by law between subjects of Austria-Hun-, found, on sufficient evidence, that such land d, 9, 1, 7, in Digest Sup. Ct. 1908.] And we take notice Submitted of the fact that free intercourse between residents of the two countries [No. 10.] November 7, 1918. November 18, 1918. missed for want of jurisdiction. Decided has been also physically impossible. IN ERROR to the Supreme Court of It is true that, more than three years ment affirming a judgment of the Disthe State of Kansas to review a judgago, a stipulation as to the facts trict Court of Jackson County, in that and the proof of foreign law was entered into by the then counsel for re-state, in favor of plaintiff in an action spondent, who has to recover a commission as broker. Disdied since. But reasons may conceivably exist why that stipulation ought to be discharged or modified, or why it should be supplemented by evidence. We cannot say that, for the proper conduct of the defense, consultation between client and counsel and intercourse between their respective countries may not be essential even at this stage. The war precludes this. Under these circumstances, we are of opinion that the decree dismissing the libel should be set aside and the case reImanded to the District Court for further proceedings, but that no action should be taken there (except such, if any, as may be required to preserve the security and the rights of the parties in statu quo) until, by reason of the restoration of peace between the United States and AustriaHungary, or otherwise, it may become [23] possible for the respondent to present its defense adequately. Compare The Kaiser Wilhelm II. L.R.A.1918C, 795, 159 C. C. A. 88, 246 Fed. 786; Robinson v. Continental Ins. Co. [1915] 1 K. B. 155, 161, 162, [1914] W. N. 393, 84 L. J. K. B. N. S. 238, 112 L. T. N. S. 125, 31 Times L. R. 20, 59 Sol. Jo. 7, 20 Com. Cas. 125. Reversed. 82 Kan. 216, 107 Pac. 559; on second apSee same case below, on first appeal, peal, 87 Kan. 842, 126 Pac. 1093; on third appeal, 96 Kan. 109, 150 Pac. 559. Mr. Lee Monroe submitted the cause for plaintiff in error. Messrs. James A. McClure and C. M. Monroe were on the brief. Mr. B. I. Litowich submitted the cause for defendant in error. Memorandum for the court by the CHIEF JUSTICE: Having previously considered this case (82 Kan. 216, 107 Pac. 559, 87 Kan. 842, 126 Pac. 1093), the court awarded relief because of the violation of a contract of employment to procure the sale of real estate (96 Kan. 109, 150 Pac. 559). The case is here in reliance upon a Federal question based upon the assumption that the authority to sell included land belonging to the United States covered by an inchoate homestead entry. But the court below expressly [24] found that such land was not included in the contract; hence the sole basis for Note. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884; and Kipley v. Illinois, 42 L. ed. U. S. 998. On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513. And how and when questions may be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33. the asserted Federal question disap pears. And this result is not changed by considering, to the extent that it is our duty to do so, the question of fact upon which the existence of the alleged Federal question depends. Northern P. R. Co. v. North Dakota, 236 U. S. 585, 593, 59 L. ed. 735, 740, L.R.A.1917F, 1148, P.U.R. 1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1; Creswill v. Grand Lodge, K. P. 225 U. S. 246, 261, 56 L. ed. 1074, 1080, 32 Sup. Ct. Rep. 822; Kansas City Southern R. Co. v. C. H. Albers Commission Co. 223 U. S. 573, 591, 56 L. ed. 556, 565, 32 Sup. Ct. Rep. 316. We so conclude because the result of discharging that duty leaves us convinced that the finding below was adequately sustained; indeed, that the record makes it clear that the alleged ground for the Federal question was a mere afterthought. The case, therefore, must be and is dismissed for want of jurisdiction. J. F. LAY et al., Plffs. in Err., V. R. C. LAY et al. (See S. C. Reporter's ed. 24, 25.) right to Claims [For other cases, see Claims, I. c, in Digest Mr. John C. Bryson submitted the cause for plaintiffs in erro’. Mr. William I. McKay was on the brief: United States Revised Statutes, § 3477, Comp. Stat. 1916, § 6383, rendered absolutely null and void the assignment under which the defendants in error claim the proceeds of Nancy Lay's war claim against the United States. Spofford v. Kirk, 97 U. S. 484, 24 L. ed. 1032; Nutt v. Knut, 200 U. S. 12, 50 L. ed. 348, 26 Sup. Ct. Rep. 216; National Bank v. Downie, 218 U. S. 345, 54 L. ed. 1065, 31 Sup. Ct. Rep. 89, 20 Ann. Cas. 1116. the cause for defendants in error: and discharged the claim had against it York v. Conde, 147 N. Y. 486, 42 N. E. 193, 168 U. S. 642, 42 L. ed. 611, 18 Sup. Ct. Rep. 234; Goodman v. Niblack, 102 U. S. 556, 26 L. ed. 229; Hobbs v. McLean, 117 U. S. 567, 29 L. ed. 940, 6 Sup. Ct. Rep. 870; Bailey v. United States, 109 U. S. 432, 27 L. ed. 988, 3 Sup. Ct. Rep. 272; Price v. Forrest, 173 U. S. 410, 43 L. ed. 749, 19 Sup. Ct. Rep. Decided 434; McGowan v. Parish, 237 U. S. 285, 59 L. ed. 955, 35 Sup. Ct. Rep. 543; Portuguese-American Bank v. Bank v. Wells, 242 U. S. 7, 61 L. ed. 116, 37 Sup. Ct. Rep. 3, Ann. Cas. 1918D, 643; Fortunato v. Patten, 147 N. Y. 277, 41 N. E. 572; Burnett v. Jersey City, 31 N. J. Eq. 341; Fewell v. American Surety Co. 80 Miss. 782, 92 Am. St. Rep. 625, 28 So. 755; Farmers' Nat. Bank v. Robinson, 59 Kan. 777, 53 Pac. 762; Hawes v. Wm. R. Trigg Co. 110 Va. 165, 65 S. E. 538; Jernegan v. Osborn, 155 Mass. | 207, 29 N. E. 520. N ERROR to the Supreme Court of the State of Mississippi to review a judgment reversing a judgment of the Chancery Court of Scott County, in that state, and enforcing an assignment of all right to a fund resulting from the payment of an appropriation by Congress to satisfy a judgment for the value of property taken during the Civil War. Affirmed. 79 Note. As to the validity of the assignment of claims against the United States-see notes to Lopez v. United States, 2 L.R.A. 571, and National Bank v. Downie, 20 Ann. Cas. 1119. On motion to dismiss or affirm. Memorandum for the court by the CHIEF JUSTICE: The right to a fund resulting from the payment of an appropriation by Con 0' ber 18, 1918. gress to satisfy a judgment for the value, Argued November 7, 1918. Decided Novemof property taken during the Civil War is the issue here involved. The contestants are the heirs at law of the original claimant, and persons holding under an assignment by her of all her right to the claim or fund. The court enforced the assignment. Under the assumption that the claimant was prohibited by the law of the United States (Rev. Stat. § 3477, Comp. Stat. 1916, § 6383) from making an assignment, the heirs at law prosecute error to correct the Federal error thus assumed to have been committed. But the assumption indulged in as to the effect of the law of the United States is without merit. McGowan v. Parish, 237 U. S. 285, 294, 59 L. ed. 955, 962, 35 Sup. Ct. Rep. 543, and cases cited. This renders it unnecessary to consider whether, if the heirs at law were entitled to the fund, they would be liable to pay the full sum of the attorney's fee contracted for by the transferee, and the duty to pay which the transferee and those in privity do not dispute. Judgment affirmed. RIGINAL ACTION by the state of Georgia to prevent defendant railway companies from longer occupying or using any portion of the right of way of a railroad built and owned by plaintiff state. Bill dismissed. The facts are stated in the opinion. Mr. William A. Wimbish argued the cause and filed a brief for complainant: The use authorized by the Act of 1879, if intended to be exclusive and perpetual, would be the equivalent of a grant of the freehold; if otherwise, it created a revocable license. Jones, Easements, § 14. The fact that the duration of the use is not specifically limited does not give rise to the implication that it was intended to be perpetual. Seaboard Air Line R. Co. v. Raleigh, 242 U. S. 15, 61 L. ed. 121, 37 Sup. Ct. Rep. 8. The Georgia legislature was without power to make a voluntary grant of the state's property, or of any irrevocable interest therein. Ibid. The recitals of the act express no con [26] STATE OF GEORGIA, Complainant, sideration for a grant of the property. TRUSTEES V. OF THE CINCINNATI SOUTHERN RAILWAY and Cincinnati, New Orleans, & Texas Pacific Railway Company. (See S. C. Reporter's ed. 26-30.) Railroads grant state-owned road of portion of right of way. 1. The fee in a specified portion of the right of way of the Western & Atlantic Railroad, built and owned by the state of Georgia, was granted to the Cincinnati Southern Railway by Ga. Act of October 8, 1879, providing that there is hereby "granted" to the trustees of the latter "for the use of said railway, the use of" such specified portion, although the words "and its successors" or "in fee" are not used. [For other cases, see Railroads, II., in Digest Sup. Ct. 1908.j Philpot v. Gruninger, 14 Wall. 570, 20 527, 22 L. ed. 805. L. ed. 743; Tucker v. Ferguson, 22 Wall. To make valid a contract with the state, the same necessity for a consideration exists as if the contract was between private parties. A contract without such consideration is a nude pact or gratuity which may be kept, changed, or recalled at the pleasure of the state, even though money may have been expended on the faith of it. Grand Lodge, F. A. M. v. New Orleans, 166 U. S. 143, 41 L. ed. 951, 17 Sup. Ct. Rep. 523; West Wisconsin R. Co. v. Trempeleau County, 93 U. S. 595, 23 L. ed. 814; Tucker v. Ferguson, 22 Wall. 527, 22 L. ed. 805; Christ Church v. Philadelphia County, 24 How. 300, 16 L. ed. 602. Mr. Edward Colston argued the cause, and, with Messrs. Michael M. Allison, Washington T. Porter, John Weld Peck, and Henry T. Hunt, filed a brief for defendants: A grant to trustees gives them such an estate as is adequate to the execution of the trust. 1 Perry, Trusts, 4th ed. § 320; Neilson v. Lagow, 12 How. 110, 13 L. ed. 914; Doe ex dem. Poor v. Considine, 6 Wall., 574, 62 L. ed. 481, L.R.A.1918E, 865, 38 471, 18 L. ed. 873. Sup. Ct. Rep. 196. The grant of October 8, 1879, conferred upon the trustees of the Cincinnati Southern Railway a permanent use not revocable by the state of Georgia. Llanelly R. & Dock Co. v. London & N. W. R. Co. L. R. 8 Ch. 942, L. R. 7 H. L. 550, 45 L. J. Ch. N. S. 539, 32 L. T. N. S. 575, 23 Week. Rep. 927; Great Northern R. Co. v. Manchester, S. & L. R. Co. 5 DeG. & S. 138, 64 Eng. Reprint, 1053, 16 Jur. 146; Franklin Teleg. Co. v. Harrison, 145 U. S. 459, 36 L. ed. 776, 12 Sup. Ct. Rep. 900; United States v. Baltimore & O. R. Co. 1 Hughes, 138; Fed. Cas. No. 14,510; Junction R. Co. v. Ruggles, 7 Ohio St. 1; Wilson v. Chalfant, 15 Ohio, 248, 45 Am. Dec. 574; Mississippi River Logging Co. v. Robson, 16 C. C. A. 400, 32 U. S. App. 520, 69 Fed. 773; Western U. Teleg. Co. v. Pennsylvania Co. 68 L.R.A. 968, 64 C. C. A. 285, 129 Fed. 849; Louisville v. Cumberland Teleph. & Teleg. Co. 224 U. S. 663, 56 L. ed. 940, 32 Sup. Ct. Rep. 572; Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 395, 46 L. ed. 610, 22 Sup. Ct. Rep. 410; Boise Artesian Hot & Cold Water Co. v. Boise City, 230 U. S. 84, 57 L. ed. 1400, 33 Sup. Ct. Rep. 997; Russell v. Sebastian, 233 U. S. 204, 58 L. ed. 921, L.R.A.1918E, 882, 34 Sup. Ct. Rep. 517, Ann. Cas. 1914C, 1282; St. Louis v. Western U. Teleg. Co. 148 U. S. 103, 37 L. ed. 385, 13 Sup. Ct. Rep. 485; Old Colony Trust Co. v. Omaha, 230 U. S. 112, 57 L. ed. 1410, 33 Sup. Ct. Rep. 967; Grand Trunk Western R. Co. v. South Bend, 227 U. S. 544, 57 L. ed. 633, 44 L.R.A. (N.S.) 405, 33 Sup. Ct. Rep. 303. The repealing act was void because prohibited by art. 1, § 10, of the Constitution of the United States. Fletcher v. Peck, 6 Cranch, 87, 3 L. ed. 162; Farrington v. Tennessee, 95 U. S. 679, 24 L. ed. 558; New Orleans Gas Co. v. Louisiana Light Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. 252; Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 395, 46 L. ed. 610, 22 Sup. Ct. Rep. 410; Louisville V. Cumberland Teleph. & Teleg. Co. 224 U. S. 658, 56 Led. 938, 32 Sup. Ct. Rep. 572; Grand Trunk Western R. Co. v. South Bend, 227 U. 8. 544, 57 L. ed. 633, 44 L.R.A. (N.S.) 405, 33 Sup. Ct. Rep. 303; Owensboro v. Cumberland Teleph. & Teleg. Co. 230 U. S. 65, 57 L. ed. 1393, 33 Sup. Ct. Rep. 988; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 57 L. ed. 1410, 33 Sup. Ct. Rep. 967; Northern Ohio Traction & Light Co. v. Ohio, 245 U. S. If the legislature of Georgia had intended to grant a use that would be revocable at its will, it would have made that intention appear distinctly in the grant itself. Franklin Teleg. Co. v. Harrison, 145 U. S. 469, 36 L. ed. 789, 12 Sup. Ct. Rep. 900; Owensboro v. Cumberland Teleph. Co. 230 U. S. 66, 57 L. ed. 1393, 33 Sup. Ct. Rep. 988. Mr. Justice Holmes delivered the opinion of the court: the state of Georgia to prevent the deThis is a suit brought in this court by fendants from longer occupying or using any portion of the right of way of the Western & Atlantic Railroad, a railroad built and owned by the [27] plaintiff state. The question, although argued at considerable length, is a very short one. On October 8, 1879, the state passed an act sufficiently explained by its contents.1 the Cincinnati [28] Southern Railway On August 21, 1916, reciting that now is controlled by a competitor of the Western & Atlantic road, and that the Western & Atlantic needs the space, Georgia undertook to repeal the former act and to treat it as giving a license only, that the state was free to revoke. The defendants say that the words "there is hereby granted to the trustees of the Cincinnati Southern Railway, for the use of said railway, the use of that portion of the right of way of the Western & Atlantic Railroad," etc., grant a right of way in fee. The Ohio statute under which the Cincinnati Southern Railway was constructed by the city of Cincinnati provided for a board of trustees to be apcourt of the city, to have control of the pointed and kept filled by the superior 1 An Act Granting Right of Way to the Cincinnati Southern Railway, Where Its Route Adjoins That of the Western & Atlantic Railroad. Section 1. Be it enacted by the general assembly of the state of Georgia, That whereas the city of Cincinnati has nearly completed the Cincinnati Southern Railway, a grand trunk line which will be of great benefit to the state of Georgia, forming a most important feeder and practically an extension of the Western & Atlantic Railroad, which is the property of the state, and giving to our commerce the advantage of a direct and admirable connection with the railway system of the North and West. And whereas, said railway reaches the on the part of the grantee, confirms, if confirmation were required, the legal effect of the words unexplained. Louisville v. Cumberland Teleph. & Teleg. Co. 224 U. S. 649, 663, 56 L. ed. 934, 940, 32 Sup. Ct. Rep. 572; Llanelly R. & Dock Co. v. London & N. W. R. Co. L. R. 8 Ch. 942, 950; Great Northern R. Co. v. Manchester, S. & L. R. Co. 5 DeG. & S. 138, 64 Eng. Reprint, 1053, 16 Jur. 146. fund raised by the city, and to acquire and hold all the necessary real and personal property and franchises either in Ohio or in any other state into which the line of railroad should extend. Therefore the grant to the trustees was the proper form for a grant in effect to the railway, as it was styled in the title of the Georgia act, or to the city if the city was in strictness the cestui que trust. No other facts of much importance appear. Considerations are urged on behalf of Georgia to show that the motives for a perpetual grant were weak, but nothing that affects the construction of the words used, or that shows that they are not to be given their ordinary meaning, as indeed the argument for the plaintiff agrees. But if that be true, cadit quæstio. A grant of the use of a right of way is the grant of a right of way in the ordinary meaning of words, and a grant of a right of way to a corporation or to perpetual trustees holding for the corporate uses does not need words of succession to be perpetual. The words "and its successors" or "in fee" would not enlarge the content of a grant to a corporation. Owensboro V. Cumberland Teleph. & Teleg. Co. 230 U. S. 58, 66, 57 L. ed. 1389, 1393, 33 Sup. Ct. Rep. 988; Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 368, 395, 46 L. ed. 592, 610, 22 Sup. Ct. Rep. 410; [29] Great Northern R. Co. v. Manchester, S. & L. R. Co. 5 DeG. & S. 138, 146, 64 Eng. Reprint, 1053, 16 Jur. 146. If a grantor wishes to limit the effect of words sufficient on their face to convey a fee, it should express the limitation in the instrument. The purpose of the grant in this case, to supply a roadbed for a trunk line, necessitating considerable expenditure Western & Atlantic Railroad at Boyce's, tanooga, Tennessee, terminus that lies Station, and for the most of the distance to the termini of the two railroads in Chattanooga, their routes run parallel to and adjoining each other, a distance of about 5 miles. And whereas, it is to the advantage of both railroads to be able to locate their tracks and works close together, thus saving expense to one in construction, and to both in maintaining the roadbed and facilitating railroad operations; and giving to both railroads the advantage of a stronger and firmer roadbed through a route sub ject to overflow by floods in the Tennessee river; there is hereby granted to the trustees of the Cincinnati Southern Rail way, for the use of said railway, the use of that portion of the right of way of the Western & Atlantic Railroad between Boyce's Station, Tennessee, and the Chat We think it unnecessary to refer to the language in detail beyond saying that there is nothing in the statute to suggest an intent to limit the scope of the grant, and that such expressions as "provided further, that the grade adopted by the said Cincinnati Southern Railroad along and over the aforegranted right of way shall always be the same as that of the Western & Atlantic Railroad," further confirm our interpretation, as docs also the requirement of the consent of the lessees "as to the term of their lease," since those words imply that that grant is of something more that does not require their assent. Elaborate discussion of the circumstances seems to us superfluous. But it is necessary to mention the objection that by the Constitution of Georgia the general assembly was forbidden "grant any donation or gratuity in favor of any person, corporation, or association," and that there was no consideration for this grant. Even if the contemplated and invited change of position on the part of the Cincinnati & Southern Railway and the benefit to the state expressly contemplated as ensuing from it were not the conventional inducement of the grant, and so were not technically a consideration, we are of the opinion that the grant was not a to westerly of a line running parallel with, and 9 feet westerly from, the center of the track of the Western & Atlantic Railroad, so as to admit of laying track, if desired, near enough to the track of the Western & Atlantic Railroad to leave the distance between the centers of tracks 14 feet, and between the nearest rails of the two railroads 9 feet; Provided always, that this grant is subject to the consent and approval of the lessees of the Western Atlantic Railroad as to the term of their lease; Provided further, that the grade adopted by the said Cincinnati Southern Railroad along and over the aforegranted right of way shall always be the same as that of the Western & Atlantic Railroad. Sec. 2. Be it further enacted, That all acts and parts of acts inconsistent with this act are hereby repealed. |