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N. A. 413; Raleigh v. Wicker, 74 N. C. 220;| R. Co. 29 Hun, 1; Matter of Nero York, L. & W. Page v. Chicago, M. & St. P. Ř. Co. 70 III. 324; R. Co. 49 Hun, 539; Henderson v. New York Cent. Depuis v. Chicago & N. W. R. Co. 115 III. 100; R. Co. 78 N. Y. 423. Chicago & E. R. Co. v. Blake, 116 III. 163; Mc- The first element in the award represents the Reynolds v. Burlington & 0. R. R. Co. 106 III. compensation for land which the railroad takes, 152; Oregon Cent. R. Co. v. Wait, 3 Or. 91; Cleve- and to which it acquires title. The second eleland & P. R. Co. v. Ball, 5 Ohio St. 568; len ment represents damages which are the result derson v. Nero York Cent. R. Co. 78 N. Y. 423; or consequences of the construction of the road Watter of Utica, C. & 8. V. R. Co. 56 Barb. 456; upon property not taken, and which the owner Jatter of New York Cent. & H. R. R. Co. 15 still retains. Such damages are wholly conseHup, 63; Matter of New York, L. & W. R. Co. quential, and to ascertain them necessarily in29 Hun, 1; Matter of New York, L. & W. R. volves an inquiry into the effect of the road Co. 49 Hun, 539.

upon the property, and a consideration of all If the General Railroad Act does not probibit the advantages and disadvantages resulting and the consideration of special benefits in ascer to result therefrom. The rule is well stated in taiving the amount, if any, of consequential Lewis, on Eminent Domain, $ 471, as follows: damages, it certainly did not prohibit the jury, "When part of a tract is taken, just compensain the case at bar, from taking into account tion would therefore consist of the value of the special benefits in forming their verdict. part taken, and damages to the remainder, less

Lahr v. Metropolitan Elevated R. Co. 104 N. any special benefits to such remainder by rea-
Y. 295; Fletcher v. Auburn & S. R. Co. 25 son of the taking and use of the part for the
Wend. 462; Williams v. New York Cent. R. Co. purpose proposed."
16 N. Y. 97; Drake v. Hudson River R. Co. 7 In this rule, thus settled in this State, and
Barb, 508.

which controis all awards for taking of land Messrs. James M. Smith and Inglis under the General Railroad Act, is to be found Stuart, for respondent:

the true application of the statutory provision Story v. New York Elevated R. CO. 90 N. Y. which forbids deductions and allowances to be 122, and Lahr v. Metropolitan Elevated R. Co. made by commissioners for any real or sup104 N. Y. 263, have settled the law as to the posed benefits which the parties interested may right of the plaintiff to recover damages for derive from the construction of the railroad. the injury done to his property.

Whatever land is taken must be paid for by See also. Ireland v. Metropolitan Elevated R. the railroad company at its full market val. Co. 20 Jones & S. 455; McGean v. Manhattan ue, and from such value no deduction can R. Co, 117 N. Y. 219.

be made, although the remainder of the land

owners' property may be largely enhanced in Brown, J., delivered the opinion of the value as a result of the operation of the railcourt:

road. But in considering the question of damThe basis of the court's refusal to charge as ages to the remainder of the land not taken, requested is to be found in the Rapid Transit the commissioner must consider the effect of Act, chap. 606 (Laws 1875, $ 20), and in the the road upon the whole of that remainder, its General Railroad Law (chap. 40, Laws 1850, advantages and disadvantages, beneiits and in$ 16); which by $ 3, chap. 885, Laws of 1872, juries, and if the result is beneficial there is no was made applicable to the Gilbert Elevated damage, and nothing can be awarded. The Railroad Company, to whose rights the Metro- rule established under the General Railroad politan Railway Company succeeded.

Law must govern and control awards made These laws provide that commissioners of under the Rapid Transit Act. The last-named appraisal shall not, in determining the amount Act confers upon corporations formed thereun. of compensation to be made to parties owning der the power to acquire property for railroad or interested in property acquired for the con- purposes, and the statutory proceedings prestruction and operation of railways formed scribed are substantially the same as those un. thereunder, "make any allowance or deduction der the General R: ilroad Act, and no reason is on account of any real or supposed benefits apparent why the same rule should not apply which the party in interest may derive from to proceedings under both Acts. the construction of the proposed railway.” Wbile this court has decided that owners of What is the true meaning of this provision and land abutting upon public streets have easehow far it is applicable to a case of the charac. ments therein for ingress and egress to and ter we are considering, are the questions we from their premises, and for the free circulaare to determine upon this appeal. The prin. tion of light and air to their property, which ciple upon wbich compensation is to be made easements are interests in real es ate, and conto the owner of lands taken by proceedings stitute property within the meaning of that term, under the General Railroad Law has been fre as used in the Constitution, it is impossible to quectly considered by the courts of this State, consider such easements as separate and distinct and the rule is now established that such own from the land to which they are appurtenant. er is to receive, first, the full value of the land They cannot be severed from the land abutting taken, and, second, where a part only of land on the street, and the effect of the construction is taken a fair and adequate compensation for of a railroad in the street is not to transfer them all injury to the residue sustained, or to be sus- to the company, but to destroy or impair them. tained, by the construction and operation of the right, therefore, of the property owner to the railroad. Troy & B. R. Co. v. Lee, 13 Barb. compensation is not the value of the easemenis, 169; Matter of Utica, C. & S. V.R. Co. 56 Barb. in the street separate and distinct from bis abut456; Matter of Prospect Park & C. I. R. Co. 13 ting property, but the damages his property Hun, 345; Matter of New York Cent. & I. R. R. sustains as a result or consequence of the loss Co. 15 Hun, 63; Matter of New York, L. & W. I of those easements,

It follows that in making an award to a party court holding "that it was not the damages to situated as i he plaintiff was with reference to a strip lying within a limited number of feet the defendant's railroad, there could be no com- of the road-bed that i he jury were required to pensation for proper y taken beyond a nominal assess, but the damages, if any, to the entire sum, and that his right to recover rested entire tract. That the effect of the road upon a part ly upon proof of consequential damages. An of the tract was not to be considered, but upon estimate of such damages, as I bave already the wbole tract. “This," the court said, “is not shown, involves an inquiry into the effect of deducting benefits from damages, but it is asthe railroad upon the whole properly and a con. certaining whelber there be damages or not." sideration of all its advantages and disadvan-To the same effect is the case of Oregon R. Co. tages. If the rental value of the wbole build- v. Wait, 3 Or. 91. ing was shown to bave been diminished, there The Sta utes we have considered are founded was injury for wbich plaintiff was entitled to upon the provision of the Constitution forbidrecover, but if the diminished rental value of ding the taking of private property for public the upper floors was equaled or overcome by purposes without just compensation. Their increased rental value in the store, then there purpose was to do exact and equal justice was no injury and do basis for a recovery of among all citizens of the State and to award substantial damages against the defendants. to everyone full and fair compensation for all While the precise question presented by the property taken for public use or injured by the exception in this case has not beretofore been erection of public improvements. The rule decided in this court it is covered by the de-established by the courts and prevailing under cisions under the General Railroad Law which the General Railroad Law accomplished in a have been cited, and the rule established by broad and liberal manner that object. The those decisions has recently been applied in the meaning of the expression “just compensation" Secord Judicial Department to the case of an has not been limited to the value of properly elevated railroad (Re Brooklyn Elerated R. Co. actually taken, but has been beld to include all v. Phillips, 18 N. Y. Supp. 78). That case was consequential injuries which the land owner an appeal ty property owners from an award may sustain by reason of depreciation of value of nominal damages in proceedings by an ele- in ihe residue of the property by reason of the vated railroad company to condemn an ease- taking of a part and the construction thereon ment in a street. The court said: “The inqui- of the public improvement. This rule affords ry necessarily takes in the advantages from the full indemnity to the property owner, and railroad wben the extent of the injury is to be leaves bim in as good condition as be was bebased upon the diminution of value by reason fore the construction of the road. And this is of its construction. The basis of appraisement all that any citizen has a right to ask. If the musi they be the difference in value between rule wbich the court held in this case is to gov. the abutting bouse before the construction of ern awards made against railroad companies the railroad ard afterwards."

when structures are erected in the public streets In Drucker v. Manhattan R. Co. 106 N. Y. under public authority, when po land is taken 157, this court held admissible evidence offered and the compensation is confined to consequen. by the propeity owner that trade and business tial injuries sustained by abutting property, the had failen off in the street since the erection of companies will be compelled in many instances the railroad, and that property was for that lo pay where no injury bas been done, and reason diminished in value. If such evidence parties will recover who have sustained no loss. is competent to sustain a recovery it is dillicult Such a rule bas not yet received judicial sancto see why it is not competent for the railroad tion. company to show that the effect of the road The increase of value resulting from the has been to cause an increase in business and growth of public improvements, the construcbave an enhancement of the value in abutting tion of railroads, and improved means of tran. property. The question whether in awarding sit accrues to the public benefit generally, and damages flowing from the construction of a the general appreciation of property consequent railroad, its injurious effect upon a part of a upon such improvements belongs to the propresidue of a tract of land could alone be con- erty owner, and the Railroad Company is not sidered bas been expressly decided in Illinois.entitled to the consideration of that element in Page v. Chicago M. & St. P. R. Co. 70 11. 324. the ascertainment of the compensation it must

That case was an assessment of damages for pay to the abutting proprietor. But the special a right of way across a tract of forty acres of and peculiar advantages which properly reland. Compensation was awarded for the part ceives from the construction and operation of taken, but the evidence showing that the resi- the road, and the location of the stations, are due of the tract would be enhanced in value elements which enter largely into the inquiry by the construction and operation of the road, whether there is injury or not, and the jury no consequential damages were allowed to the must consider them and give to them due land owler.

The owner claimed that a strip weight in their verdict. Between this rule and of land next to the railroad was lessened in the statutory provision quoted there is no convalue by he proximity of he road. The conflict. Tbe property owner will in every instirutional provision in Illinois relating to the stance receive the just compensation" which taking of property for public use is the same the Constitution secures to bim for his proper. as our own, and ihe Statute under which the ty which is taken or injured by the Railroad, assessment was made provided that benefits and the corporation will be compelled to pay should not be set off against or deducted from whenever damages result from the erection of compensation.

its structures and the construction of the The award was sustained on appeal, the road.

Our conclusion is that the defendant was en- The judgment should be rererred and a new titled 10 the instruction requested, and the ex- trial granted, with costs to abide the event. ception to its refusal was well taken,

All concur, Follett, Cic. J., in resulte

NEW YORK COURT OF APPEALS.

John T. BAXTER, Respt.,

There is a legal right in every contracting 0.

party to hold himself absolved from his obligaBROOKLYN LIFE INSURANCE CO., Appt. tion when the other contracting party fails to

keep some condition precedent which he is (....N. Y.....)

bound to perform.

Higgins v. Delarcare L. & W. R. CO. 60 N. Y. 1. Failure of a person insured to pay a 553; Kimberly v. Patchin, 19 N. Y. 330; Russell premium becoming due before bis death, under v. Carrington, 42 N. Y. 118. a contract which requires proof of death “during Messrs. Cary & Rumsey, for respondent: the life of the policy,” and renders the policy Defendant could not declare this policy forvoid upon failure to pay a premium wben due, feited by reason of the ponpayment of premium where no notice that the premium is due has wibout showing or attempting to show that it been sent bim, does not destroy the validity of bad given the police required by statute. the policy under the Act of 1877, cbap. 321, which requires that if a premium becomes due notice

Re Booth, 11 Abb. N. C. 145; Carter v. must be given, and thirty days allowed in which Brooklyn L. Ins. Co. 12 Cent. Rep. 756, 110 N. to pay, before the policy can be forfeited for non

Y. 15. payment of premium.

Independent of the Statute referred to, the 2. Before an insurance company can burden is upon the defendant of proving a for

question the validity of a policy issued feilure of the policy. since the Act of 1877, because of the nonpayment

Van Valkenburgh v. Am. Popular L. Ins. Co. of a premium, it must show that it has complied | 70 N. Y. 605. with the terms of the Statute by giving notice to The payment of the quarterly premium fallinsured stating that the premium has become due, ing due August 24, 1881, was à condition subits amount and the place where and person to sequent, and he who seeks to avoid a contract wbom it is payable.

for failure to perform a condition subsequent 8. Payment or tender of a premium must make proof that the condition has not

becoming due before the death of insured is not been complied with. necessary before bringing action on the policy See Van Valkenburgh v. Am. Popular L. Ins. which wns continued in force under the Act of Co. 9 Hun, 583, 70 N. Y. 605; Jones v. Brooklyn 1877, by reason of the company's failure to give L. Ins. Co 61 N. Y. 79; Sands v. New York L. notice after the premium was due.

Ins. Co. 50 N. Y. 626. (Andrews, Earl and Gray, JJ., dissent.)

O'Brien, J., delivered the opinion of the (February 25, 1890.)

court:

The plaintiff is the assignee of a policy of PPEAL by defendant from a judgment of insurance upon the life of one Joel J. Mattison Fifth Department, overruling its motion for whereby in consideration of a quarter-annual new trial on exceptions taken at the Cattarau- premium of $20.97 to be paid upon delivery of gus Circuit, and ordered to be heard at General ile policy and thereafter on the 24th day of Term in the first instance, and directing judg August, November, February and May in each ment upon the verdict after trial and verdict year the defendant insured Mattison’s life in the foi plaintiff in an action upon a policy of life sum of $3,000 payable to his wife at the oflice insurance. Affirmed.

of the Company, in the City of New York, The facts suficiently appear in the opinion. within sixty days after receipt of satisfactory

Mr. Nathaniel C. Moak, with Mr. Wil proof of death during the life of the policy. liam H. Ford, for appellant:

The policy was made subject to numerous conWhere there bas been no forfeiture by potice ditions, none of which are important for the under the Statute, if the insured seeks the aid purposes of this appeal except the condition that of the court he must offer to pay the premiums it should be void upon failure to pay the preor a legal excuse for nonpayment, or at least mium when due. The complaint alleged the plead his willingness to pay,

delivery of this contract to the insulei, bis Houell v. knickerbocker L. Ins. Co. 44 N.Y. death on the 7th day of September, 1884, the 276; Bogardu8 v. New York L. Ins. Co. 2 Cent.presentation to the defendant of satisfactory Rep. 150, 101 N. Y. 328.

proofs of death according to the terms of the The payment of the premium during the life policy, the refusal of the defendant to pay, and of the insured remains a condition precedent, i'at the insured had made the payments of statute or no statute, and by every rule of plead-premium according to bis agreement with the ings such payment must be pleaded and proved. defendant. No issue was made by the defend

Bacon v. Munn, 2 Wend. 399; Crandall v. ant upon any of the allegations of the com. Clark, 7 Barb. 169; People's Bank v. Mitchell, plaint, except the averment that the insured 73 N. Y. 406; Bogardus v. New York L. Ins. had paid the premiums according to the terms Co. supra; Oakley v. Morton, 11 N. Y. 25; of the policy, which it denied, and specially alHowell v. Knickerbocker L. Ins. Co. supra, leged that the premium which became due on

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the 24th day of August, 1884, had not been any condition of the policy to the contrary notpaid. On the trial the plaintiff put in evidence withstanding. There was no proof given at the policy and a written assignment by the wife the trial by either party to show whether this of the insured to bim of tbe claim or cause of notice was served or not. It is obvious that action, and rested. The defendant moved for a tbis Statute when imputed into the contract nonsuit on the ground that the insured bad modified its conditions in very material refailed to comply with the terms and conditions spects. The duration and validity of the polof the policy by neglecting to pay the quarterly icy is not then dependent upon payment of the premium stipulated to be paid by the terms of premium on the day named therein, but upon the policy on the 24th day of August prior to payment witbin thirty days after the notice has the death of the insured. This motion was de- been given. The condition upon which the pied, and the defendant excepted, and the only policy can be forfeited, or in any way imquestion in the case is thus presented. The paired, as a subsisting contract of insurance, is death of the insured occurred within less than a failure on the part of the insured to pay the four months from the time that the policy was premium within thirty days after notice. The delivered. The production of the policy at the complaint alleges that the insured, up to the trial proved the payment of the first quarterly time of his death, made the payments on the premium. But it was essential to the mainte- policy as agreed with the defendant. That he dance of the plaintiff's cause of action to show actually paid the premium pecessary to keep that the policy was a valid subsisting contract the policy in life till the 24th of August, prior at the time of the death of the insured. The to his death, was established and admitted. It policy itself contained the stipulation that it was not necessary to prove that be also paid was a contract made and to be executed in the the premium on the 24th of August because State of New York, and construed only accord the contract was not impaired by a failure to ing to the laws of that State. Aside from this pay on that day, but by a failure to pay withprovision of the policy, and under general rules in thirty days after the defendant had served of law, this contract was subject to the terms the statutory notice. and conditions expressed in chapter 341 of the The Statute prescribes this notice as a necesLaws of 1876, as amended by chapter 321 of sary condition of forfeiture, and unless it was the Laws of 1877. This Statute was a part of served the insured was not in default, because the contract in question, and governed the payment within thirty days after notice is to be rights and obligations of the parties in precisely taken as a full compliance with the conditions the same way and to the same extent as if all its as to payment of premium. In the absence of terms and conditions had been actually incorpo. of proof on the part of the defendant as to the rated into the policy.

service of the notice, this allegation of the comThe promise of the defendant was to pay to plaint was sufficiently established within the the beneficiary named the sum of $3,000 upon meaning of the contract as evidenced by the the death of the insured, in case that event oc- policy and the Statute when read together. curred during the continuance of the contract. Before the defendant could raise any question It therefore becomes important to inquire in regard to the ponpayment of the August whether the policy in question was in force at premium it was necessary for it to show that it the time of the death of the insured, on the 7th had complied with the Statute by serving the day of September, 1884. If upon that day it notice, as this step was essential in order to put was a valid subsisting contract, notwithstand the insured in default or to raise any point ing the failure to pay the premium due on the based on his omission to pay the last quarterly preceding 24th day of August, then the very premium. It must therefore be assumed, in contingency upon which the defendant agreed the absence of such notice, that the policy in to pay the amount of insurance bas_bappened. question was in full force at the death of the

The Statute above referred to (Laws 1877, insured; and even if the payment of the last chap. 321) declares that no life insurance com- premium was omitiei, the obligation and pany doing business in this State shall bave promise of the defendant to pay upon death, power to declare forfeited or lapsed any policy during the lise of the policy, was unimpaired. thereafter issued by reason of nonpayment of The purpose of the Statute referred to was to premium, unless, after it becomes due, a notice establish a rule which would preserve to the stating the amount of such premium, the place assured the benefit of premiums paid and to wbere it should be paid, and the person to prevent the lapse of policies of life insurance whom the same is payable, shall be duly ad- without ample potice and an opportunity to dressed and mailed to the person whose life is save them from forfeiture by payment of preassured, at his last-known postoffice address, miums due within the specified time, and at postage paid by the company; and further stat- the same time secure to the company, in case ing that unless the premium then due shall be it is obliged to pay, the full amount of the prepaid to the company or its agent within thirty miums which the policy calls for. days after the mailing of such notice, the policy When the provisions of this Statute are and all payments thereon will become forfeited adopted in a contract of insurance for the purand void. It is also provided by the same sec- pose of modifying the forfeiture clause and the tion that in case such payment is made within other strict conditions contained therein, then the thirty days limited therefor, it shall be this clause and these conditions shall be so condeemed å full compliance with the require strued as to give to the assured the full benefit ments of the policy in respect to the payment contemplated, without altering any other proof premium, and it declares that no such policy vision of the policy, if this can be done with. shall in any case be forfeited until the expira- out violating any rule of law. When the tion of thirty days after the mailing of such scope and purpose of the law as deduced from notice. These provisions are to have full effect, the decisions of this court and the courts of

other States involving a construction of the and that the policy should continue in force, same, or similar Statutes is considered, no good notwithstanding such omission, until notice by reason is perceived for interfering with the re- the Company and default of the insured for sult in this case in the courts below. Phelan tbirty days thereafter to make payment. v. Northwestern Mut. L. Ins. Co. 113 N. Y. 147; The construction placed on the Statute in the Carter v. Brooklyn L. Ins. Co. 110 N. Y. 15, 12 prevailing opinion, that by its operation the Cent. Rep. 756: Carter v. John Hancock L. Ins. premium does not become due until after notice Co. 127 Mass. 153; Boyd v. Cedar Rapids Ins. and expiration of the thirty days, and that Co. 70 Iowa, 325.

meanwhile an action may be brought and a reIt was not necessary, in order to enable the covery bad on the policy, although the preplaintiff to recover the sum insured, to pay, or mium has not been paid or tendered, is, I think, tender before action brought, the premium untenable. The premium is due from the that was payable on the 24th day of August time it becomes due according to the terms of prior to the death of the insured. If the policy the policy, and remains due at all times therewas in full force when the assured died, as we after until actually paid, but under the Statute think it was, that event fixed the liability and | default in making payment at the pay-day obligation of the defendant, potwithstanding nevertheless leaves the contract of the Comthe omission to make that payment. Nothing pany subsisting, and an action may therefore remained to be done by the widow of the as- be maintained upon it in case of the death of sured or her assignee except to present to the the insured, unless it is shown that the notice defendant the proofs of death required by the has been given and that tbe premium was not policy. The death of the assured terminated paid within thirty days thereafter. ihe contract. The defendant's promise to pay, But it is a condition precedent to the main. if it was not discharged, had matured, and the tenance of such action, that the plaintiff must persons entitled to the benefits of the policy before suit brought have paid or tendered the had only to establish the fact of death within premium unpaid. The plaintiff under the the time and in the manner prescribed therein. Statute of 1877 is not required, as before, to The contract was kept in life by force of the show that it was paid or tendered on the day Statute till the contingency upon which pay- fixed in the policy, but he must aver and prove ment depended occurred. The death of the that payment was made at some time before assured created the relation of debtor and cred- the action was commenced, or else no right of itor between the defendant and his widow, action has accrued. This is in accordance with and the unpaid premium, with interest from the well-settled rule that in mutual promises the date wben payable, was a claim to be de. the plaintiff, seeking to charge the defendant, ducted by the defendant from the sum due must aver and prove performance on his part upon the policy. This puts the defendant in of that which was the consideration of the deprecisely the same position in wbich it would fendant's promise, and this as well where the bave been if the premium had been duly paid. promise of the plaintiff was to be performed Carter v. John Hancock L. Ins. Co. supra. before the day fixed for performance by the

It was conceded upon the argument in this defendant, as where the performance of recase that the unpaid premium, and interest spective promises were concurrent and dependthereon, was deducted from the verdict, and ent. The construction I have given to the therefore no injustice has been done.

Statute of 1877 fully accomplishes its purpose, The judgment should be affirmed.

while relieving it of the anomaly that a conRuger, Ch. J., Finch and Peckham, tract to pay an insurance on condition of the

payment of the premiums may be enforced al

though the party claiming performance has Andrews, J., dissenting:

never paid or offered to pay.wbat was stipuI dissent from the prevailing opinion in this lated. case. The sole purpose of the Statute of 1877, The cases in Massachusetts and other States a purpose indicated as well by the title as the have, I think, no bearing upon the present one. body of the Act, was to abrogate the rule that Tbey were well decided and involved po such the failure to pay the premium on a life policy question as is presented in this case under the on the day specitied therein created a forfeiture Statute of 1877. and rendered the policy void. The Act, there- The judgment should be reversed. fore, provided that nonpayment of the pre- Earl and Gray, JJ., mium at the day should not work a forfeiture,

JJ.,

concur.

concur.

IOWA SUPREME COURT.

STATE OF IOWA

from one State cannot be cold within another 0.

State for uses forbidden by its laws, although the Con CREEDEN, Certain Intoxicating Liquors,

transportation itself cannot be prevented by

such State. and CHICAGO, ROCK ISLAND & PACIFIC 2. When a carrier ceases to be a car. R. CO., Appt.

rier and becomes a warehousemap he cannot be

protected as a carrier by the constitutional pro(....Iowa....)

visions as to regulations of commerce. 1. Intoxicating

liquors, transported 3. A railroad company which has en. NOTE.-Right of State to prohibit manufacture and | liquor within its limits, to be there sold as a bever. sale of spirituous liquors.

age, does not necessarily infringe any right, prip. A state law prohibiting the manufacture of ilege or immunity secured by the Federal Consti

See also 33 L. R. A. 313, 839; 47 L. R. A. 278.

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