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Opinion of the Court.

give them the accommodations furnished by said cars while travelling upon said roads; that unless your orator pays the taxes so illegally imposed upon it your orator believes and fears that the said defendants will, unless restrained therefrom by this court, sell said car so already levied on, and, if it does not bring enough to satisfy said tax, will levy upon and seize, in order to force from your orator said illegal tax, its sleeping cars while they are in actual use and running attached to said express trains; that thereby the travelling public will be discommoded, the carriage of passengers interstate will be prevented, your orator and said railroad companies may become harassed by many suits by passengers for damages for not furnishing them the accommodations they contracted for; the credit and reputation of your orator for furnishing comfortable accommodations, which credit and reputation are of great value to it and have been established by strict attention to business and at great expense and trouble for many years, will be broken up, and the good will of said business greatly impaired, and thereby your orator will suffer great and irreparable injury.”

The bills prayed for injunction and general relief. Answers and replications were filed and some evidence taken, but nothing appears in the pleadings or proofs bearing upon the question of the standing of complainant in a court of equity, except as indicated by the averments of the bills above quoted. Upon hearing, the relief sought was decreed and the taxes in question perpetually enjoined.

We have already decided in Shelton v. Platt, ante, 591, that purely injunction bills cannot be sustained to restrain the collection of taxes upon the sole ground of their unconstitutionality. The jurisdictional averments are more comprehensive in these causes than in that, but we are of opinion that they did not make out a case for equity interposition, for the reasons there given, and in view of the act of Tennessee of 1873, entitled “ An act to facilitate the collection of revenues," approved March 21, 1873. Laws Tenn. 1873, c. 44, p. 71.

So far as appeared, complainant could avert all the consequences which it deprecated as likely to ensue if the state

Opinion of the Court.

officials were not restrained, by complying with the terms of that statute and availing itself of the remedy thereby afforded. Pickard v. Pullman Southern Car Co., 117 U. S. 34.

There is, however, this marked distinction between Shelton v. Platt and these cases. In Shelton v. Platt the objection to the jurisdiction was asserted by motion, by plea and by the answer. Here that objection is urged apparently for the first time in this court, but inasmuch as the entire record fails to show complainant entitled to an injunction within the rule announced, the decrees must nevertheless be reversed. It is true that there was a prayer for general relief, but relief given under the general prayer must be agreeable to the case made by the bill, and in this instance the complainant sought a preventive remedy only.

Ordinarily, where it is competent for the court to grant the relief sought, and it has jurisdiction of the subject matter, the objection of the adequacy of the remedy at law should be taken at the earliest opportunity and before the defendant enters upon a full defence. Reynes v. Dumont, 130 U. S. 354; Kilbourn v. Sunderland, 130 U. S. 505; Brown v. Lake Superior Iron Co., 134 U. S. 530. But in Lewis v. Cocks, 23 Wall. 466, it was held that if the court, in looking at the proofs, found none of the matters which would make a proper case for equity, it would be the duty of the court to recognize the fact and give it effect, though not raised by the pleadings nor suggested by counsel. Parker v. Winnipiseogee Woollen Co., 2 Black, 545; Oelrichs v. Spain, 15 Wall. 211; N. Y. Guaranty Co. v. Memphis Water Co., 107 U. S. 205. The decrees are reversed, and the causes remanded for further proceedings in conformity with this opinion.

MR. JUSTICE HARLAN and MR. JUSTICE Brown dissented.

Statement of the Case.

BYBEE v. OREGON AND CALIFORNIA RAILROAD

COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF OREGON.

No. 276. Argued March 31, 1891. – Decided April 20, 1891.

The grant of "lands to aid in the construction of a railroad and telegraph

line from the Central Pacific Railroad, in California, to Portland in Oregon,” made by the act of July 25, 1866, 14 Stat. 239, c. 242, was a grant in præsenti ; and the provision in section 8 of that act that in case the companies should fail to complete the road on or before July 1, 1875, this, act shall be null and void, and all the lands not conveyed by patent to said company or companies, as the case may be, at the date of any such failure, shall revert to the United States, is a condition subsequent, of

which only the United States can take advantage. Under the act of July 26, 1866, 14 Stat. 251, c. 262, “ granting the right of

way to ditch and canal owners over the public lands,” no right could be acquired to any portion of the public lands until the actual taking posses

sion of the same for the purpose of constructing a ditch. A conveyance by deed of a perpetual right in land, for a solid consideration

therein expressed, without any covenant for the payment of rent or the redelivery of possession, creates the relation of grantor and grantee be

tween the parties. The grantee in a deed of conveyance is not estopped to deny the title of his

grantor. The plaintiff in error, under the act of July 26, 1866, 14 Stat. 251, c. 262,

constructed a ditch over lands granted to the defendant in error for a railroad under the act of July 25, 1866, 14 Stat. 239, c. 242. The defendant in error, under a misapprehension of its legal rights, received a deed from the plaintiff in error, conveying a license to enter upon said ditch and construct its road over the same, for the consideration of $250 paid by defendant in error to plaintiff in error, and upon condition against impairing or destroying said ditch. The plaintiff in error sued the defendant in error for so constructing its road as to permanently obstruct and destroy his ditch. Held, that the defendant in error by accepting the deed, was not estopped from denying the title of the plaintiff in error, or from asserting the invalidity of the covenant into which it had inadvertently entered.

This was an action originally begun in the state court for Jackson County, Oregon, and removed to the Circuit Court of the United States upon the petition of the defendant, upon the

Statement of the Case.

ground that the case involved the validity of conflicting grants of land from the United States. The plaintiff sued to recover for damages to a water ditch and water right, occasioned by the construction of the defendant's road. His complaint alleged, in substance, that on the third of September, 1883, he was the owner of an undivided half of a certain water ditch and water right on the south side of Rogue River, in Jackson County, and in lawful possession of the same, as tenant in common with one Daniel Fisher; that upon this day the plaintiff and Fisher, for the consideration of $250 paid to them, executed a deed to defendant of a right to construct and operate its railroad and telegraph line across the said water ditch, but upon condition that it should not in any way destroy or injure the same, or obstruct their use and enjoyment of it as a means of conveying water through the same; and that the defendant accepted the deed, received possession of the water ditch and constructed its railroad and telegraph line across the same, but in such a manner as to permanently obstruct and destroy it, and render it impossible to use it for the conveyance of water, and refused to make any compensation to the plaintiff for his interest therein.

The answer of the defendant, in substance, denied the ownership of plaintiff and Fisher in any portion of the water ditch or water right alleged to have been destroyed by the defendant, and denied their lawful possession thereof. It further denied that the deed set forth in the complaint contained any condition whatever, or that defendant ever assented to any condition connected with such deed, or received possession of the ditch under this deed; and alleged as a separate defence to the complaint that it was incorporated to construct and operate a railroad and telegraph line from Portland, in Oregon, and running thence southerly through the Willamette, Umpqua and Rogue River valleys to the California line on the southern boundary of Oregon. That by section three of an act of Congress, approved July 25, 1866, 14 Stat. 239, c. 242, there was granted to it a right of way through the public lands of the United States, to the extent of one hundred feet in width on each side of the said railroad where it might pass Statement of the Case.

through such lands. That the lands through and over which the portion of the said water ditch, alleged to have been injured by defendant, was constructed and is situated, were at the date of said act public lands of the United States, over and upon which the defendant had the right, by virtue of the grant made in that act, to locate its right of way and construct its railroad and telegraph line. That in locating said right of way and constructing said road it became necessary for the defendant to appropriate to its use one hundred feet in width on each side of its road, through and over which said lands a portion of said water ditch alleged to have been injured by defendant was located and constructed, and that the defendant did accordingly locate its right of way over the ground through which the water ditch was dug, and constructed its road over such right of way, and that any injury which may have been done to said ditch was done in the course of such construction.

The answer further alleged that on May 17, 1879, the said Daniel Fisher attempted to appropriate to his own use, under the mining laws of the United States, a portion of said right of way, and constructed thereon the said ditch; that the only claim of right ever made by Fisher to locate and dig that portion of such ditch was obtained by virtue of his pretended compliance with certain provisions of the mining laws; that he had no other interest or ownership in such land than the right so acquired, and plaintiff's only interest therein was acquired under and through said Fisher; and that defendant took nothing by the deed mentioned in the complaint, as it then owned, by virtue of the said grant of the United States, all the rights and property pretended to be conveyed by said deed, and never received any consideration whatever for the sum alleged to have been paid by it for such pretended conveyance.

To this separate defence in the answer the plaintiff demurred, upon the ground (1) that it did not state facts sufficient to constitute a defence. (2) That the facts stated in the complaint estopped the defendant from setting up the right of way mentioned in such defence, or any benefit under the Congressional

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