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2. On an application for a writ of prohibition, the inquiry being confined
to the matter of jurisdiction, only the record proper should be looked
into, and not documents and other evidence in addition to the record
which may be sent up under the provisions of Rev. Stat. $ 698. 16.
3. When a party aggrieved by a judgment has an appeal to this court
which becomes inefficacious through his neglect, a writ of prohibition
to prevent the enforcement of the judgment will not issue from this
See BEHRING SEA.
1. The grant of public land to the State of Iowa by the act of May 15,
1856, 11 Stat. 9, c. 28, “in alternate sections to aid in the construction
of certain railroads in that State was a grant in præsenti, which did
not attach until the time of the filing of the map of definite location,
although the beneficiary company (under the lowa statute) may have
surveyed and staked out upon the ground a line of its own road.
Sioux City & Iowa Falls Land Co. v. Griffey, 32.
2. The plaintiff, claiming under the said grant to the State of Iowa,
brought an action against the defendant to recover a tract, a part of
the grant. The defendant claimed under a patent from the United
States subsequent to the filing of the map of definite location, but
issued on a preëmption claim made prior thereto, and filed a cross-bill
for quieting his title. Held, that it was not open to the plaintiff to
contest the bona fides of the preëmption settlement. Ib.
3. A grant to a railroad company of public lands, within defined limits, not
sold, reserved or otherwise disposed of when the route of the road be-
comes definitely fixed, conveys no title to any particular land until the
location, and until the specific parcels have been selected by the gran-
tee and approved by the Secretary of the Interior. New Orleans Pa-
cific Railway Co. y. Parker, 42.
See MINERAL LAND.
1. A mortgage by a railroad company of its railroad, rights of way, road-
bed and all its real estate then owned or which might be thereafter
acquired appurtenant to or necessary for the operation of the railroad,
and all other property wherever situated in the State, then owned or
which might thereafter be acquired by the company, and which should
be appurtenant to or necessary or used for the operation of its road,
and also the tenements, hereditaments and appurtenances thereunto
belonging, does not cover a grant of lands within the State subse-
quently made by Congress to the company in aid of the construction
of its road. New Orleans Pacific Railway Co. v. Parker, 42.
2. If a holder of one or more of a series of bonds issued by a railroad com-
pany and secured by a mortgage in terms like this mortgage has a
right to institute proceedings for the foreclosure of the mortgage,
(about which no opinion is expressed,) he is bound to act for all
standing in a similar position, and not only to permit other bond-
holders to intervene, but to see that their rights are protected in the
final decree. 16.
3. The Chicago, Rock Island and Colorado Railway Company contracted
with the Denver and Rio Grande Railroad Company for the use by
the former of the tracks, stations, sidings, switches, etc. of the latter
company between Colorado Springs and Denver, (except its shops at
Burnham,) and also for its terminal facilities at Denver, and, having
so contracted made its connections and entered on the enjoyment of
its rights under the contract. Shortly afterwards the Chicago, Rock
Island and Pacific Railway Company was organized and acquired the
property and rights of the Chicago, Rock Island and Colorado Rail-
way and entered into the enjoyment of them, and its rights were rec-
ognized by the Denver and Rio Grande Railroad Company. The Rock
Island and Pacific Company then acquired a right to connect with
the Union Pacific Railroad Company at Limon, and to run its East.
ern trains over the tracks of the latter company to Denver, which
it did. The distance from Limon to Denver by this route was sixty.
four miles less than by the way of Colorado Springs and the Denver
and Rio Grande road. Although it had diverted its Denver traffic it.
continued to use the Rio Grande road for its Pueblo traffic, and it
claimed the use of the terminal facilities of that road at Denver for
all, and also of some land at Burnham not actually used for shops. It
also claimed the right under the contract to put in its own switching
forces and cleaning gangs. The Denver and Rio Grande Company
then gave notice that it would exclude from the Denver terminals all
business coming over the Union Pacific tracks. Thereupon the Rock
Island Company filed a bill in equity and obtained a restraining order.
By amendments and supplemental bills there were brought into the
controversy other matters of difference between the two companies
and a final decree was made settling their rights under the contract as
follows: (1), that the new Rock Island Company was the successor of
the old, and had the right under the contract to operate its trains over
the Rio Grande Company's line; (2), that it had not the right, under
the contract, to bring its trains to the Denver terminals over the Union
Pacific; (3), that it had the right to employ separate switching crews
and separate employés to perform other services in the yards of the
Rio Grande Company under the control and subject to the direction
of the agent of that company; (4), that the words “shops at Burnham"
in the contract included all lands used or procured for shop purposes
and appurtenant to the shops located at Burnham; (5), that a track
should be set apart at Denver on which the Kansas Pacific Company
might clean its cars; (C), that each party should pay one-half of all
costs. On appeal this court Held, (1) That the plaintiff was entitled
to file this bill; (2) That it was never intended to grant the use of
terminal facilities for the Rock Island Road, except as appurtenant to
the use by it of the Rio Grande road; (3) That the exception of the
shops at Burnham not only included the buildings actually used for
mechanical purposes, but also two tracts purchased for the use of the
shops, and intended to be devoted to such purposes; (4) That there
was no error in the decree of the court below as to the employment of
separate switching crews; (5) That the cleaning of the cars could be
done by the Rock Island Company, but the Rio Grande Company was
bound to furnish track facilities for it; (6) That it was not necessary
to decide questions raised as to the discharge of employés engaged in
the operation of that part of the road jointly occupied and used under
the contract. Chicago, Rock Island fi Pacific Railway v. Denver do Rio
See COMMON CARRIER;
ConstitUTIONAL LAW, A, 2, 6, 7;
Public LAND, 3.
1. During the civil war two citizens of the United States, residing in loyal
States, could make a valid contract for the sale or mortgage of cotton
growing on a plantation within one of the insurgent States, and such
a contract would pass existing cotton on the plantation, and also crops
to be subsequently raised thereon. Briggs v. United States, 316.
2. The contract in this case for the sale of cotton growing and to be grown
did not come within the statute of frauds, and the only question to
be decided is whether it was a contract of sale or a contract of mort-
3. The captured and abandoned property act was a surrender by the
United States of its rights as a belligerent to appropriate property of
a particular kind taken in the enemy's country, and belonging to a
loyal citizen. 16.
1. When grants of land border on running water, and the banks are
Council Bluffs does not come within the law of accretion, but within
that of avulsion. Ib.
See NATIONAL BOARD OF HEALTH.
In Kentucky the common law rule prevails that a sale of personal property
is complete, and title passes as between vendor and vendee, when the
terms of transfer are agreed upon, without actual delivery. Briggs v.
United States, 346.
See EVIDENCE, 4.
See CONSTITUTIONAL LAW, A, 14, 15.
B. CONSTRUCTION OF STATUTES.
1. United States v. Tynen, 11 Wall. 8, quoted and applied to the points :
(1) that when there are two acts on the same subject effect is to be
given to both, if possible; (2) that when two acts on the same subject
are repugnant, the later operates to repeal the earlier to the extent of
the repugnancy; and (3) that a later act, covering the whole subject,
of an earlier one, and embracing new provisions, showing that it was
intended as a substitute for the earlier act, operates as a repeal of that
act. District of Columbia v. Hullon, 18.
2. When a later act operates as a repeal of an earlier act of Congress, a
subsequent recognition of it by Congress as a subsisting act will not
operate to prevent the repeal. 1b.
3. Courts should be careful not to declare legislative acts unconstitutional
upon agreed and general statements, and without the fullest disclosure
of all material facts. Chicago & Grand Trunk Railway Co. v. Well-
4. Unless it be impossible to avoid it, a general revenue statute should
never be declared inoperative in all its parts because a particular part,
relating to a distinct subject, may be invalid. . Field v. Clark, 619.
C. STATUTES OF THE UNITED STATES.
See ALIEN IMMIGRANT;
MIXERAL LAND, 1;
Constitu TIONAL LAW, A, 1, 3, 17, 18; NATIONAL Board OF HEALTII;
CRIMINAL LAW, 1;
DISTRICT OF COLUMBIA, 1, 2; PATENT FOR INVExtiox, 5;
Prohibition, WRIT OF, 2;
JURISDICTION, B, 6; D, 1, 3, 4; Public LAND, 1;
D. STATUTES OF THE STATES AND TERRITORIES.
See CRIMINAL LAW, A, 4;
JURISDICTION, C, 2.
Kentucky. See Tax AND TAXATIOX.
Louisiana. See CONSTITUTIONAL LAW, A, 2.
Michigan. See ConstituTIONAL LAW, A, 6.
New York. See CoxstitutIONAL LAW, A, 4, 10, 11.
Wisconsin. See Local LAW.
STATUTE OF FRAUDS.
See ReBELLION, 2.
TAX AND TAXATION.
1. The immunity from taxation conferred upon the Louisville Water Com-
pany by the legislature of Kentucky by the act of April 22, 1882, 1
Sess. Acts, 1882, 915, was withdrawn by the general revenue act of
May 17, 1886, Gen. Stats. 1888, c. 92. Louisville Water Co. v. Clark, 1.
2. The immunity from taxation granted to the company by the said act of
1882 was accompanied by the condition expressed in the act of Febru-
áry 14, 1856, 2 Rev. Stats. Ky. 121, and made part of every subsequent
statute, when not otherwise expressly declared, that by amendment or
repeal of the former act such immunity could be withdrawn. Ib.
3. The withdrawal of the exemption from taxation conferred upon the
company by the act of 1882 put an end to the obligation imposed upon
the company by that act, to furnish water free of charge to the city for
the extinguishment of fires, cleansing of streets, etc. 16.
4. The acquisition by the sinking fund of the city of the stock of the
water company, whether before or after the passage of the act of 1882,
was subject to the reserved power of the legislature, at its will to
withdraw the exemption from taxation, by amending or repealing that
See ConstitutIONAL LAW, A, 2.
1. A purchase by a trustee of trust property, for his own benefit, is not
absolutely void, but voidable; and it may be confirmed by the parties
interested, either directly, or by long acquiescence, or by the absence
of an election to avoid the conveyance within a reasonable time after
the facts come to the knowledge of the cestui que trust. Hammond v.
2. Two partners owned real estate in common, some of which was used in
the partnership business. One died making the other by his will a
trustee for the testator's children, with power of sale of all the real
estate, and directing that the business be carried on. After carrying
on the business for some time the trustee sold the real estate, by auc-
tion, and bought portions of it in through a third person, and ac-