prayed for. Even in the absence of such finding, as we have already intimated, since the narrowing of a street, in contemplation of law, is a matter of public concern, it must be assumed by the courts that the work entered upon in this instance was deemed to be for the public benefit. It may be doubted, although we decide nothing upon the point, whether the motives which induced the board of trustees to act could become the subject of inquiry in this proceeding. It is contended, lastly, that the demurrer to the complaint was properly sustained, because it appears in the transcript that Jasper county was the owner of the property to be affected by the narrowing of the street, and because it further appears that the county was not notified of the proceeding. In the list of property which it is alleged will be affected by the improvement prayed for occurs the following: "Public square, Jasper county." What the property is, or in what manner it will be affected, is left to inference. From the proof of notice set out in the record, it appears that notice was personally served on "John W. Powell, sheriff of Jasper county, in charge of the public property of said county." The statute regulating the giving notice in such cases (section 3368) enacts that "notice shall be given by personal service, or by leaving the sanie with * the owners or agents of lots or lands upon or through which the public improvement or street or alley is proposed to be made." The county has made no objection, and is not now making objection, to the notice thus served. Whether the land-owners were properly served with notice was a jurisdictional fact, which the board of trustees were required to determine. A notice having been served, apparently in conformity with the statute, and the board having, as their record affirmatively shows by a recital therein, determined that the notice thus set out was due notice to the county, their finding is conclusive, at least against others who were properly served. Porter v. Stout, 73 Ind. 3; Grimes v. Coe, 102 Ind. 406; S. C. 1 N. E. Rep. 735. * * If there were any other objections to the proceedings, they have not been pointed out, and must be deemed to have been waived. Those relied on do not seem to us to have been well taken. It was therefore error to sustain a demurrer to the complaint. The judgment is reversed, with costs, with directions to the court below to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion. NOTE. The easement of right of way in a public highway or street is property which may not be taken away or damaged without compensation, and the abutting lot-owner may recover damages for the interference with his easement, and for the decrease in the value of his premises, regardless of the fact whether he or the municipal corporation own the fee of the street. City of Denver v. Bayer, (Colo.) 2 Pac. Rep. 6. The abutting lot-owner holds his easement in the street subordinate to the rights of the public therein. Fifth Nat. Bank of N. Y. v. New York Elevated R. Co., 24 Fed. Bep. 114. CRIMINAL LAW-INDICTMENT-IMPOSSIBLE DATE. An indictment which states an impossible date is bad on motion to quash. Appeal from Owen circuit court. Edgar C. Steele and Willis Hickam, for appellant. The Attorney General, for appellee. NIBLACK, C. J. Over a motion to quash the indictment, the appellant was tried, and, over a motion in arrest of judgment, was convicted of an alleged criminal offense upon an indictment, the body of which reads as follows: "The grand jurors of the county of Owen and state of Indiana on their oath present that, at the county of Owen and state of Indiana, on the sixteenth day of August, 18184, one Thomas Murphy did then and there unlawfully sell to John Vaughn, at and for the price of ten cents, a less quantity than a quart at a time, to-wit, one gill of whisky; he, the said Thomas Murphy, not then and there having a license to sell intoxicating liquors in a less quantity than a quart at a time." The only question made on behalf of the appellant is upon the sufficiency of the indictment, the contention being that the indictment is fatally defective because the time at which the offense is charged to have been committed is subsequent to the return of the indictment, and is consequently an impossible time. It is argued on behalf of the state that the fair inference from the case of State v. Sammons, 95 Ind. 22, is that an impossible date in an indictment is the equivalent of no date at all; and that, as section 1756, Rev. St. 1881, provides that no indictment or information shall be quashed or set aside, or proceeding upon it arrested, for cmitting to state the time at which the offense was committed, or for stating the time imperfectly, unless time is of the essence of the offense, the fixing of an impossible date is no longer a cause for quashing an indictment. The opinion in that case does intimate that the imperfect statement of time then under consideration might, perhaps, have been treated or regarded as the equivalent of no statement of any particular time, but it really decides only that an indictment ought not to be quashed for omitting to state the time at which the alleged offense was committed, or on account of an imperfect statement of the time. There is nothing in that case, either changing or intimating any change, in the old rule that the allegation of an impossible date vitiates an indictment. State v. Noland, 29 Ind. 212; Moore, Crim. Law, § 162. Nor does the section of the Criminal Code of 1881 referred to work any change in that rule. It is, on the contrary, inferable from the case of State v. Sammons, in question, that an indictment is bad which either distinctly states an impossible date, or fixes the date of the offense at a time beyond that limited by the statute of limitations. This inference results in part from the rule, impliedly recognized in that case, that upon a motion to quash an indictment it is, for the purposes of the mo tion, admitted by both parties that the time at which the offense is charged to have been committed is correctly stated, and partly from the conclusion then reached that the common-law rule that a day certain, not beyond the statutory limit, must be stated in an indictment, is still in force in this state, except in so far as it has been changed or modified by some statute. As has been seen, section 1756, Rev. St. 1881, the only section bearing directly on the subject, only renders immaterial the omission to state any time, and an imperfect statement of time, and hence only to that extent changes the common-law rule. Since, upon the motion to quash in this case, it was mutually admitted that the alleged unlawful sale of intoxicating liquor was made at a date subsequent to the return of the indictment, the motion to quash the indictment ought to have been sustained. The judgment is reversed, and the cause remanded, with instructions to the court below to sustain the motion to quash the indictment. (105 Ind. 204) EVANS v. EVANS. Filed March 27, 1886. ACTION-CHANGE OF VENUE FROM COUNTY-REFUSAL TO GRANT, NOT HARMLESS ERROR. The erroneous overruling of a motion for a change of venue from the county cannot be treated as a harmless error. Appeal from Kosciusko circuit court. On petition for rehearing. See 5 N. E. Rep. 24. Frazer & Frazer, A. G. Wood, and R. B. Encell, for appellant. ZOLLARS, J. We cannot treat the refusal of the court below to grant a change of venue from the county as a harmless error. If we might so treat it in this case, simply because a trial by jury cannot be demanded as a matter of right, then we might treat as a harmless error such a refusal in all other cases where a trial by jury cannot be demanded as a matter of right. To so hold, would be, to that extent, to overthrow the statute giving the right of a change of venue from the county. If that statute is an unwise one, resort must be had to the legislature for its repeal, amendment, or modification. When a statute is constitutional, this court cannot question its propriety. Appellant's legal rights, as given by the statute, were violated by the overruling of his motion to change the venue from the county. There is nothing in the record before us to show that this did not affect his substantial rights. Upon the question of the duty of appellate courts, when a former decision is found to have been erroneous, we content ourselves with a citation of the cases of Hibbits v. Jack, 97 Ind. 570; Hines v. Driver, 89 Ind. 339; Paul v. Davis, 100 Ind. 422. Petition for a rehearing overruled. (101 N. Y. 685) COURT OF APPEALS OF NEW YORK. In re Application of NEW YORK, W. S. & B. R. Co. to acquire Title to Lands of NANCY L. ALBERTSON and another.1 Filed March 23, 1886. RAILROAD-PETITION TO ACQUIRE LANDS-INJURY TO LAND-OWNER INCIDENTAL. The respondent, the N. Y., W. S. & B. R. R., by petition, sought to take a piece of upland described therein, and appellant opposed the same on the ground that the causeway to be erected in connection therewith would cut off access to a wharf belonging to her. Held, that, as there was no legal objections to the proceedings as to taking the land, the remedy for any interference otherwise with appellant's rights was not by an appeal from the order, but by an action at law. Appeal by land-owner from order of general term, Second department, affirming an order of special term of the supreme court, date May 20, 1882, which confirmed a report of commissioners of appraisal of damages. The New York, West Shore & Buffalo Railroad laid out its railroad across a cove in the Hudson river, in front of the lands of Nancy Albertson, in the town of Stony Point, Rockland county, distant, at the point of deepest indentation, about 300 feet from the lands of Mrs. Albertson, and crossing a point of land belonging to her. Proceedings were instituted under chapter 140, Laws 1850, to acquire title to the lands of Mrs. Albertson over which the railroad was thus laid, and $6.88 was awarded by the commissioners. The report was confirmed, and an appeal taken to general term, which affirmed the order, and she appealed to the court. It was admitted that Mrs. Albertson had no grant under water, and the railroad had acquired title to lands under water. Edward Wells, for appellant. Calvin Frost, for respondent. MILLER, J. It is claimed that the building of the embankment and the laying of the railroad track across the bay, thus cutting off the dock of the appellant, is a violation of section 28, c. 140, Laws 1850; that this dock has been used by appellant and her ancestors for more than 40 years for freighting purposes, etc.; that the railroad company have built a solid embankment, on which trains are running, across the bay, which has cut off all communication between appellant's wharf and the water inside and the river outside of the embankment. This point does not arise upon the papers presented on this appeal. The petition asks to take only a piece of upland, described in the schedule by courses and distances, and as containing 4.14 acres, more or less. The respondent did not apply for any right to cross the bay, or in any way interfere therewith. It only sought to take a piece of upland which was described in the petition. In regard to the taking of this land there can be no valid legal objection to the proceedings. As to any interference other 1 Affirming 29 Hun, 675, mem. V.5N.E.no.5-49 If the wise, the remedy is not by an appeal from the order in this matter. petitioner has erected a nuisance in front of the appellant's wharf, which unlawfully interferes with her rights and privileges, she can proceed by an action at law against it for damages, or by an equitable action to remove the same. She has no redress upon this appeal. No other question is raised which requires examination. The order should be affirmed, with costs. (All concur, except RAPALLO, J., absent.) (101 N. Y. 586) PRESTON V. HAWLEY. Filed March 23, 1886. LANDLORD AND TENANT-RELATION MUST BE SHOWN IN ACTION FOR USE AND OCCUPATION-VENDOR REMAINING IN POSSESSION NOT LIABLE AS TENANT. Where defendant sold premises to plaintiff, but failed to remove certain stock therefrom for two months, and, when demand for rent was made, said that it was excessive; that he should pay for storage and not for regular rent; held, that no relation of landlord and tenant was shown, and that plaintiff could not sustain an action for use and occupation. Appeal from a judgment of general term, supreme court, affirming a judgment entered herein, at circuit, by the court without a jury. Geo. Wilcox, for appellant. Geo. M. Preston, for respondent. RUGER, C. J. The plaintiff sought to recover in this action for the use and occupation by the defendant of certain real property belonging to the plaintiff. It is not disputed by the respondent but that it was not only necessary to prove the title of the premises in the plaintiff, and the occupancy thereof by the defendant, but that the conventional relation of landlord and tenant existed between the parties, in order to maintain the action. Thompson v. Bower, 60 Barb. 476; Sylvester v. Ralston, 31 Barb. 286; Hall v. Southmayd, 15 Barb. 36. This is the uniform doctrine of the cases and elementary writers, and has been indisputable law since the enactment of the statute authorizing this form of action. It is not, however, essential that the relation should be created by written instrument or express agreement, but there must be proof of some circumstances authorizing an inference that the parties intended to assume such relations towards each other to support the action. Benjamin v. Benjamin, 5 N. Y. 383, authorities, supra. No direct evidence was given by the plaintiff tending to prove such relations, but they were attempted to be shown by circumstances which it was claimed would justify the inference that the occupation in question was enjoyed by the defendant under the expectation on his part of rendering compensation therefor by the payment of rent. We are of the opinion that there is no proof in the case from which the court were authorized to draw such an inference. The evidence was very brief, and was substantially to the effect prior to June 7, 1883, the defendant took title to the premises in question, consisting of a large hat factory, and |