Louisville Trust Co. v. Cincinnati Inclined-Plane Ry. Co.
| Decision Date | 24 December 1897 |
| Citation | 91 F. 699 |
| Parties | LOUISVILLE TRUST CO. v. CINCINNATI INCLINED-PLANE RY. CO. (GOODMAN, Intervener . |
| Court | U.S. District Court — Southern District of Ohio |
The bill showed a default in the interest, and the right to foreclose. A receiver was appointed and put in charge of the road, and is now in possession. W. A. Goodman filed his interviewing petition, praying for the foreclosure of a prior mortgage, dated January 1, 1879, and duly recorded given by the same defendant (the Cincinnati Inclined-Plane Railway Company) to Goodman, as trustee, to secure bonds amounting to $125,000 issued by that company, and in the hands of various holders for value. The averments of the interviewing petition show a default of interest on the mortgage to Goodman, trustee, and a right on his part to a foreclosure of the same. By leave of court, an answer has been filed by Goodman, trustee, to the amended bill of the complainant, and Louisville Trust Company; and an answer has been filed by the Louisville Trust Company to the intervening petition of Goodman, trustee. It has not been disputed that the Louisville Trust Company and Goodman, trustee, have the right to foreclose their respective mortgage bs; and the only question now to be decided, and which arises upon the pleadings of these two parties, is that of priority between the mortgages with reference to the rolling stock, and to the part of the railroad of the Cincinnati Inclined-Plane Railway Company which extends from the Zoological Garden to Carthage in Hamilton county. The case was referred to a master to make a finding of certain facts. That finding has been made, and no exceptions have been taken thereto. From the findings and the evidence accompanying the same, it appears that in 1879 the Cincinnati Inclined-Plane Railway Company, organized under an act of May 1, 1852, as a steam-railroad company owned an inclined plane extending from Locust street, on Mt. Auburn, down to the head of Main street, at its intersection with Mulberry; that in connection with its inclined plane it owned a horse railroad running from the foot of the inclined plane down Main street to Court, west on Court street to Walnut, south on Walnut street to Fifth, east on Fifth street to Main, and north on Main street to the inclined plane; that at the head of the inclined plane it owned a street railroad running from the inclined plane north on Locust street to Mason, east on Mason street to Auburn avenue, north on Auburn avenue to Vine street, north on Vine street to the Zoological Garden, and (returning by another track) south on Vine street from the Zoological Garden to Auburn avenue, south on Auburn avenue to Mason, west on Mason to Locust, and south on Locust to the inclined plane; that the terminal of the road thus laid out and operated were Fountain squire, in the city of Cincinnati, and the village of Avondale; that the inclined plane was operated by steam, and the street railroad used in connection therewith was operated by horses. The mortgage to W. A. Goodman, trustee, recites that the bonds and mortgages were issued 'for the purpose of paying the debts of the company incurred in this extension of the company's road and the increase of its equipment. ' This, it is conceded, refers to the extension of the road made in 1878 from Vine street north to the Zoological Garden, and to other changes between the termini on Fifth street, in the city of Cincinnati, and the Zoological Garden. By the mortgage to Goodman, the mortgagors granted, bargained, and sold, under and by virtue of the power and authority in them vested by the laws of the state of Ohio, 'and of all and every power and authority in them in any wise vested, to the said Henry Peachey and William A. Goodman, trustees as aforesaid, their heirs and assigns, and the heirs and assigns of the survivor of them, by way of mortgage, all and singular, the railways, rails, bridges, and real estate, and all the tolls, income, issues, and profits to accrue from the same or any part thereof, belonging to or held by said company, and, all and singular, the cars and rolling stock, and also, all and singular, the franchises and property, real and personal, of said company, including said leased railway, together with all the rights, easements, incidents, and appurtenances unto the hereby-granted premises belonging or in any wise appertaining. ' The lease railway referred to in this description was route No. 8, now an expired grant from the city, part of the line of which was embraced in the double-track railway between the Zoological Garden and Fifth street. The road between Fifth street and Avondale was operated from 1879 until 1889, when permission was obtained from the city of Cincinnati to equip the line with electrical appliances. At that date the mortgage to the Louisville Trust Company was issued, and, of the proceeds of that mortgage, $375,000 were used to equip the road with electricity, and to extend it, under and by virtue of a vote of the stockholders in accordance with section 3306 of the Revised Statutes of Ohio, from the Zoological Garden to Carthage, Hamilton county. The distance from Fifth street to the Zoological Garden is about three miles, and that from the Zoological Garden to Carthage is about eight miles. The application of electricity to the road required the purchase of some 17 or 18 large cars, equipped with electrical motors, together with the erection of poles and the relaying of the track. The mortgage to the Louisville Trust Company, it is not disputed, covers the whole road, together with after-acquired property. The only question to be decided is whether the mortgages to W. A. Goodman, trustee, covers more than the line of the road, from Fifth street to the Zoological Garden, and more than the personal property, including the rolling stock, that was in existence January 1, 1879, when the Goodman mortgage was given.
St. John Boyle and Humphrey & Davie, for Louisville Trust Co.
Follett & Kelley, for W. A. Goodman, trustee.
TAFT Circuit Judge (after stating the facts as above).
The grant in the mortgage was, first, of 'the railways rails, bridges, and real estate * * * belonging to or held by said company. ' Now, there is not a word here containing the slightest suggestion that these words refer to future-acquired property. In the absence of such words, they must be construed to mean such property then in existence, and owned by the mortgagor. The grant was, second, of 'all the tolls, incomes, issues, and profits to accrue from the same or any part thereof. ' This language limits the income, tolls, and profits to those accruing from 'the railways, rails, bridges, and real estate' then in existence and owned by the mortgagor. To hold otherwise would be to ignore the plain effect of the words 'to accrue from the same or any part thereof. ' A vigorous argument has been made to sustain the claim that the words 'income, tolls, and profits' manifest the intention of the mortgagor to mortgage the subsequently acquired extension of the railway, because income was necessarily future, and includes by implication the means of producing the same, and so would embrace after-acquired property from which such income could be derived. It is said that this is the necessary effect of the case of Coe v. Railroad Co., 10 Ohio St. 372. It was there held that the power to pledge property and income implied the power to pledge after-acquired property, and because income would be derived from property then owned and to be acquired. The reason why the construction of the statutory power of a company in that case can have no application to the case at bar is that here the income pledged is expressly limited to that derived from the previously described railway and real estate, which, as already said, was the railway and real estate owned by the mortgagor company. Whether income, tolls, and profits from such railways and real estate may include future to be...
To continue reading
Request your trial
-
Guaranty Trust Co. of New York v. Minneapolis & St. LR Co.
...be such as clearly to show an intention to cover such property. Pennock v. Coe, 23 How. 117, 16 L. Ed. 436; Louisville Trust Co. v. Cincinnati Inclined-Plane R. Co. (C. C.) 91 F. 699; Elijah Smith v. McCullough, 104 U. S. 25, 26 L. Ed. 637; Maxwell v. Wilmington Dental Mfg. Co. (C. C.) 77 F......
-
Vrooman v. Burdett
... ... Streicher ... v. Mercantile Trust Co., 31 S.W.2d 1065. (2) ... Appellant's insistence that the plaintiff ... was to pass under the instrument;" Louisville Trust ... Co. v. Cincinnati, etc., Ry. Co., 91 F. 699, Taft, J., ... ...
-
Guaranty Trust Co. v. Minneapolis & St. LR Co.
...construed as the equivalent of an after-acquired property clause covering equipment. Such was the ruling in Louisville Trust Co. v. Cincinnati Inclined-Plane R. Co. (C. C.) 91 F. 699. Circuit Judge Taft (now Chief Justice of the United States) in rendering his decision in the case, "Let us ......
-
Atwater v. Wheeling & LE Ry. Co.
...legislation was the subject of consideration by Mr. Chief Justice Taft (then Circuit Judge) in Louisville Trust Co. v. Cincinnati Inclined-Plane Ry. Co. (C. C.) 91 F. 699, pages 704, 705. Referring to the sections of this act, he said: "They were intended to apply to a road which has been p......