824
, It appearS as an undisputed fact that the defendahtCrosley has engaged another troupe for the time covered by the contract under which the complainants make their claim. It is not pretended that that other troupe has had any knowledge or notice of the facts of this controversy. They are advertised, and their bills are posted throughout the city. The theater is to be opened five days from this time. It appears, also, from the affidavits submitted on behalf of the defendants, that no scenery has been prepared suitable for the operas which the complainants desire to produce, and that it cannot be prepared in time for performances next week. The complainants are asking tbe court to compel the defendants to break off this last engagement, and inflict the same kind of injury upon the other troupe that they complain of in their own case. It seems to me that the result would be almost necessarily disastrous to all parties. The theatrical troupe would be thrown out of a week's engagemflnt tqo Iale to make anyothet engagement, and the comI>lainants would be without the time necessary to so advertise their performances as to secure paying audiences; and,inasmuch.as by the terms of their contract they are ro.paytheir own expenses, which it is stated are $3;000 per week, it is at least doubtful whether they would not lose money, instead of profiting, by their The granting of a temporary injunction' is within the discretion of the court. It has been held that where it will I the complainants little good and 'the defendants'much harm it will not be·gr4nted, and where it will injure the defendants more than it will complainants it will not be granted. I am satisfied that this benefit is aoase which falls within these rulings, and I therefore overrule the motion for a preliminary injunction. I suppose that this practically disposes Of the case, and that the bill might as well be dismissedj but, as couDsel for the complainants is not present, I Will not now make an order to that effect.
·
FEDERAL REPORTER.
vol. 43.
do
; OSBORNEet ,
or. t7. WISCONSIN CENT. R. Co. September 15, 1890.)
,
(Oircuit Oourt,W. D. Wiscon8i:n. IilrroNOTJON-MULTIPLIOJTT OP SUITS. r
·,The plaintitfs, respectively, are in the pOSlies&ion, and claim to be the owners, ot laws ot the United States. These lands are all claimed by the Wisconsin Central Railroad Company, aa, part of its place lands as defined by an act of congress passed in 1864. The cornpanybas heretotore brought sepa;ate actions otejectment against three of , the plaintitfs, and Nevertheless, it threatened to bring action!; of eJectment against each ot the,other·plaintitfs as weH as actions of trespass for in l1utting timber. unless they voluntarily surrendered possession of the lands respectively held· by them. The dispute between the railroad companyan<i ,.reach of the,plaintitfs depends upon precisely the same questions of law; and upon the s8D)s facts, The plaintitfs have a common source of title, ,and the clahn of the Cllmpany is good or bad against all. as it rnay be good or bad against any one.; ,ot ttm;Pla"intitfs" B,eld,tbat, in ord,er to, ,aVOid m"U.,itiP,UU(lllty.,. Of, ac,t,ions, the may bedeterrnined in a suit, in equity, in, the holclers of the 4iflerent tracts may ·uniteas plall:ltltfs; the case belong1ng to the class "where
tractls ,ot land acquired ,by them under the homestead and
OSBORNE 'V. WISCONSIN CENT. R. CO.
825
a number of persons have separate and individual claims and rights of, action against the same party, but all arise ,from some common cause, are governed by ttie same legal rule, and involve similar facts, and the whole matter might be settled in a single suit brought by all these persons uniting as co-plaintiffs, or one of the persons suing on behalf of the others. "
In Equity. Geo. G. Greene and A. W. Weisbrod, for complainants. Pt,mey & Sanborn, W. F. VilaB, and George A. Jenks, for defendant. Before HARLAN, Justice,and BUNN,J. HARLAN, Justice; For the purpose, of in the construction of certain railroads in Wisconsin, among others, a branch extending from a point north of St. Croix river or lake to Bayfield, congress, by an act npproved June 3, 1856, granted to that state every alternate section of land, designated 'by odd numbers, for six sections in width on each side of said roads, respectively, with indemnity limits of 15 miles from the line of each road. 11 St. 20. The map of definite location of the road to Bayfield was filed.tuly 17, 1858, and was approved by the secretary of the interior. , ' By the first section of an act of congress approved May 5, 1864, the place limits of the Bayfield branch were enlarged to 10 sectionsin width of lands on each side, with indemnity limits of 20 miles; and, by the third section of the same act, a distinct grant of the, same Quinber of seetions, with like indemnity limits, was made to aid in tlie constr)1ction of another road,-the ope now owned and operated bytbe Wisconsin Central Railroad Company, and whose .northern terminus is. at Ashland, Wis. The sixth section excluded from the operation of the'aet,ex:eapt for purposes of ,right- of way, mineral lands, and "any and all lands reserved to the United States by any act of congress, for thEl.P9rpose of in any object of internal improvement, or in any manner for any purpose whatever." " 13 St. 66. " When the act of 1864 was passed, there were in force certain orders of the land department, withdrawing from sale or location, for, any purpose whatever, all the lands within the original 15-mile indemnity limits the, Buyfield road, as defined by the act of 1856. These orders were made after the map of definite location of that road had been filed and approyed, and to the end that deficiencies ascertained in its place limits, as originally defined, might be supplied from such indemnity lands. What was done by the state, by the land department, and by railroad :<lompanies, under or in execution of the acts of 1856 and 1864, is fully .stated in the opinion just filed in the case in ejectment of Railroad 00. '\? Forsythe, post, 867. , . The re.'\pective plaintiffs in the present suit claim to own, and are in possession of, tracts of land, each one of which is within the original 15mile indemnity limits of the Bayfield road, and also within the place limits of the Wisconsin Central road, as defined by the third section of the aot of 1864; in other words, the original indemnity lilllits of the Bayfield road, and the place limits of the Wisconsin Central Railroad, 'Overlap eachotller as to the lands in dispute.
FEDERAL REPoRTER,
department to be open to entry Ullder' the homeAtead and laws of the United States, and, with its permission, were entered by the plaintiffs. The Wisconsin Central Railroad Company construes the act of 1864 as granting all the lands within the place limits of its road. . It .claims that. such part of those lands as fell within the original indemnity limits of the Bayfield road, and were, prior to 1864, withdrawn by the secretary of the interior from sale or location, were not, .by reason of such withdrawal, and within the meaning of the sixth section of the act 0£1864, "reserved to the United States;" and, having obtained patents from. the state, it brought separate actions of ejectment against W. O. Forsythe,L. W. Lentz, and E. A. Bekken, three of the plaintiffs in the present suit. In these three actions, the court has decided that the law was for the defendants, and has set aside the verdicts rendered therein Tor the company. The bill in the present suit alleges that company ,threatens to bring actions of ejectment against each of the other plaintiffs, and also actions Of trespass against all the plaintiffs for injuries in cutting timber, unless they voluntarily surrender possession of the lands respectively 'held by them. . The issues between! the railroad company and each of the plaintiffs depend upon precisely the same questions of law and upon the same facts. The relief asked is'that these issues may be determined in' a company be enjoined from prosecuting the actions of ejectment already brought, or any action of ejectment for the recovery of aald lands, or any action of trespass in respect thereto. The demurrer to the 'bill, presents the question whether the case is one justifying the intervention ora court of equit.Y, or whether the question 'of title to each the tracts being within a larger boundary, and the whole being claimed by the railroad company as a part of its place lands under the act .' of 1864-P1l1st be determined in separate actions 'of the respective plaintiffs. . We are of opinion that the objection to the bill is not well taken. Were the lands held plaintiffs granted by the act of congress of 1864 fpr the benefit of the road naIlled in its third section, or were they, when that actwlls passed,' by reason Qf their having been previously withdrawn framsale or location, "rel:lerved to the UriitedStates," arid within the meaning of the sixth section, excluded from the -grant made by the third section? If, when the actof1864 was passed, '\lJeywere "reserved to the United States," the law is for each of the plaintiffs. While the plaintiffs have separate and distinct interests because of their respective Qlaims of ownership of separate and distinCt of land,they a"commtinity of interest in the subject-matter -ofthecontroversy relittlng to theseh,tnds, and a common soUrce of title, 'riamely, ,the action .of the land department opening these lands for entry upderthe homestead,and','pre-emption laws of theUriited'States. "They nave thlisa community' Qfinterest in the questions of law and fact upon which the issue the railroad company and each plaintiff depends. - The' company's claim is good orbnd agaHist 'a.1l the held
by the
1LLLNGWpRTH' " ·. ePAULDING.[
827
as it may be gooq ofthemi'a'ndyet a judgm-ent in favor of one, in an action, brought by.the company, would not avail the others in separate actions ofejectment against them. The case is peculiarly one ip which the jurisdiction of a court of equity' may be invoked in order to avoid a multiplicity of suits. Itbelongs to the class" where a number of persons have sepiuate and individual claims and rights of action against the same party, but all arise fromsome common cause, are governed by the same legal rule, and involve similar facts, and the whole matter might be settled in a single brought by all these persons uniting as co-plaintiffs, or one of the persons Buing on behalf of the others, or even by one person suing for l;dmself alone." 1 Porn. Eq. Jur. §§ 245, 255, 257, 268, 269,273, and authorities cited in note&tothese sections. Crews, v. Burcham,l Black, 352,,357. In such cases the plaintiffs are united by a common tie, created by identity or interest in the decision of the same questions of law ahd of fact, and have a common adversary. The fact that the several tracts of land here in dispute were entered at different dates, and by different persons, is oino consequence, as the validity,of each entry, as against the railroad comdepends upon precisely the same questionsoflaw and fact. Upon the merits, as disclosed by the bill, the case is within the decisiop. just rendered in Railroad 00. v. Forsythe, post, 867. . The demurrer is overruled,and thl;l delendant will answer. Let an injunCQon issue as prayed BUNN,
J., concurring.
ILLINGWORTH ". SPAULDING (OIrcuit Court, D. New Jersey.
el
m.
September 28, 1890.)
1.
REJ'ORKA.'fION OJ' CoNTRACTS-PAROL EVIDENOL
9. 'Blll:lil-EvIDENOlI:·. The faot that the license was granted upon the oompromise of a suit for the in. fringement of the patent, 1:>Y the use of only one pair of guides on a single maohine. should 'not restriot the obvious meaning of the' terms used in the l1cense, especially whelj.the bill in the suit for infringement alleged "that defendants bad [Dade o,n6 maohl.ne, employing said invention, rplaintitr's guides,] and that they were threateJiing: ,make and use the aforeslOid maohines in large quantit1ea."
In a suit to resoind or reform a contraot of l10ense fOl'the use of ..guides" for guiding rods in their passage through surface-polishing- maohines, it appeared that, at the time the license wasgranted1 plaintiff was the patentee of the guides. and that defendants were using them ttl a machine then in operation, and that plaintiff threatened suit to enjoin defendants from infrin/png his patent. This suit was compromised, and plaintiff granted defendants a hcense"to use my patent guides for disk-rolling maohines. * * * the said license to become theirs, their heil'S' or assigns', forever. n Subsequently defendants ereoted another maohlne. and manufaotul'ed and used plainti1!'s guides on it. HeW., that the terms of the license were plain, and unambig-uous and did not restriot defendants to the privilege of using the guides only on the maohine in operation when it waa granted, but gave, them the right to use them on any maohlnes they might subsequently ereot.
