finally located within the prescribed dis-struction of the general law as amended tance of such designated point, although by the act of 1867. Ibid. not actually constructed. Ibid.

50. The offer contained in a subscription to stock to pay certain sums on certain specified contingencies, not being avered in the declaration, in an action to collect the same, as having been accepted, the recovery fails. Demand of payment and suit for recovery is not evidence of such acceptance. Northern Central Michigan R. R. Co. vs. Eslow, 40 Mich., 222. (See also Stowell and another vs. Stowell, decided January term, 1881.)

55. The production of a subscription paper at the trial of an action brought in the name of the company for the use and benefit of a third party, when its actual delivery to or acceptance by the company is not shown, is no evidence of such delivery or acceptance. Parker vs. Northern Central Michigan R. R. Co., 33 Mich., 23.

56. Recovery upon subscriptions to the stock of a corporation de facto cannot be had without proof of the performance of all those acts by such corporation, made 51. An arrangement between the officers by the statute, conditions precedent. of a railroad company and certain of the Swartwout vs. Michigan Air Line R. R. Co., subscribers to its stock, to the effect that | 24 Mich., 389. in the event of the town in which they resided voting a certain amount of municipal aid, it should operate to release them from the payment of a portion of their subscription, is void. Swartwout vs. Mich-specific event, constitutes the person to

igan Air Line R. R. Co., 24 Mich., 389.

52. No levy of assessments could be made under the general railroad law of 1855 until the whole amount of the stock named in the articles of association had been subscribed. Schurtz vs. Schoolcraft & Three Rivers R. R. Co., 9 Mich., 269.

53. For the purposes of an assessment upon subscriptions to the stock of a company, the road must be regarded either as an entirety or the separate division set apart for construction must be considered and proceeded with as a whole, and an action cannot be maintained upon such subscriptions without proof that the necessary subscriptions had been obtained between the termini or within the limits of the division designated. Swartwout vs. Michigan Air Line R. R. Co., 24 Mich., 389.

54. When a railroad company has obtained subscriptions to the amount of $6,000 per mile, assessable for the construction of a designated division of its road of not less than 15 miles, and has duly chosen its officers, it is authorized to proceed to the construction of such division and to collect the subscriptions applicable thereto; and the fact of the Supreme Court having declared any portion of such subscriptions void, cannot affect the con

57. A certificate issued by a corporation in the ordinary form of certificates of stock, but containing a promise to pay interest thereon until the happening of a

whom it is issued a stockholder and a member of the company, and he cannot, by vote of the stockholders, without his individual assent, be compelled to receive the bonds of the company instead of money for the interest on such certificate. McLaughlin vs. Detroit & Milwaukee R'y Co., 8 Mich., 100.

58. A railway corporation having authority to issue such certificates of stock may ratify one issued by their officers without authority; and the adoption of a resolution by a stockholder's meeting for the payment of interest on such a certificate in the company's bonds, is evidence of such ratification. Ibid.

EMINENT DOMAIN.

General Principles.

59. The clause in the ordinance of 1787 that no man shall be deprived of liberty or property but by the judgment of his peers or the law of the land, and that should the public exigency require the taking of any person's property, full compensation should be made therefor, was not designed to restrict legislative or judicial authority, but rather to confine

this power over persons and property to like plank or macadamized roads, are such authority. Swan vs. Williams, 2 Mich., | highways in the meaning of the U. S. 427. statutes, which grant the right of way

60. The Territorial Legislature possess- for highways across the public lands. ed the power to appropriate private prop-Flint & Pere Marquette R'y Co. vs. Gordon, erty for public use, on securing proper 41 Mich., 421. compensation therefor, and could lawfully authorize a railroad company to take such property for such use. Ibid.

63. Property of individuals taken by railroad companies for the construction of 70. Inability to agree with the owner their roads, is in legal contemplation is jurisdictional and may be controverted taken, not for private but for public pur-like any other fact. Chicago & Michigan poses; and the power of the government Lake Shore R. R. Co. vs. Sanford, 23 Mich., to delegate the exercise of eminent domain 418. to effectuate such purposes, is no longer an open question. Swan vs. Williams, 2 Mich., 427.

71. THE PETITION in proceedings for 64. Although railroad corporations re- condemnation of land when the land of ceive compensation for the carriage of persons and property, they are not to be considered as private corporations, the purpose of the government being the use of the roads by the public, and not revenue. Ibid.

66. Railways, although not highways to acquire title to lands used as a street,

80. JURORS to determine the necessity of taking lands for railroad purposes and the damages there for must be freeholders. Peninsular R'y Co. vs. Howard, 20 Mich., 18.

which does not disclose whether the of the law for the drawing of jurors for lands are to be appropriated as the prop- the taking of lands for railroad purposes. erty of respondent or were included for Ibid. the purpose of having an assessment of the damages by reason of ownership of premises fronting on the street, is fatally defective. Mansfield, Coldwater & Lake Michigan R. R. Co. vs. Clark, 23 Mich., 519. 73. VALID NOTICE to the owners, duly 81. Jurors drawn and set aside as disproved, is necessary in order to give qualified are not to be considered as a jurisdiction to the probate court in pro- part of the required twelve, and the ceedings to condemn land for railroad drawing may continue until twelve qualpurposes. Morgan vs. Chicago & North-ified jurors are obtained. Ibid. Converse eastern R. R. Co., 36 Mich., 428. vs. Grand Rapids & Indiana R. R. Co., 18 Mich., 459.

74. Want of publication of notice to owners cannot be insisted upon where all concerned have voluntarily appeared in the case. East Saginaw & St. Clair R. R. Co. vs. Benham, 28 Mich., 459.

82. Jurors in cases under the railroad law are subject to challenge for cause, but not to peremptory challenge, which does not lie in any but criminal cases unless given by statute. Converse vs. Grand Rapids & Indiana R. R. Co., 18 Mich., 459.

75. Notice served only on a person who is in no way connected with the owner of the premises, and who has only gone on 83. A stockholder of a railroad corpothem to receive service by collusion with ration is not competent to sit as a juror those interested in the condemnation, can- to determine the necessity for taking not confer jurisdiction to appoint commis. | land for the use of such corporation and sioners of appraisal in proceedings to the compensation therefor. Peninsular condemn lands. Dunlap vs. Toledo, Ann | R'y Co. vs. Howard, 20 Mich., 18. Arbor & Grand Trunk R. R. Co., June term, 1881.

76. In the taking of private property for public use it is only requisite that the just compensation of the proprietor be ascertained by an impartial tribunal, and it is not objectionable that the proprietor have no voice in constituting such tribunal. Green vs. Michigan Southern R. R. Co., 3 Mich., 496.

77. When a jury possessing particular qualifications is required, the order of the court should direct the summoning of such persons. Mansfield, Coldwater & Lake Michigan R. R. Co. vs. Clark, 23 Mich., 519.

78. The drawing a jury under the law of 1864 to determine as to the taking of lands for railroad purposes, must be in the presence of the court at the time of making the order therefor. Converse vs. Grand Rapids & Indiana R. R. Co., 18 Mich., 459.

79. THE VICINAGE is the county and not the town or neighborhood in the meaning

84. A juror is disqualified if he has given his note in aid of the road, and stipulation cannot remove the disqualification. Michigan Air Line R'y Co. vs. Barnes, 40 Mich., 383.

85. Companies seeking the condemnation of lands for their use must, when it is known to them, raise objections as to the competency of the jurors at their peril, and it is the duty of the juror himself to disclose his incompetency. Peninsular R'y Co. vs. Howard, 20 Mich., 18.

86. The juror's oath is to be construed not by itself, but as a part of the proceedings, and if every thing the statute requires is embraced in substance, if not in form, it is sufficient. East Saginaw & St. Clair R. R. Co. vs. Benham, 28 Mich., 459.

87. THE FINDING OF A JURY of inquest under the general railroad law must be unanimous. Chicago & Michigan Lake Shore R. R. Co. vs. Sanford, 23 Mich., 418.

88. The finding of the jury must set forth the necessity of taking the property for public use; to find "that it was and is

necessary to take and use said land for the purpose of operating and constructing said railroad by said company," is not such a finding of the necessity either in form or substance as is contemplated in our Constitution. Grand Rapids, Newaygo & Lake Shore R. R. Co. vs. Van Driele, 24 Mich., 409; Mansfield Coldwater & Lake Michigan R. R. Co. vs. Clark, 23 Mich., 519.

94. A dismissal of proceedings against a portion of the joint owners for want of service, is a dismissal as to all. Ibid.

95. MORTGAGEES must be made defendants in proceedings for condemnation, and a discontinuance as to them without adjudicating their rights, is fatal. Michigan Air Line R'y Co. vs. Barnes, 40 Mich., 383.

96. DAMAGES for the taking of land for a railroad cannot be increased by the value of work already done on the land by the company. Morgan's Appeal, 39 Mich., 675. 97. Damages assessed on a whole tract of land, the amount being slightly under stated, did not invalidate the action of the commissioners. Ibid.

98. OBJECTION TO THE CONFIRMATION of the report of a jury by a respondent who was present and interposed no challenge when they were impanelled, on the ground that they are not shown affirmatively to be freeholders, is not well taken, in the absence of a showing that some of them were disqualified. Mansfield, Coldwater & Lake Michigan R. R. Co. vs. Clark, 23 Mich.,

89. The finding of the jury or commissioners must set forth distinctly that the taking is necessary for the public use and benefit; and they must be satisfied that the particular land is needed and that the work is one of public importance. Mansfield, Coldwater & Lake Michigan R. R. Co. vs. Clark, 23 Mich., 519; East Saginaw & St. Clair R. R. Co. vs. Benham, 28 Mich., 459. 90. A finding that the taking of the land was required and necessary for the construction and operation of the railroad, and a necessary public use thereof, held sufficient. Morgan's Appeal, 39 Mich., 675. 91. A general finding giving a single sum for taking the land of several owners is invalid; each one has a right to a find-519. ing of the value and necessity of taking his land. Chicago & Michigan Lake Shore R, R. Co. vs. Sanford, 23 Mich., 418. Unless the interest sought to be taken is treated as joint in the petition, and they appear jointly, and jointly demand a jury. East Saginaw & St. Clair R. R. Co. vs. Benham, 28 Mich., 457.

99. APPEAL FROM CONDEMNATION proceedings may be taken by any one whose rights are affected, even though as to him there had been a discontinuance. Michigan Air Line R'y Co. vs. Barnes, 40 Mich., 383.

RIGHT OF WAY.

92. A finding by a jury which discloses 100. Permission to build their road over that they assessed damages which they certain land having been given the comthought the respondent entitled to on ac- pany by the owner's agent, with the uncount of his claiming to own certain land derstanding that the company did not used as a street, without determining thereby acquire rights to the soil, it was whether he did own it, and which does not held that the claim from time to time show whether the award was the esti- made by the agent that the company were mated value of the land or that of a doubt- trespassing did not revoke or change the ful claim they supposed him to be setting permission. Harlow vs. Marquette, Houghup, cannot be sustained. Mansfield, Cold-ton & Ontonagon R. R. Co., 41 Mich., 336. water & Lake Michigan R. R. Co. vs. Clark, 23 Mich., 519.

101. Permission being given by the owner of land to a railroad company to 93. TENANTS IN COMMON, in proceedings build and operate a road over it with the to condemn land for railroad purposes, understanding that the damages therefor cannot be proceeded against separately, should be adjusted thereafter, when the all must be before the court. Grand Rap-company institutes proceedings to fix the ids, Newaygo & Lake Shore R. R. Co. vs. damages, the owner should present all his Alley, 34 Mich., 16, 18. claims for settlement in these proceedings,

cannot well be removed or abandoned. Harlow vs. Marquette, Houghton & Ontonagon R. R. Co., 41 Mich., 336.

and cannot divide his demand and reserve road is of so permanent a nature that it part of it for future litigation. If such proceedings are not resorted to, he has suitable remedy otherwise, for enforcement of his rights. Ibid.

102. A deed of 100 feet in width being being "fifty feet in width on each side of the line which may hereafter be established" for the route of a railroad, over and across certain lands which are specifically described, conveys only a floating right which can be made effectual as a conveyance of title only by the actual location of the route across these lands; and the title would remain in the grantor until such location was made. Detroit, Hillsdale & Indiana R. R. Co. vs. Forbes, 30 Mich., 165.

106. Permission to build a railroad over one's land implies authority to use it afterwards. Ibid.

a

107. Damages to a freehold from railroad in the adjacent highway should be asssessed on the same principle as if no highway had previously existed, and its existence would only tend to diminish the recovery. Grand Rapids & Indiana R. R. Co., vs. Heisel, 38 Mich., 62.

108. Rent cannot be claimed from a railroad company by one who has never consented to their use of his land, and has warned them that they went upon it at their peril and had no right to the soil. Marquette, Houghton & Ontonagon R. R. Co. vs. Harlow, 37 Mich., 554.

109. Adverse rights cannot be asserted while at the same time claiming from the other party the obligations of a tenancy

103. A deed for right of way containing a clause after the description and before the habendum providing as a condition that station buildings should be placed on the land in question, at which trains should regularly stop, is held to be a condition subsequent and not a covenant specifically by contract. Ibid. enforceable against the grantee. Blanchard vs. Detroit, Lansing & Lake Michigan R. R. Co., 31 Mich., 43.

104. A railroad company cannot lawfully occupy a city street without compensating adjacent owners. Where a railroad has been so built without such compensation, the abutting owners owning the soil of the street have an action for injury to their freehold, such as injury to market and rental value and annoyance to business. An abutting owner who does not own the soil in the street cannot recover for injury to his freehold from the presence of a railroad in the street; but only for such damages as arise from misconduct of the company such as to constitute a nuisance. The decrease in value of his estate by the proper operation of the road cannot be an element in the computation of damages. That which is permitted by competent authority is not a nuisance. Grand Rapids & Indiana R. R. Co. vs. Heisel, 38 Mich., 62.

105. The owner of land having allowed the construction of a railroad over it, he is chargeable with knowledge that the

FENCING.

110. Liability to maintain fences attaches under the general railroad law as soon as the company takes possession for the purpose of construction. Continental Improvement Co. vs. Ives, 30 Mich., 448; Gardner vs. Smith, 7 Mich., 410.

111. Liability to maintain fences attaches to a company operating the road of another company under lease or contract, as being the agent of the company owning the road, and failure on the part of the former renders the company owning the road liable to consequent damages. Bay City & East Saginaw R. R. Co. vs. Austin, 21 Mich., 390.

112. A company will be liable for consequences resulting to the property of any person having an interest in the maintenance of the fence, if it be insufficient or out of repair. Continental Improvement Co. vs. Ives, 30 Mich., 448.

113. Streets, alleys, depot grounds, and shipping places are not included in the