text:
Marye v. Parsons/Opinion of the Court

The appellee, who was complainant below, a citizen of New York, filed his bill in equity, in the circuit court of the United States for the Eastern district of Virginia, against Mortion Marye, described as 'Auditor of the Commonwealth of Virginia;' Samuel C. Greenhow, treasurer of the city of Richmond; A. L. Hill, treasurer of the city of Norfolk, and V. G. Dunnington, treasurer of the city of Lynchburg; R. B. Munford, commissioner of revenue for the city of Richmond; Charles W. Price, for the city of Lynchburg, and Charles D. Langley, for the city of Norfolk; all citizens of Virginia.

The complainant avers in his bill that he is the owner of overdue coupons to the amount of $28,010, cut from bonds of the state of Virginia, issued under the act of March 30, 1871, which coupons are receivable, by the terms of that act, in payment, at and after maturity, for all taxes, debts, and demands due the state. A list of these coupons, described by the numbers and amounts of the bonds, is exhibited with the bill. He claims that these coupons constitute a contract with the state, by which it agreed to pay the amount of each to the holder at maturity; and, second, in case of default, that the holder should have the right to assign or transfer the same to any tax-payer or other debtor of the state, with the quality of being received for taxes and other demands due the state, and with the guaranty that the state would receive them specifically in payment pro tanto for any such taxes and demands, and that they should be accepted by any of her tax collectors from any of her tax-payers or debtors in discharge and payment of such taxes or other dues.

The defendants to the bill, it is alleged, are officers of the state, charged severally with the collection of certain taxes and license fees and other dues to the state; and it is charged that, in pursuance of certain statutes passed since the act of March 30, 1871, and the issue of the bonds and coupons under it, they are orbidden to receive these and similar coupons in payment of taxes and other dues to the state, which statutes, it is averred, impair the obligation of the contract between the state and the holder of its coupons, and are accordingly in violation of the constitution of the United States, and are null and void; but that, nevertheless, the defendants, as officers of the state, as is publicy known, habitually refuse to accept coupons when tendered by tax-payers, in payment of taxes and other dues to the state, with the collection of which they are severally charged, and the general assembly of Virginia has also passed statutes repealing all laws which provided any remedy for the enforcement of the right to have them so received. The bill then proceeds as follows:

'And your petitioner furthermore shows that confiding in his right to a specific performance of said contract, and in his title to equitable relief, should the same be denied, he hath made arrangements with sundry tax-payers of Virginia to use his above coupons in payment of their taxes and license taxes, now due, by which arrangement, if the said coupons can be used without delay or difficulty, he will receive nearly par therefor, and thus be able to have his coupons collected. But, unless they are so accepted in payment when tendered, the said tax-payers will not use them at all, because they are compelled to pay their taxes forthwith under heavy penalties, and to obtain their licenses immediately, or cease from business, so that, if the collectors of these taxes continue to refuse to accept these coupons, and so render necessary an appeal to the courts, and a separate action by each tax-payer upon each tender, such refusal will be tantamount to an utter destruction of the rights of your petitioner, because delays will thus occur which the tax-payers cannot submit to for the above-named reasons and others, and thus your petitioner will be deprived of the benefit of the arrangements he has made, as well as of all opportunity of having his coupons so used at any time save in small amounts and at rare intervals.'

The prayer for relief is as follows: 'In tender consideration whereof, and inasmuch as your petitioner is without adequate relief save in a court of equity, wherein such matters are properly cognizable, and inasmuch as he will suffer great and irreparable loss and damage, exceeding $500 in amount, unless relief is afforded him immediately, and the above-named officers are required to perform specifically the contract aforesaid, and receive his said coupons in payment of all or any of the dues and taxes above-named immediately upon their being tendered therefor by any tax-payer or applicant for a license, and to avoid a multiplicity of suits and prevent an obstruction of justice, he prays that Mortion Marye, auditor of Virginia, Samuel C. Greenhow, A. L. Hill, and V. G. Dunnington, treasurers of the cities of Richmond, Norfolk, and Lynchburg, respectively, and R. B. Munford, Charles D. Langley, and Charles W. Price, commissioners of the revenue for said cities, respectively, be made parties defendant hereto, with apt words to charge them, and may be required on oath to answer fully the allegations hereof. And that the said defendants, their assistants, clerks, and agents, be required and compelled to specifically perform the said coupon contract according to its legal tenor and effect, and to accept your orator's said coupons, or any of them, from any tax-payer presenting them or any of them in payment of his taxes, license taxes, or other dues, and to receipt therefor, or certify the payment and deposit thereof, in cases of applications for license, in precisely the same form and with precisely the same force and effect as they would do if said tender, payment, or deposit were made in money. And that your honors will decree said coupons to be genuine, legal coupons, legally receivable for all taxes, debts, and demands due the state of Virginia, and especially for all license taxes or assessments by whatever name the same may be called. And to the end that your orator may have full relief in the premises, he also prays that a preliminary restraining order and injunction may be issued without delay, enjoining and restraining the said defendants, their assistants, clerks, and agents, adn each and every one of them, from refusing to accept any of the coupons named in the Exhibit A herewith, in full payment pro tanto of the taxes, license taxes, or other dues, due by any tax-payer to the state, who may tender the same in payment thereof, and enjoining and restraining them from refusing to execute and deliver forthwith to such tax-payer his tax-bill, duly receipted, or to an applicant for a license a certificate that the amount of coupons tendered by such applicant has been deposited with him in payment of the tax or deposit required or assessed for said license, and from refusing, immediately upon the presentation of such certificate, to grant and issue the license applied for to such applicant, all in the same manner, and to have precisely the same force and effect as if said payments were made in coin or currency.'

There is also a prayer for general relief. There was a final decree on bill, answer, replication, and proofs, granting the injunction as prayed for, and the defendants appealed. This bill is without precedent, and should have been dismissed. It is a clear case, as stated, of damnum absque injuria. So far as the contract with the complainant was, that the state should pay to him his coupons at maturity, there is, no doubt, a breach; but he asks no relief as to that, for there is no remedy by suit to compel the state to pay its debts. So far as the contract was to receive the coupons of the complainant in payment of taxes and other dues to the state, there is no breach, for he does not allege that any of them have been tendered by any tax-payer or debtor to the state in payment of taxes or other dues; nor that there has been a refusal on the part of any tax collector, or other officer of the state charged with the collection and receipt of taxes and dues to the state, to receive them in payment therefor. Personally the complainant has no right to offer them for such purpose, for he owes no taxes or other debt to the state. There is nothing shown in the bill by which he is prevented from transferring them to others who would have the legal right to use them in that way, except that, being discredited for such uses by the previous refusals of the officers of the state to receive other but similar coupons, the complainant can find on one willing to purchase them from him at a reasonable price for such purposes. This damage is not actionable, because it is not a direct and legal consequence of a breach of the contract, and is not distinguishable from the damage any creditor might suffer from the known inability or unwillingness of his debtors to perform their obligations. Such discredit might, and often does, result in the bankruptcy and financial ruin of the creditor, but no action lies to recover damages for the consequential loss, which the law does not connect with the default, as cause and effect. To enable the complainant to avail himself of the benefit of his contract with the state, to receive his coupons in payment of taxes, he must first assign them to some one who has taxes to pay, as he has not; but when he does so, by the assignment, he has lost his interest in the contract and his right to demand its performance, all right to which he has transferred with the coupons. It is only when in the hands of tax-payers or other debtors that the coupons are receivable in payment of taxes and debts dut to the state.

The bill as framed, therefore, calls for a declaration of an abstract character, that the contract set out requiring coupons to be received in payment of taxes and debts due to the state is valid; that the statutes of the general assembly of Virginia impairing its obligations are contrary to the constitution of the United § ates, and therefore void; and that it is the legal duty of the collecting officers of the state to receive them when offered in payment of such taxes and debts. But no court sits to determine questions of law in thest. There must be a litigation upon actual transactions between real parties, growing out of a controversy affecting legal or equitable rights as to person or property. All questions of law arising in such cases are judicially determinable. The present is not a case of that description.

The decree of the circuit court is accordingly reversed, and the cause is remanded, with directions to dismiss the bill; and it is so ordered.

title: Marye v. Parsons/Opinion of the Court


text: Talk:Marye v. Parsons/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Moore v. Greenhow

''Wm. L. Royall, D. H. Chamberlain, Wm. M. Evarts, and Wager Swayne'', for plaintiff in error.

A. H. Garland, R. T. Merrick, and F. S. Blair, Atty. Gen., for defendant in error.

MATTHEWS, J.

title: Moore v. Greenhow


text: Talk:Moore v. Greenhow

title: Talk:Moore v. Greenhow


text:
Moore v. Greenhow/Opinion of the Court

The plaintiff in error filed his petition on April 26, 1884, in the circuit court of the city of Richmond, against Greenhow, the defendant, as treasurer of the city of Richmond, praying for a rule nisi, commanding the said Greenhow to show cause why a peremptory mandamus should not be awarded to the plaintiff, commanding the said treasurer to issue to the petitioner a certificate in writing, stating that he had made the deposit required by law in payment of his license tax, was a sample merchant in said city. The petition set forth that the tender made in payment of this deposit consisted of coupons cut from bonds issued by the state of Virginia, and, by contract with the state therein declared, receivable in payment of all taxes, debts, demands, and dues to the state, and that the tender was refused by the treasurer, and a certificate of deposit withheld, because the 112th section of an act of the general assembly of Virginia, approved March 15, 1884, for the purpose of assessing taxes on persons, property, and incomes and licenses, requires that all license taxes shall be paid in gold or silver coin, United States treasury notes, or national bank-notes, and not in coupons; and another act of the general assembly of the state, approved March 7, 1884, to regulate the granting of licenses, likewise forbids the payment of license taxes in coupons. The alternative writ prayed for was denied by the circuit court of the city of Richmond, and, on a petition for a writ of error, its judgment dismissing the petition therefor was affirmed by the supreme court of appeals of the state. This being a case in which, by mandamus, the plaintiff in error seeks to compel the officers of the state of Virginia specifically to receive coupons instead of money in payment of license taxes, it comes within the exact terms of the decision of a majority of this court in Antoni v. Greenhow, 107 U.S. 769, S.C.. 2 SUP. CT. REP. 91, according to which the plaintiff in error is remitted to the remedy provided by the act of January 14, 1882, entitled 'An act to prevent frauds upon the common wealth and the holders of her securities in the collection and disbursement of revenues.'

The judgment of the supreme court of appeals of Virginia is therefore affirmed.

FIELD and HARLAN, JJ., adhere to the views expressed in their dissenting opinions in Antoni v. Greenhow, but they agree that the principles announced by the majority in that case, if applied to the present case, require an affirmance of the judgment below.

title: Moore v. Greenhow/Opinion of the Court


text: Talk:Moore v. Greenhow/Opinion of the Court


text:
East Alabama Railway Company v. Doe Visscher

Edward Patterson and H. C. Semple, for plaintiff in error.

''Sam. F. Rice'', for defendants in error.

BLATCHFORD, J.


text: Talk:East Alabama Railway Company v. Doe Visscher


text:
East Alabama Railway Company v. Doe Visscher/Opinion of the Court

In November, 1880, the defendants in error brought an action of ejectment, in the circuit court of Chambers county, Alabama, against the East Alabama Railway Company, to recover premises described in the complaint as follows: 'A certain tract or parcel of land, being the railroad bed of the railroad, formerly known and called the 'East Alabama & Cincinnati Railroad,' from Lafayette to the county line of Lee county, together with all the land contiguous to said road-bed, on each side thereof, to the distance of 75 feet from the center thereof, said railroad being now known and called as the 'East Alabama Railway,' with the appurtenances, situate in the county of Chambers aforesaid.' Lafayette is in Chambers county, and Lee county lies south of Chambers. The suit was duly removed by the company into the circuit court of the United States for the Middle district of Alabama. It was tried before a jury, in December, 1881, on a suggestion that the company had been in adverse possession of the premises for more than three years before the bringing of the suit, and had made permanent and valuable improvements by building a railroad thereon; and on the plea of not guilty. The jury found for the plaintiffs 'for all the property described in the complaint,' and assessed their damages at $3,963.40, and there was a judgment accordingly. The company brings a writ of error.

The bill of exceptions sets forth all the evidence in the cause. The following are all the facts which it is needful to state: The Lafayette Branch Railroad Company was incorporated by the legislature of Alabama, February 7, 1848, to construct a railroad from Lafayette to intersect or connect with the Montgomery & West Point Railroad at some suitable point between Chehaw and West Point. By an amendatory act of April 9, 1854, the company was authorized to extend its road beyond Lafayette in the direction of the Tennessee river, and to connect the same with any railroad built, or being built, or to be built, so as to connect with some point on the Tennessee river. By an amendatory act of January 25, 1860, its name was changed to the Opelika & Oxford Railroad Company, and it was authorized to connect its road with the Alabama & Tennessee River Railroad at or near Oxford, Calhoun county. The companies were successively organized. In 1861 one Richards was elected president. The Opelika & Oxford Company acquired the right of way through the lands of all the proprietors of the soil, from a point on the Montgomery & West Point Railroad, about two miles northerly from Opelika, in Lee county, to Lafayette, by deeds from all the proprietors, (save in one case.) The deeds, except in the description of the land through which the road was to pass, were all in the form of the following one:

'MARY F. MCLEMORE TO OPELIKA & OXFORD R. R. CO.

'Alabama, Chambers County: This indenture, made this     thirty-first day of August, in the year of our Lord one      thousand eight hundred and sixty, between Mary McLemore, of      Chambers county, of the one part, and the Opelika & Oxford R.      R. Company, of the other part, witnesseth: That the said Mary      F.McLemore, for and in consideration of the sum of one dollar      to her in hand paid, at and before the sealing and delivery      of these presents, the receipt whereof is hereby      acknowledged, doth give, F. McLemore, for and in      consideration said railroad company, and their successors and      assigns, the right of was over which to pass at all times by      themselves, directors, officers, agents, hirelings, and      servants, in any manner they may think proper, and      particularly for the purpose of running, erecting, and establishing thereon a      railroad with requisite number of tracks; and to this end the      limit of said right of way shall extend in width fifty feet      on each side of the slope stake of the right of way of the      said railroad when completed, and to extend in length through      the whole tract of land owned and claimed by said Mary F.      McLemore, and known as the north half of section 23, township      22, of range 26, situated, lying, and being in Chambers      county, adjoining lands of James F. Dowdell, Evan G.      Richards, and Nolan J. Wright, and running in such direction      through said tract of land as the said Opelika & Oxford      Railroad Company, by their engineers, shall think best suited      for the purpose of locating and establishing their works; and      connected with the said right of way, the said company shall      have the right to cut down and remove all such trees,      underwood, and growth, and timber on each side of said road      as would, by falling on or striking the same, injure the      rails or other parts of said road, together with all and      singular the rights, members, and appurtenances to the said      strip, tract, or parcel of land being, belonging, or in      anywise appertaining, and, more especially, the right of way      over the same; to have and to hold the same unto the said      Opelika & Oxford R. R. Company, their successors and assigns,      to their own proper use, benefit, and behoof forever, in      fee-simple, upon condition, and it is expressly understood,      that should the said railroad contemplated as aforesaid be      not located and established on and along said strip, parcel,      or tract of land described in the above and foregoing      indenture, then said indenture is to be wholly null and void,      and of no effect; and the said Mary F. McLemore, her heirs      and assigns, will warrant and defend the title thereof unto      the Opelika & Oxford Railroad Company, their successors and      assigns, against the claims of all persons whatsoever. In     witness whereof, the said Mary F. McLemore hath hereunto set      her hand and seal the day and year first above written.

MARY F. McLEMORE.'

As to the excepted case, which related to a section of land, one mile square, in Chambers county, through which the roadbed sued for runs in that county, the company caused the same character of rights and right of way through that section of land, as was conveyed by the deeds referred to, to be condemned for its use under statute authority, and the sum assessed was finally paid to the owner. In 1860 the company employed engineers, who laid out and staked off the full right of way conveyed through all of the lands, and cut out the width through woods; and it made contracts with contractors for the grading and culverting of a railroad along the right of way, who built for it a great deal of such grading and culverting; and all the work done was done on the right of way thus staked out, but no other work was done on it except such culverting and grading, and this was not continuous through the whole line in Chambers county sued for, but there were several intervals where no work of grading and culverting was done; and the company was in the undisturbed possession of the whole of the right of way.

The company became embarrassed for want of means during the war, and ceased, before July, 1861, to do any work on the line, leaving it incomplete as to grading and culverting, and no work was done by it afterwards on the line. Richards, as late as 1863, removed, at a small expense to himself individually, some logs which had lodged in one of the culverts, to save the culvert and grading from injury, and he looked over the work from time to time. No meeting of the directors or stockholders was held after July, 1861, and no corporate act was done by either af er that date. The company was without means to prosecute the building of the road any further.

One Lockett and the firm of D. W. & J. G. Visscher were contractors, to whom the company was indebted for work on the line. Lockett recovered one judgment and the Visschers another against the company, October 26, 1866, in a court of the state, by service of process on Richards, as president; the former for $14,457.21, and the latter for $12,383.83. An execution was issued on each judgment to the sheriff of Chambers county, November 7, 1866, and levied on that day, according to the return on each writ, on a house and lot, and also on 'the right of way to the Opelika & Oxford Railroad, so far as the right of way has been obtained, and all the appurtenances belonging to said railroad company, from Lafayette to the edge of Lee county, and also the surveying instruments belonging to said company.' The plaintiff's attorney stopped proceedings on those executions on the twelfth of April, 1867. A second execution was issued on each judgment to said sheriff, May 8, 1867, and levied on that day, under the Lockett execution, according to the return thereon, on a house and lot, and also on 'the right of way to the Opelika & Oxford Railroad, so far as the right of way has been obtained, to the edge of Lee county, and also all the surveying instruments belonging to said company;' and under the other execution, according to the return thereon, on the same property, omitting the words 'the right of way has been obtained, to.' After a sale, the sheriff executed the following deed to the purchasers:

'This indenture, made and entered into this third day of     June, 1867, between R. J. Kellam, sheriff of the county of      Chambers, in the state of Alabama, of the one part, and D. W.      & J. G. Visscher and A. L. Woodward, of the other part,      witnesseth: That whereas, on the twenty-sixth day of October,      1866, a judgment was duly rendered in the circuit court for      the county of Chambers, in the state aforesaid, at the fall      term of the said court, for the sum of twelve thousand three      hundred and eighty-three dollars and costs, in favor of Abner      M. Lockett, and one in favor of D. W. & J. G. Visscher for      fourteen thousand four hundred and fifty-seven dollars and      twenty-one cents, and against the Opelika & Oxford Railroad      Company, on which said judgments there were issued by the      clerk of the circuit court for said county on the eighth day      of May, 1867, certain writs of fieri facias in favor of said      Abner M. Lockett and D. W. & J. G. Visscher, and against the      said railroad company, directed to any sheriff of the state      of Alabama, whereby such sheriff was directed to levy of the      estate, etc., of said railroad company, and make the said sum      of twenty-six thousand seven hundred and fifty-one 4-100      dollars, besides costs, and which said writ was, on the      eighth day of May, 1867, placed in the hands of the said R.      J. Kellam, as sheriff of said county of Chambers, for the purpose of its levy and execution; and whereas said      R. J. Kellam, as sheriff as aforesaid, after the said writ      had come into his hands, and while the same was in full      force, did, on the eighth day of May, 1867, levy the same on      the following tract of lot of land, as the property of the      said railroad company, to-wit, the right of way to Opelika &      Oxford Railroad Company, so far as the right of way has been      obtained, from Lafayette to the line of Lee county, and all      the appurtenance from Lafayette to the line of Lee county,      lying and being in said county of Chambers; and whereas, the      said R. J. Kellam, as sheriff as aforesaid, after having duly      advertised the said tract of land or railroad bed for sale in      the mode prescribed by law, did, in accordance with said      advertisement, on the third day of June, 1867, at the      court-house, in the town of Lafayette, proceed to sell the      same, under and by virtue of said writ of fieri facias, and      the said D. W. & J. G. Visscher and A. L. Woodward having bid      for the said land or railroad be, then and there selling as      aforesaid, the sum of five hundred dollars, and it being the      highest and best bid that could then and there be got for the      same, he, the said sheriff, did therefore sell and cry off      the tract of land or railroad bed to the said D. W. & J. G.      Visscher and A. L. Woodward. Now, therefore, in consideration     of the premises, the said party of the first part, as sheriff      of the said county of Chambers, has and does hereby bargain      and sell, alien and convey, unto said D. W. & J. G. Visscher      and A. L. Woodward, the said tract of land or railroad bed,      to-wit, the right to the Opelika & Oxford Railroad, so far as      the right of way has been obtained, from Lafayette to the      edge of Lee county, and all the appurtenances belonging to      said road from Lafayette to the line of Lee county, to have      and to hold the aforesaid premises and land, together with      all and singular [its] appurtenances thereunto belonging, to      the said Opelika & Oxford Railroad Company, and to their      heirs and assigns, forever. And said party of the first part,     as sheriff as aforesaid, does covenant with the said party of      the second part that he, as sheriff as aforesaid, will      warrant the title of said _____ to said party of the second      part so far only as he by virtue of his office is authorized      to do; but it is expressly understood that said R. J. Kellam,      sheriff, is in no event to be individually liable for      anything herein contained.

'In testimony whereof, the said party of the first part has     signed, sealed, and delivered this deed on the day it bears      date.

'ROBERT J. KELLAM,

'Sheriff of Chambers County, Alabama.'

After the sheriff's sale Richards abandoned or turned over to the purchasers the line of culverting or grading, as far as he could do so,-that is, he exercised no further authority over it, and the Opelika & Oxford Railroad Company made no further claim to it. On the sixth of April, 1870, D. W. & J. G. Visscher entered into a written contract with the Eufaula, Opelika, Oxford & Guntersville Railroad Company, which was signed on behalf of that company by one Pennington, as its president, and was recognized and acted on by it. Its name was afterwards changed to the East Alabama & Cincinnati Railroad Company. The two companies were one and the same corporation, chartered by Alabama to build a railroad from Eufaula to Guntersville via Opelika and Oxford. In the fall, before the contract was entered into, D. W. Visscher was invited by Pennington to see him as to whether Pennington's company could not arrange to purchase for its line Visscher's grading and right of way from said junction to Lafayette. Pennington told Visscher he could build by the side of Visscher's line, but would like to purchase it; and they agreed that the Visschers should go to work completing the grading, and that Pennington's company would furnish the means to pay for the work as it progressed. The work was begun, with the verbal understanding that the written contract should be executed, and it went on till that contract was executed, and then under the contract till the Visschers completed it to Lafayette, over the right of way or line described in the deeds therefor, and the company accepted it as done according to the contract, about May 3, 1871.

By the terms of the contract it was agreed that the Visschers should 'form, prepare, and finish the clearing and grubbing, grading, masonry, trestle-work, cattle-guards, road and farm crossings, track laying, including switches, frogs, and turn-outs, three warehouses, three water-tanks, with fixtures complete, including the furnishing of materials and all other things requisite and necessary to complete the road ready for the running of trains, except the iron materials which go into the superstructure of the road,' from Opelika, or two miles north thereof, as the company should elect and designate, for a distance of 20 miles, to a point beyond Lafayette. The contract specified the terms of compensation, and provided that on the completion of the 20 miles, and the payment of the amount of the contract, D. W. Visscher should trans fer to the company 'all right and title vested in him to all franchises, right of way, or other property belonging to, or pertaining to, the said road, under the old organization known as the Opelika & Oxford R. R.' The Visschers were not paid the full amount due to them for the work done under the contract, and claimed that there was due to them more than $100,000.

Under a decree of sale made in a suit for the foreclosure of a mortgage made by the East Alabama & Cincinnati Railroad Company, Edward Livingston and Richard Irvin, Jr., purchased, and received from the proper officer, on the nineteenth of April, 1880, a deed of the 'entire corporate property of, or belonging to, the East Alabama & Cincinnati Railroad Company, used for railway purposes, and all and singular the entire railroad of said company, extending from Eufaula, Alabama, to Guntersville, Alabama, being about two hundred and twenty miles in length, at present unfinished, its entire franchises and privileges, held and acquired, together with the right of way, road-bed, road, * *  * and all its ways and rights of way,' etc. The plaintiff in error became a corporation, under the laws of Alabama, on the twenty-eighth of may, 1880, and on the thirteenth of July, 1880, Livingston and Irvin conveyed to it the property so deeded to them, by the same description.

At the trial the plaintiffs offered in evidence transcripts of the proceedings as to the said judgments, executions, levies, sale, and sheriff's deed. The defendant objected to each of them 'as illegal and irrelevant evidence, and also because they tended to show the sale under execution and conveyance by the sheriff of an easement alone, not the subject of an ejectment.' The court overruled each of the objections, and allowed each of the transcripts to be read in evidence, and the defendant excepted separately to each of the rulings. After the close of the testimony the court charged the jury that if they believed from the evidence that the company before named entered into the written contract with the Visschers, and under that contract was let into the possession by them of the route described in the deeds from McLemore and others, and failed to perform its part of the contract, and the Visschers did perform it so far as permitted by the corporation to do so, and the corporation failed to make the full payments due to the Visschers under the contract, the corporation, and all persons claiming under it, were estopped from setting up any title in the premises sued for adverse to the Visschers, and their possession under the contract was not adverse. The court also charged the jury that the property conveyed by the deed of the sheriff was the subject of levy and sale under execution, and that the objection made by the defendant that it was only an easement, and not the subject of a levy and sale under execution, was not well founded. To each of these charges the defendant excepted. There were exceptions to other instructions, and to refusals to charge in accordance with requests made by the defendant; but the questions which we regard as decisive of the case are raised by those already mentioned.

The right which the Opelika & Oxford Company obtained under the deeds from McLemore and others (and the right obtained by condemnation is set forth as of the same character) was described in the deeds as 'the right of way over which to pass at all times, by themselves, directors, officers, agents, hirelings, and servants, in any manner they may think proper, and particularly for the purpose of running, erecting, and establishing thereon a railroad with requisite number of tracks;' and it was provided that, 'to this end, the limit of said right of way shall extend in width fifty feet on each side of the slope stake of the right of way of the said railroad when completed, and to extend in length through the whole tract of land owned and claimed' by the grantor, describing it, 'and running in such direction through said tract of land' as the company, by its engineers, should think best suited for the purpose of locating and establishing its works. The grantor conveyed this to the company, and its successors and assigns. The deed also provided that, 'connected with the said right of way the said company shall have the right to cut down and remove all such trees, underwood, and growth, and timber, on each side of said road, as would, by falling on or striking the same, injure the rails or other parts of said road, together with all and singular the rights, members, and appurtenances to the said strip, tract, or parcel of land being, belonging, or in anywise appertaining, and more especially the right of way over the same.' The habendum was to have and to hold the same to the company, its successors, and assigns, to its 'own proper use, benefit, and behoof forever, in fee-simple.' Then followed the further provision that, should the contemplated railroad not be located and established on and along the strip, parcel, or tract of land described in the deed, the deed should be wholly null and void, and of no effect.

The right granted was merely a right of way for a railroad. It was granted to an existing corporation, which had a franchise. The grant to the 'assigns' of the corporation cannot be construed as extending to any assigns except one who should be the assignee of its franchise to establish and run a railroad. Nor did the mention of rights, members, and appurtenances belonging and appertaining to the strip of land, or the use of the words 'forever, in feesimple,' enlarge what was otherwise or the use of the words 'forever, in fee-simple,' fee in the land was conveyed, nor any estate which was capable of being sold on execution on a judgment at law, or separate from the franchise to make and own and run a railroad. The corporation could not have made a voluntary conveyance of the right of way, severed from its franchise. What it acquired was merely an easement in the land, to enable it to discharge its function of making and maintaining a public highway, the fee of the soil remaining in the grantor. By the terms of the charter of the Lafayette Branch Company, it was given the power to purchase, hold, lease, sell, and convey real, personal, and mixed property, so far as should be necessary for the purposes mentioned in the act; namely, to construct and operate the specific railroad authorized therein, with power to 'lay and collect toll from all persons, property, merchandise, or other commodities transported thereon.' By the terms of its charter, therefore, in connection with the terms of the deeds of the right of way, that right was indissolubly linked to the franchise, and to the purpose of the existence of the corporation, and to its public functions, so long as they should exist. It would violate not only the expressed intention of the grantors in the deeds, but the manifest purpose of the legislature of Alabama, to permit a private person to seize and appropriate the right of way, by the purchase of anything at a judicial sale, apart from the franchise on which the right of way was dependent. The sheriff's deed purported to convey, in words, 'the said tract of land or railroad bed, to-wit, the right of the Opelika & Oxford Railroad, so far as the right of way has been obtained, from Lafayette to the edge of Lee county, and all the appurtenances belonging to said road from Lafayette to the line of Lee county.' If the deed undertook to convey any land or soil or road-bed, it conveyed with it the right of way. The deed, in reciting the levy, states that it was made 'on the following tract or lot of land, as the property of the said railroad company, to-wit, the right of way,' etc., and states that that was what was sold. It was not lawful for the purchasers to have a deed of the right of way, and if they obtained a deed of anything, the right of way was included, or else they received nothing beyon, perhaps, a right to carry away from the land what the company had put upon it.

The bill of exceptions states that a like right of way through the lands of the proprietors of the soil was obtained by deed, in Lee county, from a point about two miles north of Opelika to the south line of Chambers county; and that, under executions issued to Lee county on the same judgments, there were levies made on the right of way of the company so far as the same had been obtained by it up the line of Chambers county, and a sale by the sheriff of Lee county of what was so levied on, to the same persons who bought at the sale in Chambers county. But at the sale in Lee county a different purchaser might have bought the right of way, and there would then have been a division of the ownership of the line of the road, created as a unit and intended to remain such, resulting in a different control, with no franchise to collect toll. No such thing could be done.

The policy of the state of Alabama on this subject is indicated by the provisions of her constitutions of 1865, (article 1, § 25,) of 1867, (article 1, § 25,) and of 1875, (article 1, § 24,) 'that private property shall not be taken or applied for public use unless just compensation be made therefor; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner: provided, however, that laws may be made securing to persons or corporations the right of way over the lands of other persons or corporations;' 'but just compensation shall, in such cases, be first made to the owner.' In Alabama & F. R. Co. v. Burkett, 42 Ala. 83, it was held that, under this provision, a railroad company acquired no absolute title to land in fee-simple, but only a right to use for its purposes. Nor is a right of way such as may be thus secured, or such as was granted by deed in the present case, within the meaning of the provision of the Code of Alabama that executions may be levied on real property in which the defendant 'has a vested legal interest, in possession, reversion, or remainder, whether he has the entire estate, or is entitled to it in common with others.' Code 1852, § 2871; Code 1876, § 3209.

We are not referred to any decision of the supreme court of Alabama made before the rights involved in this suit arose, or before this suit was brought, determining the questions here involved. Two unreported cases are cited by the defendants in error: Tennessee & C. R. Co. v. ''East Alabama Ry. Co., decided at December term, 1883; and Hooper v. Columbus & W. Ry. Co.'', decided at December term, 1884. To these cases, if they were in point, the doctrine always held by this court, and so emphatically repeated in Burgess v. Seligman, 107 U.S. 20, S.C.. 2 SUP. CT. REP. 10, would be applicable; namely, that the courts of the United States, in the administration of state laws in cases between citizens of different states, 'have an independent jurisdiction co-ordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws;' and that when contracts and transactions have been entered into, and rights have accrued thereon, in the absence of any authoritative decision by the state courts, the courts of the United States 'properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued.'

But the cases cited are not in point. In the first one a railroad corporation, having a franchise, and claiming the legal title and ownership of rights of way, and of a line of railroad, which was being operated by the defendant, another railroad corporation, brought ejectment to recover the property. The defendant corporation had a junior franchise, and claimed to have purchased the entire property sued for, under a title emanating fr m the plaintiff. It was held that the plaintiff could recover. In the second case an individual having the legal title to a strip of land through which a railroad company had been permitted by him to construct its road, was held to be entitled to recover the land in ejectment from the company, which had failed to pay him for the right of way.

This court decided, in Gue v. Tide-water Canal Co. 24 How. 257, that a corporate franchise to take tolls on a canal could not be seized and sold under a fieri facias, unless authorized by a statute of the state which granted the act of incorporation; and that neither the lands nor the works essential to the enjoyment of the franchise could be separated from it and sold under such a writ, so as to destroy or impair the value of the franchise. This decision was put on the ground that the franchise or right to take toll on boats going through the canal, would not pass to the purchaser under the execution on a judgment at law against the corporation because it was an incorporeal hereditament, and, upon the settled principles of the common law, could not be seized on a fieri facias; and was made in a case where the corporation owned in fee the real estate, toll-houses, canal-locks, and wharf seized, all of which were necessary for the uses and working of the canal. But in the view we have taken, as before stated, of the facts of this case, it is not necessary to discuss the general question as to the right to levy an execution at law on property owned by a railroad company in fee.

It is contended for the plaintiffs that the defendant is estopped from denying that they were seized in fee of the property sued for, on the ground that Richards, after the sheriff's sale, abandoned or turned over to the Visschers the line of culverting and grading, as far as he could do so,-that is, he exercised no further authority over it, and the Opelika & Oxford Company made no further claim to it; that the Visschers then made the written contract with the new railroad company to construct the superstructure of the road, except as to the iron materials, for the 20 miles from in or 2 miles north of Opelika to a point beyond Lafayette, for a specified compensation; and that the contract provided that on the completion of the 20 miles, and the payment of the amount agreed, Visscher should transfer to the company 'all right and title vested in him to all franchises, right of way, or other property belonging to or pertaining to the said road under the old organization known as the Opelika & Oxford R. R.' The bill of exceptions states that the defendant offered evidence tending to show that the East Alabama & Cincinnati Railroad Company was in possession of the property sued for from the time the Visschers ceased their work on it, as well as of the remainder of its line of railroad, till assignees in bankruptcy took possession of it, from whom it passed to purchasers from them, and then a receiver in the foreclosure suit took possession of it, and held it till it was sold to the persons who conveyed it to the defendant. The Visschers appear not to have been in possession from the time they ceased work. They yielded possession, but not under any provision in the contract. As to the new work done by the Visschers they became merely creditors, out of possession, with such rights as the law gave them, but certainly with no right to eject the company, or its successors or grantees. They were to construct 20 miles of road for $14,750 per mile. When all was done and paid for they were to transfer what right they had to the road under the Opelika and Oxford organization. But they yielded up possession of that with the new work. As to what they obtained by the sheriff's sale and deed, they acquired nothing thereby, formerly belonging to the Opelika & Oxford Company, under the name of right of way, granted to or acquired by that company, which was capable of being conveyed by them; and as to anything else, their right did not lie i ejectment. Whether they were vendors or creditors in respect to what they so agreed to transfer, it is not necessary or proper to determine in this suit. There was nothing in what occurred between the parties, or in the contract, or in the transactions under it, which estopped the defendant from disputing the right of the plaintiffs to recover in ejectment on the strength of their title.

It follows, from these views, that the circuit court erred in its first and third charges to the jury; and, as this conclusion goes to show that the plaintiffs had no title on which they could recover in ejectment, it becomes unnecessary to consider any of the other questions raised by the defendant. The judgment is reversed, and the case is remanded to the circuit court, with a direction to grant a new trial.


text: Talk:East Alabama Railway Company v. Doe Visscher/Opinion of the Court


text:
The Belgenland Jackson v. Jensen

This case grows out of a collision which took place on the high seas between the Norwegian bark Luna and the Belgian steam-ship Belgenland, by which the former was run down and sunk. Part of the crew of the Luna, including the master, were rescued by the Belgenland and brought to Philadelphia. The master immediately libeled the steam-ship on behalf of the owners of the Luna and her cargo, and her surviving crew, in a cause civil and maritime. The libel stated in substance that the bark Luna, of 359 tons, was on a voyage from Porto Rico to Queenstown, or Falmouth, with a cargo of sugar, and when in latitude 44°33', and longitude 21°43', was met by the steam-ship Belgenland, end on, between 1 and 2 in the morning, and was run down and sunk by her, only five of her crew escaping; that the light of the steam-ship was observed right ahead when a mile or more off; that the bark kept her course, as was her duty to do; and that the steam-ship took no measures to avoid her, but came on at full speed until she struck the Luna; and that the collision was altogether the fault of those in charge of the steam-ship.

The master of the Belgenland appeared for her owners, and filed an answer, denying that the Luna, at the time of the collision, was sailing on the course denying that the Luna, at the time of the collision, was sailing on the course alleged, and averred that she was crossing the bows of the steam-ship, and must have changed her course, and that this was the cause of the collision, that the Luna was not discovered until the instant of the collision, when it was too late to alter the course of the steam-ship; and that the reason why the bark was not seen before, was that she was enveloped in a shower of rain and mist, and that the steam-ship was plunging into a heavy head sea, throwing water over her turtle-deck forward. The proctor for the Belgenland, at the time of filing his answer, excepted to the jurisdiction of the court, and stated for cause that the alleged collision took place between foreign vessels on the high seas, and not within the jurisdiction of the United States; that the Belgenland was a Belgian vessel, belonging to the port of Antwerp, in the kingdom of Belgium, running a regular line between Antwerp and the ports of New York and Philadelphia; and that the bark Luna was a Norwegian vessel, and that no American citizen was interested in the bark or her cargo. The district court decided in favor of the libelant, and rendered a decree for the various parties interested, to the aggregate amount of $50,278.23. An appeal was taken to the circuit court, which found the following facts, to-wit:

'(1) Between one and two o'clock on the morning of September 3, 1879, in mid-ocean, a collision occurred between the Norwegian bark Luna, on her voyage from Humacao, in Porto Rico, to Queenstown or Falmouth, and the steam-ship Belgenland, on a voyage from Antwerp to Philadelphia, which resulted in the sinking of the bark, in the total loss of the vessel and her cargo, and in the drowning of five of her crew.

'(2) The wind was between S. W. and W. S. W., and there was not much sea, but a heavy swell. The bark was running free, heading S. E. by E. half E., having the wind on her starbroad quarter. All her square sails were set except her main-royal, and she carried also her fore, main, and mizzen stay-sails and inner jib. Her yards were braced a little, her main sheet was down, but the weather-clew was up. She was making about seven and one-half knots. Her watch on deck consisted of the first mate and three men; an able seaman was on the lookout on the top-gallant forecastle, and a capable helmsman was at the wheel. She carried a red light on her port side and a green light on her starboard side, properly set and burning brightly, which could be seen, on a dark night, and with a clear atmosphere, at least two miles. The character and location of these lights conformed to the regulations of the bark's nationality, which are the same as those of the British board of trade. About 1:45 o'clock the lookout sighted the white mast-head light of a steamer right ahead, distant, as he thought, about a mile, and reported it at once to the mate, who cautioned the man at the wheel to 'keep her steady and be very careful,' and the bark held her course. No side lights on the steamer were seen from the bark, but, as the vessels approached each other, the white light of the steamer gradually drew a little on the port bow of the bark for three or four minutes. The mate of the bark seeing the steamer's sails, and that she was heading directly for the bark, was close aboard of her, and reasonably apprehending that a collision was inevitable, ordered the bark's helm hard a-port. In a few seconds the steamer's starboard light came into view, and in another instant she struck the bark on her port side, cutting her in two obliquely from the after-part of her fore rigging to the fore-part of the main rigging.

'(3) The Belgenland was steering N. W. by W. half W. by compass, and making about eleven knots. Her second officer had charge of the deck, and his watch was composed of ten able seamen, two quartermasters, the second boatswain, and the fourth officer. One able seaman was stationed on the lee or starboard side of the bridge as a lookout. The second officer was on the bridge. The fourth officer was stationed at the after or standard compass, which was near the mizzen-mast, but at the time was on the bridge, having come there to report a cast of the log. A quartermaster was at the wheel. The rest of the watch were underneath the turtle-back or top-gallant forecastle. The steamer was four hundred and sixteen feet long and about thirty-eight feet beam. The bridge was one hundred and fifty or one hundred and eighty feet from her bow, and was six or seven feet higher than the top of the turtle-back, which was about twenty-five feet above the water. The steamer had her fore, main, and mizzen try-sails, fore stay-sails, and jib set and drawing, and probably her jigger also. She heeled to starboard from ten to fifteen degrees.

'(4) The only lookout on the steamer was on the bridge. None was on the turtle-back, although it would have been entirely safe to station one there, for the alleged reason that the vessel was plunging into a head sea, and taking so much water over her bows that he would have been of no use there.

'(5) The bark was not seen by those in charge of the steamer until just at the instant of the collision, when the second officer saw her head sails just across the steamer's bow, and the lookout in the lee side of the bridge saw her after-sails and stern.

'(6) The moon was up, but was obscured by clouds. There was no fog, but occasional rain, with mist, and the wind was blowing from the S. W. to W. S. W.

'(7) Objects could be seen at the distance of from five hundred yards to a mile. The mast-head light of the steamer was sighted, and at once reported by the lookout on the bark, at the distance of about a mile; the port light of the bark was seen by a steerage passenger on the steamer, looking out of his room just under the bridge, and reported to his room-mates long enough before the collision to enable the second steerage steward, who heard the report, to go up the companion ladder, cross the deck, and reach the steamer's rail; after the collision, the mizzen-mast of the bark was all of her above water, and this was distinctly seen from the steamer when she was at the distance of five hundred yards from it.

'(8) The damages caused by the collision were assessed at $50,248.23.'

Upon these facts the court below deduced the following conclusions:

'(1) That the vessels were approaching each other from opposite directions, upon lines so close to each other as to involve the necessity of a deflection by one or the other of them to avoid a collision.

'(2) That the lookout on the bark saw the steamer when she was nearly a mile distant, and she w § held steadily on her course, and that she thereby fulfilled her legal obligation. Even if her helm was ported, it was at a time and under circumstances which did not involve any culpability on her part.

'(3) That it was the duty of the steamer to keep out of the way of the bark, and, to that end, so to change her course as to preclude all danger of collision.

'(4) That the bark could and ought to have been seen by the steamer when they were sufficiently distant from each other to enable the steamer to give the bark enough sea-room to avert any risk of collision. In this failure to observe the bark the steamer was negligent.

'(5) No satisfactory or sufficient reason is furnished by the respondents' evidence for this failure of observation. If it resulted from the inattention of the steamer's lookout, or because their vision was intercepted by her fore try-sail, she was clearly culpable. If it is explicable by the condition of the atmosphere, no matter by what cause it was produced, it was the steamer's duty to reduce her speed, and to place a lookout on her turtle-back. An omission to observe these precautions was negligence. But, considering the proof that the bark held her course, and that the steamer might have seen her by proper vigilance, when suitable precaution against collision might have been taken, a mere speculative explanation of the steamer's presumptive culpability cannot be accepted as sufficient.'

A decree was thereupon entered, affirming the decree of the district court in favor of the libelants for the sum of $50,748.23, with interest from March 25, 1881, amounting to $51,954.14, and costs. A reargument was had on the question of jurisdiction, and the court held and decided that the admiralty courts of the United States have jurisdiction of collisions occurring on the high seas between vessels owned by foreigners of different nationalities; and overruled the plea to the jurisdiction. The case is now before us on appeal from the decree of the circuit court.

Morton P. Henry, for appellants.

Henry Flanders and J. Langdon Ward, for appe lees.

BRADLEY, J.

title: The Belgenland Jackson v. Jensen


text: Talk:The Belgenland Jackson v. Jensen

title: Talk:The Belgenland Jackson v. Jensen


text:
The Belgenland Jackson v. Jensen/Opinion of the Court

The first question to be considered is that of the jurisdiction of the district court to hear and determine the cause. It is unnecessary here, and would be out of place, to examine the question which has so often engaged the attention of the common-law courts, whether, and in what cases, the courts of one country should take cognizance of controveries arising in a foreign country, or in places outside of the jurisdiction of any country. It is very fully discussed in Mostyn v. Fabrigas, and the notes thereto in 1 Smith, Lead. Cas. 765; and an instructive analysis of the law will be found in the elaborate arguments of counsel in the case of the San Francisco Vigilant Committee, (Molony v. Dows, 8 Abb. Pr. 316,) argued before Judge DALY in New York, 1859. We shall content ourselves with inquiring what rule is followed by courts of admiralty in dealing with maritime causes arising between foreigners and others on the high seas.

This question is not a new one in these courts. Sir WILLIAM SCOTT had occasion to pass upon it in 1799. An American ship was taken by the French on a voyage from Philadelphia to London, and afterwards rescued by her crew, carried to England, and libeled for salvage; and the court entertained jurisdiction. The crew, however, though engaged in the American ship, were British-born subjects, and weight was given to this circumstance in the disposition of the case. The judge, however, made the following remarks: 'But, it is asked, if they were American seamen would this court hold plea of their demands? It may be time enough to answer this question whenever the fact occurs. In the mean time, I will say without scruple that I can see no inconvenience that would arise if a British court of justice was to hold plea in such a case; or, conversely, if American courts were to hold pleas of this nature respecting the merits of British seamen on such occasions. For salvage is a question of jus gentium, and materially different from the q estion of a mariner's contract, which is a creature of the particular institutions of the country, to be applied and construed and explained by its own particular rules. There might be good reason, therefore, for this court to decline to interefere in such cases, and to remit them to their own domestic forum; but this is a general claim, upon the general ground of quantum meruit, to be governed by a sound discretion, acting on general principles; and I can see no reason why one country should be afraid to trust to the equity of the courts of another on such a question, of such a nature, so to be determined.' The Two Friends, 1 C. Rob. 271, 278.

The law has became settled very much in accord with these views. That was a case of salvage; but the same principles would seem to apply to the case of destroying or injuring a ship, as to that of saving it. Both, when acted on the high seas, between persons of different nationalities, come within the domain of the general law of nations, or communis juris, and are prima facie proper subjects of inquiry in any court of admiralty which first obtains jurisdiction of the rescued or offending ship at the solicitation in justice of the meritorious or injured parties.

The same question of jurisdiction arose in another salvage case which came before this court in 1804. Mason v. The Blaireau, 2 Cranch, 240. There a French ship was saved by a British ship, and brought into a port of the United States; and the question of jurisdiction was raised by Mr. Martin, of Maryland, who, however, did not press the point, and referred to the observations vations of Sir WILLIAM SCOTT in The Two Friends. Chief Justice MARSHALL, speaking for the court, disposed of the question as follows: 'A doubt has been suggested,' said he, 'respecting the jurisdiction of the court, and, upon a reference to the authorities, the point does not appear to have been ever settled. These doubts seem rather founded on the idea that upon principles of general policy this court ought not to take cognizance of a case entirely between foreigners, than from any positive incapacity to do so. On weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to overbalance those against it, and it is the opinion of this court that, whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it.' In that case, the objection had not been taken in the first instance, as it was in the present. But we do not see how that circumstance can affect the jurisdiction of the court, however much it may influence its discretion in taking jurisdiction. For circumstances often exist which render it inexpedient for the court to take jurisdiction of controversies between foreigners in cases not arising in the country of the forum; as, where they are governed by the laws of the country to which the parties belong, and there is no difficulty in a resort to its courts; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of ill treatment, are often in this category; and the consent of their consul, or minister, is frequently required before the court will proceed to entertain jurisdiction; not on the ground that it has not jurisdiction, but that, from motives of convenience, or international comity, it will use its discretion whether to exercise jurisdiction or not; and where the voyage is ended, or the seamen have been dismissed or treated with great cruelty, it will entertain jurisdiction even against the protest of the consul. This branch of the subject will be found discussed in the following cases: The Catharina, 1 Pet. Adm. 104; The Forsoket, Id. 197; The St. Oloff, 2 Pet. Adm. 428; The Golubchick, 1 Wm. Rob. 143; The Nina, L. R. 2 Adm. & Ecc. 44; S.C.. on appeal, L. R. 2 Priv. C. 38; The Leon XIII, 8 Prob. Div. 121; The Havana, 1 Spr. 402; The Becherdass Ambaidass, 1 Low. 569; The Pawashick, 2 Low. 142.

Of course, if any treaty stipulations exist between the United States and the country to which a foreign ship belongs, with regard to the right of the consul of that country to adjudge controversies arising between the master and crew, or other matters occurring on the ship exclusively subject to the foreign law, such stipulations should be fairly and faithfully observed. The Elwine Kreplin, 9 Blatchf. 438; reversing, S.C.. 4 Ben. 413; see S.C.. on application for mandamus, Ex parte Newman, 14 Wall. 152. Many public engagements of this kind have been entered into between our government and foreign states. See Treaties and Conventions, (Ed. 1871,) Index, p. 1238.

In the absence of such treaty stipulations, however, the case of foreign seamen is undoubtedly a special one, when they sue for wages under a contract which is generally strict in its character, and framed according to the laws of the country to which the ship belongs; framed, also, with a view to secure, in accordance with those laws, the rights and interests of the shipowners as well as those of master and crew, as well when the ship is abroad as when she is at home. Nor is this special character of the case entirely absent when foreign seamen sue the master of their ship for ill treatment. On general principles of comity, admiralty courts of other countries will not interfere between the parties in such cases unless there is special reason for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction.

Not alone, however, in cases of complaints made by foreign seamen, but in other cases also, where the subjects of a particular nation invoke the aid of our tribunals to adjudicate between them and their fellow-subjects as to matters of contract or tort solely affecting themselves, and determinable by their own laws, such tribunals will exercise their discretion whether to take cognizance of such matters or not. A salvage case of this kind came before the United States district court of New York in 1848. The master and crew of a British ship found another British ship near the English coast, apparently abandoned, (though another vessel was in sight,) and took off a portion of her cargo, brought it to New York, and libeled it for salvage. The British consul and some owners of the cargo intervened and protested against the jurisdiction, and Judge BETTS discharged the case, delivered the property to the owners upon security given, and left the salvors to pursue their remedy in the English courts. One Hundred and Ninety-four Shawls, 1 Abb. Adm. 317.

So in a question of ownership of a foreign vessel, agitated between the subjects of the nation to which the vessel belonged, the English admiralty, upon objection being made to its jurisdiction, refused to interfere, the consul of such foreign nation having declined to give his consent to the proceedings. The Agincourt, L. R. 2 Prob. Div. 239. But in another case, where there had been an adjudication of the ownership under a mortgage in the foreign country, and the consul of that country requested the English court to take jurisdiction of the case upon a libel filed by the mortgagee, whom the owners had dispossessed, the court took jurisdiction accordingly. The Evangelistria, L. R. 2 Prob. Div. 241, note.

But, although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies are communis juris, that is, where they arise under the common law of nations,-special grounds should appear to induce the court to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute; the only question will be whether it is expedient to exercise it. See 2 Pars. Shipp. & Adm. 226, and cases cited in notes. In the case of The Jerusalem, 2 Gall. 191, decided by Mr. Justice STORY, jurisdiction was exercised in the case of a bottomry bond, although the contract was made between subjects of the Sublime Porte, and it did not appear that it was intended that the vessel should come to the United States. In this case, Justice Justice STORY examined the subject very fully, and came to the conclusion that, wherever there is a maritime lien on the ship, an admiralty court can take jurisdiction on the principle of the civil law, that in proceedings in rem the proper forum is the locus rei sitoc. He added: 'With reference, therefore to what may be deemed the public law of Europe, a proceeding in rem may well be maintained in our courts where the property of a foreigner is within our jurisdiction. Nor am I able to perceive how the exercise of such judicial authority clashes with any principles of public policy.' That, as we have seen, was a case of bottomry, and Justice STORY, in answer to the objection that the contract might have been entered into in reference to the foreign law, after showing that such law might be proven here, said: 'In respect to maritime contracts, there is still less reason to decline the jurisdiction, for in almost all civilized countries these are in general substantially governed by the same rules.' Justice STORY's decision in this case was referred to by Dr. LUSHINGTON with strong approbation in the case of The Golubchick, 1 Wm. Rob. 143, decided in 1840, and was adopted as authority for his taking jurisdiction in that case.

In 1839 a case of collision on the high seas between two foreign ships of different countries (the very case now under consideration) came before the English admiralty. The Johann Friederich, 1 Wm. Rob. 35. A Danish ship was sunk by a Bremen ship, and on the latter being libeled, the respondents entered a protest against the jurisdiction of the court. But jurisdiction was retained by Dr. LUSHINGTON, who, among other things, remarked: 'An alien friend is entitled to sue [in our courts] on the same footing as a British-born subject, and if the foreigner in this case had been resident here, and the cause of action had originated infra corpus comitatus, no objection could have been taken.' Reference being made to the observations of Lord STOWELL in cases of seamen's wages, the judge said: 'All questions of collision are questions communis juris; but in cases of mariners wages, whoever engages voluntarily to serve on board a foreign ship necessarily undertakes to be bound by the law of the country to which such ship belongs, and the legality of his claim must be tried by such law. One of the most important distinctions, therefore, respecting cases where both parties are foreigners, is whether the case be communis juris or not. * *  * If these parties must wait until the vessel that has done the injury returned to its own country, their remedy might be altogether lost; for she might never return, and, if she did, there is no part of the world to which they might not be sent for their redress.

In the subsequent case of The Griefswald, Swab. 430, decided by the same judge in 1859, which arose out of a collision between a British bark and a Persian ship in the Dardauelles, Dr. LUSHINGTON said: 'In cases of collision, it has been the practice of this country, and, so far as I know, of the European states and of the United States of America, to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found, and this practice, it is manifest, is most conducive to justice, because in very many cases a remedy in personam would be impracticable.'

The subject has frequently been before our own admiralty courts of original jurisdiction, and there has been but one opinion expressed, namely, that they have jurisdiction in such cases, and that they will exercise it unless speci l circumstances exist to show that justice would be better subserved by declining it. It was exercised in two cases of collision coming before Mr. Justice BLATCHFORD, while district judge of the Southern district of New York: The Jupiter, 1 Ben. 536, and The Russia, 3 Ben. 471. In the former case, the law was taken very much for granted; in the latter, it was tersely and accurately expounded, with a reference to the principal authorities. Other cases might be referred to, but it is unnecessary to cite them. The general doctrine on the subject is recognized in the case of The Maggie Hammond, 9 Wall. 435, 457, and is accurately stated by Chief Justice TANEY in his dissenting opinion in Taylor v. Carryl, 20 How. 611.

As the assumption of jurisdiction in such cases depends so largely on the discretion of the court of first instance, it is necessary to inquire how far an appellate court should undertake to review its action. We are not without authority of a very high character on this point. In a quite recent case in England, that of The Leon XIII.L.R. 8 Prob. Div. 121, the subject was discussed in the court of appeal. That was the case of a Spanish vessel libeled for the wages of certain British seamen who had shipped on board of her, and the Spanish consul at Liverpool protested against the jurisdiction of the admiralty court on the ground that the shipping articles were a Spanish contract, to be governed by Spanish law, and any controversy arising thereon could only be settled before a Spanish court or consul. Sir ROBERT PHILLIMORE held that the seamen were to be regarded for that case as Spanish subjects, and, under the circumstances, he considered the orotest a proper one, and dismissed the suit. The court of appeal held that the judge below was right in regarding the libelants as Spanish subjects; and on the question of reviewing his exercise of discretion in refusing to take jurisdiction of the case, BRETT, M. R., said: 'It is then said that the learned judge has exercised his discretion wrongly. What, then, is the rule as regards this point in the court of appeal? The plaintiffs must show that the judge has exercised his discretion on wrong principles, or that he has acted so absolutely differently from the view which the court of appeal holds, that they are justified in saying he has exercised it wrongly. I cannot see that any wrong principle has been acted on by the learned judge, or anything done in the exercise of his discretion so unjust or unfair as to entitle us to overrule his discretion.'

This seems to us to be a very sound view of the subject; and, acting on this principle we certainly see nothing in the course taken by the district court, in assuming jurisdiction of the present case, which calls for animadversion. Indeed, where the parties are not only foreigners, but belong to different nations, and the injury or salvage service takes place on the high seas, there seems to be no good reason why the party injured, or doing the service, should ever be denied justice in our courts. Neither party has any peculiar claim to be judged by the municipal law of his own country, since the case is pre-eminently one communis juris, and and can generally be more impartially and satisfactorily adjudicated by the court of a third nation having jurisdiction of the res or parties, than it could be by the courts of either of the nations to wich the litigants belong. As Judge DEADY very justly said, in a case before him in the district of Oregon: 'The parties cannot be remitted to a home forum, for, being subjects of different governments, there is no such tribunal. The forum which is common to them both by the jus gentium is any court of admiralty within the reach of whose process they may both be found.' Bernhard v. Creene, 3 Sawy. 230, 235.

As to the law which should be applied in cases between parties or ships of different nationalities, arising on the high seas, not within the jurisdiction of any nation, there can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted. This rule is laid down in many cases; among others the following: The Johann Friederich, 1 Wm. Rob. 35; The Dumfries, Swab. 63; The Zollverein, Id. 96; The Griefswald, Id. 430; The Wild Ranger, Lush. 553; The Belle, 1 Ben. 320; The Scotia, 14 Wall 171; The Scotland, 105 U.S. 24, 29; The Leon, 6 Prob. Div. 148. In the case last cited, which was that of a British ship run down by the Leon, a Spanish ship, the question was specifically raised by the respondents, (the owners of the Leon,) who set up in defense that if there was any negligence in her navigation, her master and crew, and not her owners, were liable by the Spanish law. This defense was overruled, and the general maritime law, as understood and administered in England, was held to govern the case; by which law the owners were held responsible. The same rule was followed by this court in The Scotland, and was applied to the collision of a British with an American ship on the high seas; although, it is true, we applied to that case the rule of limited liablility established by the act of congress, regarding that act as declarative of the general maritime law to be administered by our courts.

The rule requiring the application of the general maritime law to such cases has some qualifications, which, though not affecting the present case, should always be borne in mind. One of these qualifications is that the persons in charge of either ship will not be open to blame for following the sailing regulations and rules of navigation prescribed by their own government for their direction on the high seas, because they are bound to obey such regulations. The Scotia, 14 Wall. 170, 184. Another qualification is that if the maritime law, as administered by both nations to which the respective ships belong, be the same in both in respect to any matter of liability or obligation, such law, if shown to the court, should be followed in that matter in respect to which they so agree, though it differ from the maritime law as understood in the country of the forum; for, as respects the parties concerned, it is the maritime law which they mutually acknowledge. The Scotland, 105 U.S. 24, 31.

The first of these qualifications can rarely be called into requisition at the present day, since, for more than 20 years past, all the principal maritime nations of the world (at least, those whose vessels navigate the Atlantic ocean) have concurred in adopting a uniform set of rules and regulations for the government of vessels on the high seas. These rules and regulations have become international, and virtually a part of the maritime law. The Scotia, 14 Wall. 171, 187. They will be presumed to be binding up foreign as well as domestic ships unless the contrary is made to appear.

We are then brought to the question of the merits of the case between the parties as shown by the pleadings and finding of facts. And this does not require any extended discussion. It is shown that the bark had her proper lights burning brightly, visible on a dark night, and with a clear atmosphere, at least two miles; and that, in character and location, they conformed to the regulations of the bark's nationality, which are the same as those of the British board of trade, (or the international rules b fore referred to;) that the mast-head light of the steamer was sighted right ahead, distant about a mile; that the bark was kept steady on her course until the steamer was almost upon her and apparently about to run her down; that then the order was given to put the helm hard a-port; that in a few seconds the steamer's starboard light came in view, and in another instant she struck the bark in her port side, cutting her in two obliquely. In all this we see nothing that the people in charge of the bark did which it was not their duty to do by the international rules. It was their duty to keep her steady on her course, and it was the duty of the steamer to see the bark and to avoid a collision.

On the other side, it appears that the steamer, which was a large and powerful one, 416 feet long and 38 feet beam, was coming towards the bark, end on, at about 11 knots an hour; that she had a lookout on the lee side of her bridge, (which was over 150 feet from her bow,) where the officer in charge of the deck also was, but had no other lookout on duty. The rest of the watch, except the man at the compass and one at the wheel, were underneath the turtle-back, or top-gallant forecastle. No lookout was on the turtle-back, although it would have been entirely safe to station one there. The omission to do so was for the alleged reason that the vessel was plunging into a head-sea, and taking so much water over her bows that he would have been of no use there. The bark was not seen by those in charge of the steamer until just at the instant of the collision; yet objects could be seen at a distance of from 500 yards to a mile, and the port light of the bark was seen by a steerage passenger on the steamer, looking out of his room just under the bridge, and was reported to his room-mates long enough before the collision to enable the second steerage steward, who heard the report, to go up the companionladder, cross the deck, and reach the steamer's rail.

We think that these facts furnished a sufficient ground for the conclusions at which the court arrived, as before rehearsed; the substance of which was that the collision occurred by the negligence of those having charge of the Belgenland, in not seeing the bark, and in not taking the proper precautions due to such a night and such a sea, by reducing speed and keeping a sufficient lookout.

It is argued that there is no express finding of negligence or fault, as matter of fact, but only as an inference from the facts found. But we think that the facts found furnish such conclusive proof of negligence that it may be regarded as properly found among the conclusions of law as a legal inference from those facts. U.S. v. Pugh, 99 U.S. 265. The counsel of the appellants suppose that the court below found the Belgenland in fault on the mere presumption arising from the fact of collision, and the primary duty of the steamship to avoid it. But this is not a just view of the decision. There was much more in the facts of the case than the existence of such a presumption, as the foregoing rehearsal of the facts clearly shows. The ability to see objects at a distance; the fact that the men in charge of the steamer failed to see the bark, while a passenger did see her from his room; the fact that there was but one lookout for such a large steamer; that other lookouts could have been stationed on the turtle-back; the fact that the speed was not slackened, and no precautions taken to get a better view ahead;-these facts, in addition to the presumption arising from the steamer's duty, present a very different case from that supposed by the appellants. The decision of the court must be taken as the collective result from the whole case. It cannot be judged from mere isolated expressions in the opinion.

The rule contended for by the appellants, that negligence and fault must be proved, and not presumed, is undoubtedly a sound one, and hardly needs cases to support it. But the circuit court evidently did not rest the case on presumption, but pon proof, from which it properly deduced negligence on the part of the steam-ship. At all events, this court, upon a careful consideration of the facts found, is satisfied that there was such negligence, and that it was the cause of the catastrophe.

The decree of the circuit court is affirmed, with interest to be added to the amount from the date of the same.


text: Talk:The Belgenland Jackson v. Jensen/Opinion of the Court


text:
Walden v. Knevals

D. A. Walden, for himself.

J. M. Woolworth, for appellee.

FIELD, J.

title: Walden v. Knevals


text:
Page:Popular tales from the Norse (1912).djvu/617

 Rh no, the cock must sleep in the pen with the sheep, so they put the cock with the sheep. At midnight he got up, killed the cock, threw it back into the pen, and went back to bed. Next morning, when it was time for him to go away, his cock was dead, and he would not take anything for it but one of the best sheep, so they gave it to him, and he went off with it all that day, until night-fall, when he got to a village, where he again asked for a night's lodging, which was given to him, and when they wanted to put his sheep with the other sheep, he said, no, the sheep must sleep with the cattle; so they put the sheep with the cattle. In the middle of the night he got up and killed the sheep, and went back to bed. Next morning he went for his sheep, which was dead, so he told them they must give him the best heifer for his sheep, and if they would not do so, he would go back and tell the King, who would come and make war on them.

So to get rid of him, they were glad to give him the heifer, and let him go; and away he went, and walked nearly all day with the heifer. Towards evening he met a funeral, and asked whose it was? one of the men said, it was his sister, so he asked the men if they would let him have her; they said no, but after a while, he begged so hard, saying he would give them the heifer, that they consented, and he took the dead body and walked away, carrying it until it was dark, when he came to a large town, where he went to a house and begged hard for a night's lodging for himself and his sister, who was so tired he was obliged to carry her, and they would be thankful if they would let them rest there that night. So they let them in, and he asked them to let them sit in the dark, as his sister could not bear the light. So they took them into a room, and left them in the dark; and when they were alone, he seated himself on a bench near the table, and put his sister close by his side, with his arm round her to keep her up. Presently they brought them in some supper; one plate he set before his sister, and put her hand in it, and the other plate for himself, but he ate out of both plates. When it was time to go to bed, he asked if they would allow his


text: Talk:Walden v. Knevals

title: Talk:Walden v. Knevals


text:
Walden v. Knevals/Opinion of the Court

The questions presented in this case are similar to those considered sidered and decided in Van Wyck v. Knevals, reported in 106 U.S. 360; S.C.. 1 SUP. CT. REP. 336. By the act of congress of July 23, 1866, there was granted to the state of Kansas, for the use and benefit of the St. Joseph & Denver Railroad Company, in the construction of a railroad from Ellwood in that state to its junction with the Union Pacific Railroad, or a branch thereof, not further west than the 100th meridian of west longitude, every alternate section of land, designated by odd numbers, for 10 sections in width on each side of the road, to the point of intersection. The grant was accompanied, however, with this qualification: that in case it should appear that the United States had, when the line or route of the road was 'definitely fixed,' sold any section or part thereof thus granted, or that the right of preemption or homestead settlement had attached to the same, or that it had been reserved by the United States for any purpose whatever, then it should be the duty of the secretary of the interior to cause an equal quantity of other lands to be selected from the odd sections nearest to those designated, in lieu of the lands thus appropriated. The main question here, as in the case mentioned, is, when was the route of the road to be considered as 'definitely fixed,' so that the grant attached to the adjoining sections? In the case mentioned we held that the route must be considered as 'definitely fixed' when it had ceased to be the subject of change at the volition of the company; that until the map designating the route of the road was filed with the secretary of the interior, the company was at liberty to adopt such a route as it might deem best, after an examination of the ground had disclosed the advantages of different routes. But it was held that when the route was adopted by the company, and a map designating it was filed with the secretary of the interior, and accepted by that officer, the route was established. In the language of the act it was 'definitely fixed,' and could not be the subject of further change so as to affect the grant except by legislative consent; and that no further action was required on the part of the company to establish the route. It then became the duty of the secretary to withdraw the lands granted from market, and the court said: 'If he should neglect this duty, the neglect would not impair the rights of the company, however prejudicial it might prove to others. Its rights are not made dependent upon the issue of the secretary's order, or upon notice of the withdrawal being given to the local land officers. Congress, which possesses the absolute power of alienation of the public lands, has prescribed the period at which other parties than the grantee named shall have the privilege of acquiring a right to portions of the lands specified, and neither the secretary, nor any other officer of the land department, can extend the period by requiring something to be done subsequently, and until done continuing the right of parties to settle on the lands as previously.' 106 U.S. 366; S.C.. 1 SUP. CT. REP. 336. Since the decision of that case, the court, in Railway co. v. Dunmeyer, 113 U.S. --; S.C.. ante, 566, has reconsidered the question and come to the same conclusion, the receipt of the map in the land-office without objection being considered as equivalent to its acceptance.

It appears from the agreed statement of facts that previous to the twenty-first of March, 1870, the engineers of the railway company surveyed and staked out upon the ground the proposed line of the road, made a topographical map of the country through which the line ran, showing the government surveys and the proposed route with reference to the section lines, and the towns, counties, and rivers; that such map was on that day approved by the board of directors, and on the twenty-fifty of the same month was filed, together with a certificate of the approval indorsed thereon, with the secretary of the interior, who approved the same, and on the twenty-eighth of the same month transmitted it to the commissioner of the general land-office, with directions to instruct the proper local land officers to withdraw from sale or other disposal all the odd-numbered sections falling within the limits of 20 miles on each side of the line of the route. On the eighth of April following the commissioner transmitted by mail a copy of the map to the register and receiver of the local land-office at Beartrice, in Nebraska, but it was not received by them until the fifteenth of that month. On the eighth of April, 1870, one Clark Irvin entered the lands in question at the land-office in Beatrice, and on the first of November, 1871, a patent was issued to him. At the time of his purchase no instructions had been received from the land department of the government that the lands were withdrawn from market, and he made his purchase without any actual knowledge of the filing of the company's map with the secretary, or of his order to withdraw the lands from market. Subsequently the company applied to the land department for a patent of the lands, and tendered the necessary fees and charges. The applicati n was refused on the ground that Irvin's right of entry had attached to the lands, and a patent for them had been issued to him. The plaintiff deraigned title from the railroad company, and the defendant deraigned title from Irvin, by deed, for which he paid a valuable consideration, without notice of the claim of the plaintiff. It thus appears that the defendant made his entry, and therefore acquired whatever rights he possesses after the map of the company designating its route had been filed with the secretary of the interior, March 25, 1870, and the route had thereby become definitely established. The title of the company to the adjoining odd sections was then fixed. No rights could be initiated subsequently which could affect that title. The entry of the defendant being on the eighth of April afterwards created no interest in him, and the patent issued upon that entry passed none.

All other questions presented in this case are fully considered in Van Wyck v. Knevals, and we see no ground to change the conclusions then reached. For the reasons there stated the decree of the court below must, therefore, be affirmed.

title: Walden v. Knevals/Opinion of the Court


text: Talk:Walden v. Knevals/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Whewell, William


text:
Penn National Bank v. Furness

N. H. Sharpless, for appellant.

Charles Hart and Samuel Dickson, for appellees.

FIELD, J.

title: Penn National Bank v. Furness


text: Talk:Penn National Bank v. Furness

title: Talk:Penn National Bank v. Furness