that a map of definite location was filed Oc- | ing within the rule holding the grant of the tober 4, 1880, prior to the acquiring of the right of way effective from the date of the title to the land in question by the defend-act. St. Joseph & D. C. R. Co. v. Baldwin, ants or their predecessors or grantors; and 103 U. S. 426, 26 L. ed. 578. that said railroad had been continuously op- The supreme court held that the action erated since its construction. The defend- was barred by the statute of limitations; ants, answering, claim title by patent from that the company was estopped from asthe United States government. The land serting title by reason of the circumstances; was acquired under the pre-emption and and that: “Where, through the negligence homestead acts, respectively, and all the and laches of a railroad company, the occudefendants or their grantors have been in pancy by others of portions of the right of quiet, peaceful, undisturbed, and undisputed way granted to it by the government has possession of said land for more than ten ripened into title by adverse possession, the years immediately prior to the commence company cannot set up the defense that the ment of this action, many of them for nearly right of way was granted for public purtwenty years. Valuable improvements have poses only, and that it would be against pubbeen made by the defendants, the said land lic policy to permit either its abandonment consisting of town lots in the city of Spo- by the company or the acquisition of adverse kane, and having been platted and laid out rights therein by way of estoppel or of the as additions to the city of Spokane by the bar of the statute of limitations." defendants or their grantors after acquiring As before stated, on the 4th day of May, title to the same from the United States gov- 1903, the decision of this court in Northern ernment. During all these years no claim P. R. Co. v. Townsend, 190 U. S. 267, 47 L whatever to these lands has been made by ed. 1044, 23 Sup. Ct. Rep. 671, was anthe appellant. It has stood by and seen im- nounced. We there ruled that individuals provements made thereon, and, in the case could not, for private purposes, acquire by of defendant Brown, an agreement was en adverse possession, under a state statute of tered into between him and General Sprague, limitations, any portion of a right of way who was then the general superintendent of granted by the United States to a railroad the Northern Pacific Railroad Company, company in the manner and under the condithat they would plat their lots so that the tions that the right of way was granted to streets of the addition which the railroad the Northern Pacific Railroad Company. At company was dedicating would correspond the same time it was not denied that such with and meet the streets which Brown was right of way granted through the public dodedicating to the city of Spokane, and the main within a state was amenable to the agreement was carried out by arranging the police power of the state. And we said: streets in accordance therewith. These "Congress must have assumed, when making streets have been used by the public for from this grant, for instance, that in the natural ten to eighteen years. The testimony shows order of events, as settlements were made that, in addition to the improvement which along the line of the railroad, crossings of these defendants have made upon their lots, the right of way would become necessary, many thousands of dollars have been paid and that other limitations in favor of the by them for assessments levied upon abut- general public upon an exclusive right of ting land for the improvement of streets occupancy by the railroad of its right of running through this right of way; that the way might be justly imposed. But such appellant has never paid these assessments; limitations are in no sense analogous to that they have never been assessed to the ap- claim of adverse ownership for private use.” pellant, and that no question has ever been We are not prepared to overrule that deciraised by the appellant as to the right and sion, and tested by it, the judgment in this obligation of the defendants to pay the case must be reversed. But we were then same. While the record does not show that dealing with the original right of way, any of the lands owned by the defendants which was of a width of 400 feet. April 28, were deeded to them by the appellant, it 1904, an act of Congress entitled "An Act does show that the Northern Pacific Rail Validating Certain Conveyances of the road Company has deeded to other parties Northern Pacific Railroad Company and lots in the city of Spokane situated within the Northern Pacific Railway Company," the 400 feet of right of way, upon which was approved (33 Stat. at L. 538, chap. valuable improvements have been made by 1782), reading as follows: its grantees."

"That all conveyances heretofore made by It may be added that it was only as to the Northern Pacific Railroad Company or some of the parcels that the filing of the by the Northern Pacific Railway Company, map of definite location and the construc- of land forming a part of the right of way tion of the railroad preceded the filing of of the Northern Pacific Railroad, granted the entries. But we regard the case as fall. by the government by any act of Congress,

.

are hereby legalized, validated, and con- | he may have originally entered under a void firmed: Provided, That no such conveyance grant of sale. But his claim ripens into shall have effect to diminish said right of a perfect title and becomes absolute, if such way to a less width than one hundred feet possession is not disturbed within the time on each side of the center of the main track prescribed. As is said by 3 Washburn on of the railroad as now established and main Real Property, 5th ed. p. 176: tained.

“ 'The operation of the statute takes away "Sec. 2. That this act shall have no vali- the title of the real owner, and transfers it, dating force until the Northern Pacific Rail- not in form, indeed, but in legal effect, to way Company shall file with the Secretary the adverse occupant. In other words, the of the Interior an instrument in writing, ac- statute of limitations gives a perfect title. cepting its terms and provisions."

The doctrine is stated thus strongly because The terms and provisions of the act were it seems to be the result of modern deciaccepted by the railway company June 22, sions, although it was once held that the ef1904, and the acceptance, duly certified, was fect of the statute was merely to take away filed in the Interior Department July 7, the remedy, and did not bind the estate, or 1904.

transfer the title.' " 25 Wash. 388, 54 L. R.

. In Townsend's Case it was said, among A. 530, 87 Am. St. Rep. 768, 65 Pac. 556. other things:

In Sharon v. Tucker, 144 U. S. 533, 543, "Manifestly, the land forming the right of 36 L. ed. 532, 535, 12 Sup. Ct. Rep. 720, 722, way was not granted with the intent that where the statute of limitations in force in it might be absolutely disposed of at the the District of Columbia was applied, Mr. volition of the company. On the contrary, Justice Field, speaking for the court, said: the grant was explicitly stated to be for a "It is now well settled that, by adverse designated purpose, one which negated the possession for the period designated by the existence of the power to voluntarily alien- statute, not only is the remedy of the former ate the right of way or any portion thereof. owner gone, but his title has passed to the The substantial consideration inducing the occupant, so that the latter can maintain grant was the perpetual use of the land for ejectment for the possession against such the legitimate purposes of the railroad, just former owner, should he intrude upon the as though the land had been conveyed in premises. In several of the states this docterms to have and to hold the same so long trine has become a positive rule, by their as it was used for the railroad right of statutes of limitations declaring that uninway. In effect the grant was of a limited terrupted possession for the period desigfee, made on an implied condition of reverter nated to bar an action for the recovery of in the event that the company ceased to use land shall, of itself, constitute a complete or retain the land for the purpose for which title. Leffingwell v. Warren, 2 Black, 599, it was granted

Congress having 17 L. ed. 261; Campbell v. Holt, 115 U. S. plainly manifested its intention that the 620, 623, 29 L. ed. 483, 485, 6 Sup. Ct. Rep. title to and possession of the right of way | 209.” should continue in the original grantee, its This was quoted in Toltec Ranch Co. v. successors and assigns, so long as the rail-Cook, 191 U. S. 532, 538, 48 L. ed. 291, 292, road was maintained, the possession by indi- 24 Sup. Ct. Rep. 166, 167, and it was reviduals of portions of the right of way can- marked: not be treated, without overthrowing the act “Adverse possession, therefore, may be of Congress, as forming the basis of an ad- said to transfer the title as effectually as a verse possession which may ripen into a conveyance from the owner; it may be contitle good as against the railroad company.” sidered as tantamount to a conveyance.” 190 U. S. 271, 272, 47 L. ed. 1046, 1047, 23 So far as title to portions of the right of Sup. Ct. Rep. 672, 673.

way could be lawfully acquired from the The act of April 28, 1904, in view of our railway company, defendants below, apdecision in that case, was obviously intend pellees in the supreme court had acquired ed to and did have the effect to narrow the title to their parcels by adverse possession, right of way to 200 feet in width, so far, at and occupied the same position as if they least, as, outside of that strip, the original had received conveyances, which the act of right of way had been parted with.

April 28, 1904, operated to confirm. The The rule in the state of Washington as to act is remedial, and to be construed accordadverse possession is thus stated by the su- ingly. The lots of some of the defendants preme court in this case:

were outside of the 200 feet. The lots of “One holding land adversely to the rights others were partly within and partly withof another can be devested only by the ac- out the strip. But the act was passed after tion of the other, even with a better right, the judgment of the supreme court was renwithin the time prescribed by the statute dered, and while the case was pending here, of limitations; and this is true, even though and it must be left to the state courts to

deal with the matter in the light of the con- State, in favor of the Northern Pacific Railclusions at which we have arrived.

way Company, in an action of ejectment to In Kansus P. R. Co. v. Twombly, 100 U. recover possession of a part of its right of 8. 78, 25 L. ed. 550, which was a writ of way, and remanded the cause, with direcerror to the supreme court of the territory tions to dismiss the action. Reversed. of Colorado, the act authorizing the action See same case below, 28 Wash. 353, 92 Am. was repealed while the writ was pending in St. Rep. 840, 68 Pac. 882. this court, and we, in the exercise of appel

The facts are stated in the opinion. late jurisdiction, declined to send the case

Messrs. C. W. Bunn and James B. back to the court below with instructions to Kerr for plaintiff in error. enter a judgment of nonsuit, and affirmed

No brief was filed for defendants in error. the judgment because we found no error. In the present case, the parties will not

Mr. Chief Justice Fuller delivered the be compelled to resort to some form of opinion of the court: original proceeding to obtain relief under This was an action of ejectment brought the act of April 28, 1904, as, apart from by the Northern Pacific Railway Company that statute, the decree must be reversed, in the superior court of Kittitas county, and thereupon the record will be open for Washington, to recover possession of part of such adjudication as the then situation may its right of way, the land being partly with- . demand.

in and partly without a right of way of 200In No. 88, writ of error dismissed; in No. feet in width. Defendants asserted title by 102, decree reversed and cause remanded for virtue of a homestead application, filed May

a further proceedings not inconsistent with 24, 1883, final proof July 12, 1888, and patthis opinion.

ent September 27, 1889; and adverse posses

sion for the period named in the statute of Mr. Justice Harlan was of opinion that limitations. Judgment was entered in favor the decree of the state supreme court should of the railway company, and defendants carbe affirmed for the reasons given, and, there ried the case by appeal to the supreme court fore, dissented.

of Washington, which held the statute of limitations applicable, reversed the judg.

ment below, and remanded the case with di. (197 U. S. 9)

rections to dismiss the action. 28 Wash. NORTHERN PACIFIC RAILWAY COM- 353, 92 Am. St. Rep. 840, 68 Pac. 882. PANY, Piff. in Err.,

The grant of right of way, unlike the land

grant, was effective from the date of the act, AUGUST HASSE and

Hasse, His and the fact that the railroad was not built Wife.

until after defendants' entry does not affect

the disposition of the case. St. Joseph & D. Adverse possession of railroad right of c. R. Co. v. Baldicin, 103 U. S. 426, 26 L. way.

ed. 578; Bybee v. Oregon & C. R. Co. 139 U.

S. 663, 679, 35 L. ed. 305, 308, 11 Sup. Ct. This case is governed by the decision in Northern P. R. CO. V. Ely, ante, p. 302.

Rep. 687.

The judgment must be reversed on the au[No. 118.]

thority of Northern P. R. Co. v. Townsend,

190 U. S. 267, 47 L. ed. 1044, 23 Sup. Ct. Submitted January 6, 1905. Decided Feb. Rep. 671, and remanded for further proruary 20, 1905.

ceedings not inconsistent with the opinion of

this court in Northern P. R. Co. v. Ely, 197 N ERROR to the Supreme Court of the U. S. 1, 25 Sup. Ct. Rep. 302, 49 L. ed. --.

State of Washington to review a judgment which reversed a judgment of the Superior Court of Kittitas County, in that Mr. Justice Harlan dissented.

V.

(196 U. S. 516) FRANK D. THOMPSON, Trustee in Bank. | to review a judgment of the supreme court

ruptcy of Herbert E. Moore, Bankrupt, of the state of Vermont in favor of the dePlff. in Err.,

fendant in error. 75 Vt. 361, 56 Atl. 11.

The facts upon which the judgment rests are HENRY FAIRBANKS.

as follows: On the 30th day of June, 1900,

Herbert E. Moore, of St. Johnsbury, in the Courts—when Federal courts will follow de- state of Vermont, filed his voluntary peti

cisions of state courts—bankruptcy-pref- tion in bankruptcy in the United States diserence--enforcement of mortgage lien on trict court for the district of Vermont, and after-acquired property.

on the 3d day of July, 1900, Moore was by

the court duly adjudged a bankrupt, and on 1. Whether and to what extent a chattel mort the 15th of September, 1900, the plaintiff in

gage covering after-acquired property is valid error was appointed a trustee in bankruptcy is a local question on which the decisions of of Moore's estate, and duly qualified. He the state courts will be followed by the Federal Supreme Court in determining whether commenced this action in the county court the taking possession of the mortgaged chat- of Caledonia county, in the state of Vertels after condition broken amounted to a mont, on the first Tuesday of June, 1901, preference voidable by the mortgagor's trustee against the defendant Fairbanks, to recover in bankruptcy.

from him the value of certain personal prop2. The decision of a state court as to whether a erty alleged to have belonged to the bank

conveyance by a bankrupt was made with intent to defraud creditors does not present a rupt Moore on the 16th day of May, 1900, Federal question which can be considered by and which was, as allcged, sold and conthe Federal Supreme Court on writ of error

verted by Fairbanks, on that day, to his own to a state court.

use, the value of the property being $1,500, 8. The enforcement in Vermont of the inchoate

as averred in the declaration. The defendlien of a valid recorded chattel mortgage covering after-acquired property, by taking pos- ant filed his plea and gave notice that upon session of such property with the mortgagor's the trial of the case he would give in eviconsent after condition broken, as authorized dence and rely upon, in defense of the action, by the mortgage, without fraud, but with certain special matters set up in the plea. knowledge of the mortgagor's Insolvency and The case was, by order of the county court, contemplated bankruptcy, and with the intent to make the lien available for the payment of and by the consent of the parties, referred to the mortgage debt before other complications a referee to hear the cause and report to the by way of attachment or bankruptcy should court. It was subsequently heard before arise, does not amount to a preference voidable by the trustee in bankruptcy, although the referee, who filed his report, finding the such action was taken within four months of facts upon which the decision of the case the filing of the petition in bankruptcy, where must rest. He found that before June, 1886, the mortgage was executed long before that the bankrupt Moore bought a livery stock time.

and business in St. Johnsbury village, in the 1. The trustee in bankruptcy has no greater state of Vermont. At the time of this pur

rights as against the bankrupt’s chattel mort chase the defendant was the lessor of the gagee, who has taken possession of after-acquired property under the mortgage, than he buildings in which the business was conotherwise would have, because of the exist-ducted, and it continued to be carried on in ence, at the time of the taking such posses. those buildings. Moore, in making the pur

. sion, of an attachment and second chattel chase, had assumed a mortgage then outmortgage which were both dissolved by the bankruptcy proceedings, being respectively standing on the property, and a short time levied and given within four months of the before March 1, 1888, the defendant assisted filing of the petition in bankruptcy.

him to pay. this mortgage by signing a note

with him for $1,425, payable to the Pas[No. 117.)

sumpsic Savings Bank of St. Johnsbury. Submitted January 6, 1905. Decided Febru- Subsequently defendant signed notes, which, ary 20, 1905.

with accrued interest, were merged in one,

dated March 1, 1900, for $2,510.75, due on IN

N ERROR to the Supreme Court of t' demand to said savings bank, signed by the

State of Vermont to review a judgment bankrupt and by the defendant as his surewhich affirmed a judgment of the County ty. This note had not been paid when the Court of Caledonia County, in that State, in case was referred to the referee. The defavor of defendant in an action by the trus- fendant also signed other notes payable to tee in bankruptcy to recover from the bank- the First National Bank of St. Johnsbury, rupt's mortgagee the proceeds of a sale of which were merged into one, and, by various the mortgaged property. Affirmed.

payments made by Moore, it was reduced to See same case below, 75 Vt. 361, 56 Atl. 11. $525, and on June 4, 1900, it was paid by

the defendant. All these notes had been Statement by Mr. Justice Peckham: signed by the defendant to assist Moore in The plaintiff in error, by this writ, seeks' carrying on, building up, and equipping his livery stable and livery business, and as be- Moore became embarrassed, and finally, tween them the notes belonged to Moore to shortly prior to March 5, 1900, he became pay. On April 15, 1891, Moore gave the de- and continued wholly insolvent. On May fendant a chattel mortgage on the livery 16, 1900, the defendant, acting under the adproperty to secure him for these and other vice of counsel, and with the consent of debts and liabilities. The property was de Moore, took possession, under the mortgage scribed in the mortgage as follows: “All of April 15, 1891, of all the livery property my livery property, consisting of horses, then on hand, and on June 11, 1900, caused wagons, sleighs, vehicles, harnesses, robes, the same to be sold at public auction by the blankets, etc., also all horses and other liv- sheriff. It is for the net avails of this sale, ery property that I may purchase in my amounting to $922.08, which the sheriff paid business or acquire by exchange.”

over to the defendant, that this suit is The condition contained in the mortgage brought. The Passumpsic Savings Bank on was, that if Moore should "well and truly September 15, 1900, proved its note of $2,pay, or cause to be paid, to the said Henry 510.75 as an unsecured claim against the Fairbanks all that I now owe him, or may bankrupt estate of Moore, as the mortgage owe him hereafter by note, book account, or held by the bank as security had been given in any other manner, and shall well and by Moore in March, 1900, to defendant, and truly save the said Henry Fairbanks harm- by him assigned to the bank within four less, and indemnify him from paying any months of the filing of the petition in bankcommercial paper on which he has become ruptcy. or may hereafter become holden in any man- For the purpose of defeating the effect of ner for my benefit as surety, indorser, or the defendant taking possession of the livotherwise, then this deed shall be void; ery property under his chattel mortgage of otherwise of force."

April, 1891, the trustee in bankruptcy preThis mortgage was acknowledged, and the sented a petition to the United States disaffidavit, as provided by the Vermont stat-trict court of Vermont for leave to intervene ute, was appended, showing the justice of as plaintiff in the Ryan attachment suit, and the debt and the liability contemplated to be to have the lien of Ryan's attachment presecured by the mortgage, and the mortgage served for the benefit of the general credwas duly recorded on the 18th day of April, | itors. This petition was dismissed by that 1891, in the St. Johnsbury clerk's office, by court. The referee found that the defendthe town clerk thereof. On March 5, 1900, ant and his counsel knew, when he took posMoore gave the defendant another chattel session of the livery property, under his mortgage on this livery stock, which, on mortgage, that Moore was insolvent, and March 23, 1900, defendant assigned to the was considering going into bankruptcy. The Passumpsic Savings Bank, and that bank referee also found that he did not intend to has ever since been its holder and owner. perpetrate any actual fraud on the other This mortgage was given to secure defendant creditors, or any of them, but he did intend against all his liabilities for Moore.

thereby to perfect his lien on the livery On the 7th of May, one John Ryan sued property, and make it available for the pay. out a writ in assumpsit against Moore to ment of his debt before other complications recover some $500, and an attachment on by way of attachment or bankruptcy arose, the livery stock was levied in that suit by and he understood at that time that it was the deputy sheriff. This attachment re- probable that the Ryan attachment would mained in force until dissolved by the bank- hold good as against his mortgage. All the ruptcy proceedings, and the suit is still property of which defendant took possession pending in the state court of Vermont. was acquired by Moore with the full under

Under the agreement contained in the standing and intent that it should be covchattel mortgage of April, 1891, Moore made ered by the defendant's mortgage of April sales, purchases, and exchanges of livery 15, 1891. stock to such an extent that on March 5, 1900, there only remained of the livery prop- Mr. Edward H. Deavitt for plaintiff in erty on hand April 15, 1891, two horses. error. These sales, exchanges, and purchases were Messrs. C. A. Prouty, Harry Blodgett, sometimes made by Moore without communi- and Jonathan Ross for defendant in error. cation with or advice from the defendant, and frequently after consultation with him. Mr. Justice Peckham, after making the The livery stock, as it existed on May 16, foregoing statement of facts, delivered the 1900, was all acquired by exchange of the opinion of the court: original stock, or with the avails of the old This is a contest between a trustee in stock, or from the money derived from the bankruptcy representing the creditors of the business. Some years after the execution of bankrupt, and the defendant, the mortgagee the chattel mortgage of April 15, 1891,' in a chattel mortgage dated and executed