baum Bros. & Co. v. Negibben, 73 Ky. 419; Tiedeman v. Knox, 53 Md. 612; William T. Hardie & Co. v. Vicksburg, S. & P. Ry. Co., 118 La. 253, 42 South. 793.

The decision of the federal Supreme Court in the Shaw Case is largely based upon the argument that bills of lading are so little adapted to receive the attributes of full negotiability that a purpose to give them that quality is not readily to be inferred. This argument appeals to us with the less force because this court is aligned with those which maintain, against the numerical weight of authority, that an innocent purchaser of a bill of lading should stand upon a better footing than the original holder. That a number of states have by unambiguous legislation made bills of lading strictly negotiable tends also to weaken the effect of the argument.

In the opinion in the Shaw Case it is said: "It cannot be * that the statute which made them [bills of lading] negotiable by indorsement and delivery, or negotiable in the same manner as bills of exchange and promissory notes are negotiable, intended to change totally their character, put them in all respects on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes. Some of these consequences would be very strange, if not impossible. Such as the liability of indorsers, the duty of demand ad diem, notice of nondelivery by the carrier, etc. Shaw v. Railroad Co., 101 U. S. 557, 565, 25 L. Ed. 892.

** *

[4] Treating the bills of lading as strictly negotiable, the fact that they were issued without the actual receipt of the goods constitutes no defense against an innocent purchaser. It amounts merely to a failure of consideration. As they were executed by an agent charged with the execution of such instruments, they are binding upon the company, as far as is necessary to protect intervening rights, notwithstanding his breach of duty. 10 Cyc. 1174; 2 A. & E. Encycl. of L. 349; 7 A. & E. Encycl. of L. 794, note.

[5] The rule is not changed by the fact that the statute makes it a criminal offense for any agent of a railroad company to issue a bill of lading, unless the goods have actually been received. Such an act would be wrongful without the statute; that it is penalized does not alter the situation so far as the rights of third parties are concerned. As was said of a similar enactment, in a dissenting opinion in Hunt & Macauley v. Mississippi Central Railroad Company, 29 La. Ann. 446, 463: "The animus of this statute is unmistakable. It was intended to protect both the carriers and the public, the ́ former by punishing any persons in their employ for issuing false bills of lading or receipts, and the latter by putting such bills or receipts upon the same footing as commercial paper, and protecting the holder in good faith with all the privileges and immunities given to bills of exchange and promissory notes." In William T. Hardie & Co. v. Vicksburg, S. & P. Ry. Co., 118 La. 253, 258, 42 South. 793, this dissenting opinion is approved; the decision of the court being overruled.

We need not determine whether the Laveille Case can be distinguished upon the other grounds mentioned, but some additional suggestions in that connection may be pertinent.

Of this suggestion it is said, in Denis on Contracts of Pledge: "But the object of such a law is simply to make of the transferee of a bill of lading a holder for value and cut off the equities of the true owner, just as in the case of a transferee of a bill In Daniel on Negotiable Instruments it is of exchange or promissory note; in other said: "The master of a ship is generally sepwords, to render bills of lading negotiable arated from his principals, and beyond their paper. Cannot the statutory law do, in that supervision and control. Roving the seas in respect, for bills of lading what the common commercial enterprises, and often thousands law, the mere law of custom, has done for of miles apart from those who trust him, the ordinary negotiable paper? The statute the policy of the law might well shield his of Maryland has rendered bills of lading principals from responsibilities, which, were fully negotiable, as we will see presently. It he in a position under their inspection, and is the law in France and other continental subject to their superintendence, it might countries of Europe, under a different sys- withhold. And in respect to railroad cortem. It is the old commercial law of the old-porations, express companies, and other carest commercial states of Europe. The reason of such a rule, where it exists, is the same as the reason of the negotiability of bills of exchange and promissory notes, to promote commerce by facilitating financial operations." Denis on Contracts of Pledge, § 349.

riers by land, whose agents are within view of superior officers, and subject to speedy removal for delinquencies, it might be well contended that their shipping agents, when acting within the apparent scope of authority, would bind their principals, although in the particular case violating actual authorThe uniform bill of lading act, recommend-ity, and committing a breach of trust." Seced by the conference of commissioners on uniform state laws, contemplates the issuance of negotiable bills of lading which, in the hands of an innocent purchaser, shall be

tion 1733a (5th Ed.).

The contrary view is thus presented in Balto. & Ohio R. R. Co. v. Wilkens, etc., 44 Md. 11, 25, 22 Am. Rep. 26: "The master of

well as an apparent, authority much more ex- (2. HIGHWAYS ( 21*)-GRANT OF RIGHT OF WAY FOR HIGHWAY-ACCEPTANCE. tensive than belongs to the station agents of a railroad company. His control over the vessel, his power to make contracts respecting it, his discretion in the use and management of it for the benefit of his owners, on the high seas and in distant ports, reach far beyond those of the latter. A bill of lading signed by him and forwarded by mail oftentimes arrives at the port of destination months before the vessel and cargo, and the necessities, as well as the convenience, of commercial transactions, requiring its transfer, and advances on the faith of it, are much stronger than can possibly exist in

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

† Rehearing denied May 12, 1911.

has been a clearly marked, well-defined road. I that the road which the officers undertook to “(7) That long prior to the time the plain- lay out became a highway by dedication and tiff became the owner of the tract of land acceptance. The action of the officers was above described, and as early as 1879, said taken when appellant's land belonged to the road was worked by the road overseer of the United States. A homestead entry was made road district through which it runs as a pub- on 40 acres of the tract a year or more after lic road, but that very little public work was the attempt to establish the road was made, ever done on said road where it traversed the and it was several years after that time be plaintiff's premises at any time, and that fore the remainder of it was entered. The soon after he became the owner of said tract act of Congress of 1866 provided that: "The the plaintiff notified the road overseer when right of way for the construction of highabout to work such road on his land that ways over public lands, not reserved for pubthe same was not a public road, and that lic use, is hereby granted." U. S. Rev. Stat. such work was discontinued. § 2477 (U. S. Comp. St. 1901, p. 1567).

"(8) That about years ago Hughes built fences along on each side of the traveled road, leaving about 60 feet between the fences, through which lane the public continued to travel without objection or obstruction until just prior to the commencement of this action, when plaintiff attempted to put a fence across said road, which the defendants, claiming to act as public road officials, took down and removed.

"Conclusions of Law.

In Tholl v. Koles, 65 Kan. 802, 70 Pac. 881, it was held that this act "is a present grant, and, if accepted by the Legislature or the public, in an effectual manner, while the land is a part of the public domain, a highway is established." Here the officers, representing the public, proceeded to lay out the road, fixed its location, and ever after there appears to have been a concurrence of the officers and the general public in treating and using it as a public highway. There was no acceptance of the grant by legislative act, as in the Tholl Case, but an effectual accept

"1. That a public road exists across the plaintiff's land at the place where he at-ance may be made by the officers having tempted to obstruct the travel, and that the charge of the roads, as well as by the public defendants had a right to remove the obstruc- itself. tion and open the road to public travel. In Molyneux v. Grimes, 78 Kan. 830, 832, "2. That the injunction prayed for ought 98 Pac. 278, 279, where the steps taken to to be denied, and that the defendants are en-establish a road were defective and irregutitled to recover their costs herein expended." lar, the court considered the question of Z. C. Millikin, for appellant. F. D. Boyce, what was necessary to an acceptance of the for appellees. congressional grant, and it was said: "It would seem that the public might directly accept the offer of Congress by general and long-continued use, and some of the decisions collected in the work referred to (6 Fed. Stat. Ann. pp. 498, 499 [U. S. Comp. St. 1901, p. 1567]) are to that effect; but whether so or not, it is clear that an effectual acceptance may be made by the officers to whom the matter of establishing highways has been committed by the Legislature."

JOHNSTON, C. J. (after stating the facts as above). About 40 years ago the public officers undertook to establish a highway over the land of appellant. A petition, purporting to be signed by 19 householders, was presented to the board of county commissioners, asking for the laying out of a highway, on which viewers were appointed to lay out the road, after a bond for damages had been given. The viewers met and laid out the highway and made a report of their action, which was accepted by the board on April 7, 1871. Testimony was given to the effect that the Highway attempted to be laid across appellant's land had been traveled ever since it had been laid out in 1871; that it was the main traveled road through that part of the country; that it passed through a narrow defile or gap, and that the travel had been confined to the line surveyed and laid out; that some work had been done on it by the road overseers, and in later years appellant had built fences on each side of the traveled road.

[1] The record of the officers in establishing the road is incomplete, and the proceedings taken by them appear to be somewhat defective. There is a difference of opinion in the court as to whether the condemnation proceedings can be held valid in this col

In Streeter v. Stalnaker, 61 Neb. 205, 207, 85 N. W. 47, 48, where the steps taken by the public officers in establishing a highway were insufficient, the court held that there was enough to constitute an acceptance of the government grant. It was said that: "By this act the government consented that any of its lands, not reserved for a public purpose, might be taken and used for public roads. The statute was a standing offer of a free right of way over the public domain, and, as soon as it was accepted in an appropriate manner by the agents of the public, or the public itself, a highway was established."

[2] In the case at bar we have not only the act of the officers who, acting for the public, caused a road to be surveyed across appellant's land, but we have the action of the public itself in using this road, which the trial court found was a "clearly marked

necessary to an effectual acceptance of a dedication where the owner (the United States in this instance) has given consent, and is holding out a standing offer to dedicate land for a 'highway. Where there is consent by the owner, the length of time of the public use is not important, for upon an acceptance by use the rights of the public to an easement immediately passed and vested. Schwerdtle v. County of Placer, 108 Cal. 5S9, 41 Pac. 448. Here the acceptance does not rest on use alone, but on the action of the officers, who acted for the public, combined with the use by the public itself.

for more than 35 years before the action | narily used in a sparsely settled section of was brought. In considering a like dedica- the state. A long user by the public is not tion and acceptance, the Supreme Court of Oregon said: "The act of Congress is more than a mere general offer to the public, being in effect a dedication of the land, which becomes operative and relates back to the date of the act whenever the public, either by user or by some appropriate act of the highway authorities, affirmatively manifests an intention to use a certain definite portion of the public land as a highway. The right is necessarily indefinite, and, in a sense, floating and liable to be extinguished by a sale or disposition of the land until the highway is surveyed and marked on the ground, or in some other way identified or designated; but when the public authorities [3] The steps taken by the officers toward lay out and locate a road over public land of laying out the road is sufficient evidence of a the United States by surveying and mark-purpose to make a highway over appellant's ing it on the ground, or by some legislative land. It was viewed and located by them, act, or when it is shown by user, the right and, while there was an error in the plat becomes complete, and an intention to accept the dedication is manifested, and subsequent settlers on the land take subject to the easement." Wallowa County v. Wade, 43 Or. 253, 257, 258, 72 Pac. 793, 794.

Smith v. Smith, 34 Kan. 293, 8 Pac. 385, is cited as an authority that a road can not be established on government land so long as the title remains in the United States, but the question of dedication by congressional grant was not presented to or considered by the court in either that or the case of State v. Horn, 35 Kan. 717, 12 Pac. 148, which is also cited. In Molyneux v. Grimes, supra, the claim was made that the Smith Case determined that a public road could not be established through government land by prescription, limitation, or by dedication, but the answer of the court was that "no claim was made under the federal statute, and it was not called to the attention of the court." Page 832 of 78 Kan., page 279 of 98 Pac.

The acceptance of the congressional grant, in a case where the county authorities had not formally established a highway, was again before the Supreme Court of Nebraska, and it was decided that it might be accomplished by the acts of the officers or agents of the public, or by the acts of the public itself, and it was further decided that: "A settler upon the public lands of the general government, upon which there is a road in common and general use as a highway, takes subject to the public easement of a right of way on such road, although the same was never established by the public authorities under the general road laws of the state." Van Wanning v. Deeter, 78 Neb. 282, 110 N. W. 703, 2 Syl.

Here the acts of the officers in locating the road were taken a year before any settlement was made on any part of appellant's land, and the road appears to have been used by the public as much as roads were ordi

filed, the evidence of their action leaves little doubt of the location of the road. The public have since that time used the road, and with very little deviation the travel has been confined to the line located by the officers. The use by the public was immediate and long continued. Some work has been done on the road by those in charge of the highways in that locality, and everybody appears to have treated it as a highway until 1895, when appellant raised a question about the validity of the proceedings taken to lay out the road. That was 24 years after the road had been located and used, and even then he took no steps to prevent travel. Later he built fences on each side of the road, and thus in a way acquiesced in its existence, until about the time this action was brought. It is not necessary to rest the decision on the user by the public for the statutory period of 15 years, but it is placed rather on the concurring acceptance of the officers and the public itself at and shortly after the location of the road. The following additional authorities tend to support the view that the road existed by dedication and acceptance: Wells v. Pennington County, 2 S. D. 1, 48 N. W. 305, 39 Am. St. Rep. 758; Keen v. Board of Sup'rs of Fairview Tp., 8 S. D. 558, 67 N. W. 623; Riverside Township v. Newton, 11 S. D. 120, 75 N. W. 899; Mills v. Glasscock, 26 Okl. 123, 110 Pac. 377; Smith v. Mitchell, 21 Wash. 536, 58 Pac. 667, 75 Am. St. Rep. 858; Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N. W. 270, 18 Am. St. Rep. 441; Eldridge v. Collins, 75 Neb. 65, 105 N. W. 1085; Cassidy v. Sulliyan, 75 Neb. 847, 106 N. W. 1027; Toll Road Co. v. Edwards, 3 Colo. App. 74, 32 Pac. 549; McRose v. Bottyer, 81 Cal. 122, 22 Pac. 393; Rolling v. Emrich, 122 Wis. 134, 99 N. W. 464; Township v. Skauge, 6 N. D. 382, 71 N. W. 544.

The judgment of the district court is af firmed. All the Justices concurring.