The Federal Reporter (Annotated), Volume 169: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. June-July, 1909. Page: 41
xi, 1023 p. ; 23 cm.View a full description of this legislative document.
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WASHINGTON TRUST CO. V. DUNAWAY.
with the Secretary of the Interior a copy of its articles of incorporation and
due proofs of its organization under the same, to the extent of one hundred
feet on each side of the center line of said road," with certain provisions not
important to be mentioned.
Section 5 of the act of May 14, 1898, is, in part, as follows:
"That any company desiring to secure the benefit of this act shall, within
twelve months after filing the preliminary map of location of its road, as
hereinbefore prescribed, whether upon surveyed or unsurveyed lands, file with
the register of the land office for the district where such land is located,
a map and profile of at least a twenty mile section of its road, or a profile
of its entire road, if less than twenty miles, as definitely fixed, and shall
thereafter, each year, definitely locate and file a map of such location as
fixed of not less than twenty miles additional of its line of road until the
entire road has thus been definitely located, and upon approval thereof by the
Secretary of the Interior, the same shall be noted upon the record of said
office, and thereafter all such lands over which such right of way shall pass
shall be disposed of subject to such right of way," etc.
Section 6 of the act of May 14, 1898, is, in part, as follows:
"That all mortgages executed by any company acquiring a right of way
under this act upon any portion of its road that may be constructed in said
District of Alaska shall be recorded with the Secretary of the Interior, and
the record thereof shall be notice of their execution, and shall be a lien upon
all the rights and property of said company, as therein expressed, and such
mortgage shall also be recorded in the office of the Secretary of the District
of Alaska, and in the office of the Secretary of the state or territory wherein
such company is organized."
And by section 8 of the same act it is, among other things, provided as
follows:
"The right of way herein and hereby authorized shall not be assigned or
transferred in any form whatever prior to the construction and completion
of at least one-fourth of the proposed mileage of such railroad * * * as
indicated by the map of definite location, except by mortgages or other liens
that may be given or secured thereon to aid in the construction thereof;
provided, that where within ninety days after the approval of this act proof
is made to the satisfaction of the Secretary of the Interior that actual surveys,
evidenced by designated monuments, were made, and the line of a railroad
* * * located thereby, or that actual construction was commenced on the
line of any railroad, * * * prior to January twenty-first, eighteen hun-
dred and ninety-eight, the rights to inure hereunder shall, if the terms of the
act are complied with as to such railroad, * * * relate back to the date'
when such survey or construction was commenced; and in all conflicts relative
to the right of way or other privileges of this act, the person, company or
corporation having been first in time in actual survey or construction, as the
case may be, shall be deemed first in right."
Albert Fink, Ira D. Orton, J. C. Campbell, W. H. Metson, F. C.
Drew, C. H. Oatman, and J. A. MacKenzie, for appellant.
Charles E. Shepard, for appellee.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
ROSS, Circuit Judge (after stating the facts as above). Since the
record shows that practically all of the rolling stock and other person-
alty used in the operation of the road in question was covered by the
levy and proposed sale by the marshal, it does not admit of doubt that,
if the appellant's mortgage is valid as against the appellee's judgment,
the mortgage security would be impaired and largely destroyed by the
sale under the levy. The real question in the case, therefore, is, wheth-
er or not the mortgage is valid as against the judgment creditor. The
appellee insists that it is not, for the reason that it was not made by
a company "acquiring a right of way" under the provisions of section,
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The Federal Reporter (Annotated), Volume 169: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. June-July, 1909., legislative document, 1909; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38215/m1/52/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.