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Pearson refused to do, basing his refusal upon the al vides. Nor has any person the right, unless upon his legation that the drift-way in the dam, without shut own land, or under legislative grant, to remove natural ting down his working gates, afforded all the facility obstructions from the bed of a river in order to imfor floating logs by bis mills that existed in the river prove its navigation. This is clear from the same auat that place in its natural state, as much as there thorities. would be provided his mills and all of his structures On the other hand, what rights have the adjudged were entirely out of the way. Rolfe contends that cases accorded to the riparian proprietor in a merely the facts were otherwise, but further contends that floatable and non-tidal stream? It is settled in this Pearson, even if he represents the facts truly, having State that he was the bed of the river to the middle it within his power to furnish more water than the of the stream. He owns all the rocks and natural barnatural facility and flow, was under an obligation from riers in it. He owns all but the public right of paghis situation to do so.
sage. The right of passage does not include any right The counsel for Rolfe contends that the doctrine of to meddle with the rocks or soil in the bed of the reasonable use applies; and that if the river in its nat river. If rocks are taken, the owner may sue in tresural condition would not furnish a sufficient flow, pass for the act, or may replevy them from the wrong. Rolfe was entitled to the use of the river in its changed doer. Gould Waters, SS 77, 93a, and note.; June v. condition for his purposes. We think this position Purcell, 36 Obio St. 396; Ross V. Faust, 54 Ind. 471; cannot be mained. Our idea is that the doctrine of Watson v. Peters, 26 Mich. 508; Braxon v. Bressler, 64 reasonable use does not apply when the river is not Ill. 488. Stone cannot be guarried without compensanaturally floatable; but does apply when it is natur tion from the bed of a private stream for the purpose ally floatable or log-navigable, when both parties can of constructing a public bridge over the stream. Ober: use the natural flow and desire to use it at the same man v. Muy, 35 Iowa, 89. The owner may maintain time. We are well satisfied that whenever logs can trespass quare clausum for an uulawful invasion of not be driven over a particular portion of a fresh land covered by water. Morris Canal Co. v. Jersey water river such as tho Penobscot above the flow and City, 26 N. J. Eg. 294; Walker v. Shepardson, 4 Wis. ebb of tho tide, while in its natural condition, such 495; Noor v. Veuzie, 31 Me. 360. Ice formed upou a portion of the river is not at such time navigable or floatable fresh water stream is the property of the floatable, and that the use of the water at such time, riparian proprietors. Wash. Ice Co. v. Shortall, 101 and place, so far as he needs the same for his own pur Ill. 46; Mill River Man. Co. v. Smith, 34 Coun, 462; poses, belongs exclusively to the riparian proprietor. Paine v. Woods, 108 Mass. 173, and cases. See We think an examination of well settled principles, as for several pertinent matters, 19 Am. Law. Reg. illustrated by the decisions, affecting the respective (N. S.), pp. 145, 337, and cases there cited and disrights of the parties in river easements and privileges, cussed. inevitably leads to such conclusion.
The mill-owner occupies other vantage ground. His Rolfe unquestionably had the general right to use structures are legalized and protected by the statutes the river as a passage-way for his logs. All navigable of the State. A part of the public right is granted to waters are for the use of all citizens. In a technical him, for a supposed gain which the public obtains senso at the common law, the Penobscot river would through the use of mills. He is authorized to build be regarded as navigable only so far as its waters flow dams and erect mills upon the privilege and to raise a and reflow with the tido. But it is navigable in fact, head of water for his use. His stores of water are his or in a popular sense, or according to a common law property. A person who casts waste into his millof our own, above the reach of the tides. The reason pond to his injury is liable therefor. Dwinel v. Veazie, of the old common-law rule, the rule of the English 44 Me. 167. A log-owner is liable if he unnecessarily courts, is the reason of the rule in this country. The incumbers the pond of a mill-owner with his logs. The germ of the doctrive is the same in both countries. log-owner's general righù is that of passage, not of We refit the rule to more extended and liberal appli rest. Brown v. Black, 43 Me. 413. There may be howcations, under the stimulating influences that arise ever exceptions or qualifications to this. Rev. Stat., ch. from the wants and necessities of our business, tho 42, $ 8. magnitude of our rivers, and the extensiveness of In the light of those principles governing the rights tho internal and inter-State commerce of our coun of the parties, how can it be admissible for the log try.
driver to claim for his purposes more of the river than The Penobscot river at the place in question, as be the vatural flow or its equivalent? Can he claim a fore intimated, was floatable only, floatable because better passage than would be possible to him were capablo of valuable use in bearing tho products of tho thero no structures upon the privilege? If he cannot, forests to markets or mills. A floatable stream is the without the land-owner's consent, erect dams himself least important of the classes of streams called navi to create a head for facilitating the driving of logs, can gable. Rolfe had the right to use the river so far as it he impress into his service the uso of dams lawfully was a joatable river, in such parts or places and at erected for other useful purposes by other men? such times as it was floatable. He had the right to If he has no right to remove or interfere with natural avail himself of its navigable capacity for floating logs. obstructions, to the owner's injury, how can be inter But only so far as it was navigable or soatable in its meddle with legally authorized artificial obstructions natural condition. It is the natural condition of a which do not deprive him in any respect of the ordistream which determines its character for public use. pary and natural flow? Each is a legal property, the And it must be its navigable properties in a natural natural and the artificial obstruction. Neither necescondition, unaided by artificial means or devices. It sarily impairs any subsisting legal right. The only is well settled in this State and elsewhere, that if a obligation which the law lays upon the mill-owner is stream is not susceptible of valuable use to the public not to injure the river passage. He is not required to for floatable purposes, without erections for raising a make it better. head, it cannot legally bo deemed a public stream, The mill act declares that an owner may erect and even though it might be casily converted into a float maintain a water mill, “and dams to raise water for able stream by artificial contrivances. Wadsworth v. working it.” Ilow can he have the water for working Smith, 11 Me. 278; Brown v. Chudbourne, 31 id. 9; his mill, if others may take it without his consent for Treat v. Lord, 42 id. 552; Wood Nuis. (2d ed.), S 463, other uses? If other may take from him more than the and cases. The log driver takes tho waters as they natural flow, when and how often and in what quantirun, and the bed over which they flow as nature pro ties may it be thus taken? Is it to be a reasonable
use? How much is a reasonable taking by one man lic to use more than a natural flow from the head of of another's property without compensation? Where water ralsed by mill erections, cannot influence the does the doctrine of mutual concession come in, if the question in the least. The extra stores of water colmill-owner is to reap no advantages from the plan?
lected by the mill-owner for his use, are his own. They Would not Pearson be permitted to remove his struc
could be taken by the State for the public for a comtures, leaving the river in its natural state? If he can pensation; or the State could authorize the owner to do that, cannot he hoist his mill-gates at his pleasure dispose of their use for a toll. Gould Waters, $ 35; for business purposes, allowing the water to pass
Cool. Con. Lim. *592. The legal position espoused by his mills in manner and quantity equivalent, as the mill-owner in the cases presented for our decisnear as may be, to its ordinary conditiou and natural ion, is sustained by the effect of the views entertained flow?
by the court in Wadsworth v. Smith, supru, and is Let it be borne in mind that the complaint against emphatically and quite directly defended by the case Pearson is not that he kept back the natural flow, but of Thunder Bay River Booming Co. v. Speechly, that he refused to keep it back, that he would not shut 31 Mich. 336; authorities relied on by counsel for down his gates and suspend his business in order to Pearson. keep it back. The demand was that he should sus It will be seen that we have thus far discussed the pend his own sawing and shut down his millgates until relative rights of the parties upon the supposition that the accumulation of water in the mill-pond might be Pearson's structures and his management of them did enough to create a navigable flow through the public not deprive Rolfe of as good a chance of passage as the passage. It would be a curious legal spectacle to see a natural stream would have afforded at the time and mill-owner mulcted for not allowing log-owners the place. We do not affirm the fact to be so. We exuse of his dam and mills to create, not a natural, but press no opinion upon any disputed fact. We give the an unnatural flow upon the river. It would be a dif rule upon which the facts are to be considered. It is ferent thing however if Rolfe asked for only such a said that the rule may not be a just one, because of facility of passage as the river in its natural condition the difficulty of observing the operations of nature would have afforded.
after the erection of mill-dams. The objection is not The counsel for Rolfe invokes in his behalf the doc formidable. Other evidence may be substituted. Proof trine maintained by several cases, that where one per of the general character of the river, of its volume son improves the navigability of a stream, all other and flow above and below the place in question, would persons having the right to use the stream, may use it be among other things an important matter. A jury in its improved condition. That principle inust be would not encounter more diffiulty than that wbich admitted. If the channel of a floatable stream is attends very many contested cases. At all events, the changed or deepened by riparian proprietors for the dilliculty of proof does not or linarily dispense with purpose of making its navigation less difficult, any per the necessity of proof. son using the stream has the benefit of the improve Another difference of opinion exists between the weuts.. Such a result is unavoidable. The same rule parties upon the factis adduced. That is as to what applies to a highway upon land. If a man improves a their respective rights may be in the use of the water highway in front of his own land, a traveller may use when there exists a natural flow sufficient to make a the improved highway. Ile must do so, if he uses the floatable stream, but both parties need the water for way at all. He can no longer 1180 the way as it was. their different purposes at the same time, and the use But this doctrine cannot apply to the cases before us. of the water by one in juriously interferes with its use Here the navigable character of the river has not been by the other. In such a condition of things, as before improved. The gist of the complaiut against the mill expressed, the maxim or doctrine of reasonable use owner is virtually that he would not improve it, when applies. If they cannot both enjoy the same thing at he had the ineans and power of doing so at easy hand. the same time, each must take to himself and concede Here the chamel is neither deepened nor widened. to the other a reasonable use of the common boon. The case here differs widely from any case that can be The right of passage is the paramount or superior cited in affirmance of the doctrine contended for. right, and necessarily so from the very nature of Flad Pearson improved the navigability of the river things. It is a right to move on or by. Tho stationfor his own use, he would have bestowed the same ary obstacle must necessarily yield in order to give is benefit upon others. But he intended no such im a chance to go by. It is not an exclusive right. It is provements either for himself or others. Holden v. not a privilege of moving at all times, with any quanRobinson Co., 65 Me. 215, is relied upon by counsel for tities, and without any delay, and under all circumRolfe. An incidental remark in the opinion in that stances. The two rights come in conflict. One does case was to the effect that a log.owner was entitled to not destroy the other. Each influences the other. the water raised by a mill-dam. But it was to get The Legislature has surrendered some part of the pubdown to the dam, and not to get over or past it. That lic right to the mill occupiers for the supposed public authority therefore is not in the least in our way. Iu good. The mill-owner must not materially and essencoming to any mill dam, logs must necessarily pass tially prevent or delay the public passage. over the water as raised by the dam. Dwinel v. Burn The law authorizing mills necessarily puts some inard, 28 Me. 554, is also relied upon, as approving the cumbrance upon the rights of passage. doctrino that if a new passage is substituted for an In ('ool. Torts, 583, the author says: “The reasoniold one, the new one is opeu to the use of all. We en ableness of the use depends upon the nature and size tirely concur in that view. In such a case, no natural of the stream, the business or purposes to which it is stream-in fact no stream-is left in the old chamel. mado subservient, and on the mer-varying circunBut in the case at bar, we are assuming for the pur stances of each particular case. Each case must stand pose of argument, that the full natural stream is left. upon its own facts, and can be a guide in other cases The court, in the caso referred to, places its theory only as it may illustrate the application of general upon the fact that the flow of the waters was so principles. Such general rule should be laid down as changed “that they could not be used as formerly." appears best calculated to secure the entire water of Here it is contended that they can be used as fornierly the stream to useful purposes." The same doctrine is without interfering with Pearson, and that the river, excellently presented by Dickerson, J., in Lancey v. at the time in question, was allowed its natural and Cliford, 54 Me. 187, and by Rice, J., in Dwinelv. Veuaccustomed flow, or its equivalent.
zie, 50 id. 479. The want of space forbids quoting The fact that it would be a convenience to the pub. from the cases at niuch length. In the former it is
saici: Each risht is the harimaid of civilization ; and neither can be esercised withont, in some degree, impairing the other. This contlict of rights therefore must be reconciled). The law furnishes a solution of this difficulty by allowing the owner of the soil over which a tloutable stream, which is not technically nagivabla, passes to build a dam across it, and erect a mill thereon, prorided he furnishes a convenient and suitable sluice or passage-way for the public by or through his erections. In this way both these rights may be exercised without substantial prejudice or inconvenience."
In Dorinel v. l'eusie, supra, it is said: “To give either interest absolute prerogative would be destructivo to both. Hence the rights of each must be so exercised as not unnecessarily or unreasonably to interfere with or obstruct the rights of the other. And such is the law.”
In Gould on Waters, a new and excellent work, at section 110, it is said: “The rights of the public are not superior te private rights, in streams that are merely lontable, to the same extent as in rivers which are capable of more extended navigation. In the latter the pubic ! extends equally to all navigable portions of the river. But the right of floatage is not paramontie the use of the water for machinery, and the rights of the ;ublic and those of the riparian owners are both to be enjoyed with a proper regard to the existence and preservation of the other. In streams which are only floatable, the riparian owner is only bound not to obstruct its reasonable use for that purpose.
To this the author appends a long list of citations, It is to be noticed that the auihor remarks that the right of toatage is not paramount to the use of the water for machinery. That is not of such paramount character as to prevent the erection of damn, bridges, and flumes and the like, which do not prevent a reasonable chance for public passage. The right of passage is the dominant right, because it is a right that cannot be very well exercised unless the other right temporarily yields to it. But its uso must not beunurping, excessive or unreasonable. Wood Nuis. (2d ed.), $$ 161, 165, and aises. ('ool. ('on. Lim. (5th ed.) 731.
With these enunciations of opinion upon the legal questions presented, we think the cases need no further attention or consideration at our hands. While tho report allows us to decide the facts, we think that duty should be performed by a jury, if the parties cannot agree upon a referee or commissioner for the purpose, «ir camuot settle the question themselves.
The parties would act wisely to indulge a spirit of mutual forbearance and concession in these matters. In no other way aro the embarrassments and diflicultion, usually incident to such contentions, avoidable. Tho rule that governs some of their rights is a general and necessarily an indefinite one. Emergencies may often arise when the different interests will clash. Discreet woria and acts aro a better resort, in the first instance, than law suits.
('use's to stand for trial. Danforth, Vircin, Libbey, Emory, Foster and laskell, JJ., concurred.
PPEAL from Marion Special Terın. The plaiutiff
had judgment below. Defendant moved for a new trial which was denied, and they appeal.
TAYLOR, J. This is a suit by the plaintiff to recover the value of twelve barrels of eggs shipped by the plaintiff over the defendant's line of road, from the city of Indianapolis in the State of Indiana, to the city of Baltimore, in the State of Maryland, which the plaintiff alleges were delivered by the defendant to a person to whom the bill of lading was not indorsed, and without an order from the plaintiff for their delivery.
The defense of the defendant is, first, the general denial, and second, a special answer setting up facts in bar of the suit. The plaintiff's reply to the special answer is a general denial.
The cause was tried by the court upon agreed facts which so far as within the issue and material to state are these: The defendant was, on the 18th day of March, 1883, and for many years prior thereto, a common carrier of goods for hire, and as such was the owner and operator of a fast freight line from the city of Indianapolis, Ind., to the city of Baltimore, Md., known and designated as the “Union Line.” On the 18th day of March, 1883, the plaintiff delivered to the defenılant, at Indianapolis, Ind., for transportation to the city of Baltimore, Md., twelve barrels of eggs. At the time of the delivery the defendant delivered to the plaintiff'ils receipt for the eggs in which is acknowledged their delivery in good order, and tbe undertaking to deliver them in like good order without delay to the plaintiff at the station of Baltimore, Jd. On this receipt, under the head of “Marks," is the following: “J."-- Notify IIenry E. Hopkins & ('0., 60 Hanover street, Baltimore." The defendant at the same time delivered to the plaintiff a bill of lading for the eggs, on the margin of which under the head of “ Marko” is the following: “J.”—“Notify Henry E. IIopkins & ('0., 60 Hanover street, Baltimore, Md." A way bill accompanied the shipment of the eggs on which was the following: “A. Jordan-Ord. A. Jordan-J.-Notify Henry E. Hopkins & Co., 60 Hanover
et, Baltimore, Md." 'he eggs were immediately shipped and traveported by the defendant to the city of Baltimore, Md. Immediately upon receipt of the bill of lading the plaintiff forwarded to the Bank, at said city of Baltimore, his certain draft, payable one day after sight, drawn by him in his own favor upon said Henry E. Hopkins & Co., the draft being for the value of the eggs; and the plaintiff attached to the draft and forwarded with it the bill of lading, but did not indorse the bill of lading. Henry E. Ilopkins & Co., accepted the draft, and thereupon the Baltimore Bank, to which plaintiff had sent the draft with the attached bill of lading, delivered the unindorsed bill of lading to said Hopkins & ('0., and they presented it to the defendant at said city of Baltimore, and thereupon demanded the delivery to them of the eggs, and they were delivered by the defendant to said llopkins & Co., and the bill of lading was surrendered to the defendant. Within a reasonable time after tho arrival of the eggs at the city of Baltimore, the plaintiff demauded at said city of the defendant the delivery to him of the eggs, offering to pay any and all freights and charges due thereon, and the defendant refused to make such delivery, alleging that the eggs hail already been delivered to said Hopkins & Co. The eggs were of the value of $146, and the defendant has never delivered the eggs nor any part of them to the plaintiff, and has never paid the plaintiff any part of their value; and the plaintiff bas never received any compensation for the eggs from any source. The trial couri found for the plaintiff and rendered judgment in his favor against the defendant for the value of the eggs. The defendant mored for a new
(':RRIER-IVLVDORSED BILL OF LADIVG.
INDIANA SUPERIOR COURT, GENERAL TERM, 1884.
JORDAN V. PENNSYLVANIA ('(). The delivery to the acceptor of a draft of an unindorsed bill
of lading is sufficient to transfer the title to the property
covered thereby. In such case the carrier is not liable to the shipper for the
value of the goods should the acceptor fail to pay the draft.
trial, which was refused; and the proper exception was with the title to the bill of lading, and transfer the taken by the defendant.
eggs to the acceptors of the time draft. This results There is but one question to consider. Was the de wbether the plaintiff is to be held as a vendor and the livery of the eggs to Henry E. IIopkins & Co. a law acceptors as vendees of the eggs, or if the acceptors ful delivery? This question answered in the affirm are to be considered as factors, agents, or as pledgees. ative, the judgment of the trial court must be re But the correct conclusion from the facts of the case versed; but if it is answered in the negativo the judg- is, as it seems to me, that the acceptors of the time ment should stand.
draft were purchasers of the eggs, and paid for them The right of the plaintiff to make auy reservation in by the accepted draft; for in the absence of any show. the bill of lading; that he pleased to secure the pay- / ing to the contrary, the draft must be considered as a ment of the value of the eggs is settled. The bad the negotiable instrument, the giving up of which is preright to fix the person to whom and the terms upon sumed to be payment for whatever given. which the defendant should deliver the eggs. Ile These principles are, in my opinion, sustained by the could instruct the bank to whom he sent the time following authorities: Daniels on Neg. Inst., $ 223; draft with bill of lading attached not to deliver the Jones on Pledge, $S 256, 257, 258, 262; City Bank of bill of lading to the acceptors until the draft was paid; Rochester v. Jones, N.Y. 497, 507; City Bank v. Rome, and in such case, delivery of the bill of lading before WV. & (). R. Co., 44 id. 136; Merchants Bank v. Union such payment would not have passed the title to such R. & T. Co., 69 id. 379; Michigan Cent. R. Co. v. Phil. bill. It was the ciuty of the defendant to deliver the lips, 60 Ill. 190; Ilolmes v. German Security Bank, 87 eggs to the plaintiff, or according to his instructions. Penn. St. 5:25; Emory Sons v. Irring Nat. Bank, 25 If the defendant violated its contract for the delivery Ohio St. 360, 366; National Bank of Green Bay v. Dearmade a misdelivery of the eggs, it is liable as for born, 115 Mass. ...?; J. 11. & I. R. Co. v. Irvin, 46 Ind. their conversion. Ilutchinson on ('ar. 102; Benjamin 180, 186; Colebrook on Collat. Sec., § 380, 382, 409; on Sales (3d Am. ed.), § 38:?; Stollenwerck v. Thatcher, Lambeth v. Turnbull, 5 Rob. 261; National Bank v. 115 Mass. 224; Jones on Pledge, s$ 257, 258; Ivatts on Merchants' Bank, 91 C. S.92; Louv. Dell'oll, 8 Pick. Car., etc., 417. The bill of lading is in the usual form, 101; Smith v. Bettger, 68 Ind. 251. and the delivery by it as well as by the receipt and The intent of the plaintiff
' is only to be judged from way bill is to the order of the plaintiff. The direction what he did and what he failed to do. It was in his to notify Henry E. Hopkins & Co. may be cousidered power to make nis own terms-to give his own instrucas indicating that they had an interest in the eggs tions-explicit and not the subject of doubt. This the either as vendees or factors. In the absence of any law required of bim. That he made a mistake and expressed declaration it is susceptible of no other met with loss in trusting the acceptors, Hopkins & meaning. As soon as the bill of lading is delivered to Co., is no evidence of an intention, pre-existent or exthe plaintiff he draws the time draft on llenry E. istent at the time, that the bill of lading should be Hopkins & ('0., attaches the bill of lading to it, and held by his igents, the Baltimore Bank, after its acforwards the draft with the attached bill to the Balti- ceptance by llopkins & Co., until they paid the draft. more Bank for presentation to Ilenry E. Hopkins & The sanction of such a rule would be the introduction Co. The time draft so drawn and sent with the bill of a new and uncertain if not destructive element in of lading attached corers the value of the eggs the administration of the law. shipped, and is not indorsed by the plaintiff; but thoro Therefore it is my conclusion that the delivery of is no evidence that any special instructions were given the eggs, by the defendant, to Henry E. Hopkins & by the plaintiff to the bank to withhold delivery of (So., the acceptors of the time draft, was a rightful the bill of lading until the draft was paid, or other delivery, and that the judgment of the Special Term conditions performed, and the question must be con should be reversed. sidered as if there were no such instructions, leaving The judgment of the Special Term is reversed, and the bank in the position of a general agent in this par the cause remanded with instructions to enter judgticular matter, with such powers and duties as that ment on the agreed facts for the defendant. relation implies. On receipt of the draft and attached The other judges concurred. bill of lading, the Baltimore Bank presents the draft [See 12 Alb. L. J. 163.] to Henry E. Hopkins & Co., who accept it, and the bank detaches the bill of lading and delivers it to said Hopkins & ('0., who take and present it to the defend
NEW YORK COURT OF APPEALS ABSTRACT. ant and demand the delivery of the eggs; and the defendant thereupon delivers the eggs to said IIopkins WILL-DEVISE IX TRUST — SUSPENDING POWER OF & Co., and takes up the bill of lading.
ALIEXATION-REFUSAL TO ACCEPT PROVISION IN LIEC The Baltimore Barik was the agent of the plaintiff', OF DOWER.—The will of B. devised his residuary real and in the absence of special instructions to the con estate to his executorin trust, to receive the rents and trary had the right to surrender the bill of lading to income, to divide the same into four parts, and Henry E. Hopkins & Co., on their acceptance of the pay each of said parts to beneficiaries named during draft: indeed it is not stating the rule too strong to the lives of two persons designateci, who were strangsay that it was the duty of the bank to do so. And
ers to the trust. Illd, that there was no Wilawful there can be no question but that the delivery of the suspension of the power of alienation, and that the bill of lading to Ilenry E. Hopkins & ('0., the accept trust was valid. Upon the argument here, as well as ors of the time draft, by the bank agent of the plaints in the court below, the concession appears to have iff, checked by no instructions to the contrary, trans been made that this clause of the will did not contain ferred the eggs to the acceptors, llenry E. Ilopkins & a valid estate in trust upon the authority of the opinCo., without its formal indorsement by the plaintifl. ion of Comstock, J., in the case of Downing r. Mar
If the plaintiff had not intended that the bill of lad shall. 23 N. Y. 366. It is there laid down that although ing should be delivered to llenry E. Topkins & ('o., trusts to receive and apply rents and profits may be on their acceptance of the time draft, he should have created under the statute of uses and trusts, the one so instructed his agent, the Baltimore Bank. The in question in that case was not constituted in the burden was upon him, and in the absence of proof to manner which that statute prescribes. It was there the contrary, the presumption is against the plaintift'; stated, after citing the statute that "the trust must it is that he not ovly intended to but actually did part therefore be made dependent on the life of the bene
ficiary.” The beneficiaries there were associations, incorporated or unincorporated, and it was determined upon the ground that admitting the trust to receive the rents and profits was void, the purposes of the will could be worked out under the power given to sell and pay over the proceeds, and heuce it is not an authority upon the question considered. By a previous clause in the will the testator devised to his wife the use and in lieu of dower, income of a house and lot to his widow during life, and upon her death, it was declared that the same should become part of the residuary estate. Held, that there was no uvlawful suspension of the power of alienation as to this portion of the real estate, also that upon the refusal of the widow to accept the devise, the provision became inoperative. No trust was created during the life of the wife, and she had the absolute right to dispose of her interest in the house and lot during tbat period. The power of alienation is therefore not suspended during her life. While she had the right to enjoy the use and income of it, she also had the right to sell her interest in the same if she so wished, and upon her death it passed, under the sixth clause, to the executor in trust during the lives named, and upon their termination as provided in the seventh clause of the will. It is insisted that the title to the house and lot did not vest until the death of three persons, the widow, Thomas Bailey and Webster Mabie, and hence there was an illegal suspension of the power of alienation and the (devise was void. The gift of the use and income was (quivalent to a devise of the land itself during the life of the widow, and she had a legal title and was entitled to possession of the same. 3 Wash. on Real Prop. 150; Jarm. on Wills, 3:31; Monarque r. Monarque, 80 N. 9. 3:24; Craig v. (raig, 3 Barb), ('h. 76. She having refused to accept the deriso made in lieu of vower and elected to take her dower, this provision was of no avail, and it must be considered as if it never had been made, and thus the house and lot became a part of the residuary estate from the beginning, and was not liable to the objection that the power of alienation was restrained during the life of the widow. Bailey v. Builry. Opinion by Miller, J. [Decided Dec. 2, 1881.)
at the trial and then appealed to the General Term and to this court. The written contract between the parties amounted either to a license or to a lease (it is unimportant to determine which) to use the defendants' cars, personal property, for a certain purpose. The law did not imply a renewal of the contract for a term of two years, because such a contract which was not to be performed, and could not be performed within one year, not being in writing, was void under the statute of frauds. The law will not imply an unwritten contract which the parties themselves could not make without writing. It will sometimes imply an obligation on the part of a person who has received a benefit under a contract condemned by the statute of frauds, to make compensation to the other party. An implied contract is one which the law infers from the facts and circumstances of the case; but it will not be in ferred, so far as I can conceive, in any case where an express contract would for any reason be invalid. The law will not make that valid without a writing which the law requires should be in writing. Contracts void under the statute of frauds will sometimes be specifically enforced in equity, not because they are treated as valid, but for the prevention of fraud. This is not an equitable action for the specific performance of any contract or to compel the execution of a valid lease or contract on the part of the defendant. No such relief was claimed in the complaint or upon the trial. The action is to recorer damages for the breach of an alleged valid agreement, and to maintain it the plaintiff must show a valid agreement. The claim of the plaintiff that he was entitled to the benefit of the contract for the whole of the year subsequent to December 30, 1880, upon the ground that there was an implied contract for the whole of that year, is also unfounded. If the cars hall been real estate leased to him, his claim would have foundation. A tenant of real estate, permitted to hold over after the expiration of his tenancy, may holil for another year upon the same terms. The landlord has his option to treat the tenant as a trespasser or as a tenant for another year. But if he takes rent, or otherwise assents to the hold. ing over, then the tenant has the rights of a tenant for another year. Schuyler v. Smith, 51 N. Y. 309. These are technical rules applicable to real estate, which have never been applied to personal property, and so it was held in ('hanıberlain v. Pratt, 33 N. Y. 47. To the reasoning of that case nothing needs to be added. By using the cars after the expiration of the first term of two years, the plaintiff acquired no new rights. It was always in the power of the defendant to put an end to his occupancy of its cars at any time. The plaintiff also invokes the doctrine of estoppel in pais against the defendant, but I see no basis for it to rest upon. For aught I can see his damage and his embarrassment would have been just as great if it had removed the ad certisement from its cars on the 30th day of December, 1880. It did nothing to mislead him. He knew that his contract had expired, and that he was using the cars at the will of the defendant, and it simply exercised a right which he was bound to know it had. Chase v. Second Ivenue Railroad Co. Opinion by Earl, J. [Decided Nov. 25, 1884.]
CONTRACT-USE OF PERSONAL PROPERTY-HOLDING OVER — NO IMPLIED CONTRACT — DAMAGES. -Indugnist, 1-70, the plaintiff entered into a written coutract with the defendant, whereby in consideration of $1,200 per year payable in monthly installments of $100 each, he was to have the exclusive right to place advertisements in its cars for two years from the 30th day of December of that
year. In pursuance of that contract he placed and kept advertisements in the car's
for the two years, and paid the stipulated compensation. After the expiration of the tw() years, without
any further agreement, he continued to place and keep advertisements in the cars until May 1, 1881, making the monthly payments, when in pursuance of a notice requesting him to remove the advertisements from the cars on or before that day, it removed them from its cars and refused to permit him to place any more therein. The plaintiff claims that by permitting him to keep his advertisements in the cars after December 30, 1880, and taking pay from him, the defendant must be held by implication to hace renewed the original contract for another term of two years from that date; and that at least by permitting him to enter upon another year in 1881, it was bound to permit him to keep his advertisements in the cars for the whole of that year. This action was brought to recover damages from the defendant for its refusal to permit the plaintiff to keep his advertisements in the cars after Mar 1, 1881. He was defeated
CORPORATION-ULTRA VIRES-WUEN CANNOT AVAILRECOVERY AGAINST ONE JOINT CONTRACTOR IS BAR TO OTHER.- A contract was entered into between defendants jointly as parties of the first part, and plaintiff and all its stockholders, individually, as parties of the second part, it being executed by plaintiff's president on its behalf, by which the latter agreed to give the former three-eighths of plaintiff's capital stock. Two of its trustees were to resign and defendants to take