trict of Louisiana, in favor of John D. Parker | from Baton Rouge, by way of Alexandria to See same case below, 33 Fed. Rep. 693. At the time this assignment was made no work either upon the main line or upon the branches had been done by the Baton Rouge Company. December 28, 1870, the Baton Rouge Company executed a second mortgage to the governor of the State, as trustee, to secure the payment of certain bonds which were never issued. Such second mortgage having been subsequently canceled, on September 4, 1872, one Allen, assuming to act as president of the Baton Rouge Company, also executed mortgage to secure the payment of 12,000 bonds, which, however, appear never to have been issued. Statement by Mr Justice Brown: This was a bill in equity to foreclose a mortgage, and a cross bill to have the mortgage decreed not to be a lien upon the land grant involved in the controversy. The bill was or iginally filed February 15, 1886, by the plaintiff Parker, "for himself and for all parties holding bonds and coupons similar to those herein set forth," against the New Orleans, Baton Rouge & Vicksburg Railroad Company, (hereinafter called the Baton Rouge Company,) the Union Trust Company of New York, the New Orleans Pacific Railway Com-a pany, (hereinafter called the Pacific Company), John F. Dillon and Henry M. Alexander, trustees in certain land grant mortgages of the Pacific Company, and Samuel D. McEnery, then governor of Louisiana, to foreclose a mortgage given by the Baton Rouge Company, October 1, 1870, upon the property of the company and upon a land grant claimed to be covered by such mortgage. Plaintiff Parker claimed only the amount of coupons matured upon two bonds. Subsequently one Hamlin, another bondholder under the same mortgage, intervened in the cause, which was tried in the Circuit Court, and two distinct decrees rendered upon the same day; one in favor of Parker in the sum of $2,400, with interest at five per cent from October 1, 1885, and one in favor of Hamlin for $6,000 with like interest. (33 Fed. Rep. 693.) The mortgage in question so far as it is material to be considered, purported to cover the right of way, also all other property, real and personal, of every kind and description whatsoever and wherever situated in the State of Louisiana, which is now owned or which shall hereafter be acquired by the said company and which shall be appurtenant to or necessary or used for the operation of said main line of railroad or any of said branches," etc. The mortgage, which was made to the Union Trust Company of New York, provided that the holders of bonds and coupons should have the right to institute legal proceedings for its foreclosure. The company put the bonds, secured by this mortgage, upon the market, and disposed of a number of them. This mortgage was by public act and was recorded in several of the parishes through which the main line and the branches were to run. By an Act of Congress approved March 3, 1871, (16 Stat. at L. 573,) to incorporate the Texas Pacific Railroad Company, certain lands in Louisiana were granted to the Baton Rouge Company in aid of its construction of a railroad from New Orleans to Baton Rouge, thence by way of Alexandria to the eastern terminus of the Texas Pacific Railroad at Shreveport. On November 11, 1871, the Baton Rouge Company filed in the general land office a map designating the general route of its road By acts of mortgage dated April 17, 1883, and January 5, 1884, the Pacific Company executed to appellants Dillon and Alexander a land grant and sinking fund mortgage upon the lands acquired from the Baton Rouge Company, to secure the payment of certain bonds, which the bill averred to be subsequent and subordinate to the mortgage executed by the Baton Rouge Company to secure the payment of the bonds in suit. was None of the defendants named in the bill [45] [51] be sound, it would necessarily follow that if every bondholder of this mortgage had intervened, and a cross bill had been filed against them all, praying a cancellation of the entire mortgage, our jurisdiction to review a dismissal of this bill could not be sustained as to any of such bondholders whose decrees were not more than five thousand dollars, notwithstanding it would be sustained as to others whose decrees were larger. The result would be that the land might be sold for the benefit of the larger bondholders, and freed from the lien of the smaller. cloud upon the title of the Pacific Company him. If Parker's argument in this connection Messrs. William Wirt Howe, John F. Mr. Justice Brown delivered the opinion Where several plaintiffs claim under the same title, and the determination of the cause necessarily involves the validity of that title, this court has jurisdiction as to all such plaintiffs, though the individual claims of none of them exceed five thousand dollars. Thus in Shields v. Thomas, 58 U. S. 17 How. 3 [15: 93] where a bill was filed by several distributees of an estate, to compel the payment of money alleged to be due them, and a decree was rendered in their favor, it was held that this court had jurisdiction over an appeal, although the amount payable to each individual was less than two thousand dollars. It was held that the matter in controversy was the amount due the representatives of the deceased collectively; and not the particular sum to which each was entitled, when the amount was distributed among them. Said the court: "They all claimed under one and the same title. They had a common and undivided interest in the claim; and it was perfectly immaterial to the appellant how it was to be shared among them." The case of Rodd v. Heartt, 84 U. S. 17 Wall. 354 [21: 627], is still more nearly analogous. In this case, which was in admiralty, a fund exceeding the jurisdictional amount paid into the registry of the court was claimed on the one hand by several creditors secured by one mortgage, and on the other by a (1) The motion of the plaintiff Parker, to dismiss the appeal as to him upon the ground that less than five thousand dollars is involved, demands our first consideration. His position is that the suit embraces two separate and distinct controversies; one between Parker and appellants, and one between Hamlin and appellants; that there were separate decrees in these several causes; that these decrees cannot be aggregated for the purpose of sustaining the jurisdiction of this court, nor can the appeal be sustained as to him by reason of the fact that as to Hamlin more than the requisite jurisdictional amount is at issue. It is true that the amount of Parker's decree was but twenty-four hundred dollars and interest, but his bill was filed not only for himself, but for all the other bondholders under the mortgage, and the cross bill avers that he actually repre- number of mariners and material-men. Å sented upwards of two hundred of the bonds decree having been made adverse to the mortissued under this mortgage (an averment ad- gagees, an appeal was taken by them to this mitted by his demurrer,) and prayed for a de- court, and it was held that although no one of cree declaring the invalidity of the entire the claims under the mortgage equalled the mortgage as to these lands. Had the bill been jurisdictional amount, yet as the claim of the filed by the trustee under this mortgage for appellants, which was disallowed, exceeded the foreclosure of the whole amount of the that sum, an appeal would lie. In The Con debt, and a similar cross bill had been filed for nemara, 103 U. S. 754 [26: 822], it was held its cancellation, there could be no doubt of the that where salvors united in a claim for a single appealable character of any decree rendered salvage service, jointly rendered by them, the upon these pleadings. This mortgage, how- owner of the property was entitled to an apever, contained a provision permitting a fore- peal where the sum decreed exceeded $5,000, closure by any holder of an overdue bond or though in the division among the several par coupon. Parker's bill was filed practically for ties sharing in the recovery several were the benefit of the entire number of bondhold-awarded less than $5,000. In line with these ers, and the cross bill could not be sustained except upon the theory that the entire mortgage was invalid as a lien upon these lands. While a decree in favor of the cross-plaintiff might not have been binding upon any defendant to the cross bill who did not appear, it certainly would have seen binding upon Hamlin as well as Parker, since Hamlin, on being made a plaintiff, expressly stipulated that the cause should be considered as if he had been one of the original plaintiffs; that Parker's pleadings should be considered as his; and that the pleadings of the defendants should apply equally to cases are those of Davies v. Corbin, 112 U. S. 36 [28: 627], and Handley v. Stutz, 137 U. S. 366 [34: 706]. The true distinction is between cases in which there are several plaintiffs interested collectively under a common title, and those wherein the matters in dispute are separate and distinct, and are joined in one suit for convenience or economy. Of the latter class are those relied upon by the plaintiff Parker in this case, and his motion to dismiss must, therefore, be denied. Indeed the cross bill to set aside the whole mortgage as to these lands is sufficient [53] [54] of itself to remove all difficulty with regard to (2) The case upon the merits depends upon the question whether the mortgage of 1870 should be construed to cover a land grant made by Congress the following year to the Baton Rouge Company, in aid of the construction of its road. To answer this question satisfactorily it is necessary to consider the power of this company under its charter, and the manner in which it attempted to exercise this power. of the property, the latter clause of such The Act of 1869 of the Legislature of Louisiana, incorporating the Baton Rouge Company, authorized it (13) to obtain from any parish or other municipality any rights, privileges, or franchises that such municipality might choose to grant in reference to the construction of the road; and by section 14, it was authorized to borrow money or to purchase property for the purpose of constructing the road, to issue its corporate bonds, and, to secure the payment of such bonds, to mortgage its road, etc. By section 15, provision was made for a second mortgage guaranteed by the State, and for bonds to be issued and made payable to the State or bearer. By sec-appurtenances thereunto belonging, etc., was tion 16, the first mortgage that should be given was declared to be a prior lien upon the railroad within the State, including all the "real and personal estate within the State of Louisiana, appurtenant to, or necessary for the operation of said main line of railroad, owned by the company at the date of said mortgage, or which may be acquired by it thereafter; and upon the corporate franchises and privileges of said company, granted by the State of Louisiana, relative to the construction, operation and use of said main line of railroad within the State of Louisiana," etc. The mortgage did not differ materially from this Act, though its description of property covered by it is still more explicit, and is as follows: "About five bundred and one miles of railroad within the said State of Louisiana, together with the right of way, roadbed, rails, depots, stations, shops, buildings machinery, tools, engines, cars, tenders and other rolling stock; also all the real and personal estate within the State of Louisiana owned by the said company at the date of this mortgage, or which may be acquired by it thereafter, appurtenant to, or necessary for the operation of said main line of said railroad or any of said branches connected with the said main line, or to be connected therewith; also all other property, real and personal, of every kind and description whatsoever and wherever situated in the State of Louisiana which is now owned or which shall hereafter be acquired by the said company, and which shall be appurtenant to or necessary or used for the operation of said main line of railroad, or of any of said branches; also the tenements, bereditaments, and appurtenances thereunto belonging, and all of the estate, right, title, and interest, legal and equitable, of the said company and its successors and assigns therein, together with the corporate franchises and privileges of said company at any time granted or to be granted by the State of Louisiana relative to the construction, operation and use of said railroad within said State.' The bonds issued under this mortgage contained a similar description The language of the Act of the Legislature and of the mortgage itself restricts its lien to real and personal property situated in the State of Louisiana, then owned, or which should thereafter be acquired, and which should be appurtenant to, or necessary, or used for the operation of the main line of said road, or any of its branches. The succeeding clause, which includes tenements, hereditaments and manifestly not intended as an expansion of the prior clause, and for the purposes of this case may be treated as superfluous. No argument is needed to show that a land grant is not necessary to the operation of a railroad; it may be a necessary aid in the construction of a road, but it is certainly not necessary in its operation. Plaintiffs' contention, then, if supportable at all, must be upon the theory that the land grant was appurtenant to the road, not necessarily to its operation, but to the road itself. The word "appurtenant," as ordinarily defined, is that which belongs to or is connected with something else to which it is subordinate or less worthy, and with which it passes as an incident, such as an easement or servitude to land; the tackle, apparel, rigging and furniture to a ship; a right of common to a pasture; or a barn, garden, or orchard to a house or messuage. In a strict legal sense it is said that land can never be appurtenant to land (Jackson v. Hathaway, 15 Johns. 447, 454; Leonard v. White, 7 Mass. 6; Woodhull v. Rosenthal, 61 N. Y. 382); but it was evidently contemplated by this mortgage that real as well as personal property subsequently acquired, such as land for stations, machine shops, or other purposes immediately connected with the road should pass under the lien of the mortgage. Property, however, not connected with what is ordinarily termed the plant, or not forming a part of the organic structure of the road, is never treated as appurtenant to it. Thus in Humphreys v. McKissock, 140 U. S. 304, [35:473], decided at the last term of this court, it was held that a railroad company joining in the construction of an elevator upon land not belonging to it, and situated at some distance from its road, did not by its ownership of stock in the elevator company acquire such an interest in it as would pass as an appurtenance under the mortgage of the road, as constructed or to be constructed, and the "appurtenances thereunto belonging.' The court went further, and held that the elevator itself, if owned by the company, would not be appurtenant to [55] [56] [57] its road. In line with this are the earlier cases | Shamokin Valley R. Co. v. Livermore, 47 Pa. Analogous cases in the state courts are numerous. Thus in Parish v. Wheeler, 22 N. Y. 494, it was held that canal boats purchased with the funds of a railroad company, and used and run by it in connection with its railroad, but beyond its terminus, were not covered by a mortgage of its engines, cars, etc., "and all other personal property in any way belonging or appertaining to the railroad of said company." So in Boston & N. Y. A. L. R. Co. v. Coffin, 50 Conn. 150, the property mortgaged by the railroad company was described very nearly in the terms employed in the mortgage under consideration, and it was held that lands purchased by the company outside of the layout of the road, and not needed for its use or construction, were not covered by the mortgage. It was said in the opinion, that "lands purchased and sold at a profit, although the profit might be expended in the construction of the road, were never intended to be embraced by the phrase, 'acquired by the company for the purposes of the railroad.'" In Mississippi Valley Co. v. Chicago, St. L. & N. O. R. Co., 53 Miss. 846, a railroad mortgage covering property thereafter to be acquired was confined to such as was appurtenant to or necessary for building or operating the road, and carrying out the purposes for which it was created, and was held not to include a hotel and brick store-house, some vacant town lots and a farm of three hundred acres; the hotel being used as a railroad eating house, and the other property being rented out for the several purposes for which it was adapted. In Meyer v. Johnston, 53 Ala. 237, 64 Ala. 603, a mortgage of a railroad and "all other property now owned, and which may be hereafter owned by the railroad company," was held not to cover a land grant of the United States made by an Act of Congress subsequently passed. Other cases to the same purport are, A consideration of the circumstances attending and following the execution of this mortgage strengthens the inference that we have drawn from it, that the land grant was not intended to be included. There a no allega. tion in the bill that the parties to this mortgage expected, or had any reason to expect that the land grant would be made; and had it been intended to include so important an item, it is scarcely possible that the mortgagor would have left such intention to be inferred from the indefinite and ambiguous language of this instrument. Nor is there any evidence that, after the Act of Congress was passed, the line of the road was ever definitely fixed, as contemplated by section 9 of the Act of March 3, 1871, (16 Stat. at L. 573, 576) although it had filed a map designating the general route of the road pursuant to sections 12 and 22, and obtained an order from the Secretary of the Interior with drawing from entry and sale the oddnumbered sections of land within the grant and indemnity limits. As the grant was, by section 9 of lands not sold, reserved, or otherwise disposed of at the time the route of the road was definitely fixed, it is settled in this court that the title to any particular lands would not pass until the line was so located, because until that time it could not be definitely ascertained what lands had been otherwise disposed of. Van Wyck v. Knevals, 106 U. S. 360 [27: 201]; Kansas Pac. R. Co. v. Dunmeyer, 113 U. S. 629 [28: 1122]; Sioux City Land Co. v. Griffey, 143 U. S. 32 [35: 641. As to lands within the indemnity limits, it has always been held that no title is acquired until the specific parcels have been selected by the grantee, and approved by the Secretary of the Interior. Grinnell v. Chicago, R. 1. & P. R. Co. 103 U. S. 739 [26: 456]; Kansas Pac. R. Co. v. Atchinson, T. & S. F. R. Co. 112 U. S. 414, 421 [28: 794, 797]; St. Paul & 8. C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720 [28: 872]; Barney v. Winona & St. P. R. Co. 117 U. S. 228 [29: 858]; United States v. Missouri, K. & T. R. Co., 141 U. S. 358 [35:766]: St. Paul & P. R. Co. v. Northern Pac. R. Co. 139 U. S. 1 [35: 77] A definite location of this line was subsequently made by the Pacific Company; but there is no evidence that such location coincided with the general route designated by the Baton Rouge Company, and as no patents were ever issued for the lands earned by the construction of the road until March, 1881, when they were issued to the Pacific Company as assignee of the. Baton Rouge Company, it is difficult to see what lands were ever "acquired" by the latter company, to which this mortgage would attach. Not only this, but there is no allegation or evidence that the Baton Rouge Company paid the cost of surveying, selecting and conveying these lands as required by the Act of July 31, 1876 (19 Stat. at L. 102, 121) as a preliminary to their conveyance. New Orleans Pac. R. Co. v. [58] United States, 124 U. S. 124 [31: 383]; Deseret | hended, everyone interested should have no- In the view we have taken of the case it is unnecessary to consider the other points made by the defense. We are satisfied, both from the words of the mortgage itself, and from the circumstances attending its execution, that it should not be construed to include the land grant subsequently made to this company. The decrees of the court below must be reversed and the case remanded with instructions to dismiss the bills of Parker and Hamlin, and for further proceedings in conformity with this opinion. THE NEW YORK, LAKE ERIE, & WESTERN RAILROAD COMPANY (Otherwise Called the Erie Railroad Company), Piff. in Err. v. DAVID T. WINTER'S Administrator. (See S. C. Reporter's ed. 60-75.) Passengers on railroad train, when not presumed to know the rules-statements by ticket agent to passenger, when admissible-when railroad company is liable for act of conductor in expelling passenger-regulations of road, when not conclusive-reliance upon statements of conductor-negligence of conductor-remedy for breach of contract-action for ejectment from train-refusal to charge jury—excessive verdict-questions of fact. 1. Passengers on railroad trains are not presumed to know the rules and regulations which are (3) The decrees in this case were also fatally defective in ordering all the lands assumed to be covered by this mortgage to be sold, free from all liens, mortgages and incumbrances, to satisfy a claim of $2,400 in one case and $6,000 in another, without making provision for other bondholders, subsequent mortgagees or other creditors of the road. Assuming for the purposes of this case that, under the peculiar terms of this mortgage, these bondholders had the right to file this bill without calling upon the trustee to act-a point upon which we express no opinion-they had no right to a decree for their exclusive benefit. If a single bondholder has any right at all to institute proceedings, he is bound to act for all standing in a similar position, and not only to permit other bondholders to intervene, but to see that their rights are protected in the final decree. Upon this principle it was held by this court, in Pennock v. Coe, 64 U. S. 23 How. 117 [16: 436], that a bondholder cannot, by getting a judgment at law, be permitted to sell a portion of the property devoted to the common security, as this would disturb the pro rata distribution among the bondholders to which they are equitably entitled. "These bondholders," said Mr. Justice Nelson, "have a common interest in this security, and are all equally entitled to the benefit of it; and in case of a deficiency of the fund to satisfy the whole of the debt, in equity, a distribution is made among the holders pro rata. . . To permit, therefore, one of the bondholders under the second mortgage to proceed at law in the collection of his debt upon execution would not only disturb the pro rata distribution in case of a deficiency, and give him an inequitable preference over his associates, but also have the effect to prejudice the superior equity of the bondholders under the first mortgage, which possesses the prior lien." Jones, Railroad Securities, sections 392, 393, 434; Fish v. New York W. P. Paper Co. 29 N. J. Eq. 16; Martin v. Mobile & O. R. Co. 7 Bush, 116. In Nashville & D. R. Co. v. Orr, 85 U. S. 18 Wall. 471, 475 [21: 810, 811] a bill was filed by a bondholder, on behalf of himself and all others, against a county and a railroad company for the foreclosure of a mortgage given by the railroad company to secure the redemp-contract, he had no right to a return passage under tion of certain bonds issued by the county, and of the company's agent at the end of the route, no for a sale of the mortgaged property. The agent or employé of the company was authorized railroad company demurred for want of proper to alter or waive any condition of the contract, parties. It was held that the other bondhold- and therefore the action of the baggagemaster in ers should be parties to the suit, and in deliv-punching the ticket and checking_plaintiff's bagering the opinion of the court, Mr. Justice gage, and that of the gateman in admitting him to Hunt observed: "It is the interest of every the return train could not bind the company to bondholder to diminish the debt of every other carry him, nor estop it to deny his right to be bondholder. In so far as he succeeds in doing carried. Boylan v. Hot Springs R. Co. 132 U. S. 146 that, he adds to his own security. Each (33: 290) 40 Am. & Eng. R. Cas. 666. holder, therefore, should be present, both that he may defend his own claims and that he may attack the other claims should there be just occasion for it. If upon a fair adjustment of the amount of the debts there should be a deficiency in the security, real or appre NOTE.-That a carrier of persons, bound to accept all passengers; exceptions; when may exclude a passenger; must provide trains as advertised, see note to Pearson v. Duane, 18: 447. From what liability a contract that a common carrier is not to be responsible for loss or damage will exonerate, see note to New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 12: 465. As to liability of carrier for injury to passenger carried free or riding on a pass, see note to New York Cent. R. Co. v. Lockwood, 21: 627. Liability of railroad companies to passengers; who are passengers; ejection of passengers, when warranted: tickets, conditions. Where, by the express conditions of the plaintiff's his ticket, unless it bore the signature and stamp A stipulation in a railroad ticket at reduced rates, that it shall not be good for a return trip unless it is stamped by the agent at the terminus after the holder identifies himself to the satisfaction of such agent, is not unreasonable or contrary to the policy of the law. Bethea v. Northeastern R. Co. 26S. C. 91. A contract requiring a passenger to identify |