can call forth thJscourt into activity but conscience, good fldth, and reasona· ble diligence. Where these are wanting, the cou,rt is passive, and doesnoth. ing; laches and neglect are always discoulltenanced;and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this conrt.")'·, . . .
. Thesetwords of Lord adopted by the supreme conrt ofthe United States in Piatt v. Vattier,9 Pet: 416, and in McKnight) ".Taylor, 1 How. 161. See,also, Sullivan v. Railroad Co., 94 U. S. 811, and Godde:n. v. KimmeU, 99 U.S. 20l. Leiberman's insanity affords no excuse for the long delay in applying for thisfule. The trustee stood in his place, ready to answer all claims; was sufficient to pay all his debts; and these facts were his knowntb'all the have originally paid LeiberIlJsn's sbare of thejudgmenfhassinee doubled by the accumu]a. tionof mterest, and the allowance of the order now would operate as reward for dilatoriness, .and might eStablish a troublesome precedent for the of laches. rule be discharged·
.
OF PHll.ADlll.Pm:A v·. Omo & N.W. Ry.Co. etal., (CINcINNATI, N. ,R. & . . ..R. R. Co., Intervenor.) . .
{Oirmiltt OoUrt, S. D.OMo,'W. D.December 24, 1889.}
LRlILRo.m
Where tile of a railroad company makes an arrangement for the transportation of the freIght and. passengers·of.anotber railroad.company over the Une ·of }lis rolUl, and there is no proyision making the arrangement obligatory on either ·part, for any stated period of time, lIh6 receiver may terminate such arrangement ·at will, withoutPr8vioUB noticeto'the other company. '" 8AM:.B-00NvBY.AJl0B....,ApPURTENANQE8. .·
COKP.AJlIU-1'aANm>OBTATION ARRANGEMENT-POWER 011' REOEIT.BB TO TBRM:INAT,B. '. . ..' .;
A conveyance of a railroad fromone1fivenpoint to another, "Including the two ,. traoks composing what is termSd.,theYY;-'"does not convey the right to use a third · track, uS$d,in.con.nectionwith locomotives on another since such third track Is not anapPurteDance of the line conveyed. . ,.
In Equity. . On intervening petition., T.M. Hinkle, for petitioner. ." . . ·1J.amsey, M<WiDCll& Ramse'lJandHlYlfard HoUMter, for receiver. SAGE, J. I canllot see that. ;tQjilre jsin this case any ground for a J;e. atraining order., ',According to thepEiltitioner's own. showing, there,was an arrangement for and passenger traffic, withnothing more o.ut any for its cont4lul'npe. It was .clearly terminable, so as its; terms indicate, at ,This is conceded, but it is insisted that, from the very nature of the arrangement, petitioner was to reasonable notice. It may, be. that it could not be terminated so or so as to leave petitioner's as to affect freight actually in . cars upon the line of the defenda,nfcompany's road after the third rail . .. , . . ;t !.
INVESTMENT CO.
011'
i-HILADELPHIA 11. OHIO &: N. W. BY.
co.
37"
was taken' up. But it appears that the receiver has offered to return Clits so left without extra charge, and to receive from the peti. all tioner any cars on its line which belong to other lines. If there be any rnistake about this, or if the court be in error as to the fact, the receiverwill certainly be directed to do both these things. The receiver further states in his affidavit his willingness to take from the petitioner all the cars that were loaded on November 18, 1889, provided the shipper will· pay the required rate, and make arrangements for prompt un.:. loading upon their arrival at the point of destination·. These propositionsseem to the court to cover aU· the reasonable requirements that can be Inade by the petitioner. There was no stipulation that the arrangement or any feature of it should remain in force for any definite period; . The petitioner was at liberty at any time to make other arrangem.ents. It was under no obligation toship freight or passengers Over the defendant company's line, and the defendant 'company could not, therefore, be required to continue the arrangement on its part longer than itdeemed advisable. If the receiver undertake to charge and collect IDore than lawful rates of freight, which he denies having heretofore done; the court will require him to conform his charges to the provisions of the· statute, but it cannot require him to continue the rates which were recognized during the pendency of the arrangement above referred to. As to the Y, the language Of the deed to the petitioner's grantor, and by him to thtl petitioner, excludes the construction daimed for the petitioner. The conveyance is of "a railroad, beginning at a point on the original line of the right of way, by the main line orsaid Cincinnati and Eastern Railway near Newtown, in Hamilton county, Ohio, at a point known as 'New Richmond Junction,' inoluding the two tracks composing what is termed the 'Y;' thence," etc. Now, the petitioner insists upon the right to use the three tracks which he claims compose the Y. The answer to this claim is-'-FtrBt, that it is not supported by the guage of the deed, but is ip. direct conflict with it;8econd, that the third track-that is to say, the portion of defendant company's line which is used in connection with the Y for turning lonomotives on the petition-· er's road-is not an appurtenance 'of the road conveyed to the petitioner's grantor, nor has it ever been any part of the railroad so conveyed. The petitioner is not, therefore, entitled to any order which will seoure to him the use of the portion of the defendant company's track above referred to, between the two tracks composing the petitioner's Y. The motion for a restraining order is overruled.
On Monday, January 20, 1890, the petitioner by his counsel asked leave to reargue his application for a restraining order, for the reason that the ruling above was made upon a mere statement of points under a limit of time on motion day, and that included points not presented by counsel.· The court granted the leave, and, having heard counsel, announced, on the 22d ofJanuary, 1890, the following additional ruling:
880
FlmERAL 'REPORTER,
vol. 41.
SAGE, J. I have, in accordance :with the request of counsel, reconsidered, upon full argument, the ruling hereinbefore made. I see no rell,Son for changing that ruling, so far as it relates to the arrangement for freight and passenger traffic. There is not shown any stipulation for its continuance. Counsel for the petitioner insists, 'however, that the circumstances clearly that it was to be a permanent arrangement. By the circumstances, I mean the laying of a third rail by the receiver, and the. alleged fact that the petitioner, relying on the receiver's promise to continue the arrangement, expended money in thepurohaseof'an engine, a coach,steeLrails, and in the oonstruction of switclles,. all for the purpose.of operating its road under the arrangement. But pone of these circumstances, nor all of them combined, change the fa:ctthat.there wa.s no stipulation for a cpntinuance of the arrangement; and if the petitioner, therefore, chose to make the expenl;1itures referred to, withQut insisting upon a definite Eltipulation, it cert!llinly did not thereby;acquire any additional right ag!J.inst the receiver, even in equity. Moreover, the receiver, who is. merely an officer of this court, had no, authority to make a permanent arrangement such as is claimed. Obviously the arrangement must be regarded asterrninable at will, or upon reasonable notioe, or. as perpetual. There is no middle ground between thel'!e propositions, and certainly thiEl court will not recognize a perpetual arrangement of that sort, attempted to be made by its receiver. I am !'Itill of the opinion, expressed in the former ruling, that the conditions there stated are all that the petitioner can properly claim as to the termination of the agreement. Now, as to the Y. The description of the petitioner's road in the deed made in pursuance of the order of the court under whose decree it was sold, is as follows: .. A railroad beginning at a point on the original line of the right of way by the main lineol said Cincinnati and Eastern Railway neal' Newtown, in Hamilton county, Ohio, at avoint known as 'New lUchmond Junction,' including tw'o .tra,cks, composing, what is termed the' Y;' thence through," etc. Now. it is observed that what was sold was the superstructure, and the right, of way or easement upon which it was laid. The line begins, not at the track ofthe .Oincinnati & Eastern R&ilway, but upon the line of its right of way· .'flle grant, however, includes the two tracks composing what is. termed the "Y," and this languagaseems to me, by construction, if. there were nothing else, to exclude the third track; that is to say, the portion of the main track of the Cincinnati & Eastern, now the Ohio & Northwestern, which connects the two tracks composing the Y, and without which they cannot be operated. The purchaser took exactly what is described in the deed. But it is inJlisted that this third track is an appurtenance of the two tracks, and therefore passes as an inpident of the grant. The answer is that the deed makes no. reference to· if it did,or, if we regara. that as unnecessary, it was held in Hams v. Elliott, lOPet. 54, that theterm" apPl;lrtenance" "is used to signify something .appertaining to another th.ingas principal, and which 'passesaB an incident to the princi-
IN RE ARMSTRONG.
881
pal thing." This is in accordance with the ruling ali! old as the time of Lord Coke, who says that "a thing corporeal cannot properly be appurtenant to a thing corporeal, nor a thing incorporeal to a thing incorporeal, " (1 Co. Litt. 121b;) and so the supreme court of the United States, in Harria v. EUiott; held that, according to this rule, land cannot be appurtenant to land, and that a mere easement may, without express words, pass as an incident to the principal object of the grant. The case of Bank v. Ounningham, 22 N. E. Rep. 924, decided November 19, 1889, by the supreme court of Ohio, reported in volume 22, No. 25, of the Weekly Law Bulletin and Ohio Law Journal, and to appear in 46 Ohio St., is not in point. There it .was held that the sale of a part of the premises occupied by a building, the hall of which connected with the landing of a stairway leading from the street, and situate upon the other part of said premiser;;, and furnishing only means of access to the second Hoor of the building sold, passed to the purchaser a right to the use of the stairway as an easement appurtenant to the premises conveyed. 1n that case the stairway was an appurtenance, and, it was properly held. passed as an incident to the principal thing. But in this case the third rail is property of the same rank or kind as that conveyed in terms, and cannot be said to be an incident to the principal object of the grant; for, as the supreme court said in Harris v. Elliott, "it would be absurd to allow the fee of one piece of land, not mentioned in the deed, to pass as appurtenant to another distinct parcel, which is expressly granted by precise and definite boundaries." In addition to this, as was stated in the former ruling, the conveyance by its terms is expressly limited to the two arms of the Y, and, although they cannot be operated without a connecting track, there is nothing; to prevent the petitioner from constructing such a track just outside the line of the right of way of the Ohio & Northwestern Company, or taking up the two arms, and removing them to another location. The former ruling is therefore affirmed.
In L 2.
re ARMSTRONG. 8
(C4ircuit Court, S. D. OMo, W. D. January 18.1890.) BANKS AND BANKING-DRAFTs-ACCEPTANCE.,
A telegram promising to pay draft.
certain draft constitutes an acceptance of the
SAME;":'NATJONAL BANKS-INSOLVENCy-PREFERENCES.
Rev. St. tJ. S. § 5242, which invalidates all transfers of the notes, bonds, or bills of exchange of a national bank, after the commission of an act of insolvency, with a view to tlle preference of one creditor over another, does not prohibit a bank which bas in good faith accepted the draft of a national 1::lank the day before the latter's insolvency, and afterwards paid the same, from applying the proceeds of collections made by it, on paper in its hands belonging to the insolvent bank, to the payment of the draft, since its lien on such collections runa from the date of the aCceptance.
Petitio.n of David Armstrong, as receiver of the Fidelity National Bank, fol' leave tos.ettle controversies with the Seventh NatiEmal Bank of Phil-