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edge of the act of bankruptcy when the judgment was signed. The judgment was signed before the petition for adjudication was filed, which under our statute is the commencement of the bankruptcy proceedings. The reference seems to have been regarded as equivalent to a common-law arbitration, The referee is called the arbitrator, and his report an award. By the agreement for reference the arbitrator had power to direct a verdict for either party, with costs of suit and costs of reference. The course pursued resembles closely the course under our statute, where a suit, pending at the commencement of bankruptcy proceedings, to recover a claim specified in the sections before cited, the damages being unliquidated, may be prosecuted so far as to ascertain by a trial the amount of the debtor's indebtedness, to enable the creditor to prove his claim against the bankrupt's estate.

Whether the amount of the verdict is a provable debt against the bankrupt was for a long time a disputed question in England and the English, decisions on this point are in conflict with each other. In Ex parte Hill, 11 Ves. 646, the cases are discussed, and Lord Eldon expressed strong doubt of the soundness of those cases which held that a verdict in an action for damages for a tort was a provable debt in bankruptcy. Ex parte Charles, 16 Ves. 256 (14 East, 198), was a petition to set aside a commission of bankruptcy which had issued upon a creditor's petition, whose debt consisted of a verdict for damages in an action of breach of promise of marriage rendered before the act of bankruptcy, and upon which judgment was entered before the allowance of the commission. The judges of the king's bench "unanimously certified their opinion that the debt of the petitioning creditor was not sufficient in law to support the commission. Since then (1811) the law has been settled accordingly in England." McKenna, J., in Black v. McClelland, supra.

Our conclusion is, that both upon principal and authority the report and assessment of damages by a referee appointed under the statute of 1876, and made during the pendency of bankruptcy proceedings in an action for a tort, do not constitute a debt which may be proved against the defendant's estate in bankruptcy. It is objected that the order made at the March term, 1878, dismissing the action as to Calvin F. Cate was a final disposition of the action as to him which cannot be revoked. Whether the order of dismissal was so far final as to become a judgment, or was in the nature of a final judgment, the court had power to vacate it upon notice and a hearing, and to reinstate the action upou the docket. Aldrich v. Wright, 57 N. H. 104; Adams v. Adams, 51 id. 388; Russell v. Dyer, 39 id. 528; Johnson v. Railroad, 43 id. 410; Judge of Probate v. Webster, 46 id. 518; McIntire v. Carr, 59 id. 207; Moore v. Carpenter, 63 id. 65: Clough v. Moore, id. 111. Whether proper cause was shown for the course pursued was a question of fact to be determined at the trial term. The plaintiff is entitled to judgment on the report.

Case discharged.

Carpenter and Bingham, JJ., did not sit; the others concurred.

UNITED STATES SUPREME COURT ABSTRACT.*

COURT OF CLAIMS-JURISDICTION-CLAIM GROWING OUT OF A TREATY.-A claim growing out of and dependent on a treaty stipulation entered into with a foreign government is not cognizable in a Court of Claims. This case is in all respects like the case of the *Appearing in 5 Sup. Ct. Rep.

Great Western Ins. Co. v. U. S., 112 U. S. 193, which holds that the Court of Claims had no jurisdiction by reason of that section. That was a case of a claim submitted to the United States for reclamation against Great Britain. A treaty between the two powers provided, as in the present case, for an arbitration, under which the claim was allowed and paid to the United States. On appeal from the Court of Claims we decided that it was, within the meaning of section 1066 of this Revision, "a claim growing out of and dependent on a treaty stipulation entered into with a foreign government," of which that court could not entertain jurisdiction. The present case is stronger than that, because the act of Congress of June 18, 1878 (20 Stat. 144), confers on the secretary of State the authority to distribute these awards among the several claimants. Frelinghuysen v. Key, 110 U. S. 63. Not only is the Court of Claims forbidden to entertain jurisdiction of this claim, but the secretary of State is by law authorized and directed to do all that can be done for claimants, without further legislation. Alling v. United States. Opinion by Miller, J.

[Decided May 4, 1885.]

CHESAPEAKE AND OHIO CANAL COMPANY-STAT. MD. 1834, CH. 241; 1835, CH. 395; 1838, CH. 396; AND 1844, CH. 281-LEVY BY CREDITOR-RIGHTS OF STATE OF MARYLAND.-Under the statutes of Maryland of 1834, ch. 241; 1835, ch. 395; 1838, ch. 396; and 1844, ch. 281, and the instruments executed pursuant to those statutes, the tolls and revenues of the Chesapeake & Ohio Canal Company are mortgaged to the State of Maryland to secure the repayment of money lent by the State to the company, and the payment of dividends and interest on the stock subscribed for by the State; subject, in the first place, to the appropriation of so much of the tolls and revenues as is necessary to keep the canal in repair, to provide the necessary supply of water, and to pay the salaries of officers and annual expenses; and in the second place, to a mortgage to trustees to secure the payment of certain bonds of the company. And at the suit in equity of the State and of such trustees, even before the State has taken possession under its mortgages, a general creditor of the company, who at the time of contracting his debt had notice of the provisions of the statutes and of the mortgages, will be restrained from levying on money deposited by the company in a bank, and needed to meet such necessary expenses. An ordinary mortga gee of real estate, who has not taken possession under his mortgage, is not entitled to the rents and profits as against the mortgagor or his attaching creditors; and the same rule holds good in the case of a mortgage by a railroad, canal or bridge corporation of its tolls and revenues, which provides a mode in which the mortgagee shall take possession, and until that mode is availed of,leaves the tolls and revenues in the control of the mortgagor, to be disposed of as he sees fit. Galveston R. v. Cowdrey, 11 Wall. 459; Gilman v. Illinois & M. Tel. Co., 91 U. S. 603; American Bridge Co. v. Heidelbach, 94 id. 798. But by the statutes of the State of Maryland relating to the Chesapeake & Ohio Canal Company, and the mortgages executed pursuant to those statutes, the application of the tolls and revenues of the canal was not left to the disposal of the corporation. The State of Maryland, regarding the construction and maintenance of the canal as an object of great importance and benefit to the public, had lent to the canal company large sums of money, and subscribed for a majority of its stock, and to secure its loans and investments had taken from the company mortgages upon the canal and all its tolls and revenues. The debt of the judgment creditor in this case was a general debt of the company, and not a bond secured

by the trust mortgage, nor a debt contracted for repairs or salaries, or other current expenses. It is alleged in the bills and admitted by the demurrers, that the creditor, at the time of contracting his debt, had notice of all the charges, liens and duties affecting the tolls and revenues, and especially of the provision by which they were appropriated, in the first instance, to the payment of necessary expenses. And the money of the corporation, which he seeks to apply to the payment of his debt, is needed for those expenses. It follows that the judgment creditor has no equity, and that the State of Maryland, and the trustees for bondholders, whose security will be affected by the diversion of this money from its lawful object, are entitled to injunctions. This conclusion accords with the adjudication of the Court of Appeals of Maryland in Brady v. State, 26 Md. 290, and with the opinions expressed by that court in earlier and later cases. Boyd v. Chesapeake & Ohio Canal Co., 17 Md. 195; Virginia v. Same, 32 id. 501. Brown v. State of Maryland. Opinion by Gray, J. [Decided May 4, 1885.]

CONSTITUTIONAL LAW DRAINAGE ACTS — FOURTEENTH AMENDMENT.- General laws authorizing the drainage of tracts of swamp and low lands, by commissioners appointed upon proceedings instituted by some of the owners of the lands, and the assessment of the whole expense of the work upon all the lands within the tract in question, have long existed in the State of New Jersey, and have been sustained and acted on by her courts, under the Constitution of 1776, as well as under that of 1844. Stat. Dec. 23, 1783; Wilson's Laws, 382; Nov. 29, 1788, and Nov. 24, 1792; Patterson's Laws, 84, 119; Jones v. Lore, 3 N. J. Law, 1048; Doremus v. Smith, 4 id. 142; Westcott v. Garrison, 6 id. 132; State v. Frank & Guisbert Creek Co., 14 id. 301; State v. Newark, 27 id. 185, 194; Berdan v. Riser Drainage Co., cited 18 N. J. Eq. 69; Coster v. Tidewater Co., id. 54, 68, 518, 531; State v. Blake, 35 N. J. Law, 208, and 36 id. 442; Hoagland v. Wurts, 41 id. 175, 179. In State v. Newark, 27 id. 185, 194, the Supreme Court said: "Laws for the drainage and embanking of low grounds, and to provide for the expense, for the mere benefit of the proprietors, without reference to the public good, are to be classed not under the taxing but the police power of the government." In Coster v. Tide-water Co., 18 N. J. Eq. 54, 518, the same view was strongly asserted in the Court of Chancery and in the Court of Errors. The point there decided was that a statute providing for the drainage of a large tract of land overflowed by tide-water, by a corporation chartered for the purpose, none of the members of which owned any lands within the tract, if it could be maintained as an exercise of the right of eminent domain for public use, yet could not authorize an assessment on the owners of such lands for any thing beyond the benefits conferred upon them. But the case was clearly and sharply distinguished from the case of the drainage of lands for the exclusive benefit of the owners upon proceedings instituted by some of them. Chancellor Zabriskie said: "But there is another branch of the legislative power that may be appealed to, as authorizing the taking of the lands required for the works to drain these meadows. It is the "power of the government to prescribe public regulations for the better and more economical management of property of persons whose property adjoins, or which, from some other reason, can be better managed and improved by some joint operation, such as the power of regulating the building of party-walls; making and maintaining partition fences and ditches; constructing ditches and sewers for the draining of uplands or marshes, which can more advantageously be drained by a common sewer or ditch. This is a

well-known legislative power, recognized and treated of by all jurisconsults and writers upon law through the civilized world; a branch of legislative power exercised by this State before and since the Revolution, and before and since the adoption of the present Constitution, and repeatedly recognized by our courts. The Legislature has power to regulate these subjects, either by general law, or by particular laws for certain localities, or particular and defined tracts of land. When the Constitution vested the legislative power in the Senate and General Assembly, it conferred the power to make these public regulations as a well-understood part of that legislative power." The principle of them all is, to make an improvement common to all concerned, at the common expense of all. And to effect this object, the acts provide that the works to effect the drainage may be located on any part of the lands drained, paying the owner of the land thus occupied compensation for the damage by such use. So far, private property is taken by them; further it is not. In none of them is the owner divested of his fee, and in most there is no corporation in which it could be vested, and for all other purposes the title of the land remained in the owner. To effect such common drainage, power was, in some cases, given to coutinue these drains through adjacent lands not drained, upou compensation. All this was an ancient and well-known exercise of legislative power and may well be considered as included in the grant of legislative power in the Constitution." 18 N. J. Eq. 68-71. Chief Justice Beasley, in delivering the judgment of the Court of Errors, enforced the same distinction, saying: "This case, with regard to the grounds on which it rests, is to be distinguished from that class of proceedings by which meadows and other lauds are drained on the application of the land-owners themselves. In the present instance, the State is the sole actor, and public necessity or convenience is the only justification of her intervention. But the regulations established by the legislative power, whereby the owners of meadow lands are compelled to submit to an equal burden of the expense incurred in their improvement, are rules of police of the same character as provisions concerning party-walls and partition fences. To these cases therefore the principle upon which the decision of the present case rests is not to be extended." 18 N. J. Eq. 531. These full and explicit statements have been since treated by the courts of New Jersey as finally establishing the constitutionality of such statutes. In State v. Blake, 35 N. J. Law, 208, and 36 id. 442, a statute authorizing a tract of swamps and marsh lands to be drained by commissioners elected by the owners of the lands and the entire expense assessed upon all the owners, was held to be constitutional, although no appeal was given from the assessment. In the Supreme Court it was said: "This branch of legislative power which regulates the construction of ditches and secures the drainage of meadows and marshy lands has been exercised so long, and is so fully recognized, that it is now too late to call it in question. It is clearly affirmed in the Tide-water Co. v. Coster, and cannot be opened to discussion." 35 N. J. Law, 211. And the Court of Errors, in a unanimous judgment, approved this statement of the Supreme Court, as well as that of Chief Justice Beasley, in Coster v. Tide-water Co., above quoted. 35 N. J. Law, 447, 448. The constitutionality of the statute of 1871, under which the proceedings in the case at bar were had, was upheld by the Supreme Court and Court of Errors upon the ground of the previous decisions. In re Lower Chatham Drainage, 35 N. J. Law, 497, 501; In re Pequest River Drainage, 39 id. 433, 434; 41 id. 175, 179; 42 id. 553, 554, and 43 id. 456. The further suggestion made by the Supreme Court in 35 id. 501, 506, and 39 id. 434, that this statute could be main

tained as a taking of private property for a public use, was disapproved by the Court of Errors in 41 id. 178. In Kean v. Driggs Drainage Co., 45 id. 91, cited for the plaintiffs in error, the statute that was held unconstitutional created a private corporation with power to drain lands without the consent or application of any of the owners; and the Supreme Court observed that in the opinions of the Court of Errors in the present case and in Coster v. Tide-water Co., the distinction was clearly drawn between meadow drainage for the exclusive benefit of the owners, to be done at their sole expense, and drainage undertaken by the public primarily as a matter of public concern, in which case the assessment upon land-owners must be limited to benefits imparted. 45 N. J. Law, 94. This review of the cases clearly shows that general laws for the drainage of large tracts of swamps and low lands, upon proceedings instituted by some of the proprietors of the lands to compel all to contribute to the expense of their drainage, have been maintained by the courts of New Jersey (without reference to the power of taking private property for the public use under the right of eminent domain, or to the power of suppressing a nuisance dangerous to the public health) as a just and constitutional exercise of the power of the Legislature to establish regulations by which adjoining lands, held by various owners in severalty, and in the improvement of which all have a common interest, but which, by reason of the peculiar natural condition of the whole tract, cannot be improved or enjoyed by any of them without the concurrence of all, may be reclaimed and made useful to all at their joint expense. The case comes within the principle upon which this court upheld the validity of general mill acts in Head v. Amoskeag Manuf. Co., 113 U. S. 9. It is also well settled by the decisions of the courts of New Jersey that such proceedings are not within the provision of the Constitution of that State securing the right of trial by jury Const. N. J. 1776, art. 22; Const. 1844, art. 1, §7; Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694, 721-725; In re Lower Chatham Drainage, 35 N. J. Law, 497: Howe v. Plainfield, 37 id. 145. The statute of 1871 is applicable to any tract of land within the State which is subject to overflow from freshets, or which is usually in low, marshy, boggy or wet condition. It is only upon the application of at least five owners of separate lots of land included in the tract that a plan of drainage can be adopted. All persons interested have opportunity, by public notice, to object to the appointment of commissioners to execute that plan, and no commissioner can be appointed against the remonstrance of the owners of the greater part of the lands. All persons interested have also opportunity by public notice to be heard before the court on the commissioner's report of the expense of the work, and of the lands which, in their judgment, ought to contribute, as well as before the commissioners; and on any error in law or in the principles of assessment, before the court, upon the amount of the assessment. As the statute is applicable to all lands of the same kind, and as no person can be assessed under it for the expense of drainage without notice and opportunity to be heard, the plaintiffs in error have neither been denied the equal protection of the laws, nor been deprived of their property without due process of law, within the meaning of the fourteenth amendment of the Constitution of the United States. Barbier v. Connolly, 113 U. S. 27, 31; Walker v. Sauvinet, 92 id. 90; Davidson v. New Orleans, 96 id. 97; Hagar v. Reclamation District, 111 id. 701. Wurts v. Hoagland. Opinion by Gray, J.

[Decided May 4, 1885.]

RAILROAD BONDS-CONSOLIDATED CORPORATIONS.Four railroad corporations, whose roads formed a con

necting line in Ohio, Indiana and Illinois, were consolidated, according to the statutes of those States, under an agreement in which the capital on the basis of which each entered into the consolidation was described as composed of the amount of its stock and of its mortgage bonds, and other bonds, and it was agreed that all those bonds should, "as to the principal and interest thereof, as the same shall respectively fall due, be protected by the consolidated company, according to the true effect and meaning of the bonds." Two years afterward, the consolidated company to secure its own bonds, payable at a later date than the old ones, executed a mortgage of all its property to trustees, which recited that it had been deemed for the interest of the corporation, as well as for the interest of all the various classes of existing bonds (which were specifically described) that the whole of them should be consolidated into one mortgage debt upon equitable principles; and provided that a sufficient amount of the new bonds should be retained "to retire, in such manner and upon such terms as the directors may from time to time prescribe," an equal amount of the old bonds. Six years later the consolidated company made another mortgage to secure other bonds, for nonpayment of which it was afterward foreclosed by sale of the whole property. Held, that the property was not subject to any lien in favor of bonds of one of the old companies, issued after the passage of the statutes authorizing the consolidation, unsecured by any mortgage or lien before the consolidation, and the holders of which had not exchanged or offered to exchange them for bonds of the consolidated company before the proceedings for foreclosure. The property of a corporation is doubtless a trust fund for the payment of its debts, in the sense that when the corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation, as in that of a natural person, that any conveyance of the property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them. Story Eq. Jur., § 1252; Curran v. Arkansas, 15 How. 304; Graham v. Railroad Co., 102 U. S. 148, 161; Railroad Co. v. Howard, 7 Wall. 392; Goodin v. Cincinnati &Whitewater Caual Co., 18 Ohio St. 169. But upon the consolidation, under express authority of statute, of two or more solvent corporations, the business of the old corporations is not wound up, nor their property sequestrated or distributed, but the very object of the consolidation, and of the statutes which permit it, is to continue the business of the old corporations. Whether the old corporations are dissolved into the new corporation, or are continued in existence under a new name and with new powers, and whether, in either case, the consolidated company takes the property of each of the old corporations charged with a lien for the payment of the debts of that corporation, depend upon the terms of the agreement of consolidation, and of the statutes under whose authority that consolidation is effected. In the present case, before the consolidation, no lien of any kind existed in favor of the equipment bonds; and the consolidation was made under and pursuant to the statutes of Ohio, Indiana and Illinois, passed before the issue of those bouds, and to which the contract of the bondholders was therefore subject. The effect of the Ohio consolidation act was to merge the old corporations into the new one, which took their place, succeeded to their property and assumed their liabilities. Shields v. Ohio, 95 U. S. 319; Railroad Co. v. Georgia, 98 id. 359. The liability imposed by that statute upon the new corporation for the debts of the old ones is the same as theirs, neither greater nor less. The provision of sec

tion 5, that "all rights of creditors, and all liens upon
the property of either of said corporations, shall be pre-
served unimpaired," clearly distinguishes debts se-
cured by lien from debts not so secured, and indicates
no intention to create a new lien in favor of creditors
who before had none, but simply preserves to each
class of creditors the rights belonging to it before the
consolidation. The further provisions of this section,
that "the respective corporations may be deemed to
be in existence to preserve the same," and that all
debts of either of the old companies shall henceforth
attach to the new corporation, and be enforced against
it to the same extent as if it had contracted them, lead
to the same conclusion. The statute of Indiana is less
specific in its provisions, but expressly authorizes
railroad companies within the State to consolidate
with railroad companies in an adjoining State, "in
accordance with the laws of the adjoining State;"
and, as is well settled by decisions of the Supreme
Court of Indiana, does not give to unsecured creditors
of the old companies any lien or precedence as against
a subsequent mortgage of the consolidated property.
McMahan v. Morrison, 16 Ind. 172; Indianapolis, C. &
L. R. Co. v. Jones, 29 id. 465; Paine v. Lake Erie &
L. R. Co., 31 id. 283, 349; Jeffersonville, M. & I. R.
Co. v. Hendricks, 41 id. 48. Wabash, etc., R. Co. v.
Ham. Opinion by Gray, J.
[Decided May 4, 1885.]

[blocks in formation]

Household Fire Ins. Co. v. Grant, L. R., 4 Exch. Div. 216; Taylor v. Merchants' Fire Ins. Co., 9 How. 390; Mactier v. Frith, 6 Wend. 103; Hallock v. Ius. Co., 2 Dutch. 268; Minnesota Oil Co. v. Collier Lead Co., 4 Dill. 431; Abbott v. Shepard, 48 N. H. 14; Trevor v. Wood, 36 N. Y. 307; Pomeroy Cont. 95, and cases there cited. Although there be contrary authority that a contract made by mutual letters is not complete until the letter accepting the offer has been received by the person making the offer (see Lewis v. Browning, 130 Mass. 175), we regard the weight of authority to be in favor of the rule as first above stated. A distinction has been taken, that though in general such a contract takes effect from the time of acceptance, and not from the subsequent notification of it, yet the offerer may not be bound by the fact that the letter of acceptance had been put in the post-office, if the letter never reached its destination. The preponderance of authority does not appear to sustain this distinction, but to hold that the mailing of the letter of acceptance completes the contract, whether the letter reaches its destination or not. Haas v. Myers. Opinion by Sheldon, J.

LIFE ESTATE--POWER OF TENANT OVER-TRESPASSFIXTURES-EMINENT DOMAIN-COMPENSATION.--A person having an estate for life in land may make or allow any use of it he sees fit during his life, provided no injury is done to the inheritance. The remainderman, during the existence of the life estate, has the right only to prevent the commission of waste. "An original entry by the consent of the tenant for life is lawful, and will not subject the party entering, to an action of ejectment on the part of the remainderman, although damages have not been paid. Other remedies must be sought." Mills Em. Dom., § 142; Austin v. Rutland R. Co., 45 Vt. 215. It does not

CONTRACT--BY LETTER OR TELEGRAPH-WHEN COMPLETED.-A contract by letter is completed the instant the letter accepting the offer is mailed, and is valid and binding whether the letter of acceptance is received or not. (2) But where any thing else is left to be settled in respect to an offer by mail or telegraph, necessarily and invariably follow that structures, or even buildings, placed by one person on the land of the acceptance of the offer by telegraphing will not another become a part of the real estate. When they complete the contract where the dispatch does not reach its destination. are trade fixtures, they are regarded as personal prop(3) A. and B. contemplated making a large purchase of cattle in the West, and it erty. So a house erected upon the land of another, under an agreement that it shall belong to the builder, was agreed that A. should go to see the cattle, and is personal property. Matzon v. Griffin, 78 Ill. 477; telegraph back to B. the price per head if a purchase Curtiss v. Hoyt, 19 Conn. 165; Wells v. Banister, 4 was made, when B. was to reply by telegraph, without Mass. 514. If a man erects a house upon the delay, saying "yes," if he was willing to take a third land of another with his consent, it will, if the interest in the purchase, and then A. was to telegraph back to B. the estimated amount required to pay a builder has no title to the land, be the personal third interest, which B. was to place to the credit of property of the builder. 1 Wash. Real Prop., P. 2, § 4; Aldrich v. Parsons, 6 N. H. 555; Dame v. Dame, A. and his brother, in a Chicago bank, so that the lat38 id. 429; Osgood v. Howard, 6 Greenl. 452; Ashmun ter might draw on the same, and cause the bank to v. Williams, 8 Pick. 402; Doty v. Gorham, 5 id. 487: telegraph that fact to A. A. bought the cattle for Rogers v. Woodbury, 15 id. 156; Mott v. Palmer, 1 $55,000, and telegraphed B. the price per head, and be Com. 571; Hinckley v. Baxter, 13 Allen, 139. And it answered " yes," which dispatch never reached A. will so remain, though the land-owner convey the Later, B. sent another dispatch to A., saying if the land, and the owner of the building convey that, if to cattle were good there was no danger in buying them, different persons. Ham v. Kendall, 111 Mass. 298. If which was received on the same day that A. and another had concluded the purchase by paying the a person enters the land of another without permission, and places a building or other structure thereon, necessary advance. On the next day B. arrived, and offered to pay his share of the price, which was de- permanently attached to the soil, he will be a tresclined. Held, that under the circumstances the send-passer, and the building or structure will become part ing of the first dispatch accepting a share in the pur. chase, which never reached its destination, did not

complete the contract and make A. and B. partners in the purchase, there being something else to be done besides a mere acceptance, to carry out the contract, and also that B.'s offer to pay on the day after the purchase, and payment of the price, was too late. Where

parties undertake to contract by letter, and one party

makes a proposal by letter, and the other by letter accepts and posts his acceptance, the minds of the parties have met, and from the instant of mailing the acceptance the contract is a valid and binding one. See *To appear in 111 Illinois Reports,

and parcel of the land, and will be the property of the land-owner. In such case the builder acquires no But here there was no trespass, because the entry upon the land was with the express consent of one having the right to give it, and all the subsequent acts were done without objection, and before any steps were taken to dispossess the plaintiff or the corporation which it succeeded. Even if the entry had been without license or permission of any one authorized to grant the same, so that it was a trespass at the time, the law would not require the railroad company, in seeking a condemnation of the land so entered upon for a right of way to pay the owner of the land for structures placed upon

rights by his tortious acts.

it at its own expense, with a view of subsequently acquiring the right of way. As sustaining these views, see Greve v. First Division St. Paul & Pacific R. Co., 26 Minn. 66; Morgan's Appeal, 39 Mich. 675; Toledo, Ann Arbor & Grand Trunk R. Co. v. Dunlap, 47 id. 456; Lyon v. Green Bay Ry. Co., 42 Wis. 538; Justice v. Nesquehoning Valley R. Co., 87 Penn. St. 28; California P. R. Co. v. Armstrong, 46 Cal. 85. In a proceeding of this kind, to condemn land for a right of way, the land-owner cannot recover damages for a prior trespass by entering upon his premises. Lafayette, Bloomington & Mississippi R. Co. v. Winslow, 66 Ill. 219. That the land-owner whose land is condemned cannot recover, in addition to the value of the land taken, the value of improvements put upon the same by the party seeking a condemnation, reference has been made to the following other cases: Baker v. Chicago, Rock Island & Pacific R. Co., 57 Mo. 265; Dietrich v. Murdock, 42 id. 279; Blesch v. Chicago R. Co., 43 Wis. 195; Mississippi R. Co. v. Devaney, 42 Miss. 602; Robbins v. Milwaukee R. Co., 6 Wis. 636; Selma R. and D. R. Co. v. Camp, 45 Ga. 180; Harvey v. Lackawanna & B. R. Co., 47 Penn. St. 428; East Pennsylvania R. Co. v. Hottenstine, id. 28; White Water Valley R. Co. v. McClure, 29 Ind. 536;

Greenville R. Co. v. Nunnamaker, 4 Rich. L. 107; McAuley v. Western Vermont R. Co., 33 Vt. 311; State v. Gulf Ry. Co., 3 Rob. (La.) 513. The "just compensation" required to be given is for that which is taken from the owner, and which is of value to him, and not for something he never owned. Chicago, etc., R. Co. v. Goodwin. Opinion by Dickey, J.

EMINENT DOMAIN PLEADINGS -CROSS-PETITION

-EVIDENCE- OPINION OF WITNESSES AS TO VALUE.

- On a petition to condemn land by a railroad company, the defendant has a right to file a cross-petition when his interests are not accurately or fully stated in the petition, and thereby recover compensation for damages to other adjacent property not sought to be taken, and it is error to strike such crosspetition from the files. If it be defective, or the property damaged is insufficiently described, or the cross-petition does not show how the property will be damaged, the proper course is to demur to it, so as to afford an opportunity to amend the same. See Mix v. Lafayette, Bloomington & Mississippi R. Co., 67 Ill. 319; Jones v. Chicago & Iowa R. Co., 68 id. 380; Galena & Southern Wisconsin R. Co. v. Birkbeck, 70 id. 208. On the trial there were offers to prove that the property sought to be condemned had a special value for railroad purposes beyond its general market value, and also that certain prices had been offered for the property, within a few months of the time of the trial, above the general market value, all of which, on objection, the court refused to allow to be proved; and consistently with such ruling, the court, among other things, at the instance of the petitioner, instructed the jury: "The jury are instructed by the court, that the evidence of certain witnesses as to what they would give for the property in controversy is not proper evidence for the jury to consider in making up their verdict fn this case, that such testimony was ruled out by the court, and should not be considered by the jury." In these rulings we hold there was error. In St. Louis, Jerseyville & Springfield R. Co. v. Kirby, 104 Ill. 345, we held that it is competent to show, in such cases, that the land proposed to be taken has a special value to the owner by reason of a special profitable use, and he is entitled to compensation for the loss occasioned by deprivation of such special use. In that case the use was that of a training track. It was said: "The value of land consists in its fitness for use, present or future, and before it can be taken for public use the owner must have just compensation. If

he has adopted a peculiar mode of using that land, by which he derives profit, and he is deprived of that use, justice requires that he be compensated for the loss. That loss is the loss to himself. It is the value which he has, and of which he is deprived, which must be made good by compensation." And upon like principle we held in Lake Shore & Michigan Southern Ry. Co. v. Chicago & Western Indiana R. Co., 100 Ill. 21, that where land has no market value, from the fact of its being used as a right of way for a railroad, and devoted to a special use of making railroad transfers, estimates of its value with reference to such use, by those competent to speak in that regard, should be received on the question of compensation to be paid for its condemnation for the use of another railroad company for its right of way. And in Lafayette, Bloomington & Mississippi R. Co. v. Winslow, 66 Ill. 219, it was said: "As land and city lots have no standard value, it is right and necessary to take the opinions of witnesses, and to hear the facts upon which such opinions are founded." The principle recognized in these cases clearly leads to this: If property has a special value, from whatever cause, that special value belongs to the owner of the property, and he is entitled to be paid it by the party seeking condemnation. In determining the value of real property in such cases, to the owner, witnesses may give their opinions, and any special circumstances upon which those opinions are founded, for what they are worth. Johnson v. F. & M. Ry. Co. Opinion by Scholfield, J.

NEW HAMPSHIRE SUPREME COURT ABSTRACT.

CARRIER-ILLEGAL CHARGES-PENALTY. - If a railroad charges and receives for transporting a car-load of merchandise to the station on its road where it delivers the goods, and they are accepted by the consignee, more than it charges for transporting the same a greater distance, it is liable to the penalty imposed by chapter 55, Laws of 1859, although by the original contract the merchandise was to be transported to a more distant station. The statute provides that "no railroad owned or operated in this State shall charge a higher tariff on like classes of freight by the car-load, when delivered at any station on its line, than is charged to deliver the same at any station on the road where the transportation is for a greater distance," or more briefly expressed, no railroad shall charge more for transporting freight by the car-load any distance than it charges for transporting the same a greater distance, and imposes a fine for violating its provisions, to be recovered in an action for debt. Laws of 1879, ch. 55. This, excluding the provision for a penalty, is substantially a re-enactment of the common law. McDuffee v. Railroad, 52 N. H. 430, 457; S. C., 13 Am. Rep. 72; Railroad v. Forsaith, 59 id. 122; S. C., 47 Am. Rep. 181. The railroad on the west bank of the river to Hooksett, and the railroad to Hooksett by way of Suncook, are both operated by the defendants, and for the purposes of this question are to be treated as parts of the same road. Gen. Laws, ch. 159, §1; Pierce v. Concord Railroad, 51 N. H. 590. The distance from Concord to Suncook is seven miles, and to Hooksett nine and one-half miles. The defendants charged for transporting the car-load of corn from Ogdensburg to Hooksett $32.35, and to Suncook, $37.95. Whatever part of the whole sum eharged was appropriated for the freight over other roads, the defendants charged and received for transporting the car-load upon their own road from Concord to Suncook $5 60 more than they charged for transporting the same the greater distance, from Concord to Hooksett. A more striking instance of the mischief the

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