I. ...., .

426

J'EDERAL

vol. 49.

"right ,of way." :Sufficient appears to give the ,tiffs Ii standing in court, at least for the purposes oflitigating their rights and taking evidence, to show, if, they can, that they are meritorious. All of these.fadts, of course, are made apparent merely by affidavits, or by the undisputed or conceded faets' in the After thorough investigation attainable by the usual progress of a suit in equity, a different appearance may be given to the case. As we aTe advised, howwe obliged to grant the injunCtion prayed for, and ever, at appoint a receiver pendente lite, in accordance with the prayers of the bill. An order will be taken accordingly.

FItZGERALD:".EVANS.

<' .

'I

(Cirpufl ,Court qfAppealB, Eighth Circuit. lI'ebl'llan'

1. 1899.)
   '
   

1.

I. 'BAME-DISMII8AL;'

The CircUIt court of appeals cannot take knowledge, actual or judicial, of what may appear upon the records of the district and circuit courts within the bounda'. ries of I, Cir.CUi, t.o sUPPo,rt, the right Of, ,appeal cann,.ot assume the existenlle of l1ece8saryfaots which do not appear of record in such court. an allowance of aclaimtn railway mortgage fOreclQsure proceedtngs, by one styling himself "the purchasing trustee of defendant's property," it did not thereoord that the property had been sold under the decree, or whatjnterelltt or rigJ;lt' appellant had in ,the proclledings,forwhom he was tr.listee, or moneys out of which the claim was paid a part of any fund in which he had an interesll. "Held, that the appeal should be dismIssed, appellant not , bV; the record BIJY right to appeal. In of'ril.ilway foioeclosures, where 'the property 18801d before the rights of lntervening'.Iparties, are determined. and by ,the terms of the decree the court reserves fuU power to heBJ:',such matters after" the sale, and subject the property or its proceedito,the payment of claims f1.nally adjudged to be prior to the mortgage lien., the proyer practice is for the purohaser, upon confirmation of the sale. to make himsel a to the foreclosure proceedings by filing a lupplemental bill or petition 01 intervention, and l if anon-resident. to appear by attorney; and, where the purchaser fails in suon partioular,the court should compel him to be made a party to the record.
" " " ,

RBCOlU>

·

, . " .

8. lI'ORBOLOSUR' ,OP, R,uLROAD

, Appeal frqlIl the Circuit Court of the United States for the Eastern District of Arkansas. "Bill!:?ythe Central Trust Company of NewYork against the St. Louis, & Texa,s Company to mortgage upon deroad. Louis Fitzgerald appeals from the allowance of a claim of Annie Evans out of the fund in court. Dismissed. S. n, W68t ard J. M. <!cJ. G. Taylor, for appelllUlt. Oscar D. appellee. ' Before and THAYER, District Judges.

" D,istrict Judge" ',This cause is now before us on a mQtionto of the re,cord discloses the .fo1dismiss the appeal, and an lowing to be.the position in which the matter standS before this court:

FITZGERALD 11. EVANS."

427

In May, 1889, the Central Trust Company of New York filed in the circuit court of the United States in the eastern district of Arkansas its bill in equity against the At. Louis, Arkansas & Texas Railway Company, for the purpose of foreclosing a mortgage upon the road of said company in the state of Arkansas, and averring therein that said trust company had previously filed a bill in the circuit court for the eastern district of Missouri, for the purpose of foreclosing the mortgage upon that portion of the line of railway that was situated in the state of Missouri. Receivers of the property were appointed in the usual mode, and. with the usual powers, and oruers were made consolidating several proceedings fer the foreclosure of different mortgages upon the line of railway. On the 15th day of July, 1890, a. decree of foreclosure· was entered in the circuit court for the eastern district of Arkansas, a like decree being also entered in the circuit court for the eastern district of Missouri, in which it was provided that the mortgal';ed property should be sold by a. master under the provisions and restrictions in said decree" expressly provided that all debts contained, which, among other incurred by the receivers in operating the property under their charge, and all debts contracted by the rairway company before the suit for fore-: closure was filed, which might be adjudged by the United States circuit courts to be entitled to a preference over the mortgage debt, and all claims pending, or which might be thereafter brought, and which should be adjudged to be prior to the mortgage lien, should' be entitled to be paid out of the proceeds of the sale before payment was made to the holders of the mortgage bonds; and by section 8 ofthe decree the circuit court for the eastern district of Arkansas expressly reserved to itself, jurisdiction, as against the parties to the foreclosure proceedings and the purchaser at thp. contemplated sale, to hear and adjudicate all pend,;, ing claims, and all claims thereafter to ·be filed, and to determine the priorit)' thereof, and to provide for the payment thereof, to which end the court reserved the right to retake possession of the property ordered to be sold; it being further provided that the parties to the suit and the purchaser under the decree should have the right to appear and contest the validity or priority of all claims, with the right to appeal in all cases where by law an appeal could be taken. It further appears from the record on file that one Annie Evans reeovered a judgment in the circuit court for the eastern district of Arkansas,· at Texarkana, for the sUm of $1,991 and costs, and on the 7th day of Februnry, 1891, made application to the circuit court for the ern district of Arkans.as,at Little Ruck, for an order directing the payment of the claim out of the fund in court; a.nd upon the hearing of the application, counsel for the intervener and for the receivers appearing and being heard, the order asked was. granted, and a check for the amount was drawn on the fund in court and paid for the benefit of Mrs. Evans. The record further Shows that one Louis Fitzgerald, on the 13th day of April, 1891, describing himse!f as "the purchasing trustee of defendallt'sproperty," filed in the circuit court at Little Rock an

428

FEDl'RAL llEPORTER, \'01.

49.

mentof errors, based upon the allowance of the claim of Mrs. Evans, .prayed that an appeal should be allowed "to said Louis Fitzgerald, trustee," and, the same having been allowed, the present record was filed in this court. It will be. noticed that the record before us contains no evidence that the mortgaged property has yet been sold under the terms of the decree above recited. This court cannot take knowledge, actual or judicial, of what may appear upon the records of the numerous district and circ.uit courts that are within the boundaries of the eighth judicial circuit.Wecan act only upon such facts are made to appear ir the proper mode by,th¢ record before us, and, to support a right of appeal, we cannot assume the existence of necesi'jary facts which do not appear ofrecord in this,.court. This court does not know who "Louis Fitzgerald, Purchlls[Qg trustee oithe property of defendant," is, nor what interest or rigbthe bas in the matter of the foreclosure proceedings,against the St. L<>uls, Arkansas & TeJras Railway Company. It is not.shown that 81 sa,le. the mortgaged property had taken place, and that Louis Fitzbecome the purchaser at such sale, and therefore was enti. tledtQ,tne rights reserved to such The only averment is that f.()und: in ,the petition for appeal,inwhich he is described as the purchasing;trustee of defendant's property; but this does not show that he bM,yetbought the property, or, if bought, how he bought the same,' nor :whether he bought as the representati,ve of the bondholders. In Qtb!)r, words, the record wholly fails to show that Fitzgerlild has acquired any, sueb interest in the property affected by the foreclosute decree, or in' the questions therein reserved for fu ture action by the court, as entitles hw,to question in any court the rightfulness of the. 'order now complained of. Furthermore, the' record shows that the order made upon of.Mrs. Evans was to the effect that the same be paid by,thEl receivers "out of the first moneys coming into their,hands applicable to, that purpose;" and if it be true, as stated in the assignment of errors, that the claim has been paid, it is not made to appear that the moneys out of which it was paid were part of any fund in which the present.lIippelllmt had.an interest. As the record, therefore, wholly fails t(l show: that Louis Fitzgerald has any interest in the foreclosure proceedings, in the property covered by the mortgage foreclosed, or in fund out of which the claim of Mrs. Evans was ordered to be paid, failjl, to show that he is entitled to prosecute the present appeal. If by any he .had become interested in the proceedings or in the thereby, and desired to be heard, either in the trial or in opposition to the allowance and payment of the claim he should, by petition, have intervened in the cause, and haveobtai;l;led, recognitionss. a party in intertJst. See,Ex parte (Jutting, 9,4; 0.. 8.,l4:. No such action, so far as the record before us discloses, tak&n,by:bim in the court below, and the record beforen's wholly to s.howthat Fitzgerald has any intetestin the matter sought to be . presep-t!'ld, by!theappeal. !tcannot be expected that this court will en-

FITZGERALD V. EVANS.

429

iertain appeals or writs of error on behalf of strangers to the proceedings, and it follows that this must be dismissed, for the reason that it does not appear that the appellant has the right to appeal. In view of the action we have felt compelled to take in this matter, we deem it advisable to call attention to the practice that should be followed in cases of railroad foreclosures, where a sale of the property is had before the rights of all intervening parties are determined, and where, by the terms of the decree, the court reserves full power to hear such matters after the sale, with the right to subject the property and its proceeds to the payment of claims finally adjudged to be prior to. the lien of the mortgage. When a sale. is made under a decree of the kind described, it is the duty of the purchaser, upon a confirmation of the sale, to make himself a party to the foreclosure proceedings, by filing therein a supplemental bill or petition of intervention, setting forth the fact. that he has, by purchase of the' property. become a party in .thus showing that he haspecome subject to the burdens and entitled to the benefits of the decree under which he has purchasea the property. Furthermore, if the purchaser does not reside within the territorial limits of the jurisdiction of the, court, he should appear by an attorney who is a member of the bar of thecotut having of the foreclosure proceedings, so that when need ariSes the court may be enabled to have pefore jt all persons interested in resisting the allowance or pajrmeniof claims which are ,asserted to be. entitled to priority of payment. It notunfrequentlyhappens that the purchasers at railway foreclosure sales may reside points, and without the jurisdiction of the court. If the purchaser who thus resides at a does not become a party to the rec6rd, and have an attorney rep'" resenting him, upon whom service may be made, the court and litigants are put to a great disadvantage in disposing of the claims asserted against the property or its proceeds. Many of the claims are of small amounts, andH, before the same can be allowed and paid, it is necessary to pro· cure orders for service upon a purchaser living in New York, or some other distant point, and to complete such service at his place of residence. the expense thereof will eat upthe claim. It is due to the cotirt, and necessary for the prompt and inexpensive disposition of claims of the nature indicated, that the purchaser shall become a party to the record, and subject himself to the jurisdiction of the court in the manner indicated. Ifthe purchaser fails in this pat:ticular, then the court having jUlisdiction of the foreclosure proceedings should, byappropriate action, compel the ;purchaser to become it party to the record, in order that ilie business of windinK up the foreclosure case and finally settling'the rights of all interested may be proceeded with in an orderly way. If a. purchaser at' a foreclosure sale makes himself a party to the record in ,the manner indicated, then it will be the duty of the circuit court to cause notice to be _given him before passing upon intervening claims, or directing their payment from the fund in court, and thus full opportunity will be afforded to all parties in interest to be heard for the protection of their rights. It may be, in the present cause, that this

in-

430

FEDERAL REPORTER ,

.vol.

course has been in.,fact pUl'$l:!.ed, but, now bE1fore .us. fails to wea.re compelled to. dismiss the appeal, because it show it, and is not made to appear that Louis has any interest in the contake an theofder directing paytroversy, or any right ·· ment to be made oi !Pc qlaim of Mrs. Evans.

LAST OnANCE

MIN. Co.tI.

BUNKER HILL &; ING .00.

S.

MINING &; CONCENTRAT-

<Cflrcuit Court, D. Id.aho.February 29,.18l12.)

The appropriator of water, to be used at 'a specified plllll8 for tbe purpose of operating machinery anq otbElr works, after. so using and returning it ,to its original c)iannel, cannot change the place of U8e. to the damage Of. subsequent appropriator lower down on thelltreiLm. (SlllliabtuJ lrlI the 001'71.)

OP

PLA.01iI OP

USE; .

W. B. Heyburn, for. plaintiff. McB'T'ifU AUen, for defendant. .
BEA'l"l'Y, District Judge. This capse ls 8n statement of factS, from, which it,apHears that the defendant, during the montlls of February, April, and May, 1886, located three water-rights on Milo creek, in Shoshone county, Idaho, the water of wnich was conducted by separate ditches to ore miUiQg plant, known as after there used,for the purpose of ,the "OM Qoncentrator;" the machinconcentrating the ore from defendant's mine, and ery connecte.d with the .mine and works, it was turn,ed. back into the natural channel ofsaid creek; ,that it thereafter cOf,tinued to flow therein unclaimed, u,ntH in, the. month of June, 1889, the plnintiff, at a point on said creek :some distapce below where defendant so returned it, 10catlld 2,000 inches thereof, and thereafter continucqtouse it for milling purposes, concentrating the ore from its mines, UJ:ltil July, 1891, when the defendant, at a point on one of its ditches above its mill,so constructed a flume as to carryall the water of said creek, during the of apprl,priation and season of .low water, around and beyond the from any use diversion by plaintiff, apd thereby prevented, therllof; .a lid that aU and water-rights I1re situated upon can the publi(llands of the United States. .Under as the priQr ll.ppropriator. now. so change the place of use the to deprive the plaintiff thereof? iii! the,question for deof . . . termination. With t!;\efirst development oLtl1e Pacific coastpy, the American w!'!<ter becl!-llle an indispensable factor in mining, agricultural, interests,. and with its. early use began the formularules for its. regulation. rules were by ,the, courts and