An analysis of these sections shows two general systems of distributing the taxable valuation of the property of railroad companies in Ohio. It is primarily made the duty of the board, whether it is to consist of one or more of the county auditors, to ascertain the property subject to taxation, and to place upon it a valuation. For the purpose of ascertaining the character and extent of the property, detailed statements may be required, under oath, from the officers of the company. The distribution of the valuation of the property, where several counties are interested, is made according to the nature of the property. Real estate, structures, and stationary personal property are to be apportioned to its own local taxing district. These valuations the statute requires to be "equalized," so that the local real estate, structures, and stationary personal property in any taxing district shall be valued in the same proportion as the value of said property in said taxing district. bears to the total valuation in the state. The other class of property to be valued, which includes rolling stock, main track, roadbed, supplies, moneys, and credits, is not localized for taxation; but the aggregate value of this class of property is apportioned among the local taxing districts according to the mileage of the road in such districts, respectively. One object of this statute is evidently to require real estate and structures to be locally taxed. The valuation of the real estate and structures is apportioned to the locality where situated. This is the policy of the statute, and is in harmony with the general system of taxation in the state.

In view of this system of classification of railroad property for taxation in Ohio, to which class does the bridge in question belong? The part of the bridge which it is proposed to tax in Belmont county is the approach from the Ohio side, the length of which is 1,490 feet; on the West Virginia side, 864 feet. The approach on the Ohio side is described as consisting of 43 semicircular stone arches, with two spans of deck bridge. The piers are described as massive in structure. The bridge is an expensive and durable one. It was built under authority of an act of congress, and is made a post route of the United States, subject to regulation as such. Additional rates are charged to passengers and freight using the bridge. It has a distinct value. as a bridge, irrespective of its present use for railroad purposes. It is a suggestive fact that the West Virginia portion has been valued for taxation in that state in the sum of $315,000. These considerations would seem decisive of the question as to whether this bridge is to be regarded as a structure to be locally taxed, or "roadbed" or "main track," with taxable valuation to be distributed throughout the length of the line in proportion to its mileage. It is, in our judgment, a structure, within the meaning of the statute, and to be taxed as other local structures are in the district where it is situated. Similar considerations led the supreme court of Nebraska to like conclusions in a well-considered case. Cass Co. v. Chicago, B. & Q. R. Co., 25 Neb. 348, 41 N. W. 246, 2 L. R. A. 188.

In the returns made by the Baltimore & Ohio Railroad Company for the Central Ohio Railroad, no mention is made of this structure. There is nothing in the testimony or in the finding of the master to show that it was distinctly considered in making a valuation of the

property to be taxed, notwithstanding its great value as an independent structure. But it is contended that this bridge has already been taxed as a part of the main track, including roadbed and right of way, by the board of county auditors. The findings of fact show that the Baltimore & Ohio Railroad Company is assessed and pays the taxes upon the property in Ohio of the Central Ohio Company, of which it is the lessee. This is because of the agreement between the companies, which requires this course of action. In Ohio all property is taxed against the owner. Rev. St. 1890, §§ 2734, 2735. In the return and assessments referred to, the Baltimore & Ohio Company assumes the obligation which the law imposes upon the Central Ohio Railroad Company. It is said that this bridge is included in the assessment of the 137.3 miles of main track, including roadbed and right of way; being the entire length of the line of the Ohio Central Railroad from low-water mark on the Ohio side of the river to its northern terminus at Columbus, Ohio. The finding shows that the southern terminus of the Central Ohio Railroad is at low-water mark on the Ohio side. It also appears that the tracks of the Central Ohio Railroad were raised and laid upon the approaches to this bridge. But it also appears from the allegations of the petition and the admissions of the answer that the bridge is the property of the Baltimore & Ohio Railroad Company. In the mortgage which is the subject of foreclosure in this case this bridge is described as owned and operated by that company, "known as the 'Benwood Bridge,' beginning in Marshall county, in the state of West Virginia, and running through the town of Benwood, over the Ohio river, into the town of Bellaire, in Belmont county, in the state of Ohio, together with the approaches thereof; the said bridge and approaches being of the total length of 8,556 feet, more or less." It is true that the master finds that this bridge was built under a contract between the Baltimore & Ohio Railroad Company and the Central Ohio Railroad Company, by which the latter company pays one-third of the cost of the bridge; and, after the payment of the certificates issued for such cost, the companies were to hold the same as tenants in common, in the proportion of two-thirds to the Baltimore & Ohio Railroad Company, and one-third to the Central Ohio Railroad Company. This contract cannot overcome the allegations of the pleadings as to the ownership of the bridge. Nor does the joint ownership of the structure relieve the situation from the considerations which give it a local character for the purposes of taxation. It is also found that the approach in question is upon ground of the Ohio Central Company, and that its tracks are laid upon it. This does not affect the question of the right to tax this large and costly structure against its true ownership, irrespective of the ownership of the track upon it, or of the right of way upon which it rests. When land is owned by one, and the buildings by another, the two may be separately assessed for taxation. People v. Board of Assessors of Brooklyn, 93 N. Y. 308. If this were not so, much property which must be assessed against the owner would escape taxation. It appears that the Baltimore & Ohio Railroad Company, the owner of this bridge and its approaches, is the owner, also, of a line of railroad extending across

the bridge from Ohio, and thence eastwardly, through West Virginia. We think this structure is a part of that railroad, and, within the requirements of the Ohio Statutes, taxable in Belmont county. We cannot agree that the assessment of the main track of the Ohio Central Railroad covered so much of this structure as includes the approach to this bridge from the Ohio side, or that, under the facts shown, it could be legally assessed as a part of such main track, including roadbed and right of way. It may be the practice to assess bridges as a part of such main track of railroads in Ohio. It may be that many bridges have no value except to carry the track of the company. Whether this practice, if it exists, be right or wrong, is immaterial here, in view of the character and ownership of the bridge in question.

We think the circuit court did not err in vacating the restraining order and dismissing the petition of the receivers. Judgment affirmed.

(114 Fed. 52.)

POTTS v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. March 3, 1902.)

No. 674.

PUBLIC LANDS-INCLOSURE-Fence on OWNER'S LAND-MISDEMEANOR.

Where a landowner in good faith, for the purpose of inclosing his own land, builds a fence on the line extending around the tract, such act is not unlawful, and is not a violation of the act of February 25, 1885 (23 Stat. 321), which forbids the inclosure of public lands or obstructing access thereto by one who has no claim thereto, even though such fence so connects with fenced lands of other owners as thereby to inclose unclaimed public lands.

In Error to the Circuit Court of the United States for the Eastern Division of the District of Washington.

The plaintiff in error was indicted by the grand jury for unlawfully inclosing public land in the state of Washington, by erecting and maintaining a post and wire fence around certain land owned and leased by him, thereby preventing and obstructing any and all persons from peacefully entering upon or establishing a settlement or residence upon certain tracts of public land, and preventing and obstructing passage and transit over and through said public land. The indictment contained six counts, but only the charges contained in the first, second, and fifth counts were submitted to the jury. These counts charged as follows:

"That one Robert Potts * 串 did unlawfully, as owner, make, erect. construct, and maintain an inclosure of the following described public land of the United States, containing not less than 160 acres, to wit, the N. W. 4 of section 2, township 19 north, of range 38 east of the Willamette meridian, and the S. W. 4 of section 26, township 20 north, range 38 east of the Willamette meridian, and section 34, township 20 north, range 38 east of the Willamette meridian; said inclosure so made, erected, constructed, and maintained, consisting of and being a post and wire fence, and he, the said Robert Potts, so making and constructing said inclosure, then and there having no claim or color of title to any of said land, made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office, to wit, the United States land office at Spokane, in said state and district, under the general land laws of the United States,-contrary to the form of the statute in such

case made and provided, and against the peace and dignity of the United States.

"That one Robert Potts did unlawfully, as part owner and agent, make, erect, construct, and maintain an inclosure of the following described public land of the United States, containing not less than one hundred and sixty acres, to wit, the N. W. 4 of section 2, township 19 north, range 38 east of the Willamette meridian, and the S. W. 4 of section 26, township 20 north, range 38 east of the Willamette meridian, and section 34, township 20 north, range 38 east of the Willamette meridian; said inclosure so made, erected, constructed, and maintained consisting of and being a post and wire fence, and he, the said Robert Potts, so making and constructing said inclosure, then and there having no claim or color of title to any of said land, made or acquired in good faith, or an asserted right thereto, by or under claim, made in good faith with the view to entry thereof at the proper land office, to wit, the United States land office at Spokane, in said state and district, under the general land laws of the United States at the time such inclosure was so made,-contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

"That one Robert Potts * * did unlawfully, by and with a post and wire fence, prevent and obstruct from passage and transit over and through certain of the public lands, containing not less than one hundred and sixty acres, to wit, the N. W. 4 of section 2, township 19 north, of range 38 east of the Willamette meridian, and the S. W. 4 of section 26, township 20 north, range 38 east of the Willamette meridian, and section 34, township 20 north, range 38 east of the Willamette meridian,-contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

The jury found the defendant guilty as charged in these three counts, and the court imposed a sentence of one day's imprisonment in the county jail and a fine of $100, and costs of action. Writ of error was thereupon sued out to this court.

Merritt & Merritt, for plaintiff in error.

Wilson R. Gay, U. S. Atty., and Edward E. Cushman, Asst. U. S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge, after stating the facts as above, delivered the opinion of the court.

It appears from the evidence that the defendant is the owner of section 25, township 20 north, range 38 east of Willamette meridian, Spokane county, Wash., and has a lease of section 36 in the same township. These two sections adjoin, and the defendant had inclosed them with a wire fence, thus making an inclosure two miles long north and south, and approximately one mile wide east and west. A county road meanders along the east line of said sections. The government land charged in the indictment to have been unlawfully inclosed by the fence of the defendant is the N. W. 14 of section 2, township 19 north, of range 38 east, and the S. W. 4 of section 26, and section 34, township 20 north, range 38 east. None of this land adjoins that inclosed by the defendant; but it is contended that the defendant, by connecting his fence with that of other owners of land on the north and south, has cut off the government land from access to the county road, and is thus violating the statute prohibiting the inclosing of government land. The chain of private fences complained of immediately incloses only the lands of the various owners, and the inclosing.

of or obstruction of passage to the government land is merely an incident arising from the peculiar situation of the land with relation to the county road.

The act of February 25, 1885 (23 Stat. 321), provides as follows: "That all inclosures of any public lands in any state or territory of the United States, heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inclosure the person, party, association, or corporation making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office under the general laws of the United States at the time any such inclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited. *

"Sec. 3. That no person, by force, threats, intimidations, or by any fenc ing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent or obstruct free passage or transit over or through the public lands.

The trial court instructed the jury, in this connection, as follows: "The law which I have read to you has for its obvious purpose the protection of the rights of the public in and to all of the public domain, as against the selfishness of any particular individual, association, or company, or set of individuals, to appropriate to their own use the public domain and exclude the public from the equal enjoyment of the use of it while it remains public and unclaimed by private individuals. The law is broad in its terms, and it is intended to prohibit any manner of inclosing the public domain by a person or a company or a corporation that has no color of title or right to have the exclusive use of it. The inclosure by a fence, or a combination of fences, or joining of fences that is wholly upon the land which the person does own, is unlawful, if in effect it does inclose and shut out the public from any part of the public domain. A man has no right to build a fence upon his own land, that connects with another fence, that is so connected as to form an inclosure of public land, and shut the public out, or prevent their passage over the public lands."

This instruction was plainly directed to the charge contained in the fifth count of the indictment, and this count appears to have been framed under section 3 of the above-named act. Upon the evidence in the case and the charge contained in the count, the question to be submitted to the jury was whether the defendant had, by "fencing or inclosing, or any other unlawful means," prevented or obstructed free passage or transit over or through the public lands of the United States. By a well-known rule of construction the words "or any other unlawful means," in describing and giving scope to the prohibited acts, relate back to and qualify the preceding words "fencing" and "inclosing," so that those words must be read as "unlawful fencing" and "unlawful inclosing." In other words, the "fencing" or "inclosing" of land does not become unlawful merely because either of these acts prevent or obstruct any person from peaceably entering upon or establishing a settlement or residence on a tract of the public land subject to settlement or entry under the public land laws of the United States. The act of a person in fencing or inclosing his own land is lawful. It is also lawful for a person to fence and inclose his own land up to a