Grant Co., 168 U. S. 451, 18 Sup. Ct. 121, 42 L. Ed. 539; Green v. Bogue, 158 U. S. 478, 15 Sup. Ct. 975, 39 L. Ed. 1061; Plumb v. Goodnow's Admr., 123 U. S. 560, 8 Sup. Ct. 216, 31 L. Ed. 268; Richter v. Jerome, 123 U. S. 233, 8 Sup. Ct. 106, 31 L. Ed. 132; Corcoran v. Canal Co., 94 U. S. 741, 24 L. Ed. 190; James v. Germania Iron Co., 107 Fed. 597, 46 C. C. A. 476 (8 C. C. A.). [2] Regarding the issue of laches, it appears that, on the date of the affirmance by the New York Court of Appeals of the decision of the General Term, appellant was 22 years of age. Presumably he then knew that his mother had barred herself from ever questioning the sale of the stock by Muirheid, and that in any event, as to her, the outcome of the New York litigation was final, and that, if any right of action remained by reason of the transfer of the stock, appellant alone was its beneficiary; and yet upwards of 20 years further elapsed before the beginning of this suit. It appears that in the meantime a suit was begun by appellant in the state court at Chicago, but nearly 11 years. had passed at the time of its commencement, and it was finally dismissed for want of prosecution after pending for a number of years. It is insisted-and authorities in support are cited-that, while appellant might have brought the suit, the right of action was primarily in the trustee, and that appellant's failure to bring the suit would not be laches on his part, nor in any manner impair his right to bring it pending or on the termination of the trust. But notwithstanding the fact that his mother is still living, it appears that the trust was absolutely terminated by the proceedings of June, 1899, by the court in which it was pending, and which had appointed the Trusts Company as trustee. This termination of the trust was upon the petition of appellant, who was then 28 years of age, and of his mother. The order of the Ontario court terminated the trust, discharged the trustee, and recited, as was stated in appellant's petition for the order, that the trustee had conveyed to appellant and his mother all the trust property-including presumably any and all rights of action for the benefit of the trust estate which the trustee then had. Thenceforth it was in himself alone, and not longer in a trustee, that any right of action inhered; and yet since such termination of the trust more than 15 years passed by before this suit was commenced. The record does not disclose that appellant was laboring under any disability during all those years; indeed, the presumption of his intellectual equipment in at least ordinary degree is heightened by the record fact that he is assistant cashier in one of Chicago's largest banks. The alleged wrong, out of which the asserted right of action arose being primarily the wrong of appellee's agent the bank, if recovery were had against appellee, ordinarily it could have recourse for its loss against the agent who caused it. But any right of appellee against the bank is long ago barred by limitation, whereby, through appellant's unreasonable delay before beginning the suit, appellee would now be unable to impose the ultimate loss upon its responsible agent. We find present all those elements essential to sustain the defense of laches as a bar to appellant's asserted cause of action. Johnston v. Standard Mining Co., 148 U. S. 360, 13 Sup. Ct. 585, 37 L. Ed. 480; Twin Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328; Venner v. Trust Co., 204 Fed. 779, 123 C. C. A. 591 (2 C. C. A.); Continental Nat. Bank v. Heilman et al., 86 Fed. 514, 30 C. C. A. 232 (7 C. C. A.); Spoor v. Wells, 3 Barb. Ch. (N. Y.) 199; Jackson's Admnr. v. King's Admnr., 12 Grat. (Va.) 499. The decree of the District Court is affirmed. (246 Fed. 400) EASTERN OREGON LAND CO. v. DESCHUTES R. CO. No. 2814 1. PUBLIC LANDS 79-RAILROAD LAND GRANTS-PRIORITIES. Where S. in February, 1906, filed his application to select certain lands as forest reserve lieu lands, which applications were never dismissed or withdrawn until patents were issued in 1913, though the land was tem porarily withdrawn from entry in the meantime, the rights of S. under such patents were superior to the right of a railroad whose profile under Act March 3, 1875, c. 152, 18 Stat. 482 (Comp. St. 1916, §§ 4921-4926), granting rights of way through the public lands, was filed in 1908 and approved in 1910. 2. RAILROADS 64(2)—GRANTS OF RIGHTS OF WAY-EVIDENCE. In a suit to restrain the construction of a railroad in which defendant alleged an agreement with complainant's predecessors in interest and asked that if the bill was not dismissed the court determine the amount of damages sustained, evidence held to show that complainant's predecessors in interest did not undertake to bind complainant, who then had an option to purchase the land, by their agreement as to the right of way. 3. RAILROADS 64(2)—GRANTS OF RIGHTS OF WAY-EVIDENCE. In such suit, evidence held to show that it was a condition of the agreement between complainant's predecessor and defendant and of complainant's acquiescence therein that the railroad should be constructed at such a grade as to permit complainant to build a dam approximately 60 feet high, and that on the building of such dam it would be defendant's duty to protect its own roadway from injury by the water stored by the dam by riprapping or building a retaining wall. 4. RAILROADS 64(1)—AGREEMENTS AS TO RIGHTS OF WAY-DUTY OF PAR TIES. Under an agreement that a railroad company might build its road across certain land at such a height as to permit the landowner to build a dam on condition that the company would protect its own roadway by riprapping or building a retaining wall, it was the landowner's implied duty in building the dam to use every reasonable precaution by the construction of a spillway or other engineering device to carry off flood waters. 5. RAILROADS 64(1)—AGREEMENTS AS TO RIGHTS OF WAY-DUTY OF PAB TIES. Under L. O. L. §§ 6552, 6553, authorizing persons, companies, and corporations having title or possessory right to land to use and enjoy the water of any running stream to furnish electrical power and to condemn lands for sites for reservoirs for the storage of water, where the landowner had authority thereunder to acquire lands above the dam not owned by it at the time of the agreement for its reservoir and its water storage purposes, it would be defendant's duty to perform the same duties respecting its roadway through such lands subsequently acquired by complainant, as it undertook to perform respecting the laLds owned by complain ant. For other cases see same topic & KEY-NUMBER in all Key-Numberca Digests & Indexes 6. EMINENT DOMAIN 316-COSTS-PERSONS LIABLE. Where, in a suit to restrain the construction of a railroad, the answer asked the court, in case the bill was not dismissed, to determine the amount of damages to which complainant might be entitled, and no tender or offer to pay damages had been made prior to suit, the costs were properly imposed upon defendant as on the complainant in a condemnation suit; the answer having been framed in part as a suit for equitable condemnation. Gilbert, Circuit Judge, dissenting. Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge. Suit by the Eastern Oregon Land Company against the Deschutes. Railroad Company. From the decree (213 Fed. 897), both parties appeal. Reversed and remanded with directions. In equity. Suit to restrain defendant railroad company from constructing, maintaining, or operating a railroad over certain lands owned by the complainant. From a decree restraining complainant from interfering with the maintenance and operation of the railroad over the lands in suit, and awarding complainant damages in the sum of $1,000 as compensation for the value of a 200-foot right of way through certain of its lands, and costs taxed at $513.22, both parties appeal. This controversy arises out of conflicting claims by the Eastern Oregon Land Company (hereinafter designated as the "complainant") and the Deschutes Railroad Company (hereinafter designated as the "defendant") to reservoir and water storage rights claimed by the complainant in the Deschutes river and along its banks and rights of way claimed by the defendant over and across certain lands owned by the complainant and through which flows the Deschutes river in Oregon. The lands are located, and for convenience of reference they may be classified as follows: (a) North half of the southwest quarter (N. 1⁄2 of the S. W. 4) of section 35, township 3 south, range 14 east, Willamette meridian; lot 2 (N. W. 4 of the N. E. 4) of section 3, township 4 south, range 14 east, Willamette meridian. (b) Southeast quarter (S. E. 4) of section 34, township 3 south, range 14 east, Willamette meridian; southwest quarter of the northeast quarter (S. W. 4 of the N. E. 4), west half of the southeast quarter (W. 1⁄2 of the S. E. 14), and east half of the southwest quarter (E. 1⁄2 of the S. W. 4) of section 3; northwest quarter (N. W. 1⁄44), and northwest quarter of the southwest quarter (N. W. 4 of the S. W. 4) of section 10, all in township 4 south, range 14 east, Willamette meridian. (c) Lot 1 (N. E. 4 of the N. E. 4) of section 3; northeast quarter of the southeast quarter (N. E. 4 of the S. E. 4) of section 9, all in township 4 south, range 14 east, Willamette meridian. There are certain other lands mentioned in the complaint which, it has been found, the line of the defendant's railroad does not cross or touch, and are, therefore, not involved in this appeal. These lands are described as follows: (d) West half of the southwest quarter (W. 1⁄2 of the S. W. 4) of section 27, township 3 south. range 14 east, Willamette meridian; southeast quarter of the northwest quarter (S. E. 14 of the N. W. 4) of section 3; northwest quarter of the southeast quarter (N. W. 4 of the S. E. 4), northeast quarter of the southwest quarter (N. E. 4 of the S. W. 14), and northwest quarter of the southwest quarter (N. W. 4 of the S. W. 4) of section 9; northeast quarter of the southeast quarter (N. E. 14 of the S. E. 4) of section 8, all in township 4 south, range 14 east, Willamette meridian. The complainant sued to enjoin and restrain the defendant from constructing and maintaining its railroad along the Deschutes river over and across complainant's lands described above. The original complaint was filed April 18, 1910; the amended complaint, November 12, 1913. At the time the original complaint was filed the defendant was engaged in the construction of its For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 158 C.C.A.-30 road through complainant's lands and had its grade practically completed. The road was located and the work of construction commenced while the land was claimed by complainant's predecessors in interest. These predecessors, so far as they are material to this controversy, were one J. H. Sherar, claiming the lands described in the preceding clauses (a) and (b) of this statement, and the Interior Development Company, claiming the lands described in the preceding clause (c), together with water power rights in the Deschutes river. The Deschutes river flows through these lands in a deep gorge or canyon, and by reason of falls therein, the quantity of water, the uniformity of flow, and the steep and precipitous banks, the site is valuable for power purposes, provided (it is claimed by the complainant) a 60-foot dam, above ordinary low water in the river, can be maintained at the power site. The defendant's road runs along the side of the canyon and has been constructed upon a grade at and above the power site, which complainant claims will not admit of a dam 60 feet in height in the river without flooding the fills and embankments of defendant's roadbed above such dam, and in times of high water endangering the road itself in that locality, unless the same is properly protected. The further claim of the complainant is that the defendant entered into possession of its right of way under oral agreements or understandings with its predecessors in interest to locate its road so as to permit and protect the maintenance of a 60-foot dam, above ordinary low water in the river, but, as the road has been actually built, no such dam can be safely constructed, unless the defendant is required to protect its own roadway above the dam; and, as a consequence, the value of the water power is greatly impaired and damaged. It is alleged in complainant's complaint that the defendant has at all times known that the lands in suit are valuable chiefly because of the fact that the Deschutes river flows through them, and in its course through these lands the flow of the river is so great that it can be advantageously used for the development of power. The prayer of the complaint is that the defendant be enjoined and restrained from constructing, maintaining, building, or operating a railroad over the lands in suit, and from interfering with plaintiff's possession thereof. The defendant's answer admits that complainant has the legal title to the lands described in the complaint, but it is claimed by the defendant that the complainant acquired its title to such lands after the defendant had entered upon such lands and partly constructed its grade; that defendant entered into possession of its right of way under an agreement with the executors of the estate of J. H. Sherar, B. F. Laughlin. and the Interior Development Com pany, the predecessors in interest of the complainant in such lands described, in which agreement it was provided that, if the road should be constructed as high as the same could be conveniently raised without making the expense prohibitive and without interfering with the proper and convenient operation of the line, the damage would be nominal; that Laughlin and the Interior Development Company at all times knew where the road was located, and at all times expressed approval of the height at which the line was proposed to be constructed and was being constructed, and never at any time objected to the defendant because of the height or manner in which said road was costructed or to the location thereof, until the line was practically completed across said lands. It is alleged in defendant's answer that it has acquired by purchase certain lands and the right of way over certain other lands for railroad purposes along the Deschutes river, above the lands owned by the com plainant; that complainant has acquired no right to flow the waters of the river back upon any of the lands so acquired by the defendant or back or over or upon its right of way, or to raise the waters of the river above its natural flow; and the defendant charges that any dam which the complainant might construct across the Deschutes river, or the development of any power by the use of the waters of the Deschutes river by means of any such dam at or along or in the neighborhood of any of the lands described in the complainant's amended bill as belonging to the complainant, will result in the flooding and overflowing of the detendant's said lands so purchased for railway pur poses. and will overflow the defendant's right of way, causing great and irreparable injury and damage to the defendant and its line of road. The answer concludes with the prayer that the bill of complaint be dismissed; but, in case the court should adjudge that the defendant was not entitled to have the bill dismissed, then the court was asked to determine the amount of damages sustained by the complainant or to which the complainant might be entitled by reason of the location and construction of defendant's line of road over and across the lands owned by the complainant, and that it be decreed that complainant shall make, execute, and deliver a good and sufficient deed therefor upon the payment by the defendant to the complainant of such sum as the court shall find. Wirt Minor and Veazie, McCourt & Veazie, all of Portland, Or., and Charles S. Wheeler and John F. Bowie, both of San Francisco, Cal., for appellant. A. C. Spencer, W. A. Robbins, and James G. Wilson, all of Portland Or., for appellee and cross-appellant. Before GILBERT, MORROW, and HUNT, Circuit Judges. MORROW, Circuit Judge (after stating the facts as above). 1. With respect to the lands described as the north half of the southwest quarter of section 35, township 3 south, range 14 east, Willamette meridian, and lot 2 (northwest quarter of the northeast quarter) of section 3, township 4 south, range 14 east, Willamette meridian, the decree of the lower court provides that: "The title of complainant to said property was acquired subsequent to the acquirement of said right of way of defendant over said property, and the same is subject to such right of way, provided, however, that the right hereby decreed to defendant shall not be understood or considered to interfere with or deprive complainant or its successor in interest of the right to construct and maintain a dam for hydraulic purposes in the Deschutes river where it passes through such property. and installing in connection therewith appliances for the purpose of developing hydraulic and electric power for all purposes, provided the track or roadbed of defendant shall not thereby be flooded or damaged, or the operating of its road interfered with." The first question to be determined is whether the title to the lands described in this part of the decree was acquired by the complainant prior to the defendant's claim of a right of way over such lands. It appears that one Joseph H. Sherar as early as 1871 bought the possessory right of an occupant in certain public lands along the Deschutes river. The land was not at that time surveyed. After the public surveys were extended over that section of the country, Sherar made a homestead entry of the southeast quarter of section 34, township 3 south, range 14 east. At the time he made such entry he supposed that it included the falls of the Deschutes river at that point, and not until 1901 did he discover that the south line of his homestead did not run south of the said falls. He thereupon took steps to acquire title to the lands upon which the falls are situated, namely, lot 2 (northwest quarter of the northeast quarter) of section 3, township 4 south, range 14 east; and, in addition, the north half of the southwest quarter of section 35, township 3 south, range 14 east, and the southeast quarter of the northwest quarter of section 3, township 4 south, range 14 east. As the line of the defendant's railroad does not cross or touch the lastnamed tract of land in section 3, the title thereto is not involved in this appeal. |