Note. which has been used only upon the road; and the rolling stock, so essential to the use of the road, utterly worthless for any other or different use. We have already seen the senseless fiction of fastening done away with; and we have but to apply the principles of the cases cited, and we shall come to the result that the rolling stock is in the nature of a fixture; and as such must be conveyed by the mortgage conveying the estate. It has not, indeed, exactly the same connection with the realty that the statue had in Snedeker v. Warring; it is not held or kept in one place by fastenings, or by its weight. But this circumstance is of no consequence if the principle deducible from the cases above cited is to govern. If a billiard table were fastened to the floor so as to be conceded a fixture, would not the balls and cues pass also? A bucket in a well may be detached,.and it is movable, running from top to bottom of the well, yet it is a fixture by common consent. A shuttle in a loom is thrown from place to place by the motive power of the machinery, yet it is an essential part of the machine. It is not inconceivable that rails and cars might be so constructed as that the car should be held upon the rail by certain material contrivances, and yet be propelled from one station to another; from one end of the road to another, by steam power. In such a case none would doubt that the cars were a fixture. Can it be said that the manner of accommodating and adjusting the cars to the rails can make any difference? "The railroad, like a complicated machine, consists of a great number of parts, a combined action of which is essential to produce revenue. And as well might a creditor claim the right to levy on and abstract some essential part from Woodworth's planing machine, or any other combination of machinery, as to take from a railroad its locomotive and passenger cars. Such an obstruction would cause the operations to cease ir. both cases. Then, again, following the principle of Snedeker v. Warring, the destination of the rolling stock, the intention of a company to pass it, will have an influence in determining whether such stock is real or personal property. This consideration would be as conclusive in regard to the furniture of a railroad as it was in regard to the statue, where it was presented: and even more so. The statue might have been sold by the sculptor for the adorning of any residence; though in fact it was made for the particular use. The right to buy and own rolling stock is a franchise, and car. only be exercised as an accessory to the operation of a railroad. Any buying or selling of cars, engines, &c., by the company, for the mere purpose of speculation, would be unauthorized and illegal. Here, then, is a consideration showing that a company intends the rolling stock to be used only for the road, or, in other words, to become a permanent accession to the real estate of the company. The intention of the owner, the use for which the property was designed, the connection between the road and the cars, and the essential relation between them, for the purposes of revenue, all combine to declare the rolling stock real estate. In Pierce v. Emery, the Portsmouth and Concord Railroad Company had * McLean, J. in Coe v. Pennock et als † 32 New Hampshire, 484. Syllabus. mortgaged all their property, real and personal, and all their franchises. The court held that the rolling stock acquired subsequently to the execution of the mortgage belonged to the mortgagee. The court say, "The object of the act being to give the bondholders a substantial and available security for their money, and a preference over other creditors not previously secured, can only be answered by so construing the law authorizing the mortgage as to give the bondholders security upon the road 'tself, as the general subject-matter of the mortgage, and upon the changing nd shifting property of the road as part and parcel, by accession, of the thing mortgaged." In Phillips v. Winslow, in Kentucky, it was held that, in equity, the rolling stock acquired subsequent to the execution of the mortgage, passed as an accession or fixture. In Redfield on Railways, it is said, indeed, that rolling stock is an accessory, though not a fixture. The distinction is, perhaps, one of words. In the strict technical sense of the word, as used in the old cases, rolling stock is not a fixture; but within the reason and philosophy of the modern cases it would seem to be so. If it must not be called a fixture, in deference to the old cases, it is yet an accessory of that sort, which has every element of one; and to be regarded accordingly, however named. The conclusion is, that rolling stock, put and used upon a railroad, passes with a conveyance of the road, even without mention or specific description. THE FOSSAT OR QUICKSILVER MINE CASE. 1. An appeal lies to this court from a decree of the District Court for California, in a proceeding under the act of 14th of June, 1860 (12 Statutes at Large, 33), commonly called the Survey Law. 2. If no appeal from such a decree be taken by the United States, they may appear in this court as appellees, but cannot demand a reversal or change of the decree. 3. If a California land claim has been confirmed by a decree of the District Court under the act of 3d of March, 1851 (9 Statutes at Large, 631), and the decree of confirmation fixing the boundaries of the tract stands unreversed, a survey under it is the execution of that decree, and must conform to it in all respects. 4. The Survey Law of 14th of June, 1860, gives the District Court no power to amend or change the decree of confirmation. 5. When the title-papers designate the beginning-place of a straight line, and fix its course by requiring that it shall pass a known and ascertained point to its termination at a mountain, such line cannot be varied by the fact that a rough draft (a Mexican diseño) on which it is *Page 576, note. Statement of the case. drawn, was not true at all to scale, and that on it the line strikes two ranges of mountains in such a way as to leave certain unnamed elevations on the draft, which, with more or less plausibility, it was conjectured, but only conjectured, were meant to represent certain peaks in nature well known, more to the east or west than by reference to other objects on the draft they in nature hold. ABOUT fifteen miles south from the southern end of the Bay of San Francisco, and separated from it by irregular mountain slopes, lies a vale, called the Canada de los Capitancillos, or Valley of the Little Captains.* The northern limit of this valley is an elevation called the Pueblo Hills; hills picturesque enough; with nothing else, however, as yet, specially to mark them. Descending or turning these, the traveller is in the vale. Along the south edge of the valley runs a ridge of hills, range of mountains, or Sierra; for by each of these terms, as by several others, the elevation might properly or improperly be named. A value different from that of the Pueblo Ridge belongs to these. These are filled with cinnabar of unrivalled purity and richness. Here is the ALMADEN MINE; a mine, that with others near it, the Enriqueta, San Antonio, &c., is estimated at $20,000,000,-the gem of quicksilver mines in the New World, perhaps of the entire earth. This range we call the Mining Range, or Mining Ridge. The opposite map may assist a comprehension.† Immediately south of, or behind this Mining Range, and detached from it, for the most part, by a steep, narrow, * According to Mexican traditions, the valley was occupied in early days by two Indians of very diminutive stature, whose bravery, however, was so noted that each was the chief of his tribe. The name of "Little Captains," came from them. The reader must be particular to note, that both on this map and on the two more rough topographical sketches given in the case, the ordinary rule of position in regard to maps is reversed. The top of the map as the reader looks at it, or in the cases of the diseños at pp. 654, 656, as he turns the book round to read what is on them, is the south; the bottom north;. the right the west, and the left the east. The two rough Mexican diseños were thus originally made; and conforming other maps to them has been found more convenient than to adopt the more usual method. The compass on the sketch at p. 654, shows the thing.. Statement of the case. broken, and irregular depression, gorge, or valley, rises a ridge, range, or Sierra, different, as it was generally regarded, from the other, though by some persons regarded as the main part of the same range. This elevation we designate as the Azul Range, or Azul Ridge.* * The portion between these two ranges, marked on the map "Ridge," must be distinguished both from the Azul and the Mining Ridge or Range. It, as stated directly,, is a low, connecting ridge. Statement of the case. The northern limit of the valley we have said is the Pueblo Hills. The top of these is about 1000 feet above the level of San Francisco Bay, and 400 above the lowest part of the valley immediately south of them. The Mining Ridge at its greatest elevation rises several hundred feet higher than the Pueblo Hills in front of it, across the valley. The Almaden Peak, one peak of this ridge, at its eastern extremity, is 1500 feet above this level; but the elevations of the ridge generally, as they extend towards the west, diminish in height, and are broken by various depressions, which permit easy access from the valley on the north to the foot of the depression or valley at the base of the Azul Range. The Azul Range, behind, rears its head suddenly up, far above the Mining Range before it, to the height of 4000 feet above the level of the sea. The Mining Range extends from east to west, and parallel with the Azul Range. It runs about five miles. On its slopes, as well on that towards the valley on the north, as on that which makes one side of the ravine upon the south, the best and most permanent grazing of the region is to be found. At its widest place it is more than a mile and a half from base to base, measuring directly through; and it slopes off gradually at both ends. It is connected with the Azul Range by a ridge four hundred feet lower than itself, and twenty-four hundred lower than the Azul Range. This is a water-shed, on one side of which are the sources of the Capitancillos and on the other those of the Alamitos. The one stream runs between the two ranges, and turns to the north at the western end of the Mining Range. The other flows eastward, and turning the eastern end of the range as the other had done the western, crosses the valley till its course is arrested by the Pueblo Hills. Here, turning its course to run along their base, it runs westward till it meets the other stream, and forming with it the Guadalupe River, the two discharge their waters through its channel into San Francisco Bay. At the place where the Alamitos strikes the Pueblo Hills, |