of opinion has been entertained as to the power of the court over judgments obtained against the receiver in courts other than that appointing the receiver: Central Trust Co. v. St. Louis etc. Ry. Co., 40 Fed. 426; Eddy v. Wallace, 49 Fed. 801; Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co. 41 Fed. 311. In the two cases first cited it was held that such judgments were conclusive. In the case reported in 41 Fed. it was held that it was within the power of the court, when such judgments were filed in the case in which the fund was being distributed, to look into them, and allow the whole, or half, or any part, as justice might require. The latter view seems to have been entertained by Mr. Justice Jackson, for, while judge of this circuit, he made an order in this cause, which has not been revoked, requir ing all judgments in other courts in suits prosecuted without leave of the court, to be filed by intervening petition in the main cause, together with a full bill of exceptions showing the evidence upon which the judgment rested. That the judgment is conclusive, so far as to be regarded as a judicial ascertainment of liability, and of the amount, is probably the better view. Speaking of the effect of the proviso, the learned chief justice, in the case of Texas etc. Ry. Co. v. Johnson, 151 U. S. 81, 14 Sup. Ct. Rep. 250, said that 'the right to sue without resorting to the appointing court, which involves the right to obtain judgment, cannot be assumed to have been rendered practically valueless by his further provision in the same section of the statute which granted it.'"' More will be said, presently, concerning the clause of the statute declaring that the "suit shall be subject to the general equity jurisdiction of the court in which the receiver is appointed, so far as the same shall be necessary to the ends of justice."

II. Personal Liability of Receiver.

a. In General.-A judgment obtained against a receiver in his official capacity creates no personal liability. It should be entered against him as receiver, and made payable in due course of his administration as such receiver. A personal judgment against him will not be awarded, nor will an execution be issued against him: McNulta v. Eusch, 134 Ill. 46, 55, 24 N. E. 631; McNulta v. Lockridge, 137 I. 270, 31 Am. St. Rep. 362, 27 N. E. 452; Robinson v. Kirkwood, 91 Ill. App. 54; Irwin v. McKechnie, 58 Minn. 145, 49 Am. St. Rep. 495, 59 N. W. 987; Combs v. Smith, 78 Mo. 32; Woodruff v. Jewett, 37 Hun, 205.

III. Enforcement and Satisfaction of Judgment.

a. Manner of Enforcement.-It is said that a judgment against a receiver cannot be carried into effect, except by consent and direction of the court having charge of the estate, or unless a statute allows it to be done. No process will issue thereon: Abbey v.

International etc. Ry. Co., 5 Tex. Civ. App. 261, 23 S. W. 934; Arnold v. Penn, 11 Tex. Civ. App. 325, 32 S. W. 353. The practice is to apply to the court for an order to enforce the judgment: Painter v. Painter (the principal case), ante, p. 47. The manner in which a judgment rendered against a receiver in another jurisdiction shall be paid, and the adjustment of equities between persons having claims on the property and effects in the hands of the receiver, are under the control of the court having custody through its receiver: Dillingham v. Russell, 73 Tex. 47, 15 Am. St. Rep. 753, 11 S. W. 139. Thus, in a suit in a state court against a receiver appointed by a federal court, it is error to prescribe the particular funds out of which judgment should be paid. The judgment should be against the receiver in his official character, leaving the method of its enforcement to be determined by the court having jurisdiction of the receivership, in view of the rights of all persons interested in the proper application of the fund in that court's custody: Brown v. Brown, 71 Tex. 355, 9 S. W. 261.

....

We shall here give some consideration to that provision of the act of Congress, heretofore referred to, whereby a receiver appointed by a federal court may be sued without leave of such court, but that such suit shall be subject to the general equity jurisdiction of the court in which the receiver is appointed, so far as necessary to the ends of justice. The latter clause or proviso of the act "establishes no new rule, but is merely declaratory of the previously existing law. The receiver holds the property for the benefit of all persons having any interest in or lien upon it. . . . Suits, therefore, which seek to deprive the receiver of the possession of the property, and all process the execution of which would have that effect, are subject to the control of the court appointing the receiver, so far as may be necessary to the ends of justice. The marshaling of assets, and the orderly distribution of the fund or property according to the rights and equities of the several parties in interest, is not to be interfered with by the judgment or process of the state court. The judgment of the state court is conclusive as to the amount of the debt, but the time and mode of its payment must be controlled by the court appointing the receiver'': Central Trust Co. v. St. Louis etc. Ry. Co., 41 Fed. 551.

It was contended, in Dillingham v. Hawk, 60 Fed. 494, that the provision that "such suits shall be subject to the general equity jurisdiction of the court in which the receiver was appointed, so far as the same shall be necessary to the ends of justice," precluded any departure from the established chancery practice. But Justice Toulmin answered that the provision must be construed "as applying only to suits which seek to interfere with the receiver's possession of property, and to process the execution of which would have that effect. These shall be subject to the control of the court ap

pointing the receiver, so far as the ends of justice may require. The time when, and the manner in which, a judgment against a receiver shall be paid; the adjustment of equities between all persons having claims against the property in his hands; the just distribution of the funds according to the rights of the several parties interested in it-all must necessarily be under the control of the court having custody of the property by its receiver, and shall be subject to its general equity jurisdiction. This, we think, is the true meaning of the statute referred to. We can perceive no other reasonable interpretation of it. Any other interpretation would impute to Congress a very useless act. ... The judgment of the state court is conclusive as to the existence and amount of the appellee's claim, but the time and manner of its payment must be controlled by the court appointing the receiver. A judgment may be complete and perfect, and have full effect, independent of the right to issue execution."

SOUTHERN CALIFORNIA RAILWAY CO. v. SLAUSON. [138 Cal. 342, 71 Pac. 352.]

RAILWAY RIGHT OF WAY-Recovering by Land Owner.-If one permits a railroad company to construct and operate its line over his land, with the understanding that it shall erect a depot thereon, he cannot, on default of the company in erecting the depot, maintain an action to quiet title to the land. He must resort to an action for the value of the land so taken and damages, if any, arising therefrom. (p. 60.)

C. N. Sterry and Henry J. Stevens, for the appellant.

Charles Silent, for the respondent.

342 VAN DYKE, J. This is an action to quiet title. It is averred in the first count of the complaint that plaintiff is the owner and in possession of a certain strip of land in the county of Los Angeles, between thirty and forty feet wide and about thirteen hundred feet in length, and that defendant claims some title or interest therein which is without right; in the second count it is averred that for more than five years plaintiff and its predecessor in interest have been in the exclusive possession of a right of way over said land for the use and purpose of operating a railroad over the same, claiming to be the owner of said right of way adversely to any right, title, etc., of defendant;

and the prayer is, that plaintiff's title to such right of way be quieted as against the defendant.

In addition to answering the complaint, the respondent filed a cross-complaint, in which he set up his ownership, and 343 prayed for judgment, declaring him to be the owner in fee of the land in contest, and restoring him to the possession. thereof. The title relied upon by appellant was based on prescription. The evidence shows that during all the times mentioned in the complaint the respondent was the owner in fee of a tract of land which included the premises in contest. It also appears that when the predecessor of appellant, the Los Angeles and Santa Monica Railway Company, contemplated building a road across the land in question, the person whom it authorized to obtain rights of way for such contemplated road had an interview with respondent, at which the latter agreed that the railroad company might go on and build the road over his land, provided that it would put a good depot on it, at which all regular passenger trains would stop; and that when that was done he would make a deed conveying the right of way. The result of the interview was reported to the company, and soon thereafter it began to build the road over the land, and, having completed it, ran its trains over the same. There was no written contract in the premises, but the railroad company entered upon the land by respondent's permission, and not adversely, and it continued to operate the road after the same was built, but did not construct the depot or stop its trains as agreed. It made no demand for a deed for the right of way, nor did the respondent make a demand for the construction of the depot or the stopping of trains. The court below found and adjudged that the plaintiff had not any right or title to the land in question, and that defendant's title to the same be quieted against the claim of the plaintiff, and that he recover from plaintiff the possession of said land and premises in question, and that a writ of possession in his favor be issued, directing the sheriff to place said defendant in possession of the said premises.

The appeal was taken from the judgment, as well as from the order denying plaintiff's motion for a new trial, but not having been taken from the judgment within the statutory time, the only matter before this court which can be considered is the appeal from the order denying plaintiff's motion for a a new trial. The appellant, among other points in his motion for a new trial and upon the appeal from the order denying the same,

contends that finding 8-to wit, 344 "That the plaintiff has not any right to, or estate in, the said railroad property, and its possession thereof is without right, and is wrongful"-is not supported by the evidence. We think this contention on the part of appellant is well taken.

The evidence in the case fully discloses the fact that the railroad company, the predecessor of the plaintiff, and the plaintiff itself, entered upon the possession of the land in question by the consent of respondent (defendant) and constructed and had operated its railroad for a period of nine years or more before the commencement of the action with the knowledge and acquiescence of the defendant, and that during such time he had not requested or demanded that the said railroad company should establish or maintain a depot upon the said land in controversy or stop its trains thereat.

The defendant, the owner of the land—as he had a right to do-waived compensation in advance for taking, occupying, and using the land in question, and having permitted the railroad company to enter upon the land, construct and operate its railroad, as the evidence shows it has, the railroad company was lawfully in possession of the land, and the defendant cannot recover the same. He must resort to his action for the value of the land so taken, and damages, if any, arising therefrom.

Since this appeal was taken this court has had occasion to pass directly upon the point here involved: Fresno St. R. R. Co. v. Southern Pac. R. R. Co., 135 Cal. 202, 67 Pac. 773. That was an action of ejectment brought to recover a portion of the right of way claimed by the plaintiff and occupied and used by the defendant for railroad purposes, and it appeared that the strip of land in question was entered upon by the railroad company, defendant, and its predecessor in interest, under certain agreements and stipulations to be thereafter performed, and which were never performed; hence the action to recover possession of the premises in question upon a breach of the contract of agreement under which the railroad company entered upon the same. This court in that case held: "The owner in fee even cannot permit a railroad company to construct and operate its road through his land upon an understanding that compensation shall thereafter be made for the right of way, and then maintain ejectment if the damages be not paid as per agreement. His remedy in such 345 case is an action to recover compensation. . A failure to bring an

action where the right exists, until after public interests have