on

from entering upon it for the purpose of soliciting or receiving orders therefor. Barney v. Oyster Bay & H. S. B. Co. 67 N. Y. 301, 23 Am. Rep. 115. It has been also held that a railroad corporation may exclude from its right of way one party who comes to sell lunches to its passengers and admit another to this privilege, if it pleases (Fluker v. Ga. R. & Bkg. Co. 81 Ga. 461, 2 L. R. A. 843, 8 S. E. 529), and that a steam

R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. [this train merchandise from every other 627. If the contract complained of in this member of the community, and refuses carcase was one which granted an exclusive riage alone to that of this complainant; right and privilege to the Commercial Pub and this refusal is based, not upon a lack lishing Company to sell its newspapers on of carrying capacity, but exclusively upon this train, and the complainant was here the ground that it has contracted away its seeking to interfere with this contract and duty, in respect to such property as the comto force the railroad to grant it an equal plainant has tendered, to another party. privilege, then there would be presented a Such an excuse cannot relieve the railway special agreement which the courts would company from its obligations to complainnot intermeddle with; and this upon the ant as one of the public, unless it be that ground that as a common carrier it owed this contract in question brings this within no duty to furnish newspapers to the travel- the lines of certain exceptional cases ing public, and was not bound to permit which the defendants rely as authority for another to do so. If it chose, however, to their contention. Some of these cases, which grant this privilege, another to whom it may be taken as representatives of their rewas refused would not be heard to complain. spective classes, will be now referred to. But this is not the case at bar. Under It has been held that a common carrier of the contract the railway company is carry-passengers may establish in his car or vesing the newspapers of the Commercial Pub-sel an agency for the delivery of passengers' lishing Company as property, and the com- baggage, and may exclude all other persons plainant is insisting that, having the means of doing so, it should equally and impartially carry its packages of papers upon the same terms as merchandise. It would hardly be contended that a railroad by making a special and exclusive contract to transport shoes manufactured by one party in a community could strip itself if its commonlaw character, and decline, without any reason save the existence of said contract, to transport boxes of shoes for another manu-ship corporation and a railroad may equally facturer in the same community. If this give preferential privilege to certain hackbe so, where is the controlling difference be- men to solicit passengers on their property tween such a case and the one now before and exclude others (Smith v. New York, L. us? Packages of newspapers are as much E. & W. R. Co. 149 Pa. 249, 24 Atl. 304; property as shoes, and the principle which Norfolk & W. R. Co v. Old Dominion Bagcontrols in the one case, it seems to us, must gage Co. 99 Va. 111, 50 L. R. A. 722, 37 S. equally apply to the other. If this be not E. 784). These cases and others like them so, by parceling out its means of transporta-rest, however, on the ground that, save as to tion to the full extent of its carrying capacity, it would be possible for a railroad to build up a few in a community to the destruction of the many who equally seek shipment. This the law will not tolerate in one who holds himself out as a common carrier. As has been already said, he must accord equal privileges to all who are in like condition. He cannot foster monopolies. He will not, by making special preferential agreements, be permitted to build up one set of shippers at the expense of another. He must carry for all alike.

duties which he owes to the public, a common carrier has as complete dominion over its property, whatever it may be, as does every other owner, and may therefore exclude from or admit to it, at its will, particular persons. In other words, an inhibition upon preferential indulgences extends only to those services which inhere in or pertain to the office of a common carrier, and beyond these he is entitled to the absolute control of his own, and that in none of these matters covered by these cases does he owe anything to the public.

In Audenried v. Philadelphia & R. R. Co. 68 Pa.,370, 8 Am. Rep. 195, the question was as to the right of the defendant company to so parcel or divide its wharf among other coal dealers as to exclude the complainant

These general principles being established, what is there to prevent their application in this case? We see nothing. A railroad by its very nature, as has been seen, is a common carrier. The train in question is a scheduled one, advertised to the world as therefrom. After expressing great doubt such. An invitation is given to the public to take passage and ship freight upon it. Its own employees, managers, and the railway company appropriate all its revenues. So far as the record shows, it receives on

as to whether the defendant, under its charter, was bound to provide wharf accommodations to any of the coal dealers in question, or was a trustee to any extent for them, the court adds: "But, concede

both these points; what then? As trustees | another of the same class, it falls under the there is a discretion reposed in them in the condemnation of the Messenger Case, rather use of the property with which a chancellor than being within the saving authority of cannot interfere. It is agreed that they that of Hoover, 156 Pa. 220, 22 L. R. A. have not room enough for all. They must 263, 27 Atl. 282. Nor can we see how the select some and reject others. Can a chan- fact that the solicitation or the money of cellor inquire into their motives and, not the Commercial Publishing Company, howapproving of them, assume the selection ever able was its exhibition of public or himself?" The court in this opinion by private enterprise, contributed to the instinecessary implication declared that its hold tution of this train service and its support ing could not be authority for such a con in its early days, is to affect this question. tention as is now made by these defendants; From the beginning the railway company for it adds: "Transportation by a common had itself recognized that it was operating carrier is necessarily open to the public this train as a part of its common-carrier upon equal and reasonable terms. An ex service. It was in no sense a special train, clusive right granted to one is inconsistent chartered for a special purpose, with the with the rights of all others. This was not carriage of freight and passengers as simply transportation, but wharfage, the nature of incidental. The contract itself gives notice which requires exclusive possession tempo- that it is a public enterprise, and the conrarily." temporaneous conduct of the parties has so construed it. The railway company has controlled it by its own employees, and has advertised its readiness to serve the public with it; and the Commercial Publishing Company, according to this record, has continually published it as one of the schedule trains of the railway company.

In Hoover v. Pennsylvania R. Co. 156 Pa. 220, 22 L. R. A. 263, 27 Atl. 282, the court held that an agreement made in 1881 to charge a uniform rate on shipment of coal to the Bellefonte Nail Works for consumption in operating its machinery could not be complained of as unjust discrimination against a mere dealer, who received his coal over the same road and was charged a higher rate. This was held not to be unjust discrimination, because the business of the coal dealer paid but one freight to the carrier, while that of the nail company paid two freights, to wit, one for handling the coal to the nail works, and the other for carrying all the products manufactured by the nail company. "This," said the court, "was a most important and vital difference in the conditions and circumstances of the two shipments. The authorities are very clear and strong that, where an additional freight is obtained by means of the lower charge, the discrimination is justified, both at common law and under the statutes." To save such an arrangement from condemnation, however, it must appear that "the same advantages" were "extended to all persons under the like circumstances. This latter incident," adds the court, "would, of course, be essential where all the favored class were in the same business.” The case was distinguished from Messenger v. Pennsylrania R. Co 37 N. J. L. 531, 18 Am. Rep. 754, where it was held that there was a clearly unlawful preference by the common carrier in favor of one party over all others in the same business in "giving him a specified drawback upon freight on hogs carried from the same points." "This drawback,” said the Pennsylvania court, "as of course, was giving one a direct preference over all others, and was in violation of the law."

We think, as the discrimination of the case at bar is one in favor of and against

It is said, however, that the railway company has other trains going out every day, though later in the day, on which the complainant may ship his papers. But it was the duty, upon the record, of the company to receive the packages for shipment. Having done this, it could make no “discrimination, either in the time or order of shipment," between these two publishing companies. Hutchinson, Carr. § 297. It was bound to use due diligence in the delivery of the goods. Nashville & C. R. Co. v. Jackson, 6 Heisk. 271.

It is also said that, if complainant wishes a train to use in carrying its goods, it should make a special contract, as is relied on in this case by the defendant. This would be a good answer for the railway company, if complainant wanted an early service and there was no train on which it could render the service. But it is not for either defendant, with the present train on, amply able to take complainant's goods, to decline only upon the ground of the special agreement.

After a careful consideration of the assignments of error raising the question as to legal effect of this agreement upon the carrier duty of the railway company, we hold that they are not well taken, and they are overruled.

There remains open now only the assignment of error upon the action of the chancellor in sustaining the demurrer to the crossbill. In arguing this assignment, the cross-complainant overlooks the fact that the real controversy in this cause is between

Second. If bound to contribute at all, we think the Morning News Publishing Company could only be required to do so to the extent of its proportional part of the same; all other shippers who have availed themselves of this service being equally liable to contribution.

the Memphis News Publishing Company | ascertain the kind or the value of the adand the railway company. It was a proper, vantages derized by it from this enterprise. but by no means a necessary, party to this Certainly the worth of this advantage suit. No relief was asked against the Com- should be taken into account. mercial Publishing Company. Complainant sought a remedy alone against the railway company, and this remedy would have been applied as effectually without, as with, the former company a party defendant; and the defense of the railway company, if sound in law, was maintainable even if it stood alone. This company has been paid all it is entitled Third. Having held, however, that the to, and is claiming nothing for past service. duty of a common carrier attached from the This being so, we know of no principle establishment of this train service, it folupon which the cross-complainant can in this suit work out any equity against complainant, if it has any; for on this crossbill it is in the attitude it would be in if, not a party to this suit, it had filed an independent bill, and asked the court to grant it relief before giving a decree in favor of the Morning News Publishing Company against the railway company. It would hardly be insisted that such a bill could be maintained. Nor do we think the contention of cross-complainant that the original complainant shall be compelled to account to it for one half of the sums expended in placing this train service on a self-sustaining basis before being let into its enjoyment can be maintained on other grounds.

lows that every shipper who made a timely and proper tender of freight was entitled to its benefit, as long as there was accommodation for his freight, without regard to the connection between the railway company and other shippers. All other things being equal, the company was bound to accept and make prompt delivery of the goods so tendered. Neither the company nor a third party could impose as a condition for acceptance and delivery that complainant should agree to share a burden voluntarily assumed by this third party. No more can either' demand at this day that this burden shall now be divided as a condition precedent to the railway company's discharging its duty.

However meritorious this claim of crosscomplainant, we can see no legal or equitable ground on which it can be rested. The assignment is therefore overruled.

First. We think it would be impracticable to state an account that would do equal justice to the parties. While it would be easy to ascertain the amount of money expended and the value of the service rendered in fostering this train by cross-things affirmed. complainant, yet it would be impossible to

The decree of the chancellor is in all

brought to recover possession of certain v. Schneiderhan, 37 Minn. 63, 33 N. W. 33; real estate. Affirmed.

It is not a material circumstance that the government contractor and deputy surveyor to whom the government confided the sub-303; Ladd v. Osborne, 79 Iowa, 93, 44 N. W. division of this township may have fraudulently neglected to perform his duty.

The controverted questions of law and ex-fact are the same in each case, and for this reason they were by stipulation heard together in the district court and in this court. The defendants in each case recovered a judgment in their favor in the district court, from which the plaintiff appealed. The here-material facts, as found by the trial court, are substantially these: township named was ordered surveyed by the General Land Office, and the contract for the survey thereof awarded to H. S. Howe. He ran and marked the exterior lines of the township except the south line thereof, which had been previously surveyed, and set posts at all section and quarter-section corners on the three exterior lines, and a meander post upon the north line of the township where the line running west from the northeast corner of the township first

strikes the shore of a lake known as "Ely as indicated by the field notes, of about Lake" or "Cedar Island Lake." He made 1,800 acres. In fact, the lake then was and no survey of the interior of the township, still is a body of water not exceeding 800 and no section lines therein were ever run acres in area. It is a permanent, deep, and by him, and no section or quarter-section navigable lake, having high, steep, and heavcorners were ever located or marked by him, ily timbered banks, except about the outlet with the possible exception of those in sec- thereof. It does not, in fact, touch section tion 36, and none of the streams or perma- 11 at all, and covers only an area of very nent lakes, of which there were several in small extent (less than one-half of a 40-acre the township, were meandered by him. He, tract) in the southeast corner of section 4. however, made, and filed with the United Between the actual water line of the lake States surveyor general of the state of Min- and the meander line thereof, as returned nesota, what purported to be field notes of by the purported field notes, there were at a survey of the township, purporting to the time of the survey, and still are, at give the length and directions of all interior least 1,000 acres of high, tillable land, section lines therein, the location of all which has never been a part of the lake, and section and quarter-section posts and the which was and is heavily timbered with bearing trees thereof, the character of the trees of more than a century's growth, and soil and timber, and all other data and in- growing down to the water's edge. The field formation required, by the statutes of the notes and report of survey so made were United States and the rules of the General duly approved, and a plat of the township Land Office to be ascertained and reported by made in accordance therewith, which was deputy surveyors in due course of making accepted and approved by the General Land surveys of public lands. With the exception Office as the official plat of the township. of the description of the survey of the three No other survey and plat of the township exterior boundary lines of the township actually run by him, the field notes return- were ever made. The actual shore line of ed by him were imaginary and fictitious, the lake as it was at the time the supposed and were, in fact, false and erroneous. From survey was made and now is, and the methe purported field notes, it appeared that ander line as marked on the official plat, there existed in the northerly part of the and the location of the fractional lots with township, lying in sections 2, 3, 4, 9, 10, and reference to such lines, their area and side 11 thereof, a lake known as "Ely Lake," or lines, are correctly delineated on the follow"Cedar Island Lake," with a surface area, ing map.

The outer meander line on this map repre- the defendants, who have made permanent sents the one marked on the official plat as shown by the field notes of the surveyor, and the inner meander line represents the lake as it actually exists, and did exist when the field notes were made and filed. The land involved in these actions lies between those lines, and is and has been since 1892 in the possession and actual occupancy of

and valuable improvements thereon, and claim that it is subject to homestead entry. Between December, 1879, and March, 1887, all of the lots here in question were patented and conveyed by the United States, pursuant to the laws relating to the disposal of public lands, and by patents containing the usual clause, "according to the official plat