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owning or operating there, till within a very few years prior to the time when these complainants purchased. The dam and canal, as well as the mills, which formerly existed at that place, were not the same as those of to-day. There could have been no adverse right so long as there was no perceptible amount of injury sustained. What might at the present time occasion not only great inconvenience and annoyance, but also very serious injury, may have been in the past of not the slightest detriment to those engaged in other manufactures, with different machinery and more simply constructed appliances with which to utilize the water as a propelling power. In the latter case, no prescriptive right could be gained without the proof of other elements of such right. Hence the facts do not establish any right by prescription, or adverse use, by virtue of which the complainants can claim the use of this river otherwise than as riparian owners, entitled to the natural rights and reasonable use thereof legally belonging to them as such.

From a full consideration of this case it is clear that they have been guilty of an infraction of the com

Peters, C. J., Danforth, Virgin, Emery and Haskell, JJ., concurred.

ELEVATED RAILWAYS-RIGHTS OF ABUTTING
LOT-OWNER TO DAMAGES.

UNITED STATES CIRCUIT COURT, S. D. NEW YORK,
JUNE 17, 1885.

FIFTH NAT. BANK OF NEW YORK V. NEW YORK ELE-
VATED R. Co.*

Where under an act of a State legislature a railroad company
erects an elevated¡railroad over a street, the fee of which
is in the city, an abutting lot-owner holds his easement in
the street subordinate to the rights of the public therein;
and unless the new structures erected on the street injure
it as a thoroughfare for travel, and it is permanently sub-
jected to a new use which is subversive of the original use,
such abutting owner, though he may suffer inconven-
ience, is not legally injured and entitled to damages.
OTION for new trial.

plainants' rights; and that from the allegations in the MOTION

bill, and the proof in support of the same, the latter are entitled to equitable relief. This relief however should be against those parties who are shown to have contributed to the injury.

We are not satisfied that the three respondents whose mills are situated at Skowhegan have contributed to the injury complained of. There is some testimony relating to the nature and the amount of waste produced at their mills. The quantity is small however compared with that which is produced by the other respondents. Furthermore it would have to pass over a distance of twenty miles in the waters of the Kennebec before reaching the complainants' premises, and the proof is sufficient to satisfy us of the liability of these parties. This fact can be ascertained much better after the mills of the other respondents, at Fairfield, have ceased depositing their waste in the river, and subsequent experience may make this question more certain; and the complainants should not be prejudiced against enforcing their remedy in relation to them in the future whenever the fact may be established that they contribute to the production of the nuisance.

As against the other respondents a perpetual injunction should issue in accordance with the prayer in the bill, enjoining them from casting or depositing in the Kennebec river above complainants' dams, and manufactories, any refuse materials, edgings, shavings, debris, wood refuse, and what is denominated long saw-dust-not including however common sawdust. In regard to common saw-dust, we do not feel satisfied that, at this time, it should be held to be productive of the nuisance; nor should the complainants be prejudiced as to any future action concerning that under other circumstances, or upon other evidence.

Neither should this injunction issue immediately. The respondents must have a reasonable time in which to prepare for the disposal of such waste as is inhibited from going into the river.

Bill dismissed as to Washington B. Bragg, Levi B. Weston and Charles M. Brainard, without prejudice, and without costs for them. Bill sustained as against all the other respondents named therein with costs, and against whom perpetual injunction is to issue, in accordance with this opinion,at the end of four months from the time the rescript in this case shall be received by the clerk of the district in which this suit is pending. Costs to be equally apportioned between the eight different firms represented by the sixteen respondents.

Kelly & McCrae and Roger A. Pryor, for plaintiff. Davies & Rapallo and Henry H. Anderson, for defendant.

SHIPMAN, J. This is a motion by the defendant for a new trial, the jury having returned a verdict for the plaintiff for $6,000.

Before the year 1874 Third avenue and Twenty-third street, each being streets 100 feet in width, were legally laid out by the authorities of the city of New York, over and upon lands which were acquired by condemnation for street purposes, under the act of 1813, whereby said city obtained the title in fee to said streets and to the land thereunder, in trust, that the same and that each street "be appropriated and kept open for, or as a part of, a public street and avenue, forever, in like manner as the other public streets in said city are, or of right ought to be." The plaintiff purchased in the year 1874 a lot upon the south-west corner of Third avenue and Twenty-third street, which was bounded on the east by the west side of said avenue, and on the north by the south side of said street, and erected thereon a building, which was completed in the spring of 1875. This building has ever since been used in the following way: the basement for stores or offices, the first floor for plaintiff's banking-room, and the other floors for apartments.

Under the provisions of the statute passed by the Legislature of the State of New York in 1875, and known as the "Rapid Transit Act," which provided for the construction of elevated and underground railroads, an elevated steam railroad was built by the defendant, in the year 1879, along Third avenue. It was held by a majority of the Court of Appeals of the State of New York, in 1877, that under the Rapid Transit Act and the previous acts in relation to the defendant provision was "made for compensation for any property rights the abutting owners may have in the streets," the fee of which is in the city; but the question whether the contemplated structures would invade any property or rights of such owners so as to entitle them to damages, it was thought did not arise. In re Elevated R. Co., 70 N. Y. 327; In re Gilbert Elevated Ry. Co., id. 361. No compensation to the plaintiff for injury or damage was made, and there does not seem to be any adjudication by which the plaintiff was bound on the subject.

The structure which the-defendant built was a permanent one, consisting at the corner of the streets in

*S. C., 24 Fed. Rep. 114.

question of an elevated railroad track, placed upon substantial pillars about fifteen feet high, and a depot over a part of Twenty-third street, which is reached by a staircase from said street; the entire structure being of the strength and capacity necessary for the equipment of a railroad operated by steam, and for the accommodation of large numbers of passengers. This action was brought to recover damages which were alleged to have been caused to the plaintiff's property by the erection of said road and depot, and by the running of railroad trains near to the building. The principal damage was alleged to consist in the obstruction of light from the building, and in the injection into it of noxious odors, gas and smoke.

The charge to the jury was to the effect that if the streets at the point where the plaintiff's building is situate were permanently subjected by the erection of these structures to a new use, which was subversive of and repugnant to the original use for which each street was taken -- that is, for an open thoroughfare or avenue for travel - and such new and inconsistent use was a damage to the easement of the plaintiff in the street, which easement or right of property consisted only in a right to the light and air afforded by the street, and in a right of access thereto, then for the damages arising to its property from such exclusion of air, light and access, the plaintiff was entitled to compensation. The requests to charge covered five points, which were substantially as follows:

1. That the determination whether the street should or should not be kept open as a public street rested in the discretion of the Legislature. 2. That the evidence clearly showed that the new structure did not subject the streets to a new use subversive of or inconsistent with their original use as thoroughfares. 3. That in order to find that there was such new and inconsistent use, the jury must find that the defendant's structures interfered with the free passage of persons, horses or vehicles over Third avenue. 4. That an abutting owner has no right of property in the street to be affected or damaged by such new use. 5. That there could be no recovery for so much of the damage as was caused by the operation of the railroad trains.

It is competent for the Legislature, so far as not restrained by the Constitution under which it acts, to grant to a railroad company power to lay a railroad longitudinally over a highway; and when private property is taken by a use which is subversive of or inconsistent with the original use, compensation must be made therefor. Springfield v. Connecticut River R. Co., 4 Cush. 63. When the title in fee to such street is vested in a city in trust for the benefit of the people, no compensation is to be made to the city for the occupancy of the street by the railroad, because the Legislature conclusively determines what is for the public advantage. People v. Kerr, 27 N. Y. 188. In such case it is also often said that the abutting owners are not entitled to compensation, because having parted with the title to the land covered by the street, they have no remaining interest or right therein which can be taken, or which can be the subject of damage. This statement of the law was true with reference to the facts which judges or commentators had in mind when the statement was made. An abutting proprietor upon a street, the fee of which is in the city, has no legal interest which can be affected by a surface horse railroad which is placed in the street; nor although the inconvenience and annoyance resulting from the operation of a steam surface road is much greater than that resulting from a horse railroad, is his property ordinarily taken or appropriated in a legal sense by a steam road which is laid opposite his lot. But a state of facts has occasionally arisen within the last few years by which, although the new method

of travel to which the street is subjected is for the transportation of persons or of freight, the structures which are placed upon the street for the convenience or necessities of the new system are such as not only blockade and prevent the street from being an avenue for ordinary travel, but also deprive an abutting owner from access to the street or from light from it. While a Legislature may have said in general that the occupancy of the streets of a city by a steam railroad is consistent with the use for which they were established, yet it did not intend to say that all the structures which might subsequently be placed upon a particular narrow street for the purposes of such railroad did not impose a new burden upon the street. A platform may be built over a street which shall cover its entire width and exclude light from the roadway, and the adjacent buildings and structures may be placed opposite the lot of the abutting owner, which shall prevent access to his land, and thus a new condition of things is brought into existence which was not contemplated by learned judges when they said that an abutting owner has no interest in the street which can be the subject of damage.

It is this new condition which raises the question whether an abutting owner, who has no right in the soil of the street, has any especial incorporeal right therein of which he may be deprived, and for the loss of which he is entitled to compensation. The main object of a city highway is for the public travel, but that is not its only object. City streets are also, incidentally, to provide sites upon which dwellings and buildings for business purposes can be built. Such streets are established in order to furnish an overflowing population with places in which to live and to work. An important part of the value of a lot abutting upon a street consists in its access to the street, and in the fact that one or more sides can always receive air and light, while a building away from a street may be hemmed in on all sides. This privilege or capacity which appertains to a lot abutting upon a street which has been dedicated to the public, though it is not a right in the soil of the street, is real, and is important, and so far as the right of access to the street is concerned, has been distinctly recognized by courts. There may be a difficulty in defining the extent of the right, but there is a natural sense of justice which is not satisfied by the declaration that because the owner has parted with his right to the soil in front of his lot, which was taken for the purposes of a street, therefore he is remediless, although the street may be permanently so covered by new structures for the benefit of modes of travel not used for ordinary street purposes, as to exclude him from access to it, or from light from it. In the Story case this right is called an easement in the bed of the street for the purposes of air and light, and access from it. Story v. New York Elevated R. Co., 90 N. Y. 122.

But inasmuch as the land covered by the street was taken for public uses, the abutting owner holds his easement subordinate to the rights of the public in the street; and if the new structures are not inconsistent with or destructive of the uses for which the street was originally taken, he has no cause to complain. Until the streets are burdened with an occupancy which substantially injures them as thoroughfares for travel, and they are permanently subjected by the new structures to a new use, which is subversive of the original use, the abutting owner, though he may suffer inconvenience, is not legally injured, because his easement is subject to the controlling right of the public; and if the street continues to be a thoroughfare for ordinary travel, in accordance with the objects for which it was originally laid out, no right of the abutting owner is trenched upon.

The question then which was submitted to the jury

is of the first importance. It was whether on the corner of Third avenue and Twenty-third street, either of those streets were subjected by the permanent structures there erected to a new use subversive of or inconsistent with the original purpose for which the streets were taken, that of being a thoroughfare for travel; and the jury were told that the main object of a street was to create and maintain an avenue for travel, and if these streets were kept open and unobstructed, and were not used for purposes inconsistent with travel, the use of the street was preserved. While the language of the charge was correct and was technically sufficient, I fear that the jury were not sufficiently clearly told by the court that in order to find that the streets were not kept open and unobstructed, the roadbed then not being occupied by the railroad track, it was not sufficient to show that pillars and staircases had been placed in the streets, and a track had been placed upon the pillars, which to some extent prevented the streets from being as open as they were before the road was constructed, but that they must be of opinion that substantial obstructions had been placed upon the street, and that it was thereby rendered inconvenient to the public as a highway. I fear that the jury were unintentionally led into the opinion that because a new and permanent structure for the purposes of a steam road had been placed over a street of 100 feet in width, therefore they were permitted to find that a new and inconsistent use was imposed upon the street, although travel was practically unimpeded, and light in the travelled way was not sensibly diminished, and the street was not actually at that point made inconvenient for the accommodation of persons or vehicles.

As the motion for a new trial is granted for the reason which has been given, I do not consider the remaining question, which was strenuously argued by the defendant's counsel, which was, in substance, that the injury caused to the plaintiff by the injection into its building of gas and smoke in consequence of the operations of the trains, should not be considered as an element of damage.

The motion for a new trial is granted.

NEW YORK COURT OF APPEALS ABSTRACT.

were

CORPORATION- DISSOLUTION FINDINGS OF JURY IN EQUITY ACTION.-In an action brought by the people to dissolve a corporation because of mismanagement of its affairs, the regular organization of the company was admitted and the only issue was as to the alleged mismanagement, certain issues framed and submitted to and passed upon by a jury as to the good faith and interest of the stockholders in organizing the company. Held, that the findings of the jury upon these questions were not conclusive in a subsequent action between the stockholders brought upon a contract under which the corporation was organized; but that a former judgment in an action between the same parties, holding the contract to be valid, was conclusive. Lorillard v. Clyde. Opinion by Miller, J.

[Decided May 8, 1885.]

DOWER-ASSIGNABLE-TAKING BACK MORTGAGE — PRIORITY OF LIEN.-The widow of an intestate who died seised of certain premises, and leaving three children his heirs at law, joined with one of the heirs in the conveyance of their interests to the other heirs, she taking a mortgage upon the premises to secure the sum agreed to be paid her. Held, that the mortgage was, to the extent of the value of the dower right, a lien prior to a former judgment against one of the grantees upon the one-third which said grantee took

by descent subject to such dower right. The claim of the appellant to appropriate the value of the plaintiff's dower right to the payment of his judgment against Henry Ropke is without a shadow of equity and should not be permitted to prevail upon any technical or narrow view of the principles of law applicable to this case. She must stand upon precisely the same equities which she would have, if instead of assigning or releasing her dower interest, she had conveyed land and taken the mortgage for the purchase-money thereof; and in that event it is well settled that her mortgage would have been a paramount lien to the appellant's judgment. Jackson v. Austin, 15 Johns. 477; Haywood v. Nooney, 3 Barb. 643; Watson v. McKenny, 3 Wend. 233; Van Vleet v. Slauson, 45 Barb. 317; Flagg v. Munger, 9 N. Y. 483. Her dower right was an absolute right which was assignable. Payne v. Becker, 87 N. Y. 153. At the same time that she conveyed or released it, the purchasers executed the mortgage, and at the same instant that the title passed out of her the mortgage secured to her the purchasemoney; and in equity her right to the purchase-money is superior to the right of the appellant under his judgment. Cope v. Mead. Opinion per Curiam. [Decided May 8, 1885.]

REVIEWING

ΤΑΧΑΤΙΟΝ ASSESSMENT PERSONAL PROPERTY HELD BY EXECUTOR-DEDUCTION OF debts. -The relators sought in this proceeding to review the determination of the defendant in assessing them for taxation, in the year 1884, upon a certain amount of personal property held by them as executors, etc. It was conceded that the defendants had in their possession the sum of $484,268.61 unexpended, but retained in their hands by the order of the surrogate, on settlement of their accounts "for the payment of disputed and other claims, and the further expenses of administration." The relators, upon an affidavit, showing that there were unpaid claims made against the estate exceeding the amount of assets in their hands, and that in consequence thereof the executors had no personal property of said estate in their hands subject to taxation, applied to the defendants to omit said estate altogether from their assessment-rolls. This the commissioners declined to do, but reduced the amount of said assessment to the sum admitted to be in the hands of the executors, and as to that amount confirmed the assessment. Upon a return to a certiorari obtained by the relators, these facts appearing, the General Term affirmed the proceedings of the commissioners, and from their determination this appeal is taken to this court. It is provided by statute that personal property held by an executor or administrator, in his representative character, shall be assessed to him, personally, in the town or ward where he resides. 2 Rev. Stat. (7th ed.) 989, § 5. He is however entitled to have deducted from the aggregate of such property any just debts owing by him in his representative character. 2 Rev. Stat. (7th ed.) 991, § 10. The proof submitted by the relators to the defendants failed to show that there were any debts owing by them entitled to be deducted from the assessment. Claims, it is true, had been made against the estate to a large amount, but they were contested by the executors, and their validity had never been admitted or established. The nature of these claims did not appear, and the commissioners had no other means of determining their validity than the allegations of the relators, which impliedly alleged their invalidity. It is essential to the support of a claim to reduce or nullify an assessment made by the proper officers that it should be made to appear affirmatively by sufficient proof that such assessment is in part, or as a whole, erroneous. People, ex rel. Westchester Fire Ins. Co., v. Davenport, 91 N. Y. 581. If the evidence fails to

wrong, not implied fraud, which may exist without bad faith. A claim against a bankrupt for damages on account of fraud or deceit practiced by him is not

show this, or leave the matter in doubt, it is the province of the assessors to determine the value and amount of the property liable to taxation. Such a case is presented here. The proof, so far from show-discharged by proceedings in bankruptcy; nor is a ing that any just debts were owing by the estate, controverted it, and indeed impliedly affirmed that no valid claim existed against it. The use of the term "just debts" in the statute plainly implies that legal, valid, and uncontestable obligations must be shown in order to entitle an estate to the benefit of the statute. No such claim to exemption was established by this proof, and the order should be affirmed. People v. Com. of Taxes. Opinion by Ruger, C. J.

[Decided May 8, 1885.]

INSURANCE-LIFE POLICY — ABSOLUTE ASSIGNMENT -PAROL EVIDENCE THAT IT WAS GIVEN AS COL

LATERAL.—In 1869, J. & C., sons of plaintiff, procured policies of insurance upon their lives; the policy upon C.'s life was made payable to plaintiff. These policies remained in the possession of G., who paid the premiums thereon until May 23,1872,and who held them as collateral security for an indebtedness of J. & C.; on that day plaintiff executed to G. an assignment of the policy in which she was interested absolute in form for the expressed consideration of $1, "and for other valuable considerations." At the same time in connection with her sons she executed another instrument, by the terms of which they jointly and severally assigned all their rights and interests in the policies to G., in consideration of his crediting C. $353.72, paying a mortgage of $110.46 on property deeded to him by J. by deed, containing covenants that they were free of incumbrance and indorsing $35.82 on note given by C. G. gave the credits and paid the mortgage specified, and defendant, his assignee, collected the policy on the life of J. Plaintiff claiming that the assignment was in fact given simply as collateral security for an indebtedness of $500, after tender of that amount and demand of the moneys collected, brought this action to recover the same. Held, that in the absence of any claim of fraud or mutual mistake as to the contents of the assignment, plaintiff was concluded thereby, and oral evidence was incompetent to show that it was executed as collateral security merely. It is believed that no case can be found where parol evidence has been received for the purpose of showing that such an instrument was given merely as collateral security and not for the precise purpose mentioned in it. Without commenting upon the authorities the following are ample to show that the evidence was not competent. 1 Greenl. Ev., § 275; McCrea v. Purmort, 16 Wend. 461; Kellogg v. Richards, 14 id. 117: Goodyear v. Ogden, 4 Hill, 104; Graves v. Friend, 5 Sandf. 568; Coon v. Knap, 8 N. Y. 402; Cocks v. Barker, 49 id. 107: Hinckley v.N. Y. Cent. R:Co., 56 id. 429; Van Bokkelen v. Taylor, 62 id. 105; Shaw v. Ins. Co., 69 id. 286; Cram v. Union Bank, 1 Abb. Ct. App. Dec. 461; Wilson v. Deen, 74 N. Y. 531; Eighmie v. Taylor, 98 id. 288. Marsh v. MeNair. Opinion by Earl, J. [Decided May 5, 1885.]

UNITED STATES SUPREME COURT ABSTRACT.*

BANKRUPTCY -DISCHARGE FRAUD CLAIM FOR DAMAGES ON ACCOUNT OF FRAUD-FRAUDULENT REPRESENTATIONS OF PARTNER.-The rule reaffirmed that the term "fraud" in the clause defining the debts from which a bankrupt is not relieved by a discharge under the bankrupt act, means positive fraud or fraud in fact, involving moral turpitude or intentional *Appearing in 5 Sup. Ct. Rep.

debt created by his fraud discharged, even where it was proved against his estate, and a dividend thereon received on account. If in the conduct of partnership business, and with reference thereto, one partner makes false or fraudulent misrepresentations of fact, to the injury of innocent persons dealing with him, as representing the firm, and without notice of any limitations upon his general authority as agent for the partnership, his partners cannot escape pecuniary responsibility therefor, upon the ground that the misrepresentations were made without their knowledge, especially where the firm appropriates the fruits of the fraudulent conduct of such partner. In Neal v. Clark, 95 U. S. 709, it was held, that looking to the object of Congress in enactrelieved from the burden of hopeless insolvency, the term "fraud" in the clause defining the debts from which a bankrupt is not relieved by a discharge under the bankrupt act should be construed to mean positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality. This principle was affirmed in the recent case of Hennequin v. Clews, 111 U. S. 682, where will be found a reference to the leading cases in this country and in England. Whether this action be regarded as one to recover damages for the deceit practiced upon the plaintiffs, or as one to recover the amount of a debt created by fraud upon the part of Strang, we are of opinion that his fraud. is to members of his firm. The transaction between him and be imputed, for the purposes of the action, to all the the plaintiffs is to be deemed a partnership transaction, because in addition to his representation that the notes were for the benefit of his firm, he had, by virtue of his agency for the partnership, and as between the firm and those dealing with it in good faith, authority to negotiate for promissory notes and other securities for its use. Each partner was the agent and representative of the firm with reference to all business within the scope of the partnership. And if in the conduct of partnership business, and with reference thereto, one partner makes false or fraudulent misrepresentations of fact to the injury of innocent persons who deal with him as representing the firm, and without notice of any limitations upon his general authority, his partners cannot escape pecuniary responsibility therefor upon the ground that such misrepresentations were made without their knowledge. This is especially so, when as in the case before us, the partners, who were not themselves guilty of a wrong, received and appropriated the fruits of the fraudulent conduct of their associate in business. Stockwell v. U. S., 13 Wall. 547, 548; Story Part., §§ 1, 102, 103, 107, 108, 166, 168; Chester v. Dickerson, 54 N. Y. 1; Locke v. Stearns, 1 Metc. 560; Lothrop v. Adams, 133 Mass. 481; Blight's Heirs v. Tobin, 7 T. B. Mon. 617; Durant v. Rogers, 87 Ill. 508; Colly. Partn. (Wood's ed.), §§ 446, 449, 450; Lindl. Partn. (Ewell's ed.), § 302. Strang v. Bradner. Opinion by Harlan, J. [Decided May 4, 1885.]

ing a general law by which the honest citizen might be

HABEAS CORPUS-MORAL RESTRAINT.-Something more than moral restraint is necessary for the writ of habeas corpus. Therefore an order of arrest by the sec. retary of the navy to the chief medical director of the navy, directing him to remain within the bounds of the city of Washington, is not such an imprisonment as gives such medical director ground for the writ. The present case bears a strong analogy to Dodge's

case in 6 Mart. (La.) 569. It appeared there that the party who sued out the writ had been committed to jail on execution for debt, and having given the usual bond by which he and his sureties were bound to pay the debt if he left the prison bounds, he was admitted to the privilege of those bounds. The plaintiff in execution failing to pay the fees necessary to the support of the prisoner, the latter sued out a writ of habeas corpus. That eminent jurist, Chief Justice Martin, said on appeal to the Supreme Court: "It appears to us that the writ of habeas corpus was improperly resorted to. The appellee was under no physical restraint, and there was no necessity to recur to a court or judge to cause any moral restraint to cease. The sheriff did not restrain him, since he had admitted him to the benefit of the bounds; the doors of the jail were not closed on him, and if he was detained it was not by the sheriff or jailer. If his was a moral restraint it could not be an illegal one. The object of the appellee was, not to obtain the removal of an illegal restraint from a judge, but the declaration of the court that the plaintiffs in execution had by their neglect lost the right of detaining him. A judgment declaring such neglect, and pronouncing on the consequences of it, was what the appellee had in view." The judgment awarding the writ was reversed. The analogy to the case before us is striking. A very similar case was passed upon by the Supreme Court of Pennsylvania in Respublica v. Arnold, 3 Yeates, 263. A party who had been indicted for arson, and had given bail for his appearance to answer the indictment, applied, while out under bail, to be discharged by writ of habeas corpus, on the ground of delay in the prosecution, The court held that the statute of Pennsylvania, which was a re-enactment of the habeas corpus act of 31 Charles II, ch. 2, spoke of persons committed or detained, and clearly did not apply to a person out on bail. And Mr. Justice Yeates very pertinently inquires," Would not a habeas corpus directed to the bail of a supposed offender be perfectly novel?" And Smith, J., said that the inclination of his mind was that habeas corpus could not lie to the bail. In a note

to the cases of Rex v. Dawes and Rex v. Kessel, 1 Burr. 638, the same principle is stated, though by whom the note is made does not appear. Both these persons were brought before Lord Mansfield in the King's Bench, on a rule against the commissioners to enforce an act of Parliameut to increase the army. In both cases the ground on which the discharge was asked was that they were illegally pressed into the service. Lord Mansfield discharged one, because his statement was found to be correct, and refused the other because his statement was not true. The note to the report, apparently in explanation of the fact that they were not brought before the court by writ of habeas corpus, and that no objection was taken to the rule by the commissioner, says: "Neither of these could have brought a habeas corpus; neither of /them was in custody. Dawes had deserted and absconded, and Kessel had been made a corporal. No objection was made by the commissioner to the propriety of the method adopted." Chief Baron Comyn cites the cases as showing that the parties could not bring habeas corpus, because they were not in custody. 4 Com. Dig. 313, “Habeas Corpus" B. Wales v. Whitney. Opinion by Miller, J. [Decided May 4, 1885.]

MINNESOTA SUPREME COURT ABSTRACT.

HIGHWAY-DEDICATION OF LAND CONDUCT OF LAND OWNER-EVIDENCE.-The requisites of a common-law dedication of land to a public use are, on the

part of the land-owner, an intention to dedicate to such use, with an act or acts in pursuance thereof, and on the part of the public an acceptance. Wilder v. City of St. Paul, 12 Minn. 192 (Gil. 116); Brakken v. Railway Co., 29 Minn. 41; Washb. Easem. (3d ed.) 196, 197. From the nature of the case no fixed rule can be laid down as to what particular conduct of the landowner will make out a dedication on his part. It is a conclusion of fact to be drawn by a jury, under proper directions, from all the circumstances of the case in hand. Harding v. Jasper, 14 Cal. 643; 2 Greenl. Ev., § 662. The inquiry is, did the land-owner intend that there should be a public highway at the place in question, and was that intention carried out or evinced by acts or conduct on his part in pursuance of it? Sometimes the intention is manifested by express declarations, oral or in writing. But ordinarily it is an inference from acts and conduct other than declarations. In such case the acts and conduct serve the double purpose of evidencing the intention and of carrying it out. Upon the matter of intention and conduct it is competent to show that the land-owner desired a public highway at or near the place in question, whether that desire be expressed by declarations or by efforts to secure the establishing of one there in any way. The fact that he desired the highway may well give character to other acts bearing or claimed to bear upon the question of intention. So it is competent to show that he invited or encouraged the public to use the place as a highway; as for instance, by improving or fitting it for such use, or by treating it, and allowing the public to treat it, and enjoy and use it, as a necessary part of a travelled and convenient road, or as it has been said, "with circumstances of publicity." Regina v. Petrie, 4 El. & Bl. 737. So the time of such use and enjoyment may properly be considered as bearing upon the question of the laud-owner's intention, and the significance of his acquiescence in the public use of his property. Case v. Favier, 12 Minn. 89 (Gil. 48); 2 Greenl. Ev., § 662; City of Mankato v. Warren, 20 Minn. 144 (Gil. 128). Great length of time is however not important; for after all, the assent of the owner is the more material consideration. Sultzner v. State, 43 Ala. 24; Harding v. Jasper, supra; Denning v. Roome, 6 Wend. 651; Washb. Easem. (3d. ed.) 196. As respects the time of the owner's assent, as bearing upon his intention and legal dedication, four to six years have been held sufficient. Jarvis v. Dean, 3 Bing. 447; Regina v. Petrie, supra; 2 Greenl. Ev., § 662. For the purpose of showing the intention and pursuant conduct of the land-owner, it is competent to prove that he worked out his highway tax upon the alleged highway, or performed or suffered to be performed work upon it at public expense, or under the direction of the public authorities having charge of highways. Brakken v. Railway Co., supra. And the effect is in the same direction if the work was done upon the line of road of which the disputed land is a part, and on either side of it, if the place where it is done be sufficiently near or so related to the disputed land as to raise a reasonable presumption that the work was done with reference to the public use of the whole line, and could only be beneficially engaged in a substantial degree in connection with such use. Kennedy v. Le Van, 23 Minn. 513. So it may be shown that the land-owner has recognized the highway, and acted upon the basis of its existence; as by making efforts to change or vacate it. Such conduct implies, with more or less force, that in his understanding there is a highway in existence. And in general it may be said that as the right of the public to the alleged highway depends largely upon the use of the land, with the owner's assent, for such time and under such circumstances that public accommodation and private rights might be materially affected by an in

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