The

when the Constitution took effect. In determining whether the Constitution repealed or made void an act passed before the Constitution became operative, the court, in Sayers v. R. Co., 3 Pennewill, 249, 49 Atl. 931, applied the proper test, viz., that, if an act passed prior to the time the Constitution took effect would be invalid if passed after that time, then such prior act would be rendered invalid by the Constitution. said act of 1897 would have been clearly unconstitutional if passed after the Constitution took effect, as it was a special and not a general law, and provided a mode of taxation which was not uniform upon the same class of subjects within the territorial limits of the authority levying the same. It cannot be objected that the annulling of said act of 1897 by operation of the Constitution would have left the territory covered by said act without provision for taxation, as there was then in force a general law providing for the taxation of real estate in the city of Wilmington. City Charter, § 80. The said provision of the Constitution was self-executing, and proprio vigore annulled the said act of 1897, which was inconsistent and in direct conflict with the said provision. North Ward v. City of Newark, 39 N. J. Law, 380; Rankin v. Love, 46 N. J. Law, 132; Sisters of St. Elizabeth v. Chatham, 51 N. J. Law, 89, 16 Atl. 225; People v. Supervisors West Chester, 12 Barb. 446.

It appears from the case stated that the plaintiff, at the time of his payment of said taxes, made verbal objections to the payment of the same, and that the defendant at that time indorsed on the bill for said taxes and signed the following memorandum: "The amount paid in settlement of this bill of taxes was paid to me by said taxable under protest as being illegally exacted and with the avowed intention of suing for its recovery." It does not, however, appear that the plaintiff was sued or that his property was distrained for said taxes, or that such suit or distraint was threatened, or that compulsion of any kind was used or threatened to enforce such payment. "The coercion or duress which will render a payment of taxes involuntary must, in general, consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment, over the person or property of another, from which the latter has no other means or reasonable means of immediate relief except by making payment." 2 Dillon, Munic. Corps. § 943. "The payment by the plaintiff must have been made upon compulsion-as, for example, to prevent the immediate seizure of his goods or the arrest of the personand not voluntarily. Unless these conditions concur, paying under protest will not, without statutory aid, give a right of recovery." 2 Dillon, Munic. Corps. § 940. In Wilmington v. Wicks, 2 Marvel (Del.) 297, 43 Atl. 173, it was held that money paid under

FIXTURES-MORTGAGOR AND MORTGAGEE-MERGER-HOT WATER HEATING APPARATUS.

1. As between mortgagor and mortgagee, annexations affixed to an estate by the owner, before mortgage, of such a character as are apparently calculated to be for the permanent use and enjoyment of the realty, are presumed to be intended to form a part of the realty, and pass with it by a mortgage.

2. Accordingly a hot water heating apparatus and copper hot water tank and fixtures, set up by the owner of the premises in his dwelling house, are held, between him and one to whom he afterwards mortgaged the premises, to have merged in the realty, and to have passed by the mortgage to the mortgagee.

(Official.)

Report from Supreme Judicial Court, Penobscot County.

Action by Benjamin F. Young and others against Horatio N. Hatch. Case reported, and judgment for plaintiffs.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

W. B. Pierce and L. C. Stearns, for plaintiffs. H. H. Patten, for defendant.

SAVAGE, J. Trespass by mortgagees against mortgagor for taking and removing from the mortgaged premises a hot water heating apparatus, consisting of a heater, radiators, and piping, and a copper hot water tank and fixtures. The defendant mortgaged his dwelling house and the land on which it stood to the plaintiffs April 8, 1902. At that time all the property mentioned had been set up by the owner, and was in use in the house. The heater was set on the cellar bottom, and was connected by pipes running through the floor with the radiators on the first floor, and by pipes running up in the partitions with the radiators on the second floor. The radiators were not fastened to the floors. The hot water tank was connected with the stove in the kitchen. It sat on an iron stand. The tank was connected by pipes with the sink on the same floor, and, through the ceiling and floor overhead, with a bath tub and lavatory. These pipes were not attached to the wall of the room, except in one place. The tank was suitable to be used in connection with any

stove. After foreclosure proceedings were commenced by the plaintiffs, but while the defendant remained in possession, he removed the property which has been described from the premises, without doing material injury, and this is the trespass complained of. The only question argued is whether these articles were a part of the realty, and so covered by the plaintiffs' mortgage.

It was said in Hayford v. Wentworth, 97 Me. 347, 54 Atl. 940-a case between landlord and tenant-that a chattel is not merged in the realty unless there be physical annexation, at least by juxtaposition, adaptability, and an intention on the part of the person making the annexation to make it a permanent accession to the realty. The rule thus stated is in accord with the general run of authorities. And it cannot be questioned, we think, that a steam heating apparatus and a hot water boiler connected with sink and bathroom in the dwelling house, as in this case, are clearly within the rule as to annexation and adaptation. It only remains to speak of intention.

In Readfield Tel. & Tel. Co. v. Cyr, 95 Me. 287, 49 Atl. 1047, it was declared that, while it was impossible to reconcile all the cases upon this subject, "the most modern and approved rule appears to be to give special prominence to the intention of the party making the annexation." Then, after noticing some apparent exceptions to the rule, the court said, "They will be found to involve no real conflict with the rule above stated when we remember that the intention which is material is not the hidden, secret intention of the party making the annexation, but the intention which the law deduces from such external facts as the structure and mode of attachment, the purpose and use for which the annexation has been made, and the relation and situation of the party making it." And out of the relation and situation of the party making the annexation arises the distinction in the application of the rule as between cases between vendor and vendee, or mortgagor and mortgagee, on the one hand, and cases between landlord and tenant, or tenant for life and remainderman, on the other. The presumptions of intention arising in the two classes of cases differ. Annexations which are apparently calculated to increase the permanent value and usefulness of the realty might be regarded as merged in the realty in the former class, when the same annexations might remain personalty in the latter class.

The reason for distinction is well stated in Cooley on Torts (2d Ed.) pp. 499, 500, 501, and we adopt the language of the learned author of that work, who says: "The actual or presumed intent on the part of a party attaching a chattel to the realty that it shall constitute a part of the realty, or, on the other hand, that it shall remain a chattel.

is usually the most important circumstance to be considered in determining the fact; and, if no one were concerned with the question but the party by whom the annexation was made, it might well be suffered to be controlling in all cases. But as the question of ownership often depends upon the question whether a fixture is removable or not, and men make purchases and accept liens upon property, supposing it to be of that nature, either real or personal, that appearances would indicate, it would be not only impolitic, but in many cases unjust, to suffer a secret intent to control where appearances would indicate the existence of an intent of a different nature. The law therefore usually acts upon the presumed rather than upon any actual intent.

*

If a building is erected by the owner of a freehold by way of improvement thereof, and apparently for permanent use and enjoyment with it, or any erection whatsoever made which apparently is calculated to increase the permanent value of the estate for use and enjoyment, a reasonable presumption arises that the owner intended to make them a part of the realty, and the law accepts this intent as conclusive, and considers them real estate from the time they are constructed or affixed. The owner's deed, mortgage, or lease of the land will convey them as a part of it, and when he dies they pass with the land to his devisee or heir at law. * * On the other hand, a similar erection or attachment by one not the owner of the freehold might well be presumed to be made with the intent of removing it as a chattel. This presumption would be reasonable in most cases, because, if he intended it as a permanent annexation, he would lose title to it immediately, since, if he made it a part of the realty, the ownership must pass to the owner of the realty." The distinction alluded to is pointed out by Chief Justice Shaw in Winslow v. Merchants' Insurance Co., 4 Metc. (Mass.) 306, 38 Am. Dec. 368a case between mortgagor and mortgageewherein he also speaks of the "presumed intention" with which improvements were made after a mortgage of the realty. "A presumption arises," he said, "from the relation to which they stand, that such improvements are intended to be permanent, and not temporary."

In Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634-a frequently cited case-the court, after saying that intention of the party annexing was one of the requisites for determining whether a chattel had become merged in the realty, added: "This intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose and use for which the annexation has been made." Parsons v. Copeland, 38 Me. 537.

As between mortgagor and mortgagee,

then, it is clear from the authorities that annexations affixed to an estate by the owner before mortgage, of such character as are apparently calculated to be for the permanent use and enjoyment of the realty, are presumed to be intended to form a part of the realty, and pass with it by mortgage. And such a description certainly includes the heating apparatus and boiler in controversy here. It was covered by the mortgage, and it was a trespass for the mortgagor to remove it. Linscott v. Weeks, 72 Me. 506.

The only evidence relating to value is found in the testimony respecting the original cost, the length of time used, and the apparent condition at the time of removal. After making all proper allowances for depreciation, we think the plaintiffs are entitled to recover $300.

Judgment for plaintiffs for $300.

(99 Me. 469)

HERLIHY v. CONEY et ux. (Supreme Judicial Court of Maine. Feb. 17, 1905.)

EQUITY-RESULTING TRUST-DECREE OF SINGLE

JUSTICE.

1. A resulting trust arises by implication of law when the purchase money is paid by one person out of his own money, and the land conveyed to another. It may be paid by the cestui que trust himself. It may be paid by another for him. It may be paid for him by the trustee. But the money must belong to the cestui que trust in specie, or by its payment by the hands of another he must incur an obligation to repay, so that the consideration actually moves from him at the time.

2. The trust arises from the circumstance that the money of the real purchaser, and not of the grantee in the deed, formed the consideration of the purchase. In this case the evidence warrants the finding that the transaction between the alleged trustee and cestui que trust was a loan, and that the cestui que trust was bound to repay the trustee for the money loaned on his account.

3. On an appeal in equity, unless the decision of the presiding justice as to the facts is clearly wrong, it must be affirmed.

(Official.)

Appeal from Supreme Judicial Court, Hancock County, in Equity.

Bill by Daniel H. Herlihy against John J. Coney and wife. Decree for plaintiff, and defendants appeal. Affirmed.

Argued before EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

E. S. Clark, for appellants. L. B. Deasy, for appellee.

SAVAGE, J. Bill in equity to enforce a resulting trust in an undivided half interest in the Hotel Brewer property at Bar Harbor. The case comes here on the defendant's appeal. The plaintiff claims that, as the result of certain negotiations to which he was a party, the Hotel Brewer was purchased for $9,000; that $6,000 of the purchase money was raised on the notes of the defendants,

secured by a mortgage of the property; that of the remaining $3,000, he and John J. Coney each paid one-half, and that in accordance with an arrangement between himself and John J. Coney the deed was taken in the name of defendant Catherine Coney, wife of John J. Coney, and sister of the plaintiff. From all this the plaintiff claims that an implied trust arose for his benefit in one-half of the property subject to the mortgage. He claims, indeed, that it was expressly agreed that he should have half of the property. But the express agreement was not in writing, and so not enforceable. The testimony of the plaintiff in one aspect is to the effect that, when they were arranging for the payment of the $3,000 in addition to the amount to be raised by the notes and mortgage, the plaintiff informed John J. Coney that he had only $400; that the latter offered to loan him the balance to make their contributions equal, and the offer was accepted. The plaintiff put in his $400 and John J. Coney put in $2,600, but $1,100 of this, the plaintiff claims, was advanced on his account, and was in fact a loan to him by Coney, although the money did not pass through the plaintiff's hands. According to plaintiff's evidence, it was agreed that Coney should have the entire management of the property.

The defendants deny that plaintiff had anything to do with the negotiations leading up to the purchase. They deny all except that the plaintiff did contribute $400 of the purchase money under such circumstances as to raise a resulting trust in the property to that extent. And the defendants further say that the plaintiff's own evidence shows that, even if the $1,100 was advanced for the plaintiff, no indebtedness was thereby created; that the plaintiff did not become debtor, and Coney creditor, as to the $1,100; that the plaintiff in no way became obligated to repay it to Coney, but that Coney was to repay himself out of the rents when received by him, and that he was to look, not to the plaintiff for repayment, but to the property only. And hence it is claimed that the $1,100 was not the plaintiff's, was not loaned to him, was not paid by him or for him, and that under such circumstances a resulting trust would not arise. This presents the one important question of fact argued before us. There is no dispute or uncertainty about the law.

A resulting trust arises by implication of law when the purchase money is paid by one person out of his own money, and the land is conveyed to another. Baker v. Vining, 30 Me. 121, 1 Am. Rep. 617; Stevens v. Stevens, 70 Me. 92. It may be paid by the cestui que trust himself. It may be paid by another for him. It may be paid for him by the trustee. Page v. Page, 8 N. H. 187; Boyd v. McLean, 1 Johns. Ch. 582; Kendall v. Mann, 11 Allen, 15. But the money must belong to the cestui que trust in specie, or by its payment by the hands of another he must

incur an obligation to repay, so that the consideration actually moves from him at the time. He may take money from his purse, or he may borrow it, and he may borrow it from the trustee. And, if the lender pays the money borrowed for the borrower, the borrower pays it. The test is, whose money pays the consideration for the purchase? The trust arises from the circumstance that the money of the real purchaser, and not of the grantee in the deed, formed the consideration of the purchase. The plaintiff says the money was a loan to him. If by force of the loan the borrower became bound by law to repay, then a resulting trust arose, even if the money did not pass through the plaintiff's hands. And, from the use of the term "loan" in its ordinary signification, the law implies a promise to repay. And, if the cestui que trust is bound to repay, it matters not whether it is by implied or by express promise.

If, on the other hand, as the defendants claim, it appears, assuming the evidence of the plaintiff as a whole to be true, that John J. Coney advanced $1,100 for the plaintiff, with the understanding that it should be paid back out of the rents, and without any obligation on the part of the plaintiff to repay, and with the agreement that one-half of the property should belong to the plaintiff when the advance was repaid, no trust of any kind arose-no express trust, because not in writing; no implied trust, because the plaintiff paid nothing.

Now, what was the fact? The question was submitted to a jury, who found for the plaintiff. The presiding justice found and decreed for the plaintiff. All this gives the plaintiff a strong advantage. The question now is, is the decision of the presiding justice as to the facts clearly wrong? If not, it must be affirmed. Young v. Witham, 75 Me. 536; Paul v. Frye, 80 Me. 26, 12 Atl. 544; Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464, 2 L. R. A. 662, 10 Am. St. Rep. 245. There was sufficient evidence to support the finding that the transaction was a loan, and that the plaintiff was bound to repay, unless its effect is destroyed by the evidence given by plaintiff and one or more witnesses that Coney said "he would take it [the $1,100] out of the rents." Whether, in view of this and the other language used by the parties, it was mutually understood by the parties that Coney was to take the money out of the rents alone, without any obligation of the plaintiff to pay, or whether it was understood that it was a loan and the plaintiff was bound to pay, and the words used were simply expressive of the expectation that plaintiff's part of the rents which would be received by Coney would be enough to pay the plaintiff's debt to him, is the question here. The language is susceptive of either construction. The mutual understanding of the parties at the time must control.

It would serve no useful purpose to comment at length upon the evidence. But aft er a careful examination of the whole record, we are of opinion that the evidence warrants the conclusion that the decree should be sustained.

Decree below affirmed, with additional costs.

(99 Me. 473)

MAINE WATER CO. v. KNICKERBOCKER STEAM TOWAGE CO.

SAME v. CRANE et al. (Supreme Judicial Court of Maine. Feb. 17, 1905.)

NAVIGABLE WATERS — OBSTRUCTION-AUTHORITY OF CONGRESS-NEGLIGENCE-TOW -FOULING ANCHOR.

1. A water pipe laid across the Kennebec river at Bath by authority of an act of the Legisla ture, and in accordance with plans recommended by the chief of engineers and authorized by the Secretary of War, is not an unlawful obstruction to the river.

2. Under section 10 of the river and harbor bill of Congress, approved March 3, 1899, c. 425, 30 Stat. 1151 [U. S. Comp. St. 1901, p. 3541], a water pipe across the Kennebec river at Bath, if built according to plans recommended by the chief of engineers and authorized by the Secretary of War, is deemed to be affirmatively authorized by Congress, and is a lawful structure without any further action by Congress, although the affirmative authority arises by implication.

3. When only one inference touching negligence can reasonably be drawn from undisputed facts, negligence is a question of law.

4. When the captain of a schooner which has been taken in tow by a tugboat from its place of anchorage in a river knew that a water pipe across the river was in his path, and knew where it was, and did not know how much anchor chain he had out when the tug commenIced to tow his schooner down river, and took no precaution not to foul the pipe, whether his vessel be towed over it by the tug, or, being cast off, drifted over it, and, without protest or notice to the captain of the tug, permitted his vessel to be taken 1,500 feet from its anchorage nearly down to the pipe, where the hawser was cast off-the anchor being then at or near the bottom of the river-held, that the inference of negligence is so unmistakable that no reasonable inference can be drawn to the contrary.

5. In such case it is no defense that the tug boat was also negligently managed. When an injury is the result of concurring acts of two parties, one is not exempt from full liability although the other was equally culpable. (Official.)

Exceptions from Supreme Judicial Court, Cumberland County.

Action by the Maine Water Company against the Knickerbocker Steam Towage Company, and by the same against C. W. Crane and others. Judgment for plaintiff in the first action, and for defendants in the other. Defendant excepts in the first case, and plaintiff in the second. Exceptions in the first case overruled, and in the second sustained.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

Symonds, Snow, Cook & Hutchinson and Benjamin Thompson, for plaintiff. Eugene P. Carver, Edward E. Blodgett, and G. Philip Wardner, for defendant Knickerbocker Steam Towage Co. George E. Bird and William M. Bradley, for defendants C. W. Crane and others.

SAVAGE, J. Actions on the case for negligence. These actions were heard together before the court below, without the intervention of a jury, but with the right of exceptions. The court found for the plaintiff in the action against the Knickerbocker Towage Company, and for the defendants in the other action. The defendant took exceptions in the first case, and the plaintiff in the second. Both sets of exceptions have been heard together.

The plaintiff's causes of action are based upon the claim that on June 10, 1902, the plaintiff's water pipe, crossing from Bath to Woolwich, upon a structure in a bed of the Kennebec river, was fouled and injured by the anchor of the Jessie Lena, a schooner belonging to the defendants in the second action, which had been taken in tow by the tugboat Seguin, owned and managed by the defendants in the first action; that the conduct of the captain in charge of the Seguin in managing the tow was negligent, as well as was that of the master of the schooner; and that the negligence of each contributed as a proximate cause to the injury to the water pipe.

1. The case against the Knickerbocker Towage Company:

The court below found that the towage company was guilty of negligence and liable for the injury. So far as this conclusion rests upon facts, the finding is conclusive (Treat v. Gilmore, 49 Me. 34; Shrimpton v. Pendexter, 88 Me. 556, 34 Atl. 417; Laroche v. Despeaux, 90 Me. 178, 38 Atl. 100), unless the only inference to be drawn from the evidence is a contrary one (Morey v. Milliken, 86 Me. 464, 30 Atl. 102). This defendant does not, however, seek a review of the facts, but in argument bases its objection to the conclusion of the court upon a single legal proposition, namely, that the plaintiff had no authority to lay its pipe across the Kennebec river, that the pipe was consequently an unlawful obstruction to navigation and a nuisance, and hence that the plaintiff, as matter of law, cannot recover. The conclusion is correct if the premises are sound.

The Kennebec river at Bath is a tidal, navigable river, wholly within this state. It is too well settled to require discussion that, in the absence of the exercise by Congress of authority to the contrary, full power resides in the states as to the erection of bridges and other works in navigable streams wholly within their jurisdiction (Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245, 7 L. Ed. 412; Withers v. Buckley, 20

How. 84, 15 L. Ed. S16; Lake Shore & Mich. Southern Ry. v. Ohio, 165 U. S. 365, 17 Sup. Ct. 357, 41 L. Ed. 747), and, under existing legislation by Congress, that no one can lawfully place an obstruction such as this pipe was across such a river without the concurrent authority of the state and of the United States government (Cummings v. Chicago, 188 U. S. 410, 23 Sup. Ct. 472, 47 L. Ed. 525). It is not questioned but that the pipe was laid by authority of the Legislature of this state, and the only remaining question is, did the plaintiff, before laying the pipe, obtain the requisite authority from the national government? The plaintiff says yes; the defendant says no. The true answer depends upon the proper construction of sections 9 and 10, and more particularly of section 10, of the river and harbor bill enacted by Congress and approved March 3, 1899, c. 425, 30 Stat. 1151 [U. S. Comp. St. 1901, pp. 3540, 3541], which are as follows:

"Sec. 9. That it shall not be lawful to construct or commence the construction of any bridge, dam, dike or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States, until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the chief of engineers and by the Secretary of War: provided, that such structures may be built under authority of the Legislature of a state across rivers and other water ways, the navigable portions of which lie wholly within the limits of a single state, provided the location and plans thereof are submitted to and approved by the chief of engineers and by the Secretary of War before construction is commenced: and provided further, that when plans for any bridge or other structure have been approved by the chief of engineers and by the Secretary of War, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plan has previously been submitted to and received the approval of the chief of engineers and of the Secretary of War.

"Sec. 10. That the creation of any obstruction not affirmatively authorized by Congress to the navigable capacity of any of the waters of the United States is hereby prohibited, and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, Jetty or other structures in any port, roadstead, haven, harbor, canal, navigable water or other water of the United States, outside established harbor lines or where no harbor lines have been established, except on plans recommended by the chief of engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill or in any manner to alter or modify the course,