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Yeager v. Weaver, 64 Pa. (14 P. F. Smith) | v. Molleson, 26 N. Y. Supp. 653, 658, 74 Hun, 425, 428.

606.

OMNIBUS COUNT.

Along synonymous.

“Upon," as used in Laws 1890, c. 565, $ An omnibus count, in the law of plead. 4, permitting a railroad company to coning, is a count which combines in one all struct its road across, along, or upon any the money counts, with one for goods sold highway, means only a casual or incidental and delivered, work and labor, and an ac occupation and use of the highway, and count stated. It is indorsed by Mr. Chitty in does not authorize a company to build its his work on pleading in volume 1, pp. 343, entire railway along the highway. Burt v. 349, and approved in Webber v. Tivill, 2 Lima & H. F. R. Co., 21 N. Y. Supp. 482, Saund. 122, and Inhabitants of Cape Elizabeth

483. v. Lombard, 70 Me. 396, 400. Griffin v. Murdock, 34 Atl. 30, 88 Me. 254.

“Along and upon," as used in Code

1887, c. 54, 50, relating to the use of public OMNIBUS LINE.

streets by railroad companies, means along

in the street, at, above, or below the com""Omnibus line' means a line of coaches mon level of the existing or changed surface for the carriage of passengers and their bag. of the street, according as the particular gage." Parmelee v. MeNulty, 19 II. (9 Peck) facts and circumstances may require, but 556, 657.

does not authorize an occupancy by the rail-
road, for its exclusive use, of the entire

street, or of such considerable portion of it ON-UPON.

as would substantially prevent the use of it

by the public. The word could not mean See “And so on."

“along the side of the street," because such The meaning of the word "upon" in any meaning would confer no right whatever in particular case must depend on the circum- respect to the street, but would leave the stances. In agreements to do a certain railroad to make its way through adjoining thing upon the happening or the doing of lots owned by private individuals without an act, it sometimes means before, some the consent of the city or any aid of tha times concurrently, sometimes after. Scott

statute. Arbenz y. Wheeling & H. R. Co.. v. Parker, 1 Adol. & E. (N. S.) 809, 813.

10 S. E. 14, 17, 33 W. Va. 1, 5 L. R. A, 371. The word "upon" may mean at a cer

“On," "over," and "along," as used in tain time or before or after it. In re Hot

an ordinance authorizing a railroad commann (Pa.) 14 Wkly. Notes Cas. 563, 565 pany to construct a switch on, over, and (citing Reg. v. Humpherey, 10 Adol. & E. along a certain alley, are all synonymous, 335).

and the word “along” does not necessarily

mean "by the side of.” We say “the troops The statement in a contract of sale marched along the highway,” by which we that the above cargo “is accepted on the re- mean that they marched on or over, not by port and samples of" a certain firm amounts the side of it. Heath v. Des Moines & St. to a warranty that the bulk was equal to the L. Ry. Co., 15 N. W. 573, 574, 61 Iowa, 11 report and samples, and not merely a representation that the report was a genuine re

"Upon," within the meaning of Laws port of such firm and the samples taken by 1899, c. 152, § 2, declaring that no bicycle them. Russell v. Nicolopulo, 8 C. B. (N. S.) sidepaths shall be constructed upon or along 362, 367.

any regularly constructed or maintained

sidewalk, is synonymous with the word An act giving a Hen for labor or work along” as so used, the provision being indone on a railroad does not include materials tended to prevent the appropriation of any furnished and work and labor done in labor portion of a regularly constructed sidewalk ers' machine shops upon locomotive engines. for a bicycle path, and not to forbid the Chattanooga, R. & C. R. Co. v. Evans (U. S.) construction of a bicycle path at the side 66 Fed. 809, 818, 14 C. O. A. 116.

of or adjoining any such sidewalk. Ryan Webster defined the word "on" as mean

v. Preston, 66 N. Y. Supp. 162, 163, 32 Misc. ing, among other things, in reference or in Rep. 92. relation to; and hence where plaintiff let a contract to one M. to do the stone work

As as soon as. on a building, providing for monthly pay- "Upon receipt thereof,” in a covenant to ments not to exceed 80 per cent. of the esti- pay over certain proceeds upon receipt theremated value of the work “performed on the of, means as soon as such proceeds are realbuilding," the contract should be construed ized and the covenantor has power to receive as meaning that payments to M. should be them, regardless of whether he receives them based on the stone prepared for the buildin fact, it being his duty to collect them. ing, as well as that actually put in. Smith Smith v. Nesbitt, 2 Man., G. & S. 286, 287.

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idea of after. Bradley V. Bradley, 3 Prob. Gen. St. C. 64, $ 2, providing that incor- Div. 47, 50, 32 Yoak, Eng. R. 36, 39. porated telegraph companies may, under the

A covenant in a lease providing that on provisions of certain sections, construct lines the expiration of the said lease the lessee of electric telegraph upon the bighways and would deliver up the possession of the prempublic roads, etc., includes crossing a way ises to the lessor should not be construed as by the wires. Banks v. Highland St. Ry. contemplating any other thing than the full Co., 136 Mass. 485, 486.

term for keeping the covenant Reed v.

Snowhill, 16 Atl. 679, 680, 51 N. J. Law (22 Actual contact.

Vroom) 162. The word "upon" does not always, in

As used in St. 59 Geo. III, C. 134, $ 139, legal or other phrase, import actual con providing that an order for stopping paths tact; 80 the word "upon,” as used in a through a churchyard is to be made with condeclaration alleging that defendant unlaw- sent of two justices, on notice being given in fully and negligently drove its locomotive the manner prescribed by St. 55 Geo. III, C. engine upon the plaintiff, does not necessar. 68, which act provides that the stopping up ily import actual contact, and therefore there

was to be by an order of two justices, prois no variance between the allegation and the viding that notices were given in the form proof showing that the train, without sig- announced, wbich form stated that the order nal, ran at a high rate of speed very close bad been signed, the words “on notice being to plaintiff's horse and wagon, thereby given" must, with reference to such an order, frightening the horse, though not actually be read “after notice given.” Reg. v. Arkstriking either the horse or wagon. Beyel v. wright, 12 Adol. & E. (N. S.) 960, 966. Newport News & M. V. R. Co., 34 W. Va. 538, 546, 12 S. E. 532.

“Upon each payment,” as used in an

agreement and receipt by a pledgee of stock Adjacent.

providing that upon each payment by the The words “on and on the alley,” in a pledgor a proportionate amount of the shares declaration averring that plaintiff's injury of stock should be given up to the pledgor,

meant that the shares were to be returned resulted from an excavation in and on an alley, wbile 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,

813. ately along the side of, the alley, yet, taken in the ordinary acceptance of the phraseol

As at the timo of. ogy, they would. We speak of a town or city as situated on a lake or river. The The word "on," in a will devising propsubject-matter defines the language, so that erty to certain persons on the death of teseverybody understands at once that the place tator's son, was construed to mean at the is on the bank or shore of the lake or stream death of the son or upon the death of the son, -is hard by or adjacent to it; so that in and not in the event of the death of the son, the present instance the language of the and therefore not to imply a contingency re declaration, especially when taken in connec- quiring the death of the son during testator's tion with the other descriptive circumstances, life in order to constitute a valid devise to the fairly means that the excavation was along persons to take at the death of the son. the side of and adjacent to the alley, just as Cromwell v. Cromwell, 66 N. Y. Supp. 1063, the church would be referred to as situated 1065, 55 App. Div. 103. on the alley, or on Church Street, yet no

"Upon" or "on" the death of a certain one understanding it to be anywhere but adjacent to the street or alley, or along the party means at the time of, and such a retside of one or the other. Niblett v. City of erence to the devolution of an estate points Nashville, 59 Tenn. (12 Heisk.) 684, 686, 27 as clearly to the time of the death as the

word "after.” “Upon" does not imply an esAm. Rep. 755.

tate before the death. In re Melcber, 54 Atl. In the phrase "upon, along, or off the 379, 380, 24 R. I. 575. Atlantic sea board," the word “upon” refers to

The phrase "upon her decease," as used the waters adjacent to and easily reached in a will devising property in trust to a perfrom the coast line. It relates to any given son, and in further trust to convey the same spot or place. American Fisheries Co. v. during the natural life of the said S. A., from Lennen (U. S.) 118 Fed. 869, 873.

time to time, to such persons, in such por

tions, and on such considerations as she may As alter.

in writing bequest, and in further trust, upon “On," as used in a statutory provision her decease, to make such disposition of said that the court may grant alimony on any property as she may, by any writing of a tessuch decree, means "after.” The word is an tamentary character, direct, is used in oppo. elastic expression, and does not exclude the sition 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. “On," as used in a life insurance policy

Sloan v. Somers, 18 N. J. Law (3 Har.) 46,

47, 35 Am. Dec. 526. providing that the assured should be entitled to a paid-up policy after the payment of three An order declaring a nonsuit to be set annual premiums, on the surrender to the aside "on payment of costs” has no other efcompany on or before it shall expire by the fect than to impose an obligation on the plainnonpayment of the fourth or any subsequent tiff to pay the costs occasioned by his depremium, should be construed as referring fault, and, if he does not, may furnish a good to the time before and at the expiration of cause for attachment. The payment of costs the policy, and not after the expiration. "Be is not a condition precedent to be performed fore it shall expire” includes all of the time before the full operation of the order. Dana up to the instant of the expiration of the pol- v. Gill, 28 Ky. (5 J. J. Marsh.) 242, 243, 20 icy by the nonpayment of the premiums, and Am. Dec. 255. "on" must, to have any effect, mean the instant of the nonpayment of the premium. ant with a quantity of bricks upon the fol

The plaintiff agreed to supply the defend. Sheerer v. Manhattan Life Ins. Co. (U. S.)

lowing terms: 16 Fed. 720, 723; Id., 20 Fed. 886.

"Terms of payment four

months' account, and at the end of four The words “upon his admission" as used months a settlement shall be made, and eight in 9 Geo. IV, c. 17, 88 2, 3, requiring every months longer will be given on your paying person who shall be elected to the office of interest on the amount at the rate of 5 per alderman within one calendar month next cent.; and, if a further three months is rebefore or upon bis admission into such office quired, it will be given on your paying the to make and subscribe a certain declaration, current rate of interest on the amount.” mean at the time of his admission, and not Held, that the payment of the interest was within a reasonable time thereafter, so that not a condition precedent to the defendant's the authorities who admit him may prescribe having the eight-months and three-months the order in which the ceremony forming further credit. Dodd v. Ponsford, 6 C. B. parts of the admission shall take place. Reg. (N. S.) 324, 333. v. Humpherey, 10 Adol. & E. 335.

“Upon," as used in a will in which cer

tain property is left in trust as follows: "The Condition precedent.

same is hereby declared to be held in trust Where a contract provides that a pay- for the said R. W. during his life, and for his ment shall be made on the doing of some par- heirs after his decease, upon the said R. W. ticular thing, the word "on" implies that the complying with and fulfilling certain coredoing of such thing is a condition precedent nants"-—is equivalent to "on condition that." to the payment. Adans v. Williams (Pa.) 2 Little v. Wilcox, 13 Atl. 468, 474, 119 Pa. 439. Watts & S. 227, 228; Welch v. Matthews, 98

In construing a certificate of deposit pay. Mass. 131.

able "on return of this receipt," the court "On," as used in a contract which pro- said: “These words do not make it payable vides that on a certain payment one of the upon a contingency, or constitute a condition parties shall deliver to the other certain precedent to any payment. If they did, no stock, means that the delivery is dependent recovery could be bad without a return of on the payment. Powell y. Dayton, S. & G. the certificate. This restriction would be imR. Co., 12 Pac. 665, 667, 14 Or. 356.

plied, 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 former of stock,” etc., indicates a state of dependly enforced the obligation upon such terms ence; a tender of the stock would be pre- of indemnity as was deemed just, and now requisite to a suit for the subscription. courts of law may enforce it upon required

observance of Courtright v. Deeds, 37 Iowa, 503, 508.

the statutory indemnity."

Frank v. Wessels, 64 N. Y. 155, 158. Under an order giving judgment for plaintiff on a demurrer by the defendant,

The expression "upon the return of a with leave to the defendant to withdraw his citation," where it is used in a provision redemurrer and plead "on payment of costs," quiring an act to be done in the surrogate's such payment was a condition precedent to court, relates to the time and place at which the act of pleading. Sands v. McClelan (N. bearing is adjourned; includes a supplement

the citation is returnable, or to which the Y.) 6 Cow. 582.

al citation issued to bring in a party who In an order setting aside a verdict and ought to be, but has not been, cited; and im. ordering new trial "on payment of costs” by plies that, before doing an act specified, due

proof must be made that all persons required , immediate valley of the stream.

Coffin v. to be cited have been duly cited. Code Civ. Left Hand Ditch Co., 6 Colo. 443, 451. Proc. N. Y. 1899, $ 2514, subd. 10.

The words “on the western boundary of The word "upon," in a trust declaring' Iowa,” as used in an act of Congress authorcertain lands to be held upon fultilling cer- izing and requiring the Union Pacific Railtain covenants, held to be the equivalent of road Company to construct a single line of "on condition that," etc. Little v. Wilcox, railroad and telegraph from a point on the 13 Atl. 468, 474, 119 Pa. 439.

western boundary of Iowa, are not technical

words, and should be construed in their orAs contiguous or near to.

dinary signification, which is a point in Iowa Where a statute requires certain im- at the eastern shore of the Missouri river. provements to be made on the street, the It is common usage to speak of the boundary word "on" will be construed to mean at, near, of a state or county as a river, though the adjacent to. Such is the meaning of the legal boundary may be the middle of the rivword "on" when used to designate a place. er, and particularly when anything has to be Hempstead v. City of Des Moines, 3 N. W. constructed on such a boundary, wbich from 123, 126, 52 Iowa, 303.

its nature must be constructed on dry land,

and no one would understand the place of con"On the south side of the street” is not struction as any other than the shore of the equivalent to the expression "south of the river. It is perfectly legitimate and in accordstreet," but, when used as part of the de- ance with everyday usage to say that a house scription of a lot, properly refers only to a ' built in Illinois on the eastern shore of the lot actually bordering on a street on its south Mississippi stands on the western boundary side, so that a complaint in ejectment de- of the state, though the legal boundary of scribing the premises sued for as “lot nine, the state is the midchannel of the river. The on the south side of O street,” is not support company was therefore authorized to coned by evidence as to a lot not bordering on struct a bridge across the Missouri, to be the street. but south of the street. Illinois I used for the purposes of the road as a part of Cent. R. Co. v. Baldwin, 28 South. 948, 949, its line. Union Pac. R. Co. v. Hall, 91 U. S. 77 Miss. 788.

343, 346, 23 L. Ed. 428. "On a railroad," as used in a deed de

As denoting beginning scribing certain land as lying on the L. & M. Railroad, which land lay near to, but did not

The word "on," in the condition on a railborder on, the road, meant "near to," and road ticket stating that it is good for one hence the deed was not void for misdescrip- continuous passage on and from the date tion. Burnam v. Banks, 45 Mo. 349, 351.

stamped on the back, signifies that it is good

for the passage on the day named. Texas & "On" does not always mean on top of or 0. R. Co. v. Powell, 35 S. W. 841, 842, 13 Tex. resting upon, for sometimes, but less fre- Civ. App. 212. quently, it means contiguous to, as when we say a house on Main street, or a man stood

"On," as used in a railroad ticket conon either side of the house. Hence the word taining the statement that it is good for one "on," as used in a contract of reinsurance continuous passage on and from the date limiting the risk to resin, turpentine, etc., in stamped on the back, was employed for the barrels while awaiting shipment in or

purpose of connecting the phrase "good for certain warehouses or sheds, creates an am

one continuous passage' with the words "date biguity in the meaning of the policy which stamped on the back," and the meaning of the court has to settle. London Assur. Corp. the word "on,” as so used, explains the time V. Thompson, 62 N. E. 1066–1068, 170 N. Y. at which the passage is to begin. Texas & N.

O. R. Co. v. Demilley (Tex.) 41 S. W. 147,

148; Demilley V. Texas & N. 0. R. Co., 42 The phrase "on the side of the road,” as S. W. 540, 91 Tex. 215. used in a complaint in trespass against highway surveyors for breaking and entering As center of highway in boundaries. plaintiff's closes and cutting down and destroying his hedges, the statement that the

Where a conveyance describes land as trees were "on plaintiff's farm and on the side bounding on or upon the road, highway, or of the road” was equivalent to a statement street, without further description, the words that he was the owner of the “land next ad "on the road” will be construed to mean the joining the road.” Jenney v. Brook, 6 Q. B. Mass. (9 Gray) 36, 37, 69 Am. Dec. 274; Peck

center of the road. Smith v. Slocomb, 75 323, 342.

v. Denniston, 121 Mass. 17, 19; Hollenbeck v. Sess. Laws 1861, p. 67, § 1, providing Rowley, 90 Mass. (8 Allen) 473, 475; Dodd v. that all persons having claims “on the bank, Witt (Mass.) 29 N. E. 475, 476; Baltimore & margin, or neighbornood” of any stream of O. R. Co. v. Gould (Md.) 8 Atl. 754, 756; Hunt water, creek, or river shall be entitled to use V. Brown (Md.) 23 Atl. 1029; Trustees of the water thereof, includes all lands in the Hawesville v. Lander, 71 Ky. (8 Bush) 679,

on

680; Lee v. Lee (N. Y.) 27 Hun, 1, 4; Dunbam 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.

Where land is conveyed and described Y.) 15 Johns. 447, 453, 8 Am. Dec. 263; Coch- by a lot number as indicated on a map, and

the land fronts on a road or highway, the ran v. Smith, 26 N. Y. Supp. 103, 105, 73 Hun, 597; Fraser v. Ott, 30 Pac. 793, 794, 95 Cal boundary will be the center, and not the side, 661; Moody v. Palmer, 50 Cal. 31, 37; Buck of the road. Lee v. Lee (N. Y.) 27 Hun, 1, 4 v. Squiers, 22 Vt. 484, 489; Henderson v. Hat

So a deed conveying land by metes and terman (I11.) 34 N. E. 1041, 1043; Snider v. bounds, where one of the boundary lines is Snider (Pa.) 3 Phila. 158, 159 (citing Union described as extending to a post standing Burial Ground Soc. v. Robinson [Pa.) 5 on the south side of the road, thence boundWhart. 18); Witter v. Harvey (S. C.):1 McCord, ing the road north, 87 degrees west, estab67, 71, 10 Am. Dec. 650. But this presumption, lishes a boundary at the side, and not at the like all other presumptions, may be rebutted; center of the highway. Hunt v. Brown, 23 and if it plainly appears from the language Atl. 1029, 75 Md. 481. used and the nature of the property that the grantor meant to limit the grant to the line As center of stream in boundaries. of the road, and reserve for himself the fee

A boundary "on a stream" or "by a in the roadbed, subject to the use of it by the stream” or “to a stream” includes the flats, public as a bighway, then, of course, this at least to the low-water mark, and in many plainly expressed intention must prevail.

cases to the middle thread of the river. Hunt v. Brown (Md.) 23 Atl. 1029; Moody v. Thomas v. Hatch (U. S.) 23 Fed. Cas. 946, Palmer, 50 Cal. 31, 37.

949. “Where land is sold bounded on a high

The words "on a stream,” when used to way, or upon or along a bighway, the thread designate a boundary of land on a nonna vigor center line of the same is presumed to be able stream, will be construed to mean the the limit and boundary of such land, in strict thread of the stream. Indiana v. Milk (U. analogy with the case of a stream of water s.) 11 Fed. 389, 395. not navigable; and the same rule applies to a private street as well in the city as in the In construing a deed describing certain country, opened by the grantor, upon which land as bounding on a brook, Chief Justice he sells house lots bounding upon it." Trus- Shaw says: "The court are of the opinion tees of Hawesville v. Lander, 71 Ky. (8 Bush) that this description bounding on the brook, 679, 080 (citing Washb. Real Prop. p. 636). in the absence of other words to control and But this doctrine does not extend to a case modify the natural and legal effect of such where the courses and distances in a de description, carried' the grant to the center scription of land brings it only to the north of the brook only, and did not include the side of a road, and therefore the land does entire bed of the brook. In some of the not extend in such cases to the middle of the earlier deeds this brook is described as a highway. Jackson v. Hathaway (N. Y.) 15 stream, dividing the land from that on the Johns. 447, 453, 8 Am. Dec. 263.

other side. We say the natural construction By a general and now well established the intent of the parties-because such di

-the construction most likely to conform to rule of construction, a boundary "on the country road" includes the fee in the land to the vision would be most beneficial to both par. middle of the road, if owned by the grantor, for cattle, the use of the water for irrigation

ties by affording to both a watering place even though the deed fixes the call as begin- and other useful purposes.” Newball v. Ireping on the southerly side of the road.

son, 79 Mass. (13 Gray) 262, 263. O'Connell v. Bryant, 121 Mass. 557.

“On the canal" may be used to designate But when it appears that the road was in fact owned by another, the terms of the the line of the excavation to the line of the deed are satisfied by a title extending to the water, or the water course generally, acroadside. Dunbam v. Williams, 37 N. Y. 251, cording to circumstances; and where, in an

exchange of land between farmers, the ex252.

pression was used to indicate a permanent Where a deed describes the land as boundary between them, it carried the bound. bounded as follows: "Commencing on the ary to the center of the canal. Agawam road" at a certain point; thence west, etc. Canal Co. v. Edwards, 36 Conn. 476, 501. the presumption is that the measurements commenced from the side of the road instead As grant of right of way rather than

title. of the center; but the acts of the parties contemporaneous with the delivery of the The word “upon," when used in a grant deed in fixing the monument and fencing the of a right of way "in, upon, and through lot as if the measurements commenced from lands of U.," speaks an intent to concede a the center of the road are admissible in evi- mere passage, and not to convey title to the

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