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New State House, 19 R. I. 382 (33 Atl. Rep. 523). Where in an action to foreclose a mortgage a railroad company made a party thereto is adjudged to have no estate or interest in the lands, a purchaser at the foreclosure sale takes the improvements made by such company thereon and is entitled to an allowance for their value in a subsequent proceeding by it to condemn the land. Briggs v. Chicago, K. & W. R. Co., 56 Kan. 526 (43 Pac. Rep. 1131). In those cases where special benefits may be considered, the question is whether or not the special facilities afforded by the improvements have advanced the market value of the property beyond the mere general appreciation of property in the neighborhood. The general increase in value from the development of a neighborhood by improvements is clearly distinguished from real and special benefits to particular owners. The former are to be

excluded from the calculation of benefits and the latter are to be included. Aswell v. City of Scranton, 175 Pa. St. 173 (34 Atl. Rep. 656; 52 Am. St. Rep. 841).

Sec. 248. Abutting owner's rights as against a corporate easement. Where a road company acquired a right of way over the land of another and in constructing its road discovered a valuable spring, it was held not to have acquired any right to the water, nor can it prevent the landowner from using the same. Upper Ten Mile Plank-Road Co. v. Braden, 172 Pa. St. 460 (33 Atl. Rep. 562; 51 Am. St. Rep. 759). The court say: "The true rule is that the easement qualifies, not the title to the spring, but the manner of its use. The corporation had a roadway at the side of which the defendant has a spring. Each must so use his own as to inflict no unnecessary injury on the other, but neither can forcibly exclude the other from what is his own. It was neither against law nor against equity for the defendant to seek access to his spring, and, although this may not have been done in a peaceable spirit, it was nevertheless in the exercise of a clear legal right. The corporation may drain its road, but it cannot, in the exercise of the right of drainage, take forcible possession of this spring, exclude the owner from access to it, and transport it for its own use, or to the use of any other person, off the owner's land. The right of drainage does not

include the right of appropriation, nor does it justify the forcible exclusion of the owner from access to a spring of water that comes to the surface on his own land, outside the beaten track of the roadway." In Pennsylvania it is held that where land is duly condemned for a particular public use, the owner has no right to enter upon and use any portion thereof without the consent of the condemning party, even though such use does not interfere with the public use for which the land is appropriated. City of Philadelphia v. Ward, 174 Pa. St. 45 (34 Atl. Rep. 458).

Sec. 249. Condemnation for natural gas pipe line -Elements of damages. In proceedings by a natural gas pipe line company to condemn land for the purpose of laying its pipes, it is error for the court to instruct the jury that" in cases of this kind it is presumed that the company will put in and maintain a pipe line in a reasonably prudent and careful manner, but natural gas is a highly inflammable substance and liable to explode. So, in this case, in considering the damages to be assessed, you may take into consideration the probability of injuries from fire or explosions which may result from the ordinary, prudent, and careful operation of the pipe line. All damages to which defendants are legally entitled must be recovered in proceedings of this character in one action, for successive actions cannot be maintained. In considering the question as to the amount the defendants should recover, you should include, not only damages for the injuries to the land resulting from putting in a pipe line, but also all damages which will probably result from the careful and reasonably prudent maintenance of the same in the future." This decision is put upon the ground that courts do not judiciously know that there is any "probability of injuries from fire or explosions which may result from the ordinary, prudent, and careful operation of the pipe lines." Indiana Nat. Gas & Oil Co. v. Jones, 14 Ind. App. 55 (42 N. E. Rep. 487). The court say: "We do not dispute the correctness of the proposition that in an action such as this is the plaintiff must recover all damages, present and prospective, to which he will ever be entitled by reason of the careful and prudent operation of the line. He cannot split up his remedies. Such is the rule

in railroad condemnation cases. Rehman v. Railroad Co., 8 Ind. App. 200 (35 N. E. Rep. 292). And the same rule applies in the class of cases to which the present one belongs. The jury therefore had the right to consider any elements of future injury to the land by reason of the appropriation. Such elements of future injury, however, can only be considered for the purpose of determining to what extent, if any, they will deteriorate the value of the land at the time of the condemnation. To whatever extent the exposure will diminish the value of the premises, to that extent, and that only, can the question of future loss, other than that which can be determined by a definite estimate, such as additional fencing, ditching, etc., be considered at all; and no compensation can be allowed for probable future losses by fire and explosion arising from the prudent operation of the line, as independent items of damages, disconnected from the question of the diminished value of the land affected by the proceedings."

EQUITY.

Sec. 250.

EPITOME OF CASES.

Subrogation- General principles. One who is under no obligation to pay a lien debt who merely lends money to the debtor to pay it, in the absence of an agreement, cannot be subrogated to the lien. Good v. Golden, 73 Miss. 91 (19 So. Rep. 100; 55 Am. St. Rep. 486). Where a person is in no manner bound, and on his own motion, in the absence of contract or expectation that he may be subrogated in the place of a creditor, pays the debt, he will be regarded as an intermeddler, and not entitled to subrogation. Traders Bank v. Myers, 3 Kan. App. 636 (44 Pac. Rep. 292). Citing, Shinn v. Budd, 14 N. J. Eq. 234; Coe v. Railway Co., 31 N. J. Eq. 136; Association v. Thompson, 32 N. J. Eq. 133; Kitchell v. Mudgett, 37 Mich. 81; Gilbert v. Gilbert, 39 Ia. 657; Wormer v. Agricultural Work, 62 Ia. 699 (14 N.W. Rep. 331). A party cannot be subrogated when he pays an

Isensee v. Austin, One who furnishes

incumbrance which he has agreed to pay. 15 Wash. St. 352 (46 Pac. Rep. 394). money with which to discharge a vendor's lien is entitled to be subrogated to the rights of the holder thereof. Pioneer Sav. & L. Co. v. Paschall, 12 Tex. Civ. App. 613 (34 S. W. Rep. 1001). A decree of subrogation will not be rendered in favor of one who may appear to be entitled to it where he does not ask for it in his pleadings. Bradshaw v. Van Valkenburg, 97 Tenn. 316 (37 S. W. Rep. 88).

Sec. 251. Subrogation—Insurer of titles. Where one who insures title executes a policy of insurance of title guaranteeing a mortgagee that his mortgage is a first lien on the premises and agreeing to indemnify him against prior liens, is compelled to pay off liens which are adjudged prior to the mortgage, he is entitled to be subrogated to the mortgagee's rights in securities which he holds to protect his interest as mortgagee against such prior liens. St. Paul Title Ins. & T. Co. v. Johnson, 64 Minn. 492 (67 N. W. Rep. 543).

Sec. 252. Subrogation-Holder of invalid securities. One who, through a mistake of law, loans money to heirs of an estate to discharge a valid mortgage thereon, taking their note and mortgage for the same, which is invalid as to part of them, cannot be subrogated to the lien discharged so long as it appears that the new obligation is a valid lien upon the property of one who is not shown to be insolvent. Kelsey v. Welch, 8 S. Dak. 255 (66 N. W. Rep. 390). The holder of a mortgage which on account of her minority does not create any lien upon the wife's right of homestead, cannot, on account of the fact that the money procurred by such mortgage was used to discharge a previous mortgage which was given for money with which to discharge another mortgage given upon the land by the husband before the marriage, claim the right to be subrogated to the lien of the first mortgage where there was no agreement for any subrogation, but each transaction was separate and distinct, and each was made simply to obtain the loan of money, without any agreement as to how it should be applied, or for any substitution or subrogation

because of its use. Bradshaw v. Van Valkenburg, 97 Tenn. 316 (37 S. W. Rep. 88). In North Carolina it is held that where a mortgage given to secure a loan of funds with which to discharge a lien on the separate estate of a married woman is void, the lender is not entitled to be subrogated to the lien. Carolina Interstate Bldg. & L. Ass'n v. Black, 119 N. C. 323 (25 S. E. Rep. 975).

N. J. Eq.

Where a

Sec. 253. Subrogation-Particular cases. second mortgagee assists his mortgagor in procuring a loan from a third person sufficient to pay the first mortgage and the greater part of the second, it being mutually understood that the mortgage given to the party so furnishing the funds is to be a first lien and the second mortgagee is to have a new mortgage for the balance due him, which agreement is carried out and the old mortgages are cancelled of record, such third party and the second mortgagee are entitled to be subrogated to the liens of the original mortgages which have been canceled, upon the discovery of a third mortgage existing at the time of the transaction but unknown to all the parties. Seeley v. Bacon, (34 Atl. Rep. 139). A second mortgagee, making payments on the first mortgage, will, under ordinary circumstances, be subrogated under the first mortgage to the extent of such payments, the residue of the claim of the first mortgagee having priority to the lien acquired by such subrogation. New Jersey B. L. & Invest Co. v. Cumberland L. & Improvement Co., 53 N. J. Eq. 644 (33 Atl. Rep. 964). Where a party purchases lands that are incumbered by mortgage, and, after he takes possession thereof, he pays to the mortgagee part of the money secured by the mortgage, and other parties are interested in the land, upon a foreclosure of the mortgage for the unpaid balance due the purchaser who has paid part of the money due under the mortgage is entitled to be subrogated to the rights of the mortgagee so far as the amount he has paid to protect the land against the lien of the mortgage. Fuller v. Irvin, 1 Kan. App. 248 (42 Pac. Rep. 1094). One whose money is loaned by an agent on a deed of trust which is invalid because not signed by the grantor's wife, and the proceeds of which are in large part received by the agent in discharge of a valid

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