1. STREETS-RAILWAY FRANCHISE ON-EJECTMENT BY ABUTTING OWNER. —
The owner in fee of land abutting upon a public street in an incorpo
rated town cannot maintain an action of ejectment against a railway
company which, under and by virtue of an ordinance of the town
trustees empowering it to do so, has constructed and is using a railway
track upon and over the public street, upon the side or half thereof
adjoining the land of such abutting owner. Montgomery v. Santa Ana
etc. Ry. Co., 89.
2 SERVITUDES-USE OF STREET For RailWAY PURPOSES-DAMAGES.-The
use of a public street in a city for general railway purposes does not
impose any new burden or servitude upon the owner of the abutting
land. The object of the user being within the conceded rights of the
public, the methods of its accomplishment are subject to legislative
control. They are also subject to an action for damages by an abutting
owner whose right of ingress and egress, or right to light and air, will
be interfered with, whether or not ho may be vested with the fee to the
center of the street. Montgomerg v. Santa Ana etc. Ry. Co., 89.
& URBAN SERVITUDES-RAILWAY TRACKS-COMPENSATION TO OWNER.-
Urban servitudes are essential to the enjoyment of streets in cities, and
authorize the use of a street for the track of a street-car company under
a license by the city authority, without compensation to the owner of
the fee. It makes no difference whether such use is for the transporta-
tion of passengers or freight. Montgomery v. Santa Ana etc. Ry. Co., 89.
4. MUNICIPAL CORPORATIONS-STREETS-RAILWAY AS ADDITIONAL USE.-
Laying a track on the established grade of a street, under legislative
authority, and operating a steam railway thereon, does not subject the
street to a public use different from that contemplated in the original
grant. Lockwood v. Wabash R. R. Co., 752.
5. CARRIERS-WHEN BECOME LIABLE AS SUCH.-Though a shipper has
agreed to load his property in the cars, and has not yet done so, the car-
rier is liable for its loss if it has been placed in his freight-house for the
purpose of shipment, with the consent and under the direction of his
freight agent, and it is ready for immediate transportation, and the
cause of delay is the failure of the carrier to funish the requisite cars.
London etc. Ins. Co. v. Rome etc. R. R. Co., 547.
& CARRIERS OF LIVESTOCK-CONSTRUCTION of Contract of SHIPMENT.-A
provision in a contract for the carriage of livestock that "the stock is
to be loaded, unloaded, fed, watered, and otherwise cared for, while in
the cars, by the shipper or owner, does not mean that the duty is to be
performed by the shipper while the train is in motion and without
being afforded an opportunity by the carrier to perform the duty. On
the contrary the carrier must afford the shipper such opportunity if the
train is delayed. Smith v. Michigan Cent. R. R. Co., 440.
7. CARRIERS OF LIVESTOCK-LIABILITY AS BAILEE.-A railroad company
accepting livestock for transportation under a contract providing that
it "is to be loaded, unloaded, fed, watered, and otherwise cared for,
while in the cars, by the shipper or owner" thereby becomes a bailee
for hire, and, having control of the cars in which the stock is shipped,
is bound to furnish the shipper an opportunity to give the animals the
care they may require in case the train is delayed. Smith v. Michigan
Cent. R. R. Co., 440.
AM. ST. REP., VOL. XLIII.-64
8. LIABILITY TO Person Riding on Handcar.—A young child cannot re-
cover from a railway company for injuries received through the negli.
gence of the company's employees while the child was riding on a
handcar, if such employees had been expressly forbidden by the rules
of the company and otherwise to permit persons not employees to ride
on such cars, and there was no custom to permit persons to so ride,
shown to have been known to, or acquiesced in by, the officers of the
company. Houston etc. Ry. Co. v. Bolling, 38.
9. MASTER AND SERVANT.—It is the duty of a railway corporation to exer-
cise reasonable and ordinary care and diligence in providing and keep-
ing in repair reasonably safe machinery and appliances for the use
of its employees, and this is a continuing duty requiring the corpora.
tion to exercise reasonable diligence and care in supervision and in.
spection. Chicago etc. R. R. Co. v. Kneirim, 259.
10. MASTER AND SERVANT.-A SERVANT OF A RAILWAY CORPORATION DOES
NOT ASSUME THE RISK OF THE NEGLIGENCE OF HIS EMPLOYER in failing
to have the machinery and appliances in a reasonably safe condition.
He has the right to believe the cars used are, as to their repair, in a
reasonably safe condition, and that the master's duty in that respect
has been discharged. Chicago etc. R. R. Co. v. Kneirim, 259.
11. MASTER AND SERVANT--FELLOW-SERVANTS, Who are, WHEN A QUES
TION OF FACT.-Whether a helper in the yard of a railway and a brake-
man, who brought the train into such yard, and the inspectors of the cars
such train are fellow-servants is a question for the jury, and it is not
error to refuse to instruct the jury that these employees were fellow.
servants. Chicago etc. R. R. Co. v. Kneirim, 259.
12. NEGLIGENCE, CONTRIBUTORY.—A HELPER in the Yard oF A RAILWAY
CORPORATION, whose duties require him to catch cars while in motion,
and climb on and set the brakes, and, when making up a train, to
couple the cars, cannot be held guilty of contributory negligence in fail-
ing to examine a brake-rod, wheel, and nut, and in not discovering that
the nut which held the wheel on the brakestaff was off. His duties are
not the same as those of a brakeman of a freight train, and therefore he
cannot be held to be negligent in not discovering defects which it
would have been the duty of such a brakeman to discover. Chicago etc.
R. R. Co. v. Kneirim, 259.
13. MASTER AND SERVANT-VICE-PRINCIPALS.—If a servant of a railway
corporation is intrusted with a duty that belongs to his principal as a
primary duty the negligence of such servant is negligence for which the
principal is answerable to another servant injured thereby. Chicago
etc. R. R. Co. v. Kneirim, 259.
ONE MUST 80 USE HIS PROPERTY as not to injure his neighbor. Beatrice
Gas Co. v. Thomas, 711.
See DAMAGES, 3; Insurance, 6, 12; MUNICIPAL Corporations, 7; PUBLIO
LANDS, 2; WATERS, 9.
See VENDOR AND PURCHASER.
Bee ATTORNEY AND CLIENT, 2; CORPORATIONS, 13.
See DEEDS, 4; EXECUTORS AND ADMINISTRATORS, 8; JURISDICTION, 2; Morr
See SPECIFIC PERFORMANCE, 4.
RES GESTÆ
See HOMICIDE, 4.
See JUDGMENTS, 4-6; MORTGAGES, 13.
AT COMMON LAW A MERE POSSIBILITY was not the subject of release,
and a release at common law was held to operate only upon a present
interest. In re Estate of Garcelon, 134.
REVOCATION.
See WILLS, 12.
RIPARIAN RIGHTS.
See WHARVES, 1; WATERS, 1-6, 9.
L TRANSFER OF HEIR'S EXPECTANCY-RULE AT COMMON LAW AND IN EQUITY
-STATUTORY Construction.—At common law a mere possibility, such
as the expectancy of an heir, was not regarded as such an existing inter-
est as to be the subject of a sale or capable of passing by assignment;
but in equity the rule is different, and agreements for the sale or release
of expectancies, if fairly made and for an adequate consideration, are
enforced upon the death of the ancestor. Sections 700 and 1045 of the
Civil Code were intended to state the rule of the common law, but not
to make any change in the equitable rule. In re estate of Gardner, 134.
2 A DELIVERY OF PROPERTY SO AS TO PASS THE TITLE, and make the
transaction an executed contract of sale, must be a delivery of the prop-
erty corresponding with the order or contract of purchase, which is a
condition precedent to the vesting of the title in the vendee. Aultman
▼. Clifford, 478.
Bee BAILMENTS, 1, 2; EVIDENCE, 10; EXECUTORS AND ADMINISTRATORS, 1, 63
VENDOR AND PURCHASER.
SEARCHERS OF RECORDS.
Bee LIMITATIONS OF ACTIONS, ♣
SELF-DEFENSE
See HOMICIDES, &
SERVITUDES.
See RAILROADS, 2, 3.
SHERIFF'S SALES.
See JUDICIAL SALES,
1. PRIVILEGE-DISCUSSION OF OFFICIAL CONDUCT.-A member of a city
council, during a session thereof, is not privileged to falsely call another
city officer a "thief," although the term is intended to apply to his
official conduct, if there is no inquiry pending or proposed as to such
conduct. Callahan v. Ingram, 583.
2. PRIVILEGE-QUESTION OF LAW. — In an action of slander the question
whether the occasion on which the words were spoken was such as
to make the communication one of privilege is always a question of law
for the court, when there is no dispute as to the circumstances under
which it was made. Callahan v. Ingram, 583.
8. IMPLIED MALICE. — EXEMPLARY DAMAGES may be recovered in an
action for slander when defamatory words are spoken with implied
malice, as well as when they are spoken with express malice, and malice
is implied from the willful utterance of falsehoods concerning another,
whereby injury is done to his character. Callahan v. Ingram, 583.
4 EXEMPLARY DAMAGES - QUESTION FOR JURY. - Exemplary damages
may always be given in actions for slander when the defamatory
words are maliciously spoken, but whether such damages should be
given in any case is a matter within the discretion of the jury. If the
defendant has put in evidence circumstances tending to rebut malice,
exemplary damages can only be awarded in case the jury is satisfied
that the words were maliciously spoken, and the jury should be so
instructed. Cullahan v. Ingram, 583.
6. EVIDENCE.-In an action for slander a person who heard the defama-
tory words uttered cannot testify as to his understanding of their mean-
ing. Callahan v. Ingram, 583.
6. MALICE EVIDENCE. — In an action for slander statements by others
than the defendant about the matter respecting which the slanderous
words were spoken are admissible in evidence to show want of actual
malice. Callahan v. Ingram, 583.
7. DAMAGES - EVIDENCE IN MITIGATION. — Evidence of the intention
and motive of the defendant in slander in speaking the defamatory
words is admissible in evidence for the purpose of mitigating the pun-
ishment, by way of exemplary damages, but not for the purpose of
mitigating the actual damages. Callahan v. Ingram, 583.
4. INNUENDO. The office of an innuendo in a declaration for slander
is to set a meaning upon words or language of doubtful or ambiguous
import; and which, if taken alone, are not actionable. In case the
defamatory meaning is apparent from the words used no innuendo is
necessary. Callahan v. Ingram, 583.
INNUENDO. — If the words alleged as slanderous are actionable per se
an innuendo limiting their meaning may be disregarded. Callahan v.
Ingram, 583.
10. INNUENDO, WHEN DISREGARDED.-A declaration falsely made that a
a person is a "downright thief" is slanderous and actionable per se,
and, if alleged with an innuendo, is ground for recovery of damages
without proof that the words were spoken in the sense alleged in the
innuendo. Callahan v. Ingram, 583.
1. SPECIFIC PERFORMANCE IS A MATTER OF DISCRETION in the court which
withholds or grants relief, according to the circumstances of each par-
ticular case, when the general rules and principles which govern the court
will not furnish any exact measure of justice between the parties.
Kofka v. Rosicky, 685.
2. SPECIFIC PERFORMANCE OF CONTRACTS FOR THE SALE OF LAND is not a
matter of right in either party, but rests in the sound discretion of
court of equity. Chabot v. Winter Park Co., 192.
3. TIME AS ESSENCE OF CONTRACT.—While equity does not regard time as
of the essence of a contract for the sale of land unless expressly made
so by the contract, yet it requires that one who seeks specific per-
formance of such contract shall not be guilty of unreasonable delay,
and shall seek his redress with reasonable promptness. Chabot v. Win
ter Park Co., 192.
4 TIME WITHIN WHICH TO FILE BILL. What is a reasonable time
within which to file a bill for specific performance of a contract for the
sale of land cannot be fixed with precision by any general rule, but
such delay as raises a presumption that the party has abandoned the
contract is unreasonable, and is equivalent to consent to rescission.
Chabol v. Winter Park Co., 192.
B. PARTIES.-After an owner of land has ignored his written agreement to
convey the land, by conveying to another under a prior oral contract,
the purchaser who has paid the purchase money and directed the deed
to be made to a third person is a necessary party to a bill for specific
performance filed by the holder of the written agreement against thes
vendor and against the grantee in the deed to have the latter declared
a trustee of the legal title. Maguire v. Heraty, 800.
6. EVIDENCE TO DEFEAT.-Any evidence that shows that a decree of specifie
performance, even of a written agreement of sale, would be unfair or
inequitable, is sufficient to defeat the application. Maguire v. Heraty,
7. DAMAGES.-If, on the trial of a bill for specific performance of a con--
tract to convey land, it appears that the vendor has made the execu
tion of the agreement impossible, by the performance of a prior contract
of sale and the acknowledgment and delivery of a deed in pursuance
thereof, his liability upon the second contract is for damages only.
Maguire v. Haraty, 800.
& SALE TO TWO VENDEES.-If an owner of land enters into an oral con-
tract to sell it, and subsequently executes a written agreement to sell
the same land to another party, the latter is not entitled to specific
performance of his contract in order to prevent the vendor from execut-
ing and carrying out the first contract. Maguire v. Heraty, 800.
9. COMPENSATION FOR IMPROVEMENTS.-If a vendee in possession under a
contract to purchase land has made valuable improvements upon the
faith of his purchase, and the contract is such that specific performance
cannot be enforced, the vendor may be compelled to refund the pur-
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