FARMERS' LOAN & TRUST CO. OF NEW YORK et al. v. McANDREWS, 109 F. 109

After the foregoing statement of the case, GEOSSCUP, Circuit Judge, delivered the opinion of the court, as follows: It is conceded that the Circuit Court of LaPorte County had jurisdiction of the general subject-matter embraced in the order locating the drain, and the assessing of benefits and damages to the lands through which it was laid out; and it is conceded that, for these purposes, jurisdiction was obtained over the Pan Handle Railroad Company.

Whether the order, as against the railroad company, is regular or valid is, therefore, a question for the state courts, or, in case a Federal question be involved, for the Bupreme Court of the United Btates, reviewing the state court. 2Tor would the execution of the order of the state court, in the manner pointed out by the bill, amount to a diminution of the res covered by the mortgage. The taking, though presumably for a permanent use, is not of the tee, hut only of an easement; and, subject to the public use, the title, and all consistent uses, will remain in, and belong to, the Pan Handle Railroad Company.

Hagaman v. Moore, 84 Ind. 496. There is in the case, therefore, no threatened injury to the appellants, unless the interruption of the operation of the road, or the increased cost of building and maintaining the new bridge, can be said to amount to an impairment of the mortgage security. The case, practically viewed, presents no such danger.

It is inconceivable, in the absence, at least, of some more satisfactory showing, that a great railroad extending from Chicago to Pitts-burg, and carrying, without default, a seventy-five million dollar bonded indebtedness, should be embarrassed by an additional expenditure, for a new bridge, of five thousand dollars, or by a two days’ interruption of traffic at some point upon its line — an inter-i option easily obviated by a detour around the point of obstruction over another railroad.

The execution of the order of the Indiana court will clearly inflict no 'such, injury upon the mortgage security as would entitle the appellants to the staying hand of the United Btates Courts. The order of the Circuit Court, to the extent that it dissolves the injunction and dismisses the bill, is affirmed, and the case is remanded for further proceedings not inconsistent with this opinion.