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Opinion of the Court.
upon the same footing with other causes, and the court will have the right, as in other cases, to determine all questions of fact without submitting them to a jury.”
Upon the construction of the constitution and laws of a State, this court, as a general rule, follows the decisions of her highest court, unless they conflict with or impair the efficacy of some provision of the Federal Constitution, or of a Federal statute, or a rule of general commercial law. Norton v. Shelby County, 118 U. S. 425, 439. And this is so where a course of those decisions, whether founded on statutes or not, have become rules of property within the State ; also in regard to rules of evidence in actions at law; and also in reference to the common law of the State, and its laws and customs of a local character when established by repeated decisions. Burgess v. 'Seligman, 107 U. S. 20; Bucher v. Cheshire Railroad Company, 125 U. S. 555. Substantially conclusive effect is given to such decisions upon the construction of state statutes, as affecting title to real estate within the State. Ridings v. Johnson, 128 U. S. 212; Bacon v. Northwestern Insurance Co., 131 U. S. 258; Hanrick v. Patrick, 119 U. S. 156, 169.
And while the rule is thoroughly settled that remedies in the courts of the United States are at common law or in equity, according to the essential character of the case, uncontrolled in that particular by the practice of the state courts, New Orleans v. Louisiana Construction Co., 129 U. S. 45, 46, yet an enlargement of equitable rights by state statute may be administered by the Circuit Courts of the United States as well as by the courts of the State; and when the case is one of a remedial proceeding, essentially of an equitable character, there can be no objection to the exercise of the jurisdiction. Broderick Will Case, 21 Wall. 503, 520; Holland v. Challen, 110 U. S. 15, 25; Frost v. Spitley, 121 U. S. 552, 557.
Tested by the conclusions of the Supreme Court of Illinois, the principal contention on appellant's behalf cannot be sustained. The record of the patent and the deed from the patentee to Michael Gormley had been destroyed, and the deed, which it turned out on this hearing was in Gormley's posses:
Opinion of the Court.
sion, had never been re-recorded. The petitioner was entitled to the establishment of the record by the proceeding authorized under the statute, and, when the court had once acquired jurisdiction, it could go on and adjudicate upon all claims to the property in controversy, as therein provided. The character of the litigation sufficiently indicates that the petitioner legitimately invoked the aid of the statute.
It is strenuously insisted that the remedy at law was adequate, and that as the right of possession was purely a legal question and for a jury, the court of chancery should have declined jurisdiction ; but, inasmuch as the case came withm the provisions of the statute, and equity could alone afford the entire relief sought, the fact that dngal questions were also involved could not oust the court of jurisdiction. The jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would afford under the same circumstances, Kilbourn v. Sunderland, 130 U. S. 505, 514; and it is quite clear that under this statute the restoration of the record title is a matter essentially of equitable cognizance, while the declaration of the invalidity of the ordinance of January 3, 1882, the removal of the cloud caused by recording a copy thereof, and the abatement of the obstruction to the streets, were matters in respect to which, under the averments of the petition and the evidence adduced at the hearing, the petitioner could properly resort to a court of equity. Undoubtedly the rule that a bill may be retained for the purpose of granting full relief when jurisdiction exists, should not be abused by being employed as a mere pretext for bringing into chancery causes proper for a court of law; but under the local law, this could not be predicated of a petition which the petitioner was entitled to file under the “Burnt Records Act,” and, as already stated, we administer, where adverse citizenship gives us jurisdiction of a case, the equitable relief which state legislation accords.
It is objected that there was error in the direction for the removal of the buildings from the portion of Adams Street between blocks eight and nine, in disregard of the homestead
Opinion of the Court.
rights of appellant and his wife; but we do not think so. Whether the plat was a statutory plat or not, as to which some issue is made by the answer, the proofs establish such a dedication as created "án easement in the petitioner, the ex istence of which Gormley was estopped to deny, and which the court was justified in protecting. Maywood Co. v. Village of Maywood, 118 Illinois, 61; Zinc Company v. City of La Salle, 111 Illinois, 411; Littler v. City of Lincoln, 106 Illinois, 353; Hamilton v. Chicago, Burlington &c. Railroad, 124 Illinois, 235.
The right of way, as appurtenant to these blocks and lots, passed to the purchasers under the sale upon the trust deed, which was executed by Gormley and his wife, and by which both had released theyhomestead claim, and the decree recognized the fee as still in Gormley subject to the burden thus imposed. Trickey v. Schlader, 52 Illinois, 78; Kittle v. Pfeiffer, 22 California, 485.
As to the remaining errors assigned, we are of opinion that the court correctly held the second ordinance duly annulled, and the easement as existing in the petitioner, so far as respected the property described in the first of the two ordinances referred to, and properly granted the writ of assistance to put the petitioner into possession of his blocks and lots as prayed; and while the bill did not specifically pray for similar relief in respect to the streets in question, such relief was agreeable to the case made by the bill, and could be awarded as within the prayer for general relief. The writ of assistance was simply in effectuation of the decree, and was in accordance with the recognized practice in equity and the ninth equity rule. We are satisfied upon the whole case that the Circuit Court committed no error, and the decree will therefore be
Citations for Plaintiff in Error.
PENFIELD v. CHESAPEAKE, OHIO AND SOUTH WESTERN RAILROAD COMPANY.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.
No. 187. Argued January 30, 1890.- Decided March 17, 1890.
In section 90 of the New York Code of Civil Procedure it is provided that "where a cause of action
accrues against a person who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative after the expiration of the time limited by the laws of his residence for bringing a like action, except by a resident of the State, and in one of the following cases: 2. Where before the expiration of the time so limited, the person, in whose favor it originally accrued, was, or became, a resident of the State, etc.;" Held, following the decisions of the courts of the State of New York in parallel cases, that this statute contemplates that the plaintiff shall be an actual resident in the State, and that he does not become such by sending his family to the State of New York from another State, in which he and they were residing, with the intent that they should reside there, but remaining himself in the other State.
THE case is stated in the opinion.
Mr. Rufus M. Williams, for plaintiff in error, cited, among other cases: Putnam v. Johnson, 10 Mass. 488; Blanchard v. Stearns, 5 Met. 298; Holmes v. Greene, 7 Gray, 299; Crawford v. Wilson, 4 Barb. 504; Fry's Election Case, 71 Penn. St. 302; State v. Hallett, 8 Alabama, 159; Dale v. Irwin, 75 Illinois, 170; Vanderpoel v. O'Hanlon, 53 Iowa, 246; Moorehouse v. Lord, 10 H. L. Cas. 272; Whicker v. Hume, 7 H. L. Cas. 124; Lord v. Colvin, 4 Drew. 366; Mitchell v. United States, 21 Wall. 350; Exeter v. Brighton, 15 Maine, 58; Shaw v. Shaw, 98 Mass. 158; State v. Aldrich, 14 R. I. 171; Shattuck v. Maynard, 3 N. H. 123; Long v. Ryan, 30 Gratt. 718; Cohen v. Daniels, 25 Iowa, 88; Fitzgerald v. Arel, 63 Iowa, 104; Boucicault v. Wood, 2 Bissell, 34; Doyle v. Clark, 1 Flipp. 536; Abington v. North Bridgewater, 23 Pick. 170; Thorndike v. Boston, 1 Met. 242; Collester v. Hailey, 6 Gray, 517; Langdon v. Doud, 6 Allen, 423; S. C. 83 Am. Dec. 641; Hallett v. Bassett, 100 Mass. 167: Kennedy v. Ryal, 67 N. Y.
Opinion of the Court.
379; Reed's Appeal, 71 Penn. St. 378; Tyler v. Murray, 57 Maryland, 418; Talmadge v. Talmadge, 66 Alabama, 199; Campbell v. White, 22 Michigan, 178; Chariton County v. Moberly, 59 Missouri, 238; Desmare v. United States, 93 U. S. 605; White v. Brown, 1 Wall. Jr. C. C. 217; Church v. Rowell, 49 Maine, 367; Gilman v. Gilman, 52 Maine, 165; S. C. 83 Am. Dec. 502; Report of the Judges, 5 Met. 587; McDaniel v. King, 5 Cush. 469; Otis v. Boston, 12 Cush. 44; Briggs v. Rochester, 16 Gray, 337; Wilson v. Terry, 11 Allen, 206; Hindman's Appeal, 85 Penn. St. 466; State v. Grizzard, 89 N. C. 115; Kellogg v. Oshkosh, 14 Wisconsin, 623; Hall v. Hall, 25 Wisconsin, 600; Kellogg v. Supervisors, 42 Wisconsin, 97; Morgan v. Nunes, 54 Mississippi, 308; Shepherd v. Cassiday, 20 Texas, 24; Cross v. Everts, 28 Texas, 523; Dupuy v. Wurtz, 53 N. Y. 556; Harris v. Firth, 4 Cranch C. C. 710; Hayes. v. Hayes, 74 Illinois, 312; Littlefield v. Brooks, 50 Maine, 475; Mills v. Alexander, 21 Texas, 154; Jennison v. Hapgood, 10 Pick. 77; Bassett v. Wheeler, 84 N. Y. 468; Frost v. Brisbin, 19 Wend. 11; S. C. 32 Am. Dec. 423; Boardman v. House, 18 Wend. 512; Burrows v. Miller, 4 How. Pr. (N. Y.) 349; Isham v. Gibbons, 1 Bradf. (N. Y.) 69; Matter of Thompson, 1 Wend. 43.
Mr. B. F. Tracy, (with whom was Mr. W. W. MacFarland on the brief,) for defendant in error, cited: St. Clair v. Cox, 106 U. S. 350; Burnham v. Rangley, 1 Woodb. & Min. 7, 11; Frost v. Brisbin, 19 Wend. 11; S. C. 32 Am. Dec. 423; Matter of Thompson, 1 Wend. 43; Haggart v. Morgan, 5 N. Y. 422; S. C. 55 Am. Dec. 350; Bell v. Pierce, 51 N. Y. 12; Union Hotel Co. v. Hersee, 79 N. Y. 454; Queen v. Vice-Chancellor &c., L. R. 7 Q. B. 471; Attorney General v. McLean, 1 H. & C. 750; Blackwell v. England, 8 Ell. & Bl. 541; Hewer v. Cox, 3 El. & El. 428; Board of Supervisors v. Davenport, 40 Illinois, 197; Storm v. Smith, 43 Mississippi, 497.
MR. JUSTICE HARLAN delivered the opinion of the court.
This action was brought in March, 1884, in the Supreme Court of New York, Kings County, by the plaintiff in error against the Chesapeake, Ohio and Southwestern Railroad