NEW ORLEANS&: PAC. RY; CO. 'V. UNJONTRUST CO.
717'
ing on the law side of thiseourt, and as to the cloud that rests upon his title. 1 Story, Eq. Jur. § 64k;Ober v. GaUagher,93' U. S. 199; Ward v. Todd: 103 U. S. 327; U. S. v. M.'lJers, ifUIP1'a. A decree may be drawn directing the cancellation of the deed executed by Junaluska to S. P. Sherrell, dated January 22, 1847, and the deed executed by S. P. Sherrell to R. M. Henry, dated March 3, 1873; and also declaring void the grant of the state to R. M. Henry, issued 17th day of July, 1873; and also directing a writ of injunction to be issued and served on the parties defendant in this suit, perpetually enjoining them as to the further prosecution of the action of ejectment now pending on the law side of this court, originally docketed R. M. Henry v. George B. Smythe. Let the defend-, ants be taxed with costs.
NEW
& P.(\.C. Rv., Co. et aJ.1i.,UmON ,'(CircwLt OO'Uh't, E. D.
TRUST
CO: et ' ",
March 21, 1890.) COMPANIES...
IIORTGAGE-ApTER-AcQUIRED.
A railrolLd company mOfl'!'l'aged the wbole of its line in tl;le state of Louisiana; "also aU real. and personal estate 'within' the' state owned by the company at the date of ",hjch !!lay be a<:qulred by it, tb;ereafter, Ill} necessary for the operation;of said line. special autbority to mortgage to the COmpany, br. its cM,I't,erdid n,ot'authorlz,e it to mortgage after-acquired land' grant. , Rev. CiVil Code La. art. B308, provide,,tbat" future property can never be f,bs eubjeot mortgage. "Held,'that said mortgage did not aflectliul'd thereafter granted to the company to aid in tbe'eonstruction of the road. ' "
In li::quity; Bill to remove cloud from title. Howe & Prenfti88, for complainant. F'rank N. Butler, for Union Trust Co. " PARDEE, J. The question, presented in this case is a mOt;tgage grantell, by ,the New Orleans; Baton Rouge & Vicksburg Railroaq .company, Qll(l of the cOnlplainants herein, on ,the 1st day of October; 1870, to secut;ean issue of ,bonds made by said complmy, bears upon :and affects the lands thereafter, upon the 3d of :March, 1871, granted by the COIlgresS of the United States to tbesaid New Orleans, Baton Rouge ,& Vicksburg Railroad Company and .its assigns, to aid in the construction .of a railro:;l.d in New Orlel;lns, and, in connection with the Texas & Pacific Railroadst it!! eastern terminus at $hreveport, La. See .Acts Congo 1871. In said act of mortgage the property claimed to affected, ,therehycovers the whole; of the line of the raUroadof 88;idcompany; within the ,state of Louisiana, partictllluly .describing and, setting forth, same, ""together ,with th,e, rightlil J){Way, road-beds, rails"depots, stations, ahops> buildings" :ro!J.chinery;toolsj tenders,a.nd other,;rollil1g stock; also,wLreal.llpd, p6l'sonr engines; :8l estate within, the state of Louisiapq. oWllerl by;the /;iaid ,date ofthis nlortgage,otwhich, may:be ac::quired by, it therMftet', all, .nec;:essat3 :(6f of; fof
:iFEDDA]J' B41:POBTEB.,vol.41· . en
:'
of'sa.iJd branches coimected with ,said main line, 'or to be: Connected thetewithralso',.:al16th.er propeny, real and per.aonal, of every kind'snd<dl;lscriptionwhat30ever, and' whetesoever·situated, iJa. the state of'Louisiana; which il?'DOW: owned;;()r which shallhereafte.r be acquired, bysaidc6inpany, and which, shall. be ,appul:tenant to,·. ·p.ecessary for thaoperntiQnof, said .main line of r8;ib'ml-d ,or any of said branch¢s j the tenements, hereditaments,and appurtenances ther.eunt<> belonging, and alLoftheestate,right, title, and interest, legalandeql:litable, of the said company, and its successors iUidassigns therein, together with the corpol:'8tefranchises andprivilell;es of,saidcompany at,any time granted or itotiegrnnted by the state of Lo:ni&iana relative to the construction" operation, and use of said railroad within said state." The general law of Louisiana is simple and well settled. "Mortgages afe strictly construed, and wm not be extended by implication." Succession oj De Arma8, 3 Rob. (La.) 342. "To render a conventional mortgage raHd, it.is t1)at t4e act it shall state precisely the :sitUlltionof'each Of 1'lnHmmovables,' mortgage is Rev 3306. H" A mortgage his whole present property, or only a specific partj but in either case it e;xpressly eljumerated', as i,ssaidin the article." ld. arl,J3307, "Fl,ltuie property cap,.never be of conven. .11 Theconyenti?nal"Rt0rtg.age, when onc/3"estij)lisl1edon ail :Wlmpyable, incl.lldes all the which til; r<i,·al't.' 3810. In State v.'Railwa.y 3 !tOt!>. (L'a.i): Qf.Lol,lisiana !laid" "It.1,s clear th,at future property can never be the subject of conventional mortgage," and declaredthat a railway mor.tgll.ge!couldDot eXIst, or be iria.'de in.derogation of the general hypothecary system of theOivil Code; wit1'loutsllecialleg1slative authority. Section 2396· 'of :theRevisediStatutes, of :1870 provides that "for the construction or repairs of any. railroad" the "maY: secured by mortgage uvon franchises, "'of'th&com pany. 'Section 2427 provides that "any railroad' ctlmf>atlyi established !untIer thelliws of this !state may, to' secure the .any ()bligMi'6'l\ contracted"by' said' .company for the constrUction of'the'load, mdrtgngei theil'[email protected]·iowholeandln'partj'lindsuch mortgage, i/ made of entire"roBlljshttll benr upb'n the entire road, though the same be not ,. cOIIlpletedatthe.·tiOie· the mortgage· was made; Ilnd 'such mortgage may also be to'bind the "liptmrteJiancesof said road,;ita: warehouses"depots,water stationsl'loCOn'iotives, etc/' In the Rdilroad: 84 Lar:ArnltJ. ,rr85, the';questlon' wa:s: considtb the power of a1raitlroad·.·compltnyto 1 .the: extent (l/'th6 ll1ortgage; granted jRnd HWlis1 there held 'rtibrtgageof fli)QW; its lands,·· property',· fFaticlHses, rights,' ai.Jdap.})brtena'nc6s, 'with the i 'oomprehehda ·'not. only the e8Be' fonning ·t>a¥t'ohhe brga:nislD- or'structural arra.ngenilm.ts, otHtm\machinery and i forille' ct?l1structidn;; o\' o:pera1i8ns"tlf1the 'i'J.nmx:;V'able;' bu t also such 8s'lJhaJ:I'be ol1tained tir:. added'il!luring the debt;" Frobt
art,.
..*.','" :
-these 'statutes 'anddecisi6ris of 'thecourt',: it seems cleat that' uildeithe 'geherallaw of Louisiana .the only·after"Rcquired property "()overed by. a railroad ,mortga,ge is .the after-acqtlireilproperty forming ':part 9£ the railroad,Qr, '}'lords, formingap,att ofthe raIlroad and Its appurteqances.The cha*r .qf the N"ew O!:leans, 'Baton Rouge & Vicksburg Railroad Company"a$ existing in 1868 and 1870, did not contemplateanylandgra.ntfrotn'thEl'United 8.tates,nor cOnfer any special authorltyto hold, otdenJ iwithsuehagtantj po",er to 'make a tirst, contains'119 reference to stich .!1 on seems tQ)xclude of any i,f thEiHeu of the ,modgage"as contained in: sections 14 ,'8.nd 16·0f,the Act of 1869, are as follows: Authority is given to "mortgage its ra.ilroads, itscClrporate fl'anqhiSEla, and any of its,realaJ;l.q :personal. property; or· or \I< ,' Said J.:>oods, ,gllie Ii' :priOJ; lien . only t;Q theex;t(lpt ,qf -t;lw,v,sand five hun4red ea9h 8\i:erymilEl' 9fithe line of within the state Qf all the riglit of way, road-bed eIlgin,es,oara, &nd and ,lStnte of Louisiana, :apPUl:tEmant to, or, neces8&rifol>ltbe,operation of l!aid main line of railroad, owned by the of,saidmongaged>r: Illay Pe. a:cqlliredQY on .0£ jana· toJhe ,of milroad. wi of; l}:.oJ;lisiaQa.. ;B.y ! va,riO,us " second mortgagebpn4s!l:re, ,be by the statp.j/ind, and tll:e An !pis/view, it is obvious )ieJ;l were restrictlld. ;l;;.,Cond was the ,statejand,aB a matter. of agreement and public, the ,was nqt only limited .in amount, but .i1$ lien wail to the;pr,cwi. erty qflscribed. It appears thp.t oJj;!'lr the gptnting of fn was.ma,de,:in Louisiana was .paslleq., I
r,
cept and deal with it, providing for the giving up of the scheme tp,a second mortgage bonds guarantied by the state under the act of 1869, and authorizing first mortgli:ge bOnds at the rate of $30,000 per mile, to be a first lien and privilege on the real and personal property of said comby It therepany, fore seems clear that there was no specific legislative authority anterior to the mortgaglf of 1870,'riorafterwardg, by ratifying legislation, for the New Orleans, Baton Rouge &, Vicksburg Qompfl:ny,it;l187()., tp mortgage after-acquired.Jandnotappurte,nallt to the railroad... 'the act be. affected, ,the nial!l'l"hn&and branches of the road, COlltmues all : ." the tight of Way" all
or ac;-
:'7:20
vol. 41.
real ahd:personal estate withhi the state of Louisiana owned by the !laid company at the date of this mortgage. or which may be acquired by It thereafter, appurtenant to, or necessary for ,the operation of, said main line of said railroad, said branchesC9nnllcted with the said main line, or to 'be c()nneJted there}Vlth: also, ,all other property, real and personal, of every kind and description whatsoever, and wheresoever situated, in the stateof Louisiana,wblchiisnow owned, OJ' whIch shall hereafter be acquired, by the said company, and' iVhich shall be ,appurtenant tO,or necessary or used for the operation of,SllidmlJ,in line l;lf rai'lroad, or any part of said branches; also, the tenements, bereditanH1nts, thereunto belonging, and all of the estate, right, title, and and eqllit.able, of the said companyand Its successors and aSSigns therem, t'Qgether wIth the corporate franchises and privileges of said company at any time granted, or to be granted, by thestllte of Louisiana,relatlve to the construction, operatIon, and use of said railroad Within ,said state!' This description is very; full, and a cUrsory examination of it might Convey the idea that thereby the railroad company intended to mortgage all the property it had; or ever'should acquirej but a careful examination will showvery'pIBinly,thati,s.lthoughDlany words are used, really noth:ing was intended to be' mortgaged but'the railroad and its appurtenances then, owned,or -thereafter, to be acquired: "Together with the corporate !ranchisesand privileges of said company at ,any time granted,'or to begrl:\.tlted" by the state of Louisiana, relative to the -construction, opei'ation,and.use,ofsaid,railroad within said state!' I am satisfied thatiL land grant for the purpose of aiding in the constructionof fl railroad MI1n'6t be considered an appurtenant of said railroad, and that the langUage of thernortgage in question; carefully conisidered, wasn6t intended· to cover the after-acquired land grant. As the 'general law of 'dot authorize a mortgage of an after-acquired land grant, asthespeciaJ authority to mortgage granted to the New Orleans, Baton Rbuge & Vicksburg Railroad Company did not contemplate or aUthorize the mortgage of such after-acquired grant, and as "the language of the mortgage itself does not describe nor include any such :aftt;lt·acquired grant; it is clear to me that the mortgage in question in -this case does not and be made to affect, by way of lien or other-mse, the thereafter land grant of 1871.' It 'follows that the "complainant' should have a decree granting the relief prayed for in the
bill.
'
DENVER
& R; G;R. Co.
tI.UNlTED STATES TaUST
Co
(Circuit Court. B.D; New York,; 1IIaroh7,18\lO.)
"
