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or state inwhich the writ of garnishment is served: Illinois etc. R. R. Co. v. Cobb, 48 Ill. 402; Montrose Pickle Co. v. Dodson etc. Mfg. Co., 76 Iowa, 172; 14 Am. St. Rep. 213; Bates v. Chicago etc. Ry. Co., 60 Wis. 296; 50 Am. Rep. 369; Michigan etc. R. R. Co. v. Chicago etc. R. R. Co., 1 Ill. App. 399; Western R. R. v. Thornton, 60 Ga. 300. The cases which decide this point, however, expressly refrain from deciding whether or not such property is subject to garnishment before its transit actually begins, and the decision reached is usually based upon the reasoning in Illinois etc. R. R. Co. v. Cobb, 48 Ill. 402, 403, which is as follows: "The question is, Can a railway company be held liable to judg ment on the process of garnishment, merely on the ground that it may have had property in transitu on its route, consigned to one who may be a debtor at the time of issuing and serving the writs. No case has been cited by the appellees in which such a proceeding has been sustained, and, in the absence of precedent, we should be strongly inclined to hold the companies were not so liable; certainly not out of the county where the property delivered to them for transportation is situate. Any other rule would make railway companies collecting agents of creditors, and that, too, at the risk of these companies. They are common carriers of all kinds of manufactured and agricultural products, having a lien upon the articles delivered for the freightage. They are obliged, under ordinary circumstances, to carry all that shall be delivered to them, and they discharge their duty by carrying and delivering according to contract. It is not their business, nor is it their interest, to know to whom the various articles belong, nor should it be required of them that conflicting claims to the property intrusted to them should be adjusted through controversies, the burden, the annoyance, and the expense of which they must bear. When the goods are in the depot of the railway company, in the county in which the attachment proceedings are instituted, there could, perhaps, be no objection to such process, but on this point we express no definite opinion. When the property has left the county, and is in transit to a distant point, though on the same line of railway, it would be unreasonable to subject the company to the costs, vexation, and trouble of such a process, merely because it had received to be carried that which the law compelled them to receive and carry." This doctrine was controverted in Adams v. Scott, 104 Mass. 164, where it was decided that personal property in the custody of a common carrier was subject to garnishment during the course of its transportation wherever found. The court said: "There is no reason why a common carrier should not thus be liable to the trustee process, in the same manner as other bailees, unless the nature of his contract is such that a judgment charging him as trustee would not protect him against a claim of the defendant for a nondelivery of the goods at their place of destination. But we are of opinion that such judgment would be a sufficient excuse to the trustee for a failure to deliver according to his contract." In Western R. R. v. Thornton, 60 Ga. 300, it was held that the baggage of a railway passenger, accompanying him on his journey from one place to another, was not subject to gar nishment under a writ issued outside the county where the baggage was found.

In Pennsylvania R. R. Co. v. People, 31 Ohio St. 537, it was determined that a railroad company, incorporated under the laws of one state, operating a railroad in another state under its laws, is subject to the process of garnishment in the latter state. In this case, no question was made about the possession, by the carrier, of goods present in the latter state. It sought to maintain its position on the basis, that, being a foreign corporation, it was not subject to garnishment. In such case, the property is susceptible of seizure if present, but it cannot be seized if it is not within the jurisdiction of the court issuing the writ of garnishment, and distinct parcels of goods coming into the hands of the garnishee after the service of the writ are not bound by it: Pennsylvania R. R. Co. v. Pennock, 51 Pa. St. 244. A carrier who

receives goods under a contract to forward them to the consignee, and while they are in transit, cannot hold them to answer an attachment as garnishee at the suit of a creditor of the shipper, previously served upon him, nor is he liable in respect to them upon the attachment: Bingham v. Lamping, 26 Pa. St. 340; 67 Am. Dec. 418. Nor can he be charged as garnishee of him to whom he has contracted to deliver them: Clark v. Brewer, 6 Gray, 320; Towle v. Wilder, 57 Vt. 622. A railroad company, after the termination of the transportation of property, and while it is holding it as a warehouseman only, is liable to garnishment in respect to such property; and such garnishment is a sufficient excuse for not delivering the property to the shipper or the consignee: Cooley v. Minnesota etc. Ry. Co., 53 Minn. 327; 39 Am. St. Rep. 609. A railway company is not liable as garnishee, if, at the time of being garnished, it disclosed, by its agent, that as a common carrier, it had in its possession goods consigned to the principal defendant, but did not know whether they belonged to such defendant, and had no personal knowledge of his business or other consignments: Walker ▼. Detroit etc. R. R. Co., 49 Mich. 446. The right of stoppage in transitu is not impaired or extinguished by service of process of garnishment upon the carrier: Chicago etc. B. B. Co. v. Painter, 15 Neb. 394.

CASES

IN THE

SUPREME COURT

OF

ΜΟΝΤΑΝΑ.

LOEBER V. BUTTE GENERAL ELECTRIO COMPANY.

[16 MONTANA, 1.]

STREETS-TOWNSITE ACT.—The original claimant of a lot in a townsite, entered according to the federal and territorial laws relating thereto, is not the owner in fee of the street or alley upon which his lot abuts.

ELECTRIC LIGHT COMPANIES-SERVITUDE.-A pole used for electric light purposes is within an urban servitude, where it appears that the pole in question is intended to serve public interests.

ELECTRIC LIGHT COMPANIES-ERECTION OF POLES IN STREET.-If an electric light company, under a contract with a city to light its streets and public buildings, finds it necessary, by reason of the existence of telephone poles, and ordinances requiring it to erect new poles throughout the city, to erect one of its poles at the corner of an alley at the rear of plaintiff's premises, it will not be enjoined from so doing, where it does not seriously interfere with access to such property, or with the air or light to it. Such a use of the streets is not unreasonable, and does not substantially interfere with any right of the plaintiff.

Injunction. The plaintiff was the owner of lots 13 and 14 in block 38 in the city of Butte. These lots abutted upon Broadway street, and an alley running through said block. The plaintiff had a saloon building on one of these lots, called the California Brewery, with a rear entrance from the alley. The defendant was under a contract with the city to light the streets and public buildings of the city, and erected an electric light pole in the rear of the saloon about a half foot east of the line of the lots owned by the plaintiff, and about an equal distance south of the line of Broadway. Its position was about in the middle of a sidewalk, three feet wide, in the alley; the rear entrance to plaintiff's property being about twenty feet distant from the pole. The side entrances were thirty and sixty feet distant. The alley

was sixteen feet wide. Directly opposite the rear of plaintiff's premises stood the city hall, a three-story brick building, with an areaway from the basement thereof projecting into the alley. The areaway connected with the city hall prevented the pole from being placed on the opposite side of the alley from the plaintiff's property. The city ordinances of Butte prevented the defendant from erecting poles on the south side of Broadway, because the telephone poles were on that side, and only one line of poles was permitted on each side of a street. The pole was necessary where it was, in order to light the streets, and to relieve the main street of too many wires. The pole could not be placed further down in the alley, because wires from across the street would strike the city hall, and become dangerous, and because such a position would bring the poles closer together than ninety feet, which was prohibited by ordinance. During the process of the construction and erection of the pole the plaintiff enjoined the defendant from further proceedings, and the injunction was made permanent. The defendant said that the pole would have been sunk six feet in the ground but for the injunction, and, if it had been placed as contemplated, it would not have touched the plaintiff's building.

Forbis & Forbis, for the appellant.

HUNT, J. By the admission of plaintiff, lots 13 and 14 were included in the townsite of Butte originally filed in the office of the county clerk and recorder of Deer Lodge countyMontana. It was also admitted that the townsite was entered for patent, and patented to the probate judge of Deer Lodge county, Montana, in 1877, under provision of the act of Congress entitled, "An act for the relief of the inhabitants of cities and towns upon the public lands," approved March 2, 1867, and the acts of the legislative assembly of the territory of Montana, January 12, 1872, and July 22, 1879. It was further admitted that the townsite was surveyed, and that the alley in question in this action, and lying east of the lots upon which were situated plaintiff's buildings, was embraced and included in the original plat of the townsite, and that the said alley has always been used as a public alley, and that the plaintiff derived title of the lots through the probate judge under the patent of said townsite, and according to the plat thereof. The fee in the alley was therefore originally in the United States. The United States granted it to the trustee of the townsite. The trustee was required by law to see that a survey of the plat was made and filed in the proper office, showing the blocks, lots, streets, and alleys. The streets and

alleys therefore became dedicated to the public use before the conveyance of the lots to plaintiff or his predecessors: Hershfield v. Rocky Mountain etc. Teleph. Co., 12 Mont. 102.

The plaintiff, therefore, is not the owner in fee of the alley in which the defendant erected its poles. Nor can he complain in this action, if the city of Butte had the power to permit the defendant to erect electric light poles wherewith to light the city, unless, by erecting such poles, an additional or unusual servitude was imposed upon the easement granted by the city. But we think that a pole used for electric light purposes is within an urban servitude, where it appears that the pole in question is intended to serve public interests: Randolph on Eminent Domain, sec. 401; Keasbey on Electric Wires, sec. 91; McCormick v. District of Columbia, 4 Mackey, 396; 54 Am. Rep. 284.

In considering the use of streets where electric railroad poles are erected—and a use for electric light poles should be similarly regarded-the courts sustain, generally, the principle recognized in Hershfield v. Rocky Mountain etc. Teleph. Co., 12 Mont. 102, that "any use of a street which is limited to an exercise of the right of public passage, and which is confined to the mere use of the public easement, whether it be by old methods or new, and which does not tend in any substantial respect to destroy the street as a means of free passage, common to all the people, is perfectly legitimate." By such uses, the rights of the abutting owners are not invaded. It is simply a user of a right already vested in the public: Halsey v. Rapid Transit etc. Ry. Co., 47 N. J. Eq. 380; Gay v. Telegraph Co., 12 Mo. App. 485.

We fail to see how a pole twelve or fifteen inches in diameter, twenty feet distant from the doorway, can impede free ingress to the rear entrance of plaintiff's beer hall.

The power to light the streets of the city of Butte has been delegated to the municipality by the legislature: Comp. Stats. 674. By ordinance of the city council, the defendant was authorized to erect poles throughout the city, and on one side of the street only. Under the authority and permission of the city, the defendant, therefore, properly erected, or was about to erect, the particular pole complained of, in the alley in the rear of plaintiff's lots.

The testimony establishes the fact that there is no serious interference with the air or light to plaintiff's property, or access thereto. The use of the street for the contemplated purpose is in nowise repugnant to the general use to which streets of cities may be appropriately put in yielding to the necessities for the convenience and comfort of the inhabitants thereof: Tuttle v. Brush

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