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to terminate until six months later. It cut | 1880, which, in our opinion, changed the up the branch line in a way which it is termination of that grant. It is an entire impossible from this record to give any rea- mistake to say that at this time the right son for, and accordingly, under the then-ex- to operate the Garden street tracks termi- . isting circumstances, it might be argued that nated at the same time with the right of the words, "terminate with the grant for the company to operate the Euclid avenue the main line,” did not mean the Euclid ave-line, or that the Garden street branch was nue line, but it referred to the Garden street but an extension of that line. branch, which was, as a matter of fact, the On the 30th of March, 1891, the right main line so far as concerned the small ex- was granted to construct and operate a tension of the track from Lincoln avenue second or additional track upon Central to Woodland Hills avenue. To terminate avenue (Garden street) from the east line the grant for the extension at the same of Willson avenue to the Cleveland & Pittstime with the grant for the line thereby burg Railroad tracks. It was provided in extended would be the most obvious and that ordinance that the right therein grantnatural course to pursue. It is true the or- ed should be for and until the expiration of dinance itself recognizes the “branch and the grants for the said company's main its main line” as constituting two different line. Here again the question arises, What lines, and provides that the grant is to ter- was the meaning of the expression “main minate with the grant for the main line. line" as used in this connection? The orAnd yet the real meaning of the ordinance, dinance allowed a second or additional track when regarded in the light of the facts then in a street in which the company then had existing, becomes, to say the least, ambigu- the right to use, and was using, a single ous. The general provision for the termina- track. So far as that extended grant was tion of the grant for the whole Garden concerned, the main line was the rest of street branch, as made in 1880, ought not the Garden street branch, and the same to be expunged by an implication arising observations that we have made heretofore out of such doubtful language as is found in regard to the main line are operative in this 1885 ordinance. But if otherwise, it here. results only that the particular extension It cannot be possible that it was intended expired in September, 1904, with the grant to limit the right to use the second or adto the Euclid avenue line, which, at that ditional track, in the portion of the street period, expired on that date.
mentioned, to a different time than that In 1887, June 17, an extension of the Gar- which existed with relation to the first den street branch was granted, which, by track laid down by the company in the the terms of the ordinance, was to termi- same street. Of course, the two grants nate "with the grant for the Garden street were meant to terminate at the same time. main line," without increase of fare being At this time the grant to the company's charged. Here the council, it will be ob- Euclid avenue line had been extended so served, expressly referred to the Garden that it did not expire until July 13, 1913. street branch as the main line, and it is can it be supposed that the council inundoubtedly plain that it was properly so tended that this short length of road, in referred to. In extending the branch, and which a second or additional track was to with reference to the extension, the branch be laid, was to be operated with two tracks would naturally be regarded and spoken of until 1905 and after that with one track as the main line. If not done in all cases until 1913? We think such a construction it is somewhat difficult to find any reason is not permissible, and that what is for it.
meant by the language, “main line,” in Again, by an ordinance passed March 10, that ordinance, means the line which is the 1890, granting leave to change the motive main line with reference to the extension power on the Garden street branch, the therein granted; namely, the Garden street right was given to operate that branch by branch, and not the Euclid avenue line. electric power “during the term of its pres- The ordinance of the 20th of April, 1891, ent grant of said Garden street branch.” is somewhat important. It granted the The “present grant” for the Garden street East Cleveland Railroad Company permis. branch was that which was granted
was granted in sion to lay an additional or second track in March, 1880, which was to terminate in Quincy street, from New street to Woodland twenty-five years, or March 22, 1905. Here Hills avenue. That street at the point inwas a clear recognition of the time when dicated is part of the Garden street branch, that grant expired, and there had been no and, as compared with the rest of the Garordinance or resolution of the council, since den street branch, is a very small portion thereof, and the ordinance only grants the vice president, May 22, 1893, states disright to lay an additional track. The right tinctly that it "does not claim any rights granted was, by the terms of § 3, tó "be greater than the constituent companies valid until the expiration of the grants for forming the organization, and that it insaid company's tracks on said Quincy street, tends to obey all ordinances to which each east of Lincoln avenue, to wit, July 13, and all of the constituent companies were 1913."
subject." Its intention to issue transfer It is said that the council, in such ordi- checks, so as to have a continuous ride for nance, expressly authorizes the continua- one fare, gave no greater rights to the comtion of the operation of this Central avenue pany than it theretofore had, nor did the (Garden street) extension until July 13, resolution of the council, consenting to the 1913, the date of the expiration of the Eu consolidation on condition that but one fare clid avenue line of the company. But the should be charged for a continuous ride, language used in this ordinance as to the give any greater rights to the consolidated time of the expiration of the grant for the company than each of the constituent comcompany's tracks on Quincy street, east of panies had theretofore enjoyed. The conLincoln avenue, is a clear mistake of fact. solidation does not require, in order to comThe grant, it will be observed, is not in ply with the conditions specified in the resterms an extension to July 13, 1913. The olution consenting to the consolidation, that reference to that date is but the expression the consolidated companies should be perof an opinion that the date named is the mitted to operate until the expiration of true time of the termination of the Quincy the longest grant to any of the companies. street grants. It is not a grant extending At the expiration of the grant to the Garto that date, unless the previous grants are, den street branch the operation of that limited to that time. Now, on April 20, road might terminate, while the operation 1891, the grants on Quincy street, east of of the rest of the consolidated roads could Lincoln avenue, in fact terminated either go on perfectly well. To hold that, by virin 1904 or 1905, depending upon the con- tue of the consolidation, upon the conditions struction of the language of the original stated, there was an implied extension of grant in Quincy street, made in February, the grant to the Garden street branch of at 1885. That was a grant which was to ex- least eight years, is to violate the rules of pire with the termination of the grant for construction above referred to in regard to the main line. For the reasons already giv- grants of this nature. en we think that that language meant the It is also strongly urged by the complainGarden street branch, which was the main ant that the ordinance passed soon after line as to that extension, and that it, there the consolidation ordinance, viz., the ordifore, expired in 1905, March 22. There was
nance of July 17, 1893, not only imposed ad. no subsequent legislation which extended ditional burdens on the consolidated comthat grant beyond that time.
pany, but that the ordinance relates to a But if it be assumed that the grant for portion of the line originally constructed as the company's tracks on Quincy street, east part of the Garden street branch, and that of Lincoln avenue, was to terminate with it also required the operation of all the the grant for the Euclid avenue line as the Garden street cars
street cars over these tracks, so main line, it must be recollected that that that the council legislated as to the operagrant on Quincy street was made Februarytion of the tracks upon Garden street and 9, 1885, to the Garden street branch, and provided that such operation should conat that time the grant to the Euclid avenue tinue until July 13, 1913. It is true the line terminated in September, 1904. The ordinance provided that the grant therein grant of 1885 was not made to terminate made should be limited to the above date, with the grant for the main line, as that and there were certain conditions attached main line might thereafter be extended, but to the making of the grant, but it is quite it referred to that grant as it then existed, plain to us that the ordinance could not be and it was to be measured by such exist- read as thereby extending the time for ing grant, and not by any subsequent ex- the termination of the Garden street branch tension which might be granted to the Eu-without a most violent implication, based clid avenue line.
upon a very small foundation. This is made Nor do we think the time for the termi-clear when it is seen that
that the streets nation of the Garden street branch was in through which the ordinance provides for any degree affected by the consolidation of extending the double track railroad formed the various roads in 1893. The communica- no part of the line originally constructed tion from the railway company, through its as part of the Garden street branch. The latter road was permitted to use, for a left it to such vague and uncertain preshort distance, the tracks of the Euclid sumptions. avenue line from a point at the junction of The chief importance of the various orBrownell street (subsequently made Erie dinances and resolutions for the extension of street) with Prospect street, west to the the Garden street branch, coupled with the public square. But that portion of the user of the tracks of the Euclid avenue line track of the Euclid avenue line was never by the branch road from Erie street west part of the line originally constructed for to the public square, and providing for but the Garden street branch, nor did it be- one fare over the whole road, is to strengthcome such because subsequently the branchen, if possible, the contention of complainroad was permitted to use it for the pas- ant that such branch has always been treated sage of its cars to the public square. It is by the city and the company as a mere exquite clear, therefore, that the limitation tension of the Euclid avenue line, and to be of the time for the termination of the operated in connection with it, so that a grant provided for in the 6th section of the grant extending the time of the termination ordinance was not also an extension of the of the latter line included thereby the Gartime for the termination of the separate den street branch. We think the contention grant to the Garden street branch from 1905 is not justified by the facts. The whole to 1913.
history of the branch line shows differently. The same may be said of the ordinance of Even in the important matter of a change February 19, 1894, extending the tracks in of motive power, the Euclid avenue line Willson avenue. While the council con
was provided for in 1888 and 1889, while sented to the extension by the complainant there was a separate and distinct proviand the Cleveland City Railroad Company sion made for the Garden street branch in of the line of railway in Willson avenue, 1890, and a statement therein made that and also to the operation of that line in the permission was granted to the Garden connection with other lines of the consoli- street branch during the term of the presdated company, which included the Garden street branch, yet it cannot be held that ent grant to said branch.
A careful examination of the whole recthere arose from that ordinance, when accepted by the company, a contract which ord leads us to the opinion that there is should extend the time on all of the roads no error therein so far as the complainant's until the expiration of the grant contained appeal is concerned, and the decree upon its in that ordinance, July 1, 1914. By such appeal is affirmed. means an implied extension of time, affecting over 200 miles of track, as is stated,
Upon the appeal of the defendants, we would be accomplished by making these think little need be said. The defendants conditions in regard to the Willson avenue insist that, upon the termination of the grant a substitute for a grant, in plain grant to the Garden street branch, the rails, language, affecting the Garden street poles, and other appliances for operating branch. On the contrary, we think that the that road, and then remaining on the varieffect of that ordinance was simply to make ous streets, became the property of the it necessary for the Garden street branch city; or, at least, that the city had the and the other roads also, to comply with the right to take possession of the streets and conditions set forth in the ordinance until of the rails, tracks, etc., therein existing. the expiration of their respective and ex. We agree with the court below in the opinisting grants, but that ordinance did notion that the title to the property remains thereby extend the various other railroad in the railroad company which had been grants by implication. There is no such operating the road, and we are of opinion connection between the various roads as that the Forest City Railway Company had to make it necessary, in order to operate no rights in the streets, so far as to affect one, that all the others should be in opera- the right of the complainant to its property tion as a unit, and as comprehending one then existing in such streets. How that indivisible system. There is nothing in property may be disposed of is not now a this record which shows any difficulty what matter before this court. We only hold that ever in operating the Garden street branch the defendant company cannot avail itself as separate from the rest of the so-called of the provisions of the ordinance of Janusystem, or in operating that system sepa- ary 11, 1904, so far as taking possession rate from the branch. If the council had in- of the property of the complainant is contended to extend the time of the termina- cerned. tion of the various grants to these rail. The decree upon the defendants' appeal roads it surely would have said so, and not is also affirmed.
LOUIS KANN.coliem un kann, and Myer APPEAList from the Court of Appeals for
the District of Columbia to review & V.
decree which affirmed a decree of the Su. CAROLINE KING.
preme Court of the District adjudging a HENRY RANDALL WEBB, Executor, etc., from a forfeiture of the lease for his breach
tax sale to be void and relieving the tenant Appts.,
of his covenant to pay the taxes. Reversed CAROLINE KING.
with directions to dismiss the bill for want
of equity. 1.andlord and tenant-forfeiture of lease
See same case below, 25 App. D. C. 189 equitable relief.
The facts are stated in the opinion. 1. A court of equity cannot, in the exercise of its general power to relieve from
Mr. William G. Johnson for appellants in a forfeiture, endow a tenant with the right No. 16. to create, at the risk of the owner, a con
Messrs. R. Ross Perry, R. Ross Perry, Jr., test involving the validity of an irredeem and E. S. Theall for appellants in No. 17. able tax sale, for the purpose of giving such Messrs. J. J. Darlington and Leon Tobrintenant the right, if the tax title be held in
er for appellee. valid, to pay the taxes and thus be relieved of a forfeiture for his breach of his covenant to pay such taxes.
Mr. Justice White delivered the opinion of
the court: Landlord and tenant-forfeiture of leaseequitable relief-accident or mistake.
These appeals are from a decree of the 2. Equity will not relieve from the court of appeals of the District of Columbia, forfeiture of a lease for the breach by a which adjudged that a tax sale of certain tenant of his covenant to pay the taxes on real estate in the District was void, and any theory that his default was due to the which relieved the lessee of the premises misleading conduct of the landlord or to his own temporary oversight, where the testi- from a threatened forfeiture of the lease, mony conclusively demonstrates the ten asserted to have resulted from the failure ant's gross negligence.
of the tenant to pay the taxes to enforce Landlord and tenant-forfeiture of lease which the tax sale was made. The comequitable relief-accident or mistake. plainant in the original bill was Caroline
3. Relief from a forfeiture of a lease, King, the lessee of the premises, and the incurred by a tenant because of his breach defendants were Marianne A. B. Kennedy of his covenant to pay the taxes, cannot be
(the lessor) and Louis Kann, Sigmund given by a court of equity on the ground of accident or mistake, where the relief Kann, and Myer Cohen, whom it was alsought cannot be afforded without subject- leged claimed to be either the equitable or ing the lessor to the peril of contesting the legal owners of the tax title in question. validity of an outstanding prima facie ir- The defendant Kennedy died the day the redeemable tax title.
bill was filed, and Henry Randall Webb, as Landlord and tenant-forfeiture of lease her executor, and Maria G. Dewey, as her equitable relief-fraud.
4. The purchase of an irredeemable tax heir at law, were substituted as defendants. title with a view to securing a lease of the
The lessor prosecuted an appeal from an property is not such a fraud on the tenant order granting an injunction pendente lite, in possession as entitles him to relief in restraining him, among other things, from equity from a forfeiture of the lease for a
prosecuting landlord and tenant proceedings, breach of his covenant to pay the taxes. Landlord and tenant-forfeiture of lease the alleged forfeiture caused by the non
based upon a right of re-entry arising from equitable relief-fraud.
5. The act of the landlord in accepting payment of taxes and tax sale referred to as a new tenant the purchaser of an ir- in the bill. The court of appeals, on the redeemable tax title to the property is not face of the bill, sustained the order of insuch a fraud on the tenant in possession as junction. 21 D. C. App. 141. The cause, entitles hiin to relief in equity from a forfeiture of the lease for his breach of his having been put at issue by separate ancovenant to pay the taxes, -especially swers asserting the right of the lessor to where the landlord offered to condone the forfeit and the right of the holders of the forfeiture if the tenant would commence tạx title, was tried on the merits and was proceedings to have the outstanding tax decided in favor of the complainant. It was title declared invalid, and would secure the taken to the court of appeals on behalf of title should be sustained, which offer the all the defendants except Mrs. Dewey, and tenant declined.
the decree of the lower court, adjudging the
tax sale to be void and relieving from the [Nos. 16, 17.]
alleged forfeiture, was affirmed. 25 D. CE Argued March 8, 9, 1906. Decided January App. 182. 7, 1907.
The origin of the controversy and the
facts, as to which there is no dispute, are of King in 1897 it was the habit of Mrs. as follows:
Kennedy, when the tax on the Market space The property in controversy, No. 715 store was about to become payable, to reMarket space, in the city of Washington, quest the lessee to send her a check for the was owned by and assessed for taxation amount of the tax, and on the receipt therein the name of Maria T. Gillis at the time of the tax was paid either by Mrs. Kennedy of her death, intestate, in 1871. Marianne or her agent. This course was not, howA. B. Kennedy, as the heir at law of Mrs. ever, followed, after the death of King. Gillis, took possession of the property as The first instalment of taxes which fell owner, without any administration upon the due in November, 1897, soon after the estate of Mrs. Gillis. After the death of death of King, was directly discharged by Mrs. Gillis, continuously up to the making Mrs. King, who took and retained the reof the tax sale hereafter referred to, the ceipt. This was done at the request of property remained on the public records Mrs. Kennedy, who called at the Market and continued to be assessed in the name space store about Christmas, 1897, and of Mrs. Gillis, except that a small portion asked that the tax be paid. From that time of the rear end of the premises. was, at a no request was made by the lessor to the time not shown, but prior to the tax sale tenant, as the taxes fell due, to send her before referred to, assessed for taxation in the money to enable her to pay them, nor is the name of Mrs. Kennedy and her husband. it shown that any express demands were
In 1890, Mrs. Kennedy leased in writing made that the tenant pay the taxes dithe premises to Henry King, Jr., the hus- rectly. From the time of the payment, by band of complainant, for use, as a fancy the tenant, near the close of 1897, of the dry goods store, and by several extensions first instalment of taxes which fell due aftthe period of expiration of this lease came er the death of her husband, until the sumto be October 1, 1908. By the lease the
By the lease the mer of 1900, a period of more than two and lessee, his executors and administrators or a-half years, no taxes whatever were paid assigns, were bound, "during the continu- upon the leased premises. In the interval ance and until the end and determination of the following taxes became overdue: the said term for which the said premises Second instalment of tax for 1898, due in are demised, to pay or cause to be paid in May, 1898; each and every year thereof the taxes, gen- First instalment of tax for 1899, due in eral and special, of every character and de- November, 1898; scription, assessed against and levied upon Second instalment of tax for 1899, due in the said premises by the authorities of the May, 1899; general or local government.” The right to First instalment of tax for 1900, due in terminate the lease and to re-enter upon the November, 1899; and, breach of any of the conditions was stipu- Second instalment of tax for 1900, due in lated. When the lease was made, King, the May, 1900. lessee, was engaged in the dry goods busi- On July 24, 1900, the two instalments of ness in a store on Seventh street, not far the tax for 1900, due in November, 1899, from the Market space store. Under the and May, 1900, with accrued penalties, were lease he entered into possession of the paid by the tenant under the following cirMarket space store and carried on, in addi- cumstances: As testified by Harry King, he tion, business there until his death on Au- being concerned over past-due taxes owing gust 18, 1897. Sanctioned by an order of on a large number of tracts of real estate the probate court, an assignment of the owned by the estate of his father, it "oclease covering the store on Market space curred” to him to have the "bookkeeper go was made to Caroline King, the widow. down to the tax office and inquire for the The business was thereafter conducted for tax bills of 715 Market space.” The booka time solely in her name. She did not, keeper went and subsequently reported that however, actively supervise it. Her elder the two instalments for 1900 were due, and son, Harry King, who had been, during | Harry King paid them. The nature of the the latter years of his father's life, in gen- | inquiry made by the bookkeeper at the tax eral charge of the business for his father, office, and what occurred, is the subject of remained in that capacity, after the death controversy, and we pretermit its considerof the father, as the representative of his ation. Nearly a year after, in May, 1901, mother, assisted at the Market space store, the two instalments of taxes for 1899, due in a subordinate capacity, by a brother, in November, 1898, and May, 1899, with Joseph King, who, during the father's life, interest and penalties, along with the taxes had also, in a subordinate capacity, been for 1901, were paid by the tenant. The engaged in business at that place. From the payment of the 1899 taxes was by way of making of the lease in 1890 to the death | redemption of a sale of the property for