Page images
[blocks in formation]

States, 110 C. C. A. 343; 188 Fed. Rep. 545. Whether they have a remedy is not a question here.

We now are not considering the effect of a fraudulent concealment of a cause of action. We are considering whether a man who knows that his title is bad and will be attacked can call into being a corporation which he owns, in order to save the property, make a deed to it, put the deed into his pocket, leave it unrecorded and, without the need of trusting even an accomplice, can keep it with perfect security until the statute has run, and then set up that his creature owns the land. We are deciding that if a secret transfer of wrongfully held land is made in this way for the purpose of busying the United States with the wrong person until the title shall be made good by time, service on the man thus put forward is sufficient to avoid the statute and the trick must fail.

The bills were filed and subpænas were taken out and delivered to the Marshal for service before the statute had run, reasonable diligence was shown in getting service and therefore the rights of the United States against all the patents were saved. For when so followed up the rule is pretty well established that the statute is interrupted by the filing of the bill. Coppin v. Gray, 1 Y. & C., C. C. 205, 207. Purcell v. Blennerhassett, 3 Jo. & Lat. 24, 45. Forster v. Thompson, 4 Dr. & Warr. 303, 318. Hele v. Lord Bexley, 20 Beav. 127. Hayden v. Bucklin, 9 Paige (N. Y.), 512. Aston v. Galloway, 38 No. Car. 126. Dilworth v. Mayfield, 36 Mississippi, 40, 52. United States v. American Lumber Co., 85 Fed. Rep. 827, 830. United States v. Miller, 164 Fed. Rep. 444.

There was an attempt made in argument to reopen the questions of fact upon which the two courts below agreed, but we see no reason to depart from the common rule and therefore we do not advert to any of those matters. It also was argued that the decision of the Secretary of the Interior that the patents should be issued is conclusive.

[blocks in formation]

But the decision was obtained by such frauds that the matter was open for reconsideration by the courts. Washington Securities Co. v. United States, 234 U. S. 76.

Decrees affirmed.

MR. JUSTICE McREYNOLDS took no part in the consideration or decision of these cases.





No. 715. Argued February 24, 1915.—Decided March 8, 1915.

Where the constitution of the State reserves the right so to do, the

charter of a corporation may be repealed without impairing the

obligations of a contract. Calder v. Michigan, 218 U. S. 591. In the absence of a specific decision of the highest court of the State

to that effect, this court will not construe a statute authorizing a water supply corporation to exercise eminent domain under the provisions of the Railroad Act as giving to that corporation a vested right to exclude the rest of the world from whatever watersheds it chooses for an unlimited period and one that cannot be impaired by

subsequent legislation simply by filing a map. The Railroad Act of New York requires a corporation intending to

exercise eminent domain not only to file maps of the property to be taken but also to file written notice to the occupants thereof and

the mere filing of the map does not create rights against the State. The legislation of the State of New York of 1905 empowering the

City of New York to acquire lands for its new water supply is not unconstitutional as impairing the obligation of the contract of the charter rights of the plaintiff in error in this case or depriving it of its property without due process of law under the act authorizing

Argument for Appellant.

236 U. S.

it to acquire property in the same watershed under the provisions of the Railroad Act, it appearing that no proceedings for such acquisition had ever been taken beyond the filing of a map.

The facts, which involve the constitutionality under the impairment of obligation and due process clauses of the Federal Constitution of legislation of the State of New York in regard to the new water supply for the City of New York, are stated in the opinion.

Mr. Carroll G. Walter, with whom Mr. Walter C. Noyes was on the brief, for appellant:

The bill having alleged the existence of a contract and its impairment and the possession of property and its deprivation without due process of law, a case arising under the United States Constitution was presented, and the District Court had jurisdiction notwithstanding the lack of diversity of citizenship.

The bill shows on its face that the plaintiff acquired, by grant from the State, a vested right and franchise to utilize the watersheds of the Esopus, Catskill, Schoharie and Rondout Creeks for the purpose of constructing and maintaining a water works system, and to supply water from these sources to the various municipalities of the State.

The franchise so acquired by the plaintiff constitutes a contract and a vested property right protected by the Federal Constitution, and was not destroyed by the repealing acts mentioned in the bill.

The acts and proceedings of the defendants, done under color of authority of state laws, constitute an impairment of the plaintiff's contracts and a taking of its property without due process of law.

The defendants have no “special authority from the legislature" to take the lands and waters to which the plaintiff's franchise relates, and the legislature has not

[blocks in formation]

authorized those lands to be devoted to "some other public use.”

Numerous authorities sustain these contentions.

Mr. Louis C. White, with whom Mr. Frank L. Polk was on the brief, for appellees:

All parties to the suit are citizens of the State of New York, and unless the bill of complaint shows on its face some question arising under the Constitution or laws of the United States, the court below was without jurisdiction and the appeal was properly dismissed.

The bill of complaint shows on its face that the plaintiff had no contract, the obligation of which was impaired, nor any property of which it was deprived, by the legislation and acts complained of.

Chapter 724 of the Laws of 1905 makes ample provision for the ascertainment and payment of compensation to every owner or person interested in any land taken by the City of New York under that act.

The decree should be affirmed and the certified question answered in the negative.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity to restrain the City of New York and the Board of Water Supply from proceeding further with the enterprise upon which they already had spent over one hundred and twenty-nine million of dollars in order to provide the city with a supply of water. The ground is as follows:

The plaintiff (appellant) originally was incorporated under a general act, in 1887, for the purpose of storing and supplying water for mining, domestic, manufacturing, municipal and agricultural purposes, to cities, other corporations, and persons. By virtue of other statutes it had the right to acquire title to land and water for its

[blocks in formation]

corporate purposes in the manner specified by the General Railroad Act, ch. 140, Laws of 1850; and it spent money, had surveys made, filed some maps, and acquired options for the purchase of real estate in pursuance of the ends for which it was formed.

In 1890 the laws under which the plaintiff was incorporated were repealed, but thereafter ch. 985 of the Laws of 1895 reiterated the grant of the powers specified in the charter and authorized the corporation to acquire ‘in the same manner specified and required in' the above mentioned Railroad Act ‘such lands and waters along the watershed of the Ramapo, and along such other watersheds and their tributaries, as may be suitable for the purpose of accumulating and storing the waters thereof.' The corporation is to make a map of the route adopted and the land to be taken and file the same in the office of the Clerk of the County through which the route runs or in which the land is situate. It is to give written notice to all occupants of lands so designated and the occupants and owners are given time to apply for the appointment of commissioners, by a petition stating the objections to the route designated and the route to which it is proposed to alter the same, with elaborate provisions for notice and hearing and appeal to the Supreme Court, which ‘may affirm the route proposed by the corporation or may adopt that proposed by the petitioner.' Under this act the corporation filed maps covering substantially the whole of the drainage areas or watersheds of the Esopus, Catskill, Schoharie, and Rondout creeks, about a thousand square miles (being the same lands that the City now has taken), acquired options for purchase of land, and spent large sums.

Before this time, it is alleged, the courts of New York had declared that the filing of maps under the Railroad Law of New York gave to the corporation filing them a vested right to the exclusive use of the lands covered by

« PreviousContinue »