4. In determining the situs of personal
property for taxation, the legislature must
regard the constitutional requirement of
uniformity.
Id.

5. The valuation and assessment of the
property of a railway company, by one
assessing body, as an entirety, and the dis-
tribution of the value thus ascertained upon
a mileage basis over the entire line of such
railway, as provided by statute, do not op-
erate as a changing of the situs of the prop-
erty assessed. State ex rel. Morton v. Back
(Neb.)
447
6. In the assessment of railway property
for taxation, it is competent for the legis
lature to classify such property, and pro-
vide for the assessment of the same as per-
sonalty, and to fix the situs of the property
assessed by providing for the valuation of
the property as an entirety, and the dis-
tribution of the total value to each taxing
district according to the number of miles of
main track located therein.
Id.
Mode of assessment; valuation and
equalization.

Due Process in Assessing Railroad
Property, see CONSTITUTIONAL
LAW, 8.

See also supra, 5, 6.

10. The proportional share of railway
property as valued and assessed by the
state board of equalization under a statute
requiring railway property to be assessed
as a unit, and the aggregate value to be
distributed to the different counties, cities,
and towns through which the road runs, on
a mileage basis, belonging to and situated
in a city and subject to taxation for munic-
ipal purposes, may be equalized by the
proper authorities of such city by lowering
or raising the values of the same as thus
ascertained, so as to bring about uniformity
of valuation in respect of all property sub-
ject to taxation within the municipality.

NOTES AND BRIEFS.

Id.

Taxes; situs, for taxing purposes, of tan-
7. The assessment, for municipal pur-gible personal property of domestic corpo-
poscs, of railroad property according to the rations in the United States:-(I.) Scope
plan prescribed by a statute requiring the of note; (II.) essentials of jurisdiction;
valuation and assessment of railroad prop; (III.) localization of corporations; (IV.)
erty by one assessing body as a unit, and
the distribution of the aggregate value on
principal office as domicil: (a) in general;
a mileage basis for all purposes of taxation) of railroads; (V.) effect of certificate
to the various counties, cities, and towns
through which the road runs, does not vio-
late the provisions of the fundamental law
requiring uniformity and equality in the
valuation and assessment of property for
the purpose of taxation.

Id.

8. It is competent for the legislature to
provide for the valuation and assessment of
the property of railway companies, such as
is required to be listed and scheduled with
the auditor of public accounts by Neb.
Comp. Stat. 1901, chap. 77, art. 1, §§ 39, 40,
by one assessing body, and for ascertaining
the value of the whole of such property of
any one railway corporation subject to tax-

ation in the state as a unit or as an en-
tirety and for distributing the value as
thus found over the main line or track of
such railway company and to the different
taxing districts, municipalities, etc., on a
mileage basis.

Id.

9. In the assessment for municipal pur-
poses of railway property situated in cities
of the metropolitan class, such as is re-
quired to be listed with and assessed by the
state board of equalization for general rev-
enue purposes, under the provisions of Neb.

cil; (VI.) legislative power to fix the situs
of incorporation on the question of domi-
of property for taxation; (VII.) personal
property physically present in the taxing
side the state; (IX.) particular classes of
jurisdiction; (VIII.) tangible property out-
property: (a) railroad rolling stock; (b)
water craft; (X.) conclusion.
431

Constitutional requirement of uniform-
ity; power of legislature to change rail-
road company's real estate into personalty
and shift location for purposes of taxation;
statute requiring assessment of railroad as
a unit, and distribution on mileage basis to
449
the various taxing districts.

Levy of tax or assessment confined to pub-
lic purpose; for public improvements. 807
Effect of tax sale to create encumbrance,
rather than to devest title.
TELEGRAPHS.

868

Law Governing Contract and Damages
for Breach, see CONFLICT OF
LAWS, 1.

Measure of Damages for Failure to De-

liver, see DAMAGES, 12.

Burden of Proving Loss from Delay in
Delivering, see EVIDENCE, 7.

12. A plea of guilty of the theft to com-
mit which a burglary is alleged to have
been committed does not, where the fact of 21. The court may properly refuse to re-
burglary itself depends on circumstantial quire the jury to return to their room and
evidence, relieve the court of the necessity insert specified facts in their special ver-
of instructing the jury as to the law gov-dict; but the remedy, if any, is by motion
erning convictions on circumstantial evi- for a new trial. Pittsburgh, C. C. & St. L.
dence. Beason v. State (Tex. Crim. App.) R. Co. v. Montgomery (Ind.)

Ga. R. Co. v. Augusta Brokerage Co. (Ga.) ductory; (II.) when evidence is entirely

920

larceny; (3) burglary; (4) other crimes; I trustee because of strained relations with
(c) plea of insanity; (IV.) where evidence cestui que trust; because of strained rela-
is both direct and circumstantial; (V.)tions with cotrustee; renunciation of trust;
where instruction, or request to charge, effect of election by widow named in will as
simply states abstract proposition; (VI.) trustee for benefit of testator's daughter to
testimony of accomplice; (VII.) necessity take dower rights in opposition to will; in-
of request for instruction; or exception; terference with testator's judgment in ap-
(VIII.) refusal of request, the substance of pointing trustee.
which is elsewhere charged; (IX.) accused
in juxtaposition to main or inculpatory
fact; (X.) as to question of intent; (XI.)
miscellaneous cases.
Of criminal case; impropriety of prose-
cuting attorney or court appealing to
prejudice of jury to obtain conviction;
court intimating opinion as to guilt;
judge's duty to construct charge so as to
place burden of proof on state.

193

194
Question of proximate cause for court or
jury.
246

Question of due care of plaintiff in action
for personal injury as one for jury; ques-
tion of negligence of defendant, and wheth-
er it was proximate cause of injury, for
jury.
301

Question for jury as to safety of appli-
ances furnished by master; where testi-
mony is conflicting; duty to submit ques-
tion of master's negligence to jury. 798
Question for jury as to negligence of en-
gineer in moving engine while coupling is
being made.
888
Propriety of motion to strike out answer
as method of testing sufficiency of mat-
ters of defense presented.
969

TRUSTS.

USURY.

By Building and Loan Association, see
BUILDING AND LOAN ASSOCIATIONS,

1.

VENDOR AND PURCHASER.
Defect of Title as Defense Pro Tanto
to Purchase-Money Note, see BILLS
AND NOTES, 3.

Measure of Damages for Breach of
Covenant of Seisin, see DAMAGES,

2. A title is not unmarketable so as to
entitle a vendee to rescind his contract and
recover back the earnest money paid, where
no question of fact is involved, but only one
1. Mere unfriendliness of a cestui que of law, arising exclusively upon the con-
trust toward a trustee is not sufficient struction of a record muniment of title, and
ground for the removal of the latter. Polk all parties interested are before the court,
v. Linthicum (Md.)
920 so that its decision will be a final de-
termination of the matter.
Id.

2. The removal of the widow as trustee
of a fund provided for the benefit of tes-
tator's daughter is required, where she
elected to take her dower rights in opposi-
tion to the will, thereby depleting the trust
estate, and destroying a very important
part of the scheme of the testator, remar-
ried within a short time, became estranged
from the cestui que trust and her cotrustees
so that no intercourse could subsist be
tween them, and kept the estate in needless
litigation.

NOTES AND BRIEFS.
Trusts; duty of trustee;

Id.

3. A doubt as to the construction of a

decree of distribution by a probate court,
which is conclusive upon all parties inter-
ested in the estate, does not render a title
unmarketable so as to entitle a vendee to
rescind his contract and recover back the
Id.
earnest money paid.

4. Payment of the money cannot be en-
forced under a contract to purchase real
estate which stipulates that the property
shall be clear of all encumbrances, if the
title has not been accepted, and there is an
existing right on the part of a municipality
to open a platted street over the property,
removal of which will destroy the buildings without

VOTERS AND ELECTIONS.

A statute permitting the use of a voting
machine which assures secrecy, free choice
of candidates, a correct record of the vote,
and a correct record and announcement of
the total vote given for each candidate, does
not contravene a constitutional requirement
that all votes at elections shall be given by
ballot. People ex rel. Detroit v. Board of
Inspectors (Mich.)
184

NOTES AND BRIEFS.

Voters and elections; meaning of word
"ballot" in Constitution requiring votes at
election to be by ballot; validity of statute
permitting use of voting machines. 184

VOTING MACHINES.

Constitutionality of Statute Permitting
Use of, see VOTERS AND ELECTIONS.

WAIVER.

Of Right to Have Entire Damages for
Taking of Land Assessed, see EMI-
NENT DOMAIN, 11.

Surface water.

natural

1. Surface waters which by
drainage collect in a natural basin or de-
pression upon the premises of a dominant
tenement, and escape therefrom only by
percolation or evaporation, forming thereby
a lake or pond permanent in its character,
when so collected and coming to rest lose
the character of surface water, and may
not by artificial means, other than that inci-
dent to the cultivation of the soil, be
drained to the damage of a servient tene-
ment, without liability in damages for such
act. Davis v. Fry (Okla.)
460

2. Owners of improved property located
adjacent to an adequate sewer or drainage
system in a city are required to connect
therewith the water gutters and spouts
upon their buildings, and not to permit the
rain water to collect and discharge at a
point in a public alley, where, by reason
of the volume and force thus attained, it
enters adjoining premises, provided such
connection with the drainage system can

By Insurance Company, see INSURANCE, reasonably be made. Ginter v. St. Mark's

6.

Church (Minn.)

621