*1 Railway Alling. Oct. 463 Oo. v. 1878.] Railway Alling. v. Railway v. Cañon Rio
Denver Grande City Railway Company. San Juan decree, corporation appealed 1. of a Where the trustees or directors have prosecute appeal, and directed their counsel this court will not dis- rendered, who, strangers it miss on the motion of decree since was majority corporation. have the stock become the owners of of managers property 2. directors are in law Such trustees or and affairs they, corporation. litigation involving action, As such in all it, represent trust, If its stockholders creditors. violate their remedy sought original jurisdiction. must be court some way through granting right public 8. An act entitled “An Act lands to Company,” Railway approved 8, (17 the Denver and Rio Grande 1872 amendatory thereof, approved 3, (19 act 339); an March Stat. 1877 Stat. granting right “An 405); way an act entitled Act to -railroads the States," through approved lands of United March — (18 conflicting 482), Stat. considered with reference to the claims the’ of( Company, City Denver and Rio Grande Railroad the Cañón and San Railway Company, occupy Big Juan use the Grand Caiion of the 'Held, purposes. Arkansas granted for railroad 1. That said act of 1872 particular way immediate in a beneficial easement over the routes designated Company lay, capable, however, in the charter of the Denver enjoyment good only way actually appro- when such should and in faith be charter, priated contemplated by purposes and then the title thereto would take effect relation as of the 2. date the act. company finally appropriated way through the canon April prior occupancy and was entitled to the benefits con- companies said act ferred 3 That both should be allowed to proceed respective with of their construction roads said canon enough where it is so interfering broad for them to do without with each where, other; defile, portions impractica- but the narrow this is ble, below, recognizing enforcing prior the court while title of the should, orders, Company, upon just equitable secure City Company, use, terms-the under said act of Company, track, in common with the Denver the same road-bed and after completed. the same shall have been Appeals from tbe Court States United Circuit the District of Colorado. causes involve the
These claims two railroad conflicting Denver and Rio Grande corporations Railway Company —the — Cañón and San Juan City Railway Company and use the Canon of the Arkansas Big Cfc. former will be tbe tbe sake brevity, For railroad purposes. and the latter as tbe Denver hereafter designated the Canon Company. in tbe was incorporated year
Tbe Denver Company Its of Colorado. of tbe then Territory laws conformity *2 filed tbe in tbe articles incorporation object, expressed locate, construct, was to operate, of tbe office Territory, lines; viz., tbe certain telegraph maintain railway and Southern Rail- tbe Denver Grande Rio Railway, tbe Colorado Park Western tbe Railway, South Railway, way, Juan tbe Gallesto tbe San Railway, tbe Morena Railway, Valley route of Rita Tbe and the Santa general Railway. Railway, articles of the incorporation. each line was designated — — Grande of tbe main line tbe Denver Rio — as follows:
“ Denver, thence at Territory, running up Colorado Commencing River, thereof, the the Platte on southeast side valley of the South Creek; near the mouth of Plum thence the up to a at or point a at or near the Creek, Plum forks East Plum valley point the main east branch of Creek; Plum thence up Creek West west, in township 11, Plum to the lake on Valley range Creek the waters Plum Creek and Monu- dividing the east of the ridge the of Monument Creek to a Creek; thence down valley ment Monument the the valleys at or near point junction bouille, a in the Fountain or to below Valley, Fountain qui point Monument, if shall determine survey the detailed the mouth valley thence Foun- eligible; be latter the.most a on the point its west tributaries Arkansas tain or across be detailed may survey River at or above Pueblo found same; thence tip most eligible intersecting to be the at near Canon thence point City; Arkansas to or valley of the Big Canon the Arkansas continuing up valley of ; or the Arkansas Bioer near the mouth point the same to Arkansas River or the valleys thence adjoining slopes divide between Creek to summit Pueblo Park as Poncho and the Luis the Arkansas San (known waters of di- route in a general southerly the most eligible thence Pass); Grande to the Rio valley down'the Luis Valley rection San direction, Norte; particular in a southerly del thence general a detailed survey" be determined upon by route may Railway Co. v. Allino. Oct. 1878.] most down of the Rio valley Grande to the eligible, southern ; of Colorado thence down boundary continuing valley Grande, river, Rio either on side of found may expedient, one side other desirable, when crossing Paso, to El Chihuahua, in the State of with the privilege consolidating with and uniting operating any connecting railway Republic of Mexico.” are, seven roads be, or were remaining intended
branches feeders of the main line. 8,1872 an act of By Congress, Stat. approved (17 389),
“ domain, over the one way hundred feet public width, track, side of on each with such lands together public thereto as be needed for adjacent and other may depots, shops, for railroad and for buildings side- purposes, yard-room tracks, station, not acres at one and not exceeding twenty miles, more than one station in ten every take stone, timber, earth, from the lands thereto adjacent water, and other material for the construction required and re- *3 line,” its and and confirmed railway pair telegraph granted unto the Denver successors and The act assigns. describes the created under the in- company corporation Colorado, laws and rati- Territory corporation grants, fies, to it and confirms all the and rights, franchises powers, those conferred laws on created thereunder for corporations lines, railroad and operating telegraph of its extension and lines in operation railway telegraph States, United any contiguous territory Mexico, line the northern the conditions boundary subject of the territorial statutes so far as the same requirements and not inconsistent with the laws of the United applicable act, also, States. gave company rights, powers, conferred the Union Pacific Railroad Com- upon privileges 2,1864. 3 of the act sect. But the July thus pany rights and conferred were accompanied proviso granted' should to a on the Rio complete point company railway Fé, south as Santa as far within five Grande after the years act; and each thereafter year passage fifty miles of south point. additional
YOL. IX. Railway Co. March id. that of an act 1875 (18 576), By approved thereto a which was corrected by adding proviso, have mistake of the was declared to been omitted by copyist. “ amo; enacts, That other g things, proviso as a and Rio Grande Railway Company hereby recognized under from the date of its lawful corporation incorporation Colorado, and all and franchises laws the powers, privileges, said laws conferred said are company hereby expressly ratified, confirmed, and from the date said legalized existing of incorporation.” “ the same an act to rail- On day, Congress passed granting ‘ roads a lands of the United right way through public ” railroad States.’ “ 18 Stat. 482. It that right. any grants or under the laws of State Terri- organized
company duly any Columbia, the District of or except by Congress, tory, filed with of the Interior a shall have copy Secretary of its its articles and due organization incorporation, proofs same, to under the the extent of one hundred feet on each side road; central line of said also the to take from the right material, road, &c., neces- lands line of adjacent road, the construction of the station grounds sary turn-outs, side-tracks, depots, machine-shops, buildings, stations,” &c. water —:
The second section provides “ track or whose whose any way, right canon, way, passes through or ioad-bed defile, shall hot other railroad or prevent pass, cañón, defile, for the pur- of said pass, the use occupancy located, road, in common with road first poses of such of other And the railroads location grade. crossing cañón, or defile shall not cause of way through any pass, therein, located disuse of other now any wagon public highway *4 road the location the same of such through any wagon nor prevent where such be road or highway may necessary or highway accommodation; location of and where any change rail- road is of such necessary permit such wagon passage shall, cafion, defile, railroad said any pass, road through road, such 'occupied by before entering upon ground wagon be in the most cause the same to reconstructed at its own expense Railway Co; Alling. Oct. 1878.]' location, favorable as manner as the road: perfect original Provided, that such shall be expenses divided between equitably number of railroad any same companies using occupying cañón, or defile.” pass,
Section 4 declares that any desiring shall, secure the benefits that act “within twelve months road, after the its location section of miles of if twenty lands, and, the same be if upon surveyed upon unsurveyed lands, within twelve- months after the thereof survey States, United file with land-office register road; located, district where such land profile Interior,” thereof approval Secretary “ the same in said be noted required plats office, and thereafter all lands such over such right should be to such way passes disposed subject way.” All as section rights forfeited thereby granted but located five after location. within uncompleted years 15, 1877, Locke, On Feb. in- became Ailing, Megrue under the laws of as Colorado “The corporated City Juan with a stock of San Railway Company,” capital $100,000, for the purpose maintaining railroad from Canon thence of the Arkan- City, up valley thereof, thence, sas River the Grand Cañón t„o route, most that river South Arkansas practicable following in Lake The of in articles cor post-office Colorado. County, were filed in the office of the poration State of Secretary Colorado, Interior, Feb. The Secretary communication, declared, an official June his ap- filed proval proofs organization and of the the line of its road for a map showing distance miles. twenty 3, 1877, March act
Congress, passed amending as to so read that the Denver should act, have ten from the years, passage original Fé, which, far south Santa default of as it, unfinished should part rights privileges granted and void. null filed, 20,1878, Cañón April complaint the Third Judicial District against *5 Alling. Railway Co. v. Colorado, that it had com- Court of Fremont claiming County, 8, 1875, March in all with the act Congress plied, respects, its road to construct through and acquired prior right as sur- Caüon, of its line one feet on each side Grand hundred the defendant was and interfering veyed charging of its road that line. with the construction upon bill, was with the In accordance injunction prayer from the defendant the State court restraining granted by suit, in the canon. That its further with operations interfering 22, 1878, defendant, was, re- April upon petition for the United States moved into the Circuit Court District of Colorado. bill in the filed its
The Denver Company, April court, others, are who latter designated Ailing against for the its trustees the charter of the Canon Fé Atchison, and Santa first Topeka, against year, the Cañón City Company charging Railway Company, individual that the constituted was not a corporation; legally had, defendants, corporation, wrongfully claiming Canon, locate were force, proceeding occupied had in that cañón which the a line complainant their road upon 1871-72, it had preparations surveyed 1878; that, although the 19th of active work on April, resume canon, the narrow portion was in the it occupancy threat- located, the defendants could be one road where only then and servants to drive engineers force away ened by canon, it of its located in said dispossess thereby working cañón; that the de- said in the narrow part line grade in said course and abetted aided fendants to build who, seeking Fé Company, and Santa Railway Arkansas, and Pueblo, through from valley the defendants with confederated canon, to that end said itsof the extension railway to abandon the complainant compel The com- act of Congress. its charter authorized by bill, way an exclusive right claimed plainant, hundred and one Canon, of its the line survey, Big effect relief road, to that each side feet upon suit a injunction In that temporary decree. final asked by restraining the Canon City against was granted Oct. 1878.] Canon, attempting Big occupying
from, manner, attempting Avay locate, or construct their line of railroad through survey, Avhieh, canon, suit, of that Avastaken and purposes *6 Rocks,” decreed to at what is the “Point of known as begin at canon, the mouth of the and to the twelve-mile extending was modified and limited bridge. injunction subsequently in its to that canon known as the operation part Royal and the defendant allowed to enter Gorge, part w.as railroad, of the canon and but not same for to grade lay ties or rails on thereof until the future order of the any part court.
In the suit instituted the Cañón the Den- by City Company, cross-bill, ver filed Company same setting-up substantially facts as in its others, bill original against Alling and rendered, Avhieh, decree other among things, recognized of the former to in the construction prior right proceed its Canon, the Grand operation without inter- obstruction, ference in the Denver any way, by Company, but Avit-h to latter exhibit its in liberty bill court of competent jurisdiction compel City Company locate, and so construct change, its road as to con- -the permit venient and location proper by own Company road, or to the Canon compel City Company permit the track and Company the for- roadway mer if in that defile it point should imprac- ticable to down or lay conveniently safely distinct operate íavo From lines that decree the Denver railway. Company ap- it also from the in decree pealed, appealed suit, own it, dissolving injunction preliminary and dis- granted its bill. missing
The case Avassubmitted on printed arguments Mr. John by Usher, Mr. P. Hanson A. and Mr. Hisley, James Grant and Mr. H. M. Teller Mr. Charles P. Gast appellants, by appellees. motions, made after the submission case, mentioned court, are of opinion were argued Mr. Bartlett and Mr. H. in B. Hoar Sidney of them, support K. Bass Grant, Mr. and Mr. Lyman James contra. Co. Mr. Harlan, Justice case, after delivered the stating court,
opinion
A our question, consideration, must preliminary presented be first disposed of. These causes were Court, determined in the Circuit final
decree, Aug. stipulation between the Upon parties were submitted here on the 10th of last. On January 20th court, was represented to this January form, Pueblo and Arkansas Railroad Valley which, owned a railroad extensions, with branches and is a continuation, Colorado, Atchison, of the line of the Topeka, Kansas; Fé Santa Railroad that certain con- had, tracts and with the consent arrangements of the appellees suits, in both and after the of that been entered filing stipulation, into between the Denver Company, Fé Railroad Santa Pueblo Arkansas Company, Railroad ana had been Valley after part executed : herein con- said filing printed arguments *7 Atchison, tracts and the and Fé arrangements Topeka, Sante Railroad had a taken lease of all the constructed Company 1, lines the Denver from Dec. Company thirty years them; and then and possession operating all had and received the railroad and purchased supplies ; of that and materials to a transferred purchased shares, its use a of all the trustee for majority capital- with an stock of fur- agreement providing them, and the remainder of ther and with purchase ownership Pueblo and the further Arkansas agreement Valley Atchison, and the Railroad and Fé Sante Company Topeka, should have the Railroad selection of Company majority the directors the Denver third other Company, being ; selected bondholders of latter that those contracts and made with and agreements intent controversies, all and all design ending especially competi- lines, construction of tive between the Denver Com- Atchison, one on the and and Fé part, Topeka, Santa pany it, roads Railroad operated by including and Arkansas Railroad on Pueblo the other Valley Company, that, Atchison, reason of the premises, part; Topeka, Oct. 1878.] and in con-
and Santa Fé its own Railroad right, Company, nection with the Pueblo and Com- Arkansas Valley Railroad and entitled to had become and was the owner pany, equitably affairs, interests, suits, control of all property the Denver discontinuance of to the Company, especially Atchison, all hostile to interests of the litigation Topeka, and Santa Fé and the Pueblo and Arkansas Railroad Company Railroad these the Pueblo Valley Company. Upon grounds and Arkansas Railroad name Valley Company (the present others, the Canon City Company), Ailing appellees, moved the court that the of these stipulation submission causes, be cancelled and upon printed arguments, discharged, files, withdrawn from the printed arguments dismissed. appeals Upon part
and Santa Fé Railroad a motion was submitted that it be allowed to intervene take of these suits in the charge name of the solicitor, Denver on Company, appear by consent, behalf record, that it appellants, may give the dismissal of the The trustee referred to appeals. motions, contracts his consent to the gave
alleged their March, court, was set for the 20th of this hearing the mean n time, action At that suspending any date appeals. and resisted Company appeared by attorneys motion. each of the motions it other
Upon hearing appeared, among March, that on the first 1879, the things, Denver Com- day 85,000 stock, had issued shares of of which the pany plaintiffs — in the motions claimed to own or control a bare majority, 42,510 shares. that, It was also shown at a meeting directors held on Feb. resolutions were being
quorum present, unanimously adopted, that these motions were hostile interests declaring *8 Atchison, the claims of the company; Topeka, Fé Railroad the- Santa Pueblo and Arkansas Company unfounded, Railroad and their Valley assertion the fraudulent depriving purpose creditors, interests, its stockholders and of valuable rights, The without resolutions instructed compensation. property, and the of the not president attorneys only v. but, means, the dis- motions, these all prevent oppose legal by herein missal these or the intervention any pur- appeals, to the record. not a party pose any company person this court were also required prosecute appeals They motions, with the utmost At argument diligence. resolutions, contracts, relied of all the upon writings copies for our examination. were submitted by respective parties of learned coun- consideration of the careful Upon suggestions sel, decline do not doubt that it is our we any expres- duty effect or construction sion of as to the opinion proper claimed, which, it is numerous documents plaintiffs give of the Denver to have the Com- motions appeals there are serious differ- dismissed. It is apparent pany not as to of that ences the stockholders only company, among future, but as to the its general validity policy under which the of the contracts writings interpretation Railroad Santa Fé to be claim and Arkansas Railroad Company Pueblo Valley affairs, control of the owners, to the and entitled equitably We cannot now of the Denver and suits Company. property, are that field of present appeals being enter controversy. order of the directors or to final by judgment prosecuted them, law, is To trustees corporation. appellant concerns of committed the property management the action of the In all involving litigation corporation. in court. the dis- are representatives corporation they stockholders, not duties only of their they represent charge creditors, of the Their bondholders and company. right, but functions, to the exercise of their manage legitimate while not controlled suits of the ought affairs and court, which reason of this thing interfered with any their motions. Upon responsibility pending appears upon that these causes shall insist pro- and trustees as directors they here- with the in accordance stipulation ceed final judgment, If, in appeals. prosecuting tofore made parties trust violate committed them to final judgment, hands, corpo- binding their agreement stockholders, be sought remedy may ration and minority which, into court jurisdiction, some original *9 Alling. Railway Oct. 1878.] v. No such be summoned. interested all may persons
pleadings, informed, and instituted, so far as we are has been proceeding to of strangers tbe we do not suggestion feel liberty, upon action from, the official to behind the decrees go appealed and, trustees, disregard or board of directors plain counsel, to dismiss wishes, appeals, and their directions their presented refuse to consider regularly questions thereby for our determination. denied, to an ex- are, therefore,
The we motions proceed merits, that our cases their amination premising of the upon of the to limited a determination rights is present duty rendered, final decrees existed when the they parties If, us. records before since are manifested in the entered, and Santa these decrees were and Arkansas Railroad the Pueblo Yalley Fé Company, have, contract, a con- valid acquired Railroad affairs interest in the rights, trolling property, be asserted that interest can by appropriate Denver Company, we de- not and will be affected by thing may proceedings, issues these termine presented by appeals. acts of which Denver Com-
The several Congress upon rest their claims respective the Canon pany City Company cited, -in are Grand Canon Big priority of both given the organization companies history of an the case. But there are other facts impor- statement of in the course which attention will be called tant character this opinion. merits,, be con The first question, necessary is, of June sidered as to the construction of the act proper however, not determination, In we should overlook what had in the previously transpired history act, over the way granted, domain. very January February, shortly after articles were filed office incorporation caused a survey Territory, the route Big Arkansas, as declared who purpose, engineer it, com conducted control for that cañón retaining the entire length survey, extending through pany. Co. ” “ canon, him as a close described preliminary; is, location, a line without an near actual location of the very curves, testifies, But he curves. the location could have made in been his office canon. With away ex he it to have been a pronounces survey. ception, *10 feet, thus was marked stakes hundred line surveyed every numbered and at where it seemed neces consecutively, points a between hundred added. stake the feet was Of plus sary, done, then a the work were made and returned map profile chief to the sent to its estimates company, engineer occasion general manager. Upon survey, shortly thereafter, under the direction of employés company, material; removed several hundred engineer, yards graded cañón, several hundred at the feet outlet upper put wall ten to feet a fifteen about one hun retaining high, up 1872, dred in was con yards length. January, survey tinued west of the canon for a of four' five distance miles. made, these were While was em being surveys in Pueblo, the construction of from Denver to its road ployed after, it to the latter within a completed few place, days or about the date of the of the act of June 1872. It passage stated, connection, also be in this it may completed Labran, Pueblo to within miles of Canon eight City, October, about 1st of in Canon City July, All this 1875. was consistent with purpose, upon part avail itself and within ultimately, law, the time prescribed by granted right way through Canon. done, what the Of to the prior passage act of towards effecting objects incorporation, is was not uninformed. Congress, fairly presumed, It aware, was we also must of the routes presume, designated charter of main road and its several company, branches, constitute, all so connected as to when completed, extended for that entire railway region. system Congress was so informed indicated quite the terms em- clearly must, therefore, the act of 1872. That act ployed receive same construction which would had it contained adopted full or detailed the routes of the main line and description Railway Alltng. 475 Oct. 1878.] Co. v. (cid:127) view, due to all the cir In this regard branches. having act cumstances and conditioh of the when the was company, doubt was we do not that the intention of passed, Congress easement in the beneficial grant company present over which the routes particular way capable, designated lay, however, of when the enjoyment only way granted actually faith, located, and, in con good appropriated purposes charter of the act Con templated by made, such location and When gress. appropriation title, which was acquired previously imperfect, precision, took relation effect as of the date of the The settled grant. doctrines of this court would seem to that conclusion. justify 95; Smith, Railroad v. 9 v. Harr Wall. Schulenberg 44; iman, Leavenworth, Lawrence, 21 id. Railroad Galveston & States, ; Missouri, Kansas, & 92 v. United S. U. Texas Co., id. Co. Kansas Railway Pacific It is here counsel for the Denver suggested by Grand Canon 1871 and 1872 con- surveys *11 stituted, without further action on its a sufficient location part, of of at least that route. part designated appropriation To this we cannot our assent. The of proposition yield not, itself, was from the pass separate way through value, route, the whole ex- special along way its road its line located east cept company surveyed was an as to the of that defile. and west grant entirety on the route over all lands designated lying right way it would be unreasonable of the arid' the charter route, that, of that a mere as to a part prelimi- particular say to a fixed in itself location was equivalent nary survey while as to and an way granted, appropriation would not be route similar survey another general part unless followed actual of the an granted, way appropriation such construc- use for railroad purposes. Any occupation inadmissible. must be held tion of the statute altogether there, then, was appropriation by When we have within of the Grand Canon principle that that it became evident pass and 1878 stated? reach desiring vital company importance was it, whether and business country beyond tha trade Ct.- v: west, northwest, Discoveries then southwest. recently made mineral wealth in it immense Western Colorado gave since, tends, circles, value in as evidence pecuniary to establish the of the Grand occupancy .Royal Gorge Canon one line of exclude all railroad would practically it for like competing companies from‘using purposes, except such terms as the first dictate. From occupant might date of the made in down survey April record furnishes no evidence that the Denver Company actually that defile for whatever. On that occupied any purpose day, however, extended ten the time to Congress having years the date of the act within which to its road original Fé, did, far as south as Santa oc- agents, the narrow canon known cupy portion the Royal with the avowed intention of its road Gorge, line made in But 1871 and surveys during 19,1878, the board of directors night April convened, and Robinson City Company Strong, chief engineer manager, respectively, Fé Santa Railroad were elected to the same in the Canon positions City Company. They prep- arations to take immediate of the canon in behalf of possession the last-named Evidence of their and activ- company. diligence in that direction is found fact on the ity morning 20th, o’clock, as four small of their em- early squad number, nine or ten under the of an assistant ployés, charge River, swam the and in Arkansas the name of their engineer, took of the canon. Under the circum- possession stances, not material that to find failed a rival force cafion such an hour. unseasonable squad followed same force day large overpowering workmen under the control of Robinson. These movements *12 were succeeded a suit instituted the same by State day, court, in the name of the Canon City Company against Denver which an was obtained restrain- Company, injunction the latter from to ing canon occupying attempting occupy or from with the purposes, interfering in the construction of its own road therein. Company The last-named now insists has that it company prior Oct. 1878.] its of road. In sup- and use the line canon lost claim, of the other had this it contends that
port it whatever in the canon the imperfect rights acquired through the con- of 1871 and its inaction after survey long by failure, within struction of the to Canon its road City, by follow loca- a reasonable those actual period, surveys by up tion and for railroad The conduct occupancy purposes. it is
Denver evinced settled upon urged, purpose that its to abandon its of a part grant way through cañón. The answer to all this seems obvious. very defective some surveys although not to an actual location or appro equivalent particulars, as as extended quite way, priation which the Canon caused made City Company survey shows, evidence that when in 1877.- The all beyond question, was in the canon all or was there seen the latter survey which the stakes many engineer very there 1871 and Those who made 1872. put Company when, whom, knew and for in 1877 undoubtedly survey those-stakes had been there Nor had what placed. purpose reason sufficient suppose abandoned road purpose through had finally We have referred canon. already completion thé Pueblo, Pueblo Canon from Denver to City, 1878, the Denver commenced July, — branches, the Denver and Southern of one itsof construction Pueblo, road to completed Railway. Commencing Pueblo, 1876; to Gar Cucharas, miles from by February, fifty there, 1877; land, and to the miles from valley by August, sixty Grande, 1875, the com 1878. After the Rio July, July, true, active work the line west of it is suspended pany, cause its officers But the as Cailon suspension, City. in business and financial widespread depression testify, belief, circles, shared interested in the all prosperity the extension of line southward from immediate returns and more quicker Pueblo gave promisé state that it was They results every way. purpose work the canon to resume line obtained, means therefor soon could necessary *13 Railway Alling. Co. v. was no at there intention time to the route abandon any west of Canon Their in the construction City. of delay road west of Canon the Grand seems to Canon through have interest been of the stockholders they represented, and not inconsistent with an honest within the purpose, period law, fixed to meet the for which by objects Congress granted 1871-72, to it the of Its of followed right way. surveys by of the canon on 19th advance occupancy April, of the Canon for the City Company, purpose defile, was, its road in our a final through judgment, ap- The Denver propriation way granted Congress. before, then, not if came into the enjoyment beneficial easement conferred act present have, 1872, and was entitled to secured all intruders against or whatever to that privileges advantages belonged position. But the as to remains the effect important question 3, 1875, act of March granting right way through lands railroad United States any company duly under the laws or State organized Territory, except Columbia, or District of the United States. Congress of that act no leaves doubt as language to its explicit It declares “that object. whose company right or track whose or .road-bed way, right way, canon, defile, shall not passes through any pass, prevent any other railroad the use of said company occupancy defile, canon, road, in, of its pass, common purposes located, with road first of other railroads crossing date At the of that act the road of the Denver grade.” seen, as we have had not been located Arkansas. But it Canon subsisting grant therefore, that defile. way through According, 3, 1875, of March the act if it City Company, act, to the class described first section of the belonged road, the- and use that might, canon purposes in common with the Denver Company. case, this branch of the the first 'contention
Upon is that latter the Canon was not City ” “ and, therefore, Colorado, under laws organized duly terms' of the act of March not entitled by Oct. 1878.] articles well taken. The this not benefits. But objection substantial seem filed
of incorporation need This the statutes of Colorado. objection with compliance further considered. not be act of March claim the benefit of the
But its *14 not that it was 1877, is the further impeached ground upon road faith, in for the of constructing organized good purpose Atchison, itself, but was the mere instrument of the Topeka, whom real work construction Fe Santa the doubted, to canon was carried on. is not be the It through evidence, and Santa Fé the that the under all the is the active behind move- power Railroad Company the the the name of Canon ments City Company canon,’ or some of the that former the company, occupation the stockholders, success were interested of its deeply from the to drive the Denver Grand movement the Company the a rail- is none less But Canon City Canon. Company It of Colorado. under laws road company, organized duly 3, is, therefore, of the act of March embraced letter very sound are to what We unable perceive principle 1875. can its lawful behind regular the courts go organization, act, it from the that because and exclude rights granted by of work it derives aid its assistance accepts the prosecution from, it with which choose share another may corporation, act under the benefits secured Congress. which is extent to next inquiry rights
Our or modified the act affected 3,1875. that act was When of March passed, grant 8, 1872, not been acted the act way by There had not as to Grand Arkansas. 3, 1875, of its been, March an actual location line on through thereof, faith, defile, for .the nor good that any occupancy its road. The five years originally purpose within that given railway Fé, on the as far south as Santa Rio Grande expired to point however, June, Before, on the 8th expiration the time was extended to ten from the pas- that years period, Now, it act. reason of original solely by sage had the on extension that- right, 48a v. Canon,
19th to take April, possession for the final location and of its road construction prepare When, therefore, the benefits pass. accepted 3, 1877, of the act of March it must be held to have assented act of March it was provisions whereby declared, in the interest of other public, under laws of State company duly organized ..the Territory canon, road, use and might purpose in common with road first located. At time of 3, 1875, of the act of March had become passage Congress convinced of the to the importance country, particularly States, canons, Western and defiles preserving passes, domain for the and common use of rail- all equal under State territorial companies organized competent and to which authority, national might granted by authority We well the extension way. may presume of time accorded to the Denver act of March Company by not would been have to the con- except subject given *15 ditions in 3,1875. contained the act of March This conclusion should, renders it case, that we in this consider unnecessary whether have subjected Congress might legally consent, its of the act of Company, without provisions March had that located and con- company actually structed its road in or the Grand within Canon five after the act years passage said, It results fr6m what we have that the court below erred in Denver from with enjoining-the Company proceeding the decree, construction road in the Canon. Grand entered, can be sustained the that the only -as assumption Canon City Company by prior occupancy acquired right to which the Denver and Rio Grande superior Railway had to use the cauon for the Company purpose seen, its road. But that we have is not sustained assumption, evidence, the and inconsistent is with the rights given by the acts of to the Denver The Denver Congress Company. should have been allowed to con- with the proceed struction of its road unobstructed the other company. Where the Grand is broad to enable both Canon enough each, without interference with other companies proceed v. Oct. 1878.] roads, should be their
the construction respective defile, in the narrow But portions do so. allowed orders, court, proper this course where impracticable, the Denver and Rio Grande should recognize right prior Further, if in its road. to construct Railway Company it is Grand Canon impossible impracticable portion track, court, than one road-bed down more to lay of the Denver while recognizing prior right business, should, its track for own construct operate orders, be such terms just may proper of the Canon establish and secure City equitable, 3, 1875, to use the act of March conferred by track, common with same road-bed and after completion, Company. are, therefore, reversed, in these with The decrees causes aside the set order directions granting injunction against also the Denver and Rio Grande Railway Company, favor, its and dis- order injunction dissolving granted suit, orders, its bill. entered in each missing By below will' of that court recognize prior and use the Grand Canon construct- purpose therein, will San enjoin ing City officers, servants, and em- Juan Railway Company, agents, with or interfering obstructing ployés, use, that, and construction. It be such occupancy, may during below, of these in the court causes or since the pendency from, of the decrees rendition the Canon appealed has, Juan under San Railway Company authority Court, its road-bed and track in constructed Circuit Canon, event, or in some thereof. the cost portion incurred in those cañón which thus admit of portions one road-bed and track for railroad only purposes may *16 in such manner and ascertained provided as the of the and conditions terms require. equities parties may . court will make such further orders as be neces- The may to this effect to give opinion. sary Chief Justice Waite
Mr. dissenting. I dissent from in this case. judgment opinion my VOL. IX. Samory. Montgomery v. and Rio Grande the Denver grant way contained act of no more in the
than a license to of the lands enter and use such and not United States as should be unoccupied appro- to other when the location priated purposes permanent a road with should be made. view actual construction railroad, which, Words land to aid in in a building grant that effect need not have imply present grant necessarily in a grant only. way think, also,
I Juan and San the first location with a view to actual construction permanent it secured the pass Consequently controversy. routes, use of the to a reasonable route preference subject if in common occupied, necessary, by with itself.
Montgomery Samory. Louisiana, having jurisdiction parties A court subject-matter suit, judgment plaintiff in favor debt, rendered a with privilege mortgage given by lien on the -lands described in the the de- judgment, appeal by fendant to it. on a secure The devolutive the defend- ant, things Supreme was in all affirmed Pending Court of the State. appeal, judgment, the lands were the sheriff sold under the pur- plaintiff, chased who obtained a under the act monition for the fur- purchasers judicial ther assurance of titles to publication sales. Due having made, being said monition been opposition there no to said sale, court that the same “be homologated ordered confirmed and according subsequently brought to law.” A suit in the Circuit Court mortgagor, States heir-at-law of praying of the United that the purchaser void, title of the at said sale be decreed to be null and and that complainant adjudged trué to be the and lawful owner of the lands. Held, judgment proceedings that the on the monition is conclusive proof sale, and, validity adjudicata, res is a bar to the suit. Court United Circuit States for the Error District Louisiana. facts are stated in the of the court. opinion '
Mr. Thomas Hunton for the appellant. Mr. Miller, G. Mr. contra. Philip Phillips Henry