Hazard Powder Co. v. Volger, 219.

• Decision Date: 18 September 1893
• Docket Number: 219.
• Parties: HAZARD POWDER CO. v. VOLGER.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 152

HAZARD POWDER CO. v. VOLGER.

No. 219.

United States Court of Appeals, Eighth Circuit.

September 18, 1893

John W Lacey and Willis Van Devanter, for plaintiff in error.

A. C Campbell and P. Gad Bryan, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

CALDWELL Circuit Judge.

This was an action brought by Schultz Volger, the defendant in error, against the Hazard Powder Company, the plaintiff in error. The pleadings in the case are extremely prolix and redundant. The substance of the complaint is that the plaintiff was in the lawful possession of a parcel of real estate, and a dwelling house situated thereon, in the city of Cheyenne, and that the defendant, in violation of an ordinance of the city, erected and maintained therein a powder magazine, situated near by the plaintiff's house in which it stored and kept a large quantity of gunpowder and that on the 2d day of July, 1885, the powder in the magazine exploded, destroying the plaintiff's house and its contents, and seriously injuring his wife and child. The defenses were a general denial, and that the powder company owned and was in possession of the premises where the plaintiff was living at the time of the explosion, and that the plaintiff was living thereon as a trespasser, with the knowledge of the location of the magazine and its dangers. There was a trial, and verdict and judgment for the plaintiff, and the powder company sued out this writ of error.

The plaintiff claimed he entered upon the premises and erected his house thereon under a license from James Talbot, the owner of the land, and the first two errors assigned relate to the admission in evidence, over the defendant's objection, of a deed from John Talbot to James Talbot, and from the latter to the former, for land claimed to embrace the parcel on which the plaintiff's house stood. It is objected in this court that these deeds are void for uncertainty in the description of the premises, but this ground of objection was not interposed in the lower court. The objection there made was the very general and indefinite one that they were 'incompetent and irrelevant.' But, waiving this objection to the sufficiency of the exceptions, they are unavailing for another reason. All the evidence shows that the plaintiff was in the actual and peaceable possession of the premises, and that was sufficient evidence of his right to the premises to enable him to maintain this action. Railway Co. v. Johnson, 54 F. 474; Railroad Co. v. Lewis, (9th Circuit,) 7 U.S. App. 254, 2 C. C. A. 446, 51 F. 658. If, therefore, the admission of the deeds in evidence was an error, it was an error without prejudice.

It is assigned for error that the court excluded from the evidence a quitclaim deed from the Union Pacific Railroad Company to the powder company, dated March 8, 1889, for the premises upon which the magazine and the plaintiff's house were situated. This deed was made four years after the explosion, and was rightly excluded on that ground.

The fourth specification of error is that the court admitted in evidence the plat of the city of Cheyenne made by Gen. G. M. Dodge, as surveyor and chief engineer of the Union Pacific Railway Company. The following certificates were annexed to this plat:

'Dedication of the Town of Cheyenne.

'I, G. M. Dodge, do hereby certify that I am a surveyor and civil engineer; that I caused to be surveyed accurately the town of Cheyenne, in the county of Laramie, in the territory of Wyoming, a plat of which is hereto appended, and that the streets, alleys, lanes, avenues, squares, parks, commons, and such pieces of land as were set apart for public, village, town, city, or railroad use, or dedicated to charitable, religious, or educational purposes, were well and accurately staked off and marked.

G. M. Dodge,

'Surveyor and Chief Engineer U. P. R. R.

'I, G. M. Dodge, being trustee for the owners of the lots, lands, and premises described and shown on the foregoing plat, do hereby designate and name the same the 'Town of Cheyenne,' and dedicate the streets, alleys, and public grounds thereof, as shown on the said plat, to the public use.

'G. M. Dodge,

'Chief Engineer U. P. R. R. and Trustee.

'In presence of J. M. Eddy, Assistant Engineer.'

An act to incorporate the city of Cheyenne, passed by the territorial legislature in 1877, (Sess. Laws Wyo. 1877, p. 37,) provided that 'all that portion of the territory of Wyoming situated on Crow Creek, in the county of Laramie, where the Union Pacific Railroad crosses the same, laid out and platted as a town site by the Union Pacific Railroad Company under and by the name of 'Cheyenne,' is hereby declared to be a corporation by the name of the 'City of Cheyenne."

The evidence shows that this plat is now, and always has been recognized and accepted by the city and its officers, and by surveyors and conveyancers, as the official plat of the city, and as the plat mentioned in the act of the legislature incorporating the city.

A sufficient answer to this assignment of error is found in the fact that the record does not show that the defendant objected to the introduction of the plat in the lower court. The objection to its competency is made for the first time in this court, upon the ground that it is not 'shown that the instrument is the act of the Union Pacific Railroad Company.' The objection is not well founded in fact. It sufficiently appears from the evidence that the plat was made by authority of the Union Pacific Railroad Company, and is the plat referred to in the act of the legislature incorporating the city. Confessedly, according to the plat, the plaintiff's house and the defendant's powder magazine were within the city limits.

In its charge the court below said to the jury:

'Some question was raised during the progress of the trial whether the magazine was, in fact, within the limits of the city. Upon that question, plaintiffs exhibited a map which, I believe, was made by General Dodge, and signed by himself as chief engineer of the Union Pacific Railroad Company,--a map of the city upon which the town site was divided into blocks, lots, streets, and alleys; and in that connection an act of the territorial legislature was introduced in evidence, which declares that the city of Cheyenne shall include so much as was embraced within this map. It is true, the reference to the map was not very clear, inasmuch as the act described the map as one made by the Union Pacific Railroad Company, and it did not appear that this map was made by the railroad company, except in so far as it might be inferred from the circumstances that it was made and signed by the chief engineer of that company; but, inasmuch as it does not appear that there was any other map to which the legislature referred, we must assume that in the act to which reference has been made it referred to this map, and that the city was established upon the territory indicated upon that map. And as to that the testimony, uncontradicted, is that the magazine was located upon block thirty-one within the plat made by Dodge. From that, upon these facts, we assume that the magazine was within the city, and was within the prohibition of the ordinance passed by the city council of

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