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is also well versed in the law of real property UNITED STATES COURTS REPORTS, VOL. 1. which is manifest from the aptness and volume Reports of Cases Argued and Determined in the Circuit of his citations. The Summary of Contents

and District Courts of the United States for the Sixth shows :

Judicial Circuit. By WILLIAN SEARCY FLIPPIN of the

Memphis Tenn. Bar. 1881. Callaghan & Company, TITLE I. PURCHASE DEEDS. Subheads.-Gen

Chicago. Ill. Pp. XII, 691. eral Requisites of Deeds; Formal Parts; Execution of

While this book is not strictly a late work we Deeds ; and their Acknowledgment and Registration.

have but recently had opportunity to examine TITLE II. LEASES. Subheads- Leases in Gen

it. The cases reported are valuable so far as they eral; The formal parts of a Lease ; The Execution,

go and the mechanical execution of the work is Assignment and Determination of Leases.

excellent. A few errors however have found TITLE III. MORTGAGES: Subheads.- The Na

their way into ihe information volunteered by ture and History of Mortgages ; Form and Requi- Mr. Flippin, in his list of judges of the courts he sites of Mortgage; Assignments, and of Purchasers of claims to represent as “Reporter," an office the Equity of Redemption ; Redemption, Payment and

existence and duties of which are not generally Discharge; Foreclosure.

understood. In the Ohio list Mr. Flippin beTitle IV. Wills. Subheads.—The General

stows the ermine of the U. S. District Court upon Requisites of a Valid Devise ; Revocation and Re

Benj. Tappan, who he says was commissioned in publication of Wills; The Probate of Wills and their

1833. Registration; The Construction of Wills. To each

Benj. Tappan was never a U. 8. District Court subhead an entire chapter is devoted.

judge. He was a U. 8. Senator and a common It will be seen that the work is comprehen. I pleas judge, but is entitled to no place in Mr. sive, and so far as our examination has gone, it Flippin's list. The “Reporter” has omitted the is as thorough as comprehensive. The mechan

noblest Roman of them all. Judge Humphrey ical execution does credit to the C. L. J. office; H. Leavitt of Steubenville, O., one of the and taken altogether the book should and no

most eminent and distinguished of an doubt will find great favor and a large sale.

ceptionally strong cotemporaneous Berich.

Judge Leavitt was appointed in 1833 by General AMERICAN DECISIONS, VOL. XXXII. Jackson, and served until 1871, when he retired. Another step in the accomplishment of a great His retirement was the occasion of a banquet work has been achieved in the issuance of this

tendered him by the Cincinnati Bar, which was volume. The standard case law of the country

one of the notable events of that year. The book has been brought up to 1839, twenty-two vol

likewise contains a finely written memorial umes of the Reports having been drawn upon

sketch of the late Judge Trigg of Tennessee. and condensed into one.

We find important and valuable treatises and SAWYER'S U. S. COURT REPORTS, VOL. VI. compilation of the following subjects:

By L. 8. B. SAWYER, ESQ. 1882. San Francisco. A. L. The Territorial Limit of the Jurisdiction of Bancroft & Co., Publishers. Courts of Admiralty, page 54-68.

We acknowledge the receipt of this volume in Servitude to Receive Flow of Water, 120-157. which many cases of value and importance are

Enforcement of Contracts because of Part Per- reported from the U. 8. District and Circuit formance, has no existence at Law, 128-131. Courts of the Ninth District, as decided during

When judgment against Executor or Admin 1879 and 1880. Messrs. Bancroft & Co. sustain istrator concludes the Sureties, 197-204.

their usual high reputation as first class artiste Conditions in Devise of Land, 241-243.

in book making.
Adultery, 284–290.
Covenants for Title, 350_356.
Injunction to prevent Nuisance, 412-417.

Power of Common Carrier to Limit his Liability, 455–507. (These principal cases-two-and notes are alone worth the price of the volume.)

The Entirety of Judgments, 603-907.

The volume is a credit to the editor, Mr. Freeman, and the publishers, Messrs. A. L. Bancroft & Co., San Francisco, Cal.

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APPROPRIATION BY RAILWAY COM- Then he sets forth what property he has there,

etc., and avers that the corporation is insolvent,

that its property is encumbered to an extent BUPREME COURT OF OHIO.

greater than its value, and that if the company

or its agents are not restrained they will commit JOHN WAGNER

irreparable injury upon the premises, and that

he has no adequate remedy at law. He' thereTAE New YORK, CHICAGO AND St. Louis Rail fore asks that on the final ħearing of this action WAY COMPANY

the defendant, its contractors and agents, may

be enjoined from taking possession of said premMarch 28, 1882.

ises, and constructing or operating its railroad 1. In proceedings by a corporation to appropriate pri

thereon, and that they be in the meantime revate property, there must be a judgment confirming the

strained therefrom. verdíct of the jury, before the corporation is entitled, by There is an amendment to the petition which a deposit of the amount of such verdict, to possession of is filed by consent, but which does not vary what the property appropriated. 2." It is within the appellate jurisdiction of the su

was stated before by the plaintiff, though going preme court to allow a temporary injunction where it into detail somewhat more specifically than in appears that defendant is doing or threatens to do acts the petition as first drawn. respecting the subject of an action pending, tending to render the judgment ineffectual. (Yeoman v. Lasley, 36

The common pleas refused to grant the injuncOhio St. 418 followed and approved.).

tion. The case was appealed to the district 3. So where the relief songht in the court below was court where a like judgment was rendered and an injunction which was refused, and on error to this court the judgment is reversed for such refusal, this

the petition was dismissed. court may, in the exercise of its appellate jurisdiction, Error is prosecuted in this court, to. reverse proceed to render the judgmont which the court below that judgment. should have rendered.

A motion is now made for a temporary injuncError to the District Court of Cuyahogation to restrain the defendant from constructing County.

its road over the land during the pendency of This was an action in the common pleas, to this proceeding. enjoin defendant, a railroad corporation, from taking possession of land belonging to plaintiff

JOHNSON, J. and constructing a railroad thereon, without The question is, whether the verdict of a jury, having first acquired the right thereto by appro- in proceedings to appropriate property, without priation or otherwise.

being confirmed by the judgment of the court, is The facts are, that the corporation defendant such an appropriation of the property, where the filed its petition against Wagner the present amount of such verdict has been deposited in plaintiff, on the 30th of August, 1881, for the the court, as entitles the corporation to take pospurpose of appropriating the land described in session of the same for its purposes. that petition; that on the 26th of November, In this case, after the verdict, the corporation 1881, the jury in the case rendered a verdict as- filed a motion for a new trial, after this it paid sessing the plaintiff's damages for his lands at into court the amount of the verdict, later still, $27,100; that on the 28th day of November, the the motion for a new trial was heard and the company

filed its motion for a new trial; that verdict was set aside, and a new trial ordered. on the 12th of December the company paid into In this state of case, the plaintiff insists that the the probate court the sum of $27,100 the amount land has not been appropriated, as required by awarded by the jury; that on the 17th of Dece the Constitution, and therefore defendant should ber, five days after having paid the amount inte be enjoined from entering on his land and decourt, and while the plaintiff was still in pos- stroying its value to him, by constructing its session of his lands, defendant entered thereon railroad. and made one large excavation therein to erect On the other hand, the defendant claims, that a pier for the support of its railroad; that on the upon the rendition of the verdict, without any 19th of December, two days after that, the plaint- judgment of the court confirming the same, the iff filed in the probåte court his proofs of the en- deposit of the amount of compensation, entitles try of the defendant on his lands, and its proceed the corporation to possession, even though the ings thereon, and of his written demand for the verdict may be afterwards set aside, and a new payment to him of the moneys assessed by the trial be ordered. . jury; that on the 23d of December the defend- In the Bill of Rights it is provided that “priant filed in said court written objections to the vate property shall be held inviolate, but subpayment of the sum of $27,100 to the plaintiff; servient to the public welfare. When taken in heard the parties, granted the motion for a new tively requiring its immediate seizure, or for the trial, set aside the verdict and overruled the purpose of making or repairing roads, which plaintiff's demand for the money, and that no shall be open to the public without charge, a further proceedings have been had in the case ; compensation shall be made to the owner in that the defendant, on the 24th of December, de- money; and in all other cases where private sisted from further operations upon the lands, property shall be taken for public use, a compenand the plaintiff is still in the possession of them. sation therefor shall first be made in money, or

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first secured by a deposit of money; and such money and demand possession. The jury has no compensation shall be assessed by a jury, without right to appropriate the property. It only fixes deduction for benefits to any property of the by its verdict, the compensation that is to be owner."

made, in the event the land is taken. The ConThen in Section 5, of Article 13, of the Consti- stitution contemplates a judicial proceeding, in tution it is provided: “No right of way shall be which the effect of the judgment is to divest the appropriated to the use of any corporation until owner of the title and possession of his property, full compensation thereforbe first made in and to invest both, to the extent of the condemmoney, or first secured by a deposit of money, to nation, in the corporation. the owner, irrespective of any benefit from any No right of possession is divested until the upimprovement proposed by such corporation, propriation is complete. The owner's right to which compensation shall be ascertained by a dominion over his land is as inviolable as his jury of twelve men, in a court of record, as shall ownership or title. The right to the possession be prescribed by law."

passes as an incident of a consummated approThe Constitution of 1802, Article VIII, Sec. 4, priation.

priation. In such a case the right of property simply declared that: “ Private property ought and the right of possession are inseparable. To and ever shall be held in violate, but always sub- deprive the owner of his right of possession, unservient to the public welfare, provided a com- til the appropriation is made, would be as obpensation in money be made to the owner." No noxious to the Constitution, as to take the title. simitation was imposed as to the character of the If

, therefore, the unconfirmed verdict of the jury, tribunal or person that the law should clothe with a deposit of the money, does not amount to with authority to exercise the right to take such an appropriation, i. e. to a taking of the property property, for the public welfare. Nor was the


of an owner, and vesting the ownership in the time limited when compensation should be corporation, the right to take possession for any made, for property taken.

purpose, in this case, does not exist. In these and in some other respects, the right Again, the rights of the parties are mutual. of eminent domain is abridged by the provisions Whenever the corporation is entitled to take the cited from the Constitution of 1851.

land, its former owner is equally entitled to the Art. 1, Sec. 19, after declaring, that private money. The right to the money accrues eo in-property shall ever be held in violate, but substanti, with the right to take the land, otherwise servient to the public welfare, provides that, ex- compensation would not first be made. The decept when taken in time of war, or other public. | posit of the money in court, is in legal effect, for exigency, imperatively requiring the seizure, or the land owner's use, and belongs to him, as for the purpose of making or repairing roads, soon as the land becomes the property of the corwhich shall be open to the public without poration. Mielly v. Zurmehly 23 O. St. 628. charge, a compensation therefor shall first be And this is so notwithstanding either party made in money or first secured by a deposit of may prosecute error and reverse the judgment. money. This compensation must be assessed by the final judgment of the probate court coma jury.

pletes the appropriation for the purposes of transArt. XIII, Sec. 5, is, if anything still more ex. ferring title, but leaves the parties to litigate plicit, as to the power of corporations to appropri- over the question of compensation. ate. It provides, that full compensation shall first In giving a construction to the chapter of the be made in money or first secured by a deposit in Revised Statutes relating to the appropriation of

be private property, these principles must be kept tained by a jury of twelve men, in a court of in view. In case of ambiguity or doubt, that record, as shall be prescribed by law.

construction must be adopted that harmonizes The taking, or appropriation of private prop- the statute with the Constitution. An examierty, is the exercise by the State or by its agents, ration of the sections comprising this chapter, of the right of eminent domain for a public use. leads us to the conclusion, that an appropriation The owners right is inviolable, except for a pub- is not made, until there is a judgment of the lic use, and these provisions impose limitations court confirming the verdict, that no title passes on the right to take it from the owner and de- until the judicial proceeding in the provote it to such use. They are conditions prece- bate court is ended, until the verdict of the dent to the exercise of this power.

jury is made effective hy a judgment. The compensation must first be ascertained Section 6414, of the Revised Statutes provides, by a jury of twelve men, in a court of record. that appropriations of private property, by corThis means a jury subject to judicial direc- porations, shall be made according to the provistion, by a court, as in other cases. This jury is ions of that chapter. a tribunal, presided over by a court, and under Then follow, provisions for commencing the its direction, hearing the evidence upon the is proceedings in the probate court, by petition and sue, and by its verdict, declaring the truth upon service, and for the determination by the court, the evidence under the law as given them by of certain preliminary questions, and among the court. Smith ». The A. & G. W.R.R. Co them, the right and necessity of making the ap

v 25 0. St. 91.

propriation. The summoning, impannelling Something more than a verdict of the jury is and serving of the jury is then provided for. They required, before the corporation can deposit the are then under judicial direction, and their verdiot when returned is entered of rooord as in ligation to refund any excess over a final ver: other cases, and unless, for good cause shown, dict if a new trial is granted, and he may upon a motion for a new trial to be filed within | maintain an action therefor. In no other way can ten days, a new trial be granted, "the judge his constitutional right to be first compensated shall enter a judgment on such verdict," (R. S. be complied with. Mielley o. Zurmehly, supra. Sec. 6432). Until such judgment the verdict is of Again, Section 6440, provides for proceedings no more force than verdicts in other civil cases. in the common pleas, when the probate judge is It must be confirmed. Such a verdict, not follow-interested, to be conducted in the same manner, ed by a judgment of confirmation, confers no title, in all respecte, as in the probate court; "and nor can it be enforced by process.

after final judgment the corporation may, on deSection 6433, provides, that upon payment or positing the amount of the judgment and costs, deposit of the amount of the verdict and the * * * be entitled to enter into possession coste up to the time, the corporation shall be en- The construction claimed, makes the deposit titled to the “possession of, and shall hold the on the verdict in the probate court, sufficient to property, rights and interests, so appropriated, entitle the corporation to take possession, while

and the judge shall enter an order to there must be a judgment on the verdict in the that effect, and if necessary, proper process shall common pleas. The law requires the same in be issued to place the corporation in possession.” both courts. So also, sections 6448, 6449 and

This order, adjudging that the corporation, 6450, provide for proceedings to appropriate in having paid the compensation assessed by the certain cases, to be instituted by the land owner jury, is entitled to take possession and to hold and to be conducted in the same manner as if the property, is the final order in the case and commenced by the corporation. consummates the proceedings to appropriate, Until it is made, no process can issue to invest the.

Here, also, there is to be a "final judgment

on the verdict, and if this judgment is not paid new owner with possession. In the nature of

the court will enjoin the use of the property. judicial proceedings, process cannot be issued until there is a judgment to enforce.

Reliance is placed on Section 6436, to support To hold that the right to take possession can the construction of 6433, claimed by the defend

ant. precede a judgment on the verdict, carries with

“ If the amount of

It provides that: it the authority to have that right enforced by

the first verdict has been paid into court, the judicial process. In the case at bar it would lead probate judge shall retain the same until the

final termination of the second trial.” This secto a compulsory ejectment of the owner after the verdict was set aside, and without the owner be

tion provides for the disposition of money paid ing first compensated, by a payment to him or by

in on a verdict where a new trial is afterwards a deposit to which he would be entitled. granted. The judge is to hold it until the The anomaly would be presented of enforcing the corporation can take the property, and the

final termination of the second trial. Now, if an order, transferring title and right to the

possession before there was a judgment, and in fact, judge can retain the money until the final terwhen there was no verdict in the case.' The

mination of the second trial, what becomes of judgment confirming the verdict is the founda

the constitutional proyision, that compensation tion for the right to acquire possession by its

must first be made or secured to the owner, in payment or deposit.

money before his property can be appropriated ? That these sections contemplate and require a

The only construction this section will bear, final judgment on the verdict, is made clear by

to make it constitutional, is, that the money an examination of Sections 6437, 6440 and 6449. paid in on the first verdict, which is afterwards

Section 6437 allows either party to file a peti- set aside, remains the property of the corporation in error to reverse the final judgment

tion, until the final termination of the second within thirty days after the rendition of the trial, and if the second verdict is less than the

. verdict, “but the corporation may, on the reh

deposit, the excess is returned to its owner, but if dition of the final judgment in the probate court, greater, the corporation must increase the depay into said court, the amount of the judgment

posit to equal the second verdict, to entitle it to for compensation and costs therein rendered, and take the property. proceed to enter upon and appropriate the prop

While this section provides for the disposition erty, notwithstanding the proceedings in error. of money paid in on verdicts that are afterwards, Here there must be a "final judgment,” a “judg- by the probate judge, set aside, it does not pur

“ mont for compensation,", as a prerequisite to a port to give any right to appropriate the propdeposit of the money which gives the right to erty pending the second trial. It in fact, pro possession

vides for the case at bar, while section 6433 does No reason can be perceived why there is any not. The amount of the first verdict, $27,100, is greater necessity for a judgment under Section the property of defendant until the 6437, than under Section 6483, to entitle the cor- termination of the second trial, when that 'trial poration to enter upon the land.

is finally terminated, not when the second derAgain, on such a deposit, under Section 6437 | dict is rendered, the deposit, or so much thereof which law operates as a conveyance of the As will equal the second verdict, will become the property, the deposit, by like operation of property of the plaintiff

, and his land will be law, belongs to the land owner, subject to an ob- l appropriated to the corporation. This entitles

“ final


the plaintiff to an injunction until the final ter- pany in the business of the Une, other than local buss. mination of the second trial.

ness, was not exclusive. 2. The railroad company was

not precluded from placing another wire upon its poles II. But it is urged that this court has no either for its own use or the use of another party. power, either to grant a temporary injunction, 2. Equity will not compel specific performance, where or an injunction as the final judgment, because

the benefits of the contract cannot be realized ip accord

ance with its terms. Hence, where a railroad company, by At. IV. Sec. 2, of the Constitution the origi- having a line of telegraph, grants the use of its poles to nal jurisdiction of the supreme court, is limited a telegraph company on certain conditions and stipulato quo warranto, mandamus, habeas corpus and

tions in favor of the grantor, which are ultra vires, an in

junction will not be granted whereby the grantor will be procedendo. This is granted, but it has “such

required to perform other stipulations made in consider. appellate jurisdiction as may be provided by ation of such void stipulations. law.

Error to the District Court of Hainilton By Section 5572, R. S. "when during the liti- County. gation, it appears that the defendant is doing, or The original action was brought by The Westhreatens, or is about to do, * * * some act in tern Union Telegraph Company against the violation of the plaintiff's rights, respecting the

Marietta and Cincinnati Railroad Company, as subject matter of the litigation, and tending to reorganized, plaintiff in error, and the Atlantic render the judgment ineffectual, a ternporary and Pacific Telegraph Company and the Baltiorder may be granted restraing such act." This more and Ohio Railroad Company, to enjoin the would authorize a temprary order pending the defendants from placing an additional wire on litigation, and is an exercise of the appellate the line of telegraph poles located along the power, which follows the case into whatever line of the Marietta and Cincinnati railroad, court it may be appealed or taken on error, and from using the same for the purpose of genpart of the appellate jurisdiction conferred by eral telegraph business. law. Kent v. Mehaffey, 1 0. State Reps; Yeo- The following statement will suffice to show man et al. v. Lasley et al. 36 Ibid 416.

the nature of the claim of the plaintiff in the Section 6726, authorizes this court, in the ex- original action. Previous to the i0th of Novemercise of its appellate jurisdiction, when it re- ber, 1857, a telegraph line consisting of poles verses a judgment, to proceed to render the judg. | and a single wire had been constructed along ment the court below should have rendered. the line of said road by the owner, the Marietta

In this case the district court should have and Cincinnati Railroad Company. On that granted the injunction prayed for until the pro- day, a contract was entered into by and between ceedings which are pending in the probate court, said railroad company and Jacob Carmean and are finally determined.

others constituting the Marietta and Cincinnati The judgment of the district court, is reversed Telegraph Company, wherein it was stipulated, and an injunction is granted until the final

among other things, as follows: determination in the probate court of the pro- “1. That the party of the first part grant to ceedings now pending therein.

the party of the second part the privilege of [This case will appear in 37 0. S.]

putting up and maintaining a telegraph wire

" for general telegraphic correspondence," on the RAILROAD_TELEGRAPH-INJUNCTION- line of telegraph posts now erected, or occuSPECIFIC PERFORMANCE.

pied by said party of the first part, along their

railroad from Marietta to Cincinnati, subject to SUPREME COURT OF OHIO.

the terms and conditions hereinafter mentioned.

2. The party of the second part, while putTHE MARIETTA AND CINCINNATI RAILROAD COM- ting up their wire as aforesaid, shall furnish and PANY AS REORGANIZED

put up new posts, wherever the present poets

are insufficient to sustain two wires with entire THE WESTERN UNION TELEGRAPH COMPANY; | security; and if the privilege of putting up anTHE ATLANTIC AND PACIFIC TELEGRAPH other wire upon the line of posts from CincinCOMPANY

THE BALTIMORE AND nati to Loveland cannot be obtained, then the OHIO RAILROAD COMPANY.

party of the second part shall put up a new line

of posts on said route for the common benefit of

March 28, 1882. themselves and said railroad company. 1. A railroad company, having a line of telegraph When the wire of the party of the first poles and wire, granted to a telegraph company, the priv- part is not in working order, the railroad mesilege of placing another wire on the poles "for general telegraphic correspondence," and of establishing tele

sages shall be sent as far as practicable free of graph stations at points along the line as it might think charge by the party of the second part, and in proper, but reserving to the grantor all local telegraph like manner, when the wire of the party of the business, it being understood and agreed between the parties," that the telegraph company should be entitled

second part is out of orde , their messages shall, only to the business of sending such messages as might as far as practicable, be sent by the party of the be received at any of its stations destined for stations on

first part. other telegraph lines connected at points where it had stations, or such messages as might be received from

4. The party of the second part shall be at other lines connected at points where it had stations des- liberty to establish and maintain telegraph statined for its stations, or other lines connected at points tions at Cincinnati and Marietta and at such where it had stations, with a further agreement for prorating as to business re-telegraphed between the parties :

other points along said line as they may think Held, 1. The right acquired by the telegraph com- proper, but all local tele raph business on said



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