Yeager v. Weaver, 64 Pa. (14 P. F. Smith) | v. Molleson, 26 N. Y. Supp. 653, 658, 74 Hun, 425, 428. OMNIBUS COUNT. 606. Along synonymous. "Upon," as used in Laws 1890, c. 565, § permitting a railroad company to construct its road across, along, or upon any highway, means only a casual or incidental occupation and use of the highway, and does not authorize a company to build its entire railway along the highway. Burt v. Lima & H. F. R. Co., 21 N. Y. Supp. 482, An omnibus count, in the law of plead-4, ing, is a count which combines in one all the money counts, with one for goods sold and delivered, work and labor, and an account stated. It is indorsed by Mr. Chitty in his work on pleading in volume 1, pp. 343, 349, and approved in Webber v. Tivill, 2 Saund. 122, and Inhabitants of Cape Elizabeth v. Lombard, 70 Me. 396, 400. Griffin v. Murdock, 34 Atl. 30, 88 Me. 254. OMNIBUS LINE. "Omnibus line' means a line of coaches for the carriage of passengers and their baggage." Parmelee v. McNulty, 19 Ill. (9 Peck) 556, 557. ON-UPON. See "And so on." The meaning of the word "upon" in any particular case must depend on the circumstances. In agreements to do a certain thing upon the happening or the doing of an act, it sometimes means before, some times concurrently, sometimes after. Scott v. Parker, 1 Adol. & E. (N. S.) 809, 813. The word "upon" may mean at a certain time or before or after it. In re Hofmann (Pa.) 14 Wkly. Notes Cas. 563, 565 (citing Reg. v. Humpherey, 10 Adol. & E. 335). The statement in a contract of sale that the above cargo "is accepted on the report and samples of" a certain firm amounts to a warranty that the bulk was equal to the report and samples, and not merely a representation that the report was a genuine report of such firm and the samples taken by them. Russell v. Nicolopulo, 8 C. B. (N. S.) 362, 367. An act giving a lien for labor or work done on a railroad does not include materials furnished and work and labor done in laborers' machine shops upon locomotive engines. Chattanooga, R. & C. R. Co. v. Evans (U. S.) 66 Fed. 809, 818, 14 C. C. A. 116. Webster defined the word "on" as meaning, among other things, in reference or in relation to; and hence where plaintiff let a contract to one M. to do the stone work on a building, providing for monthly payments not to exceed 80 per cent. of the estimated value of the work “performed on the building," the contract should be construed as meaning that payments to M. should be based on the stone prepared for the building, as well as that actually put in. Smith 483. "Along and upon," as used in Code 1887, c. 54, § 50, relating to the use of public streets by railroad companies, means along in the street, at, above, or below the common level of the existing or changed surface of the street, according as the particular facts and circumstances may require, but does not authorize an occupancy by the railroad, for its exclusive use, of the entire street, or of such considerable portion of it as would substantially prevent the use of it by the public. The word could not mean "along the side of the street," because such meaning would confer no right whatever in respect to the street, but would leave the railroad to make its way through adjoining lots owned by private individuals without the consent of the city or any aid of th statute. Arbenz v. Wheeling & H. R. Co.. 10 S. E. 14, 17, 33 W. Va. 1, 5 L. R. A. 371. "On," "over," and "along," as used in an ordinance authorizing a railroad company to construct a switch on, over, and along a certain alley, are all synonymous, and the word "along" does not necessarily mean "by the side of." We say "the troops marched along the highway," by which we mean that they marched on or over, not by the side of it. Heath v. Des Moines & St. L. Ry. Co., 15 N. W. 573, 574, 61 Iowa, 11. "Upon," within the meaning of Laws 1899, c. 152, § 2, declaring that no bicycle sidepaths shall be constructed upon or along any regularly constructed or maintained sidewalk, is synonymous with the word "along" as so used, the provision being intended to prevent the appropriation of any portion of a regularly constructed sidewalk for a bicycle path, and not to forbid the construction of a bicycle path at the side of or adjoining any such sidewalk. Ryan v. Preston, 66 N. Y. Supp. 162, 163, 32 Misc. Rep. 92. As as soon as. "Upon receipt thereof," in a covenant to pay over certain proceeds upon receipt thereof, means as soon as such proceeds are realized and the covenantor has power to receive them, regardless of whether he receives them in fact, it being his duty to collect them. Smith v. Nesbitt, 2 Man., G. & S. 286, 287. As across Gen. St. c. 64, § 2, providing that incorporated telegraph companies may, under the provisions of certain sections, construct lines of electric telegraph upon the highways and public roads, etc., includes crossing a way by the wires. Banks v. Highland St. Ry. Co., 136 Mass. 485, 486. Actual contact. The word "upon" does not always, in legal or other phrase, import actual contact; so the word "upon," as used in a declaration alleging that defendant unlawfully and negligently drove its locomotive engine upon the plaintiff, does not necessarily import actual contact, and therefore there is no variance between the allegation and the proof showing that the train, without signal, ran at a high rate of speed very close to plaintiff's horse and wagon, thereby frightening the horse, though not actually striking either the horse or wagon. Beyel v. Newport News & M. V. R. Co., 34 W. Va. 538, 546, 12 S. E. 532. Adjacent. The words "In and on the alley," in a declaration averring that plaintiff's injury idea of after. Bradley v. Bradley, 8 Prob. Div. 47, 50, 32 Moak, Eng. R. 36, 39. A covenant in a lease providing that on the expiration of the said lease the lessee would deliver up the possession of the premises to the lessor should not be construed as contemplating any other thing than the full term for keeping the covenant. Reed v. Snowhill, 16 Atl. 679, 680, 51 N. J. Law (22 Vroom) 162. As used in St. 59 Geo. III, c. 134, § 139, providing that an order for stopping paths through a churchyard is to be made with consent of two justices, on notice being given in the manner prescribed by St. 55 Geo. III, c. 68, which act provides that the stopping up was to be by an order of two justices, providing that notices were given in the form announced, which form stated that the order had been signed, the words "on notice being given" must, with reference to such an order, be read "after notice given." Reg. v. Arkwright, 12 Adol. & E. (N. S.) 960, 966. "Upon each payment," as used in an agreement and receipt by a pledgee of stock providing that upon each payment by the pledgor a proportionate amount of the shares of stock should be given up to the pledgor, meant that the shares were to be returned 813. As at the time of. resulted from an excavation in and on an alley, while taken in the strictest sense, after the money was paid-that delivery was would not cover the case if the excavation to take place on payment and as a result of were shown to be adjacent to, and immedi- it. Scott v. Parker, 1 Adol. & E. (N. S.) 809, ately along the side of, the alley, yet, taken in the ordinary acceptance of the phraseology, they would. We speak of a town or city as situated on a lake or river. The subject-matter defines the language, so that everybody understands at once that the place is on the bank or shore of the lake or stream -is hard by or adjacent to it; so that in the present instance the language of the declaration, especially when taken in connection with the other descriptive circumstances, fairly means that the excavation was along the side of and adjacent to the alley, just as the church would be referred to as situated on the alley, or on Church street, yet no one understanding it to be anywhere but adjacent to the street or alley, or along the side of one or the other. Niblett v. City of Nashville, 59 Tenn. (12 Heisk.) 684, 686, 27 In the phrase "upon, along, or off the Atlantic sea board," the word "upon" refers to the waters adjacent to and easily reached from the coast line. It relates to any given spot or place. American Fisheries Co. v. Lennen (U. S.) 118 Fed. 869, 873. As after. "On," as used in a statutory provision that the court may grant alimony on any such decree, means "after." The word is an elastic expression, and does not exclude the The word "on," in a will devising property to certain persons on the death of testator's son, was construed to mean at the death of the son or upon the death of the son, and not in the event of the death of the son, and therefore not to imply a contingency requiring the death of the son during testator's life in order to constitute a valid devise to the persons to take at the death of the son. Cromwell v. Cromwell, 66 N. Y. Supp. 1063, 1065, 55 App. Div. 103. "Upon" or "on" the death of a certain party means at the time of, and such a ref erence to the devolution of an estate points as clearly to the time of the death as the word "after." "Upon" does not imply an estate before the death. In re Melcher, 54 Atl. 379, 380, 24 R. I. 575. The phrase "upon her decease," as used in a will devising property in trust to a person, and in further trust to convey the same during the natural life of the said S. A., from time to time, to such persons, in such portions, and on such considerations as she may in writing bequest, and in further trust, upon her decease, to make such disposition of said property as she may, by any writing of a testamentary character, direct, is used in opposition to the expression in the preceding sen tence, “during the natural life of said S. A.," | the plaintiff, such payment should be conand empowers her, when she comes to die, to strued to be a condition precedent to any furgive the property by will to whomsoever she ther proceeding in the case, without the perpleases. Weed v. Knorr, 1 S. E. 167, 173, 77 formance of which, or until demand and tenGa. 636. der, the cause could not be noticed for trial. 47, 35 Am. Dec. 526. Sloan v. Somers, 18 N. J. Law (3 Har.) 46, "On,” as used in a life insurance policy providing that the assured should be entitled to a paid-up policy after the payment of three annual premiums, on the surrender to the company on or before it shall expire by the nonpayment of the fourth or any subsequent premium, should be construed as referring to the time before and at the expiration of the policy, and not after the expiration. "Be fore it shall expire" includes all of the time up to the instant of the expiration of the policy by the nonpayment of the premiums, and "on" must, to have any effect, mean the instant of the nonpayment of the premium. Sheerer v. Manhattan Life Ins. Co. (U. S.) 16 Fed. 720, 723; Id., 20 Fed. 886. The words "upon his admission" as used in 9 Geo. IV, c. 17, §§ 2, 3, requiring every person who shall be elected to the office of alderman within one calendar month next before or upon his admission into such office to make and subscribe a certain declaration, mean at the time of his admission, and not within a reasonable time thereafter, so that the authorities who admit him may prescribe the order in which the ceremony forming parts of the admission shall take place. Reg. v. Humpherey, 10 Adol. & E. 335. Condition precedent. Where a contract provides that a payment shall be made on the doing of some particular thing, the word "on" implies that the doing of such thing is a condition precedent to the payment. Adams v. Williams (Pa.) 2 Watts & S. 227, 228; Welch v. Matthews, 98 Mass. 131. "On," as used in a contract which provides that on a certain payment one of the parties shall deliver to the other certain stock, means that the delivery is dependent on the payment. Powell v. Dayton, S. & G. R. Co., 12 Pac. 665, 667, 14 Or. 356. An order declaring a nonsuit to be set aside "on payment of costs" has no other effect than to impose an obligation on the plaintiff to pay the costs occasioned by his default, and, if he does not, may furnish a good cause for attachment. The payment of costs is not a condition precedent to be performed before the full operation of the order. Dana v. Gill, 28 Ky. (5 J. J. Marsh.) 242, 243, 20 Am. Dec. 255. ant with a quantity of bricks upon the fol- The plaintiff agreed to supply the defend "Upon," as used in a will in which certain property is left in trust as follows: "The same is hereby declared to be held in trust for the said R. W. during his life, and for his heirs after his decease, upon the said R. W. complying with and fulfilling certain covenants"-is equivalent to "on condition that." Little v. Wilcox, 13 Atl. 468, 474, 119 Pa. 439. In construing a certificate of deposit pay. able "on return of this receipt," the court said: "These words do not make it payable upon a contingency, or constitute a condition precedent to any payment. If they did, no recovery could be had without a return of the certificate. This restriction would be implied, if not expressed. It is implied in every The word "upon," as used in a contract promissory note, and there is also an implied of subscription, "provided that upon such exception on account of mistake or accident. payment there shall be delivered a certificate When this occurred, courts of equity formerof stock," etc., indicates a state of depend-ly enforced the obligation upon such terms ence; a tender of the stock would be prerequisite to a suit for the subscription. Courtright v. Deeds, 37 Iowa, 503, 508. Under an order giving judgment for plaintiff on a demurrer by the defendant, with leave to the defendant to withdraw his demurrer and plead "on payment of costs," such payment was a condition precedent to the act of pleading. Sands v. McClelan (N. Y.) 6 Cow. 582. In an order setting aside a verdict and ordering new trial "on payment of costs" by courts of law may enforce it upon required of indemnity as was deemed just, and now observance of the statutory indemnity." Frank v. Wessels, 64 N. Y. 155, 158. The expression "upon the return of a citation," where it is used in a provision requiring an act to be done in the surrogate's court, relates to the time and place at which the citation is returnable, or to which the hearing is adjourned; includes a supplemental citation issued to bring in a party who ought to be, but has not been, cited; and im plies that, before doing an act specified, due Coffin v. proof must be made that all persons required immediate valley of the stream. Left Hand Ditch Co., 6 Colo. 443, 451. to be cited have been duly cited. Proc. N. Y. 1899, § 2514, subd. 10. Code Civ. The word "upon," in a trust declaring certain lands to be held upon fulfilling certain covenants, held to be the equivalent of "on condition that," etc. Little v. Wilcox, 13 Atl. 468, 474, 119 Pa. 439. As contiguous or near to. Where a statute requires certain improvements to be made on the street, the word "on" will be construed to mean at, near, adjacent to. Such is the meaning of the word "on" when used to designate a place. Hempstead v. City of Des Moines, 3 N. W. 123, 126, 52 Iowa, 303. "On the south side of the street" is not equivalent to the expression "south of the street," but, when used as part of the description of a lot, properly refers only to a lot actually bordering on a street on its 'south side, so that a complaint in ejectment describing the premises sued for as "lot nine, on the south side of O street," is not supported by evidence as to a lot not bordering on the street but south of the street. Illinois Cent. R. Co. v. Baldwin, 28 South. 948, 949, 77 Miss. 788. "On a railroad," as used in a deed describing certain land as lying on the L. & M. Railroad, which land lay near to, but did not border on, the road, meant "near to," and hence the deed was not void for misdescription. Burnam v. Banks, 45 Mo. 349, 351. "On" does not always mean on top of or resting upon, for sometimes, but less frequently, it means contiguous to, as when we say a house on Main street, or a man stood on either side of the house. Hence the word "on," as used in a contract of reinsurance limiting the risk to resin, turpentine, etc., in barrels while awaiting shipment in or on certain warehouses or sheds, creates an ambiguity in the meaning of the policy which the court has to settle. London Assur. Corp. v. Thompson, 62 N. E. 1066-1068, 170 N. Y. 94. The phrase "on the side of the road," as used in a complaint in trespass against highway surveyors for breaking and entering plaintiff's closes and cutting down and de stroying his hedges, the statement that the trees were "on plaintiff's farm and on the side of the road" was equivalent to a statement that he was the owner of the "land next adjoining the road." Jenney v. Brook, 6 Q. B. 323, 342. Sess. Laws 1861, p. 67, § 1, providing that all persons having claims "on the bank, margin, or neighbornood" of any stream of water, creek, or river shall be entitled to use the water thereof, includes all lands in the The words "on the western boundary of Iowa," as used in an act of Congress authorizing and requiring the Union Pacific Railroad Company to construct a single line of railroad and telegraph from a point on the western boundary of Iowa, are not technical words, and should be construed in their ordinary signification, which is a point in Iowa at the eastern shore of the Missouri river. It is common usage to speak of the boundary of a state or county as a river, though the legal boundary may be the middle of the river, and particularly when anything has to be constructed on such a boundary, which from its nature must be constructed on dry land, and no one would understand the place of construction as any other than the shore of the river. It is perfectly legitimate and in accordance with everyday usage to say that a house built in Illinois on the eastern shore of the Mississippi stands on the western boundary of the state, though the legal boundary of the state is the midchannel of the river. The company was therefore authorized to construct a bridge across the Missouri, to be used for the purposes of the road as a part of its line. Union Pac. R. Co. v. Hall, 91 U. S. 343, 346, 23 L. Ed. 428. As denoting beginning The word "on," in the condition on a railroad ticket stating that it is good for one continuous passage on and from the date stamped on the back, signifies that it is good for the passage on the day named. Texas & O. R. Co. v. Powell, 35 S. W. 841, 842, 13 Tex. Civ. App. 212. "On," as used in a railroad ticket con taining the statement that it is good for one continuous passage on and from the date stamped on the back, was employed for the purpose of connecting the phrase "good for one continuous passage" with the words "date stamped on the back," and the meaning of the word "on," as so used, explains the time at which the passage is to begin. Texas & N. O. R. Co. v. Demilley (Tex.) 41 S. W. 147, 148; Demilley v. Texas & N. O. R. Co., 42 S. W. 540, 91 Tex. 215. As center of highway in boundaries. bounding on or upon the road, highway, or Where a conveyance describes land as street, without further description, the words "on the road" will be construed to mean the center of the road. Smith v. Slocomb, 75 Mass. (9 Gray) 36, 37, 69 Am. Dec. 274; Peck v. Denniston, 121 Mass. 17, 19; Hollenbeck v. Rowley, 90 Mass. (8 Allen) 473, 475; Dodd v. Witt (Mass.) 29 N. E. 475, 476; Baltimore & O. R. Co. v. Gould (Md.) 8 Atl. 754, 756; Hunt v. Brown (Md.) 23 Atl. 1029; Trustees of Hawesville v. Lander, 71 Ky. (8 Bush) 679, 680; Lee v. Lee (N. Y.) 27 Hun, 1, 4; Dunham | dence upon the question of construction to be v. Williams, 37 N. Y. 251, 252; Anderson v. given the deed. Dodd v. Witt, 29 N. E. 475, James, 27 N. Y. Super. Ct. (4 Rob.) 35, 37; 139 Mass. 63, 52 Am. Rep. 700. Holloway v. Southmayd, 18 N. Y. Supp. 700, 703, 64 Hun, 632; Jackson v. Hathaway (N. Y.) 15 Johns. 447, 453, 8 Am. Dec. 263; Cochran v. Smith, 26 N. Y. Supp. 103, 105, 73 Hun, 597; Fraser v. Ott, 30 Pac. 793, 794, 95 Cal. 661; Moody v. Palmer, 50 Cal. 31, 37; Buck v. Squiers, 22 Vt. 484, 489; Henderson v. Hatterman (Ill.) 34 N. E. 1041, 1043; Snider v. Snider (Pa.) 3 Phila. 158, 159 (citing Union Burial Ground Soc. v. Robinson [Pa.] 5 Whart. 18); Witter v. Harvey (S. C.) 1 McCord, 67, 71, 10 Am. Dec. 650. But this presumption, like all other presumptions, may be rebutted; and if it plainly appears from the language used and the nature of the property that the grantor meant to limit the grant to the line of the road, and reserve for himself the fee in the roadbed, subject to the use of it by the public as a highway, then, of course, this plainly expressed intention must prevail. Hunt v. Brown (Md.) 23 Atl. 1029; Moody v. Palmer, 50 Cal. 31, 37. Where land is conveyed and described by a lot number as indicated on a map, and the land fronts on a road or highway, the boundary will be the center, and not the side, of the road. Lee v. Lee (N. Y.) 27 Hun, 1, 4 "Where land is sold bounded on a high way, or upon or along a highway, the thread or center line of the same is presumed to be the limit and boundary of such land, in strict analogy with the case of a stream of water not navigable; and the same rule applies to a private street as well in the city as in the country, opened by the grantor, upon which he sells house lots bounding upon it." Trustees of Hawesville v. Lander, 71 Ky. (8 Bush) 679, 680 (citing Washb. Real Prop. p. 636). But this doctrine does not extend to a case where the courses and distances in a description of land brings it only to the north side of a road, and therefore the land does not extend in such cases to the middle of the highway. Jackson v. Hathaway (N. Y.) 15 Johns. 447, 453, 8 Am. Dec. 263. By a general and now well established rule of construction, a boundary "on the country road" includes the fee in the land to the middle of the road, if owned by the grantor, even though the deed fixes the call as beginning on the southerly side of the road. O'Connell v. Bryant, 121 Mass. 557. But when it appears that the road was in fact owned by another, the terms of the deed are satisfied by a title extending to the roadside. Dunham v. Williams, 37 N. Y. 251, 252. Where a deed describes the land as bounded as follows: "Commencing on the road" at a certain point; thence west, etc.the presumption is that the measurements commenced from the side of the road instead of the center; but the acts of the parties contemporaneous with the delivery of the deed in fixing the monument and fencing the lot as if the measurements commenced from the center of the road are admissible in evi So a deed conveying land by metes and bounds, where one of the boundary lines is described as extending to a post standing on the south side of the road, thence bounding the road north, 87 degrees west, establishes a boundary at the side, and not at the center of the highway. Hunt v. Brown, 23 Atl. 1029, 75 Md. 481. As center of stream in boundaries. A boundary "on a stream" or "by a stream" or "to a stream" includes the flats, at least to the low-water mark, and in many cases to the middle thread of the river. Thomas v. Hatch (U. S.) 23 Fed. Cas. 946, 949. The words "on a stream," when used to designate a boundary of land on a nonna vigable stream, will be construed to mean the thread of the stream. Indiana v. Milk (U. S.) 11 Fed. 389, 395. In construing a deed describing certain land as bounding on a brook, Chief Justice Shaw says: "The court are of the opinion that this description 'bounding on' the brook, in the absence of other words to control and modify the natural and legal effect of such description, carried the grant to the center of the brook only, and did not include the entire bed of the brook. In some of the earlier deeds this brook is described as a stream, dividing the land from that on the other side. We say the natural construction the construction most likely to conform to the intent of the parties-because such division would be most beneficial to both parties by affording to both a watering place for cattle, the use of the water for irrigation and other useful purposes." Newball v. Ireson, 79 Mass. (13 Gray) 262, 263. "On the canal" may be used to designate the line of the excavation to the line of the water, or the water course generally, according to circumstances; and where, in an exchange of land between farmers, the expression was used to indicate a permanent boundary between them, it carried the boundary to the center of the canal. Agawam Canal Co. v. Edwards, 36 Conn. 476, 501. As grant of right of way rather than title. The word "upon," when used in a grant of a right of way "in, upon, and through lands of U.," speaks an intent to concede a mere passage, and not to convey title to the |