470
J'EDERAJ, REPORTER,VOl.
44.
If,hom!et-;hisofficeoHrust had any vitality as to him,it 'such only aB"the 'deed of assigntntmt gave him, and that was to 'exem1te'the trust and effectuate its terms. No authority ,express or implied!(was gi'Ve'n"hifuitontdlify or destroy the instrument that created him. ' To do sowort1a be 'a species bflegalsuicide.' , The Mticlilsion is that the deed of general assignment is not void or avoided; but that it is in force; that under it the creditors of Crudup, Tabler, aDd ,their two firm.s,including those who hold debts upon which they, or either of them,are sureties or indorsers, are entitled to a pro rata distribution of the proceeds of the property sold, after deducting the money paid in the of prior liens and incumbrances upon the property, ineludingtaxes thereon, and a compensation of $350 to Woodard 8sreceiver,-'"dne-half of this compensation to be paid out of may first come to his hands, and the of the funds which may last come to his hands. The other half costs of the case will he ;paid out of the funds. The clerk, as special master, wi,ll hea:rproof, and report what debts are provided for, as indicated herein; to whom they are due, and the respective amounts He will whether there is 'any other property or assets emassignment available, the proceeds of which may be applied to the aloresaid debts. , If so, give a description thereof. He may bring' before him as witriesserfCrudup,Tabler, and any other perSo'llS 'he de'em proper. He may also report as to the amount due complainant,' 'iid the credjts thereon. The receiver, Woodard, will be required 16' maKe 'but two payments in the ditltribution of the proceeds' oflh'e property sold byhim,--onewhenthe anl0unt o(the debts are ascertained, and to whom due, the other, when all the funds have been' , n "
collected.
CINdINNATI So'tf.tH.' R. Co. et al.11. ",' . WESTERN
WAy(JO.
CIfATTANOOGA
.
STREE'r-R.w.-' ,
&A.
Co.
fl. SAME.
(etreult Courl"E;D. Tennessee, B. D. December 24, 1890.) RAILROAD
, .·Wbere aeouoty court d...<J1ares a road to be open as'sooo as certain fences are set anll, cO,nditions with, a,nd the propolled road ,'is. left with mllroad tracks, aod embaokments crossing it for II years theree.fter. and there.is no 'proof' that any of the said 'conditions were e\'er fulfilled, the' cdunty authorities have,no: ,tp;grant ,1,1. cpmpallY pe,'missiOIi to hLy its track along' Suoh' , roadwithouttbe consent of the railroad company, l1oJI,d t.he layiDg of 8uch t.1"aok ""maybeienjbl.neli at 8uit of the railroad company.
.... '
In' Equity:' , Bill fotinjUnction · .Lewis SMphtrd;·· fdr'complainants., .··Clark .&0 BrOWn; for: defendant.
OINCINNATI SOUTH. B. ,00. tl. CHATTANOQGAELEC',t'BJC STREET BY. CO.
471
KEy, J. The railroads owned by complainants run parallel-for sev':' eral miles; that is, from Chattanooga to Boyce. To a stranger, their tracks would appear to be.a double track belonging to the same road. The defendant. is attempting to lay its track across these roads, ata point between Chattanooga and Boyce, and the bills are filed to enjoin and prevent tria. The defendant has taken no steps looking to a condemnation of the property of complainants so far as defendant's use of it is concerned; nor hl,lsit offered, nor does it admit that it is liable, to make any compensation for its appropriation. The point of crossing is beyond the city lim,. its, but within the county, and the defendant insists that it has, according to the requirements of law,authority to cross complainants'roads, by reason .of the lictionof the county court of the county, without the consent of complainants, and in opposition to their will. The contention of the defendant is that the Harrison Avenue road which,it is said, crosses .the railroads at point at which defendant proposes.tacross them, is a public road dnly established by the county c()urt, and that the county court has givell authority to defendant to cross. them. Unquestionably the county court has thejurisdiction to lay outand establish It also has power to conf>ent that the defendant may run along the public roads of the county, but in,eaehcase the law im_ poseslegal methods and limitations. All must be done in, com pliance with thelaw. Is there such a public road at the place of the greposed crossing as authorizes the county court to llllow the defendant toiIse comof way without their consent -or compenplainants' road-bed and sation? The complainants were here first. They purchased and paid for the lands they have. They graded their road-beds, laid their tracks, and had equipped and operated their roads before defendant had an existence. The complainants allege that the business of their has so increased that it is necessary, in order to properly handle their freights and freight-cars, to bulld sidings, switches. etc., between Boyce and Chattanooga, upon the lands they own along their tracks; tllat some sidiogs an,d switches have already been built, and that they wiiI proceed to build others. Defendant denies this, but which is the court to be-lieve? And if it should turn out that this point has been determined upon as one where these sidings, switches, etc., are to be used and built, it would very seriously interlere with the operations of all parties to allow defendant's track to cross through complainants' switch-yardR, and thus destroy or seriously burden and impair the use to which the property had been, or even might be, conveniently appropriated, especially when no compensation is otlered, and liability therefor is denied. The legal maxim is, "So use your own as not toinjure your neighbor." In the case under consideration; however, the defendant would be allowed to use the property of its neighbor in such a way as to injure that neighbor. . But admit thllt all this ,might be. done under the law, has it been done? The defendant insists that there was a public road at this crosssupport of that position. ing many years ago, and introduces
472
J'liIDE:RALREPORTER,
vol. 44.
The action oftha county court and subsequent events overthrow tbat idea. There was occasionally some use of it, but no such use is proven as would justify the inference that there had been a dedication of this property to its use as a public road, and the fact that the county court appointed a jury of view to report upon the laying out of the road is opposed to the theory that it had previously established such a road, or that it already existed. The county court, at its October term, 1879, ordered___ "That Robert Simpson, L. n. Headrick, Patrick Gamble, Jacob Kunz, H. Knox, and E.n. Edwards, or any five of them, be appointed a jury of view to report upon the discontinuance of the old road described in the pleading, and to layoff a new road designated in the petition until it intersects the present Shallow Ford road, intersecting McCallie street in the city of Chattat1ooga." At the January term, 1880, of the county court, this jury reported, recommending that the new road be opened up as soon as the land-owners, who have consented to open same free of charge to the county, set in their feuces,and when Manz shall have made a road round his southwest corner, and down his and Ruobs'line to old Shallow Ford road, then Shallow Ford road shall be discontinued as a road through his land; and when said Headrick and Henderson's heirs shall have opened a road along their western line to Bird's Mill, or McCallie-Street road, then sa,id old Shallow Ford road shall be discontinued through their land. The court adopted the report, and ordered it spread upon record; and "that the road be declared open as soon as the conditions in said report be complied with." Whether this was declaring the road open when the conditions should be complied with, or was an order of promise of the court that the court would declare it open after the conditions were performed, is not material. The order did not open the road absolutely, but conditionally; and the road could not be open in law or in fact ·until the conditions became aceomplished fncts. We have no evidence of such a result, but the contraryappeal·s. The action of the oounty court occurred in the latter part of 1879, and first of 1-880. Blackford, in his affidavit, says thnt he thinks that the first train of the Cincinnati Railroad arrived here in the latter part of 1879. It must be that the action of the cou.oty court and the building and opening of that railroad to business were contemporary events. The railroad raised such an embankment at the place in controversy that defendant has to build trestles so as to reach the grade of the tracks of the railroads. The Cincinnati Southern road built a wire fence along the line of its right of way, and no effort for many years was made to open the way by indict-. ment or otherwise, but these obstructions have been allowed to remain. The road to this good day, 11 years alter the action of the county court, has not been opened. There is no road graded for or by the public over or county this proposed cross-way. The law does not intend that a may declare a street or road open, and, without opening it in fact, give a street railroad authority to use it, and to that end open it. The county must a road, not only established, but opened for the use of the
MARTHA WASHING'J.'ON.CREAMERY BUTTERED FLOUR CO. V. MARTIEN.
473
public, before it can give the right to a street railway to use it.', It is the road, not the place where the road may be made,which is the thing dealt with. If a city or county may declare a street or road open, and then, without actually building the street or road, grant permission to a street railroad to use it, and if this should authorize the street railroad to open and use it, it might never be used, in fact, as a street or road by the public, but simply as a street railroad, without the easements costing it a dollar. The city or county would pay for the right of way. Suppose the city of Chattanooga should declare a new street open across all the tracks of the switch-yards of the various railroads that come within the city, and then, without opening the street in fact, should permit a street railroad to use the street, it would hardly be insisted that authority so granted would confer absolute power upon the street railway to open up and use such street. It will hardly be contended that a cotirtof equity might not interpose to prevent such an injury to the railroads as would result, and danger to the public as would necessarily follow. This is an extreme case, to be sure, but sometimes extreme cases illustrate a principle. The conclusion reached is: Firat. The county has not established and opened the road which, it is claimed, crosses at the point defendant proposes to build its tr.ack over the railroad tracks. Second. That if the road bad been opened arid established by the county court, defendant would not be allowed to cross and use complainants' road-beds and rights of way without compensation to complainants. Therefore an injunction is granted, as prayed for, as to Harrison Avenue road, but not as to East End avenue. It has not been deemed necessary to pass upon-the other questions raised, and so ably argued by counsel, at this stage of the case.
MARTHA WASHINGTON CREAMERY BUTTERED FLOUR STATES, Limited, v. MARTIEN.
OJ!'
UNITED
(Oircuit Court. E. D. Pen'1l.81lwania. December 16,18l1O.)
t.
1'BADB-lbRKS-INlI'RINGBMBNT-INJUNCTION-DEFENSBS.
to
In a suit. to restrain infringement of plaintilr's trade·mark it is· no defenM that. delendl!.ut had a,license for its use, where the contract for the license requires defendant to keep books, make returns, and pay royalties or forfeit the license, and it is shown that defendant failed to perform these conditions, and that plaintiff notified him that the license was terminated.
SA.MB-COMPENSATION.
Nor is it any defense that compensation may be made, for plaintiff is not Meking to enforce a forfeiture, but insiats that the license is terminated by the tel'ms of the contract. Nor is it any defense that defendant bad purchased machines constructed OD plaintilr's order for the manufacture of the article under the license, where auch machines were not made by 'plaintiff, and he derived no advantage from theil' construction or purchase. . ,
. . SA.MB-PUROlUIB OJ' MA.OHlNItS.
In Equity. Rep. 797.
On final hearing.
For statement of facts
37 Fed.
