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was shown that the bank kept a record of all | Paraguayan Investigation, of which Mr. Orth, notes discounted by it, and that no entry of the decedent, was a member, showing that that kind was made of discounting this note, Mr. Orth was present with the said commitas a circumstance tending to show that the tee at its sittings, and participating in the note never was discounted by the bank. This investigation. The document, as it appears would have been proper evidence to have in the record, is in book form, unbound, concorroborated Brockenborough if he had sworn taining 364 pages. The only proof or idenof his own knowledge that the note had tification of it is what appears in the book never been discounted at the bank. It is not itself, upon the first page. It is entitled as seeking to prove entries made, but to show follows: “41 Congress, 2nd Session. House the reverse of it,—that no entry was made of Representatives. Report No. 65. ParaThere was no error in overruling the objec- guayan Investigation. May 5th, 1876. Ortion.
dered to be printed, and recommitted to the The next error discussed is overruling of committee on foreign affairs. Mr. Orth, a motion to strike out the answer of the de- from the committee on foreign affairs, made fendant's witness H. A. Orth to the follow the following report.” The question is preing question: “What day of the month did sented as to the admissibility of this docuthey commence the investigation ?” meaning ment, pamphlet, or book in evidence. the Paraguayan investigation; the answer be- purports to be a printed copy of a report of a ing, “The 21st day of October.” Appellant's subcommittee of the house of representatives, attorney then asked the witness the follow- but it is in no way authenticated. It is not ing questions, to which he answered: “Are certified to by any officer. It is not identiyou stating this from your own knowledge?” fied by any testimony. It is not even identiand he answers: "I am stating it from my fied by the journal of the house, nor does it own knowledge, having refreshed my mem-purport to be incorporated in or a part of the ory. I know that he was there about that authenticated journal. We are not cited by time. Question. You state part of it from counsel to any authority holding such a docmemory and part from some other source?ument as this, coming to the court in the Answer. Yes, sir.” Thereupon the appel- manner this is presented, as competent evilant moved to strike out the testimony, “be- dence. It is not even a publication required cause it is not all from his memory, and the to be made or a record required to be kept by source of his refreshment to his memory does the house of representatives. It is not such not appear." We do not think there was er- a document as is entitled to admission, and ror in overruling the motion to strike out the under no rule of law is it admissible, and the answer. We think the fair import of the court erred in admitting it in evidence. testimony, as shown by those questions and 1 Whart. Ev.$$ 637, 638; Fitler v. Shotwell, answers to which we are cited by counsel in 7 Watts & s. 14; Brown v. Hicks, 1 Ark. his brief, is that the witness, having re- 232; Haile v. Palmer, 5 Mo. 403. For this freshed his memory, testified of his own error the judgment must be reversed. The knowledge as to the date of the commence other questions presented may not arise on a ment of the investigation, and counsel had retrial of the cause, and it is unnecessary to an opportunity to inquire into the source of consider them. Judgment reversed, at costs the witness' information; and until he did of appellee. make such inquiry, and developed the fact
(120 Ind. 596) that the source of information was improper,
NOWLIN et al. v. WIIIPPLE et ux. or counsel had been denied the privilege of inquiring into the source of information, he
(Supreme Court of Indiana. Nov. 6, 1889.) could not insist on the evidence being struck
EASEMENTS-IRREVOCABLE LICENSE. out because the source from which the wit Where an agreement to erect gates and ness refreshed his memory did not appear. of way over the land has been fully complied
maintain division fences in consideration of a right We do not think the objection made to the with, and the way used for over 30 years, the testimony was well taken in the motion to license becomes irrevocable. strike it out.
Appeal from circuit court, Dearborn coun. The next alleged error is the admission in ty; W. H. BAINBRIDGE, Judge. evidence of a part of a document which purports to be “The Report of the Paraguayan ton Dandy, for appellees.
Roberts & Stapp, for appellants. CreighInvestigation.” Appellees contended that the decedent was absent from the city of La MITCHELL, J. This was an action by AnFayette, and in the cities of Washington and nie E. Nowlin and others against Luman C. New York, at the time the note matured; Whipple and his wife, Nancy Whipple, the and when it was claimed the decedent had purpose of the suit being to obtain a decree talked with Behm at his office in the city of perpetually enjoining the defendants from La Fayette about its payment, and directed using an alleged private way over a tract of him to induce the appellant to take up the land which the plaintiffs own as tenants in note and hold it against him, the said dece- common. Nancy Whipple is the owner of a dent, and for the purpose of showing the 50-acre tract of land, and she and her cowhereabouts of the decedent, and his absence defendant assert a right to a drive-way 12 from La Fayette, appellees offered in evi- feet wide, and about 1,000 feet in length, dence what purported to be the Report of the across the plaintiffs' land, in order to gain
access to the above-mentioned tract, which Cloud, 42 Pa. St. 102; McArthur v. Carrie, they cultivate. The facts pleaded and proved 32 Ala. 75. The answer shows affirmatively are substantially as follows: Prior to 1836 that the defendants, after having used the both tracts of land involved in the present way for a period less than 20 years, continued suit were the property of Ezekiel Jackson, to use it for more than 30 years afterwards who died about that time. The tract now under an agreement with the owner. This owned by the plaintiffs was inherited by and constituted a permissive use under a license. set off to the decedent's son, Jeremiah, and Such a use cannot be adverse, and will not that owned by Mrs. Whipple, who is a daugh- serve as the basis of a prescriptive right. ter of Ezekiel Jackson, was acquired by her Shellhouse v. State, 110 Ind. 509, 11 N. E. in like manner. While the land was thus Rep. 484. A general right, as by prescripowned by Mrs. Whipple and her brother the tion, cannot be maintained by alleging and Whipples used the drive-way in question. proving a particular or permissive right. In 1853 the first-named tract became the Parish v. Kaspare, supra; Pentland v. Keep, property of Jeremiah Nowlin, who agreed 41 Wis. 490; Turnpike Co. v. Piper, 77 Pa. with the Whipples that if they would erect St. 432; 9 Amer. & Eng. Cyclop. Law, 367. and maintain gates at each end of the drive The answer stated facts sufficient to show way, and look after the division fence, they an irrevocable license. After the way had might continue to use the way perpetually been used for a long time--less than 20 across his land in order to reach their tract. years, however- there was an agreement, The gates were erected and the agreement founded on a valuable consideration, that the otherwise complied with. There was some defendants should enjoy a perpetual e:isement evidence tending to show that Jeremiah or right of way over the land. While it is Nowlin was one of the commissioners who well established that a mere naked license to made partition of the land between the Jack- use the land of another is revocable at the son heirs, and that in adjusting their shares pleasure of the licensee, yet where a consida right of way had been given in favor of the eration has been paid, or value parted with, 50-acre tract over that owned by the plain on the faith that the license shall be perpettiffs, and that the way in dispute had been ual, it cannot be revoked to the injury of the used continuously, under a claim of right, licensee. Snowden v. Wilas, 19 Inc. 10; for 40 years or more prior to 1885, when the Robinson v. Thrailkill, 110 Ind. 117, 10 N. plaintiffs, the descendants of Jeremiah Now- E. Rep. 647, and cases cited. An executed lin, sought to prevent the further use of the paroi license may become an easement upon way.
the land of another, and may impose a serviThe question now is whether, upon the tue on one tenant or estate in favor of anforegoing facts, the judgment of the court other doininant estate. Dark V. Johnston, denying the injunction can be maintained. 55 Pa. St. 164; 6 Amer. & Eng. Cyclop. Law, To establish an easement or private way by | 142; Washb. Easem. 24. Where a parol prescription over the land of another it must license has been executed and acted upon, appear that the way was used continuously and expense incurred in perfecting an easefor a period of 20 years, adversely to th-own- ment over the land of another in reliance on er, under a claim of right, and that the own- the license, it cannot afterwards be revoked er acquiesced in such use. McCardle v. Bar- without placing the licensee in statu quo. ricklow, 68 Ind. 356; Parish v. Kaspare, 109 Woodbury v. Parshley, 7 N. H. 237. The Ind. 586, 10 N. E. Rep. 109; Hill v. Haga- defendants erected and maintained gates at man, 84 Ind. 287. Adverse user is such a their own expense, upon the faith of an agreeuse of the property as the owner himself ment that they were to have a perpetual would exercise, disregarding the claims of easement to pass over the plaintiffs' lands. others entirely, asking permission from no This agreement having been fully executed one, and using the property under a claim of and acquiesced in by the parties who made it right. Such a use of property, continued for more than 30 years, a court of equity will without interruption for a period of 20 years not now permit the license to be revoked. or more, is equivalent to a grant. Roots v. There was no error. The judgment is afBeck, 109 Ind. 472, 9 N. E. Rep. 698; Blanch-firmed, with costs. ard v. Moulton, 63 Me. 434. Where it appears that one has enjoyed a right of way
(117 N. Y. 1) over the land of another for a period of 20
PEOPLE V. BUDD. years or more, such enjoyment, without evidence as to how it began, is presumed to (Court of Appeals of New York. Oct. 8, 1889.) have been in pursuance of a grant, and the ConstiTUTIONAL LAW-POLICE Power-ELEVATOR
CHARGES-HARMLESS ERROR. burden of showing the contrary lies on the
1. Act N. Y. 1888, c. 581, § 1, fixes the maxi. owner of the land. The presumption which mum charge for receiving, weighing, and disarises from proof of uninterrupted adverse charging grain by means of elevators at fiveuse for the required period is that there was eighths of a cent a bushel, and for trimming and a grant, and this presumption can only be ual cost," and a violation of the act is made a mis
shoveling grain to the leg of the elevator,“ the acto overturned by proof that the use was by per- demeanor. The act is restricted to cities of not mission, or in some other way not inconsist- less than a certain population, which includes only ent with the rights of the owner of the land. cereals of the country passes from the Great Lakes
three cities. A largo proportion of the surplus Garrett v. Jackson, 20 Pa. St. 331; Pierce v. through the elevators of one of these cities, froda
whence it passes through the Erie canal and Hud- dicted for a violation of the act of 1888. The son river to the seaboard. The area on which ele- indictment contains a single count, charging vators may be erected in that city is limited, they are expensive, and are indispensable in transshipping a violation of the first section in two particgrain, thus affording great facility for a monopoly: ulars, viz., in exacting more than the statute Held that the business of elevating grain is so af- rate for elevating the cargo, and exacting fected with a public interest that the act is within the police power of the state, and is not unconsti- more than the actual cost for shoveling the tutional as depriving elevator owners of property grain to the leg of the elevator. without due process of law. GRAY and PECKHAM, Before reaching the main question there is JJ., dissenting.
a subordinate question to be considered. The 2. The provision that actual cost” only shall be charged for trimming and shoveling cannot be defendant on the trial raised the question of evaded by the elevator owner's hiring his shovel the constitutionality of the act of 1888, and ing apparatus to others, and receiving out of the also insisted that, as to the alleged overcharge amount charged for its use such sum as may be for shoveling, the facts did not show that the agreed on between him and the hirers.
3. Where, .on trial for violating the act, it was defendant had received anything for that undisputed that defendant charged an illegal rate service, or that the cargo had been charged for elevating grain, and a conviction was followed more than the actual cost, and excepted to by the infliction of the lowest penalty for a single the subidission to the jury of that branch of offense, a refusal to withdraw from the jury an allegation of overcharge for trimming and shoveling the case. The trial judge overruled both was not prejudicial error, though such allegation points, and submitted the case to the jury in were not proven.
both aspects, who found a general veruict of Appeal from supreme court, general term, guilty, and thereupon the court imposed upfifth department.
on the defendant a fine of $250. It is now Spencer Clinton, for appellant. George T. urged that, assuming the constitutionality of Quinby, for the People.
the act of 1888, the judgment should be re
versed, for the reason that no overcharge by ANDREWS, J. The main question upon the defenılant for shoveling was proved, and this record is whether the legislation fixing also that the sum paid for shoveling was paid the maximum charge for elevating grain, to the Shovelers' Union, the defendant oniy contained in the act, (chapter 581, Laws receiving thereout, from the union, the rent 1888,) is valid and constitutional. The act, agreed for the use of the steam-shovel. There in its tirst section, fixes the maximum charge are two answers to this proposition. The for receiving, weighing, and discharging words “actual cost” used in the statute, were grain by means of floating and stationary ele- manifestly intended to exclude any charge by vators and warehouses in this state at five- the elevator beyond the sum specified for the eighths of one cent a bushel, and for trim- use of its machinery in shoveling, and the ming and shoveling to the leg of the elevator, ordinary expenses of operating it, and to conin the process of handling grain by means of fine the charge to the actual cost of the outelevators, “lake vessels, or propellers, the side labor required for trimming and bringing ocean vessels or steam-ships, and canal the grain to the leg of the elevator. The purboats," shall, the section declares, only be re- pose of the act could be easily evaded and dequired to pay the actual cost. The second feated if the elevator owners were permitted section makes a violation of the act a miscie- to separate the services, and charge for the meanor, punishable by fine of not less than use of the steam-shovel any sum which might $250. The third section gives a civil remedy be agreed upon between themselves and the to a party injured by a violation of the act. Shovelers' Union, and thereby, under color The fourth section excludes from the opera- of charging for the use of the steam-shovel, tion of the act any village, town, or city hav- exact of the carrier a sum for elevating being less than 130,000 population. The de- yond the rate fixed by the act. fendant, the manager of a stationary elevator There is a second answer to the proposiin the city of Buffalo, on the 19th day of Sep- tion. It was undisputed that the defendant tember, 1888, exacted from the Lehigh Val- exacted a greater charge for elevating than Jey Transportation Company, for elevating, the sum allowed by the act. This was proven raising, and discharging a cargo of corn from by testimony on the part both of the prosecu. a lake propeller at his elevator, the sum of tion and the defendant. The verilict of guilty one cent a bushel, and for shoveling to the was followed by the infliction of the lowest leg of the elevator the carrier was charged penalty for a single offense. The verdict and and compelled to pay $4 for each thousand sentence were justified without considering bushels. The shoveling of grain to the leg whether an offense was made out under the of an elevator at the port of Buffalo is now second allegation in the indictment. No performed, pursuant to an arrangement made question as to the form of the indictment was since the passinge of the act of 1888, by a body made. The joinder of several distinct misof men known as the Shovelers' Union, who demeanors in the same indictment is not a pay the elevator $1.75 a thousand bushels for cause for the reversal of a judgment, where the use of the steam-shovel, a part of the ma- there is a general verdict, and the sentence is chinery connected with the elevator, operated single, and is appropriate to either of the by steam, and who for their services, and the counts upon which the conviction was had. expense of the steam-shovel, charge the car- Polinsky v. People, 73 N. Y. 65. Even if rier for each thousand bushels of grain shov- the alleged overcharge for shoveling was not eled the sum of $4. The defendant was in-'made out, the verdict and sentence are sup
ported by the findings of the jury on the of free government. This court has recently, other branch of the case, and the refusal of in several notable instances, vindicated the the judge to withdraw from the jury the con rights of individuals against unjust and arsideration of the question whether there was bitrary legislation restraining freedom of acan overcharge for shoveling could not preju- tion or imposing conditions upon private dice the defendant.
business not warranted by the constitution, Passing, therefore, this point, we come to In re Jacobs, 98 N. Y. 98; People v. Marx, the main question, and that is whether leg- 99 N. Y. 377,2 N. E. Rep. 29; People v. Gullislative power, under the state constitution, son, 109 N. Y. 399, 17 N. E. Rep. 343. But exists in the legislature to prescribe a maxi- the very existence of government presupposes mum charge for elevating grain by stationary the right of the sovereign power to prescribe elevators owned by individuals or corpora- regulations demanded by the general welfare tions, who have appropriated their property for the common protection of all. This printo this use, and are engaged in this busi-ciple inheres in the very nature of the social ness. The ascertainment of the exact bound-compact. The protection of private property aries of legislative power, under the rigid is one of the main purposes of government, constitutional systems of the American states, but no one holds his property by such an abis in many cases attended with great perplex- solute tenure as to be freed from the power ity and difficulty. The people have set into of the legislature to impose restraints and the frame-work of the constitution a variety burdens required by the public good, or propof restrictions upon legislative power, and er and necessary to secure the equal rights of chief ainong them is that which ordains that all. This power of government—the power, no person shall be deprived of life, liberty, as expressed by TANEY, C. J., (License Cases, or property without due process of law. 5 How. 583,)“inherent in every sovereignty, There is but little difficulty in determining the power to govern men and things"—is not, the validity of a statute under this constitu- however, an uncontrollable or despotic authortional principle, in cases where the statute ity, subject to no limitation, exercisable with assumes to divest the owner of property of or without reason, in the discretion or at the his title and possession, or to actually deprive whim or caprice of the legislative body. But him of his personal liberty. The state may within its legitimate domain the power is lawfully take the property or life of the cit- original, absolute, and indefeasible. It vested izen without infringement of the constitu- in the legislative department of the governtional guaranty. The caşes where the right ment at its creation, without affirmative of property is set aside by positive laws are grant or definition, as an essential political various. Distress, executions, forfeitures, power and attribute of government, and pertaxes, are of this description, “wherein,” sonal rights and rights of property are subsaid Lord CAMDEN, in Entick v. Carrington, ordinate to this supreme power acting within 19 How. State Tr. 1066, "every man, by its appropriate sphere. It may be exercised common consent, gives up that right, for so as to impair the value of property, or limit the sake of justice and the general good.” or restrict the uses of property, yet in this The state may directly take private property there is ao infringement of the constitutional for public use on the condition of making guaranty, because that guaranty is not to be compensation, and the cases where it may construed as liberating persons or property be taken in satisfaction of public and pri- from the just control of the laws. It is devate obligations, or for the support of gov- signed for the protection of personal and priernment, or as a return for governmental vate rights against encroachments by the protection, are determined by general rules, legislative body not sanctioned by the prinwell understood and easily applied. The dif- ciples of civil liberty as held and understood culty in the application of the constitutional when the constitution was adopted. The principle arises in the main in respect to that boundary of legislative power in the enactclass of legislation, not infrequent, which, ment of laws in the assumed exercise of this while it does not in a strict sense deprive an power of sovereignty, which injuriously afindividual of his property or liberty, does, fects persons or property, is indistinct, and nevertheless, in many cases, by the imposi- no rule or definition can be formulated under tion of burdens and restrictions upon the which, in all cases, it can be readily deteruse and enjoyment of property, and by re- mined whether a statute does or does not straints put upon personal conduct, seriously transgress the fundamental law. The power impair the value of property, and abridge of the British parliament is not the test of freedom of action. The validity of legisla- legislative power under the written constitution of this kind, to some extent and within tion of the American states. But the great certain limits, is questioned by none. But land-marks of civil liberty embodied in our such legislation may overpass the boundaries state constitutions were established by our of legislative power, and violate the consti- English ancestors, and upon questions such tutional guaranty; for it is now an estab- as the one now before us we may study-with lished principle that this guaranty protects profit the principles and practice of the law of property and liberty, not merely from con- England. fiscation or destruction by legislative edicts, When a statute is challenged as overstepbut also from any essential impairment or ping the boundaries of legislative power. the abridgement not justified by the principles lobject sought to be attained by the legisla
ture, the nature and functions of government, 113, is a direct authority upon the question the principles of the common law, the practice now before us. That case was brought to of legislation and legal adjudications, are the United States supreme court on a writ of pertinent and important considerations and error to review a judgment of the supreme elements in the determination of the contro-court of the state of Illinois which affirmed versy. The act now in question regulates the constitutionality of a statute of that the price of elevating grain, and the regula- state fixing a maximum charge for the elevation affects the compensation which may be tion and storage of grain in warehouses in lawfully demanded for labor and personal that state. The act was challenged as a vioservices, as well as for the use of property. lation of the constitutional guaranty in the It fixes a maximum charge for labor and the constitution of Illinois, protecting life, liberuse of property when combined, as they of ty, and property, in substantially the same necessity are, in the business of elevating language as in the constitution of this state. grain. The operation of the statute is by its The supreme court of the United States afterms limited to the business carried on in firmed the judgment of the state court, on the cities and towns having a population of not ground that the legislation in question was a less than 130,000,-practically to the cities of lawful exercise of legislative power, and did Buffalo, New York, and Brooklyn. The not infringe the clause in the fourteenth circumstances, also, substantially restrict the amendment of the constitution of the United application of the act to grain brought to States, "nor shall any state deprive any perBuffalo from the upper lakes by water, and son of life, liberty, or property without due there, by means of elevators, transshipped in-process of law.” The legislation in question to canal-boats, and transported through the in Munn v. Illinois was similar to, and is Erie canal and the Hudson river to the har- not distinguishable in principle from, the act bor of New York, and there discharged by(chapter 581, Laws 1888) now under review. elevators into warehouses or ocean vessels. The question in that case was raised by an The business of transporting grain by the individual owning an elevator and warelakes, and thence by the Erie canal to New house in Chicago, which had been erected York, is one of great magnitude. The case for, and in connection with which he had shows that about 120,000,000 of bushels of carried on, the business of elevating and grain annually come to Buffalo from the storing grains for many years prior to the west. The business of elevating grain at passage of the act in question, and prior also that point is mainly connected with lake and to the adoption of the amendment of the concanal transportation. It is shown by official stitution of Illinois, in 1870, declaring all elrecords that the receipts of grain at New evators and warehouses where grain or other York in the year 1887, by way of the Erie property is stored for a compensation to be canal and Hudson river, during the season of public warehouses. The case of Munn v. canal navigation, exceeded 46,000,000 bushels, Illinois has been referred to by this court in -an amount very largely in excess of the several cases. People v. Railroad Co., 70 N. amount received during the same period by Y. 569; Bertholf v. O'Reilly, 74 N. Y. 509; rail and by river and coastwise vessels. The Railroad Co. v. Railroad Co., 111 N. Y. 132, elevation of this grain from lake vessels to 19 N. E. Rep. 63; People v. King, 110 N. Y. canal-boats takes place at Buffalo, where the 418, 18 N. E. Rep. 245. case shows there are 30 or 40 elevators, sta In People v. Railroad Co., which related tionary and floating. How many of these el- to the power of the legislature to compel the evators are actually employed in the business defendant to build a bridge at a point where does not appear. The record is silent as to the railroad of the defendant crossed a highmany facts which might tend to explain the way, the court, by EARL, J., said: “This relation of this business, as actually conduct- whole subject of the legislative power over ed, to the public interests. It is asserted railroads, and even private persons, holding that a combination exists, and has for several and using their property for public purposes, years existed, between the elevator owners to has been so fully discussed recently in the sumaintain excessive charges, by fixing a uni-preme court of the United States in the form tariff, and pooling the earnings, and di- Granger Cases, 94 U.S. 113, and the Chicago viding them ratably among all the elevator Elevator Case, as to make further discussion owners, although but a part of the elevators unnecessary here. Such legislation violates are actually operated. See report of the no contract, takes away no property, and incommittee on foreign commerce of the Cham- terferes with no vested right.” In Bertholf ber of Commerce of New York, made in v, O'Reilly, Munn v. Illinois was cited as April, 1885. There is no evidence in the illustrating the scope of the police power in record as to the location in the port of Buf- legislation. In Railroad Co. v. Railroad Co., falo suitable and available for stationary ele- which involved the question of the right of vators. It is evident that they must be placed the legislature to regulate and reduce the where they can be reached by both lake ves- fare on street railways in the city of Bufsels and canal-boats, and it may reasonably falo, which it was claimed affected a conbe assumed that but a limited area (not de tract entered into between two of the comvoted to other purposes of commerce) is panies prior to the passage of the act, this available for the erection of stationary elevat- court affirmed the validity of the law; and srs. The case of Munn v. Illinois, 94 U. S. RUGER, C. J., in pronouncing the opin