Vol. IV.] HENTZ V. THE IDAHO. [No. 4. Ladona, together with twenty-five other bales, re-marking it, and drawing drafts against this second shipment upon Shaeffer & Co. After carefully examining the evidence we cannot doubt that the one hundred and forty bales thus withdrawn from the Colson were shipped on the Ladona, and that they came to the possession of Shaeffer & Co., in New York, by whom they were transferred, together with the other twenty-five bales, to Mann, under whom the plaintiffs claim. The one hundred and sixtyfive bales, then, are the identical bales that were included in the shipment on the Idaho, and for which the bill of lading was given to Mann. Of these, one hundred and forty were the property of Porter & Co., fraudulently withdrawn from their possession. It is hardly necessary to say that the title of the true owner of personal property cannot be impaired by the unauthorized acts of one not the owner. Taking possession of the property, shipping it, obtaining bills of lading from the carriers, indorsing away the bills of lading, or even selling the property and obtaining a full price for it, can have no effect upon the right of the owner. Even a bonâ fide purchaser obtains no right by a purchase from one who is not the owner or not authorized to sell. It must, therefore, be concluded that Porter & Co. were the owners of at least one hundred and forty of the bales shipped by Mann on the Idaho, and covered by the bill of lading to enforce which this libel was filed. All that remains to be determined is whether Porter & Co. had a right to the possession of the additional twenty-five bales shipped with the one hundred and forty from New Orleans on the Ladona, and shipped also on the Idaho for Liverpool, together with the thirty-five bales delivered there to Finlay & Co. When the one hundred and forty bales were removed from the custody of the Colson and taken to the Ladona, twentyfive other bales were mingled with them. On the pier opposite that vessel they were re-marked, and all shipped as one lot under one bill of lading. When they reached New York they came into the possession of Shaeffer, the indorsee of the bill of lading given by the Ladona, who knew when he received them that the Colson was short eight hundred or one thousand bales. The newspapers had contained articles about the fraud. He himself was a sufferer. He held some of the fraudulent bills of lading of the Colson, and he had heard that Porter was in the same condition. So he has testified. With this knowledge he set to work to guard against the possibility of tracing the cotton. He caused the Colson marks to be re moved from the one hundred and forty bales, and the Ladona marks to be removed from both the one hundred and forty and the twenty-five bales. He then had the whole re-marked, making no distinction between the lot of one hundred and forty and that of twenty-five, thus practically making the bales undistinguishable. In addition to this, by an arrangement between himself and Mann, his clerk, in the form of a sale, the cotton was shipped en masse" by the Idaho. It is impossible for us to close our eyes upon the nature and purpose of this transaction. It was a perfect confusion of the one hundred and forty bales that belonged to Porter with the other twenty-five, and it was not accidental. It was purposely made, with an intent to embarrass or hinder the owner, and prevent him from recovering his original property. There is no conceivable motive for Shaeffer's obliterating the marks, both of the Colson and La Vol. IV.] HENTZ V. THE IDAHO. [No. 4. dona shipment, in so much haste (ordering it done on Sunday), and substituting new marks, except to destroy the evidence of title in any other person. That such was Schaeffer's purpose may also be inferred from his conduct in selling the same to Mann; from Mann's sale on the same day to the libellants, telling them he did not wish them to ask whether the cotton was really Schaeffer's; stating, also, that he had bought from Schaeffer, and that Schaeffer guaranteed the transaction; from Mann's turning over the libellants' note immediately to Schaeffer, and Schaeffer's giving a guarantee before its payment that the maker should be held harmless. The whole arrangement was manifestly a scheme of Schaeffer to obscure the title to the cotton, to prevent its being traced by the true owner, a scheme in the execution of which he was aided by Mann and the libellants. Now, what must be the legal effect of all this? What the effect of intermingling the twenty-five bales with the one hundred and forty that belonged to Porter in such a manner that they could not be distinguished, and so completely that it is impossible for either party to identify any one of the one hundred and sixty-five bales as a part of the lot of twenty-five, or of the larger lot of one hundred and forty, shipped on the Colson? We can come to no other conclusion than this. The right of possession of the whole was in Porter, and neither he who caused the confusion, nor any one claiming under him, is entitled to any bale which he cannot identify as one of the lot of twenty-five. It is admitted the general rule that governs cases of intermixture of property has many exceptions. It applies in no case where the goods intermingled remain capable of identification, nor where they are of the same quality or value, as where guineas are mingled, or grain of the same quality. Nor does the rule apply where the intermixture is accidental, or even intentional, if it be not wrongful. But all the authorities agree that if a man wilfully and wrongfully mixes his own goods with those of another owner, so as to render them undistinguishable, he will not be entitled to his proportion, or any part of the property. Certainly not, unless the goods of both owners are of the same quality and value. Such intermixture is a fraud. And so, if the wrong-doer confounds his own goods with goods which he suspects may belong to another, and does this with intent to mislead or deceive that other, and embarrass him in obtaining his right, the effect must be the same. Thus it was ruled in Ryder v. Hathaway, 21 Pick. 306. Such is the present case. The confusion of the bales of cotton was not accidental. It was purposely made. The intermixture was evidently intended to render any identification of particular bales impracticable, and to cover them against the search of a suspected owner. It was, therefore, wrongful. And the bales were not of uniform value. They differed in weight and in grade. But even if they were of the same kind and value, the wronged party would have a right to the possession of the entire aggregate, leaving the wrong-doer to reclaim his own, if he can identify it, or to demand his proportional part. Stephenson v. Little, 10 Mich. 447. The libellants have made no attempt to identify any part. See, upon this subject of confusion of goods, 2 Kent's Com. 11th ed. 364, 365; Hart v. Ten Eyck, 2 Johns. Ch. 62, 108; Weil v. Silverston, 6 Bush (Ky.), 698; Hesseltine v. Stockwell, 30 Maine, 370. Vol. IV.] GRAND RAPIDS, ETC. R. R. v. GRAND RAPIDS AND IND. R. R. [No. 4. It follows from all we have said that the delivery by the Idaho of the one hundred and sixty-five bales, to the order of Porter & Co. was justifiable, and that the libellants have sustained no legal injury. The decree of the circuit court is affirmed. SUPREME COURT OF MICHIGAN. [JANUARY, 1877.] TAKING RAILROAD PROPERTY IN INVITUM. "PUBLIC USE." GRAND RAPIDS, NEWAYGO, AND LAKE SHORE R. R. CO. v. GRAND RAPIDS AND INDIANA R. R. CO. The franchises and property of one railroad may be taken for the construction of another in all cases where the property of an individual might be, upon making compensation therefor; but not without. Property taken for a particular public use does not thereby become public for all purposes; it may revert when the specific public easement is vacated. The term "public use," as employed in proceedings for the taking of property in invitum, criticised as misleading, and limited accordingly. THE complainant, the Grand Rapids, Newaygo, and Lake Shore Railroad Company, was organized in September, 1869, under the General Railroad Act, to build a road from Grand Rapids to Newaygo, and to some point beyond in Oceana or Mason County, and built its road in and near Grand Rapids in 1871 and 1872. The defendant, the Grand Rapids and Indiana Railroad Company, was organized under the same law, but some years prior to the organization of the complainant, to build a road from Fort Wayne, Indiana, to some point on Little Traverse Bay, running through Grand Rapids; and its road was constructed and operated through Grand Rapids before the complainant's road was built. As the roads make north from Grand Rapids, they run nearly parallel with each other and with Grand River, each on the west side of the river, and the defendant's road west of complainant's road. On the west bank of the river, and between complainant's road and the river, are situated the extensive lumber manufactories of A. B. Long & Sons and Wonderly & Co., manufacturing about thirty million feet of lumber annually. Before the complainant's track was laid, a switch or spur track connected defendant's road with a lumber track running between the mills aforesaid; and when complainant's road was constructed said spur track was cut off by complainant where it crossed complainant's right of way, and connected by a switch track with complainant's road, the connection of the defendant's road therewith being thus broken. A very large part of the lumber manufactured at these mills was shipped over the defendant's road, and, as it had no connection of its own [No. 4. Vol. IV.] GRAND RAPIDS, ETC. R. R. v. GRAND RAPIDS AND IND. R. R. with said mills, the complainant was in the habit of charging two dollars per car for each car-load which it delivered to the defendant over its switch track. This being the situation in 1874, the defendant decided, under the law then in force, to build a spur track from its main line to connect with the lumber track of Wonderly & Co. and A. B. Long & Sons, and across the complainant's road. The defendant filed its map and survey in the office of the register of deeds, showing the location of its proposed spur track, and was proceeding to build said track by preparing the necessary grade and putting the material upon the ground, when the complainant filed its bill to enjoin the defendant from crossing its track, alleging that the defendant had not given notice of its intention to cross, and the time when it would cross, complainant's track; that the complainant had not given its consent; that defendant had not obtained the right of way; that the map and survey did not locate the route; that it was not signed by a majority of its directors, and that it' contemplated crossing at a point where the complainant had erected a depot. The defendant, in its answer, denied that it ever had any intention of crossing or threatened to cross, except upon a full compliance with all the provisions of law authorizing one railroad to cross another. The answer also denied that the complainant had a depot at the point where the defendant was about to cross, but says it was a small itinerant building eight feet by twelve, and eight feet high, used by complainant to obstruct the crossing of defendant, by placing it at any point where defendant proposed to cross, and was made in bad faith, and located at its present place for that purpose. MARSTON, J. This case was heard upon pleadings and proofs, and a decree rendered perpetually enjoining defendant from entering upon complainant's property for the purpose of constructing a branch or spur track without the consent of the complainant first had and obtained, or without first obtaining a condemnation thereof for the public use, and making compensation therefor agreeable to the provisions of law." From this decree, defendant, conceiving itself aggrieved, appealed. The defendant only having appealed, and having, in the argument submitted, claimed a right to take the land as being already appropriated to public uses, it becomes unnecessary to consider some of the very interesting questions submitted by counsel for complainant in their brief, — as to whether this proposed spur track would be merely for the private use and benefit of defendant, and not of the public; and if for private use only, whether the lands of complainant could be condemned under the circumstances existing in the case. We shall therefore confine ourselves, in what we may here say, to the position submitted by counsel for appellant in their brief. The appellant insists that, under sect. 36 of the laws of 1873 (1 Mich. Sess. Laws 1873, p. 526), it has a right to build this spur track, and that after the crossing shall have been made, if the companies cannot agree as to the compensation to be made by the company crossing, the same shall be ascertained by like proceedings and in like manner as is provided for taking of land or other property. It is also insisted that this statute is Vol. IV.] GRAND RAPIDS, ETC. R. R. v. GRAND RAPIDS AND IND. R. R. [No. 4. valid and not in conflict with any constitutional provision; that the Constitution of Michigan (art. xv. § 1) provides that "corporations may be formed under general laws," and that "all laws passed pursuant to this section may be amended, altered, or repealed; that the general railroad law, under which these companies were organized, was passed under and by virtue of the power conferred by this section of the Constitution, and that the act subjected the companies to certain liabilities and restrictions, - among others, the right to construct their road across any stream, private road, highway, railroad, or canal, and to cross or intersect any other railroad then or thereafter to be constructed; that while the same statute gave to railroad companies formed under it the power to purchase, receive, hold, and use lands and real estate for the purpose of constructing and maintaining its road, it granted the power for a public use, and not a private one, and subject to the reserved legislative power granted in the Constitution, which enabled the legislature to alter, amend, or repeal its charter at pleasure, and that it would be absurd to say, after a railroad has taken property for a public use, it immediately becomes private property, and is beyond the reserved power of the legislature, and that when another railroad company attempts to cross it, the latter company is appropriating private property for public use. Such, in brief, is the argument of counsel for the appellant upon this branch of the case. In so far as we can discover, this is the first time that such a position has been taken on behalf of a corporation. Heretofore, when this question has arisen, it has been insisted that the legislature could not authorize the property or franchises of a corporation to be taken under the exercise of the right of eminent domain. It was then argued by the corporations, that their property and rights were of so sacred and intangible a character that they could not be disturbed, although similar rights in the person of the citizen could be. The courts, however, uniformly held that in this respect there was no difference between corporate and individual rights; that a grant for one public purpose must yield to another equally important; but that in all such cases compensation should be made to those whose property or franchises were thus required and taken for the public use. We consider the argument advanced in this case a very dangerous one for railroad companies to endeavor to enforce. If carried out to its legitimate and logical conclusion, it would, in effect, enable the legislature to take, or authorize to be taken from them, all property they might have acquired by condemnation, and authorize its use for other so called public purposes, without making any compensation whatever therefor. The company might thus be practically destroyed, and its rights given to another, or parcelled out. Some other very absurd results would follow, but we need not here refer to them. Now without attempting at present to define the power of the legislature, under the clause of the Constitution referred to, it has never yet been claimed that the legislature under this reserved right could take the property which the corporation had acquired by purchase or otherwise, and give it to third parties, or authorize its being appropriated by or for the use of the public, without compensation being made therefor. A re |