90S'
FEDERAL REPORTER,vol.
52.
reference to the valuation of the ·anim81 shipped; and for the negligent killing of it horse of the value of 810,000, at time of shipment, there could be recovered, if the contract provision be upheld, no greater damages than for aharse of but $100 in value. Such a contract cannot be said to be, in the eye of the law, just Rnd reasonable, in its attempt to limit the responsibility for the negligence of the carrier. When tested by the extracts above given from the Hart Case, the failure of the contra:ct in case at bar to meet that test becomes strikingly manifest. "The agreement as to value in this [Hart] case stands as if the carrier had asked the vaJue of the horse, and had been told by the shipper the sum inserted in the contract." The exceptions to the master's report are therefore overruled.
CENTRAL TRUST
Co. OF NEW YORK et al. v. WABASH, ST. L. & P. Ry. Co., (ST. LOUIS,K. & N. W. Ry. Co., Intervener.) (Oircutt oourt, So D..Iowa, E. D.)
RAILROAD COMPANJES-REOBI"RS-LUBJLJTY ON CONTRAOTS.
The W. o St. L. & P.Ry., as assignee of the M., I. & N. Ry., held a half Interest , in a certain bridge and piece of track, the maintenance and repair of which was provided for In a wltb the other joint tenant. Receivers of the W.,St.L. &! P., includlnlr its leased line!!, among them the M., L & N., were ap. pointea,and made a sMoial contract for specific repairs, whloh were made by the Joint tenant iuaceordance:therewith. Thereafter a special reoeiver for the M., I. & N. was appointed. HeM, that the reoo{vers of the W., St. L. & P. were liable aSlluch for the repairs, t4011gh as against the Mo, I. & N. they might have had a good claim therefor.
In Equity. Petition of intervention by the St. Lonis, Keokuk & Northwestern Railway Company, to assert a claim against Solon Humphrey and Thomas E. Tutt, as receivers of the Wabash, St. Louis & Pacific Railway COll:lpany. Order for payment of claims. H. H. Trimble and Palmetr Trimble"for intervener. James a. Davis and Frank Hagerman, for receivers. WOOLSON, District Judge. The material facts involved in the hearing ,of this intervention are not in dispute. In April, 1882, the St. loUis, Keokuk. & NorUlrwestern Railway Company, the intervener ¥erein, (and who is spoken of as the St. Louis Company,) owned a line of track extending sQuthward from the city of Keokuk, Iowa. The Wabash, St. Louis & Pacific Railway Compally, (hereinafter spoken of as the Wabash Company,) was at that date operating its railway south from Keokuk, and was the assignee and Jessee of the Missoqri, Iowa & Nebraska Railway Company, (hereinafter spoken of as the Missouri Company.) Said Wabash Company (as such assignee and leasee·of said Missouri Company) and said St. LouisCo'l11pany were the joint owners of a bridge'over the Des Moines river; and said line of
CENTRAL TRUST CO.'!!. WABASH, ST.
t..
& P. RY. CO.
909
track, owned, as above stated, by the said St. Louis Company, ted to said bridge at its north, and also at its south, end. In April, 1882, said Wabash Company and said St. Louis Company were both using said line of track-or about seven miles thereof-and said bridge; and at that date entered into an agreement whereby said Wabash Company agreed to pay a certain rental for use of said track, and said two companies, the St. Louis and Wabash, therein agreed upon certain terms for the maintenance and repair, among other matters, of said bridge so JOIntly owned and used by them. In May, 1884, Solon Humphrey and Thomas E. Tutt having been appointed receivers of said Wabash Company, including its leased lines, an ancillary order to same effect was entered in thifl court. Among the leased lines operated by the said Wabash Company. and which passed into the control of said receivers, was the line of said Missouri Company. And said receivers continued to use the seven miles of track and bridge which, prior to their said appointment, said Wabash Company, as assignee and lessee of said Missouri'Company, had been using jointly with said S1. Louis Company. In December, 1884, it became necessary to repair said bridge. An agreement in writing was entered into between said St. Louis Compariy and said receivers,whereby said St. Louis Company was to make the nedessary repairs, (which had been specifically agreed upon,) and one half the cost thereof was to be borne by the St. Louis Company and the other half was to be paid by said receivers: The repairs were begun in December, 1884, and concluded in June, 1885, amounting to $533.59, being $266.79 to each of said contracting parties. On July 2, 1885, and pursuant to due order of court, said receivers, Humphrey and Tutt, turned over to Thomas 'rhatcher, who was on that day duly appointed receiver of the property of said Missouri Company, all the property of said Missouri Company which said receivers of the Wabash Company tlIen had in their possession, and which included said half interest in said bridge. Thereafter said Thatcher, as receiver of said Missouri Company, operated the road of his company-including said bridgeuntil his discharge as receiver, which occurred some months thereafter. The St.Louis Company presented to said Receiver Thatcher a bill of one half of said repairs to said bridge. He refused to pay same, claiming that the Missouri Company had never agreed to pay any part of it; and, Receivers Humphrey and Tutt refusing to pay any part of said repairs, claiming that the repairs were a charge upon the property of the Missouri Company, the St. Louis Company, by leave of court, has intervened in this action, and the question now presented is whether, un· der the facts above recited, the S1. Louis Company is entitled to recover from Receivers Humphrey and Tutt one half of said repairs. The necessity for the repairs is conceded. Before the repairs were commenced; the St. Louis Company and the receivers of the Wabash Company agreed on the specific repailsto be made, and in writing each party agreed to pay one haJJ of the cost thereof. The correctness 'of the bill is not disputed. The sole quefltion is whether Receivers Humphrey and Tutt are liable therefor. Counsel for the receivers argue the ques-
910 from the
·' t
,
:,_,
Jl'EX)ERAL(,'.REPORTER, vol. 52· '.... . .' " ' '
t4epElfSonal \iabili.ty of Mes.l,lfS. ;HJ,lp.1phrey .a . ., TU. ....l)d BU.t i?.e.:.:m . (U . ·. . ,. ordElr ag an.,d. . .. telllen.to.f.,fastS . ono't pre...d. questIOn. stand. them perdedsiqu·.<>ftliEl c;ourt woulqpe of a . If thecqurt finds for the ,i.riteJ;Yerier1 under the .pleadings, must par#es receivers, and. not personally . .'The repairs wW:Eil: bill tor :repairs incurred w:J1i1e said receivers were in posthe line of the Missouri Pom'pany, and were operating the miles of track and of said is, throqghits own offimade with the forrepllJrs, whICh the reCeIvers made, arid py mutual consent'of,the'WabaSl:llltnd the Missouri Companies the the to the Wabash' Company-had been termithe. passed out of the posthe Company would have been .l i.. ...·.· ';.t.,.h.e,S.t.. LOUiS.,'·.'.qo, .. ..'qlpany for. the. bill herein . Of.. n!l doubt.. Why. then, ahpuld not the bill be vabd agamst the ComplUly?Jt is argued by ,counsel for the the Cqmpany,though appointed the. repaIrs, bill, since.(the weI:e for the benefit of the prODerty ,'MiSSOUri p&Wpany. This &rgument IJ:1ight be potential wf3 Wabi\sh 'Company or itSreceivers, apu 0):',118 receivers, thE! questionQf apportioning to the by the Wabash c.o.m. Pfi.n.Y.·.!,Q.? ,the ?e.t. . of theM .. pr?p.ert.y Had.. the Wa. paId of bIll, they mIght. wIth. force bash have 'agamet };'!lssourl Company, the justlee of charging. ,such: a.iMnst the property of the' Misslmri Company, as to' Wabash Company, of the bill paid and the out. of Wripash funds ·. Such, llpportionment might .have been emias between .,lessor ap.d lessee, in adjusting their relanently tions .Oll termt011tioI:l of tp,elease.But:why Ilhould the St. Louis Company becp;UP13l1ed to look' to the Compllinyor its receiver for paymentf /I:he for 'keeping this track in repair the .St. Louis, the Wabash COl;npany. Th f3 speaifi6 and express I;uade with receiv,ers of the Wabash ..And these rec.eivers, ,in ,writing. and in .advance of the ,to ha,lf of tile cost of the repairs. These rerepairs, ceivers rightly) eiercised Uleir authority ill so contracting·. The repairs were not large, ip expense, .and were necessary to safe operations of the road. RelyiIjgQn the strength of the agreement with the Wabash Company, St,Louis made the repail'!!. The Wabash receivers .stood by' ,saw the. ,made, an'd their. liability therefor as recomplete; .and,after thisliabUity had .l\ttached to their receive,rspip, tqey turn the Misso,uri line to the appointed therefor, retain ,the receivership of th,e WaMsh
NORTHERN PAC. It. CO. t1. KRANtCH.
911
and ,their liabilityfbr the repairs, made urider their' contract, lawfully entered into by them as receivers of the Wabash Company, became and remained a liability binding upon the trust in their hands, and nothing has been' shown relieving this trust from the liability thus incurred. Let an order be entered, directing the payment to intervener by Solon Humphrey and Thomas E.Tutt, as receivers of the Wabash, St. Louis & Pacific Railway Company, and out of and against any property in their hands as such receivers', of the sum of $266.79, with interest at 6 per cent. from April 27, 1886.
NORTHll:RN PAC.
R. Co· .".
KRANICH.
(Oircuit Court. D. Montana. November 14, 1892.) ,
",'
ejectment to, recover Jan4, in Monta.na, anallmtssion in the answer ,tbat toe "title is in the \Jnited States is not inconsistent witlj. a plea of the statute , of 'limitation,for possessiOn held in subordination to the title of the United States may be adverse as to all others.
ADvERsEPossEssloN-LrMITATIoN"-PUBLIo LANDS.
At Law. Action in ejectment by the Northern Pacific Railroad Company against Ernst Kranich. On motion to strike from the answer alleged inconsiRtent averments. Overruled. F. M. Dudley and W. E. OttUen, for plaintiff. H. G. McTntire, for defendant. KNOWLES, District Judge. Plaintiff commenced, a suit against the defendant in the nature of an action of ejectment to recover the possession of certain real estate. The complaint is in the usual form, showing the ownership of plaintiff, the entry and ouster by defendant, and the retention and possession of same by him. The answer denies the ownership of plaintiff, and admits pOE>session in"defendant. The answer sets up as new matter the statute of limitation, and also facts showing that the defendant had applied to enter said land under the pre-emption laws of the United States, and the contest upon this application of defendant, and the ruling of the register and receiver of the United States land office at Helena, Mont., in his favor. Plaintiff filed its motion to 'strike out this clause in said answer setting up the statutes of limitation, on the ground that the same was inconsistent with the allegations in the sixth clause of the answer, which shows that defendant did not claim said land adversely as against the United State,s, but under and in ordination to its laws, and acknowledged its title to the same. It is admitted that the general rule is that, in order for one to make out a title by adverse possession, the person so claiming must claim title to the premises possessed as against all others. McCracken v; Oity