« AnteriorContinuar »
Altnow v. Sibley, 30 Minn. 186, 44 Am. Higginson y. The Treasurer (Higginson v. Rep. 191, 14 N. W. 877; Dosdall v. Olmsted Slattery), 212 Mass. 583, 42 L.R.A.(N.S.) County, 30 Minn. 96, 44 Am. Rep. 185, 14 215, 99 N. E. 523. V. W. 458; Grube v. St. Paul, 34 Minn. 402, The notice served upon the city council 26 N. W. 228; Bank v. Brainerd School was insufficient to found an action. Dist. 49 Minn. 106, 51 N. W. 814; Snider Terryll y. Faribault, 84 Minn. 341, 87 N. v. St. Paul, 51 Minn. 466, 18 L.R.A. 151, 53 W. 917; Bausher v. St. Paul, 72 Minn. 539, N. W. 763; Bryant v. St. Paul, 33 Minn. 75 N. W. 745, 4 Am. Neg. Rep. 407; Doyle 289, 53 Am. Rep. 31, 23 N. W. 220; Gul- v. Duluth, 74 Minn, 157, 76 X. W. 1021; likson v. McDonald, 62 Minn, 278, 64 N. W. Nicol v. St. Paul, 80 Minn. 415, 83 N. W. 812; Miller v. Minneapolis, 75 Minn. 131, 77 375; McKeague v. Green Bay, 106 Wis. 577, N. W. 788, 5 Am. Neg. Rep. 183; Claussen | 82 N. W. 708. v. Luverne, 103 Minn. 491, 15 L.R.A.(N.S.) Messrs. Healy & La Du, for respon698, 115 N. W. 643, 14 Ann. Cas. 673; Hill dents : v. Boston, 122 Mass. 344, 23 Am. Rep. 332. The city is exercising corporate powers,
The establishment and maintenance of and not governmental functions. parks, commons, and squares are public or Reed v. Anoka, 85 Minn. 294, 88 N. W. governmental, and not proprietary, func- 981. tions.
Where a municipality is given the excluBrowne v. Bowdoinham, 71 Me. 144; Cor. sive control of its streets, it is required to bin v. Dale, 57 Mo. 297; Mayo v. Wood, exercise reasonable care to keep them in a 50 Cal. 171; Clark v. Waltham, 128 Mass. safe condition, and is liable to anyone who 567.
is injured as a result of the want of such Park uses are public uses in the strictest care.
St. Paul v. Seitz, 3 Minn, 297, Gil, 205, Rossmiller v. State, 114 Wis. 169, 58 74 Am. Dec. 753; Shartle v. Minneapolis, 17 L.R.A. 93, 91 Am. St. Rep. 910, 89 N. W. Minn. 308, Gil. 284; Cleveland v. St. Paul, 839; State v. Korrer, 127 Minn. 60, L.R.A. 18 Minn. 279, Gil. 255; Moore v. Minne
148 N. W. 617, 1095; Watson v. Chicago, apolis, 19 Minn, 300, Gil. 258; O'Leary v. M. & St. P. R. Co. 46 Minn. 321, 48 N. W. Mankato, 21 Minn. 65; Bohen v. Waseca, 32 1129; Lake Erie & W. R. Co. v. Whitham, Minn. 176, 50 Am. Rep. 564, 19 N. W. 730; 155 Ill. 514, 28 L.R.A. 612, 46 Am. St. Rep. Grant v. Stillwater, 35 Minn. 242, 28 N. W. 355, 40 N. E. 1014; Minneapolis, St. P. & 660; Nichols v. St. Paul, 44 Minn. 494, 47 S. Ste. M. R. Co. v. Marble, 112 Mich. 4, 70 N. W. 168; Blyhl v. Waterville, 57 Minn. N. W. 319; Pittsburgh, C. C. & St. L. R. Co. 115, 47 Am. St. Rep. 596, 58 N. W. 817; v. Warrum, 42 Ind. App. 179, 82 N. E. 934, McDowell v. Preston, 104 Minn. 263, 18 84 N. E. 356; Todd v. Pittsburgh, Ft. W. & L.R.A.(N.S.) 190, 116 N. W. 470; Estelle v. C. R. Co. 19 Ohio St. 514; Louisville, St. Lake Crystal, 27 Minn. 243, 6 N. W. 775; L. & T. R. Co. v. Stephens, 96 Ky. 401, 49 Noonan v. Stillwater, 33 Minn. 198, 53 Am. Am. St. Rep. 303, 29 S. W. 14; 13 Cyc. 439; Rep. 23, 22 N. W. 444; Kleopfert v. MinneCincinnati v. White, 6 Pet. 431, 8 L. ed. apolis, 90 Minn. 158, 95 N. W. 908, 14 Am. 452; Winona v. Huff, 11 Minn. 119, Gil. 75; Neg. Rep. 381; Schigley v. Waseca, 106 Poudler v. Minneapolis, 103 Minn. 479, 115 Minn. 94, 19 L.R.A.(N.S.) 689, 118 N. W. N. W. 274; Cole v. Minnesota Loan & T. Co. 259, 16 Ann. Cas. 169; Weber v. Harrisburg, 17 N. D. 409, 117 N. W. 354, 17 Ann. Cas. 216 Pa. 117, 64 Atl. 905; McDonald v. St. 304.
Paul, 82 Minn. 308, 83 Am. St. Rep. 428, 84 The maintenance of Loring park is a pub- N. W. 1022, 9 Am. Neg. Rep. 318; Burridge lic and governmental function, in the exer- v. Detroit, 117 Mich. 557, 42 L.R.A. 684, 72 cise of which the city is not liable for the Am. St. Rep. 582, 76 N. W. 84; Oliver v. negligence of its employees.
Worcester, 102 Mass. 489, 3 Am. Rep. 485; Oliver v. Worcester, 102 Mass. 489, 3 Am. Blair v. Granger, 24 R. I. 17, 51 Atl. 1042; Rep. 485; Veale v. Boston, 135 Mass. 187; Denver v. Spencer, 34 Colo. 270, 2 L.R.A. Lincoln v. Boston, 148 Mass. 578, 3 L.R.A. (N.S.) 147, 114 Am. St. Rep. 158, 82 Pac. 257, 12 Am. St. Rep. 601, 20 N. E. 329; Mc- 590, 7 Ann. Cas. 1042, 19 Am. Neg. Rep. 94; Kay v. Reading, 184 Mass. 140, 68 N. E. 43; Barthold v. Philadelphia, 154 Pa. 109, 26 Holleran v. Boston, 176 Mass. 75, 57 N. E. Atl. 304; Townley v. Huntington, 68 W. Va. 220; Clark v. Waltham, 128 Mass. 567; 574, 34 L.R.A.(N.S.) 118, 70 S. E. 368, 3 Steele v. Boston, 128 Mass. 583; Blair v. N. C. C. A. 835. Granger, 24 R. I. 17, 51 Atl. 1042; Russell The notice served upon the city was suffiv. Tacoma, 8 Wash. 156, 40 Am. St. Rep. cient. 895, 35 Pac. 605; Park Comrs. v. Prinz, 127 Kandelin v. Ely, 110 Minn. 55, 124 X, W. Ky. 460, 105 S. W. 948; Bisbing v. Asbury 449; Terryll v. Faribault, 84 Minn. 341, 87 Park, 80 N. J. L. 419, 33 L.R.A.(N.S.) 523, N. W. 917; Kelly v. Minneapolis, 77 Minn. 78 Atl. 196; Re Certain Land, 119 Fed. 453; ' 76, 79 N. W. 653; Nicol v. St. Paul, 80
Minn. 415, 83 N. W. 375; Harder v. Minne- 68 N. W. 458; Schigley v. Waseca, 106 Minn. apolis, 40 Minn. 446, 42 N. W. 350; Larkin 94, 19 L.R.A.(N.S.) 689, 118 N. W. 259, 16 v. Minneapolis, 112 Minn. 311, 127 N. W. Ann. Cas. 169; International Falls v. Minne1129; Wornecka v. St. Paul, 118 Minn. 207, sota, D. & W. R. Co. 117 Minn. 14, 134 N. 136 N. W. 561.
W. 302; Blair v. Granger, 24 R. I, 17, 51
Atl. 1042; Hartford v. Maslen, 76 Conn. 599, Taylor, C., filed the following opinion: 57 Atl. 740; Higginson v. The Treasurer
Under and pursuant to chapter 281 of the (Higginson v. Slattery) 212 Mass. 583, 42 Special Laws of 1883, and the acts amenda- L.R.A.(N.S.) 215, 99 N. E. 523; Russell v. tory thereof and supplemental thereto, the Tacoma, 8 Wash: 156, 40 Am. St. Rep. 895, board of park commissioners of the city of 35 Pac. 605; Park Comrs. v. Prinz, 127 Ky. Minneapolis has established, improved, and 460, 105 S. W. 948; Bisbing v. Asbury Park, maintains a system of parks and park ways 80 N. J. L. 416, 33 L.R.A.(N.S.) 523, 78 Atl. for the use of the inhabitants of that city. 196. From the earliest times it has been Among the parks so established and main the recognized rule that a municipality is tained is a tract of about 36 acres, now not liable in damages for negligence in perknown as Loring park, located in the midst forming its governmental functions unless of a thickly settled portion of the city. such liability had been imposed by statute. Running through this park in various direc. This rule has been recognized and applied tions are numerous gravel and cement walks many times by this court. Dosdall v. Olmand footpaths, but no carriage ways. These sted County, 30 Minn. 96, 44 Am. Rep. walks and paths are in constant use as thor- 185, 14 N. W. 458; Altnow v. Sibley, 30 oughfares by people passing from one part Minn. 186, 44 Am. Rep. 191, 14 N. W. 877; of the city to another. On April 30, 1913, Bryant v. St. Paul, 33 Minn. 289, 53 Am. employees of the park board raked together Rep. 31, 23 N. W. 220; Grube v. St. Paul, a large quantity of leaves and other rub- 34 Minn. 402, 26 N. W.228; Bank v. bish, and burned it at the intersection of Brainerd School Dist. 49 Minn. 106, 51 N. two or more of these walks. When they W. 814; Snider v. St. Paul, 51 Minn. 466, quit work at night they left the ashes and '18 L.R.A. 151, 53 N. W. 763; Gullikson v. unburned rubbish lying upon the walk. In McDonald, 62 Minn. 278, 64 N. W: 812; the evening of the same day, Aloysius J. Miller v. Minneapolis, 75 Minn. 131, 77 N. Ackeret, a child less than two years of age,' W. 788, 5 Am. Neg. Rep. 183; Claussen v. while proceeding along the walk with his Luverne, 103 Minn. 491, 15 L.R.A. (N.S.) mother, stumbled and fell into this pile of 698, 115 N. W. 643, 14 Ann. Cas. 673; Brant. ashes, and burned his hands upon the coals | man v. Canby, 119 Minn. 396, 43 L.R.A. and heated refuse underneath the ashes to (N.S.) 862, 138 N. W. 671. But by what is such an extent that his right hand is per- termed in Lane v. Minnesota State Agri. manently crippled. Casper A. Ackeret, the Soc. 62 Minn. 175, 29 L.R.A. 708, 64 N. W. father of the child, brought two actions for 382, as an “illogical exception to this rule," damages, one on behalf of the child and the it has become firmly established in this other on his own behalf, and recovered a state, and in most of the Middle and Westverdict in both. In the action brought by ern states, that a city is liable for injuries the father in his own behalf, defendant resulting from defects or dangerous condimoved for judgment notwithstanding the tions in its streets. 2 Dunnell's Dig. S verdict. This motion was denied. Judg. 6814; 15 Am. & Eng. Enc. Law, 420. The ment was entered, and defendant appealed reasons assigned for making a distinction therefrom. In the action brought on behalf between such cases and those governed by of the child, defendant moved for judgment the general rule are various, and not very notwithstanding the verdict or for a new satisfactory. The reason most generally astrial. This motion was also denied, and signed is that such municipalities, having defendant appealed from the order denying been given the exclusive control over their
The two cases were argued together streets with ample power to provide funds and submitted upon one brief.
to care for and maintain them, are chargeThe important question presented is able with the duty to keep them safe for whether the city is liable in damages for travel, and that it follows by implication injuries resulting from dangerous conditions therefrom that they are liable for failure in the walks or pathways in its public to perform such duty. 15 Am. & Eng. Enc. parks.
Law, 420; Shartle v. Minneapolis, 17 Minn. 1. In establishing, maintaining, and caring 308, Gil. 284; Noonan v. Stillwater, 33 Minn. for streets, highways, and public parks, a 198, 53 Am. Rep. 23, 22 N. W. 444; Blyhl municipality acts in its governmental, and v. Waterville, 57 Minn. 115, 47 Am. St. Rep. not in its proprietary, capacity. St. Paul 596, 58 N. W. 817; Peterson v. Cokato, 84 v. Chicago, M. & St. P. R. Co. 63 Minn. 330, Minn. 205, 87 N. W. 615, 10 Am. Neg. Rep. 34 L.R.A. 184, 63 N. W. 267, 65 N. W. 649,' 576; Schigley v. Waseca, 106 Minn. 94, 19
L.R.A. (N.S.) 689, 118 N. W. 259, 16. Ann. I of pedestrians, and hold that the city is Cas. 169.
liable for dangerous conditions therein But it is difficult to see why the same caused by its own employees. See Kleopreasoning would not also impose liability fert v. Minneapolis, 90 Minn. 158, 95 N. W. upon cities for negligence in performing 908, 14 Am. Neg. Rep. 381. many of their other governmental functions. 2. The statute requires every person who It would certainly apply with equal force claims damages from a city for injuries to the case now under consideration, for the sustained by reason of defective 'streets, or city is given as plenary power in respect through the negligence of city employees, to to its parks as in respect to its streets. In cause a written notice to be presented to its Snider v. St. Paul, 51 Minn. 466, 18 L.R.A. governing body statirg the time, place, and 151, 53 N. W. 763, it is suggested that the circumstances of the injury, and the amount distinction can best be sustained upon con- of compensation demanded. A notice was siderations of public policy and the doctrine duly served stating the time, place, and cir. of stare decisis. The exception, whether cumstances of the accident in question; that logical or otherwise, is now too firmly es- the child was the infant son of Casper A. tablished to be questioned, and our present Ackeret, and that damages were claimed in concern is to determine whether the case at the sum of $10,000. The notice was signed bar is controlled by the exception or by the i by the attorney for Casper A. Ackeret. Degeneral rule. On examining the grounds fendant contends that this notice is fatally upon which liability is imposed for defects defective in this: That the accident gave in streets, we find that the same grounds rise to two claims for damages,-one in exist for imposing liability for defects in favor of the father and one in favor of the the walks and pathways in question. These child,--and that the notice states only one walks and pathways were used not merely claim, and does not specify whether that is for purposes of pleasure and recreation, but the claim of the child or of the father, and as thoroughfares for passing from one part further contends that in any event the noof the city to another. They differed from tice cannot serve as a basis for both actions. other walks provided by the city for the The purpose of the notice is to give the use of pedestrians only in the fact that municipal officers information which will enthey were within the limits of a park. We able them to ascertain and investigate the find no substantial distinction between such facts while the evidence is available, and to walks and those located along the public determine whether a liability exists, and, streets. When we turn to the decided cases, if so, the nature and extent of such liability. we find a diversity of opinion. The New While the essential requirements of the England states, as well as some others, do statute must be complied with, it has been not recognize the exception to the general determined that a claimant is not barred rule which we have been considering, and from maintaining his action because his nohold that a city is not liable for defects in tice was informal, or not technically accuits streets unless such liability is expressly rate, if the information required by the imposed by statute, and, of course, also hold statute could, in substance, be ascertained that it is not liable for defects in the paths therefrom. Kelly v. Minneapolis, 77 Minn. and ways traversing its parks. Most of 76, 79 N. W. 653; Nicol v. St. Paul, 80 Minn. the cases cited by defendant are from states 415, 83 N. W. 375; Terryll v. Faribault, 81 where such is the rule, and lack cogeney in Minn. 519, 84 N. W. 458; Terryll v. Faristates which have adopted a different rule. bault, 84 Minn. 341, 87 N. W. 917; KandeSome courts, however, hold that a city is lin v. Ely, 110 Minn. 55, 124 N. W. 449; liable for negligence in respect to its streets, Larkin v. Minneapolis, 112 Minn. 311, 127 but is not liable for negligence in respect to N. W. 1129; Wornecka v. St. Paul, 118 its parks. Park Comrs. v. Prinz, 127 Ky. Minn. 207, 136 N. W. 561. 460, 105 S. W. 948; Russell v. Tacoma, s The notice in question gave the officials Wash. 156, 40 Am. St. Rep. 895, 35 Pac. 605. full and accurate information as to the Other courts hold that it is also liable for time, place, and circumstances of the injury. negligence in respect to its parks. Denver It also informed them that the one injured v. Spencer, 34 Colo. 270, 2 L.R.A.(N.S.) 147, was the infant son of the one giving the 114 Am. St. Rep. 158, 82 Pac. 590, 7 Ann. notice, and that damages were claimed in Cas. 1042, 19 Am. Neg. Rep. 94; Barthold v. the sum of $10,000. If the facts stated in Philadelphia, 154 Pa. 109, 26 Atl. 304; the notice were true, the law gave the Weber v. Harrisburg, 216 Pa. 117, 64 Atl. father the right to bring two aetions,--one 905; Silverman v. New York (Sup.) 114 N. in his own behalf and one in behalf of his Y. Supp. 59. We find no sufficient ground child. It is true that the notice did not for making a distinction between the walks state whether he made the claim in his own and pathways in question and the ordinary behalf, or in bebalf of the child, or in besidewalks provided by the city for the use half of both, and, if in behalf of both, that it
did not apportion the damages between contrary. Where he in fact performs this them. The natural inference would be that duty, we think he may maintain an action he was insisting upon all the rights given to recover for loss of the services of his by the law. We think that all the essen- minor child. If in fact he did not perform tial facts were set forth, and that no preju- such duty, a different question would be dice resulted to defendant from the failure presented, which is neither involved nor deof the father to state specifically that he termined herein. claimed damages both individually and as It follows that the order in one case and the statutory representative of his child, or the judgment in the other are affirmed. from his failure to apportion the damages between the two claims. The purpose of
Petition for rehearing denied. the notice was fully accomplished, and we hold that it was not so defective as to bar either right of action.
NEW YORK COURT OF APPEALS. 3. In the action brought in his own behalf, the father sought to recover for the TAX LIEN COMPANY OF NEW YORK, expenses which he had incurred in providing
Respt., medical and surgical treatment for the child, and also for the partial loss of services CATHERINE E. SCHULTZE et al. which will result from the child's crippled WESLEY E. BARKER, Appt. condition. Defendant demurred to the complaint on the ground that two causes of (213 N. Y. 9, 106 N. E. 751.) action were improperly united, and that there was a defect of parties plaintiff. The Tax sale – cutting off easements.
1. A tax sale of real estate does not cut demurrer was overruled, and defendant answered. The same questions were again belonging to adjoining property owners,
off easements of light, air, and access in it raised by objections interposed to the an- although the latter were made parties to swer, and were again ruled against defend the foreclosure proceeding and the judg. ant. Defendant's contention is that the ment provided that each defendant be barred claim for loss of services vested in the of all right, claim, lien, and easement in father and mother jointly and that they the property, if the complaint did not show must bring a joint action in order to recover
that plaintiff sought to bar their superior therefor. This contention is based upon
Same comparatively recent statutes. Section 7146,
right to withdraw from bid.
2. A purchaser at tax sale is not bound to Gen. Stat. 1913, among other things pro- comply with his bid if the property is subvides: “Where husband and wife are living ject to easements of light, air, and access together, they shall be jointly and severally which materially affect its value. liable for all necessary household articles and supplies furnished to and used by the
(November 10, 1914.) family.” Section 7442, Gen. Stat. 1913, states: A of the Appellate Division of the Su
PPEAL by the purchaser from an order “The father and mother are the natural guardians of their minor children, and, being | preme Court, First Department, reversing themselves competent to transact their own
an order of a Special Term, Part I., for business and not otherwise unsuitable, they New York County, relieving him from his are equally entitled to their custody and bid at the sale and denying plaintiff's mothe care of their education. If either dies tion to compel him to take title, in an acor is disqualified to act, the guardianship tion to foreclose a tax lien. Reversed. devolves upon the other." Defendant insists that both parents are
Statement by Chase, J.:
The action equally liable for the support of their chil
was brought pursuant to dren, and are equally entitled to the custody s$ 1035–1039 of the Greater New York
charter of them, and that it follows as a conse
(Laws of 1901, chap. 466, quence that they are jointly entitled to the Note. - Tax sale as cutting off easebenefit of the services of the children, and
ment. must bring a joint action to recover for the loss of such services. This contention is Attention is called to Jackson v. Smith, correct to some extent, but we think it was 153 App. Div. 724, 138 N. Y. Supp. 654, neither the purpose nor the effect of these affirmed in 213 N. Y. 630, 107 N. E. 1079, statutes to make any material change in referred to in opinion in Tax LIEN Co. v.
SCHULTZE. the duty imposed upon the husband and
Notwithstanding a statutory provision father to support and maintain the family. that the purchaser at a tax sale obtains Other late statutes making his failure to do obsolute title free from all so a criminal offense point strongly to the brances, a purchaser at such a sale of prop
amended by chapter 490 of the Laws of Mr. Edward Miehling, for appellant: 1908 and chapter 65 of the Laws of 1911), The foreclosure of a tax lien and the sale to foreclose a tax lien upon premises de- of premises pursuant to § 1035 of the scribed in the judgment follows: Greater New York charter do not extin“Borough of the Bronx. New description, guish private easements of light, air, and section 9. Block 2277, lot 50. Location, access of adjoining owners over the land East 132d street, between Willis avenue and sold. Brown place; assessed to unknown owner; Jackson v. Smith, 153 App. Div. 724, 138 on the land and tax map, city of New York, N. Y. Supp. 654; Blenis v. Utica Knitting borough of Bronx."
Co. 73 Misc. 61, 130 N. Y. Supp. 740, 149 Upon the sale pursuant to the judgment, App. Div. 936, 134 N. Y. Supp. 1126, afthe appellant, Wesley E. Barker, bid the firmed in 210 N. Y. 561, 104 N. E. 1127. sum of $5,000 therefor, and the property Mr. August Weymann, for respondent: was struck off to him. He signed the terms If there were easements affecting the tax of sale and paid $500 on account thereof. lot sold to the purchaser in favor of abutHe subsequently refused to complete his ting owners or encumbrancers, they were purchase, for the alleged reason that the effectually cut off by the judgment of forepremises are affected by casements of light, closure and sale. air, and access in favor of adjoining owners, Jordan v. Van Epps, 85 N. Y. 427; Blakewhich are not cut off by the foreclosure of ley v. Calder, 15 N. Y. 617; 1 Black, Judgm. the tax lien, and which said liens were in p. 245; Driggers v. Cassady, 71 Ala. 529; no way referred to by the terms of sale. Wiltsie, Mortg. Foreclosure, § 565. The plaintiff, so far as appears from the The judgment of foreclosure and sale record, does not deny that there were ease- herein is binding not only as to questions ments of light, air, and access in favor of actually litigated, but as to all questions adjoining owners, but alleges that all of the which might have been litigated in the acadjoining owners were made parties de tion. fendant in the action to foreclose the tax Jordan v. Van Epps, 85 N. Y. 436; Pray lien, and that some of them appeared in the v. Hegeman, 98 N. Y. 351; Reich v. Cochaction, and others defaulted after being ran, 151 N. Y, 127, 37 L.R.A. 805, 56 Am. duly served with process, and that the judg. St. Rep. 607, 45 N. E. 367; Lorillard v. ment in the action provides: “That each Clyde, 122 N. Y. 41, 19 Am. St. Rep. 470, and all of the defendants in the action who 25 N. E. 292; Goebel v. Iffla, 111 N Y. 170, have been served with a summons, and all 18 N. E. 649; Re Laudy, 161 N. Y. 434, 55 persons claiming under them or any of them N. E. 914; Bloomer v. Sturges, 58 N. Y. after the filing of the notice of pendency 168. of action, be and they are hereby forever barred and foreclosed of all right, claim, the jurisdiction of the court, and cannot
The purchaser has submitted himself to lien, title, interest, easement, and equity of redemption in the premises affected by the question the validity of the judgment. said transfer of tax lien, and each and every St. Rep. 688, 50 N. E. 55; Blenis v. Utica
Archer v. Archer, 155 N. Y. 415, 63 Am. part thereof."
The motions were made at the special Knitting Co. 73 Misc. 61, 130 N. Y. Supp. term and were heard together, one by the 740, 149 App. Div. 936, 134 N. Y. Supp. plaintiff to compel the appellant Barker to 1126; Paddell v. New York, 50 Misc. 422, complete his purchase, and one by the ap-100 N. Y. Supp. 581, affirmed in 187 N. Y. pellant Barker to be relieved from his pur- 552, 80 N. E. 1114, 211 U. S. 446, 53 L. ed. chase.
275, 29 Sup. Ct. Rep. 139, 15 Ann. Cas. erty subject to a right of way in favor of the tax foreclosure proceedings, under a adjoining property does not acquire such statute giving a tax lien priority, and reproperty free from the easement, especially quiring it to be fully paid and satisfied bewhere the owner of the dominant tenement fore any recognizance, mortgage, judgment, is not made a party to the proceeding. debt, obligation, or responsibility to or with Blenis v. Utica Knitting Co. 73 Misc. 61, which such real estate may become charged 130 N. Y. Supp. 740, affirmed in 149 App or liable, where the owner of the easement Div. 936, 134 N. Y. Supp. 1126, which is did not have the land segregated and obtain affirmed in 210 N. Y. 561, 104 N. E. 1127. a pro tanto reduction of the tax, as authorMotion for reargument denied, 210 N. Y. ized by statute. The grant of the easement 614, 104 N. E. 1127.
had been made within the period covered Contrary to the rule announced in Tax by the delinquent taxes for which the sale LIEN Co. v. SCHULTZE, and the other New was afterwards had, but no point is made York cases above cited, it is held in Han- of this fact. The decision rests upon the son v. Carr, 66 Wash. 81, 118 Pac. 927, principle that the tax is a paramount lien, that a sale of land for taxes terminated a and its foreclosure cuts off all charges upon right of way granted by the owner prior to the real estate.
W. A. E,