Imagens das páginas

nicipal corporation to condemn for park | whole damages for land the fee of which is
purposes and boulevard land near to, but taken for public use assessed and paid in
outside of, its corporate limits. Memphis money will be effected by the agreement
v. Hastings (Tenn.)
of the former owner of the land that, if the
proceedings are abandoned for his benefit,
and the title revested in him, his damages
will be very light, if any.


5. The condemnation of land for a boule-
vard connecting public parks is not unlaw-
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.)


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)
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.)

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
of the damages to be awarded. Hellen v.
Medford (Mass.)
11. Waiver of the right to have the


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.)


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.)


14. The value of sewer and water pipes
owned by a municipal corporation, and
laid under streets which are taken by the
Federal government under its power of
eminent domain for an entirely different
use, must be paid to the municipality.
Nahant v. United States (C. C. App. 1st


Eminent domain; vested right of party
to have damages for land taken for public
use paid in money; validity of statute
fee to revest in former owner; right to ob-
authorizing abandonment, and directing

tain market value of land taken.


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

tutes "business."


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-

Power of municipalities to take prop-
erty by; right to compensation therefor;
condemning land for parks and park ways.

(a) creation and enforcement of trusts; sub-
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


Right to Open Highways over Prop- from fraud: (1) as between parties or
erty as, see VENDOR AND PUR-

privies; (2) as between one party and
creditors of the other; (h) injunction; (i)
accounting and incidental relief by requi-
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 take land under, for private








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.)



Equity; doctrine of clean hands; juris-
diction to protect property right in stock
quotations; where illegal transactions are
permitted to be conducted in exchange
Refusal to aid either party to illegal




Jurisdiction of equity over suits affecting
real property in another state or country: -
(I.) In general; jurisdiction limited to suits
in personam; (II.) conditions of jurisdic-
tion: (a) necessity of proper case for equit-
able intervention; (b) ability to grant ef-
fective relief by a decree in personam the
criterion of jurisdiction; (c) nonresidence
of defendant as affecting jurisdiction; (d)
-discretion as to exercising jurisdiction;
(III.) particular subjects of jurisdiction:


tate:-(I.) General rules; (II.) conditions
Equitable relief against forfeiture of es-
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 of action to enforce forfeiture
of estate; of action to remove cloud on title
by canceling conveyance after condition
Jurisdiction to relieve from forfeiture of
Refusal to take charge of and administer
trust when properly administered by trus-




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


Escrow; delivery of deed to grantee as an


What Constitutes, see EMINENY Do-
MAIN, 13.


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-
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.)

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.

Of Beneficiary of Condition in Convey-
ance of Land, see REAL PROPERTY,

As Basis of Waiver, see WAIVER.

1. One who consigns grain to a commis-
sion merchant for sale on commission is not
estopped to repudiate a purchase of the
grain by the consignee himself unless he
acquiesces therein and ratifies it after being
fully informed of the entire transaction, in-
cluding a subsequent sale at a profit. State
v. Edwards (Minn.)
Of married woman.


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.


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
claim. Three States Lumber Co. v. Blanks
(C. C. App. 6th C.)

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-
ering and preserving the property, after the
vessel on which it was stored, while in his
possession, had sunk.

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.)
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

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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
by his testimony and that of the inspectors,
showing that inspections were made and
properly entered in the book.

3. Proof of the appointment of a deputy
district attorney who signed an informa-
tion is not necessary to render it valid, since
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.)

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.


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Declarations; threats.

20. That threats made by one on trial for
murder to kill his victim were made a year
or eighteen months before the homicide does
not render evidence of them inadmissible.
State v. Coleman (Mo.)
Relevancy and materiality.


See also NEW TRIAL, 2.

21. Upon trial of an action for false im-
prisonment plaintiff may testify that he felt
humiliated by the arrest. Mumford v. Star-
mont (Mich.)

22. Evidence offered in opposition to a
plea of estoppel by a prior judgment, which
shows that in the former litigation the par-
ties alleged to be estopped by the judgment
therein sought so to amend their pleading as
to have the question in controversy in the
subsequent litigation determined, and that
the court disallowed such amendment, is ad-
missible. Draper v. Medlock (Ga.) 483

23. It is not error to exclude evidence, in
an action by a motorman for false impris-
onment for attempting to run cars against
the orders of the municipal authorities, to
the effect that plaintiff was subsequently
complimented by his employer for his effort
to do so. Mumford v. Starmont (Mich.) 350

24. The exclusion of evidence as to a cus-
tom to search prisoners is not error in an
action for wrongful arrest, where plaintiff

was not searched.



Evidence; burden of proof on owners of
vessel to show that loss of life or sinking of
ship did not arise from insufficiency of crew.


Burden of proof to establish waiver of for-
feiture of insurance policy.

Action in admiralty for alleged negligent
injuries; burden of proof as to negligence
and freedom from contributory negligence.

tions of party against his title under deed;
presumption of acceptance of deed. 573

Presumption of due care on part of per-
son injured.
Burden of proving that employee acted
within scope of employment in committing

In action by injured employee; burden of
proof to show insufficiency of inspection of

Parol; to establish identity of sum em-
bodied in note given for interest with inter-
est due upon pre-existing debt, and that it
was given for that debt.


Admissibility of record of former con-
viction; where state fails to show defend-
ant had been properly admonished before
pleading guilty.


Presumption that grantor used words with
intent to give them meaning which law has
attached thereto.


Of verdict of coroner's jury in homicide
case; effect, on competency of evidence of
threats, of remoteness.

note who is not making defense against sure-
Admissibility of admissions of maker of
ty; when not made in her hearing.

Of confession obtained by direct or im-
plied promise.

Right of witness to use memoranda to re-
fresh memory; admissibility of book in
which memoranda have been entered; evi-
dence of other fires set by engines other than
that causing fire in question.


Admissibility of admissions and declara-
tions made at time of accident; as part of
res gestæ.
Admissibility of testimony res inter alios
on measure of damages.

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Circumstantial; necessity of instruction EXPLOSION.

as to.


Parol; to vary terms of written contract;
to establish trust; admissibility of declara-

What Property Exempt from Levy, see

From Taxation, see TAXES, 1.

Of Boiler, Master's Liability for Injury
to Servant by, see MASTER AND

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