In Carrigan v. Lycoming Fire Ins. Co., Vermont Supreme Court, January, 1881, 10 Ins. L. Jour. 606, the property insured by one item of the policy was a "stock in trade consisting principally of groceries, provisions, drugs and medicines, fancy goods, and such other merchandise as is usually kept in a country store, including wines and liquors." This description was in what is called the written portion of the policy. It was provided in the printed portion that if the assured should keep benzine without written permission in the policy, then the policy should be void. There was evidence that at the

If it

issuing of the policy, the general agent told the insured that the policy covered benzine. Held, that it was a question for the jury whether benzine was a "drug," or was usually kept in a country store. The court said: “If benzine is a drug or is usually kept in a country store, then there was written permission in the policy and it was insured by it, and in that event we do not think any further written permission was necessary to enable the assured to keep it without rendering the policy null. was included in the terms used in the policy, then there was written permission to keep the article as fully as though the policy had read 'on benzine.' Niagara Fire Ins. Co. v. De Graff, 12 Mich. 124, in which case it was left to the jury to say as a question of fact whether the term 'groceries' included wines and liquors. Where the written and printed portions of a policy are inconsistent, the written portion prevails, as it expresses the special agreement and declared intention of the parties at the time of the contract, and the printed parts should be construed in a qualified sense so as to confine them as is said 'to the declared purpose and intention of the parties as expressed in the written clauses.' This principle is too well settled to need the citation of authorities. Webster defines a drug as including any mineral substance used in chemical operations, and the court cannot say that as matter of law benzine is not included in that term. question as well as the one whether benzine is an article usually kept in a country store were proper questions for the jury, and should have been submitted to them if there was any evidence legitimately in the case upon either question. There was evidence that at the time the policy was granted the defendant's agent made statements that benzine was included in the policy, and we think this competent evidence, legitimately tending to show that fact; it was the construction that the company itself put upon the terms used in the policy, and it would be rank injustice for them now to escape a just liability upon any such pretext. If a company insures goods, using in the description of them general terms, and tells the insured that the description includes benzine, they should be estopped in case of loss from claiming that benzine is prohibited, not permitted upon the premises, that he cannot recover its value, and that its being there renders his insurance upon

This

other property void, an apt illustration of the old adage of adding insult to injury." Contra, Lancaster Fire Ins. Co. v. Lenheim, 89 Penn. St. 497; S. C., 33 Am. Rep. 778. See note, 33 Am. Rep. 781; 22 Alb. L. Jour. 204.

tracted so much attention of late (ante, 185, 226, The subject of conditional sales, which has at264, 280), has recently been passed upon by the Alabama Supreme Court, as we learn from the Southern Law Journal. 287, the present New York doctrine as to the title In Holman v. Lock's Adm'r, 51 Ala. opinion without particular consideration. In Sumof bona fide purchasers was declared in a short ner v. Woods, 52 id. 94, the contrary doctrine was

pronounced in an equally brief manner, citing Martin v. Mathiot, 14 S. & R. 214. In Dudley v. Abner, Ala. 572, the same doctrine was pronounced in a carefully-considered opinion, citing Wait v. Green, 36 Grover, J., in Ballard v. Burgett, 40 id. 314, and N. Y. 556, and adopting the explanation of it by also relying on Martin v. Mathiot, supra. But now these latter cases are overruled, and Holman v. Lock's Adm'r is re-established in the Alabama court, in Fairbanks v. Eureka Company. The Pacific Coast Law Journal says the California doctrine is in accord with our present doctrine, citing Kohler v. Hayes, 41 Cal. 455; Cardinell v. Bennett, 52 id. 476; Hegler v. Eddy, 53 id. 597, and remarking, we find the rule of the Pennsylvania decisions obtaining in no other State." Kentucky must be excepted, as we have

seen.

say:

In Susquehanna Mut. Ins. Co. v. Pauhannock Toy Co., the Pennsylvania Supreme Court have recently held that it is prima facie sufficient for an assured to mail notice and proofs of loss, properly directed, to the home office of the insurance company. It is not in contemplation of the parties that such notice should be served upon the company by special messenger. This is a point not elsewhere explicitly decided to our recollection. After alluding to the practice of mailing notice of dishonor, the court "When a policy requires notice of loss to be given forthwith by the assured to the assurer, and is silent as to mode of service, is not the necessity equally great for adopting, as a legal presumption, prima facie, until disproved, that the assured received the notice, from the fact that it was properly addressed and delivered in the post-office? It is common to send by mail the policies, the notices of loss, proofs of loss, and in case of mutual companies, the notices of assessments. In a valuable work, Wood on Ins. 702, it is remarked that in the construction of the policy and its various conditions the evident intent and purpose of the parties is to be looked to, and as in the case with insurance companies they are generally located at great distance from the insured, it cannot reasonably be supposed that they expected or intended that the assured should, in person or by agent, deliver the proofs of loss, but that he should execute them with due diligence, and with equal diligence send them to the company by mail, which is now

the principal medium through which the commercial business of the world is transacted. A contrary rule gives undue force to arbitrary conditions, and jeopardizes too seriously the interests of the assured. This view seems correct with reference to notice of loss required to be sent forthwith. With respect to proofs of loss, where time is allowed for delivery, there is not the same necessity, and possibly not the same intent of the parties. Considering the widely extended and peculiar business of insurance, the evident general understanding of the parties as to service of notices, as well as the well-known❘ usage where a notice is required to be sent immediately to a company not in the same town where the insured lives, but located a considerable distance therefrom, the sending by mail is prima facie evidence of service. It may not be conclusive, as in the case of commercial paper, but the reason is quite as strong that it should be prima facie sufficient. The usage and the rule of evidence arise from the intent and purpose of the contracting parties, as well as their convenience or necessity." Similar doctrine has been held as to notice of dissolution of partnership to the public and actual dealers. Austin v. Holland, 69 N. Y. 571; S. C., 25 Am. Rep. 246, and note, 249.

LEASE OF REAL AND PERSONAL PROPERTY-DESTRUCTION BY FIREAPPORTIONMENT INSURANCE

FOR BENEFIT OF LANDLORD.

THE HE case of Whitaker v. Hawley, 25 Kans. 674, is a very interesting one. It holds that where real and personal property are leased by a single instrument for an amount in gross, and the personalty is a substantial part of the property leased, its destruction without the fault of the lessee, by fire or otherwise, entitles the lessee to an apportionment of the rent; and where the lease binds the lessee to insure the personalty in a specified amount for the benefit of the lessor, and he fulfills this covenant, he is relieved by the destruction of all the leased property by fire from the subsequent payment of any rent. The court also doubt, after a careful and learned review, upon principle and authority, whether the common-law doctrine that the lessee is bound for the rent in spite of the destruction of the buildings by fire, is in force in Kansas, but put the decision upon the other grounds. It may be profitable to review the adjudications upon both the decided points.

joyment becomes impossible by the destruction of the building, there remains nothing upon which the demise can operate." This is the doctrine of Winton v. Cornish, 5 Ohio, 477, a lease of a store-room and cellar. Here the court asked: "Can the lessees of cellars, holding by such leases as this, cover themselves in their cellars and prevent the entry of their landlords to reconstruct their houses? Can the lessees of basement stories of public buildings, with leases such as this, when the edifices are destroyed by fire, roof the basement story, and prevent the agents of the public from entering to reconstruct the edifice?" This case was followed in Kerr v. Merchants' Exchange Co., 3 Edw. 315, a lease of a room in the merchants' exchange. The same was held in Graves v. Berdan, 26 N. Y. 498, a lease of upper rooms, two judges dissenting, and in Stockwell v. Hunter, 11 Metc. 448, a lease of a cellar, citing the Kerr and Winton cases.

The cases of leases of real and personal property are very rare. In Bussman v. Ganster, 72 Penn. St. 285, it is said, obiter: "Even in the case of a lease of chattels with a house, where the chattels are all destroyed without any fault of the tenant, the better opinion seems to be that it affords no ground for defense pro tanto." In Fay v. Holloran, 35 Barb. 295, it is said: "Rent cannot be reserved out of chattels personal. If such chattels are demised with land, at an entire rent, the rent issues out of the land only." So, in respect to a similar lease, it is held in Jones v. Smith, 14 Ohio, 606, that the rent cannot be apportioned between lessor and assignee; but this was where the assignment did not mention the personalty. "If the plaintiff recover, it is because the rent reserved is in respect to the land, and not increased by the personalty." To the same effect are Sutliffe v. Atwood, 15 Ohio St. 185; Farewell v. Dickenson, 6 B. & C. 251.

On this point the court in the principal case cite Le Tavemer's case, 1 Dyer, 15, where the lease being of sheep and land, and the sheep died, the rent was apportioned, and conclude: "Indeed, there would seem to be no just reason for denying apportionment, even though the common-law doctrine in respect to leases of real estate be conceded. Mingling real and personal property in a single lease ought not to prevent the accepted rules concerning the hiring of each to be applied whenever application is possible."

2. As to the insurance. In Leeds v. Chatham, 1 Sim. 146, where the tenant had covenanted to repair, it was held that a tenant has no equity to compel his landlord to apply insurance moneys received

mill and one room in an adjoining factory. Both being destroyed by fire, it was held that the tenant was discharged from rent for the room, but not for the saw-mill. The court said: "This exception applies only to cases where the demise is of part of an entire building, as a cellar or upper room; and it is founded upon the idea that in such cases it is not the intention of the lease to grant any interest in the land, save for the single purpose of the enjoyment of the apartment devised, and when that en

in rebuilding, or to restrain the collection of rent until the same are so applied. The court said: "The plaintiff might have provided in the lease for a suspension of the rent in the case of accident by fire; but not having done so, a court of equity cannot supply that provision which he has omitted to make for himself." The court laid stress on the fact that the landlord's insurance was designed to protect him against his covenant in the lease to rebuild certain portions in case of fire, and although

there was a surplus, "upon what principle can it be that the plaintiff's situation is to be changed by that precaution on the part of the defendant, with which the plaintiff had nothing whatever to do?"

This decision was followed in Lofft v. Dennis, 1 El. & El. 474, an action for use and occupation. Lord Campbell, C. J., said: "I cannot see why the fact of the landlord having received the insurance money entitles the tenant to be relieved from his liability for rent any more than if the landlord had won that amount in a lottery; there is no privity in either case between the defendant and the party from whom the money comes."

These two cases are cited with approval arguendo, in Sheets v. Selden, 7 Wall. 416, 424.

The same doctrine was declared in Bussman v. Ganster, 72 Penn. St. 285, where the lease included "counters, shelving, and other fixtures." So in Magaw v. Lambert, 3 Penn. St. 444, it was thus held, the court saying: "It was not the rent which was insured, but the premises out of which it issued; and the tenant could not say that the company had paid it for him.”

In Kingsbury v. Westfall, 61 N. Y. 356, the same doctrine was extended to the lessee's surety. The court said: "The plaintiff was under no obligation to the lessees of the premises, or the defendant, to procure an insurance on the buildings against loss by fire. It was an act of prudence on his part to appropriate from his own means, derived from that property or other sources, as should be necessary to save himself from the ultimate loss of his buildings by that cause. I have not been able to discover any claim, legal or equitable, in favor of the lessees or the defendant upon that fund, or any part of it, to indemnify them against loss. It was not procured by the means or for the benefit of either of them; and notwithstanding it was thought by the chancellor, in Brown v. Quilter, Amb. 621, that the fact that the landlord received the insurance money for the house which was burned, and did not rebuild it, raised an equity in favor of the tenant; the suit was settled, no judgment was rendered in it, or principle settled justifying its being regarded as authority. If the plaintiff had the day before the fire sold the premises for their full value, reserving to himself the rent to accrue, and in that way, instead of by insurance, escaped loss, it clearly would be no ground for diminishing the rent reserved for the residue of the term. No good reason can be assigned why an abatement of the rent should not be allowed as well in the one case as in the other." In this case there was no covenant to keep in repair.

In Salmon v. Matthews, 8 M. & W. 827, it was thought that the rent might be apportioned, but the case was more strongly put on another ground. In Newman v. Anderton, 5 B. & P. 224, it was held that the rent was distrainable. So in Mickle v. Miles, 31 Penn. St. 20. But in Newton v. Wilson, 3 Hen. & M. 470, rent from chattels, parcel of the demise, was held apportionable. (In this case the lease was of land and a mill and a black slave miller.) The court referring to Gilbert's doubt of the apportionabil

ity in case of a lease of land and sheep (Rents, 187), regard the question in the light of possibility of computation only. They say: "If the tenant had been evicted of the 200 acres of land adjoining the mill, but not of the mill itself, or vice versa, the rent should have been apportioned according to the real value of that which remains in his hands. Why might not the jury, upon similar principles, have apportioned the loss which the tenant sustained by the departure of the miller?" etc.

On this point the court distinguished the principal case from the cases above, by reason of the covenant to insure for the landlord's benefit. They say: "It was never doubted that by contract this obligation might be limited or removed. By the lease, then, as a whole, the tenant was to pay rent for the use of the property, and in addition, purchase a guaranty to the landlord that in case such use should fail by reason of fire, he should receive the value of the property destroyed. When the latter comes into force, is it not plain that the former ceases? Was not the one intended as a substitute for the other? Suppose, instead of contracting to procure insurance, the tenant had contracted himself to insure the property, so that in case of destruction by fire he was bound to pay the value; would it for a moment be doubted that the rent ceased when the obligation to pay the value arose ? * * If the contract to pay to insure is so manifestly inconsistent with the obligation to pay rent that the latter gives way when the former becomes operative, the same principle applies when the contract is to furnish insurance. While the contrast is not so glar

*

ing, it is still obvious that the insurance is to take the place of the rent. The insurance is a provision to compensate the landlord when the rent fails, and not a provision to double the rent."

In regard to the obvious objection that the insurance was only on the personalty, the court say: 'The contract concerning insurance was a single provision; it shows that the parties contemplated the possibility of fire, and made their stipulations accordingly; and whether that insurance was for a definite amount on all the property, or the full value of either the real or the personal, is immaterial; it is the contract provision for the possibility of fire." The defect in this reasoning is this: it is the land that is rented, and the land cannot be insured, and remains to the tenant after the fire, and he may use it as he pleases. The doctrine of apportionment we assent to; the other is more doubtful.

They were introduced in England in 1859 and in operation in 1861. (2)

Tramways for private use, running upon wooden rails, had been operated in the coal mines of England in the latter part of the seventeenth century. In 1767 rails of pig iron were substituted for timber. Subsequent improvements led to the adoption of cast iron tram-plates with upright ledges, and carriages drawn over them by single horses were employed as public conveyances, before the introduction of steam as a motive power. (3)

The use of the streets of cities was obtained, as is seen, many years later.

ORGANIZATION.

Street railroad companies are organized under general of special acts of incorporation, according as the laws of the State provide for general or special legislation. In New York, Illinois, Ohio, Michigan and Massachusetts, general acts of incorporation exist (4) and under them street railroad companies have been organized in those States. (5) In some of the other States also general statutes provide for the organization of street railroad companies. (6)

These statutes generally require that the company shall be composed of not less than a certain number, by whom, or some of whom, the articles of association shall be signed; that the articles of association shall specify the name of the corporation, length of road, proposed route, the amount of capitai stock, a certificate of which facts duly acknowledged and certified shall be filed in the office of the secretary of State, or otherwise officially recorded. The articles of incorporation are also, in some States, required to contain the names of the stockholders, their respective residences and the number of shares held by each, the term of the existence of the corporation and the names of those who shall be directors for the first year, (7) that the directors or a majority of them shall be residents of the cities and towns in which the railway is located, and that a map of the route be properly recorded. (8) COMPENSATION.

Before the passage of statutes upon the subject, it was generally held that lot owners on streets along which the road was constructed were not entitled to compensation. While the final conclusions of the court with reference to steam roads were that propertyholders were entitled to compensation, it was held that there being a decided difference between roads operated by animal and steam power in their effect upon the land of adjacent proprietors, the former should not be compelled to pay for the use of the streets. *

LOCATION.

While the authority for the construction of street railroads is derived from the Legislature of the State

(2) American Encyclopædia, vol. 13.

(3) "Redfield on Railways," vol. 1, ch. 1; American Encyclopædia, vol. 13. The Stockton & Darlington railroad was one of the first in use, in 1825.

(4) New York, 1848 and 1850; Illinois, 1849; Ohio, 1854; Michigan, 1855, and Massachusetts, 1872.

(5) New York, Laws 1854, Statutes at Large, vol. 7, 906. Laws 1876, ch. 214; Illinois, Laws 1859. R. S. Illinois, 1874; Cothran's Annotated Code, ch. 66 (1880); Ohio, Sayler's Statutes, ch. 83 (1861); R. S. Ohio, 1880. §§ 2501-5 and 3437-3443; Michigan Compiled Laws, 1871, p. 830; Laws 1867, p. 46; Massachusetts, Sup. to Gen. Stat., vol. 1, 1860-72; Acts and Resolves of Massachusetts, 1871 to 1874, ch. 29.

(6) Alabama Code, 1876, art. 4; California Civil Code, 1880, titles 3 and 4; Indiana, Acts 1861, p. 75; Davis' Sup., vol. 3, ch. 279; acts 1865, p. 63; Acts 1879, p. 175; Nebraska, Laws 1877, p. 135; Pennsylvania, Laws 1878, p. 118; Laws 1879, p. 9, cities 2d and 3d class.

(7) Michigan Compiled Laws, 1871, p. 830.

(8) Massachusetts, Acts and Resolves, 1874, ch. 29.

* American Law Review, June, 1881.

under which they are incorporated, the location of the route is by statutory provisions, subject to municipal control. The power conferred by statute upon cities and towns to locate the route of street railroads is generally centered in the common council, board of supervisors, or other corporate municipal authority. This power is in most instances conditioned upon obtaining the consent of the property-holders along the proposed route, representing a majority in interest of such owners, or upon the payment of compensation therefor.

In Alabama. Such corporation shall have power to construct, maintain and use a street railroad upon the streets and upon the line and between the termini named in the certificate, upon such terms and in such manner as may be authorized by an ordinance or other lawful act of the proper corporate authorities of the city or town in which it is proposed to build and use the street railroad." (9)

Arkansas. Mayor and council may contract with individuals for the construction of street railroads. Laws 1874, p. 9. California.

"Authority to lay railroad tracks through the streets and public highways of any incorporated city or town may be obtained for a term of years, not exceeding fifty, from the trustees, council or other body to whom is intrusted the government of the city or town, under such restrictions and limitations, and upon such terms and payment of licensetax as the city or town authority may provide." (10)

Illinois. "No such company shall have the right to locate or construct its road upon or along any street or over any public ground in any incorporated city, town or village, without the consent of the corporate authorities of such town or village, nor upon or along any road or highway, or upon any public ground, without any incorporated city, town or village, except upon the consent of the county board. Such consent may be granted for any period, not longer than twenty years, on the petition of the company, upon such terms and conditions, not inconsistent with the provisions of this act, as such corporate authorities or county board, as the case may be, shall deem for the best interests of the public; provided no such consent shall be granted unless ten days' public notice of the time and place of presenting such petition shall have been first given by publication in some newspaper published in the city or county where such road is to be constructed, and accepted upon the condition that the company will pay all damages to owners of property abutting upon the streets, alley, road, highway or public ground upon or over which such road is to be constructed, which they may sustain by reason of the location or construction of the road; the same to be ascertained and paid in the manner provided by law for the exercise of the right of eminent domain." (11) Indiana. Act 1861, p. 75. "Nothing in this act contained shall be so construed as to take away from the common council of incorporated cities the exclusive powers now exercised over the streets, highways and bridges within the corporate limits of such cities; all street railways which may be organized under the provisions of this act shall first obtain the consent of such common council to the location, survey and construction of any street railroad through or across the public street of any city before the construction of the same may be commenced."

Iowa."They (cities and incorporated towns) shall also have the power to authorize or forbid the location of tracks for railways and street railways in all streets, alleys and public places, but no railway track can thus be located and laid down until after the injury to

(9) Alabama Code, 1876, article 4, § 1921. (10) Civil Code California, title 4, § 497.

(11) Illinois R. S., p. 784; Cothran's Annotated Code (1880), ch, 66.

property abutting upon the street, alley or public place upon which such railway track is proposed to be located and laid down, has been ascertained and compensated in the manner provided for taking property for works of internal improvement in chapter 4 of title 10 of the Code of 1873.” (12)

Massachusetts. "The board of aldermen of any city or the selectmen of any town may, upon the petition of such directors or a majority thereof, locate the tracks of such proposed corporation within their respective jurisdictions, provided that before proceeding to locate such tracks they shall give notice to all parties interested, by publication in such newspapers or otherwise as they may determine, at least fourteen days before their meeting, of the time and place at which they will consider such location. After the meeting of all parties interested, they shall pass an order refusing such location or granting the same or any portion thereof, under such restrictions as they may deem the interests of the public may require; and the location thus granted shall be deemed and taken to be the true location of the tracks of the corporation, if its acceptance thereof in writing is filed with said mayor and aldermen or selectmen within thirty days after receiving notice thereof." (13)

Michigan. —“Any street railroad corporation organized under the provisions of this act may, with the consent af the corporate authorities of any city or village governed in and by an ordinance or ordinances duly enacted for that purpose, and under such rules, regulations and conditions as in and by such ordinance or ordinances shall be prescribed, construct, use, maintain and own a street railway for the transportation of passengers in and upon the lines of such streets and ways in said city or village as shall be designated and granted from time to time for that purpose in an ordinance or ordinances granting such consent; and no such railway company shall construct any railway in the streets of any city or village until the company shall have accepted in writing the terms and conditions upon which they are permitted to use said streets; and any such company may extend, construct, use or maintain their road in and along tho streets or highways of any township adjacent to said city or village, upon such terms and conditions as may be agreed upon by the company and the township board of the township, which agreement and the acceptance by the company of the terms thereof shall be recorded by the township clerk in the records of his township." (14)

Missouri.-No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first obtaining the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad, and the franchise so granted shall not be transferred without similar assent first obtained. (15) Nebraska.-Any number of persons may be associated under the general laws of this State providing for the creation of corporations for the purpose of constructing and operating a street railroad within any of the streets of this State upon procuring the consent of a majority of the electors of any such city as hereinafter provided.

The question of the consent of a majority of the electors to be determined by submitting it to the electors of such city at an election for that purpose, of which election it shall be the duty of the mayor to give at least ten days' notice by publishing the notice in some newspaper, which notice shall state the termini of such proposed railroad, and the street or streets

(12) Iowa, McClain's Annotated Statutes, 1880, § 464. (13) Massachusetts Acts and Resolves, 1874, ch. 29. (14) Michigan Compiled Laws, 1871, § 13 (2514), p. 840. (15) Missouri Const., 1875, art. 12, § 20.

through which it is proposed to construct the same. (16.)

New Jersey. -Consent of numerical majority of property owners along proposed route. Act 1870. The Paterson & Passaic Horse R. R. Co. v. The Mayor & Aldermen of the City of Paterson, 24 N. J. Eq. 158 (1873).

Ohio. Application must be made in writing to council, which prescribes by ordinance the conditions upon which the road shall be constructed.

"No ordinance for such purpose shall be passed until public notice of the application therefor has been given by the clerk of the corporation in one or more of the daily papers, if there be such, and if not, then in one or more of the weekly papers published in corporation, for the period of at least three consecutive weeks; and no grant shall be made except to the corporation, individual or individuals that will agree to carry passengers upon such proposed railroad at the lowest rate of fare, and shall have previously obtained the written consent of a majority of the property holders on the line of the proposed street railroad represented by the feet front of lots abutting on the street along which such road is proposed to be constructed." (17)

West Virginia. No law shall be passed granting the right to construct street railroad within any city, town, etc., without consent of the local authorities having control of the highway, etc. (18)

Passengers standing on platform.-Passengers standing on the platform of street cars are guilty of negligence when there is room inside. (20) But the presumption of negligence is rebutted on showing that the car is full and no room inside, and that the conductor received the fare from the passenger, (21) and standing on the front platform, even when there is room inside, does not constitute per se negligence, when the injury is incurred by the fault of the company's servant. (22) So where one was compelled to ride on the platform of a car by a conductor, being ordered to give up his seat inside, the company was held liable for an injury incurred by careless driving, (23) or was induced to ride there by the invitation of the conductor without pay. (24)

But standing in an unsafe position upon the platform of a car after an opportunity is afforded the passenger of exchanging it for a safer one is contributory negligence, (25) though it is not negligence per se to omit to take hold of the railing to prevent being thrown off. (26)

(16) Nebraska Laws, 1877, p. 135, §§ 1, 4.
(17) Ohio R. S., 1880, §§ 2501-2505 and 3437-3442.
(18) West Virginia Const., art. 11, § 5.
(19) Wisconsin Statutes, 1871, §§ 93-96.

(20) Clark v. Eighth Avenue R. Co., 32 Barb. 657: S. C., 36 N. Y. 135: Solomon v. Central Park R. Co., 1 Sweeney, 298; Maguire v. Middlesex R. Co., 115 Mass. 239 (1874); Ginna v. Second Avenue, 67 N. Y. 596 (1876).

(21) Clark v. Eighth Avenue R. Co., 36 N. Y. 135, and cases supra. Also, Augusta, etc., R. Co. v. Renz, 55 Ga. 126; Meesel v. Lynn, etc., R. Co., 8 Allen, 234; Huelsenhamp v. Citizens' R. Co., 37 Mo. 537; S. C., 34 id. 45.

(22) Burns v. Bellefontaine R. Co., 50 Mo. 139; Maguire v. Middlesex R. Co., supra.

(23) Sheridan v. Brooklyn, etc., R. Co., 36 N. Y. 39. (24) Wilton v. Middlesex R. Co., 107 Mass. 108; contra, Baltimore, etc., R. Co. v. Wilkinson, 30 Md. 224.

(25) Ward v. Central Park, etc., R. Co. 11 Abb. Pr. 411 (N. C.); S. C., 42 How. Pr. 289.

(26) Ginna v. Second Avenue, supra.