The Daily empire. (Dayton, Ohio) 1865-1867, 1866-07-02
LAW REPORT.
surrnIon counr-IuDon uAYNrs

Henry Lection VS.. me Ddyt0h e Belpre
Ralrodd e NJ also Joseph CObients va. the
Dayton. Acpia d Beipre Railroad, et al
These eases came up on demurrer to-day.
The same point heing presented IN both.
The Court In deciding upon the demur-
rer, remarked that according 20 the view
right or wrong. which he had taken of this
case. the question Involved In II Is for the
first time presented for decision. The orig
inal and each amended petition, up 10 the
one filed mt last October term, had proceed
ed only against the small piece of land, the
fee to which Is In the plaintiff, seeking to
recover possession of IT, and the portipn of
the railroad upon IL from the Railroad Com
pany or TO subject II. by sale, tO the pay
nent of the plaintiffs claim. Neither of
these things could, IN the Judgment Of the
Court be done. by written agreement the
plaintiff had given 10 the company the right
Ofway over the land 10 construct and run
is railroad, and the same had been con-
structcd and was In use. This short piece
formed but small part of q long line Of "A
public railroad. II was In this way so ap-
proprated to public use that the plaintiff
could not resume exclusive possession,
withdraw 10 from such use, break the line
of railroad and interrupt public travel and
transportation. Public policy would not
permit such thing to be done.
For the same reason the Court could not
direct the sale Of that portion Of the road.
The reason applied. whether the claim was
regarded as q simple Judgment debt or a
vendors lien. The proceeding was m rem.
IL was against this specific piece of land.
The prayer for general relief would have
authorized the Court to make any proper
order ordecree Ia relation u, the thing so
proceeded against. But it did not seem to
Justify the Court IN ordering the sale of
another and different thing. immensely
greater, the whole rail road itself with de-
pots, stations, houses etc, particularly as
IL was not described aud was scarcely mem
toned In the petition. The amended pc
tition lied last October proceeded against
the road and all the property covered by
Rockwell's mortgage. A demurrer to that
petition was oyerruled and the Court held
that whether the vendors lien existed OF
not the plaintiRa a judgment creditor,
there being 40 property subject to exccu-
tion, but the road aud all the property OF
the Company covered by Rockwell's NOR
gage. had right 10 compel n sale and the
application Of the proceeds to his claim, az
least after the mortgage was satisfied
The answer to that petition setting NJ
the decree in the Circuit Court of the Uni-
ted States. aud the sale of the road under IT.
upon bill filed by Rockwell, makes IL ne.
cessary TO decide upon the vendors lien
claimed by the plaintiff, since the Court /,
not prepared TO hold that the proceeding
then pending in this court was lis peadens
MS TO anything but the plaintiffs one and ,
half acre Of land or that there could hay,
been any decree as TO that.
The Railroad company had the right /,
! take thus land for il road. IL might lay,
agreed with the owner upon the price anC
terms, and taken a deed for the ripbt o
way executed according 10 the acduire
mcnts of the statute. or II might have an
propriated aud obtained the right of wa,
and possession through the Probate Court
| In either case IT, would have acoui, cd ,
complete legal ttle IL did neither I'M
entered with the plaintiff into the writer
agreement set out In the pleadings. IN,
! company derives all It's rioht In the nee n
| the land from that agreement. Has Il the,
the right TO hold and continue to use II
failingto perform its part of the contract
That contract can not continue In force
securing to the Company and its assign
4 the right of way over and the use az fbi
land while IL fails TO nay the stimulate,
price, and TO perform the other conditions
The plaiutifi has not parted with any le.
gal title. The company has acquired none
therefore IL does not seem TO he importan
whether Rockwell or the bondbolilers IIa,
actual notice of the existence of plaintiiir