of social life, and this provision of the constitution, and the acts passed to carry it into effect, were intended to give protection to that class of persons who were totally dependent upon their manual labor for subsistence. The law was designed exclusively for mechanics and laborers." If such be the effect of the act of 1870, there is strong reason to hold that a mere contractor for the construction of a railroad, or of railroad bridges, is not entitled to the lien given by it. But, without accepting as conclusive an opinion delivered after the rights of the parties had become fixed, (Burgess v. Seligman, 107 U. S. 33; S. C. 2 SUP. CT. REP. 10,) we rest our interpretation of the statute upon the ground that it has no reference to work done or materials furnished in the construction of railroads. The words of the act are scarcely adequate to express a purpose to give a lien upon a public improvement of that character. The words "building," "lot," "farm," and "any kind of property not herein enumerated," are too limited in their scope to justify the conclusion that the legislature had any intention, by that act, to give a lien upon railroad property. This view is strengthened by the circumstance that, by the subsequent act providing for the organization of railroad companies and regulating, their affairs, no saving is made of liens in behalf of mechanics and laborers, and express power is given to such corporations to borrow, from time to time, any sums necessary for completing and furnishing or operating their railroads upon bonds secured by mortgage upon their corporate property and franchises.. Indeed, the idea of a lien in favor of laborers actually performing work in the construction of a railroad seems to have been intentionally excluded; for, when the railroad contractor fails to pay such laborers, the company, upon notice, may become bound to do so; but no lien is given therefor upon the property of the corporation.

Apart, however, from these considerations, we are of opinion that a law giving to mechanics and laborers a lien on buildings, including the lot or ground upon which they stand, or a lien upon a lot or farm, or other property, for work done thereon, or for materials furnished in the construction or repair of buildings, should not be interpreted as giving a lien upon the roadway, bridges, or other property of a railroad company that may be essential in the operation and maintenance of its road. In North Carolina, as in most, if not in all the states, railroads, although constructed for the private emolument of those engaged in such enterprises, are highways which have been established, under the authority of law, primarily for the convenience and benefit of the public. The general statute of February 8, 1872, authorized the formation of corporations to construct, maintain, and operate railroads "for public use in the conveyance of persons and property, or for the purpose of maintaining and operating any unincorporated railroad already constructed for the like public use." Battle's Revisal, c. 99, § 1. The pecuniary profit derived by those who project and operate them is the reward which they receive for maintaining a public highway. Municipal taxation to aid in their construction has been maintained only upon the ground that they are, in a large sense, instrumentalities or agencies for the purpose of accomplishing public ends. Upon that ground rests the authority of the state to invest them with the right of eminent domain in the condemnation of private property, and to prescribe, from time to time, in the interest of the public, reasonable regulations for their control and management. Taylor v. Ypsilanti, 105 U. S. 68, 69. Such being the relations*existing in North Carolina between these corporations and the public, it should not be presumed that the legislature intended to subject them to the operation of ordinary lien laws, enacted for the benefit of those performing labor and furnishing materials in the construction, repair, or improvement of what the statute of 1870 designates as buildings, or who perform labor upon lots, farms, and other property belonging to private persons, and having no connection with public objects. A different construction of the statute would enable parties having

liens for amounts within the jurisdiction of justices of the peace to destroy a public highway, and defeat the important objects which the state intended to subserve by its construction. No such intention should be imputed to the legislature, unless the words of the statute clearly require it to be done.

There is nothing, it may be observed in this connection, in Brooks v. Railway Co. 101 U. S. 443, in conflict with the views here expressed. The decision in that case rests upon the construction given to the mechanics' lien law of Iowa by the supreme court of that state. Besides, the Iowa statute, in terms, included, among those entitled to the lien it gave, "contractors, subcontractors, material furnishers, mechanics, and laborers engaged in the construction of any railroad or other work of internal improvement." Rev. St. Iowa, 1860, § 1846. The legislative will was there expressed so clearly as to leave no room for interpretation of the statute.

It is, however, contended that the proviso of the third section of the act of March 1, 1873, is sufficient to sustain the lien asserted by such of the appellants as were contractors and mechanics. That act, as we have seen, regulates sales under deeds of trust or mortgages "executed by any company on all its works and property," and provides for the purchaser becoming a corporation, with all the franchises, rights, and conveyances of, and subject to the duties imposed upon, the original corporation. In connection with a general provision for the disposition of the assets of corporations which shall expire or be dissolved, or whos¬ corporate rights and privileges shall cease, it is declared "that all debts and contracts of any corporation, prior to or at the time of the execution of any*mortgage or deed of trust by such corporation, shall have a first lien upon the property, rights, and franchises of said corporation, and shall be paid off or secured before such mortgage or deed of trust shall be registered.

It must be admitted that the broad language of this act gives some support to the proposition that it was intended to apply to all corporations, including those formed for the construction and operation of railroads. But there are reasons of great weight that have brought us to the conclusion that such is not its proper interpretation. The language of the proviso in question is fully satisfied by restricting its operation to merely private corporations, which may be formed by three or more persons. And to this may be added the important consideration, that any other interpretation might defeat the express power given to railroad corporations to raise money for completing and finishing, or operating their roads, upon bonds to be secured by mortgage upon their property and franchises; for such bonds, in the very nature of things, could not be readily, if at all, disposed of, if the lien given by the railroad mortgage is subordinate to a lien for "all debts and contracts," of whatever nature, "existing prior to and at the time of the execution" of such mortgage. Did the legislature intend that the power of a railroad corporation to mortgage all of its property and franchises for money with which to complete or operate a road for public use should be exercised, subject to the condition that every creditor it had at the time of the mortgage, no matter how his debt originated, nor whether there was an agreement for a lien, should have a first lien upon the corporate property and franchises? If this construction should be adopted, it would follow that mechanics and laborers would acquire, as between them and the holders of mortgage bonds, a first lien for work done or materials furnished to the railroad company without filing a claim therefor, as required by the act of 1870; and this, although the legislature had in that act refrained from using language that necessarily gives them a lien upon railroad property and franchises. We are of opinion that the proviso of the third section of the act of 1873 has no application to deeds of trust or mortgage given by railroad corporations.

This view is strengthened by the history of the compilation of the statutes of North Carolina, known as "Battle's Revisal." At the same session of the

legislature at which the railroad act of 1872 and the private corporation act of the same year were passed, another statute was enacted providing for the publication of the public statutes under the supervision of William H. Battle, who was directed "to collate, digest, and compile all the public statute laws of the state," distributing them under such titles, divisions, and sections as he deemed most convenient and proper to render them "more plain and easy to be understood." Acts N. C. 1871-72, p. 373. His revision was reported to the legislature in 1873, and was formally approved, to take effect January 1, 1874. Upon looking into that revision we find that the act of 1872, relating to private corporations, and that of 1873, in reference to sales of property under deeds of trust, or mortgages executed by "any company on all its works and property," are consolidated in one chapter under the title of "Corporations," simply; the former constituting sections 1 to 44, inclusive, of that *itle, and the latter act constituting sections 45 to 49, inclusive; while the act of 1872, in reference to railroad corporations organized for public use, is placed under the separate title of "Railroad Companies." We have thus what may not unreasonably be regarded as a legislative indication of the original purpose of the act of 1873, viz., to make provisions for sales of property covered by deeds of trust or mortgages executed by merely private corporations, formed by three or more persons, leaving the rights of parties, in respect of like instruments executed by railroad companies organized for public purposes, subject to the terms of those instruments and the general principles of law. While Mr. Battle had no power, by any mode of revision, to change the words, or to modify the meaning of the statutes themselves, (Sikes v. Bladen Co., 72 N. C. 34; State v. Cunningham, Id. 469; State v. Taylor, 76 N. C. 64,) he had no authority to arrange them under their appropriate titles; and, when the legislature approved his placing the act of 1873 in direct connection with that of 1872, relating exclusively to private corporations, that fact is not without weight in determining the scope and effect of the original act of 1873. This circumstance would be entitled to very little weight, if the language of the last-named act necessarily embraced all corporations, public and private, and was not, as we have said, fully satisfied by restricting its operation to private corporations, as indicated by the revision in question.

In view of what has been said, the issue made by the county of Buncombe, as a stockholder of the company, in reference to Inman's conduct as trustee, need not be examined. Upon the facts disclosed, the county does not seem to be in any position to question the decree in favor of the appellees. There is no error in the record, and the decree is affirmed.

(113 U. S. 550)

FUSSELL V. GREGG and others.
(February 2, 1885.)

1. TITLE TO LAND-BILL IN EQUITY-RELIEF.

To give a court of equity jurisdiction of a cause, the nature of the relief asked must be equitable, even when the suit is based on an equitable title.

2. SAME EQUITY-UNITED STATES COURT-ASSUMPTION OF CONTROL OVER SURVEYOR. A court of the United States sitting in equity cannot control a person in the discharge of his duties as principal surveyor, or take charge of the records of his office, or declare their effect to be other than what appears upon their face.

3. SAME-VIRGINIA MILITARY DISTRICT IN THE STATE OF OHIO-GRANT-CONDITIONS ATTACHED BY LAW.

A warrant for 200 acres of land in "the Virginia military district, in the state of Ohio," having, in the year 1822, been granted to an individual by the state of Virginia, by reason of the failure of the grantee and his legal representatives to make return of the survey to the general land-office within the time prescribed by the several acts of congress on that subject, the entry and the survey became vacated,

'S. C. 8 Fed. Rep. 384.

*553

*551

annulled, and void, and the lands covered thereby became released from such entry and survey.

4. SAME-VIRGINIA MILITARY DISTRICT-ACT OF MAY 27, 1880-CONSTRUCTION.

The object of the first and second sections of the act of May 27, 1880, was not to confer new rights, but to preserve rights already vested from impairment by any construction which might be placed on the act of February 18, 1871, by which the unsurveyed and unsold lands of the Virginia military district were ceded to the state of Ohio.

5. SAME POSSESSION-RIGHT OF OCCUPANT IN DEFAULT OF TITLE SHOWN BY OTHERS. A party, being in possession, is not to be forced to deliver it to any one but him who shows superior title.

Appeal from the Circuit Court of the United States for the Northern District of Ohio.

WOODS, J. This was a bill in equity, filed November 20, 1879, to establish the title of the plaintiff to, and recover the possession of, a certain tract of land in the county of Logan, in the state of Ohio, and for an account of rents and profits. Filling the many blanks left in the bill by resort to the evidence, the case made thereby was substantially as follows:

On July 19, 1822, warrant No. 6,508 for 200 acres of land was granted by the state of Virginia to the grandfather of the plaintiff, Archibald Gordon, late of Cecil county, Maryland, in consideration of his services as a private in the Virginia line on the continental establishment in the war of the revolution. On January 21, 1823, he caused his warrant to be located by entry No. 12,017 in the Virginia military district in the state of Ohio, and the entry to be duly recorded. On March 25, 1823, he caused the entry to be surveyed by Thomas J. McArthur, a deputy surveyor of said military district, and on November 5, 1824, he had the survey recorded in the office of the principal surveyor of the district. Archibald Gordon died intestate about the year 1829, leaving Archibald Gordon, Jr., late of Baltimore, Maryland, his only child and heir at law. Archibald Gordon, Jr., died intestate about the year 1833 or 1834, leaving the plaintiff and her sister, Sarah Priscilla Gordon, his only children and heirs at law. The plaintiff, on October 31, 1854, intermarried with Joseph B. Fussell, who died December 6, 1864, and the plaintiff's sister, Sarah Priscilla, having intermarried with one William H. Kelly, died intestate on May 12, 1853, leaving issue one daughter, her only child, Mary Elizabeth Kelly. William H. Kelly died at a date not mentioned, leaving his daughter, Mary Elizabeth, surviving him, who died at the age of nine years six months and three days without issue, leaving the plaintiff her sole heir at law. The plaintiff claimed that by direct inheritance from her father, Archibald Gordon, Jr., and collateral inheritance from her niece, Mary Elizabeth Kelly, she was seized of an equitable estate in fee in the lands covered by survey 12,017, and entitled to the immediate possession thereof.

It was further alleged that on October 4, 1851, Daniel Gregg, one of the defendants, made an entry on the records of the principal surveyor of the district, No. 16,070, of 130 acres on military warrant No. 442, and on December 20, 1851, he procured 100 acres of his entry to be so surveyed as to cover 100 acres of land appropriated by the entry and survey of Archibald Gordon, No. 12,017, and on November 2, 1855, he caused the survey to be recorded, and on November 20, 1855, obtained a patent of that date for the lands described in this survey. The bill further averred that the entry, survey, and patent of Gregg were all made and obtained in violation of the proviso of section 2 of the act of March 1, 1823, entitled" An act extending the time for locating Virginia military land-warrants, and returning surveys thereon to the general land-office," (3 St. 772,) and were therefore null and void, and never appropriated any land or vested any title in Gregg as against the plaintiff, or those under whom she claimed.

It was further alleged that the defendant Eleazur P. Kendrick, being the

principal surveyor of the Virginia military district, and in possession of the records of that office, did, subsequently to the entry and survey of Gregg, without the knowledge or consent of plaintiff, or of any person under whom she claimed title, write in the margin of the record of Archibald Gordon's entry the word "withdrawn," and in and across the plat and record of the survey thereof the words "state line," and that Kendrick refused to give the plaintiff a duplicate of said survey to enable her to obtain a patent for the land described therein.

Daniel Gregg, Eleazur P. Kendrick, William Swissgood, Emily Swissgood, Francis Higgins, John W. Higgins, Angeline Higgins, Matilda Higgins, James Eaton, W. G. Smithson, and Andrew Murdock were made defendants to the bill of complaint; the bill alleging that the defendants, except Gregg and Kendrick, wrongly kept the plaintiff out of possession of the premises sued for, claiming title under Gregg. The prayer of the bill was that the validity of the entry and survey of Gordon might be affirmed and established, and the entry, survey, and patent of Gregg declared void; that the words "withdrawn" and "state line" might be adjudged to have been written upon the record of the Gordon entry and survey without authority; that the plaintiff might be put in possession of the premises sued for, and have an account of rents and profits, and for general relief. Daniel Gregg, Francis Higgins, John W. Higgins, Angeline Higgins, and Matilda Higgins, by plea, and the other defendants, except Kendrick, by answer, denied the title of the plaintiff, and set up the limitation of 21 years prescribed by the statute of Ohio, in bar of the relief prayed by the bill. Kendrick made no defense. Upon final hearing upon the pleadings and evidence, the circuit court dismissed the bill,, and the plaintiff appealed.

"We think that the averments of the bill do not entitle the plaintiff to relief. Her case, as alleged, is that she has an equitable estate in fee in the premises in dispute, and that the defendants, except Gregg and Kendrick, are in possession without title; in other words, are naked trespassers. The theory of her bill seems to be that, because she has an equitable title only, and for that reason could not recover in an action at law, a court of equity has jurisdiction of her case. But this is plainly an error. Mr. Justice BRADLEY, in Young v. Porter, 3 Woods, 342. To give a court of equity jurisdiction, the nature of the relief asked must be equitable, even when the suit is based on an equitable title. The plaintiff does not allege that the defendants, who are in possession of the premises, have the legal title, or that they obtained possession under any person who had it. Nor does she state any facts which connect them with her equity. They being mere naked trespassers in possession, she prays that they may be turned out of, and she, who has only an equitable title, may be put in, possession. The relief prayed for is such as a court of law is competent to grant, if the plaintiff's title would justify it. But the plaintiff does not seek by her bill to better her title. If all the relief asked for were granted, she would still have an equitable title only. The case is, therefore, an ejectment bill brought on an equitable title. In these respects it is similar to the bill in the case of Galt v. Galloway, 4 Pet. 332. That was a bill in equity brought by the heirs of James Galt for general and special relief against Galloway, Baker, Patterson, and others, setting up title to 1,000 acres of land in the Virginia military district in Ohio, based upon an entry and survey in the name of James Galt. Baker and Patterson were in possession of 600 acres of the land, claiming title in the name of Galt. The court found that Baker and Patterson had no title to the lands held by them, and, upon this state of case, said: "These occupants can be considered in no other light by the court than intruders, and the remedy against them is at law and not in chancery. No decree could be made against them unless it be that they should deliver possession of the premises, and to obtain this the action of ejectment is the appropriate remedy."