ceived the new bonds and had been advised of the transaction, though both parties lived in the same town, and she had ample means of knowing the exact situation.-AUGE V. DARLINGTON, Penn., 39 Atl. Rep.

845.

105. PUBLIC LANDS - Desert Land Extent of Reclamation. It is a sufficient reclamation to entitle the purchaser to a patent that he has acquired a right to sufficient water to irrigate the land, and has con. structed main ditches sufficient to carry it over the accessible parts of the tract, for purposes of cultivation in the ordinary manner, though he has not actually used and cultivated the land.-UNITED STATES V. MACK. INTOSH, U. S. C. C. of App., Eighth Circuit, 85 Fed. Rep. 383.

106. RAILROAD COMPANY-Negligence of One on Rail road Track-Liability of Company.-The negligence of one on a railroad track at a crossing of a public high. way, in front of a moving train, will not relieve the company from liability if, by due care, the engineer and fireman might have stopped the train, and thus avolded injuring him, after they saw, or ought to have seen, his dangerous position.-BALTIMORE & O. R. Co. V. ANDERSON, U. S. C. C. of App., Sixth Circuit, 85 Fed. Rep. 413.

107. RES JUDICATA.-The rule that a judgment in bar, or as evidence in estoppel, is binding not only as to every question actually presented and considered and upon which the court rested its decision, but every question that might have been presented and decided, as well, does not apply to a different cause of action between the same parties, except as to questions shown to have been actually decided in the former action.WENTWORTH V. RACINE COUNTY, Wis., 74 N. W. Rep.

551.

Evidence.-It

108. SHERIFF'S SALE Setting Aside was error to set aside a sheriff's sale after it was confirmed, the deed was acknowledged in open court, and the purchase money had been paid, on the grounds that part of the land had been subdivided, and the other part contained a valuable stone quarry; that neither the subdivision into lots nor the quarry was mentioned in the advertisement of sale; that the sale was not advertised as required by law: and that the price was inadequate.-MEDIA TITLE & TRUST Co. v. KELLY, Penn., 39 Atl. Rep. 832.

109. SPECIFIC PERFORMANCE - Contract to Convey.A and B, sisters-in-law, together purchased a parcel of land; A taking title to the whole, with the understand ing that B should have an acre and a third set off to her on the western side. Each also paid for half of a strip, 30 feet wide, leading to the highway and lake. A there. after contracted to sell to a third party, who knew of B's right to the 11-3 acres, her entire interest in the property. Disputes subsequently arose, and at length the purchaser sued both A and B for specific perform. ance: Held, that a decree would be granted, the court first setting off, in its best judgment, according to the evidence, the part intended to be reserved to B, and also giving B a right of way over complainant's land to the highway.-DEWEY V. WHITNEY, U. S. C. C., N. D. (N. Y.), 85 Fed. Rep. 325,

110. SUNDAY LAW Mortgage Arkansas Statute.Under the Arkansas statute making it a misdemeanor to labor, or to compel an apprentice or servant to do any labor, on Sunday, other than customary household duties of daily necessity, comfort, or charity, a mortgage and notes executed on Sunday are void.HILL V. HITE, U. S. C. C. of App., Eighth Circuit, 85 Fed. Rep. 268.

111. TAXATION-Constitutional Requirement of Uni. formity. Where, under the system of taxation adopted by a State, assessments are made by different officers or boards, the State is equally represented by each, and the legal effect is the same as though it acted through a single board. In such case a constitutional require ment of uniformity in taxation between different species of property of the same value imposes on the State the duty of providing for the equalization of the

assessments made by the different boards, to the end that the same measure of value shall be applied to all property.-RAILROAD & TELEPHONE Cos. v. BOARD OF EQUALIZERS OF TENNESSEE, U. S. C. C., M. D. (Tenn.), 85 Fed. Rep. 302. 112. TRIAL

Assignment for Benefit of CreditorsValidity-Evidence.-The incorporation into a deed of assignment of a provision that the assignee should not take possession of the property until he had filed an inventory and bond, which is only what is required by the statute in every case of assignment, does not ren. der inadmissible evidence aliunde to show that a secret agreement to the contrary existed between the parties.-BADGETT V. JOHNSON-FIFE HAT CO., U. S. C. C. of App., Eighth Circuit, 85 Fed. Rep. 408.

113. TRIAL-Jurisdiction of Judge.-Where defendant goes to trial without objection before a special judge, he cannot, after conviction, object to the lack of au thority of such judge.-SKELTON V. STATE, Ind., 49 N. E. Rep. 901.

114. TRIAL BY JUDGE - Constitutional Law.-Rev. St. 1895, art. 1029a, requiring a court of civil appeals to indicate to an appellee the amount which it deems a judgment to be excessive where it is not reversible on other grounds, and to affirm the judgment on the filing of a remittitur, is not repugnant to Const. art. 1, § 15, providing that "the right of trial by jury shall remain inviolate."-TEXAS & N. O. R. Co. v. SYFAN, Tex., 44 S. W. Rep. 1064.

115. TRUSTS Money Wrongfully Paid Out.-Money intrusted to another, and by him wrongfully paid out, may be recovered by the true owner, so long as it is traceable, if its possession, with liability of its recov ery, has wrought no disadvantage to those to whom it has been paid.-HOLLY V. DOMESTIC & FOREIGN MIS SIONARY SOC., U. S. C. C., S. D. (N. Y.), 85 Fed. Rep. 249.

116. TRUSTS-Purchases by Trustee.-Notwithstanding a trustee sold property to himself under a power in the trust deed, which act was constructively fraudulent, he is entitled to hold the legal title until he is paid the amount advanced by him on the debt secured by the deed, and the sum paid by him on another debt owing by the grantor, which was a lien subsequent to such deed.-HARRISON ▼. MANSON, Va., 29 S. E. Rep. 420. 117. WILLS Accumulation of Interest.-Income of residuary estate prior to death of testator's wife passes as though he had died intestate, the residue being given the executors to invest and collect income till death of said wife, the income then accrued to be di vided among his "brothers and sisters then living, the survivor or survivors of them," and the principal among nephews and nieces; and it being provided by the act prohibiting accumulations that the liberated income shall go to "such persons as would have been entitled thereto if such accumulation had not been di rected."-IN RE MARTIN'S ESTATE, Penn., 39 Atl. Rep.

841.

118. WILL-Nature of Estate.-S, surviving testator and J, takes a fee simple under will devising to Scer tain lands, "all of which he shall have in possession on April 1st ensuing the decease of J (reserving to the lat ter the rents, issues, and profits during life), provided, however, should said devisee die without issue, said real estate shall fall back and vest to my estate, and said executor then shall, after the decease of J, sell the same.-SHEARER V. MILLER, Penn., 39 Atl. Rep. 846.

119. WITNESSES-Competency-Husband and Wife.Under 2 How. Ann. St. § 7546, providing that husband and wife may testify against each other respecting title to property in dispute between them, where each is a party to the record, the wife may testify in relation to business transactions between herself and husband involved in a case between them.-DOWLING V. DOW LING, Mich., 74 N. W. Rep. 523.

120. WITNESS Wife as Witness - Competency.-A wife is not a competent witness for the State, either at common law or by Rev. St. § 4072, in a prosecution of her husband for adultery.-CRAWFORD V. STATE, Wis., 74 N. W. Rep. 537.

der police power, and that the burden of showing an overwhelming public necessity for such interference is upon those who claim that the contracts should not be enforced.

NOTES OF IMPORTANT DECISIONS.

MUNICIPAL CORPORATION-STREETS-TELE

PHONE SYSTEM-CONSTRUCTION.-It is held by the Supreme Court of Indiana, in Magee v. Overshiner, 49 N. E. Rep. 951, that the use of streets prevailing at the time of the taking or dedication is not the limit of the use to which the public is entitled, and which the soil owner is deemed to have contemplated, but such use is to be enlarged to include all improved methods of attaining the same objects and enjoying the same privileges, not, however, to the denial or substantial impairment of the fee owner's use and enjoyment of his abutting property; that the erection of telephone systems upon city streets is not an additional servitude, for which the adjacent fee owners are entitled to compensation, but is within the contemplated uses of the street at the time of the dedication; and that a telephone system may be owned and conducted by an individual without legislative consent where there are no restrictions upon such right. The court says in part:

"Is the telephone, with its necessary poles and wires, to be regarded as a new use, so disconnected from the purposes and objects in actual and legal contemplation when our city streets were dedicated or condemned as to constitute an additional servitude? The telegraph equipment, in its occupancy of the highway or street and its uses, is the nearest parallel we have to that of the telephone system. They are both inventions for communication by electricity. The equipment occupying the streets is the same. Some authorities have attempted to distinguish between the uses contemplated of city streets and of suburban highways. This distinction was recognized by this court in Kincaid v. Gas Co., 124 Ind. 579, 24 N. E. Rep. 1067, where this language was employed: There is an essential distinction between urban and suburban highways, and the rights of the abutters are much more limited in the case of urban streets than they are in the case of suburban ways. We note the distinction between the classes of public ways, and declare that the servitude in the one class is much broader than it is in the other.' In Elliott, Roads & S. p. 299, it is said: "There is an essential difference between urban and suburban servitudes. The owner of the dominant estate in an urban servitude has very much more authority and much greater rights than the owner of the dominant estate in a suburban servitude. The easement of the one is very much more comprehensive than of the other. It is doubtful whether, of all the servitudes, there is one so broad and comprehensive as that of a city in its streets.' Again, the same

author says, on p. 307: "The easement in a city is so broad and exclusive as to leave very little, if any, private right of use in the owner of the servient estate.'

"If this doctrine is accepted—and we think it must be the cases which hold that telegraph and telephone lines upon country highways are an additional servitude cannot be given much weight in determining the question before us. However, those cases which hold that these uses of the suburban ways are not an additional servitude, if their reasoning is tenable, apply to cases of city streets with greater force than to those of country ways. Cater v. Telephone Co., supra, is such a case. In addition to the pertinent quotation already made from that case, we quote the following: 'We are not unmindful that private property cannot be taken for a public use without compensation, however important that public use is. We are not forgetful of the fact that care should be taken that, in the popular zeal for modern public improvements, the burden of furnishing these improvements should not be shifted from the public, and imposed upon any particular class of individuals. But viewing, as we do, highways as being designed as public avenues of travel, traffic, and communication, the use of which is not necessarily limited to travel and the transportation of property in moving vehicles, but extends as well to communication by the transmission of intelligence, it seems to us that such a use of a highway is within the general purpose for which highways are designed, and, within the limitations which we have suggested, does not impose an additional servitude upon the land; in short, that it is merely a newly-discovered method of using the old public easement.' Another case of the same character is that of People v. Eaton (Mich.), 59 N. W. Rep. 145. It was there said: 'When these lands were taken or granted for public highways, they were not taken or granted for such use only as might then be expected to be made of them, by the common methods of travel then known, or for the transmission of intelligence by the only methods then in use, but for such methods as the improvement of the country or the discoveries of future times might demand.

*

*

It would

be a great calamity to the State if, in the development of the means of rapid travel and the transmission of intelligence by telegraph or telephone communication, parties engaged in such enterprises were compelled to take condemnation proceedings before a single track could be laid or a pole set. This latter proposition can be the better appreciated by the supposition that in the city of Indianapolis a telephone company should be required to make legal condemnations as to the 20,000 or more properties fronting upon the streets of that city.

"The cases of Pierce v. Drew, 136 Mass. 75, Telephone Co. v. Keesey, 5 Pa. Dist. R. 366, and Julia Bldg. Assn. v. Bell Tel. Co., supra, are directly in point in holding that the erection of

telephone systems upon streets is not an additional servitude for which the adjacent fee owner is entitled to damages, but that such use, being an improved method of transmitting intelligence, and a substitute for the messenger upon foot, on horseback, or by vehicle, is within the contemplated uses at the time of the dedication. In the last case cited, it was said: These streets are required by the public to promote trade and facilitate communications in the daily transactions of business between the citizens of one part of the city and those of another, as well as to accommodate the public at large in these respects. If a citizen living or doing business at one end of Sixth street wishes to communicate with a citizen living and doing business on the other end, or at any intermediate point, he is entitled to use the street, either on foot, on horseback, or in a earriage, or other vehicle in bearing his message. The defendants in this case propose to use the street by making the telephone poles and wires the messenger to bear such communications instantaneously, and with more dispatch than in any of the above methods or any other known method of bearing oral communication. Not only would such communications be borne with more dispatch, but, to the extent of the number of communications daily transmitted by it, the street would be relieved of that number of footmen, horsemen and carriages. If a thousand messages were daily transmitted by means of telephone poles, wires and other appliances used in telephoning, the street through these means would serve the same purpose which would otherwise require its use either by a thousand footmen, horsemen or carriages to effectuate the same purpose. In this view of it, the erection of telephone poles and wires for transmission of oral messages, so far from imposing a new and additional servitude, would, to the extent of each message transmitted, relieve the street of a servitude or use by footman, horseman or carriage.' In the case of Pierce v. Drew, supra, a like reasoning is adopted. It is there said: The discovery of the telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly similar to, if not identical with, that public use of transmitting information for which the highway was originally taken, even if the means adopted are quite different from the post boy or the mail coach. It is a newly-discovered method of exercising the old public easement, and all appropriate methods must have been deemed to have been paid for when the road was laid out.' In Hershfield v. Telephone Co. (Mont.), 29 Pac. Rep. 883, it was held that the telephone equipment was not a new and additional burden upon the fee in a city street; quoting with approval from Julia Bldg. Assn. v. Bell Tel. Co., supra. It is true that it was further held that the fee in the street was not in the abutting owner, but the proposition is distinctly adopted that it is germane to the proper use of streets to allow the setting of poles and wires for the telephone. In

McCormick v. District of Columbia, 4 Mackey, 396, the right of the telephone system to occupy the streets as a proper street use was held. The same right was recognized in Irwin v. Telephone Co., 37 La. Ann. 63; but it was placed upon the rule that the abutting owner could not complain, since the fee in the street was in the public. We observe no means of distinguishing against the telephone equipment, on the ground that its poles are not in motion as are ordinary instruments of travel, since the permanent occupancy by the trolley poles, the gas and water pipes, etc., is maintained. See People v. Eaton (Mich.), 59 N. W. Rep. 145; Telephone Co. v. Keesey, supra.

"If the existence of private benefit to the fee owner were the turning point between the admission of those things not instruments of travel or movement, as the fire cistern, the illuminating and heating gases, the water pipes, sewers, etc., and the telephone, it would be exceedingly difficult to establish the absence of private benefit to the property owner and business man in the employment of the telephone. Opposed to the view of the question as we have presented it are cited several authorities. Stowers v. Telegraph-Cable Co., 68 Miss. 559, 9 South. Rep. 356, involved the right to place telegraph poles upon the sidewalk in the city of Vicksburg. The controlling portion of the opinion is, as follows: "There is some conflict in the authorities, but the decided weight is to the effect that telegraph companies form no part of the equipment of a public street, but are foreign to its use, and that, where the abutting owner is the owner of the fee to the center of the street, he is entitled to additional compensation for the additional burden placed upon his land. Lewis, Em. Dom. § 131, citing Telegraph Co. v. Barnett, 107 Ill. 507; Dusenbury v. Telegraph Co., 11 Abb. N. C. 440; Metropolitan Telephone & Telegraph Co. v. Colwell Lead Co., 50 N. Y. Super. Ct. 488; Broome v. Telegraph Co., 42 N. J. Eq. 141, 7 Atl. Rep. 851. Contra: Hewett v. Telegraph Co., 4 Mackey, 424; Pierce v. Drew, 136 Mass. 75; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258.' All of the cases cited by the court as in conflict with its opinion have been cited by us. Those cited in support of the opinion are by reference to Lewis on Eminent Domain, where the text is supported by the four cases first named by the court. Of those cases, Telegraph Co. v. Barnett, supra, involved the location of a telegraph pole in a rural highway, as did also Dusenbury v. Telegraph Co., supra. In Broome v. Telegraph Co., supra, the statute authorizing the establishment of the system required that the consent in writing, of the property owners, should be procured for the purpose, and without such consent the right was denied. The one case cited in the Stowers Case giving it any support was Metropolitan Telephone & Telegraph Co. v. Colwell Lead Co., supra. That case broadly asserts that the telegraph service is not a street use. That conclusion is at variance with our conclusion.