ings. After the close of the testimony the court charged the jury that if they believed from the evidence that the company before named entered into the written contract with the Visschers, and under that contract was let into the possession by them of the route described in the deeds from McLemore and others, and failed to perform its part of the contract, and the Visschers did perform it so far as permitted by the corporation to do so, and the corporation failed to make the full payments due to the Visschers under the contract, the corporation, and all persons claiming under it, were estopped from setting up any title in the premises sued for adverse to the Visschers, and their possession under the contract was not adverse. The court also charged the jury that the property conveyed by the deed of the sheriff was the subject of levy and sale under execution, and that the objection made by the defendant that it was only an easement, and not the subject of a levy and sale under execution, was not well founded. To each of these charges the defendant excepted. There were exceptions to other instructions, and to refusals to charge in accordance with requests made by the defendant; but the questions which we regard as decisive of the case are raised by those already mentioned.

The right which the Opelika & Oxford Company obtained under the deeds from McLemore and others (and the right obtained by condemnation is set forth as of the same character) was described in the deeds as "the right of way over which to pass at all times, by themselves, directors, officers, agents, hirelings, and servants, in any manner they may think proper, and particularly for the purpose of running, erecting, and establishing thereon a railroad with requisite number of tracks;" and it was provided that, "to this end, the limit of said right of way shall extend in width fifty feet on each side of the slope stake of the right of way of the said railroad when completed,*and to extend in length through the whole tract of land owned and claimed" by the grantor, describing it, "and running in such direction through said tract of land" as the company, by its engineers, should think best suited for the purpose of locating and establishing its works. The grantor conveyed this to the company, and its successors and assigns. The deed also provided that, "connected with the said right of way, the said company shall have the right to cut down and remove all such trees, underwood, and growth, and timber, on each side of said road, as would, by falling on or striking the same, injure the rails or other parts of said road, together with all and singular the rights. members, and appurtenances to the said strip, tract, or parcel of land being, belonging, or in anywise appertaining, and more especially the right of way over the same.' The habendum was to have and to hold the same to the company, its successors, and assigns, to its "own proper use, benefit, and behoof forever, in fee-simple." Then followed the further provision that, should the contemplated railroad not be located and established on and along the strip, parcel, or tract of land described in the deed, the deed should be wholly null and void, and of no effect.

"

The right granted was merely a right of way for a railroad. It was granted to an existing corporation, which had a franchise. The grant to the "assigns" of the corporation cannot be construed as extending to any assigns except one who should be the assignee of its franchise to establish and run a railroad. Nor did the mention of rights, members, and appurtenances belonging and appertaining to the strip of land, or the use of the words "forever, in feesimple," enlarge what was otherwise the limited character of the grant. No fee in the land was conveyed, nor any estate which was capable of being sold on execution on a judgment at law, or separate from the franchise to make and own and run a railroad. The corporation could not have made a voluntary conveyance of the right of way, severed from its franchise. What it acquired was merely an easement in the land, to enable it to discharge its function of making and maintaining a public highway, the fee of the soil remain

ing in the grantor. By the terms of the charter of the Lafayette Branch Company, it was given the power to purchase, hold, lease, sell, and convey real, personal, and mixed property, so far as should be necessary for the purposes mentioned in the act; namely, to construct and operate the specific railroad authorized therein, with power to "lay and collect toll from all persons, property, merchandise, or other commodities transported thereon." By the terms of its charter, therefore, in connection with the terms of the deeds of the right of way, that right was indissolubly linked to the franchise, and to the purpose of the existence of the corporation, and to its public functions, so long as they should exist. It would violate not only the expressed intention of the grantors in the deeds, but the manifest purpose of the legislature of Alabama, to permit a private person to seize and appropriate the right of way, by the purchase of anything at a judicial sale, apart from the franchise on which the right of way was dependent. The sheriff's deed purported to convey, in words, "the said tract of land or railroad bed, to-wit, the right of the Opelika & Oxford Railroad, so far as the right of way has been obtained, from Lafayette to the edge of Lee county, and all the appurtenances belonging to said road from Lafayette to the line of Lee county." If the deed undertook to convey any land or soil or road-bed, it conveyed with it the right of way. The deed, in reciting the levy, states that it was made "on the following tract or lot of land, as the property of the said railroad company, to-wit, the right of way," etc., and states that that was what was sold. It was not lawful for the purchasers to have a deed of the right of way, and if they obtained a deed of anything, the right of way was included, or else they received nothing beyond, perhaps, a right to carry away from the land what the company had put upon it.

The bill of exceptions states that a like right of way through the lands of the proprietors of the soil was obtained by deed, in Lee county, from a point about two miles north of Opelika to the south line of Chambers county; and that, under executions issued to Lee county on the same judgments, there were levies made on the right of way of the company so far as the same had been obtained by it up the line of Chambers county, and a sale by the sheriff of Lee county of what was so levied on, to the same persons who bought at the sale in Chambers county. But at the sale in Lee county a different purchaser might have bought the right of way, and there would then have been a division of the ownership of the line of the road, created as a unit and intended to remain such, resulting in a different control, with no franchise to collect toll. No such thing could be done.

The policy of the state of Alabama on this subject is indicated by the provisions of her constitutions of 1865, (article 1, § 25,) of 1867, (article 1, § 25,) and of 1875, (article 1, § 24,) "that private property shall not be taken or applied for public use unless just compensation be made therefor; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner: provided, however, that laws may be made securing to persons or corporations the right of way over the lands of other persons or corporations;" "but just compensation shall, in such cases, be first made to the owner." In Alabama & F. R. Co. v. Burkett, 42 Ala. 83, it was held that, under this provision, a railroad company acquired no absolute title to land in fee-simple, but only a right to use for its purposes. Nor is a right of way such as may be thus secured, or such as was granted by deed in the present case, within the meaning of the provision of the Code of Alabama that executions may be levied on real property in which the defendant "has a vested legal interest, in possession, reversion, or remainder, whether he has the entire estate, or is entitled to it in common with others." Code 1852, § 2455; Code 1867, § 2871; Code 1876, §

198.

*853

We are not referred to any decision of the supreme court of Alabama made before the rights involved in this suit arose, or before this suit was brought, determining the questions here involved. Two unreported cases are cited by the defendants in error: Tennessee & C. R. Co. v. East Alabama Ry. Co., decided at December term, 1883; and Hooper v. Columbus & W. Ry. Co., decided at December term, 1884. To these cases, if they were in point, the doctrine always held by this court, and so emphatically repeated in Burgess v. Seligman, 107 U. S. 20, S. C. 2 SUP. CT. REP. 10, would be applicable; namely, that the courts of the United States, in the administration of state laws in cases between citizens of different states, "have an independent jurisdiction co-ordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws;" and that when contracts and transactions have been entered into, and rights have accrued thereon, in the absence of any authoritative decision by the state courts, the courts of the United States "properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued."

But the cases cited are not in point. In the first one a railroad corporation, having a franchise, and claiming the legal title and ownership of rights of way, and of a line of railroad, which was being operated by the defendant, another railroad corporation, brought ejectment to recover the property. The defendant corporation had a junior franchise, and claimed to have purchased the entire property sued for, under a title emanating from the plaintiff. It was held that the plaintiff could recover. In the second case an individual having the legal title to a strip of land through which a railroad company had been permitted by him to construct its road, was held to be entitled to recover the land in ejectment from the company, which had failed to pay him for the right of way.

This court decided, in Gue v. Tide-water Canal Co. 24 How. 257, that a corporate franchise to take tolls on a canal could not be seized and sold under a fieri facias, unless authorized by a statute of the state which granted the act of incorporation; and that neither the lands nor the works essential to the enjoyment of the franchise could be separated from it and sold under such a writ, so as to destroy or impair the value of the franchise. This decision was put on the ground that the franchise or right to take toll on boats going through the canal, would not pass to the purchaser under the execution on a judgment at law against the corporation because it was an incorporeal hereditament, and, upon the settled principles of the common law, could not be seized on a fieri facias; and was made in a case where the corporation owned in fee the real estate, toll-houses, canal-locks, and wharf seized, all of which were necessary for the uses and working of the canal. But in the view we have taken, as before stated, of the facts of this case, it is not necessary to discuss the general question as to the right to levy an execution at law on property owned by a railroad company in fee.

It is contended for the plaintiffs that the defendant is estopped from denying that they were seized in fee of the property sued for, on the ground that Richards, after the sheriff's sale, abandoned or turned over to the Visschers the line of culverting and grading, as far as he could do so, that is, he exercised no further authority over it, and the Opelika & Oxford Company made no further claim to it; that the Visschers then made the written contract with the new railroad company to construct the superstructure of the road, except as to the iron materials, for the 20 miles from in or 2 miles north of Opelika to a point beyond Lafayette, for a specified compensation; and that the contract provided that on the completion of the 20 miles, and the payment of the amount agreed, Visscher should transfer to the company "all

right and title vested in him to all franchises, right of way, or other property belonging to or pertaining to the said road under the old organization known as the Opelika & Oxford R. R." The bill of exceptions states that the defendant offered evidence tending to show that the East Alabama & Cincinnati Railroad Company was in possession of the property sued for from the time the Visschers ceased their work on it, as well as of the remainder of its line of railroad, till assignees in bankruptcy took possession of it, from whom it passed to purchasers from them, and then a receiver in the foreclosure suit took possession of it, and held it till it was sold to the persons who conveyed it to the defendant. The Visschers appear not to have been in possession from the time they ceased work. They yielded possession, but not under any, provision in the contract. As to the new work done by the Visschers they became merely creditors, out of possession, with such rights as the law gave them, but certainly with no right to eject the company, or its successors or grantees. They were to construct 20 miles of road for $14,750 per mile. When all was done and paid for they were to transfer what right they had to the road under the Opelika and Oxford organization. But they yielded up possession of that with the new work. As to what they obtained by the sheriff's sale and deed, they acquired nothing thereby, formerly belonging to the Opelika & Oxford Company, under the name of right of way, granted to or acquired by that company, which was capable of being conveyed by them; and as to anything else, their right did not lie in ejectment. Whether they were vendors or creditors in respect to what they so agreed to transfer, it is not necessary or proper to determine in this suit. There was nothing in what occurred between the parties, or in the contract, or in the transactions under it, which estopped the defendant from disputing the right of the plaintiffs to recover in ejectment on the strength of their title.

It follows, from these views, that the circuit court erred in its first and third charges to the jury; and, as this conclusion goes to show that the plaintiffs had no title on which they could recover in ejectment, it becomes unnecessary to consider any of the other questions raised by the defendant. The judgment is reversed, and the case is remanded to the circuit court, with a direction to grant a new trial.

*266

(114 U. S. 265)

BOATMEN'S SAVINGS BANK v. STATE SAVINGS ASS'N OF ST. LOUIS.

(April 13, 1885.)

JURISDICTION OF Supreme Court-FEDERAL QUESTION-WRIT OF ERROR to STATE COURT Upon examination of the facts in the case, held by the court that no federal question was involved sufficient to give jurisdiction to the supreme court on writ of error from a state court.

In Error to the St. Louis Court of Appeals of the State of Missouri.

J. W. Noble, J. C. Orrick, and W. Hallett Phillips, for plaintiff in error. John M. Glover, George H. Shields, and Jeff. Chandler, for defendant in error.

WAITE, C. J. This suit was brought by the State Savings Association of St. Louis against the Boatmen's Savings Bank to recover the amount of two checks drawn on the bank by the firm of Cobb, Dolhonde & Co., dated respectively September 5, 1874, and October 23, 1874, and presented for payment November 5, 1874. When the checks were presented there was a balance on deposit in the bank to the credit of the firm more than enough to take them up; but the firm had failed between the dates of the checks and the time of their presentation, and had notified the bank to that effect. The bank on that account refused payment. At the time of the presentation of the checks, and also at the time of the failure of the firm, the bank held a draft, not then due, drawn by one Bradley on and accepted by the firm for $3,174, dated October 3, 1874, and payable in 40 days from date. On the same day that the checks were presented and refused, it was arranged between the bank and the savings association that if the bank succeeded in collecting this draft from the drawer, it would pay the checks. The draft was never collected, and the checks still remain unpaid. Cobb, Dolhonde & Co. did not resume payment after their failure, and on the twenty-third of March, 1875, they were duly adjudicated bankrupts on a petition filed January 8, 1875. The bank indorsed on the Bradley draft the amount standing to the credit of the firm at the time of the failure, and proved its claim in the bankruptcy proceeding for the balance remaining due after this indorsement was made. Upon this balance dividends were paid by the assignee in bankruptcy. The savings association also proved its claim in bankruptcy, and received dividends thereon. The total amount of its claim was much more than the amount of the checks.

The ground on which the savings association sought to recover in the suit was that the presentation of the checks to the bank for payment, while there was a balance of deposits to the credit of the firm exceeding the amount drawn for, charged the bank with a liability to pay the checks to the association as the holder thereof. The defenses set up by the bank in its answer were (1) that the failure of the firm, and notice thereof to the bank, was equivalent to instructions from the firm not to pay any checks that might thereafter be presented; (2) that the savings association was not the assignee or indorsee of the checks; (3) that, in consideration of the agreement of the bank to pay the checks if the Bradley draft was collected, the savings association bound itself not to hold the bank liable if the collection was not made; and (4) that, relying on this agreement by the association, the bank credited the full amount of the balance of deposits in favor of the firm upon the Bradley draft, and proved up its demand against the estate of the bankrupts on account of the draft for no more than remained due after this credit was given, and that dividends were paid by the assignee only on the amount proven. Upon the trial, judgment was given in favor of the savings association for the full amount of the checks, and this judgment was affirmed by the St. Louis court of appeals, which is the highest court of the state in which a decision In the suit could be had.