preme court of Washington, rendered upon his appeal from the refusal of the trial court to grant his motion, he set forth, substantially, "that the securities under the contract between the bank and Mackintosh were worthless, and that Mackintosh was a stockholder in the bank and president thereof; that, at a meeting of the directors of the bank, the cashier was authorized to deliver to Mackintosh proper vouchers for the securities, acknowledging the bank's indebtedness to Mackintosh for the value thereof, which indebtedness was to be retired by the return of the securities on or before January 1, 1894." "The affidavit," added the supreme court of Washington, "charges collusion between the cashier of the bank and Mackintosh, in that the cashier did not make known the service of summons upon the bank to the receiver, Baker, and sets up that many facts set forth in the complaint of plaintiff were untrue." Denton v. Bank (Wash.) 51 Pac. 473. The supreme court of Washington held that the only grounds upon which the receiver could, at so late a date, make the motion, are found in section 221, 2 Hill's Ann. Code, as follows: "The court may upon affidavit showing good cause therefor, after notice to the adverse party, * upon such terms as may be just, and upon payment of costs, relieve a party, or his legal representatives, from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect." * Construing this section of the statute, the court said: "The mistake, inadvertence, surprise, or excusable neglect mentioned in section 221 of the Code, supra, all relate to facts which were unknown to the moving party prior to the time of the entry of the judgment, or misunderstood by such party. The receiver was charged with knowledge of plaintiff's claim against the insolvent bank, and that plaintiff might sue upon it in the superior court and obtain judgment therein; and whether he knew of the actual pendency of the action would, under all the facts disclosed in this record, be immaterial. A seasonable application to that court, after the entry of judgment, would present an entirely different proposition. While cases may be found where long delays have been excused in the moving party in making an application to vacate a judgment, no case has been called to our attention where the facts are similar to those in the case under consideration. We do not discover any excusable neglect in the receiver in making this application. On the contrary, a fair inference, from all his acts, in relation to the judgment entered, is that he had deliberately determined not to make such an application or to appear in the superior court, and afterwards changed his intention when the motion to vacate was made. We think, from the record presented here, that the order of the superior court denying the application to vacate the judgment was correct, and it is affirmed." By this result the complainant is bound. Embry v. Palmer, 107 U. S. 317, 2 Sup. Ct. 25; Folsom v. Ballard, 16 C. C. A. 593, 70 Fed. 12; Hendrickson v. Bradley, 29 C. C. A. 303, 85 Fed. 508; 1 Black, Judgm. § 362. In respect to the cross bill, it is sufficient to refer to what was held by this court in Denton v. Baker, 24 C. C. A. 476, 79 Fed. 189, that the cross complainant's remedy is at law, and not in equity. It results that the judgment must be reversed, and the cause remanded, with directions to the court below to dismiss both the bill and the cross bill, each party to pay his own costs. NEW YORK GUARANTY & INDEMNITY CO. et al. v. TACOMA RAILWAY & MOTOR CO. et al. (Circuit Court of Appeals, Ninth Circuit. February 20, 1899.) No. 473. 1. TAXATION-VALIDITY OF ASSESSMENT--OWNERSHIP OF PROPERTY. The power house and other buildings of an electric street-railroad company were situated on a tract of land, a part of which was owned by the company, and a part held under a lease for 25 years, which bound the company to pay the taxes thereon. Held, that the company might properly be regarded as the owner of the entire property, for purposes of taxation, and its assessment as an entirety was valid. 2. SAME-IMPROVEMENTS ON REAL ESTATE. Where a street-railroad company may properly be regarded as the owner, for the purposes of taxation, of leased land upon which its power house and plant are in part situated, such buildings are taxable, under the statutes of the state of Washington, as a part of the real estate. 3. SAME-RAILROAD RIGHT OF WAY-ACTUAL USE FOR OTHER PURPOSES. Under the statute of Washington (1 Hill's Ann. Code, § 1046) providing that all lands occupied and claimed exclusively as right of way for railroads must be assessed as a whole, and as real estate, at a certain sum per mile, a part of the designated right of way of a railroad, but which is in the actual use and occupation of a street-railroad company for purposes of its power plant, under a lease for 25 years, cannot properly be taxed as a part of the right of way of the railroad company. Appeal from the Circuit Court of the United States for the Western Division of the District of Washington. This suit was brought on the equity side of the circuit court of the United States for the Western division of the district of Washington to obtain a decree adjudging the invalidity of, and canceling of record, certain taxes levied by the county of Pierce and the city of Tacoma, respectively, upon certain property now owned by the complainant Carr. The property upon which the taxes were levied consists of a power house and power plant used in operating certain street-railway lines in the city of Tacoma, in Pierce county, state of Washington, and a suburban line connecting the town of Steilacoom, in that county, with the city of Tacoma. On March 26, 1897, all of the property mentioned, including the street-railway lines, was sold as an entirety by a master of the court below, in pursuance of a decree entered by that court in a suit brought therein by the New York Guaranty & Indemnity Company, trustee, for the foreclosure of a trust deed of the property made to it for the security of certain bonded indebtedness, at which sale the property was purchased by one Levis, who afterwards conveyed it to the complainant Carr, Of the proceeds of that foreclosure sale, there remained in the registry of the court, when this suit was instituted, an undistributed balance of $13,454.88; and the taxes here in question, standing delinquent against the power house and power plant on the tax records of the county of Pierce and the city of Tacoma, respectively, and it being the duty of the receivers appointed in the foreclosure suit to discharge all valid taxes against the property, and the complainant in that suit being entitled, as trustee, to receive, for distribution to the bondholders, any surplus of the fund in court remaining after the discharge of all the receiver's obligations, this suit was instituted jointly by the trustee, complainant in the former suit, and the present owner of the property under the sale in that suit, to contest the validity of the disputed taxes. an amendment of the bill, certain taxes on lots in the Ridgedale addition to the city of Tacoma, included in the railway property acquired by the complainant Carr, and the validity of which was not disputed by the complainant's bill, was included in the subject-matter of the present suit, to the end that the decree to be entered therein, directing the payment of the fund in court of such taxes as should be adjudged valid, might extend to the taxes on those By lots. No review of the decree of the court below in respect to the taxes on those lots, however, is here sought. The taxes levied upon the trackage of the Steilacoom Line were held by the court below to be invalid, and their cancellation was directed. To this part of the decree no objection was taken in any form. The remaining taxes controverted by the bill were held by the court below to be valid, and it is to reverse that part of the decree that the present appeal is brought. Those taxes were levied on the power house and power plant, together with the site thereof, by the county of Pierce in the years 1891, 1892, 1893, and 1895, and by the city of Tacoma in the years 1892 and 1893. The power house and power plant are situated upon a tract of land in the city of Tacoma, the westerly portion of which (that is to say, the part lying west of the east boundary of Cliff avenue produced) was, during the years of the contested tax levies, owned in fee by the Tacoma Railway & Motor Company, while the easterly portion of the tract (that is to say, all that part lying east of the east boundary of Cliff avenue produced) was during: those years held by the motor company under a lease of date April 18, 1889, from the Northern Pacific Railroad Company for a term of 25 years from May 1, 1889; reserving an annual cash rental, and providing for the payment of the taxes by the lessee during the term of the lease. The motor company's part of the tract was formerly a part of Cliff avenue, a platted street of the city of Tacoma, and prior to the building of the power plant the city of Tacoma, at the instance of the Northern Pacific Railway Company, passed an ordinance, approved May 11, 1889, vacating that part of Cliff avenue now embraced in, and constituting the whole of, the part of the tract owned in fee by the motor company. Another street in the city, known as "A Street," adjoined the vacated portion of Cliff avenue on the west; and under the law of the state of Washington, and the provisions of the vacating ordinance, the title to the whole of the vacated strip passed to the Northern Pacific Company, as owner in fee of the whole land adjoining the vacated strip on the east, and the railroad company shortly afterwards, to wit, May 1, 1890, conveyed it in fee to the motor company. The Northern Pacific Railroad Company's ownership in fee of the leased part of the power-plant site was a matter of public record. That part of the power-plant site owned in fee by the motor company is about two-fifths, and the part leased from the Northern Pacific Company is about three-fifths, of the area of the whole site. The relative value of the two portions of the site is not made to appear. The improvements, which consist of a power house, power plant, and car barn, together with certain machinery, and in about equal portions upon the two parts of the site; and the respective portions of the improvements are alleged in the bill, and found by the master, to be of about equal values. They are also alleged in the bill, and admitted by the answers thereto, and found by the master, to be "one entire and inseparable aggregation of buildings, structures, plant, and machinery, covering the whole of said tract, and neither the use nor the valuation thereof have been, or are, capable of segregation." For the years 1891, 1892, and 1893 the power-plant site was assessed as an entirety by the county of Pierce at $39,330, $27,500, and $27,500, respectively, and “improvements" thereon at $15,000, during each of those years. For the year 1895 the site was assessed by the county at $12,300, no assessment being made for improvements thereon. For each of the years 1892 and 1893 the site, as an entirety, was assessed by the city of Tacoma at $54,080, and improvements thereon at $18,000. The city taxes for the year 1892 having become delinquent, a portion of the property was sold therefor to the defendant Gove, to whom a tax certificate therefor was issued. The other taxes in question still stand delinquent on the rolls. The sixth, eighth, eighteenth, nineteenth, twentieth, and part of the twenty-first findings of the master are as follows: "(6) That portion of said land upon which said power plant stood during said years, east of Cliff avenue, and described on said plat, Exhibit E, by the lines B-E, C-B, C-F, and F-E, was embraced within what was designated by the Northern Pacific Railroad Company, and listed by the county of Pierce, as the right of way of the Northern Pacific Railroad Company; but it was in the actual use and occupation of the Tacoma Railway & Motor Company for the purposes of the power plant." "(8) That during all the years from 1891 to 1896, inclusive, the Northern Pacific Railroad Company and its receivers paid all of the taxes assessed and charged against the right of way of said Northern Pacific Railroad Company in the city of Tacoma." "(18) That the personal property of the Tacoma Railway & Motor Company was assessed during each of said years 1891 to 1896, inclusive, by the assessor of Pierce county, for the purpose of taxation, after having been duly returned to said assessor, and the same was duly equalized by the board of equalization; and said assessment included all of the personal property of said company, and, among other things, the power plant of said company, including buildings and machinery, as an entirety, and the line of street railway between Eleventh street, in the city of Tacoma, and a point in the town of Steilacoom,-being about twelve miles of track, substructures, and superstructures,-known as the 'Steilacoom Line.' That said Tacoma Railway & Motor Company and its receivers have heretofore paid all taxes levied and assessed against it as personal property. (19) That the taxes standing charged on the tax rolls of Pierce county for the years 1893, 1894, 1895, and 1896, on what is termed the "Tacoma & Steilacoom Line,' were entered on the real-estate assessment rolls of said county, and embraced the same property entered upon the personal property assessment rolls of the Tacoma Railway & Motor Company, on which payment was made by said company. That the city of Tacoma in the years 1892 and 1893, added to the real-estate assessment on the property described on page 4 of this report the sum of $18,000 for improvements. That there were no improvements upon said lands that year, or any other year, other than the building, power plant, and machinery, which was an inseparable aggregation of building, machinery, car barn, etc., incapable of separate segregation or valuation; and all said power plant, and everything situate upon said land, was assessed by the city of Tacoma in the years 1892 and 1893, and by the county of Pierce in the years 1891 to 1896, inclusive, as personal property, and the taxes were paid on the same as personal property. (20) That all of the taxes described in the bill and in the evidence as having been charged and levied upon improvements upon the land described in the bill constitute a double assessment, in that said assessment on what is designated therein as on improvements is a duplication of the assessment of personal property returned and assessed for each and all of said years. That the taxes and assessments charged on account of right of way, substructures, and superstructures on the real-estate rolls of Pierce county on what is known as the "Tacoma & Steilacoom Line,' and the taxes levied thereon by the authorities of Pierce county, are a double assessment, in that they are a duplication of the same property assessed and taxed under the head of Track Belonging to the Tacoma Railway & Motor Company,' and upon which payment had heretofore been made by the Tacoma Railway & Motor Company. (21) That during all of the year 1892 there was situate upon the lands above described, on page 4 of this report, a power house, power plant, and car barn belonging to and owned by said Tacoma Railway & Motor Company, which together constituted one entire and inseparable aggregation of buildings, structures, plant, and machinery, covering the whole of said tract, neither the use nor the value of which were or are capable of segregation, and which was so situated partly upon the portion of said land leased from' said Northern Pacific Railroad Company and partly upon the land owned by said Tacoma Railway & Motor Company, as aforesaid, in about equal portions and values, upon said two parts of said tract, respectively. That in the year 1892 the defendant, city of Tacoma, by its authorized officers, undertook to, and did, assess the above-described lands as one tract, to and in the name of the Tacoma Railway & Motor Company, for purposes of municipal taxation of said city for said year, and so assessed the value of said tract at the sum of $51,080, and so assessed the value of the improvements on said tract, apart and separate from the land, at the sum of $18,000, and thereupon entered said assessments upon its assessment roll for purposes of its municipal taxation for the year 1892. That thereafter said city levied and extended on its tax rolls for said year 1892 the sum of $864.96, as taxes of said year charged against said tract, and the improvements thereon for municipal purposes of the city for said year. That the taxes so extended and entered in said tax rolls being unpaid at the date when, by force of the provisions of the charter of said city, the city taxes levied for the year 1892 became delinquent, said sum was entered by the authorized officer of said city as delinquent taxes against said premises for the year 1892; and thereafter said land, together with the power plant, power house, and car barn thereon, was sold by said city of Tacoma, at a tax sale held in said city, pursuant to the provisions of its charter, on February 6, 1893, to the defendant Royal A. Gove for the sum of $999.48, which sum the said Royal A. Gove then and there paid to said city therefor, and thereupon a certificate of such sale was issued and delivered to said defendant Royal A. Gove by the authorized officer of said city, pursuant to the provisions of the charter of said city, and said defendant is now the owner and holder of said certificate." The trial court sustained exceptions filed by the county of Pierce and the city of Tacoma and the defendant Gove, respectively, to that part of paragraph 6 of the master's findings which reads as follows, "And listed by the county of Pierce," and to that part of paragraph 19 which reads as follows, "And all said power plant, and everything situate upon said land so assessed by the city of Tacoma in the years 1892 and 1893, and by the county of Pierce in the years 1891 to 1896, inclusive, as personal property," and to that part of paragraph 20 of the master's findings which reads as follows, "That all of the taxes described in the bill and in the evidence as having been charged and levied upon improvements upon the land described in the bill constitute a double assessment, in that said assessment on what is designated therein as on improvements is a duplication of the assessment of personal property returned and assessed for each and all of said years." All other exceptions to the findings and report of the master were by the court below overruled. Thos. R. Shepard and Benjamin S. Grosscup, for appellants. Before GILBERT, ROSS, and MORROW, Circuit Judges. ROSS, Circuit Judge, after stating the facts as above, delivered the opinion of the court. On the part of the appellant it is contended-First, that the assessment of the land in question was void because embracing two separate tracts of diverse ownership; included in which is the second contention, that its assessment as a single parcel, without specifying the name of the known owner of the leased portion thereof, was void; third, that the assessment of the land was invalid, in so far as that part of it held under lease is concerned, on the ground that such part was embraced in the Northern Pacific Railroad Company's right of way, which was taxable under the laws of the state of Washington, and actually listed, assessed, and taxed at a certain sum per mile and the taxes thereon paid; fourth, that the power plant situated on the power-plant site in question was actually returned by the motor company in its lists of personal property for the years in question as personal property, and was actually so assessed, and the taxes paid, for which reason, it is claimed, the assessment of the same as improvements upon real estate was, pro tanto, a duplication of the personal assessment; and, lastly, that the power plant was properly assessable only as personal property, and its assessment as improvements upon real estate therefore void. 1. The assessments for the years 1891 and 1892 were made under the provisions of the revenue law of the state of Washington approved March 9, 1891, which, so far as the point now under consideration is concerned, are as follows: "Sec. 45. The assessor shall make out in the real property assessment book, in numerical order, complete lists of all lands or lots subject to taxation, |