Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-02-04
NElGHTy LAND CASE
SIT INVOLVING OVER 10000 ACRES
ARGUED IN U. $. COURT.
THG LIABILITY OF EMPLOYERS.
opinion I'm the Damage Suit rnsti-
tutcd by the Heirs of Edm,,s
Ncvsom Against the Norfolk ana
n.cstcrn Railway.

n.cstcrn Railway.
rho United States Circuit Court NJ An.
p. was occupied all day Yesterday
Wfh she hearing OF an important North
Care, ina land case. which was arepea
bersr, Judges Con, S.monton, and RraU,.
lcv by Judge A. c, Avery. NJ. snver
and James H. Merrlman.. OF North Caro-
Tina. for Marvin r. Seattle. ana by R,ch.
rrf O. Dale OF Philadelphia. and r
raucy. Of North Carolina, for the
Weston North Carolina Land COMPANY.
md Jack Sheehan.
10 is q cross-suit appealed from the
circuit Court Of the United States for
fte western District Of North Carolina
Fourth Circuit. at Asheviue. The case
vas Instituted by Marvin f. Seattle
a-rst the Western North Carolina
Land Company. on October /. 1894. TO try
t,e ttle to land under chapter G OF the
pcbic Laws. 1898, OF North Carolina.
SWITCH IS as follows:
'Thlt an action may be brought nv
a-r person against another who claims
ar state or interest in real property
adverse to him. Cor the purpose of de-
trmrlng such adverse claims.
MANY THOUSAND ACRES.
Tae plaintiff claims title under grant
s-1m the State Of North Carolina TO Ro-
bert and William Tate dated May 30
1885, FOR 400 acres. which land was
originally I'm the county OF Burke. but
now lies in the counties OF Mcdowell
ana Nancey. formed since It was grant
CO. and by mense conveyance.
The defendants claim title under grants
ISSUED by the state Of North Carolina
20 W. W Fleming. December 2S 1871.
ami "a deed from Fleming TO the defend
ant land company. dated January 3. 1878
Jack Sheehan became the tenant OF
the defendant land company. and the
plaintiff commenced an action of election
AGAINST Sheehan
THE case was argued and submitted.
The case OF J. T. Harding and b. L.
butcher. appellants. VS.. Annie W. n.
Guice. appellee. appeal from the Circuit
Court Of West Virginia. Cause submitted
bv appellants on brief and argued and.
submitted by b. VI. Amber for the ap-
pellee.
An Interesting Railroad Case De-
Cidcd.
One Of the most interesting decisions
handed down by this court on Tuesday
was Judge Cons opinion in the case Of
W. r. Carper. administrator against the
receivers Of the Norfolk and Western
Railroad Company. appealed from the
Circuit Court Of the Western District.
". r. Carper instituted an action Of
trespass IN the Circuit Court of Wythe
county. Va. against the railroad COM
uany. claiming $4,000 damages. The de-
ciaration contained three counts-the first
alleging that Frederick J. Kimball and
Henry Fink. receivers Of the Norfolk
and Western Railroad Company. were,
as such. operating said railroad at the
time Of the grievances therein set forth,
and that one Edmund NewsOm was en-
ployed as a brakeman on a freight train.
then run by them over the road and
that. while so employed. In the year 1895,
through the gross negligence Of the de-
PENDANTS, ne was mangled. wounded, and
injured. from which he instantly died.
The negligence alleged IS. in substance,
rs follows: That said railway in pass
lng through the county Of Wythe. in the
State of Virginia. ran through the en-
closed lands Of J. p Sheffey, then leased
10 George t. Carter. and that IL was the
duty OF tho railroad company. under re-
0uirements Of sections 1858 and 1852 OF
the Code Of Virginia, TO erect along on
both sides Of its roadbed at the point
where the grievances complained Of were
committed lawful fences, and keep the
same I'm good order.
THE PEN WAS NOT SECURE.
But the company failed to do this. and
they allowed Carter to erect and use
cattle-pen on their rOadbed, for the pur-
pose OF loading cattle upon the cars. and
Z 4
they neglieently allowed him 20 construct
such pen in a faulty manner and of in
ferior material whereby II was entirely
Insufficient to restrain and keep within
fits bounds tho large and strong cattle
that Carter was in the habit of placing
therein: and that, on the night in ques-
tiOn a number OF the cattle escaped out
of the pen and strayed upon the tracks
OF the railroad. and the freight train. on
which Newsom was employed as brake
man. ran into the cattle, and was de-
rallied. the cars being broken, and New
som injured and killed.
The second count alleges the faulty
construction of the cattle-pen, with the
assent and knowledge of defendants.
The third count is the same as the
second. with the additional allegations
that the defendants failed TO erect
good and sufficient cattle-pen. and that
lNeF IdllcQ 10 instruct lhtI StiNdhtS ia
Charge Of said train to run it at a
moderate rate Of speed by the pen. so
as TO avoid frightening the cattle and
causing them 10 escape. and that the
train was carelessly and negligently
. lun. SO that II could not be stopped
from running into the cattle after they
had broke from the pen. and that It
was negligence I'm defendants not 10
have a Waterman stationed at such
points whereby the servants on said
train could have been duly notified of the
danger.
THE LOWER COURT SUSTAINED.
The court below instructed the jury
that II they found from evidence that
the cattle-pen was not constructed by
defendants. but by the occupant of the
farm in question, that II was intended
10 be erected upon lands adjoining the
Norfolk and Western right Of way, and
that by mistake the enclosure Of said
pen extended for q short distance on
the right OF way OF the defendants. then
they were not responsible for any fault
"a the construction OF the pen.
Again: That the duty imposed by the
statute upon the railroad companies 10
fence their railroad, Is "A duty only 20
the public and 20 the owner OF the cat
te Of the enclosed lots of lands through
which the railroad runs. and an en-
p'oyce OF the company seeing a personal
i1iufy in an accident consequent upon
allure 10 maintain proper fences can
I1t recover damages OF the railroad