the owner of the land, and not to constitute a dedication where it does not appear that any public or private interests have been acquired on the faith of the supposed dedication of the land for a street.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Dedication, §§ 20, 21.]

4. SAME EVIDENCE.

In 1856 a corporation caused its land, including that in controversy, to be platted and laid off in lots and streets, and a map made thereof, and in 1870 defendant town was incorporated and the same year adopted such map, and had it recorded as required by Code 1860, c. 54, § 1. Such map did not show an extension of E street over the land in controversy to a river, but for many years such land was used by the public as a common and as a highway to reach the river. No highway was ever established over the land, all of which was claimed by plaintiffs until a few years prior to the litigation. In 1871 an entry was made on the books of the corporation charging P. for the purchase of certain land and water rights, excepting the land laid off for the streets D and E, extending through the same, which excepted the land in controversy, but there was no proof of any act of dedication by the corporation's board of directors. Held, that such evidence was insufficient to establish a valid dedication of the land in controversy as an extension of E street to the river.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Dedication, § 85.]

Appeal from Circuit Court, King William County.

Action by Richmond Bland and others against the town of West Point. From a decree in favor of complainants, defendant appeals. Affirmed.

The following is a map showing the property in controversy:

T. H. Edwards and H. R. Pollard, for appellant. H. I. Lewis and Isaac Diggs, for appellees.

BUCHANAN, J. The appellees brought their suit in equity, asking to have the appellant, the town of West Point, a municipal corporation, perpetually enjoined from interfering with or in any wise disturbing them in the use and enjoyment of a certain parcel of land lying in the said town south of First street, and situated between the Mattapony river on the east, York river on the south, and Terminal Hotel on the west. The bill alleged that the complainants were the feesimple owners of the land in question, and that they and those under whom they claim had held undisputed possession of the same for more than 50 years.

The answer of the town admitted that the complainants were the joint owners in fee simple of the land as described in their bill, except as to the western boundary. It denied that the land was bounded on the west by the Terminal Hotel property, but alleged that it was bounded on that side by the eastern line of E street, which had been projected and dedicated to the public from First street to the river front, and that the fence which it had directed to be removed (the immediate cause of this litigation) was built across that street by the complainants. The issue thus presented was whether the land in controversy was a public highway or street.

"In order to constitute a dedication," as was said by this court in Harris' Case, 20 Grat. 833, 837, "there must be an intention to appropriate the land for the use and benefit of the public. The intention, the animus dedicandi, is the principle of the doctrine of dedication. The acts and declarations of the landowner indicating such an intention must be unmistakable in their purpose and decisive in their character to have that effect." Talbott v. R. & D. R. Co., 31 Grat. 688, 689; Buntin v. Danville, 93 Va. 200, 204, 24 S. E. 830, and cases cited; Gate City v. Richmond, 97 Va. 337, 33 S. E. 615; Washburn on Easements (2d Ed.) 180.

A dedication is not required to be made by deed or other writing, but may be effectually and validly made by acts or verbal declarations. It may be express or implied. It may be made in every conceivable way by which the intention of the party can be manifested. Buntin v. Danville, supra; Washburn on Easements, supra; Elliott on Roads & Streets, 90-92. But in whatever way made it must be unequivocally and satisfactorily proved.

To secure and make certain the title to real estate has been among the chief objects of the laws of all civilized communities. Generally the law has surrounded the transfer of title to, or interest in, land with certain solemnities and formalities; and, while in the case of public highways and streets, from the nature of the case, a dedication may be shown by acts or declarations, they must be of such a public and deliberate character as makes them generally known, and not of doubtful intention. Ownership of land once had is not to be presumed to have been parted with; but the acts and declarations relied on to show a dedication should be unequivocal and decisive, manifesting a positive and unmistakable intention on the part of the owner to permanently abandon his property to the specific public use. If they are equivocal, or do not clearly and plainly indicate an intention to permanently abandon the property to the public, they are not sufficient to establish a case of dedication. Harris' Case, 20 Grat. 837; Talbott v. R. & D. R. Co., supra; Buntin v. Danville, supra; Gate City v. Richmond, supra; Holdaone v. Cold Spring, 21 N. Y. 477; Washburn on Easements, 180.

It appears that some time prior to the year 1856 a corporation known as the "West Point Land Company” was chartered and acquired title to a tract of land embracing the land in

York river is formed by the union of the Mattapony and Pamunkey rivers. In that year the land company caused its land to be platted, laid off in lots and streets, and a map thereof made by John M. Daniel. In the year 1870 the town of West Point, "as the same has been heretofore laid off into lots, streets and alleys" by the West Point Land Company, was incorporated. In the same year the town council adopted the survey and map of the town made by Daniel as the survey and plan of the town, and had it recorded in the clerk's office of the county court of King William county, under the provisions of section 1, chapter 54, of the Code of 1860.

It is admitted that by the map of Daniel, E street does not extend south of First street, but it is insisted that, when the map was made, there were, and had been for many years prior thereto, public highways passing over the land of the West Point Land Company and terminating at the river front at or near where E street, if extended, would touch the river. There is no record evidence of the establishment of any public highway over the land in controversy, or of the working of the same as such; and, while there is some evidence that boats took on and put off goods and passengers at or near where E street, if extended, would reach the river, prior and subsequent to the incorporation of the town, there is no evidence that there was a public road located upon the land in controversy or worked as such, or that there ever was a well-defined way over it. On the contrary, the evidence tends strongly to show that the whole land claimed by the appellees and described in their bill was, until within a few years before this litigation, uninclosed and treated as a common by the public, over which they drove or traveled as they pleased to reach the river at any point they wished. It is clear, we think, that the town fails to show that prior to its incorporation the land in controversy had been dedicated by the owners or accepted by the county authorities as a public road.

It is contended by the town, even if this be so, that after its incorporation the land in controversy was dedicated by its owner, the West Point Land Company, as a street and accepted as such by the town. In the books of the treasurer of that company there is the following memorandum: "July 6th, 1871. Wm. D. Pollard, Dr. to the land fund, for the purchase of the land, rights, privileges, ways and extensions of the land into the waters of the Mattapony, York and Pamunkey rivers, lying on the east side of First street, and extending from the Mattapony to the Pamunkey river, excepting the land laid off for the streets D and E extending through the same, $500.00."

This land seems not to have been fully paid for until the year 1876, when the purchaser received a conveyance. What the terms of

that deed were does not appear. Pollard, under whom the appellees claim, conveyed to John B. Davis, who conveyed in the year 1880 to Charles L. Pearson. These deeds were recorded in the clerk's office of the county court of King William county. The records of that office were destroyed by fire in the year 1885. The terms of the deed of the West Point Land Company to Pollard and of his deed to Davis are not shown; but in the deed from Davis to Pearson, which was re-recorded, the land is described as follows: "All that tract or parcel of land situate, lying and being in the town of West Point, county of King William, state of Virginia, and bounded on the north by First street, and on the east by the Mattapony river, on the south by York river, and is the same land conveyed to the said John B. Davis by W. D. Pollard and to said Pollard by the West Point Land Company, deeds for which are duly recorded in the clerk's office of King William county court." In the subsequent deeds under which the appellees derive title there is no reservation or exception of the land in controversy for the purposes of a street, and the whole land conveyed is assessed for taxation.

The memorandum made on the books of the treasurer of the West Point Land Company is not sufficient evidence, if evidence at all, to establish an intention on the part of the land company to dedicate the land in controversy as a street, still less to show that it was so dedicated. Unless authorized by the directors of the land company, its agents, even the president or general manager, could not dedicate its land to public uses. 10 Cyc. 927; Stow v. Wyse, 18 Am. Dec. 99, 7 Conn. 214; Hast v. Railroad Co., 52 W. Va. 396, 401, 44 S. E. 155. The record does not show that the directors themselves dedicated the lot or authorized any of the company's agents to do so. Neither does it show such acts or declarations on the part of the West Point Land Company and its successors in title, under whom the appellees claim, as indicate clearly an intention on their part to appropriate the land in controversy for the benefit of the public. It is true they have permitted the public to go over it and the lands of which it is a part without objection in going to and from the rivers upon which it fronts. The user of the public, however, has not been confined to the narrow strip of land in controversy, but extended until very recently to all the tract owned by the appellees. It does not appear that any public or private interests have been acquired upon the faith of the supposed dedication. Where that is the case, the mere user by the public of the supposed street, although long continued, should be regarded as a mere license, revocable at the pleasure of the owner (Harris' Case, 20 Grat. 840); for we know, as was said by Judge Burks in Talbott v. R. & D. R. Co., supra, "that the individual owners of property are

not apt to transfer it to the community, or subject it to the public servitude, without compensation, and such donation is not to be readily inferred."

We are of opinion that the acts relied on in this case to show an intent to dedicate are not unmistakable in their purpose and decisive in their character, and do not establish such intent with that degree of certainty and clearness required in such cases. This being so, it is unnecessary to consider the question whether or not the acts relied on as an acceptance by the town would have been sufficient to have shown an acceptance had it been in fact dedicated.

We are of opinion that there is no error in the decree complained of, and that it must be affirmed.

A judgment setting aside a verdict as contrary to the law and evidence cannot be reviewed on appeal where the instructions are not a part of the record.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 88 2944-2947.] 2. CARRIERS STREET RAILROADS USE OF TRACKS IN COMMON.

Where defendant and another street railway company operated cars over two parallel tracks in common, and plaintiff, a passenger on a car of the other company, was injured by alighting on one of the tracks in front of one of defendant's cars, the companies being distinct, defendant was not liable as a common carrier, plaintiff being a traveler upon the street as far as defendant was concerned, and hence it was immaterial whether the other company was negligent in leaving open the gate on its platform next the parallel track, as the negligence of that company could not be imputed to defendant.

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3. STREET RAILROADS PERSONS CROSSING TRACK-CONTRIBUTORY NEGLIGENCE. Where, at night, plaintiff alighted from a moving street car, operated by one pany, upon a parallel track in front of, and within four or five feet of, a rapidly moving car of another company, which could have been readily seen, he was guilty of contributory negligence, barring recovery; it appearing that he could have alighted from the car on a safe side.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44. Street Railroads, § 204.]

4. SAME VIOLATION OF ORDINANCE-EFFECT. Though a street car was operated in violation of an ordinance limiting the speed of such cars, and requiring a gong to be sounded, where plaintiff stepped upon the track in front of and within four or five feet of it, the company was not liable, since the evidence showed that, if the car had been run within the limit and the gong had been sounded, it could not have been stopped in time to have avoided the injury.

Error from Corporation Court of Portsmouth.

Action by one Foreman against the Norfolk, Portsmouth & Newport News Company.

From a judgment for defendant, plaintiff brings error. Affirmed.

J. N. Sebrell, Jr., and Moe Levy, for plaintiff in error. H. W. Anderson and John Randolph Tucker, for defendant in error.

HARRISON, J. This action was brought by the plaintiff in error to recover damages for an injury alleged to have been caused by the negligence of the defendant in error. Three trials of the case were had in the lower court. In the first the verdict of the jury was set aside without objection. On the second trial there was again a verdict for the plaintiff, which was set aside upon the ground that the verdict was contrary to the law and the evidence. This action of the court is assigned as error, but it cannot be considered by this court, for the reason that the instructions upon which the jury acted have not been made part of the record.

In the case of Rocky Mt. Loan & Trust Co. v. Price, etc., 103 Va. 298, 49 S. E. 73, this court held that the judgment of a trial court, setting aside a verdict on the ground that it was contrary to the law and the evidence, could not be reviewed here when the instructions given are not made a part of the record; that this court could not in the absence of the instructions, assume that they were free from objection, or pass at all upon that ground for setting the verdict aside. To the same effect is Stevenson v. Levinson, 103 Va. 591, 49 S. E. 974.

On the third trial the defendant company demurred to the evidence. The court sustained the demurrer and gave judgment for the defendant, which action of the court constituted the second assignment of error.

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In the petition for a writ of error it is stated that the defendant company operating street cars on parallel tracks on High street in Portsmouth, Va.; cars going west being run on the northern track, and cars going east on the southern track. It is true that the defendant company did operate cars on both tracks, but it is clearly established by the evidence that the northern track on High street was not the property of the defendant company, but was owned by the Old Dominion Railway Company, and that these two companies under an operating agreement of some sort used the two tracks in common. The plaintiff was traveling as a passenger on a car of the Old Dominion Railway Company, which was going west, and was injured by alighting on the parallel track in front of a car of the defendant company which was going east. The two companies being distinct and separate, the liability of the defendant company as a common carrier is eliminated, and the question in the case is limited to the mutual rights of the plaintiff and the defendant as travelers upon the streets. Under these circumstances it is immaterial whether or not the Old Dominion Railway Company was guilty of negligence in leaving open the gate upon its platform

next to the parallel track, as the negligence of that company, which is not a party to this suit, cannot be imputed to the defendant company.

It appears that the plaintiff, at 12 o'clock at night, took passage on one of the westbound cars of the Old Dominion Company; that when the car reached the corner of Washington and High streets, and while it was still in motion, the plaintiff alighted on the southern parallel track in front of, and within four or five feet of, a rapidly moving car of the defendant company which was going east. It is contended that the defendant company is liable because of its negligence in running its car at a rate of speed prohibited by the ordinance of the town of Portsmouth, and at a speed inconsistent with the safe use of the street by the public, and at an unexpected time, without signal or warning of its approach. It is conclusively shown that the headlight and other lights upon the car were burning, so that it could have been readily seen.

If it be conceded that the car which struck the plaintiff was being operated at an unusual rate of speed and without sounding its gong, it is manifest from the uncontradicted evidence in the case, including the admissions of the plaintiff, that this was not the proximate cause of the accident. Atlantic & D. R. Co. v. Reiger, 95 Va. 418, 28 S. E. 590.

The time limit prescribed by the ordinance of Portsmouth was six miles per hour. The plaintiff says he stepped in front of the car when it was within four or five feet of him. The evidence shows that a car running at the rate of six miles an hour could not be stopped in less than 141⁄2 feet. It is clear, therefore, that the plaintiff could not have been saved if the car had been running at the rate prescribed by the ordinance, nor could the sounding of the gong under such circumstances have altered the inevitable result of the plaintiff's act. If the car was running be hind its schedule time, that did not constitute negligence on the part of the defendant company, or operate to release the plaintiff in error from the duty of exercising proper care in going upon its tracks. Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224.

We are of opinion that the contributory negligence of the plaintiff in this case was the proximate cause of his injury, and such as to bar all right of recovery on his part. He stepped from a car moving, according to his own testimony, at the rate of five miles an hour. He could have alighted on one side, perhaps, with safety, but he selected the side where the space between two parallel tracks for him to occupy was not more than 32 inches, because his home was on that side, and he would be thereby saved a few additional feet of walk. He alighted on the parallel track in front of the rapidly moving car of the defendant company, when it was with

in four or five feet of him, without seeing it, when the most ordinary and casual glance would have disclosed his peril in doing so.

We do not mean to say that the act of alighting from a moving street car taken by itself, or a failure to look for approaching street cars taken by itself, would be per se negligence. But these acts, considered, as they should be, in connection with all the circumstances of the case, make a combination of negligence which precludes a recovery, and shows that the plaintiff alone is responsible for the injuries of which he complains. Weber v. Kansas City Cable Co., 100 Mo. 194, 12 S. W. 804, 13 S. W. 587, 7 L. R. A. 819, 18 Am. St. Rep. 541; Creamer v. West End St. Ry. Co., 156 Mass. 320, 31 N. E. 391, 16 L. R. A. 490, 32 Am. St. Rep. 456; Gonzales v. N. Y. & H. Ry. Co., 38 N. Y. 440, 98 Am. Dec. 58.

The judgment complained of must be affirmed.

Where a creditor insured the life of his debtor to secure the payment of a debt, a bond as evidence of the debt, executed by the debtor a few days after the taking of the insurance, for the same amount as the policy, which has not been impeached, is prima facie evidence of the creditor's insurable interest in the life of his debtor. in an action on the policy.

Appeal from Chancery Court of Richmond. Bill by W. T. Woody's administrator against J. B. Schaaf and the Security Trust & Life Insurance Company. From a decree overruling the demurrer of the insurance company and for defendant Schaaf, the insurance company appeals. Affirmed.

S. A. Anderson, Jno. A. Lamb, A. L. Holladay, and Emmett Seaton, for appellants. Smith, Moncure & Gordon, for appellee.

WHITTLE, J. This case originated in a bill in equity in the chancery court of the city of Richmond, filed by W. T. Woody's administrator against J. B. Schaaf and the Security Trust & Life Insurance Company, predicated upon the following allegations: That in 1900 the insurance company issued a policy on the life of Woody for the benefit of Schaaf, an alleged creditor, for $2,000; that, if Woody is indebted to Schaaf in any amount, the liability is less than $2,000, and the amount actually due, with premiums paid by him and interest, is all that he is entitled

to receive on the policy, the residue being an asset of the estate; that Schaaf is insolvent, and, if permitted to collect the proceeds of the policy, the plaintiff will be without redress. The prayer of the bill, therefore, is that Schaaf be enjoined from collecting the policy, that the amount of his debt may be determined, and the rights of the parties adjusted as indicated.

Schaaf in his answer claims the entire amount of the policy. He avers that for many years he had conducted the business of a butcher in the city; that Woody, as a merchant, was a customer and kept a running account, covering the period from 1891 to 1898, which aggregated more than $2,000; that, seeing that Woody could not pay the debt, Schaaf, with his consent, first took out a policy on his life for $2,000, payable to himself as creditor, in the Northwestern Life Insurance Company of Chicago; that he subsequently suffered that policy to lapse, and with like consent of Woody caused to be issued the present policy; that he paid the premiums, and exhibits the policy, which bears date April 19, 1900, with his answer; that, in order to close accounts and in acknowledgment of his indebtedness, Woody on May 15, 1900, executed a bond to respondent for the amount of his indebtedness, $2,000.

The insurance company filed a demurrer and also answered the bill. The demurrer challenges the right of Woody's administrator to maintain the suit at all, since the bill does not allege that the premiums, or any of them, were paid by Woody, and shows that the insurance was effected by Schaaf for his own benefit as creditor. The answer denies liability to either the estate or Schaaf, alleging that Woody was not indebted to Schaaf, and that the policy is consequently a mere wager policy, and void.

The same issues are presented in different form by the cross-bill of Schaaf, and the answers of Woody's administrator and the insurance company to that bill.

On the pleadings and evidence the chancery court made a decree overruling the demurrrer of the insurance company, and adjudging that Schaaf was a creditor of Woody by bond, to the extent of $2,000, and, as such, is entitled to receive the full amount of the policy. From that decree Woody's administrator and the insurance company appealed.

In our view of the matter the legal effect of the bond executed by Woody to Schaaf renders it unnecessary to review the other testimony. We may remark, however, in passing, that the evidence tends to sustain rather than to impugn the integrity of the debt. The bond, though executed 27 days after the date of the policy, recites a past consideration, indebtedness by open account, which indisputably accrued prior to the issuance of the policy. The bond is therefore the equivalent-and, it may be fairly inferred