nicipal corporation to condemn for park
purposes and boulevard land near to, but
outside of, its corporate limits. Memphis
v. Hastings (Tenn.)

750

whole damages for land the fee of which is
taken for public use assessed and paid in
money will be effected by the agreement
of the former owner of the land that, if the
5. The condemnation of land for a boule- proceedings are abandoned for his benefit,
vard connecting public parks is not unlaw-and the title revested in him, his damages
will be very light, if any.
ful on the ground that it is for mere con-
venience or pleasure, not for necessity. Id.
What constitutes a taking.

6. Forbidding the use of land near a
park or park way for advertising purposes
amounts to a taking of it for public use,
for which compensation must be made.
Com. v. Boston Advertising Co. (Mass.)

817

7. The wharfage and reclamation rights
of the owner of land on a cove leading off
from a river are not destroyed or impaired
by the construction of an embankment
across the mouth of the cove. Richards v.
New York, N. H. & H. R. Co. (Conn.) 929
8. A statute providing for the cleaning
of drainage ditches and the assessment of
the cost thereof, according to benefits, upon
the parties along its line who were assessed
for the cost of its original construction,
does not take private property for public
use without compensation, since the prop-
erty occupied by the ditch was taken by
its original construction, when the parties
along its line whose lands were taken had
ample opportunity to obtain compensation.
Taylor v. Crawford (Ohio)
805
Right to compensation.

Applying Local Rule of Damages in
Federal Court, see DAMAGES, 11.
9. An amendment to a city charter au-
thorizing the condemnation of land out-
side the city limits for park purposes is
not invalid for not providing compensa-
tion to the owner of the land taken, where
it provides that the proceedings for the
exercise of the power of condemnation shall

be the same as that now provided by law
for the taking of private property for pub-
lic use, and the charter of the city incorpo-
rates within itself the general condemna-
tion statutes of the state. Memphis v.
Hastings (Tenn.)
750

Id.

12. No recovery can be had by the owner
of land on a cove leading off from a river
for interference with his right of access
from his land to the river by the construc-
tion of a railroad track across the mouth
of the cove, where the access is not en-
tirely cut off, and, because of the limited
extent of the cove, and the shallowness of
its waters, the right is not essentially im-
paired. Richards v. New York, N. H. &
H. R. Co. (Conn.)

929

13. A farmer who supports his family
from the products of the farm, and for
many years has sold his surplus in a neigh-
boring town, has an established business
within the meaning of a statute authoriz-
ing the construction of a water-supply
reservoir upon the site of the town, and
providing compensation for any estab-
lished business thereby destroyed, although
he has no regular route or customers, or
anything in the nature of good will. Allen
v. Com. (Mass.)

599

Statute providing compensation for in-
jury to established business; what consti-
tutes "business."

599

Power of, inherent in United States;
taking city property by; right of city to
compensation for; easement as property
for which compensation may be claimed;
recovery of value of sewer and water pipes
in city street taken by Federal govern-
ment.

10. The statutory right to have damages
for land the fee of which is taken for pub-
lic use assessed and paid in money is a
substantial right which, after the proceed-
ings have progressed so far that the fee
has passed, cannot be impaired by the pas-
sage of a statute authorizing the abandon-
ment of the land, and directing that the
fee shall revest in the former owner, and
the fact thereof be considered in reduction Power of municipalities to take prop-
of the damages to be awarded. Hellen Verty by; right to compensation therefor;
Medford (Mass.)
314 condemning land for parks and park ways.

11. Waiver of the right to have the

723

750

EMPLOYERS' LIABILITY ACT.
See MASTER AND SERVANT, 19-24.

ENCUMBRANCE.

Right to take land under, for private | (a) creation and enforcement of trusts; sub-
railroad.
844 stitution of trustees; (b) suit for specific
performance; (c) suit to remove cloud up-
on title; to cancel void mortgage; (d) fore-
closure of mortgage or other lien; (e) suit
to redeem; (f) suit to reform deed; or to
have deed declared a mortgage; (g) relief
from fraud: (1) as between parties or
privies; (2) as between one party and
creditors of the other; (h) injunction; (i)
accounting and incidental relief by requi-
THE sition of conveyance; (j) partition; (k) ap-
pointment of receiver; (1) miscellaneous;
(IV.) form of relief; effect and enforcement
of decree; (V.) summary.

Right to Open Highways over Prop-
erty as, see VENDOR AND PUR

CHASER, 4.

EQUAL
LAWS.

PROTECTION

OF

See CONSTITUTIONAL LAW, 4-7.

EQUITY.

1. The adequate remedy at law which
will deprive a court of equity of jurisdic-
tion must be a remedy as certain, com-
plete, prompt, and efficient to attain the
ends of justice as the remedy in equity.
Williams v. Neely (C. C. App. 8th C.) 232
2. If a person conveys property to an-
other, coupled with a condition the breach
of which will, if taken advantage of, cause
the title to revert to him, the condition
being to secure the payment of money, or
the performance of an obligation the breach
of which can be fairly measured in money
by some established rule, the particular
thing to be done, or the particular time of
the doing thereof, not being made essen-
tial and of the very essence of the con-
tract, under some circumstances a court
of equity, by an arbitrary rule of construc-
tion peculiar to that jurisdiction, may
say the parties did not intend the full
effect of their language, but purposed to
have the condition stand as security for
the performance of the obligation or the
payment of an equivalent in money. Ma-
ginnis v. Knickerbocker Ice Co. (Wis.)

673

Equitable relief against forfeiture of es-
tate:-(I.) General rules; (II.) conditions

precedent; (III.) forfeiture will be relieved
when compensation can be made: (a) in
of money: (1) general rule; (2) grant or
general; (b) forfeiture to secure payment
devise on condition of support; (3) grant
or devise on condition of payment of money;
(4) nonpayment of rent; (5) nonrenewal of
lease; (6) nonpayment of taxes; (7) fail-
ure to remove encumbrance; (IV.) fraud,
accident, mistake; (V.) effect of conduct of
obligee; (VI.) collateral covenants: (a) in
general; (b) failure to improve or repair;
(c) failure to insure; (d) copyholds; (f)
mining leases; (VII.) conditions against
marriage; (VIII.) after forfeiture declared;
(IX.) statutory forfeiture; (X.) statutory
jurisdiction.

833

Jurisdiction to relieve from forfeiture of
868
estate.
Refusal to take charge of and administer
trust when properly administered by trus-
tee.
921

ESCROW.

Parol Evidence as to, see EVIDENCE, 13.
A deed absolute on its face cannot be de-
livered to the grantee therein named, to be
by him held in escrow; and a delivery which
purports to be such will operate as absolute
and freed from all parol conditions, and
title will vest at once. Whitney v. Dewey
(Id.)
572

NOTES AND BRIEFS.

Escrow; delivery of deed to grantee as an
573
escrow.

ESTABLISHED BUSINESS.

What Constitutes, see EMINENT Do-
MAIN, 13.

ESTOPPEL.

Of Depositor to Hold Bank Liable after
Payment to Unauthorized Person,
see BANKS, 8.

Of Corporation, see CORPORATIONS, 3.
By Judgment; Burden of Proof as to,
see EVIDENCE, 4, 5.

By Prior Judgment; Admissibility of
Evidence in Opposition to Plea of,
see EVIDENCE, 22.

the ground that they had been wrongfully
transferred by one in whose hands they had
been placed for negotiation for the benefit
of the corporation, will estop the corporation
plaintiff, in a subsequent suit to foreclose
the mortgage by which the bonds are secured,
from setting up that they had been paid, or
that the present plaintiff's grantor was pres-
ent when the corporation that issued the
bonds transferred its property to the pres-

Of Insurance Company, see INSURANCE, ent defendant, and knew that the latter un-
6.

2. A married woman is estopped to set up
the invalidity of a contract by herself and

her husband for the sale of their homestead
because of failure to comply with certain
statutory provisions, as a defense to a suit
for specific performance, where the purchaser
has taken possession, and paid the purchase
price, and made valuable improvements, with
the full knowledge and consent of the wife.
Grice v. Woodworth (Id.)
By legal proceedings.

584

derstood that it was acquiring the property
free from the lien of the mortgage, since
these were matters which should have been
tried in the former suit. Ruckman V.
Union Ry. (Or.)

480

Estoppel of insurance company to claim
forfeiture of policy for nonpayment of pre-
mium by retaining and attempting to col-
lect overdue premium note.
264

Of one advising another to purchase, prop-
erty without mentioning lien, to assert lien.

To assert secret equities.

481
575

3. A plaintiff in replevin who obtains ac-
tual possession of property seized under the
writ is estopped from claiming that the writ
was wrongfully executed, upon a proceeding
to assess damages against him for seizure
of property upon which he had no rightful | benefits; of married woman by fraudulent
claim. Three States Lumber Co. v. Blanks acts.
(C. C. App. 6th C.)

283

4. A plaintiff in replevin who took into
his possession, under the writ, lumber to
which he was not entitled, cannot plead, in
defense of his liability to return the prop-
erty, that he had caused it to be sold to
satisfy his own claim for salvage in recov-
cring and preserving the property, after the
vessel on which it was stored, while in his
possession, had sunk.
Id.

5. One filing a bill for relief from a for-
feiture, at law, of a lease, will not be heard
to contend that the entry of the landlord was
invalid because there was no forfeiture.
Gordon v. Richardson (Mass.)
867

6. A decree for defendant in an action to
compel the surrender of corporate bonds to
a corporation which had succeeded to the
rights of the one which issued them, on

To dispute validity of sale after accepting

585

To claim ownership of material; as mixed
question of law and fact.

EVIDENCE.

900

Of Title of Plaintiff in Replevin, see
REPLEVIN, 1, 2.

Judicial notice.

Of Proceedings by Legislature for Ex-
pulsion of Member, see LEGISLA-
TURE, 5.

1. The court will take judicial notice of
the fact that many automobiles may be
driven at a speed of at least 40 miles per
hour. People v. Schneider (Mich.) 345
2. The district court of any county is
obliged to take judicial notice of an execu-
tive order upon the attorney general to ap-
pear and prosecute criminal proceedings
there; and such authority need not be ex-

pressed on the face of an indictment which | memoranda, entered by the proper clerk in
he signs. State v. Bowles (Kan.) 176 a book kept for that purpose, accompanied

3. Proof of the appointment of a deputy by his testimony and that of the inspectors,
district attorney who signed an informa-showing that inspections were made and
tion is not necessary to render it valid, since properly entered in the book.
the court is presumed to be cognizant of such
appointment and of the powers of the ap-
pointee. State v. Guglielmo (Or.) 466
Burden of proof.

4. The burden of proof is upon a party
pleading a judgment as an estoppel to sus-
tain the plea by showing that the particu-
lar matter in controversy was necessarily or
actually determined in the former litigation.
Draper v. Medlock (Ga.)
483

5. One who pleads a judgment as an es-
toppel must prove that the particular matter
in controversy was actually decided in the
former litigation in accordance with his con-
tention, where it appears from the record
that several issues were involved in the
former litigation, and the verdict and judg
ment do not clearly show that this particu-

lar issue was then decided.

Id.

9. After a memorandum book has been in-
troduced in evidence without objection no
obejction will lie to its use as evidence, or
to a witness using it as a basis for the facts
to which he testifies, on the ground that he
did not make the entries. Manchester As-
sur. Co. v. Oregon R. & Nav. Co. (Ore.) 475
10. If the memoranda of inspection of
engines prepared by the men in charge of
that work and filed in the office of the rail-
road company have been lost, and the facts
with regard to the inspection forgotten by
them, such facts may be proved by the intro-
duction in evidence of a transcript of such

Id.
11. The record of a prior conviction of
theft, based upon a plea of guilty, is admis-
sible in a prosecution for burglary, where
the taking alleged in both cases is the same.
Beason v. State (Tex. Crim. App.) 193
Parol evidence.

12. Parol evidence is admissible to show
delivery of a deed. Whitney v. Dewey (Id.)