Comer v. Felton

• Decision Date: 08 May 1894
• Docket Number: 135.
• Citation: 61 F. 731
• Parties: COMER v. FELTON.
• Court: U.S. Court of Appeals — Sixth Circuit

61 F. 731

COMER v. FELTON.

No. 135.

United States Court of Appeals, Sixth Circuit.

May 8, 1894

The appellee, S. M. Felton, is receiver for the Cincinnati, New Orleans & Texas Pacific Railway Company, hereafter designated as the Cincinnati Railway Company. The appellant, H. M Comer, is receiver for the Central Railroad & Banking Company of Georgia, a corporation hereafter designated as the Central Railroad; and for the Savannah & Western Railroad, a corporation hereafter designated as the Savannah Railroad. This controversy is between Felton, as receiver for the Cincinnati Railway Company, and Comer, as receiver for the Savannah Railroad Company. The subject-matter of the controversy concerns certain depot grounds and terminal facilities in the city of Chattanooga, now in possession of Comer, as receiver for the Savannah Railroad. The premises involved belong in fee to a railway company known as the Cincinnati Southern Railroad. That company leased its line and depot properties to the Cincinnati Railway Company, for which Felton is receiver. The Cincinnati Railway Company subsequently, and by a contract in writing, subleased the premises in controversy to a railway company operating a line between Chattanooga, Tenn., and Columbus, Ga., and known as the Chattanooga, Rome & Columbus Railroad Company, and hereafter designated as the Chattanooga Railroad Company. This latter company subsequently sold its line of railroad and leasehold interest in the premises, to the Savannah Railroad Company, of which Comer is receiver. After the Cincinnati Railway Company had leased the res in controversy it became insolvent, and under a bill filed by Samuel Thomas a creditor, in the United States circuit court at Chattanooga, Tenn. (as well as in the circuit courts of other districts through which its line extended), it was placed in the hands of S. M. Felton, as receiver. The Savannah Railroad Company, under a like bill filed in the same court, and after it had by assignment acquired the leasehold interest of the Chattanooga Railroad Company in the depot grounds in question, was placed in the hands of H. M. Comer, as receiver. Receiver Felton, under a power of revocation contained in the contract of leasing, gave notice to the president of the Chattanooga Railroad Company of the termination of the license extended to that company under its contract with the Cincinnati Railway Company.

The essential parts of that contract were as follows: 'Whereas, the Chattanooga, Rome & Columbus Railroad Company, a corporation of Georgia, hereinafter known as the licensee, is desirous of constructing and maintaining, at its own expense, turntables, switching and side tracks, a connecting track with the Cincinnati Southern Railway, and appurtenances thereto, to be used in its business, in the city of Chattanooga, Tennessee, on lands hereinafter described, leased and controlled by the Cincinnati, New Orleans & Texas Pacific Railway Company, hereinafter known as the licensor: These presents witness, that said licensor has granted to said licensee the following revocable and determinable license, with the following privilege, viz.: To construct and maintain such turntables, switching and side tracks, and appurtenances thereto, as may be necessary in the conduct of its business; and a connection track with said licensor's railroad track, on the lands in the city of Chattanooga, county of Hamilton, state of Tennessee, leased to and controlled by said licensor, bounded and described as follows: * * * . And to have ingress, egress, and regress to and from the same, for the purpose aforesaid, and to use the said premises for the use of said structures, said license being granted upon the following conditions, viz.: * * * That the rights and privileges hereby granted shall cease and determine upon two years' notice in writing being given by the president of said licensor. That after notice has been given of the revocation of this license by the president of said licensor, all tracks and structures placed on said premises shall be removed without any cost to said licensor within thirty days after the date of the expiration of the said notice of revocation.'

The notice given by Felton was served March 26, 1891, and its operation was to fix March 26, 1893, as the termination of the privileges enjoyed under the contract. At the date this notice was given the Chattanooga Railroad Company was in possession of its line of road and of the premises in controversy, the sale to the Savannah Railroad Company not occurring until May, 1891. On June 16, 1892, Felton, as receiver, wrote to Receiver Comer, who had, after the notice of revocation, gone into possession as receiver, the following letter:

'Cincinnati, O., June 16, 1892.

'H. M. Comer, Esq., Chairman Board of Directors, Receivers, Savannah, Ga.--Dear Sir: There have been so many changes in the management of the Chattanooga, Rome & Columbus road, and of the Central R.R.&B. Co., in the last two years, that I beg to inclose you a notice served on the former company on March 26th last, which may not have reached you. Of course this letter is not sent on account of any obligation to renew the notice, but merely as a matter of courtesy.

'Yours, truly,

S. M. Felton, President.'

The notice inclosed in above letter was as follows:

'The Chattanooga, Rome & Columbus Railroad Co., Chattanooga, Tenn.--Gentlemen: Whereas, on the 1st of December, 1887, the Cincinnati, New Orleans & Texas Pacific Railway Company granted to the Chattanooga, Rome & Columbus Railroad Company a revocable and determinable license, authorizing the construction and maintenance of turntables, switching and sidetracks, and appurtenances thereto, as might be necessary in the conduct of the business of the Chattanooga, Rome & Columbus Railroad Company, and the connection track, on lands in the city of Chattanooga, county of Hamilton and state of Tennessee, fully described in said license; and whereas, said license provided that the rights and privileges therein granted should cease and terminate upon two years' notice in writing being given by the president of said licensor; and whereas, the Cincinnati, New Orleans & Texas Pacific Railway Company, licensor therein, is desirous of revoking and terminating the said rights and privileges: Now, therefore, I, Samuel M. Felton, president of the Cincinnati, New Orleans & Texas Pacific Railway Company, licensor in the aforesaid license, do hereby give you this notice of the revocation of said license, and require you to remove all tracks, structures, and other things placed on said premises, without any cost to the Cincinnati, New Orleans & Texas Pacific Railway Company, within the time named therefor in the said license.

'(Signed)

Samuel M. Felton.' Upon the expiration of the license, Felton demanded possession of the premises, and was refused. He then unadvisedly instituted an action of unlawful detained before a justice of the peace, for the purpose of dispossessing Receiver Comer. The justice found for the defendant. Thereupon Felton, as receiver, filed the original pleading in this cause, as a petition in the case of Samuel Thomas v. The Cincinnati, New Orleans & Texas Pacific Railway Company, against H. M. Comer, as receiver for the Savannah & Western Railroad Company. In that petition he set out his appointment as receiver under a decree in the pending cause, and the appointment of Comer under decree of the same court in a like pending cause, and substantially stated the nature of the claim he asserted to the premises in dispute. The petition prayed for the issuance of a writ of assistance to put him in possession as receiver, or, if the court thought that not the proper remedy, that the court would order its officer and agent, H. M. Comer, to surrender to him the possession of the grounds in controversy. Notice was given counsel for Comer that, on the day named, application would be made for a writ of assistance.

A demurrer was interposed and overruled. An answer was then filed, and a reference made to the clerk to report as to the notice of revocation. Upon the pleadings, report, and evidence, the circuit court ordered that Receiver Comer vacate the premises, and surrender possession to Receiver Felton. From this order, Comer has appealed.

The first error assigned is as to the decree overruling the demurrer. The demurrer was as follows: 'Because there is no equity on the face of said petition so far as it seeks a writ of assistance against this defendant in said cause, in that your defendant is shown to have been in possession of said terminal grounds and rights under a valid and undetermined license contract at the time petitioner was appointed receiver for said defendant company, and the decree entered on which the said writ of assistance is sought in this petition; and your defendant, H. M. Comer, was not a party to said proceedings. (2) Because the decree entered in said cause appointing said petitioner receiver of C., N. O. &amp T. P. Ry. Co. does not direct the property held by your demurrant to be delivered to petitioner, and is not against your demurrant, but only against the defendant in said cause, the Cincinnati, New Orleans & Texas Pacific Railway Company, and that said company only turn over such property as it then held and possessed. Wherefore, for these and other sufficient reasons, apparent on face of said petition, your demurrant prays for judgment on...