.
(;'.'
nDERAL ImPORTER I
vol. 41·
company receives and carries pa.'lsengers and freight that ho.ve come over, or that destined to go over, the plaintiff's road, without any discrimination on that account; but its relation to such passengers and freight beginswbere they are received, and ends where the plaintiff's road receivesthem. What the plaintiff seeks to accomplish by this suit is a practical extension of its line over the defendant's line beyond Little Rock. 'The plaintiff's; road extends from Memphis to Little Rock; the defendaht's road extends from Memphis to Little Rock, and from thelatter place south, to, Texas. The abstract justice of requiring the defendant to give up, for the plaintifl) benefit, all or a part of the advantages gained by the defendant, by building a competing line to the plaintiff's road from Memphis to Little Rock, is not very ob\'ious. Prior to the construction by the pnndpal defendant ofthis competing line the plaintiff enjoyeda. monop.olyof the traffi<l' between Little Rock and Competing lines aflordthe hestand surest protection the public can have against,:oppressive rates,and, however injuriously the business of the road may have been affected by thcconstructttiiJ. of ,the petillg.line, the public was not injured and is nothern Is it, under these an ,unfair for the defendant, the sale oftickets, to prefer its o,wn line to that of the plaintiff? If it is, ,the incentive to theconstrnction of COID,petlI'lglineswill be very much lessened. Roads a monopoly of a given will be benefited, but the pUblic will probably be injured. But it is unnecessary to discuss or decide this aspect of the case. 'the court has no jurisdiction, to the relief prayed for. 'the Inotion for ' , a n1andatory injunction is dtmied. At a lalerday in the rerm the defendants filed a demurrer to the bill. which \Vas ,stnltained, and the bill dismissed.
CoNGREGATl'ON'
OF THE ROMAN CATHOLIC CHURCH OF ASCENSION t1. 'TEXAS
& P. Ry. Co.
(CircU'tt Oourt,E. D. Lou1.Biana. February 18, 1890.)
,
91' CHA.RTER-REIN<CORPORATION., , " The property of a corporation, aiesolved by reason ohhe expiration Of its chart,er,v6sts in its memberll, who ,may reincorporate l and the riewcorpoi'a'tion may sue for breach of a cpudition, to the pl'emise8., where: it. has been in possession and managed witho'Jet' objecilon 'for many years. '
''S. RA.ILROA.DCOMPAKIEs-GRANTOpRrGH'l' OJ' WU'-CoNDITroN.LLAciIES.'
_,'
to .lil;lnUta a conditlOn to maintain the are continuin8. : ,.", ..
way tp 11, raili'oa<l fozl: failure to':<:olnplywltb and proper drainage, is not barred by l.achl'ls, ll4I ., .. ') " ().;,'
;
. '.'!
In Equity;; On demurrer to the bill ' Rdusek.fktznt, for, compbtinant." ,Howe <t-pr.entW8,f()rdefendfi,llt,
CONGREGATION OF ROMAN OATH. CHURCH, ETC., t/. TEXAS & P. RY.
co. 565
PARI>EE, J . The complainant alleges that it is a hody corporate, composed of all the residents of the parish of Ascension, of the state of Louisiana, professing the Roman Catholic faith, and the citizens of such state, organized under the genera] corporation laws thereof; that, by an act of the legislature of the state of Louisiana approved March 1, 1856, a 'corporation was created under the name and style of "The Congregation of the Roman Catholic Church of Ascension," to be composed of all the white Roman Catholics of the parish of Ascension, with the corporate power to acquire and hold property, and administer the same, for the use of the Roman Catholic religion, for charity, and the encouragement of educati0n; that said corporation, by the terms of said act, was to continue for a period of 20 years from this date, and that the same was'duly organized; that 'subsequently, and prior to the expiration of said charter, the legislature of the state of Louisiana reincorporated all the white Roman Catholics of ,saJd parish of Ascension under the like name and style, of" The Oongregation of the Roman Catholic Church ofAscension," and created the same a'bodycorporatefora term Axpiring on the 1st day of March, 1881, which' corporation was duly organized; that this last,.. named, corporation came' into possession of all the' property of the originalcorporation, and continued to hold and administer the same for the uses and purposes designed by the founders, besides acquiring other property, by purchase, donation, and otherwise, which it administered'for the same uses and purposes for the whbleterm orsaid act; that on the 15th day ofJanuary , 1870, the corporation last named, then being owner and in poasession of the property described in the bill, executed an act of donation il)'and by which said corporation granted, ·relin'1uished;· and conveyed unto the New Orleacs, Mobile & Ohattanooga Railroad' Company'a right of way of 500 feet in width across and upon said lands the right of way on the said lands,· described in the bill; that, in :said corporation conferred valuable rights on said railroad company with.Qut any consideration,greatly to the injury of its property, up6ncondi. tion', however, that said railroad company would' keep open the neces,sary drainage and roads, and build bridges over' thecrossingB of the railroad, besidE'S roads for the uses of said property', and,inasmuch as said corporation did not possess the power to alienate' its lands, the said railroad company undertook and bound itself to obtain the ratification -of said act, of donation by the legislature of the state; that the suidNew OrleaIll:l, Mobile & Chattanooga Railroad Company entered upon the property granted as aforesaid, and constructed an embankment sonie'tO 'feet high across the said property ,withoutconstructing crossings to 'afford a. passage from one part of said church property to theotherjthat' two ilmall canllils,coDstructed for the drainage of said lands; daily in use 'for that purpose afthe date of said act of donation, were filled upand'ob. etructed by said 'embankment, leaving the front land, upohwhichare cated thechureh :edifices, and other valuableiinprovements. ;U1'iilrained; -that, some time in. the, year 1881, the said donee'tor its closed ..st. Patrick street, :through which ,u;p .to: that' time" said :ch tire'1\' 'lands ""ete aocessiblebya'ci'ost:ling maintained at the head of the
.(})
,',
Ij.EPQRTER,· vol.
41.
swamp of:tl}elhie Qfthe railway thnt said. ch;l,lrchcorpora,tion, its meQilbel!S,ltnd.officers, pro· time to time 'against such acts . apdconqitions .coptained in the grant a.fpresaidj but tAli) $aid donee and its su.ccessc)l', present defenda,nt,neglected: and· tefqlled to. comply with tbeirobligations in the premises, in pi whi'Oh orator's property bas bellngreatly injured and damaged; tbat the defendant, tbe Texas & Pacific Railway.COIppany,acquired all,tbe rightagfllintedto the New Orleans, !labile & Chatta.nooga Railroad,Company sometime in tbe early partoftheyear 1881, by deed oftransfer,$.n;d immediately took possession of thelan9.s gf8llteQ for a right of way u.s afo't>said,andhas remained in the possesaipD ..an4use and enjqym..entthereof ever sipce, and has,·in law, becqJn60bligated to perform all the stipulatiOQa contained in said grant; thatcOJ;:nplainants made.qemq.p,don.tbe defl)lldant, about May 1, 1889, requil1Ilg itJo comply with,each and everyone of said stipulations, and tbltt refuses and. Qeglecta, J:l,sit long done, to perform its in the premieesj,that sUbaequent to the expiration of the charter of 18QG; aforesaid,sa.id. propertYJ:'emained in the possession of, and .a<imillistered by, tbe officers oObe Roman CatbolicCburch of as the representative of the coI'poration, by consent of all tb.osehay,ing any until tb.e12th day <>f February, 1883, atwhioh date said corp<>r",tol'$,organizedthemselves into a body corpa. · rate, under the general law' of: the state of Louisiana j by act passed before.n notary public, in. form oflaw, under the name and style of "The Congregll#on of the Roma,n CatholicChurch of Aacension," to conof 25 years ,£rom Sll.id date,-the object and purpose of Batd co\,porati9n being to hold and administer the property as sue.: cessor ofthe. by act. of 185.G,.andto conduct the chl;lFCb.; o65,eera were duly elected to. conduct inaocol,'dance with ita ordinances, who tbe have oonduoteq (tffairs; that said corporation hnmediately went. inw possession ofall<,the church ,property, including tbat aCrOSS wbich the aforesaid rigbt of way w/!.sgranted, and ha,s ever since held ,open, peaceable, and .publicpossession tbereof as .owners·. And complainant further alleges that,.by reason of the failure ofihe New Orleans, MobUe &OhattanoogaRailroad;Company, and its successor, the, Tex,as & .Pacific Railway Company, tQ cpmply with thestipulationscon-; tained in tbe said grant of the right of way, complainant is entitled to· have the said grant annulled and dissolved under the provisions of the ijl,wof Louisialla, and to reC()YeI' tbe losaesand damages sustained by son of nmounts to the sum of $25,000., 'l1he prayer of,thebill is for process j etc., 4nd that the court may decree anllp.lment an<idis,BolutionoHhe a.ct of January 15, 1870, donating the right of w!!,y. tproughl3",id land, fOf non·compliance with the stip" uill-tions ,therein ,contained, ",nd direct the defendant to rEllllove all its.puildingIJ,. road-beds,embankmElnt, rails, ties, and otherJ impediments on the land,and to Burri:lnder possession of said. land; that SA MC9unt Q;1ay be taken of be decreed.
CONGREGATION OF RGWiA.N'CATH. CHURCH, E'i'C.,''':TEXAS
&;
P. RY. CO.
5t91
'to pay the same; andtha't, incaSe :tbe 'conit shall grant the deferidll.nt time to comply with its obligations in the premises,andin that case; ;<lomplainantprays that it Il).ay be on condition that it pay all damages which have heen sustained in the past bY complainantstllrongh defend.ant's neglect to comply:with the stipulations of said grant of right of way. To this bill the defendant demurs: U(l) That, by the bill of domplaint, said complainant,'shawano rigbt,title, '{)rinterest, legal or equitable; in the premises, to bring this,suit,-ar to have it appears, on the ,face of the said i>iU,thecom.tbe <lecree demanded; which is .plainant, evenif it pave any right, title, orinterest not admitted, baveby tqeir, laches disentitled themselves tq 'any r,elief hi the ,premises." ,
The property having thus vested in the members of the defunct corporation; they had a right to reincorporate under the genemllaws of the state. The new borporation, if it did not take absolute title to the property in question, took the cGnttol and administration of it as trustee. 'The bin: that it entered into the possession, and ;has administered the without objection for many years. It therefore seems clear 1hat in this case the said corporation has the right to repl'esentitsmem:bers and the property in the pendiug suit Foramnch: 'stronger case, (f1eeiBeciuyv.J{urlz, ,2l?ek56G,. where, it isheJd·thai.,...;'"
568
J'EDEBAL REPORTER,
vol. 41.
"If complainants In the circuit court were proved to be the regularly appointed committee Qf,a voluntary society of Lutherans, in actual possession of the premises,and acting, by their direction, to prevent a disturbance of that possession" ... ... .... there does not appear to be a serious objection to their right to maintain ,a suit for a perpetual injunction against the heirs of the donor, who sought to regain the property, and to disturb their sion." 2. The contract which is the basis of this suit is a contract with continuing covenants; and a suit to enforce the covenants, or to dissolve the contractror breach thereof, cannot be stale until after the expiration ,()f the term oOha contract. The failure ofthe railroad company to comply with the contract to maintain crossings and proper drainage during the first years of the contract may not have affected the complainant so , injuriously but what it preferred submission rather than litigation. This would 110t cut off its right to have the contract enforced thereafter, when the damages, became more onerous. The doctrine of laches, which is sought to be' applied in this case, may cut some .figure if the contract shall be annulled for breach thereof, and the court undertakes to assess the damagea:resulting from such breach; and it may then well be that claims :for damages 'ar'ising years before bringing the suit may be declared stale. -,On the face of the bill, the complainant makes a case for breadh of contract within the past year. The demhrrer will be overruled.
TOWN OF STRAWBERRY HILL t1. CHIOAGO,
M. &
ST.
P.Ry.
CO.
al·
.' .(Circuit Court, N.D. Iowa, E. D. Maroh 6, 1soo.) JtlDGJlENT-EQUITABI:.B
A bill in.equity showing,that a railroad liable over for against a tqwn had 'Eltt1ed with ,the injUred person,and that thll juqgD)ent, had been assigned to a third person, .alid asking to have it canceled if ,found to have been assigned for the benefit of the company, otherwise for judgment for damages against. the railroad,18 not demurraole on the ground that the relief Biked will in one event be purely legal, .as the relief granted can only be determinadon final hearing.
In Equity. On demurrer. to part of bill· . Re:mley &: ErlJii.nbrack and Hende:rson, Hurd, Daniela &:K'wsel, for complainant. . . A. L. Bartholomew and Wm. J. Knight, for defendants. !
.1'
The bill in this cause shows that one Margaret Fowler received injuries· from being thrown overa. -bridge within the corporate limits oithe tl}wn oiStrawberry Hill; that she and her husband brought .actions against th'e town to recover damage$on the ground, that the bridge was unsafe; that Mrs. Fowler recovered a judgment against the town for 81,842 and costs; that thereupon Mrs. Fowler and her husband brought suit againsttheChiQago, Milwaukee & St. Paul Railway Company fOl the same injuriesQn. the ground that the bridge inqueation was built by 'c -SHIRAS,
J.