judgment creditors of Hermon Eli, as were signment of the separate rights of the other also Oppenheimer Bros. and Rabb Bros.; stockholders under their respective certifiexecutions issued on all said judgments and cates and their respective rights against the money collected sufficient to satisfy the Op- bank and brought suit against it for money penheimer judgment in full and the Rabb had and received. A demurrer to the petijudgment in part, leaving a balance which tion was overruled, and the bank appealed, was, according to appellee's contention, prop- The Supreme Court affirmed the judgment erly applicable to the payment of their judg- of the trial court, and on the subject of priviment. This money was in the hands of the ty quoted approvingly from Nesbitt, J., in sheriff who failed to apply it to appellee's Culbreath v. Culbreath, 7 Ga. 68, 50 Am. claim, but turned it over to a constable who Dec. 375, wherein he said: "It is not founded held an execution in favor of the Zwang upon the idea of a contract." And from Brewing Company, and said company applied Lord Mansfield in Moses v. McFarland, 2 it in satisfaction of their claim. Appellee Burr, 1005, where he said: "If the defendant contended that the brewing company was not be under an obligation, from the ties of natuentitled to hold it, and sued for its recovery. ral justice, to refund, the law implies a debt There was judgment for appellee. The brew- and gives this action, founded in the equiing company appealed. The judgment of the ty of the plaintiff case, as if it were upon lower court was affirmed. The Supreme contract." See, also, Dorsey v. Williams, 48 Court in passing recognized the well-estab- Ill. App. 386; City of Calais v. Whidden, 64 lished doctrine above set forth and said: Me. 249; Richardson v. Noffitt-West Drug "The rule in these cases is very broad, and is Co., 92 Mo. App. 515, 69 S. W. 398; Jacob ample to include an action by the Bernheim Tamm v. Sanford R. Kellogg, 49 Mo. 118; 27 Bros. against the brewing company and com- Cyc. 857. The great weight of authority suppel them to pay over this fund which they ports this doctrine, although there are some have wrongfully received and applied to the cases which seem to hold that where of two discharge of their debt"-citing Brand v. claimants for the same money, one of them Williams, 29 Minn. 238, 13 N. W. 42; Haeb- is recognized as being entitled to receive it ler v. Meyer et al., 132 N. Y. 363, 30 N. E. by the person from whom it is due, and is 963, 15 L. R. A. 588, 28 Am. St. Rep. 589; paid, the other cannot sue him to recover the Clark et al. v. Pinney, 6 Cow. (N. Y.) 297. money. The cases so holding fail to recognize any privity on which to found the ac tion. In so far as they conflict with our holding in this case, we refuse to follow In Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212, 33 S. E. 175, the petition alleged Dismukes and certain other persons therein named to be the respective owners of certain certificates issued by a certain loan association, representing their stock therein. On each of said stock certificates was print ed the contract between the association and its stockholders, in substance, that the certificate might at any time after one year and before two years be returned and the member entitled to receive for each share the money paid into the loan fund; that at any time after two years and before maturity the member would be entitled to withdraw WHITE v. MISSOURI, K. & T. R. CO. et al. (Supreme Court of Oklahoma. May 10, 1910. Rehearing Denied July 6, 1910.) (Syllabus by the Court.) RAILROADS (§ 102*)-PRIVATE CROSSINGS RIGHT OF PROPERTY OWNER. Under section 129, art. 9, c. 18, par. 1058, Wilson's Rev. & Ann. St. Okl. 1903, any person owning land on both sides of any railroad repair by the corporation owning such railway is entitled to have constructed and kept in good one safe and adequate means of crossing the same. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 306-314; Dec. Dig. § 102.*] 2. RAILROADS (§ 102*)-PRIVATE CROSSINGSESTABLISHMENT-HEARING. his stock and receive the amount paid into 1. the loan fund and not less than 6 per cent. interest for the average time-withdrawal of shares to be on 60 days' notice to the association; that each of said stockholders desiring to receive the withdrawal value of his stock, indorsed or transferred the certificate representing the same to the said association "for withdrawal." Subsequently, plaintiff in error bank obtained possession of said certificates from said association, some of them In the establishment of such crossings, neibeing transferred to it in writing. Upon each ther the owner of the land nor the railway corsaid bank collected from said association the poration has the right to arbitrarily fix either When the withdrawal value of said stock, which the the kind of crossing or its location. parties cannot agree, these matters should be certificate represented, returning the certifi- determined on the evidence by a jury on proper cate with its own indorsement in blank there-instruction. On a hearing to determine them, on to the association which thereupon mark- there should be taken into consideration not only ed the certificate "withdrawn." Subsequent-ment of any particular crossing, but also the the danger and expense involved in the establishly Dismukes became the owner by proper as- reasonable necessities and convenience of the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes landowner; and such a crossing and place should be selected as will best serve the interests of the latter, unless the danger or expense necessarily incurred or involved would render the same unreasonable. [Ed. Note. For other cases, see Railroads, Cent. Dig. $$ 306-314; Dec. Dig. § 102.*] 3. RAILROADS (§ 102*)-PRIVATE CROSSINGSACTION TO ENFORCE ESTABLISHMENT-BURDEN OF PROOF. In a case where the owner of land on both sides of a railroad brings mandamus to have a crossing made of a particular kind and at a specified place, the burden is upon him to show the same to be the only kind and place reasonable when all the relevant material facts, both as to the railroad and his land, are given due consideration. [Ed. Note.-For other cases, see Railroads, Dec. Dig. § 102.*] shall, when required to do so, make and keep in good repair one causeway or other safe and adequate means of crossing the same." Under this statute, the corporation is requir ed to make and keep for the benefit of the landowner whose property it crosses one causeway or other safe and adequate means of crossing. The Supreme Court of Nebraska construing a statute similar to this in the case of Omaha & R. V. Ry. Co. v. Severin, 30 Neb. 318, 46 N. W. 842. speaking of the word "causeway," said: "The words of the statute, 'one causeway, or other adequate means of crossing the same,' indicate the legislative judgment that a causeway, whatever it may be, when applied to a railroad, is an adequate means of crossing its track." For Error from District Court, Oklahoma Coun- this word "causeway," as used in this stat ty: G. W. Clark, Judge. Mandamus by Julian White against the Missouri, Kansas & Texas Railroad Company and another. A demurrer to the evidence was sustained, and plaintiff brings error. Reversed and remanded, with instructions. J. L. Brown, for plaintiff in error. Clifford L. Jackson and Du Mars & Vaught, for defendants in error. DUNN, C. J. This case presents error from the district court of Oklahoma county, and is an action of mandamus brought by plaintiff in error as plaintiff against defendants in error for the purpose of securing the establishment of an undergrade crossing on his farm. The case was tried to a jury and at the conclusion of plaintiff's evidence the court sustained a demurrer thereto, and plaintiff has brought the case to this court for review on petition in error and case made. ute, adds but little if anything to the meaning of the balance of the section, and simply means, as is seen, an adequate means of crossing the track. It is the contention of plaintiff that no adequate means of crossing the track may be made on his farm except by an undergrade crossing such as he seeks to secure by this proceeding. It appeared on the trial of this cause that a crossing had already been established over the track by the company, but that it was such a crossing that wagons, carriages, or other vehicles could not pass, and was used by the occupants of the farm solely for the passage of loose cattle and horses. On the trial defendants offered to make another crossing at a different point for plaintiff, and contended that it would meet the terms of this statute. This was rejected by plaintiff. It is contended by counsel for plaintiff, and admitted by counsel for defendant, that neither party has the right to arbitrarily designate the point of the crossing Counsel for defendants insist that the brief which appears to be in accord with the holdof plaintiff should be stricken from the files ing of practically all the courts. The duty and the judgment affirmed by reason of the imposed on a railway company is statutory, fact that it fails to comply with rule 25 of this and we have observed but slight, if any, difcourt, in that it contains no specifications of ference in the construction placed on the error separately set forth and numbered with various statutes by the courts of the states the authorities relied on. The brief is cer- where they have been involved. Some of the tainly subject to criticism, and the rule in- statutes and holdings may be noted as folvoked was made to secure an orderly presen- lows: The Iowa statute provides, in subtation of the questions upon which appellants stance, that the railroad company shall keep rely in this court, and was made to be ob- in repair one cattle guard and one causeway, served, and, when observed, is of great as- or other adequate means of crossing the track sistance to the court. An inspection, how- at such reasonable place as may be desigever, discloses that the reliance of counsel is nated by the owner. Under this statute, the on the alleged error of the court in overrul- Supreme Court of Iowa in the case of State ing his motion for new trial, and the motion v. B. C. R. & N. Ry. Co., 99 Iowa, 565, 68 N. itself is set out at length in the brief, and W. 819, held, in substance, that each case we are able to fairly gather therefrom the must be determined by its own facts; that, claims which are sought to be presented. under the law, the owner is entitled not to Hence we do not in this instance sustain the the most convenient or profitable means of motion made. The statute involved (section crossing, but adequate means, and that in 129, art. 9, c. 18, par. 1058, Wilson's Rev. & determining what are adequate means of Ann. St. Okl. 1903) is as follows: "When any crossing consideration must be given to the person owns land on both sides of any rail-purpose for which the same is to be used, the road, the corporation owning such railroad rights of the respective parties, and all cir For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes or improperly constructed, no reason exists why they should not be increased or improved so as to be made convenient and useful. While their number or the conveniences furnished should not be unlimited, extravagant, or burdensome upon the corporation, the owner of the land is entitled in a certain degree to the advantages to be derived from a proper and fair exercise of this power. The nature of his rights must depend greatly upon the situation of the farm, and must be determined with a due regard to the rules already laid down. The court may decide as to the kind and character of the crossing to be constructed, its necessity, and the place where it should be located." The rule adduc And cumstances tending to show what is reasonable in the premises. The statute of Illinois provides that every railroad corporation shall provide farm crossings which shall be constructed by such corporation where and when the same may be necessary for the use of the proprietors of the lands adjoining such railroads. In the consideration of this statute, the Supreme Court of that state in the cause of Chalcraft v. L., E. & St. L. R. Co., 113 Ill. 86, said: "In giving construction to the statute, it is quite evident it could not have been intended the interests of the landowner or occupant are alone to be consulted, for the question also affects the interests of the railroad company and the public. It would not be reasonable to suppose that it was contem-ed from the authorities by Elliott is stated in plated that a railroad company should be his work on Railroads at section 1143 to be compelled to erect and maintain a crossing at that: "Where the statutes permit the raila point where the expenses of so doing would way company to select the place of crossing, be very greatly in excess of all benefits that it may do so, provided the location is a suitcould result therefrom to the landowner or able one and such as not to subject the ownoccupant." The statute of New York re- er to great inconvenience. Whether the landquires every railroad corporation to maintain owner or the railroad company has the right fences and crossings with cattle bars or gates to select the place of crossing, the purposes for the use of the proprietors of the land ad- of the crossing and the respective rights of joining such railroad. The Court of Appeals each of the parties must be considered, and of that state said in dealing with the crossing neither party will be allowed to arbitrarily involved in the case of Jones v. Seligman et select a place of crossing to the manifest inal., as Trustees, etc., 81 N. Y. 190, in the syl- jury or detriment of the other party." labus: "The crossings are to be located and at section 1144 that: "The crossing must be made having in view the rights of all the adequate, and an adequate means of crossing parties; and the railroad corporation is not has been held to be such a crossing as would vested with any such absolute discretion that enable the owner to cross the track and right its decision is final and conclusive." In a dis- of way on foot or horseback with wagon or cussion of the question, Justice Miller, who carriage, or with domestic animals under prepared the opinion for the court, said: his control. It is difficult to lay down any "The location of a crossing is to be made general rule that can apply to all cases for somewhat with reference to the needs, neces- the adequacy of any particular private crosssities, and convenience of the owner of the ing must necessarily depend largely on its farm, and he is entitled to be reasonably and position and the surrounding circumstances." fairly accommodated. The circumstances are Thornton on Railroad Fences and Private to be considered and the crossings should be Crossings, at section 269, dealing with the located in view of all the surroundings, and same subject, says: "The owner may select according to the situation of the adjacent the place, unless fixed by the statute, subject land. The railroad corporation in the exer- to 'the limitation put upon his choice of locacise of its duty in providing farm crossings is tion * * * that the place designated shall not vested with any such absolute discretion be a reasonable one.' The rights of both paror arbitrary power that its decision is final ties must be considered, so as to furnish a and conclusive, and cannot be reviewed or reasonably safe security for each." And at disturbed. While under the provisions of the section 273 he quoted approvingly from the general railroad act, requiring the corpora- case of Wademan v. Albany, etc., R. R. Co., tion to erect farm crossings, etc., for the use 51 N. Y. 568, which was noticed in the case of the proprietors of lands adjoining, the in- of Jones v. Seligman, suprà. The rule anterest of neither party is alone controlling,nounced by the authorities as declared in 33 the power must be exercised in a proper man- Cyc. p. 307, is that: "In the absence of statner, having due regard to the convenience of ute or agreement to the contrary, the railthe owner of the land, and without subject-road company may designate the location of ing him to needless and unreasonable injury. the crossing, but the landowner is entitled to Wademan v. A. & S. R. R. Co., 51 N. Y. 568. be reasonably and fairly accommodated, and In the case cited, where it was shown that the railroad company must consider his the crossing was inconvenient for the plain-rights, and cannot so locate the crossing as to tiff and not easy of access, and that the prop- subject him to needless and unreasonable iner place for a farm crossing was at the point jury or inconvenience." where the plaintiff desired it to be made, it was held that an action would lie to compel the defendant to build a suitable crossing. If the crossings made are insufficient in number, The foregoing authorities in our judgment declare the rule justified by the terms of our statute. With this for our guide we will take up for consideration the question of whether the evidence contained in the record | ing is desired is near the mouth of the old was sufficient to reasonably sustain a verdict | lane marked on the plat which had theretohad one been returned by a jury finding that the undergrade crossing desired by the plaintiff was the only reasonable one which could be provided when all of the circumstances and surroundings shown to exist in this case are properly considered, for, as was said by Justice Miller in the case of Jones v. Seligman, supra: "The right to a crossing under the track was a necessity if, for sufficient reasons, a construction over the surface of the road was not practicable, or would not answer the purposes intended." The following plat will present a better understanding of the facts presented than could be had from any description: HIGH PASTURE LAND fore been used by plaintiff in driving his cattle to and from his pasture. The plaintiff sought to show that the height of the embankment of the low land was such that, had a crossing been made, he could not cross the same with heavy loads; that, if the crossing were placed at the point where the same was offered by the railway company, it would necessitate building a lane either through the field from his barn west past his house, or from the point near where the old lane strikes the railroad down to the proposed crossing, and then another lane upon the other side of the track north to his pasture; that a crossing over the railroad south and west of the one proposed and where the road was sufficiently level to admit of its practical use, would afford no additional advantage over the public highways. The foregoing facts are all competent to be considered in determining the question as to whether plaintiff should prevail in this action, and under them alone, had the cause been submitted to a jury and a verdict for the plaintiff been returned thereon, there would not in our judgment have been wanting evidence reaUF30 HIGH sonably tending to support it. Section 1147, Elliott on Railroads, says: "Communication from one part of the landowner's property to another part, which has been cut off by a railroad right of way, is often provided for by passways and subways constructed under the tracks. As a rule, such passways and subways are more convenient for the landowner, and are at the same time much safer for the railway company, for collisions and injuries at such crossings are practically reduced to a minimum." When the railway company constructed its line across the land of plaintiff, the law existed then as now, requiring it to furnish to him one "safe and adequate means of crossing the same." It took its grant with this burden and should discharge it. The crossing thus to be provided is intended to relieve to such reasonable extent as may be the inconvenience and damage done by the severance of the land. A crossing of any kind or character will necessarily carry with it some burden or expense to the company, but this likewise was one of the considerations involved in the construction of the road. Although crossings of this character are termed private, there is a public consideration involved. They should be made at those places and in such a manner as will bring the least danger to the railway, company in the operation of TIMBER AND HOUSE BARN 2. Where undergrade crossing is asked. 1 to 2. Railroad grade or fill, 19 ft. high at 2. 2. Where railroad is level with ground. 4, 4. Where present crossing is located, about way down bluff. 5, 5. Where railroad company proposes to locate crossing. Bench 5 to 7 ft. high. 6, 6. Borrow pits. It will be noted that the tract of land on which the crossing is desired is the southwest quarter of the section, and that the railroad enters on the north side near the northeast corner, and follows a line diagonally across the land, making its exit at the southwest corner. It will also be noted that along the north line of the southeast 40 is a bluff approximately 30 feet in height, and the evidence shows that north of this bluff the railroad approaches it through a deep cut and emerges onto the lower land on a high fill which is from 18 to 20 feet above the surface of the ground. There is no claim made by either party that an adequate cross- its trains consistent with the situation and ing could be made north of this bluff. The railway company has placed what might be termed a temporary crossing over the high fill mentioned, but this is conceded to be inadequate. It will also be noted that the plaintiff's house is along the south line of the tract of land, and between his barn and the reasonable necessities and requirements of the owner. These conditions are not to be ignored, and, while having due regard for them, the convenience and necessity of the party for whose use the crossing is made should also be considered. Neither party can or should be permitted to act arbitrarily that whenever any personal property exempt is not be permitted to place the crossing at a 16. EXEMPTIONS (§ 56*)—PROPERTY EXEMPTED point where it will afford no additional con-JUDGMENTS. veniences over that afforded by the public highways or where it can be used only as a great burden or inconvenience to the owner, nor, in turn, should the owner be permitted to arbitrarily place an unconscionable burden upon the railway company in the construction of an undergrade or any other kind of crossing; such a burden being one where the cost of the convenience would be greater than its value to the user. All of these considerations are proper matters to be submitted to a jury, and in the present case a comprehensive view of the entire record convinces us that this would be the proper procedure in this case, and the judgment of the trial court is therefore reversed and the case remanded, with instructions to set aside the judgment heretofore rendered and grant plaintiff a new trial. TURNER, KANE, HAYES, and WIL LIAMS, JJ., concur. Judgments should be construed as other writing and are enforceable if they are certain in the light of the pleadings and the whole record, so that where the records show that a judgment for "the sum of 242.98," omitting the dollar mark, was for that sum of money, the judgment was sufficiently certain. [Ed. Note.-For other cases, see Judgment, Cent. Dig. $$ 400-402; Dec. Dig. § 222.*] 2. JUDGMENT (§ 883*)-SET-OFF-JUDGMENT TO ANOTHER'S USE. One to whose use a judgment is obtained in another's name can use the judgment by way of set-off against another judgment. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1670; Dec. Dig. § 883.*] 3. JUDGMENT (§ 839*) - ASSIGNMENT-PAROL ASSIGNMENT. SET-OFF MUTUAL A parol assignment of a judgment is valid, in absence of a prohibitory statute. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1533; Dec. Dig. § 839.*] 4. JUDGMENT (§ 883*) JUDGMENT. Whether mutual judgments may be satisfied by being set off against each other rests largely within the court's discretion, and judg ments may be set off where the right to do so is clear, but ordinarily where different interests are involved, the application to set off judgments should be made in equity and controlled by equitable principals. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1669; Dec. Dig. § 8S3.*1 5. APPEAL AND ERROR (§ 719*)—ASSIGNMENT OF ERROR FAILURE TO ASSIGN ERRORHARMLESS ERROR. A judgment cannot be modified or reversed on appeal, because of an error of which no one complained. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2968; Dec. Dig. § 719.*] exempt. Since, under Comp. Laws 1907, § 3247, providing that nonresidents or persons about to nonresidents are not entitled to the benefits of leave the state with the intention of becoming the exemption laws, one who left the state in January, 1905, lost the right to have a judg ment, rendered in an action begun March 6, 1906, exempt on the ground that it was for dam ages for wrongful levying on exempt property, one to whom he assigned the claim sued on in 1907 could not claim that the judgment rendered thereon was exempt. [Ed. Note. For other cases, see Exemptions, Cent. Dig. § 111; Dec. Dig. § 88.*] 8. EXEMPTIONS (§ 13*)-LAPSED EXEMPTIONS. Cent. Dig. § 12; Dec. Dig. § 13.*] Appeal from District Court, Salt Lake Action by A. E. Snow, plaintiff, against E. M. West, in which M. R. Brothers, as assignee, was substituted as plaintiff. From a judgment allowing defendant to set off judgments, Brothers appeals. Affirmed. D. H. Wenger, for appellant. James Ingebretsen, for appellee. FRICK, J. This was a proceeding to set off judgments. The court entered judgment allowing the set-off, and appellant presents the record on appeal. The material facts in substance are: That on the 27th day of March, 1906, A. E. Snow, who is designated as plaintiff, commenced an action against respondent to recover the value of a certain law library and other property which said Snow claimed was exempt from execution and forced sale, and which said property had theretofore been seized and sold on an execution issued on a judgment in favor of respondent and against said Snow; that after said action was commenced by said Snow, he, on the 20th day of June, 1907, assigned his alleged cause of action to the appellant, subject, however, to the lien of Snow's attorney, and upon the condition that if judgment should be obtained in said action the proceeds (subject to the attorney's lien aforesaid) should be applied (1) to pay the sum of about $475 owing by said Snow to appellant, the assignee, (2) to For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |