TOD II. KENTUCKY UNION RY.CO.
241 (ROSSER et
'fOD
et ale
II. KENTUCKY UNION Ry. CO.
et al.,
al.,
Interveners. ) (C-irowU Court oj Appeals, S1.xth ctrauft.
October 4, 1892.)
Nos. 22,29. L MECHANIOS' LIENS-LABOR CONTRACTORS-KENTUOXY STATUTES.
Contractors supplying laborers and teams for the construction and repair of a railroad, being paid for the same by the day, and either party having the right to stop work at the end of any day, are not or "employes" within the terms of Act Ky. MliI.rch 20. 1876. which, among other things, gives alien fol' work done and materials furnished in keeping the road a going concern, but must on the contractors' act of March 27,1888, which gives a lien in favor of persons "furnishing labor or materials for the construction or improvement" of road, canal, or other ,public improvement. . heresupplies,suitable either for the construction of the unfinished part of a W railr(lad or the carrying on of the finished part, are furnished without any c,ont!'act as to how they shall be used, the material man has a lien unCijlr the act of 1876 for the part' actually used in operating the railroad" and another lien under the, contrac1;ors',.ct for the part actually used for construction and repairs; but whE/rehe has lost the li.en \lnder the latter act beoause of's failure to file his statement within 60 burden of proof is on him to show what part of the supplies was·actually the operation of the road. Wheretlie mortgagees of an insolvent railway apply for the appointment of a receivejrand the sale of the property, and material men intervene by petition, clalml:n&' a superior lien, the failure to give the claimants perBOll:\1 judgments for their respective debts against the railway is not erroneous.
I.BAJilE-MATERIAL MEN·
a.
MORTGAGES-FOR'ECLOSURE-INTERVENERS-PERSONAL JUDGMENTS.
Appeals from the Circuit Court of the United States for the District of Kentucky. ' In Equity. BiU by J. Kennedy Tod & Co., the Central Trust Company of New. York, and the Columbia Finance & Trust Company against the Kentucky Union Railway Company and others for the appointment ofa receiver,foreclosure of mortgages, and sale of the property. Rosser & Coleman intervened by petition, claiming a superior lien as laborers and material men. A demurrer to the petition was sustained. Thereupon the petitioners appealed, their cause being numbered 22. W. & A.C.Semple, Fa.irbank, Morse & Co., and Andrew Cowan & Co. appeal from a decree confirming the master's report, which disallowed most of the appellants' claims, and overruling exceptions thereto, their cause being numbered 29. Affirmed in both cases. Stone ct Sudduth, Dodd ct Dodd, A. BarneU, and Thos. C. Bell, for appellants. Humphrey ct Davie and St. John Boyle, for appellees. Before BaowN, Circuit Justice, and JACKSON and TAFT, Circuit Judges. ' J ....CKSON, Circuit Judge. The questions, ,presented for decision in these cases relate to the respective rights and priorities of different lien olain:iants upon the property of the Kentucky Union Railway Company, which, was chartered under the laws of Kentucky to construct, own, and operate a qesignatedline of railway in said state, about 100 miles in v.52F.no.3-16
t242
. "FlmERAL REPOnTElit;· vol',52.
length. Prior to 1883 about 15 miles of its road was completed and in operation. In·order to raise fUlHlswithwhich. to 'extend ita libe eastwardlyand westwardly from; the oompleted portion, said railway company, on July 2, 1888, executed a mortgage or trust deed upon its property then!oWl'let!· and thereafter to' be aequired ,to:the Centrap 'Trust Cornpany of New York, to secure of $3,000,000 first mortgage bonds. Said mortgage was executed llfider"authority duly conferred, and was properly recorded. .Tbe bonds secured tbereby ,were, iSlilue<;iand ll:sed fur',tOe purpoBeSof :the company. ,Thereafteri'onJuly 1j 1890, said railway company executed 11 second morfgage(in'tpe same properties to the Columbia, Finance & Trust Company to secure a issue of .$1,80q:"Oqo of This mortgage was also duly exeCuted and -recorded,llndthe bonds thereby secured were issued and used by the company. .T. Kennedy Tod & Ccb:iu.bsequently t1).e company 372,500,undilran agreement that·said sum should be secured by $140,000 of bonds.,wh,iqp were to veredtd said firm aa colla.teml security,Jor said advance, with interest '(Iotn January 6, tb'eplPply,vith itspi'pwise tq d.eliver aaidcolllttefa1sec\lHty;B.nd in February, 1891;,said'J·. Tod & Co., in theCentFal C01!lPll.?Y ?,f Fma,ncei$t; Tf:Dst Company, tUe(ithelr 1n11 m circun o@urt',fol'.the, dlstript 'ofK1entllcky against ,said . railway compliny, was entirely divers persons, whose names were unknown to complainants, claimed !i$l8Upon all ;or a portioQ';Qfthe Gomp.nnY!s, property, which they thrp,atened to enforce, and which, if enforced in separate proceedings, wouldcallstn saverAr'ieeand'¢!isintegratiOltof tbe:llailroadJine, etc.; ,a,pd. praying thattha <murt would atipoint a receiver, of Bf!,ld ·Company's railway,prpperty, assets; etc.; that it,wQuld foreclose' :said. rmortgages, sell:said, with its .properties and franchises,al'l: an entirety, nndapply, rthQ.proGeeda to'the satisf*1ction of the debt due complainants, J. Kennedy, 'roll, ,&: Co. ,and secured by said mortgages, to. with lien debts, according to theirrrespective priorities. .A ,receiver..wus and a reference .was directed: a special master : proo,f,lt1)<1.report upon "claims against said railway compauy.incQ.rred forma,terials andsuppliea, furnished it for its :ordinary operation." There was also a genetal order. made in relAtion' to intervening petitions.. The appellants Rosser & Coleman intervened by petition, and asserted daims as laborerlii /lnd employes of $2,806.86, whiCh It lien., upon the company's property prior and superior to that of the debts due to and represented by the complainants. They allege in their original petition and the amendmehtsItJbereto that Ifrom about March 5, it890, :until about April 14, 1890,: ,ilhey, performed :workand labor in construCtion and repair 'of the raihvay,oompa.ny'sroad, onsectiorts 74, 75,lIitiId76 thereof, in I.ee county, Kiy,,'under.flj contract which was in substttIice as follows: That, having iJll:,thein, employ certain laborers,and oWning carts, teams, and 1
,.0
if .. ,
TOD II·.
UNION BY·. CO.
243
tools {or the putpose,the railway company agreed to employ them, with their slLid laborers, tools, and teams, by the day, to do work on the aforesaip of its road, under the direction and control of were to be paid certain sums per day for foremen, its engineer; tbat for laborers, and for teams, consisting of carts and mules, and 10 per cent. additiQnal J)Q the amount of .said daily sums for the use of their tools, and for their superintendence of the work and hands, and be reimbursed the cost of powd&r necessary to be used in the work; that either party had the right to stop said work at the end of any day; that while the employment continued petitioners paid their said hands or laborers. It is then that under this contract the railway company became indebted to petitioners in the sum of $2,806.66, for which it on October 15, 1890, executed ,to them its promissory note due at four months, which petitiollers thereafter indorsed and negotiated to the Clay City National Bank, and I't its maturity were required to take up, the maker having failed to pay the Sllme. Petitioners claimed that under said contract they were laborers aud employes of the railway company, and as such were entitled to 8 lien upon its property and the proceeds thereof for the amount due them, which was prior and superior to complainants'. Their petition was demnrredto on the ground that it presented no case entitling them to the lien claimed. This demurrer was sustained, and the dismissed. From this judgment said petitioners have appealed. fora lieQ,js based on an act of the legislature of Kentuckyapproved March 20, 1876, entitled" An act to provide for liens for laboring men and sqpply men," which provided (section 1) that "when the property or effects of any railroad company, or of any owner orOPflrator of any rolling mill, foundry, or other manufacturing establishment, whether incorporated or not, shall be assiglled for the benefit of creditors, or shall come into the hands of any executor, administrator, commissioners, receiver of a court, trustee, as!lignee for the benefit of creditors, or shall in any wise come to be distributed among cred- . itors, whether by operation of law or by the act of said company, owner, or operator, the employes of said company, owner, or operator in such business, and the persons who shall have supplied material or supplies for the carryillg on of such business, shall have a lien upon so much of such property and effects as may have bee,n embarked in such business, and all the accessories connected therewith, including the interest of said company, owner, or operator in the real estate used in carrying on said business." :ay section 2 it is.declared that" the said lien shall be superior to thelieu ,of any mortgage or other incumbrance heretofore or hereafter created. and shall be for the whole amount due such employes as such, or due for materials or supplies," etc. The third section prodistribution of the net earnings at the end of each vides for. the calendar ll;l0llth among lien holders, when the trustees or other persons having of such property "shall continue the operation of the busipess:" The fourth section provides that when the company I l>r operator shall suspend, sell, or transfer such busioes.s,
Ol'when the property ol','effects engaged shall be taken ifiatta.dhment or'exlecu'tion, so that the be stopped orauspended; the Said Hen shall attach as fully as is'provided by section 1, and in such case may be enforced by proceedings in equity. The fifth section airects how the suit shall be brought, and provides "that such suit shall be begun within sixty d'ays after the right of action shall accrue." When this act was pMsed there was in force the prior statute of 1858, ,which gives a person who performs labor now chapter 70, Gen. St. or furnishes material in the erection, altering, or repairing a house, building;or other structure, or for the itnprovement in any manner of real estate 'by :contraet with! or by the written consent of the owner, a lien theroonandupon the land on which such improvement may have been provided, the :claimant, withi,n 60 days after he ceases to labor or fUl'J'1is"hmaterial, files in the, office 'of the clerk of the' county court ofthe C6i:inty.(in which such 'building or iirlprovement is situated, a statement oHhe'amountduehitD,with a desariptionof the property intended to be,covered by the lien,: to identify it; and the name ofthe"oWner, and stating whether the materials were furnished or the labol.'perfOrmed by contract with tlreowner: and provided, further, that actiobshall have been"brought to enforce the lien claimed within six months ·from the day6ffiling the account in the clerk's office ,as aforesaid. By an act of the Kentucky legislature approved Milrch 27; 1888, entitled "Ail' act to (,'teate a lien on canals, railroads, and other public improvenientsinc favol' of persons furnishing labor or materials for the construction ot'iihprovement thereof," called the "Contractors' Act'," it is provided (sectiont) "that all persons who perform labor, (')rwho furnish labor, luatel'illlsj Of teams for the construction or improvement of any canal, railroa:d,turnpike, or other public improvement in this commonwealth by \ontract, express or implied, with the owner or owners thereof, shall have a lien thereon and upon the property and franchises of the owner or ownersthereof for the full contract price of such labol', material, and teams so futnished or performed; which said lien shall be prior and l'luperior to all other liens theretofore or thereafter created thereon." The third Hectian deClares that no provided i for by the act shall attach unless the person who performs the labor or .furnishes the material or teams shall, within 6Wdays after the last day of the last month in which the labor was perfbrrned or materials or teams were furnished, file in the county clerk's office a statemenHn writing, verified by affidavit, of his account or ciaim, substantially as required under the act oH858; and by section4 it is provided that proceedings for the en:fotcementof such liens c, must within one year froUl the filing of the claims in the county clerk'.!s office, as'required by the third sectiob of this act." These three acts corn prise the"legislation of the state upon the subject of statutory liens in favor of persons perforltling labor Or furnishing material and supplies,' and, under well-setiledrules, should be construed in their proper interpretation and application. When thus considered
TOD V. KENTUCKY UNION RY. CO.
it seems clear that they were intended to provide for three distinct classes; the act of 1858 covering the ordinary case oflabor performed or material furnished in the erection, alteration, or repair of houses or buildings, or other improveITJ.ent of real estate; the act of 1876 applying to the case of services rendered or supplies furnished in or for the carrying on of· certain designated business occupations, when they suspend, or their property or effects pass by assignment, by operation of law, or by order of court into the hands of some trustee, commissioners, or receiver for administration and distribution among the creditors of the owner Dr owners thereof; and the act of 1888 embracing the case of labor performed, or materials or teams furnished, in the construction or improvement of certain works of a public or q,uasi public character. This latter act may properly be regarded as a legislative declaration that the prior statutes did not cover the case of labor performed or materials furnished in the construction or improvement of railroads. It was ir).lleed decided by the supreme court. of Kentucky, after the passage of the act of 1876, that neither under that statute, nor. the general mechanic's lien law of was there any lie.n against or upon a railroad for work performed thereQ.n or materials furnished. Graham v. Coal Road Co., 14 Bush, 425. This denial of a lien upon railroads under the then existing statutes created the necessity for and led to the passage of said act of 1888. It admits of little or no doubt that appellants' petition presents a case within the purview of this latter act; their labor or that of the hands in their employ having been performed, and their teams having been furnished, in the construction and improvement of certain sections of the defendants' railroad, which would have entitled them to a lien if they had complied with the requirements of said act in filing a statement of their claim in the proper clerk's office for record, and bringing suit for the enforcement of the same within the time provided. They failed to ,allege any such compliance, and are clearly not entitled to any lien under either said act or that of 1858. Having lost their lien under said act of 1888, they now claim that they should be regarded as employes and lahorers of the railway company, within the provision of section 1 of the act of 1876, and as such be given a priority of lien for the amount of their debts. This position cannot be sustained. If the act of 1876 has any application to labor performed in the construction or improvement of a railway, such as that set forth in the appellants' petition, the lien would exist, not in their favor, but in favor of the laborers in their employ, who actually performed the service. But we think it very manifest that said act of 1876 has no reference to construction work such as appellants performed with their hands and tel1ms. It has relation .alone to certain specified industries or enterprises as existing and established concerns engaged in carrying on business, and the lien therein provided for is given, not to the contractor who constructs the road or .erects the plant, but to those persons, other than president, chief officer, director, or stockholder, who furnish materials or supplies, or render service in "the carrying on of such business." The lien given such emor furnishers of materials and supplies, in the contingency des-
RDERAL REPORT'ER, vol. 52.
on tbepr6pertS'imd 'effects embarkedihthe business." The pe!'SOl'lsliIi whose, is created are not 'required to file any notieeor cIaimoflien, or take any preliminary steps as a prerequisite to the enforcement of such which is more extensive in its operation than that conferred by e.ither the:adf of 1858 or 1888. As weIl stated by the learnedi judge who decided the case in the lower court, "it is clear that no 'lien is created at the time the labor isperforrned or the material furnished, but it only arises upon the stoppage or tltlspension of the business, either by the act (}f the party [ownerJ or by operation onaw, and is given as a statutory preference in the distribution of the effects and assets of the business." In other words, the act in its legal effectandoperation provides that those who furnish material or render service as employes iri carrying on the business of certain designated industries and enterprises shall, upon the stoppage or suspension of such concerns by operation of law, or actofthe owner, have a prior lien upon all the owner's properiyand effects embarked in such business for the amounts due them. ' The lien thus created by the act of 1876 is essentially different from provided for by the general mechanic's lien law of 1858, or by the contractors' actof1888. It arises or comes into existenceupoti the oftbe insolvency, embarrassment, or discontinuance of the business which the employe or furnisher of supplies has assisted in carrying on, and attaches upon all the property and effeetsof the ownererril'iarked ,therein; and applicable for distribution among creditors. Under-the other acts the lien arises upon the coml11encEiniehtof the work,: Or relates back to that time, if the requirement fiiingnotices or staiement thereof is complied with by the claimant. The acts of 1858 and 1888 apply respectively to cases of labor performed and: material furnished ,. ih the .erection or repair of houses, buildings,.and other irbprovements oti real estate, and in the construction or imprMement of public or quasi public works, such as railroads, turnpikell,Canl'l]s, etc.; 'While the act of 1876 applies to labor performed and material furIUshed'1n the operation of companies or concerns already built or cohstructed. The act of 1888 gives a lien for labor performed or material furnished irithe construction of certain works of a public or quasi public <lhliracter,--that is, in the establishment of such concern. The actofl816 confers a lien for labor performed and supplies furnished iIi keeping stlc.hdesignated establishment a going concern. The manifest purpose' of this act of 1876 was' to provide such security to laborers arid supply melfas would- induce them' to continue established and going O'perati<m' as ·longas· 'fhis construction harmonizes said:actS i andpresetitil a consistent system of legislation on the subject of stltliutf>ryliens;: It would berhost anomalous to provide a double lien. Itc!mndt be assumed that the legislature intended that a cont1'nctor, whd hadfaiIedor, neglected to comply with the requirements of the act of 1888 in perfecting his should nevertheless still have a.nd be allowed' to assert a moreexterided lien, under the aCt of 1876, upon alltheptoperty and effects of the owner embarked in the business. WethinkiFClearthat theappeHahts: Rosser & Coleman should be ra-
TOP V. KENTUCKY UNION:· BY. CO.
:garded.as" contractors" under the act of 1888, not as "employes," under and entitled to the benefit of the act of 1870. Neither the fact that their em ployment was a daily one, nor that ,their compensation was to be ascertained and settled by the method agreed upon, in any way affected or changed the character of their services,which were rendered as" employes" and as contrltctors. They cannot properly be "laborers,?' within the purview of the act of 1876. In Vane v. Newcombe, 132 U. S. 220, 10 Sup. Ct.:Rep. 60, the plaintiff having contracted with the company to erect certain telegraph wires on the company's poles, and furnished the labor of himself and others in -doing the. work, claimed a priority lien, under a statute of Indiana which gave a lien: to employes of corporations. The supreme court said: "It .seemS clear to us that Vane was a contractor with the company, and not an employe,within the meaning of the statute. We think the distinction pointed out by the cirC\lit court is a sound ODe, <namely, that to be an employe, within the meaning of the statute, Vane must have been a servant,bound in some degree, at lea.st, to the duties of a servant, and not, as wasj a mere contractor, bound only to produce or cause to be produced. a certain resu1t,-a result oflabor, to besute,......but free to dispose of his own time and .personal efforts according to his pleasure, without respoQsibility to the other party." . The lien was accordingly denied; and in Railroad v. WilBon, l38..U. S. 501,.11 Sup. Ct.. 405, it was said that an employe implies continuity of service, and excludes those employed for a special or single .transaction. In construing the New Jersey statute, which gave labo.rers of corporations in case of an insolvency a lien :upon corporate assets fur the amount of wages due them, the of that state held that the right conferred waS strictly inhering alone in the actuallyperlorms the, labor or :service, and that he who furnishes the labor or services of others un· del' a contract to do the whole business of a corporation, or a particular branch of it., was neither within the letter nor spirit of the act. It was further held by said court that the wages, to be wi.thi n the protection of the statute, must be due to a person in the employ of the corporation at the time when it became insolvent; that only those .in the employ of the <lorporation at the time of its insolvency were within either the words or policy of the statute. Delaware, L. &: W. R. 00. v. Oxford Iron 00., 33 N. J.Eq. 196. We think the first of said propositions is the proper view to be. taken of the act of 1876. Whether the last proposition of the New Jersey decision is correct, it is not necessary in this case to decide, aesaid appellants do not bring themselves within ·the provisions of said 2.ct. Our oonclusion, therefore, is that the petition of Rosser & Coleman was properly dismissed. The appeals of the supply claimants, W. & A. :C. Semple, Fairbank, Morse & Co., and Andrew Cowan & Co., involved in record No. 29, heard with the case No. 22, depend upon the construction of the acts of 1876 and 1888 already considered. ,Said claimants severally lurnished suppliesalld material to the railway company, suitable for either the .c()nstruction of its unfinished line, or for carrying on the operations of
248
FEDERAL ,REPORTER,
vol. 52.
ing, express or implied, between the parties as to how the supplies furnishedshould be A portion of them were, used a.nd employed in the construction of the hnfinishedparts of the company's road, and a portion were used in cnrrying on the company's business, or in operating the .finished part of its line. For such portion of the supplies so furnished as were used and applied in and towards the construction of the road, the clllimarits would undoubtedly have had a lien under the -act of 188Sif they had tiled the proper notice of their claim. They did not,however, comply with the requirements of said act, and now insist that'they have a lien, under the provisions of the act of 1876, for the whole aMount of their <!Jaims,without regard to how the supplies were' apportioned as between construction and the carrying on of the bU$ini'lss'of the company. So far as anything appears from the testimony',' there was DO breaohof duty or bad faith on the part of the companyor its' officers in applying ,:portions of the supplie!'l and materials furnished to theconstructidnof unfinished portions· of the road. It was in fact left to the ,diScretion. of the company and its officers what dispositionsoould be madeofthe supplies and materialS' furnished by the claimant!l,who made no inquiry and gave no directiOns as to how theywe'te of$hould be used or applied. It was affirmatively shown by o<Jmplaimints that certain por.tions of theaaid supplies and material had actnally been 'used in ·construction. The court below allowed a lien for such portion of the claims: Were for supplies furnished and used for -the operation'of the railway 'or in oarrying on its business upon and over its completed line, and denied the lien for suchpOl'tionof the supplies or material as \fere used andiapplied in its construction, and for which alien Muldhave been muintllined under the act>of 1888; Thisaction of'the courbis claimed to have been erroneous. No -question is raised as to, the correctness of the su pplyclaimants' debts as against the railWfi.y company. The controversy presented is between such supply men. and the mortgagees,; whose contract lien antedates' the creation of the former's claims. In this contest (or priority we consider it well settled that the burden of proof is upon the claimants to establish whatever is necessary tocon£er a preference on their part. In Davis v. Alvord, 94 U. S. 545 j it is said that those who assert a statutory lien upon real property I and claim priority over mortgagees and others who have ac'quired righta llind in the property, must furnish strict proof of all that is essential to the creation of the lien. It is further said in that case that the court cannot presti,me, in the absence of proof, that the requirement!'lof the statute have been complied with. Under no fair construction of the act of 1876 can it be asserted that thamere fact of furnishing artioles or supplies, sWtable or capable of being used in carrying a understandinK Or agreement that they shou.li(!l 00 so applied, wiUof itself give the furnisher a lien upon . all the property and effects embarked in such business, without reference to their actual application. The object and purpose of the act, as ,already explained, as well as the language employed in conferring the
'its finished portion.. There was no contract, agreement, or understand-
as
on
TOD". KENTUCKY UNION RY.OO.
249
lien, require that the supplies should be furnished,-at any rate, be used,-" fol' the carrying on of such busirless." If the complainants had not shown affirmatively that the rejected portions of the several claims were used and applied in and towards the construction of unfinished parts of the road, the burden would nave still rested upon the claimants of establishing the fact, as against prior mortgages, that the supplies furnished were either purchased for or were actually used in carrying on the business of the railway company, so far as it was an established and going concern. We are not called upon in this case to determine the question whether, if supplies should be furnished for the express' and understood purpose of carrying on the business of any of the designated companies, and should thereafter be diverted to other use by the purchasers, the furnishers would have a lien under the statute, for there was no agreement or understanding, express or implied, as to the specific purpose for which these supplies were furnished, or as to where they were to be used. Under such circumstances the furnisher claiming priority of lien has devolved upon him, at least, the duty of showing that the supplies were actually used. for carrying on the business, in order to bring himself within the meaning and intent of the act. The several olaimants have failed to do this, so far as the rejected portions of their respective claims are concerned. The rejected items were used in construction. They we're covered by the act of1888, especially in the absence of any agreement or understahding that they should be applied in carrying on the business of the company. The furnishers could have asserted 'a lien for the same if they had complied with the provisions of that act. This they failed to do. The act of 1876 was not designed to give the same party a double lien, or an election as to which statute he would claim'under. We think there was no error in the special master's apportionment of the several claims, as between construction and operation. Nor was there any error in the lo\ver court's failure to give the claimants juagment for their respective debts against the railway company. No such personal judgment was sought, nor properly involved in the proceeding. On the question of interest on such portion of these claims as were allowed, there has been,no action on the part of the lower court in either allowing or disallowing such interest; hence there is nothing in this question for review in this court. Our conclusion on the appeals presented by record No. 29 is that there were no errors in the action of the lower court upon the claims of the several appellants, and the judgments of the lower court thereon are affirmed. Said cause No. 29 will be remanded to the circuit court for the district of Kentucky for further proceedings in the administration and distribution of the property, franchises, and effects of said railway company in conformity with the opinion of this court in respect to the aforesaid claims.
vol. 52.:, , T
, ,
'Btttmd :ii,
al. W.ASPElt
. "
",
MIN.
&
SMEJ"TING
;Co;,tt 01.
" 'f ': l c'
l,}
,
No. 80. ,
j'
sas.
: ,to,
an exeeute conveyances to a trustee for tile purpoll& of ,brlng!1llgsuit in thei..bel!.alf. Bud t\J.ll trustee delays unreasonably 9db:lgllHW l:I.l'lreupoJ!. ,the claimants bring a bin ,, equity intbeir own nBuies;the 't:rustee'll'llOUid be made '.party defendant, anll it IS not a fatal Db'1eetion llbe1'etothali collotroversy mayiari'e'l!etween the claimants and the trustee, to Rep. 338, afll.rJI:l,ed.
a
. aerore CALllWELL Judge. I
Bunn ,kHatlky, on, , T. A.
M:!lrgaret, and others against the Aspen a, ny, ,.as, rights O,f camp, a, of: Wllham J'll;Wes Wood" one, of the orIgmal dismissed ,the bill onth 13 merits. and comappeals reversed this decree, plainants appealed. the now petiiion for a rebear(see 51 Fed. Rep. 33$,) , " ' ing. Denied. ' , '," George .1,. Bunn, and WolcoU k Vaile, (Lusk, fOf
. from. tb,e Qolorado.' , ' :';, ' '. In Equity. ing &Sm., mmo 8S the
of (he, iU#i ,,'>:'. "',,
'ror the District of ','
:WWn.gS
,',
till"
SANBo,nN"
opposed. , and SRIRAS, District
SHllW!,Piatrl.ct J U P0J;l thefilililg ofthe opinion in tbis ca.use, counllel fol appelleel5 "AAtition for rehearing, supported by bdefs, in which it is strenuously Qontended that the court erred in holding; that it was not ,open to the, appellees to aver that William J. Wood was an alien, andtherefo,re could nQt acquire any right or title in thE? mining claim 10cl\tedl;Jy him in conjunction with ,Fisk and Fitzpatrick. It is. urged that mil}inginterests Fi,gbts form an exception to the rule thllttbe,right to defeat. a title to realty on the ground of alienage is reflea'ved, 'Oij.lytp;the and, reliance is placed upon a clA$s,of v.Oampbell, H6 U. S. 418,,6 Sup. Ct. Rep. 421, il'l a (ijiilh'!9'mr6!?enta.tive. In .case the defenda.n4l., claiming to be the owners of the Omaha lode, filed a survey and plat thereof in the proper land office, and applied for a patent thereto under section 2325 of the Revised Statutes. The plaintiffs, who were the owners of an adjacent mining property, known as the" Highland Boy Lode," filed < ','