it conveyed the fee. The effect of this decision is attempted to be avoided by saying that the distinction between an easement and the fee was not raised. The action was ejectment, and was brought in Kansas, and under the law of that state title could be tried in ejectment. Title was asserted by Roberts, who was plaintiff in the state court, and this court evidently considered it involved in the case. The language of Mr. Justice Field, who delivered the opinion of the court, would be unaccountable else. The difference between an easement and the fee would not have escaped his attention and that of the whole court, with the inevitable result of committing it to the consequences which might depend upon such difference.

Washburn in his work on Easements, on page 10, says: "Whether the thing granted. be an easement in land or the land itself may depend upon the nature and use of the thing granted." To sustain this view the learned author cites Jamaica Pond Aqueduct Corporation v. Chandler and others, 9 Allen, 159. In that case the court said: "Whenever a grant is made of a right or easement[183] in lands which fall within the class sometimes described as 'non-continuous'-that is, where the use of the premises by the grantee for the purpose designated in the deed will be only intermittent and occasional, and does not embrace the entire beneficial occupation Mr. Justice Blatchford said in Joy v. St. and improvement of the land-the reasonLouis, 138 U. S. 44 [34:857]: "Now the able interpretation is, that an easement in term 'right of way' has a twofold significa- the soil, and not the fee, is intended to be tion. It is sometimes used to describe a conveyed. Among the most prominent of right belonging to a party, a right of pas- this class of easements is a way." An ordisage over any tract; and it is also used to nary way, of course, the court meant, one the describe that strip of land which railroad use of which would be non-continuous-only companies take, upon which to construct intermittent and occasional; but a way not their roadbed." That is, the land itself-of that character, whose use would be connot a right of passage over it. So, this tinuous, not occasional, and which would court in Missouri, Kansas & Texas Railway embrace the entire beneficial occupation and Co. v. Roberts, 152 U. S. 144 [38: 377], pass-improvement of the land, might require the ing on a grant to one of the branches of the fee for its enjoyment-certainly would reUnion Pacific Railway Company of a right quire more than a mere right of passage. of way two hundred feet wide, decided that "Unlike the use of a private way-that is, ure; number of horses, mules, cattle, sheep, swine, and other animals; of carriages and vehi cles of every description; jewelry, gold and silver plate; musical instruments; household furniture; moneys and credits; shares of stock of any corporation or company; and all other property not herein enumerated, with the value of the different classes of property in detail.

2834. On or before the first Monday in March, annually, the assessor shall make out an assessment book or roll, with appropriate headlines, alphabetically arranged, in which must be listed all the property in the county subject to taxation. Such book shall contain the names of the persons to whom the property is assessed, with the several species of property and the value as hereinbefore indicated, with the columns of numbers and values as given by the person makIng the return, as fixed by the assessor, and as decided by the county commissioners. At the end of such book or roll all property assessed to "unknown owners" shall be entered.

To support its contention, appellant urges the technical meaning of the phrase "right of way," and claims that the primary presumption is that it was used in its technical sense. Undoubtedly that is the presumption, but such presumption must yield to an opposing context, and the intention of the legislature otherwise indicated. Examining the statute, we find that whatever is granted is exactly measured as a physical thing-not as an abstract right. It is to be two hundred feet wide, and to be carefully broadened so as to include grounds for the superstructures indispensable to the railroad.

The phrase "right of way," besides, does not necessarily mean the right of passage merely. Obviously, it may mean one thing in a grant to a natural person for private [182]purposes and another thing in a grant to a railroad for public purposes-as different as the purposes and uses and necessities respectively are.

In Keener v. Union Pacific Railroad Co. 31 Fed. Rep. 128, Mr. Justice Brewer defined the words "right of way" as follows: "The term 'right of way' has a twofold significance. It sometimes is used to mean the mere intangible right to cross-a right of crossing, a right of way. It is often used to otherwise indicate that strip which the railroad company appropriates for its use, and upon which it builds its roadbed."

claim and demand for money, or other valuable thing, and every annuity or sums of money receivable at stated periods; but pensions from the United States and salaries, or payments expected for services to be rendered, are not included in the above term.

2822. The assessor is required, between the first day in March and the first day in May of each year, to ascertain the names of all taxable inhabitants and all property in his county subJect to taxation. To this end he shall visit each precinct in the county, and exact from each person a statement in writing, or list showing separately:

First. All property belonging to, claimed by, or in the possession or under the control or management of such person, or any firm of which such person is a member, or any corporation of which such person is president, secretary, cashier, or managing agent.

Second. The county in which such property is situated, or in which it is liable to taxation. Third. A description by legal subdivisions or otherwise, sufficient to identify it. of all real estate of such person and a detailed statement of his personal property, including average value of merchandise for the year ending March 1st amount of capital employed in manufact

2835. Each tract of land shall be valued and assessed separately except when one or more adjoining tracts are returned by the same person, in which case they may be valued and assessed together.

est of the railroad company was a naked right of way it would constitute no such right of possession of the land itself as would sustain the action; for such a right would be an incorporeal one upon which there could be no entry, nor could possession of it be given under an habere facias possessionem. In this case it was held that the interest taken by the railroad was not an easement.

The interest granted by the statute to the Atlantic & Pacific Railroad Company,[185] therefore, is real estate of corporeal quality, and the principles of such apply. One of these, and an elemental one, is that whatever is erected upon it becomes part of it. There are exceptions to the principle, but as we are not concerned with them, we need not state them. Applications of the principle to railroads are illustrated by the de cisions of this court and by those of other courts. As to rails put down against him from whom purchased (Galveston H. & H. Railroad Co. v. Cowdrey, 11 Wall. 459 [20: 199]; United States v. New Orleans Railroad Co. 12 Wall. 362 [20: 434]; Thompson v. White Water Valley R. Co. 132 U. S. 68 [33: 256]), even though the contract of purchase provided that the property should remain that of the vendor and he have a right to remove the same (Porter v. Pittsburg Steel Bessemer Co. 122 U. S. 267 [30: 1210] and cases cited); in determining the relation of the rails to the right of way, Joy et al. v. City of St. Louis, 138 U. S. 1 [34: 843]. In this case, Mr. Justice Blatchford said: "The track cannot be separated from the right of way, the right of way being the principal thing and the track merely an incident. A right of way is of no particular use to a railroad without a superstructure and rails; the track is a necessary incident to the enjoyment of the right of way." See also Palmer v. Forbes et al. 23 Ill. 301; Hunt v. Bay State Iron Co. et al. 97 Mass. 279; City of New Haven v. Fair Haven & W. R. R. Co. 38 Conn. 422.

Distinguishing the case from Wood v. Truckee Turnpike Co. 24 Cal. 474, in which it was held that "a road or right of way is an incorporeal hereditament, and ejectment is maintainable only for corporeal hereditaments," the court said: "We think that case plainly distinguishable from this. Here there was a special grant of a right of way two hundred feet in width on each side of The principle has also illustrations in the road. This grant is a conclusive de- cases of taxation. People [Dunkirk & F. R. termination of the reasonable and necessary Co.] v. Cassity, 46 N. Y. 46; Appeal Tax quantity of land to be dedicated to the pub- Court of Baltimore City v. The Baltimore lic use and it necessarily involves a right of Cemetery Co. 50 Md. 432; Osborne v. Humpossession in the grantee, and is inconsistent phrey, 7 Conn. 335; Parker v. Redfield, 10 with any adverse possession of any part of Conn. 490; Lehigh Coal and Navigation Co. the land embraced within the grant. It is v. Northampton County, 8 Watts & S. 334; true the strip of land now actually occupied Chicago, Milwaukee & St. P. R. R. Co. v. by the roadbed and telegraph line may be Crawford County Supers. 48 Wis. 666; Richonly a small part of the four hundred feet mond v. Richmond & D. R. R. Co. 21 Gratt. granted, but this fact is of no consequence. 604; Mayor etc. of Baltimore v. Baltimore & The company may at some time want O. R. R. Co. 6 Gill, 288 [48 Am. Dec. 5311; to use more land for side tracks, [Osborn v. New York & N. H. R. Co.] 40 or other purposes, and it is entitled Conn. 491; [Richmond & D. R. Co. v. Alato have the land clear and un-mance Comrs.] 84 N. C. 504; Worcester v. obstructed whenever it shall have occasion to Western Railroad Corporation, 4 Met. 564. do so." The court quoted and approved the views expressed in the City of Winona v. Huff, 11 Minn. 119, that for a mere easement perhaps an action of ejectment would not lie; but wherever a right of entry exists and the interest is tangible so that possession can be delivered, an action of ejectment will lie." The same distinction was made in New York S. & W. R. R. Co. v. Trimmer, road Co. v. Missouri. 152 U. S. 306 [38: supra, and the court said that if the inter- 453]; Norfolk & Western R. R. Co. v. Pen

It is urged, however, that the rule of construction declared in Vicksburg, S. & P. R. Co. v. Dennis, 116 U. S. 665 [29: 770], and the cases there cited and approved, and re-[186] peated in Yazoo & M. Valley Railroad Co. v. Thomas, 132 U. S. 184 [33:396]; Wilmington & W. Railroad Co. v. Alsbrook, 146 U. S. 294 [36: 978]; Keokuk & W. Rail

discontinuous-the use of land condemned by a railroad company is perpetual and continuous." New York S. & W. R. R. Co. v. Trimmer, 53 N. J. L. 3.

But if it may not be insisted that the fee was granted, surely more than an ordinary easement was granted, one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it, corporeal, not incorporeal, property.

In Smith et al. v. Hall et al. [103 Iowa, 95], 72 N. W. Rep. 427, the supreme court of Iowa says, speaking of the right of way of a railroad: "The easement is not that spoken of in the old law books, but is peculiar to the use of a railroad which is usually a permanent improvement, a perpetual highway of travel and commerce, and will rarely be abandoned by nonuser. The exclusive use of the surface is acquired and damages are assessed on the theory that the easements will be perpetual; so that ordinarily the fee is of little or no value unless the land is underlaid by a quarry or mine."

"The right acquired by the railroad company, though technically an easement, yet requires for its enjoyment a use of the land permanent in its nature and practically exclusive." Hazen v. Boston & Me. R. R. Co. 2 Gray, 580. [184] *In Southern Pacific Co. v. Burr, 86 Cai. 279, the supreme court of California sustained an action of ejectment for land constituting a part of the right of way granted to the Central Pacific Railroad by the act of July 1, 1862, by language similar to the grant in the case at bar.

dleton, 156 U. S. 667 [39: 574]; and Covington & L. Turnpike Road Co. v. Sandford, 164 U. S. 578 [41: 560],-determines in favor of appellant's contention. That we do not think so is probably sufficiently indicated, but we cite the cases to preclude the thought that they have been overlooked, or that the

near the mouth of the Brazos river, was not of such character or made under such circumstances as to require the court to relieve the Elfrida against the payment of such stipulated compensation.

[No. 60.]

cember 12, 1898.

rule announced by them is questioned. In- Argued November 10, 11, 1898. Decided Dedeed, we regard it as salutary, and not impaired by our decision, which simply rests on the terms of the statute.

[blocks in formation]

(See S. C. Reporter's ed. 186-206.) Salvage contract, when valid-contract to pay one fourth the value of the vessel contract as to steamship Elfrida, valid. 1. A salvage contract for stipulated compensation, dependent upon success within a limited time, although the amount may be much larger than a mere quantum meruit, will not be set aside unless corruptly entered into. or made under fraudulent representations, a clear mistake, or suppression of important facts, in immediate danger to the ship, or under other circumstances amounting to compulsion, or unless its enforcement would be contrary to equity and good conscience.



An agreement to pay one fourth of the value of a vessel as salvage, although it gives a very large compensation for the work which actually proves necessary to be done, will not be considered unconscionable or exorbitant, ter of an offer to do the work for such salvage as the court should award, and after receiving bids and full advice from the owners of the vessel and the underwriters' agent, who came to the vessel and saw her situation, and when the vessel, though in serious danger, was in fact never in imminent peril.

when it was made after a refusal by the mas

The salvage contract between the steamship Elfrida and its owners of the one part, and Charles Clarke & Company of the other part, by which the former agreed to pay the latter $22,000 to release the Elfrida, then stranded The docket title of this case is "Charles

Clarke and Robert P. Clarke, Petitioners, v. The Steamship Elfrida, etc."

N WRIT of certiorari to the United States

Circuit to review a decree of that court reversing the decree of the District Court of the United States for the Eastern District of

Texas in favor of the libellant Charles Clarke & Co., against the British Steamship Elfrida for $22,000 and interest, and remanding the case with instructions to enter a decree in favor of libellants for $10,000, with interest at 6 per cent. Decree of the Circuit Court of Appeals reversed, and the case remanded to the District Court for the Eastern District of Texas, with directions to execute its original decree.

See same case below, 41 U. S. App. 585.

Statement by Mr. Justice Brown: *This was a libel in rem by the firm [187] Charles Clarke & Co., of Galveston, Texas,

against the British steamship Elfrida, to recover the sum of $22,000, with interest and costs, claimed to be due them for services ren

dered in the performance of a salvage contract with the master, to release the Elfrida, then stranded near the mouth of the Brazos river.

The principal averments of the answer were in substance that the agreement was signed by the master under a mutual mistake of fact, or by mistake on his part, which libellants took advantage of, as to the danger in which the vessel was, and that it was improvidently made for an excessive compensation, without a proper understand-[188] ing by him of the vessel's alleged freedom from danger; that the master had been prevented from carrying out his instructions to accept a tender made, if lower impossible, by information of the cable being conveyed to the salvors before the master saw it; that the parties were not upon an equal footing; that libellants made an unreasonable bargain with the master because of the stress of the situation and that of his vessel, and acted collusively with other salvors in obtaining from him the agreement.

On Friday, October 5, 1894, the Elfrida, a steel steamship of 1454 tons register, 290 feet long, 38 feet in width, and drawing 11 feet 10 inches, bound for the port of Velasco, Texas, in ballast, grounded on the bar between the jetties which extend from either bank of the river, about a mile into the Gulf, the outer end of these jetties, for a distance of a thousand feet or more, being sub merged. The heel of the ship touched, there being but five inches between the bottom and the bar, and an easterly wind swung her bow against the west jetty. The captain ran out a kedge from the starboard bow, hove taut with the windlass, put her engine full speed astern, but could not move the ship. The


wind and sea increased during the afternoon | tained on the part of the said party of the and evening, while the ship was straining first part, to be kept and performed, and bumping heavily. The weather moder- the said party of the second part hereby ated somewhat on the following day, and the agrees and binds himself, his administrasame efforts were continued unsuccessfully tors and assigns, to float and place in a until the evening, when the sea rose, carrying safe anchorage, Quintana or Galveston, her over the submerged outer end of the as directed, the S. S. Elfrida, which is now jetty, and some distance farther shoreward stranded west of and near to the west jetty on the beach. She brought up that night at the mouth of the Brazos river, in said about a cable's length to the west of the west county and state; to furnish all labor and jetty. That part of the jetty which was material at the cost of said party of the secabove high water projected seaward beyond ond part, and to furnish diver and necesher stern and sheltered her from easterly sary apparatus to survey or examine the winds. She lay parallel with the jetty bottom of said steamship, and to complete about four or five hundred feet from the the same within twenty-one (21) days from beach, head on, and about one thousand feet date hereof. from water of sufficient depth to float her. The shore at this point is very flat, the bot tom consisting of a layer of quicksand about ten feet deep. The steamer settled in the quicksand to her normal draft, rocking and 89]moving in it whenever there was a high sea. She lay in nine feet of water at high tide. The weather continued generally favorable from the 7th to the 17th, with occasional gales and high seas. The ship drifted somewhat further on the beach, but efforts to relieve her by her own resources seem to have been practically abandoned.

The said party of the first part agrees to pay to the said party of the second part for such service, i. e., when he shall have successfully floated said ship, as above set forth, the sum of twenty-two thousand dollars (22,000). The said party of the first part, however, reserving the right hereby to abandon the ship to and in favor of the said second party in lieu of the amount of $22,000 agreed to be paid as aforesaid.

It is further understood and agreed by and between the parties hereto that a failure to float and place in a position of safety, as above stated, said steamship within the time hereinbefore specified, to wit, twentyone days from date hereof, that said party of the second part shall receive no compensation whatever from said first party for work performed, labor, tools, or appliances furnished.

On Tuesday, October 9, the master sent the following letter to the libellants:

Velasco, Oct. 9, 1894. Capt. Chas. Clarke, re 8. S. Elfrida. Dear Sir: Please tender for to float and place in a place of safety, say Galveston, where her bottom can be examined, furnishing diver and his apparatus. Also to furnish all material and labor in floating said steamship Elfrida, also time required. Reply at your earliest convenience under seal to Jas. Sorely, Lloyds' agent, or myself. No cure, no pay.

Yours truly,

By B. Burgess, Master. P. S.-A convenient time to be laid to get the ship off, and if at the expiration of the time the vessel is still aground, all claim on this contract to cease and to be null and void. B. Burgess, Master.

In reply to this libellants submitted a tender, offering to perform the service for the sum of $22,000, which was accepted by the advice of Lloyds' agent, who was on board the vessel at the time, and with the consent of Pyman, Bell, & Co., of Newcastle-on-Tyne, owners of the Elfrida.

The State of Texas,
County of Brazoria.)

Anything that may be discharged to enable vessel to float shall be replaced when she is in a position of safey. It is also agreed and understood that the use of crew and engine shall be at the use and disposal of said party.

This agreement made and entered into this 15th day of October, 1894, between the steamship Elfrida and the owners thereof, represented herein by B. Burgess, master of said steamship, as party of the first part, and Charles Clarke & Co., of Galveston, Texas, as party of the second part.

Witnesseth, that for and in consideration [190]of the covenants *and agreements herein con

Witness the hand of B. Burgess, master of the steamship Elfrida, for himself, said ship and the owners, party of the first part, and the hand of Charles Clarke & Co., party of the second part, this 15th day of October, 1894. Benj. Burgess.

Chas. Clarke & Co.


*The day before the contract was signed,[191] the libellants, having learned that their tender for the work had been accepted, hired the schooner Louis Dolsen, of fifteen tons, The following contract, which forms the for which they paid $100, to take their plant basis of the present suit, was thereupon en-to Galveston in tow of their tug Josephine. tered into: They also hired a large force of men, procured nearly a month's supplies, cables, chains, anchors, two tug-boats, two lighters, and two schooners, fully manned and equipped. Some of this plant belonged to them, but the schooners and lighters and their equipments were hired. For one of the lighters they agreed to pay $6,500 if she should be lost. Their entire outfit was worth from $30,000 to $50,000. On arriving at Velasco on the same or following day, they engaged a derrick lighter for use in laying the anchors, and on the two following days, the 16th and

M. P. Morrissey.
J. H. Durkie,

Master S. S. Lizzie, of Whitby.

17th, the salvors were at work planting the anchors and connecting cables from them to the winches of the ship. This work was completed during the afternoon of the 17th, the water ballast pumped out, when the Elfrida's engines, winches, and windlass were started by her own steam, and in less than half an hour she began to move herself off. She went slowly for the distance of about a thousand feet when she floated clear, but was carried by the current against the west jetty. The libellant's tug then for the first time took hold of her and towed her away from the jetty, and at 7.40 P. M., four hours after the work of hauling her off was begun, she was free and clear of everything, and put to sea under control of the pilot. Subsequent examination of her bottom, in the dry dock at Newport News, showed that she was wholly uninjured except for a slight indentation about a foot long in the bilge, which was probably caused by contact with the jetty. At the time she was stranded she was insured for the sum of £18,000, subsequently reduced to £16,000.

Upon a full hearing upon pleadings and proofs, the district court entered a final decree in favor of the libellants for the stipuleted sum of $22,000, with interest and costs. Claimants appealed to the circuit court of appeals, which reversed the decree of the district court, one judge dissenting, [192]*and remanded the case, with instructions to enter a decree in favor of libellants for the sum of $10,000, with interest at six per cent, 41 U. S. App. 585. A petition for rehearing having been denied, libellant applied to this court for a writ of certiorari, which was granted.

clear mistake or suppression of important
facts, in immediate danger to the ship, or
under other circumstances amounting to
compulsion, or when their enforcement would
be contrary to equity and good conscience.
Before adverting to the facts of this par-[193]
ticular case, it may be well to examine some
of the leading authorities where salvage con-
tracts have been set aside and compensation
awarded in proportion to the merit of the

In the case of The North Carolina, 15 Pet. 40 [10: 653], the master of a vessel which had struck upon one of the Florida reefs was improperly, if not corruptly, induced to refer the amount of salvage to the arbitrament of two men, who awarded thirty-five per cent of the vessel and cargo. The court found that under the circumstances the master had no authority to bind his owners by the settlement; that the settlement was fraudulently made, and that the salvors, by their contract, had forfeited all claims to compensation even for services actually rendered.

In The Tornado, 109 U. S. 110 [27: 874], the owners of three steam tugs which had pumping machinery were employed by the master and agent of a ship sunk at a wharf in New Orleans, with a cargo on board, to pump out the ship for a compensation of $50 per hour for each boat, "to be continued until the boats were discharged." When the boats were about to begin pumping the United States marshal seized the ship and cargo upon a warrant on a libel for salvage. After the seizure the marshal took possession of the ship, and displaced the authority of the master, but permitted the tugs to for about eighteen hours, the ship was raised pump out the ship. After they had pumped and placed in a position of safety. The tugs remained by the ship, ready to assist her in case of need, for twelve days, but their attendance was unnecessary, and not required by any peril of ship or cargo. In libels of intervention, in the suit for salvage, the owners of the tugs claimed each $50 per hour for the whole time, including the twelve days, as salvage. The court held that as the contract was to pump out the ship for an hourly compensation the right of the steam tugs to compensation must be re

tion must be answered in the negative. Salvage services are either (1) voluntary, wherein the compensation is dependent upon success; (2) rendered under a contract for a per diem or per horam wage, payable at all events; or (3) under a contract for a compensation payable only in case of success. The first and most ancient class comprises cases of pure salvage. The second is the most common upon the Great Lakes. The third includes the one under consideration. Obviously where the stipulated compensation is dependent upon success, and particularly of success within a limited time, it may be very much larger than a mere quantum meruit. Indeed, such contracts will not be set aside unless corruptly entered into or made under fraudulent representations, a

But a single question is presented by the record in this case: Was the contract with the libellants of such a character, or made under such circumstances, as required the court to relieve the Elfrida against the payment of the stipulated compensation? We are all of opinion that this ques-garded as having terminated when the ship and cargo were raised, and that, as the mar shal seized the ship as the tugs began to pump her out, the authority of the master was displaced, and the boats must be regarded as having been discharged under any fair *in-[194 terpretation of the contract. Standing by for a period of twelve days was found to have been unnecessary, and not required by any The case peril to the Tornado or her cargo. was not one where the contract was set aside as inequitable, though found to be so, but where it had been completed by pumping out the ship and the supersession of the master. See also Bondies v. Sherwood, 22 How. 214 [16: 238], where the court overruled an attempt on the part of the salvors to repudiate their contract as unprofitable and recover on a quantum meruit.

Messrs. James B. Stubbs, Charles J.
Stubbs, Joseph H. Wilson, and Henry M.
Earle for libellants and petitioners.

Mr. J. Parker Kirlin for appellees and respondents.

[192] *Mr. Justice Brown delivered the opinion

of the court:

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