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determining the streets and alleys, and which had been referred to in conveyancing. All the deeds in a pretty long chain of title, under which appellee held, described the property by lots, running back 140 feet into an alley. None of them expressly gave prop. erty in the alley itself. So far as these facts constituted a dedication to the public, the alley had been dedicated and had passed under the control of the city authorities.

The inclosures had been there for a long time beyond the period of limitations, and were there when appellee purchased. The premises had been used continuously as a home, with the assent of all co-owners in the block, who themselves desired that the alley should not be opened.

It appears affirmatively indeed that the municipal authorities did not consider it necessary to the public, for they had offered to permit the appellee to maintain her inclosures for an indefinite time, if she would acknowledge the city's right and agree to open the alley at a future time when requested. She refused, and the city was about to order their removal by the marshal when she invoked the aid of the chancellor. The city indeed desired only to settle a right, by an effort to exercise it. Perhaps that was proper enough, in view of the official trust reposed in the officers, but nothing would have been lost by leaving the appellee in the enjoyment of her home until the alley should have been needed, if ever. The city's rights were as effectually barred as they could be by time.

She claims that the action of the city was oppressive as well as unauthorized. That the alley was never dedicated to the public, and that if it were, the right of the municipality to control it had been lost by limitation.

It is convenient to consider the last question first. It is one of great importance, which has been frequently considered in other States, and with regard to which there is much conflict of authority. It may be presented thus: Is a city or town corporation, with respect to property or powers which it holds in trust for the public, bound by the statute of limitations, so as to be precluded by lapse of time and adverse holding, from claiming to control the property or exercise the power? With regard to property, or contract rights which the municipality claims for its own convenience as a corporation, there is little difficulty. Almost if not quite all the authorities concur in holding in such cases that it is amenable to the statute; and we think it obvious that it should be ou principle. Quoad hoc, it does not represent the sovereignty of the people but only itself and the local interests of citizens.

The trouble arises where the powers are held in trust, not for the members of the body corporate alone, but for the whole people who may come to the city. The most common cases are those arising with regard to the use of streets, squares, parks, and commons which have been dedicated to the public. Appellees contend that in this respect alleys do not stand upon the same ground with streets and squares; but waiving that for the present, we will consider the question with regard to all.

If municipalities are not bound by statutes of limitations with regard to these public trusts, that is, with regard to their powers to keep open streets, etc., it must be upon the maxim, that "nullum tempus occur. rit regi," and that municipalities are the adjuncts of government, and have the franchise of sleeping upon their rights; or rather that the public must not suffer from their neglect.

But municipal corporations are not really the State, nor are their functions and powers conferred principally for the benefit of the whole people of the State,

although incidentally they hold some trusts in the exercise of which any citizen of the State may come to be interested. It may well be doubted whether the reason of the maxim may not be strained too far in applying it to these bodies. That "the time and attention of the sovereign must be supposed to be occupied by the cares of government," might well have excused a king from asserting his rights, but affords no reason why the officers of a corporation should not be reasonably diligent in the discharge of the very duties they were selected to execute. Nor does it afford a reason why citizens, daily sensible of an encroachment on their common rights, should be allowed to lie dormant for many years and then assert them to the detriment of others. The maxim should not become the instrument of wrong. The more wholesome rule for the citizen individually and collectively as well is that the laws favor the vigilant only and not the careless and slothful.

It has been said speciously that municipal authorities cannot grant away these public easements, and that no one can therefore claim, "by prescription." to impede them, because a prescription implies an original grant. This may be and is the true nature of a claim by prescription, but the argument seems to rest on a confusion of ideas. One who sets up the defense of the statute of limitations does not claim technically by prescription and cannot be met with that technical argument. He defends by statute entirely, regardless of any consideration of grant or even lawful entry. He is allowed to go further as a consequence and say that as no suit can be brought against him, his possession shall not be disturbed in pais, and that he and his assignees shall stand upon the effect of the statute and be respected as owners.

The authorities upon the vexed question here presented have been collected, and the principles discussed by Mr. Dillon in his work on Municipal Cor porations. It is conceived that nothing important can be added to his text, notes and citations, for a full showing of the authorities upon each side and the reasons by which they are supported. See Dill. Mun. Corp., $$ 667-675 (3d ed.). Whilst he himself comes to the conclusion that no laches on the part of the officers of a corporation can defeat the right of the public to its public streets and places, he yet qualifies it by saying that private rights may grow up in consequence of such laches of "more persuasive force in the particular case than those of the public." It seems to be a compromise between the doctrine of a statutory bar and that of nullum tempus, etc., by adopting the equitable doctrine of staleness and estoppels in país.

The authorities are reviewed at length in the case of City of Wheeling v. Campbell, 12 W. Va. 36. It is a very interesting and instructive case in support of the doctrine that municipal authorities are bound as individuals are by the statute of limitations. There the parties were reversed. The city sought to enjoin the defendants from building a house upon a portion of a street, concerning the original dedication of which there was no question. The defendants set up long and adverse possession, and were met by the doctrine of nullum tempus. The authorities on both sides are well arrayed, and the court held upon their decided weight that the city was subject to the statute and was barred. The court amongst other things quoted the remarks of Chief Justice Dillon in City of Pellav. Scholte, 24 Iowa, 283, which was a contest of the right of the city to a certain garden square claimed by adverse possession.

Assuming the dedication the learned judge said: "To actions of this character, though brought in equity, the ten years' limitation applies directly or by analogy." Further on he says, speaking of the doo

trine of nullum tempus, etc.:

The principle has not so far as we know been extended to municipal or public corporations. On the contrary, it has been expressly held that those corporations are within the statute of limitations, the same as natural persons," citing cases in Ohio, Kentucky, and New York.

We cannot but admire and commend the independence and integrity of character of the distinguished jurist, which prompted him afterward in his textbook, upon what seemed to him a more enlightened view, to announce a different conclusion. Still we must accord to his utterances, as judge, of the concurrent opinion of himself and his associates, a greater weight than to his individual views as a text-writer.

Another one of the numerous authorities cited in the City of Wheeling case, supra, is that of Dudley v. Trustees of Frankfort, 12 B. Mon. 610, a case directly in point with this. It was an injunction to restrain the marshal from removing an inclosure of Dudley off the street as an obstruction. Dudley claimed by statute of limitations. The court adopted a reasoning which this court approves. Hise, J., delivering the opinion, said: "If the private citizen at any time encroach with his buildings and inclosures upon the public streets, the municipal authorities should, in the exercise of proper vigilance, and of their undoubted authority, interfere by the legal means provided in their charter, to prevent such encroachment, in due time, and thus preserve for public use the squares, streets, and alleys of the town, in their original dimensions;

tionary or judicial, or quasi-judicial or legislative, and is not divided or shared with any other corporation or board or tribunal, but is absolute and exclusive in the city itself, and it is not conferred upon the city merely as a benefit, which it may exercise or not at its option or discretion, but it is imposed upon the city also as an absolute and mandatory duty, which it has no right to evade or avoid. Generally cities must keep their streets in safe and proper condition at their peril.

4. Where a street, as planned or ordered by the governing
board of a city, is so manifestly dangerous that a court,
upon the facts, could say, as a matter of law, that it was
dangerous and unsafe, the city should generally be held
liable for any resulting injuries to individuals; but where,
upon the facts, it would be so doubtful whether the street,
as planned or ordered by the governing board of the city,
was dangerous or unsafe or not, that different minds
might entertain different opinions with respect thereto,
the benefit of the doubt might properly be given to the
city, or to the governing board that planned it, and the
city held not liable.

5. Where it is claimed that the city should be protected from
liability for the reason that the condition of the street was
so brought about in accordance with a plan previously
adopted or subsequently ratified by the city or its govern-
ing board in the exercise of a judicial, quasi-judicial, leg-
islative or discretionary power, it must be shown that the
exact matter was under consideration by the governing
board, and that after due deliberation such plan was ex-
pressly adopted or expressly ratified.
RROR from Shawnee county.

but if a private individual or citizen has been permit-ERROR

ted to remain in the continued adverse actual possession of public ground, or of a public street, as embraced within his inclosure, or covered by his dwelling or other buildings, for a period of twenty years or more without interruption, such citizen will be vested thereby with the complete title to the ground so actually occupied by him."

The court in the West Virginia case conceded that the doctrine which exempted municipal corporatious from the operation of the statute of limitations obtained in, and was supported by the decisions of Pennsylvania, New York, Rhode Island and Louisiana, whilst a contrary doctrine was announced by the highest courts of Vermont, Massachusetts, New York, Connecticut, Maryland, Virginia, North Carolina, South Carolina, Mississippi, Texas, Missouri, Kentucky, Ohio, Illinois and Iowa, all of which, says the court, "have restricted the application of the maxim to sovereignty alone; and most of said courts have, in express terms, in cases requiring the decision, held that municipal corporations, like natural persons, are subject to limitation statutes."

These views commend themselves as reasonable and best adapted to the circumstances of our country, and we adopt the line of decisions in accordance with them. Affirm the decree.

MUNICIPAL CORPORATION.

KANSAS SUPREME COURT, OCTOBER 9, 1884.

GOULD V. CITY OF TOPEKA.*

1. A city is liable for any injury to private individuals caused by the negligence of its officers in not keeping its streets in a safe and proper condition.

2. And a city has no more right to plan or create an unsafe and dangerous condition of one of its streets than it has to plan or create a public or common nuisance.

3. The control of the public streets of a city is vested in the city, and its exercise by the city is not wholly discre*To appear in 32 Kansas Reports.

G. N. Elliott and W. P. Douthitt, attorneys for plaintiff.

A. B. Quinton and J. D. McFarland, attorneys for defendant.

VALENTINE, J. This was an action brought by Luella L. Gould against the city of Topeka to recover damages for personal injuries alleged to have been caused on the night of August 21, 1879, by reason of the unsafe and dangerous condition of a public street In the city of Topeka, named "Kansas avenue." At that time the plaintiff was riding in a carriage on said street up an embankment,which leads to the south end of the bridge which spans the Kansas river, and the carriage was overturned and the plaintiff thrown therefrom and down the embankment, on the east side thereof, and the injuries of which she now complains were thereby produced. The only wrong alleged against the city is the construction and permitted existence of the said embankment, which is alleged to be high and narrow, and the negligence of the city in permitting it to remain unprotected and not guarded by any railings or other barriers, and without street lamps or other lights during the night.

The case was tried by the court and a jury, and the court gave the following among other instructions:

"13th. It can make no difference in this case whether the made and travelled portion of the street was wide enough to accommodate the ordinary traffic and travel over the same, unless its narrowness was the cause of the plaintiff's being driven over the narrow track, and that such narrowness was caused by the negligent grading and filling of Kansas avenue at the place where the accident occurred.

“14th. I further instruct you, gentlemen, that such negligence cannot be predicated upon the plan of a public work, but it may be predicated upon the construction and subsequent management of such a work; if therefore you find from the evidence that the defects complained of in the plaintiff's petition did in fact exist in Kansas avenue at the place where it is alleged the accident happened to the plaintiff [and], were defects existing in the plan of grading and fill

ing Kansas avenue, as adopted and executed, by the proper authorities of the city, then the plaintiff cannot recover in this action. But if you find from the evidence that such defects [arose] from a negligent and careless construction of the grading and filling, after the plan of construction had been fixed upon, then the plaintiff may recover, provided the injuries complained of were caused directly by such last-named negligence, and the plaintiff and the driver of the team in which she was riding were themselves, without fault, contributing to such injuries.

"15th. If you find from the evidence that at the time of the alleged accident Kansas avenue, at the place where such accident is alleged to have occurred, was in a defective condition, and that such defective condition was caused by said avenue having got out of repair, either by reason of travel upon it, or otherwise, after the completion of the work of grading and filling and not by reason of negligence in the grading and filling thereof as originally done; then the plaintiff cannot recover in this action.

"16th. If the work of grading and filling Kansas avenue at the place of the accident was done by the direction of the defendant, and after its completion the defendant, with knowledge of the plan on which said work had been done, accepted it by permitting it to stand and to be used as a public street, this would be a ratification of the plan of said work, and would in effect be the same as though the plan of said work had first been adopted, and the work executed in accordance with said plan so adopted."

Several other instructions were given, but these are the only ones of which the plaintiff now complains. The plaintiff also asked the court to give several other instructions, which the court refused; and of this refusal the plaintiff now complains; but we do not understand that any question is now raised upon the instructions refused different from or in addition to the questions raised upon the instructions given. The jury found a general verdict in favor of the defendant, and the plaintiff moved the court for a new trial upon various grounds, which motion was overruled, and the court rendered judgment in favor of the defendant, and against the plaintiff for costs; and this judgment the plaintiff now seeks to have reversed.

That a city is liable for any injury to private indi viduals caused by the negligence of its officers in not keeping its streets in a safe and proper condition has been maintained and promulgated by the Supreme Court of Kansas nearly ever since its first organization; and such is now the unquestioned doctrine of this State; and nearly all the courts of last resort in all this country also recognize, sanction, approve and promulgate this very same doctrine. It is believed that the decisions of the Supreme Courts of New Jersey, Michigan and Texas furnish the only exceptions to this almost universal agreement among the courts. Pray v. Mayor, etc., 32 N. J. L. (3 Vroom) 394; Detroit v. Blackeby, 21 Mich. 84; McCutcheon v. Homer, 43 id. 484; City of Navasota v. Pearce, 46 Tex. 525.

But it is claimed by counsel for defendant that municipal corporations are endowed with various powers, among which are, first, those which are discretionary and judicial, quasi-judicial or legislative in their character; and second, those which are manda. tory and ministerial in their character; and that while municipal corporations may be held liable for the wrongful exercise or the wrongful failure to exercise those powers which are mandatory and ministerial in their character, such as negligently failing to keep their streets in safe and proper condition; yet that no liability can be incurred by the exercise or failure to exercise those other powers belonging to the first class above mentioned; as where the city orders or plans a street improvement, or a change or alteration of such

street, and the work is done accordingly, even if the exercise of such powers or failure to exercise the same should be ever so wrongful. It is claimed that cities may adopt a plan for public improvements or ratify such plan after the improvements have been made, and that the adoption or ratification of such plan will come within the first class of powers above mentioned, and that no negligence can be predicated upon the adoption or ratification of such plan, nor upon the improvements themselves if made in accordance with the plan; nor can the city be held liable for any injuries to individuals resulting from the plan, or from the improvements made, if made in accordance with the plan, even if the same were ever so defective and dangerous; and it is further claimed that the city can be held liable only for the negligent construction of the public works, or the negligent management and control thereof after the same have been made; and this, for the reason that these matters, and these only, can possibly come within the second class of powers above mentioned.

We agree with counsel in the division of the powers of municipal corporations, and generally that cities are not liable for the exercise or non-exercise of the first class of powers above mentioned; but we do not agree with counsel in their application of the rule with respect to injuries to private individuals resulting from the defective and dangerous condition of the public streets of cities. In our opinion, a city has no more right to plan or create an unsafe and dangerous condition of one of its public streets than it has to plan or create a public or common nuisance; and it is admitted that it has no right to do this. 2 Dill. Mun. Corp. (3d ed.), § 660.

The rule contended for by counsel for the defendant has been applied to various cases, as follows: It has been applied to city improvements, and the cities held not liable in cases where the property of individuals outside of the streets has been flooded and injured on account of the insufficiency of sewers or drains. City of Atchison v. Challiss, 9 Kans. 603; Steinmeyer v. City of St. Louis, 3 Mo. App. 256; Mills v. City of Brooklyn, 32 N. Y. 489; Darling v. Bangor, 68 Me. 108; Child v. City of Boston, 86 Mass. (4 Allen) 41; Van Pelt v. City of Davenport, 42 Iowa, 308.

The rule has also been applied and a city held not liable in a case where water on adjoining property was polluted by means of a sewer or drain. Merrifield v. Worcester, 110 Mass. 216.

The rule has also been applied and a city held not liable in a case where, by the digging of a ditch, the rent of a person's house was diminished. Lambar v. City of St. Louis, 15 Mo. 610.

And also to the same effect where by the digging of a ditch and the construction of a culvert on the sidewalk the plaintiff's abutting property was damaged. While v. Corporation of Yazoo City, 27 Miss. 357.

The rule has also been applied and a city held not liable in a case where a school child was injured by an unsafe staircase. Hill v. Boston, 122 Mass. 344.

And the rule has also been applied and cities held not liable in New York and Michigan where injuries occurred to individuals on account of the unsafe and dangerous condition of the streets. Urquhart v. City of Ogdensburg, 91 N. Y. 67; City of Detroit v. Beckman, 34 Mich. 125; City of Lansing v. Toolan, 37 id. 152.

The Michigan cases however are not entitled to much weight as authority, for the reason that in that State, as before stated, the Supreme Court has gone to the extent of holding that cities are not liable in any case to private individuals for any injury resulting from defective streets, whether the defect arises from the neglect of the city and its officer to keep the streets in safe and proper condition or is the result of a defect

in the original plan adopted by the city council for the construction of the improvements. Detroit V. Blackeby, 21 Mich. 84; McCutcheon v. Homer, 43 id. 483.

should plan or arrange that a street should be made unsafe and dangerous, we should be inclined to think that it would so transcend its powers as given to it by the Legislature, and so violate its duties as imposed upon it by the Legislature, that it would be liable for any injury which might occur to any individual by reason of such unwise action. Such action would be substantially the same as planning and creating a pub

This leaves only the New York case as being entitled to consideration in holding that the rule of the nonliability of cities should be applied where injuries have resulted to individuals on account of the unsafe and dangerous condition of the public streets, so made dan-lio nuisance. Can a city, by planning that a cistern gerous in accordance with a plan previously adopted by the governing board of the city. But even in New York it was doubted as late as in 1876 whether the rule should be so applied. Clemence v. City of Auburn, 66 N. Y. 334.

In that case it was doubted whether the city would be liable or not, even if the work had been done in exact accordance with the directions of the common council of the city. And we have the authority of the highest courts of two States-Illinois and Wisconsinholding that the rule should not be applied in any such cases. City of Chicago v. Gallagher, 44 Ill. 295; City of Chicago v. Langlass, 66 id. 361; Prideaux v. City of Mineral Point, 43 Wis. 513.

These cases seem to wholly ignore all distinction made by some courts between injuries resulting from a defective plan of the work and injuries resulting from negligence in the execution of such plan, or in the control and management of the work after its completion; and they hold that in all cases where injuries occur to private individuals from the unsafe and dangerous condition of the public streets of a city, the city should be held liable; and this seems to be more in harmony with reason and justice than the other rule. 2 Thomp. on Neg. 734, 735, 736, §§ 2, 3, and notes.

In Kansas we have no special reason for following this rule of the Wisconsin and Illinois courts. In Kansas, as well as elsewhere, cities do not own the public streets. In Kansas the fee-simple title to the streets is vested in the counties in which the cities are situated, and is so vested not for the benefit of the counties or the cities merely, but also for the benefit of the entire travelling public, and the cities are invested only with the control and management of the streets; and this control of the streets is not merely for the benefit of the cities themselves, but is also for the benefit of the entire travelling public. This control of the streets however is not wholly discretionary or judicial or quasi-judicial or legislative, and is not divided or shared with other corporations, boards or tribunals, but it is absolute and exclusive in the cities, and as we think, it is not conferred upon them merely as a benefit which they may exercise or not at their option or discretion, but is imposed upon them also as an absolute and mandatory duty, which they have no right to evade or avoid. Generally they must keep their streets in a safe and proper condition at their peril. And while we recognize the rule contended for by the defendant's counsel, and think that it may have application in some cases, yet we do not think that it has very much room for application where injuries occur to private individuals on account of defective and manifestly dangerous public streets. The control of the streets of cities was not put into their hands for the purpose that they might plan or order that the streets should be made dangerous or unsafe for the public to travel thereon; nor was such control put into their hands for the purpose that they might plan or order that the streets should remain in an unsafe or dangerous condition if previously dangerous; but such control was given to them for the sole purpose that they should make and keep the streets safe and convenient for the traveling public; and we think it was put into their hands as a mandatory duty, which they have no right or discretion to evade or avoid. If a city

should be left uncovered in the middle of a public street, avoid all liability for injuries that might occur by reason of some persons falling into it in the nighttime without fault on his part, when on the other hand it would be liable if the cistern were left uncovered by the person who constructed it or was afterward uncovered by some other person, and notice of its condition had been given to the city officers? Is such a distinction founded in reason? 2 Thomp. Neg. 734, 735, 736, §§ 2, 3, and notes; id. 766, 767, 768, and notes.

After a careful consideration of this entire question, we have come to the conclusion that where a street, as planned or ordered by the governing board of a city, is so manifestly dangerous that a court, upon the facts, could say, as a matter of law, that it was dangerous and unsafe, the rule contended for by the defendant should not have any application, and the city should be held liable; but where upon the facts it would be so doubtful whether the street, as planned or ordered by the governing board of the city, was dangerous or unsafe or not that different minds might entertain different opinions with respect thereto, the benefit of the doubt might properly be given to the city, or rather to its governing board that planned or ordered that the street should be placed in such a condition, and the rule should be held to apply and the city should not be held to be liable. Before leaving this question, we think we should call attention to the fact that the principal part of the reasoning in those cases above cited, which hold that a city is not liable for consequential damages to property situated outside of the streets by reason of sewers, drains, ditches, etc., is not applicable to cases where the injuries are to individuals travelling upon the public streets, and where the injuries are caused by some manifestly dangerous thing in or forming a part of the public streets; nor is the principal part of the reasoning in one of this class of cases like the principal part of the reasoning in the other; for in the one class of cases the city has a legal right to do just what it has done, while in the other it has no such right; and a cause of action can seldom if ever be based upon the lawful exercise of an unquestioned legal right, while it may generally be based upon a wrong. See the case of the City of Atchison v. Challiss, 9 Kans. 603, heretofore cited, for the reasoning where the city is held not to be liable. We shall now pass to another question.

We would further think, that in order that the city should be protected from liability on account of the work being executed in accordance with a plan previously adopted by the city, the plan should be shown to have been expressly adopted, and adopted by the city council or other board having the control of the political, the legislative, and the governmental affairs of the city. To say that it has been adopted because the board has given no expression to the contrary would not do.

In order that the city should be protected from liability, it is necessary that its board should have the exact matter under consideration, and after due deliberation should expressly order that the thing be done; or if the thing has already been done, then that it should be ratified. Suppose that the city council should order that a, cistern be constructed in some

public street, and say nothing about the cover, we would think that it should not be held that the want of a cover should be included as a part of the plan in constructing the cistern, or in other words, that the city council had planned that there should be no cover; and if the cistern were built in accordance with the order of the board, but with no cover, and injuries should result because thereof, we would think that it should not be held that the city was not liable for the injuries; or if the city should order that a high and narrow embankment with precipitous sides should be made in a public street for the purpose that the travel should pass over the embankment, and should say nothing concerning railings, guards, or other barriers, and nothing concerning street-lamps or other lights to prevent persons in the night time from falling or driving off the embankment and thereby being injured, we would think that it should not be held that the city had planned or ordered that no such railings, guards, barriers, lamps or lights should be used; but we would think that it should be held that the city had made no order with reference thereto; and then we would further think that if no such railings, guards, barriers, lamps or lights were used, and thereby injury should result, the city should be held to be liable. Before the court should hold that a street manifestly unsafe and dangerous was so planned and so ordered by the governing authorities of the city, the courts should be able to say from the city records that it was so planned and so ordered by the city authorities. There should be no presumption that the city authorities ordered or planned that a public street should be dangerous. If a cistern or an area within the sidewalk should be uncovered and remain so for a long time, it should not be presumed or held that such authorities adopted the plan that it should remain uncovered, although it might be proved that all the city authorities had knowledge of the same. Or if a part of a bridge over a deep stream with precipitous banks should be partly washed away, still leaving it possible in the day time for teams to cross with great care, but dangerous and hazardous in the night-time, and no precaution should be taken by the city authorities to guard against danger, it should not be presumed or held that the city authorities, in their legislative or judicial capacity, or even as an exercise of their discretionary powers, had planned or ordered that the bridge or stream should so remain in its hazardous and dangerous condition. Courts should not allow any but the most formal evidence to be introduced to prove that the city authorities had planned or ordered or ratified any such dangerous place within their streets. Courts should not presume without formal proof that the governing board of a city had deliberately done wrong, and especially not for the purpose of relieving the city from the consequences of a wrong for the doing of which it would be held to be not liable if it had done the wrong deliberately, but liable if it had done it merely heedlessly or carelessly.

We think the court below erred in giving the foregoing instructions. There was no evidence showing that the city, by its council or otherwise, had ever expressly planned or ordered that the street where the plaintiff's injuries occurred should be made or left in the condition in which it then existed; and the evidence does not show that the city, by its council or otherwise, ever expressly ratified any such condition of the street. The only evidence upon this subject was that the street had remained in that condition for some years, and that the mayor and two members of the city council had knowledge of its condition.

The judgment of the court below will be reversed and cause remanded for a new trial.

All the justices concurring.

RHODE ISLAND SUPREME COURT ABSTRACT.

V.

GIFT--BANK PASS-BOOK-DELIVERY.-In Tillinghast v. Wheaton, 8 R. I. 536, this court decided that the gift of a savings bank pass-book was in effect a gift of the deposit evidenced by it. It is not contended that the case at bar is distinguishable from Tillinghast v. Wheaton except in the matter of delivery. There are cases which hold that a delivery is so essential to a gift that it cannot be dispensed with even when the donee is already in possession. Shower v. Pilck, 4 Exch. 478; Cutting v. Gilman, 41 N. H. 147; French Raymond, 39 Vt. 623. There are other cases however more numerous and in our opinion more authoritative, which hold that a delivery is not necessary when the intended donee is already in possession, but that in such a case the gift, if completed and unambiguous, may be effected by a simple oral declaration. Tenbrook v. Brown, 17 Ind. 410; Wing v. Merchant, 57 Me. 383; Carradine v. Carradine, 58 Miss. 286; Southerland v. Southerland, 5 Bush, 591; Waring's Admr. v. Edmonds, 11 Md. 424; Stevens v. Stevens, 2 Hun, 470; Penfield v. Thayer, 2 E. D. Smith, 305 And see Winter v. Winter, 9 W. R. 747; 101 Eng. Com. Law, 997; Roberts v. Roberts, 15 W. R. 117. We decide on the authority of these latter cases that Mrs. Hayden is entitled to the money as a gift inter vivos from her son. Let the decree be accordingly. Providence Institution for Savings v. Taft. May 16, 1884. Opinion by Durfee, C. J. [See 22 Eng. R. 436, 690; 27 Alb. L. J. 367; 18 Am. Rep. .]

DEED-BOUNDED BY HIGHWAY-WHEN GRANTEE TAKES-DISCONTINUANCE OF HIGHWAY.- A highway was laid out wholly on the land of M., the north line of the highway coinciding with the north line of M.'s land. M. afterward sold the land south of the highway, in his deed bounding the land on the highway. Subsequently the highway was declared useless and discontinued. Held, that M.'s grantee was entitled to the whole of the land of the former highway. In Hughes v. Providence & Worcester R. Co., 2 R. I. 493, 512, this court laid down the rule governing the construction of deeds in cases of lands bounded on highways in the following language, viz.: "This court have repeatedly ruled, and it may now be construed the settled policy of the State that where a deed bounds the grantee to, by, or on a highway

the presumption of law is that the grantee takes the fee of the soil to the center of the highway *

if the grantor at the time owned the fee to the center, subject to the right of the public in the easement; unless there be established monuments or other clear description in the deed, to rebut this presumption, and show that the intention was to limit the grant to the line of the highway. * * And see also Tingley

*

v. City of Providence, 8 R. I. 493, 506. That such is the general rule of law see the discussion and cases collected in the note to Dovaston v. Payne, 2 Smith Lead. Cas. *216; Tyler Bound., etc., 103-114; Cox v. Louisville, etc., R. Co., 48 Ind. 178-185, 188; Jarstadt v. Morgan, 48 Wis. 245, 249; Tousley v. Galena Mining & Smelting Co., 24 Kans. 328, 331-333. This presumption however that the grantee takes the fee of the soil to the center of the highway is not absolute and conclusive. It is created or rather allowed, in the absence of proof, and is based upon the idea that when the street or highway was laid out, the proprietors upon each side contributed their land for the purpose in equal portions. When it appears that such was not the fact the presumption does not arise. As was stated by Hosmer, C. J., in Watrous v. Southworth, 5 Conn. 305, 310: "It is a general rule of the common law that the fee of the land over which a highway passes is owned equally by the owners of the

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