BLUEFIELD WATERWORKS &; IMP. CO. II. SANDERS.
333
BLUEFIELD WATERWORKS & HiP. CO. v. SANDERS. (Circuit Court of Appeals, Fourth Oircuit. October 2, 1894.) No. 79.
1.
BOUNDARy-COUNTY LINE-EvIDENCE.
a
Acts Va. 1845, pp. 37, 38, provide that the surveyors of the counties out of which any new county shall be formed, together with the surveyor of such new county, shall act as commissioners for running and marking the boundary lines designated in the act creating such county; that said lines, when so run and marked, shall be the dividing lines between such counties; that the commissioners shall report their doings,. accompanied by a plat showing courses, distances, streams, etc., to the county court of each county interested therein; and that such "plat" shall be "conclusive evidence in all controversies" which may arise touching said lines. Held, that a plat made pursuant to such statute of the line between Mercer county, on one side, and Giles and Tazewell counties, Va., on the other. and which is now part of the line between the s:tates of Virginia and West Virginia, is in all cases conclusive evidence of the location of such line, however crooked or erroneous it may be, and of the location, with regard to such line. of a natural object shown by such plat. In an action in Virginia against a corporation of West Virginia., and other nonresidents, to enjoin the diversion of waters of a stream, it appeared that defendants were laying pipes and constr,ucting waterworks on ground most of which plaintiff conceded, and all of which defendants claimed, to be in West Virginia; and that process was served on defendants on a few feet only of such ground which plaintiff claimed to be in Virginia. Held, that the court would hesitate to violate the privilege a citizen has of being sued in the jUrisaiction of his residence, and would earnestly scrutlnize the steps taken in the institution of an action against a defendant unwittingly in its jurisdiction.
COURTS-JURISDICTION-RESIDENCE OF DEFENDANTS-PROCESS.
Appeal from the Circuit Court of the United States for the Western District of Virginia. This was a bill by Walter M. Sanders against the Bluefield Waterworks & Improvement Company and others to enjoin the diversion or appropriation of the waters of a natural stream. There was a decree for complainant (58 Fed. 133), and defendant company appeals. Reversed. This is a bill in equity brought by a riparian owner of lands watered by a stream in Tazewell county, Ya., to enjoin the use of water from a spring {)ut of which the stream flowed into and through the lands of the plaintiff, in diminution of the natural supply of water in the stream in quantity to which the plaintiff claimp..d, to be entitled. The appellant is a corporation chartered by the legislature of West Virginia, and resident at the incorporated city of Bluefield, Mercer county, in that state. This is a- rapidly growing city, now possessing 1,500 inhabitants. The appellant company was endowed by Bluefield with a franchise and right to construct and maintain works for supplying the city, its inhabitants, and property holders with water for domestic and manufacturing purposes. Three tracks of the Norfolk & Western Railroad converge at Bluefield, where the railroad company bas important works. This company depends upon the appellant corporation for the water it requires for its engines and works at Bluefield. The charter of the appellant company authorizes it, among other things, to erect and operate waterworks. to supply persons and corporations with water, to build and lease houses, and to acquire and hold such lands and property, and such rights and interests therein, as may be necessary and useful to its purposes. :Under its powers thus derived, the appellant company purchased sundry propertJes containing springs of water in the vicinity of Bluefield, and also purchased, a.t a. large price, one acre of land two or more miles trom
334
FEDERAL REPORTER,
,vol. 63.
Bluefield from one Carmack Bally, a citizen of Tazewell county, Va., which adjoins the CQunty of Mercer. This l\.Cre of ll\.nd contained a very bold, prolific spring, callM'tbe' "Beaver 'polMi>:stiring." Raving contracted with the city of It with all purposes, and With the Norfolk. & Western Railroad Company to furnish it with a full supply of water for its engines and works at Bluefield"' the appellant company, by pipes and machinery, had availed itself of the full, use of the several springs of which it had ,become ow:ner" other than Pond spring, and was, when the presentlitlgatlQn »egan, from Bluefield towards this spring, and erecj;ing machinerY and suitable, on the acre,of land purchased from Bally, willi view of aYll.illJ;l/i of th,e watero( that more prolific in this suit, Walter M. SandeI'l3, spring. Whlle,tbusengaged, the 8,: citizen of TazeWell county,V1h.and pVfper of some 3,000 acres of land and, watered by Beaver E>ond I;ll'eek, which 4,owed from tJie sprint, presented a bill of injunction to the judge of the circnlt court of Tazewell county, praying, among other thinl,'S, that tlje lIPpellantcompany who were named, and supposed to WIts age;q.ts. l>emade and that the appellant and the named, a.pd Itsa.gentlil'llp(l be enjoined from takany waterfrOlnthe spring ,.or· from the streamflo:wing out of it, and *'0l:n, divertingthew,ateror theflow:ot,tj;le ;water from its, natural course. The judge ot the circuit court TazewellCQunty ,granted the injunction prayed for, by an order restraining, until t\1efUl;tl:\er order of the court, the appelllLR-t and its agents from with, and from, diverting or in any manner appropriatingJhe,water froJ», tlleiWid"sprlng, whether in the spring or in th:eniltural bed flOW Of its far as the water might be nector the use of pel;'sbnil live stock living and grazing on acre of landoont:ll.ining tb,e especiaJly restraining appellant (f.171l\·lqiverpng by means of pipes or other applifrom the ,spring and ,stream. 'It 'Is t() be OOS¢fVed that Be.aV'er)?;o);l4" spring is verY near the boundary Vlrgillia"and West ,'Virgip,1/1;, . which is also the boundary line between Tazewell comity, Va., auil COlmty, W. Va. Local opinion was divided upon the question whetlier the spring was within Tazewell or Mercer .V::irIJiJl.ia, or Lf the spring was in West Virginia, then the laying of pipes between BlUefield and, the spring, and the erectioll of buildings and machinery,at tpe Spring, were'beyond the jl1l'isdictU>n' of an injunction issuing from tM'judge of the circuit of Tazewell county, Va.,:mntil the proceSBprovided .Ijy, law :fQ1! bringing nonresidents into court resorted to. , The billof,jpjqnq{lonassumed,,:bowever, contrary ,t(} p:q.1;)licopinion in Blue,field and Mercer c9)l,Qty, and contrary to the belief of the appellant company and its aglint'S; that the Beaver' Pond spring was in Tazewell county, Va.; and the process under the bill was issued and served ou: that. tbeory.Summons was il\s\le9. frOm, the the clerk of the Taze)VeU circuit c»urt against tbeappellant dE!$cribed as a corporatloU:of West Virginia, and agllillst,,'tlle, ,four persons named in the LoWder" A. TaCkett. H. Tackett, and.Crouch. The summons was addressed t(} the sherifl of Tazewell coupty, and'it1;liiil llummons, onwbich was indorsed the restraining Order of the judge, whlcb has 'been mentioned, was placed in thep,ands of IfisQeputy. The return tiled by the deputy-on these papers was as: "I executed the within SUIlUXlons on the defendant T. J. Crouch un the 4th day 01: Juoe, 1892; by dellveJlio.g to him an o.ffice copy of said summOns. On the 8t11day of Jun,6, J.892"JjJexecuted this summons on L. C. Tabb, a'n agent of Bluefield,Waterworks and1mprov6l1l Oompany, whom 1 found nt on, t116 premises, overseeing thei :w:or.k!1i:l:mntlpned' in the"indorsement on this wdkof inj\Ulctipn,On thesame.qaF, 'to, 'Wit,on the 8th June,J.892, I exethis summons-on the to wit: Hill, an engineer of' ,Graves .and:Biger Lowder, engaged on.said,work,to all ofwhllm Iga.ve aJ;loffii:Je within summons." A like sUIilI;Il(lnS ,and indorsement were· delivered ,00: the sergeant of the city of Roanoke, Va., the return on which was: all: "followsl' J\Ul6' 10,: 1892, by dellverlngacopy of tbis wl'it to d\:h!W.Bryan. treasurer of Bluefield Waterworks and Improvement, Company, in the city of, Roanoke, wbere he resides, the
,0'
,
·1'
BLUEl<'IELD WATERWORKS &'IMP. CO; V. SANDERS.
335
president of the said company not being found in my bailiwick." In addition to the mesne and special process just described, complainant below, the appellee here, made publication once a week for foUr weeks in a newspaper published at Tazewell Courthouse, Va., under a law of the state relating to suits against nonresidents, in which the bill of njunction under consideration was described, the parties to the suit named, and Its object set forth. No affidavit, however, was attached to this pUblication, as required by law. The appellant company and it's agents proceeded with the pipe laying and other work in which they had been engaged when the papers from the Virginia clerk's office were served upon them, but did nothing in violation of the Vir· ginia judge'S order restraining them from "interfering with and diverting or in any manner appropriating the water from the BlO'aver Pond spring." Nevertheless, proceedings were at once begun against them for contempt. Upon affidavits filed charging them with acts committed in violation of the restraining order that had been served upon them, and with contempt of court, the judge of the Tazewell circuit court issued an order requiring the appellant and its agents, who were named, to appear before him to show cause why they should not be attached and punished for their contempt. Copies of this order to show ,cause were delivered to the' attorney of the defendants by a deputy of the sherilI of Tazewell county, and also to some half dozen persons supposed to be agents of the appellant company. None of the returns made by the deputies of the Tazewell sheriff, either upon the original process or the subsequent order to show cause, state that the service was made within the county of Tazewell, Va. Thus required by punitive process, the appellant company made a special appearance before the judge of the circuit court of Tazewell county, and filed a special answer, confined exclusively to the matter of contempt, In which it denied the contempt,and supported its denial by affidavits of several witnesses cognizant of the facts of the case. The judge before whom this special appearance was made promptly entered an order recognizing, in terms, that the appearance had been special, and summarilydismisslng the contempt proceeding. A few weeks afterwards, the appellant company and'the four persons mentioned as codefendants In the originalblIl filed a petition In the circuit court of Tazewell county praying for a removal of the cause Into the circuit court of the United States for the western district of Virginia, sitting at Abingdon. The petition was granted, and the cause removed into the federal court. On the 22d of October. 1892. the appellant company filed a motion in that court, parts of which are here given: "The Bluefield 'Vaterwol'ks and Improvement Company, one of the defendants to the bill of complaint of the plaintiff [Walter M. Sanders], appears in this cause for the sole pw-pose of objecting to the process issued in this cause against said defendant, and to move the court to quash and abate the same, for the following reasons: (1) The circuit court of Tazewell county had no jurisdiction to entertain this suit, and no process could legally issue thereon. (2) Said court had no jurisdiction of the subject-matter of the suit. (3) Said court had no jurisdiction over the said defendant, it being a corporation chartered by the state of West Virginia, and doing business ex.elusively in said state of West Virginia, and owning no land, estate, or debts in the state of Virginia. (4) Because the suit is not a proceeding in rem. It does not seek to recover any land, or interest in any land, owned by the d.efendant in the state of. Virginia; nor does it seek to subject to the claim of the plaintiff any estate or debt owing to said defendant situate in the state of Virginia." Other reasons are stated for quashing the process issued in the cause, which need not be detailed here. On the same day on which this motion to quash was made, to wit, on the 22d October, 1892, tbe court -overruled the motion. On the next day, the appellant company and the other defendants in the origipal bill filed a demurrer to the bill. The first ground of the demurrer was that the circuit court of Tazewell county had no jurisdiction of the cause, either of the persons of the defendants or the subjectmatter of the suit. The second ground of objection related to the want of proper p81'ties to the cause. The court overruled the demurrer. Thereupon. and not until after all these proceedings were had, the defendants in the original suit, having no other recourse, filed their answer to the bill, and made -defense on the merits of the controversy. After the usual course of pro-
336
FEDERA:f.t Rll)PORXER,
vol. 63.
eeeding, beloW, entered a tlliUl.l' deer,ee perpetuating' the injunction originallJl' to the appellant company the use of the Beaver fond for supplying the city of Bluefield and the Norfolk & Westel'n Company with its waters, from which decree appeal was taken to this court, .. , During the progress of the ,suit il1l the court below, an order was entered by that court,direeting W, M. Dunlap,; a civil engineer, to run and ascertain the line (of bQundary) between theoounty of M'"ercer in the state of West Virginia and the county of Tazewell, in the state of Virginia, as run and marked by, Robel't I;IalI, latesurv,eyor of. Mercer county, Kiah Harman, late surveyor of county, and William Hale, late surveyor of Giles county, as shown by tharewrt and plat 'Of said'late surveyors, filed in the year 1848. This order W9.s.flxecuted by the eng!neer designated, and a report and plat of a line were/ft1\ld by him, and are made part of the record in this suit. Apropos of thisJ},I;qer ()f .court looking to the running of a boundary line for these counties byacivil engineer, the following facts must needs be stated: In the year1S48, .tbe county of MerceJ,' having some time before been formed from the' territ()rY',of Giles and Tazewell counties, the three surveyors who are mentioned; ,in the order of the courtjust mentioned were appointed, in accordance with:the laws of Virginia, to run ,and mark and make plat of the boundary llnes between the new· county of Mercer and the other two counties. This,was 16 years before West Virginia was cut off frqm Virginia, cQu,nty with it. These three purveyors, acting as joint comcarrying missioners, malie indue time report of ,the work they had performed, accompanied by apJ.a.,t of the boundary llnes which they had run and marked" Their tripartite report and plat weretlled In each of the three counties, were by the CPurts of the counties, and became, by force of law, the authoritlj,tivemarkingsof the boundary llnes,'to which they related. A general law of, Vh'ginia was then, and is still, in force (Acts Assem. 1845, declares as follows: "The surveyor pp. 37, 38), which,l!Jllong or suryeyors 'of:thecounty or counbesout of which any new county shall hereafter be formed, .together with the surveyor,'of such new county, shall be, ,and they are"bereby, appointed commissioners for running and marking the bOundary llneadeslgnated in the act creating such county. · · · The Sl,l.idlines, ,whel),' .so l'\1Il and marked by-them, shall be taken and held as the ciivlding lines' between the said counties, It shall be the duty of the said CO,l;llIWssioners to report their proceedings and doings in the matter, accompanied by a plat sbowing the courses and distances, and the streams and other natural tl,lldartificial objeets or points referred in the act aforesaid, tollie county court of each county interested therein, to be recorded In their offices," etc.. "And the said plat shall be conclusive evidence in ,all controversies which may arise touching said lines." On the ,formation of the state of West Virginia, in which Mercer county , was,embraced, an4 in which the counties of Giles and Tazewell were not inchtded, the lines rt!ll and marked, by the three surveyors, Hall, Harman, and Hale, as laid dOWn QP. the plat and report which they made and filed, showingthe boundary ,line, county, on one Side, and Giles and Tazewell countiel\' on.the other, became incontrovertibly the boundary line between Virgiitla, anll West VirgiJ;Lia, ,, , ,The facts Whillh have been above recited seem to be all that are necessary to the this appeal. The grounds of the decision which will be rendered in the cause wlll now be stated.
WGllES, District Judge. The question which presented itself at the threshold of this litlgatton the vital one, whether the court of Tazewell county had of the suit, and especially of the defendants to the bill of complaint that was ex-
BLUEFIEL:P WATERWORKS Ii: 1MJ>.
co.
V. SANDERS.
337
hibited in the cause. The defendants were nonresidents of the county of Tazewell and of the state of Virginia. They were residents of the adjoining county of Mercer, in the state of West Virginia, and citizens of that state. The original motion against them was made ex parte, and without notice. The process served on them was issued out of the office of the clerk of Tazewell county, and was served by a deputy of the sheriff of that county. It was served, as they believed and contended, on the territory of West Virginia, and beyond the limits of Tazewell county and of Virginia. They deny their liability to be sued in Virginia for the cause of action mentioned in the bill of injunction originating this suit. They deny the validity of the process which was issued against them, and which it was their first act in the suit to move to quash. They deny the validity of the service which was made upon them of this process. At every stage of the suit below, they made c::onstant protest against the jurisdiction of the courts before whom they were brought to entertain jurisdiction against them in a state and county in which they were not residents. It is a high privilege of the citizen of the United States to be sued in the jurisdiction in which he resides, in personal actions. He may, by his own act, waive this privilege. He may enter into a contract, or do an act, in another jurisdiction, which, if it con· stitute a cause of action against him, will render him liable to be sued where the cause of action arose, if he go voluntarily there, and process be served upon him while there. In special cases, if he"own lands or property or choses in action in another jurisdiction, and be under obligation to a citizen there, he may be sued there in respect to that property on that obligation, whether he go there or not; but in such cases the manner of notifying him of the suit and him into court is carefully defined by statute, the provisions of which are required to be strictly and fully complied with. If a nonresident be unwittingly in a jurisdiction in which he is nonresident, and be served with process while ignorantly and unintentionally there, the courts will severely scrutinize the process itself and the circumstances under which it was issued and served in contravention of his natural right to be sued at home. Applicable to such a case is the remark of the chief justice of the United States in Fitzgerald & Mallory Const. Co. v. Fitzgerald, 137 U. S. 105, 11 Sup. Ct. 36 : "If a person is induced by false representations [he might have added "by erroneous belief"] to come within the jurisdiction of a court, for the purpose of obtaining service of a process upon him, and process is there served, it is such an abuse that the court will, on motion, set the process aside."
Of course, this remark applies to nonresident corporations as fully as to natural persons. In the same case as the one quoted, the chief justice said: "Nor are we impressed with the tenability of plaintiff's position in relation to the service [of process] in any view. Where a foreign corporation is not doing business in a state, and the president or any officer is not there transacting business for the corporation, and representing it in the state, it cannot be said that the corporation is within the state, so that service can be made upon it."
v.63F.no.3-22
:3S8 III the case at of ,West Virginia was laying pipes and constructing:wate'rWorks on ground m6$t of which was ,concededly in West Vii"girlia, and all of which the corporation and its agents believed tol:!e so. Only a few feet of this ground were "claimed by the plaintilfto be in Virginia, and this claim was denied by the appellant company and its agents. But, on the that some of 'the agents of the company might be oaught on this diminutive' spaoeof territory when process should be 'served' upon them, and on the contention that, if any work were. done on this small area by the agents of the appellant company, it would bring the company within the meaning of the law of Virginia permitting corporations "doing business" in Virginia to be sued in the -courts of the state, the appellee brought this suit in the Virginia court, instead of doing so in West Virginia. Oertainlywill the law, under drcuDlstances like these" hesitate to violate the privilege which the citizen has of being sued in the judsdiction of his residence, and be 'disposed to look with earnest scrutiny into the steps taken in the institution of asuipnvading this 'privilege. sections 3225-3227' of the Code of Virginia relate 00 the manner in which suits may beCODlmenced against corporations, defining the office,ra o'rpersons on whom Dlesne process maybe served in various -circumstances and and the: mannel'of service. What-ever may have been the contention of appellee's counsel in the court below in respect to the bearing of theBe sections upon' the i'lervice M, the was made in this suit, they now declare, in the brief presented to this court,that "these sections have not the slightest llPplication to" this case." Whatever may have beeil the contention in the Court below of the same counsel as to the· effect in this case of the order of publication set out at page 10 of the record, they UOw declare in the brief filed in this court, that "it 'ls ,not a legal process." The mesne process which was oufby appellee in this suit, and the service which was made of it, is valid, therefore, if valid at all, only by virtue of sections' 1104 and 1105 of the Code of Virginia. Section 1104 re'Quires every incorporated company doing business in the state to have an office within the state,for the transaction of all its business; and, if Ube a company incorporated by another state, to have also an agent in this state empowered. to receive service in suits and to enter appearances for it in courts. Section 1105 declares that the "'officers, agents, and employees of any such company doing busistate witp,out complying with the provisions of the ness precediIm' $ection, shall"be personally liable to any resident of the state having a claim against the company, and, moreover, service of process upon either of .Baid offi,eera, agents, oreniployees, shall be deemed a . sufficient service on the company." Our inquiry, therefore, in this case, is limited to two questions. namely; whether the -service.· of . process whicb' 'made ·llPon the persons of sundry agents Qffh:e appellatitcompany as .sbown by the record was made in the 90unty of, TazeweU, and wll,ether the appellant company was in the state of Virginia. The return of the deputy sheriff of Tazewell county shows expressly as to some' of
BLUEFIELD WATERWORI(S & IMP ..00. V. BANDERS.
339
the persons served and impliedly as to all, that the process was served on them "on the premises of the appellant company." If these "premises," therefore, were not in Tazewell count.y, the process was not legally served; and we are, in that case, relegated to the inquiry whether the premises were in Virginia or West Virginia. We have the same question to deal with in the inquiry whether the appellant company was "doing business" in Virginia, which is only another form of the Question whether the "premises" on which it was operating were in Virginia or West Virginia. An inspection of the plat of the three surveyors, Hall, Harman, and Hale, which has been described above in the statement of the facts of this case, shows that the Beaver Pond spring is laid down on it as one of the "natural objects" which they were required by law to marll; and designate on the plat. It is also obvious from the plat that this spring is laid down on it as upon the Mercer side of the boundary line between Mercer and Tazewell counties; that is to say, as upon the West Virginia side of the boundary line between Virginia and West Virginia.. If, therefore, in the language of the act of 1845, the plat of the three county surveyors be "conclusive in all controversies which may arise touching said line," then the question is closed. Under the law, this court and all courts are bound to hold that the Beaver Pond spring is in Mercer county and in West Virginia, and ·that any line run by any other person or persons than the surveyors of those counties throwing this spring into Virginia is illegal and spurious as to that spring. The court below, however,-that is to say, the circuit court of the United States for the western district of Virginia,-treated the plat as inconclusive, and early in the litigation under consideration made the decree which has been mentioned, directing W. M. Dunlap, a civil engineer, to run and ascertain the line between the counties of TazeweUaIid Mercer as run and marked the three surveyors, Hall, Harman, and Hale, but directed it to be MIll "as shown by the report and plat of said late surveyors." This engineer proceeded to act under the decree. Under the language of that mandate, he was charged simply with the task of processioning the line already run and marked by the three surveyors. He failed to do this. He mistook his errand. 'His report shows that he found the line which had been run and marked by the original surveyors to be more or lesscrooked,and that he ran a line himself as a substitute for and improvement on the original one. He discarded the devious, swerving line of the original surveyors, and made and reported a different and scientific one of his own rnnning and marking. The language of his report shows that he misconceived the meaning and object of the decree under which he was acting, and that, in making a new line, he did the very thing which the court did not and could not order to be done. The law of the land made the line of Hall,Harman, and Hale; however crooked, the true line, and the plat marking amI mapping it, with sundry adjacent natural objects, conclusive of its location, and of the location of the natural objects laid down upon it, the Beaver Pond spring among others. With interesting naivete, Mr. Dunlap declares that he found this
340
official line to be an awkward job of work. He therefore undertook to substitute in lieu of it another line, more satisfactory and comely, and strictly straight and scientific. The language of his report on this subject is pow given, the italics not being his. Beaver Pond spring lies in the space between East River mountain and Peery's milldam. The engineer says: "A large flag was placed at the corner on East River mountain, high above the trees, and a atraight line was accurately run ftom Peery's milldam to it. Along this line were found numerous line treea, marked as described in the report of the three surveyors, and which are shown on the plat. It will be observed that the marked linetreea were not exactly on this atraight line rmade by himself] joining the two corners, which may reaqily be accounted for from the fact that the appliances and methods used then were inferior to the present instruments and practice. In fact, it would be impossible to run a atraight line over such ground, seven miles Iong-. with an ordinary surveyor's compass, depending entirely upon the magnetic needle; and thislong line ofmarkea treea is about as most of the old lines through hilly, wooded. country are found to be." (He meant to say, "is about as crooked as most of the lines of the old surveyors are found to be. ")
In the fact that, pursuing old line marked by the numerous line trees mentioned by Mr. Dunlap, and laid down on the old plat, there. is found to exist a different line from the new, straight one run by this engineer with modern instruments, we have an explanation of the circumstance that the Beaver Pond. spring is by the old plat in Mercer, and by the new plat in Tazewell, county. The law declares that the plats ma4e by the county surveyors, two or more in number,shaU be conclusive in all controversies relating to them,-conclusive, not only as to the lines, but as to the natural objects laid. down upon them. Mr. Dunlap's line is more scientific than the swerving line, seven miles long, which it was "impossible" for the three old surveyors to make straight; but it is the line of science, and not the line of the law. The line of the law must prevail, even though, by swerving a greater or less number of rods, poles, or perches from a scientific course, it left the Beaver Pond spring in West Virginia. All the surveys of county boundaries and private lands made in the centuries of our colonial and national of the present century, were made history, including by surveyor's compass, Jacob's staff, and theodolite. The old surveyors possessed no long-visioned telescopes. They groped their way through .forests, depending alone on the magnetic· needle for their courses. In the language of Mr. Dunlap, it was "impossible" to make their lines straight with these imperfect instrumentalities. All their lines were more or less devious and rambling. But, such as they were, in order to prevent infinite disputes and ceaseless litigation, the law made the lines thus run by official surveyors, and the plats describing them by natural objects, "conclusive" evidence in all controversies relating to them. These lines are fixed and established, and cannot be. changed. If .now the scientific skill of modern engineers, and the highly-improved instruments now used by them, were applied. to these old lines; if bright flags hoisted high above the tops ofilie trees on loftymonntain tops, and telescopes with range of 701' :70 or 170 miles, were employed to straighten out the existing boundary lines of fltates, counties, and farms,-a
INTERNATIONAL TRUST CO. 'II. CARTEUSVILLE IMP., GAS
&;
WATER CO.
341
universal babel of protest would be raised throughout the land against the injustice, the innovation, and the impertinence. In the eye of the law, and by force of law, this Beaver Pond spring is in West Virginia; and the service made by the officers of Tazewell county upon agents "on the premises" of the appellant company was null and void. This company, in laying pipes in Mercer county leading from Bluefield to this spring, and in erecting buildings and placing machinery at the Beaver Pond spring, was not "doing, business" in the state of Virginia, and was not amenable to the provisions of section 1105 of the Code of Virginia, authorizing the process to be served on any of its agents. It is plain, therefore, that the court below erred in disregarding the rule of evidence prescribed by the Virginia act of assembly of February 11, 1845; in . treating the plat of Hall, Harman, and Hale as inconclusive; in allowing any line to be run by a civil engineer other than that of the three surveyors; in accepting the report and plat of that engineer, laying down a different line between East River mountain and Peery's milldam in lieu of the line and plat already established by law; and in accepting this engineer's line as proving that the Beaver Pond spring was in Tazewell county, Va., and rejecting the line and plat of the three surveyors, which placed this spring in Mercer county, W. Va. In the course of political events, this line, formerly of counties only, has become the boundary line between two states; and it is incompetent for any court, in a suit between private persons, by the appointment of an engineer or otherwise, to change that line for any purpose, whether to affect the rights of citizens, or to enlarge or diminish the territorial jurisdiction of courts., or to augument the domain of one state at the expense of another state. The decree of the court below, from which this appeal is taken, must therefore be reversed f(>r want of jurisdiction, and the suit dismissed, but without prejudice to the plaintiff below in any suit which he may institute in a court of competent jurisdiction to enforce any rights he may have as riparian owner of lands lying upon the stl1eam supplied from the Beaver Pond spring, which has been the chief subject of the present litigation.
INTERNATIONAL TRUST CO. v. CARTERSVILLE IMPROVEMENT, GAS & WA'l'ER CO.
(Circuit Court, N. D. Georgia. No. 534.
May 25, 1894.)
The trustee under a mOltgage on the property of a gas company has no right of action in equity against a city to recover money which the city agreed to pay the company for gas used in lighting the city, and which the company pledged directly to the trustee for the sole purPQ.se of paying interest on the mortgage bonds and the creation of a sinking fund, there being a complete remedy at law for the breach of a contract , to pay mouey.
EQl1ITY-JURISDICTION-ADEQUATE REMEDY AT LAW.