and that the contract involved in this suit is void because the Illinois company made it without the written consent of the resident stockholders. The act of 1865 was repealed in 1874, when the act of 1855 was re-enacted, I1nd from the last-named date until this suit was. brought, 13 years, the defimdant continued to hold and operate the road in Illinois under the contract with the complainant's consent. This recognition and perform. ance,since the re-enactment of the act of 1855, was enough of itself t(} conclude the complainant. If after the repeal of the act of 1865 the con· tract had been re-executed, its validity under the laws of Illinois could not be questioned, and what was done subsequent to 1874 was referableto the contract and the act of 1855. A new agreement made after 1874 would have been po less binding, and even if the contract was invalid un-
ST. LOUIS, V. &: T. H. R. CO. t1. TERRE HAUTE &: I. R.
445
der the act of 1865, it is now too late fot the complainant to say that it was made without authority, and in violation of that act. But without reference to the act of 1855 and its re-enactment, and the subsequent action of the two companies, we holl! that the written consent of all the stockholders residing in. Illinois to a lease of an Illinois railroad to a company out of the state, was a provision inserted in the act of 1865·for the personal benefit of such stockholders, and one which they could, and in this case did, waive by long acquiescence. The silence of the stockholders for almost 20 years was equivalent to their written consent. Any resident stockholder might have enjoined the execution and performance oMhe contract by a suit broul/;ht in due time, but no such suit could be maintained after an acquiescence for the period stated, and no one but a stockholder could object to the contract on that ground. Thomas v. Railway 00.,104 Ill. 462; Taylcrrv. Railtoad 00.,4 Woods, 575; Beecher v. Mill 00., 45 Mich. 103,7 N. W. Rep. 695. . The relief sought by the complainant is inequitable, and against the rules which govern courts of conscience; and if the contract could not be sustained under the Illinois laws on any other ground, we would feel authorized to hold that the word "void" in the act of 1865 meant "voidable." Prior to 1865, railroad companies in illinois were expressly authorized to lease their roads to companies out of the state; and the provision in the act of the last-named date, which required the written consent of resident stockholders to give validity to such contracts, is no evidence of a change in the previous policy of the state. That the policy of illinois favored such action by its own railroad corporations, abundantly appea.rs from the public statutes, and the decision of its courts. The act of 1865 is relied on as establishing a contrary policy. We do not think it does; but if it did, that act was repealed in 1874. If the defendant was not expressly authorized by the Indiana statutes to make the contract, it was not in terms prohibited from doing so; and it follows that if the contract is void, it is so on the sole ground tha.t its execution by the defendant was impliedly prohibited by the laws of its domicile.· We hazard nothing in saying that a judgment of an Indiana court forfeiting the defendant's franchises for no other reason than the making and performing ofthis contract would startle the bar of that state. In Branchv. Jesup, 106 U. S. 468,1 Sup. Ct. Rep. 495, the supreme court of the United States held that a grant of power to a railroad company to consolidate included the lesser power to sell its road, or buy another road; and that the power to construct a railroad included the power to purchase a railroad, and pay for the same by an issue of its own stock. The power to consolidate was expressly given to the defendant by the first section of the Indiana act of 1853, and by the thirteenth section of the illinois act of 1847 the same power was expressly granted to the complainant, and treating the contract either as a sale or lease, we are unable to see why it was not valid under the ruling in the case just cited. Manufacturing Co. v. Bank, 119 U. S. 191, 7 Sup. Ct. Rep. 187; .Bra'Mh v. Atlantic, etc., 3 Woods, 481; Darlirq v. Roger8, 22 486.
,'446
FEDERAL· REPORTER.'
:Itfs'J!Ilgecll. with earnestness by counsel for the defendant that the seeondl!El'ction of the act of 1853 expressly authoriQ:edthatcompany to extend its 'road, fl'dm the 'state ,line into or through the; state of Illinois, under such ;regulationsas the latter:state might prescribe; ;and that regulations ,fot such extension were prescribed by the Illinois statutes; and further thatthe two.roads,.meetingasthey did at the line dividing the two states, the defend/Plt was expressly authorized ,by the Indiana statute to make · the contract with the complainantfor the use of its road in Illinois. But ,for the decision of the supreme court of the United States in Railroad 00. v.RailroadCo",118 U. S.630, 7 Sup. Ct. Rep. 24, we might yield to the force of this argument. ' That was a; suit brought· by an Illinois rail, road company 'against an Indiana railroad company, and corporations of other states, to enforce alease, and for other relief. The Illinois cor porationowned a line of railroad extending from the Mississippi river opposite St. Louis to Terte' Haute, Indiana, 12 miles of the road being · in the latter state. By the terms of the lease the Indiana company ac· quired the right to hold, triaintain,and operate for the Illinois company its line of road, equipment','and franchises, for a term of 99 years, paying therefor a prescribed annna} rental. The supreme court of the United States held that the lessor,the Illinois company, was authorized by the , Illinois.act of 1855 to make the lease; but that the Indiana act of 1853 did not authorize the Indiana company to accept the lease, and it could not, therefore, be enforced against the latter .company; that the powers , of corporations organized 'under legislath:e authority were such, and such 'only,as were expressly conferred or plainly implied; that the enumeration of powers granted implied the exclusion of others; and that unless authorized by its charter, or aided by some other legislative action, a railroad company could not, by lease or any other coritract, ·turn over to another company for a long period of time its road and all its appurtenances, the use of its franchises,and the exercise of its powers, nor could any other railroad company without similar authority mokea contract to receive and operate such "road, its franchises, and propertYt and that such a contract was not among the ordinary powers of a railroad · company t and was not to be presumed from the ordinary grant of powers in a railroad charter; If the Indiana act of 1853 did not authorize the Indiana corporation ·to accept the lease which was involved in that suit, it did not a.uthorize the defendant ,to bind itself by the instrument now in suit, whether it · be a lease "or any other contract," and although Branch v. Jegup is not expressly overruled by the case last referred to, and we are not convinced that it wa...q intended to be overruled, we nevertheless feel obliged to hold that the defendant had no power under the Indiana act to make the contract involved in this suit, and that it is void as to the defendant for that reason alone. It does not appear from the bill that by making , the contract and' operating :the road in Illinois, the defendant had de· prived itself of ability to successfully operate its own road in Indiana, .or that it had neglected any duty that it owed to the latter state, or its own stockholders. On the contrary, for anything appearing in the bill,
ST. LOUIS, V.
&;
T·· H. RiCO.,V. TERRE. ,HAUTE
I. B. CO.
447
the defendant bas been benefited. by the contract, 'and its performance. It beingsetjJed, then, that the laws of Illinois authorized both CQrporations to perform it in that state; and that the laws of lndiana conferred no such authority on the defendant, and that the, contract is therefore aI1 to the latter, can this suit be maintained? not relied on here as a defense to a suit The invalidity of the for its enforcement, as was the case.in RailrQad {]O. v. Railroad Co., and ThomaJJ v.: RailrQad Co., 101'U. S.71; and, indeed, in most, if not all, of the cases cited in support of the Dill. It is urged that iithe laws of Illinois authorized the contract, and the laws of Indiana did not, it is Vl;lid as to both companies because they it. Is a railroad company entitled to both acted illegally in in a court of equity against its own illegal acts, and that, too, without J:egard to laches? It is well settled that a corporationmay plead as. a defense to a suit upon a contract that it is against public policy or that it is expressly prohibited by law,or impliedly proor good hibited becaus(lDotauthorized by its charter; or any other legislative audoes not follow that because such defenses are sustained, thority. that a court of equity will in all cases, annul an illegal contract at the suit of a party to. it. Stockholders \VhQ act with reasonable promptness may enjoin the execution and performance of illegal agreements and acts, but it is believed that few, if any, well-considered cases can be found in which affirmative relief has been granted to one of the wrqng:do(lrs. In Spring Co. v. Knowlton, 103 U. S. 49, it was held that a party to an executory contract not malum in Be, but prohibited by law, might recover back money which he had advanced under it to the other party who had performed no part of the agreement. Assuming that the contract now under consideration is executory, it cannot be said it has not been performed in part by the de. fendant.· It is not claimed that· interest on the complainant's outstanding bonds is due and unpaid, or that the defendant is insolvent. No complaint is made by the defendant Or any stockholder of either corporation against the contract. No such complaint is made by the state of Illinois or the state of Indiana, nor is it seriously believed that either state ever will such cOmplaint; and yet we are told that because the contract. is executory and continuing, and was made by both companies, certainly by the defendant, without legislative authority, the court must annul it under the rulings in Railroad 0>. v. Railroad Co. We do not think that the supreme court of the United States by that case meant to establish prjnciples for the guidance .of courts of equity at variance with the current of its decisions. So far as this suit seeks to annul the contract, it might have been brought 18 years ago, for the agreement was invalid from the beginning; Q.nd if it be true that such a suit may be brought at any time before the contract expires by its own terms, laches being no obstacle to reli(lf, the complainant might have delayed for an hundred years more without injury or prejudice to its standing in a court of equity. See 7ht8t 0>. v. Midland Co" 117 U. S. 437, 6 Sup. Ct. Rep. 809.'. Equity suitors who diligent, anll remits to their legal reme-
448
dies those who have slept upon their rights, and this is done although the suitor's equitable right may otherwise be apparently perfect. It is not so in courts of law. There the suitor may wait until the day before his right of action is barred by the statute of limitations. The defense of laches goes to the remedy rather than to the right. In refusing affirmati ve relief on the ground of negligence, a court of equity does not adjudicate against the right asserted in the bill. It simply holds that the complainant is not entitled to the particular remedy sought. "Nothing," said Lord CAMDEN, in Smith v. Clay, Amb. 645, "can call forth this court into activity but consCience, good faith, and reasonable diligence. When these are wanting the court is passive, and does nothing. Laches and neglect are always discountenanced." Decisions of the supreme court of the United States and other courts need not be cited in support of this doctrine. By this suit in equity the complainant seeks to recover possession of real estate and quiet its title to the same. Ejectment is a legal, and not an equitable remedy, and the action will lie to recover the possession of a railroad. Railroad v. Johnson, 119 U. S. 608, 7 Sup. Ct. Rep; 339. The bill callnotbe sustained as a bill quia timet, the complainant being out of possession, and the defendant in possession. Prost v. Spitley, 121 U. S. 556,7 Sup. Ct. Rep. 1129; The Illinois statute 6f 1869 (Starr & C. St. 419) authorizes the court to heltr bills to quiet title, and to remove clouds fron1 the title to land, whether improved or occupied, or unimprov.edor unoccupied; anddecllires that the taking possession of such land after the commencement of suit by the party who claims title adversely shall not affect the complainant's right to relief. '1'his statute does not authorize suit by a party out of possession against a party already in possession, under a claim of adverse title as in this case. Finally, is the bill multifarious or contradictory? We think it is. It contains two distinct grounds of suit; one for the rescission of the contract, on thetheoty that it is void, and the other for an accounting and a recovery 'otearnings, on the theory that it is valid. The averments that relate to the first ground of relief are wholly irrelevant, if the bill be considered simply as a bill for an accounting. It is true that a complainant may state the facts of his case, and ask relief according to the conclusion of law which the court may draw from them, although this may be presented in two or more alternatives, (Story Eq. PI. § 42,) but this is not such a case. A bill to annul a contract for fraud or illegality, and to specifically enforce it, if the court shall hold that it is valid, is fatally defective; and we can see no substantial difference between Buch a bill and tlie one now before us. Shields v. Ba;l"raw, 17 How.130, was a suit to set aside an agreement for frand; and an amendment to the bill was allowed praying specific performance. In delivering the opinion of the court, Justice CURTIS said: "So thatthebUl thereafter presented not only two aspects, but two diametrically opposite prayers for relief, resting upon necessarily inconsistent cases, the one being tllli't ,the court would declare the contract rescinded for imposition, and other causes, and the other that the court would declare it so free
M'CONNAUGHY
'V.
WILEY.
449
from all exception as to be entitled to its aid by a decree for specific performance. * * * A bill may be originally framed with a double aspect, or it may be so amended as to be of that character; but the alternative case stated must be the foundation for precisely the same relief." The demurrer is sustained.
MCCONNAUGHY v. WILEY. ((Jircuit Oourt,
n. Oregon.
'Januarv 16,1888)
t
PuBLIC LANDS-SWAMP LANDS-RIGHTS OF VENDEE.
The vendee of land sold by the state as swamp. the same not having been designated as such by the secretary of the interior. under the swamp-land grant to the state of March 12, lSW. cannot maintain an action to recover the possession of hay cut thereon against one in the actual possession of that portion of the premises on which the hay was cut. for the purpose and with the intention of the title to the same under the pre-emption acts, as being dry and fit for cultivation. A purchaser from the state of land selected by it as swamp. on making the first payment thereon and receiving the receipt or certificate therefor, is entitled, if the land is in fact swamp. or has been so designated by the secretary of the interior. to the possession of the same, and the vegetation growing thereon, and may maintain an action to recover such possession.
S
SAME.
(BgllabU8 b1I the Oourt.)
Action to Recover Personal Property. Rufus Mallory and Oha8. B. Bdlinger, for plaintiff. George H. Williams, George H. Durham, and Lewis L. McArthur, for defendant. DEADY, J. This action is brought by the plaintiff, [R. F. McConnaughy,] a citizen of California, to recover possession of 200 tons of bay alleged to have been wrongfully cut by the defendant, [J. M. Wiley,] a citizen of Oregon, on the land of the plaintiff. It is alleged in the com;' plaint that the plaintiff is the owner and in possession of a certain 160 acres of swamp land, situated in Lake county, Oregon; and that the defendant. on or about July 6, 1886, wrongfully and with force entered on such land and cut 200 tons of hay thereon, the property of the plaintiff, and took the same and stacked it on the premises, to the damage of the plaintiff, $800. The' plaintiff made an affidavit for the immediate delivery of the property, as provided in title 14, Code Civil Proc., in pursuance of which, on December 22, 1886, the marshal took 150 tons of said hay, that being all he could find, and delivered the same to the plaintiff. The answer of the defendant, filed on January 8, 1887, contains denials of certain material allegations of the complaint,' not necessary now . to notice, and also a dejw,se, which is denominated therein, "a further and separate answer." The defense is to the effect that on May 28, 1885, llnd since, the defendant was and is qualified to become a settler on the v.33F.no.7-29
