55 F. 569 -

CITY OF DETROIT V. DETROIT CITY RY. CO.

569

west of the Colorado river. Of course, the court cannot now know what the evidence may show in regard to that fact. If established as alleged by the defendants, it may be that it would result that the lands in controversy never vested in the Atlantic & Pacific Company, but did pass to the Southern Pacific Company under the grant to it; for, in the late opinion of the supreme court respecting these grants, (146 U. S. 606, 13 Sup. Ct. Rep. 160,) it is said:
"The question is asked, supposing the Atlantic & Pacific had ncvpr located its line we"t of the Colorado river, wculd not tlwse lands passell to tll(' Sonthern Pacific Company under its grant? Very likdy that may he so. The language of the Southern Pacific Company's grant is uroad enough to include all land along its line; and, if the grant to the Atlantic & Pacific Company had never taken effect, it may be that there is nothing which would interfere with the passage of the title to the Southern Pacific Company."

In view of the issues raised by the pleadings, and of the facts alleged by complainant and admitted by the defendants, that there are outstanding patents of the government purporting to convey to the defeL llHlt company large portions of the disputed premises, and that under and by virtue of those patents, and the grant from congress, the defendant company has, for value received, executed deeds of conveyance and contracts of sale to the individual defendants for a large part of such lands, under which such defendants possess and claim them in good faith, and for value paid therefor, I do not think an injunction should be awarded in advance of a hearing of the cause on the merits. The motion is accordingly denied.
CITY OF DETROIT v. DE'rROl'r CITY RY. CO. et aI. (Circuit Court, E. D. Michigan. March 16, 1893.)
:No. 3,320.

1.

EQUITY PRACTICE -MOTION

POSTPO:"fE HEAunw -

Sua' IN STATE COURT.

2.

Although federal courts follow the construction of the statutes amI constitution adopted by the courts of the state, yet when a suit in cquity in a federal court, involving the construction of the statute and constitution of the state, has been set for hearing, the court will not, on motion of a party, postpone the trial to await the decision uy the sunrellle court of the state of a suit pending before it, and said to involve tlw sallw question, if it is not clear that the point involved will be determined in the latter suit, and it is uncertain when it will come on for determination. IN Quo WAHUANTO. Nor will the be postponed on the motion of the complainant, a city, although it intends to invoke the aid of the state to test the question involved in a quo warranto pl'ocec'ding, when doubt exists whether the question can be raised and presented in that way.
SAMF,-DIS}IISSAL OF BILL WITHOUT PHE,iUIlICE.

3.

Although a complainant may usually, as of course. have his bill dismissed without prejudice on payment of costs, yet the rule does not apply where the dismissal would prejudice the defendant in some other way than by the mere prospect of future litigation, e. g. if the defendant has gone to the expense of a full preparation for hearing, and has 1ik'd a cross bill asking for affirmative relief.
OF CAUSE-PLEADINGS-ANSWE'R ASKI:"fG FOR AFFIIDIATIVE

4.

RELIEF.

If the chancery rules of a state court provide that it may give relief to a defendant setting up, by anSWer, the facts upon which his equity rests,

570

l'EDERAL REPORTER,vOl.

55.

to the same extent !that relief might have been had on a cross bill the,defendant need ,IWt, upon the rern,oval of a cause to federal , circuit court after such an answer has been filed, reframe his pleading to conforni to the federal equity rules, by filing a cross bill setting up the same facts, and praying for relief thereon.
5.

In 1863 street franchises for a term ending in 1893 were granted to it street-railway company. In 1879 the city cOlmcil passed an ordinance extending the franchises until 1909. In 1892 the COilllCil adopted an ordinance which repe81ed the ordinance of 1879. and declared all rights claimed thereunder to be void. The city then filed a bill in a state cOllrt agaiust the railwaycompany, alleging that the attempted extension of the franchise was unlawful, and praying that the right of the company to use the streets be declared ended after 1893. The railway company answered. alleging the validity of the extension, and praying that the ordinance of 1892 be declared void, and that the city be restrained from interfel'illJ: with the' opeJ:'.ltion of the railways. , It also appeared that the litigation prevented the sale of the company's bonds, and prevented it from making necessary expenditures in the improvement of the streets and of the motive power of its cars. '1'he mortgagee of the railways lllld franchises, a foreign trust company, was made a part' to the suit, and the cause was removed by it to the federal court. Mich. Chancery Rule No. 12B provides that a defendant may claim, by answer. the benefit of a cross bill, and that relief may be given on such answer as on a cross bill. Fleld, that the railway company was entitled to relief in the federal court on its answer as on a cross bill without reframingthe pleading; and that. after it had prepared for hearing, a motion by the complainant to dismiss the bill without prejudice must be denied, the effect of the motion being to defeat its prayer for reHef. .
SAME-DrsMrssAL-HElIOVAI, OF CAUsg IlY COHESl'ONDENT.

ON :MOTION In' CO\UPLAINANT.

6.

The railway company is Imtitled to oppose the complainant's motion to dismiss without prejudice, and to insist on the trial of the canse, although the trust company. its codefendant, by whom the cause W:1>-; remo"Ved, has filed ,no cross bill, and although the railway company has DO right to be in the federal circuit court except with the' trust company. The court cannot hold that the railway company will suffer no prejudice from the dismissal of tlle bill merely because the complainant intends to commence a proceeding in quo warranto. when it is not clear thai: tlli' question at issue CHn be presented in that proceeding, or that a judgment in the suit in equity would not be a bar to such proceeding.

7.

SAME-PHEJUDICE TO DEFEKDAK'r.

In Equity. Bill filed in the Gircuit court of 'Wayne county, Mich., by the City of Detroit against the Detroit City Railway Company, the Detroit Citizens' Street Railway Company, Sidney D. Miller, and WUliam K. Muir, trustees, and the Washington Trust Company of the City of New York. The Washington Trust Company of the City o"f York remoyed the cause to the federal circuit court, and a motion to remand was denied. ,54 Fed. Rep. 1. The complainant now moves to postpone the hearing on bill and answer, or, in the alternative, to dismiss the complaint. Motions denied John J. Speed, Charles A. Kent, and Benton Hanchett, for complainant. Ashby Pond, Frederick A. Baker, John C. Donnelly, Henry M. Duffield, otto Kirchner, and Henry 1\f. Campbell, for respondents. Before TAFT, Circuit Judge, and SWAN, District Judge.
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