Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1882-10-04
The Railroad Litigation.
DISSENTING OPINION OF JUDGE TAFT IN
TIE LANGDON CASE.

Judge Taft has Just fled with the re-
| p Irter of The supreme court dissenting
opinion in tne case Of James r Lrngdon
ri ri We. the Vermont and Canada rail-
roa company ct ais. The opinion of the
majority of the court held that the corpus
and property of the Canada, as well AS
that of the Central, were holden for the
payment of the trust indebtedness. Judge
Taft dssPnts, so far as the Canada is
concerned, and believes that only the
properly of the Central is liable. The
full text of the opinion is as follows:
Without entering at length into a
discussion of the various legal questions
involved in this case, desire TO enter my
dissent from the opinion of the court upon
one of the most important points.
| cannot concur with my brethren in
holding that the Indebtedness of the man
ayers of the property in question constitutes
lien, or can be made charge upon
the Vermont and Canada railroad. 1t is
said that this question is res adjudicata,
| do not so regard it, notwithstanding
what is said in the opinion in this case,
reported in the SD Vermont, p. 283. l
consider it an open question. / do not
deem 1t material upon this hearing to pass
upon the question of the particular char
acter in which the managers have been
acting. They were either strict receivers
or managing agents, in control of the
property by the consent of the owners.
Acting in either capacity, the ordinary
rule applicable in case of receivers would
apply. The managers would be entirely
out of "the funds" to their costs, charges
and expenses properly incurred in the
discharge Of their ordinary duties, or in
extraordinary services, which have been
sanctioned by the court. l am aware
that in soIue instances repayment to the
managers of the property Of advances
made by them has been ordered out oil
the corpus of the estate Kerr on Receivers
2nd Am, ed, p. 239. And this latter
rule, think, is properly applied in this
case, as against the Vermont Central rail.
road and its mortgages. All that, | think,
has as yet been decided by this court
using the words of Judge Redfield-is
that a court of equity would charge the
property ,ohich wGS The subject of The re-
cciUerShtp. created by the court in 1861
in behalf of the bona fde holders OF such
with an equitable lien, and cause it to
GCSpOHu Ill pay ulcnI VI SUM- uoO-o' ~
i, in determining what the Funds" oil
the property which was the subject Of
the rccevership, was that, think, the
court have erred.
The receivership was originally ordered
by reason OF the default of the Vernon,
F Central railroad company. That corpora
tiou is what regard as the prtmdry par-
N; nId Is The properly of that corpora
tlun th4t, insist, is the subject of the
recivc,.n alp What was that propertyP
Th,r, '- ~ rourDuln upon at point
Il .. h. ud ed ut rp!lrng stock OF
the We uu q nrpt tilrond company
ana he rlgh,s Of the latter company &c
t I. pr>-tssl,,n md use of the Vermont 4
Cautd railroad under he leases of 1916
mi 1850: IN Consideration OF which
possession and us- certain rem was TO be
uald to The Vernon Central railroad com
y nv to ;hr Vermont d Canada railroad
company FIJI two Dads we're as distinct
Dr.. Ia i..,, ,s before. Their organi
~. I'll .,.r. s.n.rHg, aud there was moth
IaL n mu .u netNern }Aa WV Each
uump.ay rni,d It, own iead bed anc
.rc u.i hN contract ii right to use the roaC
be- # Il. U,i.r. uus Wit- amber obligations
10 pay tent Ior such use. The estate o
the Vermont &, ntrai railroad company IL
the road bed OF the other company wa:
that of a e,sce--a leasehuld ostate,-anC
the receivers took the properly with the
same rights, and subject to the same obi
cations, az it had therefore been held By
lessee. Where receiver is appointed o
leasehod estate the performance of al
the obligations imposed by the possession
oft bo lapl Iaunlvoc him and IN
; is bound, in the first place. out of the sub
rents or receipts, 10 discharge the heat
r rent, where the right of the landlord i!
undisputed, without an order for that pur
, pose. In the case at bar the rent due tn
lessor was paid and discharged until tn
year 1872. Until that time. as its rent ha
been duly paid, the Vermont ~ Canad'
/ railroad company had no cause for com
plant; since chat time it has been earnestl
d protesting against the possession of tn
;. present managers. Upon what principl
# then, o law or equity, The property of tn
Vermont Il Canada railroad company car
o In the way proposed, be taken to pay tn
q expenses of the trust, ] am unable
i determine; and for this reason [ dsse1
from the conclusion ut which my brethre
/. have arrived. That corporation is, {
q conrsc, liable for all obligations whic
/ they have lawfully assumed, and the hold
ers of such obligations have in respeC
1 thereto q full and adequate remedy ut Law
hut they have no right to foreclosure {
the property of the company in questio
" rs they have no lien upon it, possessn
It only The rights of an ordinary creditor
+ 1t may be said that, as the roceiVershi
was originally created upon the petitio
@ and at the request of the Vermont Is Can
, ada railroad com pany, if the propert,
!. which was the subject of the trust an
ii which | have above referred to. as tn
,. Vermont Central railroad and equipmer
k and its loaschold estate in the Vernon
= & Canada railroad is not sufficient to pa
the expenses and debts of the manage
" ment, that the company are liable to max
II good any deficiency. Admitting sue
liability on the part Of the Vermont
# Canada company, upon what principl
q can it be claimed that the proper way c
II enforcing it is by general foreclosure
% the property of the trust and that of th
ccstui g,se trust combined" 1 am awar
=. of no law or practice authorizing 1t in th
8 state; and in my opinion, there should
d none While | do not object to the di:
d position of the case us to the speci
pledges OF the equipment think it woul
/, have been the better way to have ordere
/, foreclosure as to them. and, ifunredeen
O ed, have applied the value of this propert
upon he claim for which it was specif
q cally pledged; and. if insu fficient to pa
: the amount secured, have admitted tt
holders of that debt, as general creditor
d of the trust FOR the amount unpaid. Bu
/. the cause ordered violates no legal {
n equitable principle.