Topeka.'iThisthey did, and inoorisider-
lng'tlmse a.pplications' I. have made ordetEllooking for many improvements fOr the coIrling:12'months. In sOme of the orders I have inserted
special limitations, and'! have stated' orally to the receivers,' and now repeittin writing; that the authority given to make purchases or immilst in no case be exerCised to stich a degree as subject the prdperty to the risk'of receivers' certificates; :that they must proceed with carJ,tion, and only buy as they have money with. which to pay, or as they sea'Willcertainly be'in their hands by the time payment is due. This is aU than thibk that I need say. I turn the administratioriofthe property 'to'my successor in feelingsul'e that it is in good condition, and, believing that he will have littlework,beyond crowding the parties into a speedy foreolosureand
to
1
U
ST.
I. R. Co.".'P,J1:VEREUX, Sheriff. ' .. , ::11""
p; KanBa8.
.
December 80,1889.), f,
' '
,
, roaa S.
mtlr.oad bridge, not'Qotlll'ructedas general pur.is subjeot tolooal w.xation, and the return to the rail'assessors of the state ail II llart of the road's mileage does not exemlltit from : .IJuob ,taxation as an Ind8})endent struoture. . . .',>iA 8'rA'IlB!I'":"BoUNDARY ¥tNB BBTWBBNKANSAljAND!.:IISSOURI. .'
COMPANIES-TAXATtON-BiIDGES.
f' ,
a.SAMS-A.QT;O, CONGRESS."',
.A. 'L· .'Williams; for complainant. J.:L.G1J},patrick j for defendant.
In' Ektuitt'.
Bill to E'njoin oollection of a taX· . " .
of taxes on- 11, bridge' crossing the Missouri river 'at St., Joseph. The entire- bridge lVRsassessed by the county'll.uthorities of DortitJhan county as being 'an itidepelldent structure, and wholly within the limits of the county.' The: bridge was built under 'lispecial cbarter,"but'Mterwards became the property of the railroad con!pany, the complainant. Complainll.nt:retl :'i:rnedthe bridge'to the-railroad assessors of,the state as a part': oC its mileage, and without: wise specifying· that it was· a bridge; It\oostover half a Inillmn of dollars. is now 'worth and ifl used noHifuply'as a railroad bridge',but also
BREW1£R*: :1'., This is abiH, filed bycomplainant, to 'enjoin the colleo-
ST·
15
. for travel. It. crosses ,the Missouri n,ve: from the city of St. J (}o seph, ;Mo., ,to the Kansas shore. , Twq questions are preSE;lnted.: First. Is it wholly .within the county of Doniphan? AndthatdepenQs upon where the boundary line between the states of Kansas and Missouri is.-whether in the center of the main channel or on the east bank of the river. Second. Did ,the return of this as a part of the railroad trll.ck exempt it from taxation as an independent structure in Doniphan county? . With respect to the latter question there can be little doubt.. The bridge was not constructed as a part of the l;ailroad. It is a costly structure, used for purposes of general travel; and ,the fact that the rllilroad company has its rails upon anll, runs its cars acr<;lss it does not destroy: original character as an independent structure. It. is to l\)cal tax:ation,. , ,.The, firat 'question is, powever, one of difficUlty.. 'Historically, the boundary: of the state of MiS&ouri 'ras 1rmeridill.Q. line passing through, the' middle of the mouth, of the KIlnsas .river, where the same into .the Missouri .river; fro,m, the pohlt north, alongthe said meridian' line,: to theintersection ,of of passes through ,the rapids ofth El riyer Des Moines." , Actof;March ,Q,1820. Thisleft a narrow strip ,such western bQundaryanq, ;tlle Missouri river. At the sflssiQIl pf , 1834-35, an amendment of the constitution of Misso,uri was section 4 of which reads as follows: j .. ;} "Sec. 4.· IIhat the boundary of the state be so altered and extended as ta,include,all tbat tract of land, lylngontbe northside of tbe Missouri river. lind westot,the of this state, so thattl).e same shall on the south by the middle of the,main channelo.I the Missouri rlvel:',undon the north by the present northern boundary line of the state, as establislied ", by the comitit1J1;ii:m, 'when the is continued in a right line to t,he weat, 01:' to include so much of said tract of land·ascongress mayassent/' . . congress approved June 7, 1836, this sttip,above .rtlcntioned,knmvn as Purchase," Was',ceded to the sta.te'of Missouri. 1:he of act is as folloWs: , '. Be it; enacted by the senate and. house ofrepresentatl ves of the United America, in the Indian title J.ylng. the state of M;issouriand the MissOuofi river shall be extinguished, the jurisdiction said land" shaH be hereby ceded to of Missouri, and the western boundary of said state shall be then extended to .the Missouri river, reserving totha United States' the original right of soil in sai4,lalldg, and ot. dispQsing of same prOVided, that this act shaILnot'.take effect until the president Shll.U hy proclamation 4ecllue·thattbe In,gian said lands has be'enextinguished;' nor shall it take effect untii thest#e of Missouri ilhltlihave assented'totheprovisionsof this act." . 5 St,.t1;'S:34. ! the 'C(j)ritention by this act fixed > RUhe east ,brenk of theriverj:This, I think,isamistake; and, that the :eenWr Of tJiechannel is the 'boundary line, and the 'limit of by, seen that .'pythEl ,nilddle()f,tlle, channel
BDERA!. REPORTER, vol. 41. grant jurisdiction' was over the lands "between" the old stateline and the "Missouri river;" and this western boundary \ms "extended tp the M'issduri river," and this was made, and its boundary fixed, obviouslY', in response to the petition.' Counsel for the defEmdant urge that · this shall be'taken as a grant ''from one proprietor to another, while. to my mind it is to be regarded riot only in the light of a grant, but also as an act, by competent authority, establishing the boundary line of a state, independent, in some respects,' but within the general jurisdiction of the' authority making the is true there is a 'cession · of jurisdiction, imd therefore something in the nature of a grant. , So there is whenever any' 'new state is carved' ()Ilt. of the territories. , The' new politicalorganizatiorr"is'granted jurisdiCtion over the pre'scribed territory; but, aftel-' all,tlie' inain idea is the governmental orie, -thededaration of the boundaries of the new jurisdiction. It is true, · here was It alreadyinexisttmce, and jurisdiction over this ,territory wasjl'll.nsferred. to it, is in it !nore of the nature of a grant; 'blit,even 10 this case; it regarded as a governmental declaratioil ofthe bounditrY. It '*-'illbenoticed'tliat the cession is to not to the "lmnk:' The words are no words of exception' Or' limitation. .' In the case of Janes v. Soul· ard,24 How. ,41, the questioti wag"preseritedasto the eastern boundary ''Pf the corporll:te'limits of the city of St: If>uis. The calls for boundary. in the charter were: ." .. ', "Beginning at Antoine Roy's mill, on the bank of the'Mississippi; .thence running sixtyarpena wast;thimcie'south,on said line of sixty arptms,:fn' the rear, until tbesame'comes to Donoyer; thence due south, untii it :oomas"t(Hhe Sugar Loaf;' then'oe, due east, to the Mississippi; fi'om, by the ,Mississippi, to the place first mentioned.'" . upon .this the SlI pr,eme court adjudged the boundary the center of the channe}., saying, in the opinion: . "Manyallthqr\ties i'e!Sting on adjudKed cases have been adduced to lIll in the ',printed argument presented by the.CDunsel oftha defendant in error, to show that from the days of Sir MATTB.;E)v. HALE to thepl'esent time aUgrantll of land bounded by fresh-water rivers, where the expressions desig'nating the , water-line are general, confer the proprietorship on the grantee to the middle ',thread of the stream, and entitle bimto the accretions. We think thill,asa genel'81 rule, too well settled, as' part of the American:and English law. of real ·i)\"operty. to be open to disc lIssion." 0, :'. ' _L
of
In ,the case of Howardv. 13 How. 381, where the question ,'was as to the boundary between the states of Ahtbamall.nd Georgia, J., in a$eparate opinion, thus states the law: . taridadjolninga rivero,r above tide-water is l;lescribed as bounded. by a monument, whether natural or artificial, such as a tree or a J!ltakestandin:g. on the bank, and a:coui'se is: given as running from it up or the river to apoth1;lrnionuui;ent standing upon the bank, these words imply a,s a geqt\ralrQlt\ tba,t.the line is to follow the riveraooor4ing to. meanderlngs. alld and the grantee takes to the miqdle ,of tperi"e'r: Such ill the construction given to this description,'Where the'coffilJ)(n1 law prevails. It has been repeatedly applied to grants abutting
ST. JOSEPH & G. I. R.
cO. ".
DEn;REUX.
17
the river Mississippi, the Missouri, the Hudson, the Connecticut, and other great rivers in the United States above tide-water. g Kent, Comm. 427-429, and notes; Ang. Water-Courses, (Ed. 1850,) c.l." There can be no doubt as to the general doctrine; and the authorities cited in the briefs 9f counsel in 24 How., supra, show the application of that doctrine under a great variety' of circumstances. The cuse of Howardv. Ingersoll, supra, although locating the boundary line onthe bank rather than in the middle of the Chattahoochee river, still recognizes the general doctrine, and rests upon the special language in the cessibn;The la,nguage there was as follows: "West dt aline beginning on the western bank ofthe Chattahoochee river, where the same crosses the boundary line between the United states and Spain; Tunningl!Qence up the said river Chattahoochee, and along the western bank thereof." And JusHce WAYNE, in delivering the opinion ofthe court, thus noticed the general rule, and the reason of its non-application in this calSe: "If the langu'age of the article had been, · beginning on the western bankof the Chattahoochee, and thence running up the river,' and no more had been said, the middle thread of the river, ordinarily, and withontany reference to the fact that Georgia was the proprietor of the river, would have been said to be .the dividing line between the two states. But there is added: 'Running up the said river Chattahoochee, and along the western bank thereof.' .This any uncertainty there may be; for, if the first call or object , to locate the line is the bank of the riyer, it is plain that the western limit of .Georgiii, on and along the bank of the river, must be where the bank and the water meet in its bed, within the natural channel or passage o[ the river. The words ·along the bank,' added to the words' on the bank,' distinguish from all of those in which courts have had the greatest difficulty, where a HIle wasto be fixed, when it is on the bank, without a call for the stream, or along;tht;l river, or up or down the river. * * * . Along the I is strong a,nd definite enough to exclude the idea that any part of the river, or its bed, was not to be within the state of Georgia." As against this general rule and these authorities, defendant relies largely on the case of Handly's Lessee v. Anthony, 5 Wheat. 375. That case decided that"The boundary of the state of Kentucky * * * does not include a pen. insula or island on the western or north-western bank,. separated from the main-land by a channel or bayou, which is filled with water only when the river rises above its banks; and is at other times dry."
It seems· to have been assumed that the northern bank of the Ohio river WaS the boundary of the state of Kentucky; and the question decided was where that northern bank was. And yet there is, un<J.uestionably,. something in the opinion of the court which helps to sustain defendant'scontention. The territory north of the Ohio was ceded by Virginia to the general government, and the description was, the territory '¥situate,lying, and being to the north-west ofthe river Ohio;" and, in respect thereto, Chief Justice MARSHALL, speaking for the court, uses this language: . "When a'great river is the boundary between two nation!! or states, if the originalprC?perty is in neither, and there be no convention resrecting it, eacb vA1F.no.1-2
·
,hol.q!l of. the stream., Bqt :when. as in state is tlie origiI;1R1 territory on one side only, it retajns the river within its own dOIDltiq·.andi ne,wly-created state extends to the river .. ' only. The river, however, is its bou ndal'y ." was a a state to the general governJ11entj to the state'; that, ,a cession l',norlp-westof th,e ofallbetween ,flo line and the lind from this Eiimilarity, illsist, that that case is decisive of this. is, ,similarity, .mpst c911ceded; and yet there is the (Hstinctron suggested by me in the of this opinion.' One is only a cesthe. is a governmental designation of a ··.. Further,. the of, the description is not identical. One this in that which ,is ,only ,a grant,...,.,.."territory, north-west of the riverj" and the chief justice holds that that grants nothing of the ,riverjthat the At" best. this i,s. dictum,' for the jurisdiction of wass,us'tained over tract hi question. Here, the,. was to, landbe.t",eell the old ljiie and the river, oi t4e . t9 the rI. th.us making that ,and ,naturalwater-course the bO\lndary; .at.nd ,the genera). rules construing such words of cessioq,'Rs subsequently 'affitmedby the supreme court in the cases cited 8i/pt'a,carrythat boundary to the center of the channel. Be,yond are these minor considemtions. In the case of Missouriv. !(W)(1, :'1 How; WIlS. c(>ntroversy between the two states ,1J8 to, tqj3ir boundary, not the ,here, Jhe, court used ' this language in reference to this cession to the state ,of Mis' ..In Febrnary, 1831, the state 'ofM,lssouri, by a memorial from the congress,petltioned the United 'states for an addition. of thecotintry Westof'the line running from the'm<)ptb'of the Kansaif'nol'th, alid 'between :said !ineatid the MisSOUl'iriv'et;, it w'as of land that had been acqUired, by the treatyo'f"June 3, 1825, from the KanSas Indians. declared, thatthe Une, froll) the mouth of north was . ,about one hundred mile!! long; Wat the country was ,settled, and rapidly set'tIlng, to its utmost verge; and that, as the Missouri river was the only great a connt1'Y inhabited highway of this"l'egion,and could U?t be reached "by! Indians; and being without roadS, a cassianof it to that,state wasneces('8Iiry'and proper. June 7i 1836,col'lgress acceded to request of Missotlti, :'8ind Igranted tothat state all jurisdiction'ovel' the lands 'lying between. its then western line and the Missouri:l'i'\Ter;ilinak'ing the riverthewestern'bo'undary. ",as not e(Ieqt until the to the country 'Was extin"uished." " ".l', ' , " , _:.'1;, f;' ", :g :.' ,_. .. _ . :ft .,: '.j ,',' ... ()fcourse, this is no more aU,thorl:.ta.t.ive than thedicttlim of Chief J1,)Sand yet it. ;t1l:llt the stat.e of ltiissoudllQughtthe the its, :western to the request. ! , ' '., " i, . ' : >". ," Again, in ,the act admitting th,e territory of NebrMka into the Union ;,a,lLR state, tile to:recognize the'chapnel ('f the Missouri river as the north-west corner of the state of Missouri. , l need,addnpthipg more )Vhich the is thepoulldary'J,ine ,between j 0. . . . . . _ ,' ·.
HICEOK· t1. WOOD;-,
'(
the two states: 'The of the bridge, by the. county of DOlli.. phan was.exeessive,but the agreed statement of facU! shows the exact proportionth1tt is west of the center of the channel. The decree will therefore ,be that, upon payment within 60 days by the complainant of that proportion of the entire tax which the length of that portion of the bridge in Kansas bears to the whole, an injunction will issue restraining the collection of the balance. Failing to make such payment, the suit will be dismissed.
HIcxOK
17.
WOOD.
(Ci1'C'ldt CO'lIh't, S. D. New York. December 80,
L
T.aUST&-RIGltTTO FOLLOW TRUST
Ftnros. Defentdant'sfather held the title to lands upon a secrettrustforthe complainant. He conveyed t.l1is land to the ,defendant without and upon a secret trust for himseif. Defendant,by direction of his father, exchanged this land for the equity of· redemption in other land, wbicb was SUbject to several mor1;gB/ites, taking the title in bis OWIl name upon a secret trust for his father. Tllis exchange was made for thebeneflt. of the complainant, and pursuant to a secret agreement between the eompll1inant and the defendant's fatber·. The defendant had no notice of the equities of the complainant in eitber parcel of land. Subsequently tbe defendant, at the direction of bis fatber, conveyed: tbe equity of redemption to satisfy the incumbrances. He bad no notice at tbat time oUbe equities of tbecomplaiDant. BeZd, t)lat. he.incurred no. liability to complainant as a trustee. A.lai> held, upon tbe evidence. tbat tbe complainant Dad. rati1led the conveyance of the equity of redemption, to satis!y tile incumbrances. .
2.BAMB-I4TJIIIOATION OF CONVEYANOE.
i
In Equ'ity. CarliBle Norwood, Jr., for complainant. A. H. Stoiber, (Joseph H. Choate, of cOlilnsel,) for defendant.
WALLACE, J. In September, 1878, FernandocWood conveyed to his BOn, the present defendant, certain real estate situate at Bergen P'oint, N. J., without consideration, and about the same time the defendant, at the request of Fernando Wood, exchanged this p.roperty with one Shaw fo:ltertain real estate in New York city known as the ":5ixty-Third Street P.roperty," then subject to certain mortgages. The complainll.ntavers in' the present bill of complaint that the Bergen Point property was in fact hers, the title being held upon a parol trust for her sole benefit by Fernando Wood; that the exchlinge for the Sixty-Third street property .was' made for, her sole benefit,and upon a parol trust to that effect betweep Fe,rnando Wood and 'herself; that she I!lubsequently paid to Fernando Wood tnoneys sufficient to' pay the mortgages upon the SixtyThird street property, and for tbat purpose,which moneys were received by the defendant, who applied some ofthem, and retained others for his own blmefit;· and that the defendant has refused to account for the oftheJBergenPoint property,. or the Dloney 'SO received by him.
