ILLUSTRATIVE CASES IN PERSONALTY BY PHILIP T. VAN ZILE Dean Detroit College of Law, Detroit, Mich. ST. PAUL WEST PUBLIStlING CO. 1896 Copyright. 1896. BY WEST PUBLISHING COMPANY. PREFACE. These cases have been selected, not as leading cases, but as illustrative cases, to be used in connection with my lectures before the law classes in the Detroit College of Law. It is not jDretended that the subject of Personal Property has been covered by these cases, but simply that some of the principal subdivisions have been illus- trated. PHILIP T. VAN ZILE, Dean Detroit College of Law. Detroit, Mich., July 24, 1896. VAN ZILE, SEL. CAS. PERS. (iii)* TABLE OF CONTENTS. PERSONAL PROPERTY. Personal property is divided into 1. Chattels real. 2. Chattels personal. I. Chattels Keal. Chattels real consist of 1. Leaseholds. 2. Heirlooms. 3. Emblements. 4. Fixtures. 1. LEASEHOLDS. Chattel interests in lands are to be sold on execution. as personal estate. A sale on execution of an estate for years in InaiJs, made in accordance with the statutory provisions for the sale of real estate, is void. Buhl V. Kenyon 3 2. HEIRLOOMS. For definition, see 2 Bl. Comni. 427-430; Black, Law Diet.; Bouv. Law Diet.; And. Law Diet., and notes. Lax7 of heirlooms applicable in Eng- land. Spooner v. Brewster 4 TiSLVir of heirlooms of little, if any, im- portance in the United States. See Schouler, Pers. Prop. 99; 1 Washb. Real Prop, li; 2 Wait, Act. & Def. 224. 3. EMBLEMENTS. Emblements are fructus industriales, not fructus naturales. Tenant for life leased the premises, and died during the year. Held, that uncut grass be- longs to the owner of the reversion, and not to the lessee as emblements. Emblements are corn and other growth which are produced annually; not spontaneously, but by labor and industry. Such productions are fructus industriales. Growing grasses, even if produced from seed, and ready to be cut for hay, are not emblements, because the improvement is not distinguisha- ble from the natural product, although it be increased by cultivation. Reiff V. Reiff 5 The right to emblements, as against the landlord, belongs only to the tenant ivhose tenancy is of uncertain duration. A tenant for years of mortgaged land plant- ed a crop after the rendition of a decree fore- closing the mortgage, the tenant having been a defendant in the foreclosure suit. The land was sold under the decree, and the sale con- firmed while the crop was growing, and before it matured. The purchaser did not obtain pos- session of the land, but permitted the tenant to retain possession, merely notifying him that he (the purchaser) would expect from the ten- ant rent in money or in kind. Held that, as be- tween the tenant and the purchaser, the former was entitled to the crop. Monday v. O'Neil 6 It was held in Richards v. Knight that, where plaintiff obtained deed under foreclosure sale on August 23d. the tenant was entitled to crop planted in the spring, which was fully ripe, but not secured. Richards v. Knight 8 If tenancy be terminated through fault of tenant, he loses his right to emble- ments. By rescinding a contract for farming the land of another, and his abandoning the prem- ises, a tenant yields up his right to the growing crops. Kiplinger v. Green 10 Tenant may sell while in possession un- der lease, xirith right to sow and reap; and subsequent default ivill not defeat title of vendee. Carney v. Mosher 12 4. FIXTURES. There is no universal test by which it may be determined \phat are fixtures. It may be asked by way of determining — a. Is the annexation permanent? b. 'What w^as the intention of the par- ties? c. Is there unity of title, so that a conveyance of the realty w^ould of necessity convey the fixture also? Permanency of Annexation. Michigan Mut. Life Ins. Co. v. Cronk 13 Smith V. Blake 14 The Intention of the Parties. Aldine Manuf'g Co. v. Barnard . 15 Manwaring v. Jenison .... 19 Same — Intention Implied. Merchants' Nat. Bank of Crookston V. Stanton 25 Bartlett v. Haviland 28 Unity of Title. Lansing Iron & Engine Works v. Walker 29 VANZILE.SEL.CAS.PEKS. (V) vi TABLE OF CONTENTS. In the absence of special agreement, re- movable fixtures must be removed during the teru. of tenancy.' Fitzgerald v. Anderson .... 31 Free v. Stuart '^^ Adams v. Lee 3o II. Chattels Personal. Chattels personal consist of 1. Animate personalty. 2. Inanimate personalty. 1. ANIMATE PERSONALTY. Animate personalty includes a. Animals ferae naturae. b. Animals reclaimed. c. Animals domestic. Wild and Reclaimed Animals. Bees are wild animals. Until liivod and re- claimed, no property can be acquired in them. Finding and markiuR a tree whore they are on another's land vests no property m the finder. Gillet V. Mason 36 Finder mav maintain an action against one interfering with him while cutting the tree. Adams v. Burton 37 Wild animals captured are property of cap- tor. See State v. House, 65 N. C. 315. Dogs have a value, and are property. Tenhopen v. Walker 39 Dcmiestic Animals. Owner of dam is entitled to the increase of tame or domestic animals. Kellogg V. Lovely 41 2. INANIMATE PERSONALTY. Inanimate chattels personal are either a. Corporeal b. Incorporeal. Joint Owners of Personalty. Wait V. Bovee 4.3 McLeod V. Free 44 Partnership Assets. Real estate purchased xrith partnership funds goes to surviving partner as per- sonalty, and may be conveyed or ivill pass by assignment for payment of partner- ship debts. Barton v. Lovejoy 40 Hanson v. Metcalf 48 Liight and Air. Right to light and air cannot be ac- quired by use of adjoining land. Western Granite & Marble Co. v. Knickerbocker 50 Keating v. Springer 52 Dill V. Board of Education of City of Camden ^^ Water. 1. What are navigable waters. Falls Manuf'g Co. v. Oconto River Imp. Co 63 2. One using navigable stream must use it with due deference to the rights of others. Page V. Mille Lacs Lumber Co. . 68 3. Rights of riparian owners on nav- igable stream are subordinate to public use. Minneapolis Mill Co. v. Board of Water Com'rs of City of St. Paul 70 4. Riparian owTiers have a right to the reasonable use of the w^ater as it passes their lands. Gillis V. Chase 72 Dumont v. Kellogg ...*.. 73 5. A canal constructed and maintained at private expense is like a private way. Potter V. Indiana & L. M. Ry. Co. 76 Lost Property. 1. To constitute lost property, the own- er must have involuntarily and acciden- tally lost or parted w^ith the possession of the property, and not have laid it away, intending to retake it, and have forgotten w^here he left it. McAvoy V. Medina 78 2. The finder has a good title as against everybody but the oxp^ner. Hamaker v. Blanchard .... 79 3. The finder has no legal claim to rec- ompense for finding against the oumer. Watts v. Ward 80 4. There is an implied promise on the part of the owner to pay to the finder necessary expenses in obtaining and car- ing for the property. Chase v. Corcoran 81 5. The finder of lost property has no lien upon it as finder after he know^s to ^vhom it belongs, but he has a lien upon it for whatever reward may be offered for its recovery Wood V. Pierson 82 6. .WTien the finder takes possession of the lost goods with intent to appropriate them to his ow^n use, believing at the time, or having good grounds to believe, that the ow^ner can be found, it is larceny. Baker v. State 84 TABLE OF CONTENTS. Confusion of Goods. Confusion of goods takes place when there is such a mixture of the goods of two or more parties that they cannot be distinguished. This may be 1. By consent of parties. 2. By mistake. 3. By inevitable accident. 4. By the wrongful act of one or more of the parties. Pickering v. Moore 85 Gates V. Rifle Boom Co 87 First Nat. Bank of Denver v. Scott 90 Patents. Wood V. Packer .92 Phillips V. Risser 94 Copyrights. Bartlette v. Crittenden . Trade-Marks. Celluloid Manufg Co. ManufgCo. . . . V. Cellonite 97 99 Gifts. Gifts are of tw^o kinds: 1. Gifts inter vivos. 2. Gifts causa mortis. 1. GIFTS INTER VIVOS. Decedent deposited bonds and coupons with a banlc, and took a writing, signed by the cash- ier, acknowledging their receipt, and that they were "to be sold, and the proceeds placed to her credit." Held, that a delivery of the re- ceipt, with an indorsement thereon, signed by decedent, requesting the cashier to "let" plain- tiff "have the amount of the within bill," and with the intention to pass title thereto, consti- tuted a valid gift of the money due from the bank. An action ex contractu, brought by an ad- ministrator to recover money claimed to have been wrongfully paid to defendant by a cer- tain bank, constitutes an election and ratifica- tion of the payment, and precludes a subse- quent action against the bank on the same claim. Crook Y. First Nat. Bank of Bara- boo 104 Wylie V. Charlton 108 Delivery is necessary to the validity of the gift. Bellis V. Lyons 113 Booth Y. Bristol County Sav. Bank 115 A gift inter vivos, when complete, can- not be revoked. Yingst Y. Lebanon & A. St. R. Co. 116 2. GIFTS CAUSA MORTIS. Hatcher t. Buford 110 Both delivery and apprehension of death from present disease or impending danger are essential to the validity of a gift causa mortis. Zeller y. Jordan 12:1 A gift causa mortis, differing from a gift inter vivos, may be revoked at any time before the death of the donor, even though it has been delivered. Doran v. Doran 12.~) CASES REPORTED. Page Adams v. Burton (43 Vt. 36) 37 Adams v. Lee (31 Mich. 440) 35 Aldine Manuf g; Co. v. Barnard (48 N. W. 280, 84 Mich. G32) 15 Baker v. State (29 Ohio St. 184) 84 Bartlett v. Haviland (52 N. W. 1008, 92 Mich. 552) 28 Bartlette v. Crittenden (Fed. Cas, No. 1,082, 4 McLean, 300) 97 Barton v. Lovejov (57 N. W. 935) 4^ Bellis V. Lyons (5G N. W. 770, 97 Mich. Qq§\ 113 Booth V. Bristol County' Sav. Bank' (38 N. E. 1120, 162 Mass. 455) 115 Buhl V. Kenyon (11 Mich. 249) 3 Carney v. Mosher (56 N. W. 935, 97 Mich. 554) 12 Celluloid Manuf'g Co. v. Cellonite Man- uf'g Co. (32 Fed. 94) 99 Chase v. Corcoran (106 Mass. 286) 81 Crook V. First Nat. Bank of Baraboo (52 N. W. 1131. 83 Wis. 31) 104 Dill V. Board of Education of City of Cam- den (20 Atl. 739. 47 N .J. Eq. 421) 56 Doran v. Doran (33 P. 929, 99 Cal. 311). . 125 Dumont v. Kellogg (29 Mich. 420) 73 Falls Manuf'g Co. v Oconto River Imp. Co. (58 N. W. 257. 87 Wis. 134) 63 First Na.t. Bank of Denver v. Scott (54 N. W. 987. 36 Neb. 607) 90 Fitzgerald v. Anderson (51 N. W. 554. 81 Wis. 341) 31 Free v. Stuart (57 N. W. 991, 39 Neb. 220) 32 Gates V. Rifle Boom Co. (38 N. W. 245, 70 Mich. .309) 87 Gillet V. Mason (7 Johns. 16) 36 Gillis V. Chase (31 Atl. 18) 72 Hamaker v. Blanchard (90 Pa. St. 377).. 79 Hanson v. Metcalf (48 N. W. 441. 46 Minn. 25) 48 Hatcher v. Buford (29 S. W. 641, 60 Ark. 169) 119 Keating v. Springer (34 N. E. 805. 146 111. 481) 52 Kellogg V. Lovely (8 N. W. 099. 46 Mich. 131) 41 Kiplinger v. Green (28 N. W. 121, 61 Mich. 340) 10 Page Lansing Iron & Engine Works v. Walker (51 N. W. 1061. 91 Mich. 409) 29 McAvoy V. Medina (11 Allen, 548) 78 McLeod V, Free (55 N. W. 685, 96 Mich. 50 44 Manwaring v. Jenison (27 N. W. 899, 61 Mich. 117) 19 Merchants' Nat. Bank of ' 'c'ro'ok's'ton' 'v. Stanton (.56 N W. 821, 55 Minn. 211).. 25 Michigan Mut. Life Ins Co v. Cronk (52 N. W. 1035. 93 Mich 49) 13 Minneapolis Mill Co. v. Board of Water Com'rs of City of St. Paul (58 N. W. 33) 70 Monday v. O'Neil (03 N. W. 32. 44 Neb '24) • G Page V. Mille Lacs Lumber Co. (55 N. W, 608, 53 Minn. 492) 68 Phillips V. Risser (26 Fed. 308) '. 94 Pickering v. Moore (32 Atl. 828) 85 Potter V. Indiana & L. M. R. Co. (54 N. W. 956, 95 Mich. 389) 76 Reiff V. Reiff (64 Pa. St. 134) 5 Richards v. Knight (42 N. W. 584. 78 Iowa, 69) 8 St. Anthony Falls Water-Power Co. v. Board of Water Com'rs of City of St. Paul (58 N. W. 33) 70 Smith V. Blake (55 N. W. 978, 96 Mich. 542) 14 Spooner v. Brewster (3 Bing. 136) 4 Tenhopen v. Walker (55 N. W. 657, 96 Mich. 236) 39 Wait V. Bovee (35 Mich. 425) 43 Watts V. Ward (1 Or. 8(?) 80 Western Granite & Marble Co. v. Knick- erbocker (37 Pac. 192, 103 Cal. Ill) 50 Wood V. Packer (17 Fed. 650) 92 Wood V. Pierson (7 N. W. 888, 45 Mich. 313) 82 Wylie V. Charlton, two cases (62 N. W. 220, 43 Neb. 840) 108 Yingst V. Lebanon & A. St. R. Co. (31 Atl. 687. 167 Pa. St. 438) 116 Z(ady Grey's Case is cited, and trespass said to be the proper form. In a case like the present, where it is clear some action is maintainable, one instance is sufficient to decide the form. As to the cases of felouy the distinctions in favorem vitae are exceedingly nice, but even in those cases a slight interval between severance and re- moval, will make the thing removed a chat- tel. The defendant here subsequently to the removal of the stone, was cautioned not to obliterate the inscription, and he promised to abstain from doing so; but afterwards, say- ing he was indemnified, effected the erasure complained of. It has been urged that the freehold of the churchyard is in the parson; that is undoubtedly true, but even he has no right to remove the tombstones, the property of which remains in the persons who erected them. The rest of the court concurring, the rule was refused. EMBLEMENTS. REIFF V. REIFF. (64 Pa. St. 134.) Supreme Court of Pennsylvania. Jan. 19, 1870. Error to court of common pleas, Montgom- ery county. The facts sufficiently appear in the opinion. D. H. Mulvany and R. C. McMurtrie, for plaintiff in error. G. R. Fox, for defendant in eiTor, READ, J. The plaintiffs in error were the lessees of a farm of 152 acres from their moth- er, a widow, who had a life estate in it under the will of her husband, their father. They were annual lessees from the 1st of April, 18G6, 18G7, 1868, the widow dying on the l.:)th June, 1868. At the time of her death there was standing uncut on the premises a quantity of mixed timothy and clover grass, a quantity of grass part meadow and part timothy, and a quantity of timothy exclusively. The question was, was this grass emblements. belonging to the tenants of the deceased owner of the life estate? The vegetable chattels call- ed emblements are the corn and other growth of the earth which are produced annually, not spontaneously, but by labor and industi-y, and thence are called fructus iudustriales. The growing crop of glass, even if grown from seed, and though ready to be cut for hay, cannot be taken as emblements; because, as it is said, the improvement is not distinguish- able from what is natural product, although it may be increased by cultivation. 1 Wil- liams, Ex'rs, 670, 672. The learned judge in the court below is a practical farmer, thoroughly acquainted with the established usages of our state, and we have no hesitation in agreeing with him that this crop of hay was not emblements, and be- longed to the executors of the testator. Judg- ment affirmed. See Evans v. Iglehart, 6 Gill & J. 171; Clark V. Harvey, ~A Pa. St. 142; Sanders v. Elling- ton, 77 N. C. 255; Lamberton v. StoufEer, 55 Pa. St. 2S4. CHATTELS REAL MONDAY V. OXEIL. (C3 X. W. 32. 44 Neb. 724.) Supreme Court of Nebraska. April 5. 1895. Error to district court. Dodge county; SuUi- Tan. Judge. Action of trover by Daniel Monday against William O'Neil. Judgment for defendant, and plaintiff brings error. Affirmed. D. M. Strong and Frick & Dolegal. for plain- tifif in error. C. Hollenbeck, for defendant in error. IRVINE. C. This case was tried in the district court on a stipulation of facts. The court instructed the jury to return a verdict for the defendant, and from the judgment rendered thereon the plaintiff prosecutes er- ror. The action was one in the nature of trover for SO acres of corn grown, and a part thereof, standing on the W. Vo of the N. SV. 14 of section 13, township IS. range 5, in Dodge county. The essential facts, as dis- clo.^ed by the stipulation, are as follows: On the 14th day of January. 1S69. one Stanford, who was then the owner of the land de- scribed in the petition, executed a mortgage tliereon to the J. T. Robinson Notion Com- pany. On the 3d of January. 1891, an action was brought to foreclose this mortgage, the parties defendant being Stanford and wife and O'Neil. the defendant in this case; the petition alleging that O'Neil claimed a lease- hold interest in the premises, but that such interest was inferior to the interest of the plaintiff. All the defendants made default, and on April 23. 1891. a decree of foreclosure was rendered. On June 26. 1891, the land was sold under the decree of foreclosure to the plaintiff. On the 27th of June the sale was confirmed, and a deed executed, which was the same day recorded. O'Neil was the ten- ant of Stanford for one year from March 1. 1891. and the com in question was planted by O'Neil in May. 1891. and was growing at the time of the sale and confirmation. No lea.se was made by tJhe plaintiff to O'Neil, but O'Neil continued in possession after the sale, and Monday made no effort to obtain pos- session, except that at different times during the summer of 1S91 he notified O'Neil not to pay rent to Stanford, and that he would in- sist on either the rent or a portion of the crops. The question presented is therefore whether under the foregoing state of facts. Monday or O'Neil was the owner of the crops growing on the land, but not matured at the time the sale was confirmed. Since the briefs were tiled the cases of Yea- ZPl V. White. 40 Neb. 432. 58 N. W. 1020, and Foss V. Marr. W Neb. 559, 59 N. W. 122. nave been decided. Their effect is to limit the in- quiry here to a much narrower field than that covered by the briefs. In Yeazel v. White it was decided that the owner of land sold upon execution retains the right of possession, and is entitled to the usufruct of such land until confirmation of the sale, and that, tliere- I fore, the judgment debtor is not accountable "to The purchaser for hay cut upon the land after sale and before continuation. In Foss V. Marr it was held that a mature crop of corn standing upon land sold at judicial sale, and not taken into account by the appraisers, did not pass to the purchaser, but remained the property of the mortgagor, who had plant- ed and cultivated it. In the latter case some stress was laid upon the fact that the crop was matured, and the language of the su- I preme court of Iowa in Hecht v. Dettman, ' 56 Iowa, 679, 7 N. W. 495. and 10 N. W. 241. wherein a distinction is drawn between a growing crop and one already matured, but not severed, was quoted as confirming the conclusion "-eached. The language used in Hecht V. Dettman was, however, employed to distinguish that case from Downard v. Groff, 40 Iowa. 597. holding that the right to grow- ing crops passes to the purchaser at a judicial sale. Downard v. Groff followed the general current of authority, and recognized that Cas- silly V. Rhodes. 12 Ohio. 8S, was opposed to tiie conclusion reached, .stating truly that Cas- silly V. Rhodes was based upon a construction of the Ohio appraisement law. Foss v. Marr was based upon the doctrine of Cassilly v. Rhodes, our appraisement law being similar to that of Ohio, and the reasons given by the Ohio court for departing from the general rule, because of the effect of the appraisement law, being deemed sound and applicable to this state. The court did not. in Foss v. Marr. undertake to decide that growing crops do pass to the purchaser. On the contrarj-. in the last paragraph of the opinion it is ex- pressly stated that that question was neither presented nor decided. Cassilly v. Rhodes was a case where the crop involved was one which had not matured, and the language of the opinion refers to it throughout as a grow- ing crop. The reason of the decision was that the value of the annual crops is not in- cluded in the appraisement made prior to the sale, and that the vendor's rights therein can be saved only by regarding such crops as per- sonalty requiring a separate levy. This rea- soning, which is approved in Foss v. Marr. is equally applicable to a growing crop as to one matured. In Houts v. Shawalter. 10 Ohio' St 125. Cassilly v. Rhodes was reaffirmed, and the crop there in controversy was also a grow- ing crop. Ir will be remembered that Monday, after- he obtained title to the land, did not enter into possession thereof, but suffered O'Neil to ' remain in possession, merely notifying him that Monday would expect either rent or a portion of the crop; that is, he treated O'Neil as his tenant, demanding rent either in money or in kind. O'Neil's conduct is not sufficient- ly disclosed to establish whether or not there was an attornment by him to Monday. As- simiing that there was not, It would seem that he was holding adversely; and, if so, it is I not apparent how Monday could obtain the I crop. If he were not holding adversely, then EMBLEMENTS. liis relationship to Monday would seem to be that of a tenant at will. At the common law, when a tenancy is uncertain, so that the tien- ant cannot know that his estate will termi- nate before the crop can ripen, the tenant is entitled to re-enter and harvest the crop at maturity. This is the law in this state. Sorn- berger v. Berggren, 20 Neb. 399, 30 N. W. 413; McKean v. Smoyer, 37 Neb. G94, 56 N. W. 492. Under this principle, it would seem clear that O'Neil was entitled to the crop. In opposition to this view, it is argued that the foreclosure suit had been begun, and, in- deed, a decree of foreclosure rendered, before the crop was planted, but we do not think this fact material. O'Neil knew, of course, that a sale might be made and confirmed be- fore his crop would mature, but he could not know that such would be the case. We do not think that he was obliged to abandon the land, or permit it to lie uncultivated, merely because there was a possibiliiy or a probabil- ity that his estate would be determined be- fore the crop would mature. Public policy requires that the law should be so construed as to encourage, rather than discourage, the tillage of lands under such circumstances. The language of the supreme court of Ohio in Houts v. Shawalter, supra, is peculiarly ap- plicable: "Under our system, frequent ad- vertisements and offers of sale, and, occasion- ally, revaluations, are necessary, before a sale can be effected. When an appraisement is made, it cannot be foreseen when a sale will be effected. It is not for the interest of any party, nor for the public interest, that the land should thenceforth lie waste. Then there may have been no crop sown or plant- ed, but, when the sale comes to be made, there may be growing crops put into the ground in the meantime." This language was used with reference to the period between ap- praisement and sale, but it applies with all the more force to the period between decree and sale. We are not determining in this case what the rights of the parties would be had Monday secured possession and evicted O'Neil before the crop matiu'ed. What we hold is that, following the reasoning in Cas.sil- ly V. Rhodes and Foss v. Marr, the tenant should be protected in his crop, unless before it is matured something happens to deprive him of the right thereto, and that, therefore, where the purchaser permits the tenant to remain in possession until the crop is har- vested, the title thereto remains in the ten- ant, and does not pass to the purchaser. We have referred to O'Neil as the tenant, but what has been said is applicable to the mort- gagor himself. We have treated O'Neil as if he were himself the mortgagor, because, without inquiry as to whether he would oth- erwise have any higher rights, having been made a defendant in the foreclosure suit, a decree having there been rendered barring his estate, it is clear that in this proceeding he stands in no better position than had he been the mortgagor instead of the mortga- gor's tenant. Under the view of the law above presented, the plaintiff was not, under the stipulation, entitled to recover, and the peremptory' instnactlon given by the trial comt was con-ect. Judgment affirmed. Set Samsou v. Rose, 65 N. Y. 411. CHATTELS REAL. RICHARDS V. KNIGHT. (42 N. W. 584, 78 Iowa, 69.) Supreme Court of Iowa. June 3, 1889. Appeal from district court. Carroll county; J. H. ^L^coMBKu, Judge. This is an action of replevin for a quantity of corn. There was a trial by jury, an>l a ver- dict and judgment for the defendant, flain- tifif appeals. John Brown and F. M. Powers, for appel- lant. Macoinber & iSon, for appellee. ROTUROCK, .T. 1. It appears from the pleadings and evidence that tlie corn in ques- tion was raised upon certain land in Carroll county, in the year 1887. The land at one time belonged to one Trull, who mortgaged it to Jennie C. Richards, the plaintiff herein, to secure the payment of a debt. An action of foreclosure was had, and the laud was sold to the plaintiff upon foreclosure, and a slier- iff's deed was made and delivered to her on the 23d day of August, 1887. In the spring of that year the defendant leased part of the land of Trull, and planted it in corn. The corn was cultivated by the defendant, and on the 9th day of Octciber, 1887, the plaintiff commenced this action, in which she claimed I that the corn was her property, because the ownership thereof passed to her with tlie title lo the land at the date of the conveyance to her on the said 23d day of August. It was held in Hecht v. Dettman, 56 Iowa. 67:', 7 X. W. Rep. 495, 10 X. W. Rep. 241. that, as be- tween the purcluiser of land at a foreclosure sale and a tenant of the mortg.igor, the atter is entitled to crops grown by him which are matured at the time the sheriffs deed is ex- i ecuted, though not yet severed from the 1 n I. This case was followed and approved in Everingiiam v. Braden, 58 Iowa, 133, 12 X. W. Rep. 142, and it was therein further held that the tenant's title to the crop was not af- fected by the foreclosure until the e.xeciition and delivery of the sheriffs deed, although the purciiaser at the sheriff's sale was en- titled to the deed before it was actually made. The question presented to the jury for its determination in this case was whether the corn in controversy was matured on the 23d day of August. 1887. On this question farmers who had seen tiie corn were called as witnesses from all the country round, and there was a well-defined conflict in their tes- timony on the question. It is unnecessary lo repeat the evidence here. It is sutticient to say that the jury was warranted in linding tliat the corn was planted in April; tliat it was a remarkably early season; and that at the time named it was fully matured, and no longer demanded nurture from the soil. 2. In the course of the examination of the witnesses, objections were made to certain questions, and answers thereto, and rulings made upon the objections by tiie court of which the plaintiff complains. One witness was asked this question: "Don't farmers . consider corn mature when it is fit to cut up?" Another was asked: "You may state to the jury wliether or not you corisider the corn mature at that time." Objections to these questions were overruled. We do not think it necessary to set out the numerous other objections which were made. We have given these iis a sample for the purpose of showing tliat they were all without prejudice to the appellant. The argument upon the two objections above cited is that the ques- tion was, not what was considered by farm- ers, but what tlie fact was as to the maturity of the crop. It is apparent that there should be no reversal on account of these rulings. The use of the word "consider" neither mis- led the jury nor the witnesses. In the con- nection in which the word occurs in the questions it is used as synonymous with "thought" or "believed," and is not objec- tionable. We discover no error in the con- duct of the trial, upon rulings as to the ad- mission and exclusion of evidence. 3. The corn in question was taken by the sheriff upon the writ of replevin. The plain- tiff filed an amendment to the petition, in which It was averred, in substance, that after the corn was taken by tlie orticer the defend- ant. Knight, consented that it be sold to one Armstrong for .S90, the price being 25 cents a bushel, and that there were 360 bushels, and that defendant is now estopped from as- serting that there were more than 360 bush- els, or that it was worth more than 25 cents per bushel. The plaintiff complains because the court did not instruct the jury upon the effect of this alleged agreement. There was no necessity for such instructions, and it would have been improper to have given them, because there was no evidence that the corn was sold to Armstrong by virtue of an agreement between the parties. The only evidence upon that question is that the sher- iff sold the corn to Armstrong at an under- estimate of the quantity, and that when Arm- strong ascertained that he had bought it for less, than it w;is worth he paid the defendant S25 as a gratuity. 4. The plaintiff requested the court to give to the jury tlie following instruction: "Where a tenant plants a crop wliich he knows he cannot reap before his landlord's rights cease and the equity of redemption expires, and the land passes to a sheriff's deed, he does so at his peril, and cannot be heard to com- plain." The instruction was refused, and plaintiff excepted, and assigns the ruling Jis error. It may be that this instruction is cor- rect, as an abstract proposition. But it \\i\s not erroneous to refuse to i^ive it to the jury. There is no evidence that the defendant knew tliat the plaintiff would take her deed before the crop matured, and whether she did so was the very question submitted to the jury. It was conceded all through the trial, and the court instructed the jury, that, if the crop was not matured when the deed was deliv- ered, the plaintiff was the owner, and enti- tled to a verdict. EMBLEMENTS. 5. One ground in the motion for new trial was the alleged misconduct of appellee's counsel in offering to introduce improper evidence to the jury, and in making the offer in the presence and hearing of the jury. It is claimed that the motion should have heen sustained on this ground. The showing made by appellee's counsel as to what oc- curred on tiie trial :s a complete exoneration from the charge of improper conduct, and the motion was rightfully overruled, so far as this ground is involved. 6. Appellant filed a motion to stiike ap- pellee's abstract and a supplement thereto from the files, because the abstract does not purport to be an abstract of all the evidence, nor does it purport to be an addition to ap- pellant's abstract, and because the supple- ment to the abstract was not filed within proper time. The motion will be overruled. The appellant was in no manner prejudiced by the failure to file the supplemental ab- stract in proper time. It was merely a cor- rection of appellee's abstract in the respects in which appellant claims it was deficient. Upon a full ccn-ideration of tlie wliule rec- ord, we discover no good reason for disturb- ing tiie judguient. Affirmed. 10 CHATTELS HEAL. KirLIXGER T. GREEN. (28 N. W. 121, 61 Mich. 340.) Supreme Court of Michigan. May 6. 1886. Error to Eaton. Van Zile & Fox. for appellant. Huggett & Smith, for appellee. MORSE. J. The plaintiff in this action, on the fifteenth day of September. ISSo. entered into the following agreement with the defend- ant: "This agreement, made and entered in- to this fifteenth day of September. 1883. be- tween Alonzo Green, of the city of Charlotte, toiinty of Eaton, and state of Michigan, of the first part, and Jonas Kiplinger. of the sec- ond part, wituesseth, that said second party hereby agrees to move onto and cultivate and farm the said first party's farm, where he now resides, lying in the town of Eaton, and city of Charlotte, in said county, for the term of five veal's and five months from the first day of November, 1883. on the following terms, viz.: Said second party is to do. or cause to be done, all the work, finnish all the teams and implements necessary in so farming the premises, and is to furnish one-half of all the seed to be sowed or planted: and deliver one- half of all grain raised on said farm to said tirst party, in the granary on said farm, and oiie-half of the potatoes and vegetables that shall be raised, after they are dug, on said farm, as said first party may direct. Said first party is to furnish one-half of the seed for all such crops. Said first party is also to have one-half of all the hay. straw, and corn- stalks, after they are properly cut and secured by said second party, as the first party may direct. Each party is to have one-half of the apples, and pick or gather the same. Said first party is to have all the cherries and grapes he wishis. that may grow on said farm. Each party is to have one-half of the pasture, also to furnish an equal amount of poultry, and .share equally in its products. Said sec- ond party is to have a good garden, and divide the same as the other products of the farm. Said second party is to pay all the highway taxes on said farm, and is to keep in repair all the fences, and make such new fences as may be necessary on said farm, said first party furnishing the materials to repair and make the same: also to keep in repair all buildings occupied by him. and the wind-mill on said farm: and to have the use of all the dwelling-house on said farm, except the cham- bers, hall, and parlor of the upright brick house, which shall be exclusively said first party's; also such portions of the cellar as he may desire to use. Said second party is also to use what barn room, stabling, and granary that is necessary to accommodate his farming work. All horses and other stock belonging wholly to said second party is to be fed from said second party's share of the products of said farm, or that which he may purchase. All sheep or other stock or poultry owned by both parties shall be taken care of by said second party, and fed from the products be- longing to both paities. Said second party is to milk the cow or cows of said first party, and let him have aU the milk he wants to use for his family, and the rest to make into but- ter for said first party's family use. Said sec- ond party is to have all the tire-wood neces- sary for his use. from said farm, and from the 80 acres, in the town of Carmel. belonging to said first party, as he. said first party, may direct. Such pieces of land as are now let on said farm to other persons are excepted imtil their lease expires, and then s^iid second party is to farm such pieces. Said second party is to feed and care for the undivided sheep and cows of said first party, the coming winter, from the hay and other feed owned by said first party. It is expressly under- stood and agreed that said first party is to remain in fuU possession, and have fuU con- trol, of said farm, and all that pertains to it. and have full directions as to how all and what crops shall be raised on it by said second party. All of SJiid farming shall be done in a good, thorough, workman-like manner by said second party. Upon the non-performance of any of the above specifications this agreement shall immediately become null and void. Both of said parties hereby agree to all of the above mentioned specifications. Alonzo Green. Jo- nas Kiplinger." Under this agreement the plaintiff moved upon the farm about the twen- ty-third day of October, 18S3. and the follow- ing summer put in a crop of wheat. In Sep- tember, 1884. he served the following notice upon the defendant: "Charlotte. Mich., Sep- tember 30. 1884. Mr. Alonzo Green. Esq. — Dear Sir: You are hereby notified, and duly informed, that I shall vacate the premises and farm on which I now reside, the same belong- ing to you, on the first day of April, A. D. 188.3. for the following reasons: (1) Owing to the unreasonableness of the contract framed by you, which I now find, and am aware, is contrary to all farming customs of the county and vicinity. (2) On account of the deception and fraud practiced by you in framing said contract, material parts of which you failed to read to me. and which I was not aware it contained. Yours. Jonas Kiplinger,"— and moved off from the premises the second day of April, 1885. He testified that after the service of the notice he spoke to the defendant once, and told him that if he would give him a better chance than he had imder the con- tract he would stay on, but gave him to under- stand that he would not stay there unless bet- ter terms were given him. The defendant let a portion of the premises to another tenant, who moved upon the same the day before the plaintiff left. The plaintiff testified, however, that he left the place in pursuance of the in- tention manifested in his notice, and because he found he could not stand the bargain con- tained in the contract. The plaintiff under- took to harvest the wheat put in by him the EMBLEMENTS. 11 summer before, but was prevented from doing so by the defendant, who gathered the same. He made a written demand upon the defend- ant for. it, and brought replevin. Upon the conclusion of the plaintiff's case, showing these facts, the counsel for the defendant, upon the trial, moved to strike out the evi- dence introduced in plaintiff's behalf as in- sufficient to warrant a recovery, which the court did. and thereupon directed the jury to find a verdict for defendant. The plaintiff's counsel contends that this was error, and that upon the facts shown the plaintiff' was entitled to recover for one-half the wheat; that the agreement between the parties was not a lease, but a contract to crop the land on shares; that the relation of landlord and tenant did not exist; that the parties were tenants in common in the wheat; and by the action of the defendant in cutting and threshing the same, and refusing to ac- count for any of it to plaintiff, he was guilty of a conversion of plaintiff's share, for which plaintiff was entitled to bring replevin. He insists that the abandonment of the contract and the farm cuts no figure in the case, as plaintiff's interest in the crop vested as soon as the same was sown; that it became per- sonal property, and he might have sold his share before he left the place, and the pur- chaser obtained a valid title thereto. AVe find no error in the action of the circuit court. It can make no difference in the law applicable to the facts in this case what was the particular name or nature of the plaintiff's holding under this agreement. His rights must be gathered from the contract, and con- sidered in relation to its terms. Whether it be called a lease or a mere cropping agree- ment, its construction and its eft'ect. as far as the plaintiff's claim to this crop of wheat is concerned, must be the same. He went upon the farm and put in the wheat under and bj' virtue of this instrument, and whatever rights he can legally claim must accrue from and rest upon its provisions; and his counsel up- on the trial in the court below expressly stat- ed that he based his right to recover upon the contract, and his acts under it. When he voluntarily abandoned the farm, and for- feited the contract under his notice, he could no longer claim any rights under it. He ad- mits that, after serving the notice, he did nothing upon the farm except to care for the stock upon it. There is no theory of the law under which the plaintiff" could recover one- half of this crop under a contract which he had, upon his own motion, repudiated. If so, he might have abandoned the farm, and thrown up the contract the next day after the wheat was sown, and held his share. If, be- fore his surrender of the agreement and the possession of the farm under it, he had sold his share of the crop to another, purchasing in good faith, such assignee of his interest would have been entitled to reap and hai-vest the wheat under tliis agreement, because of equities which the plaintiff cannot assert after his rescission of the contract, the crop being considered while the agreement is in force as personal property, subject to sale or levy as such. But when the plaintiff abandoned the premises, and surrendered the contract, the wheat became a part of the land, and went with it. Chandler v. Thurston, 10 Pick. 20.".; Caiiienter v. Jones, 03 111. 517. The doctrine of emblements does not appl.v. The term of the plaintiff's occiipancy of the premises was certain and definite under the contract. It was noi determined by the act of the defendant, nor by any other cause than the violation by the plaintiff of the agree- ment under which he held. He cannot profit by his own wrong. The judgment of the court below is affirmed, with costs. (The other justices concurred.) See Dorsett v. Gray. 98 lud. 273. 12 CHATTELS REAL. CARNEY V. MOSHER et al. (56 N. W. 935. 97 Mich. 554.) Supreme Court of Michigan. Nov. 24, 1893. Error to circuit court, Hillsdale county; Vic- tor H. Lane, Judge. Action of trover by Darwin H. Carney against Orrin B. Mosher. Thomas J. Lowry, Lucien Walworth, and Henry S. Walworth, for the conversion of certain wheat. There was a judgment entered on the verdict of a jury directed by the court in favor of de- fendants, and plaintiff brings error. Af- firmed. Geo. A. Knickerbocker and Wm. C. Chad- wick, for appellant. C. A. Shepard and St. John & Lyon, for appellees. MONTGOMERY, J. Tlie plaintiff brought trover for wheat grown upon laud owned by defendant Orrin B. Mosher. The wheat was sown by Alvin L. Masher while occu- pying the land as the tenant of Orrin B. The wheat was harvested bj- defendant Mosher, and sold to defendant Henry S. Walworth, who, it is claimed, had notice of plaintiff's rights. Prior to the spring of 1S90. Alvin L. Mosher had occupied the land under a written lease, and in the spring of that year renewed his lease for one year by oral agree- ment. There had been a previous lease, and, as the testimony of pLvintiff shows, on the occasion of the present letting, Alvin re- fused to pay the rent previously reserved, imless he should have the privilege of put- ting the land all into wheat, and it was agreed that he might do so. He proceed- ed to sow the land to wheat, and in January. 1891, sold the growing crop to plaintiff. In the spring, Alvin surrendered possession to Orrin B., who proceeded to reap the crop, after notice of plaintiff's purchase. The cir- cuit judge directed a verdict for defendants on the ground that the lease was oral, and that the implied provision that the lessee should have the right to reap the crop of wheat was void, imder the statute of frauds. The defendants contend that this holding should be sustained: and, further, as it ap- pears that the rent was not paid during the year, nor since, that the lessee had no right to the crop, and that a purchaser would have no greater right than he; and, further, that if it be conceded that the purchaser of the crop of a tenant would not, in general, be af- fected by a subsequent default of the ten- ant, the present case is an exception to the iTile, for the reason, as it is contended, that the transfer from Alvin Mosher to plaintiff was for the purpose of defrauding the de- fendant Orrin B. out of the rent. It is. how- ever, a sufficient answer to this last conten- tion that the fraud is not admitted, nor to be deduced as a legal consequence from con- ceded facts. It would therefore be a ques- tion for the jury, by the express terms of the statute. Section 620G, How. St If it be assumed that the tenant was in possession by right, and under a lease which gave him the right to reap the crop, as well as to sow, it follows that inasmuch as he sold the crop before any default on his part, so far as appears, and certainly before for- feiture, the purchaser from him obtained a title which could not be defeated by the lessee's subsequent default This is the rule established in this sttte by Nye v. Patter- son. 35 Mich. 413. and Miller v. Havens. 51 Mich. 482, 1(3 N. W. Rep. 865. See, also, Dayton v. Vandoozer, 39 Mich. 749. The question for our determination, therefore, is the one upon which the case was decided below, namely, did the parol lease for one year, with the agreement that the tenant might sow the land to wheat, give him a ! right to enter after the expiration of his I lease, and reap the crop? On the part of [ the defendants, it is contended that the right I claimed is in the nature of an interest in j land, and that to sustain the right to reap ; the crop would be. in eft'ect extending the i lease into the second year, and that said con- . tract is therefore void, under the statute of ! frauds. On the other hand, it is contendetl ! that the lease terminated, according to its terms, at the end of one year, and that the right to enter in and re.ip the crop is one growing out of the nature of the previous lease, which has expired. It is very evident that whatever the right to enter and reap the crop be called, it was a right which could not be exercised within one year. We think it is equally evident that it was an interest in land. The exclusive use of the land was required during three months after the end of a year from the letting, before the crop would ripen. That this was a burden upon the estate in the land is too plain for argu- ment It was held to be an interest in the land in Reeder v. Sayre. 70 N. Y. 183. In the present case, the lessee was in possession at the time of entering into the contract, and continued in possession imder the-void lease. This constituted him a tenant at will, imder our holdings. See Huyser v. Chase. 13 Mich. 98. The tenancy could be terminated by ei- ther party on three months' notice to quit. The tenant did not wait for this, but left the premises in January or February. 1891. He paid no rent The owner thereupon took possession, as he had a right to do, and as he could, but for the lessee's peaceable sur- render, have done by a noMee to quit. If it be suggested that treating the lease as void, under the statute of frauds, the ten- ant should, because of his previous relations, be treated as a tenant from year to year, ho stands in no better situation, for the year would be terminatt^l. und;T such holding, March 31, 1801. giving the owner the right to possession thereafter, and the right to reap the crop. The judgment will be affirm- ed, with costs. The other justices concurred. FJXTUKES. 13 MICHIGAN MUT. LIFE INS. CO. v. CRONK. (52 N. W. 10.35, 93 Mich. 49.) Supreme Court of Michigan. July 28, 1892. Error to circuit court, St. Clair county; Ar- thur L. Canfield, Judge. Replevin by the Michigan Mutual Life In- surance Company against Edward Cronlv. Judgment for plaintiff, and defendant brings error. Affirmed Frank Whipple, for appellant. Phillips & Jenks, for appellee. MONTGOMERY, J. The defendant, on the 18th day of June, 1887, contracted in writ- ing to purchase of one William L. Jenlcs the N. W. 1/4 of the S. W. % of section 19, town- ship 7 N., range 16 E. The contract was in the usual printed form, and contained a cov- enant on the part of the defendant that he would not commit, or suffer any other person to commit, any waste or damage to said lands or buildings, except for firewood or other- wise, for home use, while clearing off the lands in the ordinary manner. Immediately after entering upon the lands he erected a small dwelling house thereon, and lived in it for two years. He then made default in his payments, and the plaintiff, to whom tlie contract had in the mean time been assign- ed by Jenks, terminated the contract, and re- (luired the defendant to surrender possession. The house was a one-story frame house, 20 by 2G, and suitable for the purposes of a dwell- ing house to be used upon the land in ques- tion. After tne removal of the liouse fi'om the premises, it was placed upon a 40 across the street, and plaintiff, after demand, brought replevin. The circuit judge directed a verdict for the plaintiff, and the defendant appeals. Two questions only are presented in ap- pellant's brief. It is first claimed that re- plevin will not lie, because the house had become a fixture upon tlie land to which it was moved, and was therefore real estate; second, that, as the house was occupied as a homestead by the defendant and his family, the wife was a necessary party. We think that when this house was erected upon the land held under contract it became a part of the realty, and as such the property of the owner of the land, subject only to the riglits of the purchaser therein. Kingsley v. Mc- Farland (Me.) 19 AU. 442; Milton v. Colby, 5 Mete. (Mass.) 7S; Iron Co. v. Black, 70 Me. 473; Tyler, Fixt. 78. It being severed from the land, it became personal propertj', and replevin would lie unless it became affixed to the realty by the tortious act of the de- fendant in removing it and placing it upon other lands. But we think no sucli legal ef- fect can be given to the defendant's wrong. The house was moved upon laud of a third party. There was no privity of title between the ownership of the liouse and the owner- ship of the land to which it was removed. The cases cited by defendant of MoiTisou v. Berry, 42 Mich. 389, 4 N. W. 731, and Wagar v. Briscoe, 38 Mich. 587, do not apply. The house remaining personal property in the wrongful possession of defendant, it follows that no hoinesread right, wliicli consists in an interest in lauds, attaclied. The judgment is affirmed, with costs. The other justices concurred. 14 CHATTELS REAL. SMITH V. BLAKE. (55 X. W. 978. 96 Mich. 542.) Snpremp Court of Miehigran. July 2G. 1893. Appeal from circuit court, Cheboygan county, in chancery; C. J. Pailthorp, Judge. Action by Sarah I. Smith against Henry A. Blake to enjoin the removal of certain ni.-ichinery from a foundry of which plain- tiff is the mortgagee and purchaser at fore- closure sale. From a decree for plaintiff, defendant appeals. Affirmed. George E. Frost, (Oscar ' lams, of coun- sel,) for appellant. Henry W. :MacArthur, (George W. Bell, of counsel,) for appellee. HOOKER, C. J. Complainant is the owner of a mortgage upon certain premises in the city of Cheboygan, used as a foundiy, ma- chine shop, and blacksmith shop. This mort- gage was made Decombei* 14, 1882, for $2,(X)0, with interest at 8 per cent., and was foreclosed by advertisement, the premises being bid in for $2,4(i2.«l by the complain- ant, who (the bill states) will become en- titled to a sheriffs deed upon July 3, 1892, at wliieh time her investment will amount to !?2,. 594.82. The bill is tiled to restrain the defendant from removing certain machinery upon the premises, viz.: One iron planer; one upright power drill; one shaper; three iron lathes; one wood lathe; one upright engine; one horizontal boiler; one band saw and frame; one rip saw and frame; one foundry cupola furnace and blower; the belting, shafting, pulleys, and boxes neces- sary for the running and management of the above machinery. It is contended that the bill must be dis- ndssed iinder the demurrer clause in the aiiswer, for the following reasons, viz.: (1) The bill does not allege that the articles named are fixtures; (2) that it fails to show any claim of the property in controversy by the defendant, or threat of removal; (3) that no injunction can properly issue upon information and belief. Had a demurrer been filed, these objections would have been fatal. But the law does not favor the rais- ing of technical questions after hearing upon the merits, and will not permit the dismissal of a bill upon a demurrer clause in the answer unless the bill is fatally defective, and past remedv bv amendment. Barton v. Gray. 48 Mich. 164, 12 N. W. Rep. 30; Bauman V. Bean, 57 Mich. 1. 23 N. W. Rep. 451; Lamb v. Jeffrey, 41 Mich. 720. 3 N. W. Rep. 204. The bill impliedly states that these articles are part of the realty. When we read this sixth clause in the light of the whole bill, no other inference can be drawn. The failure to allege threats could have been tlie subject of amendment in the couit below, and probably would have been had any one considered it necessary. Threats were not even pi-oved, but, as defendant's answer claimed this property to be person- alty, not covered by the mortgage, and this question was all that was htigated, we may consider the intention to remove admitted. This brings us to the merits of the case. The proof shows that all of these articles were placed in a building erectetl many years ago for a foundry and mac^hine shop by the o\\Tier of both, and, while some of the machines were not fastened to the soil or building, they were heavy, and it was unnecessary. All were adapted to the busi- ness for which the building was erected. Furthermore, the preponderance of the proof shows that the parties understood that this property was to be covered by the mortgage. We think the decision of the circuit court in holding that the mortgage covered these articles was in accord with tlie Michigan authorities. A point is made that an injunction can- not pi'operly be granted when the bill fails to allege the reqiusite facts upon the oath of the complainant. That is tiiie where the injunction sought is preliminary, but we see no reason why relief by injunction cannot be based upon proof presented upon the hearing. In this case, while the injunction should not have been allowed, it was per- mitted to stand until the hearing, and, "suffi- cient equity appearing," it should be per- petuated. Clark V. Young, 2 B. Mon. 57. The record may be remanded, with direc- tions that complainant be allowed to amend her bill, whereupon the decree may stand affirmed. Complainant will recover costs of both courts. The other justices contnirred. FIXTURES. 15 ALDINE MANUF'G CO. v. BARNARD. (48 N. W. 280, 84 Mich. 632.) Supreme Court of Michigan. Feb. 27, 1891. Appeal from circuit court, Kent county; William E. Grove, Judge. M. H. Wallier, for appellant. More &, Wil- son, for appellee. LONG, J. This cause was tried in the Kent circuit court without a jury, and the court found the following facts and conclu- sions of law: "First. On the 21st day of October, A. D. 1887, plaintiff sold to defendant a bill of Al- dine gmtes, mantels, and hearths, to be placed in a blocli of tenement-houses, owned by de- fendant in the city of Grand Rapids. This bill of goods includes three No. 18 grates. No time was given or aslied on said bill, and on November 1, 1S87, defendant paid one hun- dred dollars by check generally upon said bill, and it was so applied. "Second. In Februaiy, 18^9, plaintiff brought suit in assumpsit against defendant in jus- tice's court, to recover the balance due on the bill, and declareti on the common counts only, filing the following bill of particulars as its only claim: Grand Rapids, Mich.. February 27th, 1889. Bertram W. Barnard in account with Aldine Manufacturing Company. 1887. Oct. 21. To .3 No. 18 Aldine fire- ^ places I To 1 No. 22 Aldine fire- place To 4 mantels To 4 tile hearths To 11 hours springing arch- $200 To sand 2.50; cement $1. .. To % barrel calc. plaster. . To tire .clay To four hours tearing put Bissel grate from house. To mason and tender set- ting No. 22 grate in house 5 00 5 00 1 10 20 2 00 4 00 1S87. $214 05 Nov. 1st. By cash KM) 00 To 1 yr. 4 months Inst, at G p. c $114 0.". 9 12 Balance .^123 17 "This suit resulted in a judgment of no cause of action, and an appeal was taken from such judgment to the circuit court for the county of Kent. Said cause came on for trial on the 8th day of .Tune, 1889, before me and a jury. A copy of defendant's plea and notice under the plea in said cause is liereto attached marked 'Exhibit A.' On the trial of said cause defendant testihed he had paid in full for said bill of goods, except said 3 No. 18 grates. It was admitted by plain- tiff that if the jury should find that on the sale of said grates plaintiff warrautt^i them as claimed by defendant in his testimony, plaintiff could not recover for said 3 No. 18 grates, plaintiff then and there admitted that said grates would not fulfill the warranty as claimed by the defendant, and, upon said ad- mission being made by plaintiff, the court ruled that the evidence should be confined to the question of whether the warranty testi- fied to by defendant was in fact made; and the defendant, having tendered .'P18.02 as the amount admitted to be due, he coidd not re- cover any judgment for damages against plaintiff under his plea of recoupment. De- fendant thereafter testified that before the commencement of suit he had ordered plain- tiff to remove said grates for the reason that . We find no error in the record. The judg- ment must be aflirmed. with costs. The other justices concurred. See Conrad v. Mining Co., 54 Mich. 249, .20 ! N. W. 39. FIXTURES. 19 MANWARING v. JENISOX. (27 N. W. 899, 61 Mich. 117.) Supreme Court of Michigan. Ai)ril 29, 18SG. Error to Kent. Godwin & Earle, for plaintiff. J. C. Fitz Gerald, for defendant and appellant. MORSP:, J. The plaintiff brought suit against the defendant, declaring in two counts, — one in trover for the conversion of two steam-boilers, one smoke-stack, one steam-engine, one stave-cutting machine, and one machine for dressing artd circling heading, and the other in trespass for tak- ing and carrying away the same property. The case was tried before the coin-t without a jury. The court found the facts to be, in substance, as follows: (1) On the twenty-eighth day of December, 1873, and for some years prior thereto, the firm of Haven, McKay & Co. were the owners of about two acres of land in the village of Grandville, Kent county, Michigan, on which they had erected a steam stave and heading mill, which they had run and oper- ated for some considerable time prior to that date. Said mill was always used ex- clusively in the business of manufacturing staves and heading. The mill building, when completed, cost about .$1,500. It was a stout frame, about 40 by 50 feet square, two stories high, inclosed, having a shingle roof, and was built for the express purpose of being used on said land as a stave and heading mill, and to have placed therein all the machinery hereinafter referred to. The building was well adapted to this use. Aft- er the removal of said machinerj-, and at the date of removal, the building was of little value, not exceeding $200. The busi- ness of running the mill had proved unprof- itable, and had been abandoned, Haven, Blake & Co. having failed in business. The Arm of Haven, McKay & Co., upon the com- pletion of said building, placed therein the following machinery, all of which was a part of the mill, and was necessary to con- stitute such mill, and to furnish it with steam power to operate, viz.: One steam- engine, weighing between five and six tons, resting upon a solid foundation of wood, brick, and stone laid in mortar, and was se- curely fastened; two steam-boilers, weigli- ing each about five tons, each resting upon a foundation laid in brick and mortar, and both arched over with brick laid in mortar, and they could not have been taken out without taking down some portion of the building, — that is, without removing the sid- ing from some portion of the building; one smoke-stack, connected and used with said boilers; one circle stave-cutting machine, weighing one and one-half tons; and one machine for dressing and circling heading, weighing about 800 pounds. Both these machines were secui-ely bolted down upon the floor by bolts running through the floor, and through timbers below the floor, and these securely fastened. The machines were connected with the main shaft by belts, and were operated by the power furnished by the engine. All this machinerj' was well adapted to the use the firm was putting it to. This entire machinery remained in the same position as when first placed in the mill until its removal, in March, 1880, as hereinafter stated. On the twenty-eighth day of Decembei-, 1873, the firm of Haven, Blake & Co., composed of John V. D. Haven, .Joseph Blake, Levi Day, and Dwight Ran- kin, purchased of said firm of Haven, Mc- Kay & Co., and the same was conveyed to them by deed, as real estate, said property, and they immediately took possession of the same, and operated and ran said mill until December, 1877. (2) While Haven, Blake & Co. so owned the property, and on .January 16, 1875, they procured the plaintiff and one Hiram Jeni- son to indorse their note for .$3,0O0. payable to the order of said William Manwaring and Hiram .Jenison. At its maturity this note, without going to protest, was renewed by the giving of a new note signed by Man- waring and Jenison, payable to the order of Haven, Blake & Co. This new note was re- newed from time to time until December 28, 1877, when Manwaring was compelled to and did pay the sum of $1,900 thereon. At the time of the making of the first note Haven, Blake & Co. gave to said Manwar- ing and .Jenison a chattel mortgage to save them harmless from loss for indorsing said note. Said mortgage was filed in the office of the clerk of the town of Wyoming, Janu- ary 15. 1875, that being the place of resi- dence of the mortgagors, and the property being also there situate. The chattel mort- gage covered the property in issue in this suit, and about 3(X) cords of stave and head- ing botts lying in the mill-yard. The ma- chinery is described in the mortgage as be- ing "now in use in this mill in Granville." (3) On the thirteenth day of January, 1876, said mortgage was renewed by the filing of the following affidavit: "County of Kent, Township of Wyoming— ss.: I, William Manwaring, one of the mort- gagees named in the mortgage given by Haven, Blake »fc Co. to Hiram .Jenison and William Manwaring. January 16, 1875, for the sum of three thousand dollars, do here- by certify that the sum of twelve hundred and seventy-five dollars is claimed by me to be due thereiipon at the date hereof, which sum constitutes the amount of inter- est of Hiram Jenison and William Manwar- ing in the property therein mentioned and described. Wm. Manwaring. "Subscribed and sworn to before me this thirteenth January, 1876. James A. Ivnowles, Notary Public, Kent Co., Mich." — And also renewed again February 21, 1877, by the filing of the affidavit given be- low, as follows: 20 CHATTELS REAL. "State of Michigan. County of Kent— ss.: Wm. ^Linwariug. the within luorrgatree. be- in? duly sworn, says that there is now due and unpaid on the said mortgajre hereunto annexed the sum of two thousand dollars by virtue of said mortfrage, and therein mentioned. Wm. Mauwaring. "Sworn to and subscribed before me this tifteenth day of February. 1S77. Wm. H. Galloway. Justice of the Peace." (4i The mill was closed up and stopped running, and the company became insolvent. The property in question remained in the mill, and on the thirtieth day of July. 1S77, Manwaring procured a constable to adver- tise and sell the same; and on July 30, 1877. said constable postetl his notice of sale, of which the following is a copy, which was the only notice given of said sale, to-wit: "Chattel Mortgage Sale. By virtue of a chattel mortgage now in my hands, I shall sell to the highest bidder, at the stave-mill, in the village of Grandville. Kent Co.. state of Michigan, on the eleventh day of August. 1S77. at one o'clock p. m., all the personal property herein described: Two steam-boil- er.s. one smoke-stack, one engine, one stave- cutting macliine, and one machine for dress- ing and circling heading, and ."50,000 staA-es, more or less. James Jewell, Constable. July 80, 1877." At the time and place named said Jewell appeared and sold the property at auction, pursuant to the terms of the chattel mortgage to William Manwaring, he being the highest bidder therefor. The property was bid in at the sum of ?L'74.90, and Manwaring received a memorandum of his purchase from Jew- ell. Previous to the sale the said Jewell seized the property under the chattel mort- gage by going into the mill, July 30. 1877. and announcing that he seized the property under the mortgage aforesaid. At the time of the sale the property was in view of the officer, but no part of it was detached from the mill, and the plaintiff did not then, nor at any other time, a+tempt to detach or re- move said property from the mill, or any part of it, and did not exercise, or attempt to exercise, any control over it, excepting that after his purchase he claimed to own the property and offered it for sale. (")) In the month of >[arch. 18S0. the de- fendant sold the property in question, which was still attached to the mill, for the sum of .$1,400 to one Adolph Leitelt. which sum was paid by said Leitelt to defendant, the said property being then worth .$1.4(V>. Said Leitelt removed the property to Grand Rap- ids, and used it in hi.s business. Nothing was done with it by defendant, except to sell it to Leitelt. Plaintiff never demanded it of defendant, nor in any manner attempt- ed to get possession of it. (0) The title to the property in question claimed by Luman Jenison at the time of his said sale was this, to-wit: The firm of L. & L. Jenison, composed of Luman and Lucius Jenison, were creditors of Haven, Blake & Co. for goods and supplies furnish- ed to said firm of Haven. Blake & Co. by said L. & L. Jeni-son. commencing on the twenty-ninth day of December, 1873, and continuing along from time to time up to the first day of October, 1875, at which time the amount of such indebtedness was over $1,700. On the twelfth day of June, 1876, the said firm of L. &: L. Jeni.son commenced a suit against the said firm of Haven. Blake & Co.. by attachment, to collect said indebted- ness, and on the date of the issuing of said writ the same was duly levied upon the two acres of land aforesaid upon which this mill was situated, and of which this machinery was a part. This suit was duly prosecuted to effect, and on the fourth day of November. 1876, a judgment was duly rendered in favor of the plaintiffs and against the defendant for the sum of $1.- 703.17, damages and costs to be taxed. Exe- cution was duly issued on this judgment November 4, 1876, and was duly levied upon said property on the eighteenth day of No- vember. 1876; and the said property was duly advertised and sold by the said sheriff as real estate, by virtue of said writ, on the twenty-eighth day of May, 1877, to the plain- tiff in said writ, for the sum of $900. the sheriff giving and causing to be filed the proper certificate of such sale; and subse- quently, and on the nineteenth day of Sep- tember. 1878, the property not being re- deemed, he executed and delivered to said purchaser a deed of said property in pur- suance of such sale. At this sale Manwar- ing was present, and gave notice of his claim to the property in question, and the Jenisons, Avhen they bought, knew of his claim. The defendants in said execution were the owners of said property at the time of the levy of the attachment, as well as at the levy of the execution aforesaid, and, from the time they purchased the same as aforesaid, they never sold or incuml>ered it in any manner, except by the chattel mortgage aforesaid. (7) The plaintiff never had any lien on the property in question in this suit, or title there- to, except such lien as he acquired by virtue of the chattel mortgage aforesaid, and such title as he acquired by virtue of the sale un- der the notice, and by said Jewell, as afore- said. The circuit judge further found, as a mat- ter of law, from the facts above stated, that the plaintiff was the owner of the propertj' at the tinie of the sale and conversion of the same by the defendant, and that it was worth $1,400; and rendered judgment for the plain- tiff in the sum of $1.81.").42. The defendant alleges that the facts found do not support the judgment, and brings en-or. It is claimed that the plaintiff acquired no propert)- in the goods and chattels in ques- tion here for several reasons: First. That F.XTUiiES. 21 the machinery in issue in this suit was real estate, and therefore not subject to chattel mortgage. Second. The first renewal of the mortgage was not in sufficient compliance with the statute, in that it does not state any amount as being owing or unpaid upon it The second renewal was not in time, not Ijeing filed until February 21, 1877. How. Ann. St. § 6106. Third. The mortgage being given as an indemnity against loss upon the note in- dorsed by plaintiff and Hiram .Jenison, and that note not being protested, but a new note given by the indorsers as maimers in its stead, the lien of the mortgage was lost. Bj^ the note not being protested, Mauwaring and Jen- ison were discharged from all liability there- on; and the paying of the new note by plain- tiff would not come under the terms of the mortgage. Fourth. The power of sale in the mortgage was to the mortgagees jointly, and not severally. Manwaring alone could not execute the power. Fifth. The sale was void because the notice thereof was insufficient in several particulars, to-wit: (a) It does not pretend to be by virtue of the mortgage; (b) it does not give the name of mortgagors or mortgagees, the date, or any other means by which the mortgage could be identified or found; (c) it does not claim to be done bs' or- der from or under any authority of the mort- gagees, or either of them. Sixth. Manwaring could not purchase at the sale, being only one of the mortgagees. Seventh. If the plaintiff claims the property as mortgagee instead of purchaser, then he cannot recover without joining the other mortgagee, Hiram Jenison. Eighth. There should have been a demand for the property before suit. There is no question as to the validity' of the attachment proceedings, and the title of the defendant is undisputed, save by the claim of the plaintiff under this chattel mortgage, and the sale by virtue of the power of sale contained therein. The first question involved is the character of the property in issue. The defendant claims that, at the time the cliattel mortgage was given, this macliinery was a part of tlie realtj-, and not subject to its lien, and that it remained a part of the realty until its sever- ance by Leitelt, and that the sale of the real estate, under the execution in the attachment proceedings, carried the title of this property to the defendant as purchaser at such execu- tion sale. There are many conflicting deci- sions in the boolis as to the dividing line be- tween realty and personalty in cases where machinery ha? been affixed to mills and oth- er buildings for use therein. A large number of cases hold that, if the article is attached for temporary use, with tlie intention of re- moving it, it does not lose its character as per- sonalty'; but if it is placed there for perma- nent improvement of the freehold, it becomes a part of the realty. Hellawell v. Eastwood, 6 Exch. 295, 312; Lancaster v. Eve, M E. C. L. 717; Crane v. Brigham. 11 N. J. Eq. 29; Walmsley v. Milne, 97 E. C. L. 114; Walk- er V. Sherman. 20 Wend. G3G; Potter v. Cromwell, 40 N. Y. 287. But most of the American authorities agree that the question of the intention of the party or parties affixing the machinery enters into' the elements ol each case. The permanency of the attach- ment, and its character in law, does not de- pend so much upon the degree of physical force with which the thing is attached, or the manner and means of its attachment, as up- on the motives and intention of the party in attaching it. If the intention is that the ar- ticles attached sliall not by annexation be- come a part of the freehold, as a general rule they will not. The exception is where the subject or mode of annexation is such as that the attributes of personal property- cannot be predicated of the thing in controversy (Ford V. Cobb, 20 N. Y. 344). as when the prop- erty cannot be removed without practically de- stroying it, or when it, or part of it, is essen- tial to the support of that to which it is at- tached (Tifft V. Horton, 53 N. Y. 377; Voor- hees V. McGinnis, 48 N. Y. 278; Winslow V. Insm-ance Co., 4 Mete. [Mass.] 306; Crane V. Brigham, 11 X. J. Eq. 29-35; McRea v. Bank, GG N. Y. 489; Sisson v. Hilibard, 75 X. Y. .542; Eaves v. Estes, 10 Kan. 314; T"^-ull V. Fuller, 28 Me. 548; Ballon v. Jones. 37 111. 95; Wade v. Johnston, 25 Ga. ?^M; Teaft" V. Hewitt, 1 Ohio St. 511, 530; Hill v. Went- worth, 28 Yt. 428, 436). In our own state it has been repeatedly held that the most important test in determining the character of the machinery affixed to a building is the intent of the parties making the annexation. Coleman v. Manufacturing Co., 38 Mich. 40; Crippen v. iSIorrisou, 13 Mich. 23; Adams v. Lee, 31 Mich. 440; Mc- Auliffe»v. Mann, 37 Mich. 539; Jones v. De- troit Chair Co., 38 Mich. 92; Robertson v. Corsett, 39 INIich. 777; IngersoU v. Barnes. 47 :\Iich. 104, 10 X. W. 127; Ferris v. Quimby, 41 Mich. 202. 2 X. W. 9. The nUe is con- cisely laid down in these words by Chief Jus- tice Campbell m Wheeler v. Bedell, 40 Mich. 690: "There is no miiversal test whereby the character of wliat is claimed to be a fix- ture can be determined in the abstract. Xei- ther the mode of an^>exation, nor the manner of use, is in all cases conclusive. It must usually depend on the express or implied un- derstanding of the parties concerned." The case of Wlieeler v. Bedell was a contest be- tween the holder of a real-estate mortgage up- on the land, which mortgage contained no ref- erence to the planing-machine, and the hold- er of a chattel mortgage upon the planer, as to the title of it. The planing-machine was in the building when the real-estate mortgage was given, and weighed about three tons, and was fastened *^o the floor at each end with cleats and two bolts, fi-om a part called the hanger, through the floor, aud was fastened to sticks under tlie joists, with nuts and screws. It was connected with the line shaft by belts. The chattel mortgage was given after the real-estate mortgage, and with notice of it. CHATTELS REAL The title was found to be in the holder of the chattel moitj:aj;e. In the case before us, the intention of Ha- ven, Blalie & Co., who put this machinery in the mill, is gathered only from the mode of annexation and manner of use of the machin- ery, and the subsequent acts of Haven, Blake & Co., who were their successors. The ma- chinery, save the engine and boilers, were fastened to the buildinj;- nearly identical with the i)lauiug-ma chine in Wheeler v. Bedell. Haven, Blake & Co. no doubt treated it all as persouiUty. and such was the understanding evidently between them and the plaintiff. They were then tl-ie owners of tlie real estate, and could have secured him upon the land if the intention had not been to treat the ma- chinery as personal chattels that could be re- moved at any time. There was nothing about this machinerj- that prevented its removal and use away from the building. The fact that the building was of but little value with- out the machineiy cuts no particular figure in the case, if the intention of the parties is to control, nor that the building was used for no other purpose than that of a stave and heading factory. Sisson v. Hibbard, 75 N. Y. 542. And the further fact that the en- gine and boiler could not be removed without removing the siding from some portion of the building is not controlling, and cannot affect the plaintiff's rights. The removal did not take away or remove tliat which was essential to rhe support of tlie building; neither did it destroy or injure the chattels themselves; nor was the injury to the walls or sides of the building shown to be great either in extent or amount. That tliey were susceptible of re- moval, and of use elsewhere, is shown by the findings, and defendant's own sale of them to Leitelt. Tlfft v. Horton. 53 X. Y. 384: Sis- son V. Hibbard, 75 N. Y. 544, 545; Crippen V. Morrison, 13 Mich. 31, 32. The finding that tliis machinery was bene- ficial and necessary to the use of the mill does not of necessity stamp it as i*ealty. Mills and factories are generally set up as entireties for the purpose of manufacturing; but, according to the current of modern deci- sions, as shown in Crippen v. Moi'rison, the ultimate purpose is disregarded, and the ma- chinery therein, including even the engine and boilers, may be treated and regarded as chat- tels, especiall.v where such is the intent of the parties interested; and if the articles are not expressly made for use in the particular mill, and not elsewhere, and equally capable of beneficial use, on being removed and set np, in some other building, they may be ei- ther real or personal property, according to the intent of tlie parties in each particular case. Robertson v. Cor.sett, 39 Mich. 783. The cases relied upon as supporting a con- trary doctrine in this state by the defendant's counsel are Lyle v. Palmer, 42 Mich. 316, 3 N. W. 922, and Morrison v. Beriy, 42 Mich. 389, 4 N. W. 731. In the case of Lyle v. Palmer the machinery in qftestion was de- scribed in and covered by the real-estate mort- gage, though it is stated that the parties sup- posed it to be personal. It was decided that Palmer, the trustee in bankruptcy of the mort- gagors, could not hold the machinery, even if it was considered to be personalty; but Jus- tice Cooley in liis opinion remarks that the machinery was specially adapted for "use in connection with the real estate; it was put up for use. and actually used with it, and was not severed from the rciilty in owner- ship;" and therefore concludes that the par- ties were mistaken in supposing it to be per- sonal property. But in a dissenting opinion in Morrison v. Berry, the same justice, on page 397, 42 Mich., and page 734, 4 N. W. 731. in discussing that case, says "that the question of fixture or no fixture depends upon the intention of th(! parties," and quotes ap- provingly the language of Chief Justice Camp- bell in Wheeler v. Bedell. The controlling opinion in Morrison v. Berry was placed upon the ground that the intention of both parties was explicit that the articles were to become a part of the freehold, and therefore does not aid the defendant's case here; and Justice Cooley dissented for the reason that the per- mission of the plaintiffs, the Berry Bros., that the things annexed should become a part of the freehold, was obtained by fraud, and that they had a right to withdi'aw their consent when the fraud was discovered and claim the property as personalty-, the same as if no con- sent had ever been given. In the case at bar there is no finding that this machinery was specially adapted or built for this particular building, but that it "was well adapted to the use the firm was putting it to" in the mill. It was just as well adapt- ed for use in any other mill for the same pur- poses. When we take into consideration the large number of mills temporarily erected all over the country for the manufacture of staves, heading, and other articles, while the timber may last in a particular section, and then the machineiy to be removed elsewhere to be put in another temporaiy structure for like uses; and the fact that this class of ma- chinery is manufactured for sale and use, without reference to any particular building, and to be employed in various mills until worn out or destroyed, — it would not be in harmony with the general method of doing business, nor desirable, to make any or all of the characteristics of tlie annexation or use of this macliinerj- in this mill the guide in de- termining whetlier it should be considered real or personal property, regardless of the inten- tion of the parties, nor do I think there is any fixed or conti'olling rule of law requiring such holding. The finding in regard to the value of the building without the machinery seems to be somewhat conflicting. It is stated, in one part of the finding, that the mill building, when completed, cost about $1,500, and in an- other that, at the date of the removal of the machinery, it was of little value, not exceed- FIXTURES. 2:3 ing: $200. It was probably never worth the ilem of its cost. It was no doubt built for the purpose of covering the machinery, and supporting it in position while in use. It might well be said, under the findings in this case, that the building itself was not placed upon the premises for the permanent improve- ment of the freehold, but for temporary use with the machinei-y while there was timber to be obtained in the vicinity for staves and heading. Such buildings or mills are not gen- erally designed to be permanent as are grist- mills and other manufacturing establishments that do not depend in their use upon the quan- tity of material for manufacture within easy reach, but which can be operated, if desired, as long as the community where they are located may exist. The purchaser under the execution sale did not intend to carry on a business in this mill, which had become un- profitable, and been abandoned by Haven, Blake & Co., presumably because its use had been unprofitable on account of the scarcity of material in the neighborhood. The defend- ant saw no value in this mill and machinery as real estate, but sold the articles in ques- tion here as personal property to one wish- ing and intending to use them elsewhere. When Haven. Blake & Co. mortgaged the property to Manwaring and Jenison, they could have made it personalty by the mere severance of it from the building. I think, when they so moi'tgaged this machinery, no other person's rights then intervening or be- ing affected by it, it was in law such a sever- ance as would make the articles, between them and the mortgagees, personal property. I do not suppose that it will be claimed that, in a controversy between the mortgagees and Haven, Blake & Co., the latter could dispute the lien of the mortgage upon the ground that the articles were not chattels, but part of the real estate. Corcoran v. Webster, ijO Wis. lL>.-i, G N. W. 513. The purchaser under the execution sale does not stand in the relation of a bona fide purchaser of the land without notice of the rights of the plain1:iff. He only took, by his levy, the same title his judgment debtors had. It gave him a lien upon all the right, title, and interest of Haven, Blake & Co., but upon no better title. The question of good faith as purchaser at the execution sale does not arise, as there can be no claim of estoppel against either Haven, Blake & Co. or the plaintiff. At the time of sale he was notified and knew of plaintiff's claim, and he acquired no new equities thereby. French v. De Bow, ■AH Mich. 708; Michigan Paneling M. & M. Co. V. Parsell, Id. 47.5; Bank v. McAllister, 46 Mich. 398, 9 N. W. 446; Drake v. [McLean, 47 Mich. 102, 10 N. W. 126; Sisson v. Hib- bard. 7-5 N. Y. 546. It must be conceded that in this state, as well as others, under many decisions, that if the mortgage in this case had been given be- fore these articles were put in the mill, their attachment, as they were affixed, would not have changed their character as chattels. Crippen v. Morrison, 13 Mich. 23; Ingersoll V. Barnes, 47 Mich. 104, 10 N. W. 127; Tifft V. Horton, 53 N. Y. 377; Voorhees v. McGin- nis, 48 N. Y. 278; Sisson v. Hibbard, 75 N. Y. 542. Therefore I see no reason why the annexation of these articles to this building, before the mortgage was executed, should prevent their being treated as personalty, when it is manifest that it is the intent of the parties, and not the annexation, that controls and fixes their status. As shown in Crippen V. Morrison, the placing of a chattel upon the soil, or by fixture to a building upon the Boil, never by necessity makes it a i^art of the realty where the chattel is yet separable, and capable of being removed by the owner. The cases cited by defendant's counsel from Mass- achusetts hold a different doctrine, for the reason "that the intention of the parties to change it to personal property is one which the law will not carry into effect." Richard- son V. Copelaud, G Gray, .538; Gibbs v. Estey, 15 Gray, 589; Pierce v. George, 108 Mass. 82. This, however, is not the law in this state. The first renewal of the mortgage was suffi- cient. It sets forth that $1,275 "constitutes the amount of interest of Hiram Jenison and William Manwaring in the property therein mentioned and described." It is in compli- ance with the statute. How. Ann. St. § 6196. The second affidavit was not filed in time, but was sufficient in form. The attachment levy under which the defendant claims was made June 12, 1876, and judgment obtained Novem- ber 4, 1876. The levy, by execution upon this judgment, was made November IS, 1876, and sale under such levj' took place May 28, 1877, at which sale the plaintiff was present, and gave notice to the builders of his claim under the mortgage. It will be seen that the mortgage was in force by virtue of the first renewal, when both the attachment and ex- ecution levies were made; and, when the sale was made, the second renewal had been in force under the exception to the statute for over three months. The exception to the stat- ute reads as follows: "Provided that, such affidavit being made and filed before any pur- chase of such mortgaged property shall be made, or other mortgage receiveti, or lien ob- tained thereon in good faith, shall be as valid to continue in effect stich mortgage as if the same were made and filed within the period as above provided." How. Ann. St. §§ 611M5, 6197. When the defendant acquired his attach- ment and execution lien, the mortgage was valid, and he had constrtictive notice of plain- tiff's rights tmder tlie same; and also, wlien he ptircliased, he had both actual and con- structive notice. He must take his lien as it stood when he acquired it. He did not gain any element of good faith by the simple omis- sion of plaintiff" to file his affidavit in time. If the renewal had not been made before the sale, a different question might have arisen, but it is not necessary to discuss it here. The 24 CHATTELS IJEAL. defendant obtained his lien and made the pur- j chase at the sale while the mortgage was in force under the statute, and must bo held as concluded tliercby. The debt upon which he obtained judgment was not incurred during tlie month this mortgage^ was not renewed. Indeed, Ins claim was adjudicated and tixed by judgment while the mortgage was in force under the first renewal, which was in time and valid. When the note upon which Manwariug and Jenison were indorsers became due, it was not necessary that they should wait for the protest of the note in order to keep their in- dt'mnity mortgage alive. They had a right to pay the note by giving their own, as they did, and hold their security, as they did; and if, instead of renewing the old note, they saw lit to change the character of their liability to the holder of the paper, with the consent of Haven. Blake & Co., no one else hjis any reason to complain. It is claimed that Hiram Jenison had noth- ing to do with the sale, and that it was di- rected by Manwaring alone, who had no right, under the power of sale in the mortgage, to do so. The record does not show but that Jeni- fon acquiesced in all that Manwaring did. The finding is simply that Manwaring pro- cured the constable to advertise and sell the same. In the absence of any proof to the contrary, it would be presumed, we think, the advertisement and sale w:is made with Jeni- son's consent. At least, he does not complain of it. There is no doubt but Manwaring had a right to purchase the property at the sale. It was not necessary that he and Jenison should both be present and bid together, or that he should piu'chase the property in the names of both. There is no warrant in the statute for any such idea. How. Ann. St. § G200. The only remaining objection necessary to notice is the one that the notice of sale was insufiicient. The notice does not give the date of the mortgage, or its amount, or the names of either mortgagors or mortgagees, but describes the property, and there is no complaint that the notices, such as they were, were not sufficiently and properly posted as to time or places of posting. It does not ap- pear that any one was misled by this notice. There was but one mortgage upon the prop- erty, and that was on file in the proper office. Any one seeing the notice, and wishing to bid upon the property, could easily inform him- self as to the identity of the mortgage. Wasi the sale void because of the failin-e in the notice to describe the mortgage more accu- rately, and tlie omission therefrom of the names of the mortgagors and mortgagees? We think not. The power of sjile, in default of the payment by Haven, Blake & Co. of the note indorsed by Manwaring and Jenison, authoriz(>d the mortgagees "to sell at public auction, after the like notice as is required by law for constables' sales, the goods, chattels, and personal property" described in the mort- gage. The statute governing constables' sales on execution, in force at the time of the sale in question here, and in relation to the notice thereof, provided that the constable should "give public notice, by advertisement signed by himself, itnd put up at three public places in the city or township where the goods and chattels shall be taken, when and where they wiU be exposed for sale." Comp. Laws 1871, g 5414. The notice was required to be put up at least five days before the time appointed for the sale. Comp. Laws 1871, § 5415. Un- der this statute it was held in Perkins v. Spaulding, 2 Mich. 160, that the omission of the name of the defendant in execution would not vitiate a sale; and it was never considered necessary to insert the name of the plaintiff in execution. Cow. Treat. § 1620. The stat- ute has also, since then, received a legislative construction by the amendment of 1879, pre- scribing that the notice must contain the names of the parties to the suit. How. Ann. St. § 6980. Notices of foreclosure sale on chat- tel mortgages have also in other states been held valid, notwithstanding the defects point- ed out in the present notice. Jones, Chat. Mortg. § 795; Waite v. Dennison, 51 111. 319; McConnell v. Scott, 67 111. 274; Fitzpatrick v. Fitzpatrick, 6 R. I. 64. In Waite v. Denni- son the notice gave neither the date of the mortgage nor the names of the parties to it. It was not signed by any one, but stated in the body of the notice that the sale would be made by W. A. Butters & Co., without stat- ing in what capacity they were acting. It was shown aliunde that they were the agents of the mortgagee. While the power must be strictly pursued, it is only necessaiy that it be fairly executed. There is nothing to be gained by requiring, in a sale of this kind, any technicalities, the want of which has injured no one. The omissions complained of in this notice are mere irregularities. There is no showing in the record that the defendant lost anything thereby; and, if the strict letter of the ixiwer of sale was not complied with, there was no wrong to defendant. No one could complain but the mortgagors, and they seem to be con- tent. The plaintiff, as mortgagee, had a right to take possession of the property, and the defendant's act of selling and removing it Avas a conversion. McConnell v. Scott, 67 111. 277. The amount bid for the property by Manwaring cuts no figure in the case, because the amoimt of the mortgage debt, at the time of sale, was more than the vahie of the prop- erty. If a thous;ind bidders had attended the sale, and the rtn-ord is silent as to the attend- ance, and run the property up to its full value or more, it woiild not have been of any benefit to the defendant, as the mortgage debt in that event would have swallowed the prop- erty. There was no necessity for making any de- mand before suit. The defendant had full notice of plaintiff's claim, and was a tres- passer from the beginning. The judgment is affirmed, with costs. The other justices concurred. nXTUKES. 'J5 MERCHANTS' NAT. BANK OF CROOKS- TON V. STANTON et al. (56 N. W. 821, 55 Minn. 211.) Supreme Court of Minnesota. Nov. 13, 1893. Appeal from district court, Polk county; Ives, Judffe. Action by the Merchants' National Bank of Crookston against Robert Stanton, S. L. Dob- son, and others to foreclose a mortg-:ige. From a judgment for plaintiff, defendants Dobson and another appeal. Revei-sed in part. A. A. Miller, for appellants. John Cromb and A. C. Wilkinson, for respondent MITCHELL, J. The real issues in this ■case are some>\'hat obscured by the prolixity of the stipulated facts, ^adopted by the trial court as its findings,) which contain much that was unnecessaiy for the detei-mination of the case in the court below, and still more that is immaterial in the decision of any ques- tion involved in this appeal. The primary object of this action was to for(.x.'lose a mortgage, and the piincipal question in the case is whether a certain building and the machiueiT therein, situated on the mort- gaged premises, was, as between the plaintiff and defendants Dobson and Martin, the per- sonal property of the latter, or a part of the realty, and hence covered by plaintiff's mortgage. The short facts, so far as ma- terial to that question, are as follows: De- fendant Stanton executed to plaintiff the mortgage in suit on his own real estate to se- cui'e the joint debt of himself and defendant Dobson. Subsequently Dobson, ""with the knowledge and consent" of Stanton, erected and put on the mortgaged premises the build- ing and machinery referred to, at his own sole expense, and mainly with money loaned to him by defendant Martin, to Avhoui, as security for its repayment, he executed a biU of sale and chattel mortgage on the building and machinery. The building was a large, two-story frame stnicture designed for "an oatmeal mill," with a one-stoi'y brick addition for an engine and boiler room, in which were placed machinei-y suitable to manufacture oatmeal, and an engine and "boiler, pulleys and shafting, sulhcient to operate the same. This machineiy was of the kind usually put in oatmeal mills, and was placed in and attached to the building in the usual way, some of it being screwed to the floor of the building, and some of it bolted to framework which was fasti>ned to the floor, and some of it held in position by its own weight and all of it operated by shafting and belting, with power furnished by the engine and boiler. There is no doubt but that such a building and macliiuery woiild, in the absence of any agivement of the paiiies to the contraiy, become a part of the realty, and belong to the owner of the soil. Prima facie, aU buildings belong to the owner of the land on which they stand as part of the realty. It is only by virtue of some agreement with the owner of the land that buildings can be held by another party as personal property. If erected wrongfully, or without such agreement, they become the property of the owner of the soil. But it is entirely competent for the parties to agree that they shall remain the personal property of him who erects them, and such an agix?e- ment may be either express or implietl from the circumstances under which the buildings are erected. The trial court has made no direct or express finding as to whether there was any such agreement between Dobson and Stanton, and the question here is (first treating the case as if the controvei-sy was between them) whether the facts found es- tablish prima facie an implied agreement for si^parate ownership of the building and ma- chinery. The fact that Stanton had mort- gaged this property to sectire a debt owing by Dobson as well as himself has no bear- ing upon the question in hand. That fact would not render it to Dobson's interest to expend his own money for the benefit of the land. Neither does the fact that the building was erected with money furnLshe' making the annexation was that the thiuir annexed should not become part of the realty, the absence of a concm-rent agi"ee- loent to that effect on part of a prior mort- gagee will not, of itself, make the annexa- tion a part of the mortgage secm'ity. This would seem just, for, the annexation not having been made when he took his mort- gage, he has not been misled, or advanced ai.ything on the faith of it. and hence ought not to be permitted to avail himself of it as a part of his security, contrary to the intention of the party making the annexa- tion. Crippen v. Morrison, 13 Mich. 23; Davenport v. Shants, 43 Yt. 546. See, also, Tift V. Horton. 53 X. Y. 3S0. We are there- fore of opinion that, upon the facts presented by the record, plaintiff has no better or great- er right to these annexations than Stanton woiUd have. Certain questions arise as to the correct- ness of the directions of the com't as to the order in which the premises covered by the several mortgages of the parties should be sold, and as to the distribution of the pro- ceeds. As only Dobson and Martin appeal, their rights alone can be considered, and the rights of the other defendants are material only so far as they bear upon the rights of the appellants. The material facts are as follows: Dobson owned three tracts of land, which, for convenience, we will call tracts A. B, and C, a part of C being his homestead. He and his wife executed first a mortgage on A; second, a mortgage on both A and B; and, third, a mortgage on C, (including his homestead.) as additional security for the same debt securefl by the second mortgage. All of those mortgages are now held by the defendant Martin. Subsequently to the ex- ecution of these mortgages, Dobsou and wife conveyed these tracts by warranty deed in the following order of time: First, tract A to defendant Stanton, who then executed thereon to plaintiff the mortgage now being foreclosed; second, tract B to defendant Cunningham; third, all of tract C, except their homestead, to defendant Palmer. In this action the plaintiff asks for the fore- clostire both of its own mortgage and of the three Martin moi^gages. and that the lands covered by all of them be sold, and the pro- ceeds applied according to rights of the sev- eral parties. If seasonably objected to, per- haps aU of this could not be done in this action, but none of the defendants objected to it, and defendant Martin, in his answer, imites with plaintiff in asking that it be done. In its judgment, the trial court, after directing that all four mortgages be fore- closed, and all the property covered thereby be sold, further directed, among other things: First, that all of the proceeds of the sale of tracts B and C l>e applied on Martin's second and third mortgages (which may be treated as one, being secm-itj' for the same debt) before applying thereon any of the proceeds of tract A; second, that the several lots con- stituting tract C be sold separately, and that the lot constituting Dobson's homestead should only be sold in case the other prop- er tj- covered by the second and third mort- gages did not bring enough to satisfy the debt secm-e08, 92 Mich. 552.) Supreme Court of Michigan. July 28, 1892. Error to circuit court, Grand Traverse county; J. G. Ramsdell, Judge. Trover by AVaylaud W. Bartlett against Adaline A. Havihiud. From a judgment ren- dered on the verdict of a jury in favor of plaintiff, defendant brings error. Atiirmed. Pratt & Davis, for appellant. Dunham & Preston, for appellee. GRANT, J. This is an action of trover for the conversion of 1 shingle mill frame, 1 knot sawing machine and arbor, 7 small cir- cular saws. 200 feet of belting, 50 feet of shafting, 20 pulleys. 1 gemming machine com- plete, 1 shingle jointer complete, 1 wheel- barrow. 1 crowbar. 1 cant hook, and 1 edger complete. Plaintiff had verdict and judg- ment. The evidence tended to show the fol- lowing facts: In 1872 a copartnership, com- posed of the plaintiff and two others, under the firm name of Bartlett. Bonny & Saxton, owned a piece of land upon which was situ- ated a portable steam sawmill, containing a boiler, engine, and double circular mill, with some belting, which was covered by a build- ing so that it could be taken out without in- jury. The firm, while owning both the land and the mill, gave a mortgage on the land, and a chattel mortgage upon the mill and machinerj-, to one Gregg. Subsequently plaintiff acquired the interest of his partners in both the land and the mill. This was in 1873. In 1876 the real-estate mortgage to Gregg was foreclosed. After the foreclosure plaintiff continued in possession of both the land and the mill as tenant. In 1880 the pur- chaser of the land at the foreclosure sale sold and conveyed it to plaintiff's wife, tak- ing back a mortgage for part of the purchase price. Subsequently this mortgage was dis- charged, and Mrs. Bartlett gave a real-estate mortgage to Gage, who was evidently the purchaser at the foreclosure sale, for ?200, dated January 14, 1884. Gage knew that plaintiff was in possession of the premises, and understood that he claimed to be running the mill, and had some machinery there, and he did not suppose that his mortgage covered the machinery. This mortgage was assigned by Gage to the defendant, who did not ex- amine the property, and made no inquiries as to who was in possession. The property now in dispute was placed upon the premises after the execution of the first mortgage, and be- fore the execution of the second mortgage by Mrs. Bartlett to Gage. Plaintiff took his wife's acknowledgment to the second mort- gage. This mortgage was foreclosed, and bid in by the defendant. After the time of redemption had expired she took possession of the land, and of this property, claiming that it was covered by the mortgage. The machines were fastened to the floor by cleats or bolts, in such a manner that they could be removed without injury to the building, while the saws were hung upon hooks. It was said by this court in Scudder v. An- derson, 54 Mich. 120, 19 X. W. 775: "It is impossible to regard personal property, capa- ble of removal from the land, which does not belong to the landowner, as part of the real- ty." Upon the question of fixtures this ca.se is ruled by that case, and Conrad v. Mining Co., 54 Mich. 249, 20 N. W. 39. Plaintiff was a tenant at the time he placed the machines upon the land. There was therefore no unity of title to the realty and the machinery. There is no conflict about the material facts, and the court would have been justified in instructing the jury that the property had not become a part of the realty. I see no reason in holding that plaintiff is estopped to assert title by the fact that he witnessed and took the acknowledgment of his wife's mortgage. There was nothing in the mortgage to indi- cate that it covered this property. Plaintiff was in possession, the mortgagee knew it. and understood that he claimed the property. The assignee of the mortgage occupies in this case no other or different position from that of her assignor. There is no room for the doctrine of estoppel. Objections were raised to the admission of certain evidence, and to portions of the charge of the court, but under the above disposition of the case they become immaterial. The judgment is affirmed. The other justices concurred. FIXTURES. 29 LANSING IRON & ENGINE WORKS v. WALKER. (51 N. W. lOGl, 91 Mich. 4(J9.) Supreme Court of Michigan. April 22, 1892. Error to circuit court, Jackson county; Eras- tu.s Peck, Judge. Trover by the Lansing Iron & Engine Works against James Walker. Judgment for plain- tiff. Defendant brings error. Affirmed. Thos. E. Barkwortli. for appellant. CahiU & Ostrander, for appellee. McGRATII, J. In November, 1886, plain- tiff and one Myers entered into a written contract, by the terms of which plaintiff agreed to sell to Myers "one .stationary Stand- ard sawing rig complete, which includes one oO-horse-power engine, lOxlG; No. o boiler, with throttling or automatic governor, which- ever is considered best, with all boiler fix- tures; Standard miU complete, with 54-inch planer, saw, belting, pipes, and connections, etc.; and one picket mill, with 3G-inch solid saw, with friction feed, etc., rigged for cut- ting pickets, 14 in. and up, with proper shaft- ing and pullej'S, to mu with or without the above Standard sawmill. Said machinery to be ready for delivery at the Lansing Iron Works, Lansing. Mich., on or about the 28tii day of November, 188G. * * * It is fur- ther agreed that the title and right of posses- sion of the aforesaid macliiuery shall remain in the above first party until the price is paid in full, according to the notes accompanying this contract, when the same shall vest in the party of the second part. But it is also agreed that the second partj' may take said ma- chinery, when completed and delivered, and run the same in the township of Sandstone, county of Jackson, and in adjacent town- ships, and retain and use it so long as he takes reasonable care of the same, and is not in default in any of his payments as herein provided." Payments were to be made un- der said contract, $1.")U on or before the deliv- ery of the machinery, $350 on or before Jime 1, 1887. and the balance in two annual pay- ments. Myers paid the $150, and the machin- ery was delivered to him. lie owned an un- divided interest in a farm in the townsliip of Sandstone, to which lie removed the machin- eiy, and set it up. The boiler was bricked in and arched up, and the engine was set up- on brickwork, and bolted down to the foun- dation. Tlie l)oiler and engine were covered over, — a part with a board roof, and a part with a shingled roof. The sawmill and car- riage were uncovered. In February, 1888, Myers conveyed the farm by quitclaim deed to the defendant, and trover is brought by rea- son of the refusal to pay the balance due plaintiff, under the agreement between plain- tiff and Myers. The court directed a verdict for plaintiff for the amount of the balance, and defendant appeals. Defendant contends that the case should have been submitted to the jury upon tlie question of fact raised by the testimony as to whether the purcliase made by defendant from Myers was one made in good faith for a valuable consideration, and without notice of anj claim of the plaintiff against the i)roperty purchased. The case is ruled by Adams v. I^e, 31 Mich. 440, and Robertson v. Corsett, 39 Mich. 777. In Adams v. Lee, the court say: "All the time, therefore, the parties ha\*e had title lo tlie machinery distinct from their title to the land, and this fact of itself is con- clusive that the former was personaltj-; for to constitute a fixture there must not only be phj-sical annexation in some form to the real- ty, but there must be unity of title, so that a conveyance ot the realty woiUd of necessity convey the fixtiu-e also. When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must necessarily remain distinct propertj-, to be used and dealt with as personal estate only. And tlie fact that the owner of the thing af- fixed to the freehold has also arf undivided interest in the latter, cannot render the former a fixture when the interests are different in extent. A thing cannot, as to an undivided interest therein, be real estate, and as to an- other undivided interest be personalty. It must be the one tiling or the other. And the po.sition which is taken by Lee in this case in- volves this absm-dity: that Kaiffman, at the time when he and Kinney were severally tlie owners of an undivided half of the land, might have sold that, and, as a necessary conse- quence, transferred an undivided one-half of the machinery also, though the whole of the machinery belonged to Kinney as exclusive owner. This would be the necessary result if the machinery was real estate, for there could be no such a thing as attaching it to an undivided interest in the land only." In Mor- rison V. Berry, 42 Mich. 389, 4 N. W. 731, the ownersliip of the land and of the thing affixed was in one and the same person. It was there held that the annexation of the thing to the freehold was not the wrongful act of the landowner, but that by act and in- tervention of the claimant the articles became a part of the freehold. In Knowlton v. John- son, 37 Mich. 47, T. owned the laud and mill. S. was the lessee. The water wheels were a part of the sti-uctiire. Plaintiffs furnished the water wheels to S., with the understand- ing that they were to be put in the luiU, and there used; and, against tlie objection of T., the old wheels were taken out and the new put in. Six months afterwards S. surrendered his lease, and T. leased to M. T. finaUy sold the mill property to def^-ndant and plain- tiffs brouglit trover. The court say: "The plaintiffs deliberately agreed that Hie water wheels should be converted in all outward ap- pearance into real property, and they thereby put it in the power of Trimmer to make sale of the wheels as part of the mill." In the 30 CHATTELS REAL. present case the contract of sale provided for the use of the machinery, not only in the town- ship of Sandstone, but in adjoining townships. Myers was not the sole owner of the land up- on which it was placed, but he was sole own- er of the interest in the machinery, and oper- ated it solely in his own behalf. The struc- ture coveriufj the boiler and engine was but a* temporary one. The machinery in question did not consist simply of a pulley, shaft, or wheel which was to be attached to other ma- chinery already a part of a sawmill, and. as such, a part of the realty, but it was a com- plete outfit, designed by the agreement to be portable. There was nothing done by plain- tiff indicative of an intent to permit the ma- chinery- to be so annexetl to realty as to change its character. The state of the title to the realty, and the conduct of Myers regarding the machineiy. negatived any intent on his part to allow his interest in the machinery to be absorbed by the owners of the realty, or to permit it to be merged. The circumstan- ces of the purchase by defendant clearly in- I dicate that he took the entire interest in this machinery, while he took but an imdividei! ; interest in the realty. He afterwards oper- ated the raacninery as sole owner. It was held in Wheeler v. Bedell, 40 Mich. 603-69fi, that there is no universal test by which the ' character of what is claimed to be a fixture can be determined in the abstract; neither the mode of annexation nor the manner of use I is in all cases conclusive. It must usually depend on the express or implied understand- ing of the parries concerned. In Coleman v. Maiiufactiu-ing Co.. 3S Mich. 30-40. the court, commenting upon a line of authorities w'hich I seem to regard the manner of the attachment to the realty as the test, say: "This, how- ! ever, is a vei"y extreme view, and is hardly compatible with the tenor of our own pre- vious decisions. It seems to overlook or ig- nore one test, namely, the intent of the partj- making the annexation." See, also, Manwar- ing V. .Tenison. 01 Mich. 117, 27 N. W. 899. The judgment is afl3rmed. The other justices concurred. FIXTURES. 31 FITZGERALD v. ANDERSON. (51 N. W. 554, 81 Wis. 341.) Supreme Court of Wisconsin. Feb. 2.3, 1892. Appeal from circuit court, Douglas county; R. D. Marshall, Judge. Replevin by Thomas Fitzgerald against N. J. Anderson. Judgment for plaintiff. De- fendant appeals. Reversed. The other facts fully appear in the follow- ing statement by Winslow. J.: Replevin to recover a frame dwelling-house, IG by 20 feet in size, standing upon blocks upon appellant's land. The house was built by one Rudd while in possession of the prem- ises as tenant of Anderson. When Rudd left the premises, he sold the house to Fitzgerald, who sublet the house to one Eastman. Aft- erwards. Fitzgerald prepared to move the house off from appellant's land, and appel- lant stopped the removal, whereupon this ac- tion was brought by Fitzgerald. Upon the trial a verdict for respondent was directed and rendered, and, from judgment entered thereon, Anderson appeals. Swift, Murphy & Bundy, for appellant. Ross, Dwyer & Smith, for respondent. WINSLOW, J. (after stating the facts). It is settled that landlord and tenant may, by their agreements, treat as personal property improvements which would otherwise be part of the realty, and thus convert tliem into per- sonal property, to all intents and purposes, as between themselves. Smith v. Waggoner, 50 Wis. 1.35, N. W. 5G8. It is also settled that the right to remove such improvements must ordinarily be exercised by the tenant while still in possession under his lease, or it will be lost. Keogh v. Daniell. 12 Wis. 1G4; Josslyn V. McCabe, 46 Wis. 5!Jl, 1 N. W. 174. It appearing here that Rudd. the original ten- ant and builder of the building, abandoned the premises without removing the building, the purchaser of the building cannot recover unless, by some agreement with the owner of the real estate, the right of removal was pre- served until after possession was given up by Rudd. The plaintiff's case must depend en- tirely upon the existence of such an agree- ment; and, unless it be proven by uncon- trndicted te.«tiniony, the verdict for the plain- tiff should not have been directed. Plaintiff depends upon the following testimony of Rudd, which was not contradicted by Ander- son, to establish this fact: "Was there any- thing said as to whether you had or had not the right to move the house? Answer. No." "Was there anything said between you and Anderson in reference to your having the right to move the house at the time? A. Well, it was that said you know; it was said I should have the house just so long until he ?hould sell the lot, he should want me to move." "Then you should move it off? A. Yes, sir." We regard this testiiuony as en- tirely insufficient to justify the court in di- recting a verdict for plaintiff. It contradicts itself squarely, and counsel would be entirely justified in arguing to the jury that the first answer was true and the succeeding ones false, and was entitled to so argue. Further- more, it is doubtful whether the last two an- swers, taken alone, should be construed as extending the time within which the building might be removed until after surrender of possession. This is not necessary to be de- cided, however, as it is plain that upon the flat contradiction in Rudd's evidence a verdict for the plaintiff should not have been direct- ed. For this error the judgment must be re- versed. There was no error in rejecting the record of the quit-tenant proceedings against East- man. That action appears by the record to have been brought by A. J. Anderson. The defendant's name is N. J. Anderson. The variance is fatal. It is objected that replevin will not lie for a building, even though as between the parties it be personality. Such a doctrine was once maintained, but the current and weight of modern authority is that replevin may be brought; and no good reason is perceived ^^hy. if the building be to all intent and pur- poses personalty, as between the parties to the action, and it be not actually attached to the soil, the remedies appropriate to person- alty should not be used. Cobbey, Rep. § 3(>4, and cases cited. Judgment of the circuit court reversed, and action remanded for a new trial. 32 CHATTELS REAL. FREE V. STUART ct al. (57 N. W. 001. 39 Neb. 220.) Supreme Court of Nehrask.'i. Feb. 7. 1894. Appeal from district court, Donjrlas coun- ty; Hopewell, Jud?re. Action by M. E. Free against Stuart & Schemensky and Georsre W. Sautter and :in- otlior to foreclose a chattel niort,Ta?e. Tbore was jud^'iuent for plaintiff, and defendants Sautter and another appeal. Reversed. Chas. Offutt for appellants. Cavansgh, Thomas & McGilton, for appellee. NORVAL, C. J. Tills action was brought in the court below by appellee, M. E. Free, to foreclose a cliattel mortgage given by the defendants Stuart & Schemensky on two greenhouses erected by them on leased real estate owned by appellants, George W. Saut- ter and Frank Sautter. The cause was tiied by the district com't upon a written agreed statement of facts, signed by the attorney of the respective parties, of which the fol- lowing is a copy: "(1) In the spring of l.SSS the said Geo. W. and Frank Sautter were the owners in fee of a certain dwelling house, without outbuildings and about ten acres of land stu-rounding. in the outskirts of the city of Omaha, and within the Umits of said city. That at said time said Sautter brothers rented the house and outbuildings only from April 1, ISSS, to March 1, 1SS9, to the defendant C. Schemensky, for $100.00. The rent for this term was paid. (2) At the end of this term said Geo. W. and Frank Saut- ter rented the house, barn, orchard, vineyard, and all the land for one year for $200.00. the lease expiring March 1, 1S90, and of this rent the tenant, Schemensky, paid .$93.00, leaving a balance still unpaid of $107.00. (3) At the end of this term, on March 3. 1S90, said Geo. W. and Frank Sautter rented the same prem- ises for another year to said Schemensky for $223.00, the lease expiring March 1, 1S91. Of this rent there was paid $13.40. (4) At the end of the last term the tenant, Sche- mensky, held over until May 12, 1891, at which time the tenant quit the possession and occupation of the premises, leaving a total of rent unpaid amounting to the sum of $341.60, no part of which has yet been paid. (5) That in the spring of 1S90 said Schemen- sky requested permission of said Geo. W. and Frank Sautter, owners of said premises, to erect thereon two buildings and a boiler house, and that the same were erected diu*- in.g the spring and early summer of 1890. They were erected by building the same out of planks and posts, with the use of glass and sash, as is usually the case in green- houses, the said boards or planks being fas- tened to a number of upright posts that were inserted and fastened into the ground for a distance of about two feet below the stu*- face. The framework was built around said posts. (6) That there was also constructed in said greenhouses a boiler for the pm'pose of heating the same, by building a brick foundation down into the ground, and build- ing said brick up over and around said boil- er, leaving it stationary, and pipes were at- tached to and ran from said boiler through the various portions of the house so conr sti-ucted, and fastened to the said green- house. In order thereby to conduct the heat- ed water, and for the pm'pose of keeping the temperature in a condition reqtiired for gi-eenhouses. The two buildings used as greenhotises were each 75 feet long and 10 feet wide, and were covereil with glass and sash. They were constructed by nailing sti'ips running from post to post, and onto those strips the planks for the sides and ends were nailed secm'ely; and said houses and boiler are still remaining on said premises as when originally constructed. (7) On Jan- uary 14. 1891, said Schemensky and one Stu- art, who were partners as Stuart & Sche- mensky, executed to the plaintiff a chattel mortgage, a true copy of which is attached and made a part of plaintiff's petition here- in, and the same was filed in the office of the county clerk of Douglas county, Nebras- ka, on said 14th day of January, 1891, at the hotir of 3:45 P. M., and duly indexed in said office, as required by law in case of chat- tel mortgages, said chattel mortgage being to secui'e the amount of money stated there- in; and the amount now due thereon and un- paid by said mortgagors to the plaintiff is $182.40. (8) Said property was leased for the purpose of using the residence as a dwelling house, and the land for the purpose of gardening, raising flowers and shrubs, it having been used for this purpose for sever- al years last past. At. the time said houses were constructed, there was nothing said by the tenant about removing said greenhouses, boiler, and boiler house at the expiration of the lease or at any other time. (9) The plain- tiff claims a lien on said houses and boiler by virtue of the foregoing chattel mortgage, and the defendants George W. and Frank Saut- ter claim them as fixtures to, and a part of, said land." The trial court found that Stu- art & Schemensky executed and delivered to plaintiff the chattel mortgage described in the petition to secure an indebtedness of $1(>3.S4; that the buildings described in said mortgage were erected by the mortgagors upon leased premises, and were such fixtures as the tenants had a right to remove; and that said houses are subject to the said chat- tel mortgage. From a decree of foreclosure and sale the Sautters appeal to this court. The point in dis^iute is, which party is en- titled to the buildings covered by the mort- gage? The mortgagee claims them by vir- tue of his mortgage, while the appellants in- sist that, as the improvements were erected by tenants on leased premises, they are a part of the realty, and neither the tenants nor the mortgagee had a right to remove them, at least after the expiration of the tenancy. The larger portion of the brief of counsel on either side is devoted to the discussion of the FIXTURES. 33 law of fixtures, and what are, and what are not, movable fixtures. The decisions on the subject are at variance and irreconcilable. We have not the time at our disposal now to review the authorities cited in the briefs, or to discuss the question, nor is it essential tnat we should do so. For the purposes of this case we will assume that the buildings In controversy were trade fixtures, and were erected under such circumstances as to enti- tle the tenants to remove them had they ex- ercised that right in time. The authorities are quite uniform to the effect that, in the absence of an agreement or understanding to thji contrary, a tenant cannot re-enter, and remove his flxtm-es and improvements, after the expiration of his tenancy. By smren- dering possession he forfeits his rights to them. The rule on the subject is well stated by Mr. Taylor in his valuable work on Land- lord and Tenant, thus: "The decisions also agree that whatever fixtures the tenant has a right to remove must be removed before his term expires, or at least before he quits possession; for, if the tenant leaves the premises without removing them, and the landlord tal^es possession, they become the property of the landlord. The tenant's right to remove is rather considered a privilege al- lowed him than an absolute right to the things themselves. If he does not exercise the privilege before his interest expires, he cannot do it afterwards, because the right to possess the land and the fixtures as a part of the realty vests immediately in the land- lord; and, although the landlord has no right to complain, if the land be restored to him in the same plight it was before he made the lease, yet if the land is suffered to re- turn to him with additions and improve- ments, even by forfeiture or notice to quit, he has a right to consider them as part of his property." And in the case of Fried- lander v. Ryder, 30 Neb. 787, 47 N. W. 83, in considering the authority of a tenant to remove his fixtm-es, we said: "Under the lease, as established by the evidence, the ten- ant had a right, before the surrender of pos- session, to remove any improvements owned by him which are embraced under the head of tenant's fixtures, but the tenant had no authority to remove such improvements aft- er the termination of the tenancy; in other words, the tenant could not re-enter to re- move his fixtures after the sm-render of his possession to the landlord." It appears from the stipulation that the lease iinder which the tenants occupied the premises expired on March 1, 1891, and that on the 12th day of May following they quit pos- session without removing the buildings which they had erected by permission of the owner of the realty. The record fails to disclose that there was any agi-eement or \mderstand- ing between the parties about the removal of the improvements at the expiration of the lease or any other time. In view of these facts, there could be no doubt that the ten- ants have forfeited their right of removal. VAN ZILE.SEL.CAS.rEll^-. — 3 Counsel for appellee contend that the ten- ancy had not expired when the tenants sur- rendered possession; that they were tenants from year to year; and although the lease terminated March 1, 1891, they having occu- pied the premises for several months after that time, the lease was thereby continued in force for another year, or until March, 1892. It is a familiar doctrine that where, in case of a tenancy from year to year, the tenant continues to occupy the property after the expiration of his lease by the consent of the landlord, it will be presumed, in the absence of an express agreement to the contrary, that the lease is extended for another year; but we are unable to see how this rule can aid the appellee, since the tenants volun- tarily abandoned possession, and it does not appear that either they or the landlord, after such abandonment, regarded the lease in force. The doctrine that the right of a ten- ant to remove his improvements must be exercised before the expiration of his lease applies alike to cases Avhere the tenancy ter- minates by lapse of time, and to cases where it is determined by his own act. He may forfeit his right to remove his fixtm-es by voluntarily sm-rendering the possession to the landlord without reservation. It is quite probable, however, that such surrender would not affect the previously acquired rights of the tenants, vendees, or mortgagees. They should have the right to enter and remove the fixtures at any time before the lease would, by its terms, have expired. In the case at bar no attempt has been made to re- move the buildings at any time. They were on the premises when the decree of fore- closure was entered, which was long after March 1, 1892, and it is not claimed that the tenancy continued after that date. Upon principle as well as authority we are con- sti-aiued to hold that the mortgagees forfeit- ed their right to the buildings by their fail- m-e to exercise it during the tenancy. It is finally contended that since the ten- ancy had not expired when the mortgage was given, and inasmuch as the tenants could have removed the mortgaged fixtures, the appellee's rights vested and became fixed, and were not affected by the subsequent ter- mination of the lease. The mortgage con- ferred the same rights upon the mortgagee to remove the fixtiu-es that the mortgagors had, and no greater. AppeUee was therefore required to exercise the privilege of removal dm-ing the tenancy. In principle, the case at bar is not distinguishable from Fried- lander V. Ryder, supra. In that case a cred- itor caused an execution to be levied upon a teuaut's fixtures. It was held that the cred- itor thereby acquired no greater right to re- enter, and remove them, than the tenant had. A case precisely in point is Smith v. Park, 31 Minn. 70, 16 N. W. 490. There a tenant diu-- ing his term had executed a chattel mort- gage upon a frame building upon leased premises. The landlord claimed the build- ing, and the mortgagee brought replevin aft- 34 CHATTELS REAL. er the lease expired. The court held that the mortgragee's right to remove the building was lost. The court, in the opinion, say: "The plaintiff stands in no better position than did Buri:ess, [the tenant.] His right to the propert}-, as against the landlord, is only such as the tenant under whom he claimed had. It was for him to see to it that the building was removed within the time which, by the law and terms of the contract, was given to the tenant for such a purpose." Oui* conclusion is that the trial court erred in decreeing the foreclosure of the mortgage. The decree is therefore reversed, and the ac- tion dismissed. Judgment accordingly. The other judges concur. FIXTURES. 35 ADAMS V. LEE. (31 Mich. 440.) Supreme Court of Michigan. April 13, 1875. Error to circuit court, Van Buren county. George W. Lawtun. for plaintiff in error. I^ester A. Tabor, for defendant in error. COOLEY. J. The fundamefital error of the court in this case was in treating the machinery in question as having been fix- tures annexed to the freehold. A brief re- cital of the facts in the case will show that such could not have been their legal char- acter: The real estate in question was owned by John H.. Kaufman May 29, 1867. Before that time, under some arrangement not shown, and not now important, a building had been erected upon this real estate, and machinery for the manufacture of wool had been put into the same, which was owned by Augustus E. Hardy. The machinery ap- pears to have been annexed to the building in a substantial manner. On the day nam- ed, Kaufman conveyed an undivided one- fourth of the real estate to Hardy, and the latter sold to Kaufman an undivided one- half of the machinery. This made Kauf- man owner of three-fouilhs the land and one-half the machinery, and Hardy the owner of one-fourth the land and one-half the machinery. .Tanuary 29, 1868, Kaufman sold an undivided fourth of the real estate, together with his half of the machinery, to Warren G. Kinney. This made Hardy and Kinney owners of the undivided one-half of the real estate and of the whole of the ma- chinery. August 25, 1868, Hardy sold to Kinney, giving him a deed of an undivided one-fourth of the real estate, and delivering possession, which of course would be suffi- cient to transfer the title to any personalty which might have been included in the sale. On this sale, Kinney gave to Hardy a mort- gage on the undivided one-half of the real estate to secure the payment of the pur- chase price, or a part thereof. The machin- ery was not mentioned in this mortgage, but Lee, who has become purchaser of the mortgaged premises on the foreclosure of this mortgage, claims that the mortgage covered the machinery as fixtures, and so it was held by the circuit court. Adams, on the other hand, asserts a right to the ma- chinery by a purchase of it as pei-sonal prop- erty, made by him from Kinney previous to the foreclosure. An examination of these facts will show that at no time has there been unity of own- ership of the land and the machinery put into the building. Kaufman at the out.set owned the one without having an interest in the other, and no one of the parties who subsequently acquired an interest had a right in the land co-extensive with his in- terest in the machinery. All the time, there- fore, the parties have had title to the ma- chinery distinct from their title to the laud, and this fact of itself is conclusive that the former was personalty. For, to constitute a fixture, there must not only be physical annexation in some form to the realty, but there must be unity of title, so that a con- veyance of the realty would of necessity convey the fixture also. When the owner- ship of the land is in one person, and of the thing aflixed to it is another, and in its na- ture is capable of severance without injury to the former, the latter cannot, in contem- plation of law, become a part of the former, but must necessarily remain distinct prop- erty, to be used and dealt with as personal estate only. And the fact that the owner of the thing affixed to the freehold has also an undivided interest in the latter, cannot render the former a fixture when the inter- ests are different in extent. A thing can- not, as to an undivided interest therein, be real estate, and as to another undivided in- terest, be personalty; it must be the one thing or the other. And the position whicli is taken by Lee in this case involves this absurdity; that Kaufman, at the time when he and Kinney were severally the owners of an undivided half of the land, might have sold that, and, as a necessary consequence, transferred an undivided one-half of the machinery also, though the whole of the machinery belonged to Kinney as exclusive owner. This would be the necessary result if the machinery was real estate, for there could be no such a thing as attaching it to an divided interest in the land only. Lee claims, however, that, if the machin- ery continued to be personal estate after be- ing put up in the building. Adams was nev- ertheless a wrong-doer in taking it out of the building, because if personalty, the title to it was never transferred by any of the conveyances of interests in the land. And, to take advantage of this view, he has ob- tained assignments from Kaufman and Hardy of any right of action they, as own- ers of the machinery, might have against Adams for taking it away. These assign- ments bear date in October, 1873. But it clearly appears that Kaufman sold his right in the machinery to Kinney, and it is equal- ly apparent that Hardy did the same thing. The failure to mention the machinery in the deeds of conveyance was of no importance; no writing was requisite to transfer the title to this, any more than to any other personalty. This view of the case renders it necessary to consider whether Lee, on his own theory of the case, had any cause of action, the machinery having been taken off the prem- ises before he became purchaser at the fore- closure sale. His position relatively to the mortgage and the mortgaged premises was peculiar, but the facts become immaterial. The judgment must be reversed, with costs, and a new trial ordered. CAMPBELL, J., and GRAVES, C. J., con- curred. 36 CHATTELS PERSONAL. GILLET V. MASON. (7 Johns. 16.) Supreme Court of New York. 1810. Error on certiorari from justice's court. Mason declared against Gillet, before the justice, in an action of trespass, for cutting down a tree containing a swarm of bees and honey, which the phiintiff below had before found, and had marked the tree with the in- itials of his name. Gillet pleaded the general issue, and there was a trial by jury. Mason proved that previous to bringing this suit he had found a tree containing a swarm of bees standing on the laud of Timothy Gil- let, lately deceased, father of the defendant; that he marked the tree with the initials of his name, "A. M."; that the defendant had cut down the tree, and taken and carried away the bees and honey; and that the tree contained a large swarm of bees and a large quantity of honey, of the value of $10. It was admitted by the plaintiff that the land where the tree stood belonged to Timothy Gillet, but it was denied that the defendant was his heir, or had any possession of the land. It was admitted that defendant was a son of Timothy Gillet. The justice, in char- ging the jury, put the cause on the point, Avhich of the parties first reclaimed the bees from a wild state; and the juiy found a ver- dict for the plaintiff below, for nine dollars. PER CURIAM. Bees are considered by Judge Blackstone (2 Comm. 392) as ferrr natura?; but, when hived and reclaimed, a qualitied property may be acquired in them. Occupation of them, according to Bracton (that is, having or inclosing them) gives the property in bees. In the present case it ap- pears the bees were not hived before they were discovered by the defendant in error, and the only act he did was to mark the tree. The land was not his, nor was it in his pos- session. Marking the tree did not reclaim the bees, nor vest an exclusive right of prop- erty in the finder, especially in this case, against the plaintiff in error, who, as one of the children of Timothy Gillet (who does not appear to have made a will), must be consid- ered as one of the heirs, and, as such, a tenant in common in the land. Blackstone (volume 2, p. 393) inclines to the opinion that under the charter of the forest, allowing every free- man to be entitled to the honey found within his woods, a qualified property may be had in bees, in consideration of the soil whereon they are found, or an ownership, ratione soli. According to the civil law (Just. Inst. lib. 2. tit. 1, § 14), bees which swarm upon a tree are not private property, until actually hived; and he who first incloses them in a hive be- comes their proprietor. Judgment reversed. See Ferguson v. Miller, 1 Cow. 243. ANIMATE PERSONALTY. 37 ADAMS V. BURTON et al. (43 Vt. 36.) Supreme Court of Vermont. Windsor. Feb. Term, 1870. Trespass and case. Plea, not guilty and notice. Trial bj' the Court, December term, 1869, Barrett, J., presiding. It ap- peared that early in August, 1868, the plaintiff tracked and found a swarm of bees in a tree growing on the land of Ira Burton in Norwich; and in a few days in- formed said Ira of the fact, and that he in- tended to cut down the tree and get the honey,— to which said Ira made no objec- tion,— he supposingthat thefinderofa bee tree, on the land of another, had a right to take the bees and the honey ; and he so said to the plaintiff. It did not appear whether he would have made objection if he had not so supposed. He made no claim in re- spect to the boesor the honej' that might be in the tree; and though he was given by plaintiff to understand in what region on his land the supposed bee tree was, he did not know in what tree the plaintiff supi)osed the bees were. A day or two after this, and early in the morning of the 3d of August, 1S68, the plaintiff, with Pineo to help him, went to the tree, and they were in the process of chopping it down, for the purpose of getting the honey, claiming the right to doit, when the defend- ant, Henry Burton, with the defendant Thompson, acting for and under him, hav- ing heard that the plaintiff had found a bee tree in that vicinity, were out trying to find it, for the purpose of cutting it down and getting the honey. They saw the plaintiff and Pineo at work chopping the tree; whereupon they went to the tree, knowing the claim of right, on the part of the plaintiff, and the defendant Bur- *37 ton interposed himself in such a *way as to prevent the plaintiff from chop- ping more upon the tree, and to cause him and I'ineo to give up the attempt further to cut it down. And said Burton proceed- ed at once — with Thoinoson heliiing him — to finish the work that the plaintiff and Pineo had begun, of chop|)ing it down. And they found the supi)osed swai-m of bees in it, and 150 lbs. of honey; which honey they took and carried awa^'. and the said defendant Burton used it for his own purposes. The defendant Burton, after hearing that the plaintiff had found a bee tree in that vicinity, and desiring and intending to cut it down and get the honey, if he could find it, told his brother, the said Ira, of his desire and intention, just before he went out as aforesaid to try to find the tree, — and said Ira ex- pressed consent that lie might do so, said Ira not interesting himself in any way in the matter, by claim or otherwise in his own behalf, or as between the plaintiff and the defendant Burton, and knowing that the plaintiff supposed that he, the plaintiff, had a right to get the honey, by reason of having tracked the bees and found the tree. The court i-endered judg- ment for the plaintiff for $32.40 and his costs. To this the defendants excepted. S.E. & S. M. I'inffroe, for the defendants. C. M. Lamb, for the plaintiff. The opinion of the court was delivered by PIERPOINT.C. J. It appears from the facts found by the county court, that in August,lS6S, the plaintiff traced and found a swarm of bees in a tree standing upon the land of one Ira Burton; that soon after he informed said Ira of the fact, and told him he intended to cut down the tree and get the honey; that said Ira niade no objection to his doing so; set up no claim to the l)ees or the honey, but told the plaintiff he supjjosed he had the right to cut the tree and take the honey. Whether this can be regarded strictly as a license or not,it wasclearly a waiver of any right he had in the matter, as the owner of the tree, and was sufficient to w^arraiit the plaintiff in going on and cutting the *38 tree, without making himself *a tres- passer thereby. After this the defend- ant, learningthat the plaintiff had found a "bee tree" on the said Ira's land, but not knowing the precise locality of it, went to the said Ira and told him he intended to find the said tree and cut it down and get the honej', and this the said Ira con- sented to. This again was a waiver of the right of the said Ira in favor of the defend- ant — thus virtually placing the plaintiff and the defetfdant upon the same footing so far as the I'ights of the said Ira, as thd owner of the tree, were concerned. In as- senting to the proposition of the defend- ant, there was no attempt to revoke or interfere with any authority or right that the ijlaintiff had, eitlier as the disc(n t-rcr, or as derived from the said Ira, to cut the tree and take the honey, and we think there would be no such legal effect result- ing therefrom. This beingso, these parties stand, as between themselves, and as re- spects the legal principles applicable to the case, in precisely the same position, as though neither li;i ' any authority from the owner of the trtv, and both were tres- passers uponhis rights, or as though there was noindividual ownerof the tree. How then would the case stand. No principle is better settled, than that a person in po.ssessiou of property, can maintain tres- pass against any one that interferes with such possession, who cannot show a bet- ter right, or title. In this case, the plaintiff first found the bee tree; he thus acijuired all the rights that appertain to the person who first dis- covered the home of the bees, whatever those rights may be. He proceeded to take possession of the tree, for the purpose of removing the honey, and when the de- fendants interfered with him, he was in the act of cutting the tree; he literally hfid his hand upon the hive; he was as much in possession as he would have been if he had cut the tree down, and had been in the act of removing the honey from its place of deposit, and the honey as certain- ly secured ; the honey is all that is sought in such cases, and all that is of value, as the bees cannot be secured ; the operator would much [u-efer to have them leave, as they alwaj's riiakea vigorous defense of the homestead, and those who thus rob the bees of their treasure generally have other stings to endure than those of conscience. 38 CHATTELS PERSONAL In this case the defendants not only robbed 'having no superior right to the plaintiff, the bees, the penalty for which thereby making themselves liable to him *tliey doiabtless paid at the time, *89 for the damage. but they also robbed the plaintiff of The county court having ascertained the his rights. The.v drove him from the act- damage and rendered a judgment therefor, ual possession of the properly, and seized that judgment must be affirmed. and appropriated it to their own use, they Judgment affirmed. ANIMATE PERSONALTY 39 TENHOPEN V. WALKER. (55 N. W. 657, 96 Mich. 236.) Supreme Court of Michigan. June 23. 1893. Error to circuit court, Kent county; William E. Grove, Judge. Action by Margaret Tenliopen against Thomas Walker. Judgment for plaintiff. Defendant brings error. Affirmed. Dunham & Preston, for appellant. Francis A. Stace, for appellee. LONG, J. Plaintiff recovered judgment against the defendant for $225, as damages in an action on the case for the malicious killing of her dog. It was shown on the trial that plaintiff's sons were waltmg along the highway. They were accompanied, by the plaintiff's dog and two other dogs. Vvuen in front of defendant's premises, the dog of plaintiff turned into the defendant's grounds, just out of the highway, and approached a pond which was kept for lUies, apparently with the Intent to slake its thirst. Defend- ant, seeing it from the upper window of his house, went down into the lower haU, got his gun, and, returning above, shot the dog from the upper window. It is not claimed that this dog had done any damage there at that or at any other time. On the trial the court permitted the defendant to show that upon several previous occasions other dogs had wallowed In this pond, destroying some of the plants there growing, and upon one occasion the owner of the dog, when remon- strated with by defendant, had called him vile names, and otherwise insulted and abused him. There was no fence in front of the premises, and this pond laid open to the highway. At the close of the testimony, counsel for defendant asked the court to instruct the jxiry: "(3) If the court shall hold that this action can be maintained upon the facts dis- closed m. the plaintiff's declaration, then we ask the court to charge the jury that, in order to recover m this action, the plaintiff must show to the satisfaction of the jury that the defendant was moved to kiU the dog through malice, either towards the dog or towards the plaintiff herself; that this must be shown by declarations of the defend- ant made before or at the time, showing a wicked and malicious purpose for such facts and circvunstances as naturally and logically lead to the conclusion that the defendant was actuated by malice, by ill wHl, hatred, or a desire for revenge. (4) K the jury find from the evidence that the dog was com- mittmg a trespass upon the proi>erty of the defendant, and In shooting the dog the de- fendant was only seeking to prevent injury to his property, then there was no malice on his part, and plaintiff cannot recover. (5) If the jury find that the plaintiff is entitled to recover, then, in estimating the damages, they can only find the fair market value of the dog. (6) In examining and weighing the testimony of the witnesses as to the value of the dog, they should scrutinize it closely, and see upon what knowledge they base their opinion; that mere opinions, not based upon a knowledge of the character and qualities of the dog, are not evidence of his value; that statements of witnesses of the market value of the dog in question, or of such dogs, who have never dealt in such dogs, nor ever known personally of dealings by others ought not to be received, except with great caution." These instnictions were re- fused, and the court directed the jury sub- stantially that the plaintiff was entitled to recover actual damages, which would con- sist of the value of the dog at the time it was killed; and that, even if the dog was committing a trespass at the time it was killed, and, in the opinion of the defendant, was about to destroj' some of his plants, it would not be a justification for the kUhng, or In any way mitigate actual damages, be- cause the law affords a remedy for the de- struction of property caused by the beasts of another. The court further directed the jury that there were but two questions for them to consider: (1) The value of the dog. (2) Was there malice? Upon the last propo- sition the court directed the jury: "If you find from the evidence that there was malice, and that these annoyances that I have men- tioned did take place, you vrill consider these annoyances and those previous trespassi>s with a view of determining, in the first place, whether they fully rebut the claim of malice, whether they afforded an excuse or cause for killing the dog. to the extent that it would take away the malice; and. If you find in the negative upon that question, you are at Ub- erty to consider them." It was claimed on the part of the plain- tiff that, if the jury found that the killing of the dog was willful and malicious, the plain- tiff, in addition to actual damages, was en- titled to recover exemplary damages. Upon this portion the court directed the jury sub- stantially that, while actual damages could not be mitigated by the fact that defendant had theretofore been annoyed by other dogs, yet, if they found he had been so annoyed, or if he believed at the time that the plain- tiff's dog was actually in the act of destroy- ing some of his property, they might con- sider whether those facts could entirely re- but malice; and if, notwithstanding those facts might be found to exist, they believed that defendant was actuated by malice, they might even then award exemplary damages; for. If the defendant willfully and maUcious- ly did the killing, exemplary damages would be recoverable. We see no error in the charge. The testimony tended to show that the dog was valuable. It was a '"Gordon setter." eligible to registration, and some of the witnesses placed the value as high as $250. It had never, so far as this record shows, trespassed upon the defendant's premises, nor had he in any manner been 40 CHATTELS PERSONAL. annoyed by it. On the day it was shot, it ran a few feet out of the hij::hway to tlie edjie of this lily pond, between which and the highway there was no fence, and, imme- diately as it reached the pond, defendant, without any AAarnins to the boys who had it in charge, shot and killed it. The jui-y, under tie charpe as given, may or may not have found that the dog was killed willfully and maliciously, as the amount of the verdict is less than several of the witnesses placed its value; but there certainly was evidence which woidd have .iustifietl the jury in finding the act willfiU and malicious. The dog was not running at large, contrary to law, but was in the immediate charge of its keeper. It is settled in this state that dogs" have value, and are the property of the own- er as much as any other animal which one may have or keep. Heisrodt v. Hackott, 34 Mich. 283. Usually, where an act is done with design, and from willful and mali- cious motives, the law compels full compen- sation, and full compensation may not be awarded by the payment of the actual value. Damages in excess of the real injury are never appropriate where the injury has pro- ceeded from misfortune, rather than from any blamablo act; but, where the act or trespass complained of arises from willful and malicious conduct, exemplary damages are recoverable. These damages are not awarded as a punishment to the wi"ong- doer, but to compensate the injured party. Wetherbee v. Green, 22 Mich. ?11. All redress in damages partakes to some extent of a pumtorj' character, and the line between "actual" and what are called "ex- emplary" damages cannot be drawn with much nicety. They are properly based upon all the circumstances of the aggi'avation at- tending it. The real purpose is to compen- sate the plaintiff for the injuries he has suffered. Stilson v. Gibbs, 53 Mich. 2S0, 18 N. W. Kep. 815; Wilson v. Bo wen, 64 Mich. 133, 31 N. W. Rep. 81. It was said by Mr. Justice Cooley, in Stilson v. Gibbs, supra: "In some cases there may be a par- tial estimate of damages by a money stand- ard; but the invasion of the plaintiff's rights has been accompanied by circumstances of peculiar aggravation, which are calculated to vex and annoy the plaintiff, and cause him to suffer much beyond what he would suffer from the pwuniary loss. Here it is manifestly proper that the jury should es- timate the damages with the aggravating circumstances in mind, and that they should endeavor fairly to compensate the plaintiff for the wrong he has suffered. The compen- sation to the plaintiff is the purpose in view, and any instruction which is calculated to lead till' jury to suppose that, besides com- pensating the plaintiff, they may punish the defendant, is erroneous." In the present case, the court below submitted to the jury the question whether the defendant was ac- tiiated by malice, and was guilty of willful conduct in shooting the dog. The rights ot the defendant were fully protectcxl, as all the circtimstances prior to the commission of the act were permitted to be put in by the defendant, showing the annoyances he had had from other dogs, and the provoldng and Insolent conduct of the owners of the other dogs when remonstrated with by him. The jury found that these facts did not consti- tute an excuse for killing the plaintiff's dog, and, we think, very properly. In cases of maUcious injury, it is not necessary that there should be actual enmity towards the pei-son injured. Brown v. State, 26 Ohio St. 176. In Wright v. Clark, 50 Vt 130, it ap- peared that plaintiff's dog drove a fox upon the land of defendant's father. Defendant came up and shot the dog. On the trial he claimed that he was shooting at the fox, and accidentally shot the dog. No enmity appear- ed to have existed between the parties. The court charged that, if the defendant inten- tionally and wantonly shot the dog, they might give exemplary damages. It was held that such intentional and wanton shooting implied malice, and that the instructions given were correct Some other errors are claimed. We have examined them, and do [ not deem them of sufficient importance to j notice, and they are overnUed. Judgment j atfirmed, with costs. The other justices con- 1 cm'red. ANIMATE PERSOXALTT. 41 KELLOGG V. LOVELY. (8 N. W. 699, 40 Mich. 131.) Supreme Court of Michigan. April 27, 18S1. Error to Shiawassee. McBrider & Eraser, for plaintiff in error. MeKercher & Bush, for defendant in error. GRAVES. J. The circumstances of this controversy are as follows. In October, 1878, the defendant sold the plaintiff on credit a mare, buggy and harness for the agreed price of ^2.'>0 and the plaintiff gave his note togeth- er with a mortgage on the property for the ■entire sum. The mare was with foal and about the first of June following she dropped the colt. On the first of July the mortgage became due, and Kellogg failing to pay, Lovely proceeded to take the property. There was no dispute about his right to take the mare, buggy and harness, but the parties appear to have dif- fered about the colt. Lovely maintained that the mortgage applied to it and gave him the same right to the colt that it did to the mare, but Kellogg contested this claim and contend- ed that the colt being the offspring of the mare was his property and not having been liorn when the mare was purchased and the mortgage given was not subject to the mort- gage. The colt had not been weaned and was running with the mare and when Lovely drove lier off the colt followed. Lovely soon afterwards proceeded to sell the whole prop- erty, the colt included, under the mortgage, and we gather from the case that it was bought in for him through an agent. The whole sum for which the property was struck off was $170, and shortly afterwards Kellogg paid the remainder of the debt. He then in- stituted replevin against Lovely before a jus- tice of the peace to obtain the colt and it was seized on the writ and delivered into his pos- session. The justice entered a npnsuit against him and Lovely waiving return of the colt the value was assessed at $55, for which Lovely took judgment. An appeal was made and the circuit court reduced the assessment to $30 and awarded Kellogg $78 costs and extin- guished the former by applying an equal amount of the latter by way of set off. Thi're- upon Kellogg sold the colt and brought this action ot trespass, counting on the transaction when Lovely took the mare on the mortgage. The justice gave judgment in Kellogg's favor for the value of the colt and Lovely appealed. The circuit judge ruled that there was no evidence of trespass and ordered a verdict for liOvely. It is not certain that the circuit judge was correct in the reason on which he proceeded. But whether he was or hot is un- important unless the result was wrong. The fundamental question in the case re- lates to the effect on the legal ownership of the colt, of the sale oi the mare to Kellogg and the mortgage back. In respect to tame and domestic animals the general i-ule is well understood, that "the brood belongs to the owner of the dam or mother" (2 Bl. Comm. 390), but there are many cases in which the rule is qualified in its application. It has been held and may be true in special cases that where the female is hired for a time limit- ed and has increase during the term the hirer will be entitled to it and not the general own- er. 2 Kent, Comm. 301; Edw. Bills. § •iN(J, J. Stephen W. Frank and Aba- gail I'rank, both deceased, were husband and wife. On December 28, 1889, Stephen sold all bis real estate, with the exception of a village lot, to William Stewart and Edwin Roberts, Ms wife joining in the deeds. To secure a portion of the purchase money, notes and mortgages were taken from Rob- errs, and an assignment of a mortgage and notofc accompanying from Stewart The notes and mortgages and assignment were all drawn payable to Stephen and Abagail Frank. By the bill filed in this case it is claimed (1) that the notes, mortgages, and assignment were not prepared in accordance with the intention and understanding of the parties, but that all that Stephen W. Frank intended was to have them .so drawn that the income should go to his wife during her life in case she survived him, and that a mis- take was made by the scrivener in making them payable to the parties jointly; (2) that, if no mistake was made, then that the tranf^ action was intended as a testamentaiy dis- position of the property, which was revoked by the hist will and testament of Stephen, prepared and executed a few days after these conveyances. The bill prays that the mortgages, notes, and assignment may be corrected in accordance with the intent of the parties, or that such instruments may be decreed to have been made as a testa- mentary disposition of the property; and that Mr. Free, as administrator of the es- tate of Abagail Frank, be enjoined from taking po.ssession of such securities from the complainant, as executor of the estate of Stephen Frank. On the hearing below the court foimd that it was not intended by Stephen or imderstood by Abagiil that she shoxild take by such instruments more than a life interest in these secmities, and that aU she did take was a life est:Ue; and that such sectu-ities are now a part of the estate of Stephen, and in the possession of Mary McLeod, as such executrix. By this decree the defendants were perpetually enjoined from taking any proceedings at law or other- wise to obtain possession of these secvuitles, and the complainant authorized and directed to collect the same as a part of the assets of Stephen's estate, and dispose of the pro- ceeds in accordance with the terms of his will. The defendants John W. Free, as ad- ministrator, and Henry Frank, alone app?al. The bill was taken as confessed by all the defendants, except those now appealing. The contention on the part of the com- plainants is that the proofs abundantly sus- tain their position. It appeal's that on May 2, 1889, Stephen made a will. This was prior to the sale of the real estate. By tlie will he devised the use of substantially aU the real estate to his wife during her natural life. Within a few days after he sold the real estate he directed a new will to be made. It revokes aU former wills. At the time of its execution he had a small amount of per- sonal property,— a village lot, which he willed to his daughter Mrs. McLeod, — and tlte se- curities above described. He gave his wife a life interest in the village lot, all his furniture, etc., and bequeathed to his execu- toi-s in trust the remainder of his estate, to sell and convey and convert into money, the income of which was to be paid annually to his wife so long as she lived. His son Henry C, upon the death of his mother, was to be paid $100 in addition to the $2,000 or $3,0fX) he had already given him. Certiun of his grandchildren living at his decease were each to receive $100 and his son Emory S. the smu of $2,0U0; and the residue, after paying the funeral expenses, for tombstones, etc., he gave to his daughter Mrs. McLeod and his son Emory S. He made his wife and his daughter Mrs. McLeod executrices of his wiU. On February 12, 18D0, Stephen Frank died. On the 27th of that month Mrs. Aba- gail Frank filed a petition in the probate court for probate of the wiU, and, she re- fusing to act as executrix, the trust was as- sumed by the daughter Mrs. McLeod. The son Henry receipted for all that was his due tmder the will. On June 27th following Abagail receipted for all she claimed of the personal estate under the wiU, which amounted to $315.10. After this time the widow received the income from these se- curities, and, so far as appears by this record, never made any claim that they or any paii; of them belonged to her. She died December 20, 1890. These securities were found among the papers of Stephen W., and passed into the hands of ^Irs. McLeod, as executrix, and were treated as a part of the estate of Stephen until after the death of his widow. In 1891, Henry Frank tiled a petition in the probate court for the appointment of an ad- ministrator of the estate of his mother, and Mr. Free was so appointed. This proceed- ing was then commenced to declare these secmities as belonging to the estate of Aba- JOINT OWNERS OF PERSONALTY. 45 gall, claiming that she took the absolute title to them as survivor of herself and her hus- band, to whom they were jointly made. There is no controversy in the case except such as grows out of these securities, and, so far as appears, no rights of creditors are concerned. The naked question is, did the wife take these securities at the death of the husband? The husband was the owner of the land out of which the securities grew. After they were taken, they were treated as his in- dividual property during his lifetime. He dealt with them as such, and at his death disposed of them by his will. His wife, as it appears, always regarded thtm as his prop- erty during his lifetime, and after his death acquiesced in their being inventoried and treated as a part of his estate, taking and receipting for her share and interest in the estate as given her by the will, and was ap- parently satisfied to have the securities treat- ed as a part of her husband's estate up to and at the time of her death. No one raised any question about it, mitil after her death, when the son Henry C, who was given only $100 by his father's will, made the claim that the securities belonged to his mother's estate. Counsel for defendant citi's cases in his brief where it has been held by this court that a joint deed to husband and wife conveyed the estate to them by entireties, and that the right of survivorship exists in such cases, so that where one dies the other is vested with the whole estate. But this doctrine has not been applied to mort- gage securities with such strictness. In Wait V. Bovee, 3.5 Mich. 42."), it was said: "The drift of policy and opinion, as shown by legislative and judicial decisions, is strongly adverse to the doctrine of taking by mere right of survivorship, except in a few special cases; and it should not be applied except where the law in its favor is clear." In the above case the husband and wife were each possessed of considerable means, and made investments jointly, each supplying half of the funds. On the death of the husband the wife claimed the whole of the securities by right of survivorship. This right was di nied, and it was said: "Our own decisions relative to the rights of husband and wife in case of united holdings of real estate afford no argu- ment here." It is evident from the testi'iumy given by the complainant in the present case that the scrivener in drafting the mortgage, notes, and assignment did not make them in accordance with the understanding of the parties. It is also evident from the testi- mony of the witnesses that Abagail never imderstood that she had any more right in these securities than she had in the real es- tate out of which they grew. The will was made within two days after they were tak- en, and by the will she was given a life in- terest in them. Enuitably they were a part of the estate of the husband, and, being so treated by the parties themselves, and so understood by them, they must now be so treated, and reformed accordingly. In any event, only one-half coiild go to the estate of the wife under the rule in Wait v. Bovee, supra; but, under the facts shown, the whole securities must be treat*^ as belonging to the estate of the husband. The decree of the court below must be affirmed, with costs. HOOKER, C. J., and McGRATH and GRANT, JJ., conciu-red, MOXTGO:irERY. J., (dissenting.) I do not think that the evidence justifies the con- clusion that there was any mistake in draft- ing the note and mortgage. 46 PARTNERSHIP ASSETS. BARTON et al. v. LOVEJOY et al. (57 N. W. 93o.) Supreme Court of Minnesota. Feb. 1. 1894. Appeal from district court, Crow Win; county; G. W. Holland, Judj^e. Action by A. B. Barton and Jeremiah .1 Howe, partners as J. J. Howe & Co., again- Hannah A. Lovejoy, Frank Lovejoy, an otliei*s, to determine adverse claims to re. property. From the judgment rendered Frank Lovejoy and others appeal. Affirmed Little & Nunn, for appellants. Leon E Lum and Jackson & Atwater, for respond ents. BUCK, J. The plaintiffs brought this ac- tion to determine the adverse claims of thr defendants to certain vacant premises situ ated in the counties of Cass, Itasca, anf Crow Wing, in this state. It is alleged ii the complaint that plaintiffs are the owner, in fee of such vacant premises, and they as! that the title be determined to be in their; and forever quieted, and that the defendants and each of them, be enjoined and barrer from asserting any claim whatever in or t( said lands. The defendants Frank L. Love joy, Lorin K. Lovejoy, Arthur Lovejoy, and Mary E. Winston answered, and the other defendants were in default. Mary E. Win- ston, in her separate answer, alleges that sh- IS the owner of three thirtj'-seconds of said premises, and the other three defendants, in their answer, claim to be the owners in fee of three thirty-seconds of the premises. On and prior to Januarj' 29, 1886, the premises in question were part of the partnership property and assets of the firm of J. J. Howe & Co., but at said time the legal title to said land was held as follows: An undivided three-eighths by Sumner W. Famham, an un- divided three-eighths by James A. Lovejoy, and an \mdivided two-eighths by Jeremiah J. Howe, one of th(>se plaintiffs. The firm of J. J. Howe & Co. then consisted of the part- nership firms of Farnham & Lovejoy, ovm- ing a one-sixth interest in its property and business, and said J. J. Howe, who owned a two-eighths interest in its said property and business, and the firm of Famham &, Lovejoy consisted of those two persons, who each owned a half interest therein, both firms being engagc^l in the lumber business. Lovejoy died intestate January 29, 1880, and said J. J. Howe and O. C. Merriman and Winthrop Young were the executors of said will, which, by its terms, authoiized said executors to close up and settle the said co- partnership business of Farnham & Love- joy, and to join with said Faraham in the execution of all contracts, deeds, and mort- gages and other papers and instruments that might become necessary for the sale of the lands of said Farnham & Lovejoy, and for the doing of such other acts as might be by said executors deemed necessary and ad- visable in regard to the business of said pait- norship. Tlie will was diUy probated, and by its terms made the defendants who have answered the devisees of said James A. Love- joy. At the time of the death of said Love- joy his estate and the firm of Farnham & Lovejoy were insolvent, and the firm of J. J. Howe & Co. was largely in debt. On thr? 11th day of May, 1887, the plaintiffs entered into a partnership under the firm name of J. J. Howe & Co., and about the l.jth day of May, 1887, said Famham, as surviving partner of said James A. Lovejoy, proceeded to settle up the business of said firm, and to this end he sold to plaintiffs all the interest of said Farnham & Lovejoy in said firm and in the firm of J. J. Howe & Co. as it existed at the time of said Lovojoy's death, and prior to the date of said sale, for the sum of $38,000, and which sum was by said Farnham ap- plied to the payment of the debts of said firm of Farnham & Lovejoy, and the premises so sold are a part of the copartnei-ship property of J. J. Howe & Co., these plaintiffs. The executors of said Lovejoy, jointly with said Farnham and his wife, executed a deed to these plaintiffs, in form conveying to them the legal interest in said lands held by said Farnham «& Lovejoy at the time of said Lovejoy's death. The court below found as a fact that such sale was made in good faith, for the best price obtainable, and for the best interest of said firm of Faraham & Lovejoy. The final account of the executors was duly settled in probate court, and they made re- turn to said court that no money or property had been received by them from the assets of the firm of Farnham & Lovejoy, as the same was insolvent. It does not appear that these r^efendants, or any of them, or any creditor, ever in probate court or elsewhere objected to the sale made by Farnham as sm'viving partner to plaintiffs, nor to the transfer of the property of Farnham & Lovejoy to plain- tiffs. Upon these facts the court below found for the plaintiffs, and decreed that the de- fendants had no right or title as against the plaintiff's. We are of the opinion that the decision of the lower court was correct, and should be affirmed. We shall not attempt to enter into a full discussion of all the various questions discussed by the respective counsel. It is elementary that where, in case of the death of a partner, there is not enough personal property to pay the firm debts, then the sur- viving partner has a right to seU the real estate of the firm to do so. If he sells the real estate of the firm for the purpose of paying the firm debts, without first obtain- ing an order from the court, and makes such sale in good faith and for a valuable con- sideration, then such sale pa.sses the equita- ble title in the premises to the purchaser. In this case there does not appear to have been any bad faith on the part of the smwiving partner, nor that he has squandered any of the proceeds of the sale, nor in any manner diverted the consideration received from the PARTNERSHIP ASSETS. 47 just payment of the partnership debts. The property seems to have been sold for its full value. The firm was hopelessly insolvent, and it was not only the right, but the duty, of the surviving partner to sell enough prop- erty to pay the debts. If he had not done this, the debts could have been collected by due process of law if there were sufficient assets, and the same property applied to- wards paying the firm debts. If the surviv- *ng partner sold the premises in good faith, and, as the court below found, for the best price obtainable, no injm-y could possibly have resulted to the defendants. Although the surviving partner, Farnham, sold the premises without an order of the court, yet the heirs have no right to come in and defeat the equitable title which passed upon the sale. The devisees or heirs in such case can be compelled to convey the legal title, or, as in this case, the court properly adjudged and decreed the title to the premises to be in the plaintiffs as against the defendants. In the case of Shanks v. Klein, 104 U. S. 18, the law is stated thus: "Real estate purchased with partnei-ship fuuds for partnership piu*- poses, though the title be taken in the in- dividual name of one or both partners, is, in equity, treated as personal property, so far as necessary to pay the debts of the partner- ship, and to adjust the equities of the co- partners; and for this pvu-pose, in case of the death of one of the partners, the ^arvivor can sell the real estate so situated; and, though he cannot convey the legal title which passed to the heirs or devisee of the deceased partner, his sale invests the pur- chaser with the equitable ownership of the real estate, and the right to compel a con- veyance of the title from the kin or devisee in a com*t of equity." See, also, Hanson v. Metcalf, 40 Minn. 25, 48 N. W. 441. The power and authority which the law confers upon a surviving partner appears to be quite full and extensive for the performance of all the business necessary to a complete settle- ment of the concern. As against heirs or devisees of the deceased partner, he has full control of the partnership property. In this ease there does not, as we have said, appear to have been bad faith on the part of the surviving pai-tner, and this statement is strongly confirmed by the fact that the three execiitors joined with him in the conveyance to the plaintiffs. The answer does not al- lege any fi"aud or bad faith on the part of the sxu-viving partner or the executors. It was his duty to proceed without unnecessary delay to settle the partnership affairs in the best possible manner fc«: all parties interest- ed. As his powers were commensurate with his position, and there does not appear to have been any misconduct upon his part, the judgment of the court below is affirmed. 48 PARTNERSHIP ASSETS. HANSON T. METCALF et al. • 4S N. W. 441. 40 Minn. 25.) Supreme Court of Minnesota. April 3. 1S91. Appeal from district court. Mocker coun- tj- : J\)WKHS. Judge. P. \V. Locke, L\A. C:\wpbell and M. B. KooD. for appellant. L'ri L. Lamprey, ior respondent. VANDERBURGH, J. The plaintiff is a creditor of the late firm of AI. .1. Flynu & Brc.a pnrtnersliip com posed <»fM..I . Flynn, who died January 3, 1SS9, and the defend- ant Daniel Flynn, and duly recovered a jadgment in his favor for the amount of his claim on the IStli day of December, ISSI), against the defendant Daniel Flynn, as surviving partner. In May. ISS!}, Dan- iel Fl.vnn.iu hi-scajjacity of surviving part- ner, and also as au individual debtor, claiming to be insolvent, voluntarily made an assignment in pursuance of the insolv- ent law, partnership property in his hands having been previously attached in a suit against him as surviving partner. The assignee, who is the garnishee in this pro- ceeding, qualified and took possession of the assigned property, including the part- nership and individual assets of the as- signor, and interposes the assignment as a defense to the plaintiff's application for judgment against him as garnishee. The question involved here is the alleged inva- lidity of the assignment. The assignment, on its face, purports to be made in behalf of the partnersliip, — that is to say, by "Daniel Flynn, as surviving partner of M. J. Flynn & Bro.," and by "Daniel Flynn," party of the first pari", and Hamlet Ste- vens, the garnishee herein, as party of the second part; and transfers all "the lands, tenements, goods, chattels, choses in ac- tion, claims, demands, property, and ef- fects of every description belonging to the party of the first part, whether tlie same be and appear in the name of M. J. Flynn, or M. J. Fiynn & Bro., or Daniel Flynn, or otherwise, for a full and more definite de- scription of which reference is hereby made to the inventory or inventories thereof to be made and filed under this assignment as provided by law, except such proper- ty as is bylaw exempt from execution, * * * in trust for the uses and purposes following, • • • after providing for the expenses of the execution of the trust. " "(3) To pay and discharge in full, if the residue of said proceeds be sufficient for that purpose, all the debts and liabilities now due or to become duefromsaid party of the first part to all his creditors, who shall file releases of their claims and debts against the said party of the first part, as by law i)rovided. togetlier with all inter- est due and to become due thereon. And if the residue of said proceeds shall not be sufficient to pay said debts and liabilities and interest in full, then to apply thesame, so far as they will extend, to the payment of the said debts and liabilities and ijiter- est proi)ortionall\- to their res[)ective amounts, and in accordance with the stat- ute in such case made and provided. And if, after payment of all costs, charges, and expenses attending the execution of said trust, and thf» payment and discharge in full of all the said lawful debts owing by the said party of the first part, there shall be anysurplusof the said proceeds remaining in the hands of the parly of the second part, theri (4) to repay such surplus to the party t)f tlie first part, his executors, administra- tors, or assigns." By the party of the first nart is meant Daniel Flynn and Dan- iel Fl^-nn as surviving partner, and he brings into the assignment, for disposi- tion in the insolvency proceedings, his in- dividual and partnership assets for the purpose of winding up the partnership affairs, and settling its debts and liabili- ties as well as his own, and jirocuring a discharge of his partnership and individual liabilities in so far as it may be done in the proceedings. 1. The first objection to the validity of the assignment is that it was notpro[»erly acknowledged. The insolvency act (Law's 18Si), c. 30, § 1) provides that "the assign- ment shall be made, acknowledged, and tiled in accordance with and be govei-ned by the laws of this state relating to as- signments." The assignment in this in- stance is executed by " Daniel Flynn " and by "Daniel Flynn, surviving partner of M. J. Flynn & Bro." The certificate of ac- knowledgment recites that "Daniel Flynn," without further recital ordescrip- tion, personally appeared before the no- tary, and acknowledged the same "to be his free act and deed." The objection is that it is defective in not showing or cer- tifying that it was acknowledged by him "as surviving partner" also. But the in- strument was executed by but one and the same person. It shows on its face what was intended to be conveyed thereby, and the purposes thereof. The acknowledg- ment is the proof of its execution ; and whei*e the certificate identifies the party who alone executed the deed, and affirms tiiat he personally acknowledged its exe- cution, it must be interpreted to be for the uses and purposes disclosed by the instru- ment itself, and the omission of matter of description is not fatal. 1 Devi. Deeds, § 507; Dail v. ^Moore. 51 Mo. oSD; Williams V. Frost. 27 Minn. 250, 6 N. W. Rep. 793. 2. .\nother objection to the validity of the assignment is that it does not trans- fer all the partnership property. A large amount of real estate stands in the name of the deceased partner, which, in equity, belonged to the partnership, and is part- nership assets; and the assignment is as- sailed on the ground that the survivor's deed of assignment did not and could not include and transfer this property. But the deed expressly assumes to convey the same, and in caseof insolvency it is clearly liable to be applied to the payment of the partnership debts, and the equitable title thereto must be deemed to be in the sur- viving partner for sucii purpose, and passes to his assignee in insolvency. It is now well settled that a surviving partner may make an assignment of the partner- ship estate, and this will include the part- nership real estate, which so far stands on thesame footing as personal property; and the assignee or purchaser can compel a conveyance of the legal title from the holder thereof. Andrews v. Brown, 21 Ala. 437; Shanks v. Klein, 104 U. S. 24; 1 Bates, Partn. S 204. 3. On the dissolution of a partnership PARTNEllSHIP ASSETS. 49 by death the surviving partner settles tlie affairs of the concern. The partnprsliip is deemed to continue for such puri)o.se. He alone is entitled to the posse.ssioii and dis- position of the assets, to enaljle liini to discharge the debts and settle the partner- ship affairs. The joint creditors have the primary claim upon the joint fund in the distribution of the assets of insolvent part- ners, and, in case of any surplus after the payment of the partnership debts, the rep- resentatives of the deceased partner are entitled to his share thereof. In the ad- ministration of the estate the surviviufj; partner is, therefore, to be treated as trus tee fi»r the creditors and the heirs or rep- resentatives of the deceased partner; but in all other resi^ects he is treated as hav- ing succeeded to all the rights, interests. and property of the partnership. He alone may sue and he sued. He has tlie possession, control, and sole disposing power of the partnership assets. 3 Kent, Comm. 57, 04; Shanks v. Klein, supra. In the settlement of the estate the creditors have a right to insist ur)on the equitahle rule and order of distribution above indi- cated ; and hence the respondent claims, as a further ground of objection to this assignment, that by the terms of the trust tliis rule is violated, and debts due the separate creditors of the surviving [)artner are put on the same footing with debts due the partnership creditoi's, without preference for the latter. If the assign- ment had expressly provided that one class of creditors should be prefeiTed to another, or that i)artnership property should befirstapplied to thesatisfaction of the individual dehts of one partner in the order of distribution, a different and more serious question would have been pre- sented; but the assignment simply follows the general language of the statute on the sunject. Gen. St. c. 41, § 2S, subd. 3. This, section is to be construed in connec- tion with the general rules of law api)lica- ble to the distribntit)n of partnership as- sets, and this is what is meant by an e Minn. I'.t4. lis N. W. Kep. -Vc', and In re Allen, 4l Minn. 431, 43 N. W. Rep. 3S:.', the assignment herein is a [»artial, and not a general, one, and that releases cannot be exacted as a condition of sharing in the assets un- h'ss the proi)erty of all the partners, indi- vidual as well as partnership, be surren- dered, and included in the assignment, and that in this instance the separate VAN ZILE.SEL.CAS.PKKS. — i property of the deceased partner .8 not brouyrht in; but we think this case is clearly distinguishable. The plaintiff, we think, overlooks the relation between the living partner and the heirs or representa- tives of the deceased partner, ancl the nat- ure of the title and authority of a surviv- ing partner. The heirs or personal repre- sentatives of a deceased partner have no control over or interest in the partnership affairs or profjerty except to recjuire an accounting. They have none of the rights or duties of partners, and no obligations save their liability in e(|uit> to the exteiore stated, the surviving partner is all there is left of the partnership. He has title to the property; may collect, settle, and comijroniise debts. He alone is sua- ble, and is the real party in interest in re- spect to demands '^ue to or owing by the firm, and is primarily liable for all its in- debtedness; and his legal title to the as- sets is exclusive for the purposes of admin- istration. Daby v. Eiicsson, 45 N Y. 7 feet on Canal street, and having a depth of 75 feet. Its north wall was immediately against the south wall of appellant's building, called the "Keat- ing Building;" and it extended 25 feet further west than the Keating building, the extension of 25 feet being on the south line of the space in the rear of the Keating building, as de- scribed in the lease. The proof tends to show that appellee dug excavations on the lines of the alleys, and built boiler and machine shops in the rear of the Keating building; and placed obstructions of various kinds in the alleys and in the space to the rear of the Keating building. From the differences grow- ing out of these transactions various euits have resulted. Appellee brought agitinst ap- pellant a suit in assumpsit for the use and oc- cupation of said premises, to which nonas- sumpsit was pleaded; a suit upon a note al- leged to have been given for rent, to which pleas of nonassumpsit and set-off were filed; three proceedings of distress for rent, in which the general issue and certain special pleas of set-off and general replications to the latter were filed. And appellant brought an action in case against appellee to recover damages for cutting off his light by the erection of the Springer building and other obstructions, to which the plea of not guilty was filed. The said special pleas set up violations of the cov- enants of the lease by alleging: that the light was shut off on the south and in the rear of the Springer building, and its extension to the west, and by the erection of shafting and ma- chinerj- and other obstructions more than 15 feet high; and that the alleys were closed up by the placing therein of iron boilers, cast- ings, engines, building materials, etc.; and that steam power was not furnished, etc. The suit for use and occupation was begun in the circuit court of Cook county. Of the other suits, one was begun in said circuit court, one in the superior court of said county, and three in the county court of said county. The four suits last named were transferred by proper order to the circuit court, and an order wa.s entered by the latter court in the suit for use and occupation consolidating the other suits with it. A stipulation was entered into be- tween counsel that there should be one trial, which should determine the matters in con- troversy in all the suits. A jurj- was waived, and by agreement the consolidation cause was submitted for trial before one of the judges of the circuit court, without a jury. Upon the trial, the plaintiff. Springer, intro- duced the written lease, and proved the amount of unpaid rent due thereon from Oc- tober, 1887, to July 17. ISSS. A large mass of evidence was introduced by the defend- ant. Keating, principally in support of the contentions that buildings and obstructions LIGHT AXD AIR. 53 were erected in the rear of the premises nearer than 25 feet, and that the use of the alleys and free access through the same were interfered with and cut off. In con- tradiction of this evidence a large number of witnesses were examined by the plain- tiff. At the close of his testimony thus in- troduced, the plaintiff offered in evidence, and the court received, over defendant's ob- jection and exception, the proceedhigs in a forcible entry and detainer suit begun by Springer against Keating before a justice of the peace on April 25, 1888, wherein the complainant alleges that Springer was en- titled to the possession of said premises, and that Keating unlawfully withholds the same, wherein judgment was rendered in favor of Springer on May 8, 1888, and an appeal was taken and perfected to the su- perior court, which appeal was dismissed on July 9, 1888, and a further appeal was taken and allowed to the appellate court upon filing bond and bill of exceptions within 20 days. On October 3, 1891, judgment was entered by the circuit court in favor of Springer for $2,907.50 against Keating, and in the suit of Keating against Springer the latter was found not guilty. This judgment has been affirmed by the appellant court, (44 111. App. 547,) and the case is brought here bj' appeal. Hanecy & Merrick, for appellant. Allan C. Stoiy, for appellee. MAGRUDER, J. (after stating facts). In this case many questions of fact and law are discussed by counsel in their briefs, but the record is not in such shape as to authorize us to consider any of these questions, except that which arises out of the refusal of the trial court to admit certain offered evidence, as hereinafter stated. The trial was, by agree- ment, before the court, without a jury, and resulted in a judgment for the plaintiff, which has been affirmed by the appellate court. The judgment of the latter court is conclu- sive as to the findings of fact. No "written propositions to be held as law in the decision of the case" were submitted to the court on the trial below by either side, in accordance with section 42 of the practice act; and hence no question of law is presented for our de- termination, unless the errors assigned as to tiie admission or exclusion of evidence neces- sarily involve the consideration of such a question. Bank v. Haskell, 124 111. 587, 17 N. E. 59; Myers v. Bank, 128 111. 478, 21 N. E. 580; Hall v. Cox (111. Sup.) 83 N. E. 33. The evidence tends to show that a strong light is necessary for such business of manu- facturing and polisliing marble, as appellant was engaged in, and that tlie demised prem- ises were selected by the appellant for that business mainly because of their freedom from surrounding obstructions to the supply of light. Accordingly, the defendant below offered to prove that the erection of the Springer building on the south side of the Keating building prevented the entry of light into the latter from the south and west. Up- on objection by the plaintiff, the court re- fused to receive the testimony, and an excep- tion was taken to its rulings by the defend- ant. The action of the trial court was cor- rect, if there is no express covenant or agree- ment in the lease obligating the landlord to permit the light to pa.ss over the south lot into the leased premises. The English doc- trine is that, "if one who has a house with windows looking upon his own vacant land sell the same, he may not erect upon his va- cant land a structure which shall essentially deprive such house of the light through its windows." Washb. Easem. marg. p. 492, par. 5. This doctrine, however, does not prevail in the majority of the American states. It is held to be inapplicable in a country like this, where the use, value, and ownersliip of laud are con.stantly changing. Air and light are the common property of all. The owner of a lot cannot be presumed to have assented to an encroachment thereon if he has permitted the light and air to pass over it into the win- dows of his neighbor's house, situated upon the adjoining lot. The actual enjoyment of the air and light by the latter is upon his own premises only. The prevalent rule in the United States is that an easement in the un- obstructed passage of light over an adjoining close cannot be acquired by prescriittiou. 2 Woodf. I.andl. & Ten. marg. p. 7U3, and notes; 1 Tayl. Landl. & Ten. §§ 239, 38(J, and notes; Keats v. Hugo, 115 Mass. 204; Mulk-u V. Strieker, 19 Ohio St. 135. In the early c-ase of Gerber v. Grabel, IG 111. 217. this court beld that such a right might be so acquired; but in the later case of Guest v. Reynolds, ijS 111. 478, the Gerber Case was, in effect, over- ruled, and it was held that "prescription right, springing up under the narrow limitation in the English law, to prevent obstruct ii us to window lights," "cannot be applied to the growing cities and villages of this country without working the most mischievous conse- quences, and has never been deemed a part of our law." It is established by the weight of American authority that a grant of the right to the use of light and air will not be implied from the conveyance of a house with windows overlooking the land of the grantor; and that, where the owner of two adjacent lots convejs one of them, a grant of an case- ment for light and air will not be implied from the nature or use of the structure exist- ing on the lot at the time of the conveyance, or from the necessity of such easement to the convenient enjoyment of the property. Keats V. Hugo, supra; Mullen v. Strieker, supra; 1 Wood, Landl. & Ten. § 200, i)p. 422-424. and note; Morrison v. Marquardt, 24 Iowa, 35. "A grant by the owner of two adjoining lots of one of them does not imply the right of an unobstructed passage of light and air over the other." 2 Woodf. Landl. & Ten. marg. p. 703, and note. "The law of uupliod grants and implied reservations, based upon neces- 54 LIGHT AND AIR. Pity or use alone, should not be applied to easements for light and air over the premises of another." Mullen v. Strieker, supra; Hav- ei-stick V. Sipe. 33 Pa. St. 3G8; Keiper v. Elein. 51 Ind. 316. It follows that a landlord will not be liable for obstructing his tenant's windows by building on the adjoining close, in the absence of any covenant or agreement in the lease forbidding him to do so. Myers v. Gemmel, 10 Barb. .337; Palmer v. Wetmore, 2 Sandf. 310; Keiper v. Elein, supra, 2 Woodf. Landl. & Ten. marg. p. 703, and note. But the authorities all agree that the right to have the light and air enter the windows of a building over an adjoining lot may ex- ist by express grant, or by virme of an ex- press covenant or agreement. Hilliard v. Coal Co., 41 Ohio St. 002; Brooks v. Reynolds. 100 Mass. 31; Keats v. Hugo, supra; Morrison v. Marquardt, supra. The question then arises whether the erection of the Springer building could have been regarded as a violation of the express terms of the lease, if proof had been admitted showing that it obstructed the light necessary to carry on the business. The lease contains the following provision: "Par- ty of the first part shall not build at the rear of said premises nearer than 2o feet, and no obstiiietion higher than six feet shall be pla- ced in such manner as to obstriict light to said premises." The meaning of the word '"prem- ises," as here used, is not to be restricted to the Keating building alone, but embraces also the space in the rear thereof. The lease speaks of "all those premises * * ■ * de- scribed as follows;" and then mentions, as constituting those premises — First, the ba.se- ment; second, the store floor; "also a space in the yard in the rear," 2.j feet deep. The space in the rear is as much a part of the premises demised as the basement and the store floor. Therefore the appellee agreed that he would not build nearer than 25 feet to the west line of the demised space west of the Keating building, which space was 25 feet wide from east to west. The Springer building was 75 feet deep, while the Keating building was only 50 feet deep. It follows that the extension of the former west of the rear of the latter was along the south line of said space in the yard at the rear. The north wall of the Springer building did not extend further west than the west line of said space in the yard, and consetiuently the whole of the Springer building was south of the de- mised premises; hence we think counsel foi appellee is right in the contention that no part of that buildina can be considered as an ob- stniction placed in the rear or to the west of the premises leased to appellant. But we cannot agree with counsel in so construing the language of the provision as to limit it to obstructions placed in the rear. The land- lord does not agi'ee that no obstruction higher than six feet shall be placed in the rear in such manner as to obstnict light to said prem- ises. His agreement is that no obstruction higher than six feet shall be placed, whether to the north or to the west or to the south, in such manner as to obstruct light to said building; that is. to said space in the rear, as well as to said building. The Springer building— a brick structure, five sto'-ies high- was so constnicted that its north wall joined the south wall of tne Keating building, and the south line of the space in the yard at the rear thereof. In view of the express provi- sion in the lease, as above quoted and con- strued, we are of the opinion that the defend- ant below was entitled to prove, if he could, that the Springer building was an obstniction placed in such manner as to obstruct light to said premises, and that the trial court should have admitted 'he proof upon that subject when offered. It is claimed, however, that the offered evi- dence was properly rejected, because this suit is for rent a«'cruing during a period while the tenant was in possession. In order to con- stitute an eviction, it is not necessaiy that there should be an actual physical expulsion Acts of a grave and permanent character, which amouni to a clear indication of inten- tion on the landlord's part to deprive the ten- ants of the enjoyment of the demised prem- ises, will constitute an eviction. Hayner v. Smith. 03 111. 430. If the acts of the landlord are such as merely tend to diminish the bene- ficial enjoyment of the premises, the tenant is still bound for the rent, if he continues to occupy the premises. Unless he abandons the premises, his obUgation to pay the rent remains. SkaJly ^. Shute, 132 Mass. 307. We said in News Co. v. Browne, 103 111. 317: "The rule is well settled that the wrongful act of the landlord does not bar him from a recovery of rent, unless the tenant by such act has been deprived in whole or in part of the possession, either actually or construct- ively, or the premises rendered useless. Ed- gerton v. Page. 20 N. Y. 2S4; HaUigan v. Wade, 21 lU. 470; Leadbeater v. Roth, 25 lU. 5S7." To "evict" a tenant, according to the original signification of the word, is to deprive him of the possession of the land. But the landlord, without being guilty of an actual physical disturbance of the tenant's posses- sion, may yet do such acts as will justify or warrant the tenant in leaving the premises. The latter may abandon the premises in con- sequence of such acts, or he may continue to occup.v them. If he abandons them, then the circumstances which justify such abandon- ment, taken in connection with the act of abandonment itself, will support a plea of eviction, as against an action for rent. If, however, the tenant malies no surrender of the possession, but continues to occupy the premises after the commission of the acts which would justify him in abandoning them, he will be deemed to have waived his right to abandon, and he cannot sustain a plea of eviction by showing that there were circum- stances which would have justified him in leaving the premises; hence it has been held that there cannot be a constnictive eviction LIGHT AXD AIR. without a surrender of possession. It would be unjust to permit the tenant to remain in possession, and then escape the payment of rent by pleading a state of facts which, though conferring a right to abandon, had been un- accompanied by the exercise of that right. Edgerton v. Page, supra; Boreel v. Lawton, 00 N. Y. 293; De Witt v. Pierson. 112 Mass. 8; Warren v. Wagner, 75 Ala. ISS; Wright V. Lattin, 38 111. 293; 1 Tayl. Laudl. & Ten. (8th Ed.j §§ 380, 381, and notes; Wood. Landl. & Ten. (2d Ed.) § 477. pp. 1104-110(5; Alger V. Kennedy, 49 \t 109; Scott v. Si- mons, 54 X. H. 42G; Jackson v. Eddy. 12 Mo. 209. But though the tenant will not be al- lowed to plead eviction as a bar to the re- covery of rent where he has remained in pos- session after the performauce of the acts which would have justified him in leaving the premises, yet he is not for that reason without remedy. In those states where the doctrine of recoupment is recognized, he may recoup such damages as he may have sus- tained by reason of the acts of the landlord, against the rent sought to be recovered. 1 Tayl. Landl. & Ten. § 374; 2 Tayl. Landl. & Ten. § 631; 2 Wood. Landl. & Ten. § 477. p. 1107; Edgerton v. Page, supra; Warren v. Wagner, supra. Taylor, in his work on Landlord and Tenant, (section (>il.) says: "By the law of recoupment, as now established in many of the United States, the tenant can avail himself, as a defense pro tanto to an action of debt for rent, of the landlord's breach of his covenants." The doctrine of re- coupment is recognized in this state, and has been applied in proceedings begun by the is- suance of distress warrants, and in actions for rent. Wright v. Lattin. supra; Lindley V. Miller. 67 111. 244; Lynch v. Baldwin. 69 111. 210; Pepper v. Rowley. 73 111. 262. In Lynch v. Baldwin, supra, where the landlord had issued a distress warrant, we said: "As to recouping damages for any loss or injury sustained by the tenant, we have no doubt that it may be done, as they grow out of the same ti-ansaction. The object of this inquiry is to ascertain the amount of rent due; and, if the acts of the landlord impaired the value of the use of the premises, then the tenant should not pay the same rent as if the land- lord had done no act to re14; Wriglit V. I.^ttiu. supra; Roj'ce v. Guggenheim. 1(»6 Mass. 201; 1 Tayl. Landl. & Ten. S§ 379. 3Sl. and notes; 2 Wood. Landl. & Ten. § 477, p. 1107. It is furthermore claimed by the appellant that all the matters set up m defense or as ground of recovery by the defendant in the present consolidated suits were extinguished by the judgment in the forcible detainer suit, and that said judgment operates as res judi- cata, so as to bar all appellant's rights of re- covery or recoupment. We are unable to yield our assent to this view. The judgment in forcible entry and detainer is conclusive onlj^ as to the right of possession, and. in a certain class of cases, as to the existence of the relation of landlord and tenant between the parties, and as to the tenant's wrongful holding over. Doty v. Burdick, S3 111. 473; Norwood V. Kirby. 70 Ala. 397; Hodgkins v. Price, 132 Mass. 196; 8 Amer. & Eng. Enc. Law. p. 176. It was said, in Robin.son v. Crummer. 5 Gilman. 218. that "damages are not recoverable in this action, but the only judgment for the plaintiff is that he have res- titution of the premises," etc. For the error committed in tlie refusal to receive the evi- dence offered by the defendant as hereinlje- fore mentionetl. the judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed. 56 LIGHT AND AIR. DILL T. BOARD OF EDUCATION OF CITY OF CAMDEN. (20 Atl. 73). 47 N. J. Eq. 421.) Court of Chancery of New Jersey. Nov. 6, 1890. Heard on bill, answer, and proofs. T. B. Harned and Charles Vnn Dyke Jo- line, for complainants. William H. Jess and Samuel W. Beldou, for defendants. PITNEY, V.C. The complainant* (moth- er and daughter, the latter an infant) are the owners of a ht)u.se and lot situate on the .south side of Che.stnut street, in the city of Camden, about 4.5 feet east of New- ton avenue, and ask the court to enjoin the delendants from erectiujr a school- house on land immediately adjoininj^ their lot on the west. The defendants are the board of education of the city of Camden, and, as .such, have jurisdiction over and charge of all the public school buildings and grounds in said cit.v. and have con- tracted to l)uiid. and beiore the interi)osi- tion of the t-ourt herein were about to erect, a large school building in the posi- tion mentioned, which, if ^rected, would almost touch the westerly line of the com- plainants" lot, and would be in close prox- imity to the dwelling standing thereon. The allegation and claim of the complain- ants is that the place wliere the building is to be erected is a public street in the city of Camden, and that they have the right to have it kept open and free from obstruction, as well for jnirposes of access to and from their lot. as also for light, air, and ventilation. The question litigatecl was whether or not the place in question is at this time, or ever has been, a public street; or, if not a public sti-eet in fact, whether or not the complainants have not in it the same rights as if it were a public street. Both parties claim title to their several holdings under Sarah Kaighn, who became seised of an tindi- vided interest in the entire block of land, of which the premises in (piestion are a part, upon the death of her father, James Kaighn, some time prior to the year 1S12. Heseems to have died seised of a large tract of land in that neighborhood, which, shortly after his death, was laid out into streets and called " Kaighnton. " and in ].sl2 was partitioned among his children, and in that partition the block in ques- tion, bounded north by Chestnut street, east by Broadway, south byKaighn's av- enue, and west bj- Fourth street, was al- lotted to Sarah Kaighn. This block was bisected diagonally by a street called "Newtfjn Avenue." running north-east and south-west, and it is the part east of Newt(jn avenue with which we have to do. This part was again, during Sarah Kaighn's ownership, bisected by an alley or street, 20 feet w ide, running east and west, called "Sycamore Street." now in use. and about the location of which there is no dispute. The part north of Syca- more street was again bisected by an alley or street, 20 feet wide, running north and south, wliich has never been wholly opened to the public, or, if ever opened, has not been kept open and used as a street, and the true location of which was one of the matters in dispute at the hearing. The recorded deeds from Sarah Kaighn for portions of the north part of the block in question indicate and tend to prove that it was at some time laid out into lots on a map, with the alleys in question plotted upon it, but it was admitted at the hear- ing that no cop3' of such map could now be found. It is clear that some time prior to l^h) so much of the block in question as lies north of Sycamoi-e street was divided, on paper, into eight lots, seven of which had a frontage of 40 feet each on Broad- way, and numbered, commencing with Sycamore street, 13. 14, 15, l(i, 17, 18, and 19. which last was on the corner of Broad- way and Chestnut, and the eighth, num- bered 20, is the lot now owned by the de- fendants. The defendants produce a cer- tified copy of the record of a deed dated May 20. 1S19, made by Sarah Kaighn to John Hopjtle, by which she conveys to him as follows: "The four folU)wing de- scribed lots of ground, situate in the Kaisrhnton aforesaid, designated "Sarah Kaighn's Square No. 7,' and marked in the plan thereof 'Nos. 13.14, 15, & Ui,' bounded southward by a twenty-feet wide alley, westward by other ground of said Sarah Kaighn, northward by lot No. 17, and eastward b3' the Woodbury road, [Broad waj-,] leading from thence to Coop- er's Ferries, containing in breadth, noith and south, one hundred and sixty feet, making four lots, each forty feet front on said rcjad. and in length, east and west. «)ne liu.'idn'd and lighty feet, with i g ess. egress, and regi-ess to and along the said alley and all the lanes, etc.. belonging to Kaighnton." It will be observed that in this deed there is no mention of a lane or alley on the west side oi these four lots. Under the date of the Nth of March. 1821, Sarah Kaighn lunde a deed to Joseph, John, and John M. Kaighn, Joseph Boggs, and .losejih B. Cooper, five persons, as trustees, of a portion of this block, de- scribed asfi»llows: " Ail that lot of ground No. 20. situate in Kaighnton aforesaid, on sul)division of Sarah Kaighn square No. 1. beginning at the angle of a twenty-feet wide alley, and the Cooper Creek road [now known as" Newton Avenue;"] thencj by the north side of said alley [now known as"S.vcamore Street "] eastward to the corner of another twenty-feet wide al- ley, [the alley in dispute;] thence north- ward by the west side of said alley to the south side of Chestnut street [s/c] till it intersects the eastward line of said road, [Newton avenue:] thence south-westerly by said road to the jjlace of beginning." There is a plain hiatus in this description, and there should be interpolated after the words "Chestnut street" these words: "Thence westwardly along Chestnut street." It will l)e observed that no dis- tances are given in this description. The deed declared thatthegranteesshould hold the premises in trust for the purposes of permitting the freeholders of the town of Kaighnton to erect upon the lot conveyed a .school-house and other buildings neces- sary and proper for the maintenance of a school. etc.. and that the building so to be erected shall be used to keep open a sch(iol forever. Upon this lot. in 1S56, the school authorities erected a school-house, which LIGHT A^B AIR. 57 lias been maintained ever since; and the one now proposed to be erected is located between such school-honse and Chestnut street. Under the date of the lOtli of March, 1S21, two days after tlie maliinfj^ of the school-lot deed, Sarah Kaighn made separate deeds to her brother Joseph Kaifi:hn for lots Nos.18 and 19 in that sub- division, which, though dated two days later than the school-lot deed, were in fact, acknowledged and delivered on the sann- day as that deed. The description of lot No. 19 in its deed is as follows: "Begin- ning at the corner of the road called * Broadway and Chestnut Street,' in Kaighnton aforesaid ; thence westward l)y Chestnut street two hundred feet to a twentj'-feet wide allej' ; thence southward by said alley forty feet to the corner of lot No. IS; thence eastwardly by said lot two hundred feet to Broadway," etc., ^'marked in the plan of Sarah Kaighn's square No. 1 'No. 19,' * * * with in- gress, egress, and regress to and along Broadway and said alley, and all the streets, lanes, alleys, and passages belong- ing to Kaighnton aforesaid." Thedcedfor lot No. IS calls for the alley on the west «nd. and the same languapje is used. The reference in thesedeeds to a[)lan con- taining subdivisions of Sarah Kaighn's share in her father's estate seems to establish the actual existence of the map. It will be observed that in these deeds, namely, that for the school lot and those for lots Nos. IS and 19, is found the first mention of the alley in question run- ning north and south from (,'hestnut street to what is now known as "Sycamore Street;" and, as no distances along the streets are given in the deed Uyr the sciiool lot, it seems to me that the distance of 200 feet from Broadwaj- alongChestnutstreet, given in the deeds for lots Nos. IS and 19, must, as between the parties to the con- veyances of March, 1821, conclusively lo- cate that alley asconimencing at Chestnut street, with its eai^terlj- side 200 feet west of Broadway. And this was finally, in sub- stance, conceded by the defendants at the hearing, although the laying out of the lots lying south of Nos. IS and 19, with a depth from Broadway of only ISO feet, would seem to indicate that Miss Kaighn at one time contemplated the locating of the alley 20 feet further east, and although in point of fact there has, for many years, been an alley running northwardly from Sycamore street about half-waj' through to Chestnut street, in accordance witli this latter plan. In 1823 Joseph Kaighn, the grantee of lots Nos. 18 and 19, conveyed them to Joseph Boggs, for a valuable con- sideration, using the same description, calling for the alley, as had been used in the two deeds from Sarah Kaighn to him of March 10, 1S21, and referring to that deed; and it will be here observed that both Joseph Kaighn and Joseph Boggs were trustees in the school-lot deed. Joseph Boggs died, (just when does not aj)pear,) and his lieirs, in 1843, 13 years before the echf)ol-house was built, subdivided lots IS and 19 (which, it will be rcmembeied. had, "When combined, a frontage of 80 feet on Broadway and 200 feet on Chestnut street,) which subdivision is shown on a map made by the counsel of both sides and e.\- hibited forbothpartiesatthehearing. By that subdivision they divided the two lots in (juestion. Nl '"I. bt'ing lui A', li), in th l'.>-^g-i subdivision) was conveyed by deed of April 4, 1843, to Francis Boggs, by his brothers and sisters, and is therein de- scribed as f9. Two questions arise upon this state of facts: First. What riiilits in the alley arose to the owner of complainants' lot out of the language used in the several deeds of March 8 and 10, lS2r? Second. What is the effect upon those rights of the inclosure of the alley by the school au- thorities, and its use as a play-gi-ound by the school children"? With regard to the first question. I think it clear, in the first place, that the effect of the deeds was to carry the title to each of the grantees of the deeds just named to the center of the alle.v. There is no difference in principle in this respect between the use of the word •• alle.v " and the word " street. " It was sa held in Wiggins v. Mc< "leary. 49 N.Y. 34G. and the English common pleas held in Holmes V. Bellinghaiu. 7 C. B. (N. S. ) 329, that the presumption was that the title of proprie- tors of land abutting on a private way ex- tended to the middle of the way. Chief Justice CocKBt'K.N" (page 330) said: "The same principle which applies in the case of a public road seems to me to apply with equal force to a jtrivate road." That seems to me a i*easonable view. In the next place, the effect of the several deeds in question was to create a murual estop- pel between the parties.— the trustees of the school lot on the one part and the grantee of complainants' lot on the other, each against the other. — and in favor of both as against Sarah Kaighn.todeny that the alley in question existed. Moreo\er, the use made of the word "alley " in the othei conveyances, the extension thr{)ugh the entire block of that now known as "Sycamore Street." and the description of the one in question as extending from Chestnut street to Sycamore street. shows conclusively that it was intended to be and have all the attributes of a public street. Upon the principal proposition 1 cite Washb. Easem. p. 170 et seq., and God. Easem. (Perk. Ed.) p. 264 et seq., and the cases there cited ; and, further, Roberts v. Karr, 1 Taunt. 495, where Chief Justice Mansfiicld says: "If yt)u [the lessor] have told me in your lease that this piece of land abuts on the road, you cannot be allowed to say that the land on which it abuts is not a road. " Also Espley V. Wilkes, L. R. 7 Exch. 29S, where (at page 303) Roberts v. Karr is cited with approval. In the latter jt.se the land con- veyed was described as abutting on "new- ly-made streets," and the chief baron (page :304) says: "Here the land is de- scribed as abutting upon 'newly-made streets,' and the case is an authority to- show that the grantor is estopped from denying that the strips of land (his prop- erty) are what he describes them to be, that is to soy, streets, which they cannot be unle9t> there be a wa.v through and along them." 1 further cite Parker v. Smith. 17 Mass. 413. and O'Linda v. Eoth- rop, 21 Pick. 292. In this case land was sold bounded on an intended street, and at page 296 the court say : "As the pur- chasers of the estates on each side of the locu.s in quo did not acquire a right to the soil itself, [holding a different rule in this respett from that prevailing here.] it re- mains to be seen whether they acquired an easement over it. There was no express grant of a right of way, nor did any way pass as appurtenant to ttie land granted, none being in use or in existence. If the defendant acquired an easement in the land, it must have been by implication, or on the principle of estoppel. The doctrine laid down in Parker v. Smith, 17 Ma.ss. 413. seems to us to be a very reasonable and equitable one. That ca.se, we think, was perfectly analogous to this; but if there be anj- difference, this is the stronger of the two. It was there said that "the grantor and his heirs are estopped from denying that there is a street or way to- the extent of the land on those two sides. We consider this to be not merely a de- scription, but an implied covenant that thei-e are such streets.' This opinion is de- cisive of this part of the case. " The ques- tion was thoroughly discussed and the principle established in the case of Child v. ('happen. 9 N. Y. 246. The opinion of MoKsi-:. J .. (page 257.) seems to me to state the doctrine cleai'ly and truly, and I adopt it: "Where an owner of land lays it out in lots and streets, and exhibits the streets upon a maj) by which ho sells and conveys lots so laid out. as between him and the purchasers of such lots, the spaces so laid down upon the map as streets are dedi- cated as such to the public use. This I understand to be the law, and in conform- ity to the principles of natural justice. The mere act of selling and conveying by such a map binds the grantor to permit the land so laid down as streets to be used as such. As between the parties, their heirs and assigns, it Hxes the servitude of a public wa^- upon the land thus laid out as streets. It is perhaps unnecessary now to consider whether such a grant as be- tween the grantor and the pul)lic would be a dedication. • • * The transaction is, however, in the first instance. strictly a private one as relates to the streets, as much as it is a private one as relates to the land actually conveyed. The right to use, and to have used, by the public, the streets laid down upon the map, has be- come an appurtenance to the parcel of land granted, and the same right belongs to each of the parcels granted upon the LIGHT AND AIR 59 same terms. As between the original owner of the land, and the several jsran- tees of parcels thereof, these ri^^hts are fixed, but until the public has in someway become a part^- to the transaction, the whole arrauj;ement is subject to be re- scinded by the joint act of the original owner and of all those who own and have the riffht to represent the land sold. Tiie principle established is that an owner of land may make any law^ful disposition of it which he deems most beneficial. He may found a city, a village, or an ap;rici]l- tural or manufacturing community at his own free will, .so far as the appropriation of his land may go to effect such purposes. He may adopt just such measures concern- ing his land as to his judgment may seem expedient. I suppose it would nowhere be doubted that a man owning a hundred acres (jf land through which there ran no highwaj' would be at liberty to inclose it with a wall, and to erect a fenced town. He might lay out streets throughout the entire parcel, and collect a phalanx of so- cialists, having all the streetscommon and as among themselves public; as to the world beside, exclusive and private. In other words, there might be impressed up- on this mass of private property, by pri- vate contract, rights, in the strictest sense of the word, analogous to the ordinary public rights of highway, and yet these rights confined to the owners and rejjre- sentatives of the land forming the subject of the compact, and liable to be ended and rescinded by the mutual consent of all who have an interest in the subject. " In this state the same doctrine was an- nounced in Prudden v. Railroad Co., 19 N. J. Eq. 386, at pages 391, 392, and 394, and, although the decree in that case was re- versed on appeal, the statement of doc- trine referred to was not disturbed. It was reiterated by the court of errors and appeals in terms still more clear and strong in Booraem v. Railway Co., 40 N. J. Eq. 5'u, 5 Atl. Rep. lOG. In that case the complainant sougiit to restrain the de- fendant from building a railway across lands sold by her to defendants for that purpose in such a manner as to obstruct a street not yet constructed, which was reserved iji theconvej-auce by these words : "Together with all the right, title, and interest of the said party of the first part to the lands covered by Ogden and Palisade avenues in front of the lands above de- scribed, subject to the easement of said avenues respectively; it being under- stood that Ogden avenue is extended for the same width across said premises, and dedicated as a public highway. " In discussing the rights of the complainant in this street the court says: "The exten- sion of Ogden avenue across the premises was obviously intended by the parties to afford means of access to the complain- ant's i-emaining lands from the present termination of the avenue, and the lan- guage used in the deed is such as is uni- formly recognized as sufficient to create an easement of a rignt of way inter partes by way of implied grant. Nor do the ad- ditional words with regard to the exten- sion of the avenue being dedicatef access to and passage over the highway on the servient tenement. The court, in that case, says: "There are, it appears to tuc, two classes of rights, originating in ne- cessity and in the exigencies of human af- fairs, springing up coeval with every pub- 60 L GUT AND AIR. lie hiprhway. anfl which are recognized and enforced by theconunon lawofal! civ- ilized nations' The first relates to tlie public passage: the seccjnd, subordinate to the first, but equally perfect antl scarce- ly less important, relates to the adjoining ownei-s. Among the latter is that of re- ceiving from the public highway light and air. In the first i)lace. has not the adja- cent owner upon the ' altn regis via,' (the ordinary pui>lic highway,) of common right, the privilege of receiving from it light and air? Univei*sal usage is common law. Wliat has this been? Men do not first build cities, and then lay out roads through them, but they first lay out roads, and then cities spring up along their lines. As a matter of fact and his- tory, have not all villages, towns, and cities in this country and in all others, now and at all times i)ast, been built up upon this assumed right of adjacency? Is not every window and every door in every house in every city, town, and vil- lage the assertion and maintenance of this i^ght? When people build upon the pub- lic highway, do they inquire or care who owns the fee of the road-bed? Do they act or rely upon any other consideration except that it is a public highway, and they the adjacent owners? Is not this a right of universal exercise and acknowl- edgment in all times and in all countries, a right of necessity, without which cities could not have been built, and without the enforcement of which they would soon become tenantless?"' The same doctrine has been established after fierce and protracted litigation in New York in the Elevated Railway Cases. Storv V. Railroad Co., 90 N. Y. 122; Lahr V. Riiilroad Co., 104 X. Y. 2tj'<, 10 X. E. Rep. 52s. Chief Justice Rt<;ER, (at pages 2"SS, 2n9.) in stating the result of the author- ities savs: "That abutters upon a public street, claiming title to their premises b^- grant from the municipal authorities, which contains a covin:iiit that a street be laid out in front ot such property, * ♦ * acquire an easement in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage andcirculatiou of light and air through and over such street, for the benefit of property situated thereon ; * * * that the erection of an elevated railroad, the u.se of which is in- tended to be permanent, in a puldic street, and upon which cars are propelled by steam-engines, generating gas, steam, and smoke, and distributing in the air cinders, dust, ashes, and other noxious and dele- terious substances, and interrupting the free passage of light and air to and from adjoining i)remises, constitutes a taking of the easement, and its appropriation by the railroad corporation, rendering it lia- ble to the abutters for the danfages occa- 8ione. and observing the size of the ground inclosed, I think one would hardly susjioct that the school au- thorities would ever desire to occujiy any ])art of it for any additional building for school |)urposes. The south-west end of t':ei)i'()p()sed newbuilding will reach \\ith- in 10 feet of the old one; its front will be oidy 8 feet distant from the sidewalk of Newton avenue, and its north-east end will almost touch tin* liiieof complainants' lot, leaving an unusually small amount of open ground around it. I do not think that the inclosure of K>i'>, with the subsecjuent use of the lot, can be construed as notice to the owners of complainants' lot that at some future daj'the locus in dispute would be used as a site for a school-house. On the contrary. I think it would rathei" be notice that it would not be so used. I think the owner of complainants' lot may well have thought and saiil : "I care nothing for the right of passage over this alley, and do not object to its inclosure. Its inclosure and use as a play-ground does not interfere with the ligltt and air from it. So I am content." Counsel for the defendants invoked the aid of what is called the "balance of con- 62 LIGHT AND AIH. renience" rule, ihey pointeri out tiie ffi"eat injury which the defendants would suffer from an interrui»tion of the execu- tion of theirplans, by which they arebound in contract, and the comparatively slii?ht injury to the complainants. But I do not understand that the rule appealed to ap- plies here. Thefacts upon whichcomplain- ants' ri;^ht rests are dear and undisputed. The rights of thecoinplainants arising out of those facts, I think, are equally clear, and have been recognized by our highest ct^urt. The case has reached the stage of tinal hearing, and the right invaded is a riijht of property. The building proposed to be erected will occupy the greater part of the alley adjoining complainants" prem- ises, and it was admitted that it would be much higher than the fence, whicli has stood so many years. But. were the ob- structit)n much less. I do not see how this court could refuse relief on account of the smallness of the injury. To leave the com- plainauts to their remedy at law (sup- posing that it exists) would be to say to them that the\ must part with their prop- erty for such price as they may realize out of an endless series of actions for dam- ages,— a result entirely contrary to right, justice, and equity. This court has fre- quently and uniformly exercised its juris- diction in similar cases, and enjoined the threatened injury. Bechtel v. Cai-slake. 11 N. J. Eq. 500; Barnett v. Johnson, supra; Riehle v. Heulings. 38 N. J. Eq. I'O; and Oawtry v. Leland. 40 N. J. Eq. 323, where the decree of this court was af- tirmed, on appeal, for the reasons given by the vice-chancellur. In that ca.se there was a mere encroachment upon a private way, not amounting to a complete ob- struction, and the vice-chancellor said: "It is not a question of convenience, of how much space is suitable for the com- plainant, but one of right under the cove- nant." This last case is the only one of those just cited which was noticed by the court of ai>peals in Hart v. Leonard. 42 N. J. E(i. 416, 7 Atl. Rep. 86.5, in the classitica- tion there found of the instances in which this court will interfere by injunction t)n final hearing, and the reference to the cases in which it has so done. But I do not construe the omission of the others as at all discrediting tliem as authority. In support of their position on this part of the case the defendants' counsel relied up- ou Zabriskie v. Railroad Co., 13 N. J. Eq. 314; Railroad Co. v. Prudden, 20 Zi. J. Eq. 541; Higbee v. Railroad, etc.. Co., Id. 435; Dodge V. Railroad Co.. 43 N. J. Eq. 3.51. 11 Atl. Rej). 751. I have carefully examined each of them. They are clearly distinguish- able from the case in hand. In the finst case the comi)laint was that the h(U'se- railroad track was laid close to the line of the sidewalk, instead of the middle of the street, and its use would i)revent access to complainants" abutting land. The in- junction was refuseil on tlie ground that no imi)rove!nents were yet made on com- plainanta' lot, and that, until that was done, no injury resulted, and that, in the mean time, it was not worth while to stop the running of the cars. In the Frudden and Higbee Cases the relief was refused on the ground that the complainants had, in each case, accjuiesced in the placing of the railroad in the street in front of their sev- eral lots, and in the Higbee Case to the placing of tlie station tJiere also. In the Prudden Case the laying tlie addition;il track, the injury threatened, was author- ized by the company's charter, and the court held that it must presumably have been contemplated by the complainant in his ac(]uiescence; and in the Higbee Case the addition of a platform to a station was placed in the same category. In both cases the remedy at law was reserved to tlie complainants, and in the Prudden Case, (page .540.) the resort to this court if the injury proved serious. In Dodge v. Railroaci Co. the part of the street about to be obstructed had been vacated by the proper authorities, and comi)Iainants, whose land did not abut on the point vacated, fell back on the original dedica- tion by the previous owner of their land. But it turned out that such previous own- er had in some way conveyed the part of the street vacated to the railroad com- pany before he conveyed to the complain- ant, who was held bound by such previous conveyance. Besides, in both the Prudden and the Dodge Cases, there was fouud the additional question whether, where the private right of the abutting owner upon a dedicated street, which exists jjrior to its acceptance by the public, has merged, so to si)eak. upon its acceptance, in the higher public right, such private right re- vives upon a vacation of a street, which question was an unsettled one in this state. Defendant also called attention to the location of complainants' h«)use, and to the state of the proofs as to its win dows.etc. I understood it to be admitted at the hearing that it stooil opposite, or nearly so. to the points of nearest ap- proach of the proposed new school-house. But I do not conceive that the present lo- cation orcoiidition of complaina:)ts' house has the least effect upon their rights. Those rights do not arise from the use of windows in their houseofa particular size and location, or. indeed, of any windows, or even a house at all. Those rights would be the same if no house had ever been erected on their lot. Complainants have the right, at their pleasure, to erect a building covering the ^vhole of their lression8, and that circumstance, together with the pub- lic character of the inteiests incidentally involved, have led me into stating ni3' rea- sons at a perhaps unnecessary length. I think the com[)lainants are entitled to the relief prayed for, and I will advise a decree acconlingly. WATER. 63 FALLS MAXUFG CO. t. OCONTO RIVER IMP. CO. et al. (58 X. W. 2.57, 87 Wis. l.*^4.) Supreme Court of Wisconsin. Fel). 2.'*, 1S94. Appeal from circuit coiirt, Oconto county; Samuel D. Hastings, Jr., Judge. Action by the Falls Manufactiu'ing Com- pany against the Oconto River Improvement Company and others. There was a judg- ment for defendants, and plaintiff appeals. Affirmed. The other facts fully appear in the follow- ing statement by CASSODAY, J.: This action was commenced September 28, 1891, to perpetually restrain the defendants from interfering with or interi-upting the natural flow of the Oconto river at the plain- tiff's pulp mill and milldam, so as to impair the tisefulne.^s of its water power, and for $15,000 damages already caused in 1891, prior to the commencement of this action, by the wrongful acts complained of, and such dam- ages as should accrue thereaft(>r during the pendency of this suit, and for costs. The an- swer consists of admissions, denials, and counter allegations, and justifies under certain acts of the legislatm-e of this state. At the close of the trial the court found, as matters of fact, in effect: That the Oconto river, from its mouth to the junction of its north and south branches, a distance of 50 miles, is a meandered stream of the average width of 100 feet. That its branches were said north and south branches, the Waupee and McCauslin's brook, which tlow into the north branch, Peshtigo brook, which flows into the main river just below tue jtmction, and Little river, which flows into the main river below Stiles. That the city of Oconto is sit- uated near the mouth of the main river; that Stiles is 10 miles above the mouth of the river. That Oconto Falls, where the plain- tiff's mills and dams are situated, is about 10 miles abovt' said mouth. That Flat Rock dam, owned and operated by the defendants, is about ;^0 miles above the mouth of the river, and 20 miles below the junction. That the Oconto river and its branches are sub- ject to fluctuations in the height and volunse of water. That there is a period of high water or freshet on said stream and its trib- utaries each spring, lasting, ordinarily, from about the middle of April to about June 1st. That, in addition to such freshets, there is usually a rise of water in June, and occa- sionally in September, which are much less in extent than the spring freshets, and last only about two weeks. That the average natm-al flow from the junction of the north and south branches to the mouth of the river, dmnng spring freshets, is from 85,000 to 100,- 000 cubic feet of water per minute. That an ordinary stige, when there are no freshets, is about 25,(M)0 to 3O,0(J0 cubic feet per min- ute. That during extreme low water, such as occtirs ouce or twice in a lifetime, and did in 1891, it is about from 13,000 to 10,000 cubic feet per minute. That the natural flow fluctuates above and below .said quan- tities, and during November, 1891. it so fluc- tuated from about i:i,0;)().(::)(>.( MM) feet of pine were above the plaintiff's mills at Oconto Falls, and about 2,7(H»,n(K),(,KM),shcts were over, whereby the natural capacity of the stream and its brandies was increased so that by ISUG, and cheuce to 1S72, from GO.lWO.oao to 75.000.000 feet of lojrs were an- nually driven down the river from above Flat Rock dam to Stiles and the city of Oconto. That, in the early years of log driv- ing on the river, most of the logs were put in between Oconto Falls, where the plaintiff's mills are situated, and the junction, or with- in a short distance above the junction, and were largely driven down the river to their destination, near its mouth, on the spring freshets. That, as logging <)])erations extend- ed up said branches, the iiroportion of logs floated down the river from above the jimc- tion increased \mtil now, when most of said logs come from above the junction; and. as such proportion so increased, more and more of said logs came into the main river later in the season, and too late to get the ben- efit, or full benefit, of the spring freshets, until now, when but a small part, if any, of the logs get below the junction in time for such freshets. That, as the proportion of logs thus coming to the main stream too late for the spring freshets increased, the ne- cessity for increased facilities for floating them down the stream became greater, and for that purpose, from about 18()0 until 1S72, a flooding dam, known as the "Chute Dam," was built about 25 miles above said jiuic- tion. on aud across said north branch, and was used. That about two-thirds of the wa- ter passing at Oconto Falls, where the phiin- tilT's mills are .situated, comes into the river below said Chute dam. That Flat Rock dam was built in 1872, and is a flooding dam, and used by storing the water of the river in its pond, which, when full, holds about 300 acres, and discharging the same in greater quantities than the natiual flow, when there are no freshets to aid in driving logs and timber down the stream, aud in sort- ing, handling, and deUvering logs below the dam. That such dams are the usual means of driving logs on logging streams of north- ern Wisconsin. That the Flat Rock dam has been so used each year since 1872. such use beginning after the spring freshets, and con- tiiuiing. whenever the natural flow was in- Kufticient to drive logs, until the river froze in the fall. That in such use the discharge of stored water is called the "numing of heads." That th^y are ordinarily run daily, but sometimes oftener, and sometimes once in two days, depending upon the adequacy of the natural flow to cre-ate sufficient heads for driving. In running heads, the gates of the dams are raised from six to ten hours, and then closed until the next head is run. That heads reach Oconto Falls in about four hours, and increase the natural level of the water there from one to three feet, or, at their highest point, to about the ordinary level of the spring freshet. That the in- crease at Oconto Falls is wholly within the banks of the river, aud continues for about the time the gates at Flat Rock dam are- open to run the head. That, while said gates are closed between heads, the flow at Oconto Falls greatly decreases, until it is much less than the natural flow, aud during the year 1891 it was at times less than 3.000 cubic feet per minute. That Flat Rock dam was built by twc Northwestern Improvement Com- pany, under chapter 363, P. & L. Laws 18(!9. That said improvement company, about the year 1809, took possession of, and maintain- ed and operated, until the year 1891, the dams and improvements existing on said branches prior to 1809, built other dams be- sides the Flat Rock dam, and spent large sums of money therein, and in otherwise improving said river and its branches to facilitate the driving of logs therein. That Flat Rock dam was so used, in conjunction with other improvements, from 1872 to 1892, and thereby the natural capacity of said stream was so increti.sed that from 00.0<».(XX) to 75,000.000 feet of logs have been driven down said river and its branches annually oince 1872; that there still re.uain on the river and its branches, above Flat Rock dam, 500,000,0*J().000 feet of pine and 300.000,000,- 000 feet of other timber, all tributary to the river and its branchew. That flooction to said blasting aud improvement. That April, 1884, the plaintiff:' became the owner of a one-half in- terest in the Volk dam. That in 1888 the plaintiff acquired the whole interest in that dam and water power, and owns numerous mills constructed thereon before the com- mencement of this action. That before the plaintiff purchased any interest in the water power it knew that the river was a log-driv- ing sti-eam, aud before it built its first mill it knew that, in driving, its natural flow at Oconto Falls was interfered with by flooding dams, substantially as it had been since 1872 and was in 181)1 and 1S!)2. and it built each of said mills with such knowUnlge. That from 1885 to 1891 the plaintiff complained, from time to time, to individual directors of WATER. 65 the defendant Northwestern Improvement (Jorapany, that the use of the Fhit Rock (liim interfered with the use of its water 1)0 wer, and in 1S91 made similar complaint to the Oconto River Improvement Company. That the value of the plaintiff's water power plant is about $200,000. That the interrup- tion of the plaintiff's business, caused by j the runuin?: of said heads, was a damage of $2,500 in 1891, and $500 in 1892. As conclu- sions of law the com-t found, in effect, that the Oconto river is a naviiijahle stream and a public hifjhway for the transportation of loss and timber from above Flnt Rock dam to its mouth; that Flat Rock dam is an au- thorized means for the improvement of said navigation, and the Oconto River Improve- ment Company had the right to use it as it did in 1891 and 1892, paramoimt to the plain- tiff's right to hydraulic power; that the de- fendants are entitled to judgment dismissing the plaintiff's complaint, with costs. From the judgment entered thereon, accordingly, August 29, 1893, dismissing the plaintiff's complaint, with costs, the plaintiff brings this appeal. H. O. Fairchild and Hooper & Hooper, for appellant. Greene & Vroman, for respond- ents. CASSODAY, J., (after stating the facts.) This case comes before us upon the findings of the court, and so there is no dispute about the facts. The plaintiff's milldam and manufacturing plant were constructed im- der legislative authority, and are of gi'eat value. They are situated IG miles above the mouth of the river, and have always been used exclusively for manufacturing pur- poses. The stjitutes authorizing the same have at all times required the projirietor to maintain in the dam a chute or slide suffi- ciently deep and wide to allow the passage of logs coming down the river. The same is true of other dams above and below the plaintiff's dam, owned by those not parties to this action. One of such dams is situ- ated six miles below the plaintiff's, and has been tised, in part, for flooding pm'poses to aid in driving logs on the river. In 18(57 the legislature made it a criminal offense for any person, at any time or in any manner, neg- ligently or with design, to put, or cause to be put, into the Oconto river, in Oconto coun- ty, any refuse lumber, slabs, sawdust, or other waste materials to an extent that should materially hinder or obstruct naviga- tion. Chapter 50(5, P. & L. Laws 1807. Flat Rock dam is the principal sti'uctm-e of the defendants, and is situated 14 miles above the plaintiff's dam. It was first con- structed under chapter 308, P. «&. L. Laws 1809. which authorized the defendant the Northwestern Improvement Company and its successors to improve the portions of the Oconto river and its brandies and tributaries described, by blasting rocks, dredging, and ditching in the several channels within such VAN ZILE,SEL.C.\S.rEUS. — 5 limits, and by constructing dams, wing dams, booms, side booms, chutes, or slides, and by all other proper means for making the same navigable for the driving of sawlogs; and for that purpose the company was thei cliy expressly authorized to entirely close any slough, bayou, or channel so as to prevent the diversion of water from the channel so improved, and to charge and collect tolls for all logs or timber run through such improve- ments, at the rates therein specified. By the act of congress of July 12, 187<3, consent was expressly given to the defendant the Northwestern Improvement Company "to improve the Oconto river and its branches and tributaries, so as to run logs down said river and its branches and tributaries, across the Menomonee Indian reservation, in accord- ance with the laws of" Wisconsin, .subject to the conditions tliereln named. 19 Stat. 89. December 31, 1890, the defendant the Oconto River Improvement Company was incorporat- ed imder chapter SG, Rev. St., and the amend- ments thereto, for the purpose, as expressed in its articles of incorporation and charier, of improving the Oconto river and its branches, and driving, sorting, and delivering logs and timber therein, as provided in said chapter. The formation of such corporations is there- in expressly authorized for the purpose of the "improvement of rivers and streams, and for driving, sorting and delivering logs or timber." Sanb. & B. Ann. St. § 1771. It is further expressly jtrovided in that chapter that any corporation formed thereunder "in whole or in i)art for the improvement of any stream and driving logs therein and for hold- ing or handling logs therein, which shall have taken prior possession of such stream for that purpose, shall have power to im- prove such stream and its tributaries, by cleaning and straightening the channels thereof, closing sloughs, erecting sluice-ways, booms of all kinds, side rolling and flooding dams or otherwise, if nece.ssjiry; but shall in no case, in any manner, materially ob- struct or impede navigation upon such streams, or erect any dam or other obstnic- tion below the head of steamboat naviga- tion, or obstruct any navigable slough, ex- cept with the written consent of the owners of the entire shores on both sides thereof." Sanb. & B. Ann. St. § 1777. The same sec- tion not only authorizes such corporation to take charge of logs at the request of the owner, but, under certain conditions men- tioned, to take possession of any and all logs put into such stream, and to drive the same to their resi)ective destinations; and also ex- pressly provides that "no injunctional order shall be granted to prevent the use or enjoy- ment of any such improvement, or abate any such dam necessary thereto, unless such cor- iwration shall fail for sixty days after judg- ment to pay any damagi's recovered for any injury done by or in consequence of its works." Id. .January 27, 1891, the defend- ant NorthwestiM-n Improvement Comi);iny conveyed to the defendant Oconto River Im- 06 WATER. provemont Company the Flat Rock dam and all its improvements on the river and its branches; and that company has since op- onited the same substantially as before, to drive annually substantially the same quan- tity of logrs. There is no claim that the de- fendants have at any time improperly op- erated their flooding dam, nor that they have exceeded the powers thus given to them by the several statutes mentioned. The con- tention is that the plaintiff is also acting un- der statutory authority, prior in time, and that the rights of the respective parties are correlative; in other words, the contention is that the defendants cannot so operate their flooding dam as to impair the efficiency of the plaintiff's water power. As indicated in the foregoing statement, the flooding dam is 14 miles above the plaintiff's water power. Of com-se. the plaintiff has no title or owner- ship to any of the particles of water at the flooding dam, nor anywhere in the river. Lawson v. Mowry, 52 Wis. 2.34. 9 X. W. 2S0. It is the use of water while passing that gives it value. Id. It is only the interfer- ence with such use by the plaintiff that is here complained of. One of the purposes of the flooy reason of the piers, piling, booms, boom sticks, and dams before mentioned, and the way in which defend- ant's employes performed their work above and at the sorting gap. and appropriated the river for the storage of defendant's logs, the passage of the logs which plaintiffs were driving was unnecessarily impeded and obstructed, and that plaintiffs were unrea- sonably and oppressively hindered and de- layed in their driving operations, to their great damage; the object of this action be- ing to recover the amount of such dam- ages. It is apparent that the learned trial judge, although convinced that by reason of the maintenance of a public nuisance in the river a wrong had been committed for which plaintiffs should have redress, felt constrained to dismiss the action on the authority of two recent cases (Swanson v. Boom Co., 42 Minn. 532. 44 N. W. Rep. 9S6. and Lammers v. Brennan, 46 Minn. 209. 4S N. W. Rep. 706.) and we are obliged to admit that, if reliance could be placed on our views as to the proper application of a well-settled rule of law to a given state of facts as expressed in Swanson v. Boom Co., he was fully justified in his ruling. While differing somewhat on the facts, the present case cannot be distinguished from I that, and the rule there announced as ap- I plicable and controlling, preventing a re- covery by the plaintiff. If rightly appUed ou that occitsion, would be equally as pertinent and equally as determinative on this. But we are now convinced that an error was committed in the application to the facts in the Swanson Case of the salutary and well-established rule that an individual cao not maintain a private action for a public nuisance by reason of any injury which he suffers in common with the pubUc, and that it is only when he sustains special injmy dif- fering in kind, not merely in degree or ex- tent, from that sustained by the general public^ that he may recover damages in a private action; and an examination of the opinion recently tiled in Aldrich v. City of Minneapolis, 53 N. W. Rep. 1072, will indi- cate that we then had doubts of the cor- rectness of the decision in Swanson v. Boom Co. In the opinion in Aldrich v. City of Minneapolis most of the cases in this court bearing on the subject, and many others, were referred to and discussed, and we are I not inchned to again go over the ground. ! It is obvious that there has been a very i m>rked conflict of opinion in the application I of the rules pertaining to the rights of pri- i vate parties to have redress in private ac- ' tions when injuries have grown out of pub- i lie nuisances, and as to where, on the facts, \ the line shotild be drawn. This conflict, and i that the adjudicated cases are irreconcila- ' ble, is well shown in Stetson v. Faxon. 19 Pick. 147; Farrelly v. City of Cincinnati, 2 Disn. 516; and in Wood. Nuis. c. 19. That a nuisance, such as an unreasonable or wanton obstruction of a navigable stream, a pubUc highway, may be public in its general effect WATER. GD upon the public, and at the same time private as to those individuals who suffer a special and particular damage therefrom, distinct and apart from the common injury, need not be demonstrated by illustration. The public wrong inflicted upon all persons must be redressed by a public prosecution, and the private injury by an appropriate private action. An obstniction to a high- way, although it be an infringement upon the rights of the general public, in the na- ture of a public nuisance, may be, and fre- quently is, productive of special and partic- ular damage to a private individual; and it would be highly unjust and inequitable to say that he has no right of redress in a private action, on the ground, merely, that the injuiy had resulted from an act which is a public offense in itself, and because other persons might have been injured and damaged in the same manner and to the same extent, had they met the obstruction under like circumstances. Such is not the law. The general doctrine in reference to the use of navigable streams as public high- ways is that each person has an equal right to their reasonable use. What constitutes a reasonable use depends upon the circum- stances of each particular case, and no posi- tive rule can be laid down to define and regulate such use with precision, so various are the subjects and occasions for it, and so diversified the relations of the parties therein interested. The defendant had the right, as had the plaintiffs, to use the river as a highway for the purposes of naviga- tion, and, as an incident to this, the right to secure its logs in side booms, although the inevitable result would be to tempo- rarily obstruct the logs of other persons des- tined for a mill or marlcet further down the stream. And we have no doubt of its right, in a reasonable manner, to erect piers and dams, and to put in piling, and attach boom sticks, and also to maintain side booms for the storage of logs; but it was not author- ized by the construction of piers, dams, booms, or boom sticks, or by tile manage- ment of either, or of a sorting gap, to un- reasonably or oppressively obstruct or block- ade the way. It must use the stream with due deference to the rights of others, and in most respects streams used for high\\ay purposes are governed by the same general rules of law as are highways upon land. No general rule can be laid down for deter- mining whether a pleading shows, or wh(>ther the evidence produced upon a trial tends to estabhsh, a case under the principle or nile that, to maintain an action for a wrong or injury arising out of the mainte- nance of a public nuisance, an individual must have sustained special injury differing in kind, not merely in degree or extent, from that sustained by the general public; and we shall not attempt it. It is well dis- cussed in Aldrich v. City of Minneapolis, supra. We are of the opinion that the case now under consideration was brought within the rule, and that the evidence tend- ed to show that plaintiffs had suffere<^l a special and particular injury. This injmy, the direct result of an unreasonable deten- tion of their logs by means and methods for which defendant company is responsi- ble, was wholly distinct and different in kind, not merely in degree and extent, from that sustained by the general public. A private action can be maintained to redress this injuiy, notwithstanding there is also a remedy affordetl the public. In priiiciple the plaintiffs' rights cannot be distinguished from the individual rights considered in Brakken v. Railway Co., 29 Minn. 41, UN. W. Rep. 124, and in numerous other cases in this court, where an action to redress a private wrong, growing out of a public nuisance, has been declared the proper rem- edy. Attention is called to Brown v. Wat- son, 47 Me. 161, and Euos v. Hamilton, 27 Wis. 2.j6, in which the exact question now before us has been discussed briefly, and passed upon. Both cases support the con- clusion herein reached, and the one last cited has been approved in at least Ihree later cases in the same court. That it has been the common practice to bring actions at law not distinguishable from that at bar, and also in equity, and to prosecute them to a successful termination, will be seen from an examination of the following: Powei-s v. Irish, 23 :Mich. 429; Watts v. Boom Co., 52 Mich. 203, 17 N. W. Rep. 809; Gifford v. McArthur, 55 Mich. ."^3.5, 22 N. W. Rep. 28; Enos V. Hamilton, 24 Wis. G5S; Clark v. I'eckham, 10 R. I. 30; Blanchard v. Tele- graph Co.. 00 X. Y. 510; Hughes v. Heiser, 1 Bin. 463; Weise v. Smith, 3 Or. 445; Lancey v. Clifford, 54 Me. 487; Dudley v. Kennedy, 63 Me. 465; McPheters v. Boom Co., 78 Me. 329, 5 Atl. Rep. 270; Friok v. Lawrence, 20 Conn. 117. Order reversed. VANDERBURGH, J., absent, took no p irt herein. MITCHELL, J. I concur in the result, and do so more especially on the ground that, for the purposes for which plaintiffs were using the river, (driving logs.) it was their only highway for getting their timber to their mill. See Butterfield v. Gilchrist, 53 Mich. 22, IS N. W. 542. 70 WATER. MINNEAPOLIS MILL CO. v. BOARD OF WATER COMRS OF CITY OF ST. PAUL. ST. ANTHONY FALLS WATER-POWER CO. V. SAME. (.jS N. W. 33.) Supreme Court of Minnesota. Feb. 9. 1894. Appeals from district court, Hennepin coun- ty; Thomas Canty. Judge. Action by the Minneapolis Mill Company against the board of water commissioners of the city of St. Paul for an injunction, and an action by the St. Anthony Falls Water- Power Company against the same defendant for the same relief. The two actions were tried together, and both dismissed. From orders denying a new trial, plaintiffs appeal. Attirmed. Benton, Roberts & Brown, for appellants. Leon T. Chamberlain and Walter L. Chapin, for respondent, COLLINS, J. These cases were tried to- gether in the court below, and, when plain- tiffs (appellants here) rested, both actions were dismissed, upon defendant's motion. From orders refusing new trial, appeals were taken. Appellants are corporations created in 1856 by acts of the territorial legislature, and authorized to build and maintain dams in the Mississippi river at the falls of St. Anthony, about 10 miles above St. Paul, for the development of a water power, and for the use and sale of such power. One of these corporations, owning the shore on the east side of the river, erected a dam to the proper point in the river channel, and the other, owning the east shore, built its dam so as to connect the two, thus forming a power which has ever since been maintained and used. In 1883 the legislature authorized the city of St. Paul to purchase, and there was pm-chased, the property and franchises of a private corporation theretofore engaged in supplying said city with water. A board of water commissioners was created by the same act, and that board, a branch of the city government, is the present respondent. By the provisions of an amendatory act (Sp. L.aws ISSo, c. 110, § 5 et seq.) the board was authorized and empowered to add to its sources of supply, and to draw water from any lake or creek, and, in general, to do any act necessary in order to furnish an ade- quate supply of water for the use of the city. The manner in which it should acquire the right to extend its worKS so as to connect with any body of water deemed necessary for an increased supply, was specified, and in section 7 it was provided that "after mak- ing compensation as hereinafter provided to the owners of or the persons interested in the lands so to be taken and for damages by reason of diverting the water of any stream, creek, or body of water, said city shall have an easement therein." In section 8, provision was made for the appointment of commissioners to assess the damages sus- tained by the owners of lands to be taken, or by other persons, by reason of such tak- ing, or arising by the construction, use, and operation of the works. Under this act the respondent duly established a pumping sta- tion at Lake Baldwin, a body of water with an area less than a mile square, and by means of its pumps forced water through conduits to the city for public use. The out- let of this lake is Rice creek, and this creek empties into the Mississippi river a few miles above the dams built and maintained by appellants. Claiming that the result of this diversion of water was to greatly di- minish the volume which came to the dam, and to materially affect and reduce the wa- ter power, appellants brought these actions to restrain and enjoin perpetually the opera- tion of respondent's works at the lake, and the diversion of water therefrom. Counsel for both parties made lengthy oral arguments, and have filed very full briefs. Many qiiestions have been discussed which we do not regard as connected with the case, and hence we need not refer to them. There are a few well-settled principles which we regard as covering and controlling the facts before us, and a statement of these, with a construction of certain parts of the act un- der which respondent's board was author- ized to obtain fiu-ther and other sources of water supply, will dispose of these appeals. 1. The appellants are riparian owners on a navigable or public stream, and their rights as such owners are subordinate to public uses of the water in the stream. And their rights under their charters are, equallj' with their rights as riparian owners, subordinate to these public uses. 2. There can be no doubt but that the pub- lic, through their representatives, have the right to apply these waters to such public uses without providing for or making com- pensation to riparian owners. 3. The navigation of the stream is not the only public use to which these public waters may be thus applied. The right to draw from them a supply of water for the ordi- nary use of cities in their vicinity is such a public use, and has always been so recog- nized. At the present time it is one of the most important public rights, and is daily growing in importance as population in- creases. The fact that the cities, throtigh boards of commissioners or officers whose functions are to manage this branch of the municipal government, charge consumers for water used by them, as a means for paying I the cost and expenses of maintaining and I operating the plant, or that such consumers use the water for their domestic and such other purposes as water is ordinai-Uy fiu-- uished by city waterworks, does not affect the real character of the use, or deprive it of its public natiu-e. 4. In thus taking water from navigable streams or lakes for such ordinary public WATER. 71 uses, the power of the state is not limited or controlled by the rules which obtain between riparian owners as to the diversion from, and its return to, its natural channels. Once con- ceding that the taking is for a public use, and the above proposition naturally fol- lows. 5. Turning now to the provisions of re- spondent's charter, (chapter 110, supra,) it will be seen that the board was not limited to public waters as the soxu-ces of its con- templated additional supplies. It was author- ized to appropriate private waters for the piu-pose, and hence the provisions of the act which provided for the ascertaining of, and making compensation for, damages caused by a diversion of water, must be construed as applying solely to cases where the board took private property by using or diverting merely private waters. Inasmuch as the state itself could use the waters in question, as against the appellants, without compensa- tion, it would require very clear language to that effect to justify the conclusion that the legislature intended to impose on respond- ent board the burden of paying appellants for what, as against the public, they did not own. If the right granted by the legislature had beei! exclusively to divert waters from a certain specified body of public water, such as one by the "great" pond.s of Massachusetts, referred to in the cases cited from the Reports of that state, so that the provisions in chap- ter 110 relating to compensation could not apply to anything else,— to the owners of pri- vate waters, for instance,— the construction contended for by appellants, that it was in- tended they should be compensated in case damages resulted, might arise by implica- tion. Orders affirmed. The CHIEF JUSTICE did not sit. VAN- DERBURGH, J., took no part in the deci- sion. 72 WATER. GILLIS V. CHASE et al. (31 Atl IS.) Supreme Court of New Hampshire. Hills- boroujrh. March 11, 1892. Case reserved from Hillsborough coimty. Five actions by John F. Gillis, administra- tor of John Gillis, against William F. Chase and others, for diverting water, and dimin- ishing the flow on plaintiff's land. Facts found by the court: The plaintiff and one J. S. Winn are riparian owners. Winn's land is above the plaintiff's upon the stream. About 15 years ago Winn built a dam to hold back the water, and formed a reservoir, from which, by an aqueduct, he supplied water to his farm buildings. He also peniiitted the defendants, who are not riparian owners, to connect aqueducts with the reservoir, and thereby supply their buildings with water, conveying to same by deed a right to such use. The defendants all claim the right to take the water from the reservoir under J. S. Winn, the owner of the land where the res- ervoir is located, and the owner of a part of the meadow from which the water is collect- ed. The use of the water made by the sever- al defendants is reasonable as to the quantity used. Should all the defendants cease using the water, the amount flowing by the plain- tift"s land would not be perceptibly increased. Judgment for defendants. Henry B. Atherton, for plaintiff. Chas. H. Burns, for defendants. BLODGETT, J. The case finds that "the defendants aU claim the right to take the wa- ter from the reservoir under J. S. Winn, the owner of the land where the reservoir is lo- cated, and the owner of a part of the meadow from which the water is collected." In virtue of the ownership, Winn's right to divert the water for use to a reasonable extent was in- cident to the land, and, as the plaintiff' has tailed to show any actual damage, it is only for an uni-easouable and unauthorized diver- sion that the law will imply damage to him, because, each riparian proprietor having the right to a just and reasonable use of the wa- ter as it passes through and along his land, it is only when he transcends his right by an unreasonable and unauthorized use of it that an action will lie against him by another pro- prietor, whose common and equal right to the flow and enjoyment of the water is thereby injuriously affected. And as the reasonable- ness of the use is, to a considerable extent, a question of degree, and largely dependent on the circumstances of each case, it is to be judgetl of by the jury, and must be determined at the trial term as a mixed question of law and fact. Jones v. Aqueduct Co., (G N. H. 4'«iS, 490; Rindge v. Sargent, 64 N. H. 294, 295, 9 Atl. 723. This question having been found adversely to the plaintiff by the trial court, the finding is conclusive against him (Jones v. Aqueduct Co., supra), and consequently the only question now open to him is as to the right of Winn, in his character as a riparian proprietor, to sell the nonriparian defendants any of the water belonging to him as incident to his land. The English rule is understood to be that "a riparian owner cannot, except as against himself, confer on one who is not a riparian owner any right to use the water of the stream; and any used by a nonriparian proprietor, even under a grant from a ripa- rian owner, is unlawful." Ormerod v. Mill Co., 11 Q. B. Div. 155; Swindon Waterworks Co. V. Wilts & Berks Canal Nav. Co., L. R. 7 H. L. (397; Nuttall v. Bracewell, L. R. 2 Exch. 1. But this rule is othei*wise in this jurisdiction, for it is held here to be a ques- tion of fact whether the use of the water made by a riparian owner for his own pur- poses or for sale to others, is, under all the circumstances, a reasonable use. Jones v. Aqueduct and Rindge v. Sargent, supra. And in view of the finding that the sale of the wa- ter to the defendants by Winn is a reasonable use of his right as a riparian owner, the plain- tiff has no standing on this branch of the case. Judgment for the defendants. CLARK, J., did not sit curred. The others con- WATER. DUMONT T. KELLOGG. (29 Mich. 420.) Supreme Court of Michigau. July Term, 1874. Error to circuit court, Allegan county. Norris, Blair & Kiugsley, for plaintiff in -error. Williams & Humphrey and Hughes, O'Brien & Smiley, for defendaut iu error. COOLER. J. The grievance complained of by Kellogg in the court below was that Dumont had constructed a dam across a natural water course, and by means there- of wrongfully detained the water in the stream to the prejudice and injury of the plaintiff, who was proprietor of a mill- pre- viously erected on the stream below. The reservoir created by defendant's dam was quite a large one, and plaintiff gave evi- dence that the flow of water in the stream below was considerably diminished by the increased evaporation and percolation re- sulting from the construction of this dam. The plaintiff had judgment in the court be- low, and the case comes here upon excep- tions, the errors principally relied upon be- ing assigned upon the in.structions to the jury, and involving the relative rights of riparian proprietors to malie use of the wa- ters of a runuiug stream which is common to both, and to delay its flow for that pur- pose. The instructions given were numerous, and the most of them were unexceptionable. Others appear to be based upon a view of tlie law which is not to be reconciled with the authorities. Of these are the following: "Every proprietor of lands on the banks of a stream, and every mill owner, has an equal right to the flow of the water in the stream as it was wont to run, witliout dimi- nution or alteration; no proprietor luxs the right to use the water to the prejudice of the proprietors below him, without the con- sent of the proprietors below; he cannot divert or diminish the quantity which would otherwise descend to the proprietors below. "He must so use the water as not mate- rially to affect the application of the water below or materially diminish its quantity. "If the jury find, from the evidence, that Dumont's dam and pond have diminished, L>y the increased evaporation and soaliage occasioned by it, the flow of the water in the Dumont creek one-third, or any other material amount, and that the plaintiff has sustained damages thereby, then the plain- tiff is entitled to recover in this action. "The rights of a riparian proprietor are not to be measured by the reasonable de- mands of his business. His right extends to the use of only so much of the stream as will not materially diminish its quantity, so that in this case the question whether de- fendant needs the water as he uses it in his business is eutirely immaterial. "The defendant had the right to build a dam upon his laud, but he must so con- struct the dam and so use the water as not to injure the plaintiff below in the enjoy-^ ment of the same water, according to its natural course." In endeavoring to determine the sound- ness of these instructions, we may dismiss from the mind the fact that the plaintiff had first put the waters of the stream to practical use, since that fact gave him no superiority in right over the defendant. The settkni doctrine now is that priority of ap- propriation gives to one proprietor no supe- rior right to that of the others, unless it has been continued for a period of time, and under such circimistances, as would be req- uisite to establish rights by prescription. Piatt V. Johnson, 15 Johns. 2i;i; Tyler v. Wilkinson, 4 Mason, 3!»7. Fed. Cas. No. 14.- 312; Gilman v. Tilton, 5 X. II. 2;il; Pugh v. Wheeler, 2 Dev. & B. 50; Hartzall v. SUl, 12 Pa. St. 248; Gould v. Duck Co., 13 Gray, 442; Wood v. Edes, 2 Allen, 57S; Parker v. Hotchkiss, 25 Conn. 321; Heath v. Williams. 25 :Me. 200; Snow v. Parsons, 28 Vt. 403; Bliss V. Kennedy, 43 111. 07; Cowles v. Kid- der, 24 N. H 378. It is not claimed that any question of prescription is involved, and the case is conse(iuently to be regarded as only presenting for adjudication the rela- tive rights of the parties at the common law to make use of the flowing waters of the stream, unaffected by any exceptional cir- cumstances. And iu considering the case it may be re- marked at the outset that it differs essen- tially from a case iu which a stream has been diverted from its natural course and turned away from a proprietor below. No person has a right to cause such a diver- sion, and it is wholly a wrongful act, for which an action will lie without proof of special danuige. It differs, also, from the case of an interference by a stranger, who. by any means, or for anj' cause, diminishes the flow of the waters; for this al.so is wholly wrongful, and no question of the reasonableness of his action in causing the diminution can possibly ari.se. And had the instructions which are excepted to been given with reference to a case of diversion, or of obstruction by a stranger, the broad terms in which the respctnsibility of the de- fendant was laid down to the jury might have found abundant jusliflcation in the au- thorities. But as between two proprietors, neither of whom has acquired superior rights to the other, it cannot be said tliat one "has no right to use the water to the prejudice of the proprietor below him." or that he can- not lawfully "diminish the quantity which would descend te the proprietor below." or that "he must so use the water as not mate- rially to affect the application of the water below, or materially to diiniuish its quan- tity." Such a rule would be in effect this: 74 WATER. That the lower proprietor must be allowed the eujoyiiieiit of his full common-law rights as such, not diminished, restrained, or in any manner limited or qualified by the rights of the upper proprietor, and must re- ceive the water in its natural state as if no proprietorship above him existed. Such a rule could not be the law so long as equal- ity of right between the several proprietors was recognized, for it is manifest it Avould give to the lower proprietor superior advan- tages over the upper, and in many cases give him in effect a monopoly of the stream. Cases may unquestionably be found In which the rule of law is laid down as broad- ly as it was given by the' circuit judge in this case, but an examination of them will show either that the facts were essentially different, or that the general language was qualified by the context. Thus the lan- guage employed in the first instruction as above given seems to have been quoted from Lord Tenterden, in Mason v. Hill, 3 Barn. & .^dol. 312. But there it had refer- ence to a case of diversion of water, and was strictly accurate and appropriate. The same language substantially is made use of in Twiss v. Baldwin, 9 Conn. 20-1; Wads- Avorth v. Tillotsou, 15 Conn. 373; Arnold v. Foot, 12 Wend. 331,— and probably in many other cases, and is adopted by Chancellor Kent in his Commentaries (volume 3, p. 4o!>). See, also, Bealey v. Shaw, G East, I'OS; Agawam Canal Co. v. Edwards, 36 Conn. 497; Williams v. Morland, 2 Barn. & C. 913; Mason v. Hill, 5 Barn. & Adol. 1; Tillotson V. Smith, 32 N. H. 95. But as be- tween different proprietors on the same stream, the right of each qualifies that of the other, and the question always is, not merely whether the lower proprietor suf- fers damage by the use of the water above him, nor whether the quantity flowing on is diminished by the use, but whether under all the circumstances of the case the use of the water by one is reasonable and consist- ent with a correspondent enjoyment of right by the other. "Each proprietor is entitled to such use of the stream, so far as it is reasonable, conformable to the usages and wants of the community, and having regard to the progress of improvements in hydraul- ic works, and not inconsistent with a like reasonable use by the other proprietors of land on the same stream above and below." Shaw, C. .T., in Cary v. Daniels, 8 Mete. (Mass.) 477. "The common use of the wa- ter of a stream by persons having mills above is frequently, if not generally, at- tended with damage and loss to the mills below; but that is incident to that com- mon use, and for the most part unavoidable. If the injury is trivial, the law will not af- ford redress, because every person who builds a mill does it subject to this contin- gency. The person owning an upper mill on the same stream has a lawful right to use the water, and may apply it in order to work his mills to the best advantage, subject, however, to this limitation: that if in the exei'cise of this right, and in conse- j quence of it, the mills lower down the | stream are rendered useless and unproduct- ive, the law in that case will interpose and limit this common right so that the owners of the lower mills shall enjoy a fair partici- pation." Woodworth, J., in Meritt v. Brink- erhoff, 17 Johns. 321. It is a fair partici- pation and a reasonable use by each that the law seeks to protect. Such interruption in the flow "as is necessary and unavoida- ble by the reasonable and proper use of the mill privilege above" cannot be the subject of an action. Chandler v. Howland, 7 Gray, 350. And see Embrey v. Owen, 6 Exch. 353; Hetrich v. Deachler, 6 Pa. St. 32; Hart- zall V. Sill, 12 Pa. St. 248; Pitts v. Lancas- ter Mills, 13 Mete. (Mass.) 15G; Bliss v. Ken- nedy, 42 111. G8. As was said by Mr. Jus- J tice Story in Tyler v. Wilkinson, 4 Mason, ^ 401, Fed. Cas. No. 14,312, to hold that there can be no diminution whatever, no obstruc- tion or impediment whatsoever, by a riparian proprietor in the use of water as it flows, would be to deny any valuable use of it. There may be and there must be allowed of that which is common to all a reasonable use by each. And, if further authorities are important, Palmer v. Mulligan, 3 Caines, 308; Billing v. Murray. 6 Ind. 324; Snow v. Parsons, 28 Vt. 459; Hayes v. Waldrou, 44 N. H. 580; 'Davis v. Getchell, 50 Me. G02; and Clinton v. Myers, 46 N. Y. 514,— may be referred to. It is thei-efore not a diminu- tion in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with in- jury, that will give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes the injury is not reasonable. In other words, the injm-y that is incidental to a reasonable enjoyment of the common right can demand no redress. We think the court erred also in declining to instruct the jury on defendant's request that in determining the question of reason- able use by the defendant they might con- sider, among other things, the general usage of the country' in similar cases. As was said in Gould v. Duck Co., 13 Gray, 452: "Usage is some proof of what is considered a reasonable and proper use of that which is a common right, because it affords evi- dence of the tacit consent of all parties in- terested to the general convenience of such use." And see Thurber v. Martin, 2 Gray. 394; Snow v. Parsons, 28 Vt. 4.59. Indeed in most cases this proof is the most .satis- factory and conclusive that could be adduc- ed, being established by the parties con- cerned, who understand better than any others what is reasonable and convenient. WATER. and who would not be likely to acquiesce in any thing which was not so. These errors render it necessary to order a new trial. Some of the rulings on the ad- mission of evidence seem to have been very liberal, but we are not satisfied that they exceeded the bounds of judicial discretion. The judgment will be reversed, with costs, and a new trial ordered. The other justices concurred. 76 WATER. POTTER T. INDIANA & L. M. RY. CO. (54 N. W. 95<3. 95 Mich. 389.) Supreme Court of Michigan. April 21, 1S03. Error to circuit court, Berrien county; Thomas O'Hara. Ju(l.ce. Action by Calviu B. Potter ajrainst the Indiana & Lake Michigan RnUway Com- pany to recorer. daiiiases for ob.structing an allfged navigable stream. From a partial judgment for plaintiff, both parties appeaL Reversed. C. B. Potter, Jr., and George S. Clapp. for plaintiff. David Strouse and Edward Bacon, for defendant. GRANT, J. Plaintiff is the owner of an undivideerty was voluntarily placed upon the table in the defendant's shop by a customer of his who accidentally left the same there and has never called for it. The plain- tiff also came there as a customer, and first saw the same and took it up from the table. The plaintiff did not by this acquire the right to take the property from the shop, but it was rather the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe-keeping of the same until the owner should call for it. In the case of Bridges v. Hawkesworth the property, although foimd in a shop, was found on the floor of the same, and had not been lilaced there voluntarily by the owner; and the court held that the finder was entitled to the possession of the same, except as to the owner. But the present ease more resembles that of Lawrence v State, 1 Humph. 228. and is indeed very similar in its facts. The court there take a distinction between the case of property thus placed by the owner and ne- glected to be removed, and property lost. It was there held that "to place a pocket-book upon a table and to forget to take it away is not to lose it. in the sense in which the au- thorities referred to speak of lost property." We accept this as the better rule, and es- pecially as one better adapted to secure the rights of the true owner. In view of the facts of this case, the plain- tiff acquired no original right to the property, and the defendant's subsequent acts in re- ceiving and holding the property in the man- ner he did does not create any. Exceptions overruled. LOST PROPERTY 79 HAMAKER v. BLANCHARD. (90 Pa. St. 377.) Supreme Court of Pennsylvania. May 27 1879. Assumpsit to recover money found l)y a servant in a hotel parlor, and delivered by her to the proprietor to be returned to the owner, but v\'ho vs^as never found. H. J. Culbertson, for plaintiff in error. J. A. McKee, for defendants in error. TRUNKEY, J. It seems to be settled law that the finder of lost property has a valid -claim to the same against all the world ex- cept the true owner, and generally that the place in which it is found creates no excep- tion to this rule. But property is not lost in the sense of the rule, if it was intention- ally laid on a table, counter, or other place, by the owner, who forgot to take it away, and in such case the proprietor of the prem- ises is entitled to retain the custody. When- ever the surroundings evidence that the ar- ticle was deposited in its place, the finder has no right of possession against the owner of the building. McAvoy v. Medina, 11 Allen (Mass.) u4S. An article casually dropped is within the rule. Where one went into a shop, and, as he was leaving, picked up a parcel of banknotes, which was lying on the floor, and immediately showed thorn to the shop- man, it was held that the facts did not war- rant the supposition that the notes had been deposited there intentionally, they being mani- festly lost by some one, and there was no circumstance in the case to take it out of the general rule of law that the finder of a lost article is entitled to it as against all persons except the real owner. Bridges v. Hawkes- worth. 7 Eng. Law & Eq. 424. The decision in Mathews v. Harsell, 1 E. D. Smith. 393, is not in confiict with the principle, nor is it an exception. Mrs. Math- ews, a domestic in the house of Mrs. Bar- more, found some Texas notes, which she handed to her mistress, to keep for her. Mrs. Barmore aftei-wards entrusted the notes to Plarsell, for the purpose of ascertaining their value, informing him that she was acting for her servant, for whom she held the notes. Harsell sold them, and appropriated the pro- ceeds; whereupon Mrs. Mathews sued him and recovered their value, with interest from date of sale. Such is that case. True, Woodruff, J., says: "I am by no means pre- pared to hold that a house servant who finds lost jewels, money, or chattels in the house of his or her employer acquires any title even to retain possession against the will of the employer. It will tend much more to pro- mote honesty and justice to require servants in such cases to deliver the property so found to the employer, for the benefit of the true owner." To that remark, foreign to the case as understood by himself, he added the antidote: "And yet the court of Queen's bench in England have recently decided that the place in which a lost article is found does not form the ground of any exception to the general rule of law that the finder is en- titled to it against all persons except the own- er." His views of what will promote hon- esty and justice are entitled to respi^ct, yet many may think that Mrs. Barmore's method of treating servants is far superior. The assignments of error are to so much of the charge as instructed the jury that, if they found the money in question was lost, the defendant had no right to retain it be- cause found in his hotel, the circumstances raising no presumption that it was lost by a guest, and their verdict ought to be for the plaintiff. That the money was not voluntar- ily placed where it was found, but accidental- ly lost, is settled by the verdict. It is adnntted that it was found in the par- lor, a public place open to all. There is noth- ing to indicate whether it was lost by a guest, or a boarder, or one who had called with or without business. The pretense that it was the property of a guest, to whom the defend- ant would be liable, is not founded on an act or circumstance in evidence. Manj' authorities were cited in argument, touching the rights, duties, and responsibil- ities of an innkeeper in relation to his guests. These are so well settled as to be uncontro- verted. In respect to other persons than guests, an innkeeper is as another man. When money is found in his house, on the rtoor of a room common to all classes of per- sons, no presumption of ownership arises; the case is like the finding upon the floor of a shop. The research of counsel failed to dis- cover authority that an innkeeper sliall have an article which another finds in a public room of his hou.se, where there is no circum- stance pointing to its loss by a guest. In such case the general rule should prevail. If the finder be an honest woman who immedi- ately informs her employer, and gives him the article on his false pretense that he knows the owner and will restore it, she is entitled to have it back and hold it until the owner comes. A rule of law ought to apply to all alike. Persons employed in inns will be encouraged to fidelity by protecting them in eciuality of rights with others. The U>arned judge was right in his instiTJC- tions to the jur>-. Judgment affirmed. See Bowon v. Sullivan, 62 Ind. 281. so LOST PROPERTY. WATTS et al. v. WARD. (1 Or. 86.) Supreme Court of Oregon. June, 1854. The parties emigrated to Oregon in 1852. AVartl lost two horses in the Indian country, and plaintiff in error found and recognised them as belonging to plaintiff. They took the horses to bring and deliver, as they said, to Ward, when he should pay them for their trouble, but used them on the road for driving cattle, hunting buffalo, etc. They also per- mitted another emigrant to use one of the horses two months. One of the horses died on the journey, and the other in the following winter. . The testimony differed as to wheth- er the horses died from hard usage or sick- ness, but both died in possession of plaintiffs in error. The court insti-ucted the jury, in substance, that the defendants had a right to take up the hoi"ses. and use them as much as was necessary and proper to bring them to plaintiff, but had no right to use them for their own benefit, or for purposes other than the bringing of them to the owner. Verdict and judgment for Ward for $160. M. Chinn. for plaintiffs in error. Jas. Mc- Cabe, for defendant in error. WILLIAMS, C. J. The instruction of the court, it is said, was erroneous. No doctrine is better settled at common law than that the finder of lost property is not entitled to a re- ward for finding it, if there be no promise of such reward by the owner. Brinstead v. Buck, 2 Bl. R. illT; Nicholson v. Chapman, 2 H. Bl. R. 2.>4; 2 Kent. Comm. 350; 5 Mete. 352. Some of the authorities maintain that the finder ot lost property is entitled to recover from the owner thereof his necessary and reasonable expenses in the finding and restoration of said property. Amory v. Flinn, 10 Johns. 102; 2 Kent, Comm. 35G. Other authorities seem to take the ground that the finder has no legal right to anything from the owner for his trouble and expense in find- ing lost property. Brinstead v. Buck. Nich- olson V. Chapman, before cited, appear to stand upon this principle. Chief Justice Eyre, speaking upon this subject in the latter case. says: "Perhaps it is better for the public that these voluntary acts of benevolence from one man to another, which are charities and moral duties, but not legal duties, should depend altogether for their reward upon the moral duty of gratitude." Chief Justice Shaw, in Wentworth v. Day. 3 Mete. (Mass.) 352. says that "the finder of lost property on land has no ri^ht of salvage at common law." Where one pei*son gratuitously performs an act of kindness for another, the law, as a general rule, does not recognise the right to a compensation for such act. In the case of Holmes v. Tremper. 20 Johns. R. 28, it was held that the plaintiff was not entitled to any recompense for services rendered in sav- ing defendant's property from fire, because such services were entirely voluntary, and without any exi>ense or implied promise on the part of defendant to pay for them. No person is bound in law to take trouble with property which he finds; and if, without any knowledge of th-^ owner's wishes, he does in- cur expense on account of such property, does he not in so doing trust the liberality of the owner, rather than the force of law, for it may be that such owner did not desire to have his property disturbed, or, if lost, preferred to find it himself? Much of the stock in this country is permitted to run at large; and if every animal lost, or appearing to be lost, can be taken up. and the owner thereof legally charged for all trouble and expense therebj incurred, the business of finding cattle would certainly become profitable, and persons might be largely involved in debt without their knowledge or consent. Where a reward is of- fered for lost property, the finder, when he complies with the terms of the offer, has a right to retain the property in his hands until the promised reward is paid to him. Went- worth V. Day. 3 Mete. (Mass.) 352. Persons are apt to offer a reward if they wish to pay for the finding of lost property. All the au- thorities make a difference between the find- ing of property lost at sea and the finding of property lost on land. Commercial policy al- lows salvage in the one case, because there is peril in the finding, and immediate de- struction threatens the property; in the otlier case there is no peril, and generally no dan- ger that the property will be destroyed. But. if it be admitted that the owner of lost prop- erty is bound to remunerate the finder for his trouble and expen.se in tlie finding, it is cer- tain that such finder cannot pay himself as he goes along by using the property for that pitrpose. He cannot be permitted to judge as to how much his demand for trouble and ex- pense shall be. and then as to how much he ought to use the property to satisfy such de- mand. The owner has rights in these mat- tei's, and must be consulted. Let the property, when found, be returned to the owner, and then the amount and mode of compensation, if any, can be determined. Plaintiffs in this case having treated and used the horses as their own. for their own l)enefit and gain, defendant had a right to charge them with a conversion of the prop- erty, and maintain his suit for its value. Judgment aflSrmed. LOST PROPERTY. 81 CHASE V. CORCORAN.i (106 Mass. 286.) Supreme Judicial Court of Massachusetts. Middlesex. Jan. Term, 1871. A. V. Lynde and C. Abbott (E. W. Sanborn witli tbem) for plaintiff. GRAY, J. The evidence introduced at the trial tended to prove the following facts: The plaintiff, while engaged with his own boats in the Mystic river, within the ebb and flow of the tide, found the defendant's boat adrift, with holes in the bottom and the keel nearly demolished, and in danger of sinking or being crushed between the plaintiff's boats and the piles of a bridge, unless the plaintiff had saved it. The plaintiff secured the boat, attached a rope to it, towed it ashore, fasten- ed it to a post, and after putting up notices in public places in the nearest town, and making other inquiries, and no owner appear- ing, took it to his own barn, stowed it there for two winters, and during the intervening summer made repairs (which were necessary to preserve the boat), and for its better pres- ervation put it in the water, fastened to a wharf, and directed the wharhnger to deliver it to any one who should prove ownership and pay the plaintiff's expenses about it. The de- fendant afterwards claimed the boat; the plaintiff refused to deliver it unless the de- fendant paid him the expenses of taking care of it; and the defendant then took the boat by a writ of replevin, without paying the plain- tiff anything. This action is brought to re- cover money paid by the plaintiff" for moving and repairing the boat, and compensation for his own care and trouble in keeping and re- pairing the same, amounting to $2G in all. * * * The plaintiff requested the chief justice of 1 Irrelevant parts omitted. VAN ZILE, SEL. CAS. PERS. — 6 the superior court to rule that the boat was not lost goods, within the sense of Gen. St. c. 79. But the learned judge refused so to rule, and ruled that upon all the evidence the plaintiff could not maintain his action, and directed a verdict for the defendant. We are of opinion that this was erroneous. * * * The claim of the plaintiff is therefore to be regulated by the common law. It is not a claim for salvage for saving the boat when adrift and in danger on tide water, and does not present the que.stion whether the plain- tiff had any lien upon the boat, or could re- cover for salvage services in an action at common law. His claim is for the reasonable expenses of keeping and repairing the boat after he had brought it to the shore; and the single question is whether a promise is to be implied by law from the owner of a boat, up- on taking it from a person who has found it adrift on tide water and brought it to shore, to pay him for the necessary expenses of pre- serving the boat while in his possession. We are of opinion that such a promise is to be implied. The plaintiff, as the tinder of the boat, had the lawful possession of it, and the right to do what was necessary for its pres- ervation. Whatever might have been the lia- bility of the owner if he had cliosen to let the finder retain the boat, by taking it from him he made him.self liable to pay the reasonaltle expenses incurred in keeping and repairing it. Nicholson v. Chapman, 2 H. Bl. 2.^4, 2.J8, and note; Amory v. Flyn, 10 Johns. 102; Tome V. Four Cribs of Lumber. Taney, 533, 547, Fed. Cas. No. 14,083; 3 Dane, Abr. 143; Story, Bailm. §§ 121a. 621a; 2 Kent, Comm. (6th Ed.) 3.56; 1 Domat, pt. 1, lib. 2, tit. 9, art. 2; Doct. & Stud. c. 51; Preston v. Neale, 12 Gray, 222, Exceptions sustained. See Reeder v. Anderson's Adm'rs, 4 Dana, 193. b2 LOST PROPERTY WOOD et al. v. PIER SON. i (7 N. W. SSS. 45 Mich. 313.1 Supreme Court of Michigan. Jan. 19, ISSl. Hatch & Cooley, for plaintiffs in error. Shepard & Lyon, for defendant in error. GRAVES. J. * * * Piersou lost at Bay City. July IS, 1S78, a small diamond pin, which seems to have separated from the tongue in some unknown way. The circimi- stances of the loss and the manner in which the body of the pin and tougrue became dis- imited are left unexplained. The metallic setting was a common pattern, and the gem had no peculiarities to facilitate its identifica- tion by nonexperts. Piei"son caused a notice to be inserted in the Tribune newspaper pub- lished in the city, of this tenor: "Lost. $25.00 Reward— Lost. A diamond pin. The finder will be paid the above reward by leaving the same at this office." As will be observed, the advertisemeut neither gave a description of the pin, nor suggested who offered the re- ward. Moreover, no means of any kind were provided for showing at the newspaper office the owuei-ship or identity of the pin. or for connecting any pin which might be produced with the claim contained in the notice, nor was any money left with which to pay the reward, nor any provision whatever made for paying it there. Chapman foimd a pin which was subse- quently ascertained to be the one in question. His first impression was. when he picked it up, that it was a cheap trinket, but on second thought he decided to show it to a jeweler. Dirt was adhering to it, and attention was at once drawn to the fact that, although the tongue was wholly missing, the rivet was se- cure and firmly in its place. The query nat- urallj' arose as to how this condition of the pin and the absence of the tongue might be accounted for. But in order to find out wheth- er it had any material value. Chapman took it immediately to Wood, the other defendant, he being a .ieweler, and was by him told that the stone was a diamond, and that a diamond pin had been advertised in the Tribune. On getting this information. Chapman went at once to the newspaper office and saw Mr. Shaw, the editor and manager, who showed him the advertisement and informed him who the author was. Mr. Shaw referred him for anything further to Mr. Pierson. and he at once carried the pin to Pierson's store and called for that gentleman. He was absent. Chapman was going from the city the next morning, and lie told a clerk, Mr. Martin, that he had foimd a pin. and as he was going away he would leave it at Mr. Wood's to be identi- fied and returned to the owner. He then went to Wood's and there left it with instructions to give it to the person who should identify it and pay the reward, and to no one else. This was Friday evening, July 2Gth. The 1 Irrelevant parts omitted. next morning he went from the city on busi- ness, and only retin*ned the Monday following at noon. During his absence Piereou called on Wood and asked to see the pin in order to identifj- it, and AVood declined and required him to identify it first. Pierson attempted to do so, but he failed to satisfy Wood, and in the judgment of another jeweler to whom both referred, and who had the advantage of in- specting both the tongue and body of the pin and of comparing them, the physical appear- ances and indications were strongly against Pierson's claim. * * :^ * * * According to the common law the finder of goods lost on land becomes proprietor in case the true owner does not appear. And mean- while his right as finder is a perfect riglit against all others. But if the true owner does appear, whatever right the finder may have against him for recompense for the care and expense in the keeping and preservation of the property, his status as finder only does not give him any lien on the property. Yet if such owner offer a reward to him who will restore the property, a lien thereon is there- by created to the extent of the reward so of- fered. This doctrine in favt)r of a lien in such circumstances is so laid down in Pres- ton V. Ne;tle, 12 Gray, 222, and atithorities are cited for it. Among them is the leading case of Wentworth v. Day, by Chief Justice Shaw, reported in 3 Mete. 352, and which is approved and followed by the supreme court of Pennsylvania in Cummings v. Gann, 52 Pa. St. 4S4, adopted as correct by Storj- in his work on Bailments (sections 121a and 621a). Parsons has given it his sanction by incorpo- rating it in the text of his work on Contracts (volume 3, p. 239, (ith Ed.), and Edwards pre- sents it as settled law in his treatise on Bail- ments (sections 20, OS. 6th Ed.). Under this principle the admission is tm- avoidable that when Pierson claimed the pin. on the footing of his notice and rew^ard, of Chapman, the finder, who was holding it for the actual owner, it was, as between them, subject to a lien in Chapman's favor and against Pierson for the reward. According to the language of the books Chapman was en- titled to detain the article from Pierson until the reward should be paid, and was under no legal obligation to relinquish possession to him. or to give it to another, or to allow any- thing to be done endangering his right or se- curity. But there was a mutuality of rights. As claimant, Pierson was entitled to a rea- sonable time and to fair and reasonable op- portimity in reference to the nature of the chattel, the existing state of things bearing on the transaction and the surroimding cir- cumstances, and without impairing Chapman's right as contingent owner, nor his right of lien, nor interfering with his duty to the time ownership which might be subsequently as- serted by anotlier, to make such a showing as he could that the property was the same he had lost and advertised, and such evidence LOST PROPERTY. 83 as would satisfy a fair and reasonable person of the fact. It was not for Chapman to baffle investi- gration by any unfair action or inaction, or to give way to unfounded and unreasonable suspicion, and then object that the evidence of identification was not sufficient. Nor was it for Pierson to demand anything which was not fair and just under the circumstances, and needful for investigation, and consistent with Chapman's rights and duties, and then maJie its refusal a pretext for charging in- justice, and an excuse for making costs; and in regard to these and similar matters it was for the jury to say what was the conduct of the parties; whether it was fair and reasonable or otherwise; whether either or both material- ly deviated from the proper course; whether the kind of reciprocity the occasion called for was shown or not, and whether Chapman was boimd or not to be satisfied of the rectitude of Piei"son's claim when the suit was begun. Iti * * * df ^i In Isaac v. Clark, 2 Bulst. 30iiat tlie judgment nnist be re- versed, with costs, and a new trial granted. MARSTON, concurred. C. J., and CAMPBELL, J.. 84 LOST PROPERTY. BAKER T. STATE. (29 Ohio St. 1S4.) Supreme Conrt of Ohio. Dec. Term. 1S76. Error to probate court. Van Wert county. On information in the probate court of Van Wert county (a court having jurisdiction of misdemeanors), the defendant was convicted of the offense of petit larceny. At the trial a bill of exceptions was taken, setting out all the testimony, and this writ is prosecuted to | revei*se the judgment below, on the ground that the conviction was contrary to the law and the evidence. Alexander & Saltzgaber, for plaintiff in er- ror. McILVAIXE. J. The testimony offered on the trial below shows that on the evening of April 2S. 1S72. the defendant below found on a county public road, at Van Wert county, a jxicketbook, containing one ten dollar bill, at a point in the road near which he had been engaged at work during the day, and that the goods found had been lost by the owner, Hinton Alden, at that point a few hours be- fore. That Alden. at the time he lost the pocketbook, had been detained at that point for a short time, and within plain sight of the defendant. On the next morning. Alden, who lived in the immediate neighborhood, in- formed the defendant of his loss, but defend- ant concealed the fact of finding, and after- wards expendetl the money in the purchase of clothing. A few days after, the defendant admitted to a witness in the case that he had found the pocketbook, and that he knew the owner; and on inquiry why he had not re- turned the goods to the owner, replied that "Finders are keepers." It was also shown by an admission of defendant that the appear- ance of the pocketbook at the time he found it indicated that it had been very recently lost. The law of this case is well stated by Baron Parke, in Reg. v. Thurborn, 1 Dennison, Crown Cas. 3ST. also reported under the name of Reg. V. Wood. 3 Cox Crown Cas. 4.53, thus: "If a man find goods tliat have actually been lost, or are reasonably supposed by him to have l>een lost, and appropriates them with intent to take the entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny. But if he taJies them with like intent, though lost or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny."' The fact, in this case, that the defendant expended the money after he had certain knowledge of the owner, did not render him guilty of larceny, if the offence was not com- plete before. The loss and finding of the goods were not disputed in the court below, but the following questions were made: 1. When the defendant first took the goods upon the finding, did he intend to appropriate them to his own use? This question was fairly found against him, from the fact of concealing the finding when informed by the owner of his loss, and from his subsequent declaiation that "Finders are keepers." 2. Did he have reasonable grounds to believe at the time of finding the goods, that the owner could be found? It was suflieiently proved that the defendant knew that the goods had been recently lost before the finding, and that Al- den had recently been at the point where he found them. These facts constituted reason- able ground for believing that Alden was the owner. Judgment affirmed. CONFUSION OF GOODS. 85 PICKERING V. MOORE. (32 Atl. 828.) Supreme Court of New Hampshire. Merri- mack. March IG, 1894. Action by Lueian Pickering against Lydia A. Moore. Judgment for plaintiff. Facts found by the court: March 31, 1883, the defendant leased his farm for the term of three years to the plaintiff, who covenant- ed to carry on the place in a husband-like manner, and to consume and convert into manure, to be used or left upon the premises, all hay and fodder raised thereon. The plain- tiff occupied the farm, and performed all his covenants contained in the lease, without any new or further contract, until May 30, 1892. During the last year of his occupancy he fed out upon the farm a large quantity of fodder not produced on the place. He put 25 cords of the manure made from this fod- der, and manure of the same quality and value made from fodder raised on the place, together in a heap, where they were so in- termixed that they could not be distinguish- ed. The defendant prevented him from tak- ing away the 25 cords. Leach & Stevens, for plaintiff. Albin & Martin, for defendant. CARPENTER, J. The plaintiff held the farm alter the expiration of three years as tenant from year to year, upon the terms expressed in the lease. Russell v. Fabyan, 34 N. H. 218, 223; Conway v. Starkweather, 1 Denio, 113. Manure made upon a farm l)y the consumption of its products in the ordi- nary course of husbandry is a part of the realty. It cannot be sold or carried away by a tenant without the landlord's consent. Sawyer v. Twiss, 26 N. H. 345. 349; Perry v. Carr, 44 N. H. 118, 120; Hill v. De Roche- mont, 48 N. H. 87, 88. The doctrine "was established for the benefit of agriculture. It found its origin in the fact that it is es- sential to the successful cultivation of a farm that the manure produced from the drop- pii'gs of cattle and swine fed upon the prod- ucts of the farm, and composed with earth and vegetable matter taken from the land, should be used to supply the drain made upon the soil in the production of crops, which otherwise would become impoverished and barren, and in the fact that the manure so produced is generally regarded by farmers in this country as a part of the realty, and has been so treated by landlords and tenants from time immemorial." Haslem v. Look- wood, 37 Conn. 500, 505. Whether a tenant, "where there is no positive agreement dis- pensing with the engagement to cultivate his farm in a husband-like manner, is bound to spend the hay and other like produce upon it as the means of preserving and continuing its capacity" (Perry v. Carr and Hill v. De Rochcuiont, supra).— in other words, whether the express or implied obligation to cultivate the farm in a husband-like manner binds him. as matter of law, to convert into manure all the fodder grown on the premises, — is a different, and po.ssibly an open, question (Wing V. Gray, 36 Vt. 261, 266, 267; Lewis v. Lyman, 22 Pick. 437, 444, 445; Middle- brook V. Corwin, 15 Wend. 169, and cases cited; Brown v. Crump, 1 Marsh. C. P. 567; Legh V. Hewitt, 4 East, 154, 159; Moulton V. Robinson, 27 N. H. 550, 561 ; Cooley, Torts, 334, 343, 344). However that may be. no rule of good husbandry requires a tenant to buy haj- or other fodder for consumption on the farm. If, in addition to the stock main- tainable from its protlucts, he keeps cattle for hire, and feeds them upon fodder pro- cured by purchase, or raised by him on other lands, the landlord has no more legal or equitable interest in the manure so produced than he has in the fodder before it is con- sumed. It is not made in the ordinary course of husbandry. It is produced "in a manner substantially like making it in a livery sta- ble." Hill V. De Rochomont, 48 N. H. 87, 90; Corey v. Bishop. 48 N. H. 146. 148. It is immaterial whether the additional stock is kept for hire, or is the tenant's property. Needham v. Allison, 24 N. H. 355. The plaintiff did not lose his property in the manure by intemiixing it with the de- fendant's manure, of the same quality and value, without his consent. It is not claimetl that the plaintiff mixed the manure with any fraudulent or wrongful intent. "The inten- tional and innocent intermixture of property of substantially the same (juality and value does not change the ownership. And no one has a right to take the whole, but, in so do- ing, commits a trespass on the other owner. He should notify him to make a division, or take his own proportion at his peril, taking care to leave to the other owner as much as belonged to him." Ryder v. Hathaway. 21 Pick. 298. 306; Oilman v. Hill, 36 N. H. 311. 323; Robinson v. Holt, 39 N. H. 5.57, 563; Moore v. Bowman. 47 N. H. 494. 501, 502; Railroad Co. v. Foster. 51 N. H. 490. 493. "Even if the coumiingling were malicious or fraudulent, a rule of law which would take from the wrongdoer the whole, when to re- store to the other his proportitm would do him full Justice, would be a rule not in har- mony with the general rules of civil remedy, not only because it would award to one party a redress beyond his loss, but because it would compel the other party to pay. not damages, but a penalty." Cooley, Torts, 53, 54. Whether the parties were tenants in com- mon of the manure is a question that need not be determined. Gardner v. Dutch, 9 Mass. 427. 4;H), 431; Ryder v. Hathaway, 21 Pick. 298, 305; Chapman v. Shepard. 39 Conn. 413. 425; Kimberly v. Patchin, 19 N. Y. 330, 341. Assuming that they were, the action may be maintained. A tenant in com- mon has the same right to the use and enjoyment of the common property that he 86 CONFUSIOiT OF GOODS. has to his sole property, except in so far as it is limited by the equal right of his coten- ants. "Where two have each an equal title to an indivisible chattel, "as of a horse, an oxe, or a cowe." neither, "without actual and ex- clusive possession of the chattel, can enjoy bis moiety. Simultaneous enjoyment by each of his equal right is impossible. Hence nei- ther can lawfully take it from the possession of the other. The one excluded from posses- sion has no legal remedy, except to take it "when he can see his time." Co. Litt. § 323; Southworth v. Smith, 27 Conn. 35.5. 359. A tenant in common of personal as well as real property has a right to partition, if parti- tion is possible, and. if not. to a regulation of its use equivalent to partition, or to a sale. Co. Litt. 164, 165a; Stoughton v. Leigh. 1 Taunt. 402. 411, 412: Monill v. Mor- rill. 5 X. H. 134, 135; Crowell v. Woodbury, 52 X. H. 613. On partition be is entitled to no particular part of the property, but only to bis due proportion in value and quality of the whole. When it consists of chattels differing in quality and value, an appraisal of the value and consideration of the quali- ties of the several chattels are essential to an assignment to each of his just share. In this case, as in that of a single indivisible chattel, if the parties cannot agree upon the use, sale, or division, judicial inteiTention is necessary. Until an adjudication of their rights, neither can assert a title in severalty to any portion of the property. When the common property is divisible, by weight, measure, or number, into portions identical in quality and value, as corn and various other articles, a different case is presented. There '; no question of legal or equitable righ. . There is. and can be. no dispute that a court of law or equity can settle. Counting, weigh- ing, and measuring are not judicial, but min- isterial, functions. Equity could do no more than decree that each might take so many pounds, bushels, or yards, or so many of the articles in number, and enforce its decree by process.— in other words, enforce the conced- ed right. One may. in general, do without a decree what equity would decree that he might do. Neither law nor equity allows one, in the exercise of his own rights, to do an unnecessary and avoidable injm-y to another. One is entitled to the possession of the whole in those cases only where it is necessary to his enjoyment of his moiety. Here it is not necessary. There is no more difficulty in sep- arating one portion from another than there is in selecting A.'s marked sheep from B.'s flock. Either may make the division. The law is not so unreasonable as to compel a re- sort to the com*ts in order to obtain a parti- tion which either may make without ex- pense, and without danger of injustice to his cotenanL Except in Daniels v. Brown. 34 N. H. 454, it has never been held, so far as ob- served, that a tenant in common is liable to his cotenant, in any form of proceeding, for taking from the latter's possession, and con- suming or destroying, his just proportion, only, of the common propei*ty. The convey- ance by a tenant in common of a part of the common land by metes and bounds may effect a partition, and will if it does no injustice to his cotenants,— if theii' just share can be as- signed to them out of the remaining land. : Holbrook v. Bcwman. 62 N. H. 313. .321. No ' reason is per-'^ived why a similar doctrine should not oe applied in the case of a com- mon tenancy of chattels. If A. and B. own , in common 100 horses, and B. sells 10 of them to C, why 'hould A. be permitted to take them "when he can see his time." if he has possession of, and can have his full share assigned to him from, the remaining 90? However that may be, a tenant in common of goods divisible by tale or measure may, without the consent and against the will of his cotenant, rightfully take and appropriate to his sole use. sell, or destroy, so much of them as he pleases, not exceeding his share, and by so doing effect, pro tanto. a valid par- j tition. To this extent. Daniels v. Brown, I supra, is overruled. Haley v. Colcord. 59 X. H. 8; Gage v. Gage. 66 V. H. 2S2, 2&8, 29 Atl. 543; Selden v. Hickock. 2 Caines. 166; Lobdell V. Stowell, 51 N. Y. 70, and cases cited; Stall v. Wilbur, 77 N. Y. 158, 164; Cooley, Torts, 455: 6 Am. Law Rev. 455-4.59, and cases cited. The defendant, by prevent- ing the plaintiff from taking his part of the manure, exercised a dominion over it incon- sistent with the plaintiff's rights. Evans v. Mason. 64 N. H. 98, 5 Atl. 766. Judgment for the plaintiff. WALLACE, J., did not sit. The others concurred. I See Wetherbee v. Green, 22 Mich. 311. CONFUSION OF GOODS. 87 GATES V. RIFLP] BOOM CO. (38 N. W. 245, 70 Mich. 309.) Supreme Court of Michigan. May 18, 1888. Error to circuit court, Bay. county; S. M. Green, Judge. Samuel G. M. Gates brought an action of trover and conversion of a certain quantity of white pine saw-logs against the Rifle Boom Company. Judgment for defendant. Plaintiff "orings error. Holmes & Collins, for appellant. Hanchett & Stark, for appellee. MORSE, J. The plaintiff, in his lumbering operations, in 1882 cut over the line upon the adjoining land of Rust Bros. & Co., and there- by secured and marked as his own about 135,000 feet of logs belonging to the latter. These logs were mixed Avitli the other logs of plaintiff, and banked on the west branch of the Rifle river. They were not run out the following spring, but remained in the roll- way during the summer and fall of 1883. In that year Rust Bros. & Co. sent some scalers Avhere the plaintiff's logs were, who selected out, as best they could, logs of the same quality as those taken from the Rust lands by plaintiff, and about the same quantity, and marked them with the stamp of Rust Bros. &. Co. Such logs then bore two brands, the mark of plaintiff, "C. O. W.," and the Rust mark, "7 R. 7." Under the usual con- tract by plaintiff with the defendant boom company these logs, intermingled with other logs of the plaintiff, were driven down the stream in the summer of 1884, and received in the defendant's boom. The defendant was notified by Rust Bros. & Co. not to deliver the logs with the double marks upon them to plaintiff. The boom company thereupon delivered the double-marked logs, about 155- 000 feet, to Rust Bros. & Co., who, finding that more were marked by t'neir scalers than they were entitled to, returned to plaintiff 20.590 feet of the same. The plaintiff, after demanding these logs of the boom company, and after its refusal to deliver them, brought this suit in trover in the circuit court for the county of Bay. The cause was there tried before a jury, and verdict and judgment passed for the defendant. The plaintiff in this court as^signs as error the following in- stmctions given by the court: "If the plain- tiff cut the logs innocently, supposing them to be upon his own laud, and mixed them with his own so that they could not be identified, and after they became mixed with his own, so that the logs cut from Rust Bros. & Co.'s lands could not be identified, then Rust Bros. & Co. had the right to select from the common mass a quantity of an aver- age cjuality of their own, equal to the quan- tity taken from their land." And also, in the same connection, after having stated the rule as to willful trespasses, instructing the jury further as follows: "But a different rule prevails where a party innocently mingles his property with that of another, and where it is undistinguishable, and where the general quality and character of the property is the same, as in the case of the same kind of logs, white pine, if you please, and of the same general quality as near as may be. There, if the logs are confused, neither party loses his own. Both partie:< have a right to their own, and neither party being able to distinguish his own, the party whose prop- erty has been mingled with another's prop- erty by the act of that other party may take so nmch of the common mass as he has in it." It was claimed by the plaintiff upon the trial, and he so testified, that the logs taken by Rust Bros. & Co. were of greater value in quality than those cut by him from their lauds. The quantity cut by him on the Ru.st lands was not claimed to be less than the quantity taken by Rust Bros. & Co. It there- fore became material to ascertain, upon the trial, whether the plaintiff was a willful tres- passer, or cut the logs innocently, in good faith, believing that he was within the lines of his own laud. The court instructed the jury as to the difference between a willful and an unintentional trespass, stating to them, in substance, that if the trespass was a willful one, if Gates knew he was cutting the logs of Rust Bros. & Co., and so, know- ing them not to be his, intermingled them with his own tliat they could not be dis- tinguished, Rust Bros. Ai Co. had a right to take more than their own, and if, in order to get all that belonged to them, and without intending to take more than belonged to them, they did take a better quality of logs than they had lost, if they did not make the selection with that view, the plaintiff could not recover for such excess in quality; but if the plaintiff cut the logs, and marked and mingled them with his own, in good faith, believing them to be his own, then, if Rust Bros. &, Co. took more than they were en- titled to, the plaintiff might recover the ex- cess. The counsel for the plaintiff very ably and foi'cibly contended in the argument here that if the plaintiff" was innocent of any wrong, he was entitled to recover in this ac- tion, if Rust Bros. «t Co. took no more logs in quality or quantity than were cut upon their lands, the difference between the value of the logs and the value of the standing tim- ber, that Rust Bros. & Co. could claim no more than the value of the stumpage. He argues that if Rust Bros. & Co., under the same circumstances, had sued the plaintiff in trover for the value of the timber so cut, the measure of damages would have been the value of the stumpage. and that they could not have recovered what they obtained in this suit, the value of the logs, representing not only the value of the standing timber, but also the worth of the labor of plaintiff added thereto. Citing Ayres v. Hubbard. 57 ISIich. 322, 23 N. W. Rep. 829. The object of S3 CONFUSION OF GOODS. the law beinjr, in both cases, to enable the party, deprived of his property to receive compensation therefor, he aslis, "Why should the man who strictly follows the law. and adopts a legal course of procedure" to obtain his property be in a worse position, and re- ceive less than he who uses force or strategj- to recover possession of his property? He claims that in this case the plaintiff added innocently to the value of this timber the cost of cutting and putting in the logs, which was the sum of S-'2.'27> i>ev thousand feet, and also the value of the driving and booming cliarges. He estimates this value at over S300. But in the hrst place it seems to me that this amount, the value of the plaintiff's labor and expenses upon the logs, could not be recovered in an action of trover. The logs were still the property of Rust Bros. & Co. The trespasser, however innocent, could acquire no property in these logs, nor could he acquire a lien upon them for such labor and expense. The conversion of trees into saw-logs by a trespasser does not change the title to the property, nor destroy the identity of the same. The owner of the land is the owner of the logs, and the trespasser has no title to them. Therefore when he regains his own, he lias converted no property of the trespasser to his own use. Stephen- son v. Little. 10 Mich. 433; Final v. Backus, IS Mich. 21S-232; Mining Co. v. Hertin, 37 Mich. 337; Arpin t. Burch, 6S Wis. 610, 32 N. W. 681; Winchester v. Craig, 33 Mich. 20.j; Grant v. Smith, 26 Mich. 201; Tuttle v. White, 46 Mich. 4S.5, 9 N. W. .".28. In the case of Mining Co. v. Hertin, 37 ilich. 337, the trespasser sought to recover in a special count in assumpsit for the value of his labor expended in cutting the wood. In this case, if any action would lie for the labor of cutting the logs and the expense of getting them into the stream and down to the boom it would seem that the plaintiff's remedy would be iu assumpsit. But in the case above refen-ed to it was held that he could not recover the benefit of his labor at all. There can be no doubt that the rule is weU settled in this state that if Rust Bros. & Co. had taken possession of these logs while they were lying upon their lands, they would have been entitled to them as they were, and that no claim could have been made against them by the plaintiff for the labor and expense of cutting them. The identity of the timber would not then have been destroyed, and the subsequent inter- mingling of these logs with the logs of plain- tiff, although innocently done, could not change the rights of the owners. The evi- dence shows that between the time Rust Bros. & Co. discovered the trespass and the time they took possession of the logs by marking them, no labor or money was ex- pended by the plaintiff upon them. There- fore it follows that as this case stood the plaintiff had no claim upon Rust Bros. & Co. that he could enforce in this action, unless they took possession of a better qual- ity of logs than he cut upon their premises and the same amount or more in quantity, and his trespass and intermingling of the propeity was innocently done. And the court was right in his interpretation of the law as to innocent trespassers. The seeming injus- tice pointed out in the argument of the plain- tift''s coimsel is not an injustice, but the re- sult of the election of the owner to take less than he is by the law entitled to. The own- er of standing timber is not only entitled to the timber, but he has a right to it as it is, and to keep it uncut if he so desires. Xo man, however innocently he may do it. can go upon his land and convert the standing trees into logs and charge him for the labor thus expended against his will, and perhaps against his real benefit. He may prefer to have the timber to stand, and if left standing a few years may bring him immense profit. Such instances have not been rare in the his- tory of pine timber in this state. The sup- posed enhancement of his property by the labor of the trespasser may thus turn out to be a positive injury. There is no injustice in holding tliat the trespasser must lose the labor he has expended in converting another's trees into logs. Such trespasses, though cas- ual and not willful, are ordinarily, as was the trespass in this case, the result of negli- gence upon the part of the trespasser, and there is no good reason why he should be recomj^ensed for labor and expenses incurred in the trespass when it might have been avoided by proper diligence. The owner has the right to reclaim his logs, but if he sees fit to bring an action of trespass or trover in- stead of regaining his propei-ty he volunta- rily puts himself within the rtile of damages prevailing in such actions, and thereby elects to receive only a just and fair compensation for his property as it was before the trespass- er intermeddled with it. The trespasser can- not complain of this, neither can he complain if he elects to take his property if he can find it. As was well said in Mining Co. v. Hertin. supra: "Nothing could more encour- age carelessness than the acceptance of the principle that one who by mistake performs labor upon the property of another should lose nothing by his error." The further and only question in the case is the alleged eiTor of the circuit judge in reject- ing the offer of the'plaiutiff to prove by Harvey Parker that while said Parker was foreman for the plaintiff", and was at work on the 80- acre tnict adjoining the 40-acre tract claimed by Rust Bros. & Co., and before all of the logs had been hauled from the strip of real estate in dispute in this case, said McTavish and Gates then being at the camp. McTavish, while there, made no complaint or objection as to where they were cutting; made no claim that plaintiff and his men had com- mitted a ttespass; and in answer to a question by said Parker, after Gates had gone away, McTavish said the line plaintiffs men had cut CONFUSION OF GOODS. 89 to was all right. And in siistainins the de- fendant's objection to the following question to the said Harvey Parker: "Did you have any talk with McTavish about the line to which you had cut?" the counsel for the plaintiff claims that this evidence was material and competent as bearing upon the good faith of the plaintiff in cutting the timber; that it does not appear from the verdict of the jury whether they found such trespass willful or not. It was conceded that Rust Bros. & Co. took about the quantity of logs they were en- titled to, biit if they took a much better qual- ity, as plaintiff claimed they did, and the tres- pass was found by the jury to have been an innocent one, the plaintiff's counsel claims that there should have been and probably would have been a verdict in his favor for the vahie of the excess in quality so taken. In deter- mining the competency and materiality of the proposed proof it will be necessaiy to enter somewhat into the facts of the trespass. Mc- Tavish was a land-looker, and a woodsman and general foreman, looking after the differ- ent lumber camps of Rust Bros. & Co., and looking after trespasses committed upon their lands, but not having any authority to locate or agree upon the boundaries of such lands. The plaintiff called upon McTavish, before he did any cutting, and asked him if he would go with him and see if they could not locate the line between his land and that of Rust Bros. & Co. He does not state that he supposed Mc- Tavish had any authority to locate the line. Ho says: "I bad known him a good many years, and knew him as a man in the employ of the Rusts." "Question. You knew he was their agent and their woodsman? Answer. I believed him to be a good land-looker. I ask- ed him if he would go with me and see if we could locate the line between 28 and 29 north, of the quarter post. He said he knew where the south section corner of the section was. We will go there and see if we can find it." They went up into the woods, and undertook to run out the line. They disagree somewhat in their testimony. As they were pacing on the supposed line the plaintiff did some blazing. :McTavish testified that he forbade this bla;^- ing. saying to Gates that there was no telling whether they were right or not, as they were running the line out with a pocket compass. He says: "I told Mr. Gates at the time that there was timber enough along the line, who- ever lumbered there tirst. to have that line es- tablished by a surveyor, and he made the re- mark then that that line would be just a guide for him when he went in there again to know about whei'e he was;" and they agreed that it should be surveyed before it was lumbered. Gates testified that he blazed the line they ran out. That at one point McTavish said: "I don't know, we may not be just right here, and perhaps you hadn't better blaze." I says: "It will be a guide to us to know where we have come, and I will continue the blazing until you get to the corner." That McTavish said that he was satisfied that was the right line, and said further: "That line is as correct a line as we can get through here; but as tim- ber is thick on the line down below between you and Rust you ought to have a sui-veyor run a compass course from this corner to this quarter post to be sure, as I have dodged a little in traveling north. We have come as straight as we could." To this, Gates says, be assented. No line, however, was run by a surveyor until after the cutting. Harvey Parker was the foreman of the plaintiff. Mc- Tavish was asked, on cross-examination, if he did not have a conversation with Parker about this line, and answered that he did not re- member it, but said that he stayed one night at his camps and presumed he told Parker that the plaintiff had cut to the line that he and Gates ran. Denied ever stating to him that the cutting was all right, or that they had the right line. This conversation, if any was had, was after the cutting of the logs. The offered evidence of Parker was rejected at first by the court upon the ground that it was not competent because it tocdc place after the cutting. Parker afterwards testified that at the time of the talk the timber was all cut off of this stiip belonging to the Rusts, and that some of the logs had been taken off; (hat Gates was not present when the conversation took place; and there was no evidence offered to show that Gates ever knew of the talk. Thereupon the coiul ruled that it was not ma- terial. We think the court did not err in the ruling. jMcTavish had no authority to bind the Rusts, and what he nnght have said after the trespass was conunitted could have no bearing upon the question of the good faith of the plaintiff, especially when thi're was no evi- dence that Gates was informed of what Mc- Tavish said. Xor was it admissible as im- peaching testimony not being material to the issue. The judgment of the coint below must there- fore be affirmed, with costs. SIIKRWOOD. C. J., and CIIAMPLIX and LONG, J J., concurred. CAMPBELL, J., did not sit. DO CONFUSION OF GOODS. FIRST NAT. BANK OF DENVER v. SCOTT. (54 N. W. 987, 36 Neb. 607.) Supreme Court of Nebraska. April 11, 1893. Error to district court, Webster county; Cochran, Judge. Action of replevin by the First National Bank of Denver against Henry C. Scott to recover a quantity of tlour and feed. There was judgment for defendant, and plaintiff l>riugs error. Affiriueil. J. S. Gilham and Case & McNeny, for plaintiff in error. St. Clair & McPheely, for defendant ia error. MAXWELL, C. J. On the 21st of Decem- ber, 1888, the Red Cloud Milling Company executed a bill of sale to the plaintiff in error on '"all the flour, feed, meal, and grain of all kinds, manufactured and rmmanufac- tured, now in the mill, elevator, cribs, and warehouse of the Red Cloud Milling Com- pany at Red Cloud, Nebraska, lOU head of steers, cows, and calves, now in the feed yards of the said milling company, one span of black mai-es, one set of double harness, one lumber wagon, all grain on track at Red Cloud, Nebr." At the time this bill of sale was executed there were about GO tons of flour, and a large amount of bran and feed, in and attached to the mill. There seems to have been no immediate change of possession. Prior to the execu- tion of the bill of sale the milling company had ordered several cars of wlieat from the defendant in error, and on the 22d of that month one car was shipped by him to the milling company from Axtell, Neb., and was received on December 24th of that year, and a portion, at least, was ground into flour, and mixed with the other flour stored in the mill, and the like mixture seems to have been made of the wheat. The defend- ant ui error thereupon commenced an action by attachment against the milling company to recover the value of the car of wheat, viz. 619 5-6 bushels of wheat at 90 cents per bushel, amounting to $557.85. The return of the sheriff on the order of attachment is as follows: "Dec. 29th, 1888. Received this order, and, according to the comuiimd thereof, I did on the same day, at 11 o'clock A. M. in the presence of H. H. Eckman and Weslej' Street, two credible persons, resi- dents of the county, attach the following- goods and chattels, to wit: About 3(X> bushels of wheat, valued at 80c., $240; 1,050 504b. sacks of R. C. flour, $1.37i/2, $1,443.75; 20 50-lb. sacks of White Loaf at $1,621/^, $32.50; 130 50-lb. sacks of New Deal at $1.00 per sack, $130,— and, after ad- ministering an oath to said H. H. Eckman and Wesley Street to malce a time inven- tory and valuation of said property in writ- ing, I then made an inventory and appraise- ment of said property, which is lierewith re- turned. I also on the same day delivered to said defendants the Red Cloud ^Milling Co., by D wight Jones, President. & R. D. Jones, Secy., a certifled copy of this writ. After getting 1,200 sacks of flour I relensed aU wheat, and it was turned back to Dwight Jones, president of the Red Cloud ^Milling Co. H. C. Scott, Sheriff. By J. C. Warner, Dept." The plaintiff in error thereupon brought an action of replevin, and reclaimed the property. The defendant, in answer to the petition, alleged "that on or about the day of 188- the Red Cloud Milling Co., a corpora- tion organized and doing business in and under the laws of the state of Neb., was indebted to A. G. Scott & Son in the sum of $1,000.35, in a cause of action arising upon the purchase by said Red Cloud INIill- ing Co. of a quantity of wheat of the said A. G. Scott & Son, and on said last-named date the said A. G. Scott &, Son commenced an action by attachment against the said Red Cloud Milling Co. in the district court of Webster county, Neb., and caused an order of attachment for the sum of $1,000.35 to be issued hi said cause, and deUvered to the defendant aforesaid, as sheriff, to levy; that under and by virtue of said order of attachment, and in pursuance of tlie com- mand thereof, the defendant, as such sher- iff, levied upon 1,050 sacks of wheat flour 'Red Cloud Brand,' 20 sacks of Avheat floiu* 'White Loaf Brand,' and 130 sacks of wheat flour 'New Deal Brand,' being the goods and chattels mentioned in said petition here- in, and took the same into his custody; that said flom- •\\as at tlie time of said levy, and still is, the sole property of the said Red Cloud Milling Co., and was liable to be levied upon for the satisfaction of said debt, and taken under said order of attachment for the satisfaction of the same; that said action is still pending and imdecided in said district court; that the defendant, under and by virtue of said writ of attachment, held the po&session of said flour until on or about the 27th day of March, 1889, when the same was taken from his possc^ssion and custody by C. Schenck, coroner of s:iid Webster county, Neb., by virtue of a writ of replevin in this action. Wherefore de- fendant prays a return of said goods, or, if a return cannot be had, then for the value thereof to the extent of said order of attachment, to wit, $1,000.35, with inter- est and costs of suit." On the trial of the cause the jury returned a verdict in favor of the defendant in error for the sum of $557.85 and 1 cent damages. They also found the value of the property levied upon was $1,200. 1. A number of objections are made on be- half of the plaintiff in error to one of the instructions. In our view, however, these objections are not material, as it is evident that the verdict is the only one that should be rendered imder the proof. It is clearly shown that a car of wheat containing 6,19.5 ! bushels was received and placed in the ! mill after the bill of sale was executed. CONFUSION OF GOODS. 91 This was not covered by the bill of sale, and therefore the party using it is Uable for its value. The plaintiff in error claims to have been in possession of the mill, and was running it, when the wheat was re- ceived, and therefore is liable for the same, and the jury so found. The case is sim- ple, and did not require a volume of instnic- ticns for the guidance of the jury. Judg- ment was rendered in the attachment case in favor of the defendant in error be- fore the trial in this case took place, and $347.50 appears to have been realized from the property attached therein. The judg- ment on the attachment in favor of the de- fendant in error, and against the milUng company, was for the sum of $1,029.35 and costs, from which the sum of $347.50, amount due from garnishees, is to be de- ducted. The jury in the case at bar, how- ever, found that as against the plaintiff in error the recovery should only be for the value of the car of wheat. 2. Objections are made to a general levy of the attachment upon the property of the plaintiff in error. We do not care to impute wrong motives to the plaintiff in error in appropriating the wheat. AVhere a confu- sion of goods is made fraudulently, by one who owns a part thereof, and after being made it is impossible to identify or appoi'- tion the property of each owner, the one not at fault will be entitled to the whole. This is upon the principle that a party, by wrongfully mixing the goods of another, cannot thereby deprive the other of ' his properly, or profit by his own wrong. Therefore, it being impossible to separate the mass, he must lose the whole. Jewett V. Dringer, 30 N. J. Eq. 291. But forfei- tures are not favored in law, and it must be an extreme case that will justify the taking of the property of one person, and giving it to another. Whenever it is possible, there- fore, to make a division of the property, and give to each one his share, a court will make such division. Thus in Chandler v. De Graff, 25 Minn. 8S, where the plaintiff delivered to the defendant about 20,000 rail- road ties in excess of the contract, which the defendant refused to accept, btit had mingled the same with those which were accepted so that they were undistinguJsh- able, the plaintiff was permitted to take out of the mass of the tics the number of such excess. The same nile, in sub- stance, was applied in Stone v. Quaale, (Minn.) 29 N. W. Kep. 320; Arthur v. Rail- way Co., 61 Iowa, 048, 17 N. W. Rep. 24; Inglebright v. Hammond, 19 Ohio, 337. Al- though the conversion of the wheat to flour was made without the consent of the de- fendant in error, yet the property in its changed form is susceptible of a fair divi- sion, and tins seems to have been made by the jury. The property being susceptible of an equitable division, and being so divid- ed, the plaintiff' in error has no cause of complaint. The judgment is right, and is affirmed. The other judges concur. See Starke v. Paine, 55 N. W. 185, 85 Wis. 033. 92 PATENTS. WOOD et al v. PACKER. (17 Fed. G50.) Circuit Court, D. New Jersey. July 14, 1883. In equity. P. C. Lrowtborp, Jr., for complainant. James Buchanan, for defendant. NIXON, J. This action is brought against the defendant for infringing certain reissued letters patent. No. 9,3as, dated August 81, ISSO. The Delaware Coal & Ice Company was the owner of the original patent. No. 73,- 684, and brought suit in this court against the same defendant for their infringement. It was found, upon examination, that although the patentee in his specifications stated the nature of his invention to consist in the fun- nel-sliaped mouth attached to the cart, in com- bination with the chute and valve, he had failed to make any claim for such combina- tion; and as none of the separate constitu- ents, as set forth in the three claims, w'ere new, the court was obliged to hold that the defendant was not shown to have infringed anything claimed in the complainant's pat- ent. Since then the original patent has been surrendered, and a reissue obtained, with quite a different statement of the inventor's claims. They are as follows: (1) The com- l)inntion of the body of a coal cart Avith a sliding extension chute, substantially as and for the purpose set forth; (2) the combina- tion of the body of a coal cai't and the outlet, having a gate or valve, with a sliding exten- sion chute, adapted to the said outlet, sub- stantially as specified. The answer sets up three defenses: (1) That the reissue is void because the combina- tion claimed is an expansion of the original; (2) want of novelty in the patent; (3) non- infringement. The second is the only one of these de- fenses which seems to have merit, or which has been the occasion of any serious or ex- tended inquiry. Do the specifications and claims of the patent as reissued indicate in- vention on the part of the patentee? The patent is for a combination, the constituents of Avhich are stated in the claims above quot- ed. There is no difference, in fact, between the claims, except that the second has one element which is not named in the first, to- wit, the outlet, having a gate or valve, and which is the means of communication be- tAveen the first and third constituents of the combination. Its absence gives much force to tlie argument of the learned counsel of the defendant, that the first claim is void be- cause the parts are old, and there is no de- l>endence or co-operation in their action whereby any new result is obtained. A mere aggregation of old things is not patentable, and, in the sense of the patent law. is not a combination. In a combination, the element- al parts must be so united that they will de- pendently co-operate and produce some new and useful result. A coal cart is not novel, nor is the chute for conducting coal from the cart to the place of its destination. These two instrumentalities are aggregated in the first claim; but no mechanism is suggested whereby the coal can be got out of the cart and into the chute. The complainant (Wood) testifies as a witness that it can be accom- plished by the use of a man with a shovel. This is probably true; but it is difH.cult to see how the inventive faculty is put in ex- ercise by anj' such arrangements. It is not necessary, however, to dwell upon this view of the case, because the entire reissue will not be avoided on account of the existence of one void claim. See Carlton v. Bokee, 17 Wall. 463. The constituents of the second claim of the reissue are (1) the cart or wagon; (2) the out- let, with a gate or valve; and (3) the sliding extension chute. The patentee was asked whether he thought any of these elements, separated from the others, was novel, (Com. Rec. 28, 29,) and replied, "I do not think they are, but only in combination." The case is then presented here which was considered by the supreme couii: in Hailes v. Van Wormer, 20 Wall. 368, and in which Mr. Justice Strong, speaking for the whole court, said: "All the devices of wiiich the alleged combination is made are confessedly old. No claim is made for any one of them singly as an independent invention. It must be con- ceded that a new combination, if it produces new ,and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined ele- ments. * * * Merely bringing old devices into .iuxtaposition and then allowing each to Avork out its oAvn effect, without the produc- tion of something novel, is not invention." The question, then, is in regard to the sec- ond claim of the complainant's reissue: Is it a patenable combination, producing new and useful results, or is it a mere aggrega- tion of old elements, each working out alone its single individual effect? It is not a question of easy solution, for it requires us to find the exceedingly delicate line which divides patentability from simple mechanical skill, or to ascertain the differ- ence betAveen real iuA'ention and a double use or application of something that has ex- isted before. Mr. Curtis, in section 41 of his treatise on the LaAV of Patents, in discussing this subject, says: "The subject-matter of a supposed invention is new, in the sense of the patent laAv, Avheu it is substantially different from what has gone before it; and this sub- stantial difference, in cases where other an- alogous or similar things have beeu previous- ly known or used, is one measure of the suffi- ciency of iuA'cution to support a patent. Our courts have, in truth, without always using PATENTS. 93 the same terms, applied the same tests of the sufficiency of invention which the EngUsh authorities exhibit in determining wliether al- leged inventions of various kinds possess the necessary element of novelty; that is to say, in determining this question, the character of the result, autt not the apparent amount of skill, ingenuity, or thought exercised, has been examined; and if the result has been sub- stantially different from what had been ef- fected before, the invention has been pro-- uouuced entitled to a patent." If all improvements upon existing organ- isms were patentable, there would be no doubt about sustaining at once the complain- ant's patent. But sometimes better results are produced by mere mechanical skill, with- out the exercise of invention. The law does not extend to or cover such cases (Smith v. Nichols, 21 Wall. IIS), nor Avhere the change is only in degree, and not new. Guidet v. Brooklin, 105 U. S. 552; McMurray v. Miller, IG Fed. 471. The complainant's patent is undoubtedly a great improvement upon everything that went before it. The invention of William Bell (let- ters patent No. 14,.301, granted Febniary 2G, 185G) was set up by the defendant as an an- ticipation, and it certainly contains valuable suggestions. His dumping wagon, however, could not be used for delivering coal in cellar windows, but only for dumping it into pave- ment vault-holes, where they happened to exist in front of houses, at a proper distance from the edge of the pavement, and it seems to lack adjustability for doing even this suc- cessfully. The evidence shows that Richard Hammell, a respectable citizen of Chambersburg, was formerly engaged in the coal business in Lambertville, New Jersey, and that as early as 1SG3 he was in the habit of using chutes in delivering coal from a wagon into a cellar. He thinks that he introduced the double or sliding chutes in the fall of 18G5, and contin- ued to use them for 10 years. The narrow end of one passed into the wider end of the other. He used the double chutes when the distance for delivery was too far for the single. When the distance was greater than the single chute, they pushed them one into the other to adjust the length. When the distance was still greater, they had chutes that would reach any house. The longest single chute was IG feet; by combining them they could reach 2-t feet, or more, if neces- sary. When more than one was used, they carried a light trestle to supixirt them in the middle. * * * They had half a dozen sueh chutes, and when they had occasion put them together. Peter C. Hoff was also in the coal business in Lambertville, in the spring of 18G7, and has continuetl therein ever since. He used chutes of different lengths, made tapering, and growing smaller to the end, which went into the cellar. The lower end would rest on the cellar window, or the place made to put in the coal. He used more than one at a time, but not frequently. He generally had three chutes, — one about 7 feet long, one about 12, and the other about 14 feet. Then if the place to put the coal in was 10 feet from the line of the street, he would use two chutes, would shove the small end of the one into the larger end of the other, with a trestle under where the connection was, and also a prop by the wagon,— being a seat, board, or something similar. — in order to hold it up to let the coal run into the cellar. He used the 14-feet chute and the 7-feet together in that Avay, which was about the longest distance he ever used the chute. But in all these cases the coal was shoveled from the wagon into the chutes, which were not attached to the wagon in any way. This testimony ex- hibits the state of the art when the complain- ant appeared with his improvement. He has not very largely exercised the inventive facul- ty in what he has done. His combination is so simple that it seems wonderful that otlier persons did not think of it. But they did not. and if it has eCiected any new and useful result the law protects him in its exclusive use. The evidence reveals that by his com- bination of old instrumentalities a load of coal can be emptied from a cart into a cellar without the agency of a man using a shovel. This is a new result, worthy of the notice of the law, and it is the duty of the court to give to the patentee the benefit of his inven- tion. A decree must be entered for the complain^ ant, and a reference made for an account 94 PATENTS. PHILLirS et al. v. KISSER et al. (2G Fed. 308.) District Court, X. D. Illinois. June 29, 1885. In equity. Burnett & Burnett for complainants. Peiroe & Fisher, for defendants. BLODGETT, J. By this bill complainants charjre defendants with the infringement of reissued letters patent No. 4,212. issued to complainant, December 20, 1870, for "an im- provement in wagon and car unloading ap- paratus," the original patent, No. 83,105, having been issued to Noah Swickard, Oc- tober 13, 1808. The leading feature in the device is the arrangement of two tilting bars with a platform in such manner that the wheels of the wagon or car to be unload- ed can be brought to rest on these bars, when, by tilting the bars, the body of the A-ehicle is tipped to such an angle as to cause the contents to slide or be dumped out by its own gravity. The defenses inter- posed are: (1) That the patent is void for want of novelty; (2) that the defendants do not infringe; (3) that the reissued patent is for a different invention from that de- scribed in the original, and is such an en- largement of the specifications and claims of the original patent as to make the reissue void. The proof shows a number of devices, pri- or to that covered by this patent, for unload- ing cars or trucks by tilting the platform on which they stand so as to cause the con- tents of the car to slide out or be dumiied into a bin or chute; but from the proof I conclude that Swickard was the first to pro- duce a device by which the wagon was tip- ped or thrown into an inclined position, by means of vibrating bars or rails, which oper- ated in connection with a fixed or stationary platform; and this arrangement seems to be particularly adapted to dumps for unloading bulk grain from wagons drawn by teams, as the team cau pass readily upon the fixed platform, the wheels being so guided as to be brought to rest upon the rails or bars forming part of the vibrating platform. Most, if not all, the prior devices seem to have been specially adapted to unloading the contents of cars or trucks run upon rail- road tracks or tram-ways; but it is notice- able that Swickard specially states that his invention is to be \ised for unloading wagons or cars, although he only shows it in use as arranged for unloading wagons. But it is suggested that if it is applicable to the unloading of cars it must be radically chan- ged; that, while an ordinary farm wagon stands upon wheels at such height that a sufficient inclination cau be obtained by dropping the hind end down until the rear axle strikes the fixed platform, the much smaller wheels of a car would cause the axle to strike the fixed platform before the requisite inclination was secured. It is, however, undoubtedly true that the mei'e suggestion of this patentee that his machine can be used "for unloading wagons or cars" would not invalidate it as a wagon unloader, even if it should require inventive genius to adapt it to the unloading of cai-s; that is, it ma 3" not be used to unload cars, as the word "car"' is commonly used, in contradis- tinction to "wagon," yet it may cover a valid device for unloading a wagon, and would be valid if it is applicable to one use, even if it is not applicable to all the uses suggested by the inventor. The proof, therefore, shows that there is some advan- tage in using these tilting rails instead of si tilting platform. I am of the opinion that defense of want of novelty is not made out, although I feel compelled to say that in my estimation there is much reason for doubt- ing whether it requires anything more than mere mechanical skill to adapt the older devices to the unloading of wagons. The patent, at least, must be construed to stand upon a very narrow basis. As before stated, the original patent show- ed two platforms; that is, a fixed platform, A, and a vibrating or tilting platform, work- ing in slots in the fixed platform, the pivoted balance bars being tied together at their for- ward end by a cross-board, which rested up- on the fixed platform when the movable one was level with the fixed one, so that the vibrating or tilting bars could not move or act independently of each other, but must raise or lower at the same time. The cross- board or plank, C, also acted as a stop to keep the forward ends of the tilting rails from dropping below the fixed platform, while, by the arrangement of the keys, E, E. they held the rear ends of the tilting plat- form in place uutil the wagon was drawn onto them, when, by means of a lever, these supporting keys were withdrawn, and by a slight effort, or the weight of the operator, the rear end of the movable platform was dropped to an angle required to slide the load from the wagon. Each of these tilting rails also contains a self-acting dog, G, which was intended to act as a check to pre- vent the wagon from running back after it had been drawn upon the platfoi-m; and. in order to guide the wagon onto the tilting platform, the lid of the hopper was made long enough to reach from inside to inside of the rail, and raised a couple of inches above the platform, so that it would serve to guide the wheels onto the tilting rails. There was also fixed to the forward ends of these tilting bars a bar or hook, which was intended to prevent the front end of the movable platform from rising higher than should be required to secure the neces- sary slope of the wagon for causing the load to slide out. The claims of the original patent were: "(1> The slotted platform. A, in combination with the pivoted balance bars, B, B, board. PATENTS. 95 ■C, end-bars, I, I, and stops, H, H, all con- structed and operating substantially as and for the purposes herein set forth. (2) The pivoted balance bars, B, B, provided with one or more self-acting dogs, G, in combina- tion with the spring toggle keys, E, E, and key, F, all constructed and operating as and for the purposes herein set forth. (3j The arrangement of the slotted platform, A, bal- ance bars, B, B, and lid, D, to the hopper, siibstantially for the purposes set forth." It will be seen that the first claim is for the combination of these two platforms, the one fixed and the other capable of the tilt- ing motion described, with the cross-board Avhich tied the forward ends of the tilting rails together, and the hooks or end-bars which limited the height to which the for- ward end of the tilting platform could rise. The second claim is for the tilting bars, pro- vided with one or more self-acting dogs, in combination with the keys, by which the rear of the tilting r)latfoi-m was held in place while the wagon was being drawn onto it; while the third claim is for the two platforms and lid of the hopper arranged so as to act as a wheel-guide. The patent as reissued contains seven claims, and the infringement in this case is charged as to tlie first, fifth, sixth, and seventh claims. These claims, as to which infringement is charged, are as follows: "(1) The tilting platform, B, in combination with platform or floor. A, as and for the purposes set forth. * * * (5) The combination of platforms. A and B, with a stop device. I, for the purpose set forth. (6) The combina- tion of platforms. A and B, with a receiving bin or chute, C, operated substantially as de- scribed, for the purpose set forth. (7) The combination of platforms, A and B, with lid, D, for the purposes set forth." It is conceded that the defendants have constructed grain dumps with tilting rails, each pivoted and working independently of the other, substantially like the defendants' Model A, in evidence in this case, with some variation as to the mode of locking or stop- ping the rear end of the rails in place, and one dump, like the defendants' Model B, in which, as will be seen, the forward ends of the tilting rails are tied together by a cross-plank; and the first question I propose to consider as to this branch of the case is whether these dumps constructed by the de- fendants infringe either of these claims of the reissued patent. The first claim of the reissue is for the tilting platform, B, in combination wifli the fixed platform or floor, A. In the specifica- tions of the reissue it is said the tilting plat- form is so constructed "as that its forward end shall rest upon the stationary platform." It must be obvious to any one who studies the operation of these devices that some way must be provided for holding the for- ward end of the movable platform so that it will not fall below the fixed platform. The specifications of the reissue give no in- structions as to how the forward end of the tilting platform is to be constructed, so that it shall rest on the stationary platform; but the drawings show a cross-board which ties the forward ends of the two pivoted bars together, and this cross-board, when these forward ends drop to the level of the fixed platform, must rest on the fixed platform, and thus hold the movable platform level with the fixed platflic use without objection? Wal- cot V. Walker, 7 Ves. 1; Piatt v. Button. 19 Ves. 448; Wyeth v. Stone, 1 Story, 273, Fed. Cas. No. 18,107. The 7th section of the act of the 3d of March, 1839, [5 Stat. 3.54,] declari« that a purchaser from the inventor of the thing invented, before a patent is obtained, shall continue to enjoy the same right after the obtainment of the patent as before it; and that such sale shall not invalidate the pat- ent, unless there has been an abandonment, or the purchase has been made more than two years before the application for the pat- ent Before this act, a sale of the right would have been an abandonment to the public by the inventor. The decisions, there- fore, referred to, do not apply to cases aris- ing under this statute. A sale of the right is not an abandonment, if made within two years before the application for a patent, as the law now stands; and it may be a mat- ter of some ditficulty, within tlie above lim- itation of two years, to determine what act shall amount to an abandonment. Where the act is accompanied by a declaration, to that effect, there can be no doubt; but if a sale be not an abandonment, a mere acquies- cence in the use of the invention would seem not to be. Within the two yeai-s, to constitute an abandonment, the intention to do so must be expressed or necessarily im- plied from the facts and circumstances of the case. It is a question of intention, as to the extent of the license, of which we must judge, as we are called to do in other cases. But the limitation of two years does not apply in this case, should a copy-right be considered in principle identical with an invention of a machine, as more than two years have elapsed since copies of the com- plainant's manuscripts were taken with his consent. The question arises upon the facts statea, and must be decided on general principles. In the first place, there was no consent of 98 COPYKIGIITS. the complainant, that his manuscripts should be printed. That they were not p.-vpared for the press is admitted. They wer* with- out index or preface, although, as alleged, they may have contained the substantial parts of the complainant's system, which, in due time, he intended to print. Copies of the manuscripts were taken for the bene- fit of his pupils, and to enable them to teach others. This, from the facts and circum- stances of the case, seems to have been the extent of the complainant's consent. It is contended that this is an abandonment to the public, and is as much a publication as printing the manuscripts. That printing is only one mode of publication, which may be done as well bj' multiplying manuscript copies. This is not denied, but the inquiry is, does such a publication constitute an abandonment? The complainant is no doubt bound by this consent, and no court can af- ford him any aid in modifying or withdraw- ing it. The students of Bartlette, who made these copies, have a right to them and to their use as originally intended. But they have no right to a use which was not in the contemplation of the complainant and of themselves, when the consent was fii'st given. Nor can they, by suffering others to copy the manuscripts, give a greater li- cense than was vested in themselves. In England, if an invention be pirated and given to the public, it prevents an inventor from obtaining a patent. But this is not the construction of om- laws. If an invent- or of a machine sell it or acquiesce in its public use, not within the limitation of the two years, he forfeits his rights. He must be diligent in making known and asserting his right, where it has sm-reptitiously got into the possession of another, or he aban- dons it. This was the settled rule before the act of 1839, and it would seem that cases which do not come within the provisions of that act. must be governed by the old rule, No length of time, where the invention does not go into public use, can invalidate the right of the inventor. He may take his own time to perfect his discovery, and apply for a patent. And the same principle ap- plies to the manuscripts of an author. If he permit copies to be taken for the gratifi- cation of his friends, he does not authorize those friends to print them for general use. This is the author's right, from which arises the high motive of pecuniary profit and liter- ary repiitation. When the inventor consents to the construction and use of his machine, he yields the whole value of his invention. But an author's manuscripts are very dif- ferent from a machine. As manuscripts, in modern times, they are not and can not be of general use. Popular lectures may be taken down verbatim, and the person taking them down has a right to their use. He may in this way perpetuate the instruction he receives, but he may not print them. The lectvu'er designed to instruct his hearers, and not the public at large. Any use, there- fore, of the lec-tures, which should operate injuriously to the lecturer, would be a fraud upon him for which the law would give him redress. He can not claim a vested right in the ideas he communicates, but the words aud sentences in which they are clothed be- long to him. It is contended that the manuscripts are incomplete, and if published in their present state, could not be protected by a copy-right. That an unfinished manuscript or book, which gives only a part of the thing intend- ed to be written or published, can be of no value, and if printed no relief could be given, as no damage would be done. That the parts of a machine, in the process of consti'uction, if pirated, would give no right to an injunction by the inventor. If the manuscript or machine referred to consisted of a mere fragment, which embodied no principle and pointed to no design, the pi- racy of it would afford no ground of relief. But such is not tUe character of complain- ant's manuscripts. They may not be com- plete for public:! tion. Some explanatory notes may be wanting, to assist the reader in comprehending the system. This in- formation was communicated by lectures, and for the piu-poses of instruction in that mode, the notes were imnecessary. But the cards contain the frame work of the system. The substratum is there, and so exemplified as to show the principle upon which it is constriicted. That it was valuable, is shown, from the fact of the cards having been used by the defendants in teaching the system, and in publishing them as they have done. The facts show the piracy beyond all doubt, and that it was done under cu-cum- stances Avhich admit of little or no mitiga- tion. The cards, as they well knew, had been, for a number of years, and were then being used by the complainant to instruct pupils. They had learned all they knew on the subject from the complainant. They probably knew that he intended to publish his plan. But this would, to some extent, at least, superseile the necessity of personal instruction. In disregard of these considera- tions, and of the obligations the defendants owed to the complainant, the publication was made. The coiu"t will allow an injunction unless a satisfactory arrangement shall be made between the parties. I TRADEMARKS. 99 CELLUr-OID MANUF'G CO. v. CELLO- NITE MANUF'G CO. (32 Fed. 94.) Circuit Court, D. New Jersey. July 12, 1887. Motion for preliminary injimction. Rowland Cox, for the motion. John R. Bennett, contra. BRADLEY, J. The bill of complaint in this case states that the complainant was incorporated under the laws of New York in 1871, and has ever since that time used its corporate name in carrying on its busi- ness of the manufacture and sale of various compounds of pyroxyline, adapted to dif- ferent uses and purposes, and that its name has become of great consequence in the good- will of its business, its standing, and the reputation of its goods; that, in order to designate its said manufactured product, and to distinguish it from similar comix)unds manufactured by others, the complainant, from the first, adopted and used the word "celluloid," which had never been used be- fore, except to a limited extent by Isaiah S. and John W. Hyatt, by whom the word was coined, and who were engaged in the same manufacture at Albany. New York, and used the word as a trade-mark; and when complainant was incorporated the said Hy- atts entered into its employ, and assigned to it all their rights relating to the business, good-will, and trade-mark; and complain- ant has ever since used the word "celluloid" as its trade-mark, by impressing or stamp- ing it into the surface of the articles made from the manufactured product, whereby it has acquired a high reputation as denoting complainant's manufacture, and indicating goods of superior quality, as compared with like goods sold by other parties under the names of chrolithion, lignoid, pasbosene, etc.; that in 1873 complainant caused said Avord "celluloid" to be registered as a trade-mark in the United States patent-office, under the act in such case made and provided, and again registered in 1883, under the subse- quent act. The bill then complains that the defendant, in order to deprive the complain- ant of its business and its rights, and to cre- ate an unfair competition, since the first day of .Tanuary, 188G, has adopted the name of Cellonite Manufacturing Company, with in- tent that it should be mistaken for com- plainant's name, and intends to use it in the transaction of business similar to that of the complainant; that the similarity of names will embarrass and obstruct the business of the complainants, cause confusion and mis- take, divert complainant's custom, reduce its sales, and deceive the public; that the defendant has commenced to erect works on an extensive scale for the manufacture of a compound of pyroxyline. to be put on sale under the name of "cellonite," a name purely arbitrary, and adopted to enable the defend- ant to sell the article as complainant's prod- uce; that the corporators who formed the defendant company had previously been en- gaged in the manufacture of pyroxyline com- pounds under the name of "pasbosene." "lig- noid," "chrolithion," etc., but selected the new name, "cellonite." in order to trade upon the complainant's reputation, and to sell its product as the complainant's, and intends to stamp its goods with the word "cellonite." in imitation of the stamp on complainant's goods, in order to sell them as complainant's manufacture. The bill prays an injunction to prevent the defendant from using the word "cellonite," or any imitation of the word "celluloid." The allegations of the bill are verified by affidavits and exhibits. The defendant has filed an answer, in which it denies that the conu)lainant has any right to the exclusive use of the word "celluloid:" alleges that many companies use it in u»eir names, as "Celluloid Brush Company," " cel- luloid Collar & Cuff Company," etc.. which have been allowed by complainant without objection. It admits the selection and use of the word by the complainant, but denies any exclusive right to the use of it. because it has become a part of the English language to designate the substance celluloid, and the impression of the word on the articles manu- factured by complainant merely indicati's the substance of which they are composed. It denies that the word "cellonite" Avas adopted for the purpose of imitating the name of complainant, or the name stamped on the complainant's goods. It avers that the word Avas adopted as far back as 1S83. and has been continuously used ever since, not to imitate the word "celluloid." but selected as better describing the exact nature of the pyroxyline compound used by the defendant; the same being a compound of the well- known substances cellulose and nitre, "cel- lonite" being merely a compound derivative of those two Avords; that the defendant aban- doned the use of the words "pasbosene," "lig- noid." etc.. because those Avords gave no in- formation as to the chemical constituents of the compounds designated by them. It al- leges that it has for four years been engaged in manufacturing and selling goods marked "Cellonite," and until uoav no attempt has been made to interfere Avith it. To shoAv that the Avord "celluloid" is a Avord of common use, the ansAver cites various patents and books, (but all subse<]uent to 1873.) also the rules of the patent-office as to the classes of inventions, in which one of the sub-classes is "Celluloid." The only verification of the ansAver is the oath of J. R. Frifnce, an officer of the com- pany, who SAvears that the contents are ti-ue. so far as they are Avithin his knowledge; and. so far as stated on information and belief, he believes them to be true. The ansAver virtually admits that the cor- 100 TRADEMARKS. porators of the defendant had been engaged, before the formation of the defendant com- pany, in the same manufacture, and had call- ed their produce, '"pasbosene."' '"lignoid," etc.; and that they adopted the word "cellonite." instead of those designated, for the reason, as the answer says, that it is more expressive of the constituents, cellulose and nitre. This is a somewhat singular explanation. The ter- mination "ite,"' in chemistry, has a technical apiilication nothing to do with the word '•nitre;" and. notwithstanding the denial of the answer, (which, however, cannot be re- garded as verified by oath,) the inference strongly presses itself that the name was adopted on account of its similarity to "cel- luloid." as the complainant charges. In alleging that the word ''cellonite ' has been used by the defendant since 1SS3. the ae- fendant. which was not incorporated until May, 18SG, identifies itself with the previous association, shown by the affidavits to have been called the "Merchants' Manufacturing Company," composed of the same corpora- tors, who abandoned the old name, and as- sumed the new one. for some purpose or other. The explanation given for so doing is not entirely satisfactory. Here are two lacts standing side by side: First, the fact that the Celluloid ^Manufacturing Company,— an old, well-established concern,— is doing a large and prosperous business, with a good-will resulting from many years of successful ef- fort, and calls the product of its manufacture "celluloid." which has become such a popu- lar designation that, as the defendant says, it has become incorporated in the English lan- guage; secondly, the fact that the Merchants* Manufacturing Company, which produces substantially the same article, and calls it by different names, "pasbosene." "lignoid," etc., (with what success we are not told.) sudden- ly changes its name to that of Cellonite Man- ufacturing Company, and calls its produce "cellonite." It will take a great deal of ex- planation to convince any man of ordinary business experience that this change of name was not adopted for the purpose of imitating that of the old. successful company. It is the object of the law relating to trade- marks to prevent one man from unfairly stealing away another's business and good- will. Fair competition in business is legiti- mate, and promotes the public good; but an unfair appropriation of another's business, by using his name or trade-mark, or an imi- tation thereof calculated to deceive the pub- lic, or in any other way, is justly punishable by damages, and will be enjoined by a cor.rt of equity. The question before me is wheth- er the law has been violated in the present case. First. As to the imitation of the complain- ant's name. The fact that both are corpo- rate names is of no consequence in this con- nection. They are the business names by which the parties are known, and are to be dealt with precisely as if they were the names of j)rivate firms or partnerships. The de- fendant's name was of its own choosing, and, if an unlawful imitation of the complain- ant's, is subject to the same rules of law as if it were the name of an unincorporated firm or company. It is not identical with the complainant's name. That would be too gross an invasion of the complainant's right. Similarity, not identity, is the usual recourse when one party seeks to benefit himself by the good name of another. "What simiiancy is sufficient to effect the object has to be determined in each case by its own circum- stances. We may say, generally, that a sim- ilarity which would be likely to deceive or mislead an ordinary unsuspecting customer is obnoxious to the law. Judged by this stand- ard, it seems to me that, considering the na- ture and circumstances of this case, the name "Cellonite Manufacturing Company" is suffi- ciently similar to that of the "Celluloid Manu- facturing Company" to amount to an In- fringement of the complainant's trade name. The distinguishing words in both names are rather unusual ones, but supposed to have the same sense. Their general similarity, added to the identity of the other parts of the names, makes a whole which is calculat- ed to mislead. Secondly. As to the complainant's alleged right to the exclusive use of the word "cel- luloid"' as a trade-mark, and the defendant's alleged imitation thereof. On this branch of the case, the defendant strenuously con- tends that the word "celluloid" is a word of common use as an appellative, to desig- nate the substance celluloid, and cannot,^ therefore, be a trade-mark; and. secondly, if it is a trade-mark the defendant does not infringe it by the tise of the word "cellonite." As to the first point, it is undoubtedly true, as a general rule, that a word merely de- scriptive of the article to which it is ap- plied cannot be used as a trade-mark. Evei-ybody has a right to use the common appellatives of the language, and to ap- ply them to the things denoted by them. A dealer in flour cannot adopt the word "flotir" as his trade-mark, and prevent oth- ers from applying it to their packages of flour. I am satisfied from the evidence ad- duced before me that the word "celluloid" has become the most commonly used name^ of the substance which both parties manu- facture, and, if the rule referred to were of universal application, the position of the de- fendant would be unassailable. But the spe- cial case before me is this: The complain ant's assignors, the Hyatts. coined and adopted the word when it was unknown, and made it their trade-mark, and the complain- ant is assignee of all the rights of the Hy- atts. When the word was coined and adopt- ed, it was clearly a good trade-mark. The question is whether the subsequent use of it by the public, as a common aiipellative of TRADEMARKS. 101 tlie substance manufactured, can take away the complainant's right. It seems to me that it cannot. As a common appellative, the public has a right to use the word for all purposes of designating the article or product, except one,— it cannot use it as a trade-mark, or in the way that a trade-mark is used, by apply- ing it to and stamping it upon the articles. The complainant alone can do this, and any other person doing it will infringe the com- plainant's right. Perhaps the defendant Avould have a right to advertise that it man- ufactures celluloid. But this use of the word is very different from using it as a trade-mark stamped upon its goods. It is the latter use which the complainant claims to have an exclusive right in; and. if it has such right, (which it seems to me it has,) then such a use by the defendant of the word "celluloid" itself, or of any colorable imitation of it, would be an invasion of the complainant's right. As a trade-mark it in- dicates that the article bearing it is the product of the complainant's manufacture. If another party uses it in that way, it in- dicates a falsehood, and is a fraud on the public, and an injury to the complainant. The essence of the law of trade-marks is that one man has no right to palm off. as the goods or manufacture of another, those that are not his. This is done by using that other's trade-mark, or adopting any other means or device to create the impression that goods exhibited for sale are the product of that other person's manufacture when they are not so. The subject is well illustrated by the case of McAndrew v. Bassett. 4 De Gex, J. & S. 3S0. The plaintiffs produced a new article of liquorice, and stamped the sticks with the word "Anatolia," some of the juice from which they were made being brought from Anatolia, in Turkey. The article becoming very popular, the defendants stamped their liquorice sticks with the same word. Being sued for violation of plaintiffs' trade-mark, one of their defenses was that no person has a right to adopt as a trade-mark a common word, like the name of a country where the article is produced. Lord Chancellor West- bury said: "That argument is merely the repetition of the fallacy which I have fre- quently had occasion to expose. Property in the Avord, for all purposes, cannot exist; but property in that woi-d. as applied by way of stamp ui>on a particular vendible, as a stick of liquorice, does exist the moment the article goes into the market so stan)pe(l, and there obtains acceptance and reputation, whereby the stamp gets currency as an in- dication of superior quality, or of some other circumstance which renders the article so stamped acceptable to the public." Page 386. Another case throwing light on the sub- ject is that of Singer Machine Mauuf'g Co. V. Wilson, 3 App. Cas. 37G. There the de- fendant, a manufacturer and vendor of sew- ing-machines, inserted in his price-list, among other articles for sale, the "Singer Sewing- Machine," and sold machines by that name, but having his own trade-mark upon them. The plaintiff sued him on the ground that by a Singer sewing-machine was understood in the community a sewing-machine made by Singer, the inventor, or by the plain- tiff, his assignee and successor in business. The plaintiff contended, therefore, that the advertisement was a fiaud on the public, and an invasion of its exclusive right to the name "Singer." Tlie defendant contend- ed that the terras "Singer Sewing-Machine'' meant a particular kind of machine, (which he described,) irrespective of who manufac- tui-ed it; that the wo';d "Singer" had come to be descriptive in its character, and would not have the effect attributed to it by the plaintiff. The judges who delivered opin- ions in the case, held that if the use of the name "Singer" gave the public to under- stand that the defendant sold machines made by the plaintiff, it was a wrong done to the plaintiff; but that if the name had come into common use as a name of a par- ticular kind of machine, irrespective of the maker, the defendant had a right to use it in his advertisements in that sense, using his own trade-mark on the article itself; and it was held by all the judges that it w'as a matter to be determined by evidence whether the use of the name in the adver- tisement had the one effect or the other. This, it will be observed, was a case of advertising, and not of imitating a trade- mark. Still, if it had the same effect, it was held to be equally culpable. The case does not decide that, if the word "Singer" had been the plaintiff's trade-mark, any change in its use would have affected such trade-mark, but does decide that an exten- sion of its use might render the woi-d harm- less in an advertisement. The defendant's counsel in the present case placed great reliance on the decision in Cloth Co. V. Cloth Co.. 11 H. L. Cas. 523. After carefully reading that case, I do not see that it necessarily governs the present. Xo question was made as to the names of the companies. The trade-mark there was a large circular labi'l stamped upon the cloth, containing, within its circumference, tlie name of the former company which carried on the manufacture, and the places where it had been carried on, thus: "Crockett Inter- national Leather Cloth Company, Newark, N. J., U. S. A.; West Ham. Essex, England." Within the circle were, first, the figure of an eagle, displayed, under the word "Excelsior," and then certain announcement's in large type, as follows: "Crockett & Co. Tanned I^eather Cloth; patenteil Jau'y 24, '58. J. K. & C. P. Crockett, Manufacturers." The court held this label to be partly trade-mark and 102 TRADEMARKS. partly advei-ti??m?nt; and, as the cloth was not patented, and J. R. & C. P. Crockett were not the manufacturers, the court was inclined to aj?ree with the lord chancellor that these statements invalidated the label as a trade- mark; but Lords Cranwoith and Kingsdowu preferred to place their decision against the plaintiff on the ground that the defendants' label did not infringe it. They pointed out differences in figure, and showed that the an- nouncements were different; and the defend- ants" announcement being "Leather cloth, manufactured by their manager, late with J. R. & C. P. Crockett & Co.," without any ref- erence to a patent, Lord Kingsdown said: "The leather cloth, of which the manufacture was first invented or introduced into the countty by the Crocketts, was not the subject of any patent. The defendants had the right to manufacture the same article, and to represent it as the same with the article manufactured by the Crocketts; and, if the article had acquired in the market the name of Crocketts" leather cloth, not as expressing the maker of the particular specimen, but as describing the nature of the article by whom- soever made, they had a right in that sense to manufacture Crocketts' leather cloth, and to sell it by that name. On the other hand, they had no right, directly or indirectly, to represent that the article which they sold was manufactured by the Crocketts or by any iicrson to whom the Crocketts had as- signed their business or their rights. They had no right to do this, either by positive statement, or by adopting the trade-mark of Crockett & Co., or of the plaintiffs to whom the Crocketts had assigned it, or by using a trade-mark so nearly resembling that of the plaintiff as to be calculated to mislead incau- tious purchasers." It seems to me that the true doctrine could not be more happily expressed than is here done by Lord Kingsdown. There is nothing in the case, nor in the opinions of any of the judges, adverse to the claim of the complain- ant. There is a case in the New York Reports (Selchow V. Baker, 93 X. Y. 59) which comes very near to that now under consideration. That was the case of "sliced animals," and other "sliced" objects, being a term used by the plaintiff as a trade-mark to designate cer- tain puzzles manufactured and sold by them, in which pictures of animals, etc., on card- board, were sliced up in pieces, and the puz- zle was to put the pieces together and make the animal. The label "Sliced Animals." etc.. was used by the plaintiffs on all boxes of these goods sold by them. The defend- ants infringed, and the question was wheth- er this kind of designation could avail as a trade-mark. Judge Rapallo, in delivering the opinion of the court, after reviewing many cases on the subject, concludes as follows: "Om* conclusion is that where a manufac- turer has invented a new name, consisting either of a new word or a word or words in common use, which he has applied for the fu'st time to his own manufacture, or to an article manufactm-ed by him, to distinguish it from those manufactured and sold by oth- ers, and the name thus adopted is not generic or descriptive of the article, its qualities, in- gredients, or characteristics, but is arbitrary or fanciful, and is not used merely to denote grade or quality, he is entitled to be protect- ed in the use of that name, notwithstanding that it has become so generally known that it has been adopted by the public as the ordi- naiy appellation of the article." This case is so directly in point that it seems unnecessary to look further. I think it perfectly clear, as matter of law. that the complainant is entitled to the exclusive use of the word "celluloid"' as a trade-mark. The only question remaining to be consid- ered, therefore, is whether the defendant, by the use of the word '•cellonite," as a trade- mark, or impression upon its goods as a trade-mark, does or will infringe the trade- mark of the complainant. Is the word "cel- lonite"' sutficiently like the word "celluloid." when stamped upon the manufactured arti- cles, to deceive incautious purchasers, and to lead them to suppose that they are purchas- ing the products of the same manufacturers as when they purchased articles marked "•cellu- loid?" I think this question mttst be answered in the affirmative. I think that, under the cir- cumstances of the case, the word "cellonite" is sufficiently like the word "celluloid" to pro- duce the mischief which is within the prov- ince of the law. I say, undei the circumstan- c-es of the case. By that I mean the previ- ous nomenclature applied to the articles as manufactured by different persons. The com- plainant has always stamped its goods with the word "celluloid." Other manufacturers have called the product as manufactured by them by names quite unlike this, as "pas- bosene,"' "lignoid," "chrolithion." etc.; so that a wide difference in designation and mark- ing has existed between the complainant's goods and those of all others. The adoption now of a word and mark so nearly like the complainant's as "cellonite" cannot fail, it seems to me, to mislead ordinary purchasers, and to deceive the public. The defendant, however, sets up two grounds of defense against the application for an injunction outside of the merits of the case: First, that the complainant has acqui- esced in the use of the word "celluloid" in the names of a great number of other companies, several of which are enumerated in the an- swer, such as the "Celluloid Brush Com- pany," the "Celluloid Collar & Cuff Com- pany," and the like; and, by such acquies- cence, has lost any right to complain of such use by other companies. But it is obvious that such special names, indicating confine- ment to a particular branch of the trade, are wholly unlike the complainant's general TRADEMARKS. 103 name of "Celluloid Manufacturing Company." Besides tliis, it is altogether probable, as we gather from one of the affidavits, that these branch companies are mostly licensees of the complainant, and very properly use the word "celluloid" in their names. AVe think that this defense cannot justly prevail. The other is of somewhat the same charac- ter, — supposed laches and acquiescence on the part of the complainant, in allowing the defendants themselves, for three or four years prior to the suit, to use the word "cel- lonite," stamped on their articles of manu- facture, and in their business name. How the defendant could have done this before its own existence is difficult to understand. But, suppose it is meant tliat it was done b.v the corporators and predecessors of the defend- ant, there is no proof that it ever came to the knowledge of the complainant; and the fact that the previous name used imder the former coii^orate organization was that of the "Aierchants' Manufacturing Company" is suf- ficient to afford the complainant prima facie ground of excuse for not having learned of the alleged use of the word "cellonite," if it ever was used. I do not think that either of these defenses can avail the defendant. My conclusion is that the complainant, as the case now stands, is, in strictness, entitled to an injunction to restrain the deiendant from using the name "Cellonite Mauufactiu'- Ing Company," or any other name substan- tially like that of the complainant; and from using the woi-d "cellonite" as a trade-mark or otherwise, upon the goods which it may manufacture or sell, or any other word sub- stantially similar to the word "celluloid," the trade-mark of the complainant. But my great reluctance to grant a pre- liminary injunction for suppressing the use of a l)usiness name, or of a trade-mark, in any case in which the matter in issue is a subject for fair discussion, and admits of some doubt in the consideration of its facts, induces me to withhold the order for the present, on condition that the defendant will agree to be ready to submit the cause for final hearing at the next stated term of the court, which commences on the fourtli Tues- day of .September. It is possible that addi- tional evidence, or a fuller verification of the allegations of the answer, may so modify the facts of the case presented for consideration as to lead to a change of views on the ques- tion of infringement, or of excuse therefor. At all events, it will be more satisfactory not to render judgment in the case until the de- fendant has been fully heard, and when it would have a right of immested adversely to the witness' interest is ! the representative of a deceased person. I It still remains to be considered whether the fact that Mrs. Wylie was interested on 1 both sides of tlie record rendered her compe- ! tent. At common law, it was said that, if ! the witness is equally interested on both j sides, he is competent, but, if there is a cer- tain excess of interest on one side, he will be i incompetent to testify on that side. 1 Greenl. Ev. § 391. An inspection of the cases upon which that statement is based discloses, however, that the courts did not attempt to weigh different interests, one against the othen*. but adnntted the testi- mony only where the interest was precisely the same. Thus, in Ilderton v. Atkinson, 7 I Term R. 480, a witness was held competent I because, whichever way the action resulted, he was bound to pay the amount involved. 112 GIFTS. aci'.ording to its event, either to one party or to the other. To the same effect is Birt v. Kershaw, 2 East, 45S. In other cases a wit- ness was held incompetent because, while there was an equal liability in one way on either side, the success of the party calling him would relieve him from a distinct and additional liability. Jones v. Brooke, 4 Taunt. 464; Larbalestier v. Clark, 1 Barn. & Adol. S99. Where interests are precisely equal on either side, it may be that the case is out of the reason of the common law, al- though not out of the letter of our statute; but, where there is an interest adverse to the representative of the deceased, we do not think that the courts, without any standard of comparison, should attempt to weigh that interest against an interest of a different character on the side of such representative, and so undertake to say that the interest on behalf of the representative is greater than that against him, and that an exception to the statute should in that case be made. Where the interest is the same on either side, it may, perhaps, be said that there is not, within the meaning of the statute, any interest in the event of the action; but, where the interests are different in charac- ter, the only safe rule is to follow the stat- ute, and exclude the witness' testimony. We think the district court ruled correctly on this point, and the result is that both, judgments should be affirmed. GIFTS INTER VIVOS. lU BELLIS V. LYONS. (56 N. W. 770, 97 Mich. 398.) Supreme Court of Michigan. Nov. 10, 1893. Error to circuit court, Macomb county; Arthur L. Canfield, Judge. Action of trover by Victoria E. Bellis against Watson W. Lyons to recover the value of certain notes and mortgages which de- fendant, as special administrator of the es- tate of Thomas Morgan, deceased, claimed belonged to such estate, and refused to de- liver to plaintiff. There was a judgment for defendant, and plaintiff brings eiTor. Af- firmed. The otlier facts fully appear in the follow- ing statement by GRANT, J.: The defendant was the sepcial adminis- ti'ator of one Thomas ]Morgan, deceased. As such, he took possession of 22 promissory notes given to said Morgan in his lifetime. Some of the notes were secured by chattel and real-estate mortgages. Plaintiff, claim- ing title to said notes by gift and delivery by Morgan, after demand and refusal on part of defendant to surrender them, brought this action of trover to recover their value. The court directed a verdict for defendant, on the ground that plaintiff had failed to establish her ownership of the notes. The esUite inventoried $8,107.72, of which the real estate was $4,.'500, and the notes in (pies- tion, $3,024. Morgan had been twice mar- ried. He had had two children, both of whom died without issue. After the death of his wife and children, he continued to live in his homestead, sometimes alone, and sometimes emploj'ing a housekeeper. Eight- een months before his death, he employed plaintiff as his housekeeper. She lived witli :xnd took care of him, during the rest of his life. He executed a will September 7, 1889, by which he devised his property to some neighbors and relations, giving specific be- quests to each. By the third clause of his will, he provided as foUows: "Tn case my present housekeeper, Victoria Bellis, shall re- main with me, as such housekeeper, until my death, as her compensation for so doing, in addition to such payment as I make her during life, I give and devise to her that certain lot of land situate in the to^vnship of Ray, in the said Macomb county, Michi- gan, knowTi as the 'Ray Exchange,' and as well as the two picK'es and parcels of land adjoining the said Ray Exchange, owuwl by me, and the furUier sum of five hmidred dollars. But in case she shall not so remain with me, as my housekeeper, until my death, then and in that case she is to have out of my estate only her wages, at the rate of one dollar a week." After the specific be- quests, he bequeafhed the residue of his es- tate to all vhe legatees named in the will, except the plaintiff, to be distributed be- tween them in proportion to the specific leg- acies given. He died on the 31st day of VAN ZTT.E.SEL.CAS.PERS. — 8 January- following. Plaintiff claims title by gift from Morgan two or three days before his death. Some of the notes were pay- able to the order of Mr. Morgan, while oth- ers were nounegotiable. None of the notes were indorsed by Morgan, nor were any of the securities assigned to plaintiff. Neither was there any written evidence of gift or transfer. Her counsel insist that there was evidence fi-om which a jurj^ woiUd be justi- fied in inferring a completed gift and deliv- ery. It becomes, therefore, necessaiy to give the evidence upon which this claim is based. Plaintiff herself testified that, when defendant came and asked for the notes, they were in her hand satchel, in the bureau drawer, and that they had been there two or three days before Morgan's death. One Chester Cooley testified that he had a con- versation with Morgan the latter part of De- cember, 1SS9, about plaintiff and his prop- erty; that he said to JNIorgan, in a laughing and joking way, " 'The woman is taking care of your house and you in good shape; and you, getting old and feeble as you are, ought to do well for her.' Says he, 'I have, already.' Says I, "What have you done?' Says he, 'I have given her somewhere ne-ar $3,000.' " One Ileydenrach testified that he borrowed $1,000 of :Mr. Morgan June 20, 1889, for which he gave him a note, and real-estate mortgage; that Moi-gan asked plaintiff if he should let witness have it, to which plain- tiff replied, "Yes;" and that Morgan said that he did not care, for it was iKr money. After this couvei'sation, ^lorgan loaned wit- ness the money, taking the note and mort- gage in his own name. One Lathrop testified that he had a convei*sation with Morgan, but he cannot fix the year nor the time of year it occurred, in which he said, "If Mrs. BeUis did as well as she had, he'd give her all he had. He told about her doing fii-st- rate. I have heard him tell of giving to others." One Millei', a brother of plaintiff, testified that ^Morgan asked him to talk with his sister in regard to gt)>iig there to kwp house for him; that he said if she would g) there, and take care of him as long as he lived, he would give her his property. Wit- ness did not coiunnnucato this, however, to the plaintiff; that he had heard phiintiff joke Morgan in regard to his having trouble to collect his accomits; and that ^forgan said, "Well, when I am gone, I would like to see what a time you will have in collecting these notes." One Freeman testified that .Morgan spoke to him several times about his will; that it was not satisfactory to him; that ho said plaintiff should never want for any- thing while she lived; that he would pro- vide for her so that she should have a go.id living while she lived; and that he intended to make another will. These conversations were during his last illness. One Hillock testifies that he had a conversation with Mor- gan the day before he died, in which lie said: " 'I have made a will. It is all wrong. 114 GIFTS. There is parties I have left some of my prop- erty to, that it would uot go to, if I j-'ot able to make a will ajjain." And he spoke about this lady, his housekeeper. He said she had been very kind to him, and she deserved all he had. He said, 'I have made sojue pi*ovi- sions for her, but not such as I will do, if I recover from this sickness.' " When the de- fendant and the appraisers went to the house to make an inventory and appraisal of the estate, plaintiff told defendant, before he had alighted from his carriage, that he must not inventory these notes, as they be- longed to her; that Morgan had given them to her. She was induced, however, to pro- duce the n-ites, which she did, from a hand satchel kept in a bureau drawer belonging to Mr. ^Morgan, and to which she had the key. The above is the substance of the ovi- dcnce tending to support the plaintiff's claim. There are, however, other undisputed facts bearing upon it. On January 2Sth, three days before he died, plaintiff wrote a letter, at Mr. Morgan's dictation, to Mr. El- dredge, which letter is as follows: "I Avrote you, not long since, asking you to make a change in my executor in my will; In place of Mr. 2*Iawry. to put in Watson Lyons. I want you to let me know by return mail if you have complied with my request" Febiniarj- 3, 1890, plaintiff executed a sworn petition to the probate court, praying for the probate of the Avill, in which she stated that the estimated value of the personal es- tate was $3,000, and of the real estate $5,- 000. At the same time, she presented an- other petition, praying for the appointment of the defendant as a special administrator, in which she represented the personal es- tate to consist of live stock, notes, and mort- gages, and that a chattel mortgage needed renewing, and, if not renewed on or before a certiiin date, it was liable to be lost to the estate, and that there was no one to take care of the notes, mortgages, and papers. The notes now claimed by her are all that ISIi-. Morgan had. Of these, three were not at the time in his possession, but for some tijne previous to his death had been in the lands of attorneys for collection. At the time of executing the petition, she made no claim to these notes. The will was a J that time read to her, and she admitted that she then said, "The will was not as I had been informed it was to be; as it has been represented it was to be." Crocker & Crocker, for appellant El- dredge & Spier, for appellee. GRANT, T., (after stating the facts.) Plain- tiff's counsel claim that the notes were giv- en to her by Morgan two or three days pre- vious to his de:ith. The record, however, is barren of any evidence tending to show that he then delivered them. The presump- tion is that the title remained in him. The testimony of the witnesses Freeman and Hil- lock shows conclusively that he had not, at that time, delivered them to her. She was his housekeeper, and was the proper custo- dian of his papers and property upon the honiestead until an administrator was ap- pointetl. It was indispensable to the plain- tiffs owTiership for her to show, by clear and convincing proof, not only that Mr. IVloigan had made statements showing an intention to transfer the title, but that he had performed his intention by actu;U deliv- ery. The notes were in his house, and in his bureau. Under these circumstances, her possession created no presumption in her fa- vor. Possession and production of the nego- tiable notes, imindorsed by him, would not have constituted evidence of ownership, in a suit brought by her against him while liv- ing. Retlmond v. Stansbury, 24 Mich. ^5. Furthermore, her failure to assert owuei-ship at the time she executed the swora petition to the probate court; the statements therein contained, that these notes belonged to his estate; her knowledge that he had executed a wiU, and, when its provisions were read, her statement that it was not what she ex- pected; and the fact that Mr. Morgan, a business man, made no transfer by indorse- ment or other writing; and the ample com- pensation for her services given by his will, — are conclusive evidence against her claim. Judgment affirmed. The other justices con- curred. See Ridgway v. McCartney, 57 111. App. 453. GIFTS INTER VIVOS. Ill BOOTH V. BRISTOL COUNTY SAV. BANK et al. (38 N. E. 1120, 162 Mass. 455.) Supreme .Tndicial Court of Massachusetts. Bristol. Nov. 30. 1S94. Exceptions from superior court, Bristol countj^; Edgar J. Sherman, Judge. Action by Joseph Booth against the Bristol County Savings Bank to recover the amount of certain deposits. John Booth was sum- moned as defendant claimant to said funds. Judgment for defendant claimant, and plain- tiff excepts. Exceptions overruled. On trial of this action, the savings bank l)ook standing in the name of Joseph Booth was introduced in evidence, which showed various sums deposited and withdrawn, from 1886 to 1894, by the plaintiff. The plaintiff testified that the defendant claimant, John Booth, his father, gave him all money so de- posited as a present, and that the book had always been kept in a place known only to plaintiff and claimant. This the defendant claimant denied; said that he himself had al- ways had possession of the book from the time of its issuance; that he had never given any of said money to the plaintiff; that it was deiiosited in tJie plaintiff's name because the defendant claimant was ner\-ous and a poor writer, and for the sake of convenience; and that the plaintiff was, in the matter, act- ing as the defendant claimant's agent The defendant claimant called several witnesses whose testimony tended in some particulars to corroborate his claim. It was admitted that all tlie money so deposited was original- ly the money of the defendant claimant. There was no evidence that the defendant claimant ever gave the book to the plaintiff, except when the claimant ordered the plain- tiff to make withdrawals or deposits. A bank clerk testified that the bank never saw, and did not know, the claimant in the matter. The claimant had another deposit and book in the same bank, commencing subsequently to the first deposit on this book, when that deposit had reached over .?1,000. Fred V. Fuller, for plaintiff. Bennett & Hall, for defendant John Booth. William H. Fox, for defendant Bristol County Sav. Bank. I.ATHROP. J. The first instruction re- quested in this case was rightly refused. The exceptions expressly state that "there was no evidenco that the claimant ever gave the book to the plaintiff, except when the claimant ordered the plaintiff to make with- drawals or deposits." The second request for a ruling was also rightly refused. The plain- tiff contends that where A. deposits money in a savings bank in the name of B., and takes out a book in the name of B., this is an exe- cuted gift to B., and the money belongs to him. For this position he cites Sweeney v. Bank. 11(> Mass. 384. It was there held that where a man deposits money in a savings bank in the name of his wife, and has the bank book made in her name and delivered to her, he cannot maintain an action against the bank for its refusal to pay the money to him. This was so decided on the ground that there was no contract between the bank and the plaintiff to pay the money to him. In this case there was no evidence that the money was deposited by the wife as the agent of her husband; and the case was dis- tinguished on this ground from the case of McCluskey v. Institution for Savings, 103 Mass. 300. where it was held that it was a good defense on the part of the bank, to a suit by a wife, that money deposited in her own name was so deposited at her husband's request and for his benefit, on the ground that these facts would defeat the inference of a gift arising from a deposit in the wife's name, and show that she was acting as her husband's agent. In the case at bar, no ques- tion of procedure arises. The claimant is properly before the court, having been sum- moned in under the provisions of St. 1894, c. 317, § 33 (Pub. St. c. 110. § 31); and the only question is whether the plaintiff or the claim- ant has the better title to the funds. A de- posit in a savings bank in the name of an- other is not alone sufficient to prove a gift. Brabrook v. Bank, 104 Ma.ss. 228; Sherman V. Bank. 138 Mass. 581, and cases cited; Broderick v. Bank. 109 Mass. 149. Nor is the fact that the savings bank book desig- nates the depositor as trustee for another conclusive evidence of the existence of the trust. Parkman v. Bank, 151 Mass. 218, 24 N. E. 43. While the plaintiff excepted to the ruling given, this point has not been argued, except as it is embraced in the argument re- lating to the refusal to give the two instruc- tions requested. As we are of opinion that the judge properly refused to rule as request- ed, the order must be, exceptions overruled. ■ lit) GIFTS. Appeal of FASSETT et al. (31 Atl. 686, 167 Pa. St. 448.) Supreme Court of Pennsylvania. April 15. 1SJC>. Appeal from court of commou pleas, Wy- oniin.y county. Under a judgrau'nt in favor of John B. Fas- sett and M:ny J. Fassett, in an action by them against II. C. Frost, certain real estate of H. C Frost was sold, and from the decrrt^ distrib- uting the fund derived therefrom Siiid .Jolin B. Fassett and Maiy J. Fassett appealed. Re- vei«er of any other iierson to do so for her, nor could she do so herself, after it was completed. The subj(K*t of the gift here was money due to the donor from the donee. If the money due had actually been paid by the donee to the donor, * and the receipt given, and then the donor had handed back the money to the donee, no pas- sible question could have arisen as to the effect of the transaction. But the handing of the money back and forth was entirely unneces- sary, and therefore the giving of a receipt was Just as efficacious to oxtingiiish the title of the donor to the money as if its bodily trans- luisKion fr(»m the one to the other, and back Hgain, had actually taken place. The question arises only between the donor and donee. No rights of creditors of the donor are involved, be- cause there were none. As to any subseipieiit assignees, they could not take what the donor could not give them, and they could only take what she had to give; that is. moneys due for dower after April 20. 1S8S. These considera- tions are quite sufficient to dispose of the case. Some attempt is made to affect the quality of the gift by an effort to clothe it with a condition, but it is altogether futile. It is argued that 1m>- cause no money was actually paid, and the recognizance was not surrendered, there ^-as no good legal gift. As to the surrender of the re- cognizance, it was neither feasible nor essential to tlie gift. Further payments in the futm\' would become due under it, and it could not br siUTondered by the widow, even if she had s.i desired. As to the payment of money for the receipt, if that were necessary, there could lie no such thing as a gift of money due to tlii' donor. If it had to be purchased and paid for. ri would not 1x^ a gift at all. The effort to prove a condition is equally un- tenable. The argument is founded upon the testimony of the widow. She says, "I signel his receipt, but I never rec-eived any money, but I supposed he would pay me when he got able." Of course, her supposition on this sub- ject is only a supposition, and not a condition of the gift, in the least possible sense. Again, she testifi(M:l. "He said, if I needed it, and he got able, he would pay me, notwithstanding 1 had given him this receipt." As it has not yet been proved that her son has ever been able to pay this money back, or that his mother need- ed it, this remark of the son would be utterly ineffectual to defeat the gift, even if it had amounted to a condition of the gift. Rut it never had any such quality. It was nor exact- I ed by the mother as a term of tlie gift, nor j could it be pretended to lie of any higher dig- nity than a mere casual remark of the son. It had nothing to do with the gift. The numer- ous authorities citeel in the argument foi- the appellees are altogether wide of the mark. They are not relevant to the question at stake here. The subject of the gift was moneys due to the donor for arrearages of dower due to her by the donee. She gave them to him in the only way in which such a gift could Im- made, viz. by a receipt in full to a certain date. That act was absolute, un Supremo Court of Arkansas. Jan. 12. ISO."). Appeal from circuit court, St. Francis coun- ty; (irant Green, Jr., Judjje. Bill bj- M. E. Hatcher ajiainst A. B. Buford and others to recover dower upon renuncia- tion of the provisions made for her in her husband's will in lieu of dower, and to have a transfer of bank stock and notes made by him to defendant declared fraudulent as against her right of dower therein. From a judgment denying dower in the personalty so transferred, and allowing it in one-half the realty in fee, both parties appeal. Af- firmed as to realty and notes, but reversed as to bank stock. T. A. Hatcher, a prosperous merchant of Forrest City, Ark., died December 10, ISOl. He had never had any children, but left a widow, M. E. Hatcher, the appellant. About two months prior to his death, he sold an interest in his store to Walter Buford, his nephew, taking in payment therefor notes of the said Walter amounting to $2,5(XJ. These notes Hatcher indorsed to his sister Mrs. A. B. Buford, and mailed them to her on the 9th of October, 18Q1. About one month be- fore his death. Hatcher directed his agent to buy $4,000 of bank stock, and. about 10 days before, $l,OitO more. This stock was issued in the name of Mrs. Buford, and was deliv- ered by Hatcher's agent to her son Walter. Hatcher made a will, in which, among other bequests, was a provision for his wife, and Mrs. Buford was de^-iared residuary legatee and devisee. Appellant's bill (omitting non- essentials) sets up a renunciation of the will, and that the disposition of the notes and bank stock in the manner indicated was done with intent to defeat appellant's dower, and was fraudtilent; that the lands of which her husband died seised were a now acquisition. She praj's to be endowed of half the notes and bank stock, also of half the fee in the real estate. The answer denied the fraud, claimed an absolute gift of the personalty, and that dower in the realty should be of one-half for life. The decree refused dower in the notes and bank stock, but granted it in one-half the real estate in fee. Both par- ties have appealed, and the issues presented by this record are: First. Was there a giff^ Second. If a gift, was it inter vivos or causa mortis? Third. If a gift causa mortis, did it defeat the widow's dower"? Fourth. Should dower in the realty be according to the law at the time of the marriage or at the death of the husband'.'' N. W. Norton, for ai)pellant. John Gatling and Rose, Hemingway tV: Rose, for appellees. WOOD, J. (after stating the facts). 1. Was there a gift"? The only controversy on this point was as to the delivery. Deli.ery, of course, is essential to a gift. 3 Pom. Eq. Jur. § 1150; Ammou v. Martin, 50 Ark. lUl, 2G S. W. 820. Mrs. Buford testified that the bank stock M-as not de'ivered to her until after her brother's death, while Walter, her son, tes- tified that he delivered the bank stock to his mother before Hatcher's death. No ques tiou is rai.sed as to the delivery of the notes. The evidence supports the finding of the chancellor that there was a gift of the bank stock and notes. 2. Was the gift inter vivos or causa mortis? The donatio inter vivos, as its name imports, is a gift between the living. It is perfected and becomes absolute during the life of the parties. The donatio cau.sa mortis, literally, "is a gift in view of death." But this does not give us an adefpiate conception of the gift as it is understood and treated by the au- thorities. We find from an examination of those that where one, in anticipation of death from a severe illness then atflicting him, or from some imminent peril to his life, to which he exi)ei'ts to be exposed, makes a gift accompanied by the delivery of the thing given, either actual or symbolic, which is accepted by the donee, the law denominates such a gift a "donatio causa mortis." 3 Pom. Eq. Jur. § 1140 et seq.; 3 Redf. Wills, p. 322, § 42 et seq.; 2 Beach. Eq. Jur. p. 1144, § 1002; 1 Woerner, Adm'n. §§ 57, 5S; Thornt. Gifts, p. 12, c. 1; 1 Williams, lOx'rs, 844; Gourle.y v. Linsenbigler, 51 Pa. St. 345; 2 Kent, Comm. 444; 2 Bl. Comm. 514; Hebb V. Hebb, 5 Gill, 506; Schouler, Pers. Prop. § 135. Were the notes and bank stock in controversy given under such circumstances? Both the pleadings and the proof settle con- clusively that the gifts were in contempla- tion of the near ajiproach of death from the illness then alllicting the donor. Hatclier. to wit, consumption. The gifts being made dur- ing the last illness, and when all hope of re- covery was gone, the presumption is they were causa mortis. Merchant v. Merchant. 2 Bradf. Sur. 432; 3 Pom. Eq. Jur. S 11453, 4 Atl. 79(). But it must not be forgot- ten that an absolute gift— one inter vivos— may be made by one upon his deathbed, and who is aware of the near approach of death from his then ailment. Thornt. Gifts, p. 24, § 21. and authorities cited. Is there anything in the proof to overcome the i)resumption of gifts causa mortis? As to the notes, the tes- timony shows that Hatcher was ui) and at his store on the day these were executed; that they were delivered on the same day; and that the donor was able to drive out after this transaction. It also shows that it was Hatcher's desire to give to his noi)h^-\; Walter Buford an i merest in the store, and 120 GIFTS. that Walter declined to take it. The notes were executed for this interest, and immedi- ately indorsed by the payee, the donor, to the donee, the mother of the maker of the notes. Tlie ffift to his nephew of an interest in his mercantile business seems to have been the real purpose of the donor. Such a gift, of course, would have been incompatible with the limitations which the law imposes upon the use and enjoyment of the subject-matter of gifts causa mortis, and the attribute of revocability attaching to such gifts. 2 Beach. Eq'. .Jur. § 1063; 3 Redf. Wills, pp. 322-.'U.3. We think the time and circumstan- ces of the gift of the notes, as indicated by the proof, supports the chancellor's finding that this was a gift inter vivos. The same, however, cannot be said of the bank stock. Hatcher was upon his deathbed, and unable to attend to any business, when this was giv- en. Four thousand was taken out about one month before his death, and one thousand only about ten days before. It was not deliv ered until a few nights before his death. Wc find nothing whatever in the proof to tak- the bank stock out of the presumption that it was a gift causa mortis, and nothing ti support the chancellor's conclusion as to this 3. Being a gift causa mortis, did it defeat the widow's dower? Section 2.541. Sand. & H. Dig., provides: ''A widow shall be en- titled, as a part of her dower, absolutely an ' in her own right to one-third part of the per sonal estate, including cash on hand, bonds bills, notes, book accounts and evidences ot debt whereof the husband died seised or po;:- sessed." Was the don(w seised or possesse.l of the bank stock at the time of his death 'r The terms "seised" or '"possessed," as, thus used with reference to personalty, mean sim- ply ownei-ship. which carries with it the ac tual possession, or a right to the imme- diate possession. The real inquiiy, then, is as to when the title or property in the sub- ject-matter of a donatio causa mortis pass- es. We are aware that there is conflict and confusion in the authorities upon this point doubtless growing out of the modes of do- natio causa mortis recognized originally by the Roman jurisprudence, whence the doc trine is derived. Under one of these, th^^ subject-matter of the gift became at once thi proi)ert>' of the donee, but on condition that he should return it to the donor in the event of his recovery. Under another, the gift wa ■ made upon condition that the thing given shoidd become the property of the donee only in the event of the donor's death. Under th^' former, delivery was essential; under the latter, it was not. Thornt. Gifts, p. 44; War ' V. Turner. 2 Yes. Sr. 431; Abb. Desc. Will ■ & Adv. lt>9. Mr. Roper, in his work on Leg- acies, tells us that, after the contest upon the su])ject had subsided, .Justinian gives a defi- nition of "donatio causa mortis," which alone is the proper one. 1 Rop. Leg. 1. Mr. Pomeroy quotes this definition, and translates it as follows: "A donatio causa mortis is that which is made in expectation of death; as when anything is so given that, if any fatal accident befalls the donor, the person to whom it is given shall have it as his own; but if the donor should sm-vive, or if he shoTild repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor shall receive back the thing given." 3 Pom. Eq. Jiu*. § 1146. Judge Redfield, in his work on Wills, says: "The conclusion of Justin- ian's definition seems to embrace the essen- tials of the gift. viz. the gift is such that the donor prefers himself to retain dominion over it rather than have the donee acquire it. But he prefers the donee should have it rather than his heir." 3 Redf. Wills. 3'J2. Those authorities which hold that the property in the thing given passes upon delivery and dur- ing the life of the donor have obviously fol- lowed the kind of donatio caiisa mortis re- ferred to supra, existing under the Roman law prior to Justinian's definition, which rec- ognized the subject-matter of the gift as be- coming at once the property of the donee, de- feasible upon a condition subsequent, and un- der which deliveiy was essential. This is a formidable position, and supported by high authority. Basket v. Hassell. 107 U. S. 602, 2 Sup. Ct 41.j; Chase v. Redding. 13 Gray. 418; Marshall v. Berry, 13 Allen. 43; Thornt. Gifts. § 46; Nicholas v. Adams. 2 Whart 17; Daniel v. Smith. 64 Cal. 346. 80 Pac. 57.5; Emery v. Clough. 63 N. H. 552, 4 Atl. 796; Schouler. Pers. Prop. § 137: Dole v. Lincoln. 31 Me. 422. Since the decision of Lord Hard- wicke in Ward v. Turner. 2 Yes. Sr., supra. It has been the settled law of England that delivery is essential in gifts causa mortis; and there has never been any controversy upon that point in this counti'y. Since de- livery is an essential element to complete the transfer of title or property in personalty (Schouler, Pers. Prop. § 87). the authorities holding to the view that the title passes and becomes vested in the subject-matter of a donatio causa mortis diu-iug the life of the donor are dominated by the idea of deliv- ery. But. while delivery is a prerequisite to the transfer of title, it does not follow that there is always a transfer of title where there is a delivery, nor that the delivery of the chattel and the transfer of the title are coeval, in cases where the title is ti'ansferred. We think the better doctrine upon the transfer of the title to gifts causa mortis is that which accords with Justinian's definition, and rec- ognizes the subject-matter of the gift as be- coming the property of the donee in the event of the donor's death; i. e. the donor's death is a condition precedent to the vesting of the title to the thing given in the donee. This seems to be the rule adopted by the English coiui;s of chancery, and is supported also by eminent American coiu"ts and text writers. 1 Williams, Ex'rs, 782; 3 Pom. Eq. .Txu-. § 1146; Baker v. Smith (N. H.) 23 Atl. S2; Merchant v. Merchant, 2 Bradf. Siu-. 432: GIFTS CAUSA MORTIS. 121 Gardner v. Parker, 3 Madd. 184; Edwardi; r. Jones, 1 Mylne & C. 22G; Staniland v. Willott, 3 Macn. & G. 6G4 et seq.; ^Yells v. Tucker, 3 Bin. 370. This view is certainly more consonant witli the conditions which all the authorities agree attach to gifts of this kind; viz. that the reclamation of the donor, or his recovery from existing illness or escape from peril apprehended, or the death of the donee be- fore that of the donor, will each, ipso facto, revoke the gift. Conser v. Snowden, 39 Am. Rep. 368; Merchant v. Merchant, supra. This doctrine we have already approved in Ammon v. Martin, 59 Ark. 191, 20 S. W. 820, where, in speaking of donatio causa mortis, we said: "The title to the thing given re- mains in the donor, and the gift is subject to revocation at any time prior to his death." True, we also said in this case, with refer- ence to the delivery of a note by the donor, while on her deathbed, to the agent of the donee, "that this was sufficient to make the gift complete, no matter what was its char- acter." But this latter statement was made solely in regard to the delivery. It might be construed, however, as applying to the gift as a whole, and not simply to the ele- ment of delivery. In that view the language would be inaccurate. In Ammon v. Martin, supra, it was not necessary for us to distin- guish between gifts inter vivos and causa mortis, the only question there being, was there a gift? But it may be said that this view abolishes all distinction between gifts causa mortis and testamentary dispositions, since the donatio causa mortis is wholly in- choate and conditional, not passing title until the donor's death. Many authorities do speak of the donatio causa mortis as but an- other form of testamentary disposition, and liken it unto the testamentary disposition, for the reason that it is revocable during the donor's life, is subject to his debts if thei'e be a deficiency of assets, and does not be- come an absolute gift until the donor's death. Jones V. Brown, 34 N. H.439; Baker v. Smith (N. H.) 23 Atl. 82; 2 Kent, Comm. 445; Schouler, Pers. Prop. 138. But while, in these particulars, it resembles a testamen- tary disposition, it differs from it, in that the subject-matter of the gift is delivered to the donee during the life of the donor, and at his death does not pass into the hands of the executor or administrator, but remains with the donee. This is not because the property or title has passed to the donee during the life of the donor, or that the donor is not af- tually seised in law at the time of his death, but because it is one of the peculiar char- acteristics of this species of gift that, at the donor's death, the donee takes, instead of the heir, according to the intention of the donor, as manifested during his life by delivery to the donee. It should be observed in this connection that of the cases cited supra, hold- ing to the view that title vested in the donee during the life of the Tonor, Chase v. Red- ding, 13 Gidy, 418, was the only one in which the widow was a party; but Marshall v. Berry, 13 Allen, 43, stands on a parity with it by analogy, and the supreme court of Mas- sachusetts is undoubtedly committed to the doctrine that donations causa mortis are val- id against the rights of the widow. But the dower rights of the widow rest on a different basis to that of a child or heir. Thayer v. Thayer, 14 Vt 107, and authorities there cit- ed. Hence it may be questioned as to whether anj^ case is an authority against the dower rights of the widow where she is not a party, altiiough holding that title vests in the donee during the life of the donor. For instance, in Emery v. Clough, 63 N. H. 552, 4 Atl. 796, supra, the supreme court of New Hampshire maintains as strongly as in any of the cases that title passes during the life of the donor to the subject-matter of a gift causa mortis. But in the case of Baker v. Smith (N. H.) 23 Atl. 82 (a much later case), the question being whether a married wo- man could deprive her husband of his stat- utory distributive share of her personal es- tate by a gift causa mortis, the same court said: "What she cannot do in this re.spect by will she cannot do by another foi-m of tes- tamentary disposition, which is of the nature of a legacy, and becomes a valid gift only upon the decease of the donor." So, also, Ml'. Schouler, who, in his work on Personal Property, contends that the better doctrine is the one which treats the title as vesting upon delivery during the donor's life, yet maintains, in his work on Wills, that "the same principles which regulate the wife's testamentary disposition of her personal property should likewise regulate her gift causa mortis." Schouler, Wills, § 63; Schou- ler, Pers. Prop. § 137. And the same author, in commenting upon Marshall v. Beri-y, su- pra, after saying, "This decision is to be regretted," continues: "The implied condi- tions of revocation which accompany such gifts make the disposition so nearly ambu- latory, like that of a will, that the policy of the law should not differ in the two cases, except to discountenance such gifts as much as i^ossible." Schouler, Wills, § 63. Judge Redfield, upon this subject, says: "It seems questionable whether a man of substance can be allowed to dispose of his whole es- tate, and leave his widow a beggar, by means of this species of gift, which is clear ly of a testamentary character, where the statute expressly provides that the widow may waive the provisions of the will, and come in for her share of the personal estate under the statute by way of distribution." And he adds: "It is possible the Ann'ricau courts have felt too reluctant to recognize the difference in this respect between the widow and next of kin." 3 Redf. Wills, 324. note. Under our law, a man may deprive his children of their inheritance by his will if he names them. So. also, he may deprive them by a donatio causa mortis. But he 122 GIFTS. cannot deprive the widow of lier dower riirlits by either. And this for the reason, in botli instances, tliat he dies "seised" of the property so conveyed. 1 his. in our opin- ion, is the only consistent and logical con- clusion; for if the title passes during the donor's life, and he has the absolute right to dispose of his personalty as he pleases, which he has, how can it be said that the donee's rights are inferior to those of the wid- ow, except upon the doctrine above enunciat- ed"? This conclusion makes it unnecessary for us to pass upon the question of fraud, though many courts of high authority announce that fraud may be predicated ui)on such a transaction as this record discloses. Mauikee V. Beard, S.5 Ivy. 20, 2 S. W. 545; Davis v Davis. 5 Mo. 183; Stone v. Stone, 18 Mo. 389; Tucker v. Tucker. 29 Mo. 350; Straat V. O'Neil. 8-t Mo. (>8; Thayer v. Thayer. 14 Vt. 107. However, the majority of us are not satisfied with their reasoning or theii* conclusion.s. Lines v. liines. 142 Pa. St. 149, 2 Atl. 809; Pringle v. Pringle, 59 Pa. St. 281, contra. 4. The fourth and last question, is the widow endowed according to the law at the time of maiTiage or at the death of her hus- band? is easy of solution, especially in view of the comparatively recent deliverances of our own court. In Smith v. Howell. 53 Ark. 279. 13 S. W. 929. the court said: "The in- choate right of dower diu'ing the lifetime of the husband is not an estate in laud; it m not even a vested right, but a mere intangi- ble, inchoate, contingent expectancy. The law regards it as an incumbrance on the husband's title. * * * She joins with her husband, not to alienate any estate, but to release a future contingent right." See, also, Hewett V. Cox. 55 Ark. 235, 15 S. W. 102G, and 17 S. W. 873. where same language is quoted. In Littell v. Jones, 5G Ark. 139, 19 S. \V. 497, the court, through Judge Heming- way, again said: "Persons who may be en titled to inherit under existing laws may suffer detriment by changes in the law that change the course of devolution, but there is no such thing, as a vested right in a pro- spective heirship, or in the maintenance of the laws of descent, and, though their charge di-ssappoint reasonable expectations, it comes witliin no constitutional inhibition." See, also, Gregley v. Jackson, 38 Ark. 492. Noth- ing more need be said. It is not true, as contended by counsel, that the wife acquired a vested remainder in the real estate of which her husband was seised during cover- ture. The argument of counsel for residu- ary devisee, being founded upon a false premise, however plausible and strong, must inevitably lead to an erroneous conclusion. Those of our decisions which mention dower as a vested right only used the term "vest- ed" in the sense of assuring whatever right the law gave, and not in the sense that dower rights could not be affected or changed by a change in the law itself. It follows that the devisee. Mrs. Buford. could only claim under the law as it was at the death of Hatcher. The decree of the chancellor is affirmed as to the notes and real estate. As to the bank stock, it is reversed, and the cause is re- manded, with directions to enter a decree conforming to this opinion. See Yingst v. Lebanon & A. St. Ky. Co., IGT Pa. St. 438, 31 Atl. 687. GIFTS CAUSA MORTIS. 123 ZELLER V. JORDAN et al. (No. 15,775.1 (38 Pac. 640, 105 Cal. 143.) Supreme Court of California. Dec. 21, 1894. Department 2. Appeal from superior cotirt, city and county of San Francisco; Jas. M. Troutt, Judge. Action by H. J. Zeller against one Jordan and others. From a judgment for defend- ants, plaintiff appeals. Affirmed. F. J. Castelhun, for appellant. Hepburn Wilkins, E. B. Martinelli, and W. S. Good- fellow, for respondents. DE HAVEN, J. Action to recover from the defendant, the German Savings & Loan So- ciety, the sum of $19,807.74, deposited with said defendant by Sophia Stoineke. who after- wards became the wife of plaintiff, and is now deceased. The defendant Jordan is the ex- ecutor of the last will of the said Sophia, and is made a party to this action by reason of the fact that he claims said deposit as a part of the estate of his said testator. The superior court rendered judgment in his favor, and the plaintiff appeals. The plaintiff al- leges in his complaint rhat his deceased wife, in the month of January, 1886, "in consideration of the love and affection she had and bore un- to plaintiff, and also for other good considera- tions her thereunto moving, made an assign- ment in writing" of her demand against the German Savings & Loan Society, arising out of the deposit before referred to, and that he "has ever since been, and still is, the lawful owner thereof, and of all accrued dividends thereon." The action was tried by the court without a jury, and the court found that the deceased never assigned to plaintiff, by waj of gift or otherwise, her said demand against the German Savings & Loan Society; and the only question necessary to be considered on this appeal is whether this finding of the trial court is sustained by the evidence. 1. It appears from the evidence that the deceased wife of plaintiff was subject to epilepsy, and died in March, 1893. The im- mediate cause of her death is not shown. There was also evidence tending to prove that, between the years 1883 and 1886. she signed and delivered to the plaintiff an un- dated check drawn by her in his favor on the German Savings & Loan Society for the sum of $18,807.24, with interest, and to be charged to her account as a depositor with that bank. The pass book representing the deposits so drawn against was not delivered to plaintiff, and imder the rules of the said defendant bank, which were printed in said pass book, deposits entered therein could only be with- drawn by an order accompanying the pass book. The plaintiff was the only witness ex- amined in relation to the making of the check, and he testified that, at the time it was signed and delivered, his wife was not confined to her bed, and was well, and further said: "The check was given to me in consideration of love and affection. That was the reason for getting it. That was the only considera- tion. It was the understanding between me and my wife, at the time this check was signed, that I would not use the check or present it until after her death, and nothing was to be done with it until after my wife died. I was not to touch anything in that book of that money until after my wife's death." The check was not presented to the defendant bank until some time after the death of plaintiff's wife. It is clear to us that, under this evidence, the finding of the com-t that there was no completed gift or assignment to plaintiff of the fund in contro- versy must be sustained. We do not find it necessary to pass upon the question whether a bank check uncollected in the lifetime of the drawer, and unaccompanied by a delivery of the pass book, which, under the depositor's contract, must be presented with the order for a withdrawal of the deposit, is effectual as a donatio causa mortis. There was here nothing in the nature of such a gift. "A gift in view of death is one which is made in contemplation of the fear or peril of death, and with intent that it shall take effect only in case of the death of the giver." Civ. Code, § 1149. "To constitute a donatio causa mor- tis, the gift must be iiiade in contemplation of the near approach of death by the donor." Daniel v. Smith, 64 Cal. 349, 30 Pac. 575. In some cases it is said: "The rule of law. in such cases of gifts made in prospect of death, demands for their validity that the proof shall show the existence of a bodily disorder, or of an illness which imperils the donoi"'s life, and which eventually terminates it." Wil- liams V. Guile, 117 N. Y. 349, 22 N. B. 1071. But perhaps the law upon this point is more accurately stated in Ridden v. Thrall, 125 N. Y. 579, 26 N. E. 627, as follows: "The gift must be made under the apprehension of death from some present disease, or some other impending peril, and it becomes void by recovery from the disease or escape from the peril. It is also revocable at any time by the donor, and becomes void by the death of the donee in the lifetime of the donor." The evidence hove entirely fails to show that the deceased delivered the check referred to under any belief of or apprehension of the peril of death from any existing disease, and for this reason its delivery cannot be sustained as a gift in view of death. "A gift mortis causa, made while the donor is in full health, or while suffering from a disease that in reason- able expectation will not produce death in the near futiu-e, is invalid. Thus, a deposit made in a bank while the donor was in full health or medium health, 'payable also to A. in case of the death of the donor, was held to be ao invalid gift." Thornt. Gifts. § 28. 2. And the evidence also fails to show a gift ' inter vivos. "A gift inter vivos, to be valid, must take effect at once, and there must be nothing to be done essential to the validity; and. if it is to take effect in the future, there is no gift, but only a promise to give. So a 124 GIFTS. gift to take effect at the death of the douor is void." Thorut. Gifts. § 76. In other words, to constitute such a grift, there miist be an immediate transfer of the title, and the donor must relinquish all present right to or con- ti'ol over the thing given. The donor here retained her dominion over the fund against which the check was drawn, and the check was delivered to the plaintiff, under an agree- ment that he was not to use or present it until after the death of the wife, or, as stated by the plaintiff in his testimony, "I was not to touch anything in that book of that money until after my wife's death." Judgment and order affirmed. We cnuciu'; ALD, J. McFARLAND, J.; FITZGER- GIFTS CAUSA MORTIS. 12? DOR AN V. DOR AN. (No. 15,090.) (99 Cal. 311, 33 Pac. 929.) ?!i'iToni(" Conrt of California. Aufr. Ifi. 1S93. Commissioners' decision. Department 1. Appeal from superior court, city and c-ounty of .San Francisco; Walter H. Levy, Judge. Action by Margaret Doran against James Doran to have a trust declared in land and money. Judgment for defendant. Modified. James Gartlan, for appellant Robert Y. Countryman, for respondent Bli^LCHER, C. On the 30th day of June, 1SS7, John Doran was the OA\'ner of a cer- tain lot of land in the city of San Francisco, and of 3~T0, money on deposit to his credit in the Hibernia Savings & Loan Society of San Francisco. On that day he executed to tlie defendant, James Doran, a deed of tlie lot and an assignment in wilting of the pass book shoeing the amount to his credit in the said bank. John and James were brothers, and the sons of tlie pLaintifP. The plaintiff seeks by this action to have a ti-ust declared in her favor as to the real and personal proj)- erty so transferred. The complaint alleges, in substance, that John was moved and in- duced to convey the said lot and assign the said bank account to the defendant solely by reason of the confidence he had in defendant and because of the promise defendant then made to recouvey the lot upon request to his grantor, and to hold for his use the mon- ey, and the further promise, in the event of John's death, to convey the lot to plaintiff, and to pay to her so much of the said money as might remain in his (defendant's) hands; that John died on the 5th day of July, 1887, before any reconveyance of the land had been made, and leaving intact in defendant's hands the whole sum of money transferred to him; and that plaintiff had demanded of defendant that he convey to her the said land, and paj' to her the said money, but he refused, and still refuses, to do so, except that he hiid paid to her $100 of the money. Wherefore judgment is asked "that he, de- fendant, be declared a tnistee for plaintiff of said hind, and for a couveyajice thei'eof to her; that he, defendant be declaimed a tnistee for plaintiff in the siun of .i^(>TO, and that he be directed to pay such sum to her, together with the interest found due, and for costs of suit." The answer to the complaint was a general denial. The case was tried by the court, and the findings were, in effect that the said conveyance and assignment were absolute, and were not made by reason of any confidence John liad in defendant, nor upon any promise of defendant to recon- vey the lot to John, or to hold the money for his use, nor upon any promise, in the event of John's death, to convey the lot or pay over any part of the money to the plaintiff, .ludgment Avas accordingly entered that plaintiff take nothing by the action, and that defendant recover from her his costs and disbursements therein. From this judgment, and an order denying her motiou for new trial, the plaintiff appeals. The only point made for reverswJ which nep SyracuM, N.Y. I Stockton. CotM. ARYFACIl D 000 950 335 o 1