roundhouses, etc., and that it is necessary that it shall acquire a certain described right of way, 30 feet in width, and nearly a mile in extent, in the city of Eureka, to its said terminal grounds; that, for the purpose of acquiring said right of way, it began in said superior court for Humboldt county on January 30, 1899, three several suits, "by filing complaints" against the owners of the lands over which said right of way runs, which suits are still pending; that in February, 1900, the appellee was incorporated under the laws of the state of Nevada for the purpose of constructing, owning, and operating a line of railroad from Eureka to Crescent City, in the state of California, and that on March 13, 1900, with the object of hindering and delaying and preventing the appellant from completing its said railroad from Arcata into the city of Eureka, and to its said terminal grounds, the appellee commenced in said superior court three actions, in which it seeks to condemn the identical parcels of land so sought to be condemned by the appellant, and for that purpose it is conspiring with the several owners of said lands to hinder and delay and obstruct and prevent the appellant from completing its said road into the city of Eureka, and that said actions are fictitious and are not prosecuted in good faith; that the parties in said conspiracy are pretending to prosecute said actions for the purpose of obtaining judgment condemning the said parcels of land for right of way for the appellee for its intended road; that the appellee has not commenced the construction of any railroad, or expended any money therein, and unless it be enjoined the appellant will be irreparably damaged, and its franchise to complete its road to its depot grounds in Eureka will be lost; that all said appellee's acts were done for the purpose and with the intent to deprive the appellant of its right to construct its road into Eureka. The prayer for relief is that the appellee be enjoined from prosecuting any of the three actions, and that it be enjoined from building a railroad or instituting suits to condemn a right of way, or exercising any of the rights or powers of a railroad company over any portion of the appellant's located right of way. The case was removed by the appellee to the circuit court of the United States for the Northern district of California, and that court sustained a demurrer to the bill for want of equity, and dismissed the suit. 103 Fed. 897.

C. M. Wheeler and S. M. Buch, for appellant.

Crothers & Crothers and Campbell, Metson & Campbell, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT, Circuit Judge, after stating the facts as above, delivered the opinion of the court.

Did the circuit court err in sustaining the demurrer to the bill? The appellant contends that a case of equitable cognizance is presented, for the reason that it appears from the bill that the appellee, unless enjoined from prosecuting its condemnation suits, will invade the vested rights of the appellant; and it invokes the doctrine that where a railway company locates its line of route, and proceeds with due diligence in the construction of its road, it acquires a vested and exclusive right to place and operate its road upon the line so located, and another company will be enjoined from interfering therewith. The bill, however, does not show that the appellant has acquired title to the right of way of the road which is in construction, nor that the appellee is trespassing thereon, or in any way actually interfering with the appellant's occupation thereof. The substance of the averments of the bill is that the appellant has surveyed and located its right of way, and has filed three complaints for condemnation of a certain specified portion thereof, and that at a later date

the appellee has commenced three actions for the condemnation of the same portions of the right of way, and that nothing further has been done in any of the actions. The Code of Civil Procedure of California (section 1246) makes the following provisions in regard to such actions:

"All persons in occupation of, or having or claiming an interest in any of the property described in the complaint, or in the damages for the taking thereof, though not named, may appear, plead, and defend, each in respect to his own property or interest, or that claimed by him, in like manner as if named in the complaint."

It is clear from this provision that the appellant has the right to intervene in the actions brought by the appellee, and therein assert all its rights and secure all the protection which could be afforded by the present suit. The remedy at law, therefore, is adequate and complete. It extends to every question which is presented in the bill.

It is earnestly contended by the appellant that a ground of equitable jurisdiction is presented in the bill, in that, according to its allegations, a multiplicity of suits will be avoided. The suits which are sought to be enjoined have already been begun by the appellee. The bill does not state whether or not the appellant has been made a party thereto. If it be not yet a party, it has the right to intervene and be made a party. Equity in certain cases will entertain a suit brought by a single party plaintiff against a single party defendant, where the sole ground of equitable jurisdiction is the prevention of a multiplicity of suits, but it will do so only upon allegations of the bill which show that in such single suit the rights of all the parties involved in the subject-matter of the controversies may be determined as fully and completely as if the several suits had been prosecuted to their conclusion. Pom. Eq. Jur. § 254. The bill in the present case makes no such showing. It is a suit by one corporation to enjoin another from prosecuting three several actions which have been begun by the latter, not against the complainant in the bill, but against parties none of whom are brought into the present suit. It is evident at the first glance that upon the case made in the bill the court may not be able to do full and complete justice in the premises, and in the one suit determine all the matters which may be at issue in the three actions. The sole object of the bill is to enjoin the appellee from proceeding with the actions at law. It presents reasons not for drawing into one suit in equity all the matters that are involved in those actions, but reasons for denying the right of the appellee to prosecute the actions. If, upon issue joined and proofs taken, the appellant should fail to sustain his allegations, the substantial rights of both parties to this suit, and of all the parties defendant to the condemnation suits, would still remain to be adjudicated in the several actions which are pending. It is in the very inconclusiveness of the result that may be attained in a suit such as this that the objection to the jurisdiction of a court of equity on the ground of prevent ing a multiplicity of suits consists. The court cannot see with certainty that the suit will end the litigation. The condemnation of a tract of land for a right of way by a railroad under the statutes of California does not necessarily exclude another company from ob

taining rights in the same tract. In section 1240 of the Code of Civil Procedure it is said that all rights of way so taken shall be subject to be connected with, crossed, or intersected by any other right of way. "They shall be also subject to a limited use in common with the owner thereof when necessary." While the appellant may have the prior right of condemnation, the appellee may possibly, neverthe-less, acquire rights in the same premises, or a portion thereof. Southern Pac. R. Co. v. Southern Cal. Ry. Co., 111 Cal. 222, 43 Pac. 602. We think the demurrer to the bill was properly sustained. The decree will be affirmed.

(109 Fed. 514.)

OREGON & C. R. CO. v. UNITED STATES (three cases).

(Circuit Court of Appeals, Ninth Circuit. May 16, 1901.)
Nos. 639, 640, 641.

PUBLIC LANDS-RAILROAD GRANTS-VESTING OF TITLE TO INDEMNITY LANDS. Under the land grants to the Oregon & California Railroad Company of July 25, 1866 (14 Stat. 239), and May 4, 1870 (16 Stat. 94), the title to all lands within the indemnity limits remained in the United States, and such lands subject to disposition and to settlement under the homestead and pre-emption laws, until the fact of a deficiency in the primary grant had been ascertained, the indemnity lands in lieu thereof selected, and such selections approved by the secretary of the interior.

Appeals from the Circuit Court of the United States for the District of Oregon.

For opinion below, see 101 Fed. 316.

Wm. D. Fenton, Wm. Senger, Jr., and Wm. F. Herrin, for appellants.

John H. Hall, U. S. Atty.

Chas. J. Schnabel, for settlers.

Before ROSS and MORROW, Circuit Judges, and HAWLEY, District Judge.

PER CURIAM. On the authority of Hewitt v. Schultz (February 15, 1901) 21 Sup. Ct. 309, 45 L. Ed. 463; Grinnell v. Railroad Co., 103 U. S. 739, 26 L. Ed. 456; St. Paul & S. C. R. Co. v. Winona & St. P. R. Co., 112 U. S. 720, 5 Sup. Ct. 334, 28 L. Ed. 872; Sioux City & St. P. R. Co. v. Chicago, M. & St. P. Ry. Co., 117 U. S. 406, 6 Sup. Ct. 790, 29 L. Ed. 928; U. S. v. Missouri, K. & T. Ry. Co., 141 U. S. 374, 12 Sup. Ct. 13, 35 L. Ed. 766,-the judgment in each of the aboveentitled cases is affirmed.

(109 Fed. 515.)

PACIFIC NORTHWEST PACKING CO. v. ALLEN et al.

(Circuit Court of Appeals, Ninth Circuit. May 6, 1901.)

No. 658.

1. APPEAL-ORDERS APPEALABLE-APPOINTMENT OF RECEIVER.

* **

Under section 7, Act March 3, 1891, creating the circuit courts of appeals, as amended by Act June 6, 1900 (31 Stat. 660), which gives a right of appeal "where upon a hearing in equity * an injunction shall be granted or continued or a receiver appointed by an interlocutory order or decree," where a receiver was appointed ex parte, and without notice or a hearing, an appeal lies from a subsequent order confirming such appointment, made on the hearing of an application by defendant for the receiver's discharge; such order being the first adjudication of the question of the propriety of such appointment made "upon a hearing," and, by a fair construction of the act, the one from which it is intended to give the right of appeal.

2. RECEIVER-Grounds FOR APPOINTMENT.

The appointment of a receiver for a corporation engaged in canning salmon, on application by its principal creditor, who holds a mortgage upon its entire plant, machinery, and tools, and a vessel used in its business, is warranted, where it appears from the showing made that the corporation is largely indebted and probably insolvent; that it has numerous creditors, some of whom have brought actions against it; and that it is to the interest of all parties that its business be continued through the canning season.

Appeal from the Circuit Court of the United States for the District of Washington.

Bausman, Kelleher & Emory and Wm. B. Allison, for appellant. Preston, Carr & Gilman, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge. The appellees move to dismiss the appeal for the reason that no appeal lies from the order from which it is attempted to be taken. On September 8, 1900, at the beginning of the suit upon reading and filing the bill, upon motion of the complainant the court appointed John H. McGraw receiver, without notice, and directed him to forthwith take possession of the property involved in the suit. The record shows that on the same date the receiver qualified and filed his bond. On October 15, 1900, the defendant, the Pacific Northwest Packing Company, moved the court to set aside the order appointing the receiver. On October 25, 1900, the court made the order from which the present appeal is taken. The order recited that upon the affidavits submitted on said hearing it had been made to appear, and the court so found, that on September 8th, and within an hour after the appointment of the receiver, the defendant had received notice thereof. The order confirmed the appointment of the receiver, and directed that he be continued as receiver of all the mortgaged property, and it denied the motion to vacate and set aside the previous order of September 8, 1900. By the act of June 6, 1900 (31 Stat. 660), there was created the right to appeal to the circuit courts of appeals from an interlocutory order ap

pointing a receiver.

The act amended the act of March 3, 1891, so that it shall read as follows:

"Sec. 7. That where, upon a hearing in equity in a district court or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued or a receiver appointed, by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction or appointing such receiver to the circuit court of appeals: provided, that the appeal must be taken within thirty days from the entry of such order or decree."

We think the appeal is properly taken from the order of October 25, 1900. It is true, that order was not the order by which the receiver was originally appointed, but it was the first order made upon a hearing concerning the question of such appointment. The former order was ex parte. It was made without a hearing. In order to a hearing, it was necessary to give the defendant notice, and the opportunity to appear and contest the application. This was not done until the hearing of October 25th, which was had upon the motion to vacate the appointment. Then, for the first time, the court heard the objection of the defendant to the appointment of a receiver, and then, for the first time upon a hearing, adjudicated the question of the propriety of such appointment. By the amendment of June 6, 1900, it was intended to create the right of appeal from every order appointing a receiver upon a hearing. It was not intended to make appealable an appointment ex parte. The act secures a substantial right-the right of appeal to every defendant whose property is taken from his possession by a receivership, but it requires that the judgment of the court appointing the receiver shall first be had upon a hearing concerning the necessity of such appointment. The act must be given a fair construction, to conserve the purposes intended to be secured by it. For the purposes of the present appeal, we hold that the order confirming the appointment of the receiver upon the hearing was an order appointing the receiver. It stands as if no other order had preceded it. To rule otherwise would be to hold that there is no appeal from the action of the court in taking from the possession of the defendant his property through a receiver, in case the order appointing the receiver was first obtained ex parte. Such a construction would defeat the purpose of the act. The evident intention of the act was to give to the circuit court of appeals the right to review the action of a circuit or district court in an equitable proceeding, in taking from defendant by an interlocutory order the possession of his property through a receiver, but at the same time to require, as a prerequisite to such appeal, that the question of the propriety and necessity of the ap pointment of a receiver should be first adjudicated upon a hearing in the court which made the same. In other words, the intention was to create the right of one appeal from every order appointing a receiver where there had been a hearing. In this view of the statute, it is not necessary that the original appointment and the hearing be coincident in time. The substance of the right conferred was the right to appeal from the decision of the court upon such a hearing. The motion to dismiss will be overruled.