mined, the applicants claiming, before the proper office, that they were mineral lands of the United States to which they were entitled under their respective applications, and not lands in quality such as was described in the grant to the Northern Pacific Railroad Company. On the 4th day of August, 1887, the company presented to the register and receiver of the proper land office for approval, a list of lands selected by it as having been granted by the act of Congress, to the end that such lands (the list including the lands here in dispute) might be patented to it; but that officer refused to approve such list because of the existence, on the 6th day of July, 1882, of the above claims to the lands as mineral lands. It did not appear from the record what became of the several applications set out in the answer to purchase these lands as mineral lands, nor whether the railroad company appealed from the decision made in 1887 by the local land office at Helena refusing to approve the list presented of lands claimed by it under the act of Congress. Held, That the above applications were "claims" within the meaning of the act of July 2, 1864, granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound on the Pacific coast by the northern route, and excepting therefrom lands not "free from preemption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office"; consequently, the lands embraced by those applications did not pass to the railroad company under the grant made by the above act. Northern Pacific Railroad Co. v. Sanders, 620.
1. In a proceeding in a state court in Illinois to ascertain the compensation due to a railroad company arising from the opening of a street across its tracks - the land as such not being taken, and the railroad not being prevented from using it for its ordinary railroad purposes, and being interfered with only so far as the right to its exclusive enjoyment for purposes of railroad tracks was diminished in value by subjecting the land within the crossing to public use as a street-the measure of compensation is the amount of decrease in the value of its use for railroad purposes caused by its use for purposes of a street, the use for the purposes of a street being exercised jointly with the company for railroad purposes. Chicago, Burlington & Quincy Railroad v. Chicago, 226.
2. While the general rule is that compensation is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future, mere possible or imaginary uses, or the speculative schemes of its proprietor, are to be excluded. lb.
3. The railroad having laid its tracks within the limits of the city must be
deemed to have done so subject to the condition-not, it is true, ex-
pressed, but necessarily implied that new streets of the city might
be opened and extended from time to time across its tracks as the
public convenience required, and under such restrictions as might be
prescribed by statute. Ib.
4. When a city seeks by condemnation proceedings to open a street across
the tracks of a railroad within its corporate limits, it is not bound to
obtain and pay for the fee in the land over which the street is opened,
leaving untouched the right of the company to cross the street with
its tracks, nor is it bound to pay the expenses that will be incurred by
the railroad company in the way of constructing gates, placing flag-
men, etc., caused by the opening of the street across its tracks. Ib.
5. All property, whether owned by private persons or by corporations, is
held subject to the power of the State to regulate its use in such man-
ner as not to unnecessarily endanger the lives and the personal safety
of the people. The requirement that compensation be made for pri-
vate property taken for public use imposes no restriction upon the
inherent power of the State by reasonable regulations to protect the
lives and secure the safety of the people. Ib.
6. The expenses that will be incurred by the railroad company in erecting
gates, planking the crossing and maintaining flagmen, in order that
its road may be safely operated-if all that should be required —
necessarily result from the maintenance of a public highway, under
legislative sanction, and must be deemed to have been taken by the
company into account when it accepted the privileges and franchises
granted by the State. Such expenses must be regarded as incidental
to the exercise of the police powers of the State, and must be borne
by the company. Ib.
7. The plaintiff in error was in the employment of the defendant in error
as a common laborer. While on a hand car on the road, proceeding
to his place of work, he was run into by a train, and seriously injured.
It was claimed that the collision was caused by carelessness and negli-
gence on the part of other employés of the company, roadmaster,
foreman of the gang of laborers, conductor, etc. Held, that the co-
employés whose negligence was alleged to have caused the injury were
fellow-servants of the plaintiff, and hence that the defendant was not
liable for the injuries caused by that negligence. Martin v. Atchison,
Topeka & Santa Fé Railroad, 399.
8. A car upon a street horse railroad in Washington, arriving at a point
where the street crossed a steam railroad at grade, found the gate
bars lowered. A train on the steam railroad was seen to be ap-
proaching. Before it arrived at the crossing the bars were raised.
The driver of the horse car attempted to cross, notwithstanding the
approaching train. The gate bars were lowered again and the horse
car was caught upon the track. It was filled with passengers, among
whom was Mrs. H., one of the defendants in error, sitting upon an
open outer seat. The frightened passengers rushed precipitately from
the car.
Their doing this caused Mrs. H. to be thrown from the car,
whereby she was seriously injured. The railroad train was stopped
just before reaching the horse car. The bars were again raised, and
the horse car went off the railroad track uninjured. Mrs. H. and her
husband sued both railroad companies to recover damages; alleging
that she was pushed and shoved from her seat and thrown violently
to the ground; claiming that the steam railroad company was liable
by reason of the negligence of its servant in managing the gates, and
that the horse railroad company was liable by reason of the negligence
of its driver in not waiting till the train should have passed; and
demanding a recovery of thirty thousand dollars as damages. The
court charged the jury that if they should find from all the evidence
that the plaintiffs were entitled to recover, they might award dam-
ages within the limits claimed in the declaration. The jury returned
a verdict for twelve thousand dollars. The court thought this to be
excessive. With the plaintiffs' consent it was reduced to six thousand
dollars, and judgment entered for that amount. Held, (1) That the
driver of the horse car was guilty of negligence in attempting to cross
the track of the steam railroad under the circumstances; (2) That
there was evidence to warrant the jury to find that the gateman was
the servant of the steam railroad company, and that that company
was responsible for the results of his negligence; (3) That as there
was no exception to the charge respecting damages, no question about
it was before the court; (4) That whether Mrs. H. was injured by
falling from the car or from being pushed from it was immaterial, in
view of the causes of the injury. Washington & Georgetown Rail-
road v. Hickey, 521.
9. The Citizens' Street Railway Company of Indianapolis was organized in
1864 under an act of the legislature of Indiana of 1861, authorizing
such a company to be "a body politic and corporation in perpetuity."
January 18, 1864, the common council of that city passed an ordi-
nance authorizing the company to lay tracks upon designated streets,
and providing that "the right to operate said railway shall extend to
the full time of thirty years," during which time the city authorities
were not to extend to other companies privileges which would impair
or destroy the rights so granted. In April, 1880, the common council
amended the original grant "so as to read thirty-seven years where
the same now reads thirty years." The company, desiring to issue
bonds to run for a longer period than the thirty years, had, for that
purpose, petitioned the common council for an extension to forty-five
years. The city government was willing to extend to thirty-seven
years, and this was accepted by the company as a compromise. On
the 23d of April, 1888, the road and franchises were sold and con-
veyed to the Citizens' Street Railroad Company, which sale and trans-
fer were duly approved by the city government. December 18, 1889,
a further ordinance authorized the use of electric power by the com-
pany, and provided how it should be applied. In accordance with its
provisions the company, at great expense, built a power house, and
changed its plant to an electric system. In April, 1893, the city coun-
cil, claiming that the rights of the company would expire in thirty
years from January 18, 1864, granted to another corporation called the
City Railway Company the right to lay tracks to be operated by elec-
tricity in a large number of streets then occupied by the tracks of the
Citizens' Street Railroad Company, whereupon a bill was filed in the
Circuit Court of the United States by the Street Railroad Company
against the City Railway Company, to enjoin it from interrupting or
disturbing the railroad company in the maintenance and operation of
its car system, alleging that the action of the city council sought to
impair, annul and destroy the obligation of the city's contract with
the plaintiff. Held, (1) That the Circuit Court had jurisdiction,
although both parties were corporations and citizens of Indiana; (2)
That the right of repeal reserved to the legislature in the act of 1861
was not delegated to the city government; (3) That the circum-
stances connected with the passage of the amended ordinance of April
7, 1880, operated to estop the city from denying that the charter was
extended to thirty-seven years; (4) That the continued operation of
the road was a sufficient consideration for the extension of the fran-
chise; (5) That the Citizens' company had a valid contract with the
city which would not expire until January 18, 1901, and that the con-
tract of April 24, 1893, with the City Railway Company was invalid;
(6) But no opinion was expressed whether complainant was entitled
to a perpetual franchise from the city. City Railway Co. v. Citizens'
Street Railroad Co., 557.
10. In an action against a railroad company to recover damages for inju-
ries received by a person travelling on a highway, by a collision at a
crossing of the railroad by the highway at grade, an instruction to the
jury that the obligations, rights and duties of railroads and travellers
upon highways crossing them are mutual and reciprocal, and that no
greater care is required of the one than of the other is substantially
correct. Continental Improvement Co. v. Stead, 95 U. S. 161, followed.
Texas & Pacific Railway Co. v. Cody, 606.
11. The instructions as to damages were not incorrect. If the company
desired particular instructions, it should have asked for them. 1b.
12. A railway company is bound to use ordinary care to furnish safe
machinery and appliances for the use of its employés, and the neglect
of its agents in that regard is its neglect; and if injury happens to one
of its employés by reason of the explosion of a boiler which was defec-
tive and unfit for use, and the defect and unfitness were known or by
reasonable care might have been known to the servants of the com-
pany whose duty it was to keep such machinery in repair, their negli-
gence is imputable to the company, but in an action against the
by the injured employé, the burden of proof is on the plaintiff to show
that the exploded boiler and engine were improper appliances to be
used on the railroad, and that the boiler exploded by reason of the par-
Texas & Pacific Railway Co.
ticular defects insisted on by plaintiff.
v. Barrett, 617.
See CONSTITUTIONAL LAW, 9;
JURISDICTION, C, 6;
MUNICIPAL CORPORATION, 1.
REMOVAL OF CAUSES.
See JURISDICTION, C, 6.
1. The plaintiff in error having voluntarily commenced an action in the
Supreme Court of the State to establish her rights against the city of
Hammond, and the questions at issue being judicial in nature and
within the undoubted cognizance of the state court, she cannot, after
a decision by that court be heard in any other tribunal to collaterally
deny its validity. Forsyth v. Hammond, 506.
2. Though the form and causes of action be different, a decision by a court
of competent jurisdiction in respect to any essential fact or question
in one action is conclusive between the parties in all subsequent
actions. Ib.
See DISTRICT OF COLUMBIA, 2.
Riparian ownership on navigable waters is subject to the obligation to
suffer the consequences of an improvement of the navigation, under
an act of Congress, passed in the exercise of the dominant right of
the Government in that regard; and damages resulting from the
prosecution of such an improvement cannot be recovered in the Court
of Claims. Gibson v. United States, 269.
SCIRE FACIAS.
See JURISDICTION, C, 3.
1. A bond to the United States, conditioned that a property and disbursing
officer of the War Department shall faithfully discharge his duties,
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