and of said First Mortgage Bonds that there shall be paid
and to the said parties of the second part Six Hundred and
seveny five of the said First Mortgage Bonds of said
as follows: to wit: To Albert M. Harmon in trust etc.

Two hundred and forty five. To George W. Coehran Two
hundred and fifteen and to J. M. Corse Two hundred and
November in the year of our Lord one thousand eight hund-
fifteen.

The said Bonds shall be receipted for in full by the
said parties, and deposited by Thomas C. Bates with "The
Union Trust Company" of this City to be drawn out by the
respective parties entitled to them on the joint order of
said Thomas C. Bates and Willis Gaylord in the following
manner, to wit: One third part on the completion of the
first one hundred miles of said Railroad, one third on
the completion of the second one hundred miles of the
same and the residue when the road is built according to
agreement and all Coupons on said Bonds that may have
matured before the said Bonds are thus drawn out shall be
deemed and considered void and delivered up to the said
Company for cancellation.

It is further agreed that in lieu of the Bonds here-
by agreed to be delivered on said order or orders, the
said Gaylord may at or before the times designated there-
for pay to the party entitled thereto, seventy five
cents upon the dollar on the face of the said Bonds, and
said Bonds shall then be delivered to said party of the
first part.

And in further consideration the said Bates, Coeh-

ran and Corse agree that at the time that said Bonds are
so deposited they will transfer and deliver to said Gay-
lord Three Thousand (3000) shares of One hundred dollars
each in the Capital Stock of said Railroad Company being
a portion of the first Ten thousand shares of said stock.
In witness whereof the said parties have subscribed their
names and affixed their seals hereto this 25th day of
November in the year of our Lord one thousand eight hun-
dred and seventy. (Sd.) N. W. Cochrane by his atty.

(Sd.) Willis Gaylord, (L.S.)

(Sd.) for himself and associates

(Sd.) Geo. W. Cochrane. (L.S.)
by his atty. in fact

by his atty. in fact

S. C. Bates

(Sd.) Jno. M. Corse (L.S.)

(Sd.) Albert M. Harman, Trustee (L.S.)

being This Contract for a good and valuable consideration
to each of the parties hereto in herein so far modified,
that the Bonds herein agreed to be deposited with the
Union Trust Company of New York are to be drawn out upon
the joint written order of the Secretary of the State of
Louisiana for the time being and of the President of the
New Orleans Baton Rouge and Vicksburg Railroad Company
for the time being instead of upon the order of Thomas C.
Bates and Willis Gaylord as herein agreed upon.

And further that the last one third of the Bonds
herein provided for to be delivered, are to be delivered
when The New Orleans Baton Rouge and Vicksburg Railroad

has been completed from New Orleans to some point on the
Texas Pacific Railroad or when there is through connec-
tion by means of the said Road between New Orleans and
some point on said Texas Pacific Road instead of "when
the Road is built according to agreement".

New York May 9th 1871.

(Sd.) Willis Gaylord
for himself and associates.

(Sd.) G. W. Cochran by his atty.
in fact Thos. G. Bates

(Sd.) Jno. M. Corse

(Sd.) Albert M. Harman
Trustee
that on the 9th day of October 1871 in the office of Wil-
by his atty.

T. G. Bates.

The words "the Secretary of the
State of Louisiana for the time
being" being interlined in place
of "Thomas G. Bates" erased after
signing but with my consent.

(Sd) Jno. M. Corse.

We do hereby release and discharge Willis Gaylord
and his associates from each and every obligation under
this contract and do acknowledge the receipt of the Bonds
herein provided for as being deposited with the Union
Trust Company of New York in accordance with the terms of
this Agreement.

depositing in lieu thereof an amount of money equal to

New York May 9th 1871.

(Sd.) Jno. M. Corso.

(Sd.) G. W. Cochran by his
Atty. T. C. Bates

(Sd.) Albert M. Harman
Trustee
by his Atty. Thos. C. Bates.

City, County and State of New York SS:-

Marshall R. Van Nostrand being
duly sworn doth depose and say that he is of full age;
that on the 9th day of October 1885 in the office of Wil-
liam B. Davenport Esq. Counsellor at Law, No. 204 Monta-
gue Street in the City of Brooklyn, New York, he made the
foregoing copy of the agreement and amendment thereto and
also of the release of Willis Gaylord and the assignment
of G. W. Cochran from the original papers, at that time
in the possession of the said William B. Davenport; that
he has compared said copies with the said original papers
and that the same are true copies.

Sworn to before me this : Marshall R. Van Nostrand.
10th day of October 1885 :

Henry A. Himmelmann

Notary Public

N. Y. Co. (14)

["J. W. H. M. KNOX HON. SECRETARY.", "(2d) Jno. H. COLER.", "(2d) G. W. CONNOLLY D. N. B.", "Aftn. L. G. BEGG.", "(2d) Afton M. HARRIS", "CERARCE", "D. N. B. Afton. G. W. BEGG.", "GARY. COMPLAINT AND AFFAIRS OF NEW YORK 22:-\n\nMELISSA M. VAN HOEK, DEPT.\n\nOne East 42nd Street\n\nNew York, N.Y. 10017", "I. W. to secure one or more copies of the order issued to the said parties to be delivered to the said parties and to be delivered to the said parties and

Copy

THIS PACKAGE containing seventy three (73) one thousand dollar first mortgage Bonds of the New Orleans, Baton Rouge & Vicksburg Railroad Company is deposited with the Union Trust Company of New York in accordance with a written contract between Albert M. Harmon Trustee, George W. Cochran and John M. Corse of the one part, and Willis Gaylord and his associates of the other part of even date with a written contract dated November 25th, 1870 between Willis Gaylord and his associates of the one part and the said New Orleans, Baton Rouge & Vicksburg Railroad Company of the other part and is to be delivered to John M. Corse in accordance with the terms of the first aforesaid contract upon the joint written order of the Secretary of the State of Louisiana for the time being and of the President of the New Orleans, Baton Rouge and Vicksburg Railroad Company for the time being, and upon their joint written Certificate that one hundred miles of the said New Orleans, Baton Rouge & Vicksburg Railroad has been completed.

Provided Nevertheless that said Company may at any time for the purpose of substituting any other first mortgage Bonds of the said Company withdraw these herein contained, at the same time replacing and depositing in this same package an equal amount of any first mortgage bonds of said Company with coupons attached drawing not less than seven per cent annual interest payable semi-annually in Gold and

Provided further nevertheless that the said Company may at any time withdraw the Bonds herein contained upon depositing in lieu thereof an amount of money equal to

debeasement in lieu thereof an amount of money edict to
be at any time withdrawn the Bonds herein contained then
provided further nevertheless that the said Comba
Gelt and

several her cest annuitantur etiam bensque semi-annually in
of said Comba with cembra attached drawing of less than
same backpaying said annuitant amount of said Lirat workman pends
paid at the same time replacing and deborrowing in said
Cembra Bonds of the said Company withdrwne where before con-
time for the purpose of andattending any other Lirat Mort-
provided Nevertheless that said Company was at any
Barton House & Wickapsurk Railroad has been completed.

Certificates that one hundred and one of the said New Orleans,
Company for the time being, and upon their joint written
of the New Orleans, Barton House and Wickapsurk Railroad
States of Louisiana for the time being and of the President
when the joint written order of the Secretary of the
in accordance with the terms of the Lirat aforesaid con-
to the other Lirat and is to be delivered to John M. Corre
said New Orleans, Barton House & Wickapsurk Railroad Comba
Willie Galvion and his associates of the one Lirat and the
with a written contract dated November 22d, 1840 by means
Galvion and his associates of the other Lirat of even date
W. Coghlan and John M. Corre of the one Lirat, and Willia
written contract between Albert M. Harman, Attorney, Geese
the Union Trust Company of New York in accordance with a
Barton House & Wickapsurk Railroad Company to be deborated with
thousand dollar Lirat workman pends of the New Orleans,
THIS PACKAGE containing seventy three (73) one

COPY

Copy

-2-

seventy five per cent of the par value of the Bonds herein
contained.

Provided that no substitution of Bonds or money shall
in any way effect the validity of the said Bonds, or the
rights of John M. Corse therein and further the said Cer-
tificate and order for delivery of those Bonds shall be of
even date and signed by the then said President.

New York May 10th, 1871.

Willis Gaylord

for himself and Associates.

These bonds are numbered from
961 to 1033 both inclusive.

Jno. M. Corse.

(The above is a copy of Certificate deposited with
the Bonds and furnished me by the Union Trust Company. There
were 9 packages of Bonds altogether each with a certificate
like this one.)

J. L. B.

J. F. B.

like this one.)

were a backer of Bonds of whom each with a certificate
the Bonds and furnished us by the Union Trust Company. There
(The above is a copy of Certificate deborsited with 50
backed by the bonds or money shall be of

New York May 10th, 1881.

each one and signed by the then said President.

Certificate and order for delivery of these Bonds shall be of

with and will effect the validity of the said Bonds, or the

provided for in the provision of Bonds or money shall

seventy five per cent. of the par value of the Bonds herein

Jno. M. Corse.

801 to 1988 born in 1881.

These bonds are numbered from
for Primacy and Association.

Willita Cazzaro

New York May 10th, 1881.

with John M. Corse therein and further the said Cer-

in and will effect the validity of the said Bonds, or the

be sevenety five per cent. of the par value of the Bonds herein

consented.

SUPREME COURT OF THE UNITED STATES.

No. 137.—OCTOBER TERM, 1891.

The New Orleans Pacific Railway Company et al., Appellants,

vs.

John D. Parker et al.

Appeal from the Circuit Court
of the United States for the
Western District of Louisiana.

[February 1, 1892.]

This was a bill in equity to foreclose a mortgage, and a cross-bill to have the mortgage decreed not to be a lien upon the land grant involved in the controversy. The bill was originally filed February 15, 1886, by the plaintiff Parker, "for himself and for all parties holding bonds and coupons similar to those herein set forth," against the New Orleans, Baton Rouge and Vicksburg Railroad Company, (hereinafter called the Baton Rouge Company,) the Union Trust Company of New York, the New Orleans Pacific Railway Company, (hereinafter called the Pacific Company,) John F. Dillon and Henry M. Alexander, trustees in certain land-grant mortgages of the Pacific Company, and Samuel D. McEnery, then governor of Louisiana, to foreclose a mortgage given by the Baton Rouge Company, October 1, 1870, upon the property of the company and upon a land grant claimed to be covered by such mortgage. Plaintiff Parker claimed only the amount of coupons matured upon two bonds. Subsequently one Hamlin, another bondholder under the same mortgage, intervened in the cause, which was tried in the Circuit Court, and two distinct decrees rendered upon the same day; one in favor of Parker in the sum of $2,400, with interest at five per cent. from October 1, 1885, and one in favor of Hamlin for $6,000 with like interest. (33 Fed. Rep. 693.) The mortgage in question, so far as it is material to be considered, purported to cover the right of way, . . . "also all other property, real and personal, of every kind and description whatsoever and wherever situated in the State of Louisiana, which is now owned or which shall hereafter be acquired by the said company, and which shall be appurtenant to or necessary or used for the operation of said main line of railroad or any of said branches," &c. The mortgage, which was made to the Union Trust Company of New York, provided that the holders of bonds and coupons should have the right to institute legal proceedings for its foreclosure. The company put the bonds, secured by this mortgage, upon the market, and disposed of a number of them. This mortgage was by public act and was recorded in several of the parishes through which the main line and the branches were to run.

By an act of Congress approved March 3, 1871, (16 Stat. 573,) to incorporate the Texas Pacific Railroad Company, certain lands in Louisiana were granted to the Baton Rouge Company in aid of its construction of a railroad from New Orleans to Baton Rouge, thence by way of Alexandria to the eastern terminus of the Texas Pacific Railroad at Shreveport.

On November 11, 1871, the Baton Rouge Company filed in the General Land Office a map designating the general route of its road from Baton Rouge, by way of Alexandria, to Shreveport, and thereupon the withdrawal of the public lands along this line was ordered, in accordance with the provisions of the above act of Congress, secs. 12 and 22. In 1881 the Baton Rouge Company transferred all its right, title, and interest in these lands to the Pacific Company, and in March, 1885, patents were issued to said company, as assignee of the Baton Rouge Company, for 679,287 acres of land lying in different parts of the State.

No. 137. *New Orleans Pacific Railway et al. vs. Parker et al.*

At the time this assignment was made no work either upon the main line or upon the branches had been done by the Baton Rouge Company. December 28, 1870, the Baton Rouge Company executed a second mortgage to the governor of the State, as trustee, to secure the payment of certain bonds which were never issued. Such second mortgage having been subsequently cancelled, on September 4, 1872, one Allen, assuming to act as president of the Baton Rouge Company, also executed a mortgage to secure the payment of 12,000 bonds, which, however, appear never to have been issued.

By acts of mortgage dated April 17, 1883, and January 5, 1884, the Pacific Company executed to appellants Dillon and Alexander a land grant and sinking fund mortgage upon the lands acquired from the Baton Rouge Company, to secure the payment of certain bonds, which the bill averred to be subsequent and subordinate to the mortgage executed by the Baton Rouge Company to secure the payment of the bonds in suit.

None of the defendants named in the bill appeared except the Pacific Company and Dillon and Alexander, trustees of the land grant mortgage of this company. These parties filed a general demurrer, which was argued and overruled, in September, 1886, and a decree *pro confesso* was entered against the other defendants. Subsequently an answer was filed, alleging in substance that the charter of the Baton Rouge Company did not authorize a mortgage on the land grant or on future property; that the mortgage did not embrace the land grant; that the Baton Rouge Company made no definite location of its road, nor built any portion of the same; that the Pacific Company purchased from the Baton Rouge Company, as alleged in the bill, and thereupon constructed its road; and that the legal title to the land grant remained in the United States until patents were issued to this company. October 13, 1886, these defendants filed a cross-bill setting forth that the cross-complainants were endeavoring to sell the lands that had been patented to them, and were being embarrassed and prevented by reason of the claim set up by Parker in his bill; that as the mortgage sought to be foreclosed, and the outstanding bonds secured thereby did not mature for several years, they would continue to be embarrassed for a long time; that Parker had sued on behalf of himself and of other holders of bonds issued under the mortgage of 1870, and, as complainants were advised and believed, represented upwards of two hundred of said bonds, each holder of which might bring suit and involve them in a multiplicity of suits; and that only a court of equity could afford relief by removing this mortgage as a cloud upon the title of the Pacific Company to the lands; and prayed for a decree adjudging that the mortgage did not embrace the land grant in question. Parker subsequently filed a demurrer to this cross-bill. On December 24, 1886, Hamlin intervened by petition, and was admitted as a co-plaintiff in the cause. Subsequently the case was heard and separate decrees rendered in favor of Parker and Hamlin for the amounts of their several claims, adjudging the mortgage to be a valid lien upon the lands, which were ordered to be sold, and dismissing the cross-bill. Appellants took an appeal from these decrees to this court. Parker thereupon moved for a dismissal of the appeal as to him upon the ground that less than $5,000 was involved. The consideration of this motion was postponed to the merits.

Mr. Justice BROWN delivered the opinion of the Court.

(1) The motion of the plaintiff Parker, to dismiss the appeal as to him upon the ground that less than five thousand dollars is involved, demands our first consideration. His position is that the suit embraces two separate

and distinct controversies: one between Parker and appellants, and one between Hamlin and appellants; that there were separate decrees in these several causes; that these decrees cannot be aggregated for the purpose of sustaining the jurisdiction of this court, nor can the appeal be sustained as to him by reason of the fact that as to Hamlin more than the requisite jurisdictional amount is at issue. It is true that the amount of Parker's decree was but twenty-four hundred dollars and interest, but his bill was filed not only for himself, but for all the other bondholders under the mortgage, and the cross-bill avers that he actually represented upwards of two hundred of the bonds issued under this mortgage (an averment admitted by his demurrer,) and prayed for a decree declaring the invalidity of the entire mortgage as to these lands. Had the bill been filed by the trustee under this mortgage for the foreclosure of the whole amount of the debt, and a similar cross-bill had been filed for its cancellation, there could be no doubt of the appealable character of any decree rendered upon these pleadings. This mortgage, however, contained a provision permitting a foreclosure by any holder of an overdue bond or coupon. Parker's bill was filed practically for the benefit of the entire number of bondholders, and the cross-bill could not be sustained except upon the theory that the entire mortgage was invalid as a lien upon these lands. While a decree in favor of the cross-plaintiff might not have been binding upon any defendant to the cross-bill who did not appear, it certainly would have been binding upon Hamlin as well as Parker, since Hamlin, on being made a plaintiff, expressly stipulated that the cause should be considered as if he had been one of the original plaintiffs; that Parker's pleadings should be considered as his; and that the pleadings of the defendants should apply equally to him. If Parker's argument in this connection be sound, it would necessarily follow that if every bondholder of this mortgage had intervened, and a cross-bill had been filed against them all, praying a cancellation of the entire mortgage, our jurisdiction to review a dismissal of this bill could not be sustained as to any of such bondholders whose decrees were not more than five thousand dollars, notwithstanding it would be sustained as to others whose decrees were larger. The result would be that the land might be sold for the benefit of the larger bondholders, and freed from the lien of the smaller.

Where several plaintiffs claim under the same title, and the determination of the cause necessarily involves the validity of that title, this court has jurisdiction as to all such plaintiffs, though the individual claims of none of them exceed five thousand dollars. Thus in *Shields v. Thomas*, 17 How. 3, where a bill was filed by several distributees of an estate, to compel the payment of money alleged to be due them, and a decree was rendered in their favor, it was held that this court had jurisdiction over an appeal, although the amount payable to each individual was less than two thousand dollars. It was held that the matter in controversy was the amount due the representatives of the deceased collectively; and not the particular sum to which each was entitled, when the amount was distributed among them. Said the court: "They all claimed under one and the same title. They had a common and undivided interest in the claim; and it was perfectly immaterial to the appellant how it was to be shared among them." The case of *Rodd v. Heartt*, 17 Wall. 354, is still more nearly analogous. In this case, which was in admiralty, a fund exceeding the jurisdictional amount paid into the registry of the court was claimed on the one hand by several creditors secured by one mortgage, and on the other by a number of mariners and material men. A decree having been made adverse to the mortgagees, an appeal was taken by them to this

court, and it was held that although no one of the claims under the mort-
gage equalled the jurisdictional amount, yet as the claim of the appellants,
which was disallowed, exceeded that sum, an appeal would lie. In the
*Connemara*, 103 U. S. 754, it was held that where salvors united in a claim
for a single salvage service, jointly rendered by them, the owner of the
property was entitled to an appeal where the sum decreed exceeded $5,000,
though in the division among the several parties sharing in the recovery
several were awarded less than $5,000. In line with these cases are those
of *Davies v. Corbin*, 112 U. S. 36, and *Handley v. Stutz*, 137 U. S. 366.

The true distinction is between cases in which there are several plaintiffs interested collectively under a common title, and those wherein the matters in dispute are separate and distinct, and are joined in one suit for convenience or economy. Of the latter class are those relied upon by the plaintiff Parker in this case, and his motion to dismiss must, therefore, be denied. Indeed the cross-bill to set aside the whole mortgage as to these lands is sufficient of itself to remove all difficulty with regard to our jurisdiction.

(2) The case upon the merits depends upon the question whether the mortgage of 1870 should be construed to cover a land grant made by Congress the following year to the Baton Rouge Company, in aid of the construction of its road. To answer this question satisfactorily it is necessary to consider the power of this company under its charter, and the manner in which it attempted to exercise this power.

The act of 1869 of the legislature of Louisiana, incorporating the Baton Rouge Company, authorized it (sec. 13) to obtain from any parish or other municipality any rights, privileges, or franchises that such municipality might choose to grant in reference to the construction of the road: and by section 14, it was authorized to borrow money or to purchase property for the purpose of constructing the road, to issue its corporate bonds, and, to secure the payment of such bonds, to mortgage its road, &c. By section 15, provision was made for a second mortgage guaranteed by the State, and for bonds to be issued and made payable to the State or bearer. By section 16, the first mortgage that should be given was declared to be a prior lien upon the railroad within the State, including all the "real and personal estate within the State of Louisiana, appurtenant to, or necessary for the operation of said main line of railroad, owned by the Company at the date of said mortgage, or which may be acquired by it thereafter; and upon the corporate franchises and privileges of said company, granted by the State of Louisiana, relative to the construction, operation and use of said main line of railroad within the State of Louisiana," &c. The mortgage did not differ materially from this act, though its description of property covered by it is still more explicit, and is as follows: "About five hundred and one miles of railroad within the said State of Louisiana, together with the right of way, roadbed, rails, depots, stations, shops, buildings, machinery, tools, engines, cars, tenders and other rolling stock; also all the real and personal estate within the State of Louisiana owned by the said company at the date of this mortgage, or which may be acquired by it thereafter, appurtenant to, or necessary for the operation of said main line of said railroad or any of said branches connected with the said main line, or to be connected therewith; also all other property, real and personal, of every kind and description whatsoever and wherever situated in the State of Louisiana which is now owned or which shall hereafter be acquired by the said company, and which shall be appurtenant to or necessary or used for the operation of said main line of railroad, or of any of said branches; also the tenements, hereditaments, and appurtenances thereunto belonging, and all of the estate, right, title,

5

and interest, legal and equitable, of the said company and its successors and assigns therein, together with the corporate franchises and privileges of said company at any time granted or to be granted by the State of Louisiana relative to the construction, operation and use of said railroad within said State." The bonds issued under this mortgage contained a similar description of the property, the latter clause of such description, however, purporting to include "the corporate franchises and privileges of said company granted by the State of Louisiana or by act of Congress, relative to the construction," &c. How these words, "or by act of Congress," came to be inserted in the bonds does not appear; it may have been an oversight, or the company may have supposed that the land grant would be acquired and that the insertion of these words would impart additional currency to the bonds. It is not material, however, to determine why or how this was done, since neither the act of the legislature nor the mortgage itself assumed in terms to cover anything granted by the act of Congress.

The language of the act of the legislature and of the mortgage itself restricts its lien to real and personal property situated in the State of Louisiana, then owned, or which should thereafter be acquired, and which should be appurtenant to, or necessary, or used for the operation of the main line of said road, or any of its branches. The succeeding clause, which includes tenements, hereditaments, and appurtenances thereunto belonging, &c., was manifestly not intended as an expansion of the prior clause, and for the purposes of this case may be treated as superfluous. No argument is needed to show that a land grant is not necessary to the operation of a railroad; it may be a necessary aid in the construction of a road, but it is certainly not necessary in its operation. Plaintiffs' contention, then, if supportable at all, must be upon the theory that the land grant was appurtenant to the road, not necessarily to its operation, but to the road itself. The word "appurtenant," as ordinarily defined, is that which belongs to or is connected with something else to which it is subordinate or less worthy, and with which it passes as an incident, such as an easement or servitude to land; the tackle, apparel, rigging, and furniture to a ship; a right of common to a pasture; or a barn, garden, or orchard to a house or message. In a strict legal sense it is said that land can never be appurtenant to land, *Jackson v. Hathaway*, 15 John. 447, 454; *Leonard v. White*, 7 Mass. 6; *Woodhull v. Rosenthal*, 61 N. Y. 382; but it was evidently contemplated by this mortgage that real as well as personal property subsequently acquired, such as land for stations, machine shops, or other purposes immediately connected with the road, should pass under the lien of the mortgage. Property, however, not connected with what is ordinarily termed the plant, or not forming a part of the organic structure of the road, is never treated as appurtenant to it. Thus in *Humphreys v. McKissock*, 140 U. S. 304, decided at the last term of this court, it was held that a railroad company joining in the construction of an elevator upon land not belonging to it, and situated at some distance from its road, did not by its ownership of stock in the elevator company acquire such an interest in it as would pass as an appurtenance under the mortgage of the road, as constructed or to be constructed, and the "appurtenances thereunto belonging." The court went further, and held that the elevator itself, if owned by the company, would not be appurtenant to its road. In line with this are the earlier cases of *Harris v. Elliott*, 10 Pet. 25, holding that the soil and freehold of a street did not pass as appurtenant to a lot of land fronting upon such street. So in *Linthicum v. Ray*, 9 Wall.

241, it was said that the right to use a wharf would not pass as appurtenant to a lot, as it was not in any way connected with the enjoyment or use of the lot, and a right not so connected could not be annexed as an incident to land so as to become appurtenant to it. In *Smith v. McCullough*, 104 U. S. 25, a mortgage executed by a railroad company upon its then and thereafter to be acquired property contained a specific description of such property, and was held not to cover municipal bonds issued to it in building the road, which were not embraced in such description. And in *Bank v. Tennessee*, 104 U. S. 493, where a bank was required by its charter to pay a certain tax in lieu of all other taxes, and was authorized to purchase and hold a lot of ground for its use "as a place of business," and hold such real property as might be conveyed to it to secure its debts, it was held that the immunity from taxation extended only to so much of the building as was required by the actual needs of the bank in carrying on its business. See also *Tucker v. Ferguson*, 22 Wall. 527.

Analogous cases in the State courts are numerous. Thus in *Parish v. Wheeler*, 22 N. Y. 494, it was held that canal boats purchased with the funds of a railroad company, and used and run by it in connection with its railroad, but beyond its terminus, were not covered by a mortgage of its engines, cars, &c., "and all other personal property in any way belonging or appertaining to the railroad of said company." So in *Boston &c. R. R. Co. v. Coffin*, 50 Conn. 150, the property mortgaged by the railroad company was described very nearly in the terms employed in the mortgage under consideration, and it was held that lands purchased by the company outside of the lay-out of the road, and not needed for its use or construction, were not covered by the mortgage. It was said in the opinion, that "lands purchased and sold at a profit, although the profit might be expensed in the construction of the road, were never intended to be embraced by the phrase, 'acquired by the company for the purposes of the railroad.'" In *Mississippi Valley Co. v. Chicago &c. R. R. Co.*, 58 Miss. 846, a railroad mortgage covering property thereafter to be acquired was confined to such as was appurtenant to or necessary for building or operating the road, and carrying out the purposes for which it was created, and was held not to include a hotel and brick store-house, some vacant town lots and a farm of three hundred acres; the hotel being used as a railroad eating house, and the other property being rented out for the several purposes for which it was adapted. In *Meyer v. Johnston*, 53 Ala. 237; *S. C.*, 64 Ala. 603, a mortgage of a railroad and "all other property now owned, and which may be hereafter owned by the railroad company," was held not to cover a land grant of the United States made by an act of Congress subsequently passed. Other cases to the same purport are, *Shamokin Valley Railroad Co. v. Livermore*, 47 Pa. St. 465; *Dinsmore v. Racine &c. Railroad Company*, 12 Wis. 649; *Farmers' Loan &c. Company v. Commercial Bank*, 11 Wis. 207, 15 Wis. 424; *Morgan v. Donovan*, 58 Ala. 241; *Walsh v. Barton*, 24 Ohio St. 28; *Calhoun v. Memphis &c. Railroad Company*, 2 Flippin, 442; *Seymour v. Canandaigua &c. R. R. Co.*, 25 Barb. 284.

A consideration of the circumstances attending and following the execution of this mortgage strengthens the inference that we have drawn from it, that the land grant was not intended to be included. There is no allegation in the bill that the parties to this mortgage expected, or had any reason to expect, that the land grant would be made; and had it been intended to include so important an item, it is scarcely possible that the mortgagor would have left such intention to be inferred from the indefinite and ambiguous language of this instrument. Nor is there any evidence

No. 137. New Orleans Pacific Railway et al. vs. Parker et al.

7

that, after the act of Congress was passed, the line of the road was ever
definitely fixed, as contemplated by section 9 of the act of March 3, 1871,
(16 Stat. 573, 576,) although it had filed a map designating the general
route of the road pursuant to sections 12 and 22, and obtained an order
from the Secretary of the Interior withdrawing from entry and sale the
odd-numbered sections of land within the grant and indemnity limits. As
the grant was, by section 9, of lands not sold, reserved, or otherwise dis-
posed of at the time the route of the road was definitely fixed, it is settled
in this court that the title to any particular lands would not pass until the
line was so located, because until that time it could not be definitely ascer-
tained what lands had been otherwise disposed of. *Van Wyck v. Knevals,*
106 U. S. 360; *Kansas Pacific Ry. Co. v. Dunmeyer*, 113 U. S. 629; *Sioux
City Land Co. v. Griffey*, 142 U. S. — As to lands within the indemnity
limits it has always been held that no title is acquired until the specific
parcels have been selected by the grantee, and approved by the Secretary
of the Interior. *Grinnell v. Railroad Company*, 103 U. S. 739; *Kansas
Pacific v. Atehison Railroad*, 112 U. S. 414, 421; *St. Paul Railroad v.
Winona Railroad*, 112 U. S. 720; *Barney v. Winona &c. R. R. Co.*, 117
U. S. 228; *United States v. Missouri &c. Railway*, 141 U. S. 358-375; *St.
Paul & Pacific v. Northern Pacific*, 139 U. S. 1. A definite location of
this line was subsequently made by the Pacific Company; but there is
no evidence that such location coincided with the general route designated
by the Baton Rouge Company, and as no patents were ever issued for the
lands earned by the construction of the road until March, 1881, when
they were issued to the Pacific Company as assignee of the Baton Rouge
Company, it is difficult to see what lands were ever "acquired" by the
latter company, to which this mortgage would attach.

Not only this, but there is no allegation or evidence that the Baton
Rouge Company paid the cost of surveying, selecting, and conveying these
lands, as required by the act of July 31, 1876, (19 Stat. 102, 121,) as a
preliminary to their conveyance. *Pacific Railway Company v. United
States*, 124 U. S. 124; *Deseret Salt Co. v. Tarpey*, 142 U. S. Nor is there
any evidence to show that the Baton Rouge Company ever built any of
its line of road or did anything to earn or acquire the title to any part of
its land grant.

(3) The decrees in this case were also fatally defective in ordering all
the lands assumed to be covered by this mortgage to be sold, free from all
liens, mortgages, and incumbrances, to satisfy a claim of $2,400 in one case
and $6,000 in another, without making provision for other bondholders,
subsequent mortgagees, or other creditors of the road. Assuming for the
purposes of this case that, under the peculiar terms of this mortgage, these
bondholders had the right to file this bill without calling upon the trustee
to act—a point upon which we express no opinion—they had no right to
a decree for their exclusive benefit. If a single bondholder has any right
at all to institute proceedings, he is bound to act for all standing in a simi-
lar position, and not only to permit other bondholders to intervene but to
see that their rights are protected in the final decree. Upon this principle
it was held by this court, in *Pennock v. Coe*, 23 How. 117, that a bond-
holder cannot, by getting a judgment at law, be permitted to sell a portion
of the property devoted to the common security, as this would disturb the
*pro rata* distribution among the bondholders to which they are equitably
entitled. "These bondholders," said Mr. Justice Nelson, "have a com-
mon interest in this security, and are all equally entitled to the benefit of
it; and in case of a deficiency of the fund to satisfy the whole of the debt,

in equity, a distribution is made among the holders *pro rata*. . .
To permit, therefore, one of the bondholders under the second mortgage to
proceed at law in the collection of his debt upon execution would not only
disturb the *pro rata* distribution in case of a deficiency, and give him an
inequitable preference over his associates, but also have the effect to preju-
dice the superior equity of the bondholders under the first mortgage,
which possesses the prior lien." Jones on Railroad Securities, sections
392, 393, 434; Fish v. N. Y. Water-Proof Paper Co., 29 N. J. Eq. 16;
Martin v. Mobile & Ohio R. R. Co., 7 Bush, 116.

In *Railroad Company v. Orr*, 18 Wall. 471, 475, a bill was filed by a bondholder, on behalf of himself and all others, against a county and a railroad company for the foreclosure of a mortgage given by the railroad company to secure the redemption of certain bonds issued by the county, and for a sale of the mortgaged property. The railroad company demurred for want of proper parties. It was held that the other bondholders should be parties to the suit, and, in delivering the opinion of the court, Mr. Justice Hunt observed: "It is the interest of every bondholder to diminish the debt of every other bondholder. In so far as he succeeds in doing that, he adds to his own security. Each holder, therefore, should be present, both that he may defend his own claims and that he may attack the other claims should there be just occasion for it. If upon a fair adjustment of the amount of the debts there should be a deficiency in the security, real or apprehended, every one interested should have notice in advance of the time, place, and mode of sale, that he may make timely arrangements to secure a sale of the property at its full value."

In the view we have taken of the case it is unnecessary to consider the
other points made by the defence. We are satisfied, both from the words
of the mortgage itself, and from the circumstances attending its execution,
that it should not be construed to include the land grant subsequently
made to this company.

The decrees of the court below must be reversed and the case remanded
with instructions to dismiss the bills of Parker and Hamlin, and for
further proceedings in conformity with this opinion.

True copy.

Test:

Clerk Supreme Court U. S.