The San Francisco call., 1896-02-26
Five Thousand Shares of the S,
F. and N. P. Railroad
Out of Pledge.
THE DONAHUE ESTATE WINS.
End of the Long Seige of Litigation
Which Has Involved the
Donahue Road.

The litigation over the stocks of the San
Francisco and North Pacific Railroad Com
pany has ended SO far as the Superior
Court has been concerned. Judge Heb
bard has decided that the 5000 shares of
stock held by the defendants as security
for the satisfaction of certain claims
against the road or their value must go to
the plaintiff. These 5000 shares, valued at
Ol.25o, formed the principal feature of
the case.
When the San Francisco and North Pa
clhc Railroad Company changed hands
from the Donahue estate to the present
owners, the Seligmans and their connec-
tlons here and in the East, it was agreed
that certain suits against the road should
be taken up by the old management, and
that the rights of way should be made
clear of all liens. These rights of way
played most important part in the suit.
10 secure compliance with these agree
ments 10000 shares of the stock were
pledged to the Seligmans.
Soon after the pledging of these shares
OF stock $4,000 shares were sold and the
proceeds were distributed. Then the re-
naming 5000 shares ere sold, but the pro-
ceeds were not distributed, and for the
proceeds OF this last sale the plaintiffs,
MeGlynn and Burgin, as executors of the
Donahue estate, commenced suit. The
question rested upon whether or not the
agreement to secure which the stock was
pledged has been complied with.
The railroad itself interyened in the
suit, claiming that it was a party in in
terest. 1t demanded that the stocks be
retained from the plaintiffs. The de-
PENDANTS answered the com plant from in
formation and belief, and left the contest
OF the case to the interyenor, after taking
from 1t an indemnity to protect them
from any judgment which might be en-
tered. AS consequence the judgment
deals most directly with the intervenor.
In rendering decision Judge Hebbard
says:
The stumbling block in this case has been
the expression in the contract of ''iens for
right OF way" There is such thing as lien
for right of way known to the law, which
exists, of course, where right of way has
been sold and a vendors lien is acquired for
the unpaid purchase price.
In some States also, of which California is
not one, when person is entitled to go into
possession after condemnation proceedings
brought under eminent domain, and before
paying the value of the land, the landowner
then is given lien tor right OF way equiFa-
lent 10 vendors llen.
But the right 10 this lien does not exist in
California.
In this case it nowhere appears that any one
railway companys roads by virtue of sale
and purchase and non-payment of the pur-
chase price, and no lien has been acquired by
any one by reason of the railway company
taking possession under condemnation pro-
ceedings in eminent domain, and, therefore,
the railway company either owns all the rights
of way because it has bought and paid for
them, in which case there would be no lien, or
it is trespasser, and If trespasser only, the
owner of the land can have no lien, but is the
owner of the full title and may maintain eject
ment for its recovery,
Philadelphia r. R. Co. vs. Cooper, los Penn,
239.
There are no such liens for right of way
against the San Francisco and North Pacific
Railway Company, as the intervenor contends
The language used means just the liens and
claims which have been paid and discharged by
plaintiffs, and it is in evidence that on the Sth
of March, 1895, the defendants, J. & W. Selig-
man and Landenberg, Thalmann & Co. so ex-
pressed their opinion of its meaning in a tele-
gram to defendant P. n. Lilienthal, and in that