Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1907-12-16

Littleied. S. r. Kimball and J. l..
Moore.
Rescript bv Whitcnousc. j.
This is an action of trover brought
against the defendants for the alleged
conversion on July I. 1906. of &c steel
rails Of the aggregate value of SLID.
These rails were a part of a quantity pur-
chased by the EocklHnd. South Thomas
ton & Owls Head Railway, for use in the
construction Of a street railway from the
Rockland line to Crescent Beach and
Owls Head.
The plaintiff claimed title to the rails
and the right to recover in this action
nv virtue of an attachment in an action
of aSsunpsit brought by him against the
corpora ton July j., 1a0i and Il sale June
"A, 1906. on the execution which issued on
tho Judgment in that case
The defendant denied that the plaintiff
acquired amy title to the rails by force
of lis attachment thereof and sale on
execution, ami justified their acts on the
ground that prior to tic alleged CONVEX
sion by them they mad been duly appoint
cd bv the court receivers of the corpora
ton, ana that the rails sued for came
INTO tI1cIf IbSSCSSI''i - u pdit VI Liz
property Of the railway
1t appears that the plaintif's judgment
in the action of assumpsit in which his
attachment was made was not taken I'M
til after the appointment of the defend
ants as re, eiverS. and although this &C
ton of trover is brought against them as
individuals. it is not in controversy that
whatever was done by them in using the
rails for the construction of the railroad
was done by them in their capacity as re-
ceivers and not as Individuals.
After the company had been duly organ
lied and a copy of the survey and location
Of lis route had been filed with the rail
road commissioners. it proceeded to pur-
chaasc land for Il power house and tn
make agreements for rights of way over
privatac property wherever the location
was outside Of tile highway: and sub
seuuentIv. on October 3. 1903 the corpora
ton executed 4 mortgage TO the Federal
Trust Company of Boston OF its fran
chiSc and all its propcrty. real and per-
Sonal then existing and thereafter 20 nc
acquired including roadbcd ana material
and equipment of every kind. to secure
an issue of bonds Ia tn: amount of $ll".-
| ON. which were afterwards issued. The
mortgage contained description Of the
routc of the road as located. by courses
and distances.
1t is not in controversy that thcreupon
materials for the construction of the road
were purchased. the roadhed graded and
ties and rails laid nearly the entire length
of the road from Roclland line 10 Cres-
cent Beach, and the road so nearly com
pleted that it was accepted by the rail-
road commissioners in 1904 to within
about a quarter of Il mile of its pres
ent terminus. and rails and ties were
laid further on to Crescent Beach. In
the progress of this work. poles, wire and
rails had been delivered and laid along
the side of tie road as far as Crescent
Beach for future use in building the road,
and among the materials were the rails
sued for in this case.
AT the tire the property of the cor
poration thus came into the actual pos
session of the receivers. all of the rails
in question taken by them were lying on
private lands in close proximity to the
railroad location where they were orig
inally deposited when purchased by the
(Nt MIN