Holmes v. Dowie

177 F. 182 | 7th Cir. | 1910

BAKER, Circuit Judge

(after stating the facts as above). We deem it too obvious to require elaboration that section 720, Rev. St. (U. S. Comp. St. 1901, p. 581), has no application to the Lake county-suit as an attempt to fasten an easement upon the fee of the lands that the United States court liad taken into its possession for the purposes of administration. That possession drew with it the power (and the exclusive power, without the consent of the administering court) to hear and decide all controversies relating to rights and interests in such property. Farmers’ Loan & Trust Co. v. Lake St. Elevated Rld. Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 664; Porter v. Sabin, 149 U. S. 473, 13 Sup. Ct. 1008, 37 L. Ed. 815; Swope v. Villard (C. C.) 61 Fed. 417; Louisville Trust Co. v. Cincinnati, 76 Fed. 296, 22 C. C. A. 334; J. I. Case Plow Works v. Finks, 81 Fed. 529, 26 C. C. A. 46; American Loan & Trust Co. v. Central Vermont Rid. Co. (C. C.) 84 Fed. 917; Buckhannon & N. Rld. Co. v. Davis, 135 Fed. 707, 68 C. C. A. 345.

This really would be enough to justify an affirmance of the decree, for the Lake county bill very clearly is aimed at affecting the title to Zion City lands that had never been leased, and the question is the right of appellants to maintain that bill, not some lesser bill.

But if appellants were thought to be right in assuming that the larger aspects could properly be ignored and the bill considered merely as one in personam, on behalf of appellants only, against the lessees of three lots to compel them to respect negative easements, we should regard the decree well rendered. The lessees were in physical possession; but appellee was asserting dominion over the incorporeal rights of the lessor in the leases. If the lessor, as against all the lessees, had the right by his written consent to relieve lessees severally from restrictive conditions, that would be a valuable property right, a valuable asset in the hands of appellee. To what extent the recited condition in the uniform leases is colored by other paragraphs, or by the character of the plat, or by the oral or written representations of Dowie, are questions that would affect the extent and value of appellee’s reversionary interests; and therefore are questions that, on reason and authority, as we believe, should be presented to the court of administration.

The decree is affirmed.