the bridge had been caving, and was then caving, to such an extent as to endanger, as was thought, both the bridge and the farm. Henry Moore, who then owned the farm, says: "The railroad officials and myself met several times, and examined the caving bank, I judge, then, that the jetties were put in as the result of our correspondence and examination of the banks. *** In entering into the correspondence, I thought whatever protection the bridge would get would be of advantage to my plantation. This corre spondence was all done by me as owner of the farm. As far as I thought, these were a protection to stop the cavings of the bank. Ultimately, in my opinion, it stopped the caving of the bank. I sold the place at the end of the year, afterwards, and I thought I could see the benefit that was accruing to the place. * * * The jetties were satisfactory to me, and, I am satisfied, helped the place. * * The results, as I observed them, were beneficial to the place." These jetties were not kept in repair. The brush and sand boxes washed out, and the bank cut away at the end of the jetties, until a current ran between them and the bank. The bank continued to cave until the ends of the jetties, which were originally against the bank, are now some distance in the riv er. In 1890, during an overflow of the river, the bank on which the farm is situated caved in near the jetty, next to the last up the river from the bridge, to such an extent as to break the levee which protected the farmı, and it was overflowed and otherwise injured, and the crops thereon destroyed. The evidence was conflicting as to whether or not the jetties caused the bank to cave more than if they had not been placed there. But the jury found the issue in favor of the plaintiffs, and there was evidence on which to base the verdict. We treat this as a fact established in favor of the appellees. The jetties having been built by the Texas & St. Louis Railway Company, with the consent and concurrence of Henry Moore, and for the mutual benefit of both, the most that can be claimed by Moore, or those in privity with him, is that a duty was imposed upon that company to maintain them in good repair, and see that they would not become a source of injury to the farm. After they were built the railroad passed into the hands of the defendant St. Louis, Arkansas & Texas Railway Company, and still later, on May 14, 1889, into the possession of Fordyce and Swanson, as receivers of the last-named company. But there is nothing disclosed in the record by which, in the transfer from the Texas & St. Louis Railway Company, the St. Louis, Arkansas & Texas Railway Company assumed any obligation or duty to maintain or keep these jetties in repair, or to prevent them from injuring the farm. They are not upon the property or right of way of the company, and it is not shown that the defendant company, or Fordyce and Swanson,

as receivers, ever assumed control of the jetties, or in any way adopted or tried to maintain them. The mere fact that they are the successors to the Texas & St. Louis Railway Company is not sufficient to charge them with liability for the jetties as a nuisance. In order to render them liable therefor, they must have done some positive act adopting them, and a mere failure on their part to remove or repair the jetties does not create a liability. 2 Wood, Nuis. § 838; Wayland v. Railroad Co., 75 Mo. 548; Walter v. Commissioners, 35 Md. 385; Banking Co. v. Ryerson, 27 N. J. Law, 457. J. C. Russell, one of the plaintiffs, testified that, in the year 1889, appellants had a small boat with a pile driver building a "water break" above the bridge; but on cross-examination he stated that this work had nothing to do with the jetties. There is nothing in the evidence of this witness to charge appellants with liability for the nuisance.

It is also claimed that the roadbed or embankment of the company which passes through the farm of appellees was so constructed as to obstruct the natural flow of the water and form a basin, whereby the water from the overflow was held upon the land much longer than it would have been had the embankment been built with proper openings or outlets for the water. We are unable to say that there was no testimony to sustain the verdict as to this allegation of the complaint; but there is no finding of the jury or statement of facts by which we can separate the damages on this account from the other alleged cause of action; and as the questions presented in argument arising out of this issue are not properly before us, we refrain from discussing the same. Excluding the evidence touching the claim for dam ages by reason of the jetties, the verdict is excessive. Reversed and remanded for a new trial.

BUNN, C. J., disqualified, did not sit in the

case.

WHITAKER v. COMMONWEALTH. (Court of Appeals of Kentucky. June 14, 1894.) INCEST CONSENT-ACCOMPLICE.

Defendant may be convicted of incest with his daughter on her uncorroborated testimony; she, though consenting, not being an accomplice.

Appeal from circuit court, Ohio county. "To be officially reported."

H. A. Whitaker was convicted of incest, and appeals. Affirmed.

Guffy & Ringo, for appellant. W. J. Hendrick, for the Commonwealth.

HAZELRIGG, J. The appellant was indicted, tried, and convicted for the crime of incest. He denied his guilt, and his conviction was secured on the testimony alone

right by prescription. But, while such right in or over an artificial way may be thus acquired, it is contended that, when the structure falls from decay or is necessarily removed, a restoration cannot be directed. This may be admitted. The law of specific performance may not be so applied, but when the deliberate agency of the owner, unaffected by the conditions mentioned, is the destroying power, are the courts powerless to afford redress? It cannot be contended for a moment that a judgment for pecuniary compensation would have been appropriate or practicable. What is to be the measure of the compensatory damages? Manifestly, the right to use the passway as it was, and where it was, is the peculiar element of value. The city does not own the structure, nor does the public, whose representative the city is; hence it may not go on the bridge to rebuild the footway. It seems to us, therefore, that the chancellor applied the only appropriate remedy when he directed the restoration.

The doctrine that the exercise

of this discretionary power on the part of the chancellor is within the recognized rules of equity is supported by abundant authority. See 5 Wait, Act. & Def. p. 765; Fry, Spec. Perf. Cont. §§ 35, 51, 52, 54, and notes to section 40; Story, Eq. Jur. § 728; Wat. Spec. Perf. § 28; and Railroad Co. v. Zaring, (Sup. Ct.; Bowden, J.) 9 Ky. Law Rep. 107. Wherefore the judgment is affirmed.

assent

CITY INDEBTEDNESS-CONSTITUTIONAL LIMITATION. A city of the fourth class, free from debt, and with $1,350,954 taxable property, may contract an indebtedness of $60.750, payable in annual installments of $4,500 each, where two-thirds of the city voters thereto, and the tax levy, in order to meet the interest and provide a sinking fund for the principal, need but slightly exceed 25 cents per $100 of taxable property, as Const. §§ 157, 158, allow an indebtedness up to 5 per cent. of such a city's taxable property, and an annual assessment of 75 cents per $100.

Appeal from circuit court, Shelby county. "Not to be officially reported."

Action by the Shelbyville Water & Light Company against the city of Shelbyville. From a judgment for plaintiff, defendant appeals. Affirmed.

P. J. Foree and E. B. Beard, for appellant. L. C. Willis and J. C. Beckham, for appellee.

HAZELRIGG, J. The appellant is a city of the fourth class, and at the time of the contract with the appellee was not indebted in any sum. By that contract an indebtedness to the extent of some $60,750 for water supply was created, payable in 13%1⁄2 years, at the rate of $4,500 per year. This was

in excess of the income and revenue provided for any given year, but the obligation was not incurred, or contract entered into, until the assent of two-thirds of the voters of the city had been regularly obtained at an election held for that purpose. The tax rate permissible under section 157 of the constitution is 75 cents on the $100. The present rate in the city in question is 25 cents on the $100; and this rate need be increased but slightly in order to meet the payments as they fall due under the contract, or, for that matter, if the occasion demands it, to meet the interest on the debt, and provide a sinking fund for the payment of the principal. The conditions, therefore, imposed on municipalities in these respects, under sections 157 and 159 of the constitution, seem to be fully met. Under section 158 of that instrument the aggregate indebtedness of the city cannot exceed 5 per centum on the value of the taxable property therein, and we find the value of the taxable property in this city to have been $1,350,954 at the assessment next before the last one previous to the incurring of the indebtedness in question; so that the contract does not create an indebtedness in excess of the limitation imposed by section 158 of the constitution. The incorporation of the appellee appears to have been regular, and the steps leading up to the contract, and the terms of same, appear to be fully authorized. The judgment of the lower court to that effect is affirmed.

LEWIS, J. It was incorrectly stated in the opinion that plaintiff failed to file a reply denying affirmative allegations contained in the answer, as now appears to us from a re-examination of the record. But as the alleged facts were found on the trial, and the jury, under instruction of the court, found them to be true, the mistake we made can make no difference. If, as is alleged and proved, there was an agreed division of the land of plaintiff's husband and defendant's father, in which the 6% acres in controversy was allotted to him, and not included in the part allotted to her as dower, and she had knowledge of and consented to that division, the defendant's possession of the parcel in

maintain this action of trespass against him, especially as she gave no notice to quit. It does not, therefore, make any difference whether subsequently a judgment was rendered extending boundary of plaintiff's dower land so as to include the 62 acres, or not, so far as this action may be affected. Petition for rehearing overruled.

CALDWELL v. JACOB et al. (Court of Appeals of Kentucky. June 16, 1894.)

IMPROVEMENTS ON TRUST ESTATE BY LIFE TENANT -REIMBURSEMENT.

Where the absolute property of an infant is, on the petition of his guardian, and the order of a court of equity, used to improve land left in trust, with life estate to him, and remainder to other infants, such life tenant may be reimbursed from the trust property, so long as what is left thereafter is equal to its original value, with its natural increase.

"Not to be officially reported."

On rehearing. Opinion modified. For former opinion, see 22 S. W. 436.

PRYOR, J. This court holds, in the opinion rendered, that a life tenant cannot improve the estate so as to charge the remainder-man with the improvements, but has not adjudged that if a court of equity can place the parties in statu quo, so as to relieve the life tenant, this cannot be done, and in a case where the improvements have not been voluntarily made by the life tenant. In this case, Charles D. Jacob was an infant, and invested with a life estate in the property improved. His guardian applied to a court of equity, asking that the realty of his ward be sold, in which he had the fee, and the proceeds applied to the improvement of the estate in which the infant, Charles D. Jacob, had an estate for life, remainder to his children or descendants. This was done by a court of equity, and when the chancellor had no power, according to the rule recognized by the principal opinion; and, if so, the infant life tenant is as much entitled to equitable relief as the contingent remainder-men, or those entitled to the estate improved after the termination of the life estate. The one infant is as much entitled to relief as the other. Now, if there is secured to the infant or contingent remainder-men $30,000 of the trust estate, with its natural increase in value, then the contingent infant remaindermen get all they are entitled to. It is all the same estate originally devised by the father of Charles D. Jacob, and this estate is secured to them (the infant remainder-men) in that way, and Charles D. Jacob is restored the value of his fee invested in these improvements, which is thirteen or fourteen thousand dollars. No one is injured, but all are placed in the condition they were when the first error was committed by the chancel

the property of another infant. This equity becomes the more apparent when it appears that Charles D. Jacob, who was an infant when the fee was sold, has had as much of the realty withdrawn from the trust as would satisfy him for the $13,000 the court had invested for him, and erected upon it a stone front valued at $27,000, and then sold to Davis for $36,000. This neither Davis nor his vendor, Charles Jacob, should lose, unless the remainder interest is to suffer by it. Before the chancellor can relieve the appellant, or quiet his title, it must be made to appear that the remainder-men are left with the trust fund devised to them, with its natural increase. In other words, they must be placed in statu quo,-must sustain no loss whatever. The doubt in the mind of the court is as to whether or not the contingent remainder-men have been placed in such a position as would enable them to realize the trust fund as originally devised, with its natural increase. When they obtain this they have no cause to complain, and the case is reversed for further preparation on that point. Reversed and remanded. This is a moditication of the original opinion.

An instrument gave the grantee power of attorney to apply for and receive a duplicate certificate for one that was lost, and there was a simultaneous conveyance to him,-in effect, a mortgage of the certificate, and land to be located thereunder,-for $250, on condition that if the grantor conveyed to the grantee one-third of the land to be located, and repaid the $250 within 12 months, with interest, the conveyance should be void. The grantee acquired the certificate in the name of the grantor, and held it for several years, until he died. Held, that the grantee was not invested with title to the certificate, and that a purchaser of such certificate from his administrator acquired no title to the certificate, nor right to the mortgage, and was not subrogated to the right of the grantee as to the debt due from the grantor, or lien on the land or certificate. 25 S. W. 731, reversed.

Error from court of civil appeals of second supreme judicial district.

Trespass to try title by M. D. Roberts against A. S. McCamant and others. To a judgment of the court of civil appeals (25 S. W. 731) affirming a judgment for plaintiff, defendants bring error. Reversed.

Chas. I. Evans, for plaintiffs in error.

BROWN, J. M. D. Roberts sued A. S. McCamant, H. O. Tyler, John B. Turner, and W. E. Stewart to recover a tract of land in Jones county, patented to William T. Evans. The petition contained two counts,one in form of a petition in trespass to try title, and the other setting out the facts in

ans.

substance as stated hereafter, and praying a foreclosure of the mortgage set up, and that he be allowed to retain possession of the land until the mortgage debt was paid. Defendants answered by numerous exceptions and special pleas, as well as plea of not guilty. C. P. Woodruff intervened in the suit, claiming to own the interest of Stewart in the land. Upon trial the court gave judgment for the plaintiff for the land, which was affirmed by the court of civil appeals. The facts, as found by the court of civil appeals, are, in substance, that the land was patented to W. T. Evans by virtue of certificate No. 51, issued January, 1842, to W. T. Evans, in lieu of original headright certificate No. 618, issued to said Evans by the board of land commissioners of Harrisburg county June 28, 1838. On the 11th day of June, 1841, W. T. Evans executed and delivered to Charles Chamberlain two instruments, one of which was a power of attorney authorizing and empowering the said Chamberlain to apply for and receive a duplicate certificate in lieu of the original, which was lost, and to locate the said certificate, and procure patent for the land in the name of the said EvThe other instrument recited the making of the power of attorney, and contained the following clauses: "Now, know all men, that I, the said Evans, in consideration of the said services, and in further consideration of two hundred and fifty dollars to me in hand paid by the said Chamberlain (the receipt whereof I do hereby acknowledge), have granted, bargained, sold, and released unto the said Chamberlain all of my interest, right, and claim of, in, and to the said duplicate certificate, and all the land that may be located under the same. To have and to hold the said granted premises unto the said Chamberlain, his heirs and assigns forever: provided, always, nevertheless, that if the said Evans, his executors and administrators, shall, within three months after the issuing of the patent referred to, make and execute a full and perfect legal conveyance of one-third of the said land to the said Chamberlain, his heirs, executors, and administrators, and shall, moreover, repay unto the said Chamberlain, his executors and administrators, within twelve months from the date of these presents, the said sum of two hundred and fifty dollars (with interest thereon if unpaid in said twelve months), then and from thenceforth these presents, and every matter and thing herein contained, shall cease, determine, and be utterly void, anything herein contained to the contrary notwithstanding." The two instruments were executed at the same time, and constituted one transaction. Chamberlain, under the contract, procured the duplicate certificate to be issued, and held possession of it until he died, in 1846. In 1851, administration having granted upon the estate of Chamberlain, the probate court of Harris county ordered the sale of the duplicate certificate, which

sale was made, and one Daws became the purchaser. The sale was confirmed, and Chamberlain's administrator transferred the certificate to Daws, who transferred it to W. R. Baker, who had it located, and procured patent upon it, in the name of W. T. Evans, in 1861, and sold the land to M. D. Roberts. Taxes were paid since 1864 by Baker and his vendee, except one or two years, and, before the institution of the suit, plaintiff had possession of the land. Defendants, or some of them, were in possession, but not claiming the land until the conveyance to them by Evans, May 10, 1883.

Quite a number of objections to the judgment of the court of civil appeals have been urged in this court, but it is unnecessary to consider any of them, except one, which, in our opinion, determines the disposition of the case. The instrument quoted above was by the court, on motion for rehearing in the same case, on former appeal, held to be a mortgage, which we consider manifestly a correct construction of it. McCamant v. Roberts, 80 Tex. 316, 15 S. W. 580, 1054. Chamberlain never acquired any title to the certificate, and the sale by his administrator could not, of course, convey any greater right than Chamberlain had. The right of the plaintiff must therefore depend upon his claim to the mortgage; and, if he did not acquire the mortgage, it is not necessary to discuss the rights of the mortgagee in possession. The district court and court of appeals assumed that the mortgage passed to the purchaser of the certificate at the administrator's sale, and, by the subsequent transfer of the certificate and sale of the land, was vested in the plaintiff. In this state a mortgagor retains the title to the land, and is entitled to possession, unless otherwise stipulated, after breach of the condition as well as before, until foreclosed. Mann v. Falcon, 25 Tex. 276. The power of attorney and the mortgage must be construed as if written in one instrument. So construed, it shows that Chamberlain loaned to Evans $250. Evans empowered Chamberlain to procure the certificate from the commissioner, and to locate it and procure patent in Evans' name for the land. Evans was to convey onethird of the land, and repay the borrowed money. Chamberlain's right to a lien upon the land depended upon his discharge of the personal trust reposed in him. He had no power to sell the certificate for the purpose of repaying the borrowed money. Neither could he have had the certificate sold by a proceeding in court for that purpose, because that would have been repudiating the performance of his part of the contract, which required him to locate it. His right was to hold the certificate as security for his advance, and to locate it for Evans, by which he would have acquired a lien upon the land for his debt. If Evans had prevented the location of the certificate, he could not have compelled its surrender to him without paying the