To quote further from Blackstone (page 358) is to demonstrate that upon local authorities were devolved the following duties: "They are to call together all inhabitants and occupiers of lands, tenements and hereditaments within the parish, six days in every year to labor in fetching materials, or repairing the highways; all persons keeping draughts (of three horses, etc.), or occupying lands, being obliged to send a team for every draught, etc." There was, as thus seen, from early times laws requiring the use of teams along with the personal services of the one subject to labor. The court in Butler v. Perry, supra, partially traced this feature along with that of the conscription of personal service in early colonial and territorial statutes, noting that the legislative body of the Northwest Territory in 1792 provided for the warning in of inhabitants to work on the highways, every such one to repair to the place appointed "with such utensils and tools as may be ordered him wherewith he is to labor, etc." A like provision is to be found in the early legislation of our mother state, North Carolina. Laws N. C. 1784, c. 14. Shortly after the admission of this state into the Union, it was by Acts 1804, c. 1, § 8, provided that the overseer of roads should notify all owners of slaves to send their male servants from 15 to 50 years of age to work the roads; and, by section 10, to give notice to owners what kind of tools they should "bring and work with" on the roads. It would seem that to impress human chattels was, if not a greater, then not a less, exertion of power than is the impressment of live stock. Generally, and in this state, it is held that the police power may justify a municipality's requiring landowners to construct, at their own expense, sidewalks in front of their lots. Franklin v. Maberry, 6 Humph. (25 Tenn.) 368, 44 Am. Dec. 315, and cases in accord; note 28 L. R. A. (N. S.) 1132. The burden incident thereto is appreciably greater than the one imposed upon the estates of inhabitants of the rural districts by the statute here involved. To the police power, rather than to the power of taxation, is referred the power of a municipality, under legislative grant, to require a lot owner to remove snow from the sidewalk in front of his holding, though it is apparent that to some extent he must use personal property, such as implements, in so doing. The exercise of the power does not conflict with constitutional inhibitions against the taking of private property for public purposes. The leading case is that of Goddard, Petitioner, 16 Pick. (Mass.) 504, 28 Am. Dec. 259; the opinion being delivered by Chief Justice Shaw. It embodies an obiter statement (italicized by us below) which bears upon the instant case; but a dictum from that eminent jurist is of great weight. It is said: of revenue. It imposes a duty upon a large class of persons, the performance of which redirectly operates as a law creating a burden. quires some labor and expense, and therefore inBut we think it is rather to be regarded as a police regulation, requiring a duty to be performed, highly salutary and advantageous to the citizens of a populous and closely built city, and which is imposed upon them because they are so situated as that they can most promptly and conveniently perform it; and it is laid those who are so situated, and equally upon all not upon a few, but upon a numerous class, all who are within the description composing the class. It is said to be unequal because it singles out a particular class of citizens, to wit, the owners and occupiers of real estate, and imposes the duty exclusively upon them. If this were an arbitrary selection of a class of citizens, without reference to their peculiar fitness and have great weight, as, for instance, if the exability to perform the duty, the objection would pense of clearing the streets of snow were imposed upon mechanics or merchants, or any other distinct class of citizens, between whose convenience and accommodation, and the labor to be done, there is no natural relation. But suppose there is a class of citizens who will themselves commonly derive a benefit from the performance of some public duty, we can see no inequality in benefit shall by a general and equal law be rerequiring that all those who will derive such quired to do it. Supposing a by-law should require every inhabitant, who keeps a cart, truck or other team, or a coach or other carriage, to turn out himself, or send a man, with one or more horses, after each heavy fall of snow, to assist in leveling it. Although other citizens would derive a benefit, I can at present perceive no valid objection to a by-law requiring it on the ground of the inequality. In all these cases the answer to the objection of partiality and inequality is that the duty required is a duty upon the person in respect to the property which he holds, occupies and enjoys, under the protection and benefit of the laws; that it operates on each and all in their turns, as they become owners and occupiers of such estates, and it ceases to be required of them when they cease to be such holders and occupiers of the estate, in respect to which the duty is required." * * * As said on the same subject in State v. McMahon, 76 Conn. 97, 106, 55 Atl. 591, 594: zens in serving the state is necessarily a viola"To say that a law defining the duties of citition of the constitutional guaranties against the confiscation of property and partial and arbitrary discriminations, because the service is unpaid, or is one that all citizens are not in a situation to render, is to state a proposition which is radically unsound. Such a theory of selfish immunity from all duties inherent in citizenship is supported by no principle of political ethics, and cannot safely be reduced to practice under any government." The right of the state to enforce such an obligation we hold to be referable to its inherent police power to promote the safety, order, and comfort of society within its borders, as distinguished from the powers of taxation and eminent domain. Chattanooga V. Southern R. Co., 128 Tenn. 399, 161 S. W. 1000, and cases cited. The Supreme Court, in Butler v. Perry, supra, upheld a contention that limitations of the national Constitution there invoked should not be construed to run counter to "It is not speaking strictly, to characterize this city ordinance as a law levying a tax, the ancient usages, unless it be compelled. the federal Constitution, the court said that it introduced no novel doctrine with respect to services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state. It was further held that, while personal services or labor must be considered as property, there was no merit in the contention that labor when so conscripted was property, the taking of which by the state without compensation, for the building or maintenance of public roads, could be denounced under the provisions of the Fourteenth Amendment. This answers the attack made upon the above statutory provision under article 1, section 8, of our Constitution. [2, 3] So, also, we are of opinion that the taking of property, such as wagons and teams, along with the labor of individuals, for such use for five days each year, being one that had been recognized from the dawn period of our law, and through many generations prior to and after the organization of our state, should not be deemed to be a "taking" within the meaning of article 1, section 21, providing that no man's property shall be taken or applied to public use, without just compensation being made therefor. It is not a substantial or serious interference with private personal property materially lessening its value, but it is an impressment of the same for temporary service in an exigency which the Legislature thought sufficient to bring it into requisition, the age-long legislative recognition of which, prior to the adoption of the Constitution, argues against an intent to abrogate on the part of the makers of the fundamental law. II. As to the provision in the statute that owners of teams shall furnish the necessary feed therefor: We are of opinion that a different result must be declared in respect to the attempt to require the owner to furnish feed for his teams while in service on public roads. Personal property equally with realty is subject to be taken under the power of eminent domain for a public use. 15 Cyc. 603. The purpose of the act was not to press the feed into a temporary use, but to work its absolute appropriation. That appropriation must result, the articles being necessarily consumable in the use. Barron v. Memphis, 113 Tenn. 89, 80 S. W. 832, 106 Am. St. Rep. 810. There remains nothing to be returned to the owner. The argument of the Alabama court in the Toone Case is sound when applied to this feature of the statute. The invalidity of this particular provision of the statute does not bring the entire act to naught. [4] III. As to subjection of teams in the county belonging to a citizen and resident of another county: The lands of plaintiff in error to be benefited by the road to be worked were situated in Marshall county and his wagon and team were permanently located there; and the latter were liable to road duty in that county, notwithstanding the fact that Galoway lived in an adjoining county. It appears that the early usage, in this state at least, did not make the impressment of one's property dependent upon his liability to perform personal service. For example, a minister of the gospel was exempt in respect of personal labor, but he was required to send his slaves. We think this indicates the fair construction of the act under examination. Galoway is indicted, not for failure to work in person, nor yet for failure to furnish feed, but for a refusal to furnish his wagon and team. Affirmed. Where one claiming a tract of land to limits der a deed defining boundaries, when another of the boundary shows an actual possession uuinvades it, fells timber, and cuts it into logs, he may replevin the logs left on the ground, and it is unnecessary for him to show title, and a similar showing is also sufficient to defeat replevin against him by the invader for logs cut from the land. Appeal from Chancery Court, Clay County; A. H. Roberts, Chancellor. Appropriation of timber for the construction of bridges, or of gravel or stone for the roadbed, may not be made without compen- Replevin by J. B. Walker against J. K. P. sation, as under the law of eminent domain. Davis, begun in chancery court. A decree Posey Township v. Senour, 42 Ind. App. 580, for defendant was affirmed on appeal to the 86 N. E. 440; State v. Dawson, 3 Hill (S. C.) | Court of Civil Appeals, and complainant ap100. peals. Affirmed. NEIL, C. J. W. R. Officer, of Livingston, and M. C. Sid-, Case, 9 Coke, 55; Earl of Lonsdale v. Nelson, well, of Celina, for Walker. E. C. Knight, 2 B. & C. 311, per Best, J.; Amoskeag Co. v. of Livingston, and Jno. H. McMillin, of Ce- Goodale, 46 N. H. 53, 56; Rhea v. Forsyth, 37 lina, for Davis. Pa. 503, 78 Am. Dec. 441; State v. Parrott, 71 N. C. 311, 17 Am. Rep. 5; Adams v. Barney, 25 Vt. 225; Roberts v. Rose, L. R. 1 Ex. 82; Penruddock's Case, 5 Coke, 101, a and b. In Brown v. Perkins, 12 Gray (Mass.) 89, it was said by Shaw, Chief Justice: is that an individual citizen may abate a private "The true theory of abatement of nuisance nuisance injurious to him when he could also bring an action; and also, when a common nuisance obstructs his individual right, he may rehe cannot be called in question for so doing." move it to enable him to enjoy that right, and Defendant Davis and those under whom he claimed had been in the actual possession of the tract of land on which he was living at the time the present controversy arose, for very many years, under deeds purporting to convey an estate in fee, and claiming to the full extent of the boundaries described therein. Complainant, some years after the defendant had entered upon the land under his deed defining boundaries, and after defendant had thus obtained the actual possession to the limit of the boundaries, secured a deed for another tract, the calls of which at one point, to a depth of 50 or 60 yards, overlapped defendant's possession. Thereafter complainant proceeded to fence the land so covered by his deed with a wire fence, and extended this wire over upon the defendant's possession, in a half-moon shape, to the depth above indicated, so as to take in a part of the land covered by defendant's prior deeds and possession. The complainant then entered upon this half-moon sector and cut valuable timber standing thereon, and sawed it into the customary log lengths, but left the logs lying on the ground. While matters were in this state, the de "This," says Burdick in his Law of Torts, "is not only one of the most ancient forms of self-help, but also one of the most important at the present time." Id., p. 194. As showing the ancient character of the right, the author cites the following passage from Bracton, De Legibus Angliæ, lib. 3, p. 233: to cause a tortious nuisance "But those things which have thus been raised may be immediately and recently whilst the misdeed is flagrant (as in the case of other disseysines) de** if the molished and thrown down complainant is sufficient to do it; but if not he must have recourse to him who protects rights." * of very ancient origin, must be used, as all The right, however, though very clear and of the authorities hold, with great care to avoid the commission of any excess, and all breaches of the peace. The counsel therein given is, that it is best to proceed by court fendant entered upon the sector, and, with out a breach of the peace, tore away the ertheless, the right exists, and in a proper action, rather than by one's own act. Nevwire fencing, removed the logs the complain-case may be exercised. See the following ant had left on the ground, and felled other cases in addition to those cited supra: Hartrees standing on the same sector, sawed them into logs, and removed the logs. Thereupon the complainant brought his replevin suit in the chancery court to recover all of the logs. The chancellor decreed in favor of the defendant, and on appeal the Court of Civil Appeals affirmed the decree. vey v. Dewoody, 18 Ark. 252; Moffett v. Brewer, 1 G. Greene (Iowa) 348; State v. Moffett, 1 G. Greene (Iowa) 247; Gates v. Blincoe, 2 Dana (Ky.) 158, 26 Am. Dec. 440, and note; City of Chillicothe v. Bryan, 103 Mo. App. 409, 77 S. W. 465; Great Falls Co. v. Worster, 15 N. H. 412, 439; Lawrence v. Hough, 35 N. J. Eq. 371; Lyle v. Little, 83 Hun (N. Y.) 532, 33 N. Y. Supp. 8; Harrower v. Ritson, 37 Barb. (N. Y.) 301; Lancaster Turnpike Co. v. Rogers, 2 Pa. 114, 44 Am. Dec. 179. [1, 2] The decree was obviously correct on the following principles: The defendant being in actual posession of land by residence thereon under a deed defining boundaries, and claiming to the limit of the stated bounds, and so in actual possession of the [3] The complainant's act of violence in whole tract lying within the bounds, the com- extending his fence over upon land in the plainant violated that possession when he defendant's possession, and leaving the fence built his wire fence in the manner stated, there, created a private nuisance, and did and so erected a private nuisance on the land not effect a lawful change of the possession. thus occupied by the defendant. A right of So, when defendant had abated the nuisance, action at once accrued to the defendant to in- and had thus removed the obstruction, he was stitute proceedings in forcible entry and de- within his rights when he carried off the logs tainer, or proceedings in court to abate the lying on the ground, and cut down other nuisance. When such is the case, that is, trees on the same land, turned them into when the law gives a right of action for re- logs, and removed these. The complainant, dress under the facts, the party may also by his illegal act in committing the nuisance, help himself by personally abating the nui- acquired no right to the possession of the sance, if he can succeed in effecting this re- timber, and therefore had nothing on which sult without a breach of the peace. 2 Wood to base his action of replevin. On this on Nuisances (3d Ed.) pp. 1282-1286, embrac-ground we think the decree of the Chancellor ing sections 844, 845, 846. See, also, the fol- and of the Court of Civil Appeals should be These two courts based their decrees on the ground that defendant had been in possession of the land on which the timber grew, himself, and those under whom he claimed, for more than 7 years, and for more than 20 years claiming, to the boundaries, under deeds purporting to convey an estate in fee, and so had acquired title; that the timber growing on the land was a part thereof, and so title to it was in defendant; that title implied the right to possession; and that complainant's felling the timber and cutting it into sawlogs could not change the title, or impair the right of possession implied from title, and so the logs were the property of the defendant, and he was entitled to their possession. The complainant's opposing theory was that he had acquired possession of the timber by erecting the fence, that the title to the land was not involved, and that his remedy was in replevin, and relied on Lieberman v. Clark, 114 Tenn. 117, 85 S. W. 258, 69 L. R. A. 732. It was held in the case cited that where one's timber is taken from land of which he has actual possession under color of title, he may obtain redress by the writ of replevin by simply proving his right of possession without raising the question of the title to the land on which the timber was standing when it was felled and taken, though it was conceded that sometimes it may be essential to show title to the land in order to show title to the timber which it produced and a right to the possession thereof. showing title he would have done no harm, but only produced more evidence than was necessary to maintain the case. When Lieberman v. Clark was decided, it was believed that the fundamental principle there announced (supported by the great weight of authority; and on this point, also, see note to the same case as reprinted in 69 L. R. A. 732, sub nom. Wheeler v. Clark) would prove very beneficial towards quieting land litigation in the state, for the reasons fully stated in the opinion, and which need not be repeated here. The result has justified the belief we entertained at the time. We should not deem it necessary to refer in so much detail to Lieberman v. Clark, but for the fact that the learned chancellor, who decided the case now before us for review, seems to have ignored that authority, and the learned Court of Civil Appeals used some expressions in its opinion that seem to indicate a misconception of the meaning of that decision. Recurring now to the facts of the present case: It was sufficient, we repeat, to prove that defendant was in actual possession of the land under a writing defining its boundaries, and was claiming to the limits of the boundary at the time the land was invaded, and the timber felled. Such evidence showed possession, and right of possession, of the timber at that time, and that complainant was in the wrong. It was not necessary that defendant should go further and show title. The chief principle enunciated in Lieberman [4] So, in the case before us, if the defendant, instead of adopting the plan of "self- V. Clark was that an aggressor could not by help" which he did adopt, had brought re-entering on land occupied by another and plevin for the logs that complainant left on taking timber therefrom force the latter, in the ground, he could have succeeded merely order to obtain redress, to expose his title by showing that he was in the actual posses- to the hazards of litigation. The dangers sion of the land at the time the complainant of such an enterprise are pointed out in the invaded it, and felled the timber, and cut case just referred to. it into logs. That would have made a practical parallel of the case of Lieberman v. Clark. It would not have been necessary for him to go further and show title. True, byed, with costs. However, there is no error in the result reached by the chancellor and the Court of Civil Appeals, and those decrees are affirm COPREW v. STATE. (No. 4937.) (Court of Criminal Appeals of Texas. 13, 1918.) March of the matter and indicated a place where they could be but were not found. In a subsequent statement he seems to have told the truth about where the goods were; at least, 1. CRIMINAL LAW 598(6)-CONTINUANCE- they were found where he informed the offiDILIGENCE REQUIRED. Where an indictment was returned in September and process was not asked for a known witness until six days before the trial in November, there was not sufficient diligence to entitle defendant to a continuance. cers they had been secreted. The evidence is uncontroverted that the saloon was burglarized and whisky taken in considerable quantity; that appellant and Corry Tippie were acting together; and that appellant employed 2. CRIMINAL LAW ~597(3)-CONTINUANCE-a chauffeur with a machine to transport the ABSENT WITNESS. Where evidence was that defendant assisted another in a burglary by hauling off and concealing the goods, there was no error in refusing a continuance on the ground that the other, if present, would testify that he committed the burglary. 41(1)-SUFFICIENCY OF EVI 3. BURGLARY DENCE. Evidence held sufficient to support a conviction of burglary. goods from where they were taken, or in front of the saloon from which they were taken, to a certain designated point in the city of Dallas. Tippie and appellant were acting together, and appellant paid the fee for the transportation of the goods, and then a further fee for carrying the goods from the place where they were deposited to his (appellant's) home, amounting to $2. Had Tip Appeal from Criminal District Court, Dal- pie been present and testified that he entered las County; C. A. Pippen, Judge. Henry Coprew was convicted of burglary, and he appeals. Affirmed. John White, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of burglary of a saloon, his punishment being assessed at four years' confinement in the penitentiary. [1, 2] There was a lot of whisky taken at the time, of the brand of Hill & Hill and Blue Ribbon. Appellant moved for a continuance on account of the absence of Corry Tippie. The indictment was returned in September, the case tried in November, and process was asked for five or six days prior to the trial. If Tippie would testify as indicated in the application, it was thoroughly known to appellant from the time of the burglary under the showing made by the application itself as well as by the evidence. The diligence is hardly sufficient, but an important question justifying the court in refusing the continuance is found in the fact that Tippie is alleged in the continuance itself to have entered the burglarized house and committed the theft, and that he would so testify on the trial if present. Whether he would so testify or not would be of no importance to defendant. His absence from Dallas county, as alleged in the application, at the time and under the circumstances would tend to indicate that he was avoiding criminal prosecution. But viewing the action of the court in the light of the evidence in the record from the standpoint of the motion for new trial, we are of opinion the court did not commit error. The facts may be considered, in the main, circumstantial in their nature; yet there is a confession or a statement of appellant as to where the stolen goods could be found, and in pursuance to his statement they were found at the place indicated. He at first denied any knowledge the saloon and stole the whisky, under all the circumstances of this case it would not relieve appellant, because he was acting with him at the time in such manner as to authorize a conviction as principal. We are of opinion therefore that the refusal of the conThis seems tinuance does not show error. to be the main contention. [3] The evidence is unquestionably sufficient to support the conviction, and appellant seems to have had a fair trial so far as this record shows. The judgment will be affirmed. PRUITT V. STATE. (No. 4871.) 1. BANKS AND BANKING 21-DRAWING CHECK WITHOUT FUNDS "SWINDLING." Under Pen. Code 1911, arts. 1421, 1422, defining the offense of "swindling," it is essential to prove that one drawing a check on a bank, not only had no funds in the bank, but also that he had no good reason to believe that the check would be paid. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Swindling.] 2. BANKS AND BANKING 21-DRAWING CHECKS WITHOUT FUNDS-SUFFICIENCY OF EVIDENCE. Evidence held insufficient to warrant conviction of swindling by drawing check with "no good reason to believe that such check will be paid," under Pen. Code 1911, arts. 1421, 1422. 3. BANKS AND BANKING 21-REPRESENTING CHECK TO BE GOOD-INDICTMENT. An indictment under Pen. Code 1911, arts. 1421, 1422, for swindling a corporation by drawing a check, should state the name of the particular person to whom the false representation 4. CRIMINAL LAW 970(7)—MOTIONS IN ARREST OF JUDGMENT - DEFECTS IN INDICT was made. MENT. Failure of indictment under Pen. Code 1911, name of the person to whom the false represenarts. 1421, 1422, for swindling, to state the tation was made, cannot be questioned after For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |