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the Court of Common Pleas, No. 3, for reason of ice or any other material, then the Philadelphia County in favor of plaintiff in an plaintiff caunot recover.” Inadequate as this action to recover damages for personal injuries point is to reach the merits of the case, we alleged to bave resulted from defendant's deg. pevertheless think it should have been affirmed, ligence. Red-rsed.

in view of the undisputed facts. The case sufficiently appears in the opinion. The defendant below is the owner of a Mr. Andrew Zane for appellant.

dwelling bouse at the northeast corner of Messrs. J. Campbell Lancaster and Spruce and Quince Streets, in the City of Phil. William Henry Lex, for appellee:

adelphia. In front of bis house on Spruce Tbe 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, und per baps tbe peculiar injury which the plaintiff suffered is front of ihe house. The railing was pointed at immediately traceable to the sburp picket the top, of tbe arrow-bead pattern. The fence, and did not arise from any other cause. plaivuilt, wbile walking along the pavement,

Iloag 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. 253: 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, with one of the points of the railing, and was 97.

licerated. For this injury be recovered a ver. Kelly stumbled or slipped; be might have dict of $132 in the couit below. recovered bimself or be might have fallen to the Tbe defendant was not sbown to have been pavement, but just at this point of the accident negligent in any respect. The railing was a another iudependent agency intervened, and lawful structure. The defendant bas a right that agen y alone, the sharp-pointed fence, in to protect bis area in that manner. Had he not flicter the injury.

done so, and someone bad fallen therein and South Side P. R. Co. v. Trich, 10 Cent. Rep. been injured, there would have been more 867, 117 Pa. 390.

reason in charging bim with negligence. It is The existence of such a fence was of itself a said, however, that it shoull have been connuisarce. It makes no difference that there are structed without points. This is not so clear, similar railings existing throughout the city. The points are useful in preventing mis

Wood, Nuis. & 267; Barnes v. Ward, 9 C. B. chievous boys from climbing over it. What 393; Reinhard v. New York, 2 Daly, 243. reasop bas the defendant to aplicirate that the

plaintiff would slip and fall precisely at that Paxson, Ch. J., delivered the opinion of spot, and ibat, in doing so, he would reach out the court:

bis hand and strike ibe railing? And if be bad Wbile this is a plain case for a reversal, we not such reason the railing cannot be regardled, are embarrassed by the defective manner in under our cases, as the proximale cause of the which it was presented. The assignments of injury. It will not do to say that ibe mere fact error are very carelessly or unskillfully drawn, of the injury is evidence of negligence on the and do not prove the case. Indeed, if we were part of defendant. Had there been no railing to stand upon mere technicalities, we would be ibere, the plaintiff might bare fallen with his compelled to atlòrm the judgment. The first beall against the sharp edge of the step and reassignmeut is to the refusal of the court to grant ceived a far worse injury. And, if he may rea dönsuit, which we bave said, at least a bu- cover ip ibe one case, why not in the otber? dred times, is not assignable as error. The It will not do to bold that when a man slips second and last assignment alleges error in pot upon an icy pavement, the owner of the paveaffirming the defendant's second, tbird and ment, or the fence, or tbe steps upon which he fourib points. The manner of assigning these falls, must compensate bim for any injury be errors is wrong, as our rules require separate may receive. Few men would be willing to assignments in such cases. Only one point or own property under such copilitions. This subject should be embraced in an assignment plaintiff has no case, and we will not dignify it of error.

by a further discussion, Tbe defendant's first point is as follows: Judgment reversib “ If the jury believe that the accident occurred

MINNESOTA SUPREME COURT.

0.

STATE of Minnesota, ex rel. ST. PAUL, way across the track and right of way of a MINNEAPOLIS & MANITOBA R. CO., railroad company, the latter is not entitled to

compensation for providing and maintaining DISTRICT COURT OF HENNEPIN COUN. cattle-guards and sign-boards at the new crossing. TY, Respt.

2. It is entitled to compensation for

planking the road way where it crosses the (.... Minn.....)

railroad tracks, and for the maintenance of the *1. Upon the laying out of a public high. planking. *Head notes by DICKINSON, J.

(December 26, 1889.) NOTE.- Lrying out highway across railroad. purpose, may be taken by legislative authority for Land already taken by the exercise of eminent other public uses. When so taken, it is presumed domain for a public use, and actually used for that that the second use is not inconsistent with or do

See also 17 L. R. A. 530; 31 L. R. A. 183; 37 L. R. A. 189.

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YERTIORARI to the District Court of Hen- | Robbins v. St. Paul, 8. & T. F. R. Co. 22 Minn. ing the amount to wbich relator was entitled Mr. Robert D. Russell, City Atty., for as damages by reason of the laying of a public respondent: bighway across its tracks. Reversed.

Railroads entering cities are subject under The case sufficiently appears in the opinion. the general authority given to towns and cities Messrs. Benton & Roberts, for relator: to bave roads and streets laid across their track.

Railway companies are just as much the own. The franchise is taken subject to any inconers of their lands as private persons, and their venience that may arise froin such opening. lands cannot be appropriated without full com- Mills, Em. Dom. S 45; Hannibal v. Hannibal pensition.

& St. J. R. Co. 49 Mo. 480; Little Muumi & C. City Charter, chap. 10, $ 5; St. Paul, M. & M. & X. R. Co. v. Dayton, 23 Obio St. 510; St. R. Co. v. Minneapolis, 35 Minn, 141.

Paul, M. & M. R. Co. v. Minneapolis, 35 Minn, The compensation should be a full equiva- 141; St. Paul Union Depot Co. v. St. Paul, 30 lent for all damages sustained, and should be Minn. 359. sufficient to reimburse the party whose land is There are inconveniences and damages retaken for all additional expense caused by the sulting from the exercise of the power of emi. improvement.

Dent domain eitber by a railroad corporation or Winona & St. P. R. Co. v. Denman, 10 Mion. an individual, wbich cannot be calculated and 267, 280, 283.

need not be considered. When high ways and railways cross each other St. Paul, M. & M. R. Co. v. Minneapolis, 35 the law has made pumerous requirements of Minn. 141. the railroad companies. They must plank the There are also uncertain elements wbicb can. crossings Stat. 1887, chap. 15, $g 1, 2, p. 71); not enter in. For example, in Massachusetts maintain cattle guards (Gen. Stat. 1878, chap. C. R. Co. v. Boston, C. & F. R. Co. 121 Mass. 34, SS 54, 5.5), and signs.

124, the court says that it is not entitled to 11.53.

damages for the risk of being ordered by counWhere the railway track is laid over existing ty commissioners, when in their judgment the hig' ways, the burden of this extra expense safely and convenience of the public may rejusuy rests upon the railway company. quire it, to provide additional safeguards for

Stute v. St. Paul, M. & M. R. Co. 35 Midn. travelers crossing its railroad. 131.

Massachusetts C. R. Co, v. Boston, C. & F. R. By the same process of reasoning, where the Co. 121 Mass. 124; Proprietors of Locks & Camunicipality extends its bighway across the nals v. Nashua & L. R. Corp. 10 Cush. 335, 392; railway, it should either assume the same bur. Boston & W.R. Corp. v. Old Colony R. Corp. 12 den or reimburse the railway for the burden Cush. 605, 611; Boston &W. R. Corp. v. Old Col80 imposed.

ony & F. R. R. Corp. 3 Allen, 142, 146: Old ColOld Colony & F. R. R. Co, v. Plymouth co. 14 ony & F, R. R.Co.v. Plymouth Co. 14 Gray, 155; Gray, 155, 162; Grand Ripids v. Grand Rapids State, Central R. Co. v. Bayonne, 17 Aul. Rep. & I. R. C0.58 Mich. 641, 648; Grand Rapids v. 971. Grand Rapids 1. R. Co. 9 West. Rep. 573, 66 Mich. 42; Rorer, Railroads, p. 54; Massachu. Dickinson, J., delivered the opinion of the setts C. R. Co, v. Boston, C. & F. R. Co.121 Mass. court: 126; State v. Bayonne (N. J.) 17 All. Rep. 971; Tbe writ of certioi ari has been resorted to structive to the former uge. Miller v. Craig, 11 N. right as all individuals or bodies corporate owning J. Eq. 175; Tulbot v. Hudson, 16 Gray, 417; Peoria & lands or easements, to recover damages for the in. P. U.R. Co. v. Peoria & F. R. Co. 105 III. 110; Wood v. jury occasioned to its title or right in the land ooMacon & B. R. Co. 68 Ga. 539; Chicago & N. W.R. Co. cupied by its road. But it is not entitled to damages v. Chicago & E. R. Co. 112 1/1.589; Mills, Ein. Dom. 143. for the interruption and inconvenience occasioned

The new uso should be a different use, and the to its business; nor for the increased liability to change should be for the benefit of the public; damages from accidents; por forincreased expense whether this change shall be such a benefit is for for ringing the bell; nor for the risk of being orthe Legislature to determine. Lake Shore & M. S. dered by the county commissioners, when in their R. Co. v. Chicago & W. I. R. Co.97 111.506.

judgment the safety and convenience of the public Under a general authority to condemn lands for may require it, to provide additional safeguards streets, a street may be laid out across a railroad for travelers crossing the railroad; nor for the ex(St. Paul, M. & M. R. Co. v. Minneapolis, 35 Minn. 141), penses of maintaining a flagman, alleged to be necbut not longitudinally on the railroad track. Un-essary to guard against the greater liability to der the condemnation of a right to cross, bothing accidents occasioned by the obstruction of the view is acquired but a mere right of way, and the place along its railroad, at the crossing of a highway, by of crossing will remain in common use of the par- means of the abutments of the new railroad of the ties for the exercise of their several franchises. other corporation. Massachusetts C. R. Co. y. BosThe power to invade the privileges of a corpora- ton C. R. Co. 121 Mass. 124; Lake Shore & M. S. R. Co. tion in such a manner will not be inferred from a v. Cincinnati S. R. Co. 30 Ohio St. 604; Old Colony & naked grant of the power to condemn. New Jer- F. R. R. Co. v. Plymouth Co. 14 Gray, 155; Re First sey S. R. Co. v. Long Branch Comrs. 39 N.J. L. 28. Street, 63 Mich. 641. But see St. Louis, I. & C. R. Co.

The condemnation of such a right of crossing is v. Springfield & N. W. R, Co. 96 Ill. 274; Mills, Em.
for the benefit of the public. Lake Shore & M. S. Dom. 141.
R.Co. v. Chicago & W. I. R. Co.supra; Chicago & W. A general authority to lay out streets and alleys
I. R. Co. v. Illinois Cent. R. Co. 113 III. 156.

will not justify the laying out of a street across In New Jersey a public road cannot be laid across depot grounds when the easement of the railroad a railroad within 500 feet of a public road. State v. company and of the city cannot reasonably coCapner, 8 Cent. Rep. 625, 49 N.J. L. 555.

rxist. Milwaukee & St. P. R, Co. v. Faribault, 23 The railroad corporation across whose road an- Minn. 167; Prospect Park & C. R. Co. v. Williamson, other railroad or highway is laid out has the like I 91 N. Y. 552.

for the purpose of bringing bere 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 tbus imposed; the relator to that court, in proceedings forla; - or, in otber 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 particu. relator, the Railroad Company, within ihe cor- lar locality did not exist until ibis bighway 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 wbich 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 ibe 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. I be 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 io 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 sigo-boards. The ne. report to the court, special findings to tbe effect cessity for these arises from the dangerous pattbat it would cost: (1) for planking the rail. ure of the use of the railroad properiy; 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; (3) for cattle-guards across the rail- to impose upou railroad companies the duty of road, $211.99; (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 bad evil (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 The district court, deeming that the first, railroads bad been constructed without such tbird and fifth of these items were allowable, devices for lessening the dangers incident to made its order to the effect that the sum of railroad operations, it would be within the those ibree items be awarded to the relator, and police power of the Legislature to require all that in other respects the report of the com- railroad companies to provide such safe-guards missioners be confirmed.

at all existing railway crossings. The motion on the part of the respondent to It bas been decided in this court that the po quash this writ is denied. Granting that tbe lice power of the State authorized such requirecourt was not authorized to thus fix the amount ments as to the construction of catile-guards and recoverable by the relator, but, by tbe require fences. Gillar v. Sioux City & St. P. R. Co. ments of tbe city charter, it should bave recom- 26 Mion. 268; Winona & St. P. R. Co. v. Hal mitted tbe matter to the same, or to other, com dron, 11 Minn. 515. missioners, it is enough, to entitle the relator to It is but an exercise of the everywhere recog. ibis remedy, that the court did, upon the re. nized police power of the State, regulating by port of tbe commissioners, determine that the reasonable and necessary means the use of instru. relator was entitled to receive the sum of the mentalities otherwise attended with obvious three items above referred to, $309.37, and nc and great danger to the public. No other prindiore, and made its order accordingly, copfirmciple is involved in such requirements, tban is ing the report of the cominissioners witb this involved in imposing a reusopable limitation moditication. This was a tina' determination upon the speed of railway trains at street crossof the matter, concluding ibe parties so long as ings, and within the limits of thickly poputbat order should remain ir force

lated municipal districts; or in requiring a bell The relator coniends ibat, upon the report of to be rung or whistle blown at bigh way crossthe commissioners, it was entitled to bave ings, or the stoppage of trains at railway crossawarded to it as compensation not only the ings, and in other like provisions which are sums iberein specified as the cost of planking. found in the statutes of every State. Such caille guards and sign-boards, but also the fur statuiory regulation of tbe use of property does iber sums damed for the maintenance of the not constitute a taking of the property, or its same. The City of Minneapolis, which is the destruction. It is only tbe exercise of the power real party in interest opposed to the relator, of the State to reasonably contiol the use of claims tbot none of these items should be al properts and the conduct of the individual, so lowed. It should be conceded that ibe relator, far as may be pecessary for the public safety; in acquiring its right of way, whether by pur and to such control every citizen and owner of chase directly, or by statutory proceedings property must submit without compensation. under the power of eminent domain, acqmred if ibe Legislature, then, could constitutionally, property rights which are protected froin di and without providing for compensation, have vestiture by tbe constitutional guaranty which imposed this duty in the case supposed, after declares that private property sball pot be taken the railroad had been constructed and put in for public use withoui just compensation. State operation, by enacting a law requiring railroad v. Chicago, M. & St. P. R. 10. 36 Minn, 402, companies to construct catile-guards across and auiborities hereafter cited.

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 dillicult to assign a the corporation for otber uses. We are now reason in support of the relator's claim for com. called 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 con. road companies to provide and maintain plank. strucied, and hence the requirement of the ing, catile guards, and sign.boards at all high. General Law did not impose the duty of putway crossings, the establishing of this highway ting in cattle-guards and sign-boards at this place at that time, yet, as soon as the street was should increase the number of places where the laid out and opened, the already existing law ordinary police regulations would have 10 be became applicable, and required these things to complied with by the Railroad Company to its be done. "But this was an exercise of the police inconvenience and expense. On the contrary, power, as in the case before supposed. The it must bave been understood and contemplared, circumstances, with reference to which the especially in a new State rapidly advancing in general police regulation, embodied in the Gen- population and in tbe development of its reeral Law, had been framed, have now come to sources, where new towns were springing up, exist in respect to this particular locality, and and pew avenues for travel and traffic were bethe requirements of that law bave become op- coming necessary, that new streets and roads erative. There was no implied contract be- would be and must be laid out, and that many tween the State and this corporation when it of tbese would necessarily cross existing railbecame incorporated ibat it should only be re- road lines. We cannot resist the conclusion quired to put in and maintain these safeguards that, so far as concerns the matter now under at the crossings of streets then laid out, or at consideration, the charter of the relator was such as might be laid out prior to the construc'taken subject to the rigbt of the State to impose tion of the railroad. The fact that not until this duty whenever, by reason of the establishafter the construction of the railroad bas the ing of new bighways, it should become vecessituation at this place come to be such as to re- sary; and hence the relator is not entitled to quire any protection from the dangers incident compensation for obedience to this requireto railroad operation bas very little bearing ment. Lake Shore & M. 8. R. Co. v. Cincinupon the case, if, as we think is self evident, nati, S. & C. R. Co. 30 Ohio St. 604; Chicago the statutory requirement to which the corpo- & A. R. Co. v. Joliet, L. & A. R. Co. 105 III.388, ration is subjected is merely a reasonable police | 400, 404; Hannibal v. Hannibal & St. J. R. regulation of its business, and not a takiug or Co. 49 Mo. 480; Brid, eport v. New York & N. destruction of its property. When the Railroad H. R. Co. 36 Conn. 255. Company accepted its charter, it received its We have not failed to consider the decisions franchises subject to the authority and power in O'd Colony & F. R. R. Co v. Plymouth Co. of the State, to impose such reasonable regula- 14 Gray, 155; Massachusetts C. R. Co. v. Boston, tions concerning the use, in matters affecting C. & F. R. Co. 121 Mass. 124; Chicago & G. the common safety, of iis dangerous enginery, T. R. Co. v. Hough, 61 Mich. 507, and State and not merely subject to the then existing v. Bayonne (N. J.) 17 Atl. Rep. 971,-toregulations as applicable to tben existing con- which we have before alluded as supporting ditions; and whether the obligation now in the claim of the relator. It will be observed question bad been imposed at this time by di. that in Massachusetis, wbile compensation is rect Act of the Legislature, or, as is the case, allowed to the railroad company for planking arises from the laying out of a new bighway, cattle-guards and sign-boards, it is depied for to wbich the previously existing law becomes the expense of causing a bell to be rung at a applicabile, can make no difference.

new highway crossing; and that compensation The fallacy involved in the claim of the re- is also refused for the expense of a flagman, lator, and, as we think, in some decisions by rendered necessary at a street crussing by reawhich its claim is supported, arises from a son of the obstructions caused by a new railfailure to distinguish between rights of prop-road crossing, by an overhead bridge, a preerty which confessedly are protecied under the viously established railroad. The reasons which Constitution from being devested or appropri- may be sufficient to exclude the right of comated to other purposes without compensation, pensation for the necessary expense, if it be an and the very different matter concerning the additional expense, of ringing a bell or keeping manner in wbich the owner may use bis prop- a flugman at a crossing, would seem to be aperty so as not to unnecessarily endanger the plicable also as respects cattle-guards and signpublic. The claim of the relator involves an boards. We discover no distinction in princiassumption that when the Railroad con-tructed ple. its line of road, conforming to the requirements As to the planking between the rails, wbere of the law as to all then existing bighway cross the street crosses the railroad, it seems to us ings, it had a constitutional rigbt, by virtue of that a distinction exists wbich sbould affect the its priority, to always afterwards operate its conclusion. The planking las little, if any. road unembarrassed, by being required to obbing, to do with the operation or safety of serve like precautions with respect to bighways railway trains. The railway baving been that mighi be thereafter laid out across the properly and lawfully constructed, the plankrailroad, except upon the condition that it ing becomes a proper, and perhaps reasonably should receive compensation, not merely for necessary, incident 1o the construction of the whatever of its required properly might be highway across the existing railroad. Indetaken for the other use, but also for the expense pendent of statutory regulation of tbe subject, and burilen of conforming its own conduct to it would have been the appropriate duty of the the newly-existing conditions,-of conforming public au borities opening such a bighway to to a general police regulation of the State, not make this necessary provision for the conven. before applicable. There was no such exclu ience of travelers on the highwav, thus oversive or superior right acquired by priority of coming an obstruction to travel which lawfully charter, or of the coustruction of this railroad existed upon the relator's property, and wbich highway. It cannot be supposed that, when could not be removed. This might be deemed its franchises were granted to this relator to a part of the work of constructing the bighconstruct and operate this railroad, it was con way, and making it tit for travel. But while templated, eitbor by it or by the State, that no the Legislature, as may bave been expedient, more public highways sbould be laid out which in view of the peculiar uses to wbicb the rail way track is subjected, has required the Rail- considered as a separate community or people, road Company, which necessarily has the gen. capable of managing its own atfairs, including the eral control of its owo track, in all cases to pro

domestic relations, and those persons belonging vide and maintain the planking, that does not de

to the tribe who are recognized by the custom and termine the question of compensation.

If, as

Jaws of the tribe as married persons must be so

treated by the courts, and the children of such has been suggested, the planking is to be deemed

marriages cannot be regarded as illegitimate. a part of the new highway, the Railroad Company cannot be required to construct and main

(January 17, 1890.) iain it over its own right of way without com. pensation. Illinois C. R. Co. v. Bloomington, APPEAL by defendants from an order of the

District Court for McLeod County grant. 76 III. 447; Erie v. Erie Canal Co. 59 Pa. 174.

As respects this subject, we see no reason ing plaintiffs' motion for a new trial and selling why the decisions above cited as supporting aside the findings of the referee in favor of de the relator's contention should not be followed. fendants in an action to determine an adverse We therefore think that the Railroad Company

claim to certain real estate. Reversed. was entitled to compensation for the expense

The land in controversy was granted by the of providing, and of maintaining, the planking. United States under a scrip location male on There can be no distinction in this respect be behalf of one Henry F. Ortley, Jr., who died tween the original construction and the subse at the age of about eight years.

The defendints claim under a deed from quent maintenance, and so the authorities above cited allirm. The law requires the Railroad the child's father executed after the death of the Company to maintain the planking, and it must child, Plaintiffs claim under a deed from the be assumed now, when damages are being as

child's mother executed subsequently to the exsessed once for all, that tbis requirement of the ecution of the father's deed. law will remain unchan red.

Further facts appear io the opinion. The charter of the City of Minneapolis by G. Burke, for appellants:

Messrs. Eugene M. Wilson and Francis wbich this proceeding is regulated provides that“ the award of assessment of such com

Direct proof of a marriage is not essential, missioners shall be final unless set aside by the but may be established by circumstances from court for good cause shown. In case such re

which marriage may be inferred. port is set aside, the court may, in its discre

Minn. Stat. 1878, p. 806. tion, recommit the same to the same commis

Every reasonable presumption of law is to sioders, or appoint a new board, as it shall be allowed in lavor of a valid marriage and ledeem besi."

gitimacy as against concubinage and illegitiWe think that the report of the commis.macy. sioners in this case would not justify the court

State v. Worthingham, 23 Minn. 523; Fox v. in determining the question of the amount of Burke, 31 Minn. 319.

Continuous cohabitation as husband and damages upon the bare statement of the cost of putting down and of maintaining the plank- wife establishes marriage relation without any ing. Whetber there are any other considera.

actual ceremony. tions which could bear upon this matter, wo

Peet v. Peet, 52 Mich. 464. do not know. This report should not be

If the father and mother of Henry F. Ortley, treated like the special verdict of a jury upon tribe in entering into the marriage relation, and

Jr., complied with all the customs of their which juigment may be rendered, for the law contemplates an award by the commissioners. afterwards lived together as husband and wife,

The order of the court, dated on the 13th day their actions consti uted a marriage legal and of October, 1888, determining the amount which binding and sufficient to justify the legitimacy the relator is entilled to as compensation for this of Henry F. Ortley, Jr., and to justify the beir. taking, is reversed, and the cause remanded, sbip of the father in bis property. that the matter in controversy may be, by the

Smith v. Brown, 8 Kan. 608; Watts v. Ovens, proper order of the district couit, committed 62 Wis. 512; Dyer v. Brannock, 66 Mo. 419 again to commissioners, as prescribed by the Morgan v. McGhee, 6 Humph. 13; Wall v. WilStatute.

lia'nson, 8 Ala. 51, 52; Wall v. Williams, 11 Ala. 826; Cheseldi ne v. Brewer, 1 Har. & McH.

152; Johnson V. Johnson, 30 Mo. 74; Sutton v. Esther EARL et al., Respts.,

Warren, 10 Met. 451; Senser v. Bower, 1 Penr.

& W. 450, 452; Kobogum v. Jackson Iron Co. Eugene M. WILSON et al., Appts.

76 Mich. 498.

Messrs. R. H. McClelland and H. J. (....Minn.....)

Peck, for respondents:

A custom of cobabitation between parties •An Indian tribe within the State, recognized will not constitute marriage under the law, so

as such by the United States government, is to be that the property rights growing out of legiti•Head note by VANDERBURGH, J.

mate marriage relations will apply.

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0.

NOTE., Marriage; valulity governed by the law of v. Forbes, 31 Ala. 9; Peake v. Yeldell, 17 Ala. 636; place, where entered into.

Lafitte v. Lawton, 25 Ga. 305; McLeod v. Board, 30 It is a principle of universal law that marriages Tex. 238; Wilcox v. Wilcox, 46 Hun, 32, 10 N. Y.S. R. valid by the law governing both parties when made 746. must be treated as valid everywhere. Besse v. Pel- Its validity is not affected by the subsequent relochoux, 73 III. 285; Hicks v. Skinner, 71 N. C. 539; moval of the parties with their property into anScheferling v. Huffinan, 4 Ohio St. 241.

other State. De Lane v. Moore, 55 U. S. 14 How. A marriage contract as to its effect is governed 253 14 L. ed. 409); O'Neill v. Henderson, 15 Ark.235; hy the law of the place where it is made. Walker Smith v. Chapell, 31 Conn. 589; Young v. Templeton,

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