NEW ORLEANS, M. &0. B. 00. V.OITY 011' NEW ORLEANS.
873
NEW OULEANS,
M. &
C.
R. CO.V.
CITY all' NEW ORLEANS.*
(Circuit Court, 1.
D. Louisiana. June, 1878.)
An.JUDTCATION-How DETERMINED. 1n determining what has heen adjudged courts will regard the der,ree, and in case of ambiguity, but not otherwise, be j/;overned by an accompanying opinion. An injunction having been by a state court and perpetuated by the <!cercc of the supreme court oj the state, a similar injunction granted as between the same parties, with regard to the same SUbject-matter, in a new suit, lJy a court of the same state and removed to this cOUlt, the matter'will be treated by this coud as a thing adjudged, and the injunction perpetuated.
2', b'.JUNCTION-RES AD.TUDIOATA.
In Equity.
,
D. J. This ,IS a cause which was commenced, in the' · "superior district conrt" of the parish of Orleans, and, has beeu' ,re-. moved from ,that court 'to this. In this court, from its nature, it stands as' a chancery suit. ' . ' .. ' Plaintiff alleges that.in the year 1874 the city authorities (thedefendan ts) sent a' large force to beat down the walls of a freight depot belonging to this defendant company. As an incident of the suit, the complainants obtaineJ an injunction in the "superior district court," pendente lite, and ,t4e object of this suit is to perpetuate that injunction. The mischief is of ,such a character as to make the case fall within that class of cases which justifies the interposition of the com'ts of chancery. ' The basis of the· suit as setup in,the petition of the complainant -now to be treated as a bilI equity-is a judgment of the supreme court of the state of Louisiana between the same pti.i·lies contained in the ,record-'-No;"3;692 of thatconrt. On the oWer hand, the dEjfendarits setup a frna '.Ieilree rendere'd in the supreme court' ofL'o'uisiana,' also the same pat:tipq, known as.N,o. 8,701 of of said court. An inspection of the record'in this case discloses the {act ,that th complainants bad , partly by purchase from private, owners and partly }:}y grant of th,eJeglslature, obtained two sets of rigllts,with to c,ertain of -in; the city of
John A. Crrmpbell ana. A. llficou, for complainants. , , 13. City Atty., and W. W. King, for defendant.
or
>,
otHepurLcd by-Joseph P. H(),rnor,
New.orleans bar. ,
874
.. FEDERAL· RJIlP'ORTER.
provided that the grants of the legislature were valid, and that the same series of acts of the legislature had giventhelll also the right of and erecting depots upon way, and the right of putting these squares, as incidents of their right of \Vay as a railroad. The first right which was claimed was that "the complainants had acquired the fee to the labd" in dispute; or, rather, the precise question was whether the fee was ·iIithe or in the public. In the second suit they claim rights with reference to their right of way, viz., their right of way; with their right to put tracks nponthe land, and to maintain buildings for depots. In both of these suits the lower court, which was the superior district court, had given judgment in favor of the complainants, maintaining thereby, in the one, the rights of the company as owners of the fee, and, in the other, their right of way, and the incidents with referenge. to tracks and depC)ts. 1. With reference to the fee. In the twenty-sixth volume of the Louisiana Annual, 478, the docket number being 8,70 1., the su. preme court rendered a decree annulling the jUdgment of the eighth · district corirt, and dissolving the injunction which had been issued by that court, and giving judgment for the city of New Orleans, maintaining the reconventional demand of the city, and restraining the plaintiffs from occupying the property in controversy. Upon a rehearing, at page 485, the court modified their judgment as follows: "InHour opinion the injuilction improperly issued in this case; but, as the city has made no claim against· the plaintiffs, our former decree was erroneous in granting the demand in reconvention, and inhibiting the plaintiffs from occupying the property in Under the pleadings, all we can do is to render judgment in favor of the city, dissolving the injunction and dismissing the plaintiffs' suit, parties to theIr rights under the laws relative to the expropriation of property/'
Then follows the final decree in the cause, as follows: .. It is therefore ordered. that our former decree be set aside, and it is now ordered that tbe judgment appealed from be reversed, and that there be judgment in olthe the city of New Orleans, dissolving the injunction hereln,and dismissing the plaintiffs' Buit,with costs in both courts, without prejudice to the rights of both partIes under the laws of' expropriation.:' .' '.
2. As to the rights ot the complainants which sprang out of the them of the right of way its incidents. In this case grant there; wasi . also a judgmentiri the eighth district court in favor of the complainants, and an original hearing and rehearing in the
to·
NEW ORLEANS, M.
NEW ORLEANS.
315
supreme court., ,Upon':the first hear;ing, Judge WILEY, in th,e case known as No. 3,692, thu&statel'l the question in rendering the majority opinion,at page 517: U This controversy arises out"ofthe acts of tlie lliheteenthof March, 1868, the seventeenth of 1869, the February, 1S70, ing to the compla,inants :or passenger and freight depots a space of gruurid. * * * Also granting the right to lay tracks, ,and occuPy as ,a railroad, a strip of land extending down the levee to Elysian Fields -
He then quotes & of the !l)nswar of, the city, \Yhich in substance is that the use of that part ofthebatturo for a railroad, and the enjoyment of-the privileges granted by theJegislature, "'!>1l1dpre"Vent itsuseas a locus publicu8 a n q h i g h w a y . " , di!,!senting opinion at Chief Justice LUDELING, at page 524, in the first hearing, states the thus in_ this case is simply whether or not the can lie quay or levee of the city of New the consent of the city." _ ' ,Upon the rehearing, at page 529, the majority, opinio:t;l by, Judge MORGAN very briefly &s follows: "The sole pret\> grant to railroad sented in this case il'!, l;tas the state the -company the right of waythro,ugh the streets of this city? A thorough examination of this question has led.us to the co.nclusion that it And then follow!;, the decr,ee 1 "It is ordered, adjudged, and decreed that. the judgment, heretof()re rendered by Ufi. ,be avoided, I),nnulled, and set aside, anq it is nowordeNd, adjudged, and decreed that the judgment of the district court .be ,affirmed, with cQsts." . If we turn to the decree of ,t.he district court as found in the printed recOJ;d put in evidence, at pages.255, 296, we fi,nd it. that "the defendants be enjQined" festrainedfrom, in any manner, interfering with or obstructing plaintiffs in constructing qr maintaining its railroad nponand on the levee, and batture and designated in the.actsof the, assembly a,nd .privileges Jo said the granting and !-If. the Gity maps filed with thesepretary ·of New Orleans." They dismiss - the, of the city, andmaint!tiI\:,the validity,ofth!3 J.!f ;t}le bly granting to. the compla+QatlFs the righttQ (lon.!>tr1,],.()t;.. and use turn-outs, depots, etc., and:. upon the in front city of. ,New And this judgment, by the of .the llQUrt, all respects affirmed. .-
876
FEDERAL REPORTER.
There is no doubt but that if a decree is free from ambiguity, it speaks for itself, and cannot be qualified by the opinion by which it may have been preceded. Plicque v. Ferret, 19 La. 318; Keane v. Fisher, 10 La. Ann. 261; Trescott v. Lewis, 12 La. Ann. 197; McDon· ough's Succession, 24 La. Ann. 34; 101 U. S. 851; 24 How. 333; Smith v. Kernochen, 7 How. 1D9. But I think that a careful analysis of the opinions, and of the decrees, ahows tliat there is no ambiguity in either of the decrees, and that they are rendered in accord- , ance with the opinions which, at ihe last, supreme court formed. What, the court meant to adjudge is also made manifest by what they say in the case of the city against complainants, (27 La. Ann. 415,) which was a case with reference to' the power of the legislature to exempt complainants from wharfage dues. The court say (page 415) the grant was the control by the legislature of a publio servitude. , Cert!ilnly this is true to the extent to which the injullction asked for in'this cause goes, and it is only to t'hat extent that the matter is involved. In the cause No.3, 701, which was first heard and disposed of, the supreme court had settled the question that the fee to that portion of the batture upon which this property was located was in the city of New Orleans, and in their decree upon the rehearing they maintained that view without change, amending their decree only so far as related to the reconventional demand of the city. The matter involved in oause No. 3,692, at page 517, was, as I have atated,-conceding that the fee of the property was in the city, subject to the servitude which the publio had, it being a quay or levee,whether it could be controlled by the legislature without the consent of the city so far as to allow the plaintiffs their right of way, their tracks and depots; and it is clear that, comprehending fully the meaning of their decree, they had at last come to the conclusion that the leg-islature could so control a public place; for J udge WILEY, at page 52D, in his brief dissenting opinion says he "concurs that the state can grant the right of way," bl1t dissents from the conclusion of the majority of the court because the company could only get the land necessary for tracks and depots by expropriation or purchase. I do not say that this last decree is such a decree as I should have rendered, but I find it free from all ambiguity, and that it is manifest, by the opinions that preceded it, that the supreme court of the state intended to render just such a decree as the words used import; certainly, to the extent of giving the complainants the right which in this suit they ask to have protected.
ELGIN MINING & SMELTING 00.
v.
mON SILVER XINING CO.
877
This being my oonclusion, .it is my duty tQ treat the matter presented as a thing adjudged. Let there be a decree perpetuating the injunction, so far as relatea to the matters iU(jluded in the foregoing opinion.
ELGIN MINING
&
SMELTING
Co. and others Co.-
11. hON SILVBB
MINING
(OirC1tit Oourt, D. ()olorad-o. November, 1882.) 1. MINING CUlMS-END LINES.
In th.e location of mining claims, " end ljnes" must be established as required by the statute, and where the locator fails to do thIs, the courts will not fix them by implication. If the end lines be absent, or so placed as not to define
the right of the locator to the exterior parts of the lode, the defect cannot be snpplied.
2.
8AME-VALlO ONLY WITIIIN SURFACE LINES.
In such case the location may-be valid for aU that can be found within the surface lines, but beyond those lines an essential element of the right to follow the lodeis wanting, and therefore the right cannot exist.
Markham, Patterson if Thomas and M. B. Carpenter, for plaintiffs. Jonas Seeley, for defendant. HULETT,
D. J. On the twenty-ninth of June last, the Elgin Mining
& SIl;lelting Company, a corporation of the state of'Dlinois, and sev-
erltl natural persons, exhibited in this court their bill of complaint against the Iron Silver Mining Company, a corporation of New York, to restrain a trespass of the latter company on the Gilt-Edge mining claim, located in Lake county, Colorado. Asserting title to the GiltEdge claim, plaintiffs alleged that they had found a lode therein containing rich and valuable ore, and the defendant, claiming the same ore as being in and of a certain other lode owned by it and called the Stone lode, was proceeding to remove the are and convert it to its own use. After notice, defendant appeared and filed affidavits in opposition to plaintiff's application for injunction. As disclosed in the bill and affidavits, the controversy was mainly as to the right of defendant to follow the lode from the Stoneelaim, owned and worked by it, beyond the lines of that claim and into the adjoining claim owned by plaintiffs. "'From the Colorado Law Ueporter.