the $50,000 policy was worth more than was | have not been disposed of by the creditor in realized at the sale. But the $2,622.75 loan accordance with his contract that the court covered the next ensuing premiums on the may direct what shall be done in the prempolicies with interest; and the $7,000 paid ises. Of course, where there is fraud or a for the $50,000 policy with interest and the proceeding contrary to the contract, the inpremiums of February, 1904, 1905, 1906, terposition of the court might properly be 1907, and 1908, with interest, and the last invoked. premium, would appear to have aggregated a total cost of $21,346.50; while, if resort could be properly had to the record in another case to piece out the evidence in this, the opinion in Hiscock v. Mertens, decided March 25, 205 U. S. 202, 51 L. ed. 771, 27 Sup. Ct. Rep. 488, states that the evidence showed that this particular policy had a surrender value of $6,574. And as to the $10,000 policy no suggestion was made that the $3,250 was not a full price or even more, nor could there be in reason, for as Ray, J., said, Re Mertens, 131 Fed. 972, it "had become a simple life policy, payable to the wife of the assured, if living at his death; if not living, to his children, if any; and, in default of child or children, to the personal representatives of the assured. This policy concededly is so conditioned and encumbered, and the interest of the trustee therein, if any, is so remote and uncertain, that it is of no practical value to the estate." Clearly, there is nothing on the face of the record to justify a charge of fraud on account of inadequacy.

Section 57h provides: "The value of securities held by secured creditors shall be determined by converting the same into money according to the terms of the agreement pursuant to which such securities were delivered to such creditors or by such creditors and the trustee, by agreement, arbitration, compromise, or litigation, as the court may direct, and the amount of such value shall be credited upon such claims, and a dividend shall be paid only on the unpaid balance. [30 Stat. at L. 560, chap. 541, U. S. Comp. Stat. 1901, p. 3443.]

The court was by this subdivision empowered to direct a disposition of the pledge, or the ascertainment of its value, where the parties had failed to do so by their own agreement. It is only when the securities

According to the terms of the bankrupt act, the title of the bankrupt is vested in the trustee by operation of law as of the date of the adjudication. Act of 1898, § 70a,e. By the act of 1867 [14 Stat. at L. 522, chap. 176] it was provided that as soon as an assignee was appointed and qualified the judge or register should, by instrument, assign or convey to him all of the property of the bankrupt, and such assignment shall relate back to the commencement of the proceedings in bankruptcy, and, by operation of law, shall vest the title to such estate, both real and personal, in the assignee. But § 70a of the act of 1898 omits the provision that the trustee's title "shall relate back to the commencement of the proceedings in bankruptcy," and explicitly states that it shall vest "as of the date he was adjudged a bankrupt." When the petition in the present case was filed the bank had a valid lien upon these policies for the payment of its debt. The contracts under which they were pledged were valid and enforceable under the laws of New York, where the debt was incurred and the lien created. The bankruptcy act did not attempt, by any of its provisions, to deprive a lienor of any remedy which the law of the state vested him with; on the other hand, it provided, § 67 d: "Liens given or accepted in good faith, and not in contemplation of, or in fraud upon, this act, and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall not be affected by this act."

Mueller v. Nugent, 184 U. S. 1, 46 L. ed. 405, 22 Sup. Ct. Rep. 269, is not to the contrary, as explained in York Mfg. Co. v. Cassell, 201 U. S. 344, 50 L. ed. 782, 26 Sup. Ct. Rep. 481.

Judgment affirmed.

ERROR

OUISA SAUER Gertrude Car George W. IN State or to the Supreme Court of the

Crane, Individually and as Administratrix of Sauer, Deceased, et al., Plffs. in Err.,

v.

CITY OF NEW YORK.

Error to state court-following state court decisions.

ment entered pursuant to the mandate of the Court of Appeals of that state, which had affirmed a judgment of the Appellate Division of the Supreme Court, First Department, which had in turn affirmed a judgment of a Special Term of the Supreme Court held in and for the county of New York, dismissing the complaint in an action by an abutting owner to enjoin the city of New York from maintaining an elevated iron viaduct in a city street, or, in the alternative, for the recovery of damages. Affirmed.

1. The decisions of the highest court of a state that an owner of land abutting on a city street has no easement of light, air, and access as against the public use of the street, or any structure which may be erected thereon to subserve and promote that public use, are conclusive upon the Supreme Court of the United States, when determining, on writ of error to the state court, whether such abutting owner has been deprived of his property without due process of law by the erection in the street of an elevated iron viaduct for general public use under the authority of a statute which makes no provision for compensation to abutting owners. * Constitutional law-due process of law-plaintiffs in error (hereafter called the erection of viaduct in city street.

2. An abutting owner is not deprived of his property without due process of law by the erection by a municipality in a city street, under the authority of a statute which makes no provision for compensation to abutting owners, of an elevated iron viaduct for general public use, by which travelers are enabled to use such street in connection with other streets from which it has previously been disconnected, where, under the law of the state as laid down by its highest court, abutting owners have no easement of light, air, or access as against any improvement of the street for the purpose of adapting it to public travel. Constitutional law-impairment of contract obligations-change of judicial decision.

3. Contract rights are not unconstitutionally impaired by a decision of the state court which denies compensation to an abutting owner for the erection by a mu nicipality in a city street of an elevated iron viaduct for general public use, by which travelers are enabled to use such street in connection with other streets from which it had previously been disconnected, where that court, although it had held before such abutting owner acquired his title that the contract of the owner of land abutting on city streets entitled him to the right of unimpaired access and uninterrupted circulation of light and air as against an elevated structure erected for the exclusive use of a private corporation, had carefully refrained from holding that he had the same right as against a similar structure erected for the purpose of public travel, and had pointed out plainly the essential distinction between the two cases.

[No 130.]

Argued December 12, 13, 1906. Ordered for reargument January 7, 1907. Reargued March 21, 1907. Decided May 27, 1907.

See same case below in Appellate Division, 90 App. Div. 36, 85 N. Y. Supp. 636; in Court of Appeals, 180 N. Y. 27, 70 L.R.A. 717, 72 N. E. 579.

Statement by Mr. Justice Moody:

George W. Sauer, the intestate of the

plaintiff), became, on July 1, 1886, the owner in fee simple of a parcel of land on the corner of One Hundred and Fifty-fifth street and Eighth avenue, in the city of New York. There was then upon the land a building used as a place of public resort. The city of New York was and is the owner of the fee of One Hundred and Fifty-fifth street and Eighth avenue, which it holds in trust for the public for high

ways.

referred to One Hundred and Fifty-fifth Before the passage of the act hereinafter street had been graded from Eighth avenue in a westerly direction, until it reached a high, and, for street sues, impassable, bluff, on the summit of which ran St. Nicholas place, a public highway. The street, as laid out on the records, ascends the bluff, and continues westerly to the Hudson river. It extends easterly to the Harlem river at a point where the river is bridged by McComb's Dam bridge.

In 1887 the legislature of the state of New York enacted a law which authorized the city of New York, for the purpose of improving and regulating the use of One Hundred and Fifty-fifth street, to construct over said street from St. Nicholas place to McComb's Dam bridge an elevated iron viaduct for the public travel, with the proviso that no railways should be permitted upon it. There was no provision for damages to the owners of land abutting on the street. Subsequently the viaduct was constructed, resting upon iron columns placed in the roadway. The surface of the viaduct consisted of asphalt and paving blocks laid on iron beams. Opposite the plaintiff's land it is 63 feet wide and about 50 feet above the surface of the original street, which, except

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 950-971.

as interfered with by the viaduct, remains | crossed the river at that point, impossible. unobstructed for public travel. At the Under legislative authority the city conjunction of the street with Eighth avenue structed, solely for public travel, a viaduct it is widened into a quadrangular platform, over One Hundred and Fifty-fifth street, 80 by 160 feet in extent. Near the plain- beginning at the bridge and thence running tiff's land the viaduct may be reached by with gradual ascent to the top of the bluff. a stairway. By the construction and main- This viaduct enabled travelers to use One tenance of the viaduct the plaintiff's access Hundred and Fifty-fifth street, in connecto his land and the free and uninterrupted tion with other streets of the city, from use of light and air have been impaired, and which it had previously been disconnected. the value of his property has been decreased The viaduct rested upon columns planted in by reason of the dust, dirt, and noise oc- the street, and they, and the viaduct itself, casioned by the structure. This action was to a material extent, impaired the plainbrought to enjoin the defendant from main- tiff's access to his land and the free admistaining the viaduct, or, in the alternative, sion to it of light and air. The plaintiff, for the recovery of damages caused by it. in his complaint, alleged that this structure There was judgment for the defendant by was unlawful, because the law under which the supreme court, affirmed by the appel- it was constructed did not provide for comlate division and the court of appeals. 180 pensation for the injury to his private propN. Y. 27, 70 L.R.A. 717, 72 N. E. 579. After erty in the easements of access, light, and the last decision the case was remitted to air, appurtenant to his estate. The court the supreme court, where there was final of appeals denied the plaintiff the relief judgment for the defendant, and it is now which he sought, upon the ground that, unhere on writ of error under the claim that- der the law of New York, he had no easeFirst. Plaintiff has been deprived of his ments of access, light, or air, as against any property without due process of law, in improvement of the street for the purpose violation of § 1 of the 14th Amendment to of adapting it to public travel. In other the Constitution of the United States; and words, the court in effect decided that the Second. That the act under which the property alleged to have been injured did viaduct was constructed, as construed by not exist. The reasons upon which the dethe court, impairs the obligation of a con- cision of that court proceeded will appear tract, in violation of § 10, article 1, of by quotations from the opinion of the the Constitution of the United States. court, delivered by Judge Haight. Judge Haight said:

Messrs. Abram I. Elkus and Carlisle J. Gleason for plaintiffs in error.

"The fee of the street having been acquired according to the provisions of the

Messrs. Theodore Connoly and Terence statute, we must assume that full compenFarley for defendant in error.

Messrs. Henry B. Anderson and Chandler P. Anderson for certain property owners similarly situated.

Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court:

The acts of the defendant for which the plaintiff sought a remedy in the courts of New York may be simply stated. The plaintiff owned land with buildings thereon situated at the junction of One Hundred and Fifty-fifth street and Eighth avenue, two public highways, in which the fee was vested in the city upon the trust that they should be forever kept open as public streets. As One Hundred and Fifty-fifth street was graded at the time the plaintiff acquired his title, it was isolated to a considerable extent from the street system of the city. Its west end ran into a high and practically impassable bluff, which rendered further progress in that direction impossible. The east end ran to the bank of the Harlem river at a grade which rendered access to McComb's Dam bridge, which

sation was made to the owners of the lands through which the streets and avenues were laid out, and that thereafter the owners of lands abutting thereon hold their titles subject to all of the legitimate and proper uses to which the streets and public highways may be devoted. As such owners they are subject to the right of the public to grade and improve the streets, and they are presumed to have been compensated for any future improvement or change in the surface or grade rendered necessary for the convenience of public travel, especially in cities where the growth of population increases the use of the highways. The rule may be different as to peculiar and extraordinary changes made for some ulterior purposes other than the improvement of the street, as, for instance, where the natural surface has been changed by artificial means, such as the construction of a railroad embankment, or a bridge over a railroad, making elevated approaches necessary. But as to changes from the natural contour of the surface, rendered necessary in order to adapt the street to the free and easy passage of the public, they may be

over

lawfully made without additional compen- | 52, 27 L.R.A. 551, 20 S. E. 895 (cited with sation to abutting owners, and for that pur- apparent approval by this court in Meyer pose bridges may be constructed v. Richmond, 172 U. S. 82-95, 43 L. ed. 374streams and viaducts over ravines, with ap- 379, 19 Sup. Ct. Rep. 106); Willets Mfg. proaches thereto from intersecting streets. Co. v. Mercer County, 62 N. J. L. 95, 40 In the case under consideration, as Atl. 782; Brand v. Multnomah County, 38 we have seen, One Hundred and Fifty-fifth Or. 79, 50 L.R.A. 389, 84 Am. St. Rep. 772, street continued west to Bradhurst avenue. 60 Pac. 290, 62 Pac. 209; Mead v. Portland, There it met a steep bluff 70 feet high, on 45 Or. 1, 76 Pac. 347 (Affirmed by this court the top of which was St. Nicholas place. in 200 U. S. 148, 50 L. ed. 413, 26 Sup. Ct. The title of the street up the bluff had been Rep. 171); Sears v. Crocker, 184 Mass. 588, acquired and recorded, but it had never 100 Am. St. Rep. 577, 69 N. E. 327; been opened and worked as a street. The (Semble) DeLucca v. North Little Rock, 142 bluff was the natural contour of the sur- Fed. 597. face, and, for the purpose of facilitating easy and safe travel of the public from St. Nicholas place to other portions of the city, the legislature authorized the construction of the viaduct in question. It is devoted to ordinary traffic by teams, vehicles, and pedestrians. It is prohibited for railroad purposes. It is one of the uses to which public highways are primarily opened and devoted. It was constructed under legislative authority, in the exercise of governmental powers, for a public purpose. It is not, therefore, a nuisance, and the plaintiff is not entitled to have its maintenance enjoined or to recover in this action the consequential damages sustained."

The case of Willis v. Winona is singularly like the case at bar in its essential facts. There, as here, a viaduct was constructed, connecting by a gradual ascent the level of a public street with the level of a public bridge across the Mississippi. An owner of land abutting on the street over which the viaduct was elevated was denied compensation for his injuries, Mr. Justice Mitchell saying:

"The bridge is just as much a publichighway as is Main street, with which it connects; and, whether we consider the approach as a part of the former or of the latter, it is merely a part of the highway. The city having, as it was authorized to do, established a new highway across the Mississippi river, it was necessary to connect it, for purposes of travel, with Main and the other streets of the city. This it has done, in the only way it could have been done, by what, in effect, amounts merely to raising the grade of the center of Main street in front of plaintiff's lot. It can make no difference in principle whether this was done by filling up the street solidly, or, as in this case, by supporting the way on stone or iron columns. Neither is it important if the city raise the grade of only a part of the street, leaving the remainder at a lower grade.

The plaintiff now contends that the judgment afterwards rendered by the supreme court of New York, in conformity with the opinion of the court of appeals, denied rights secured to him by the Federal Constitution. This contention presents the only question for our determination, and the correctness of the principles of local land law applied by the state courts is not open to inquiry here, unless it has some bearing upon that question. But it may not be inappropriate to say that the decision of the court of appeals seems to be in full accord with the decisions of all other courts in which the same question has arisen. The state courts have uniformly held that the erection over a street of an elevated viaduct, intended for general public travel, and not devoted to the exclusive use of a private transportation corporation, is a legitimate street improvement, equivalent to a | a highway, any establishment or change of change of grade; and that, as in the case of a change of grade, an owner of land abutting on the street is not entitled to damages for the impairment of access to his land and the lessening of the circulation of light and air over it. Selden v. Jacksonville, 28 Fla. 558, 14 L.R.A. 370, 29 Am. St. Rep. 278, 10 So. 457; Willis v. Winona City, 59 Minn. 27, 26 L.R.A. 142, 60 N. W. 814; Colclough v. Milwaukee, 92 Wis. 182, 65 N. W. 1039; Walish v. Milwaukee, 95 Wis. 16, 69 N. W. 818; Home Bldg. & Conveyance Co. v. Roanoke, 91 Va.

"The doctrine of the courts everywhere, both in England and in this country (unless Ohio and Kentucky are exceptions), is that so long as there is no application of the street to purposes other than those of

grade made lawfully, and not negligently
performed, does not impose an additional
servitude upon the street, and hence is not
within the constitutional inhibition against
taking private property without compensa-
tion, and is not the basis for an action for
damages, unless there be an express stat-
ute to that effect. That this is the rule,
and that the facts of this case fall within
it, is too well established by the decisions.
of this court to require the citation of au-
thorities from other jurisdictions.
"The New York elevated railway cases

cited by plaintiff are not authority in his | sional regulation, the jurisdiction included favor, for they recognize and affirm the any power to correct any supposed errors very doctrine that we have laid down (Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146), but hold that the construction and maintenance on the street of an elevated railroad operated by steam, and which was not open to the public for purposes of travel and traffic, was a perversion of the street from street uses, and imposed upon it an additional servitude, which entitled abutting owners to damages."