ligence can be proved, when one or the other exists. The balance of justice is in favor of the rule. Moreover, one rule casts the loss upon one who has voluntarily assumed the responsibility of stating that which he did not know to be true; the other, upon one who has sought information where the truth was most likely to be found, and in good faith acted upon it. The principle that one who makes a statement as to facts peculiarly within his knowledge, knowing that it is to be acted on, is conclusively presumed to know the truth, was first recognized in the warranty of title implied on the sale of personal property. The liability is based on the presumption that every vendor kuows whether he has title to the things he sells, and the warranty was implied by the courts to evade the rule that in an action of deceit the scienter must be proved. Selden, J., in Hoe v. Sanborn, 21 N. Y. 554; Bigelow on Fraud, 34; Bigelow L. C. Torts, 22. In the case cited, Selden, J. demonstrates this, in an opinion of great force, from the history of the rule, the reasons assigned for it and the exceptions to it. The reasoning is equally applicable to the warranty of authority implied on the part of an agent. The doctrine as to misrepresentations in contracts, uberrimæ fidei, seems to rest on the same ground. "Their characteristic in this respect is, that one of the parties must, from the nature of the contract, rely upon statements made by the other, and is placed at a disadvantage as regards his means of acquiring knowledge upon the subject." Anson on Con. 140. The same principle has been adopted in the law of deceit as an exception to the rule that the scienter must be proved, recognized by many, if not by the decided weight of authorities. Bigelow on Fraud, 57-64; Bigelow L. C. Torts, 21-23; Bispham Equity, § 214; contra, Cooley on Torts, 497. As an estoppel by conduct is in effect an action of deceit inverted, the same principle should apply, and it is believed that it does. Bigelow on Est. 476. Several applications of it seem to be well established. Such cases may be included under the general proposition "that a man is supposed and required to know all matters pertaining to his business." Bigelow on Frauds, 57; Coleman v. O'Niel (Minn.), 8 Rep. 335; 9 Cent. L. J. 97.

One is bound by an admission of the genuineness of his own signature, though made by mistake, where another has acted on his representation, and would suffer loss if he were afterwards to repudiate it. 2 Daniel Neg. Instr. §§ 1351-3; Preston v. Mann, 25 Conn. 118; Bigelow on Est. 478 n; Contl. Nat. Bank v. Nat. Bank of Commonwealth, 50 N. Y. 575; and see Nat. Bank of Commerce v. Nat. Mechanics' Banking Association, 55 N. Y. 211; s. c. 14 Am. R. 232.

If any one calls on a debtor and informs him that he is about to take an assignment of the debt, and the debtor acknowledges that it is due, without any allegation of defense, he shall not be permitted to make defense against the assignee. And this, whether his silence proceed from ignorance

or design. 2 Sm. L. C. 722; Bigelow on Est. 478 n; Man v. Howland, 20 Wis. 282; McMullen v. Wenner, 16 S. & R. 18; s. c. 16 Am. Dec. 543; and see Reedy v. Brunner, 60 Ga. 107; Morrison v. Beckwith, 4 T. B. Mon. 73; s. c. 16 Am. Dec. 136; Sweazey v. Collins, 40 Iowa, 540.

Similar to the last case is the liability of a bank when it certifies a check to be good, by mistake, under the erroneous impression that the drawer has funds o.. deposit. That this is on the principle of estoppel and not of contract, is evident from the limitations of the rule. Irving Bank v. Wetherald, 36 N. Y. 335. The certificate may be revoked and annulled at any time before it has been acted on. If the check has been altered before acceptance, the bank is not bound. The mischief would arise from charging the bank with knowledge that, in the nature of things, they can not possess. With their responsibility limited to the facts within their knowledge, the practice imposes no burden on the banks, and subserves the interests of commerce.” Marine Nat. Bank v. Nat. City Bank, 58 N. Y. 67; s. c. 17 Am. R. 305.

Bills of lading and warehouse receipts are conclusive in the hands of bona fide assignees as to the existence of facts represented in or by them, and which are presumed to have been within the knowledge of the maker at the time of their execution. Hale v. Milwaukee Dock Co., 29 Wis. 482; s. c. 9 Am. R. 603; Armour v. Michigan, etc. R. Co., 65 N. Y. 111; s. c. 22 Am. R. 603.

If the creditor tells a surety that the debt is paid, when in fact it is not, and the surety in consequence thereof releases a security, or omits to secure himself, or is in any manner injured thereby, the surety is discharged. And this is so even though the creditor is honestly mistaken. Carpenter v. King, 9 Metc. 511; s. c. 2 Am. L. C. 427; Kingsley v. Vernon, 4 Sanf. 361; Grant v. Cropsey, 8 Neb. 205; s. c. 7 Rep. 686; Brandt on Suretyship, § 211.

In the implied warranty of title, knowledge of the truth is presumed on the part of one who asserts title in himself when he has it not. It would seem that it should equally be presumed on the part of one who denies the title that he really has; and it is believed that this is so, whenever the facts are peculiarly within his knowledge and not within that of the other party. One can not justly be held to a statement innocently made, when both are equally ignorant in fact, and each has the same means of information and this is known to the party making the inquiry. Warner v. Fountain, 28 Wis. 405; Gove v. White, 20 Wis. 425, 430, 433; Sackett v. Kellar, 22 Ohio St. 554; Stuart v. Luddington, 10 Am. Dec. 550; s. c. 1 Rand. (Va.) 403. But, when this is not the case, the inquirer has the right to presume that one, who assumes to speak as to his own title, has some special means of information, and is justified in relying on his statements. The facts as to title are ordinarily within the knowledge of the owner, and in this case he assumes to possess such knowledge. One party is ignorant; the other is pre

sumed and professes to know. Favell v. Roberts, 50 N. Y. 222, Blair v. Wait, 69 N. Y. 113; Beatty v. Sweeny, 26 Mich. 217; Beardsley v. Foot, 14 Ohio St. 416; Wagner, C. J.. in Rice v. Bunce, 49 Mo. 231; s. c. 8 Am. R. 129; Agnew, J., in Chapman v. Chapman, 9 P. F. Sm. 214; Laselle v. Barnett, 1 Blackf. 150; s. c. 12 Am. Dec. 217; 2 Sm. L. C. 741. In any case a man will not be allowed to plead that he had forgotten his own title; even when the estoppel rests on mere silence. Bigelow on Estoppel, 478, 480 n; Bullis v. Noble, 36 Iowa, 618.

It is said that apparent exceptions to the rule requiring the scienter are referable to the maxim, that where one of two innocent persons must suffer, he shall suffer who by his acts occasioned the loss; the liability being fixed upon the party whose negligence indirectly occasioned the injury. As to the first proposition, it is believed that the principle of the two innocents is a fallacy always useless and often misleading; as to the second, if the negligence is to be proved as a fact, it is believed that it does not explain the cases; if it is to be presumed by the court, it makes little difference whether knowledge or negligence is presumed.

III. When a vendor assumes to assert a fact, upon which he intends the buyer shall rely as an inducement to the purchase, and upon which the buyer does rely, there is an express warranty. Benj. on Sales, § 613 nn. It is said that this is because it is so intended; but in many of the cases the idea of such a contract or warranty was probably never present to the minds of the parties. Here we have a person held responsible for a representation innocently made; but it is made not only with the knowledge that another is about to act upon it, but for the purpose of persuading him to such action. The same thing is observed in the tendency of courts of equity to permit a party to rescind a contract into which he was induced to enter by false representations of the opposite party, even if the falsehood was not known to the party making the representations. Anson on Con. 151 n. (a.); Frenzel v. Milier, 37 Ind. 1; s. C., 10 Am. R. 62; but see Griswold v. Sabin, 51 N. H. 167; s. c. 12 Am. R. 76. On the same principle it is believed that an estoppel will be sustained without proof of the scienter, whenever the representation is meant to influence the conduct of another, or is made under such circumstances that a reasonable man would take it that he was meant to act upon it. The distinction is between merely answering such questions as may be asked and acquiescing in the action thereon, and participation and encouragement. Brett, J., in Carr v. London & Northwestern R. Co., L. R. 10 C. P. 307; s. c. 12 Moak, 364; Beatty v. Sweeny, 26 Mich. 217; Wilson v. Vaughan, 40 Iowa, 179; Gillespie v. Carpenter, 25 How. Pr. 203; Gove v. White, 23 Wis. 282; Miller's Appeal, 4 Weekly Notes, 405. Perley, C. J., in Horn v. Cole, 51 N. H. 287, s. c, 12 Am. R. 111; Creque v. Sears, 17 Hun (N. Y.) 123; and see Smith v. Cramer, 39

Iowa, 413; 2 Sm. L. C. 741, 724, 722; 2 L. C. Eq. 29-30; Bispham Eq. § 288. "When an admission is made by one party, in such a way that the other party relies on the admission as the consideration for something done or forborne by him, then this admission may conclude by way of estoppel the party making it." "The contractual admission is equivalent to an offer, which, when accepted by the other party, makes a contract." 2 Whart. Ev, §§ 1083, 1085. It seems clear that an admission by mistake was in the mind of the author; yet no one acquainted with the work will be surprised to find in the next sentence that the estoppel may be avoided by proof of mistake. If this is so, the idea of a contractual admission is unnecessary, useless and misleading.

This doctrine seems to be regarded as established in England. In the case first cited, Brett, J., after stating the rule as to representations known to be false, says: "Another recognized proposition seems to be, that if a man, either in express terms or by conduct, makes a representation to another of the existence of a certain state of facts, which he intends to be acted on in a certain way, and it be acted upon in that way, in the belief of such a state of facts, to the damage of him who so believes and acts, the first is estopped to deny the existence of such a state of facts." Carr v. London & N. W. R. Co., L. R. 10 C. P. 317; s. c. 12 Moak, 373; and see Cont'l Nat. Bank v. Nat. Bank of Commonwealth, 50 N. Y. 575. This is on the equitable principle that he who makes a representation and leads another to act thereon, shall be compelled to make it good. Unfortuuately, the first leading case in England in which this principle was announced in a court of law, was one to which it was not applicable. Pickard v. Sears, 6 Ad. & El. 469, was essentially a case of estoppel by silence, such as is noticed in the first part of this article. Bispham Eq. § 284. While this is now one of the simplest cases in the law of estoppel, it was at the time the most difficult that could have arisen. Had there been a positive representation, the solution would have been plain; if the falsity had been known, the estoppel would have been the natural result of Pasley v. Freeman; if unknown, but the representation had been meant to be acted on, the principle stated by Lord Denman would have applied. But it was at that time something new in a court of law, that one should lose a legal title by merely remaining silent. The real difficulty occasioned by the case is evident from the effort made to find something in the conduct of the plaintiff amounting to a representation, and from a comparison of the opinion with the nicety and precision with which Lord Denman, some years later, stated the true rule of the case. "A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterward dispute that fact in the action against the person whom he assisted in deceiving." Gregg v. Wells, 10 A. & E. 90. Lord Denman speaks of this as a broader statement of

the rule announced in Pickard v. Sears. As to certain elements, it is broader; but it introduces an element not before required-the scienter. In attemptting to apply his language in the earlier case to estoppels by silence or by representations known to be false, a failure to speak was accepted as equivalent to a representation, and the word induce received the sense of acquiesce. The words being thus distorted from their natural meaning, the further mistake was made of considering Lord Denman's language as a general formula, within which all cases must be brought. So understood, the scienter was an essential element. Hence the general rule. Perley, C. J., in Horn v. Cole, ante; Preston v. Mann, 25 Conn. 168.

In Preston v. Mann, the language of Lord Denman in Pickard v. Sears is cited as containing a more accurate definition than the cases by which it has been qualified; and it is believed that this is So when the words are taken in their natural meaning. This accords with the earliest statement of the doctrine in America. "As a general rule, a party will be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter." Nelson, J., in Welland Canal Co. v. Hathaway, 8 Wend. 480. In reference to this case, and that of Pickard v. Sears, it has been said that "it is worthy of remark how exactly the two cases agree in the enunciation of the doctrine, neither judge having had a knowledge of the other's decision." 2 South. L. J. (N. S.) 645. But it would be more remarkable that, while both the judges derived the doctrine from the same source, each should have ignored an essential element, which would be the case if the scienter is necessary.

In this article it has been attempted to point out four distinct classes of estoppel: (1) by silence; (2) by representations known to be false; (3) by representations of facts peculiarly within the knowledge of the party making them; and (4) by representations designed to influence the conduct of another. In cases of the first class, a person is estopped because he has not spoken when he ought to have spoken; of the second and third, because he has spoken what he knew to be false, knowledge being proved in one case and conclusively presumed in the other from the nature of the facts misrepresented; of the fourth class, because he who makes a representation and leads another to act thereon, should make it good. For an able presentation of adverse views, see 4 Cent. L. J. 183; note by M. A. L.

R. T. HOLLOWAY.

1. The State may authorize a railroad company to so occupy a highway as to wholly obstruct it; but a mere license to occupy the street does not give a right to destroy it; and in such case the public may interfere and cause the obstruction to be abated; an individual can not: he is limited to recovery of damages for special injuries.

2. Where, in such cases, the obstruction is of a permanent nature, the lot-owner may recover the depreciation in the value of abutting property occasioned by such obstruction; but when the obstruction is merely temporary, his recovery must be limited to damages sustained at the time of commencing suit.

3. When the lot-owner sues for depreciation in the value of his lots by reason of a permanent obstruction, a recovery will stand as an assent on his part, and those claiming under him, to such obstruction, and will bar any further recovery on account thereof.

BREWER, J., delivered the opinion of the court: The defendant in error brought an action in the District Court of Atchison County, Kansas, against the Central Branch Union Pacific Railroad Company, alleging, in substance, that he was the owner of a certain lot in the city of Atchison, occupied by the said Wm. M. Twine as a residence; and that on the south line of said lot there was an alley set apart and dedicated to the use of the public, and for the use and benefit of adjoining lot owners; that said alley was the only way by which the said Wm. M. Twine could have ingress and egress to and from the south end of said lot; that on or about the 1st day of August, 1877, the railroad company "illegally and wrongfully obstructed said alley aforesaid by digging ditches therein, and laying down and building its railroad track therein, and since about the 1st of August, 1877, has kept its railway cars and coaches continually and at all times standing upon its said track in said alley, and has kept the said ditches and its said track so dug, in such condition as to illegally, wrongfully and improperly obstruct said alley during all of said time, and has illegally, wrongfully and improperly deprived this plaintiff of all use and beneflt of said alley, and of all means of ingress and egress to and from the south of said lot in any other manner than by passing through his dwelling house, since about the 1st day of August, 1877; that by reason of such acts of the railroad company the said Twine had been damaged in the sum of $500.”

To this petition the defendant company filed a general denial. The case was tried at the June term, 1878, without a jury, before Hon. Robert Crozier, Judge pro tem., and judgment rendered against the railroad company for the sum of $120. ▲ motion for a new trial was duly filed by the

railroad company, and being overruled, the plaintiff in error brings the case to this court, seeking to obtain a reversal of the judgment of the court below.

We see no error in this ruling. The petition alleges the ownership of the lot, that it abutted on this alley, which of course gave a right of ingress and egress, and which right, personal and of special value to the plaintiff, the railroad company had destroyed by its manner of occupying the alley. It charges substantially that the railroad company has destroyed the use of this alley as a public highway, and has appropriated the same to its own use, and that the plaintiff, as the owner of an abutting lot, is specially injured in that egress and ingress to his lot over this established highway is destroyed. That this wrong gives a right of action is plainly affirmed in the case of Atchinson, etc. R. Co. v. Garside, 10 Kas. 552. See, also, Venard v. Gross, 8 Kas. 248.

While a railroad company may use a highway, it can not confiscate it, at least a mere license to occupy does not give a right to destroy it; so long as it is a highway, the public use can not be destroyed. And whenever a railroad company occupying a highway so lowers or fills or cuts it up as to prevent its use as a highway, the public may interfere and prevent such manner of occupation. And any individual sustaining special injury from such occupation may recover his damages therefor. A railroad company has no higher rights in a highway than an individual; it may share in its use, but can not monopolize it. And the owner of a lot abutting on the highway and who has special need thereof for ingress and egress to his lot, is specially damaged by any monopolizing of the use of the highway by a railroad company. Here the appropriation charged is in the manner of construction and in leaving its cars constantly standing upon the track. Either is a wrong giving plaintiff a cause of action. Haynes v. Thomas, 7 Ind. 38; Elizabethtown, etc. R. Co. v. Combs, 10 Bush, 382; Jeffersonville, etc. R. Co. v. Esterle, 13 Bush, 667; Stetson v. Chicago, etc. R. Co., 75 Ill. 74; Cincinnati, etc. Street R. Co. v. Cumminsville, 14 Ohio, St. 523.

The other and more important question worthy of notice is the measure of damages. The court found that from the manner in which the railroad track was constructed and left to remain, the plaintiff was damaged in the sum of $120. Upon what method of computation this result was reached, the findings do not advise. From them alone it could not be said whether this was simply the damages suffered by the owner from the continuance of the nuisance up to the day of filing the petition, or the depreciation in value of the property by reason of the track, regarded as a permanent obstruction of the highway. Neither is there given in the testimony any sums or figures from which, as in the computation of an account, these exact damages could be reached. There being then no certainty from the findings whether the damages were for loss of rent, or other tem

porary injury, or for permanent depreciation in value, and one or the other being unquestionably correct, the contention of counsel for defendant in error is, that the presumption must be that the trial court adopted the proper method of computation, the correct measure of damages. On the other hand the plaintiff in error claims that the rulings on the trial show that the court treated the wrong as a permanent injury and measured the damages by the depreciation in value of the property. In support of this they cite the admission of testimony over objection as to the value of the premises before and after the laying of the track, the sustaining of an objection to a question as to the damage to the property from the laying of the track to the date of the commencement of the suit. In regard to this latter ruling it can be sustained upon other grounds. Such a question, i. e., as to the amount of damage done or caused by a particular act, is generally objectionable. That is not a matter calling for the opinion of a witness. Roberts v. Brown County, 21 Kas. 247.

We may remark generally as to the testimony that it was very full and specific as to the condition of the alley prior to and after the laying of the track, the relations of the alley to the plaintiff's premises, the manner and frequency of its use by him, and all other circumstances from which injury, whether temporary or permanent, could be deduced. And even if the inquiry were limited to the mere temporary damages, we are not entirely clear that evidence of value was incompetent. See Bathishill v. Reed, 37 Eng. L. & E. 317; Hopkins v. Western, etc., R. Co., 50 Cal. 194; Pinney v. Berry, 61 Mo. 360; Delaware, etc., Co. v. Wright, 21 N. J. 469; Hatfield v. Central R. Co., 33 N. J. 251.

But conceding that the court treated the obstruction as a permanent one, and measured the damages accordingly, as for a permanent depreciation in the value of the property-and we are inclined to think such was the view actually taken-was the ruling erroneous? It will be noticed that the petition counted on obstruction in two ways, first by the track itself, and second, by permitting cars to remain an unnecessary and unreasonable length of time on the track. The finding ignores this latter cause of inquiry, and awards the damage solely in consequence of the former. Now the latter injury is obviously and in its nature temporary. It constitutes a nuisance to-day, which to-morrow may cease. At any rate it is fluctuating and depends on the daily action of the company. It is not a nuisance which in any sense can be regarded as permanent. For such injuries it may well be that only such damages, as have been sustained by the conduct of the company prior to the suit, are recoverable. There can be no presumption that the company will continue the wrong. So if the injury charged was in the digging up the alley for the purpose of laying the track, such an obstruction as continues only during the process

of construction, and which ceases when the track is completed, is but a temporary wrong. But here the wrong charged is that the track, as it stands after completion, so occupies the alley as to exclude other use and prevent egress and ingress. And the testimony abundantly shows that the company considers such manner of occupation necessary for its purposes, and has so laid the track with reference to its own necessities. Haying reference to its own uses and purposes, there was no negligence in the construction; the work was well and properly done; and the wrong consists in this, that if its use of the alley continues, the plaintiff's use must cease. Now, is it not to be presumed that when the company thus laid its track, it intended a permanent use of the alley, a permanent dispossession of plaintiff from its use? and may not the plaintiff, accepting that as a fact, recover in a single action the permanent injuries which his property sustains thereby? Must he assume that because the company can, it will remove its track, and so for each day's continuance of the obstruction bring his separate action? Must he assume that because the State can, it will compel such a modification, or, if necessary, abandonment of the use by the railroad company, as will permit a use by the public generally, and thus treat that as temporary which the company evidently intends as permanent, and which he, as an individual, cannot prevent from being permanent? It may well be that the State regards the use by the company as of more value to the public than the general use by the public itself, and so, will never interfere with such use by the company. And if the State assents, who can disturb the use? For while there are cases in which an individual can abate a public nuisance, when that nuisance does him a special and personal injury, can that be called a public nuisance which the State authorizes, or even that which it simply assents to? Suppose the State, in express terms, empowered a railroad company to construct its track along a highway at such a grade as to destroy its use by the public generally as a highway; is not such authority within the power of the State? And would it be contended that under pretense of abating a public nuisance of special injury to himself, an adjacent lot owner could remove the track or restore the grade? It is said by Cooley, in his work on Torts, p. 615: "The State having in some form provided for and created a certain easement, may, at its will, abandon it or change it to some other easement, or restrict or enlarge the use of it, and generally do with the creature of its authority what it pleases. A common highway may thus be qualified by the laying of a railway track upon it; a navigable stream may be bridged or dammed; awnings may be permitted above a city street, and covered areas below it; navigation companies may be given special privileges in the public streams of the State, and so on. In these cases the State only restricts or narrows its own right; and the right of the indi. vidual, which is only a part of the public right,

can be no broader than that which the State has retained." If this be true when the State expressly grants such authority, is it not also true when the State merely licenses the occupation by the railroad company, and the latter, in a reasonable and proper construction of its track, so changes the grade as to practically exclude all other use of the highway, and such change of grade and manner of occupation is unchallenged by the State? Is not, so far as the individual is concerned, this implied assent equivalent to express authority? and can he, either by his own act or through any process of the courts, abate this obstruction of the highway? But be this as it may, may not the lotowner, when such appropriation of a highway is in fact made by a railroad company, at least assume that the State has granted authority,— that the company has done that which it had license to do, and treat the appropriation as permanent? and in such case, may he not recover for the obstruction to ingress and egress as a permanent injury to and depreciation of the value of his lot?

While the amount in controversy here is small, the principle is important. A net-work of railroads already covers the State, and the iron track is being pushed in every direction. It will soon touch every city and town and village, and in the nature of things must occupy many highways and streets. Frequently conformity to the established grade of the highway may be impossible. Sometimes there may be express grant of authority to alter the grade to the extent of partially or totally obstructing other travel; more often, as in the present general law, simply license to occupy, with the duty of restoring the road to such a state as not to impair its usefulness as a highway. Comp. Laws, 1879, p. 224, sec. 47. Of course the controlling and supervising power of the State always remains. But where occupying under the general law, a railroad company so changes the grade as to obstruct ingress and egress, must the lot owner treat it as simply a continuing nuisance, for each day's continuance of which he has a separate action, and so multiply suits with no benefit to himself and great injury to the company? Or may he not treat it as a permanent injury, recover for its effect upon the value of the lot as such an injury, and thereby yield his personal assent to the continuuance of such obstruction, and estop him or any subsequent owner of the lot from challenging the company's manner of constructing its track? When the right of way is condemned, though only an easement is taken, the full value of the land is awarded because the appropriation is understood to be permanent. The company may abandon its right of way to-morrow, yet action is taken as though it never would abandon. So when its track is laid in a highway, unless placed in such a manner as indicates only a temporary use, may it not be treated as a permanent appropriation, and action taken accordingly? Does not the spirit of present law aim to adjust rights with fewest