Watts & S. 460. This is a sacred constitu- verse possession, under the statutes of this tional right, not to be spirited away by re- state, will bar an action to recover lands, it finement. If, therefore, the original occu- will be sufficient to bar the action to enforce pant has so managed its card as to escape the claim of the owner against the land, or payment until it has divested itself of its in- to enjoin the railroad company from using it terest by any form of alienation, its alienee, until just compensation is made, as in that mediate or immediate, if it would enjoy the time the right necessary to support the acuncompensated right, must pay the price of tion will be divested, and there will be no it, unless it can show an equity growing out basis upon which it can be maintained. In of the conduct of the owner of the soil which Howard v. State, 47 Ark. 431, 2 S. W. Rep. would estop him. It must not be forgotten 331, and Patton v. State, 50 Ark. 53, 6 S. we are treating of a case where the owner W. Rep. 227, it was held by this court that has done nothing to divest his right by his “a road becomes established as a public highown act or alienation, but where the alienee way, by prescription, where the public, with of the original actor stands upon a seizure at the knowledge of the owner of the soil, has law, which must be shown to have con- claimed and continuously exercised the right formed to the law in all its steps in order to of using it for a public highway for the pedeprive the owner of his title. The mort-riod of seven years, unless it was so used by gage was but a mode of alienation of the es- leave, favor, or mistake." In the Patton tate of the mortgagor, but could not operate Case it was said: "The right to a public upon the paramount claim of the land-owner highway acquired in this manner is based over the mortgage interest. This, we have upon adverse possession for the full statuseen, is not a mere lien; the judgment in the tory period of limitation." The same docprocess of assessment not being the source trine applies with equal force to railroads. of his right, but the means only of ascertain- In both cases the land is taken and appropriing the amount of his claim and of enforcing ated and used as a highway for the public its payment. It could be extinguished only benefit. We know of no reason why the by payment or release. When the alienees same limitation should not prevail in both of the Northwestern Railroad Company came cases. into possession, therefore, under their purchase, (if at all,) they took the interest acquired cum onere. If possession never had been obtained, then clearly they could get it only by payment or security. In law and equity neither they, nor any one claiming the interest of the Northwestern Railroad by an act of eminent domain, subordinated by the law and the constitution to payment as the condition of its exercise, can hold and use the interests thus acquired without compensation. Borough of Harrisburg v. Crangle, 3 Watts & S. 460." Another question arises, as to when an action to enforce the claim of the owner against the land taken, or to enjoin the railroad company from using it until compensation is made, is barred by the statute of limitations. Both of these remedies are based upon the title to the land appropriated and the right to hold it unincumbered by the right of way of the railroad company. They depend entirely upon the right of the original owner to the estate in the land taken, appropriated, and converted by the railroad into its right of way. As in the case of a vendor who sells his land on time, and retains the title until the purchase money is paid, he has by virtue of the legal title such an interest in the estate so taken, appropriated, and converted as gives him the right to proceed against it for the purpose of producing the sum of money he is entitled to by reason of the appropriation. As in other cases, how ever, the right to this estate may be divested by adverse possession. The possession of the railroad company, although wrong in the beginning, may ripen into a right by virtue of the continuance of the wrong for the requisite statutory period. As seven years' ad Appellants say that appellee has infringed. upon their riparian rights. Their land borders upon the Mississippi river, a navigable stream. They are therefore entitled to certain rights as riparian proprietors. "Among these rights are access to the navigable part of the river from the front part of their land, the right to make a landing, wharf, or pier for their own use, or for the use of the public," and to the privilege of keeping a public ferry over or across the Mississippi river, "subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be." These rights of the appellants are property, and are "valuable, and, though they must be enjoyed in due subjection to the rights of the public, they cannot be arbitrarily or capriciously destroyed or impaired. They are rights of which, when once vested, the owners can only be deprived in accordance with established law, and, if necessary, that they be taken for the public good, upon due compensation." Yates v. Milwaukee, 10 Wall. 497; Railway Co. v. McGehee, 41 Ark. 202; Railway Co. v. Woodruff, 49 Ark. 381, 5 S. W. Rep. 792. Appellants further insist that they have been damaged by appellee running a transfer boat across the river, and attempt to show that it sometimes transported persons across the river for pay, who were not passengers on its trains. But there is no evidence that appellants, or any of them, ever had a license to keep a public ferry. If they did not, they had no right to keep a ferry, so as to charge a compensation for transporting persons or property over the river, and could not have been injured by the running of the transfer STULL et al. v. HARRIS. ANCE-RESCISSION. On boat, and can claim nothing on that account. | they stood by and acquiesced in the use They are, however, entitled to the damages of it. Before the enforcement of the order, they have suffered by reason of their riparian however, appellee should be allowed a rearights having become less valuable by reason sonable time after the damages are assessed in of appellee's tracks, buildings, structures, which to make the compensation. Under the and other improvements, as held in Railway agreement of the parties, appellee is entitled Co. v. McGehee, 41 Ark. 202; Mansf. Dig. § to the benefit of the statute of limitations in 3311. But appellee contends "that after all cases where the recovery of the relief lands are partitioned, or conveyed in separate sought by appellants is barred thereby. parcels, riparian rights cannot remain in com- account of the numerous appellants, and bemon, because these are a part of the land it cause this cause will have to be remanded, self, and each parcel of land bounded by wa- we will not attempt to ascertain whether any ter must necessarily have its riparian rights or how many of them are barred. It is imattached to it, as an essential part of its very possible to ascertain from the evidence bebeing," and that, the land in question hav-fore us what damages or compensation the ing been divided between appellants, they appellants are entitled to. It is evident that cannot claim and hold the riparian rights they are entitled to some. It was agreed bepertaining thereto in common, and bring a tween the parties that the taking of the tesjoint action on account of an infringement timony as to damages of all kinds might be of the same, or jointly maintain this action deferred until the final hearing, and that it in respect to the infringement of such rights. might be thereafter taken, if desired, upon On the other hand, appellants say that the reference to a master. For this reason, land was divided between them without ref- doubtless, it was not taken. The court erred erence to the riparian rights pertaining to the in dismissing the appellants' complaint. The land, and it was agreed that these rights judgment of the circuit court is therefore reshould remain undivided, and be held in com- versed, and the cause is remanded for furmon as if the land had not been divided, and ther proceedings not inconsistent with this that they had ever remained and were their opinion. joint property. If they wish to treat these rights as their common property, we see no reason why appeilee can complain. It cannot be injured thereby and it is a mat- (Supreme Court of Arkansas. March 16, 1889.) ter which concerns appellants, and no one INFANCY-CONTRACTS-RATIFICATION AND AVOIDelse. Since the commencement of this action the bank of the river has caved to such an extent that not one of the railroad tracks or buildings or structures of any kind of appellee on the land of appellants remain now where they were then. As the bank washed into the river, appellee moved them back on the land adjacent to the river. It is evident, therefore, that as to much of appellants' land as has been washed into the river no action can be maintained to enforce a claim against it, or to enjoin the use of it until compensation is made. But for the appropriation of such land to its use appellee is personally responsible, and upon that personal responsibility appellants can only rely for recovery. This was a bill filed by Mrs. Harris, a feme Under the agreement of appellants and ap- covert, against her brother-in-law, and forpellee, both parties are entitled to the benefit mer administrator of her father's estate, Dr. of the facts as to the caving of the banks of Stull, and her husband, J. W. Harris, to canthe river, and the removal of appellee's tracks cel a deed made by her and her husband to and buildings on account thereof. Appel- said Stull for certain lands, in 1867, she then lants are entitled to damages or compensa- being a minor and covert. The consideration for their land which appellee has appro- tion was $500 cash, paid her husband, and a priated since the commencement of this ac- credit of $400 on her indebtedness to Stull tion, and for so much of the land as it has for necessaries furnished her during her mitaken during the pendency of this cause, and nority. Stull denied her right to rescind now uses in the operation of its railroad, they after so long a time, and after he had made are entitled to an order of injunction restrain- | valuable improvements on the land, without ing appellee from using it until compensation objection by her, and contended that in case therefor is made. We think appellants are a rescission was had she must restore the entitled to this order because of the pendency consideration, and pay for improvements, of this action. While it has been pending etc. The proof tended to show that Mrs. and appellants have been asking for an in- Harris was a minor when she executed the junction restraining appellee from using their deed; that Stull owned two-thirds of the land for railroad purposes until compensa. land, and purchased her one-third for $900 tion should be made, it cannot be said that—$500 in cash being paid her husband, and 1. Passive acquiescence by a married woman in she was an infant and covert, will not, however a deed executed by her and her husband, while long continued, amount to a ratification while coverture still exists. 2. A feme covert, to annul such a deed, must pay the grantee, her former guardian, for necessaries supplied her during minority, which constituted a part of the consideration of the deed, though after her marriage her husband executed his note for the amount; there being no agreement to accept the note in payment of the debt. 3. She will not be required to refund money paid her husband as part of the consideration, which never came to her hands. Appeal from circuit court, Crittenden county; W. H. CATE, Judge. 0. P. Lyles, for Stull et al. W. G. Weatherford, for Mrs. Harris. $400 credited on her debt to Stull for neces- tham, 42 Ark. 305. Where the right of ensaries furnished her while a minor; that Stull try does not exist, but the possession is had improved the lands as his own; that rightful against her, by reason of the husMrs. Harris was still covert, and that no act, band's conveyance of his estate, the statute either of affirmance or disaffirmance of her does not run against her until coverture is contract of sale, had been done by her until ended. The statute of limitations has never she filed this bill. The court canceled the been set in motion, therefore, in this case. deed so far as Mrs. Harris was concerned, The wife has done nothing to ratify the deed. but held that Stull was entitled to keep pos- Indeed, it was intimated in Bagley v. Fletchsession during the life of her husband, J.W. er, 44 Ark. 158, that a deed executed by a Harris, without account of rents, taxes, or married woman who was under age at the improvements. Both parties appealed. time could not be confirmed during coverture except by deed. It is not necessary to determine the point in this case. The only argument for a ratification is based upon the assumption that Mrs. Harris stood by and permitted Stull to improve the land upon the faith of her conveyance. But that is not true. She has always resided in Tennessee, and it is not shown that she had notice that the defendant was making improvements upon the land. Moreover, the defendant was the absolute owner of two undivided thirds of the land, as well as the husband's life-interest in the other third; and, even if it was her duty to have inquired and learned what Stull was doing with the land, she might well have referred his improvements to his absolute estate in the land. The proof shows nothing more than a passive acquiescence on the part of Mrs. Harris, and we have found no decision denying her right to disaffirm under such circumstances at any time during coverture. In Sims v. Everhardt, the wife 23 years after her deed was executed, and 21 years after she came of age; and in Sims v. Bardoner, 86 Ind. 87, where the bill was filed during coverture, as in this case, the disaffirmance was allowed 27 years after the execution of the deed. See, too, Harrod v. Myers, supra; Watson v. Billings, 38 Ark. 278; Vaughan v. Parr, 20 Ark. 600; McMorris v. Webb, 17 S. C. 558; Wilson v. Branch, 77 Va. 65; Williams v. Baker, 71 Pa. St. 476; Youse v. Norcum, 12 Mo. 549; Dodd v. Benthal, 4 Heisk. 601; Schouler, Dom. Rel. § 96. COCKRILL, C. J., (after stating the facts as above.) 1. Where there has been no act on the part of the quondam infant from which a ratification of the contract after his majority may be inferred, his right to avoid a conveyance of his lands on account of his minority is not lost until his right of entry is barred by the statute of limitations. Bozeman v. Browning, 31 Ark. 364; Kountz v. Davis, 34 Ark. 590. See Chandler v. Neighbors, 44 Ark. 479. In the case of a minor who is also a married woman at the time the conveyance was executed, the right of disaffirmance will exist as long as she remains covert, unless legislation has swept away the disabilities of coverture. Or, as Mr. Bishop expresses it, "If the infant is also a married woman, the disability of coverture enables her to postpone the act of avoidance to a reasonable time after the cov-102 U. S. 300, the privilege was exercised by erture is ended." 2 Bish. Mar. Wom. § 516. Such a party labors under a double disability, -infancy and coverture,—and it is the statutory rule in this state that when there are two co-existing disabilities when the action accrues, the party is not bound to act until the last is removed. Mansf. Dig. § 4503. In this case the right of entry has never accrued to Mrs. Harris. She was married before any of the married women's enabling acts were passed, except that which empowered the wife to sell her land by joining her husband in the conveyance. By the marriage the husband acquired a freehold interest in the land, and became entitled to the rents and profits. It was an interest capable of sale. When, therefore, he and his wife joined in the execution of a deed to Stull, in 1867, Stull took the husband's right to the possession and enjoyment of the rents, and also the wife's interest in the land, subject to her right of disaffirmance. That she can file her bill to disaffirm during her husband's life was determined in Harrod v. Myers, 21 Ark. 592. She cannot, however, disturb the possession of her husband's vendee. The most that she could do during coverture was to give notice to her vendee of her intention to disaffirm, or sue for that purpose, as she has done. Was it necessary that she should have done so earlier? Acquiescence in the possession, where the right of entry exists, does not bar the suit of a married woman. under our statute. Hershy v. La 2. It is argued that the plaintiff should be required to refund the consideration paid by the vendee before rescinding. While it is a somewhat controverted point, it is settled here that an infant may disaffirm his contract without restoring the consideration. Railway v. Higgins, 44 Ark. 293. The rule is subject to the qualification that if the consideration received by the infant remains in his hands after he becomes of age, he at least becomes liable for its value on disaffirming the contract. Railway v. Higgins, supra; Price v. Furman, and note; Ewell, Lead. Cas. 119; and cases collected in Field, Law of Infants, § 15. If he appeals to equity to avoid his contract, that court may impose upon him the duty of returning the consideration he has in hand as a condition upon which relief shall be granted. Hillyer v. Bennett, 3 Edw. Ch. 222; Eureka Co. v. Edwards, 71 Ala. 248. Now, the consideration Asst. Atty. Gen. Davidson, for the WHITE, P. J. Appellant's record, now before us, presents a second appeal taken by him in this case. He has twice been convicted of rape; his punishment the first time being assessed at imprisonment in the penitentiary for 99 years, and on the second trial, from which this appeal is taken, there is an assessment of the death penalty as his punishment. Johnson v. State, 21 Tex. App. 368. which was paid to the husband in this case | lant. JOHNSON v. STATE. (Court of Appeals of Texas. Jan. 30, 1889.) CRIMINAL LAW-EVIDENCE-WITNESS-RAPE. 1. On a prosecution for rape, the issue being defendant's identity, the state improperly asked a witness on cross-examination if he had received a letter from defendant after the commission of the crime, asking if defendant was accused of it; as the loss of the letter should first be established; and for impeaching the witness the fact that he had or had not received the letter would be imma In the view we take of the present record, and the duty devolving upon us as to the disposition to be made by us of the case here presented, it is unnecesssary, and would perhaps be profitless, to notice the questions arising upon the rulings of the court in relation to matters occurring preliminary to the trial upon its merits, since it is not probable that they will again arise upon another trial. One of the most important issues which arose upon the trial in the court below was as to the identity of the defendant as the party who committed the crime. While the prosecutrix had sworn positively to the identity of the defendant as the man who ravished her, she said nevertheless as positively that "if this man [defendant] had a mustache on the 26th day of January, 1886, [the day she was ravished] then he is not the man that ravished me." On this issue, thus squarely made, defendant produced a number of witnesses, white as well as black, and some of them men of prominence, whose testimony was almost positive to the fact that defendant did wear a mustache on the 26th day of January, 1886. And the same may be said with reference to the difference in the clothing worn by the ravisher and that worn by defendant. In other words, and in short, the effort of the defendant was to meet every part and portion of the testimony of the prosecutrix descriptive of the identity of the party who outraged her, and to show that it was a case of mistaken identity with her, and that it was impossible he could have been the guilty party. In this attitude of the case the state, over the objection of defendant, was permitted to cross-examine defendant's witness Ford, as follows: “Question by the State. Did you not, after the rape of Annie Knuppel, receive a letter from the defendant inquiring of you about the commission of said rape, who was suspected of it; and if he was accused of its commission? Answer. I never at any time received a letter from the defendant, after or before said from him inquiring of its commission, or alleged rape; nor did I receive any letter asking if he was accused of it. Q. Did you not, after said rape, receive a letter purporting to come from defendant, making a statement about the rape, or inquiring if defendant was accused of it? A. I never received any letter from defendant, or from any one Albert Johnson, convicted of rape, appeals. else, or purporting to come from defendant, B. H. Bassett and E. B. Muse, for appel-making a statement about the rape, or in terial. 2. Witness having denied receiving the letter, the state could not call another witness to contradict the testimony. 3. An instruction that penetration is necessary to complete the offense of rape, but penetration only is necessary, is erroneous, though in the words of Penal Code Tex. art. 532, as the statute simply states one of the rules of evidence, and other elements of the crime are necessary. 4. An instruction that the failure or inability of defendant to show his innocence does not lend any additional probative force to the incriminative facts, if any, shown by the state, or raise any presumption of guilt against defendant, is error, as conveying the impression that in the opinion of the court defendant had failed to show his inno cence. 5. An instruction that if, on the whole evidence, the jury have a reasonable doubt of defendant's guilt, they must acquit, and not resolve the doubt by a mitigation of the punishment, is error, as tending to influence the jury to inflict the death penalty, rather than milder punishment. Appeal from district court, Washington county; J. B. MCFARLAND, Judge. quiring if defendant was accused of it. I do or had not received a letter from defendant,— not read or write. I do not know defend- which was the only fact about which the preant's handwriting. Q. Did you not, in liminary inquiry and predicate were allowBrenham, after said rape, request Washable, (Walker v. State, 6 Tex. App. 577,)— Bolding, Jr., to read a letter for you, and would be wholly immaterial in the case. And, did he not then read to you a letter from the the witness having answered that question in defendant to you in which defendant stated the negative, that would be an end of the inthat he had committed the rape, and inquir-vestigation, under the well-established rule ing of you who was suspected of its commission, and if he was accused of it? A. No. Wash Bolding never read any such letter for me, nor any other letter for me, either after the rape or before it. I never received such a letter, or any letter, from defendant, or any one else, in reference to the rape. Never received any letter from defendant, or purporting to be from him, after he left my house,-after the alleged rape." Which testimony was objected to by the defendant at the time it was offered on the grounds: (1) That the letter, (if such ever existed,) was the best evidence; that no effort had been shown by the state to procure or produce such letter upon the trial or prove its loss; and that the testimony was secondary. (2) That the testimony was inadmissible, because the execution of the letter in defendant's handwriting had not been shown, and no promise upon the part of the state was made to show such fact. (3) That said testimony was illegal, and irrelevant to the issue of defendant's guilt, and was prejudicial to the defendant. But the court overruled said objections and admitted said testimony to the jury, to which decision of the court the defendant then duly excepted; and thereafter the defendant moved the court to strike out said testimony, and instruct the jury to disregard the same for the reasons and upon the grounds above alleged. But the court overruled said motion to strike out, and refused to exclude said evidence from the jury; to which decision of the court the defendant then excepted, etc. that "when a witness is cross-examined on a matter collateral to the issue his answer cannot be subsequently contradicted by the party putting the question.' Whart. Crim. Ev. (8th Ed.) § 484; Brite v. State, 10 Tex. App. 368; Hart v. State, 15 Tex. App. 234; Rainey v. State, 20 Tex. App. 474; Johnson's Case, 22 Tex. App. 207, 2 S. W. Rep. 609. But the state did not stop the investigation of the matter with the denial of the witness that he had ever received such a letter, but called Wash Bolding, Jr., to the stand, to contradict and impeach the witness Ford in this matter. This was in violation of the rule of evidence above quoted. This witness Bolding was permitted, over defendant's objections, to testify that Ford had requested him to read a letter directed to Ford, and that he did not know in whose hand writing the letter was, nor did he know defendant's handwriting. Bolding's testimony, under the facts, could not, in the very nature of things, impeach Ford as to a letter received from defendant by him, because there is no positive, certain, or reliable evidence that defendant ever wrote such a letter, or that Ford ever received it, or that Bolding ever read a letter from defendant. Bolding may have read such a letter as he describes, but he cannot know, nor do we, that defendant wrote that letter; and, until it is established by some legal method that he did write it, he cannot, in right, justice, good conscience, or law, be held by any admissions it might contain. It was most unfair and prejudicial to defendant's rights to conduct the investigation with Manifestly, the object of this method of regard to this letter in the manner in which examination of the witness was to impress it was done. No doubt the jury were firmly the jury with the idea that the witness had impressed with the fact that the defendant received a letter from defendant, in which had written a letter to Ford in which he had the latter confessed that he had committed confessed his guilt of this most heinous crime. the crime. If the object was to prove the fact The character of the investigation, and the that such a letter had actually been written facts allowed to be proved, were calculated and received, then the proper practice would to have this effect, whether they did or not. have been, in the first place, to have sum- They should not have been permitted in the moned the witness with a subpoena duces first place; and, in the second place, the only tecum, or notice to produce the letter in possible, if at all possible, manner in which court. 1 Greenl. Ev. (13th Ed.) §§ 557–560. the error could have been retrieved and injury Failing or refusing to produce it, the state avoided would have been for the court to might then have proved the fact by him, if a have stricken out the illegal testimony, and fact, that he did receive a letter; and if the instructed the jury to disregard it. We are witness knew that defendant wrote it, from constrained to repeat in this connection the his knowledge of his hand writing or other- remarks of Judge WILLSON in Gazley's Case, wise, he might also prove that fact. But una case involving a crime of the same nature. less the letter was lost or mislaid, so that it He says: "In a case like this, the very mencould not be produced, its contents even then tion of which arouses public indignation, and could not be proved by the parol evidence of fires the minds and passions of a community the witness; the letter itself being the best with a desire for vengeance against the guilty evidence of its contents, so long as it was in party, the court and the counsel engaged in existence. Again, if the object was to im- the trial should be scrupulously cautious to peach the witness, then the fact that he had accord to the defendant a fair and impartial |