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 Brocken borough 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. Or tion. It 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. Shot well, 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 an opportunity to inquire into the source of the witness' information; and until he did make such inquiry, and developed the fact that the source of information was improper, or counsel had been denied the privilege of inquiring into the source of information, he could not insist on the evidence being struck out because the source from which the wit ness refreshed his memory did not appear. We do not think the objection made to the testimony was well taken in the motion to strike it out. The next alleged error is the admission in evidence of a part of a document which purports to be "The Report of the Paraguayan Investigation. Appellees contended that the decedent was absent from the city of La Fayette, and in the cities of Washington and New York, at the time the note matured; and when it was claimed the decedent had talked with Behm at his office in the city of La Fayette about its payment, and directed him to induce the appellant to take up the note and hold it against him, the said decedent, and for the purpose of showing the whereabouts of the decedent, and his absence from La Fayette, appellees offered in evidence what purported to be the Report of the retrial of the cause, and it is unnecessary to consider them. Judgment reversed, at costs of appellee. (120 Ind. 596) NOWLIN et al. v. WHIPPLE et ux. (Supreme Court of Indiana. Nov. 6, 1889.) EASEMENTS-IRREVOCABLE LICENSE. Where an agreement to erect gates and of way over the land has been fully complied maintain division fences in consideration of a right with, and the way used for over 30 years, the license becomes irrevocable. Appeal from circuit court, Dearborn county; W. H. BAINBRIDGE, Judge. Roberts & Stapp, for appellants. Creighton Dandy, for appellees. MITCHELL, J. This was an action by Annie E. Nowlin and others against Luman C. Whipple and his wife, Nancy Whipple, the purpose of the suit being to obtain a decree perpetually enjoining the defendants from using an alleged private way over a tract of land which the plaintiffs own as tenants in common. Nancy Whipple is the owner of a 50-acre tract of land, and she and her codefendant assert a right to a drive-way 12 feet wide, and about 1,000 feet in length, across the plaintiffs' land, in order to gain that the defendants, after having used the way for a period less than 20 years, continued to use it for more than 30 years afterwards under an agreement with the owner. This constituted a permissive use under a license. Such a use cannot be adverse, and will not serve as the basis of a prescriptive right. Shellhouse v. State, 110 Ind. 509, 11 N. E. Rep. 484. A general right, as by prescription, cannot be maintained by alleging and proving a particular or permissive right. Parish v. Kaspare, supra; Pentland v. Keep, 41 Wis. 490; Turnpike Co. v. Piper, 77 Pa. St. 432; 9 Amer. & Eng. Cyclop. Law, 367. 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 both tracts of land involved in the present suit were the property of Ezekiel Jackson, who died about that time. The tract now owned by the plaintiffs was inherited by and set off to the decedent's son, Jeremiah, and that owned by Mrs. Whipple, who is a daughter of Ezekiel Jackson, was acquired by her in like manner. While the land was thus owned by Mrs. Whipple and her brother the Whipples used the drive-way in question. In 1853 the first-named tract became the property of Jeremiah Nowlin, who agreed with the Whipples that if they would erect 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 easement 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 a right of way had been given in favor of the 50-acre tract over that owned by the plaintiffs, and that the way in dispute had been used continuously, under a claim of right, for 40 years or more prior to 1885, when the plaintiffs, the descendants of Jeremiah Nowlin, sought to prevent the further use of the way. pleasure of the licensee, yet where a consideration has been paid, or value parted with, on the faith that the license shall be perpetual, it cannot be revoked to the injury of the licensee. Snowden v. Wilas, 19 Ind. 10; Robinson v. Thrailkill, 110 Ind. 117, 10 N. E. Rep. 647, and cases cited. An executed parol license may become an easement upon the land of another, and may impose a serviThe question now is whether, upon the tude on one tenant or estate in favor of anforegoing facts, the judgment of the court other dominant 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. Barricklow, 68 Ind. 356; Parish v. Kaspare, 109 Ind. 586. 10 N. E. Rep. 109; Hill v. Hagaman, 84 Ind. 287. Adverse user is such a use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right. Such a use of property, continued without interruption for a period of 20 years or more, is equivalent to a grant. Roots v. Beck, 109 Ind. 472, 9 N. E. Rep. 698; Blanchard v. Moulton, 63 Me. 434. Where it appears that one has enjoyed a right of way over the land of another for a period of 20 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 burden of showing the contrary lies on the owner of the land. The presumption which arises from proof of uninterrupted adverse use for the required period is that there was a grant, and this presumption can only be overturned by proof that the use was by permission, or in some other way not inconsistent with the rights of the owner of the land. Garrett v. Jackson, 20 Pa. St. 331; Pierce v. without placing the licensee in statu quo. Woodbury v. Parshley, 7 N. H. 237. The defendants erected and maintained gates at their own expense, upon the faith of an agreement that they were to have a perpetual easement to pass over the plaintiffs' lands. This agreement having been fully executed and acquiesced in by the parties who made it for more than 30 years, a court of equity will not now permit the license to be revoked. There was no error. The judgment is affirmed, with costs. PEOPLE v. Budd. (117 N. Y. 1) CONSTITUTIONAL LAW-POLICE POWER-ELEVATOR 1. Act N. Y. 1888, c. 581, § 1, fixes the maximum charge for receiving, weighing, and discharging grain by means of elevators at fiveshoveling grain to the leg of the elevator, "the act eighths of a cent a bushel, and for trimming and ual cost," and a violation of the act is made a misdemeanor. The act is restricted to cities of not less than a certain population, which includes only cereals of the country passes from the Great Lakes three cities. A large proportion of the surplus through the elevators of one of these cities, from 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 grain, thus affording great facility for a monopoly. Held, that the business of elevating grain is so affected with a public interest that the act is within the police power of the state, and is not unconstitutional as depriving elevator owners of property without due process of law. GRAY and PECKHAM, JJ., dissenting. 2. The provision that "actual cost" only shall be charged for trimming and shoveling cannot be evaded by the elevator owner's hiring his shoveling apparatus to others, and receiving out of the amount charged for its use such sum as may be agreed on between him and the hirers. 3. Where, on trial for violating the act, it was undisputed that defendant charged an illegal rate for elevating grain, and a conviction was followed by the infliction of the lowest penalty for a single offense, a refusal to withdraw from the jury an allegation of overcharge for trimming and shoveling was not prejudicial error, though such allegation were not proven. Appeal from supreme court, general term, fifth department. Spencer Clinton, for appellant. George T. Quinby, for the People. a violation of the first section in two particulars, viz., in exacting more than the statute rate for elevating the cargo, and exacting more than the actual cost for shoveling the grain to the leg of the elevator. a Before reaching the main question there is subordinate question to be considered. The defendant on the trial raised the question of the constitutionality of the act of 1888, and also insisted that, as to the alleged overcharge for shoveling, the facts did not show that the defendant had received anything for that service, or that the cargo had been charged more than the actual cost, and excepted to the submission to the jury of that branch of the case. The trial judge overruled both points, and submitted the case to the jury in both aspects, who found a general verdict of guilty, and thereupon the court imposed upon the defendant a fine of $250. It is now urged that, assuming the constitutionality of the act of 1888, the judgment should be reversed, for the reason that no overcharge by ANDREWS, J. The main question upon the defendant 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 only 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 first 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 misde- to separate the services, and charge for the meanor, punishable by fine of not less than $250. The third section gives a civil remedy to a party injured by a violation of the act. The fourth section excludes from the operation of the act any village, town, or city having less than 130,000 population. The defendant, the manager of a stationary elevator in the city of Buffalo, on the 19th day of September, 1888, exacted from the Lehigh ValJey Transportation Company, for elevating, raising, and discharging a cargo of corn from a lake propeller at his elevator, the sum of one cent a bushel, and for shoveling to the leg of the elevator the carrier was charged and compelled to pay $4 for each thousand bushels. The shoveling of grain to the leg of an elevator at the port of Buffalo is now performed, pursuant to an arrangement made since the passage of the act of 1888, by a body of men known as the Shovelers' Union, who pay the elevator $1.75 a thousand bushels for the use of the steam-shovel, a part of the machinery connected with the elevator, operated by steam, and who for their services, and the expense of the steam-shovel, charge the carrier for each thousand bushels of grain shoveled the sum of $4. The defendant was in use of the steam-shovel any sum which might be agreed upon between themselves and the Shovelers' Union, and thereby, under color of charging for the use of the steam-shovel, exact of the carrier a sum for elevating beyond the rate fixed by the act. No There is a second answer to the proposition. It was undisputed that the defendant exacted a greater charge for elevating than the sum allowed by the act. This was proven by testimony on the part both of the prosecu tion and the defendant. The verdict of guilty was followed by the infliction of the lowest penalty for a single offense. The verdict and sentence were justified without considering whether an offense was made out under the second allegation in the indictment. question as to the form of the indictment was made. The joinder of several distinct misdemeanors in the same indictment is not a cause for the reversal of a judgment, where there is a general verdict, and the sentence is single, and is appropriate to either of the counts upon which the conviction was had. Polinsky v. People, 73 N. Y. 65. Even if the alleged overcharge for shoveling was not made out, the verdict and sentence are sup ported by the findings of the jury on the other branch of the case, and the refusal of the judge to withdraw from the jury the consideration of the question whether there was an overcharge for shoveling could not prejudice the defendant. of free government. This court has recently, in several notable instances, vindicated the rights of individuals against unjust and arbitrary legislation restraining freedom of action or imposing conditions upon private 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. Gillislative 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 among 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 cases 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 spliere. 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 no 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 legislation of this kind, to some extent and within certain limits, is questioned by none. But such legislation may overpass the boundaries of legislative power, and violate the constitutional guaranty; for it is now an established principle that this guaranty protects property and liberty, not merely from confiscation or destruction by legislative edicts, but also from any essential impairment or abridgement not justified by the principles legislative power under the written constitution of the American states. But the great land-marks of civil liberty embodied in our state constitutions were established by our English ancestors, and upon questions such as the one now before us we may study with profit the principles and practice of the law of England. When a statute is challenged as overstepping the boundaries of legislative power. the object sought to be attained by the legisla . not distinguishable in principle from, the act (chapter 581, Laws 1888) now under review. The question in that case was raised by an individual owning an elevator and warehouse in Chicago, which had been erected for, and in connection with which he had carried on, the business of elevating and storing grains for many years prior to the passage of the act in question, and prior also to the adoption of the amendment of the constitution of Illinois, in 1870, declaring all elevators and warehouses where grain or other property is stored for a compensation to be public warehouses. The case of Munn v. Illinois has been referred to by this court in several cases. People v. Railroad Co., 70 N. Y. 569; Bertholf v. O'Reilly, 74 N. Y. 509; Railroad Co. v. Railroad Co., 111 N. Y. 132, 19 N. E. Rep. 63; People v. King, 110 N. Y. 418, 18 N. E. Rep. 245. 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 harbor of New York, and there discharged by elevators into warehouses or ocean vessels. The business of transporting grain by the lakes, and thence by the Erie canal to New York, is one of great magnitude. The case shows that about 120,000,000 of bushels of grain annually come to Buffalo from the west. The business of elevating grain at that point is mainly connected with lake and canal transportation. It is shown by official records that the receipts of grain at New York in the year 1887, by way of the Erie canal and Hudson river, during the season of canal navigation, exceeded 46,000,000 bushels, -an amount very largely in excess of the amount received during the same period by rail and by river and coast wise vessels. The elevation of this grain from lake vessels to canal-boats takes place at Buffalo, where the case shows there are 30 or 40 elevators, stationary and floating. How many of these elevators are actually employed in the business does not appear. The record is silent as to many facts which might tend to explain the relation of this business, as actually conducted, to the public interests. It is asserted that a combination exists, and has for several years existed, between the elevator owners to maintain excessive charges, by fixing a uniform tariff, and pooling the earnings, and dividing them ratably among all the elevator owners, although but a part of the elevators are actually operated. See report of the committee on foreign commerce of the Chamber of Commerce of New York, made in April, 1885. There is no evidence in the record as to the location in the port of Buffalo suitable and available for stationary elevators. It is evident that they must be placed where they can be reached by both lake vessels and canal-boats, and it may reasonably be assumed that but a limited area (not devoted to other purposes of commerce) is available for the erection of stationary elevat ors. The case of Munn v. Illinois, 94 U. S. In People v. Railroad Co., which related to the power of the legislature to compel the defendant to build a bridge at a point where the railroad of the defendant crossed a highway, the court, by EARL, J., said: "This whole subject of the legislative power over railroads, and even private persons, holding and using their property for public purposes, has been so fully discussed recently in the supreme court of the United States in the Granger Cases, 94 U. S. 113, and the Chicago Elevator Case, as to make further discussion unnecessary here. Such legislation violates no contract, takes away no property, and interferes with no vested right." In Bertholf v. O'Reilly, Munn v. Illinois was cited as illustrating the scope of the police power in legislation. In Railroad Co. v. Railroad Co., which involved the question of the right of the legislature to regulate and reduce the fare on street railways in the city of Buffalo, which it was claimed affected a contract entered into between two of the companies prior to the passage of the act, this court affirmed the validity of the law; and RUGER, C. J., in pronouncing the opin |