We think that the Judge was right in hold- and do not find in it anything to support the ing that this evidence was totally insufficient, proposition contended for. There the State inunder the law of New Hampshire, or any other terposed, after due notice to the parties and an law, to show such a settlement of the line, as to inquiry by the Legislature, in reference to the estop the owners of the grant from claiming to true and right ownership of a certain gore bethe extent of the description contained in the tween two adjoining townships, which by an deed. Conceding that everything was proved alleged mistake of a figure had not been includwhich the evidence tended to prove, it would ed in the grant (of Enfield) in which it was inonly show that the grantees made a tentative tended to be. The south line was south 68° east in effort to find the limits of their property in a the deed, when it should have been south 58° mountainous and almost inaccessible wilderness, east. The grant of Grantham was made a few without consultation or communication with any years afterwards, binding on Enfield, but havother parties, and without doing any act or thing ing the right course (south 58° east) for its north that could in the least commit them in relation line. On the application of the proprietors of to such parties. The only line shown to have Enfield and adjoining townships, the Legisla been the subject of any agreement was that lo- ture was applied to to correct this error, and cated by Wilkins in 1850, parallel to, and 235 commissioners were appointed to run the true chains from, the Saco, which was concurred in line, and the disputed gore was granted to Enby Walker, the agent of the owners of the El-field. The parties acquiesced for 20 years, and kins grant, and one Davis, who professed to the question was, whether Enfield had sufficient own one half of Hart's Location. seisin and color of title to claim the benefit of the Statute of Limitations; and the court held that it had. But the court expressed itself with great caution as follows: "In this case we are clearly of opinion the seisin would not pass by the mere effect of the second grant; but was there not such a previous re-entry and assertion of right on the part of the government as to constitute, together with the grant, a conveyance with livery of seisin? An entry upon the land by the government agents, and the running anew and re-marking of lines, with the express design of a reconveyance to rectify a former mistake, would seem to be evidence sufficient to show an actual possession in the gov ernment of any given tract.' Was anything of this kind done in the present case? Were the Elkins grantees notified of any error or mistake? Were they informed of the intention to regrant a portion of the tract granted to them? Did they acquiesce in such proceedings? Nothing of the kind. But the court adds: "The proceedings of the Legislature were had on public notice, and actual service on the proprietors of Grantham. They also had full knowledge of the subsequent proceedings of the proprietors of Enfield, in their entry upon and frequent sales of portions of this gore of land, claiming the whole under the grant from the State, and must be regarded as acquiescing in such adverse possession and claim. It is now too late for the proprietors of Grantham to assert their title." It is obvious that the cases are totally distinct; and it is unnecessary to discuss the subject further. It is alleged by the counsel of the demandant that the law of New Hampshire on the subject of estoppel as to boundary lines is peculiar; that an agreement settling such lines, though made by parol, is binding upon the parties and all those claiming under them. Conceding this to be true, not the slightest evidence was offered to show any agreement whatever, or even any communication, between the adjoining owners prior to 1850, and the line then agreed upon coincides substantially with that which is now claimed by the defendant. It is contended, however, that the running of the hypothetical line northerly from the Burton corner was an estoppel as regards the State; that the State, upon the faith of this line being run and marked by the Elkins grantees, entered upon the land eastward of it, and granted the same to Bean and others. That is, the State, by legislative resolve and solemn grant, having in 1830 granted to Elkins and others all the land west of Hart's Location, had the right to reenter upon some 8,000 acres of the same land in 1831 and grant it out to third parties, because the Elkins grantees, in making an ex parte survey, had mistaken the position of the west boundary of Hart's Location. There is no pretense, certainly no proof, that this survey was made by any concurrence of the parties, or that there was even any communication between the agents of the State and the Elkins grantees. The agents of the State simply lay by and watched the operations of Elkins and company, and finding, or supposing, that they had made a mistake, and had left a vacant tract of land between the line they ran and Hart's Location, stepped in and made another grant to other parties of nearly a sixth part of the tract granted to the Elkins party. Not a particle of evidence was produced to show any acquiescence on the part of Elkins and his associates in this proceeding, or that they had any notice or knowledge of it. So far as appears, they have never acknowledged the right of these new grantees, nor have they ever admitted that any one had any right to interfere with the extension of their land eastwardly to Hart's Location. We think no case can be found, that would make out an estoppel under such circumstances as these. We have been referred with much confidence to the case of Proprs. of Enfield v. Day, 11 N. H., 520. We have carefully examined this case, The Judge, on this part of the case, instructed the jury that there was no evidence before them to estop or bar those claiming under the Elkins grant from maintaining their line by the westerly side of Hart's Location; and in this we think he was right. The judgment of the Circuit Court is affirmed. James H. McKenney, Clerk, Sup. Court, U. 8. enter on and use private property for public purposes is complete as soon as the property is actually appropriated under the authority of law for a public use; but the title does not pass from the owner without his consent, until just compensation has [No. 244.] been made to him. Argued Mar. 9, 1881. Decided Apr. 25, 1881. States for the District of Indiana. The condition that the property must be taken for the public use, is as much above the reach of the Legislature as it is above the reach and control of the lowest functionary of the govern ment. Bloodgood v. R. R. Co., 18 Wend., 60; R. R. Co. v. Kip, 46 N. Y., 546; R. R. Co. v. Davis, 43 N. Y., 146, and other authorities there cited. Compensation in its lowest degree implied the completion and construction and use of the canal through the premises in controversy as contemplated by the Act. The failure to complete a public work, the Upon the facts in this record the question of land for which had been partly paid for in nn-reversion is not in the case at all. Reversion is ticipated benefits, if a hardship, is one for which a return of title to one who, having formerly the law has no remedy, and complaint for which held it, has in some way been devested of it. should be addressed to the Legislature. McIntyre v. State, 5 Blackf., 389; People v. Hayden, 6 Hill, 362; People v. R. R. Co., 3 Mich., 496. After a silent acquiescence for thirty-five or forty years, it is too late to complain to anybody. If it could be maintained that the State abandoned this canal, still, having acquired a fee in the land, no right of reversion remained in the original owners. Heyward v. Mayor, 7 N. Y., 314; Rexford v. Knight, 11 N. Y., 308; Park Comrs. v. Armstrong, 45 N. Y., 234; Heard v. Brooklyn, 60 N. Y., 242; Haldeman v. R. R. Co., 50 Pa., 425; Craig v. Mayor, 53 Pa., 477. The appropriation of land taken for this canal was complete, and the limitation began to run against the owner, not from the time of completion, but from the time the State surveyed and located the canal, and entered upon and took possession of the land, displacing the possession and dominion of the owner. Act, 1836, secs. 16, 17; especially first proviso to sec. 17, R. S. 1838, 343, 344; Null v. Canal Co., 4 Ind., 432; People v. R. R. Co., 3 Mich., 501; People v. Hayden, 6 Hill, 360; Park Comrs. v. Armstrong, 45 N. Y., 244. Messrs. D. Turpie, Claypool & Ketchum, R. O. Hawkins and John A. Henry, for appel lees: The general course, both of English and American decisions, in regard to the interest acquired by the public by the exercise of the right of eminent domain is, that no more of the title is devested from the owner than is necessary for the public use. Heyneman v. Blake, 19 Cal., 579; Hooker v. Turnpike Co., 12 Wend., 371; Giesy v. R. R. Co., 4 Ohio St., 308; Barclay v. Howell, 6 Pet., 498; Washington Cemetery v. R. R. Co., 68 N. Y., 591. No application where there was simply a purpose and intention not completed. See, Callender v. Marsh, 1 Pick. (Mass.), 430; Cushman v. Smith, 34 Me., 247; also Nichols v. R. R. Co., 43 Me., 356. Private property can only be taken by the government or its agents when necessary for the public use, and in such cases compensation must be made therefor. Cooper v. Williams, 5 Ohio,392 and cases there cited. NOTE.-Eminent domain; the right to payment for pricate property taken for public use generally recognized: Fifth Amendment to Constitution applies only to Federal Government and not to States. See, note to Withers v. Buckley, 67 U. S., XV., 816. But a man can have no return of that with which he has never parted. Mr. Chief Justice Waite delivered the opinion of the court: This is a suit in equity, brought by the appellants to quiet title to certain lands in the City of Indianapolis. The facts are as follows: By an Act of the General Assembly of Indiana" To Provide for a General System of Internal Improvements," passed January 27, 1836, R. S. Ind., 1838, p. 337, sec. 4, the board of internal improvements was authorized and directed to construct, among other public works, the Central Canal, commencing at the most suitable point on the Wabash and Erie Canal, between Fort Wayne and Logansport, running thence to Muncietown, thence to Indianapolis, and thence to Evansville on the Ohio River. For this purpose the board was authorized to enter upon, take possession of, and use any lands necessary for the prosecution and completion of the work. Sec. 16. In all cases where persons felt aggrieved or injured by what was done, a claim could be made for damages, which were to be appraised in a way specially provided for, but in making the appraisement the benefits resulting to the claimant from the construction of the work were to be taken into consideration. Any sum of money thus found to be due was to be paid by the board, but no claim could be recovered or paid, unless made withint wo years after the property was taken possession of. Sec. 17. The board was also authorized to acquire, by donation or purchase, for the State, the necessary ground for the profitable use of any water-power that might be created by the construction of the canal, and to lease, for hydraulic purposes, any surplus of water there might be, over and above what was required for naviga tion. Secs. 22 and 23. which was in force when this Act was passed, The Constitution of the State, adopted in 1816, and until all the rights of the State under it had been acquired, contained the following as Art. I., sec. 7: "That no man's particular services shall be demanded, or property taken or applied to public use, without the consent of his representatives, or without a just compensation being made therefor." The town plat of Indianapolis was laid out on lands granted by Congress to Indiana for a seat of government. On this plat, as originally made, Missouri street extended across the Town from north to south, a distance of one mile. The board of internal improvements located the Central Canal in this street throughout its entire length. From the southerly end of the street | bill was filed by the mortgagees of the Railroad the location extended in that direction across Company to quiet the title of the Company to what was then known as outlots 121, 125 and this property and protect their security. On the 126. These lots were owned, 126 by one Coe, hearing the circuit court dismissed the bill for and the other two by Van Blaricum. During the reason that the appropriation by the State the year 1840 or before, the canal was actually was not sufficient to devest the owners of their built, filled with water, and to some extent nav- title, and consequently the Railroad Company igated from Broad Ripple, a point on the west took nothing by the conveyances under which it fork of the White River, about nine miles north claims. of Indianapolis, to a lock in Missouri street, at Market street. From Market street the canal was actually dug, and its banks built to another lock, a distance of a mile or more below, but it was never filed with water for the purposes of navigation, or, in fact, opened for navigation. The lower lock would perhaps hold the water in the level above, but would not pass a boat below. About the time this part of the work was finished, the whole project of completing the canal was abandoned, and has never since been resumed. Considerable work had been done on the line as a whole, before the abandonment, but the only part ever opened for navigation, to any extent whatever, was that between Broad Ripple and the Market street lock. The premises in controversy are between Market street and the next lock below. The State made a lease of water-power to be used at this lower lock, and for many years conducted the water to supply that lease through the canal as constructed below Market street. No other use of the canal was ever made by the State for any purpose, and both the city and the owners of the several outlots have at all times been permitted to fence, bridge and occupy the property as they pleased, provided they did not interrupt the flow of water to supply the power to a mill that had been built below. Neither the Town of Indianapolis nor Coe ever made any claim on the State for compensation on account of the appropriation of their property. Van Blaricum did, however, do so, and he prosecuted his claim until 1848, when it was finally decided against him. It is conceded that no damages were ever awarded him. The defendants, other than the City of Indianapolis and the Railroad Company, are the owners of all the title to the outlots occupied by the canal, which did not pass to the State under the appropriation that was made. In 1850 the General Assembly of Indiana passed an Act to sell the canal, and under the authority of that Act all the part of the canal north of Morgan County, including the premises in controversy, was conveyed to one Francis N. Conwell, for the sum of $2,425. From Conwell the title, such as he got, passed by sundry conveyances to the Waterworks Company of Indianapolis. Afterwards that part of the premises south of Market street, not being essential to the business of the Waterworks Company, was sold to the Indianapolis, Cincinnati & Lafayette Railroad Company. Between 1872 and 1874, the Čity of Indianapolis, the legal successor of the town, took actual possession of Missouri street below the Market street lock, and used it for sewerage purposes, building a sewer therein and filling up the canal. About the same time McKernan, the ancestor of the present appellees of that name, filled up the canal on the outlots in question, and erected one or more houses thereon. This According to the later decisions of the Supreme Court of Indiana, when lands were taken by the State under the internal improvement laws, and just compensation made to the owners, the title in fee was transferred from the owner to the State. Waterworks Co. v. Burkhart, 41 Ind., 364; Nelson v. Fleming, 56 Ind., 310. The earlier decisions were the other way. Edgerton v. Huff, 26 Ind., 35. But so far as we have been able to discover, it has never yet been held that the title passed out of the owner until 'just compensation" had actually been made. In fact, the decisions appear to have been uniformly to the effect that it did not. Thus, as early as 1838, in Rubottom v. McClure, 4 Blakf., 508, it was said in reference to a statute, of which the one now under consideration is almost a literal copy, that it insured "to any individual whose interest may have been made to yield to the public good, remuneration for his loss. Actual payment to him is a condition precedent to the investment of the title to the property in the State, but not to the appropriation of it to public use. This was followed in 1846, by Hankins v. Lawrence, 8 Blakf., 256. That was a case in which the White Water Valley Canal Company had acquired the title of the State to the White Water Canal, one of the works the board of internal improvements was authorized to construct under the Act of 1836, and the question was whether it could, under its charter, enter upon lands to complete that canal, for the purposes of its incorporation, without first having made just compensation to the owner. Upon this the court said: "The question whether payment must be made before the land is taken and used * has been already decided by this court. * The possession and use of the land in question by the White Water Valley Canal Company are upon the condition subsequent, that they will not be in default with respect to the payment for the same, as prescribed by the charter, nor with respect to the erecting of the works for which the land is taken. It may be that, should any person claiming under the company remain in possession of the land after a default in such payment, or in erecting the works, he would be considered as a trespasser ab initio." So far as we have been advised, these cases are still the law of Indiana, and they are certainly supported by high authority. Thus, in Rexford v. Knight, 11 N. Y., 314, the Court of Appeals of New York, speaking of statutes similar to that of Indiana, says: The construction upon those Acts has been that the fee did not vest in the State until the payment of the compensation, although the authority to enter upon and appropriate the land was complete prior to the payment." And so, in Nichols v. R. R. Co., 43 Me., 359, the Supreme Court of Maine, in speaking of an article of the Constitution of that State which declared that private property should not be taken for public uses without just compensation, uses this language: "While it * * * * prevents the acquisition of any title to land or to an easement in it, and does not permit a permanent appropriation of it, as against the owner, without the actual payment or tender of a just compensation, it does not operate to prohibit the Legislature from authorizing a temporary exclusive occupation of the land of an individual, as an incipient proceeding to the acquisition of title to it, or to an easement in it for a public use, although such occupation may be more or less injurious to the owner. Such temporary occupation, however, will become unlawful unless the party authorized to make it acquire, within a reasonable time from its commencement, a title to the land, or at least an easement in it." And again, in Cushman v. Smith, 34 Me., 258: "The design seems to have been simply to declare that private property shall not be changed to public property, or transferred from the owner to others for public use, without compensation." Not to multiply cases further, it seems to us that both on principle and authority the rule is, under such a constitution as that of Indiana, that the right to enter on and use the property is complete, as soon as the property is actually appropriated under the authority of law for a public use, but that the title does not pass from the owner without his consent, until just compensation has been made to him. We proceed now to apply this rule to the facts. It is not contended that compensation in money was made for any of the land in dispute. Van Blaricum claimed money, but the tribunal to which, under the statute, his application was referred, decided against him. In effect he was told in answer to his application, the benefits he would receive from the construction of the canal would be "just compensation" to him for his property taken. The town and the lot owners adjoining Missouri street made no claim for compensation. Neither did Coe, the owner of lot 126. In this way these parties signified under the law their willingness to take as their compensation, the benefits which would result to them respectively from the construction of the canal. The appropriation was for public use by means of a canal, and the owners were to be paid their compensation for the land taken by the construction of a canal thereon. It would seem to follow that if the canal was constructed, the compensation which the Constitution guarantied the owner would be made; otherwise not. If the canal was in law built, therefore, the title passed to the State; if not, it remained in the owner. The failure to claim damages within the two years was no more than a waiver of all compensation except such as grew out of the benefits resulting from the construction of the work for which the appropriation was made. To hold that the title passed by mere appropriation, if no claim for damages was made within the two years, would be in effect to decide that if the State entered on land for a particular use and kept possession as against the owner for two years, it got a title in fee whether the property was actually put to the use or not. Such we cannot believe to be the law. Was there, then, such a canal constructed over and upon the lands in question as the Interual Improvement Act, under which the appropriation was made, contemplated? A canal, in the sense that term implies in this connection, means a navigable public highway for the transportation of persons and property. It must not only be in a condition to hold water that can be used for navigation, but it must have in it, as part of the structure itself, the water to be navigated, ready for use. Such an instrumentality for " The advancement of the wealth, prosperity and character of the State" (Rubottom v. McClure, supra, 507) might confer benefits that would be a just compensation for the private property taken for its use, but until such a structure is actually furnished complete, it can in no proper sense be said that the works have been constructed from which the benefits that are to make the compensation can proceed. A mill-race carrying water for hydraulic purposes is not enough. There must be a canal fitted in all respects for navigation and open to public use, before the benefits can accrue to the owner which are under the law to overcome his claim for damages. No authority was given the board of improvements to appropriate lands for the use of the water-power created by the canal. That could only be acquired by donation or purchase (sec. 16), and no power could be leased until there was a surplus of water. The canal was to be built for navigation. If, when built, there was found to be more water than was wanted as a means of transportation, it might be leased, but until there was a canal for navigation there was in law none for power. The use of the water for hydraulic purposes was but an incident to the principal object of the work to be done. There can be no pretense that this canal was ever navigated below Market street, or put in a condition for navigation. It was accepted from the contractor, and may have had all its banks and its bed complete, but it is evident from the testimony that it was never finished so that it could be actually used as a navigable canal, and it certainly was never opened by the State to public use in that way. More work had been done on it than on some other parts of the line, but still it was unfinished when the abandonment of the enterprise took place. We are aware that in the case of the Waterworks Co. v. Burkhart, supra, the Supreme Court of Indiana decided that the title to the land then in dispute had passed from the owner to the State, but that was on the level above Market street, which had been not only made navigable, but had actually been to some extent navigated. The owner, too, had been awarded and paid damages in money. So in Nelson v. Fleming, supra, the canal was completed and had been in actual use by the public as such, for a period of between thirty and forty years before the abandonment occurred. In both these cases, according to the rule that has been stated, the compensation was actually made, and the title passed. There the question was one of reversion after title once acquired. Here, as we think, the State never got title, since the requisite compensation was never made. Consequently, the State had no title to this property to convey, and the Railroad Company took nothing by its purchase. It follows that the decree below was right, and it is consequently affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. Cited-9 Biss., 242. INDIANA & ILLINOIS CENTRAL RAIL-| R. Co., 21 How., 575 (62 U. S., XVI., 221); WAY COMPANY, Appt., v. HENRIETTA P. SPRAGUE. (See S. C., 13 Otto, 756-764.) Terms of bond control mortgage-unpaid coupons do not dishonor bond-notice to purchaser. 1. Where there is a difference between the terms of railroad bonds and of the mortgage given to secure them,as to the payment of interest, the terms of the bonds will control. 2. The mere presence upon the bonds when purchased, of two past due, unpaid interest coupons, did not make the bonds dishonored paper. Cromwell v. Sac Co., XXIV., followed. Parsons v. Jackson, XXV., limited. 3. Where the facts are sufficient to put a purchaser on inquiry, he can only be charged with knowledge of the facts which he might have learned by inquiry. [No. 263.] Argued Apr. 8, 1881. Decided Apr. 25, 1881. A PPEAL from the Circuit Court of the United States for the District of Indiana. The case is fully stated by the court. Messrs. James Emott, C. G. Kidder and Joseph E. McDonald, for appellant: Where there were several past due and unpaid coupons, their presence was held to be of itself an evidence of dishonor, and with the fact that an authority, which was given to the president of the company to designate the place of payment, had not been exercised, taken in connection with the low price at which the bonds were offered, was held abundantly sufficient to affect the purchaser with notice of invalidity in their issue. Parsons v. Jackson,99 U. S.,434 (XXV., 457). Judge Bradley giving the opinion of the court, speaks of these circumstances, of which the past due coupons was the most marked, as being "so pointed and emphatic as to be prima facie inconsistent with any other view than that there was something wrong in the title." Pp. 440, 441 (460). The respondent did not purchase the bonds in question in good faith. She had abundant cause to question their integrity, evidence of dishonor sufficient to put her on inquiry, and to show that Condict had no title in the bonds, or right to dispose of them to pay his own debts, or redeem securities which he was accused of misappropriating. The law will hold a person, dealing with an agent and trustee, as Mrs. Sprague did, to diligence and the utmost good faith. Smith v. Ayer, 101 U. S., 320 (XXV., 955); Hoffman v. Ins. Co., 92 U. S., 161 (XXIII., 539); Bk. of Genesee v. Patchin Bk., 13 N. Y., 309; Pearce v. R. R. Co., 21 How., 441 (62 U. S., XVI., 184). Green's Brice, Ultra Vires, 2d ed., p. 268, note and cases cited. It has been held that a bond which is redeemable, although not payable, after a certain date, ceases to be negotiable at that date, although no notice of an option to redeem had been given by the obligor. See Texas v. White, 7 Wall 700 (74 U. S., XIX., 227); and, on the general question of negotiability of bonds, Vermilye v. Er. Co., 21 Wall., 138 (88 U. S., XXII., 609); White v. R. Mercer Co. v. Hackett, 1 Wall., 83 (68 U. S., XVII., 548). But the controlling provision as to this point, is that contained in the mortgage, the second of its covenants. A purchaser of these bonds is affected with this provision, and has notice of it as fully as if it were written out in full in the bond. The bonds expressly refer to it, but this is not necessary. The fact, that the bonds are, and are known to be issued under and secured by the mortgage, makes every purchaser and holder chargeable with notice of the contents of the mortgage. McClure v. Oxford, 94 U. S., 429 (XXIV., 129); Caylus v. R. R. Co., 49 How. Pr., 100; Kennion v. Kelsey, 10 Iowa, 443; Schoonmaker v. Taylor, 14 Wis., 313; Plank R. Co. v. Murray, 15 Ill., 336; Tiernan v. Hinman, 16 Ill., 400; Benjamin v. R. R. Co., 49 Barb., 449; Hunt v. Frost, 4 Cush., 54; Hanford v. Rogers, 11 Barb., 18; Gammon v. Freeman, 31 Me., 243; Brownlee v. Arnold, 60 Mo., 79; Texas v. White (supra). Messrs. Clarkson N. Potter and Whitney, for defendant in error: First point. The unpaid coupons attached to the appellant's bonds when delivered to respondent, were not notice of the dishonor of the bonds. Smith v. Sac Co., 11 Wall., 150 (78 U. S XX., 105); Murray v. Lardner, 2 Wall., 121 (69 U. S., XVII., 859.) The usages of trade and the policy of the law alike favor the bona fide holder of such instruments. Claflin v. Bk., 25 N. Y., 293. The interest is a mere incident to the debt; compensation for the deferred payment of the principal. The coupons are separate obligations for the interest, payable upon demand, and they are continuing securities, Merritt v. Todd, 23 N. Y., 28, not due until demanded. Such securities have been used as a means of raising money, not only by railroad companies, but by the National Government, the States, Counties and Municipalities, by all descriptions of corporations, and largely by individuals. To hold that the moment the debtor ceases to pay interest, the character and negotiability of such obligations is changed, would effectually put an end to the traffic in such securities. No distinction in practice has been made between bonds on which interest is unpaid, and those on which it is promptly paid. Any other doctrine would defeat the whole purpose for which such securities are authorized. None of the cases cited conflict with this. Newell v. Gregg, 51 Barb., 263, was not analogous. The court says. "The entire debt was evidenced by one written promise to pay, which had been broken when Gregg purchased the note, of which dishonor he had notice." Neither is the case in Minnesota, parallei. It was the case of the purchase of bonds which had been stolen, and on which the coupons for many years had not been paid, although paid upon all the rest of the issue, which peculiarity the court considered notice of the invalidity of those bonds. Directly the reverse has been held in Massa |