belong to such company, to use for the purposes specified in the act, by making or tendering payment as in said statute provided. It also states that the company may, by its directors, purchase any such lands or interest of the owner, and that on such agreement the owner shall convey the premises so purchased in fee simple or otherwise, as the parties may agree, to such hydraulic company. The act further provides for the appointment by the circuit court or other court of record in the county where the land lies, or any judge thereof in vacation, upon the application of either party, of three disinterested freeholders of such county to appraise the damages which the owner may sustain by reason of such appropriation. Upon the return of the report of the appraisers, with their assignment of the damages, to the clerk of such court, setting forth the value of the property which they assess to the owners separately, and the filing and recording thereof, such company is to pay to such clerk the amount thus assessed, or tender the same to the party in whose favor the damages are assessed, and on making payment or tender thereof in the manner required the act declares that it shall be lawful for such company to hold the interest in such lands so appropriated.

No provision for the filing of a map of the lands intended to be appropriated, corresponding to the requirement of the general railroad act in that particular, is contained in the statute in question.

But upon

a careful reading of section 4834, Burns' Rev. St. 1901 (section 3703, Rev. St. 1881; section 3703, Horner's Rev. St. 1901), it would seem that the deposit with the clerk of the instrument of appropriation was intended by the act to constitute the notice to be given of the location of the dam, etc. Where such instrument of appropriation is filed, and lands are acquired by virtue of such proceeding, it is said by many of the courts that the corporation takes such lands by grant from the state, and that by reason of the taking in this manner they are impressed with a public use. The title so acquired is not a fee simple, but an easement, and can be enjoyed under such grant only for the purposes contemplated by the statute. It is true that the same section expressly authorizes the purchase in fee simple of lands by the corporation for the purposes of its organization; but it will be observed that the lands which may be so acquired are those which are described in the instrument of appropriation. In nearly all the cases where the courts have been called upon to decide the question of priority in right between conflicting claims to lands to be used for corporate purposes they have held that the company by which the location is first made has the superior right. The difficulty arises in determining which acts constitute such location. It is said in Mills, Em. Dom. (2d Ed.) § 47, that: "It

does not signify that the articles of incorporation of one are prior in date to those of another, or that one has made preliminary surveys over a particular route, or has made purchases of individuals along that route. Until the survey is made and filed, the company would hold the land purchased as any other individual landowner, and such land could be condemned by the rival company upon compensation. The priority of construction gives no rights where another company has perfected its location first." Railroad Co. v. Blair, 9 N. J. Eq. 635; Titusville & P. C. R. Co. v. Warren & V. R. Co., 4 Leg. Gaz. 117; Chesapeake & O. Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. 1. Again, it is said in the Law of Eminent Domain (Randolph; 1894): "Where one has purchased property with the intention of puting it to public use, he cannot be devested of it by a party seeking to condemn it for a similar use; but the purchase, to be effective, must be consummated before a location is made under the eminent domain. Where a corporation duly filed a survey of property required, and another corporation afterwards recorded a deed from the owner, executed in pursuance of an unrecorded agreement made before the survey, priority was given to the first corporation because it was not affected with notice of the agreement. * * * Where the conflict is between parties seeking to condemn, that one shall prevail who first makes the location in accordance with the statute." Indianapolis Cable St. R. Co. v. Citizens' St. R. Co., 127 Ind. 369, 24 N. E. 1054, 26 N. E. 893, 8 L. R. A. 539; Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 110 N. Y. 128, 17 N. E. 680; Waterworks Co. v. Bird, 130 N. Y. 249, 29 N. E. 246; Railroad Co. v. Alling, 99 U. S. 463, 25 L. Ed. 438. And in Lewis, Em. Dom. (2d Ed.) § 306, pp. 753, 754, the general doctrine is thus stated: "As to what is such a completed location as to secure priority must depend largely upon local statutes. We should say, in general, that it includes everything necessary to perfect the right to proceed to condemn the property.

* Where priority of right has been secured by priority of location, it cannot be defeated by a rival company agreeing with the owners and purchasing the property." The opinion of Shiras, J., in Sioux City & D. M. Ry. Co. v. Chicago, M. & St. P. Ry. Co. (C. C.) 27 Fed. 770, has been commended as a very clear and forcible statement of the principles applicable in cases of conflicting claims to priority: "It is certainly equitable that a company which, in good faith, surveys and locates a line of railway, and pays the expenses thereof, should have a prior claim for the right of way for at least a reasonable length of time. The company does not perfect its right to the use of the land, as against une owner thereof, until it has paid the damages, but, as against a railroad company, it may have a prior right, and better

equity. The right to the use of the right of way is a public, not a private, right. It is, in fact, a grant from the state; and, although the payment of the damages to the owner is a necessary prerequisite, the state may define who shall have the prior right to pay the damages to the owner, and there fore acquire a perfected title to the easement. The owner cannot, by conveying the right of way to A., thereby prevent the state from granting the right to B. All that the owner can demand is that his damages shall be paid; and, subject to the right of compensation to the owner, the state has the control over the right of way, and can, by statute, prescribe when, and by what acts, the right thereto shall vest, and also what shall constitute an abandonment of such right." The organization of appellant as a corporation under the act for the incorporation of hydraulic companies, the recording of the articles of association, the selection of the site of the dam, the acquisition of the premises intended for the dam by deeds from the owners, did not, in our opinion, operate as a grant of those lands or of any interest in them by the state to the corporation, nor impress upon them any public use. On the contrary, the appellant was at liberty to sell such lands in fee simple, to subdivide them, and to apply them to any private use or purpose whatever.

The sole connection of the state with the purposes of the appellant was its grant, under the statute, of the franchise of becoming a corporation, and exercising the powers conferred upon such corporation by the statute. But the appellant did not proceed further in the exercise of its statutory powers, nor in any way indicate its intention to devote any lands to a public use. In the present case, as in many others, the question of priority of right is not free from difficulty, and in determining it we cannot disregard the express language of the statute, which declares that immediately after its organization "such company shall forthwith deposit with the clerk of the circuit, or other court of record of the county where the land lies, a description of the rights and interests intended to be appropriated; and such lands, rights, and interests shall belong to such company to use for the purposes specified by making or tendering payment as hereinafter provided." The appellee proceeded strictly according to the terms of the statute. The appellant held certain lands, but, as is stated in the authorities, it held them as a private individual might. Being so held, they were subject to the right of eminent domain, and could be appropriated by the state for the public use expressed in the instrument of appropriation filed by the appellee. Immediately upon the filing of that instrument, in the words of the statute, "they belonged to such company, to use for the purposes specified, by making or tendering payment as provided."

The remaining question-as to the assessment of damages-does not require extended discussion. The property held by the appellant, described in the instrument of appropriation of the appellee, was land only. No franchise of the appellee was appropriated, nor was any right taken from it. The point at which the dam was to be built was not the only place at which it could be constructed. In that respect this case differs from those relating to mountain passes, islands in a river, or other circumstances going to the particular locality,-a peculiar value, no matter by whom bound or held. The appraisers could do nothing more than assess the value of the lands taken, and we think that all evidence touching the value of the premises as the site of a milldam was properly excluded. Under the circumstances set forth in the pleadings and disclosed by the proof, the appellant had not acquired a perfect right to build a public dam at that place.

Numerous authorities are cited in the brief of the appellant, and all of them have received careful attention. We have found nothing in them, however, which authorizes such a construction of the statute of this state as would give to the appellant a prior right to build a dam at the point described in the instrument of appropriation and in the pleadings in this cause. Nor do we find anything in them to sustain the claim of the appellant for compensation for anything more than the value of the land taken considered independently of the inchoate design of the appellant to construct a dam there for hydraulic purposes.

Applying the views herein stated to the various questions involved in the assignment of errors, we are of the opinion that all of those questions were correctly decided by the trial court. Judgment affirmed.

(158 Ind. 673)

WHITTENBERGER et al. v. BOWER et al.1 (Supreme Court of Indiana. March 21, 1902.) WILLS-CONTEST-ACTION-JURISDICTION OF

CIRCUIT COURT-PRESUMPTIONS.

Although Burns' Rev. St. 1901, § 2766 (Rev. St. 1881, § 2596; Horner's Rev. St. 1901, 2506), provides that the complaint in an action to contest the validity of a will must be filed in the circuit court of the county where the testator died, or where some part of his estate is situated, where a complaint in such action is filed in the circuit court of any county in the state, and such court takes jurisdiction of the cause, it will be presumed, in the absence of any showing to the contrary, that the testator died in the county wherein the suit is brought, or that some part of his estate is situate therein, though the complaint contains no such averments.

Appeal from circuit court, Huntington county; C. W. Watkins, Judge.

Action by William Bower and others against Cynthia Ann Whittenberger and others. From a judgment in favor of plaintiffs, defendants appeal.

Rehearing denied.

Affirmed.

Whitelock & Cook and Julius Rowley, for appellants. Arthur Metzler, Harry Permtha, Branyan & Frightner, and Essick & Montgomery, for appellees.

DOWLING, J. This is an action by the appellees to contest the validity of the will of one Josiah Bower, deceased, on the ground that the supposed testator was of unsound mind. The suit was brought in Fulton county, and the venue was changed to Huntington county. A demurrer to the complaint was overruled, and appellants filed an answer in denial. A trial by jury resulted in a verdict in favor of the appellees, and judgment was rendered thereon. A motion to tax the costs of the contest against the defendants below other than the person named as the executor of the will was sustained, and this motion, with the order of the court thereon, is brought into the record by a bill of exceptions.

Errors are assigned upon the ruling on the demurrer to the complaint and on the mo tion to tax the costs. The objection taken to the complaint is that it does not affirmatively show that the testator died in Fulton county, where the suit was brought, nor that he left any estate in said county. Because of the failure of the complaint to show one or the other of these facts, the appellants contend that the court had not jurisdiction of the subject of the action. This proposition cannot be sustained. It is settled by numerous decisions in this state that, as the circuit court is a court of general jurisdiction, its authority to proceed in a case need not affirmatively appear in the complaint. Board v. Tichenor, 129 Ind. 562, 565, 29 N. E. 32, and cases cited, and Noerr v. Schmidt, 151 Ind. 579, 51 N. E. 332. It is said in Storage Co. v. Winsor, 148 Ind. 682, 48 N. E. 592, that, "when the jurisdiction of such a court depends upon the finding of certain facts, the exercise of jurisdiction implies the finding of such facts." See, also, cases cited.

It is true that the statute declares that the complaint in an action to contest the validity of a will must be filed in the circuit court of the county where the testator died, or where some part of his estate is situated. Section 2766, Burns' Rev. St. 1901 (section 2596, Rev. St. 1881; section 2596, Horner's Rev. St. 1901). But where a complaint is filed in a circuit court in any county of this state, and the court proceeds to hear and determine the cause, it will be presumed, in the absence of anything showing the contrary, that the court found either that the testator died in the county in which the suit was brought, or that some part of his estate was situated therein. The complaint was sufficient without the averments that the testator died in Fulton county, or that he left any part of his estate there. Kinnaman v. Kinnaman, 71 Ind. 417; Lee v. Templeton, 73 Ind. 315.

The taxation of costs of a contest of a will

is largely in the discretion of the court. The provision of the statute is that, "if such cause be decided against the defendants therein, the court may make such order, as to the payment of the costs thereof, as it may deem just." Stevens v. Stevens, 127 Ind. 560, 26 N. E. 1078. The will is not before us, nor the evidence in the cause, and we cannot say that there was any abuse of discretion by the court in directing that the costs be paid by the defendants other than the person named in the will as the executor. We find no error. Judgment affirmed.

(159 Ind. 127)

MALOTT v. HAWKINS. 1 (Supreme Court of Indiana. March 21, 1902.) RAILROADS CROSSING ACCIDENT-CONTRIBUTORY NEGLIGENCE-DUTY ΤΟ LOOK AND LISTEN-PLACE OF LOOKING AND LISTENING- EVIDENCE SUFFICIENCY -ACTION AGAINST RECEIVER-NOTICE TO RECEIVER. 1. Under 25 Stat. 436, providing that every receiver of any property, appointed by any United States court, may be sued in respect to any act of his in carrying on the business connected with such property, without previous leave of the court, but that such suit shall be subject to the general equity, jurisdiction of the court in which he is appointed, so far as necessary to the ends of justice, an action may be maintained in a state court against a receiver operating a railroad for negligent killing, without first obtaining leave of the federal court which appointed the receiver.

2. A traveler attempting to cross the track in front of an approaching train is negligent, as a matter of law, in failing to look and listen, unless there is a flagman who has signaled the traveler to cross the tracks; but the question whether he is required to stop is usually a mixed question of law and fact.

3. The court, in a railroad crossing accident case, in which contributory negligence of deceased is in issue, should instruct specifically as to the duties of a person about to cross a railroad track.

4. It will be assumed that deceased actually saw and heard what he could have seen and heard if he had looked and listened before attempting to cross the track.

5. A traveler on a highway, about to cross a railroad track, is bound to use ordinary care to select an effective place to look and listen for approaching trains; but it is not ordinarily possible, as a matter of law, to fix the precise number of feet from the crossing where he must look and listen.

6. A traveler on a highway, who vigilantly uses his senses, before attempting to cross railroad tracks, to avoid danger, but who is unable to see or hear approaching trains, may assume that an approaching train will give the usual, and especially the statutory, signals.

7. Where the facts are such that impartial and sensible men may draw different conclusions, the question of contributory negligence is for the jury.

8. The evidence in an action for death at a crossing, considered in connection with Burns' Rev. St. 1901, § 359a (Horuer's Rev. St. 1901, § 284a), fixing on the defendant the burden of proving contributory negligence, held not to show, as a matter of law, that decedent was guilty of contributory negligence.

9. An indorsement by the trial judge upon the margin of an instruction of the words, "Given and excepted to at the time by the de fendant," without any date, is not a sufficient compliance with Burns' Rev. St. 1901, § 544 (Horner's Rev. St. 1901, § 535), providing that 1 Rehearing denied.

a party excepting to the rulings on instructions shall not be required to file a formal. bill of exceptions, but that it shall be sufficient to write on the margin or at the close of each instruction, "Refused and excepted to," or, "Given and excepted to," which memorandum shall be signed by the judge and dated.

Appeal from superior court, Marion county; James M. Leathers, Judge.

Action by Elizabeth Hawkins, as administratrix of the estate of Addis Hawkins, deceased, against Volney T. Malott, as receiver of the Terre Haute & Indianapolis Railroad Company. From a judgment in favor of the plaintiff, and from an order denying a new trial, the defendant appeals. Affirmed.

Jno. G. Williams and D. P. Williams, for appellant. Ayres, Jones & Hollett and Chas. A. Dryer, for appellee.

GILLETT, J. The above-named appellee commenced this action in the court below against the above-named appellant to recover damages for the alleged negligent killing of her decedent. The appellee recovered a judgment upon her complaint, and from said judgment the appellant prosecutes this appeal.

In addition to the general denial, the defendant filed a special answer, by way of plea to the jurisdiction of said court. A demurrer was sustained to the latter paragraph, to which ruling the appellant duly reserved an exception, and assigns error upon the ruling. This paragraph of answer alleges, in substance, that the sole purpose of the action is the recovery of a judgment against a fund in appellant's custody as receiver, and the payment of such judgment out of such fund; that such fund came into his custody by virtue of a decree duly entered by the circuit court of the United States for the district of Indiana appointing him receiver of said company, an insolvent corporation, in an action having for its ultimate purpose the marshaling of its assets and liabilities, the sale of such assets, and the distribution of the proceeds thereof, and the payment of its liabilities; that he is in custody and control of all of the property and assets of said company, and is administering the same, solely under the orders and decrees of said court, and that the appellee brought and was prosecuting this action wholly without leave of the court which appointed him; and that appellant, as said receiver, claimed immunity for such fund from any interference by the Marion superior court. In the year 1887 congress enacted a statute which provides as follows: "That every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to

the ends of justice." 25 Stat. 436. We do not understand that the question now before us is substantially different from the question determined by this court adversely to appellant in the case of Malott v. Shimer, 153 Ind. 35, 54 N. E. 101, 74 Am. St. Rep. 278, except that the question was there raised by demurrer, instead of by answer. Since that case was decided, however, the whole matter has been put at rest by the decision in the case of Gableman v. Railway Co., 179 U. S. 335, 338, 21 Sup. Ct. 171, 172, 45 L. Ed. 220. It was there said: "This act abrogates the rule that a receiver could not be sued without leave of the court appointing him, and gave the citizen the unconditional right to bring his action in the local courts, and to have the justice and amount of his demand determined by the verdict of a jury. He ceased to be compelled to litigate at a distance, or in any other forum or according to any other course of justice than he would be entitled to if the property or business were not being administered by the federal court. * * As, however, the receiver, as the officer of the court, holds the property for the benefit of all who have an interest in it, and is not to be interfered with in its administration and disposal by the judgment or process of another court, the closing clause of the section, out of abundant caution, provides that, when the receiver is sued without leave, 'such suit shall be subject to the general equity jurisdiction of the court in which said receiver or manager was appointed, so far as the same shall be necessary to the ends of justice.' Of course, it devolves on the court in possession of the property or funds out of which judgments against its receiver must be paid to adjust the equities between all parties, and to determine the time and manner of payment of judgment creditors necessarily applying for satisfaction from assets so held to the court that holds them. But as we observed in Railroad Co. v. Johnson, 151 U. S. 81, 103, 14 Sup. Ct. 250, 256, 38 L. Ed. 81, 'the right to sue without resorting to the appointing court, which involves the right to obtain judgment, cannot be assumed to have been rendered practically valueless by the further provision of the same section of the statute which granted it.'" The demurrer to the second paragraph of answer was properly sustained.

Under an assignment of error that the court below erred in overruling appellant's motion for a new trial, the appellant next urges that Addis Hawkins, for whose death this action was brought, was so manifestly guilty of contributory negligence that the appellant's request for a peremptory instruction to the jury to find in its favor should have been granted. Looked at in a light most favorable to appellee, as it is our duty to do on appeal, the evidence shows the following facts and circumstances relative to the death of appellee's decedent: Said dece

dent and his son, a young man, left their home, which was situated a few miles from the city of Indianapolis, to go to said city, shortly after 5 o'clock on the morning of February 9, 1898. They drove one horse, attached to a covered buggy. The horse was a slow traveler, and the buggy rattled. The morning was dark and foggy, and it had been raining. Their road to the city was along a highway termed the "Morris Pike." This road extended east and west, and it was crossed at what was called "Wright's Crossing" by said railroad. The lines of said railroad and of said highway, as they extend to said crossing, constitute rather an acute angle. Decedent and his son, in proceeding to said city, were required to travel east along said highway, and close to the north rail of said railroad, until the railroad and the highway intersected at said crossing. To the west of said crossing the highway had been worked and traveled to a width of 16 or 18 feet. The railroad company, as the second comer, had undertaken to discharge its statutory duty of restoring the highway by putting planks across it at the intersection to a width of 10 or 12 feet. It had, however, put said planks 201⁄2 feet further east than was proper, in view of, the intersection of the highway and the railroad, with the result that a person crossing the railroad at that point would require a few more seconds to cross the right of way than would be required if the highway had been properly restored. Decedent and his son reached said crossing about 5:35 a. m. They were last seen in life by a witness named Smith, who testified that they passed him on the highway, and that when they were 70 or 75 feet from the crossing, and 25 feet from the north rail of the railroad track, he noticed that the buggy was stopped, and he saw the light cap of the younger man above the top of the buggy cover. The witness was permitted, without objection, to express the opinion that he thought they were looking for a train. A passenger train was, in point of fact, coming from the west. There is evidence that it approached and passed over said crossing at the rate of 65 miles an hour, that the locomotive had no headlight, and that the statutory signals were not given. The witness whose testimony we have mentioned above, who claims to have been afoot, further testified that when he saw the younger man looking, as he supposed, for a train, he also looked in the same direction, and also listened, but that he did not hear or see any train at that time; that before he had taken many more steps he heard the train coming, and, looking around, was able to see the front part and the side of the locomotive, and "a little bit of light in the coaches, shining out, like." One witness, who was at work at the time, testified that it was so dark that a horse and vehicle could not be seen at a greater distance than 30 feet. A number of other witnesses testify to seeing the lights in the

windows of the coaches, but all of them, unless it be the witness whom the buggy passed, occupied positions where they could better observe said lights than the decedent and his son, because they were at points further from the track. It also appears that a number of said witnesses heard the noise of said train. The wind was blowing from the northeast. Both the decedent and his son possessed the usual human capacity to see and hear. The track was straight. There was a heavy down grade to the east, and a locomotive headlight could be seen from the crossing for the distance of a mile to the west thereof, and we think that there was evidence from which the jury might have inferred that a headlight could have been seen for that distance to the west at the point where the younger man apparently looked back. The locomotive collided with the conveyance at the crossing. Both men and the horse were killed by such collision, and their bodies were found at considerable distances to the east of the crossing.-those of the two men on one side of the track, and that of the horse on the other.

There is very little of difficulty in the determination of the law in such a case as this. The difficulty arises in the application of the law to the facts. The rights of a traveler and of a railway company at a point where a railway and a highway intersect have been said to be "mutual, coextensive, and in all respects reciprocal." 1 Ror. R. R. 531; 3 Elliott, R. R. § 1153. But owing to the mo mentum of trains, the confinement of their movement to a track, and the necessities of railway traffic, the traveler must yield precedence in the right of passage. Railway Co. v. Walker, 113 Ind. 196, 15 N. E. 234, 3 Am. St. Rep. 638, and cases cited. A grade crossing is, in itself, to a person acquainted with its existence and about to pass over the same, a warning of danger; and, as a result. the law has marked out the quantum of care that he must exercise with more precision than would be possible in most cases where the question of contributory negligence is involved. In cases of this character a triai court should not, in instructing the jury upon the duty of the person injured or killed, stop with the generality that such person was required to use ordinary care for his own safety, but it should instruct the jury as to some, at least, of the duties of a person about to cross a railway track upon a highway. The statement so frequently found in the authorities, that a traveler must look and listen, is one that especially applies to a case of this kind. Railway Co. v. Howard, 124 Ind. 280, 24 N. E. 892, 8 L. R. A. 593, 19 Am. St. Rep. 96; Railway Co. v. Stommel, 126 Ind. 35, 25 N. E. 863; Smith v. Railroad Co., 141 Ind. 92, 40 N. E. 270; Engrer v. Railway Co., 142 Ind. 618, 42 N. E. 217; Oleson v. Railway Co., 143 Ind. 405, 42 N. E. 736, 32 L. R. A. 149; Railroad Co. v. Stick, 143 Ind. 449, 41 N. E. 365; Railway Co. v. Fraze,