than that covered by the plaintiff's deed of trust, nevertheless the plaintiff set up all these matters by way of a cross-bill in that action, and asked affirmative relief. Thus the whole controversy, pertaining to the whole land, was before a court of equity, and that court had ample power and jurisdiction to do full justice between the parties, and to render such a decree as to the court seemed equitable and right. The plaintiff submitted to that decree, and cannot now be heard to assert any right that was then adjudicated.

These considerations necessarily lead to the conclusion that the petition states no cause of action, that the plaintiff is not entitled to the relief sought upon the merits of the case, and that the plaintiff's right, if any such ever existed, has been adjudicated in the prior suit.

The judgment of the circuit court is for the right party, and is affirmed. All concur.

ST. LOUIS & S. RY. CO. v. LINDELL RY. CO. et al.

(Supreme Court of Missouri, Division No. 1. June 15, 1905.)

1. MUNICIPAL CORPORATIONS QUISITION EVIDENCE.

STREETS-AC

Subsequent to the construction of a railway track a street was laid out as a public highway across the railway right of way. The company did not dedicate the portion of the right of way as a part of the street, nor was it condemned for street purposes, but the city opened and graded the street across the right of way, laid water and sewer pipes thereunder, built sidewalks, etc., and made it as much a part of the street as any other portion thereof. The cost of the improvements was paid by the company. The public used it for a highway for about 18 years. Held, that the street across the company's right of way constituted a public highway.

2. SAME

STREET RAILROADS - PERMISSION TO OPERATE LINES ON STREETS.

A city may permit a street railway company to construct and operate a line on a public highway, though it crosses the right of way and tracks of another railway company, Const. art. 12, § 20, reserving to a city the right to permit the operation of street railroads on its streets.

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

Action by the St. Louis & Suburban Railway Company against the Lindell Railway Company and others. From a judgment dismissing the bill, plaintiff appeals. Affirmed. Jefferson Chandler, for appellant. Boyle, Priest & Lehmann, for respondents.

MARSHALL, J. This is a bill in equity to enjoin the defendants from crossing the tracks of the plaintiff on Hamilton avenue, in the city of St. Louis. Upon final hearing the trial court dissolved the injunction and dismissed the bill, and the plaintiff appealed. This being a proceeding in equity, the facts will be stated in the course of the opinion.

1. The decisive question in this case is, whether Hamilton avenue is a public highway or street in the city of St. Louis. All other questions are subsidiary to this main question, and the solution of the main question carries with it the determination of the greater portion of the contention of counsel for plaintiff in this case.

All the parties hereto are street railway companies in the city of St. Louis, organized under the laws of this state. The plaintiff is a successor or grantee of the old St. Louis & Florissant Railway Company. In 1870, the St. Louis & Florissant Railway Company was a steam railway operated upon a narrow-gauge track. The eastern terminus was. at a point almost midway between Grand avenue on the east, Vandeventer on the west, Olive on the south, and Washington avenue on the north. Its western terminus was Florissant, in St. Louis county. Defendant acquired its own right of way, which, at the point here involved, was 30 feet wide. At that time nearly the entire route of said railway lay outside of the city of St. Louis. When the city and county of St. Louis were separated and the limits of the city were extended, the locality involved in this case became a part of the city. At that time, and for many years afterwards, there were no streets in that portion of the city where Hamilton avenue now is, and very few houses of any character or description. About 1875 the owners of the property in the neighborhood of Hamilton avenue subdivided their land and platted it, laying it off into city lots, and making them abut the right of way of the old railroad company. Thereafter the locality rapidly increased in population and importance. At a time, not definitely stated, but which all the evidence shows to have been about 18 years before the institution of this suit, streets were projected running north and south, and crossing the right of way of said railway company. Among them was Hamilton avenue. That street was laid out as a public highway 80 feet wide. It ran north and south, and crossed plaintiff's right of way at right angles. The plaintiff and its predecessors never dedicated by deed or plat the portion of the right of way as a part of Hamilton avenue, nor was the same ever condemned for street purposes. But the city of St. Louis opened and graded the street for its full width across the plaintiff's right of way, laid water pipes thereon beneath the surface, constructed sewers thereunder, built sidewalks, and in all respects made it, so far as appearance and use was concerned, as much a part of the street as any other portion thereof. Electric wires were strung on and over the same, and the city every year sprinkled it, just as it did other public streets. The cost of construction of the street and sidewalk and of the sprinkling was assessed against the plaintiff or its predecessors as an abutting owner, and it was paid by the plaintiff and its predeces

sors. On each side, to the east and west of Hamilton avenue, the plaintiff or its predecessors placed signs on the right of way lying to the east and west of Hamilton avenue, which read: "Private Right of Way. Keep Off the Tracks." During all said period of 18 or 20 years, while the city was so using and treating it as a part of the public highway, Hamilton avenue, including the portion of the plaintiff's 30-foot right of way aforesaid, was opened to public use, and was used generally by citizens for all the purposes for which streets are commonly used. During all that time neither the plaintiff nor its predecessors objected to such use, or claimed that it was not a public highway. On the contrary, the plaintiff and its predecessors paid all of the charges, special taxes, and assessments which were levied against the remaining part of its private right of way, and which were levied by the city for the improvement of Hamilton avenue, including the portion of said 30-foot strip. Originally the track of the plaintiff and its predecessors at said point was a T rail, and plaintiff and its predecessors placed a board crossing thereat, but subsequently the plaintiff removed the T rail from within the limits of what is claimed to be Hamilton avenue, and substituted therefor a girder rail, such as the city ordinance requires shall be used by street railroads. The remaining portions of the plaintiff's track outside of Hamilton avenue, and other streets that are in the same condition as to being public highways, and which portions lie entirely within the limits of the plaintiff's right of way, still have T rails thereon. At no time until shortly before the institution of this suit had the plaintiff or its predecessors claimed or asserted that Hamilton avenue did not include the portion of said 30-foot strip aforesaid. In fact, the plaintiff does not now claim that it is not a public highway for all the uses to which a public highway can be legitimately applied or devoted, except for the construction of a rival street railway thereover.

A public highway may be acquired over property of a private individual by, first, a grant or deed; second, a dedication by plat or deed; and, third, by acts in pais, which in law amount to a dedication. Heitz v. St. Louis, 110 Mo. 618, 19 S. W. 735; Meiners v. St. Louis, 130 Mo. 274, 32 S. W. 637; Buschmann v. St. Louis, 121 Mo. 523, 26 S. W. 687. The question in this case is, whether or not the conduct of the plaintiff and its predecessors amount to a dedication by acts in pais, and whether or not the acts of the city constitute an acceptance of the dedication.

The testimony clearly and conclusively shows that the city treated the said portion of said strip as a part of Hamilton avenue for nearly 20 years before this suit was instituted, and that it used it for all the purposes for which a street on, under, and above the surface is commonly used. The plaintiff knew of such use by the city, consented

thereto, and paid the assessments for the improvement of it as a street in like manner and degree that any other abutting owner pays for the improvement of a street. There is scarcely an act that could be performed by a city with reference to a street that has not been performed by the city with reference to Hamilton avenue, including the strip in controversy. The plaintiff, however, contends that a dedication, whether by deed, grant, plat, or acts in pais, must be, and necessarily is, of the whole right to the property, and that there is, and can be, no dedication in this case, because the plaintiff and its predecessors have always used it as a part of its right of way. This contention is untenable. It was, and is, clearly within the power of a city to lay out, establish, condemn, or acquire a street to cross a right of way of an existing railroad company. The street thus acquired is subject to the paramount right of the existing railroad company, but the two uses of the land for, first, a railroad right of way, and, second, for street purposes, are consistent, compatible, and legal uses. Railroad v. Chicago, 166 U. S. 233, 17 Sup. Ct. 581, 41 L. Ed. 979, and Railroad v. Gordon, 157 Mo., loc. cit. 77, 57 S. W. 742. This is necessarily true, for otherwise a street could never be projected across a railroad, nor could the city acquire the right of way to have a street cross a railroad, even though it sought to do so by condemnation. Yet section 4 of article 12 of the Constitution expressly reserves the power and right of eminent domain in such cases, and authorizes a proceeding by a city to condemn the right to construct and maintain a street across the right of way of an existing railroad. In fact, the plaintiff concedes the city could have acquired such a right in this case if it had proceeded by condemnation. If it had proceeded by condemnation, it would have acquired only the same right it did acquire by a dedication, by the plaintiff, by acts in pais. Such a dedication did not in any manner impair the plaintiff's right to use the property as a right of way, nor did it amount to a breach of trust by the railroad of its right to the land covered by the right of way.

The plaintiff, however, contends that under the decision of this court in Railroad v. Totman, 149 Mo. 657, 51 S. W. 412, title to railroad property can never be acquired by adverse possession under the statutes of this state where such possession began since the taking effect of the Revised Statutes of 1865. That case held that a railroad right of way constituted property devoted to a public use, and therefore the statute of limitations did not run against the railroad and in favor of one who had taken possession of a portion thereof; in other words, that such a possession, under our statutes, does not constitute adverse possession, and can never ripen into a title by limitation. The conclusion reached in that case met with

the approval of this division of this court, and nothing has appeared since to cause the court to change the conclusion then announced. But the doctrine there announced in no manner determines the question here involved. The question here is, not whether the city acquired title by limitation, but whether the plaintiff and its predecessors dedicated the 30-foot strip aforesaid to public use as a street by acts in pais. A dedication by acts in pais may be a perfectly valid dedication although the city has not been in the possession and enjoyment thereof for a period of time necessary to constitute title by limitation. In other words, the two legal propositions depend upon totally different principles. The conclusion is irresistible that the plaintiff and its predecessors dedicated that portion of its 30-foot strip lying within the limits of Hamilton avenue to public use as a street, subject to its right to maintain and operate its railroad thereon. Being dedicated as a public street, it passed at once to the control of the public authorities for all purposes for which any public street may lawfully be used. Elliott on Roads & Streets, p. 133.

2. The next question in this case is, whether, Hamilton avenue being a public street, the city of St. Louis had a right to authorize the defendants to construct and maintain street car tracks on the same. The plaintiff contends that the question of the necessity for the acquisition of a right of way for a railroad is a judicial question, and must be decided by the courts, and is beyond the power of a municipality or of the Legislature to determine. In the abstract, where a railroad company seeks to condemn private property for a railroad right of way, the use to which it is to be devoted is a judicial question. But this rule of law is not determinative in this case, for the defendants are not seeking to condemn plaintiff's property for a right of way, but are claiming a right to run over the streets by virtue of an ordinance duly enacted by the city of St. Louis authorizing them to do so. Given the premise that Hamilton avenue is a public street, it follows that the defendants could not condemn a right of way over the same, for section 20 of article 12 of the Constitution expressly reserves to a city, town, or village the right to say whether or not a street railroad shall be operated on any of its streets. Street railroads constitute a legitimate use of a public street. Julia Building Ass'n v. Bell Telephone Co., 88 Mo. 258, 57 Am. Rep. 398. Such railroads are simply another method of transporting citizens over the streets, and it has been held that they may not only be legally authorized on the street, but that their presence thereon does not constitute an additional servitude. The infirmity of the plaintiff's whole contention upon this branch of the case consists in its failure to differentiate between an ordinary acquisition of a right of way over private prop

erty by means of the exercise of the right of eminent domain, and the construction of a street railroad on an existing street under and by virtue of the authority and permission of the city. Under the facts in judgment here it is impossible to escape the conviction that the plaintiff and its predecessors intended to dedicate the portion of its right of way lying within the limits of Hamilton avenue to public use as a street, subject to its right of way thereover, and, being a public street, it was within the power of the city to permit the defendants to construct, maintain, and operate a street railway over the same, and that the plaintiff is not now in a position to claim that such a street railway, even though it be a rival railway, could only be constructed across plaintiff's right of way after a right so to do had been acquired by condemnation.

The judgment of the circuit court is right, and is affirmed. All concur.

JOHN A. TOLMAN CO. v. HUNTER et al. (Kansas City Court of Appeals. Missouri.

June 26, 1905.)

1. APPEAL-FINDINGS-CONCLUSIVENESS.

In an action on a guaranty, a finding on an issue as to a change of the contract without the knowledge of the guarantors, which was submitted by proper instructions, and having evidence to support it, will not be disturbed, though the principal evidence was given by deposition.

2. GUARANTY

GUARANTORS.

ALTERATION-DISCHARGE of

Where a contract of guaranty was changed without the knowledge of the guarantors, that the indebtednesses accrued before the alteration cannot preclude the guarantors from insisting on their discharge, as the alteration makes a new contract, which abrogates the original.

Appeal from Circuit Court, Henry County; W. W. Graves, Judge.

Action by the John A. Tolman Company against Harry L. Hunter and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Lindsay & Hinkle, for appellant. C. A. Calvird and P. A. Parks, for respondents.

ELLISON, J. This is an action on a contract of guaranty. The judgment in the trial court was for the defendants.

It appears: That plaintiffs made a contract of employment of one Cary E. Hunter as "a traveling salesman and otherwise." That he was to collect money for them in the territory over which he traveled. That he would repay to plaintiffs whatever money they might advance to him. That he was to be paid a commission on his sales, and was to bear his own expenses. After a period of near one year he quit the service, in debt to plaintiffs $740. The answer contained two defenses: First, that plaintiffs got Hunter to enter their service by false and fraudulent representations; and, second, that

such District No. 2 did in fact exist from 1896 down to the present time; that it had officers, built a schoolhouse, carried on a school, and received its share of the school taxes during that time.

We will concede (and thereby rid the case of much detail of statement) that District No. 2 was irregularly organized. But the fact remains that for many years it was an existing district operating under the laws and filling all the functions of a school district, and that it was recognized by both state and county, the former in the apportionment of school funds, and the latter in taxation and other matters arising from the relation of county and school district affairs. This proceeding is not a direct attack upon the existence of the district. It is merely seeking to compel the performance of an alleged ministerial duty by the respondent, as county clerk, to extend taxes for school purposes for the relator over and upon certain lands. District No. 2 is not a party to the proceeding, and its existence as a district only arises in a collateral way. That it exists in fact, and has been exercising the functions above stated, is beyond question. We therefore hold that in this proceeding its rights as a district to tax the territory in question cannot be questioned. Burnham v. Rogers, 167 Mo. 17, 66 S. W. 970; Fredericktown v. Fox, 84 Mo. 59; State v. Fuller, 96 Mo. 165, 9 S. W. 583; State ex rel. v. Board of Equalization, 108 Mo. 241, 18 S. W. 782; State ex rel. v. Buhler, 90 Mo. 560, 3 S. W. 68. And, not being a party, such proceeding should not be had as would blot out its existence without an opportunity to be heard. School Dist. v. Smith, 90 Mo. App. 215.

Again, recurring to the length of time District No. 2 has been exercising the functions of a regular school district and no proceedings taken to oust it of the privileges and functions thus exercised, we regard it as not an unwise exercise of that discretion with which the courts are intrusted, in considering the propriety of an extraordinary writ of this nature to refuse it on account of the long delay. Stamper v. Roberts, 90 Mo. 683, 3 S. W. 214. Judge Norton's view in that case is applicable here. He said: "Conceding for the purposes of this case, without determining the question, that the change thus made was irregular and in excess of the powers conferred, the question still remains whether, under the facts of the case, a court of equity should interpose its injunctive and restraining process. The proceedings to establish this new district occurred in April, 1880; this suit, assailing its validity, was brought in 1884. In the meantime the new district was in fact organized, and has remained so organized, unchallenged by plaintiff, except so far as his protest in paying school taxes assessed against him may be regarded as challenging it. In view of these facts, and the further fact that during an in

terval of four years the de facto existence of the district was recognized and parties interested have adapted themselves to the changed conditions of things, presumably for school purposes, and incurring expenses necessarily incidental to conducting a school, we are fully justified in affirming the judgment of the circuit court on the ground, if on no other, that plaintiff, by his laches, has allowed a condition of things to exist for years which would make it inequitable to grant the relief prayed for."

The conclusions we have reached make unnecessary a review of the brief of relator, or of suggestions advanced in oral argument. For, notwithstanding the position taken, the considerations we have set out above, in the circumstances developed by the record, lead to an affirmance of the judg ment. All concur.

GRIMES v. THORP.

(Kansas City Court of Appeals. Missouri. June 26, 1905.)

1. SLANDER-WORDS IMPUTING LARCENY.

A statement: "I know I never got all my rent corn off of the ground that Joe Grimes had rented. The corn that Joe Grimes sold to Teidgen was my corn, and I am satisfied that Grimes stole my corn"-made by defendant concerning plaintiff, did not necessarily mean that plaintiff was defendant's tenant on shares, and that the corn referred to had been in his possession as tenant, undivided, and hence imported a larceny, and was slanderous per se.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Libel and Slander, §§ 45-52.] 2. SAME EXEMPLARY DAMAGES-EVIDENCEINSTRUCTIONS.

Where, in an action for slander, the petition asked exemplary damages, and evidence was received which was admissible only on such issue, and not for the purpose of proving_the truth of the slanderous charge or actual damages, an instruction that "in making up their verdict" the jury might consider the facts and circumstances admitted in evidence, as produced by both parties, was erroneous. 3. SAME JUDGES OF LAW.

In a civil action for slander, an instruction that the jury were themselves the judges of the law, as well as of the facts, was error.

[Ed. Note. For cases in point, see vol. 32, Cent. Dig. Libel and Slander, §§ 356-364.]

Appeal from Circuit Court, Cedar County. Action by Joseph B. Grimes against Benjamin Thorp. From a judgment for plaintiff, defendant appeals. Reversed.

W. C. Hastin and Woodruff & Mann, for appellant. Cole, Burnett & Williams and Thos. L. Nelson, for respondent.

ELLISON, J. The plaintiff brought his action against defendant, charging in four counts that the latter had slandered him. The third and fourth were dismissed by the court, and a verdict for plaintiff was had on the first and second; the finding being for both compensatory and exemplary damages