CENTRAL TRUST co. v. WABABH, ST. L. at 1>. RY. 00. .5
taken or damaged for public use without compensation, is applic able
here or not,—I do not think it is necessary for us to determine.
Whether this is simply one of those consequential injuries to which
that section does not apply, or whether it comes within the plain
. scope of the section as a "damage" done to the property which actu-
ally belongs to the Wabash Company, I think, are questions that may
be appropriately relegated to and settled in the tribunals of thestate,
and by those who shall, within a short time, certainly very brief we
hope it may be, become the possessors, owners, and managers of this
Wabash road. It is fair, however, to those parties who may subse-
quently come into control as well as become the owners of this prop- .
erty that security should be furnished to them as against any wrong
which may be done by our directing the receivers to permit the cross-
ings; for if that section of the constitution of your bill of rights does
apply, it is certainly true that after occupation-after the damage is
done-the party injured has a cause of action for the damages; and
so, if it be true that the laying of your tracks on that street, in front
of that depot, is a damage to the property within the scope of that
section, you are responsible after it is done to any action which the
Wabash road may maintain for damages. .
Back of that, however, is another question which I ought to refer
to; and that is, that it is not gracious in the federal court, which has
taken possession of property by its receivers,to make that possession
an obstacle to any proposed public improvement. We should, so far
as lies within our power, extend every facility to every proposed public
improvement, simply aiming to preserve the rights which attach·to
property while it is in our possession, and that is all. , ‘ , 1
It seems to us that it will be fair for us in this case to overrule the
exceptions to the master’s report, pro forma, permit its confirmation,
and direct the receivers to permit the crossing upon entering into the
stipulations suggested in the master’s report. As to the last one,
that the Wabash Company shall have the precedent right of way, I
suppose all that is meant by that is that when two trains approach,
at or near the same time, the Wabash road shall have the preference in
crossing. That, perhaps, might be made a little more definite in the
stipulation, and that stipulation should be signed by the company;
Therefore we conhrm the report of the master, in part, with the fur-
ther stipulation (and to that extent we overrule the master’s report)
that you give a bond, with sufdcient securities, in the sum of $50,000,
to pay all damages which shall hereafter in an appropriate action be
awarded to the receivers, or to the Wabash road, or its successors,
for any damages which the property sustains by reason of your cross-
ing the tracks and laying tracks in the manner proposed.
Mr. Hitchcock. There is only one thing I wish to suggest, and I
think that I may assume to say what I know is the purpose of the
transfer company, that they will not make any objection to the End-
ing of the court, if, as we understand it, we are not to beput in a