landowner has taken advantage of the | Com. 169 Mass. 417, 48 N. E. 758; Lewis, method already prescribed. Em. Dom. 2d ed. chap. 29.

A statutory right to a lien is not a vested 183 Mass. 294, 67 N. E. 334. At the time of right.

Where a statutory remedy for a right created by the same statute is repealed, but the repealing statute provides a substantially similar remedy, the right may be pros-doned; that such abandonment should “reecuted under the repealing statute.

ket value of the land. The only right undertaking and abandonment was $1,000; that the Constitution is to obtain reasonable or adequate compensation.

the damage to Cutter by the taking was $1,000, but, as reduced by the abandonment, nothing; and also that Hellen, by his agent, agreed that, if the property was abandoned by the respondent for his benefit, his damStatutes authorizing discontinuance or ages would be very small. The judge thereabandonment are common.

request of the petitioner the case was report the complete title, and [that] where this is ed to this court.

so in the opinion of the legislature the same reasons which support the legislature in their right to decide absolutely and finally upon the necessity of the taking will also

taken." Cooley, Const. Lim. 7th ed. 809, and cases cited in the notes. This principle is thus stated by Field, Ch. J., in Burnett v. Com. 169 Mass. 417, 48 N. E. 758: "When land is taken for a public use, it is ordinarily within the discretion of the legislature to determine whether it shall be taken in fee, so that when the public use is determined the title will remain in the body tak

The first question is whether Stat. 1900, chap. 196, p. 138, is constitutional. In considering this question certain well-established rules must be borne in mind. Speak-support their decision as to the estate to be ing generally, the power to take land for public use by right of eminent domain is limited not only as to quantity, but as to the nature of the interest taken, by the public necessity. It is said that "the right, being based upon necessity, cannot be any broader than the necessity." Cooley, Const. Lim. 7th ed. 808. It therefore generally happens that in cases of land taken under the exercise of this right only an easement is taken, the feeing it, or whether it shall be taken only to remaining in the owner. A familiar example of this is to be found in the case of land taken for a highway. In such a case, where the easement is lawfully abandoned or discontinued as no longer necessary, the fee is in the owner, free from the easement; but, as stated by Shaw, Ch. J., in Harrington v. Berkshire County, 22 Pick. 263, 267, 33 Am. Dec. 741, "the enlarged enjoyment which the owner has thereby is not derived from the public, but is incident to the ownership which has always subsisted from the laying out of the highway." And in the case of such a lawful abandonment or discontinuance before the assessment of damages there can be no doubt that the fact of such an ending of the easement can be put in evidence on the question of damages. But the ground of the admissibility of this fact is not that the thing once taken from the owner has been restored to him, but that the evidence tends to show the nature and extent of the thing taken. The thing taken is the use of the land for a highway so long as the public necessity requires, and the sum to which the owner is entitled is the damage by reason of such taking. And that is the rule of damage all the way through, as well at the time of the trial as at the time of the taking. The evidence of a lawful ending of the easement before the trial, whether by discontinuance or otherwise, is admissible, therefore, to make more certain the nature of the easement taken, but not to show that the right to damages has been changed. It is manifest that the lawful ending of such an easement by the public authorities impairs no right of the landowner as to damages. It tends only to define this right as it at first existed.

the extent necessary for the public use, and
so long as that use continues." As herein-
before stated, in the case before us the fee
was taken, leaving not even the possibility
of a reverter in the former owner. Stat.
1882, chap. 154, §§ 3, 4, 6, pp. 111-113. For
other instances of a taking of a fee, see
Dingley v. Boston, 100 Mass. 544; Page v.
O'Toole, 144 Mass. 303, 10 N. E. 851; Titus
v. Boston, 161 Mass. 209, 36 N. E. 793. At
the time Stat. 1900, chap. 196, p. 138, was
enacted, the fee having passed to the respond-
ent, the petitioners were entitled, under the
Constitution and the statutes then in exist-
ence, to have their damages paid in money.
This was a vested right. It is urged by the
respondent that this vested right consisted of
a constitutional right to reasonable compen-
sation, and of the statutory right to have
it assessed and paid in money; and that,
while the constitutional right could not be
impaired by the legislature, the statutory
right might be changed at will, provided al-
ways that the constitutional right to rea-
sonable compensation was not impaired. And
it is urged that the statutory right does not
become vested until it has been fully pursued
and damages assessed. See Harrington v.
Berkshire County, 22 Pick. 263, 33 Am. Dec.
741. While it is true that every state has
complete control over the remedies it offers
to suitors; while it may abolish one class of
courts and create another, may abolish old
remedies and substitute new, or may abol-
ish even without substitution if a reasonable
remedy remains (Cooley, Const. Lim. 7th ed.
pp. 515, 516, and cases cited in the notes
thereto); and, while, as stated by Parker,
Ch. J., in Com. ex rel. Springfield v. Highway
Comrs. 6 Pick. 501, 508, "there is no such.
thing as a vested right in a particular rem-
edy,"-yet a substantive vested right cannot
be impaired under the guise of a change in
the remedy. The statute in question did not
undertake to define the nature of the thing
originally taken, but to change the right to
damages. Before the passage of the statute

It is pretty generally conceded, however, in the various state courts, that in some cases it is competent for the state to take for public use the land in fee, so that not even a possibility of reverter is left in the former owner. The idea seems to be that in some cases "the public purposes cannot be fully accomplished without appropriating the petitioners were entitled to have their

damages assessed and paid in money. This by the respondent for his benefit, his damwas a substantive right. After the statute they were deprived of this right, and were obliged to take land instead of money. This was a change, not only in the remedy, but in the thing that the petitioners were entitled to have. It is of no consequence whether the substantive right vests by virtue of a provision in the Constitution or in a statute, provided it is vested. The remedy may be changed, but the right to money cannot be changed. As to that, no matter how the remedy be changed, the result reached must be, in substance, the same. This conclusion is not inconsistent with the decision in Harrington v. Berkshire County, 22 Pick. 263, 33 Am. Dec. 741, upon which the petitioners rely. We are of opinion, therefore, that the statute is unconstitutional as applicable to this case.

The next question is whether the petitioner Hellen is in a situation to avail himself of that point. The jury have found that he agreed that, if the property was abandoned

ages would be very small, if any, and that $1,000 would be a reasonable sum for him under that agreement. It is not contended that the finding was not warranted by the evidence, and the fair inference is that the abandonment was made under that agreement. Under these circumstances, the case is within the well-known principle that, where a constitutional provision is designed for the protection of property rights of a person, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will (Cooley, Const. Lim. 7th ed. 250, 251, and cases cited in the notes); and he must be held to have waived his right to insist upon the unconstitutionality of the statute. It does not appear, however, that Cutter waived his rights.

The result is that as to Hellen there should be judgment on the verdict, and as to Cutter judgment for $1,000, with interest; and it is so ordered.

a. Assent by the depositor, 324.

b. What is a reasonable by-law, 326.

IV. Limits of the application of the rule requiring reasonable care.

a. In general, 327.

b. Payment upon fraudulent claim of
identity merely, 327.

continued.

f. Payment after the death of the depositor, 338.

g. The obligation to compare the signatures, 339.

V. Contributory negligence of the depositor. a. In general, 340.

b. Failure to give notice to the bank,

341.

c. Failure to keep the pass book safely, 342.

VI. Matters of evidence, 342.

I. General rule requiring reasonable care by the bank.

Undoubtedly the cases show that the exercise of reasonable care in making a payment of a savings-bank account, as to the identity of the payee the genuineness of the paper offered, and otherwise as to the right or authority of the person presenting the depositor's pass book to receive payment, will form an excuse to the savings bank for loss resulting from the fraudulent representations of the claimant in regard to any of these matters; similarly, in the ord. Payment upon forged orders alone, dinary case not controlled by unusually strin333.

c. Payment upon impersonation of the
depositor, combined with forgery,
329.

e. Payment without either impersona-
tion or forgery, 336.

gent bank regulations forming part of the contract between the bank and the depositor, neglect on the part of the bank officials to use

the credit of the deceased shall be paid to plaintiff applied for and received letters of his or her legal representatives when legally administration. About ten years ago the demanded." During the lifetime of Ellen mother and sister Kate became inmates of Neville she made 16 deposits to the credit St. Francis' Asylum for the Aged and Inof this account, presented her book to the firm of Buffalo, where they remained until defendant 15 times for the purpose of hav- the time of their deaths, which occurred ing interest credited thereon, and drew about two or three years, respectively, betwo checks upon said account, one dated fore the trial. When they entered this September 22, 1873, for $335.98, and the asylum they paid to it the sum of $1,000. other dated July 7, 1877, for $23.31. When Ellen died, on December 1, 1878, her These were presented with her pass book, bank book was in the house where the and she received the money thereon. She whole family then lived, and was taken died on or about the 1st day of December, possession of by her mother or her sister 1878, at the age of about twenty-five or Kate or the plaintiff. Subsequent to Ellen's twenty-six years, and at the time of her death the bank book was presented to the death there remained to her credit on said defendant by the mother or the sister Kate account the sum of $884.43. This is the or the plaintiff for the purpose of having amount, with compound interest, which interest credited thereon on ten different the plaintiff seeks to recover in this action. occasions between the 1st of January, 1879, Ellen Neville left her surviving, her sister, to and including July 1, 1883, and on the the plaintiff, another sister, named Kate, 4th day of March, 1882, the pass book was and her mother. At the time when this presented by some person unknown to the account was opened they all lived together defendant (such person so presenting said in the city of Buffalo. Each of Ellen's book being the mother, the sister Kate, or sisters had a bank account of her own. the plaintiff), and a deposit of $70 was Nearly twenty-three years after Ellen's duly made and entered therein. Subsedeath, and on the 22d of May, 1901, the'quent to Ellen's death the moneys to the in part on presentation," is a material part, pass books, by a by-law to the effect that the of the contract between the parties; but it does not relieve the bank from the duty of acting in good faith and with reasonable care in making a payment on the depositor's account. Brown v. Merrimack River Sav. Bank, 67 N. H. 549, 68 Am. St. Rep. 700, 39 Atl. 336; Cornell v. Emigrant Industrial Sav. Bank, 9 N. Y. S. R. 72.

And, notwithstanding a by-law to the effect that payments to persons producing the pass book should discharge the bank, it is bound to exercise reasonable care and diligence, in order to protect the depositor (Wall v. Emigrant Industrial Sav. Bank, 64 Hun, 249, 19 N. Y. Supp. 194), and continues liable for the moneys deposited, if with the exercise of such care it could have prevented the perpetration of the fraud. Tobin v. Manhattan Sav. Inst. 6 Misc. 110, 26 N. Y. Supp. 14, Affirming 3 Misc. 628, 23 N. Y. Supp. 1165; Israel v. Bowery Sav. Bank, 9 Daly, 507.

It is not error to charge the jury, in an action for an account paid to a fraudulent claimant, that the by-laws printed in the pass book given to the plaintiff when he became a depositor constituted a contract between him and the bank, and governed their relations, and that a payment, made in good faith in the exercise of reasonable care and diligence, to a person presenting the pass book, even though it were obtained by fraud, was a valid payment.

But the savings-bank officers owe to a depositor active diligence to detect fraud and forgery, upon making a payment to one who presents the pass book, although the by-laws provide that the bank will not be responsible for fraud. Kummel v. Germania Sav. Bank, 127 N. Y. 488, 13 L. R. A. 786, 28 N. E. 398. And it seems to be against the policy of the law to allow a savings bank to discharge itself from all obligation to exercise ordinary care as to the identity of the persons presenting

"bank will not be responsible for frauds committed on the officers by producing the pass book and drawing money without the knowledge or consent of the owner." Saling v. German Sav. Bank, 15 Daly, 386, 7 N. Y. Supp. 642.

And, even in spite of a stipulation to the effect that the mere possession of the book shall be sufficient authority to warrant payments to its possessor, the bank must exercise ordinary Ficken v. Emigrants' Industrial Sav. Bank, 33 Misc. 92, 67 N. Y. Supp. 143.

care.

In an important decision (distinguished in KELLEY V. BUFFALO SAV. BANK) where the bylaw provided that the bank will use its best efforts to prevent fraud, but all payments made to persons producing the deposit book shall be deemed good and valid payments to the depositors respectively, it was held that the bank, because it had stipulated to use its "best efforts" to prevent fraud, was not entitled to a charge to the jury that, if its officers had exercised ordinary care and diligence and paid the money in good faith, it was excused. This was notwithstanding the ruling in Appleby v. Erie County Sav. Bank, 62 N. Y. 12 (infra, IV. c), which demanded only ordinary care, since the contract of the bank called only for its "endeavor." Allen v. Williamsburgh Sav. Bank 69 N. Y. 314.

This is in marked contrast with LANGDALE V. CITIZENS' BANK, where, although the by-law, on which the argument of irresponsibility of the bank is based, promises the employment by the bank of "every effort" to prevent fraud, it is held that the bank's official is not bound to compare the signatures of the order presented with that at hand upon the books of the bank, in order to discover the fraud.

In Kimball v. Norton, 59 N. H. 1, 47 Am. Rep. 171, an agent deposited money in a savings bank, signing, as agent, a certificate which provided that the account might be withdrawn