vault space and hence imposed not a mere license fee incident to the power to investigate the application and regulate the use of the street, but a tax measured in amount by the rental value of the vault; the charter of the defendant conferred upon the board of aldermen power to regulate merely, which does not include the power to tax. The Appellate Division made the finding of fact (Ryan v. Franklin, 199 N. Y. 347, 92 N. E. 673): "That no proof was adduced by the plaintiffs which tended to show that the rate of compensation which was prescribed by the ordinances for a vault permit was either excessive or unreasonable or in the nature of a tax or an assessment or a rental for the use of the land." And the conclusion of law: 68 N. E. 880; Lincoln Safe Deposit Co. v. City of New York, 210 N. Y. 34, 103 N. E. 768, L. R. A. 1915F, 1009; City of New York v. Rice, 198 N. Y. 124, 91 N. E. 283, 28 L. R. A. (N. S.) 375. This right exists as to the owner of the land contiguous to the land of the street, irrespective of the ownership of the fee of the latter, because it is an element in the authorized regulation and supervision of the street. The provisions of the ordinances do not contain any evidence that the payment required from the applicant for the permission to construct a vault is a tax and not a fee for the permission. They require him to state in his written application "the number of square feet of ground which is required for the same, and the intended length and width of the same," and to pay as a just "That even assuming that the plaintiffs are the owners of the bed of Cortlandt street, still they have not the right to construct vaults thereunder without the permission of the municipal Compensation for the privilege a sum "calcuauthorities. And as a condition of granting lated at the rate of not less than 30 cents, such permission, the municipal authorities are nor more than $2 per foot for each square entitled to impose such terms and conditions as foot of ground mentioned as required for they may see fit to indemnify the city against the expenses which it would be subjected to in such vault. performing its duty of supervision and inspection and maintenance and repair." * * be granted as requested and the regulation, supervision, and inspection incident to the construction and maintenance of the vault. The language carries no evidence that the ordinances apply only to vaults constructed in streets, the fee of which is in the defendant, or that the compensation is a rental. We cannot discern in the fact that the licensing officer is required, in exercising his discretion as to the amount, There is not in the record any evidence to make the basis of his computation the supporting the finding of the Special Term number of square feet of the space to be octhat the defendant demanded of the plain-cupied, support for the legal conclusion that tiffs that they pay for and take out a permit the payment is a tax or assessment for revfor the use of the space or land occupied by enue. It does not tend to prove that a comthe vaults, or the conclusion that the ordi-putation so based would produce an unreanances provided or intended that the plain-sonable charge or fee for the expenses of the tiffs should pay a tax upon or for such defendant resulting from the ascertainment space. The language of the ordinances, up- as to whether or not the permission should on which ultimately the finding is based, does not support the finding or conclusion. It expresses that the privilege applied and to be compensated for is that of constructing a vault in the street. That privilege has not any relation to the ownership or a renting of the land of the street or the use of the fee. It is a requisite preliminary to the The appellants take before us the further construction of the vault, because the land ground that the ordinances are unauthorconstituting the street is subject to all the ized and unlawful because they apply alike public uses, servitudes, and appropriations to all streets irrespective of ownership, and essential to or consistent with its status as therein refuse to recognize the superior a street, and, in the interest of public safety, rights of the individuals owning the fee of a convenience, security, and comfort, is, with-street. Inasmuch as this ground assumes in all legitimate street uses, by statutory that the compensation required by them is grant, under the control, regulation, and dis-a rental, what we have already said makes position of the public authorities, whose further consideration of it unnecessary. right to exact a payment or fee, in the pro- For the reasons stated, the judgment cess of regulation, for a permission or priví- should be affirmed, with costs. lege of exercising in it a private possession or advantage, consistent with the public uses, is undoubted. Jorgensen v. Squires, 144 N. Y. 280, 39 N. E. 373; City of Buffalo v. Stevenson, 207 N. Y. 258, 100 N. E. 798; Deshong v. City of New York, 176 N. Y. 475, WILLARD BARTLETT, C. J., and HISCOCK, CHASE, HOGAN, and CARDOZO, JJ., concur. Judgment affirmed. (225 Mass. 148) In re KOCH et al. WRIGHT v. BLINN (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 24, 1916.) 79 judge in disallowing the exceptions, the truth of which in this respect is not disputed by the petitioners, shows that the facts stated in their motion were not verified by affi1. REFERENCE 101(2) davit, were not supported by any evidence, RECOMMITMENT OF and were not admitted by the opposing parREPORT-DISCRETION OF TRIAL COURT. Where the facts stated in a motion to recom-ty. Under these circumstances it is too clear mit a report to an auditor were not verified by for discussion that the granting of the moaffidavit, or supported by any evidence, and were tion to recommit the case to the auditor restnot admitted by the opposing party, the granted wholly in the discretion of the judge. ing of the motion to recommit the case rested Randall v. Peerless Motor Car Co., 212 Mass. wholly in the discretion of the trial judge. [Ed. Note.-For other cases, see Reference, 352, 372, 99 N. E. 221. Cent. Dig. § 170; Dec. Dig. 101(2).] [2] As no substantial question of law is 2. EXCEPTIONS, BILL OF 55(4)—PETITION set forth in the bill of exceptions as filed and TO ESTABLISH DISMISSAL. Where no substantial question of law was disallowed, the parties and the Commonset forth in a bill of exceptions as filed and dis- Wealth ought not to be put to the expense allowed, the parties and the commonwealth of a hearing on the petition to establish the ought not to be put to the expense of a hearing exceptions, but the petition should be dison the petition to establish the exceptions, but missed. Bishop, Petr., 208 Mass. 405, 407, the petition will be dismissed. 94 N. E. 479. So ordered. [Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 93; Dec. Dig. 55(4).] Petition by Henry A. Koch and others, to prove exceptions filed by them in an action against them by one Lummus, disallowed as not conforming to the facts. Petition dismissed. Original case was in contract by one Lummus to recover as assignee under a common law assignment, rent alleged to be due from defendants. After a judgment for plaintiff, defendants filed exceptions which were disallowed by the presiding judge as not conformable to the facts and the matter then came before the full bench. J. S. Richardson and Josiah Bon, both of Boston, for petitioners. H. T. Lummus, of Lynn, for respondent. APPEAL AND ERROR 694(1) REVIEW of fact is erroneous presents no question of law [Ed. Note.-For other cases, see Trusts, Cent. RUGG, C. J. This is a petition to establish exceptions. The respondent, plaintiff in the original action, moves that the petition be dismissed on the ground that it is apparent upon a cursory examination of the exceptions as filed that no substantial question of law is involved. The action is in contract. It was referred to an auditor with agreement Petition of George L. Wright in the proby the parties that his findings of fact should bate court against George R. Blinn, trustee, be final. The auditor's report was in favor and others, to have an account paid from of the plaintiff. Thereafter, the plaintiff trust funds. The petition was dismissed and moved that it be confirmed and judgment petitioner appealed to the Supreme Judicial rendered against the defendants. The de- Court. The master to whom the action was fendants, the present petitioners, moved that referred stated in his report that: "The petithe report be recommitted to the auditor be- tion was apparently drawn upon the theory cause he did not show that an objection had that said Blinn, as trustee, is indebted to the been made to the introduction in evidence of petitioner, but there was no evidence introa certain letter, whereas in truth such ob- duced sufficient to justify me in finding that jection had been made; and the auditor, al- the said Blinn ever made any contract with though requested to make a statement of the petitioner. The case, however, was tried such ruling in his report, had not done so. upon the theory that the trustee acted, in his St. 1914, c. 576, § 2, amending R. L. c. 165, capacity as trustee, in an arbitrary and ca§ 55. The judge denied the motion of the pricious manner, and that he ought to be comdefendants and granted that of the plaintiff. pelled by this court to reimburse the petitionTo this action exception was taken, and this er for the board of Ellen Maria Kimball from is the only exception alleged in the bill. the time of the death of the testator to the [1] This exception raises no question of time of Blinn's appointment as trustee, and law. The certificate of the superior court for the various sums of money expended by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the petitioner in behalf of Ellen Maria Kim-, ported in substance that the trustee never ball and for her nursing for the period men- made any contract with the plaintiff but tioned in the account annexed"-and found steadfastly refused to do so; that the trustee that "said Blinn, trustee, acted in good faith paid directly to the beneficiary a sum in exand not in an arbitrary or capricious man- cess of the income of the trust fund, and aftner." Plaintiff objected and excepted to the er narrating at some length the conduct of master's report, and the case was reported the trustee, that the trustee acted in good for the determination of the full court. Ex-faith and not in an arbitrary or capricious ceptions overruled, and petition dismissed. Chas. G. Willard, of Brockton, for peti: tioner. Adams & Blinn and Amos. L. Taylor, all of Boston, for respondents. PER CURIAM. The will of John Kimball contained the provision for the benefit of his sister Ellen printed in the margin.1 The petitioner claims that he furnished board, lodging, medicine and nursing for the sister for several years, the fair price for which he seeks to recover from the trustee. The case was referred to a master who re "The remaining three-fourths of all the rest, residue and remainder of my estate whether real, personal or mixed I give devise and bequeath unto the said George R. Blinn to have and to hold the same together with the legacy under the second item hereto to the said George R. Blinn his heirs and assigns but in trust nevertheless for the purpose following, namely; to keep the same safely invested and to pay over the net income and interest arising therefrom unto my sister, Ellen Maria Kimball for and during the term of her natural life and if in the opinion of the trustee hereunder the said income and interest shall be insufficient for the comfortable maintenance and support of the said Ellen Maria I hereby authorize and empower my trustee to pay to or for the benefit of the said Ellen Maria such portions of the principal of said trust estate as in the opinion of my trustee may be necessary for her comfortable maintenance and support, it being expressly understood that said payments of principal are not obligatory upon my trustee but are left solely to his sound discretion and judgment and upon the death of the said Ellen Maria I direct my trustee to transfer, turn over, and convey all of the trust estate remaining in his hands unto my two cousins Sarah Simonds and her sister Jerusha Webber to have and to hold to them and their heirs and assigns forever and terminate this trust." manner. The first exception to the master's report is that it was obligatory upon the master to find that the trustee acted capriciously and arbitrarily in not paying for the support of the beneficiary from the death of the testator until the appointment of the trustee. Manifestly this is only one element bearing on the question and is not decisive. It is quite overborne by other circumstances stated in the report. [1, 2] The second exception is the general one that the master's finding of fact is erThe familiar rule is that where, as roneous. here, the evidence is not reported, no question of law or fact is presented by such an exception. So long as the trustee acted in good faith and not arbitrarily or capriciously, his discretion as to payment from the principal of the fund cannot be reviewed. Brown v. Lumbert, 221 Mass. 419, 108 N. E. 1079; Corkery v. Dorsey, 223 Mass. 97, 111 N. E. 795. The decree of the probate court may be reversed2 and a new decree may be entered overruling the exceptions to and confirming the master's report and dismissing the plaintiff's petition. So ordered. The decree of the probate court declared that the acts of the trustee in exercising the discretion reposed in him by the will of John Kimball were not reviewable, and ordered that the petition be dismissed, but it also declared "that the petitioner has no valid claim against the respondents or the said estate of John Kimball," which was a matter not material to the exceptions passed upon by this court and not necessary to the decision of the case, (185 Ind. 593) PITTSBURGH, C., C. & ST. L. RY. CO. v. (Supreme Court of Indiana. Nov. 23, 1916.) The grant of a switch track right of way, giving the railroad company the right at any time it may see fit to remove the track material belonging to it, to hold for so long a time only as such company shall elect to use said side track, was a lease creating a tenancy terminable at the will of lessor, as well as of the railroad company. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 161-165; Dec. Dig. 69.] Lairy, J., dissenting. Appeal from Circuit Court, Washington County; Wm. H. Paynter, Judge. age of cars and no cars shall be allowed to remain thereon longer than is necessary for loading and switching purposes, where the same now is or may be surveyed and located. The width of the land to be occupied for this purpose, however, not to exceed fourteen (14) feet; also the right to cut and remove for my use, however, such trees as may be liable to fall upon said track; and also the right to said company at any time it may see fit to do so, without further compensation to me, to take up and remove so much material as may belong to it, used in the construction and maintenance To have and to hold the of said side track. above described rights and privileges unto the said Pittsburgh, Cincinnati, Chicago & St. Louis for so long a time only as such company, its Railway Company, its successors and assigns, successors and assigns, shall elect to continue the existence and use of said side track No. 6 for the use of the August Barth Leather Company, its successors and assigns. And after the removal of the same, as above provided, all right, title and interest of the said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company in and to the above described premises shall cease and determine absolutely." Action by Elizabeth Barth against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Case transferred The trial court construed the above instrufrom the Appellate Court under section 1394, ment to be a lease creating a tenancy at will, Burns' Ann. St. 1914 (110 N. E. 574). Af- and to sustain that construction appellee firmed. here relies on the decision of this court in M. Z. Stannard, of Jeffersonville, for appellant. John D. Welman, of Evansville, Charles L. Jewett, of New Albany, and W. W. Hottel, of Salem, for appellee. SPENCER, J. For a statement of the facts and circumstances leading up to the institution of this action reference is here made to the opinion of this court in Barth v. Pittsburgh, etc., R. Co., 175 Ind. 554, 93 N. E. 535. Subsequent to the decision in that case appellee instituted this proceeding to recover possession of certain lands over which appellant was maintaining switch tracks, and took the position that the instrument under which the railroad company operated such tracks is a lease creating a tendency at will, and therefore terminable on the giving of one month's notice to quit. That instrument contains the following provisions: * Knight v. Indiana, etc., Co., 47 Ind. 105, 107 The instrument there The instrument was construed to be a lease, containing an express contract that, so far as the lessee don the lands and mining, and remove his is concerned, he may terminate the lease, abanbuildings and fixtures from the lands at any time. This must be regarded as the creation of an estate at will. It is a stipulation which applies to the whole interest of both parties under the instrument, and every section and clause in it. The lessee has only to will it, and every part of the instrument and every interest under it, whether of the lessor or of the lessee, is at once at an end. It is a well-settled and well-known rule of law that a lease or estate which is at the will of one of the parties is equally at the will of the other party. One of them is no more or no further bound than the other. As the lessee in this case had the clear right, at his will, to terminate the tenancy at any time, so also had the lessor. It cannot be otherwise." "Know all men by these presents, whereas, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company has entered into certain agreements with the August Barth Leather Company and the New Albany Manufacturing Company for the construction and operation of certain side tracks Nos. 6 and 23; * and whereas, the route of said proposed side track No. 6 passes over certain land owned by Elizabeth Barth (widow of August Barth) in said city of New Albany, county of Floyd, state of Indiana, described as follows: The route of said track being shown on the plan attached hereto, marked 'Exhibit A' and made part of this conveyance: That I, Elizabeth To defeat the application of the above deBarth, widow of August Barth, for and in con- cision in this case attention is called to the sideration of the sum of $1 and the fulfillment rule announced in New American, etc., Co. v. of aforesaid agreement, received to my full satisfaction, have granted, bargained and sold, Troyer, 166 Ind. 402, 76 N. E. 253, 77 N. E. and by these presents do grant, bargain and 739, to the effect that gas, oil, and similar sell unto the Pittsburgh, Cincinnati, Chicago & mining contracts are to be treated as in a St. Louis Railway Company, the right to enter class by themselves on account of the peculiar upon said premises and to construct, maintain and operate thereon said side track, provided characteristics of the business. The decision said side track shall not be used for the stor-in the Troyer Case is thus explained in Bry For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes son v. Crown Oil Co., 112 N. E. 1, at page 2 [struction of the lease agreement, and are de of the opinion: termined by our conclusion above stated. Judgment affirmed. "Conceding that we there held gas and oil contracts to be in a class by themselves, and that certain elements peculiar thereto are to be considered in the construction of such contracts, such a decision does not determine that all matters relative to the development of gas and oil properties, and to the rights of the parties in interest, are to be governed by a special system of jurisprudence founded on the peculiarities of the business." LAIRY, J., dissents. (185 Ind. 715) GLEASON et al. v. CARR et al. (No. 23104.) Appeal from order granting temporary injunction must be perfected and transcript filed in the Supreme Court during the term at which the order is made. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1885, 2724, 2730; Dec. Dig. 339 (4), 621 (1).] Appeal from Superior Court, Lake County; Wm. Harweh, Special Judge. Suit by Drucilla Carr and another against William P. Gleason and others. From an order granting a temporary injunction, defendants appeal. Appeal dismissed. O. L. Wildermuth and C. V. Ridgely, both of Gary, for appellants. John H. Gillett, of Hammond, and E. G. Ballard, of Gary, for appellees. MORRIS, J. Appeal from an order granting a temporary injunction. The order was made at the March, 1916, term of the Lake superior court. The transcript was filed here long after the expiration of such term. Appeals of this character must be perfected during the term at which the order is made. Perrott v. Glenn (1916) 112 N. E. 891, and authorities cited. Appeal dismissed. In other words, when the nature and extent of the subject-matter of a mining contract is such that it cannot be known to the parties when the agreement is executed, that fact may be taken into consideration in determining their rights under the instrument. So far as applicable, however, the usual rules of law are otherwise controlling, and we know of no reason why the terms of a lease contract for a railroad right of way should not be determined in accordance with such rules. In this connection, the further assertion is made that the instrument here under consideration is not a lease, but rather a grant to use and occupy, which, when accepted and acted on by the grantee, is not revocable at the pleasure of the grantor. To support this position reliance is placed particularly on the decision in Gilmore v. Hamilton, 83 Ind. 196, in which the Knight Case is considered and sought to be distinguished. Without determining whether a correct result was reached in Gilmore v. Hamilton, supra, it is sufficient to state that the reasons there given for not treating the contract under consideration as a lease or a license are not controlling in the present case. It is true that the instrument executed by Mrs. Barth granted certain "rights and privileges unto the said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, its successors and assigns, for so long a time only as such company, its successors and assigns, shall elect to continue the existence and use" of the side tracks in question. It is true, also, that one purpose for the execution of the contract was to enable appellant to carry out certain shipping agreements which it had made with third per-811(1).] sons, but whatever those circumstances may indicate as to the original intention of the parties, there can be no doubt that when the railroad company contracted for the right, "at any time it may see fit to do so," to abandon the agreement, it created an estate at will in itself which was terminable in like manner at the will of its grantor. Any other construction would destroy mutuality of termination, which is an element to be considered in the interpretation of such contracts. The decision in Knight v. Indiana, etc., Co., supra., is authority here, both as determining the character of the instrument in question and as fixing the estate which it created. The remaining questions presented by the appeal are dependent for solution on a con (185 Ind. 580) (No. 22976.) Nov. 21, 1916.) 811(1) INSTRUCTIONS STATE v. TOTTEN. (Supreme Court of Indiana. CRIMINAL LAW REPETITIONS. to one side or the other is not commendable. Repeating in instructions vital questions [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1969, 1971, 1972; Dec. Dig. Appeal from Circuit Court, Spencer County; Elbert M. Swan, Judge. Homer E. Totten was tried and acquitted, and the State appeals on reserved questions. Appeal not sustained. Ora A. Davis, of Rochester, and E. B. Stotsenburg, of New Albany, for the State. James L. Houston and August H. Hoch, both of Rockport, for appellee. COX, C. J. Appellee was charged, by indictment returned by the grand jury September 10, 1914, with having, as guardian of his minor daughter, on May 4, 1914, embezzled the funds of his trust to the amount of $1,969.90. To this indictment he was arraigned and pleaded not guilty. After this, on May |