830
Rl'}PORTER.
UNITED STATES v. TAFFE. (Circuit Court, D. Oregon. April 29, 1898.)
No. 2309. CONDEMNATION-REMOTE AND SPECUL.$.TIVE DAMAGES· . .
In .a. proceeding to condemn ,a right of way fora boat railway over de.tendllrit's land, the injurIes likely' to result to his fishing grounds are too to be the basis of an award; and the possibility of its construc, tion. being followed by a change in the ,track of a railroad company, so as to Injure defendant's. shipping facilities, is too remote to be considered as a consequen'c'e of the proposed use of the land.
Jolmll. B.:all, for the U;uited States. Dolph, Mallory & Simon and Nixon & Dolph, for defendant. BELLINGER, "District Judge. This is a proceeding to condemn of way for a boat over defendant's'lands. There have been two trials, relil,ultin,g in verdicts which 'were set aside as exce'ssive. 78 Fed. 524, ,86' Fed. 113. The matter is now submitted,upona stipulation of the parties, to the judge of this court, the parties stipulating to abide by his decision "as a sole arbiter and judicial tribunal" in the premises. The land condemned is of n()minal value, unless, its u.se, as a, right of way is to be considered. Aside from this, the Glaimfor compensation is based upon injuries that will result rights and interests, by the work; of constructing the })oat railway, in the high water channel of the river e,allsed by anemblllnkment for tAe roadbed, by interference with of a gold mine on the premises, and [by Jhe proposed cllange,in th,e railway track of the Oregon iNa:vigation Company ,at that point. T,here is no testimony legitimately ,tending to show a prospective 4emand for f,urther rights of Wf.l:y, 'and I am of the opinion that the defendant is not entitled to 8J?ything on such account. As to ,t\ie injuries likely to result from the work of building the boat railway, ,and from the effect of tlie, upon the run of fisb, to ,defendant's fish wl1eElls, these are purely conjectural. 1t cannot be ,known that the work of construction at that point ,.wf.ll he carried on during the fishing season, and, if so, for what length of time, nor the effect· of;, such worJr if prosecuted during fishing seaspn, nor the effect pf the proposed .rpadbed up()n the offish to fish wheels. Nothing could be }X\ore uncertain 01' specl1latiye than the damages that may result these causes. 8u ch j),re to <;lassed as possible {)r,imaginary damage,s,fo;r,which no a)vard can be made. In the.last the claim to compensation on account of defend.ant'-s gold mine 'Vas given SIq;lU r Consideratio!1 by defendant, and was, in effect, abandoned J»y lhilll .,in ibis testimony; nor is there .in case to warrallt an award of, damages on that., account. i He that. t4e by ,bim in colors;; ,"buUt ,was very light small. You w!Oulq take a,4,quble magI\ifying glasli!, to detect iV' "Q· to justify you to go to any for the , !
L
UNITIW STATES V. TAFFE.
831
purpose of placer mining it? A. No; nor I hav.e never had since, nor I would not go to any expense either until I found out that there was more gold in it than I have ever discovered; but I have never tried since." , The proposed change in the track of the Oregon Railway & Navigation Company, if made, will cause great inconvenience and damage to defendant in the loss of existing facilities for the shipment of his product, unless the company operates a spur track at that point for defendant's accommodation; and the question arises whether such damage is to be assessed as a result of the proposed condemnation. Whether or not there will be a change in the railroad at this point depends upon the voluntary action of the company. The government does not assume to have authority to make such change. It appears that the proposed change would straighten the road at that point, and would be to the interest of the company, and in keeping with a policy of improvement adopted by it; and it is upon such an inducement that the company is expected to permit its line to be changed. If, upon such an inducement, the company should change its line, or permit a change to be made, this could not be held to be a consequence of the use which is to be made of the land sought to be condemned in this proceeding. Damages to be recovered must be such "consequential damages, direct in their nature, as will naturally arise from the use to which the property condemned is to be put." A change in the railroad does not follow as a consequence of the proposed use of the land condemned; and, furthermore, the withdrawal of the railroad shipping facilities 1l0W enjoyed by defendant does not follow as a consequence of a change of the railroad, if made. The proposed boat railway w'm'leave the present railroad track intact for use as a switch or spur, connecting defendant's cannery with the main railway track as changed. If defendant has a vested right to these facilities, as argued on the trial, the railroad company will not be prevented, by the construction and operation of the boat railway, from continuing them. If he has such right, he will not be damaged by what is proposed, unless the railroad company fails in its obligation to him, in which case he has his remedy by an action at law. 0n the other hand, if he is without such vested right, his damages are, in my opinion, within the category of those damages for which there is no redress,-damnum absque injuria;' and in any event, as already shown, they are not a consequence, direct in their nature or otherwise, of the use for which the proposed condemnation is intended. Upon these conclusions, the defendant is not entitled to compensation in respect to any of the matters referred to. In my judgment, the damages to defendant consequent upon the taking and use to be made of the land in question will not exceed $1,000; and ltind'in his favor for that sum.
832 HANSEN 1. 2. v.
86 FEDERAL REPORTER.
BALTIMORE PACKING & COLD-STORAGE
CO.
et aL
(Circuit Court, D. Minnesota.
April 30, 1898.)
SALE-RESCISSION BY PlmCHASER-FAILP-RE TO DELIVER,
Failure of a seller to deliver one of several separate articles covered by a contract of sale will not· entitle the purchaser to a rescission.
SAME-FALSE REPRESENTATIONS-ExPRESSION OF OPINION.
A statement of a seller of an interest in property to be transferred to a fisbing company, which it was agreed as a part of the contract of sale should be formed by the parties, of the number' of pounds of fish that could be 'taken by the new company in a season, was not a sentation, but merely an expression of. opinion, upon which the purchaser had no right to rely. A purchaser of property which was open to his inspection cannot rescind because of defects which he might .have seen.
8.
CAVEAT EMPTOR.
4.
SAME-ESTOPPEL TO CLAIM RESCISSION.
A purchaser of property to be uSed in a business, who, after learning Its true condition, retains and uses it until he ascertains that the business will result in loss. cannot then obtaIn a rescission on thegronnd of misrepresentation by the seller. ,.
This is a suit iu equity by Ferdinand Hansen against the Baltimore Packing & Cold-Storage Company, Edward T. Le Clair, and John F. Locke. Heard on the pleadings and proofs. Koon, Whelan & Bennett, for complainant. C. S. Jelley and Harrison & Noyes, for defendants. LOCHREN, District Judge. Complainant seeks the rescission of a contract expressed in two made and dated on the 11th day of September, 1895, whereby he purchased, nominally, of the defendants Edward T. Le Clair anl;! John F. Locke, using the firm name and style of the "Reid Fish (Jompany," one-half interest in the business, plant, and property of the.said Rei(l Fish Company, of all kinds, at Rat Portage, and other places in the district of Rainy river, for the sum of $15,000, payable as stated in said writ· ings; and whereby, further, the parties to said writings agreed that they would form a Canadian corporation, to be called the "Rat Portage Fish Company, Limited," for the purpose of carrying on general fish business in sail;! district of Rainy river, and would transfer to such new corporation the whole of their stock in trade, plant, outfit, and real and personal property, at Rat Portage, and else· where in said district, used in the fish business; and that one-half of the stock of such Canadian corporation, when formed, should be allotted to said Ferdinand Hansen, or such person as he might designate, and the other half' to, the other parties to said contract; and that the Rat Portage Fish Company, when incorporated, should carryon the fish business in said district; and that said Ferdinand Hansen should purchase all caviar manufactured by it, at the price of $35 per standard keg, paying also the cost of the kegs and of making the caviar, and that the other parties to said writings should purchase all fish which the same company should have for sale at the price of three cents per pound; and that agreements