Babcock v. United States
| Decision Date | 09 December 1925 |
| Docket Number | No. 3633.,3633. |
| Citation | 9 F.2d 905 |
| Parties | BABCOCK et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Seventh Circuit |
F. B. Shoaff and E. G. Hoffman, both of Ft. Wayne, Ind., for appellants.
Albert Ward, of Peru, Ind., for the United States.
Before EVANS, PAGE, and ANDERSON, Circuit Judges.
Plaintiffs in error, digging a drainage ditch, authorized under the laws of the state of Indiana, were about to cut a channel, 30 feet wide and 14 feet deep, through the Lincoln Highway, a post road, partially built and then recently paved by federal aid, when, at the suit of the United States, a restraining order was granted, followed by the injunction here in question. The contract required plaintiffs in error to erect a wooden bridge, which was only temporary, across the channel on one side of the Lincoln Highway. So far as plaintiffs in error are concerned, that channel through the Lincoln Highway was and is to remain open forever, and neither the state nor any other authority has taken any step to provide a permanent bridge.
Two contentions are made by plaintiffs in error: (a) That the granting of the restraining order and the injunction violated section 265 of the Judicial Code (Comp. St. § 1242); (b) that the United States has no interest in the highway that entitles it to maintain this action.
The first contention is answered by Public Service Co. v. Corboy, 250 U. S. 153, 39 S. Ct. 440, 63 L. Ed. 905.
The second contention is answered, and likewise adversely to plaintiff in error, by Searight v. Stokes, 3 How. 151, 11 L. Ed. 537, and In re Debs, 158 U. S. 564, 15 S. Ct. 900, 39 L. Ed. 1092. Commenting on the Searight Case, plaintiffs, in argument, say: "Such a road was truly a federal road in its ownership and control, and might well have been the subject of such a proceeding as the present on the part of the United States."
This concedes the whole point, because the highway there in question was not a federal highway in either ownership or control. The Cumberland Road was constructed by the United States, through Pennsylvania and several other states, under federal legislation. For list of acts relating thereto see vol. 2, p. 357, U. S. Stats. at Large. By act of Congress parts of the Cumberland Road had been ceded to the several states. The Chief Justice said: "Under this act of Congress the surrender was accordingly accepted in 1835, * * * and from that time the road has been in the possession of and under the control...
To continue reading
Request your trial
-
In re Green River Drainage Area
...denied 293 U.S. 586, 55 S.Ct. 101, 79 L.Ed. 682; United States v. Babcock, D.C.D.Ind., Ft. Wayne D., 1925, 6 F.2d 160, modified, 7 Cir., 1925, 9 F.2d 905; Mitchell v. Spanish Fork West Field Irrigation Co., 1 Utah 2d 313, 265 P.2d 1016; Smith v. District Court of Second Judicial District in......
-
Leiter Minerals v. United States
...480, 85 L.Ed. 800; United States v. McIntosh, D.C., 57 F.2d 573; United States v. Babcock, D.C., 6 F.2d 160, reversed for modification 7 Cir., 9 F.2d 905; United States v. Inaba, D.C., 291 F. 416. But see United States v. Land Title Bank & Trust Co., 3 Cir., 90 F.2d 970; United States, for ......
-
State v. Roberts, 28342.
...opinion in its reasoning consider these issues. See United States v. Babcock, D.C.1925, 6 F.2d 160;Babcock v. United States, 7 Cir., 1925, 9 F.2d 905. However, the majority opinion does constitute a radical departure from the well considered cases defining and limiting the authority of publ......
-
State v. Roberts
... ... amended, which road extends over and across United States ... Highway No. 41,' and which further adjudged that the ... 'Highway Commission of ... reasoning consider these issues. See United States v ... Babcock, D.C. 1925, 6 F.2d 160; Babcock v. United ... States, 7 Cir., 1925, 9 F.2d 905 ... ...