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expenditures upon her three houses for two years and five months succeeding her husband's death is open to the same objection. In view of the other evidence as to these parcels of real estate and of her inability and failure to keep any books of account, the accuracy of these figures is open to doubt.
Giving to the petitioner the benefit of the most favorable inference to be drawn from the evidence, we are of opinion that under all the circumstances of this case $500 is as large an allowance as can properly be made. The decree of the probate court must be modified so as to give her that sum. Decree accordingly.
A grant to "one G. and his assigns" of the right to mine minerals created only a life estate in the grantee.
[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 153-165; Dec. Dig. 55.*]
2. DEEDS (§ 140*) - EXCEPTIONS - PROPERTY EXCEPTED.
A clause in a warranty deed, "the said premises subject to a mortgage to S. of $200, which together with the soapstone ledge is excepted from the sale," while technically inapt as to the mortgage, was appropriate to except the ledge from the conveyance, and the grantee took no title thereto.
[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 453, 454, 460-462; Dec. Dig. § 140.*] 3. EVIDENCE (§ 448*)-PAROL EVIDENCE-AMBIGUOUS DEEDS.
Parol evidence of the circumstances under which a deed was executed is admissible, where its terms are ambiguous.
Exceptions from Land Court, Franklin County.
Petition by Abbott L. White against A. A. Shippee and others for the registration of land. Verdict for defendants, and petitioner excepts. Exceptions overruled.
The proceeding was a petition to register title to certain land on a part of which there was a ledge of soapstone.
both of Greenfield, for petitioner.
BRALEY, J.  It was correctly ruled that the prior deed from Ebenezer Rice "to one Griffin and his assigns" of the right to mine soapstone and other minerals created only a life estate, and in the absence of any recitals of evidence or statements to the contrary it must be assumed from the bill of exceptions that Stebbins Rice, to whom Ebenezer subsequently conveyed the farm, and under whom the petitioner by mesne conveyances derives title, was a purchaser for value without either actual or constructive
notice of the incumbrance. Sedgwick v. Laflin, 10 Allen, 430; Wenz v. Pastene, 209 Mass. 359, 95 N. E. 793.
[2, 3] The warranty deed, however, contained this clause, "The said premises subject to a mortgage to Roland Sears of two hundred dollars, which together with the Soapstone ledge is excepted from sale." The petitioner contends that this clause should be construed as meaning only a reference to incumbrances which were excepted from the grantor's covenant of warranty. Undoubtedly where the terms of a deed are ambiguous parol evidence of the circumstances under
[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. which the grant was made is competent. 448.*]
4. ADVERSE POSSESSION (§ 31*)—REQUISITES. There was no acquisition of title to land by adverse possession, where there was no showing of actual knowledge of, or acquiescence by the owner, in, an open and notorious assertion of an adverse claim during the period required to make out a title by prescription.
Derby v. Hall, 2 Gray, 236, 243. But while the reference raises a conclusive presumption of the grantor's knowledge of the ledge, the petitioner fails on the record to show that Stebbins Rice even then knew of the life estate. The language used although technically inapt as to the mortgage, is appropriate [Ed. Note. For other cases, see Adverse as to the ledge, and when so construed the Possession, Cent. Dig. §§ 128-133; Dec. Dig. grantor's intention by the exception to take 31.*]
out of the premises conveyed the portion re5. ABANDONMENT (§ 4*) - ADVERSE POSSES- ferred to, is free from ambiguity, and the SION (§ 19*)-SUFFICIENCY OF ACTS. ruling that no title thereto passed by the The mere failure of the owner of a quar-grant was right. Ashcroft v. Eastern R. R., ry, or of his heirs, to quarry the ledge, did not 126 Mass. 196, 198, 30 Am. Rep. 672. divest him of title; nor did the erection and maintenance of a fence around the entire tract, [4, 5] Nor has the petitioner acquired ownin which the ledge was situated, by the owners ership of the ledge by adverse possession. of the tract under deeds excepting the ledge, The evidence fails to show that, with either constitute proof of all of the essential elements of an adverse possession, merely indi- the actual knowledge or the acquiescence of cating an assertion to the enjoyment of the the owner, the petitioner and his predecessors whole tract. in title asserted openly and notoriously an [Ed. Note. For other cases, see Abandon-adverse continuous claim which during the ment, Cent. Dig. §§ 3-6; Dec. Dig. § 4:* Ad-period required had ripened into a title by verse Possession, Cent. Dig. §§ 99-105; Dec. Dig. 19.*] prescription. Bigelow Carpet Co. v. Wiggin,
and in the probate court, under Pub. St. 1882, c. 11, § 18, providing that the undivided real estate of a deceased person may be assessed to his heirs or devisees, without designating any of them by name, until they have given notice and the names of the several heirs or devisees, to the assessors of the division of the estate, or, if the assessors were unable to learn by reasonable inquiry who the owner was, it might have been taxed as the property of an unknown. proprietor.
209 Mass. 542, 95 N. E. 938. The parties | the former owner's devisees, the owners, as agreed that the outcropping ledge which had shown by the records in the registry of deeds not been quarried during the 40 and more years elapsing since the conveyance to Rice, and the ownership of the petitioner, could be definitely located, and that no way had been defined or established. connecting the ledge with the public road. But the mere failure of Ebenezer Rice during his life, or of his heirs, to quarry the ledge, did not divest his title, and the erection and maintenance of a fence around the entire tract of 40 acres, while significant of an assertion to the enjoyment of the whole by the grantee, and those succeeding him, furnished of itself as the trial judge properly ruled, no proof of the other essential elements. Sargent v. Ballard, 9 Pick. 251; Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 95 N. E. 938. The final ruling, that the petitioner had not established any title to the ledge, having necessarily resulted
from the previous rulings, the exceptions
must be overruled.
(216 Mass. 8)
STONE v. NEW ENGLAND BOX CO. (Supreme Judicial Court of Massachusetts.
Franklin. Oct. 22, 1913.)
[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 174; Dec. Dig. § 84.*] 5. TRESPASS (§ 20*)-SUFFICIENCY OF POSSES
SION TO SUPPORT ACTION.
A person who had the possession of unimproved woodland that constructively followed the title, and actual possession so far as it can be predicated of wild land by frequently going thereon and looking after the bounds, had such possession as entitled him to maintain trespass for cutting timber thereon.
[Ed. Note. For other cases, see Trespass,
Cent. Dig. §§ 32-47; Dec. Dig. § 20.*]
6. DEEDS (§ 108*)-DATE OF VESTING OF TI
Where a father purchased land for his son, taking a deed in the son's name, which he retained until his death, assuming that the title did not vest in the son at the date of the deed, when he accepted it after his father's death, the title thereby perfected related back to the delivery to the father.
[Ed. Note.-For other cases, see Deeds, Cent.
1. TAXATION (§ 734*)-MODE OF ASSESSMENT-Dig. §§ 294-308; Dec. Dig. § 108.*] OWNERSHIP OF PROPERTY.
Under Pub. St. 1882, c. 11, § 13, requiring that real estate should be assessed to the person who was either the owner or in possession thereof, the property could not legally be assessed in any other way, and a tax sale of land assessed to a person who was neither the owner nor in possession thereof was void.
[Ed. Note.-For other cases, see Taxation, Cent.Dig. §§ 1408, 1470-1473; Dec.Dig. § 734.*] 2. TAXATION (§ 79*)-MODE OF ASSESSMENTOWNERSHIP OF PROPERTY-"OWNEP."
A person who, at his son's request and acting as his agent, purchased land, taking a deed in the son's name, which was delivered to the father for his son's benefit, and which the son subsequently accepted, although retained by the father until his death, was not the "owner" of the land, within Pub. St. 1882, c. 11, § 13, requiring real estate to be assessed to the owner or person in possession; he having no equitable interest therein, as no resulting trust existed. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 139, 166; Dec. Dig. § 79.*
For other definitions, see Words and Phrases, vol. 6, pp. 5134-5151; vol. 8, p. 7744.] 3. TAXATION (§ 94*)-MODE OF ASSESSMENTOWNERSHIP OF PROPERTY.
Under Pub. St. 1882, c. 11, § 13, requiring real estate to be assessed to the owner or person in possession, an assessment of unimproved woodland of a nonresident against one who was neither the owner nor in possession could not be sustained as one upon the land itself, on the theory that the name of the owner was immaterial.
[Ed. Note. For other cases, see Taxation, Cent. Dig. § 189; Dec. Dig. § 94.*]
4. TAXATION (§ 84*)-MODE OF ASSESSMENTOWNERSHIP OF PROPERTY.
Where the executors of a deceased owner of land conveyed it by a deed which the grantee did not record, it might have been assessed to
7. TRESPASS (§ 20*)-SUFFICIENCY OF POSSESSION TO SUPPORT ACTION.
Another's occupation and possession of land did not prevent the owner, on a re-entry by him, from recovering for the other's original entry and all intermediate damages, where it was not so continuous as to oust the owner's possession.
[Ed. Note.-For other cases, see Trespass, Cent. Dig. §§ 32-47; Dec. Dig. § 20.*]
Exceptions from Superior Court, Franklin County; Joseph F. Quinn, Judge.
Action by Frank E. Stone against the New
Jas. A. Stiles, Clifford S. Anderson, and
DE COURCY, J. This is an action of tort for a series of trespasses upon a wood lot described in the plaintiff's declaration, and for cutting off the soft wood and timber growing thereon. The plaintiff claimed title to and possession of the premises under a deed to him dated November 15, 1883, from the duly authorized executors of the will of Andrew J. Clark, the former owner, who died October 14, 1882. Until the date of the plaintiff's deed the property was taxed to Andrew J. Clark, and subsequently, until 1894, to Edwin Stone, as "owner." It was sold to the town of Wendell for the nonpayment of the tax so assessed for the year
1884; and the defendant relies on the validi- [ers of unimproved lands to be named in the ty of that tax sale. The main question in assessment, as was pointed out in Desmond the case is whether the assessment to Edwin v. Babbitt, 117 Mass. 233. Stone as owner, under which the sale was made, was valid.
 It was provided by the statute in force at the date of the assessment that this real estate should be assessed "to the person who is either the owner or in possession thereof on the 1st of May." Pub. St. 1882, c. 11, § 13. The assessors could not lawfully assess the property in any other way than that which the law prescribed; and for a valid sale of the property for nonpayment of taxes a strict compliance. with the statutory requirements was essential. Charland v. Home for Aged Women, 204 Mass. 563, 91 N. E. 146, 134 Am. St. Rep. 696, and cases cited. Admittedly unless Edwin Stone was either the owner or in possession on the 1st day of May, 1884, the sale of the property in question to the town of Wendell was invalid.
 In assessing the property as they did the assessors seem to have been misled by a plan of the premises in question and nearby territory, prepared by a surveyor about 30 years ago, on which appeared the words "Sold to Edwin Stone." The owners of record were the devisees of Andrew J. Clark, as shown by the records in the registry of deeds and in the probate court, and the land might have been assessed to them under Pub. St. 1882, c. 11, § 18. Or, if the assessors were unable to learn by reasonable inquiry who was the owner, it might have been taxed as the property of an unknown proprietor. Desmond v. Babbitt, ubi supra. But they could not legally assess it to a person by name, who was neither owner nor occupant; and the tax sale based on such an assessment, from which the defendant derives its rights, was invalid.
[5-7] The defendants entered and cut off the timber standing on the premises in 1911 and 1912. The court was justified in finding that the plaintiff then had such possession as would entitle him to maintain trespass for the acts of the defendant. As already stated, Edwin Stone received the deed in 1883 for the benefit of his son, the plaintiff. Assuming that the title did not vest in the plaintiff at that time, nevertheless when he actually accepted the deed in 1894, after his father's death, the title thereby perfected related back to the first delivery. Foster v. Mansfield, 3 Metc. 412, 37 Am. Dec. 154; Stockwell v. Shalit, 204 Mass. 270, 90 N. E. 570. There were no intervening equities between the delivery in 1883 and the acceptance in 1894; and nothing interfered with the title conveyed by the deed to the plaintiff except the invalid tax sale and deed. There was ample evidence that at the time of the trespasses the plaintiff had not only the possession that constructively followed the title
 There was no evidence that Edwin Stone was "in possession of" the property in 1884 or at any other time. Kerslake v. Cummings, 180 Mass. 65, 61 N. E. 760. Indeed it is apparent from the assessment list and the recitals in the collector's deed that the assessors meant to assess him as owner and not as occupant. And we are of opinion that the trial judge rightly refused to rule that Edwin Stone was the legal owner of the premises within the meaning of Pub. St. 1882, c. 11, § 13. Worcester v. Boston, 179 Mass. 41, 60 N. E. 410. The grantee in the deed from Clark's executors was not Edwin, but his son Frank E. Stone, the plaintiff. Although the deed was delivered to Edwin Stone and retained by him until his death in 1894, there was evidence from which the court could find that in the transaction Edwin was acting as the authorized agent of the plaintiff and at his request; and it is expressly found that "there was a delivery of said deed to plaintiff's father for the benefit of plaintiff and that plaintiff has accepted the same." This is not the case of a-Russell v. Coffin, 8 Pick. 143; Farwell v. man making another his grantee without his consent. Hedge v. Drew, 12 Pick. 141, 22 Am. Dec. 416. The facts would not warrant a finding that Edwin ever had an equitable interest in the property, as no resulting trust existed. Whitten v. Whitten, 3 Cush. 191; Edgerly v. Edgerly, 112 Mass. 175. In no sense could he be considered as the owner of the premises in question for the purposes of taxation.
 It is urged that as the property was unimproved woodland of a nonresident the tax may be sustained as one upon the land itself and the naming of the owner be regarded as immaterial. The case of Alvord v. Collins, 20 Pick. 418, is relied on as authority. But that case arose under St. 1785, c. 70, which did not require nonresident own
Rogers, 99 Mass. 33-but actual possession,
(88 Ohio St. 283)
(Supreme Court of Ohio. June 27, 1913.)
(Syllabus by the Court.)
1. EMINENT DOMAIN (§ 167*)-APPROPRIATION OF PUBLIC PROPERTY-PROCEEDINGS.
Section 6420, Revised Statutes 1908, is a part of title 2, c. 8, pt. 3, Revised Statutes 1908, applicable to proceedings brought under favor of section 3283a to appropriate an easement over public ground lying within the limits of any municipality and dedicated to the public for use as a public ground, common, landing, wharf, or any other public purpose, excepting streets, avenues, alleys, or public roads.
pensation therefor to be ascertained according to the methods provided by law.
[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 3, pp. 2362-2366; vol. 8, p. 7648.] 6. EMINENT DOMAIN (§ 8*)-CONSTRUCTION OF STATUTES.
of eminent domain must be strictly construed. Statutes granting to corporations the right [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 25, 30, 34, 43, 44; Dec. Dig. 8 8.*]
Error to Circuit Court, Hamilton County. Proceedings by the Louisville & Nashville Railroad Company against the City of Cin[Ed. Note.-For other cases, see Eminent Do- cinnati and others to appropriate an easemain, Cent. Dig. 88 451-456; Dec. Dig. 8ment over public ground. The Circuit Court 2. EMINENT DOMAIN (§ 66*)-APPROPRIATION reversed a judgment of the Court of InsolyOF PUBLIC PROPERTY-DETERMINATION OF ency dismissing the petition and a judgment NECESSITY. of the Common Pleas Court affirming the same, and defendants bring error. Judgment of Circuit Court reversed and judgment of Court of Insolvency and of Court of Common Pleas affirmed.
Section 6420, Revised Statutes 1908, authorizes the court in which such proceeding is properly brought to hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appropriation, before proceeding to impanel a jury to assess compensation.
On the 21st day of January, 1910, the Louisville & Nashville Railroad Company filed a petition in the court of insolvency of Hamilton county asking that a jury be im
[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 165-167; Dec. Dig. § 66.*] 3. EMINENT DOMAIN (8 66*)-APPROPRIATION paneled to make an inquiry and assessment OF PUBLIC PROPERTY - DETERMINATION OF of the compensation for an easement sought The board of directors of any domestic or to be appropriated by it in certain lands foreign corporation owning or operating a rail- situated in the city of Cincinnati dedicated road wholly or partly within the state of Ohio to public use. This land was dedicated by has primary discretion to determine the necessity for the appropriation contemplated under the original proprietors of the town of Cinthe provisions of section 3283a, Revised Stat-cinnati. A plat was filed and recorded layutes 1908, but under the provisions of section ing off the proposed town of Cincinnati into 6420, Revised Statutes 1908, the court in which lots abutting on streets running in general such proceeding is properly brought has the final authority to hear and judicially determine parallel with and at right angles to the Ohio the existence of the corporation, its right to river. A space extending from the east make the appropriation, its inability to agree boundaries of the proposed town to the west with the owner, and the necessity for the ap-line of Main street and from the north side propriation and power to determine whether the proposed appropriation will be an abuse of its of Front street to the river was not subdividcorporate power or destructive of the public ed into lots. purpose to which the land is already devoted. Wheeling & Lake Erie Rd. Co. v. Toledo Ry. & Term. Co., 72 Ohio St. 368, 74 N. E. 209, 106 Am. St. Rep. 622, 2 Ann. Cas. 941, followed and approved.
[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 165-167; Dec. Dig. § 66.*]
(Additional Syllabus by Editorial Staff.) 4. CONSTITUTIONAL LAW (§§ 280, 328*)-EMINENT DOMAIN (§ 3*)-APPROPRIATION FOR PUBLIC USE-DETERMINATION OF NECESSITY -COURTS.
A statute authorizing a railroad corporation to finally determine the necessity for appropriating land devoted to a public use within a city would be violative of Const. art. 1, § 16, which provides that all courts shall be open and that every person injured shall have remedy by
due course of law.
[Ed. Note.--For other cases, see Constitutional Law, Cent. Dig. $$ 877-890, 950-963; Dec. Dig. §§ 280, 328;* Eminent Domain, Cent. Dig. § 13; Dec. Dig. § 3.*]
5. EMINENT DOMAIN (§ 1*)-DEFINITION.
Some time after this plat was filed and recorded, Joel Williams purchased of the original proprietors their easement and interest in the town, subdivided this open space into lots which he undertook to sell, and also erected a building on a part of these premises. The town of Cincinnati brought a suit against him to quiet its title to this open space as a public common, and in that case the court held that this land had been dedicated to the town of Cincinnati as a common for the uses and purposes of the inhabitants of Cincinnati forever, but did reserve to Joel Williams and his heirs the exclusive right of a ferry opposite said premises and also a landing place
for the purposes of such ferry, also reserving to the said Williams and his heirs the use of a brick house erected by him on said premises, together with a portion of the land for a term of eight years next after the 1st day of April following the date of such decree, and entered a judgment in said cause
enjoining the said Williams from erecting after the passage of this ordinance, the city any further buildings, fences, or nuisances solicitor of Cincinnati brought an action to upon any part of the premises, and ordering | enjoin the railroad company from using and and adjudging that the town of Cincinnati occupying this property under the provisions stand seised of said premises in fee simple and terms of said ordinance; and this court to the use of the inhabitants of said town affirmed a judgment in that case granting a for a common forever. That judgment is perpetual injunction against the Louisville & still in full force and effect. Nashville Railroad Company. Following that decision of this court, the General Assembly of Ohio passed a law amending section 3283, Revised Statutes of Ohio, and supplementing the same by section 3283a. Section 3283 is now sections 8763, 8764, 8765, and 8766 of the General Code. Section 3283a is now sections 8767, 8768, and 8769 of the General Code. Subsequent to the amendment of section 3283 and the enactment of section 3283a, and in pursuance of the authority granted by these sections, the Louisville & Nashville Railroad Company began this proceeding in the court of insolvency.
To this proceeding to appropriate an easement across these premises the city of Cincinnati, the Covington & Cincinnati Bridge Company, and the heirs of Joel Williams were made party defendants.
On the preliminary hearing in the court of insolvency, that court found that plaintiff is a corporation duly organized under the laws of the state of Kentucky and that it owns and operates a railroad partly within the state of Ohio; that the board of directors of the plaintiff company, by resolution duly passed, declared it necessary to make the appropriation sought to be made, and Shortly after filing the petition in this that plaintiff duly submitted to the council case, an injunction proceeding was brought of the city of Cincinnati general plans of to restrain the railroad company from the the structure proposed to be built on and construction of its viaduct and from further over the property sought to be appropriat-prosecuting its action to appropriate an easeed; that the council of the city of Cincin- ment in this property, upon the theory that nati agreed upon the manner, terms, and these acts are unconstitutional. The common conditions upon which said property might pleas court, however, held the act constitutionbe used and occupied by plaintiff and ap- al and the ordinance passed by the city of proved the plans by ordinance duly passed; Cincinnati thereunder a valid ordinance, and that plaintiff within 60 days after the pas- that judgment was affirmed by the circuit sage of said ordinance filed its written ac- court, and the judgment of the circuit court ceptance thereof; that the plaintiff had been was affirmed by this court. 82 Ohio St. 466, unable to agree with the owners as to the 92 N. E. 1111. Error was then prosecuted compensation to be paid them severally for by the city in that case to the Supreme Court their interests in the land sought to be ap- of the United States, and that court affirmed propriated; and further found that the the judgment of the state courts. City of plaintiff is without right to make the appro- Cincinnati v. Louisville & Nashville R. R. priation and that there is no necessity for Co., 223 U. S. 390. the appropriation sought to be made, and thereupon dismissed plaintiff's petition at
Error was prosecuted in the common pleas court of Hamilton county, and that court affirmed the judgment of the court of insolvency. The circuit court of Hamilton county, however, reversed the judgment of the court of insolvency and the judgment of the common pleas court affirming the same and remanded the cause to the court of insolvency for further hearing and trial according to law, and this proceeding in error is now prosecuted to reverse the judgment of the circuit court.
Alfred Bettman, City Sol., Albert Bettinger, Walter Schmitt, and Hosea & Knight, all of Cincinnati, for plaintiffs in error. Ellis G. Kinkead and H. Kenneth Rogers, both of Cincinnati, H. L. Stone, of Louisville, Ky., and J. B. Foraker, of Cincinnati, for defendant in error.
DONAHUE, J. (after stating the facts as above).  The principal question arising in this case involves the construction of section 3283a, Revised Statutes of Ohio (99 O. L. 590). This court, in a former action between the city of Cincinnati and the Louisville & Nashville Railroad Company (82 Some years before the filing of this peti- Ohio St. 466, 92 N. E. 1111), held this section tion in the court of insolvency to appropri- constitutional. It provides, among other ate an easement in this property, the city things, that proceedings to appropriate an council of the city of Cincinnati passed an easement to use and occupy for an elevated ordinance agreeing upon the manner, terms, track any portion of any public ground lying and conditions upon which the Louisville & within the limits of a municipality and dediNashville Railroad Company might use, oc- cated to the public for use as a public ground, cupy, and cross over, along, and upon the common, landing, or wharf, or for any other streets, alleys, and public grounds of the public purposes excepting streets, avenues, city of Cincinnati for the purpose of con- alleys, or public roads, shall be conducted in structing, maintaining, and operating the ex- the manner provided in title 2, c. 8, pt. 3, of