*523

not that the Hewitt law constituted a con- | of a state legislature impairing the obliga tract between the state and the banks, which tion of a contract is sustained, and it is the exempted the banks from this taxation, but duty of the Federal courts as well as of the was that the board of councilmen was 'es- state courts to see to it that no act of a state topped to deny the alleged contract because legislature is avoided on the pretext of*imof the decree of the Franklin circuit court. pairment of the obligations of a contract, This is explicitly stated in the decree as the when in fact there is no contract to impair. ground of the decree, and the decree could Here this court and the highest court of the have rested on no other ground, as the suit state of Kentucky agree that there is no conwas in effect a suit to enforce the state court tract, and yet a valid law of Kentucky is decree, and, conceding the potency attributed overthrown on the pretence of a contract to the doctrine of res judicata, the circuit which confessedly has no existence. The court of the United States could not have ex- reason given is that the Federal court once ercised an original judgment on the question held that there was a contract, when, in of contract or not, but was compelled to ac-truth, that court held that there was no concept the existence of the contract as "established" by the decree of the Franklin circuit

court.

tract, but that defendant in error was estopped to assert that fact by reason of a judgment of the state court, which has since been duly vacated. The decision is, therefore, not based upon any provision of the Federal Constitution, but upon a rule of general law as to the conclusiveness of a judg ment. But that rule of general law is, like any other, subject to modification or change by the state, and it is as true of Kentucky as of Tennessee that the rule of res judicata as applied to taxes does not embrace other taxes than those immediately in litigation. Repeated decisions of this court are that a Federal judgment is entitled to the same consid

I think it follows that when a decree rests on the establishment by a prior decree of a certain conclusion of law, such ground of the prior decree cannot be treated as merely reasons for the later decree, which, as mere reasons, may be ignored; and that this must necessarily be so when the court rendering the later decree is shut up to the single question of estoppel. This being so, I differ entirely from the view that the controversy in the Federal court was at large as to the force and effect of the Hewitt law as a contract exempting the banks from taxationeration as a state judgment, "no more and no not only for the specified years, but for all other years. The decree cannot be treated as giving to the Franklin circuit decree a wider scope than the law of the state allowed, and the law of the state was that the doctrine of res judicata is not applicable to taxes for years other than those under consideration in the particular case. See Union & Planters' Bank v. Memphis, 189 U. S. 71, 75, 47 L. ed. 712, 715, 23 Sup. Ct. Rep. 604, and cases cited.

less," and we held in Union & Planters' Bank v. Memphis that what effect a judg ment of a state court shall have as res judi cata is a question of state law.

In my judgment the state courts, in rendering decree for the taxes of 1893 and 1894, did not refuse to give the Federal decree such effect as it was entitled to.

Of course, I express no opinion as to the taxes for 1895-6-7 and 8, the immediate subject of the bill in the United States court. The situation of that case is peculiar. The decree of that court was affirmed in this court on appeal by an equal division, May 15, 1899. 174 U. S. 800, 43 L. ed. 1187, 19 Sup. Ct. Rep. 881. Leave was subsequently grant

circuit court for leave to file such bill as counsel might be advised. The present defendant in error (appellant there) accord

It is true that the decree of the United States circuit court enjoined the taxes involved in that suit, and also the taxes for subsequent years, but this was upon the express ground that the decree of the state circuit court had established a contract of ex-ed by this court to appellants to apply to the emption during the corporate existence of the bank; and whatever the terms of the latter decree, the state law permitted a renewal of the controversy in respect of taxes not di-ingly applied to that court for leave to file a rectly involved. To apply the Federal decree to any other than the taxes enumerated is to hold that matters of public law can be placed by estoppel beyond the power of reconsideration, a doctrine not heretofore favored by this court. Boyd v. Alabama, 94 U. S. 645, 24 L. ed. 302; Brownsville Taxing Dist. v. Loague, 129 U. S. 493, 32 L. ed. 780, 9 Sup. Ct. Rep. 327; O'Brien v. Wheelock, 184 U. 8. 450, 46 L. ed. 636, 22 Sup. Ct. Rep. 354.

It is the duty of the state courts as well as of the Federal courts to see to it that no act

bill of review, which was denied. 120 Fed. 165. The case was then carried to the circuit court of appeals for the sixth circuit, and that court affirmed the order of the cir cuit court. 124 Fed. 18. The court stated that the judgment of the Franklin circuit court rested on a former decision of the court of appeals of Kentucky, holding the revenue act of 1892 void as an impairment of the state's contract with the banks, and that, after the decree of the United States circuit court, the court of appeals of Kentucky over

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*524

ruled its former decision; and the United | Submitted December 3, 1903. Decided DeStates court of appeals then held that the consequent reversal of the Franklin circuit judgment furnished no adequate ground for the revision of the decree of the United States circuit court.

My Brothers Brewer, Brown, and maintained and operated over the strip. By Peckham concur in this dissent.

the act of sale, which was executed by both parties, it was declared to be a part of the consideration for the transfer "that the gran

MATILDA R. BEASLEY and Joseph C. tee or its assigns shall not build

TEXAS & PACIFIC RAILWAY COM- fendant purchased the road from the gran

826, chap. 517, U. S. Comp. Stat. 1901, p. | to be competed with in the way of railway 547] we have jurisdiction, and the motion conveniences. Norcross v. James, 140 Mass. must be overruled. Merrill v. National 188, 192, 2 N. E. 946. As to an implied conBank, 173 U. S. 131, 43 L. ed. 640, 19 Sup. | tract, that would be a fiction, and the plainCt. Rep. 360. See Great Western Teleg. Co. tiff's rights, so far as the question of policy v. Burnham, 162 U. S. 339, 342, 40 L. ed. | is concerned, would not be enlarged by adopt991, 992, 16 Sup. Ct. Rep. 850. ing that form. See Lincoln v. Burrage, 177 Mass. 378, 380, 52 L. R. A. 110, 59 N. E. 67. Whether the true theory of equitable restrictions is the same as that of covenants running with the land, or different, as their

The act of sale gives its own definition of the word "depot," but no question is made that the depot intended to be built is within the prohibition of the instrument in that and other respects. We assume that if the plain-historical antecedents are different in part, tiff's grantee had built the structure it would have broken its agreement. We also assume, for the purposes of the case, without deciding, that the contract, as a contract, is not void, although similar contracts have been pronounced void in some of the cases cited below. On these assumptions the question is how far the burden of that agreement passed to the defendant, and whether, at least as against the defendant, equity will require it to be specifically performed.

Such a liability, wherever asserted, would have to be worked out, if at all, in terms of easement, covenant running with the land, implied contract, or equitable restriction.

case.

it would seem that the two must have somewhat similar limits. With regard to injunctions, we see in art. 298, 3, of the Code of Practice, cited by the plaintiff, no reason to suppose that the law of Louisiana is peculiar in any way affecting the present Whatever the form which the attempt to restrict may take, obviously it is not desirable to allow large tracts of land to be tied up and cut off from the ordinary incidents of ownership, according to the invention of the owner, in perpetuity, in favor of other large tracts which may coine by division into many hands. La. Rev. Civil Code, art. 656 (652). See Parish v. Municipality, No. 2, 8 La. Ann. 145, 169. If such restrictions should be enforced without limit in equity as against all purchasers with notice, the practical result would be an unlimited extension of easements; since notice always can be secured by registration. Easements hitherto have been confined pretty narrowly, both in quality and in space. Equitable relief has been refused

Although the Louisiana Code recognizes such servitudes "as the prohibition of building on an estate, or of building above a particular height" (Rev. Civil Code, art. 728 [724]; see art. 718 [714]), and although it has been held at common law that such a servitude for the benefit of neghboring land may be created within reasonable limits, and created by words of covenant (Ladd v. Bos-upon a covenant by a grantee not to open or ton, 151 Mass. 585, 588, 24 N. E. 858; Brown v. O'Brien, 168 Mass. 484, 47 N. E. 195; compare La. Rev. Civil Code, art. 743 [739]), it was not argued that there was an easement in this case. It would be questionable whether the obligation was "not imposed on the person or in favor of the person, but only on an estate or in favor of an estate" (La. Rev. Civil Code, art. 709 [705]; Code Napoleon, 686); whether it was not, in the words of Marcadé, commenting on this article of the Code Napoléon, a servitude réelle entachée de personnalité." 2 Marcadé, 627. "There can be no prædial servitude when the object is merely to satisfy the wants of the present owner." Sohm, Inst. Roman Law, Ledlie's transl. § 56, II., p. 262. Apart from the peculiarities of Louisiana law, there would be almost equal difficulty in regarding the agreement as a covenant the burden of which ran with the land according to the principles of the common law, and for substantially the same reason. It is true that the covenant is negative, but it does not benefit the use and occupation of the plaintiff's land physically, and is not intended to. It is intended simply to improve the market value of that land by giving to it a right not

work a quarry upon his land adjoining the land conveyed, in a suit between assignees of the original grantor and grantee. It was a mere covenant against competition. Norcross v. James, 140 Mass. 188, 2 N. E. 946. On the other hand, a covenant by a grantee not to sell sand from half an acre was enforced against the grantee's son and grantee in favor of the grantor in Hodge v. Sloan, 107 N. Y. 244, 17 N. E. 335, and in old times it would seem that a covenant in connection with a gift of a mill in Tenbury not to raise another mill in Tenbury might have been enforced against the heir of the covenantor. Y. B. 5 Edw. III., 57, pl. 71; S. C. 7 Edw. III., 65, pl. 6, 7. Of course, there are numberless cases in which contracts have been enforced which in a more immediate sense affected the occupation and enjoyment of the quasi dominant land. It is to be noted, too, that the restriction is confined to a narrow strip, which very likely might have been subjected to a servitude of way.

We do not think it necessary to decide whether the foregoing*general considerations would be enough to prevent the burden of this agreement falling on the defendant, or whether the allegation which has been quot

*498

tives.

ed, and which means no more than that the | idle form. The bill alleges that there is no defendant bought with notice, is enough to public necessity or demand for a depot withestablish a relation of contract or quasi con- in the stipulated limit. But this no more tract between the parties. There are more could be tried for the purpose of collaterally specific obstacles in the way of the bill. impeaching the decision of the railroad coinWhether a railroad station shall be built in | mission than could the purity of their mo a certain place is a question involving public interests. Assuming that a contract like the present is valid as a contract, and making the more debatable assumption that the burden of the contract passed to a purchaser with notice, it does not follow that such a contract will be specifically enforced. Illegality apart, a man may make himself answerable in damages for the happening or not happening of what event he likes. But he cannot secure to his contractor the help of the court to bring that event to pass, unless it is in accordance with policy to grant that help. To compel the specific performance of contracts still is the exception, not the rule, and courts would be slow to compel it in cases where it appears that paramount interests will or even may be interfered with by their action. It has been intimated by this court that a covenant much like the present should not be enforced in equity, and that the railroad should be left at liberty to follow the course which its best interests and those of the pubNe demand. Texas & P. R. Co. v. Marshall,

It is objected that the foregoing was not the ground of the demurrer. But as was ob served by the court below, other grounds are open on demurrer ore tenus, and apart from that consideration, if it appears that an injunction would be against public policy, the court properly may refuse to be made an instrument for such a result, whatever the pleadings. The defendant may desire the relief to be granted. It is suggested that it does. But the very meaning of public policy is the interest of others than the parties, and that interest is not to be at the mercy of the defendant alone. See Northern P. R. Co. v. Washington, 142 U. S. 492, 509, 35 L. ed. 1092, 12 Sup. Ct. Rep. 283. Decree affirmed.

Mr. Justice Brewer concurred in the result. Mr. Justice Brown took no part in

the decision.

(191 U. S. 532)

TOLTEC RANCH COMPANY, Plff. in Err.,

บ.

GEORGE COOK, S. N. Cook, Alfred Ward, George Ward, G. J. Wells, C. F. Wells, Joseph Dudley, and Charles Dudley.

136 U. S. 393, 405, 34 L. ed. 385, 390, 10 Sup. Ct. Rep. 846; Northern P. R. Co. v. Washington, 142 U. S. 492, 509, 35 L. ed. 1092, 1098, 12 Sup. Ct. Rep. 283. See further, Marsh v. Fairbury, I. & N. W. R. Co. 64 Ill. 414, 16 Am. Rep. 564; People ex rel. Hunt v. Chicago & A. R. Co. 130 Ill. 175, 184, 22 N. E. 857; St. Joseph & D. C. R. Co. v. Ryan, 11 Kan. 602, 15 Am. Rep. 357; Pacific R. Co. v. Seely, 45 Mo. 212, 100 Am. Dec. 369; Florida Adverse possession of land within the 10-mile

C. & P. R. Co. v. State, 31 Fla. 482, 508, 20
L. R. A. 419, 13 So. 103; Currie v. Natchez,
J. & C. R. Co. 61 Miss. 725, 731; Holladay v.
Patterson, 5 Or. 177; Texas & P. R. Co. v.
Scolt, 23 C. C. A. 424, 429, 37 L. R. A. 94,
41 U. S. App. 624, 77 Fed. 726.

The difficulty is illustrated as well as made greater in the case at bar. There is in Louisiana a railroad commission having authority to require all railroads to build and maintain depots. La. Const. 1898, art. 384. That fact is enough to suggest the possibility of a conflict if an injunction were granted.

Adverse possession-of lands within
gressional land grant.

con

limit of the grant to the Central Pacific Rallroad Company, made by the act of Congress of July 1, 1862 (12 Stat. at L. 489, chap. 120), as amended by the act of July 2, 1864 (13 Stat. at L. 356, chap. 216), under a claim of right, and for the period prescribed by a state statute of limitations, transferred the title, although the patent to the railroad company in pursuance of such grant had not been issued.

[No. 48.]

Argued and submitted November 3, 1903.
Decided December 21, 1903.

But further, although it was not pleaded, it I State of Utah to review a judgment which

was admitted at the bar that the commission had ordered the erection of the station in dispute. It is true that this admission was coupled with charges of improper influence. But such imputations would not be tried or listened to in a collateral proceeding like this. It is apparent, therefore, that if the facts appeared of record an injunction would be denied, and that as soon as they do appear it must be denied, so that a trial would be an

N ERROR to the Supreme Court of the affirmed a judgment of the District Court of the First Judicial District, Box Elder County, of that State, entered upon a verdict for defendants in a suit to quiet title. Affirmed. See same case below, 24 Utah, 453, 67 Pac. 1123.

Statement by Mr. Justice McKenna:
The Toltec Ranch Company, a California
1. See Adverse Possession, vol. 1, Cent. Dig.

§ 36.

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537

1123.]

The question was answered in the affirmative. The chief justice of the state granted this writ of error.

corporation, brought this action in 1901 in | vail as a bar to the action when it appears the district court of the first judicial district, that the patent of the United States governBox Elder county, state of Utah, to quiet ment was not issued to the plaintiff until title to the S.E. of the S.E. of section 27, January 20, 1900." [24 Utah, 453, 67 Pac. township 8, north of range 2 west, Salt Lake | meridian, United States survey. Title in fee was alleged. The defendants answered separately, claiming different portions of the land, and each alleged peaceable, continuous, and adverse possession under claim of title in himself and grantors adversely to the plaintiff for more than thirty years, and that plaintiff's cause was "barred by the statute of limitations as provided by §§ 2856 and 2872 inclusive, of the Revised Statutes of Utah." Under these sections to constitute a bar there must be an adverse holding for at least seven years.

The title of plaintiff, it was admitted, was derived as follows: Patent from the United States dated January 20, 1900, to the Central Pacific Railroad Company; the railroad company by deed dated October 17, 1895, to D. P. Tarpey; the latter and wife to M. F. Tarpey by deed December 8, 1895; M. F. Tarpey to plaintiff, October 17, 1896. The patent to the company was issued in pursuance of the grant to the company made by the act of Congress approved July 1, 1862, as amended by the act of July 2, 1864, to aid in the construction of a railroad and telegraph line from the Missouri to the Pacific ocean. 12 Stat. at L. 489, chap. 120; 13 Stat. at L. 356, chap. 216.

It was admitted that the land in controversy was within the 10 mile limit of the grant to the company, and that the map of location of the railroad was filed in the office of the Secretary of the Interior on the 20th of October, 1868.

Messrs. Maxwell Evarts, Lindsay R. Rogers, and T. D. Johnson for plaintiff in error.

Mr. B. H. Jones for defendants in error.

*Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court:

The case is in narrow compass. The question presented is whether adverse possession under claim of right for the period prescribed by the statute of limitations of Utah before patent was issued by the United States can prevail against the latter. It has been decided by this court that adverse possession of land gives title to it and all of the remedies which attach to the title. This was expressly ruled in Sharon v. Tucker, 144 U. S. 533, 36 L. ed. 532, 12 Sup. Ct. Rep. 720. The suit was a bill in equity to establish, as matter of record, a title acquired by adverse possession, and it was brought against those who, but for such acquisition, would have been the owners. Mr. Justice Field, speaking for the court, said:

"It is now well settled that by adverse possession for the period designated by the statute, not only is the remedy of the former owner gone, but his title has passed to the occupant, so that the latter can maintain ejectment for the possession against such former owner should he intrude upon the premises. In several of the states this doctrine has become a positive rule by their stat utes of limitations declaring that uninterrupted possession for the period designated

It was also admitted that no claim of any right or title to or in the right of way of the railroad company across the lands in controversy was made by any or either of the defendants. The defendants introduced evidence to sus- to bar an action for the recovery of land tain the averments of their answers.

shall of itself constitute a complete title. Leffingwell v. Warren, 2 Black, 599, 17 L. ed. 261; Campbell v. Holt, 115 U. S. 620, 623, 29 L. ed. 483, 485, 6 Sup. Ct. Rep. 209." See also Shelby v. Guy, 11 Wheat. 361, 6 L. ed. 495.

The case was submitted to a jury on special interrogatories, and the jury found that the defendants had been in possession of the land claimed by them, either by themselves or their predecessors and grantors, from some time in 1868 to the commencement of Adverse possession, therefore, may be said the action. The jury also returned the fol- to transfer the title as effectually as a conlowing verdict: "We, the jury empaneled in veyance from the owner; it may be considthe above-entitled cause, find the issues ered as tantamount to a conveyance. And joined herein in favor of the said defendants the Central Pacific Railroad Company had and against the plaintiff, no cause of action." the title. Deseret Salt Co. v. Tarpey, 142 U. Judgment was entered upon the verdict. It S. 241, 35 L. ed. 999, 12 Sup. Ct. Rep. 158. was affirmed by the supreme court of the It would seem, therefore, an irresistible constate. The court said, after discussing ques-clusion that it could have been transferred tions with which we are not concerned: "The next question for consideration is whether the statute of limitations can pre

by any of the means which the law provided. It is, however, contended otherwise, and Ankeny v. Clark, 148 U. S. 345, 37 L. ed. 475,

534