ST. LOUIS, FRIDAY, OCTOBER 15, 1875. A QUESTIONABLE PROPOSITION.-In Brown v. The State, 48 Ind. 38, the Supreme Court of that state held that an indictment for selling liquor on Sunday to A., is not sustained by proof that liquor was sold both to A. and B.; in other words, that proof of a sale to two persons will not sustain an indictment for selling to one of them. This is not the first time that a bench of judges have gravely denied the proposition that a whole includes all its parts. In Rogers v. Hawkins, 20 Ga. 200, it was held that under a statute exempting fifty acres of agricultural land from execution, ten acres were not exempt. Light, however, dawned upon the Georgia court in the subsequent case of Pinkerton v. Tumlin, 22 Ga. 165. Will it also dawn on that of Indiana ? THE NEW CONSTITUTION OF MISSOURI.-Wm. G. Myer, Esq., of the St. Louis bar, has rendered a valuable service to the voters of this state, and especially to such as desire to give close and careful study to the work of our late constitutional convention, by publishing a brief and succint comparison, section by section, between the present and the proposed constitution. Perhaps no better method could be employed by which to learn what are considered the imperfections of the Drake constitution, and in what way the new one would cure them. From an examination of this pamphlet, the St. Louis Globe has discovered that the proposed changes declare that popular government is a failure, that power must be taken away from those who have misused it, and that the people are not capable of choosing wise and honest public servants. If such things are brought to light, by this modest little work, it behooves us all to examine it. We apprehend, however, that it teaches us simply what we knew before, that legislatures are corrupt; that they are prone to sell out the rights of their constituents; and that, like dogs | in hot weather, they should not be suffered to run at large without a muzzle. It seems, however, that the North Carolina Constitutional Convention which has just adjourned, has adopted several measures freeing their legislatures from restrictions with which they had been fettered by the previous constitution. SPIRITUALISM AND JURISPRUDENCE.-Dr. Wharton has contributed an article under this title to the October number of Lippincott's Magazine. The title is calculated to arrest the attention; but, like the title of a good many modern works of fiction, it conveys but an indefinite idea of the subject. The greater part of it consists of an historical account of the attitude which the law has assumed towards divination, demonology and witchcraft at various periods since the rise of the Roman law. Coming nearer our own time and experience, Dr. Wharton supposes that it is possible, under certain circumstances, for one person so to act upon the nervous system of another by mere words or gestures (as by conveying to a person critically ill some alarming species of false intelligence), as to inflict upon such person death or serious bodily injury. He also supposes a fact of which we suppose there is now no doubt, that one person may so far acquire, Hon. JOHN F. DILLON Contributing Editor.. { through the effects of his will, control over the nervous system of another person, as to make that other the involuntary and perhaps the unconscious instrument of crime. Dr. Wharton discusses the principles of law which should govern these two cases, and concludes as follows: "1. If in consequence of their action on another, such other person injures himself, they are penally as well as civilly responsible for the injury. 2. If they obtain control over the will of another person, so as to make him their absolute agent, they are both penally and civilly liable as principals for what he does under this constraint." As to those professed spiritualists who are conscious imposters, Dr. Wharton states that they are punishable for obtaining money under false pretenses, in support of which statement he cites the following authorities: Rex v. Giles, L. & D. 502; 10 Cox's C. C. 44; State v. Piper, 65 N. C. 321; Whart. C. L., 7th ed. § 2092 a. Estoppel and Registration. The case of McCusker v. McEvey, (9R. I. 258), calls into notice an interesting question. It seems that one Weeden conveyed with covenants of warranty certain land, to two different persons; that when he made the first conveyance he had no title, but that he had acquired a good title before making the second. The plaintiff derived his title from the first grantee, and the defendant from the second. The court, by Durfee, J., decided that "if one having no title to land, conveys the same with warranty to A., by a deed which is duly recorded, and he afterwards acquires a title and conveys to B., the purchaser of B. is estopped to aver, that the grantor was not seized at the time of his conveyance to A., the first grantee. The after-acquired title will feed the estoppel created by the conveyance to A., and conclude the grantor and all persons claiming under him. And this although the deed to A. was a deed poll, notwithstanding the obiter dictum in Gordon v. Greene, 5 R. I. 104. The right of the purchaser of A. to insist on the estoppel is not impaired by admitting, in an action for the possession of the land, tl.at A's. grantor had no title when he conveyed to him." This judgment was evidently given with reluctance, and the learned judge quoted with approval the words of Comyns, (Dig. Estop., E. 2), "A man shall not be estopped when the truth appears by the same record;" also, "If the jury find the truth of the fact, the court will give judgment accordingly without regard to the estoppel." (Id. E. 10). At the time 9 R. I. was printed, the dissenting opinion of Judge Potter was mislaid. It has since been found and published in pamphlet form, and we here give a synopsis of it. The learned judge in substance said : This is not the case of one having title, and conveying land to one, and afterwards fraudulently conveying it again to another, who buys it bona fide, without notice of the former deed. Here, the grantor, having no title, conveys the land to one, and, acquiring title, conveys it to another, both bona fide and for consideration, and no charge is made as to the honesty of the grantor. There is Life Insurance. FORFEITURE OF CONTRACT FOR NON-PAYMENT OF INTEREST ON PREMIUM NOTES. In the very able article of your correspondent "Insurance" (ante, p. 618), reviewing the note by "J. A. F., " to Ohde v. The Northwestern Mutual Life Ins. Co. (ante,p. 567), it would seem that whilst “Insurance" has apparently, thor no question as to the remedy of the grantees against the grantor on his warranties. It is held that by reason of the warranty, the estate passes to the first grantee upon the grantor's acquiring it. Estoppels by matter of record or judgment are founded upon public policy, to prevent litigation. All others seem four.ded on one of two considerations; first, that one who has made a declaration whereby another has spent money, or labor, or has sustained damage, is estopped to deny the truth of his statement; second, to prevent cir-oughly mastered the points involved in the case of Grigsby cuity of action, if one has sold land with warranty, which he does not own, and afterwards acquires title to it, he and his heirs can not claim the land, because the grantee could at once sue on his warranty. In the present instance, if it were a suit between grantor and grantee, the case would be different. By maintaining title in the first grantee, the court forces the second to sue on his warranty, and so vice versa; wherefore litigation is not prevented by the decision rendered. The first grantee could have found from the records what interest his grantor had, and might have required him to give security. The second grantee would have found a good title in his grantor. If more than a simple examination were required of the second grantee, a rule would be laid down which would often work great hardship. In importing the law of estoppel from England, some things have been overlooked. England has no general record system. Fines and recoveries were matters of record ; feoffments were publicly notorious. Hence, as to these, estoppel extended from a grantor to his privies in estate. But the old law applied to no conveyances arising under the statute of uses, such as grant, lease and release, and bargain and sale, because these were not matters of sufficient publicity. Further, there is no privity of estate between this plaintiff and this defendant. The equity of the case appears strongly in another light. Suppose Weeden, having title, conveyed to A. by non-recorded deed, and subsequently to B. by recorded deed, for good consideration, without notice. Under our recording laws B.'s title would be good. Can it strengthen A.'s case, that Weeden had no title when he made his first conveyance? In the present case, the records that showed Weeden's deed to A., showed also that Weeden had no title. And which one should be favored,—he who carelessly took a deed from one having no title, or he who took a deed when title was shown in his grantor by the records? Vigilantibus et non dormientibus jura subveniunt. Of the covenants in Weeden's first deed, those of seizin and right to convey are, of course, personal, and were broken as soon as made. As to that of warranty, in order to run with the land there must be an estate to support it, otherwise, it, too, is personal, and on it the first grantee alone can sue. If the warranty had the effect of actually passing the estate, A. might have recovered damages, and then, when Weeden purchased, he would have the land also, thereby gaining both damages and property. Wherefore we decide for the defend ant. v. St. Louis Mutual Life Ins. Co., (2 CENT. L. J. 123), which he discusses at length, he has been less successful with regard to the Ohde case. The question of forfeiture of contract for non-payment of interest on premium notes, is an important one, both on account of the legal points involved, and of its importance to insurance companies, and therefore to the numerous public of policy-holders directly interested in the result. "Insurance's" misapprehension of the Ohde case, appears to be the same which must have led to the judgment rendered therein, and is therefore well worthy of notice. A more thorough examination of the terms of the contract would probably have convinced him that every point made in his thorough analysis of the Grigsby case, applies with at least equal force to the Ohde case, whilst the latter presents some additional points which have been overlooked by him. "Insurance" quotes the language of the policy, that “if the said premium, or the interest upon any note given for premiums, shall not be paid on or before the day above mentioned for the payment thereof, the company shall not be liable for the whole sum assured, and for such part only as is especially stipulated." (The part referred to is as follows: "The said company further promise and agree, that if default shall be made in the payment of any premium, they will pay as above agreed, as many tenth parts of the original sum insured as there shall have been complete annual premiums paid at the time of such default.)." And he proceeds to comment upon the decision in the case, and "J. A. F's." remarks thereon as follows: * * * In the case in question the policy of the Northwestern Mutual contains not a single feature looking to a forfeiture for the non-payment of a premium, or interest upon a note given for a premium, but, on the contrary, in every respect, was clearly a non-forfeiting policy. Considering that the note itself contained the express provision that "the interest shall be paid annually or the policy be forfeited" (ante, p. 569), it is imposible to agree with "Insurance" concerning the "clearly non-forfeiting" character of the policy, unless by discarding what has hitherto been held to be one of the best established principles of law, that all papers executed at the same time concerning one and the same transaction, are part of the contract and are to be construed together, a principle which is moreover expressly recognized (theoretically if not practically) in the opinion of the learned judge in this case. “Insurance” further says: "As recited in the policy the notes were made a part of the consideration." This is perfectly true, and at once brings up the question, was it the paper of the notes with the print -THE recent Court of Cassation, has just given a decision of interesting and the writing thereon, which constituted that part of to gleaners, who have in this generation been driven out of the fields as thieves. It is now decided to be contrary to law for a farmer to turn sheep into his fields for two days after harvest, or to glean the fields himself, or to sell the right, because "the poor would thus be deprived of the benefit which humanity and law have reserved for the indigent. the consideration, or was it the agreement between the parties, of which the notes were the written expression? And if it be conceded that the agreement was the consideration as it needs must be, and if such agreement be not carried out, what becomes of the notes, and where is their value? The consideration having, from any cause, become valueless, what becomes of the contract based upon such consideration ? It is evidenced by the contract that the consideration upon which the policy was issued, included, apart from the semiannual cash payments, another annual cash payment of interest on every note given by the insured. That such was the intention of the company in making the contract is evident from the fact that it has elected to be sued rather than yield the point, and that it was also the intention of the insured when making the contract, is proved by the fact of his appending his signature to the note which declares that such "interest shall be paid annually, or the policy be forfeited." Where the intentions of the parties are so clearly manifested, the judgment which rules that such interest need not be paid annually, and that the non-payment of interest works no forfeiture, whatever may have been agreed between the parties to the contrary, because such interest may (or may not) be recovered by the company at some future time, is justly characterized by "Insurance," as an "attempt at judicial alteration of contracts, which inflicts the greatest wrong upon all mutual companies." The judgment itself in the Ohde case is, of course, beyond criticism: not so the opinion of the learned judge, which is open to at least one legal exception overlooked by "Insurance." The opinion states: "When the assured had made the semi-annual cash payment in July and January, executed and delivered his note for the balance of the premium as stipulated in the policy, and paid the interest due, if any, on the previously executed note or notes, then a 'complete annual premium' was paid. This the assured performed for two years," etc. Here is an error of fact so glaring as to make it a wonder how the mistake could so long have escaped detection. The interest upon these notes was not payable in advance, but annually when due, and the interest due July 12th, 1867, on the note "executed and delivered July 12th, 1866, was never paid." For the first year only the insured "made the semi-annual cash payments in July and January, executed and delivered his note for the balance of the premium as stipulated in the policy, and paid the interest due." Hence only for one year was a "complete annual premium paid" according to the court's own ruling in this case, and how, under the circumstances, the charge of the learned judge to the jury, representing the widow as entitled, at the death of the insured, to two-tenths of the whole amount insured, can be reconciled with his own theory, must remain a mystery, unless the charge be admitted to have been based upon an error of fact. It must further be observed that the principle lately sought to be established by the opinions in the Ohde case, as well as in Grigsby v. Saint Louis Mutual Life Ins. Co. (2 CENT. LAW J. 123), and Dutcher v. Brooklyn Life Ins. Co. (2 CENT. LAW J. 153), to the effect that no failure to pay interest on premium notes taken by insurance companies should be allowed to work a forfeiture of policies, although it may, and doubtless will be occasionally applied by the courts to individual cases, can never become established as a recognized principle, for the reason that it is based upon a mathematical fallacy and conflicts with the laws regulating life insurance in the different states. The mathematical fallacy upon which it rests is the assumption that the company can always deduct the amount of the note, together with all interest accrued thereon, from the amount insured, when the policy becomes payable. This seemingly equitable adjustment of a question of contract, by rule of thumb, could be made to work in the cases cited, because the insured happened to die before they had reached the limit of the expectation of life upon which their premiums were calculated; but had they outlived that limit (and such is a daily occurrence), a simple calculation will show that a point might in each case be reached when the accrued interest, together with the principal of the note, would not only equal but exceed the amount insured. How could the company recover the difference? It would doubtless be allowed to sue the estate of the deceased for the balance due, but it is difficult to see what argument it could bring to bear against the very obvious defence that, when the insured ceased keeping up his policy by the payment of either premium or interest, he by so doing renounced all claim under such contract of insurance, and consequently was freed from all liabilities arising therefrom. And such defence would, undoubtedly be sustained by any court, as the only other alternative would be to hold that a man once insured can not cease to be insured, whether he chooses or not. The conflict between the principle of the decisions in the cases cited and the insurance laws of the states, results from the requirements of the latter, compelling companies to hold, upon each policy, a certain stated reserve, increasing each year with the age of the insured. Taking as an example the policy in the Ohde case, the insured was aged 43 years; his total premium was $92.93, for $43.25 of which he gave his note. The cash payments for the first year were sufficient to cover the cost of carrying the insurance for that year, and the note was also sufficient to cover the reserve then needed. If at the end of the year he dropped his policy, and retained no claim against the company, the latter would have been paid for carrying the risk and would lose nothing, and the insured would have only paid for what he had received, full insurance during the year, his note having cost him nothing but the trouble of signing. But when the principle of the late decisions interferes to retain in force one-tenth of this policy, upon which no further payment of interest on the note is made, the insurance laws step in requiring the company to show, for that one-tenth continued in force, a gradually increasing reserve which, when the insured reaches the age of 53 years is $77.39; at 63 years, $95.40; at 73 years, $112.73, etc. Where the interest paid annually (as provided in the contract in view of that very contingency), so as to be in turn invested by the company annually as such interest necessarily is, compound interest would, of course, enable the company to show at any time the requisite reserve. But when, on the one hand, the reserve of $43.25 is by the decision of the court, permitted to remain unproductive, and, on the other hand, the insurance laws of the state compel the company, under penalty of being refused the authorization to do business, to show such increase in the same reserve as is shown above, there is no possibility for a mutual company to comply with both, as it could only make good this reserve by supplying the deficiency out of the earnings of such of its members as fulfill their contracts. persons, since making the agreement, one thousand barrels of lime, to the damage of the defendants in the sum of two thousand dollars, for which sum the defendants asked judgment. There is no occasion to insist upon the incidental mention made of "dividends" in the opinions cited. When it is borne in mind that "dividends" is another name for surplus, no one will think it worth while to consider the dispo-tract set up was contrary to public policy, and void. The court sition which might be made of surplus arising from a policy unable to complete its reserve. J. N. P. Restraint of Trade. SCHWALM v. HOLMES.* The plaintiff demurred to the above defense because the consustained the demurrer. The defendants then amended their answer by inserting at the end of the contract, allegations, that the lime mentioned in the complaint was part and parcel of the lime contracted for by the defendants in the contract, and that the defendants were manufacturers of, and general dealers in lime in El Dorado, Placer, Sacramento and San Francisco counties, and Supreme Court of California, No. 4, 677, April Term, 1875. that the plaintiff manufactured lime in El Dorado county, and had Contract in Restraint of Trade.-A contract by which one party, at his own lime kiln, agrees to manufacture for another party, a certain number of barrels of lime within a given time, for which he is to receive a given sum per barrel, and which provides also that during the continuance of the agreement, the party manufacturing the lime shall not sell to any other person any lime, is not illegal, as being in restraint of trade. Appeal from the District Court, Sixth Judicial District, County of Sacramento. no place of business outside said county, where he sold or disposed of his lime, and that the contract only referred to such lime as should be manufactured by the plaintiff at his kiln, in El Dorado county. The cause went to trial on the amended answer, and the plaintiff proved that he had furnished the defendants with 2,342 barrels of lime, and that they had paid him $1,879.50, leaving a balance due of $755.25. The defendants then offered the contract in evidence, and offered to prove in connection therewith, The court, on the ob all the facts set up in the amended answer. The plaintiff, on the 31st day of October, 1874, commenced this action to recover the sum of $755.50, alleged to be due him by the defendants for lime, sold by him to them, about the 25th of Octo-jection of the plaintiff, refused to receive the evidence, and then gave the plaintiff judgment for the amount claimed. The defendants appealed. ber, 1874, on a contract between the parties. The defendants, in their answer, by way of counter claim, averred, that on the 21st day of May, 1874, the plaintiff and defendants entered into an agreement of which the following is a copy : Beatty & Denson, for the appellants. The contract is not in violation of sec. 1.673 of the civil code of ent from exercising the trade or profession of manufacturing or the state of California. It does not purport to restrain the respondselling lime, but merely restricts the quantity to be manufactured within a given time, and requires that whatever is sold, shall be sold at a given price to appellants. Article of agreement made and entered into this 21st day of May, A. D. 1874, by and between Francis Schwalm, of Marble Valley, El Dorado County, State of California, party of the first and H. T. Holmes & Co., of Sacramento City and County, State aforesaid, party of the second part, witnesseth: That the party of The respondent in the court below seemed to rely rather on the the first part, for, and in consideration of the covenants and agree-language of the code, than on the common law rule of decision ments hereinafter contained, to be kept and performed by the par- in this class of cases, to sustain their views. We do not think ty of the second part, agrees to and with the said party of the that the code materially varies the common law rule, but is rather second part, to manufacture for the said party of the second part, an agreeat the lime-kilns of the said party of the first part, at Marble Val- declaratory thereof. The common law rule is, that “ ley, aforesaid, and to deliver to the order of said party of the secment in general or total restraint of trade is void." We quote ond part, at Cothrin's Station, on the cars of the Sacramento Val- from Story on Contracts, and by him approved as laying down the from 36 Cal. 358. This is a quotation made by Mr. Justice Crockett ley Railroad Company, two thousand barrels of good, well manufactured merchantable lime, to be free from cone stone, or any foreign substances, for one year, commencing at the date of this agreement; the same to be delivered in equal quantities monthly, between the 1st day of June, 1874, and the 1st day of December, 1874. The party of the first part, further agrees to manufacture four thousand barrels of lime, if the party of the second part here. after concludes to have the extra two thousand barrels of lime manufactured; notice to be given of such extension. The party of the first part further agrees not to sell to any person or persons any lime during the continuance of this agreement, under a forfeiture of two dollars per barrel for each and every barrel that may be sold. "The party of the second part, in consideration of the foregoing agreement, to be kept and performed by the said party of the first part, agrees to take said lime, after delivery in the lime warehouse in Sacramento city, and to pay one dollar and twelve cents per barrel for each and every barrel of good lime, to be paid sixty days after the receipt of each kiln at Sacramento in lime warehouse. "In witness whereof, the parties of the first and second parts have hereunto set their hands and seals the day and year above written. trade, restricting it within certain reasonable limits or times, or conlaw correctly. But (Sec. 55) an agreement in partial restraint of fining it to particular persons, would, if founded upon a good and valuable consideration, be valid. This contract was limited as to time. It was entered into May 21st, and only lasted until the 1st of December following, say six months and ten days. of Parsons on Contracts, page 748. There seems to be perfect uni- those as to time and persons are not so numerous. The decisions as to limitation in territory are very numerous; is The language of our Code only prohibits contracts whereby one respondent was not restrained from exercising "a lawful profession." restrained from exercising a lawful profession." Here,the He is, on the contrary, constrained to exercise the trade of limemaking. Armstrong & Hinkson, for the respondent. The contract in question is in restraint of trade, and is void. The general rule laid down by the civil code upon this subject is, lawful profession, trade or business of any kind, is to that extent that "every contract by which one is restrained from exercising a void." Civil Code. Sec. 1,673.. There are exceptions to the general rule that contracts in restraint of trade are void, but the contract in question is not within either of them. The exceptions are as follows: First: "One who sells the good will of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the good-will from him carries on a like business therein." Civil Code, Sec. 1,674. Secondly: "Partners may, upon, or in anticipation of a dissolulution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof." Civil code, Sec. 1,675. Then, under the provisions of the Code, unless the restriction in the contract is limited to a city or county-no limitation as to time can take it out of the operation of the general rule; and we think such was the common law. There is some dicta, but no adjudged case to the contrary. Moore v. Bonnett, 40 Cal. 251; Wright v. Rider, 36 Cal. 357. BY THE COURT: The contract recited in the answer is not illegal, as being in restraint of trade. The court erred in sustaining the demurrer to the answer. It did not appear that the defendant corporation had any powers, except the general one, to construct a railroad “as it may deem necessary and useful." It was proved that the defendant had not paid any compensation to the plaintiff before taking possession of the old road in front of his property. Upon this testimony the judge below (Vincent, A. L. J.) instructed the jury to find for the defendant, on the ground that the old road never was abandoned for "public use;" and further charged that, [" when it was abandoned for use as a township road, it was only that it might be at once occupied as another public highway; that, by law, defendant had a right so to occupy it upon complying with certain duties to the public, which it is conceded it has done. The plaintiff never recovered his right to use this road as against the public, or in other words, to reduce it to private possession, and not having the right of possession as against We can not think the defendant, he can not recover in this case. the defendant was bound to provide the public with a new road at its own expense, and then pay adjoining land-owners damages for the use of land which the land-owner had then no right to occupy as against the public, the easement of the public in which had been supplied by another equally passable."] Verdict for defendant, and judgment. The plaintiff took a writ of error, assigning for error, inter alia, the part of the charge Judgment reversed and cause remanded, with directions to in brackets. overrule the demurrer to the answer. S. P. Johnson, for plaintiff in error. The right to the soil of a highway is in the owner of the land Building Railroad upon Public Highway-Rights of over which it passes. Lewis v. Jones, I Barr, 336; Chess v. Adjacent Owner.* Manowa, 3 Watts, 219; Chambers v. Furry, I Yeates, 167. The owner of land bounded by a public highway owns the soil PHILLIPS v. DUNKIRK, WARREN AND PITTSBURGH to the center line thereof. Union Burial Gr. Soc. v. Robinson, 5 RAILROAD COMPANY. Supreme Court of Pennsylvania, March 24, 1875. A road was laid out as a turnpike, and used as such till 1841, when it was abandoned and adopted by the township. In 1871 the defendant railroad company built a track on this road, immediately in front of and adjacent to the plaintiff's land; and, under the act of February 19, 1849, 13, constructed a new road in place of the one so occupied. The court below, in an action of ejectment for the road lying in front of plaintiff's land, charged the jury to find for the defendant. Held, (reversing the judgment, of the court below), that the plaintiff was entitled to recover, since the right to the soil of the road was in him, subject only to the right of way of the public, and, when aban doned by the latter, it revested absolutely; that the defendant, having no greater right in the premises than any other person, unless derived by grant, would be responsible for consequential damages arising from an extraordinary use of the road; and that the act of 1849 did not, on the construction by the defendant of a road in lieu of the one taken, confer on it a right to appropriate the latter. Error to the Common Pleas of Warren county. This was an action of ejectment by Phillips against the railroad company to recover a strip of land twenty-five feet wide, in front of his farm, occupied by the company's tracks and sidings, and formerly constituting one-half of the bed of a public highway, known as the Warren and Pine Grove Road. The language of the description in the deed under which the plaintiff claimed, dated June 14, 1872, was "north along the Warren and Pine Grove Road." The Warren and Pine Grove road was laid out in 1832 by a turnpike company, and occupied by them till 1840 or 1841, when it was adopted by the public, and kept up by the township. In August, 1871, the railroad company laid its track on this road in front of Phillips' land, and in June, 1872, constructed, in addition, a turn-table and siding; the siding running north from the main track along the road in front of the plaintiff's land, between it and the railroad, and the sweep of the turn-table passing over the plaintiff's line in turning. In the autumn of 1871, the railroad company, in accordance with the act of February 19, 1849 ( 13), constructed another road, satisfactory to the township authorities, in place of the road occupied by their track. The old road was never formally vacated, but was practically abandoned as a township road, and the court charged the jury, in this case, "to treat it as vacated." *From the report in 1 Weekly Notes of Cases, 633 (Phila. Kay & Bro.) Wharton, 18; Paul v. Carver, 12 Harris, 207. The public road was practically, though informally vacated, and the fact was so treated by the court on the trial. The owner of land abutting on a highway is entitled to additional compensation when the highway is put to a different and more dangerous use. Springfield v. Conn. River R. R. Co., 4 Cush. 63; Williams v. Nat. Bridge Plank Road Co., 21 Mo. 580; Williams v. N. Y. R. R. Co., 16 N Y. 97; Presb. Soc. of Waterloo v. Auburn and Roch. R. R. Co,. 3 Hill, 567; Ridge Turnpike v. Stoever, 6 W. & S. 378 ; (S. C.) 2 American Railway Reports, 59. When the company first built its road, it did not occupy the whole of the highway in front of Phillips' land; their entry a year afterwards to construct sidings was unlawful. It was not using an easement, but taking possession of the land. McClinton v. F. W. & C. R. R. Co., 16 P. F. Smith, 404. R. Brown, for defendant in error. The deed to Phillips was dated a year after the railroad was built, and was not on record when this action was tried. The description in the deed showed that Phillips purchased land within his designated boundaries only, and not an additional twenty-five feet then occupied by the railroad track. The rule that a conveyance of property bounded on a highway gives to the grantee a title to the soil to the central line of the highway is limited to those cases in which the grantor had title thereto at the time of conveyance. Union Burial Ground Soc. v. Robinson, 5 Wharton, 18; Cox v. Freedley, 9 Casey, 184; Paul v. Carver, 12 Harris, 207; (S. C.) 2 Casey, 223. Plaintiff's evidence below did not bring him within this rule. The soil of a highway does not revert to those whose property abuts thereon until the highway is actually vacated in the manner provided by law. The acts of June 13, 1836; April 14, 1846, and April 14, 1856; provide for the vacating of roads. So also the act of February 27, 1849, 83. By the act of February 19, 1849, 10, the defendant was granted the right to occupy sixty feet of the road. The highways are the property of the state, and she may dispose of them at will. Phila. and Montour Railroad Co. v. -, 6 Wharton, 25. The defendant, having constructed a road one occupied, has a right to retain the latter. in the place of the The plaintiff pur |