in this court a motion to dismiss the appeal from the failure to grant a temporary writ of injunction. This motion has been submitted with the case.

C. C. Dorsey, of Denver, Colo. (Albert Rathbone, Arthur H. Van Brunt, and Albert Stickney, all of New York City, Gerald Hughes, of Denver, Colo., and Joline, Larkin & Rathbone, of New York City, on the brief), for appellant.

Joel F. Vaile, of Denver, Colo. (Elroy N. Clark and Russell G. Lucas, both of Denver, Colo., on the brief), for appellees.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH, Circuit Judge (after stating the facts as above). This case has been submitted upon the correctness of the ruling on the motions to dismiss and the refusal to pass upon the application for a temporary injunction with an elaboration and care that is to be approved. It has been examined with great care, but it cannot be expected that this court will in an opinion review all the hundreds of authorities cited.

The motions to dismiss were filed under rule 29 (188 Fed. xix, 109 C. C. A. xix) of those in force February 1, 1913, and have the force and effect of demurrers. In the consideration of such motions the court cannot consider affidavits filed by defendants on disputed questions of fact. This additional difficulty is met with at the outset that, while many affidavits were introduced and are in the record offered by both the complainant and defendants, they were offered on the application for a temporary injunction and not on the motion to dismiss.

Inasmuch as it seems desirable that the court first pass on the motions to dismiss, the court, in considering them, can only consider the third amended and supplemental bill, including, however, the exhibits incorporated therein and such additional matters as are conceded by the complainant.

[1] No allegations were made as the basis of reformation of the mortgage (see 27 Cyc. 1093), and no specific prayer or argument therefor has been made. The question, then, is whether, under the allegations of the petition, the plaintiff had a mortgage on the stock in the Junction Company owned by the New Midland Company or could maintain this action without such mortgage. In its argument the complainant says:

"Like the deed from Mr. Olcott to the Midland Company this mortgage did not expressly describe the Junction stock nor any corporate stock whatever." This requires a critical examination of the mortgage to see what, if any, language therein includes the stock. The mortgage provides

that:

"Whereas, the railway company has, by virtue and in pursuance of the authority granted it by the laws of the state of Colorado and its certificate of incorporation, purchased and acquired and now owns, holds, maintains and operates the lines of railroad formerly held, owned, maintained and operated by the Colorado Midland Railroad Company."

And later provides that:

"Whereas, the railway company, in the exercise of the powers in that behalf possessed by it under the laws of the state of Colorado, and its certificate

of incorporation, and for the purpose of paying and discharging its obligations and indebtedness created and incurred in the purchase of the said property of said the Colorado Midland Railroad Company, and of paying and discharging other obligations and indebtedness created by it, and in order to provide for the payment, funding, exchanging, and retiring of the said mortgage bonds issued by said the Aspen Short Line Railway Company, and to provide for the purchase of the railroad and railroad property of said the Busk Tunnel Railway Company, in case it shall be deemed advisable and proper to make such purchase, and for its other lawful corporate purposes, and in accordance with resolutions duly adopted by its stockholders and by its board of directors at meetings of said stockholders and of said board of directors, duly and regularly called and held, has determined to make and issua its first mortgage gold bonds to the aggregate amount of ten million dollars ($10,000,000)," and "hath granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents doth grant, bargain, sell, alien, remise, release, convey and confirm unto the trustee, party of the second part, and to its successor or successors in the trust herein, all the railways, railway property and franchises of the railway company, party of the first part, of every kind and nature, whether now owned or hereafter to be acquired, and however owned, held or enjoyed, and more particularly described as follows: The railway and lines of telegraph formerly owned by the Colorado Midland Railroad Company, now owned by the railway company. party of the first part. All the property, right, title and interest of the railway company in and to the following railroads and railroad properties leased by the railway company: (3) The railroad of the Rio Grande Junction Railway Company, a corporation of the state of Colorado, extending from a connection with the said road of said the Denver & Rio Grande Railroad Company at or near the mouth of Rifle creek aforesaid, in a southwesterly direction to a connection with the said road of said the Denver & Rio Grande Railroad Company on the east line of the northwest quarter of section twenty-three (23), township one (1) south, range one (1) west of the Ute meridian, county of Mesa, state of Colorado, being about sixty-two and eight hundredths (62.08) miles in length, more or less. * #* Also all corporate franchises of every nature whatsoever, relating to said lines of railroad and telegraph, owned or leased by the railway company as aforesaid, together with all and singular the income, endowment, advantages, tenements, hereditaments and appurtenances to said lines of railway and telegraph belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, tolls, incomes, rents, profits and issues thereof, and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, present or prospective, of the railway company in and to the said lines of railway and telegraph above described and owned or leased by the railway company, and every part of the same and every parcel thereof, with the appurtenances."

**

It is apparent that the Old Midland Company and the New both held at least two valuable claims in the Junction property: First, the stock interest for 7,3711⁄2 shares; and, second, a lease jointly with the Denver Company of its visible property. In the foreclosure proceeding of the Old Midland of 1897 the master's deed to Frederick P. Olcott transferred all the property held under the receivership. This was on the 8th day of September, 1897. In this deed was the following description:

"Stock of the Rio Grande Junction Railway Company, seven thousand three hundred seventy-one and one-half (7,3712) shares, par value one hundred dollars ($100.00) per share."

There was also included in this deed the Busk Tunnel Railway Company property. When Olcott came to deed the property over to the New Midland Company there was omitted both the stock in the Janic

tion Company and the Busk Tunnel Railway, and both were omitted. from the trust deed to the complainant, but there was specifically carried therein the leasehold interest in the Junction Railway.

The primary question is whether the trust deed accurately and specifically described the property here chiefly in question, viz., the stock in the Junction Company. Thompson on Corporations (2d Ed.) par. 2571. It is claimed that the whole transaction gave the Old Midland Company an equitable interest in the Junction Company and its property. As sustaining this, the appellant cites the unpublished opinion of the presiding judge of this court in the case of Ames et al. v. Union Pacific Railway Co. et al.; National Waterworks Co. v. Kansas City (C. C.) 78 Fed. 428; Guaranty Trust Co. v. Atlantic Coast Electric R. Co. (C. C.) 132 Fed. 68; Id., 138 Fed. 517, 71 C. C. A. 41; New England Waterworks Co. v. Farmers' Loan & Trust Co., 136 Fed. 521, 69 C. C. A. 297; In re Rieger, Kapner & Altmark (D. C.) 157 Fed. 609; Linn & Lane Timber Co. v. United States, 196 Fed. 593, 116 C. C. A. 267; and numerous other cases.

Let it be conceded that this position is correct, and let it further be conceded that the same equitable interest passed to the New Midland Company. There is nothing to prevent an owner of such a character from subdividing its interest and conveying one part to one vendee and another part to another. The deed to Frederick P. Olcott conveyed both the stock interest in the Junction Railway and the lease upon that railway. When he came to deed to the New Midland Railway he deliberately omitted the stock and the Busk Tunnel Railway, and they were omitted from the trust deed to the complainant, but said trust deed expressly covers the lease upon the Junction Railway. If the New Midland Railway ever acquired this stock it acquired it, not by the deed from Olcott, but by delivery to the New Midland Company. It appears that on December 8, 1897, Mr. George W. Ristine, president of the New Midland Company, sent the certificate for these shares of stock to the secretary and treasurer of the Junction Company, with a request that a new certificate be issued and sent to him. This was done, and the stock has always been in the possession of the New Midland Company until pledged to the Equitable Trust Company.

From these undisputed facts it is clearly apparent that the trust deed. to the complainant never covered it. The truth is that this stock had always been carried on the books of the Old Midland Company at a valuation of $1. It had paid no dividends up to the first foreclosure and was at that time regarded as of substantially no value, except for its control over the Junction Company. If the New Midland Company had not only a lease upon but a stock interest in the Junction Company, and in addition thereto had some general equity in the property of the Junction Company, by deliberately striking the stock from the description in the trust deed it distinctly evidenced its purpose to separate its interests in the Junction Company, and the complainant, having no mortgage upon the stock cannot, maintain an action to determine where the title to the stock is or to enjoin any proceedings in connection therewith under its trust deed.

In what has been said there has been no reference to the difference 135 C.C.A.-2

between existing property in a railroad company at the time of the execution of a mortgage and after-acquired property. The latter is always of necessity covered by some general language, as no one knows what the specific description of after-acquired property is to be. It is therefore essential that no specific description of it be inserted, but that it be covered by a general description. But in this case the stock in question had been in existence for eight years as the property of the Old Midland Company. It and the leasehold had both been specifically described in the deed to Olcott. When the company came to give its trust deed to complainant, it left the leasehold in the description but struck out the stock. As this property was in existence and the property of the railroad, there can be no reason assigned why a specific description of the leasehold was inserted and the stock omitted and why this stock was at all times allowed in the custody of the railroad company, except the quite manifest one that it was not then regarded as of intrinsic value.

[2] It is claimed, however, that the complainant has the rights of a creditor and that it can maintain the action in its capacity as a general creditor of the New Midland Company, and attention is called to the fact that the complaint alleges that the New Midland Company is insolvent, but it is not alleged in the complaint that the property mortgaged is not sufficient to ultimately realize the amount of the trust deed; and the mere fact, if it be a fact, that the Midland Company owes other parties would not entitle the complainant to maintain this suit, if its own security is adequate to meet the obligations due it, nor is there anything in the case of Central Improvement Co. v. Cambria Steel Co., 210 Fed. 696, 127 C. C. A. 184, which would tend to sustain any such right upon its part. No reason is given in the final bill why the Junction Company could not declare a forfeiture of the lease under its terms, if the stipulated rent is not paid and there is no basis for any other of the injunctive relief sought.

The motions to dismiss were properly sustained. This does not amount to a holding that the allegations of the bill if made by the New Midland Company or its receiver might not be sufficient.

The motions to dismiss having been sustained, there was nothing on which to issue an injunction, and, without passing on the motion to dismiss the appeal from the failure to grant an injunction, the action of the court in both matters is affirmed.

AMIDON, District Judge, dissents.

(219 Fed. 116)

MACKAY v. UINTA DEVELOPMENT CO. (Circuit Court of Appeals, Eighth Circuit.

No. 3411.

November 10, 1914.)

PUBLIC LANDS 19-RIGHT OF PASSAGE FOR STOCK-UNLAWFUL OBSTRUC

TION.

Act Feb. 25, 1885, c. 149, § 3, 23 Stat. 322 (Comp. St. 1913, § 4999), which provides that "no person by force, threats, intimidation, or by any fencing or inclosing or any other unlawful means,

shall pre

vent or obstruct free passage or transit over or through the public lands,"

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

prohibits every method that works a practical denial of access to and passage over the public lands either by persons or stock, and the owner of a large quantity of railroad grant lands, comprising the odd-numbered sections, while the alternate sections are public lands, the entire tract being uninclosed, cannot by a warning notice deprive a stock owner of a reasonable right of way for his stock across the tract, or make him a trespasser and liable in damages because, in crossing, his stock necessarily passes over and consumes grass from some of the land of the private owner.

[Ed. Note. For other cases, see Public Lands, Cent. Dig. §§ 25, 26; Dec. Dig. 19.]

Sanborn, Circuit Judge, dissenting.

In Error to the Circuit Court of the United States for the District of Wyoming; John A. Riner, Judge.

Re

Action at law by the Uinta Development Company against John C. Mackay. Judgment for plaintiff, and defendant brings error. versed.

Barnard J. Stewart, of Salt Lake City, Utah, for plaintiff in error. John W. Lacey, of Cheyenne, Wyo. (T. S. Taliaferro, of Rock Springs, Wyo., and Herbert V. Lacey, of Cheyenne, Wyo., on the brief), for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and POPE, District Judge.

HOOK, Circuit Judge. The Uinta Development Company sued Mackay for damages for trespass by trailing his sheep across and depasturing its lands in Wyoming. Mackay denied that his acts constituted a trespass, asserted a right to cross the public lands and to do what was necessary for its exercise, and counterclaimed for damages. because the company obstructed his passage and wrongfully caused his arrest and criminal prosecution for trespassing. Upon a trial by the court without a jury, a general finding was made and judgment. rendered for the company. There were no special findings.

For the purposes of this case the company may be regarded as the owner by purchase of all the odd-numbered sections in a large tract of land formerly a part of the land grant by the United States in aid of the construction of the Union Pacific Railroad. Almost all of the intervening even-numbered sections remained unoccupied public domain. The tract of land in question with its odd and even numbered sections extended 20 miles from north to south. The particular description in the petition of the company's holdings indicates that the tract was 15 miles from east to west. One of its witnesses testified that the distance was about 58 miles. The lands of the company and the public lands were open and unfenced, and there was nothing on the face of the earth by which they could be readily distinguished from each other without a knowledge of surveying. The country was adapted and largely devoted to the sheep industry. The company was so using its property and also the intervening and adjacent public lands. Mackay was likewise in the sheep business. His spring, summer, and fall ranges were north and northwest of the tract in ques

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes