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St. Paul and Pacific Railroad Company v. Schurmeir

ERROR to the Supreme Court of Minnesota.

Schurmeir filed a bill in one of the inferior courts of Minnesota, to enjoin the St. Paul and Pacific Railroad Company from taking possession, and building its railroad upon, certain ground in the city of St. Paul, Minnesota, bordering on the Mississippi, and originally a fractional section of the public lands. The place was alleged, by Schurmeir, to be a public street and landing.

The railroad company justified their entry, as owner, in fee of the locus in quo. The issues between the parties were tried by a referee, who found both facts and law in favor of Schurmeir. The facts, so found, being undisputed, the case was removed, for decision on them, to the Supreme Court of the State. That court affirming the referee's judgment, the case was here for review.

The case-to understand which well, it is necessary to refer, in a preliminary way, to certain statutes of the United States governing the surveys and descriptions of public lands-was thus:

Certain statutes enact, that the public lands shall be subdivided into townships, sections, and quarter sections, and that these subdivisions shall be bounded by north and south and east and west lines, unless where this is rendered impracticable by meeting a navigable water-course, &c. The boundaries, and contents of the several sections and quarter sections, are to be ascertained in conformity to the following principles: 'The boundary line actually run, and marked in the surveys returned, shall be established as the proper boundary lines of the sections or subdivisions for which they were intended; and the length of such lines, as returned, shall be held and considered as the true length thereof; and the boundary lines which shall not have been actually run and marked as aforesaid, shall be ascertained by running straight lines from the established corners to the opposite corresponding corners; but, in those portions of the fractional townships where no such opposite corresponding corners have been, or can be fixed, the said boundary lines shall be ascertained by running from the established corners, due north and south or east and west lines (as the case may be), ''to the water-course,. . . or other external boundary of such fractional township''.'

There is apparently no law which requires what is hereafter spoken of, and called the 'meandering' of water-courses; but the acts of Congress, above referred to, do require the contents of each subdivision to be returned to, and a plat of the land surveyed, to be made by the surveyor-general; and this makes necessary an accurate survey of the meanderings of the water-course, where a water-course is the external boundary; the line showing the place of the water-course, and its sinuosities, courses, and distances, is called the 'meander-line.'

The original act of 17th May, 1796, providing for the sale of these lands, enacts, 'that all navigable rivers within the territory to be disposed of, shall be deemed to be, and remain public highways; and in all cases where the opposite banks of any stream, not navigable, shall belong to different persons, the stream and the bed thereof shall be common to both.'

The premises on which the railroad company sought to enter, were situated upon a fractional section, duly surveyed by the government surveyor, in October, 1847; the survey duly approved in March, 1848, and returned to the General Land Office. This fractional section was designated by this survey as lot 1, in section 5, township 28, north of range 22, west of the fourth principal meridian. It was represented by the plat thereof, as bounded on the north by the east and west sectional line, on the west by the north and south sectional line, and on the only other remaining side by the Mississippi River. It was this river that interposed and made this section a fractional one.

At the time of the survey, there was a parcel of land (called by the counsel on one side, a sand-bar, reef, or 'tow-head,' and by the counsel on the other, an island) lying along the shore of the river, about four feet lower than the main land of the fraction, and with a channel or slough between it and the main land. This depression was about 28 feet wide, and the bar or island, in its extreme width, was about 90 feet. Its extreme length was about 160 feet. The main body contained 9.28 acres; this parcel, 2.78 acres.

In high water this parcel of land outside was completely under water; in medium water it was exposed to view, and the water flowed through the depression; but, at very low water there was no flow of water through the depression. It lay in pools in the depression. Very low water-mark was thus the exterior part of the bar or island, and the landing-place for boats plying on the Mississippi had always been the south or river side of island.

In the government survey, no mention of, or reference to, this bar or island, was in any way made in the field-notes, plat, or map. The fractional parcel, as already said, was represented as lying immediately upon, and bounded by, the Mississippi River.

The surveyor, however, in meandering the course of the river along the fraction, ran the 'meander-lines' along the main land of the shore, and not along the southerly line of this bar or island, and thus did not include the space occupied by this depression, and bar or island, in his estimate of the quantity of land contained in the fraction. The fieldnotes showed that the line running 12.83 south, from corner sections 5 and 6, intersected the bank of the Mississippi River, and

that a meander-post was there set; also, that at a point 16.90 east of said section corner, the township line intersected the left bank of the Mississippi River, and that a meander-post was there also set. The meander-line was run, beginning at last-mentioned meander-post, 'thence up stream, south 61, west 6.50; south 54, west 6.00; south 46, west 5.00; south 40, west 3.96, to line of sections 5 and 6, at lower end of St. Paul.'

In March, 1849, the United States sold and conveyed the land to one Roberts; the patent describing the lot (along with another fractional section, styled No. 2, not connected with this case) as containing so many acres, 'according to the official plat of the survey;' a plat which, as already said, did not present the bar or island, in any way, nor the channel or slough between, but presented the river as the boundary; much as in the map on the page opposite (page 276).

In the same spring, Roberts surveyed, laid out, and platted the whole of this fractional parcel (including the bar or island, and intervening depression, in his plat, and as a part of the grant of his patent) into towns, blocks, lots, streets, &c., constituting a part of the town of St. Paul, and caused said plat to be duly recorded; an act which, by the laws of Wisconsin (at that time in force in Minnesota), operated to vest the fee simple of every donation or grant to the public, or any corporation or body politic, in it, for the uses therein named, and no other; and which declared, that 'land intended to be for streets, alleys, ways, commons, or other public use,. . . or for any addition thereto, shall be held in the corporate name, in trust, to and for the uses and purposes set forth, and expressed or intended.' Roberts subsequently sold to Schurmeir two lots, designated on the plan as lots Nos. 11 and 12, in block 29. All the space in front of this block, and between this block and the river, was designated as Landing; and as soon as St. Paul was organized into a city, it exercised municipal control over the space, established a grade, and caused the place to be more or less graded; maintaining it as a landing. Schurmeir's two lots, and the whole of the so-called 'landing,' were situated upon what had been the slough or channel.

In 1856, and after this depression had been filled, and the whole space between the lots and the river, including the depression, and the bar or island, had been graded by the city, and traces of both had been effaced, the space originally occupied by this bar or island, was surveyed by a government surveyor, and platted and mapped as 'Island No 11,' in said section 5.

By virtue of this survey, the railroad company claimed the title under a Congressional land grant of May 22, 1857.

The important question in the case was, therefore, this: By what exact line was the grant bounded on the river side? Was it—

1. By either the medium filum of the Mississippi, or the outside of the sand-bar or island? Or was it—

2. By the meander-lines run by the surveyor?

If by either of the former, the railroad company had no right.

If by the latter, Schurmeir had none.

A minor question was, whether-supposing Roberts to have owned the parcel originally-he had, or had not, under the statutes then in force in Minnesota, divested himself of such right by recording his town plot?

Mr. T. A. Hendricks, for the railroad company, plaintiff in error:

The land system of the United States was designed to provide, in advance, with mathematical precision, the ascertainment of boundaries. The purchaser takes by metes and bounds. These rules are settled, and accordingly the township line at the north, the section line at the west, and the meander-line on the remaining side-a line beginning and ending at posts, and running by courses, described between them-must constitute the boundary here. In no other way can the rules be conformed to. By the pretensions of the opposite counsel, the purchaser would pay for a little more than nine acres, and get but little less than twelve. The lines marked on the ground must thus control.

But, admit that the land comes to the bank edge. This is the most the other side can pretend; for the pretension of carrying the grant to the middle line of a vast river, is untenable in our country, even at common law, and plainly in the face of the statute of May 17, 1796, and other statutes. What, then, is the bank of a river? It is decided in Pennsylvania, to be 'the continuous margin, where vegetation ceases.' The shore is, on the other hand, decided to be 'the pebbly, sandy, or rocky space between that and low water-mark.' This island, when it was an island, and not bottom of the river, was four feet below the bank. When in the condition most favorable to the case of the other side, it was 'sandy space,' between very low water-mark and the bank; not bank, but shore.

In fact, however, it was not, rightly considered, even shore. In one condition of the river, it was river bottom; in another-the ordinary condition-an island in the river; and only in a third, and rare condition-'very low water'-did it approach even the character of shore.

We may add, that Roberts, by his dedication of the land for a landing, parted with his property, and that his grantee, Schurmeir, has no title in it, and cannot now restrain the railroad from entering on it.

Mr. Allis, contra:

1. The meander-lines are not boundaries. They are not even known to the laws or acts of Congress. The term 'meander' is simply used to designate certain lines, run by the surveyors, along the windings of water-courses, bounding fractions, for the purpose of ascertaining and returning the quantity of land in such fractions. There is no provision in the acts of Congress for meandering a water-course, or running any line along its bank. But the quantity of land in a fraction must be returned; hence, alone, the surveyor runs lines along the bank.

2. If the surveyor make an error in his return, as to the quantity of the land, or if the quantity is erroneously stated in the patent, this will not affect the grant. The grantee will take according to the boundaries of the land described.

3. Whether the grant extends to the medium filum of the river, is a point not in the least necessary to be considered; though we believe it does. Most of the authorities which would deny this proposition, concede that the riparian owner takes to low water-mark. That is all that we need maintain.

4. The record of the town-plot did not make a dedication of land intended for 'streets, alleys, ways, commons, or other public uses,' equivalent to a grant in fee, whatever it might do by a 'donation or grant' marked on the plot. Even if the plot did so make it, the town was bound to hold it for the purpose specified in this case a 'landing'-and Schurmeir, if interested as a citizen, might file his bill.

Mr. Justice CLIFFORD delivered the opinion of the court.


text: Talk:St. Paul and Pacific Railroad Company v. Schurmeir

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text:
St. Paul and Pacific Railroad Company v. Schurmeir/Opinion of the Court

Complainant alleged that he was the owner in fee, and in the actual possession of the real estate described in the bill of complaint, together with the stone warehouse thereon erected. As described, the premises are situated in the city of St. Paul, county of Ramsey, and State of Minnesota; and the allegation is, that the lot extends to, and adjoins the public street and levee which run along the left bank of the Mississippi River in front of that city; that the said street and levee constitute the public landing for all steamboats and other vessels bound to that port, and the place where all such vessels receive and discharge their freight and passengers; that the street, levee, and public landing, occupy the whole space between this lot and the bank of the river, in front of the same, and that he is the owner in fee of that whole space, subject to the public right to use and occupy the same as such street, levee, and public landing.

Based upon these preliminary allegations, the charge is, that the corporation respondents were then engaged, without his license or consent, in extending and constructing their railroad over and along the said public street, levee, and landing, in front of his premises, with the design and purpose of running their cars on the same for the transportation of freight and passengers; and the complainant alleged that the effect would be, if the design and purpose of the respondents should be carried out, that the said public street, levee, and landing, could not be occupied and used for the purposes for which they were constructed, and to which they were dedicated, and that his premises would be rendered useless and valueless.

Two defences were set up by the respondents in their answer.

First. They denied that the fee of the land described in the bill of complaint, as a public street and levee, or public landing, was ever in the complainant, or that he ever had any right, title, or interest in the land between his premises and the main channel of the river.

Secondly. They alleged that all the land between the premises of the complainant and the river in front, were part and parcel of the lands surveyed by the United States, and granted by the act of Congress of the 3d of March, 1857, to the Territory of Minnesota, and that they were the owners of the same in fee, as the grantees of the Territory and State, to aid in the construction of their railroad.

Defence of the other respondents is, that all the acts charged against them were performed by the direction and under the authority of the respondent corporation.

Prayer of the bill of complaint was, that the respondent might be restrained from extending and constructing their railroad over and along said public street, levee, or landing, and from obstructing and impeding the free use of the same by the public.

By consert of parties, it was subsequently ordered by the court, that the cause be referred to a sole referee, to hear and determine all the issues in the pleadings, and that he should report his determination to the court. Such a report was subsequently made by the referee, and the record shows that the court, in pursuance of the same, enjoined the respondents as prayed in the bill of complaint, and ordered, adjudged, and decreed that the respondents should remove from the street, levee, and landing in front of the complainant's premises, all tracks, trestleworks, embankments, buildings, and obstructions of every kind erected or constructed thereon by them for railroad purposes.

Appeal was taken by the respondents from the decree, as rendered in the District Court for that county, to the Supreme Court of the State, where the decree was in all things affirmed, and the respondents removed the cause into this court, by a writ of error, sued out under the twenty-fifth section of the Judiciary Act.

1. Express finding of the referee was, that the premises in question were included in that part of section five, township twenty-eight north, in range twenty-two west of the fourth principal meridian, which is situated on the north side of the centre line of the Mississippi River. He also found that the survey of that part of section five was made by the deputy surveyor, October 27, 1847; that the field-notes of the survey were duly communicated to the surveyor-general, and that the latter officer, on the 15th of March following, duly approved the survey as made by the deputy surveyor. Same report also shows that a plat of that part of section five was duly prepared and certified by the surveyor-general, on the same day, and that it was duly transmitted to the land office of the district where the land was situated. By that plat it appears that the land, as surveyed, consisted of two separate parcels, called lots 1 and 2, in the report of the referee, exhibited in the record. Lot 1, the tract in question, is situated in the northwest corner of the section, and contains the quantity of land described in the official survey and plat. Particular description of lot 2 is unnecessary, as it is not in controversy in this case.

Both of those lots were purchased by Lewis Roberts, and on the 24th of March, 1849, a patent, in due form of law, was issued to him, for the same, by the proper officers of the United States. Possessed of a full title to all the land described in the patent, the purchaser caused lot 1 to be surveyed and laid out into town blocks, lots, streets, &c., as a part of the town of St. Paul, and the finding of the referee is, that the plat, as recorded, describes the land as extending to the main channel of the river. Block 29, as exhibited on that plat, includes lots 11 and 12, described in the bill of complaint, and the report of the referee shows that they are a part of the triangular fraction of land situated in the northwest corner of section 5, as delineated on the official plat.

Claim of the complainant is to lots 11 and 12, in block 29, and the finding of the referee is, that he holds the same through certain mesne conveyances, from the original grantee under the patent.

Congress granted to the Territory of Minnesota, by the act of the 3d of March, 1857, for the purpose of aiding in the construction of certain railroads, every alternate section, designated by odd numbers, for six sections in width, on each side of the respective railroads therein mentioned, and their branches, and the respondents claim title to the premises described in the pleadings under that act of Congress, as the grantees of the State.

Title claimed by the complainant, being of prior date to that set up by the respondents, will be first examined, because, if it be sustained as including the premises in controversy, an examination of the title of the respondents will not be necessary.

Since the town of St. Paul was organized under her city charter, passed March 4, 1854, the city government has exercised municipal authority and control over the entire parcel of land lying between the main channel of the river and block twenty-nine, where the complainant's warehouse is situated. Claiming entire control over the premises, as a street, levee, or landing, the city authorities have established a grade for the same, and, long before any attempt was made by the respondents to controvert the title of the complainant, they had made large progress in the work of reducing the surface of the land to the established grade.

Appellants contend that the river is not a boundary in the official survey; that the tract, as surveyed, did not extend to the river, but that the survey stopped at the meander-posts and the described trees on the bank of the river. Accordingly, they insist that lot 1 did not extend to the river, but only to the points where the township and section lines intersect the left bank of the river, as shown by the meanderposts.

The finding of the referee also shows that the meander-line of lot 1 was run, in the official survey, along the left or north bank of a channel which then existed between that bank and a certain parcel of land in front of the same, afterwards designated as Island 11, but which was not mentioned in the field-notes of the official survey, nor delineated on the official plat.

Conceded fact is, that those field-notes constituted the foundation of the official plat, and that that plat was the only one in the local land office at the time the patent was issued under which the appellee claims. When the water in the river was at a medium height, there was a current in the channel, between what is called the island and the bank, where the meander-posts were located, but when the water was low, there was no current in that channel, and, when the water was very high in the river, the entire parcel of land, designated as the island, was completely inundated.

No mention is made of any such channel in the official survey, under which the patent was issued; but the deputy surveyor, under the instructions of the land office, on the 13th of March, 1856, made a new survey of the parcel of land lying between that channel and the main channel of the river, and the field-notes of the same were subsequently approved by the surveyor-general. Duplicates of that survey were communicated to the General Land Office, and the finding of the referee shows that the plat exhibits the true relation which that tract bears to lot 1 in that section. Prior to that survey, however, the city of St. Paul had filled the channel, and reclaimed the land at the west end of the same, and extended the grade of the street and levee, or landing, entirely across the island to the main channel of the river. Besides, the uncontradicted fact is, that the landing for boats and vessels, touching at that port, was always on the riverside of the island, and the finding of the referee shows that the front wall of the complainant's warehouse is not more than four feet north of the southerly line of the lot on which it is erected.

Surveyors were directed by the act of Congress of the 20th of May, 1785, to divide the territory, ceded by individual States, into townships of six miles square, by lines running due north and south, and others crossing these at right angles,. . . 'unless where the boundaries of the tracts purchased from the Indians rendered the same impracticable.'

Congress preserved the same system also in the act of the 18th of May, 1796, in respect to the survey and sale of the lands northwest of the Ohio River, but the latter act recognizes two other necessary exceptions to the general rule. Public lands therein described were required to be divided by north and south lines running according to the true meridian, and others crossing them by right angles, so as to form townships of six miles square, 'unless where the line of the late Indian purchase, or of the tracts of land heretofore surveyed or patented, or the course of navigable rivers, may render it impracticable.' By the ninth section of that act, it is provided that all navigable rivers within the territory mentioned in that act, should be deemed to be, and remain, public highways, and that, in all cases where the opposite banks of any stream, not navigable, shall belong to different persons, the stream and the bed thereof should become common to both.

Provision was made by the act of February 11, 1805, that townships should be 'subdivided into sections, by running straight lines from the mile corners, marked as therein required, to the opposite corresponding corners, and by marking on each of the said lines intermediate corners, as nearly as possible equidistant from the corners of the sections on the same.' Corners thus marked in the surveys, are to be regarded as the proper corners of sections, and the provision is, that the corners of half and quarter sections, not actually run and marked on the surveys, shall be placed, as nearly as possible, equidistant from the two corners standing on the same line. Boundary lines actually run and marked on the surveys returned, are made the proper boundary lines of the sections or subdivisions for which they were intended, and the second article of the second section provides, that the length of such lines, as returned, shall be held and considered as the true length thereof. Lines intended as boundaries, but which were not actually run and marked, must be ascertained by running straight lines from the established corners to the opposite corresponding corners; but where no such opposite corresponding corners have been, or can be fixed, the boundary lines are required to be ascertained by running from the established corners due north and south, or east and west, as the case may be, to the water-course, Indian boundary line, or other external boundary of such fractional township.

Express decision of the Supreme Court of the State was, that the river, in this case, and not the meander-line, is the west boundary of the lot, and in that conclusion of the State court we entirely concur.

Meander-lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser.

In preparing the official plat from the field-notes, the meander-line is represented as the border-line of the stream, and shows, to a demonstration, that the water-course, and not the meander-line, as actually run on the land, is the boundary.

Proprietors, bordering on streams not navigable, unless restricted by the terms of their grant, hold to the centre of the stream; but the better opinion is, that proprietors of lands bordering on navigable rivers, under titles derived from the United States, hold only to the stream, as the express provision is, that all such rivers shall be deemed to be, and remain public highways. Grants of land bounded on rivers above tide-water, says Chancellor Kent, carry the exclusive right and title of the grantee to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river, and the public, in cases where the river is navigable for boats and rafts, have an easement therein, or a right of passage, subject to the jus publicum, as a public highway.

The views of that commentator are, that it would require an express exception in the grant, or some clear and unequivocal declaration, or certain and immemorial usage, to limit the title of the riparian owner to the edge of the river, because, as the commentator insists, the stream, when used in a grant as a boundary, is used as an entirety to the centre of it, and he consequently holds that the fee passes to that extent. Decided cases of the highest authority, affirm that doctrine, and it must, doubtless, be deemed correct in most or all jurisdictions where the rules of the common law prevail, as understood in the parent country. Except in one or two States, those rules have been adopted in this country, as applied to rivers not navigable, when named in a grant or deed as a boundary to land. Substantially the same rules are adopted by Congress as applied to streams not navigable; but many acts of Congress have provided that all navigable rivers or streams in the territory of the United States, offered for sale, should be deemed to be, and remain public highways.

Irrespective of the acts of Congress, it should be remarked, that navigable waters, not affected by the ebb and flow of the tide, such as the great lakes, and the Mississippi River, were unknown to courts and jurists, when the rules of the common law were ordained; and even when the learned commentaries were written, to which reference is made, it was still the settled doctrine of this court, that the admiralty had no jurisdiction except where the tide ebbed and flowed.

Extended discussion of that topic, however, is unnecessary, as the court decides to place the decision, in this case, upon the several acts of Congress making provision for the survey and sale of the public lands bordering on public navigable rivers, and the legal construction of the patents issued under such official surveys. Such a reservation, in the acts of Congress, providing for the survey and sale of such lands, must have the same effect as it would be entitled to receive if it were incorporated into the patent, especially as there is nothing in the field-notes, or in the official plat or patent, inconsistent with that explicit reservation. Rivers were not regarded as navigable in the common law sense, unless the waters were affected by the ebb and flow of the tide, but it is quite clear that Congress did not employ the words navigable, and not navigable, in that sense, as usually understood in legal decisions. On the contrary, it is obvious that the words were employed without respect to the ebb and flow of the tide, as they were applied to territory situated far above tide-waters, and in which there were no salt-water streams.

Viewed in the light of these considerations, the court does not hesitate to decide, that Congress, in making a distinction between streams navigable and those not navigable, intended to provide that the common law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be, and remain public highways.

Although such riparian proprietors are limited to the stream, still they also have the same right to construct suitable landings and wharves, for the convenience of commerce and navigation, as is accorded riparian proprietors bordering on navigable waters affected by the ebb and flow of the tide.

Argument is scarcely necessary to show, in view of the definite regulations of Congress upon the subject of the survey and sale of the public lands, that the second survey of the space between block twenty-nine and the main channel of the river, cannot affect the title of the complainant as acquired from the United States under the antecedent official survey and sale.

Attempt is also made to justify the acts of the respondents, as grantees of the State, upon the ground, that the complainant, in dedicating the premises to the public as a street, levee, and landing, parted with all his title to the same, and that the entire title vested in fee in the State. Respondents rely for that purpose upon the statute of the Territory of Wisconsin, which was then in force in the Territory of Minnesota.

Suppose the construction of that provision, as assumed by the respondents, is correct, it is no defence to the suit, because it is nevertheless true, that the municipal corporation took the title in trust, impliedly, if not expressly, designated by the acts of the party in making the dedication. They could not, nor could the State, convey to the respondents any right to disregard the trust, or to appropriate the premises to any purpose which would render valueless the adjoining real estate of the complainant.

Considered in any point of view, our conclusion is, that the decree of the State court was correct; and the decision in this case also disposes of the appeal brought here by the same appellants, from a decree rendered by the Circuit Court of the United States for the District of Minnesota, in favor of George D. Humphreys and others, which was a bill in equity against the same respondent corporation. The appeal in that case depends substantially upon the same facts, and must be disposed of in the same way. Both decrees are

AFFIRMED.


text: Talk:St. Paul and Pacific Railroad Company v. Schurmeir/Opinion of the Court


text:
United States Code/Title 42/Chapter 85/Section 7604

§ 7604. Citizen suits CAA § 304

(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf—
 * (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation,
 * (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, or
 * (3) against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to nonattainment) or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties (except for actions under paragraph (2)). The district courts of the United States shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed, except that an action to compel agency action referred to in section 7607 (b) of this title which is unreasonably delayed may only be filed in a United States District Court within the circuit in which such action would be reviewable under section 7607 (b) of this title. In any such action for unreasonable delay, notice to the entities referred to in subsection (b)(1)(A) of this section shall be provided 180 days before commencing such action.

(b) Notice
No action may be commenced—
 * (1) under subsection (a)(1) of this section—
 * (A) prior to 60 days after the plaintiff has given notice of the violation
 * (i) to the Administrator,
 * (ii) to the State in which the violation occurs, and
 * (iii) to any alleged violator of the standard, limitation, or order, or
 * (B) if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any person may intervene as a matter of right.[1]
 * (2) under subsection (a)(2) of this section prior to 60 days after the plaintiff has given notice of such action to the Administrator,

except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of section 7412 (i)(3)(A) or (f)(4) of this title or an order issued by the Administrator pursuant to section 7413 (a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.

(c) Venue; intervention by Administrator; service of complaint; consent judgment

 * (1) Any action respecting a violation by a stationary source of an emission standard or limitation or an order respecting such standard or limitation may be brought only in the judicial district in which such source is located.
 * (2) In any action under this section, the Administrator, if not a party, may intervene as a matter of right at any time in the proceeding. A judgment in an action under this section to which the United States is not a party shall not, however, have any binding effect upon the United States.
 * (3) Whenever any action is brought under this section the plaintiff shall serve a copy of the complaint on the Attorney General of the United States and on the Administrator. No consent judgment shall be entered in an action brought under this section in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator during which time the Government may submit its comments on the proposed consent judgment to the court and parties or may intervene as a matter of right.

(d) Award of costs; security
The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.

(e) Nonrestriction of other rights
Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). Nothing in this section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or interstate authority from—
 * (1) bringing any enforcement action or obtaining any judicial remedy or sanction in any State or local court, or
 * (2) bringing any administrative enforcement action or obtaining any administrative remedy or sanction in any State or local administrative agency, department or instrumentality,

against the United States, any department, agency, or instrumentality thereof, or any officer, agent, or employee thereof under State or local law respecting control and abatement of air pollution. For provisions requiring compliance by the United States, departments, agencies, instrumentalities, officers, agents, and employees in the same manner as nongovernmental entities, see section 7418 of this title.

(f) “Emission standard or limitation under this chapter” defined
For purposes of this section, the term “emission standard or limitation under this chapter” means—
 * (1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard,
 * (2) a control or prohibition respecting a motor vehicle fuel or fuel additive, or
 * (3) any condition or requirement of a permit under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to nonattainment), section 7419 of this title (relating to primary nonferrous smelter orders), any condition or requirement under an applicable implementation plan relating to transportation control measures, air quality maintenance plans, vehicle inspection and maintenance programs or vapor recovery requirements, section 7545 (e) and (f) of this title (relating to fuels and fuel additives), section 7491 of this title (relating to visibility protection), any condition or requirement under subchapter VI of this chapter (relating to ozone protection), or any requirement under section 7411 or 7412 of this title (without regard to whether such requirement is expressed as an emission standard or otherwise); or
 * (4) any other standard, limitation, or schedule established under any permit issued pursuant to subchapter V of this chapter or under any applicable State implementation plan approved by the Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations.

which is in effect under this chapter (including a requirement applicable by reason of section 7418 of this title) or under an applicable implementation plan.

(g) Penalty fund

 * (1) Penalties received under subsection (a) of this section shall be deposited in a special fund in the United States Treasury for licensing and other services. Amounts in such fund are authorized to be appropriated and shall remain available until expended, for use by the Administrator to finance air compliance and enforcement activities. The Administrator shall annually report to the Congress about the sums deposited into the fund, the sources thereof, and the actual and proposed uses thereof.
 * (2) Notwithstanding paragraph (1) the court in any action under this subsection to apply civil penalties shall have discretion to order that such civil penalties, in lieu of being deposited in the fund referred to in paragraph (1), be used in beneficial mitigation projects which are consistent with this chapter and enhance the public health or the environment. The court shall obtain the view of the Administrator in exercising such discretion and selecting any such projects. The amount of any such payment in any such action shall not exceed $100,000.


text:
Mead v. Ballard

ERROR to the Circuit Court for Wisconsin.

Mead brought ejectment in the court below against Ballard to recover certain land which the ancestor of him (Mead) had conveyed for a full consideration, on the 7th September, 1847, to Amos Lawrence, of Boston, in fee. The deed contained the usual covenants of warranty, and also a clause expressed in these words:

'Said land being conveyed upon the express understanding and condition that the Lawrence Institute of Wisconsin, chartered by the legislature of said Territory, shall be permanently located upon said lands, and on failure of such location being made on or before the 7th day of September, 1848, and on repayment of the purchase-money without interest, the said land shall revert to and become the property of said grantors.'

On the 9th of August, 1848, the board of trustees of the Lawrence Institute passed a resolution locating the Institute on the land described in the deed. Contracts were made for the necessary buildings, which were commenced immediately, and they were finished and the institution in full operation by November, 1849. These buildings cost about $8000, but were burned down in the year 1857, and never rebuilt. It was also said that in 1853, a larger building, called the University, was erected on an adjoining tract.

In 1851, Lawrence sold to one Wright part of the tract which had been conveyed, as above stated, to him; and in 1853 Wright sold it to Ballard. Mead now, in 1865, being sole heir of the original grantor, and alleging that the facts constituted an infraction of the condition on which the land had been conveyed, made a tender, through an agent, to Lawrence, of the amount originally paid by Lawrence for the tract-depositing the money in Boston 'where he could get it at any time he chooses'-and brought this ejectment.

The jury, under charge of the court, that if the Institute was located on the tract on or before the 7th of September, 1848, and if the directors then proceeded to erect a building which was used by it in its business, the plaintiff could not claim a forfeiture, found for the defendant; and the case was brought here on exceptions by the plaintiff.

Mr. Palmer, for the plaintiff in error:

1. The conveyance made by Mead to Lawrence, was made upon a condition, a condition subsequent. As a consequence, the estate in the lands described therein, vested in Lawrence, on the execution and delivery of the deed, September 7, 1847, subject, however, to be defeated by the failure or neglect of the grantee to perform the conditions.

2. The estate was so defeated. There is no reason to doubt that the grantor (Mead) intended by the language of his deed 'permanently located'-to secure a fixed and continued location of the principal buildings of the Institute upon the lands conveyed. Nor could he have chosen words more apt to express his purpose.

The word 'permanent' is derived from the Latin per, an expression which in composition is an intensitive, and here means thoroughly, or completely; and the Latin manens, whose signification is 'remaining,' or 'lasting.' Permanent means, therefore, and is so defined by Noah Webster, 'continuing in the same state without any change that destroys the form or nature of the thing,'. . . 'with long continuance, durably, in a fixed state or place.' And permanently locating a building, means, both etymologically and within the plain meaning of this deed,-not choosing a spot for a building-such choice is implied in the acceptance of the lot-but permanently placing the building on that spot. Of what value to a founder's pride would it be to select the place and then abandon it? Such a location would be what the law calls 'illusory;' a mockery, and nothing else. The grantor associated his real estate, a symbol of perpetuity, with himself, and meant to identify his estate with a seat of learning, though it bore not his name. The trustees accept, in form, from him, that real estate, his gift, subject to an express condition; and when the gift is well passed to them, they pitch away the condition and retain the gift simply. If there is a condition in the case at all, it cannot be disposed of in this way.

The University was not permanently located; a temporary structure was erected in 1848, which was burned in 1857. The main building, or University proper, was commenced in 1853, on another tract. Such an abandonment of the premises conveyed as a site for the University, and a 'permanent' location of it upon the new tract, was a violation of this condition of the deed with respect to the permanency of the location.

3. The condition contained in the deed having been violated, the contingency arose in which the land conveyed 'reverted to and became the property of the grantor, on repayment of the purchase-money.' The plaintiff, sole heir at law of the grantor, caused the purchase-money to be tendered to Lawrence, and in a few months afterwards brought this action.

Mr. G. W. Lakin, contra:

1. The words hardly make a condition. The language of the deed being dicated by the grantor must be taken strictly against him, especially when the language is set up to destroy an estate granted. The technical language of a condition is, 'provided, however, that this conveyance is upon the condition,' &c. But—

2. The condition in the deed was and has been performed and fulfilled. The thing to be done was to locate the Lawrence Institute on the tract of land, on or before the 7th day of September, 1848. The word 'locate' is peculiarly an American word. On the meaning of any such word, Noah Webster is the highest authority. Now, to located, is defined by him, 'to designate or determine the place of.' It does not mean to erect and forever keep erected; which is its meaning as assumed by opposing counsel. The board of trustees did designate and determine the place of the Lawrence Institute. The purchaser could not be held to look beyond the fact of an actual location; certainly not beyond the fact of an actual erection of the Institute. He was not bound to look through all coming time to ascertain if the elements, legislation, or some convulsion of nature should extinguish and destroy it. The destruction of the main building in 1857, by fire, therefore, and its subsequent erection on the tract adjoining, could not work a forfeiture of the condition, or a reversion of the title to the plaintiff. At any rate, such an event could not affect the title of the defendant, who had purchased in good faith, and who had improved and occupied years before the event happened.

Mr. Justice MILLER delivered the opinion of the court.

title: Mead v. Ballard


text: Talk:Mead v. Ballard

title: Talk:Mead v. Ballard


text:
Mead v. Ballard/Opinion of the Court

The plaintiff, who sues as heir-at-law of the grantors, maintains that the condition contained in the deed from Mead to Lawrence, is a condition subsequent which has not been performed, and having tendered the money received by them, he now claims the right to recover the land.

It must be conceded that the language of the deed amounts to a condition subsequent, and as no point was made in the trial as to the sufficiency of the tender, the only question before us is whether the condition was performed.

That condition was, that a permanent location of the Institute on the land should be made between the date of the deed and the same day of the succeeding year. The location, then, whatever may have been its character, was something which could have been done and completed within one year. If it was done within that time the plaintiff's rights of reverter was gone. If it was not done within the year, he could refund the money and recover the land. His right, on whatever it depended, must have been complete on the 7th day of September, 1848, for within that time the condition was to be performed.

The thing to be done was the location of the Institute. Did this mean that all the buildings which the institution might ever need were to be built within that time, or did it mean that the officers of the institution were to determine, in good faith, the place where the buildings for its use should be erected? It is clear to us that the latter was the real meaning of the parties, and that when the trustees passed their resolution locating the building on the land, with the intention that it should be the permanent place of conducting the business of the corporation, they had permanently located the Institute within the true construction of the contract.

Counsel for the plaintiff attach to the word 'permanent,' in this connection, a meaning inconsistent with the obvious intent of the parties, that the condition was one which might be fully performed within a year. Such a construction is something more than a condition to locate. It is a covenant to build and rebuild; a covenant against removal at any time; a covenant to keep up an institution of learning on that land forever, or for a very indefinite time. This could not have been the intention of the parties.

We are of opinion that the testimony shows, in any view that can be taken of it, that the condition was fully complied with and performed, and with it passed all right of reversion to the grantor or his heirs.

The rulings of the Circuit Court to which exceptions were taken were in conformity to these views, and its.

JUDGMENT IS AFFIRMED.

title: Mead v. Ballard/Opinion of the Court


text: Talk:Mead v. Ballard/Opinion of the Court


text:
Page:The Confidence Man.djvu/231

the act of retiring, the cosmopolitan was met by a passenger, who. with the bluff abord of the West, thus addressed him, though a stranger.

"Queer 'coon, your friend. Had a little skrimmage with him myself. Rather entertaining old 'coon, if he wasn't so deuced analytical. Reminded me somehow of what I've heard about Colonel John Moredock, of Illinois, only your friend ain't quite so good a fellow at bottom, I should think."

It was in the semicircular porch of a cabin, opening a recess from the deck, lit by a zoned lamp swung overhead, and sending its light vertically down, like the sun at noon. Beneath the lamp stood the speaker, affording to any one disposed to it no unfavorable chance for scrutiny; but the glance now resting on him betrayed no such rudeness.

A man neither tall nor stout, neither short nor gaunt; but with a body fitted, as by measure, to the service of his mind. For the rest, one less favored perhaps in his features than his clothes; and of these the beauty may have been less in the fit than the cut; to say nothing of

title: Page:The Confidence Man.djvu/231


text:
Jacobs v. Baker

JACOBS filed a bill in the Circuit Court for Southern Ohio against Baker, seeking relief for the infringement of four separate patents, which had been granted to him, Jacobs, for improvements in the construction of prisons. The bill set forth the different patents.

The first, dated January 7th, 1859, was for an improvement in the construction of prisons, which the complainant set forth in his specification with very numerous plates and designs. The claim concluded thus: 'What I claim as my invention, and desire to secure by letters patent, is a secret passage, or guard-chamber, around the outside of an ironplate jail, and between said jail and a surrounding inclosure, constructed and arranged, substantially as described, for the purpose set forth.' [The purpose was to allow the keeper to oversee and overhear the prisoners, without their being conscious of his presence.]

The next patent was dated 20th December, 1859, and purported to be for an 'improvement in iron-plate jails.' The claim was for 'the improved iron walls for the same, consisting of the following parts, arranged and united as set forth, to wit: the entire wall plates (A) having their edges closely abutting, the joint plates (e) united to and uniting the plate A, by rivets (i), which have their riveted ends inwards, and countersunk to the depth of the thickness of the plate A, in the manner and for the purposes herein set forth.' This specification was also accompanied by numerous plates.

The third patent, dated 21st February, 1860, was for an 'improvement in joining plates of metal,' and was stated to be specially applicable to prisons. The claim was for 'the construction of the joint, made by means of the closely abutting plates (A A), and the flat and semicy lindrical plates B B, and rivets (c), substantially in the manner and for the purpose set forth.' This, too, had numerous drawings.

The fourth patent, dated 24th July, 1860, was for an 'improvement in iron prisons.' The claim was for 'constructing and arranging plate-iron cells in jails, separately from each other, with vertical spaces (e), between the cells, upon the same level, and horizontal spaces, between cells, arranged one above another, substantially as and for the purpose described.' This was also profusely illustrated by drawings.

The bill, which averred that the complainant was the original and first inventor of all these improvements, and that the defendant was an infringer of his patents, asked that the defendant might answer the bill under oath, and be compelled to state how extensively, and where he had sold the improvements patented, and to describe his modes of construction, &c.

The defendant did answer on oath, denying that the improvements were original with the complainant or new, but averring that they had been long in use; and setting out various jails in different parts of the country where they had been used in 1855, 1857, 1858, &c., all before the date of the patents relied on.

A large amount of testimony was taken on both sides, upon which the court below, considering that the defendant had established his case, dismissed the bill with costs. The case was now here on an appeal by the patentee.

Mr. Fisher, for the appellant, assuming that the matters embraced by the patents were the proper subjects of patents within the Patent Acts, went into an elaborate examination of the testimony to show that the inventions were original with the patentee.

No opposing counsel.

Mr. Justice GRIER delivered the opinion of the court.

title: Jacobs v. Baker


text: Talk:Jacobs v. Baker

title: Talk:Jacobs v. Baker


text:
Page:Haiti- Her History and Her Detractors.djvu/46

38 learning; and their sons, sent to France at great sacrifice to themselves, had often more success at school than the children of the colonists. The wealth and knowledge they acquired made the "affranchis" feel they were the equals of the whites. Therefore they were highly indignant over the prerogatives the latter had assumed at their expense. They claimed the exercise of the political rights granted them by the Black Code. Circumstances placed them face to face with the colonists, who sought to check their ambition by humiliating them. Thus the liberal professions were closed to the "affranchis"; they were debarred from learning any kind of trade; they could not be silversmiths, for instance. In the army they could no longer become officers. At last they were even forbidden to go to France (1777); and were ordered to wear clothes of a material different from the whites. And yet those men upon whom the colonists heaped humiliation after humiliation were good soldiers. They were enlisted in both the militia and the horse-police (maréchausée); and they all understood the use of firearms. It was into the hands of such men that the colonists committed their safety. As a means of putting a stop to the ever-increasing colonial pride and haughtiness, the women, mulattresses and blacks alike, resorted to their native charms. Wives or concubines, they availed themselves of whatever influence they possessed to secure the freedom of the men of their race. Incensed by the preference shown to their colored sisters, the white women added the weight of their jealousy to the already existing causes of conflict. The slaves were in a pitiable plight. Not being considered as human beings, they were entirely without rights that a white man was bound to respect. They were treated and sold like cattle, with which their masters confounded them in the inventory of their estates. They were subjected to the most barbarous punishments. According to the Black Code all fugitives were punishable by death; it was lawful to mutilate them by


text:
Jacobs v. Baker/Opinion of the Court

The patent act of 1836 enumerated the discoveries or inventions for which patents shall be issued, and describes them as 'any new and useful art, machine, manufacture, or composition of matter.'

We have been at some loss to discover under which category to class the four patents which are the subjects of this bill. The complainant alleges that he has invented a new and useful improvement in the construction of jails. Now a jail can hardly come under the denomination of 'a machine;' nor, though made by hands, can it well be classed with 'manufactures;' nor, although compounded of matter, can it be termed a 'composition of matter,' in the meaning of the patent act. 'But if the subject-matter be neither a machine nor a manufacture, nor a composition of matter, then,' says an author on the subject of patents, 'it must be an art, for there can be no valid patent except it be for a thing made, or for the art or process of making a thing.' Now, without attempting to define the term 'art' with logical accuracy, we take as examples of it, some things which, in their concrete form, exhibit what we all concede to come within a correct definition, such as the art of printing, that of telegraphy, or that of photography. The art of tanning leather might also come within the category, because it requires various processes and manipulations. The difficulty still exists, however, under which category of the patent act an improvement in the construction of jails is to be classed, or whether under any.

The patent act of 1842 gives a copyright for 'new and original designs for manufacture, whether of metal or other material, for bust, statue, &c., or any new and original shape or configuration of any article of manufacture, to any inventor who shall desire to obtain an exclusive property, to make, use, and vend the same, or copies of the same.'

Now, although the complainant might contend (as one would suppose from the immense number of plans, designs, and drawings with which the record in the case has been incumbered) that his patent could be supported under this act, yet still the difficulty remains whether the erection of a jail can be treated as the infringement of a copyright.

But waiving all these difficulties as hypercritical, and assuming the correctness of the positions taken, that whatever is neither a machine, nor a manufacture, nor a composition of matter, must (ex necessitate) be 'an art;' that a jail is a thing 'made;' and that the patent is for the 'process of making it,' let us examine the case as presented by the bill and answer.

The bill relies upon four several patents which it sets forth. They are dated January 7th and 20th December, 1859; 21st February and 24th July, 1860. It would seem from the quick succession of these patents and before the plans for building jails which they severally suggested could well be put practically into operation, and before any inquiry was made as to how other persons constructed jails, that as a new idea came into the complainant's mind, he immediately proceeded to the Patent Office to get it patented.

It is not necessary to the decision of this case to examine whether all or any of the suggestions made by the complainant were proper subjects of patent. The bill presents a number of interrogatories to the defendant and requires him to answer them under oath. The answer of the defendant denies that the complainant was the original and first inventor of the several inventions claimed, or of any of them, and avers that the devices described in the complainant's patents were well known, and in use prior to the pretended invention of them by the complainant. And it enumerates many persons who had used the devices before the complainant. The record presents no question of law as to the construction of these patents. The only issues were of fact. It would be a tedious as well as an unprofitable task to attempt to vindicate the correctness of our decision of this case by quoting the testimony and examining the volume of plates annexed to it. The decision could never be a precedent in any other case. It is enough to say that we see no reason to doubt the correctness of the decision of the Circuit Court on the issues made, or the pleadings.

DECREE AFFIRMED.

title: Jacobs v. Baker/Opinion of the Court


text: Talk:Jacobs v. Baker/Opinion of the Court


text:
Drury v. Cross

APPEAL from the Circuit Court for Wisconsin.

The case was this: Bailey & Co., of Liverpool, England, held notes against the Milwaukee and Superior Railroad Company, indorsed by four of its directors, for about $21,000 (the price of iron furnished to lay the road), and as collateral security for payment, $42,000 in mortgage bonds of the road. Two hundred and eighty thousand dollars in similar bonds, but which had never been issued, were sealed up and deposited with M. K. Jesup & Co., not to be issued until the debt to Bailey & Co. was paid, and twenty-seven miles of the road were built. The company was managed by a board of seven directors; of whom four made a quorum.

The company having made about five miles of the road, became thoroughly insolvent, and abandoned their enterprise. Bailey & Co. being unpaid, and not being willing to trust to and proceed on their mortgage, brought actions against the four directors on their indorsement. These, desirous to throw the debt on the company, where it belonged, procured, at their own expense and risk, a suit to be commenced to foreclose the mortgage, so that they could make their debt out of the collaterals in their hands. In this suit certain bonds issued to the city of Milwaukee, and the $42,000 of bonds held by Bailey & Co., were spoken of; but no mention was made of the $280,000 of bonds deposited with Jesup & Co., and no relief asked in relation to them. On the 19th of March, 1859, the bill was taken as confessed, decree rendered, and the case referred to the master to compute and report the amount that was due.

Prior to the decree, in consequence of negotiations between the directors and Cross, Luddington & Scott (Cross & Co.), an arrangement was made by which these persons were to purchase the claim of Bailey, and protect the directors from their indorsement. The directors, on their part, were to aid Cross & Co. to acquire the entire property of the road.

In furtherance of this plan, the $280,000 of bonds in the hands of Jesup & Co. were delivered, by resolution of the board of directors, to Bailey & Co., as additional security for their claim. Bailey & Co. did not ask for further security, and refused, at first, to receive these bonds, and, in fact, did not receive them until they had sold their claim, with their collaterals, to Cross & Co. This was after the decree in the foreclosure suit. Cross & Co. having thus got possession of $322,000 in bonds, transferred by Bailey & Co., as collaterals, in order, as they said, to become the absolute owners of them, sold them, with consent of the railroad corporation, at the Exchange in Milwaukee, on five days' notice; bought them for a small sum of money; produced them before the master, who allowed them as a lien on the road, and the final decree in the foreclosure suit was rendered upon the said $322,000 bonds, and no others.

The sum paid by Cross & Co. to Bailey & Co., for all the judgments obtained, was $13,380.20.

Under the decree of foreclosure, the entire railroad, its franchises, rolling stock (two locomotives and tenders, with ten platform cars) and fixtures, were sold, in August, 1859, to Cross & Co., for $20,100. The iron tracks, which were now torn up, some evidence showed had been sold for $22,500. The locomotives (little used) had cost $18,000; the cars about $5000. The company, it was said, had paid between $15,000 and $20,000 for their right of way. There were also railroad chairs, spikes, ties, some fences, &c.; the value not being exactly shown.

In this state of things, Drury & Page, having obtained judgment for $21,634 against the railroad company for locomotives sold to it, filed a bill in chancery in the court below against the company, Cross and his co-purchasers, alleging that the sale was fraudulent, and seeking to reach the franchises and property of the company sold to Cross & Co. under the decree of foreclosure. The court below dismissed the bill as to Cross and his co-purchasers; and from this decree of dismissal the present appeal came.

Mr. M. H. Carpenter, for the appellants, contended, that it was plain that the directors had agreed to sacrifice, and did sacrifice, the entire property of the company, which it was their duty as trustees to protect, to secure the personal advantage of discharge from their indorsements. That the case was the same in principle as James v. Railroad Company, in which the court, setting aside a sale, animadverted with severity on the conduct of the parties concerned, and said that the notice of sale 'was calculated to destroy all competition among the bidders, and, indeed, to exclude from the purchase every one except those engaged in the perpetration of the fraud.' Upon this assumption the counsel argued that Cross and his co-purchasers should be charged with the full value of the property they received, and converted to their own use, fixed by him on the evidence (not very exact), at

$66,100.00

Less what they paid,............. 13,380.20

$52,719.80

Mr. Palmer, contra, argued that the complainants had not acquired any lien upon the property of the railroad company, or upon the bonds deposited with Jesup & Co., and that by making the transfer to Bailey & Co. of the $280,000 bonds which had been deposited with Jesup & Co., the directors had only given a preference to a meritorious creditor; a preference which it had been repeatedly determined by this court was lawful.

title: Drury v. Cross


text:
1911 Encyclopædia Britannica/Scheldt

SCHELDT (Fr. Escaut, Flem. Schelde), a river rising near Catelet in France, entering Belgium near Bleharies in Hainaut, and flowing past Tournai, Oudenarde, Ghent and Termonde till it reaches Antwerp. Some distance below Antwerp, in front of the island Beveland, where the river divides into two channels, respectively north and south of the island, both banks belong to Holland. Of the two channels named, the southern, which reaches the sea at Flushing, is the more important and is used for ocean commerce. The Scheldt has a length of 250 m., of which, by a skilful arrangement of locks, not less than 207 m. are navigable. The principal tributaries are the Lys and the Dender. By the treaty of Munster in 1648 the Dutch obtained the right to close the Scheldt to navigation, and they clung tenaciously to it for over two centuries. In 1839 on the final dissolution of the kingdom of the Netherlands, Holland gave definite form to this right by fixing the toll, and by obtaining the assent of the powers to the arrangement which fettered the trade of Antwerp. In 1863 after long negotiations Belgium bought up this right — each of the powers interested in the trade contributing its quota — and the navigation of the Scheldt was then declared free.

title: 1911 Encyclopædia Britannica/Scheldt


text: Talk:Drury v. Cross

title: Talk:Drury v. Cross


text:
Drury v. Cross/Opinion of the Court

Mr. Justice DAVIS delivered the opinion of the court.

The transaction which this case discloses cannot be sustained by a court of equity. The conduct of the directors of this railroad corporation was very discreditable, and without authority of law. It was their duty to administer the important matters committed to their charge, for the mutual benefit of all parties interested, and in securing an advantage to themselves, not common to the other creditors, they were guilty of a plain breach of trust. To be relieved from their indorsement, they were willing to sacrifice the whole property of the road. Bound to execute the responsible duties intrusted to their management, with absolute fidelity to both creditors and stockholders, they, nevertheless, acted with reckless disregard of the rights of creditors as meritorious as those whose paper they had indorsed. If Bailey & Co. had sold iron to build the road, so had the Boston association sold locomotives to run it. It is not easy to see why the corporation should exhaust its effects to pay one, and leave the other unpaid. But, it is said, the directors, being unable to pay both, had the right to choose between them. We do not deny that a debtor has a legal right to prefer one creditor over another, when the transaction is bon a fide; but this is, in no just sense, a case of preference between creditors. If the law permits the debtor, in failing circumstances, to make choice of the persons he will pay, it denies him the right, in doing it, to contrive that the unpreferred creditor shall never be paid. In other words, the law condemns any plan in the disposition of property which necessarily accomplishes a fraudulent result.

That the plan adopted by the directors of this railroad to dispose of its property to Cross & Co. was a fraudulent contrivance, and necessarily, if executed, accomplished a fraudulent result, is too plain for controversy. At the time this scheme was initiated, there were only five miles of track laid, the company hopelessly insolvent, and the enterprise abandoned. In this condition of things, the directors were sued on their indorsement, and, as was natural, manifested an anxiety to have the property of the company pay the debt for which they were liable. But Bailey & Co. preferred not to enforce their mortgage lien, and only consented to allow it to be done, on being indemnified against the risk and expense of the suit. The directors, in furnishing them this indemnity, in order to procure the enforcement of the mortgage lien to the extent of $42,000, which in their hands was a just debt against the company, were guilty of no wrong. But the departure from right conduct, on their part, commenced at this point. Notwithstanding they had the control of the foreclosure suit, they were not content to let it proceed to decree and sale without they were, in advance, relieved of personal responsibility. Bailey & Co. would not release them, and they endeavored to find some person who would purchase the Bailey claim, with its collaterals, and discharge them from liability on their notes. This would have been well enough, if the scheme had embraced only the $42,000 bonds held as collaterals, which the company justly owed, and the foreclosure suit was brought to enforce. But the scheme went much further; for these directors, who controlled the corporation, in their selfish desire to save themselves at the expense of their own reputation and the rights of creditors, were willing to use the means at their command to swell the indebtedness of the road beyond its true amount, in order to aid more effectually Cross and his associates to acquire all the property of the company.

If Cross & Co. had been satisfied with the transfer of the $42,000 bonds, which constituted the true indebtedness against the road, in the hands of Bailey & Co., the transaction on their part would have been free from censure; but the certain attainment of the object they had in view required more bonds. It was very clear that bidders might appear, if the road was to be sold for no more than the face of these bonds, while they would be deterred from attending a sale where the sum to be made was over $300,000. To bring the decree, therefore, up to a point at which competition would be silenced, it became necessary to use the bonds in the hands of Jesup & Co. Two hundred and eighty thousand dollars in the bonds of an insolvent corporation-constituting no indebtedness against it-are thrust, unasked, into the hands of creditors, for the ostensible purpose of furnishing them additional security, when, at the time, they were negotiating a sale of the debt to be secured for $7000 less than its face. But the transfer to Bailey & Co. was a mere pretence. To preserve a semblance of fairness in the business, the bonds had to come through Bailey & Co., but the real purpose was not to help them, but to aid Cross and his associates to absorb the whole road-and this these directors were willing to do-when the debt they were struggling to escape could be paid for $13,380.20, and the very iron in the road-bed, for which the debt was incurred, was worth over $20,000.

It is claimed that the sale at the Milwaukee Exchange, assented to by the corporation, conferred rights on the purchasers of the bonds which cannot be successfully attacked; but this claim is based on the idea that the sale was for an honest purpose, when, in fact, it was only part of a previously concerted plan to accomplish a fraudulent purpose, The ceremony of this sale was a cheap way of showing honesty and fairness, for it was very evident that an advertisement to sell a large amount of the bonds (having no market value) of an insolvent and abandoned railroad corporation would never attract the attention of capitalists.

The scheme to acquire the property of this corporation was, in its inception, fraudulent, and every step in the progress of its execution was necessarily stamped with the same character. There is nothing in this record to mitigate the conduct of the defendants, who purchased the Milwaukee and Superior Railroad. They knew the road was abandoned, the company insolvent, the complainants unpaid for property then in the possession of the corporation, and yet they combine with timid and unfaithful trustees to get not only this, but all the property of the corporation, and adopted a plan to carry out their project, which resulted in raising the decree to an extent that would necessarily prevent all fair competition. The fruits of such an adventure cannot be enjoyed by the parties concerned in it.

There are other features in this case which provoke comments, but we forbear to make them.

Cross, Luddington, and Scott purchased the entire railroad, locomotives, cars, and franchises of the company, for about $20,000. Subsequent to the sale, they stipped the road-bed of iron, ties, spikes, and chairs, which, with the locomotives, cars, and fencing, they sold to various parties, and realized from the sales a large sum of money; but how much, the evidence is so singularly loose that we are unable to tell. On account of the want of certainty on this point, the case will have to be sent back, and referred to a master to take proofs, who will also ascertain and report the value (if there by any) of the franchises of the company which Cross & Co. still retain.

Cross, Luddington, and Scott must be held liable as trustees to the complainants for the full value of the property they purchased on the sale of the road, after deducting the amount due at the day of sale on the Bailey judgments against the directors, which amount they will be allowed to retain.

They must also be charged with interest on the balance found due the complainants, from the day of the sale to the day of the final decree in this suit.

THE DECREE of the Circuit Court is REVERSED, and the cause remanded, with directions to proceed in CONFORMITY WITH THIS OPINION.

6 Wallace, 752.

See Tompkins v. Wheeler, 16 Peters, 106.

title: Drury v. Cross/Opinion of the Court


text: Talk:Drury v. Cross/Opinion of the Court


text:
Edmonson v. Bloomshire

APPEAL from the Circuit Court for the Southern District of Ohio; the case being thus:

The Judiciary Act provides that final decrees in a circuit court may be re-examined, reversed, or affirmed here 'upon a writ of error whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, and assignment of errors, and prayer for reversal, with a citation to the adverse party.'

If further enacts that 'writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be a feme covert &c., then within five years as aforesaid, exclusive of the time of such disability.'By an amendatory act, appeals in cases of equity are allowed 'subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.'

With these provisions of law in force, John Edmonson, Littleton Waddell and Elizabeth, his wife, filed a bill in 1854 in the court below, against Bloomshire and others, to compel a release of title to certain lands, and on the 16th July, 1859, the bill was finally dismissed. On the 26th May 'an appeal to the Supreme Court of the United States was allowed,' and the appellants ordered to give bond in $1000. No further step was taken in the case till November 14, 1865, when a petition was filed in the Circuit Court, reciting the decree, and the allowance (May 26, 1860) of the appeal, and setting forth the death of the plaintiff Edmonson, intestate, on the 30th June, 1862, leaving a part of the petitioners his only heirs-at-law; and that, on the 20th June, 1864, the plaintiff Elizabeth Waddell also died intestate, leaving the other petitioners her only heirs-at-law, and that the interest of said intestates had descended to said petitioners as their respective heirs-at-law; and further setting forth, that no appeal-bond had been given under said order allowing the appeal. The prayer of the petition was that the petitioners be allowed 'to become parties to the appeal, and to perfect the same by now entering into bond for the appeal.'

Thereupon, on the same 14th November, 1865, this entry was made by the court:

'WADDELL, EDMONSON et al.,

v.

BLOOMSHIRE et al.

426.-Petition to perfect appeal.

'And now come the said petitioners, and the court being satisfied that the facts set forth in said petition are true, and that the prayer thereof ought to be granted, do order that said petitioners [naming the heirs of Edmonson], be admitted as parties plaintiff, in the place of said John Edmonson, deceased; and that the said [naming the heirs of Mrs. Waddell], be admitted as parties plaintiff in the place of the said Elizabeth Waddell, deceased; and that said petitioners have leave to perfect said appeal so allowed at the June Term, 1859, of this court, by giving bond in the sum of $1000, as therein provided.'

An appeal-bond was accordingly filed with, and approved by, the clerk, November 22, 1865. A citation (duly served) was issued on the 8th December, 1865, reciting the allowance of an appeal at the October Term, 1865, of the court, and citing the appellees to appear 'at the next term of the Supreme Court, to be holden on the first Monday of December next.' The transcript was filed here by the appellants for the first time on the 3d of January, 1866.

The case having been fully argued on the merits by Messrs. Stanbery and Baldwin, for the appellants, and by Mr. J. W. Robinson, by brief, contra, it was suggested from the bench that doubts were entertained by it as to the jurisdiction of the court over the case; the ground of the doubt, as the reporter understood it, being, that while the record showed that the only appeal asked for or allowed, was that of May 26th, 1860, the transcript was not filed during the term next succeeding the allowance of the appeal, nor till January, 1866; and thus that while the appeal had been taken in time the record had not been filed here in time to save it.

Mr. Stanbery now spoke in support of the jurisdiction:

The objection to the regularity of the appeal, he contended, comes too late, and had not been made by counsel. The case had been pending in this court more than three years. It had been fully argued on the merits by both parties. No motion had at any time been made by the appellees to dismiss it for any irregularity. The practice he believed to have been uniform to require a motion to dismiss before the case proceeds to a hearing.

The appeal initiated in 1860 was not perfected until the order of November 14, 1865, when the bond was given. Till that last date there was, in fact, no appeal which required the transcript to be filed. When the appeal was allowed, all that remained to be done was to perfect the appeal so taken by giving bond and filing the transcript in this court, which might be done by order of court after expiration of five years. In The Dos Hermanos it is said:

'It appears that the appeal was prayed for within the five years, and was actually allowed by the court within that period. It is true that the security required by law was not given until after the lapse of the five years, and under such circumstances the court might have disallowed the appeal and refused the security. But, as the court accepted it, it must be considered as a sufficient compliance with the order of the court, and that it had relation back to the time of the allowance of the appeal.'

This is our case.

If this is not so, a new appeal may be regarded as having been taken by the proceeding of November, 1865. The citation recites them as being the allowance of an appeal.

If any doubt was entertained by the court as to the efficiency of the appeal, because more than five years elapsed after the decree before the appeal-bond was given and transcript filed in this court, it is to be observed that Mrs. Waddell, the party entitled to an appeal, was under coverture at the date of the decree, and at the time of her death, June 20, 1864. The appeal was saved as to her heirs. Moreover, her interest was so connected with that of her co-plaintiff, Edmonson, that it is also saved as to him or his heirs.

Mr. Justice MILLER delivered the opinion of the court.

title: Edmonson v. Bloomshire


text: Talk:Edmonson v. Bloomshire

title: Talk:Edmonson v. Bloomshire


text:
Edmonson v. Bloomshire/Opinion of the Court

In the cases of Villabolos v. United States, and United States v. Curry, decided at the December Term, 1847, and especially in the latter case, it was held, on full consideration, that whether a case was attempted to be brought to this court by writ of error, or appeal, the record must be filed before the end of the term next succeeding the issue of the writ or the allowance of the appeal, or the court had no jurisdiction of the case. This was repeated in the Steamer Virginia v. West, Mesa v. United States, and United States v. Gomez.

In Castro v. United States, the same question was raised. The importance of the case, together with other considerations, induced the court to consider the matter again at some length. Accordingly, the present Chief Justice delivered an opinion, in the course of which the former cases are considered and the ground of the rule distinctly stated.

Other cases followed that, and in Mussina v. Cavazos, decided at the last term, the whole doctrine is again reviewed, and the rule placed distinctly on the ground that this court has no jurisdiction of the case unless the transcript be filed during the term next succeeding the allowance of the appeal. The intelligible ground of this decision is, that the writ of error and the appeal are the foundations of our jurisdiction, without which we have no right to revise the action of the inferior court; that the writ of error, like all other common law writs, becomes functus officio unless some return is made to it during the term of court to which it is return able; that the act of 1803, which first allowed appeals to this court, declared that they should be subject to the same rules, regulations, and restrictions, as are prescribed in law, in writs of error. These principles have received the unanimous approval of this court, and have been acted upon in a large number of cases not reported, besides several reported cases not here mentioned. And the court has never hesitated to act on this rule whenever it has appeared from the record that the case came within it, although no motion to dismiss was made by either party. In fact, treating it as a matter involving the jurisdiction of the court, we cannot do otherwise.

In the case of United States v. Curry, Chief Justice Taney, answering the objection that the rule was extremely technical, replied, that nothing could be treated by this court as merely technical, and for that reason be disregarded, which was prescribed by Congress as the mode of exercising the court's appellate jurisdiction. We make the same observavation now, and add, that it is better, if the rule is deemed unwise or inconvenient, to resort to the legislature for its correction, than that the court should depart from its settled course of action for a quarter of a century.

We are of opinion that the present case falls within the principle of these decisions. The only appeal that this record shows to have been either asked for or allowed, was that of May 26, 1860. The transcript was not filed during the term next succeeding the allowance of this appeal, nor until January, 1866.

Two grounds are assigned as taking the case out of the rule we have stated.

1. It is said that the appeal of 1860 was not perfected until the bond was given under the order of November 14, 1865, and that until this was done there was in fact no appeal which required the transcript to be filed.

The answer to this is, that the prayer for the appeal, and the order allowing it, constituted a valid appeal. The bond was not essential to it. It could have been given here, and cases have been brought here where no bond was approved by the court below, and the court has permitted the appellant to give bond in this court. In the case of Seymour v. Freer, the Chief Justice says, that if, through mistake or accident, no bond or a defective bond had been filed, this court would not dismiss the appeal, but would permit a bond to be given here. And in all cases where the government is appellant, no bond is required. It is not, therefore, an indispensable part of an appeal that a bond should be filed; and the appeal in this case must be held as taken on the 26th day of May, 1860.

It is insisted that this view is in conflict with the case of The Dos Hermanos. We do not think so. While the argument of counsel on the merits in that case is fully reported, we have nothing from them on the motion to dismiss. The opinion of the court states that the question made was whether the appeal was in due time, and this is answered by saying, it was prayed and allowed within five years from the date of the decree. The appeal was, therefore, taken in due time. It is further said, that the fact that the bond was given after the expiration of the five years, did not vitiate the appeal. This is in full accord with what we have just stated. The bond may be given with effect at any time while the appeal is alive. There is no question made in the present case about the appeal being taken within time. It was taken in time. But the record was not filed in the court in time to save the appeal; and that question was not made or thought of in the Dos Hermanos case. It is perfectly consistent with all that we know of that case, and, indeed, probable, that, though the taking of the appeal was delayed until near the expiration of the five years, and filing the bond until after that period, the transcript was filed at the next term after the appeal was taken.

2. It is next insisted that a new appeal was taken by the proceedings of the 14th November, 1865.

This, however, is in direct contradiction of the record. The petition of appellants, after reciting the former decree and the order allowing the appeal of May 26, 1860, and the death of some of the plaintiffs in the suit, and that no appeal-bond had been given, concludes as follows: 'Your petitioners now appear, and pray your honors to allow them to become parties to said appeal, and to perfect the same by now entering into a bond for the appeal.' And the order made is, 'that said petitioners have leave to perfect said appeal, so allowed at the June Term, 1859, of this court, by giving bond, &c.' The only appeal referred to in the petition, or the order of the court, is the appeal allowed May, 1860, and no language is used in either which refers to a new appeal, or which is consistent with such an idea.

It is true that the citation speaks of the allowance of the appeal as obtained at the October Term, 1865, but this recital does not prove that an appeal was then allowed, when it stands unsupported by the record. Still less can it be permitted to contradict what the record states to have been done on that subject, at that time.

In the case of United States v. Curry, the same facts almost precisely were relied on as constituting a second appeal, that exist in this case, including the misrecital in the citation. But the court says, 'that after very carefully considering the order, no just construction of its language will authorize us to regard it as a second appeal. The citation, which afterwards issued in August, 1847, calls this order an appeal, and speaks of it as an appeal granted on the day it bears date. But this description in the citation cannot change the meaning of the language used in the order.' That is precisely the case before us, and we think the ruling a sound one.

The appeal must, for these reasons, be DISMISSED. But, we may add, that for anything we have been able to discover in this record, the appellants have the same right now, whatever that may be, to take a new appeal, that they had in November, 1865, when the unsuccessful effort was made to revive the first one.


text: Talk:Edmonson v. Bloomshire/Opinion of the Court


text:
Benbow v. Iowa City

ERROR to the Circuit Court for the District of Iowa.

Benbow recovered judgment on the coupons attached to certain bonds which Iowa City issued to pay its subscription to the stock of the Mississippi and Missouri Railroad Company, and having failed by the ordinary process at law to obtain satisfaction of his judgment, he applied to the Circuit Court for a mandamus to compel the mayor and aldermen, in obedience to the provisions of the ordinance authorizing the issue of these bonds, to levy and collect the requisite tax to pay the judgment.

The court awarded the writ, and commanded the mayor and aldermen forthwith to levy a specific tax upon the taxable property of the city, for the year 1865, sufficient to pay the judgment, interest, and costs; collect the tax and pay the same, or show cause to the contrary by the next term of the court.

The defendants made return to the writ, that 'in obedience to the order of the court, they did proceed to levy a tax of one per cent. upon the taxable property of the said city, for the purpose of paying the judgment named in the information, and other claims, and that the said tax is sufficient in amount to pay the said judgment and other claims for the payment of which it was levied.'

To this return the relator demurred as insufficient. The court overruled the demurrer and gave judgment accordingly; and the relator brought the case here.

It was submitted on the record and the brief of Mr. Grant, for the relator, plaintiff in error.

Mr. Justice DAVIS delivered the opinion of the court.

title: Benbow v. Iowa City


text: Talk:Benbow v. Iowa City

title: Talk:Benbow v. Iowa City


text:
Benbow v. Iowa City/Opinion of the Court

The sufficiency of the return is the sole question in the case. The return does not deny the obligation of the writ, nor offer an excuse for not obeying it, but states to the court that its command has been obeyed.

Is this true? The writ commanded that the taxes should not only be levied, but collected and paid to the relator, before the return day of the writ, yet, there is no averment of their collection and payment, nor an excuse furnished for non-performance. If it was impossible to collect and pay the taxes in the time allowed, the return should have stated facts from which the court could have inferred a legal excuse for not doing it. On this point the return is wholly silent.

But the defect in this return reaches much further. In so far as it avers performance, it does it only in the words of the writ, which, if nothing more were required, would put the defendants in place of the court. To make the return properly responsive to the writ, it was necessary to disclose the whole act constituting the levy, so as to enable the court to determine whether it was sufficient to pay the judgment of the relator.

How could the court decide on the sufficiency of the levy to accomplish the purpose of the writ, without knowing the value of the taxable property of the city? The court should not only have been advised of the amount on which the levy was formed, but as the writ commanded, the year in which the valuation was made. The return is also defective in another important point. The mandate was to levy a specific tax to pay the relator's judgment; the return is, that the tax was levied to pay the judgment and other claims. The nature and extent of these claims were not given, and the court had, therefore, no means of ascertaining whether the fund to be raised would be sufficient for their discharge, and the satisfaction of the relator's demand. But, apart from this, there was no authority to import outside claims into this levy.

The relator had been deprived of his annual interest, because these defendants had neglected to provide for it, as they were required to do by the ordinance which authorized the creation of the debt. To compel the performance of this omitted duty the mandamus was issued, and it did not empower the mayor and aldermen to embarrass the levy which it directed, by joining with it other obligations against the city, with which this relator had no concern.

Without pursuing the subject further, enough has been said to show that the demurrer to the return should have been sustained.

The judgment of the Circuit Court is REVERSED, and the cause remanded with directions to proceed

IN CONFORMITY WITH THIS OPINION.


text: Talk:Benbow v. Iowa City/Opinion of the Court