CENTRAL TRUST CO. OF NEW YORK v. HENNEN, 90 F. 593

CLAKK, District Judge, niter stating tlie ease as above, delivered the opinion of tlie court. Error is assigned to the action of the court below in holding that the trustees in the mortgage, and bondholders, were bound bv the adjudication in the state court establishing the petitioner’s right to recover. We are satisfied, from an examination of the record, that the court did so hold. The opinion of the court admits of no other construction, and in this we think there was error.

The proposition that a judgment or decree is binding only on parties thereto is elementary, and there is nothing in the relation between the Railway Company and the trustee in the mortgage, or the bondholders, which creates any exception to this rule, so far as a question of the kind we are now dealing with is concerned. The case cannot be distinguished from Hassall v. Wilcox, 130 U. S. 493, 9 Sup. Ct. 590, in which it was held that bondholders were not bound by the judgment rendered in a suit to which they were not made parties, and this case was followed and applied by this court in Louisville Trust Co. v.

City of Cincinnati, 47 U. S. App. 36, 22 C. C. A. 534, and 76 Fed. 296; Trust Co. v. Condon, 31 U. S. App. 419, 14 C. C. A. 314, and 67 Fed. 84; and Same v. Bridges, 16 U. S. App. 146, 6 C. C. A. 539, and 57 Fed. 753. It was consequently the duty of the court below to consider and determine for itself the question of the petitioner’s right to" recover, as well as the amount of such recovery, in case the question of the petitioner’s right to recover was decided in her favor.

Both questions were raised by the answer to the petition, and should have been examined and determined by the court below independently of the adjudication in the state court. This the court might have done directly, or through the aid of a reference.

Assuming, as was done in the contention of the petitioner and in the opinion and judgment of the court, that the appellee became vested with.the easement of ingress and egress, as claimed, and that the strip of land condemned as the property of the Trabue heirs was burdened in their hands with such easement, we agree with the circuit court that the land passed by condemnation from the Trabue heirs to the Railway Company, subject to the same easement.

It is very clear that the action of the Hancock county court in discontinuing the state road as a public highway could have no effect on any right of way vested in her by contract or otherwise, independently of any action of said county court in establishing or maintaining the road as a public highway.

The order of the county court in discontinuing the road as a public highway terminated the right of way of the public generally, which depended on the authority and action of the county court for its existence, and also terminated the obligation on the part of the county to maintain the road in a proper state of repair as a public highway. But the order of the county, court did not and could,not affect the private right of the petitioner to egress and ingress to her property, if such right existed, and could have been asserted against the Trabue heirs. Paine’s Ex’x v. Storage Co., 37 U. S. App. 539, 19 C. C.

A 99, and 71 Fed. 626. The distinction is between a right in the public to use a public highway, depending for its existence on the action of the county court, and a private right of way acquired by grant, contract, or in other valid, legal method, such as by estoppel. But the question of such right, as we have said, was one which it was the duty of the court to consider and determine for itself. This the court did not do, and indeed the precise method in which such an easement was acquired or claimed is left uncertain in this record.

The record does suggest the probability that, if the facts were clearly brought out, they would bring the petitioner’s case within the doctrine announced in Paine’s Ex’x v. Storage Co., supra. Again, assuming that this right of way or easement was vested in the petitioner as claimed, we concur with the learned circuit judge in the opinion that a direct, permanent injury to, or the destruction of, such right of ingress and egress, would, to the extent of the damage actually sustained, be the taking of private property for public use. Pumpelly v. Green Bay Co., 13 Wall. 166.

And the damages sustained by reason of such a taking would constitute a preferential claim on the proceeds arising from the sale .of property, entitled to priority of satisfaction as against the bonds secured by the mortgage. Such a claim in this respect could not be, and in the adjudications has not been, distinguished from the ordinary claim to compensation for property taken or condemned for a right of way, or for the purchase price of a right of way conveyed directly to a railroad company, or any part of such purchase price.

Whether land for a right of way is acquired by a railroad company by contract, condemnation, or unlawful taking, the owner is equally entitled to just compensation, and the manner of taking or acquisition does not change the nature or priority of the compensation justly due. It was decided by this court in Trust Co. v. Bridges, 16 U. S. App. 142, 6 C. C. A. 539, and 57 Fed. 753, that persons who convey a right of way directly to a railroad company are entitled to a lien for the purchase price prior to that of the mortgage bonds of the company.

It is difficult to understand, in view of Ihe record, on what satisfactory basis the court below undertook io apportion the damages included in the judgment of the state court, so as to adjudge what part was for injury to the right of ingress and egress; for, as we have seen, the judgment included other elements of damage.

There is, however, no assignment of error'on the action of the court in this respect, though the objection is urged in the brief; and our conclusion (hat the court below must adjudicate for itself the question of right to recover, as well as the amount of such recovery, renders any further discussion of the case unnecessary at this time.

The distinction to which we have referred between the right to use a public highway on the part of the public, arising out of the ad ion of the county court in establishing such a highway, and a private easement acquired by grant or contract, sufficiently shows that the Kentucky eases relied on by counsel for appellant are inapplicable, and comment on those cases is unnecessary. Indeed, the case of Bradbury v. Walton, 94 Ky. 163, 21 S. W. 869, relied on by appellant, clearly and elaborately states this distinction, and supports the view we have expressed.

The decree of the circuit court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.