CAULK V. PACE.
709
"An obstruction in front of one's own premises may prevent him from entering upon the highway, and thus interfere with a peculiar right. But when he is once upon the nighway he is a traveler, jike the rest of the public; and though an obstruction at a distance may as effectually prevent ingress and egress as when It is opposite his door, yet thr. right to pass along the way is one which he shares in common with the general public." Gould, Waters. 247,248.
J:Idged by this law, the complainant cannot recover upon the ground that he is a riparian owner of land upon Quantuc bay. Nei· ther can he recover upon the ground that his boats navigate these waters, and are obstructed in navigating the waters opposite Potunk point by the defendant's bridge; for the injury thus resulting to him is not different in kind from the injury sustained by the general public using these waters. If, upon this ground, the complainant could maintain an action, as similar action might be maintained by every person owning a boat on the Great South bay. The bill must be dis· missed upon the ground that the complainant has shown no special injury entitling him to maintain the action.
CAULK v. PACE et· a1. (Circuit Court of Appeals, Fifth Circuit. January 9, 1S93.) No.55.
1.
EQUITABLE ESTOPPEL·-CLAIM OF TITLE TO LANDS.
In 1844 (.De S. settled upon a tract of land in Florida, cleared and fenced. a portion thereof, set out several acres of orange trees, built a house, and resided in It his death, in 1857, leaving a widow, and one child by.lIer, and several children by a former wife. The latter children continued to reside upon the land, improving and cultivating the same. The widow and her child went to live with her father, Who, in 1857, purchased the land from the state at $1.25 an acre, and took a patent in his own name; but he never took or daimed possession of the land, and in fact disclaimed any interest adverse to the children, except for reimbursement of the purchase price. He died in 1861, and executors, who eontinued to exercise their functions until 1883, never made any cIai'm to the lands, but, on the contrary, one of them, as an heir ·Jf the testator, executed a deed to the children for a nominal cOllilideration, reciting therein that the legal title was taken by his testator merely in trust for the heirs of S. S.'s widow never claimed any interest in the land as heir of her father, but recognized the title of S.'s children by signing a receipt as guardian for her daughter, as one of the heirs of S., for her distributive share of the proceeds of an orange crop. Afterwards the widow married again, and her son by that marriage brought suit in 1889, after her death, to recover an interest in the land as her heir. S.'s children had always held possession, claiming title against all the world, and in the mean time one of them had bought out the interests of the others, had greatly improved the property, and its value had increased many fold. Held that, on this state of facts, the heirs of thlJ maternal grandfather, and particularly the plaintiff, as heir of S.'s widow, were equitably estopped from claiming allY interest in the land. 'l'he 2o-years statute of limitations in force in Florida prior to the war began to run against the maternal grandfather before his death, and against his daughter, the widow, l1ntil December 13, 1S!)l, when, by an act of the legislature, the running of the statute was suspended. On February 27, 1872, a new statute was enacted, which required actions for the recovery of lands to be brought within 7 years, as against adverse possessors under claim of title, and provided that all actions not theretofore
2.
LIMITATION OF ACTIONS--RUNNING OF STATUTE.
7:1:0
FEDERAL REPORTER,
vol. 53.
:sIIdl11l not be a:ffeote(1 ·by the limitations of .the act uht1l 6 months from its approval.' Held,.t1ult thiS statute'wasacompletedefense, at least as to
bal'1l4d,.oll that wOuidibe barred within 60' days from ,the passage thereof,
so much of the land'8.Swas actually under inclosure and cultivation prior tothe$tay Jaw of 1861J.i
APPeal 'the Court of the United States for the North· .... ' erll District of Floridjt, .' ,'In'Eqpity,, Bill by 'William H. against,Ella A, Pace and oth· ers to ,an i;ntel'egt in lands, . In the circuit court the bill was Complainant appeals,. '"Affirmed. " '>. ',,:' . Richard;H, Liggett, (John E. Hartridge, on the brief,) for appellant. E, K.Foster, for Before PARDEE miq McCORMICK, Circuit Judges, and LOCKE, District Judge, . , , , PARDEE1,Circuit Judge, Onthe:27th of February, 1889, the com· plainant, William H, Caulk, allegirighimself a citizen of Kentucky, filed his bill in the circuit court against Ella A. Pace and James E. Pace, her husband, and Mary C, Doyle and Arthur Speer, who are residents of Orange in the state of Florida, and citizens of the state of Florida, and Addie T, Farrar, and George ,Farrar, who are residents of the Texas,' and the First National Bank of San· ford, a corporation doing business in the town of Sanford, state of Florida, and the Lyma,n Bank, a doing business in the town of Sanford, state of Florida, and a citizen of. said state, therein asserting, title as one of the heirs of his mother, Julia A. Caulk, to an undiVided one tentho( lot No. 1; section 31, township 19 S. of range 31 E.,Q,l'ange county; state of Florida, deraigIiing title under the will of Jsa.iah D, Hart, who acquired the title by patent from the state, The bill shows that the defendant Ella A, Pace and her hus· band are in possession Of the property; that for various years since 1885 the haa netted, from the sale of fruit, large revenues; that Ella A. Pace and her husband have mortgaged the grove to the Lyman Bank of Sanford to secure a lOan of $17,479.95 for the term of one yelLr; that the First National Bank of Sahford is the successor of the LyiIuI.n Bank, and is the holder of the said mortgage; that the said Ella A. Pace and her husband have been guilty of improvidence and mismanagement in mortgaging the same; that the complainant fears the First National Bank, unless restrained, will foreclose the said which will result in. loss to the complainant, and involve him costly and troublesome lawsuits; and that the defend· ants John E, and Ella A. Pace, with the except ion of the property in question, are totally insolvent, and unable to respond in damages. The prayer of the bill is that an a<';Count may be taken of what is due the complainant, a receiver be appointed pending the litigation, an injunction issue restraining the First National Bank of Sanford from foreclosing or attempting to foreclose the said mortgage; and that, on a final hearing of the case, the court will order a partition. On the for .the appointment of a receiver and for an injunction, John E.Pace, husband of Ella A. Pace, for himself and his wife, filed a sworn answer, alleging that at the time Isaiah D. Hart pur-
CAUI.K V. PACE.
711
chased the land in question it was in the possession of the family of Dr. Algernon So Speer, then deceased; that prior to the decease of the said Speer the property had been in the possession' of said Speer, and improved by him, and an orange grove planted; that the second wife of the said Algernon S. Speer was a daughter of the said Isaiah D. Hart ; and that the said Hart did, at the time he entered the same, state that he entered it in order that the property might be preserved to the children of said Speer; and that Mrs. Ella A. Pace had purchased the interest of the other heirs of Speer, and owned the entire property. Said answer further alleges that the defendants for the last 10 years have fertilized the grove at a large. expense each year, applying for the last 6 years the Forrester fertilizer, the most expensive of any, and said to be the best adapted to improving orange trees and fruit, paying at the rate of $50 an acre for each of the said years; and, from information and belief, that at the time Isaiah D. Hart'entered the land Dr. Speer had possession of the same under a receipt given him under a pre-emption in or about 1845, being assured that when the land was confirmed to the state it would be given to him; and that for several years prior to and after his death, in 1857, up to the present time, the property has been in the peaceable and undisturbed possession of the heirs of the said Speer, and never at any time in the possession of Isaiah D. Hart or his executors. The. defendants Pace and wife reserve the right to file further answer within the delays allowed by law. Thereafter the defendants John E. Pace and Ella A. Pace, his wife, and John E. Pace, as administrator of Michael Doyle, deceased, filed a sworn answer to the bill, in which they say: "That the said William H. Caulk is not a cotenant with the defendants, nor has he any interest whatever in the lands described in the bill, and the defendants positively assert that he nor his ancestors were never in possession of said lands, but, on tba contrary, the land has been in possession of the defendants and their aL.\lestors since 1844 or 1845, adversely to any interest of anyone but themselves. They admit that the said Isaiah D. Hart purchased from the state the land described, but aver that, if he purchased the same, they are informed and believe, upon said information, that he purchased it to hold in trust for the heirs of A. S. Speer, Sr., and he never went into possession, nor exercised any rights of possession, during his life; nor did his executors, or anyone claiming under him, go into possession of or exercise any acts of possession; and, denying absolutely and unquaiifiedly that the complainant has any interest whatever in the land sought by him to be divided, they pray that the bill may be dismissed, with their cost and charges in that behalf most wrongfully sustained."
,
To this answer the complainant filed a replication. On these pleadings, none of the other defendants named in the bill having appeared or answered, the case was heard in the circuit court, and on the hearing the court entered a decree dismissing the bill, from which decree the complainant has appealed to this court, assigning as error that the circuit court erred in entering the decree dismissing the bill of complaint. The case made by the evidence is substantially as follows: In 1844 Dr. Algernon S. Speer settled in Orange county, Fla., lot No. 1, section 31, township 19 S. of range 31 E., containing 73.88 acres. This land was then in a state of transition from the United States
712
to tliestate of Florida. There is 'some evidence whicli tends to show Speer had taken sueh steps' as heeould,:<tonsidering the c&ndltion of the land, to pre·empt·tlie same according to law. Be thisltl!! it, may, he cleared the land; S'et out some six or seven acreS in orange trees; fenced a portion of it, built a house on the property, and occupied thatliouse with his family as a residence. Dr. Speer was m.arried twice. By his first wife-.-a daughter of Arthur Ginnhe ,'haid:; four children, i. e. Arthur, Algernon, Mary, and Ella. His soo6nd wife was Julia Hart, daughter of Isaiah D. Hart, by whom he had one, child, Lula. After living on the land in question for nearly: 12 years,Dr. Speer was drowned in the St. John river, on the 2d of\$eptember, 1857, leaving a widow, Julia, and the five named children. After Speer's death, the children by his first wife contino uedta'live on the place with their grandfather,' Arthur Ginn; and one of them., Ella, has lived on the place, ana been in possession of the same, up to the bringing of the suit in this case, baving purchased the: rights of the other Speer At the death of Dr. Speer, his widow, Julia, with her' daughter, Lula, werit to live with her fa· ther,Isaiah D. Hai"t, andeontinued to live with him up to his death, which occuITed September 4, 1861. On the 9th day of December, 1857, Isaiah D. Hart purchased from the state, at the rate of $1.25 an acre, the said 73.88 acres, and on the 27th .January following took titll:l in his own name under regular patent from the state. During his 'life he never took nor claimed possession of the land. The evi· dence tends strongly to show that he acquired and took title to the same tor 'the benefit of the heirs of Dr. Speer, claiming no right nor interest therein for himself,save the return of the amounts advanced as purchase money and for taxes. This appears by the testimony of witnesses reciting the conversations of Mr. Hart in relation thereto, by the recitals in the quitclaim deed made by one of the executors and heirs,anaparticularlyby his conduct in the premises. On the 27th of January, 1859, he wrote the following letter to Arthur Ginn, the grandfather of the first four of Dr. Speer's children, then residing with them on the land in question: ,,' "Jacksonville, January 27, 1859. "Arthur Ginn, Esq.-Dear Sir: I write you now more to get your views and opinions than anything else, 'as I do not wish to do anything in the matter of Doctor Speer's estate or affairs without consulting you; Therefore, as I'understand, at present it is as follows: $436 00 Account of sales of Dr. Speer's estate Olish in my hands of Dr. Speer's estate.......................... 350 00 Total .··. I. · · · · · · · · · ·.· · · · · · · · · · · · · · · ·· · · · · · · · · · · ·· · · · · · · · ··
$786 00
"Now, if this is all the estate is worth, it will all be consumed in the payment ,of debts, and will bea mere scrap in comparison to what the estate owes, and the children will not get one cent of it; and if it would pay all the debts I would not say a word: and it will be no disadvantage to the ehildren for Julia to claim her dower Of them; and, as the law gives the wife one third, exclusive of debts, it would stand about as follows: Her third woUld be about two'llundred and sixty: the amount I paid for the land, about eighty or ninety; . which 1 have paid, abont twenty; making about three hundred and seventy or eighty dollars. Now, if this pr6position was any disadvantage to the ehildren, I would not make the proposition, but it can't be any. Will 3'OU do me the favor to give me your views in the matter, and, if the
713
estate is worth more or iess, as the case may be, let me know that, too. Tulia and the babe are in excellent health. Respects to Mrs. G. and the "Respectfully, your obedient servant, I. D. Hart."
This leUer shows he not only made no claim to the land in question, and disavowed any intention to do anything to the disavantage of the children, but admitted that he had in his hands $350 belong· ing to Dr. Speer's estate. Julia Hart, the widow of Dr. Speer, on April 7, 1863, married William Caulk, by whom she had one son, William H. Caulk, the complainant in this case. She died March 17, 1871. During her life she made no claim Whatever, as heir of her father or otherwise, of any right or title to any of the land in controversy; on the contrary, she recognized her daughter, Lula Speer, issue of her marriage with Dr. Speer and one of the five heirs of Dr. Speer; a.<;l the owner of a distributive share in the lands in question; all of which clearly appears by the following receipt given by her in July, 1869: "Received, 26th of July, 1869, from Arthur Ginn, three hundred and seventyeight dollars, it being the distributive sllare of the orange crop at Fort Reid, Orange county, ]'lorida, due Lula'Speer, minor, said crop having been sold Julia A. Caulk." to Messrs. Doyle & Brantley in December, 1868.
It further appears that the executors under the will of Isaiah D. Hart, who continued to exercise the functions of executors for wany years, from 1861 to 1883, never made any claim for possession of the said lands, or any pretense of title thereto, on the part of the estate of Isaiah D. Hart; but, on the contrary, Ossian B. Hart, one of the executors. and one of the heirs of Isaiah D. Hart, in his deed to ihn heirs of Speer, executed and delivered for a nominal on the 14th of June, 1872, declared that the title and ownership of the said lands were III the heirs of Dr. Speer, and that any legal title to said lallds grl!Hted to or held by Isaiah D. Hart was accepted 11nd held by him as 'Tllstee for the heirs of Dr. Speer. From the dea"h of Dr. Speer, in 1857, to the 27th of February, 1889, when the complain· ant, William H. Caulk, instituted this suit, the heirs and assigns of Dr. Speer have been in undisturbed, peaceable possession of the said land, occupying it exclusively as their own, receiving the rents and profits, and possessing the same adversely to all the world; a.nd during this time-particularly since 1878---:'have cleared and fenced the same as far as practicable, planting some 30 additional acres in orange trees, cultivating and improving the whole by the expenditure of large sums of money for labor and commercial fertilizers; so that the insignificant property of 1857 has become one of the largest and most valuable orange groves in the state. On the foregoing evidence the complainant's bill was properly dis· missed. 1. Considering the lapse of time, the conduct of Hart, his heirs and executors, and the continued possession and occupation of the Speer heirs in their own right, the evidence sufficiently establishes that Isaiah D. Hart acquired and held the legal title to the land in controversy as a naked trustee for the Speer heirs; and Hart's hein! are equitably estopped from claiming more. As to the heirs of Julia A. Caulk, there seems to be a clear, equitable estoppel, as she collected
714 8$
Illoney,fl'om, !the Speer heirs in the 'fight of her; daughter, Lula Speer, one oftb,e'joint owners with the other Spoor heirs. 2. At the time Isaiah D. Hart acquired the legal title, the statutes of the stat", of Florida required that an action for the recovery of real property should be brought within 20 years after such cause of action accrued. Thomp. Dig. 441. This statute began to run against Isaiah D. Hart in his lifetime, and on his death continued to run against his executors, (see v. Hart, 17 Fla.507; Doyle v. Wade,23 Fla. 90, 1 South Rep. 516,) and against Julia A. Caulk, then Julia A. Speer,a feme sole, under whom the complainant claims, until December 13, 1861, whentbe legislature enacted a stay law sus· of limitation. .February 27, 1872, the legislapending the the state of Florida re-enacted a statute of. limitations for civil· actions, now infqrce, which . requires the action for the recovery ofreaJ.. .property to beb:cought within seven years, against an ad· verse possessor under claim ot title. Laws Fla. (Acts 1872, p. 20.) Under the nineteenth of the last-mentioned act, 'Which reads as follows, "411ll,ctions not heretofore barred by statute, or that will be barred within sixty days from the passage hereof, shall not be affected by the limitations of this· act until six months from the date made showing 9f the approval. hel'(:lOf/' It strong argument can that complainant's was barred at the end of six months from the '27th ofPebruary,l,812, to wit, on. August 27, 1872. See Spencer v.McBride, v. Doyle, 17 Fla. 522; Doyle v. Wade, 23 PIa. 90, 1 south. 516.. .... As to the portion of the land in question actually under inclosure and cultivated and inlproved Pt10r to the staY.lll;W of 1861, the stat· .ute of limitations of 1872 is a complete defense, as the statute had commenced to run against Isaiah D. Hart in his lifetime. The difficulty in applying the statute as a legal defense to tl;1e whole case arises from the fact that not more than six acres were cultivated, tmproved, or fenced until after the death of Julia A. Caulk, and then during the minority of the complainant. But, as we view the case, we do not care to determine whether the statute of limitations constiin equity, the tutes a coniplete legal defense to the action, complainant'sdeman4. is stale, and therefore ought not to be sus· tained·. Staleness of demand need not be pleaded. Sullivan v. Rail· road Co., .94 U. S. 8Q6,-811;Richards v. Mackall, 124 U. S. 183--188, 8 Sup. Ct. Rep. 437. In Badger v. Badger, 2 Wall. S7--94, Mr. Justice Grier,.in delivering the opinion of the supreme court, after reviewing the authorities and considering the principles upon which courts of equity act ill cases of laches and stale demands, says:
a.s
!
"Courts of equity, in of concurrent jurisdiction, consider themselves bound b:l' the statutes of limitation, which govern courts of law in like cases, lind this rather in obedience to the statutes than by analogy. In many other cases they act upon the analogy of the like limitation at law. But there is a defensepeoullar to ·courts of equity,founded on laplile of time and the staleness of j;he. claim, where no statute of limitation ,go,\erns the case. In such cases;. COJlrts ()f act upon thetr own inlierent doctrine of discouraging, the peace of society, antiquated demands, refuse to interfere where there has· been gross laches ttl' prosel.'Utlng the claim or longacquiesoonee in tlwassertion of adverse rights. Long acquiescence and laches by palties 'of; possession are productive of much. hardship and. inJuStice to
tor .
CITIZEKS'ST. R. CO. tI. CITY' OF'MEMPHIS.
715
others, ,and cannot be excused but by showing. some' actual hindrance or impediment,caused by the fraud 01' concealment of the parties in possession, which will appeal to the conscience of the chancellor."
The case of Badger v. Badger has been cited by the supreme court of the United States with approval in many cases, and has been directly affirmed, as to the part of, the decision quoted, in the following cases: . Sullivan v. Railroad Co., supra; Lansdale v. 8rnitll, 106 1J·. S. 392, 1 Sup. Ct. Rep. 350; Speidel v. Henrici, 120 U. S. 387, 7 Sup. Ct. Rep. 610; and Richards v. Mackall, supra. The authorities cited by the counsel for appellant on the doctrine of permissive possession are not applicable to this case, as there can be no doubt that the Speer heirs held, occupied, cultivated, and improved the land in controversy as their own, and under their own right. The decree dismissing the bill should be affirmed, with costs, and it is so or· dered. CITIZENS' ST. R. CO. v. CITY OF :MEMPHIS et al. (Olrcuit Oourt, W. D. Tennessee. January 4,1893.) No. 455.
COURTS-FEDERAL QUESTION-IMPAIRING OBLIGATION OF CONTRACT IN OORPORATE CHARTER.
Before the ad.option of Const. Tenn. 1870, art. 11, § 8, which required the general assembly to provide by general laws for the organization of all corporations thereafter created, "which laws may at any time be altered or repealed," certain street-railroad companies had been incorporated, and authorized to construct and operate street railways on all or any of the strfets in a certain city, without any reservation of power to alter or repeal their, charters. After the constitution of 1870 took effect, these companies became consolidated into one corporation, pursuant to Mill. & V. Code,' §§ 1263-1272, providing for consolidation of railroad companies, made applicable to street-railroad companies by Act March 26, 1887. Held that, no intention to subject the previously existing charters to alteration or repeal appearing in the constitution of 1870 or the subsequent legislation, the consolidation did not subject rights granted by the original charters to. the dominion of the state, and neither the state nor the city, under authority delegated by the state, couId .prohibit the consoUdated company from OCCUPjing a street in the city, in the exercise of the right granted by the original charters; and, as such prohibition woUld Impair the obligation of those charters, a suit by the consolidated company to restrain the city from interfering with such use of the street by the company involved a federal 'luestion. CHARTER AND FRANCHISES MUNICIPAT.t
HORSE AND STREET RAILROADS CONTROl< OF STREETS.
The right of a city, under or independently of Its charter, to regulate and control the use of Its streets, does not empower it to prohibit a streetcar comI·any from occupying and using a street for the purpose of a street railroad, in the exercise of rights conferred on the company by Its charter.
8.
SAME-ABANDONMENT.
A street-car company, Which, under authority of Its charter, had constructed and operated street raUways on certain city streets, entered Into a contract with the city to re-establish itself upon the streets with electrical power, instead of animal power, within two years. One of the streets Included in the contract had been used by the company for a spur track.and turntable only, and in the construction of the new tracks no track into that street was laid or was proposed until after the company had obtained the surrender to itself, by the city, of bonds deposited as security
