invoking the exercise of eminent domain in the condemnation of land for public streets by municipal authorities. There is not only no evidence of such proceedings ever having been taken by the complainant, but it is admitted in the argument that no such proceedings have ever been instituted. It appears by the judgment of the state courts (1891) that the city of Durham at that time was in possession of the locus in quo by a dedication made to it and the public by the Richmond & Danville Railroad, and under no other claim. This was a judgment by a court of competent jurisdiction, which judgment is binding not only on the parties to the suit, but on this court. The judgment provided that the city of Durham had no claim or possession of the locus in quo as against the North Carolina Railroad Company. The consideration of the case must, therefore, start from this point, and, unless the North Carolina Railroad Company has done some act since this judgment was entered, the city has no right to possession as against this corporation.

An examination of section 29 of the charter above cited does not justify the narrow construction contended for by counsel. While this court is not called upon to construe this section, except as germane to a decision of this case, a broader construction would seem to be a presumption to vest in the North Carolina Railroad Company not only an easement to terminate when the right of way ceased to be used, but a right to use that easement or right of way indefinitely. The section provides "it shall be presumed that after two years the space of 100 feet on each side of the center of said road has been granted to the said company by the owners thereof and the said company shall have good right and title thereto." But, conceding this was a mere grant, by operation of the statute, of a right of way as long as it shall be used by the railroad company as prescribed, and "no longer," no one could avail themselves of a reversion except the original owner or owners. It is contended that the deed from the North Carolina Railroad Company to the Durham & Northern Railroad (4) is an abandonment of this right of way by the North Carolina Railroad Company, and this seems to be the only evidence of an intention of an act on the part of this corporation since the judgment of the state court in 1891 which affects this right of way. This contention presents some interesting questions of law for which high authority is cited; among others, the opinion in Newton v. Mfg. Ry. Co. (C. C. A.) 115 Fed. 781, but that was a suit by the owner of the fee. It was under the laws of Ohio for land condemned for park purposes, and it was held that this was a limited easement, and on the abandonment of such easement the land reverts to the owner from whom it was granted, or his successor in title; and the gist of the opinion is that on the condemnation of the right of way for a railroad company across the park it was imposing upon the fee an additional easement or burden, for which the owner, and not a third party, is entitled to compensation. The authorities sustaining this position are ample, but the decision is not applicable to the case at bar. If the owners of the fee or their successors in title were making a claim, it would present an entirely different question from that here involved. Here the city

of Durham is attempting to stand in the shoes of the original owners or their successors in title, without evidence of a right to do so, refusing or neglecting to avail itself of ample provisions of law for condemnation proceedings, and attempting to make permanent as against the North Carolina Railroad Company by suit what it held by dedication, under the judgment of the state courts, by its lessee of the owner of the right of way, against whom the state court held it had no right of possession. The court is urged to decide whether the lease of 1895 was a new lease or an extension of the lease of 1871. This is not essential, and can have no bearing in the determination of the controversy in this suit. The complaint asked for an injunction against threatened "trespass" after the termination of the lease of 1871, to wit, 1901. Whether this lease-the 30-year lease of 1871-was extended by the lease of 1895, or whether it terminated on the execution of that lease, can make no difference. The rights acquired by third parties under the Richmond & Danville Railroad lessee would terminate with the end of that lease, and that lease has certainly now terminated by limitation. The Southern Railway Company is in possession of the property of the North Carolina Railroad, together with all its rights and franchises, under the lease of 1895, and by no other authority. The six years from September 11, 1895, to September 11, 1901, whether an extension of the old lease or a new lease, would not affect rights acquired by third parties under the former lease; but for all purposes the lease of 1871 is now dead, and the Richmond & Danville Railroad Company eliminated; rights acquired under it terminated, and new rights acquired. So, whatever dedication was made by the Richmond & Danville Railroad Company terminated with the lease, whether that was in 1895 or 1901. The North Carolina Railroad Company at one or the other of the dates (and it can make no difference) was revested with whatever title or claim or right it had in and to the property on the termination of the lease. The claim of the city of Durham being, as has been seen, under a dedication by the Richmond & Danville Railroad Company, and the injunction issued in the Chatham county suit, it was a limited possession, and in no way affected the rights of this corporation, the North Carolina Railroad Company. No statute of limitations would run during this period, nor would a plea of the statute be available. The possession was not adverse, but by virtue of the injunction and said limited dedication; and section 150 of the Code of North Carolina provides:

"No railroad, plank road, turnpike or canal company, shall be barred of, or presumed to have conveyed, any real estate, right of way, easement, leasehold, or other interest in the soil which may have been condemned, or otherwise obtained for its use, as a right of way, depot, station house or place of landing, by any statute of limitation or by occupation of the same by any person whatever."

Discussing this section, the Supreme Court of North Carolina, through its chief justice, has said in Railroad Co. v. McGaskill, 94 N. C., at page 754:

"The statute does not require the occupation and direct use of every foot of the condemned area for building embankments and the like, but pre

serves the property in the company so long as the road runs over the land and is operated by the company. A permissive use of it by another, when no present inconvenience results to the company, is not a surrender of rights of property, and, indeed, to expel an occupant under such circumstances would be a needless and uncalled for injury."

Great stress is laid on the deed from this corporation, the North Carolina Railroad Company, to the Oxford & Clarksville Railroad Company as evidence of an intention of abandonment of the right of way. As has been said, if this be true, it is a condition of which the owners of the fee alone can take advantage; and, if this be evidence of an intention of abandonment, it is equally true that the grant from the municipal officers of the city of Durham to the Durham & Northern Railroad Company to use Peabody street as a right of way is also evidence of an intention of abandonment of whatever easement for a street the said city might have had on this land. In short, it is a principle the application of which cuts both ways; and the North Carolina Railroad Company, having had a previous right of way over the land, would be in a better position to claim abandonment on the part of the city. Whether this deed be evidence of abandonment or not presents interesting legal questions, which this court does not feel called upon to decide. It is neither germane nor essential to a determination of the cause at bar, for, as before said, if it is evidence of an intention to abandon, the city of Durham is not in a position to take advantage of it, either by being the owner of the fee, condemnation proceedings, or in any other way. True, the city has expended funds in the improvement of Peabody street, possibly before and since the judgment of the state court in 1891; but it did so with full knowledge of its claim of possession and when the same would terminate.

The form of the action was admittedly defective in this as a court of chancery, but, as counsel have argued the case on its merits, it should be so decided, and is so considered without adverting to mere form or technical objections not raised or pressed on the hearing or by motion to reform the pleadings. There is no evidence of a threatened irreparable wrong, or the absence of an adequate legal remedy.

For the reasons hereinbefore stated, and others moving the court, it is considered, ordered, adjudged, and decreed that the bill, complaint as originally filed, and all proceedings subsequent thereto and thereunder be dismissed; that the injunction herein be vacated and dissolved; and the city of Durham pay the costs to be taxed by the clerk of this court. A final decree will be entered to this effect, and the case is held for the assessment of damages incurred by reason of the issuance of the injunction herein, and for no other purpose.

901

THE TROY.

(District Court, W. D. New York. June 25, 1902.)

1. SEAMEN-PERSONAL INJURIES-LIABILITY OF SHIP.

Libelant, a deck hand on a lake steamship, while paying out the bowline to make fast to a dock, had his leg caught in a kink of the hawser and crushed off by being drawn to the bitts before he could be rescued. He was acquainted with the work and with the surroundings, and another man was shown to be the usual number on vessels having a steam windlass, was assigned to the work with him, which as this one had. The evidence failed to sustain libelant's allegations as to insufficiency in the equipment of the vessel, the unsuitableness of the place where he was working, or any shortage of hands, and no negligence on the part of the owners or master appeared. that on such facts the ship was not liable for the injury, whether it ocHeld, curred from a risk incident to libelant's employment, and which was therefore assumed by him, or through the negligence of a fellow servant. 2. SAME-INJURY IN SERVICE-RIGHT TO CURE AT EXPENSE Of Ship.

A seaman who is injured while in the service of the ship without fault on his part is entitled to be cured, so far as that is possible, at the expense of the ship; and in a suit by him in a court of admiralty to recover damages for the injury, in which it is determined that the ship is not liable, it is competent for the court, under a prayer for general relief, to award him compensation for the failure of the ship to furnish him proper support, medical attendance, nursing, and care while his wounds were healing, and for the additional suffering he endured for lack of such attendance and care.

In Admiralty. Action by seaman to recover damages for personal injury.

Alfred C. Scheu, Donald Bain, and Charles A. Dolson, for libelant.
George Clinton and Maurice C. Spratt, for respondent.

HAZEL, District Judge. This is a libel against the steamship Troy to recover damages for injuries sustained by libelant, an ordinary seaman, while in the employ of the libeled vessel on July 13, 1900. The vessel was then at Duluth, Minn. This was not the first trip of libelant on the steamer Troy as deck hand. He shipped in that capacity for one trip during the season of 1898. the manner of handling lines on board of lake propellers. He handled He was well acquainted with the bowlines of the Troy several times on the day preceding the injury, and was well acquainted with the surroundings in that part of the ship where the bowline was used. At the time of the accident he was in the performance of his duties, under the immediate orders of the mate. He was engaged in paying out a coil of rope to moor the vessel to the dock. While performing that duty he suffered a most unfortunate accident: he lost his leg in a most shocking manner. another seaman, named Moxie, who was not produced as a witness by Libelant and either party, had charge of the bowline in the forecastle. Suddenly libelant was caught in a bight or kink of the hawser handled by him, and by force of the line moving through the chock was violently drawn to the bitts. He cried out in alarm. The captain rapidly directed the use of an ax, but before assistance availed the swiftly moving line had crushed and torn off his leg above the knee. It is claimed for libelant that he is entitled to damages for the following reasons: First, in

sufficient number of men to navigate the vessel; second, defective condition of the rope, known to the owners; third, approaching dock at too great rate of speed; fourth, improper and unsafe place to pay out the line. The proofs disclose that the Troy, commanded by Capt. Gillies, and a crew of 24 men, left the port of Buffalo for the port of Duluth on the 7th day of July, 1900. An extra cook and waiter were engaged on account of passengers on board. The complement of men who were charged with the navigation of the ship consisted of the captain, two mates, two wheelsmen, four deck hands, two engineers, two firemen, two oilers, besides two cooks and a porter. The Troy is a large modern steel vessel of 5,400 tons, 4021⁄2 feet in length, 452 feet beam, and 28 feet deep. She uses a modern steam windlass, and in making fast employs both bow and stern line. She shifted from one dock to another on the first day of her arrival at Duluth. Libelant handled the bowline. On July 13, 1900, at noon, she moved from the Union Pacific dock to slip I, and then to slip 2, near by. To make the required maneuver she reversed at half speed under a proper helm for a distance sufficient to make a turn, and checked down preparatory to moving slowly under starboard wheel toward the dock. She used no excessive speed in approaching the dock. On account of the undertow the vessel was carried a short distance from her course, and to avoid colliding with docks and craft moored in slip 2 it became necessary to cast out a bowline to make her fast. The mate stood on the forecastle deck and gave directions through a speaking tube to the men in the forecastle below as to the manner of paying out the line. The preponderance of the evidence shows the speaking tube to have been in good condition. It extended from and through the forecastle deck down to within a few feet of where libelant was at work. Libelant testifies that at the time of the injury he alone handled the hawser, as the seaman who was detailed to aid him was inexperienced and of no assistance. The main theory upon which libelant rests is that the crew employed by the Troy was insufficient, and that to perform the work of paying out the line safely three seamen should have been assigned to that duty, one to pay out the line, another to straighten it, and the third to receive and interpret the directions of the officer in charge. The libelant testifies that the speaking tube failed to carry the sound of the mate's voice, and it was therefore necessary that his fellow deck hand should listen for orders at the porthole. This, libelant claims, rendered the complement of men assigned. to this hawser short-handed; the work being of unusual danger and hazard on account of the kinks and tangles in the line. The rope was uncoiled on the deck, and had become somewhat stiff and hard. The mate testified that on account of the vessel shifting as she did from dock to dock there was not enough intervening time to straighten out the line prior to the accident. This appears to be a reasonable explanation of its uncoiled and tangled condition. The testimony of respondent establishes that, in vessels fitted with a steam windlass such as was used by the Troy, two deck hands are customarily required in the exercise of proper care to manipulate the line used to make the vessel fast. The libelant states on this point that it always took two men to handle the rope, besides a man to pass the orders; sometimes