359, 9 L.R.A.(N.S.) 874, 79 N. E. 742, 9 Ann. Cas. 988; McNamara v. Boston & M. R. Co. 202 Mass. 491, 89 N. E. 131; Hale v. New York, N. H. & H. R. Co. 190 Mass. 84, 76 N. E. 656; Van Camp Hardware & Iron Co. v. Plimpton, 174 Mass. 208, 75 Am. St. Rep. 296, 54 N. E. 538; Boston Type & Stereotype Foundry Co. v. Mortimer, 7 Pick. 166, 19 Am. Dec. 266; Smith v. Stearns, 19 Pick. 20; Cox v. Central Vermont R. Co. 187 Mass. 596, 73 N. E. 885; Johnson v. Union P. R. Co. 145 Fed. 249, 29 R. I. 80, 132 Am. St. Rep. 799, 69 Atl. 298; Wall v. Norfolk & W. R. Co. 52 W. Va. 485, 64 L.R.A. 501, 94 Am. St. Rep. 948, 44 S. E. 294; Connery v. Quincy, O. & K. C. R. Co. 92 Minn. 20, 64 L.R.A. 624, 104 Am. St. Rep. 659, 99 N. W. 365, 2 Ann. Cas. 347; Davis v. Cleveland, C. C. & St. L. R. Co. 217 U. S. 157, 54 L. ed. 708, 27 L.R.A. (N.S.) 823, 30 Sup. Ct. Rep. 463, 18 Ann. Cas. 907.

court, if the trustee is charged, can enter a valid judgment against the property attached. Sprague v. Auffmordt, 183 Mass. 7, 66 N. E. 416; Lowrie v. Castle, 198 Mass. 82, 83 N. E. 1118; Rev. Laws, chap. 170, §§ 1, 6. The question whether the alleged trustee should be charged depends upon its answer, which is to be taken as true, as no interrogatories have been filed. Rev. Laws, chap. 189, §§ 9-17; Fay v. Sears, 111 Mass. 154; Corsiglia v. Burnham, 189 Mass. 347, 75 N. E. 253.

To maintain an effectual attachment there must be at the date of service a subsisting cause of action which the debtor can enforce against the trustee in his own name, or the debtor must have intrusted to, or deposited with the trustee, specific goods or effects. Wart v. Mann, 124 Mass. 586; Casey v. Davis, 100 Mass. 124; Howland v. Wilson, 9 Pick. 18. It is expressly stated in the answer that at the date of service

The enforcement of the attachment would the trustee, an interstate railroad company, interfere with interstate commerce.

Gibbons v. Ogden, 9 Wheat. 196, 6 L. ed. 70; Dubuque & S. C. R. Co. v. Richmond, 19 Wall. 584, 22 L. ed. 173; Davis v. Cleveland, C. C. & St. L. R. Co. 217 U. S. 157, 54 L. ed. 708, 27 L.R.A.(N.S.) 823, 30 Sup. Ct. Rep. 463, 18 Ann. Cas. 907; Wall v. Norfolk & W. R. Co. 52 W. Va. 485, 64 L.R.A. 501, 94 Am. St. Rep. 948, 44 S. E. 294; Connery v. Quincy, O. & K. C. R. Co. 92 Minn. 20, 64 L.R.A. 624, 104 Am. St. Rep. 659, 99 N. W. 365, 2 Ann. Cas. 347; Michigan C. R. Co. v. Chicago & M. L. S. R. Co. 1 Ill. App. 399; George D. Shore & Bro. v. Baltimore & O. R. Co. 76 S. C. 472, 57 S. E. 526, 11 Ann. Cas. 909; Seibels v. Northern C. R. Co. 80 S. C. 133, 16 L.R.A. (N.S.) 1026, 61 S. E. 435; Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 547.

The

had in its possession a large number of
freight cars the property of the defendant,
also engaged in interstate commerce.
cars, if subject to garnishment, were un-
doubtedly goods or chattels within the
meaning of Rev. Laws, chap. 189, §§ 12,
13, 19; Brown v. Floersheim Mercantile Co.
206 Mass. 373, 92 N. E. 494; Rosenbush v.
Bernheimer, 211 Mass. 146, 97 N. E. 984,
Ann. Cas. 1913A, 1317. See also Stat. 1905,
chap. 324; Stat. 1910, chap. 214, §§ 23, 24;
chap. 559, § 3. If received here and to be
returned in the ordinary course of business,
we should hesitate to say that under no cir-
cumstances cars of a foreign railroad com-
pany would be subject to attachment under
our laws, because the attachment temporar-
ily might interfere with interstate com-
merce, or with the provisions of U. S. Rev.
Stat. § 5258, Comp. Stat. 1913, § 10058,

Braley, J., delivered the opinion of the securing continuity of interstate transpor

court:

The amended return on the writ having been insufficient to show any personal service on the defendant, a foreign corporation, described in the writ as having a usual place of business at Boston in this commonwealth, the court could not enter judgment against the company, which has appeared specially for the purpose of pleading in abatement, or to move that the action be dismissed. Stat. 1903, chap. 437, § 62; Rev. Laws, chap. 170, § 1; Eliot v. McCormick, 144 Mass. 10, 10 N. E. 705; Needham v. Thayer, 147 Mass. 536, 18 N. E. 429; Kimball v. Sweet, 168 Mass. 105, 46 N. E. 409; Roberts v. Anheuser Busch Brewing Asso. 215 Mass. 341, 343, 102 N. E. 316; Lawrence v. Bassett, 5 Allen, 140; Crosby v. Harrison, 116 Mass. 114. But as the action was begun by trustee process, the

tation. Davis v. Cleveland, C. C. & St. L. R. Co. 217 U. S. 157, 54 L. ed. 708, 27 L.R.A. (N.S.) 823, 30 Sup. Ct. Rep. 463, 18 Ann. Cas. 907; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 410, 57 L. ed. 1511, 1546, 48 L.R.A. (N.S.) 1151, 33 Sup. Ct. Rep. 729; International Harvester Co. v. Kentucky, 234 U. S. 579, 588, 58 L. ed. 1479, 1483, 34 Sup. Ct. Rep. 944; De Rochemont v. New York C. & H. R. R. Co. 75 N. H. 158, 29 L.R.A.(N.S.) 529, 139 Am. St. Rep. 673, 71 Atl. 868; Southern Flour & Grain Co. v. Northern P. R. Co. 127 Ga. 626, 9 L.R.A. (N.S.) 853, 119 Am. St. Rep. 356, 56 S. E. 742, 9 Ann. Cas. 437; Compare Connery v. Quincy, O. & K. C. R. Co. 92 Minn. 20, 64 L.R.A. 624, 104 Am. St. Rep. 659, 99 N. W. 365, 2 Ann. Cas. 347; Wall v. Norfolk & W. R. Co. 52 W. Va. 485, 64 L.R.A. 501, 94 Am. St. Rep. 948, 44

S. E. 294; and Seibels v. Northern C. R. Co. 80 S. C. 133, 16 L.R.A. (N.S.) 1026, 61 S. E. 435. Doubtless the compulsory enforcement of a legal right by due process of law may result in a temporary interference with the carrier's business, but this was held in Martin v. West, 222 U. S. 191, 197, 56 L. ed. 159, 162, 36 L.R.A. (N.S.) 592, 32 Sup. Ct. Rep. 42, not to offend against the commerce clause of the Constitution. The trustee, however, received and retained the cars under an arrangement or agreement with the defendant which gave it the right to despatch them to the place of destination on its own lines, instead of transferring the freight to its own cars for further and final transportation. It also could use the empty cars for the carrying of freight between different points on its own road, and on the lines of other railroad companies directly or indirectly connected with the railroad of the owner of the cars, upon payment of fixed daily charges, so long as any

car remained on tracks that the trustee

whether the attachment was invalid because of the plaintiff's failure to comply with the provisions of Rev. Laws, chap. 167, § 39, relating to the attachment of railroad cars in actual use making regular passages. The order of dismissal is affirmed, and the motion of the trustee to be discharged is granted.

So ordered.

MISSISSIPPI SUPREME COURT.

MISSISSIPPI CENTRAL RAILROAD

COMPANY, Appt.,

V.

HATTIESBURG TRACTION COMPANY. (— Miss. —, 67 So. 897.)

Eminent domain crossing railroad
tracks with street railways.
main is not necessary to enable a street
An exercise of the right of eminent do-
ity to lay its tracks along a public high-
railway company, having municipal author-
way, to cross the tracks of a railroad com-
pany which are laid across the street at

owned or controlled. The cars thus became
for the time being part of its equipment,
and compensation therefor ceased only when
they passed out of the trustee's possession | grade.
and control. Foster v. New York, N. H. &
H. R. Co. 187 Mass. 21, 72 N. E. 331; Mc-
Namara v. Boston & M. R. Co. 202 Mass.
491, 89 N. E. 131.

If the trustee is chargeable, it must retain actual possession so that the cars can be seized on execution. Brown v. Floersheim Mercantile Co. 206 Mass. 373, 376, 92 N. E. 494. And if this precaution is not taken it would be answerable for their value, but not to exceed the amount of the judgment. Rev. Laws, chap. 189, §§ 57-65. Cornell v. Mahoney, 190 Mass. 265, 266, 76 N. E. 664; Thompson v. King, 173 Mass. 439, 53 N. E. 910. The bailment cannot be said to be in violation of any rule of public policy to which common carriers of freight should conform. And upon the further statement in the answer, that the cars were in actual use under the agreement at the time of service, and that to carry on its business as a carrier of property independently of the arrangement would be practically impossible, the trustee ought not to be subjected to the expense of unloading and redistribution of their contents, or to the pecuniary loss from interference with the use of the cars which would be incurred if, having been emptied, they were collected and retained unused to await the result of the litigation. Van Camp Hardware & Iron Co. v. Plimpton, 174 Mass. 208, 75 Am. St. Rep. 296, 54 N. E. 538; Cox v. Central Vermont R. Co. 187 Mass. 609, 73 N. E. 885. The trustee not being chargeable, it becomes unnecessary to determine

A

(March 29, 1915.)

PPEAL by complainant from a decree of the Chancery Court for Forrest County sustaining a motion to dissolve an injunction restraining defendants from attempting to install or use a crossing over complainant's land until the institution of eminent domain proceedings and the right to condemn a crossing has been determined. Affirmed.

The facts are stated in the opinion.

Code 1906, § 1876, provides: "Street railway companies chartered under the laws of this state may acquire a right of way across railroads by condemnation by pro

Note. - Right of railroad company to compensation for the crossing of its track, where it intersects a street or highway, by an electric road.

As to necessity of making compensation, and measure thereof, upon laying out street across railway property, see note to New York, C. & St. L. R. Co. v. Rhodes, 24 L.R.A. (N.S.) 1225.

This note supplements the notes to Chicago, B. & Q. R. Co. v. West Chicago Street R. Co. 29 L.R.A. 486, and South East & St. L. R. Co. v. Evansville & Mt. V. Electric R. Co. 13 L.R.A. (N.S.) 916, in which the earlier cases upon the above question are

considered

The general rule laid down in the earlier notes prevails in Indiana, where it is held that a street railway is not an additional burden upon a street, and that the right of such railway to cross the tracks of a steam

ceeding in accordance with the provisions 240, 34 Am. Dec. 81; Pearson v. Johnson, in this chapter." 54 Miss. 259; Stewart v. Raymond R. Co.

Messrs. Truly, Ratliff, & Truly, for ap- 7 Smedes & M. 568; Pearson v. Johnson, pellant:

N. R. Co. 146 Fed. 446; South East & St. | right to condemn a crossing has been juL. R. Co. v. Evansville & Mt. V. Electric dicially and finally determined."

Upon the filing of this bill a temporary injunction was issued and served upon the traction company, and this appeal is from a decree sustaining a motion to dissolve this injunction, and is for the purpose of settling the principles of the case. After the granting of this injunction, an agreement was entered into between the two companies by which the traction company was permitted, without prejudice to the rights of the railroad company in so far as this litigation is concerned, to complete the installation of this crossing and to use the same.

R. Co. 13 L.R.A. (N.S.) 918, note; Atchison, T. & S. F. R. Co. v. General Electric R. Co. 50 C. C. A. 424, 112 Fed. 689; Chicago, B. & Q. R. Co. v. Steel, 47 Neb. 741, 66 N. W. 830; Southern R. Co. v. Atlanta R. & P. Co. 111 Ga. 679, 51 L.R.A. 125, 36 S. E. 873; General Electric R. Co. v. Chicago & W. I. R. Co. 184 Ill. 588, 56 N. E. 963; Williams Valley R. Co. v. Lykens & W. V. Street R. Co. 1 Dauphin, Co. Rep. 225; West Jersey R. Co. v. Camden, G. & W. R. Co. 52 N. J. Eq. 31, 29 Atl. 423; New York, N. H. & H. R. Co. v. Fair Haven & W. R. Co. 70 Conn. 610, 40 Atl. 607, 41 Atl. 169; New York, N. H. & H. R. Co. v. Bridgeport Trac-pany for attempting to install this crossing tion Co. 65 Conn. 410, 29 L.R.A. 367, 32 Atl. 953; Detroit Citizens' Street R. Co. v. Detroit, 26 L.R.A. 674, 12 C. C. A. 365, 22 U. S. App. 570, 64 Fed. 628; 36 Cyc. 419f; Central Pass. R. Co. v. Philadelphia, W. & B. R. Co. 95 Md. 428, 52 Atl. 752.

The reason assigned by the traction com

during the night is that to do so would not then interfere with the movement of trains over the railroad track; it not having commenced the installation until the last train due to cross the street that night had passed. With the truth of this explanation, however, we are not here concerned. The

Smith, J., delivered the opinion of the sole question presented to us for decision court:

is this: Has a street railway company, The Mississippi Central Railroad Com- operating under municipal authority, the pany owns and operates a railroad which right to construct its track across that of extends through the city of Hattiesburg, a steam railroad at a point where it crosses crossing a number of the streets of the city, a street of the municipality, without first one of them being Main street. The Hat- instituting condemnation proceedings and tiesburg Traction Company is a street rail-paying the railroad company the damages way company, and has received from the therein awarded it? city of Hattiesburg permission to lay its tracks in the city streets. In extending its track along Main street it became necessary to cross the track of the railroad company, and negotiations were entered into by it with the railroad company for that purpose; the traction company agreeing to install and maintain the crossing at its own expense. The two companies failed to reach an agreement in the matter, not by reason of any objection of the railroad company to the character of crossing proposed to be installed by the traction company, but mainly because that company would not agree to operate its road at the crossing in accordance with certain requirements of the railroad company.

It is true that a railroad company's right of way, when owned by it, is its private property, and cannot, under § 17 of our Constitution, "be taken or damaged for public use, except on due compensation being first made;" but it is equally true that a railroad company does not own the streets of a municipality along or across which its tracks are laid, neither can it acquire, under § 3322 of the Code, any exclusive right to the use of the streets of the municipality. The only right it can acquire in the streets of a municipality is the right to locate its tracks along or across them, subject to the right of the public to continue the free use thereof for traveling, and to the right of the municipal authoriFailing to obtain the consent of the rail- ties to grant similar easements therein. In road company to cross its track, the trac- Pennsylvania Co. v. Lake Erie, B. G. & N. tion company proceeded one night to install | R. Co. (C. C.) 146 Fed. 446, a case wherein, the crossing without the knowledge of the as in the case at bar, the complainant was railroad company. This fact was discovered a railroad company and the defendant a by the railroad company the next morning before the installation was complete, and it thereupon filed its bill in the court below, praying that the traction company be enjoined "from attempting to install or use a crossing over the line and roadbed of complainant at Main street crossing in the city of Hattiesburg, until eminent domain proceedings have been instituted, and the

street railway company, it was said that "complainant's bill assumes the possession by complainant of a right in the street which in law it cannot possess. The bill alleges that the defendant is about to enter upon complainant's 'right of way. In the sense in which this term is used in the bill, the complainant has no right of way in the street; that is, it has no tangible property

therein. True, it has in strictness a right, future determination of the court." It was

of way across the street; but this right is of an intangible nature. It has no more substance than the right of way over a street possessed by a pedestrian. So that to say that the defendant is about to enter upon complainant's 'right of way,' meaning the right of way it possesses across the street, is to say that the defendant is about to do what any and everybody has a right to do at all times, subject only to the movement of complainant's trains. What the defendant proposes to do is to introduce in the public highway, at the point where complainant's tracks cross it, another public use thereof, under authority of the municipal legislation necessary in such cases. The complainant has no property in the street, and none on it except a few ties and rails. The disturbance of these for the purpose of suiting them to the new use to be made of the public highway is necessary, and results in no invasion of complainant's rights."

held that the street railway company, before it crossed the track of the railroad company, must execute an agreement for the maintenance of the crossing. This was the only question decided in that case; and, if it is in point here, it is only authority for the proposition that, when a street railway company desires to cross the track of a railroad company in a public street, it must pay the expense of installing and maintaining the crossing. Neither of these questions, however, is here involved, for the reason that the street railway company has paid the expense of installing the crossing and proposed to bear the expense of maintaining it.

In the case of Birmingham Traction Co. v. Birmingham R. & Electric Co. 119 Ala. 129, 24 So. 368, so much relied upon by counsel for appellant, no question of the right of one railroad company to cross the tracks of another in a public street was involved. That case was decided by the suThe rule here announced is in accord with preme court of Alabama on August 15, all of the authorities dealing with this pre- 1898, and on October 29, 1898, another cise question that have come under our ob- phase of the matter in dispute between the servation, most, if not all, of which, will be parties thereto came again before that court found set forth in the notes to 36 Cyc. for consideration in the case of Birming 1420; Chicago, B. & Q. R. Co. v. West Chi-ham Traction Co. v. Birmingham R. & Eleccago Street R. Co. 29 L.R.A. 485, and South tric Co. 119 Ala. 137, 43 L.R.A. 233, 24 So. East & St. L. R. Co. V. Evansville 502. An examination of the reports of the & Mt. V. Electric R. Co. 13 L.R.A.(N.S.) 916.

road, this amount being about 25 feet for double track, and such room as is necessary to erect poles and proper waiting stations."

two cases discloses that the Birmingham Railway & Electric Company had granted A number of cases have been cited by to the town of Woodlawn, "for the use of counsel for appellant to the point that a the citizens and the public generally, an railroad company's right of way is private easement over that part of its right of way property, and cannot be taken or damaged which is within the corporate limits of the for public use except on due compensation town of Woodlawn, and which is not absobeing first made, in none of which, how-lutely essential for the operation of its ever, was the right of the street railway to cross the track of a railroad in a public street involved, except in the case of Central Pass. R. Co. v. Philadelphia, W. & B. R. Co. 95 Md. 428, 52 Atl. 752. In that case the street railway company undertook to cross the track of the railroad company in a public street, whereupon the railroad company filed a bill in the proper court, praying "for an injunction to restrain the street railway company from" crossing its track until it, the street railway company, would enter into an agreement to pay not only the cost of making the crossing, but the subsequent cost of keeping the crossing in repair, which repairs, it was insisted, should be made under the supervision and according to the direction of the engineer of the railroad company. While the litigation was pending, "the street railway company, under an agreement with the steam railroad company, made the crossing at its own expense, and the question as to the relative rights and obligations of the two companies was reserved for the

In the first case the Birmingham Traction Company attempted not only to lay its track across that portion of the Bir mingham Railway & Electric Company's right of way which had been granted to the town of Woodlawn for a public street, but also across the 25-foot strip actually occupied by the electric company, and not included in the street. This, the court hell. could not be done without the consent of the electric company, in the absence of condemnation proceedings. In the second case the traction company was seeking to locate its track along that portion of the electric company's right of way which had been granted to the town for a street, and this the court held it could do without paying the electric company any compensation therefor, the court pointing out (119 Ala. 137) that the former case involved not the use by the traction company of that por tion of the right of way over which the city