ABSTRACTS AND ABSTRACTERS.

EPITOME OF CASES.

Sec. 1. Liability of abstracter. In order to maintain an action upon the statutory undertaking of an abstracter, it is necessary to show that the acts of commission and omission alleged as the cause thereof, is a breach of the conditions express or implied of the particular engagement to which it relates. Thomas v. Carson, 46 Neb. 765 (65 N. W. Rep. 899).

Sec. 2. Abstracts as evidence. Texas Statutes, Laws 1891, p. 136, makes abstract books competent evidence "of the truth of the data or memoranda contained therein." Where such abstract books fail to show that the deed was acknowledged, there is no presumption of acknowledgment. Robins v. Ginocchio, Tex. Civ. App. (33 S. W. Rep,

747).

ABUTTING OWNERS.

EPITOME OF CASES.

Sec. 3. Railroads in streets. A mill owner who causes a switch to be constructed from the main line to his mill, although he may have nothing to do with the operation of cars thereon, will be liable to the abutting owner for damages resulting from the construction and operation of such switch. Patton v. Olympia Door & Lum. Co., 15 Wash. St. 210 (46 Pac. Rep. 237). It is held that since the courts of law have decided that a conveyance of lands adjacent to the public street by courses and distances which begin in and run

along the side of said street only are presumed to carry the title to the center of such street, unless the contrary appears by express statement or necessary implication, a court of equity is justified. in awarding a preliminary injunction, restraining a steam-railroad company from laying its tracks in said street between said adjacent lots and the center line of the street, until it shall have made compensation to such owner for his damages. Lewis v. Penn. R. Co., N. J. Eq. (35 Atl. Rep. 932).

Sec. 4. Rights of railroads as against purchaser of abutting property- Laying additional tracks. Where prior to the purchase of land abutting upon a village street a railway company has, with the consent of the owner of such land, laid in the street in front of the premises purchased a single track of its road, and is operating cars thereon, such condition is notice to the purchaser of the right to maintain such track; and his easement in the street as owner of abutting land is, to the extent of such possession and user, affected thereby. But such right will not be affected by an unrecorded deed from his grantor, executed more than six months prior, giving the company permission to lay additional tracks, if, at the time of his purchase, the purchaser acts in good faith and has no knowledge of the existence of such conveyance. The burden of proving bad faith or knowledge is on the company. And where, in a proper action, a purchaser brings himself within the protection of the statute, he is entitled to an order enjoining the company from laying an additional track until the right is acquired by appropriation or other suitable means. Varwig v. Cleveland, C., C. & St. L. R. Co., 54 O. St. 455 (44 N. E. Rep. 92).

Sec. 5. Street railway-Bridge over railroad track. Where a street railway company has acquired the right to construct its lines along a public highway and bridge crossing over a railroad track, the railroad company not being the owner of any land abutting on such highway, cannot dispute the right of such railway company to construct and operate its road over such highway and bridge, it being provided that the railroad company shall be protected from any danger aris

ing from the use of the bridge by the street railway company. Pennsylvania R. Co. v. Greensburg, J. & P. St. Ry. Co., 176 Pa. St. 559 (35 Atl. Rep. 122; 36 L. R. A. 839).

Sec. 6. Street railway-Ordinances and statutes. Where a street railway company has in good faith constructed its tracks, sidings and turnouts upon a street, by virtue of an ordinance under which it claims it had the right to construct in the manner adopted, and such construction was made without objection by the municipal authorities, before an ordinance can be enacted which determines adversely the right of such construction on the part of the company, and provides for a summary removal of its tracks turnouts, or sidings, notice must be given to the company, and an opportunity for a hearing be afforded. Without such notice and opportunity for a hearing before the enactment of the ordinance, the proceedings for its enactment and the ordinance will be adjudged invalid, and set aside. Cape May, D. B. & S. P. R. Co. v. Cape May, 58 N. J. L. 565 (34 Atl. Rep. 397). Under the provisions of the Ohio Rev. Stat., §§ 8437-3443, in the extension of a street railway over streets not occupied by any road, the consent of the owners of more than one-half of the frontage of the lots or lands abutting on each street to be occupied by such extension is requisite. Mt. Auburn Cable Ry. Co. v. Neare, 54 O. St. 153 (42 N. E. Rep. 768). Where it can possibly be done an abutting owner may compel the location of a street railway in the center of the street, in accordance with the ordinance permitting its construction. Kennedy v. Detroit Ry., 108 Mich. 390 (66 N. W. Rep. 495). Where the right to grant street railway companies permission to construct tracks and operate their road in a city is vested by law in the mayor and city council, the construction and operation of such railway without an ordinance conferring the right to do so, is unlawful. If sidings or turnouts are provided for in the ordinance, then only such as are provided for can be constructed, and any extension of those provided for, or connection between them, would be illegal; and if the manner of construction be substantially changed, then the railway company can be dealt with as if no right of construction or operation had ever been granted at all, and the unlawful con

struction can be removed as an obstruction, without judicial intervention, by the summary action of the municipal authorities having the control and regulation of the streets. Cape May, D. B. & S. P. R. Co. v. Cape May, 58 N. J. L. 565 (34 Atl. Rep. 397). The New Jersey statute, Pub. Laws, 1893, p. 241, empowering cities to authorize street railway companies to substitute electric motors for horse power, and an ordinance of the city enacted pursuant to this statute, are held valid. Roebling v. Trenton Pass. R. Co., 58 N. J. L. 666 (34 Atl. Rep. 1090; 33 L. R. A. 129).

Sec. 7. Elevated railroads. One who signs a memorial in favor of the legislative ratification of an ordinance providing for the erection of an elevated railroad, is not thereby estopped to claim damages. Winslow v. Reed, 89 Me. 67 (35 Atl. Rep. 1017). In an action to recover damages occasioned by the erection and operation of an elevated railroad the measure of damages is the diminution of both the renta. value and the fee simple value of the complainant's property occasioned by the construction and operation of the road. Birch v. Lake Roland El. Ry. Co., 83 Md. 362 (34 Atl. Rep. 1013). The continued operation of an elevated railroad will not be enjoined where the damage is merely technical, although such operation be an invasion of the right of an easement for air and light. O'Reilly v. New York El. R. Co., 148 N. Y. 347 (42 N. E. Rep. 1063; 31 L. R. A. 407). In an action for damages, evidence of a reduction of rent is admissible together with a declaration of the tenant made at the time of such reduction on the ground that they constitute a part of the res gestae. Hine v. N. Y. El. R. Co., 149 N. Y. 154 (43 N. E. Rep. 414). In such case it is error to admit the opinions of persons who are unacquainted with the property involved, but who are familiar with property in the vicinity of an elevated railway. Metropolitan West Side El. R. Co. v. Dickinson, 161 Ill. 22 (43 N. E. Rep. 706). For a case dependino upon particular facts and illustrating the right of a lessee to recover and the admissibility of evidence on the question of damages, see Witmark v. Manhattan Ry. Co., 149 N. Y. 393 (44 N. E. Rep. 78).

Sec. 8. Shade trees-Injury by telephone company -Removal by city. The Connecticut Gen. Stat., § 3946, gives the selectmen of a town control over the placing of telephone wires. §§ 1477, 1759 and 3944 prohibit telephone companies, in the location of their wires, from injuring trees upon a highway, without the consent of the adjoining Pub. Acts 1893, ch. 169, gives the selectmen of the town control over the location of electric street railways with power to make all orders necessary to the exercise of such power. Under these Statutes it is held that the selectmen of the town have no power to authorize a telephone company in the relocation of its wires, to injure the trees overhanging the highway, without the consent of the owner. The fact that the removal of branches of trees is necessary to the location of its wires does not empower such telephone company to trim trees without the consent of the owner. Bradley v. Southern N. Eng. Tel. Co., 66 Conn. 559 (34 Atl. Rep. 499; 32 L. R. A. 280). Where the fee in sidewalks and streets is vested in the abutting lot owners, subject to the easement in the city for public use, shade trees upon the margins of these sidewalks are the property of the lot owners; and although it is within the power of the city to remove the trees as obstructions in any case where the public necessity or convenience so requires, yet the city may not capriciously remove them, when it palpably appears that no such necessity exists and that the public convenience will not thereby be subserved; and to prevent the perpetration of such a wrong an injunction. will lie at the instance of the lot owners. City of Atlanta v. Holliday, 96 Ga. 546 (23 S. E. Rep. 509). Shade trees obstructing the use of a sidewalk may be removed by the municipal authorities, as a nuisance. Vanderhurst v. Tholcke, 113 Cal. 147 (45 Pac. Rep. 266; 35 L. R. A. 267). In Alabama it is held that trespass is not the proper action for relief against a telephone company whose servants have wrongfully destroyed or injured shade trees. Southern Bell Teleph. & Tele. Co. v. Francis, 109 Ala. 224 (19 So. Rep. 1; 55 Am. St. Rep. 930; 31 L. R. A. 193).

Sec. 9. Change of grade-Municipal liability-Rule in Wisconsin. In Wisconsin it is held that an abutting