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or village, to deal with streets and alleys, 155 Ill. 37, 39 N. E. 584, 27 L. R. A. 580, 46 each tribunal must follow the language of Am. St. Rep. 311. In the matter of Henry the statute pertaining to it. One cannot Street, supra, the proceeding was to vacate a borrow from the other. Nor can authority street, not to narrow one. The petitioners not expressly conferred be derived by impli asked vacation of the street in its entirety cation. The jurisdiction conferred on the and the question here was in no way involvcourt is special and the act conferring the ed. The same may be said of In re Swanjurisdiction must be strictly followed. It son Street, supra, except that the petition is quite clear that if the general assembly asked to vacate a part of a certain street ever intended to empower the court of coin (Swanson street) in Philadelphia lying bemon pleas to narrow a street or alley, it would tween Washington avenue and Prime street. have so expressed itself at some time during The question raised was whether under a the past three quarters of a century or more; statute authorizing the vacation of a street or especially, when it had knowledge that it road, a part of the same may be vacated, and had given municipal councils that power. it was held that the part between said aveIt has not been a matter of oversight, but on nue and Prime street could be vacated. On the contrary it has been the steady, con page 326 of 163 Pa., page 208 of 30 Atl., the sistent pursuit of an original purpose. There statute of that state is quoted as follows:
some apparent reasons which might “Whenever any private or public lane, alley, be furnished for this, but the statutory rea road or highway shall, by reason of forming sons alone are sufficient.
town plats or otherwise, become useless to It has been suggested, that because the the public, etc.
And upon hearing court has power to vacate a street or alley, all parties interested, it shall be lawful for it may vacate a strip along one side of a the court to decree the vacation of any such street, on the theory that the greater in lane, alley, street or highway.” Continuing, cludes the lesser. That axiom is sometimes that court said: “But it does not follow from convenient in summing up mathematical cal this that a power to vacate part of a road culations in matters of space or quantity; but cannot be deduced from legislation which it would not be a safe rule to adopt in as gives power to vacate the whole of it. In all certaining legislative intent, or in measuring ordinary circumstances the power to do a the jurisdiction of a court in a special pro greater act includes the power to do the ceeding. If the word alley had been left out lesser act, which is part of the greater. of the court section, would it be claimed that
The statutory condition upon which the court could vacate an alley, which is the power is conferred is the same in both less than a street, because the court is au cases, to wit, “Whenever the same shall bethorized to vacate a street. Or, if the word come useless to the public and those having alley had been omitted, would it be claimed lands bounding thereon.'” "This condition that the court could establish an alley, be may become true of a part, as well as of the cause it can establish a street which is a whole of a long public road; or a long street larger throughfare? We believe the power to of a city. When it occurs in a city, the narrow a street is left alone with the council vacation of the useless portion may be acbecause it is intrusted with the care and con complished with little or no inconvenience to trol of the streets and alleys and other pub the property owners on the remaining porlic ways of the city or village, and it is better tion of the principal street, because there qualified locally to determine when it is prop are always crossing streets at short distances er to narrow an existing street. Its action apart, through which free communication can in so doing, leaves to the abutting owner his be had with all the streets.” It is plain easement in the vacated portion, while the that the right to narrow a street was not narrowing by the court, if it had such power involved. The holding is that under the under the guise of vacating, would take the statute of Pennsylvania quoted above, the easement from him by assessing damages. court could vacate a part of a street between Therefore, when the court orders vacation of cross-streets. We have said as much for our a street or alley, it must be from side to statute, that it was within the statutory side, or the width of the street. This does jurisdiction of the court of common pleas on not mean that the street or alley must be a proper petition, to vacate Clay street its vacated its entire length, but the entire entire width between Front street and the width, of such part of the street as should Ohio river, but that the power to narrow as be vacated, under the terms and prayer of prayed for in this case, did not exist. The the petition. Applying our meaning to this City of Mt. Carmel, supra, presents a very case, the court was empowered to vacate different case. It involved the narrowing Clay street between Front street and the Ohio and changing of a street by the municipal river, but not empowered to narrow the street authorities, and the Supreme Court of Illiby vacating a strip along one side of the nois held on that subject, that, "under the same.
power given by a statute to a city to vacate Counsel for defendant in error cite and rely streets, it may vacate a strip upon each side on Matter of Henry Street, 123 Pa. 346, 16 of a street so as to narrow it, where the Atl. 785; In re Swanson Street, 163 Pa. 323, purpose of narrowing is not to benefit pri30 Atl. 207; City of Mt. Carmel v. Shaw, vate owners, but because it is deemed that
so great a width of street is not required for public use." The power conferred upon the municipal authorities of that state, in reference to streets, are also very broad; but in this state the legislature has expressly authorized councils to narrow streets and alleys, and the decision is not relevant here where we are considering the limited jurisdiction of the court of common pleas. The demurrer to the petition should have been sustained.
The judgments of the circuit and common pleas courts are reversed, and the original petition dismissed.
SHAUCK, C. J., and CREW, SPEAR, and DAVIS, JJ., concur.
own name, and thereafter treat her as their own child; and said Robert Watson further agreed, upon the same consideration, that he would give her all the personal property he owned or possessed at his death, which property she was to have and receive at his death if he survived his wife, Mary Watson, but, if his wife survived him, then plaintiff was to have and receive said property at the death of his said wife. Immediately, and in pursuance of the contract, plaintiff's father did relinquish her to said Robert and Mary Watson, and they did receive her and did give her their own name, by which until her marriage she was always known, but did not adopt her by statutory adoption. Robert Watson died April 26, 1895, leaving a last will by the terms of which he gave all his estate to his wife, Mary. At the time of his death he was possessed of personal property of the value of $3,310, no part of which was ever received by plaintiff. Mary Watson died September 12, 1899, leaving no will. No administration was taken out on the estate of Robert Watson until April 6, 1903. The defendants Watson and Freshley each filed a demurrer to the petition on the grounds: (1) That it does not state a cause of action; and (2) that more than six years have expired from the time the cause of action, if It ever existed, accrued, and that it was barred by the statute of limitations. These demurrers were sustained, and the case dismissed by the common pleas, and this judg. ment was affirmed by the circuit court. The plaintiff brings error.
William H. Spence, for plaintiff in error. Craine & Snyder, for defendant in error Freshley. David Fording, for defendant in error Watson.
(74 Oh. St. 173)
HOILES V. RIDDLE et al. (Supreme Court of Ohio. May 1, 1906.) LIMITATION OF ACTIONS – CAUSE OF ACTION
ACCRUING AT DEATII OF DEBTOR-APPOINTMENT OF EXECUTOR OR ADMINISTRATOR.
The statute of limitations (sections 4976, 4981, Rev. St. 1906) does not begin to run against a debt based upon a contract not in writing which becomes due by reason of the decease of the debtor, until the appointment of an administrator or executor on the estate of such debtor, and due notice thereof.
[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, S8 427, 431.] (Syllabus by the Court.)
Error to Circuit Court, Columbiana County.
Action by Amanda Hoiles against Lodge Riddle, administrator of Robert Watson, and others. Demurrers to the petition sustained, and plaintiff brings error. Reversed and remanded.
An action was commenced August 29, 1903, by Amanda Hoiles (plaintiff in error) in the court of common pleas of Columbiana against Lodge Riddle, as administrator of Robert Watson, deceased, to recover a money judgment in the sum of $3,310, and interest, against him as such administrator, and William C. Watson, who claims to be an heir of the deceased, and Jacob Freshley, who claims to hold title to certain lands by purchase from the estate. The plaintiff's claim had been presented to the administrator for allowance, but because of a written requisition on him by the defendants Watson and Freshley, accompanied by a statutory bond, was, on August 6, 1903, rejected. In her petition plaintiff declared upon an alleged contract made by plaintiff's father with Robert Watson, deceased, in the year 1863, when plaintiff was an infant two years of age, her mother being deceased, by which, upon the consideration that plaintiff's father would relinquish and surrender the control and possession of plaintiff, and her services, society, and care to said Robert Watson and his said wife, they were to take plaintiff, adopt her, keep, clothe, and provide for her, give her their
SPEAR, J. (after stating the facts). The entire petition is not reproduced in the statement because it was practically conceded at the argument, and such seems to have been the view of the circuit court, that the petition states a cause of action unless the plea of the statute of limitations is fatal to it. But it is insisted by counsel that the cause of action, if one existed, accrued not later than the time of the decease of Robert Watson, and, more than six years having elapsed before commencement of suit, the claim is outlawed, and such was the opinion of the majority of the learned circuit court, as appears by the report of the case. 26 Ohio Cir.. Ct. R. 363, opinion by Cook, J. The opinion pertinently inquires: What is required by a creditor who seeks to enforce a claim under a contract made in this state which accrued at the death of the debtor? Can he remain idle for an indefinite period, although no administration be taken out upon the estate by the next of kin? Or is it the duty of the creditor to be diligent in having an administrator appointed in order to save his claim from the bar of the statute? In this case plaintiff in error took no steps whatever to
save her claim until April 6, 1903, a period of settlement of estates. It is not contended nearly 18 years. If the rule is that the stat that the claim of the plaintiff below is barred ute did not begin to run until an administra- by any provision relating to the settlement tor was appointed, then claims of this nature of estates; nor is it claimed that there is any would never become stale, as in suits at law provision of statute which in terms meets the the statute alone controls as to whether a circumstances of this case, but only that it claim is stale or not. A party might wait, is barred by section 4981 of the Revised as in this case, until all the witnesses to the Statutes of 1906.' To engraft upon the statcontract but one, who was interested as a ute the condition contended for would be father, were dead, and then have an adminis simply a judicial amendment or supplement trator appointed and commence action. Sec to the statute. One feature of the general tion 6005, Rev. St. 1906, gives authority to policy of our statutes is indicated by the the probate court, where the next of kin are terms of section 4989, where it is provided incompetent, or unreasonably neglect to take that, when a cause of action accrues against administration to appoint a creditor, or some a person who is out of the state, or where he person whom the court may think fit. So leaves after the cause accrues, the time he that it was plaintiff's privilege to cause let
is absent shall not be counted. In a suit inters to be issued and then commence her ac volving absence it should be as reasonable to tion. This opportunity was neglected until say, in case it should be made to appear that, long after the statute had run against her although the debtor was himself absent, yet claim, and she ought not now to be heard.
all the time of such absence he had property Concretely stated the holding is that in such within the state reachable by attachment, case the statute runs from the time the cred that fact should require the court to hold itor should have had an administrator ap
that the case presented an exception to the pointed, and not from the time letters were application of the general rule as it is to hold in fact issued. Divers authorities are cited
in this case that the failure by the plaintiff by the learned judge which are believed to
to have an administrator appointed takes the support these views. These, with others, case out of the general rule and defeats the will be found in the reporter's notes.
plaintiff's right to a recovery. One member of the court, Burrows, J.,
We find ourselves in agreement with this maintained a contrary view. He held, in sub
view of the dissenting judge. Let us start stance, that the decision by the majority is with a clear understanding of the exact issue. not based upon any statute which meets the The inquiry is not what rule should apply in circumstances of this case; but the broad a case where the cause of action has already claim is made that the commencement of the accrued, and the question to be answered is period of limitation is not coexistent with simply what will suspend the operation of the time when the right to bring an action
the statute, but what rule is to apply where in fact exists in favor of the creditor, but the right to maintain an action has not yet when by proper steps he might, by other pro
accrued. In cases involving the first inquiry, ceedings, have procured the right to bring interposition is asked of the court to arrest his action. In other words, the statute is to the operation of a statute already in full be judicially amended so that its bar becomes effect; in the other, to breathe life into a effective after six years from the time the statute as yet without vitality. This distinccause of action might have been made to ac tion, in our judgment, eliminates from concrue, and not from the time it in fact did sideration Granger's Adm'r v. Granger, 6 accrue. It seems plain that, unless our courts Ohio, 35, and a large number of cases from are to be governed by the statutes of other
other states cited and relied upon in support states, we have merely to decide whether of the judgment below, some of which may the statute of limitations begins to run when be particularly referred to further on. Statthe right to sue is perfect, or when such utory provisions which are invoked to defeat right does not exist, but may be brought in the plaintiff's claim are section 4976 of the to existence by the act of the creditor. The Revised Statutes of 1906, to the effect that proper answer to this question is that, in the civil actions can only be commenced within absence of a positive provision of the law the periods prescribed in this chapter after depriving a creditor of his right to have pay the cause of action accrues, and 4981, which ment, or exonerating the debtor from the limits the right to commence an action to six duty of making payment, it is not the duty years upon a contract not in writing. When, and not within the power of the courts to add therefore, did the cause of action in this case to the statute of limitations by attaching a accrue? When did it arise? When did it condition to the right to prosecute an action first exist? It seems to be. conceded on all which is not found in the statute itself; that hands that it did not accrue prior to the death to do so would be to exercise legislative of Robert Watson. We cannot conclude that rather than judicial power. The general it accrued at the moment of the decease of statutes limiting the time when actions may Robert Watson, because to do so would be be commenced do not make proyision for the to ignore or overturn a fundamental rule of enforcement of claims against the estates of law, to wit, that, in order to give a right of decedents, and proceedings for the latter pur-action, there must be a party in existence pose are governed by the law regulating the capable of suing and one capable of being
sued, and, as an inevitable consequence of cases are not disapproved in Bauserman v. this principle, if it be applicable, the action Charlott, supra, but it is distinctly stated cannot accrue, and the statute cannot begin in the opinion that "it is not necessary at to run, until there are in existence a person this time to reconsider any of the former who may be plaintiff, and one who may be made decisions of this court." But, more than this, defendant. We understand that this as a it is, we think, a mistake to assume that general rule is conceded, and yet it may not the statute of Kansas respecting the appointbe amiss to call attention to two Ohio cases ment of administrators is in all essential rein which the rule has been distinctly an- spects similar to ours. That statute, as nounced. Taylor v. Thorn, 29 Ohio St. 569, above shown, enjoins upon the widow or 574; Treasurer v. Martin, 50 Ohio St. 197, next of kin a duty to procure administration 33 N. E. 1112.
within 50 days from the death of the deceIt is true, as insisted by counsel for de. dent. No such duty is enjoined by our statfendants in error, that in a number of states ute. By section 6005, if the widow and next the courts have held that, where it is within of kin are incompetent or evidently unsuittue power of a claimant to have a personal able, or if they neglect without sufficient representative appointed, a reasonable time cause to take administration, the court may only in which to secure such appointment is appoint a creditor, or any competent person, allowed, after which the statute will run; but there is no limit defined by statute, unless but in a large proportion of these cases, if it is found in section 6014, which provides not all of them, the cause of action had ac- that administration shall not be originally crued before the decease of the debtor, and granted as of right after the expiration of the statute was therefore running at the 20 years from the death of the deceased. time of such decease. Those cases present It would seem not unreasonable to assume the question of what will suspend the opera- that the language of the Kansas statute imtion of the statute after it has commenced plies a different intent from that to be guthto run, and not what will start it to running. ered from the sections of our statute bear: Bauserman, Adm'r, v. Charlott, 46 Kan. 480, ing on the subject. 26 Pac, 1051, is of this character. Charlott's But there is still another view of this judgment, which was the basis of his action, situation. The holding of the circuit court had been obtained long before the death of is really put upon an equitable ground, a the judgment debtor, and the statute of limi- ground in the nature of an estoppel. The tations was then running. The statute of plaintiff, says the court, has been guilty of Kansas in force permitted the judgment laches, in that she failed to avail herself creditor, in case the widow or next of kin of the means within her power to preserve neglected to take out letters for 50 days after her claim. May not this criticism apply the death of the decedent, to obtain such also to the parties of the other side, Watson, letters for himself, or some other person, the heir, and Freshley, the purchaser? Did and the court held that the statute continued they not omit to do that which they might to run notwithstanding the decease of the easily have done to protect their titles? By debtor, and, the statutory limit having ex- the procurement of letters of administration, pired, the debt was barred. We have a dif- and due notice, Watson could easily have ferent case. Two other decisions of the same caused the statute to begin to run against court more nearly resemble our case in prin- the plaintiff's claim, and Freshley could easiciple. In Carney V. Havens, Adm'r, 23 Kan. ly have refused to buy until that had been 82, opinion by Brewer, J. (now of the United done, and we think it. reasonable to assuvie States Supreme Court), the holding is that, that the law in this respect is as likely to "where services are performed under a single have been known by these men as that the and entire contract, in the absence of stipu- law with respect to the appointment of an adlations to the contrary, payment is not due ministrator was known to the plaintiff, a until the services are fully performed and woman. From a business standpoint, it was the contract completed, and if, pending such negligence on the part of these men to take a contract, the party employed to render the the chances with respect to their titles, and services dies, the statute of limitations does it would seem not unfair in matching up not begin to run on the claim for compensa- equities to leave them where they have put tion until, by the appointment of an adminis- themselves. Of course, however, it is undertrator or executor, there is some one au- stood that we are dealing with a suit at thorized to collect and receive the compensa- law, and not with an equitable action, and, tion.” This ruling was followed in Mills v. as the majority opinion itself says, “in suits Mills, 43 Kan. 699, 23 Pac. 944, where the at law the statute of limitations alone conholding is that, "where a cause of action trols as to whether a claim is stale or not." upon an agreement does not accrue until af- There is to be found, here and there, lanter the death of one of the parties, the stat- guage in decisions and by text authors wbich ute of limitations will not begin to run on the would imply that the judgment of the writclaim of the estate of the deceased upon such ers is opposed to the conclusion we have agreement until an administrator or executor reached and which is hereinbefore announauthorized to collect or enforce the payment ced. But we think such is not the trend of of the claim has been appointed.” These judicial opinion, and we cite in support of
this statement additional authorities : Ange! OL Lim., c. 7; Wood on Lim. $ 6; Murray v. East India Co., 5 B. & A. 204; Andrews v. Hartford R. R. Co., 34 Conn. 57; Hobart v. Turnpike Co., 15 Conn. 145; In re Bullard, 116 Cal. 355, 48 Pac. 219; Marsteller v. Marsteller, 93 Pa. 350; Riner v. Riner, 166 Pa. 617, 31 Atl. 347, 45 Am. St. Rep. 693; Parks v. Norris, 101 Mich. 71, 59 N. W. 428; Baird v. Reynolds, 99 N. C. 469, 6 S. E. 377; McCollough v. Speed, 3 McCord (s. C.) 4.55.7; Benjamin v. De Groot, 1 Denio (N. Y.) 151; Sorrels V. Trantham, 48 Ark. 386, 3 S. W. 198, 4 S. W. 281.
Our conclusion is reached only because we are of opinion that the court is without authority to supplement the statute, and not because we think the statute wise in this respect. Indeed, we are inclined to agree with the court in Riner v. Riner, supra, that the present condition of the statute leaves a way open by which estates may be imposed upon, and that an amendment providing that, in a case like the present, the statute shall commence to run from the death of the decedent, or within a fixed time thereafter, would be in the interest of justice. But this is for the General Assembly, and not for the courts.
The judgment will be reversed, and the cause remanded, with direction to overrule the demurrer to the petition and for further proceedings according to law.
tions," as so used, was a legal equivalent of "conditions," and therefore authorized the board to impose limitations on the full and unqualified enjoyment of the right to use the streets so granted. 4. SAME-STATUTES-OBLIGATION TO PAVE AND MAINTAIN-POWER OF ALDERMEN.
Pub. St. c. 113, § 7, provides that the board of aldermen of a city or the selectmen of a town may grant an order for the location of a street railway "under such restrictions as they deem the interests of the public may require," and section 32 provides that every street railway shall keep in repair the paving, upper planking, or other surface material of the portions of the streets occupied by its tracks and in addition a space 18 inches on each side of the portion so occupied, etc. Held, that section 7 should be treated as supplementary to section 32 and as conferring jurisdiction on the board of aldermen to impose a condition on the grant of a street railway location that the railway company shall pave and maintain the street to an extent greater than that prescribed in section 32. 5. SAME-STATUTES-REPEAL_EFFECT.
Pub. St. 1898, p. 748, c. 578,, § 26, repealing chapter 113, § 7, with reference to the granting of street railway locations by cities, declared (section 11, p. 742) that street railway companies shall remain subject to all legal obligations imposed in their original grants, and reference was again made in section 13 (page 743), which ratified and confirmed all previous locations which were given validity as if granted under the repealing act. Held, that the repeal of section 7 did not terminate the obligation of a company to pave and maintain streets imposed by a location grant previously made under the repealed section.
PRICE, CREW, SUMMERS, and DAVIS, JJ., concur.
Case Reserved from Supreme Judicial Court, Worcester County; Jas. M. Barker, Judge.
Bill by Walter H. Blodgett and others, mayor and aldermen of Worcester, to compel the Worcester Consolidated Street Railway Company to keep in repair certain surface material in streets in such city. Case reserved for full court Judgment for plaintiffs.
Arthur P. Rugg, for petitioners. Warren & Garfield and Clement R. Lamson, for respondent.
(192 Mass. 106) BLODGETT et al. v. WORCESTER CON
SOL. ST. RY. CO. (Supreme_Judicial Court of Massachusetts.
Worcester. May 17, 1906.) 1. STREET RAILROADS-RIGHTS IN STREETSREPAIR LIABILITY-ESTOPPEL.
That a street railway company complied with an order requiring it to lay and maintain paving within certain streets according to certain specifications did not estop it to thereafter contest the legality of the order. 2. SAME-ORDER-CONSTRUCTION.
An order required a street railway company to lay and maintain paving in certain streets and to assume the expense of paving where the streets were unpaved, either for the full width of two streets and between the track, or between the tracks and for a limited distance outside the rails as to the remaining streets, and also to repave with the same material the streets already paved, the surface of which would have to be removed in the construction of the road. Held, that the general provision requiring the company to lay and maintain paving was not limited to paving only, and did not exclude the cost of subsequent maintenance. 3. SAME-STATUTES-CONSTRUCTION.
Pub. St. c. 113, § 7, relating to street railway locations authorized the board of aldermen and selectmen of towns to grant original locations to street railway companies subject to such "restrictions" as they deemed the public interest required. Held, that the word “restric
BRALEY, J. The demurrer admits the substantial allegations of the bill, by which without rehearsing its entire statutory title the respondent is described as a corporation duly organized to operate, and actually operating a system of street railways a part of which is located within the municipal limits of the city of Worcester. By purchase it has lawfully succeeded to all the rights and franchises formerly granted to the Worcester, Leicester & Spencer Street Railway Company, one of its predecessors in title. Sp. Laws Mass. 1893, p. 976, c. 338; St. 1897, p. 241, c. 269. At the date of transfer the tracks of this railway were laid, and the road operated in the pubilc ways described in the bill under an original location regularly granted by the board of aldermen subject to certain restrictions, which among other provisions not involved in the present controversy, required the company to lay and maintain paying within these streets accord.