across or along them without the consent of the municipal authorities. It is competent for the legislature to authorize the construction of a street railway, operated by horse-power, as distinguished from one operated by steam, in the public streets, without providing any compensation to abutting property holders along the street through which such road may be constructed. This is upon the theory that such roads are not additional burdens upon the soil of the street, but are legitimate uses of the highway, in furtherance of the purposes for which they were originally dedicated. State ex rel. Jacksonville v. Jacksonville St. R. Co., 29 Fla. 590 (10 So. Rep. 590). The trolley system of propelling street cars, as at present used for the transportation of passengers through the streets of a city, is within the public easement over urban highways. The owners of fee simple of land in a street may prosecute a certiorari to test the legality of a municipal ordinance purporting to authorize a railway company to place rails, poles, and wires on their land in the street. Kennelly v. Mayor of Newark, (30 Atl. Rep. 531).

N. J.

Sec. 17. Shade Trees. An owner of land adjoining a public highway, whose title entends to the center of the road, who has cultivated shade trees, planted partly on his own land and partly in the line of the highway, within the bounds of his deed, has a property interest in such trees, and the right of their enjoyment, subject only to the convenience of public travel; and this right cannot be taken away even by legisla tive anthority without compensation be made. Dailey v. State, 'O. St. (37 N. E. Rep. 710; 24 L. R. A. 724). Where the public acquiesces in an abutting owner's occupancy of an unused portion of the highway, with shade trees for number of years and such portion of the highway is not needed for travel nor for its proper improvement, a court of equity will restrain the authorities from removing such shade trees. Crismon v. Deck, 84 Ia. 344 (51 N. W. Rep. 55). It is held by a divided court that where a city is authorized to repair the streets in the manner and to the extent its commissioners may deem best, an abutting owner cannot recover damages for the destruction of shade trees even though such trees did not obstruct the sidewalk or street and the public convenience did

not require their destruction and it was not necessary to the proper improvement of the street. Tate v. City of Greensborough et al., 114 N. C. 392 (19 S. E. Rep. 767). An able and exhaustive dissenting opinion collates and cites the authorities on the other side of the question.

Sec. 18. Elevated railroads. Where an abutting owner, having only an easement in the street, consents in writing to the occupation of the street by an elevated railroad he waives his right to object to the construction of the road, or to claim damages. White v. M. R. Co. et al., 139 N. Y. 19 (34 N. E. Rep. 887). Damages may be recovered for a diminution in the rental value of property occasioned by the construction of an elevated railroad in a street, although as to the owner the usuable value of the property is undiminished. Woolsey et al. v. N. Y. E. R. R. Co. et al., 134 N. Y. 323 (30 N. E. Rep. 387; 31 N. E. Rep. 891). The measure of damages is the lessened value of the landowner's interest, caused by the continued maintenance and operation of the road. Sperb v. M. E. R. Co. et al., 137 N. Y. 155 (32 N. E. Rep. 1050; 20 L. R. A. 752). Benefits may be deducted from consequential damages. Bookman v. N.Y. E. R. R. Co. et al., 137 N. Y. 302 (33 N. E. Rep. 333); Sutro et al. v. Manhattan R. Co. et al., 137 N. Y. 592 (33 N. E. Rep. 334); Sperb v. M. E. R. Co. et al., 137 N. Y. 596 (33 N. E. Rep. 319); Bischoff v.N. Y. E. R. R. Co. et al., 138 N. Y. 257 (33 N. E. Rep. 1073); Saxton v. N. Y. E. R. R. Co., 139 N. Y. 320 (34 N. E. Rep. 728). The question of noise may be considered in ascertaining past damages. Bischoff v. N. Y. E. R. R. Co. et al., 38 N. Y. 257 (33 N. E. Rep. 1073). Particular cases discussing what may be considered in estimating damages. Bookman v. N. Y. E. R. R. Co. et al., 137 N. Y. 302 (33 N. E. Rep. 333); Bischoff v. N. Y. E.R. R. Co. et al., 138 N. Y. 257 (33 N. E. Rep. 1073). Expert evidence as to value of property before and after taking for railroad purposes is admissible but not to show the amount of damages or the value of the land if the road had not been built. Sixth Avenue R. R. Co. v. M. E. R. Co., 138 N. Y. 548 (34 N. E. Rep. 400); Hunter v. M. R. Co. et al., 141 N. Y. 281 (36 N. E. Rep. 400). In case of the death of an owner pending

an action for damages for permanent injury to the land, the right of action passes to the party taking the legal title to the land. Mitchell et al. v. M. E. R. Co. et al., 134 N. Y. 11 (31 N. E. Rep. 260). Construction of particular agreements. Matter of Metropolitan E. R. Co., 136 N. Y. 500 (32 N. E. Rep. 1043). N. Y. Code Civ. Proc. § 1015 authorizing a court to direct a reference in certain cases held not to apply in an action to enjoin the operation of an elevated railroad. Doyle v. M. E. R. Co. et al., 136 N. Y. 505 (32 N. E. Rep. 1008). It is held that an elevated railway is not a street railway within the meaning of § 464 of the Iowa Code. Freiday v. Sioux City Rapid Transit Co.,

Rep. 656).

Ia.

(60 N. W.

ACKNOWLEDGMENTS.

EPITOME OF CASES.

Sec. 19. Before whom aknowledgments may be A notary public is not disqualified to take an acknowledgment to a mortgage by reason of the fact that he acted as agent for the mortgagor in obtaining the money. Penn. v. Garvin, 56 Ark. 511 (20 S. W. R. 410). Citing, Kutch v. Holly, 77 Tex 220 (14 S. W. Rep. 32); Sawyer v. Cox, 63 Ill. 130. Under § 10, c. 99, Rev. St. Ill. 1891, of the Notaries Public Act, it is no objection to a deed that the acknowledgment was taken in one county by a notary of another county. Guertin v. Mombleau, 144 Ill. 32 (33 N. E. Rep. 49). An acknowledgment cannot be taken by a party to the deed whether trustee or otherwise. Rothschild et al. v. Dougher et al., 85 Tex. 332 (20 S. W. Rep. 142; 34 Am. St. Rep. 811; 16 L. R. A. 719). The taking of an acknowledgment is a quasi judicial act, and if the officer is disqualified, on account of his interest in the transaction, the act is a nullity. Long v. Crews et al., 113 N. C. 256 (18 S. E. Rep. 499). Citing, Beaman v. Whitney, 20 Me. 413; Groesbeck v. Seeley, 13 Mich. 329; Davis v. Beazley, 75 Va. 491; Bowden v. Parrish, 86 Va. 67

(9 S. E. Rep. 616); Brown v. Moore, 38 Tex. 645; Wasson v. Connor, 54 Miss. 351; Withers v. Baird, 32 Amer. Dec. 754, and notes; 1 Amer. & Eng. Enc. Law, 145, note 6; 16 Amer. & Eng. Enc. Law, 775.

A recent statute of Virginia provides that a notary public or other officer who is a stockholder or officer in a company may take acknowledgment of conveyance by or to such company provided he is not interested in the property. Va. Acts 1893-94, p. 580. Where by statute only one officer in a county is authorized to take acknowledgments, he may take the acknowledgment of a deed in which he is guarantee. Stevenson v. Brasher etc., 90 Ky. 23 (13 S. W. Rep. 242). One who is named as a preferred creditor in a trust deed is disqualified to take the acknowledgment of the same. Long v. Crews et al., 113 N. C. 256 (18 S. E. Rep. 499). Although, under Mo. Const. art. 8, § 12, and Rev. Stat. 1889, § 7107, one not a citizen of the United States is ineligible as a notary public, yet where such a one has been duly commissioned a notary, he is a de facto officer, and his authority to acknowledge deeds cannot be impeached collaterally. Wilson v. Kimmel, 109 Mo. 260 (19 S. W. Rep. 24). Where a public officer authorized to take acknowledgments is allowed to have a deputy, an acknowledgment taken by such deputy in the name of the principal is valid. Piper v. Chippewa Iron Co., 51 Minn. 495 (53 N. W. Rep. 870); Stewart v. Perkins et al., 110 Mo. 660 (19 S. W. Rep. 989).

Sec. 20. Form and sufficiency of certificate. A certificate of acknowledgment of a deed by husband and wife, failing to state that the wife is personally known to the officer taking same, to be the person named in the deed, will not release the wife's dower in her husband's lands. Hart v. Randolph, 142 Ill. 521 (32 N. E. Rep. 517). Citing, Heinrich v. Simpson, 66 Ill. 57. Where an officer has authority to take acknowledgments anywhere in the state, the addition, in the venue to the certificate, of a wrong county, or where there is no such county, will not affect its validity. Where a deed and the acknowledgment are regular on their face, it will not impair the effect of the record that the acknowledgment was in fact taken before the deed was complete, as

where the name of the grantee, or description of the premises had not been inserted. Rossain et al. v. Norton et al., 53 Minn. 560 (55 N. W. Rep. 747).

66

In passing upon the validity of the certificate a presumption prevails that it was made within the limits of the officer's jurisdiction; and where a notary designates himself below his signature as a notary of a certain county which corresponds with the name of his county contained on the seal affixed to his certificate, this designation of his location will prevail over a different designation in the caption of the certificate. Alexander v. Houghton et al., 86 Tex. 702 (26 S. W. Rep. 937). A statement in the certificate that the person named personally appeared" before the officer is a substantial compliance with a statute requiring the certificate to show that the person making the acknowledgment is "personally known" to the officer. Warder v. Henry, 117 Mo. 530 (23 S. W. Rep. 776). For collation of authorities as to what is a sufficient designation of the title of the officer, see Summer v. Mitchell, 29 Fla. 179 (10 So. Rep. 562; 30 Am. St. Rep. 106; 14 L. R. A. 815). Where the certificate identifies the party as known to the officer to be the person executing the instrument, a variance in the spelling of the name of such party as appearing in the certificate will be presumed to be a clerical error merely, and will not vitiate the acknowledgment. Rodes v. St. Anthony & Dakota Elevator Co., 49 Minn. 370 (52 N. W. Rep. 27).

Sec. 21. As to the conclusiveness of the certificate. In the absence of fraud or imposition participated in by the grantee or of which he has knowledge, the certificate of acknowledgment is conclusive of the facts therein stated. Herring v. White, 6 Tex. Civ. App. 249 (25 S. W. Rep. 1016). In a recent and well-considered case the authorities are collated and reviewed, and it is held that where the grantor named in a conveyance has actually appeared before the officer and an acknowledgment is taken, the certificate is conclusive of the facts certified so far as the officer is authorized by law to certify it; but where such certificate has been obtained by duress or fraud in which the grantee participated or had notice, or where there has been no appearance of a married