Riggan v. Green, supra, citing Carr v. Holliday, 1 Dev. & B. Eq. 344, 5 Ired. Eq. 167. A purchaser for value from one whose deed was declared by the jury to be fraudulent and void gets a good title if he had no notice of the fraud in his vendee's deed. Young v. Lathrop, 67 N. C. 63; Wade v. Saunders, 70 N. C. 270; Davis v. Council, 92 N. C. 725; Perry v. Jackson, 88 N. C. 103. Clark, J., delivered the opinion of the court: The reference was by consent. By its terms the referee was vested "with power, sitting as a chancellor, to decide upon the facts, and all maiters of law and equity arising upon the pleadings and testimony, with liberty to either party to except as to the referee's rulings on such matters of law and equity, and to appeal therefrom." The parties reserved the right to except only to the referee's rulings as to the law. By any reasonable construction, his findings of fact were to be conclusive. He found as a fact that the defendants purchased the land for value, and without notice of any mental incapacity on the part of Oliver Odom. Had the defendants purchased directly from Oliver Odom for value, and without notice of his mental incapacity to make a deed, a court of equity would not ordinarily set aside the deed. Rigyan v. Green, 80 N. Č.236. A purchaser for value, from one whose deed was declared by the jury to be fraudulent and void, gets a good title, if he has no notice of the fraud in his vendee's deed. Young v. Lathrop, 67 N. C. 63; Wade v Saunders, 70 N. C. 270; Davis v. Council, 92 N. C. 725; Perry v. Jackson, 88 N. C. 103. The fact that it is found here that the defendant's grantor obtained the deed without fraud or undue influence, for a full and fair price, and acting under advice of Oliver Odom's counsel, who had been his attorney for years, surely cannot be allowed to put the defendants in a worse plight than they would have been placed if their grantor had procured the conveyance by fraud and undue influence. The great teachers of English law say that persons of non-sane memory, etc., “are not totally disabled to convey or purchase, but only sub modo. Their conveyances are voidable but not void." 2 Bl. Com. 291; 2 Kent, Com. 451. The deed of a person of unsound mind, not under guardianship, conveys the seisin. Wait v. Maxwell, 5 Pick. 217; Crouse v. Holman, 19 Ind. 30, and cases cited. trate a meditated fraud upon them and their rights." To same purport, Adams, Eq. 183, and cases cited. This places the doctrine upon an intelligible basis, and delivers the courts from the evident injustice and insurmountable inconvenience of declaring that all contracts made with one apparently sane, but who proves to have been insane, are void ab initio for want of consenting mind. This doctrine would give a lunatic or his heirs restoration of property sold by him without return of the money received for it, as was actually held in Gibson v. Soper, 6 Gray, 279, and Rogers v. Walker, 6 Pa. 371. The correct rule is stated by Mr. Story, in section 228: "If a purchase is made in good faith, without any knowledge of the incapacity, and no advantage has been taken of the party, courts of equity will not interfere to set aside the contract, if injustice will hereby be done to the other side, and the parties cannot be placed Story, Eq. Jur. § 227, says: "The ground upon which courts of equity now interfere to set aside the contracts and other acts, however solemn, of persons who are idiots, lunatics and otherwise non compos mentis is fraud. Such persons being incapable, in point of capacity, We do not see that the condition of the de- to enter into any valid contract, or to do any fendants is any worse because they bought me- valid act, every person dealing with them, diately, and not immediately. The presump-knowing their incapacity, is deemed to perpetion of law is in favor of sanity; and this presumption is so strong that when a want of it is claimed, even in a capital case, the burden is on the defendant to prove it, the presumption of sanity being stronger than the presumption of innocence. When, therefore, a purchaser sees a regular chain of title, formal in all particulars, upon the registration books, executed by grantors of full age, and not femes corert, he has a right to rely upon the presumption of sanity; and if, without any notice, or matter to put him upon inquiry, and for fair value, he takes a deed, he should be protected. Any other doctrine would place all titles upon the hazard. If the title of an innocent purchaser for value, and without notice, can be upset for the allege mental incapacity of one grantor, it can be done though the grantor may have been a very remote one. The evidence must necessarily be sought among those friendly to the heirs of such grantor, -the neighbors and acquaintances of the party of alleged in-in statu quo.” capacity; and it would be difficult for the grantee in possession to furnish proof of the sanity of every grantor through whom he claims. Every man who shows the abnormal condition of mind which incapacitates him to make a conveyance of his property is sure to attract the attention of those around him, who have the power, and sometimes exercise it, to conceal the fact. It is a safer rule to require his heirs, or those acting for them, to take prompt steps to have the deed set aside, and parties placed in statu quo, before the property is conveyed to other parties, and while the facts are capable of full investigation, than to subject a remote grantee to maintain the integrity of his tile by rebutting allegations of incapacity in a y one of a long line of grantors. Buswell, Insanity, & 413, says: "A completed contract for the sale of lands, made by an insane vendor, without fraud or notice to the vendee of the grantor's insanity, and for a fair consideration, will not be set aside, either at law or in equity, in favor of the vendor or his representatives, except the purchase money be restored, and the parties fully reinstated in the condition in which they were prior to the pur chase. This rule appears to be unquestioned in the English courts.' To the same effect is the able opinion of Horton, Ch. J., in Gribben v. Maxwell, 34 Kan. 8 (decided in 1885), in which numerous authorities are reviewed and commented upon; and also in Behrens v. McKenzie, 23 Iowa, 333, delivered by a very eminent judge (Dillon), and Corbit v. Smith, 7 Iowa, 60; Allen v. Berryhill, 27 Iowa, 534; 2 Pom. Eq. | their contracts, however solemn, in all cases of Jur. § 946. See also Scanlan v. Cobb, 85 III. | fraud, or when the contract or act is not seen 296; Young v. Stevens, 48 N. H. 133; Eaton v. to be just in itself, or for the benefit of such Eaton, 37 N. J. L. 108; Freed v. Brown, 55 Ind. persons." Riggan v. Green, 80 N. C. 239. 810; Carr v. Holliday, 5 Ired. Eq. 167. The deed of Richard Odom passed the legal title, and is only voidable as to Oliver Odom upon the ground of fraud in taking title from oue whom he knew to be mentally incapacitated. The property has been conveyed for a fair value to innocent parties, who took without notice. In Lancaster Co. Nat. Bank v. Moore, 78 Pa. 407, a lunatic was held liable upon a note discounted for him by the bank; and Paxson, J., says: "It would be an unreasonable and unjust rule that such persons should be allowed to obtain the property of innocent parties, and retain both the property and its price. Here It has been held in the leading English case the bank, in good faith, loaned the defendant of Greenslude v. Dare, 20 Beav. 284, by the Masmoney on his note. The contract was exe-ter of the Rolls (since Lord Romilly), that if a cuted, so far as the consideration is concerned, conveyance is made by an alleged lunatic unand it would be alike derogatory to sound law der undue influence, and for an inadequate conand good morals that be should be allowed to sideration, a purchaser from such grantee for retain it to swell the corpus of his estate." To a valuable consideration, and without notice, the same purport are Person v. Warren, 14 would be protected, as any other purchaser for Barb. 488, and Allis v. Billings, 6 Met. 415. value, and without notice, from a fraudulent alience. The court instances the insecurity of purchasers, if any other doctrine should be laid down. The courts have gone further, and held that when the contract is fair and bona fide, exeecuted and completed, and the parties cannot be again put in statu quo, and there was no notice of mental incapacity, the court will not set aside the contract at all. Molton v. Camroux, 2 Exch. 457, aflirmed on appeal, 4 Exch. 17; Yauger v. Skinner, 14 N. J. Eq. 389; Niell v. Morley, 9 Ves. Jr. 478; also Lord Chancellor Truro, in Price v. Berrington, 3 Macn. & G. 498 and Lord Cranworth, in Elliot v. Ince, 7 DeG. M. & G. 475. It is clear, from these authorities, that the Conveyances of an insane person, not previously declared insane, are voidable merely, and not void; that the right to set them aside is based upon the ground of fraud; and that the court will not usually interfere, unless there has been fraud, or a knowledge of the insanity by the other party, and will then place the parties in statu quo. When, therefore, as in this case, the grantee knew of the mental incapacity of the giantor, but it is found as a fact "that no traud was practiced upon Oliver Odom, or undue influence exercised to induce him to make the deed; that be acted under the advice of his lawyer, who had been his counsel for years; that the price paid was a full and fair consideration for the land; and that the grant or was benefited by the making of the deed, as he and his family thereby received a home and support," it would seem that a court of equity would not set aside such conveyance even as between the parties thereto, and certainly not without restoring the status quo ante. Selby v. Jackson, 6 Beav. 192. "Courts of equity ever watch with a jealous care every contact made with persons non compos mentis, and always interfere to set aside The case of Ashcraft v. De Armond, 44 Iowa, 229, is not exactly in point, but illustrates the proposition that deeds from an undeclared lunatic are voidable on the doctrine of fraud. It holds that where the grantee of a lunatic took for value, and without notice, a subsequent purchaser from such innocent grantee for value, though with notice of the original grantor's incapacity, would not be affected; and cites the well-established doctrine laid down in Kerr on Fraud and Mistake, 316, and cases there quoted. Indeed, the facts in Riggan v. Green, supra, are almost identical with this in every particular, and that case should be con clusive of this. As to exception 6 of the plaintiff, it is suffi cient to say: (1) Roxana B. Odom is not a party to this action; her rights, if any, are not set up in the complaint; and the plaintiffs claim under their father, and not under her. (2) The deed from Oliver to Richard Odom was executed February 21, 1866,-two years and a half before the married women's rights were enlarged by the Constitution of 1868, and more than a year before the Act was passed restoring to married women the com mon-law right of dower, March 2, 1867. There was no necessity then for a wife to join her husband to convey his land. Sutton v. Askew, 66 N. C. 187. See also Code, § 2115. Our conclusion therefore is that, upon the facts found, judgment should have been entered for he defendants. This disposes of both appeals. In the plaintiffs' appeal, no error; in the defendants' appeal, error, and reversed. APPEAL by defendant from a judgment of The case sufficiently appears in the opinion. by the plaintiff slipping on the pavement, by reason of ice or any other material, then the plaintiff caunot recover." Inadequate as this point is to reach the merits of the case, we nevertheless think it should have been affirmed, in view of the undisputed facts. The defendant below is the owner of a dwelling house at the northeast corner of Spruce and Quince Streets, in the City of Philadelphia. In front of his house on Spruce The existence of the fence was the proximate, Street there was an iron railing about four feet and not the remote, cause of the injury. The high to protect an area-way, and perhaps the peculiar injury which the plaintiff suffered is front of the house. The railing was pointed at immediately traceable to the sharp picket the top, of the arrow-head pattern. The fence, and did not arise from any other cause. plaintiff, while walking along the pavement, Hoag v. Lake Shore & M. 8. R. Co. 85 Pa. on the afternoon of January 25, 1888, slipped 293; Pennsylvania R. Co. v. Kerr, 62 Pa. 353; by reason of the snow or ice or both, and in Fleming v. Beck, 48 Pa. 313; Beach v. Par-falling put out his hand, which came in contact meter, 23 Pa. 196; Wharton, Neg. p. 60, §§ 73, 97. Kelly stumbled or slipped; he might have recovered himself or he might have fallen to the pavement, but just at this point of the accident another independent agency intervened, and that agency alone, the sharp-pointed fence, inflicted the injury. South Side P. R. Co. v. Trich, 10 Cent. Rep. 867, 117 Pa. 390. The existence of such a fence was of itself a nuisance. It makes no difference that there are similar railings existing throughout the city. Wood, Nuis. § 267; Barnes v. Ward, 9 C. B. 393; Reinhard v. New York, 2 Daly, 213. Paxson, Ch. J., delivered the opinion of the court: While this is a plain case for a reversal, we are embarrassed by the defective manner in which it was presented. The assignments of error are very carelessly or unskillfully drawn, and do not prove the case. Indeed, if we were to stand upon mere technicalities, we would be compelled to affirm the judgment. The first assignment is to the refusal of the court to grant a nonsuit, which we have said, at least a hundred times, is not assignable as error. The second and last assignment alleges error in not affirming the defendant's second, third and fourth points. The manner of assigning these errors is wrong, as our rules require separate assignments in such cases. Only one point or subject should be embraced in an assignment of error. The defendant's first point is as follows: "If the jury believe that the accident occurred with one of the points of the railing, and was lacerated. For this injury he recovered a verdict of $732 in the court below. Had he not The defendant was not shown to have been negligent in any respect. The railing was a lawful structure. The defendant has a right to protect his area in that manner. done so, and someone had fallen therein and been injured, there would have been more reason in charging him with negligence. It is said, however, that it should have been constructed without points. This is not so clear. The points are useful in preventing mischievous boys from climbing over it. What reason bas the defendant to anticipate that the plaintiff would slip and fall precisely at that spot, and that, in doing so, he would reach out his hand and strike the railing? And if he had not such reason the railing cannot be regarded, under our cases, as the proximate cause of the injury. It will not do to say that the mere fact of the injury is evidence of negligence on the part of defendant. Had there been no railing here, the plaintiff might have fallen with his head against the sharp edge of the step and received a far worse injury. And, if he may recover in the one case, why not in the other? It will not do to hold that when a man slips upon an icy pavement, the owner of the pavement, or the fence, or the steps upon which he falls, must compensate him for any injury he may receive. Few men would be willing to own property under such conditions. This plaintiff has no case, and we will not dignify it. by a further discussion. Judgment reversed. ERTIORARI to the District Court of Hen- Robbins v. St. Paul, S. & T. F. R. Co. 22 Minn. CERTIORARI to the District Court of Hen-Rob ing the amount to which relator was entitled City Charter, chap. 10, §5; St. Paul, M. & M. The compensation should be a full equivalent for all damages sustained, and should be sufficient to reimburse the party whose land is taken for all additional expense caused by the improvement. Winona & St. P. R. Co. v. Denman, 10 Minn. 267, 280, 283. When highways and railways cross each other the law has made numerous requirements of the railroad companies. They must plank the crossings Stat. 1887, chap. 15, § 1, 2, p. 71); maintain cattle guards (Gen. Stat. 1878, chap. 34, SS 54, 55), and signs. Id. 53. Where the railway track is laid over existing hig ways, the burden of this extra expense just y rests upon the railway company. State v. St. Paul, M. & M. R. Co. 35 Minn. 131. By the same process of reasoning, where the municipality extends its highway across the railway, it should either assume the saine burden or reimburse the railway for the burden so imposed. Old Colony & F. R. R. Co. v. Plymouth Co. 14 Gray, 155, 162; Grand Rapids v. Grand Rapids & I. R. Co. 58 Mich. 641, 648; Grand Rapids v. Grand Rapids & 1. R. Co. 9 West. Rep. 573, 66 Mich. 42; Rorer, Railroads, p. 54; Massachu setts C. R. Co. v. Boston, C. & F. R. Co. 121 Mass. 126; State v. Bayonne (N. J.) 17 Atl. Rep. 971; structive to the former use. Miller v. Craig, 11 N. J. Eq. 175; Talbot v. Hudson, 16 Gray, 417: Peoria & P. U. R. Co. v. Peoria & F. R. Co. 105 Ill. 110; Wood v. Macon & B. R. Co. 68 Ga. 539; Chicago & N. W. R. Co. v. Chicago & E. R. Co. 112 Ill. 589; Mills, Ein. Dom. 143. The new use should be a different use, and the change should be for the benefit of the public; whether this change shall be such a benefit is for the Legislature to determine. Lake Shore & M. S. R. Co. v. Chicago & W. I. R. Co. 97 Ill. 506. | Mr. Robert D. Russell, City Atty., for respondent: Railroads entering cities are subject under the general authority given to towns and cities to bave roads and streets laid across their track. The franchise is taken subject to any inconvenience that may arise from such opening. Mills, Em. Dom. $45; Hannibal v. Hannibal & St. J. R. Co. 49 Mo. 480; Little Miami & C. & X. R. Co. v. Dayton, 23 Ohio St. 510; St. Paul, M. & M. R. Co. v. Minneapolis, 35 Minn. 141; St. Paul Union Depot Co. v. St. Paul, 30 Minn. 359. There are inconveniences and damages resulting from the exercise of the power of eminent domain either by a railroad corporation or an individual, which cannot be calculated and need not be considered. St. Paul, M. & M. R. Co. v. Minneapolis, 35 Minn. 141. There are also uncertain elements which can not enter in. For example, in Massachusetts C. R. Co. v. Boston, C. & F. R. Co. 121 Mass. 124, the court says that it is not entitled to damages for the risk of being ordered by county commissioners, when in their judgment the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing its railroad. Massachusetts C. R. Co. v. Boston, C. & F. R. Co. 121 Mass. 124; Proprietors of Locks & Canals v. Nashua & L. R. Corp. 10 Cush. 335, 392; Boston & W. R. Corp. v. Old Colony R. Corp. 12 Cush. 605, 611; Boston & W. R. Corp. v. Old Colony & F. R. R. Corp. 3 Allen, 142, 148: Old Colony & F. R. R. Co.v. Plymouth Co. 14 Gray, 155; State, Central R. Co. v. Bayonne, 17 Atl. Rep. 971. Dickinson, J., delivered the opinion of the court: The writ of certiorari has been resorted to right as all individuals or bodies corporate owning lands or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road. But it is not entitled to damages for the interruption and inconvenience occasioned to its business: nor for the increased liability to damages from accidents; nor for increased expense for ringing the bell; nor for the risk of being ordered by the county commissioners, when in their judgment the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing the railroad; nor for the expenses of maintaining a flagman, alleged to be necUn-essary to guard against the greater liability to accidents occasioned by the obstruction of the view along its railroad, at the crossing of a highway, by means of the abutments of the new railroad of the other corporation. Massachusetts C. R. Co. v. Boston C. R. Co. 121 Mass. 124; Lake Shore & M. S. R. Co. v. Cincinnati S. R. Co. 30 Ohio St. 604; Old Colony & F. R. R. Co. v. Plymouth Co. 14 Gray, 155; Re First Street, 58 Mich. 641. But see St. Louis, I. & C. R. Co. v. Springfield & N. W. R. Co. 96 Ill. 274; Mills, Em. Dom. 141. Under a general authority to condemn lands for streets, a street may be laid out across a railroad (St. Paul, M. & M. R. Co. v. Minneapolis, 35 Minn. 141), but not longitudinally on the railroad track. der the condemnation of a right to cross, nothing is acquired but a mere right of way, and the place of crossing will remain in common use of the parties for the exercise of their several franchises. The power to invade the privileges of a corporation in such a manner will not be inferred from a naked grant of the power to condemn. New Jersey S. R. Co. v. Long Branch Comrs. 39 N. J. L. 28. The condemnation of such a right of crossing is for the benefit of the public. Lake Shore & M. S. R. Co. v. Chicago & W. I. R. Co. supra; Chicago & W. I. R. Co. v. Illinois Cent. R. Co. 113 Ill. 156. In New Jersey a public road cannot be laid across a railroad within 500 feet of a public road. State v. Capner, 8 Cent. Rep. 625, 49 N. J. L. 555. The railroad corporation across whose road another railroad or highway is laid out has the like A general authority to lay out streets and alleys will not justify the laying out of a street across depot grounds when the easement of the railroad company and of the city cannot reasonably coexist. Milwaukee & St. P. R. Co. v. Faribault, 23 Minn. 167; Prospect Park & C. R. Co. v. Williamson, 91 N. Y. 552. for the purpose of bringing here for review the | over the relator's right of way entitles it to action of the district court, upon an appeal by compensation for the expense thus imposed; the relator to that court, in proceedings for lay - or, in other words, whether, in view of the fact ing out a street across the right of way of the that this statutory duty as respects this particurelator, the Railroad Company, within the cor- lar locality did not exist until this highway was porate limits of the City of Minneapolis. The laid out over the relator's road, and only by objection urged by the relator, and upon which reason of its having been so laid out, it should the action of the district court was based, was be considered that the obligation to provide and that the damages awarded by the commissioners maintain this plank crossing, these cattlewere inadequate. In fact no damages were guards and this sign-board constitutes a taking awarded. The taking in question was of a strip of the property of the Railroad Company, or sixty feet wide, for the purpose of a public deprives the Company of any right of property street, across the right of way of the relator. before belonging to it. At the request of the Railroad Company, the For the present we will confine our attention commissioners made, in connection with their to the cattle-guards and sign-boards. The ne report to the court, special findings to the effect cessity for these arises from the dangerous natthat it would cost: (1) for planking the rail-ure of the use of the railroad property; and it way crossing for the width of thirty-two feet, cannot now be questioned that, as a matter of $92.20; (2) for renewing and maintaining the mere police regulation, the State has the power same, $250; (2) for cattle-guards across the rail- to impose upon railroad companies the duty of road, $211.98; (4) for renewing and maintain- maintaining these safeguards. There can be ing the same, the interest at 6 per cent on $500; no doubt that, if no such requirement had ever (5) for signs at crossing, $4.19; (6) for renewal been embraced in our General Laws, or in the and maintenance of the same, $7. charters of railroad corporations, and if all our railroads had been constructed without such devices for lessening the dangers incident to railroad operations, it would be within the police power of the Legislature to require all railroad companies to provide such safe-guards at all existing railway crossings. The district court, deeming that the first, third and fifth of these items were allowable, made its order to the effect that the sum of those three items be awarded to the relator, and that in other respects the report of the commissioners be confirmed. It has been decided in this court that the police power of the State authorized such requirements as to the construction of cattle-guards and fences. Gillam v. Sioux City & St. P. R. Co. 26 Minn. 268; Winona & St. P. R. Co. v. Wal dron, 11 Minn. 515. The motion on the part of the respondent to quash this writ is denied. Granting that the court was not authorized to thus fix the amount recoverable by the relator, but, by the requirements of the city charter, it should have recommitted the matter to the same, or to other, commissioners, it is enough, to entitle the relator to this remedy, that the court did, upon the report of the commissioners, determine that the relator was entitled to receive the sum of the three items above referred to, $308.37, and nc niore, and made its order accordingly, confirm-ciple is involved in such requirements, than is ing the report of the cominissioners with this modification. This was a fina' determination of the matter, concluding the parties so long as that order should remain in force The relator contends that, upon the report of the commissioners, it was entitled to have awarded to it as compensation not only the sums therein specified as the cost of planking, cattle guards and sign-boards, but also the further sums named for the maintenance of the same. The City of Minneapolis, which is the real party in interest opposed to the relator, claims that none of these items should be al lowed. It should be conceded that the relator, in acquiring its right of way, whether by purchase directly, or by statutory proceedings under the power of eminent domain, acquired property rights which are protected from divestiture by the constitutional guaranty which declares that private property shall not be taken for public use without just compensation. State v. Chicago, M. & St. P. R. Co. 36 Minn. 402, and authorities hereafter cited. It is but an exercise of the everywhere recog nized police power of the State, regulating by reasonable and necessary means the use of instrumentalities otherwise attended with obvious and great danger to the public. No other prin involved in imposing a reasonable limitation upon the speed of railway trains at street crossings, and within the limits of thickly popu lated municipal districts; or in requiring a bell to be rung or whistle blown at highway crossings, or the stoppage of trains at railway crossings, and in other like provisions which are found in the statutes of every State. Such statutory regulation of the use of property does not constitute a taking of the property, or its destruction. It is only the exercise of the power of the State to reasonably control the use of property and the conduct of the individual, so far as may be necessary for the public safety; and to such control every citizen and owner of property must submit without compensation. if the Legislature, then, could constitutionally, and without providing for compensation, have imposed this duty in the case supposed, after the railroad had been constructed and put in operation, by enacting a law requiring railroad companies to construct cattle-guards across their right of way, and to erect sign-boards to Compensation must be allowed for whatever notify travelers of the existence of the railroad is to be regarded as a taking of the property of crossing, it will be found difficult to assign a the corporation for other uses. We are now reason in support of the relator's claim for comcalled upon to determine whether, in view of pensation in this case. Although this street the duty imposed by General Statutes upon rail was not in existence when the railroad was conroad companies to provide and maintain plank-structed, and hence the requirement of the ing, cattle guards, and sign-boards at all high- General Law did not impose the duty of put way crossings, the establishing of this highway | ting in cattle-guards and sign-boards at this |