general or special, of Connecticut, and the Delaware court in this case not only construes that law but affords a remedy for its violation.

The recognition of a foreign corporation by a State on the ground of comity relates only to such corporation as an entity, an entirety, an organized body. Its officers and agents are recognized only as its servants, and for their acts or omissions as such the corporation itself is held responsible. In this case the court dissevers the president from the corporation, and requires him to act, as president, in the manner in which the court, construing the charter of the foreign corporation, and the laws of the foreign State by which it is granted, hold to be his duty in the premises. The proceeding, so far as the Delaware court is concerned, involves only the interests of a stockholder—a non-resident of Delaware-and of the foreign corporation itself.

And yet the majority opinion says, referring to the courts of Delaware: "They cannot, in general, intermeddle with or control the internal concerns of a foreign corporation." If the construction of the charter of a corporation, or of its by-laws, as between itself and one of its stockholders, with reference to his rights as such, is not an "internal concern" of that corporation, it is very difficult to say what is such an internal concern.

In our judgment, the question so elaborately argued in both opinions, whether mandamus is the rightful remedy, is an immaterial issue, and the application for that writ should have been denied on the ground that the courts of Delaware had no jurisdiction of the subject-matter.

AN ABUTTER'S RIGHTS IN A STREET.

1. Introduction.

2. Abutter's Rights as One of Public.

3. Right of Access.

4. Easement of Light and Air.

5. Special Control of Street.

6. Rights of Abutter when Owner of Fee of Street.

7. Right to Compensation for Injury to Lot from Acts Done in Street.

8. Right to Enjoin Acts in Street Injurious to Abutting Lot.

9. Abutter's right to Reversion Upon Vacation of Street.

1. Introduction.-The subject of this essay is the rights over a city street of the owner of abutting land.

2. Abutter's Rights as One of Public.—An owner of land abutting on a street, as one of the public, has the same right to use the street as every other member of the public. The chief right of one of the public in a street is a right of passing over it. This right he may enforce by removing by himself, or his agents, an unlawful obstruction which he finds on the street,1 but he cannot recover damages for the invasion of such right, nor enforce it by any suit in his own name. The general rule applicable to such cases is, that a suit to enforce a right, common to the public, in the absence of special injury to an individual, must be brought for the benefit of the public by its authorized officer.2 For obstructions to streets the public, by its proper officer, may have relief by indictment or by injunction, and the municipality which has control of the streets may in its corporate name institute proceedings to prevent or remove an obstruction.3 A license to maintain in a street an obstruction, e. g., a steam railway, given by the legislature or by a municipality, acting within its statutory powers, renders such obstruction lawful as against the public and all persons asserting rights on behalf of the public.1

3. Right of Access. An owner of land abutting on a street, by virtue of his position of abutting owner, has a number of rights in the street apart from his rights as one of the public. These rights are the outgrowth of case-law, custom, recent statutes and constitutional amendments, and differ in different States. In many of the States an abutting owner has a right of access to his premises distinct from his rights in the street as a member of the public. This easement of ac

1 2 Cooley's Blackstone, 5 and note; Wragg v. Penn Township (1879), 94 Ill. 11.

2 City of Chicago v. Union Building Assn. (1882), 102 Ill. 379; Garnett v. Jacksonville, etc. R. Co. (1884), 20 Fla. 889; Matlock v. Hawkins (1883), 92 Ind. 225; Crook v. Pitcher (1884), 61 Md. 510; People v. N. Chi. R. Co. (1878), 88 Ill. 537.

3 Dillon on Municipal Corp. (3d ed. 1880), § 659. 4 Dillon on Municipal Corp. (3d ed.), § 680, et seq; City of Denver v. Bayer (1883), 7 Col. 113.

Rigney v. City of Chicago (1881), 102 Ill. 64; Chicago v. Union Building Assn. (1882), 102 Ill. 379; Pittsburg, etc. R. Co. v. Reich (1881), 102 Ill. 157; Story v. N. Y. Elevated R. Co. (1882), 90 N. Y. 122; Re N.

7

cess, as it is called by the Supreme Court of New York, is his property. Wherever it subsists the owner may recover damages for its infringement. Thus, a lot owner has been allowed to recover damages for an injury to his right of access, caused by the construction of a public viaduct across the street on which his lot fronts,8 and for an injury to his right of access caused by the unauthorized laying of railway tracks in the street opposite his lot. An abutter's right of access is sometimes protected by injunction. 10 Thus, a store-keeper may have a neighbor on the opposite side of the street enjoined from exhibiting in his windows a puppet show, which causes a crowd to form in front of complainant's store, and which thereby interferes with access to complainant's store. In New York, an injunction lies to protect such right not only in ordinary cases, but also when the right is infringed by an obstruction, e. g., an elevated railway, which is built with the permission of the municipality, and which cannot therefore be complained of by the public. 12 In Illinois, however, it has been held repeatedly, without special reference to the right of access, that an act injurious to an abutting owner, e. g., constructing a steam railway in a street, which is done under a valid license from the municipality, will not be enjoined. 18 An abutting owner's right to abate with his own hand an obstruction to access to his land is probably the same as his right, as one of the public, to abate an obstruction to free

Y. Elevated R. Co. (1885), 36 Hun (N. Y.), 427; Fanning v. Osborne (1884), 34 Hun, 121; Jaques v. Nat. Exhibit Co. (1884), 15 Abb. N. Cas. (N. Y.) 250; Welsh v. Wilson (1886), 4 N. E. Rep. (N. Y.) 633; Brackken v. Munn, etc. R. Co. (1881), 29 Minn. 41; Railroad Co. v. Schurmeir (1868, error to Minn.), 7 Wall. (U. S.) 272; Hanlin v. C. & N. W. R. Co. (1884), 61 Wis. 515.

6 Re N. Y. Elevated R. Co., supra.

7 Cases cited in note 5; Ma.lock v. Hawkins (1883), 92 Ind. 225; Dillon on Municipal Corp. (3d ed.) § 731; Mathews v. Kelsey (1870), 58 Me. 56.

8 Rigney v. City of Chicago, supra.

9 Pittsburg, etc. R. Co. v. Reich (1881), 101 Ill. 157. 10 Jaques v. Nat. Exhibit Co. (1884), 15 Abb. N. Cas. (N. Y.) 250; Draper v. Mackey (1880), 35 Ark. 497; Pratt v. Lewis (1878), 39 Mich. 7.

11 Jaques v. Nat. Exhibit Co., supra.

12 Story v. N. Y. Elevated R. Co. (1882), 90 N. Y. 122.

13 Stetson v. Chi., etc. R. Co. (1874), 75 Ill. 74; Pat. terson v. Chi., etc. R. Co. (1874), 75 Ill. 588; Peoria, etc. R. Co. v. Schertz (1876),83 Ill. 135; Truesdale v. Peoria Grape Sugar Co. (1881), 101 Ill. 561; Mills v. Parlin (1883), 106 Ill. 60.

It is with re

passage through the street. 14 gard to sidewalks that an abutting owner's right of access to his premises has been recognized most widely.15 He may place skids across a sidewalk, in front of his premises, temporarily for the purpose unloading merchandise. 16

4. Easement of Light and Air.-In New York, an owner of land abutting on a street has an easement of air and light in the street which, like his easement of access, may be enforced by suit for damages for infringement or by injunction.17 Thus, the construction in a street of an elevated railway, cutting off air and light from an abutter, will be enjoined, although the work is licensed by the municipality, until the abutter's rights have been extinguished by eminent domain proceedings. 18 Thus, placing a show-case, sign and fence on a sidewalk so as to obstruct the view of complainant's store-window and the access of light to it, is a nuisance, which may be restrained by injunction.19

5. Special Control of Street. In some States, e. g., in Illinois, 20 it is provided by statute that city councils shall have no power to grant the right to lay tracks in a street to any steam or horse railway company, except upon petition of the owners of the land representing a majority of the frontage of so much of the street as is sought to be used for railway purposes. Apart from statutory rights and easements of access, air and light before noticed, an abutting owner is held in several States to have a peculiar, but not clearly defined interest in the street not shared by the general public and unaffected by the question whether he holds the fee of the soil of the street. 21 He is generally held to have greater rights over the sidewalk in front of his premises than other members of the public. 22

6. Rights of Abutter When Owner of Fee of Street. Under the constitutional prohibitions

14 2 Cooley's Blackstone 5, note.

15 Dillon on Municipal Corp. (3d ed.) § 734; Everett v. City of Marquetts (1884), 53 Mich. 450; Welsh v. Wilson, Jan. 19, 1886, 4 N. E. Rep. (N. Y.) 633. 16 Welsh v. Wilson, supra.

17 Story v. N. Y. Elevated R. Co., supra; Re N. Y. Elevated R. Co., supra.

18 Id.

19 Hallock v. Scheyer (1884), 33 Hun (N. Y.), 114. 20 S. and C's Stats. p. 472.

21 City of Denver v. Bayer (1883), 7 Col. 113; Railroad Co. v. Schurmeir (1868), 7 Wall. (U. S.) 272.

22 Dillon on Municipal Corp. (3d ed.) § 734; Everett v. City of Marquette (1884), 53 Mich. 450.

which are in force in nearly all the States, against taking property for public use without compensation, a lot owner, holding the fee of an adjoining street, has been held very generally to have the right, as owner of the soil of the street, to be paid for any use made of the street "amounting to a new servitude" i. e., for any use of the street materially interfering with its use by the public, e. g., the use of the street as the road bed of a steam railway, but not of a horse railway.23 Legislative permission for the construction of a public work, while it bars objection by the public, does not, it is held, bar the lot owner's claim for compensation.24 In a recent case, the Supreme Courtof West Virginia controverted the whole doctrine just stated, on the ground that the owner of the fee of the street has parted with the whole possession to the public, and retains only a reversion to take effect upon the vacation of the street, and that such reversion is in no way affected by the uses to which the public by its officers put the street. The court said, that no court would think of awarding compensation for a new use of a street to an owner of the fee of the street who was not at the same time the owner of abutting land, and that the rule controverted was promulgated by the courts to enable them to give an abutting owner compensation for an injury to his lot, not amounting to a taking, under constitutional provisions which provided for compensation only in cases of taking.25 An abutting owner, holding the fee of the street subject to the public easement, may restrain an unauthorized use of the street by injunction,26 but not by an action of ejectment. 27

7. Right to Compensation for Injury to Lot from Acts done in Street.—An owner of land abutting on a street, if injured by a nuisance in the street, may recover damages as if the nuisance were situated anywhere else. As an offense to either the sense of

23 Dillon on Municipal Corp. (3d ed.) § 724; Carli v. Stillwater, etc. Co. (1881), 28 Minn. 373; Eichels v. Evansville Street R. Co. (1881), 78 Ind. 261; Hodges v. Baltimore, etc. R. Co. (1882), 58 Md. 603; Board of Trade Tel. Co. v. Barnett (1883), 107 Ill. 507.

24 Dillon on Municipal Corp. (3d ed.) §§ 711, 724. 25 Spencer v. R. R. Co. (1884), 23 W. Va. 406. Partial accord: Cooley on Constitutional Limitations (5th ed. 1883), 687.

26 High on Injunctions (2d ed.), § 589.

Edwardsville R. Co. v. Sawyer (1879), 92 Ill. 377.

sight,28 of hearing, 29 or of smell,30 as well as an act causing a direct physicial injury, may be a nuisance, this head of an abutter's rights is a wide one. His easements of access, air

31

and light in the street might be considered under this head. But an abutting owner's right to recover for obstructions in a street as nuisances, has two important limitations. He cannot recover for injuries suffered by him in common with members of the public generally. He can recover only for injuries, different in kind or degree from those suffered by the general public. Thus, an abutting owner may recover damages from a railway company which maintains a nuisance by allowing cars to stand on its tracks in a street opposite his lot.32 The second limitatation upon an abutter's right of recovery arises from the fact, that an act which would be unlawful and a nuisance, if not authorized by legislative or municipal license, is lawful and not a nuisance, if so sanctioned and if performed with due care. 83 Recent constitutional amendments have in several States extended an abutting owner's rights so as to enable him to recover for an injury inflicted on his property by the erection of public works in a street to the same extent as if such works were erected without legislative sanction. Prior to the year 1870 most State constitutions, like the constitution of the United States, provided that private property should not be taken for public use without just compensation. In that year Illinois provided by constitutional amendment that private property should not be taken or damaged without just compensation. The same change was afterwards adopted by constitutional amendment by West Virginia in 1872, by Arkansas in 1874, by Missouri in 1875, and by Texas, and Colorado in 1876.84 The Supreme Courts of Illinois and West

29 Thompson v. Behrmann (1883), 37 N. J. Eq. 345; Davis v. Sawyer (1882), 133 Mass. 289.

30 Bushnell v. Robeson (1883), 62 Iowa 540; Commonwaalth v. Perry (1885), 139 Mass. 198.

31 McDonald v. English (1877), 85 Ill. 232; Matlock v. Hawkins (1883), 92 Ind. 225; Crook v. Pitcher (1884), 61 Md. 510; City of Chicago v. Union Building Assn., supra.

82 Pittsburg, etc. R. Co. v. Reich (1881), 101 Ill. 157. 33 Dillon on Municipal Corp. (3d ed. 1880), §§ 702, 724; Recitals in Rigney v. City of Chicago, suyra, and in City of Chicago v. Union Building Assn., supra. 34 Poore's Federal & State Constitutions.

Virginia have decided that the

effect of such constitutional change is to give a right of recovery for injury caused by public works in those cases in which such works would be unlawful if erected without legislative sanction.35

A city under these new constitutional provisions is not liable to an owner of land abutting on a street for an injury caused to his premises by a public work, e. g., a railway erected on the street by a private party under a license from the city. Such license merely releases the rights of the public, not private rights, which the city has no power to affect.36 A city, however, is liable for injury caused by a public work erected in a street by the city itself.87

8. Right to Enjoin Acts in Street Injurious to Abutting Lot.-To entitle an abutting owner to an injunction to restrain the erection of a threatened nuisance in a street, he must, in general, prove danger of a substantial, certain, unlawful, irreparable injury, and one causing him special injury apart from the injury he suffers as one of the public. 38 In some States, the courts have held that an injunction would not lie to restrain an injury resulting from a structure erected in a street under direct legislative license, or license from a municipality authorized to confer it, such work being deemed lawful, e. g., an injunction has been held not to lie to restrain the construction and operation of a steam railway or a line of telegraph poles and wires on a street under municipal license.89

This

35 Rigney v. City of Chicago, supra; Clty of Chicago v. Union Building Assn., supra; Spencer v. R. R. Co. (1884), 23 W. Va. 406.

36 City of Denver v. Bayer (1883), 7 Col. 113; City of Olney v. Wharf (1886), 115 Ill. 519.

37 Stack v. City of E. St. Louis (1877), 85 Ill. 377. 38 High on Injunctions (2d ed.), § 816, et seq; Sargent v. George (1884), 56 Vt. 627; Welbourn v. Davies (1882), 40 Ark. 83; Draper v. Mackey (1880), 35 Ark. 497; Thornton v. Ball (1886), 8 N. E. Rep. (Ill.) 145; Patterson v. Chi., etc. R. Co. (1873), 75 Ill. 688; Pratt v. Lewis (1878), 39 Mich. 7; Price v. Knott (1880), 8 Oreg. 438; Wilder v. DeCon (1879), 26 Minn. 10; Tilton v. New Orleans, etc. R. Co. (1883), 35 La. An. 1062; Niemeyer v. Little Rock, etc. R. Co. (1884), 43 Ark. 111; Fanning v. Osborne (1886), 7 N. E. R. (N. Y.) 307; Garnett v. Jacksonville R. Co. (1884), 20 Fla. 889; Randall v. Jacksonville Street R. Co. (1882), 19 Fla. 409; Mahady v. Buchwick R. Co. (1883), 91 N. Y. 148: Payne v. McKinley (1880), 54 Cal. 532.

39 Building Assn. v. Bell Telephone Co., 13 Mo. App. 477; Tilton v. New Orleans, etc. R. Co., supra; High on Injunctions (2d ed.) § 613; Cases cited in next note; Dillon on Municipal Corp. (3d ed.) § 696.

is the rule in Illinois, although, as we have already seen, the constitution of that State prohibits injury to private property for public use without compensation, and although damages in cases of such injury may be recovered in an action at law.40 The rule is nearly the same in West Virginia, under a similar constitutional provision. It is held there, that an injunction to restrain an injury to an abutting lot owner from the construction of a lawful public work in a street will lie only under peculiar [circumstances. In New York, however, it is held that an abutting lot owner may enjoin the erection in a street of a public work causing him special injury until until compensation is made to him.42

9. Abutter's Right to Reversion Upon Vacation of Street.-In Illinois, a statutory dedication of a street vests the fee of the street in the municipal corporation which has governmental jurisdiction of the street in trust for the public and abutting lot owners, so that no interest in the street passes to the dedicator's grantees of abutting lots, as such grantees, and so that no interest in the street passes to the dedicator's heirs, except the reversion, or reverter, of it upon the vacation of the street. If there is no municipality to take at the time of the dedication the fee of the street remains in abeyance subject to vest in the municipality as soon as created.44 The legislature may give abutting lot owners the reversion of the street upon its vacation in those cases where the State was the dedicator, but it has no power to do so in those cases in which a private party was the dedicator. 45 RUSSELL H. CURTIS.

43

Chicago, October, 1886.

40 Stetson v. Chi., etc. R. Co. supra; Patterson v. Chi., etc. R. Co.. supra; Peoria, etc. R. Co. v. Schertz, supra; Truesdale v. Peoria Grape Sugar Co., supra; Mills v. Parlin, supra.

41 Spencer v. R. R. Co. (1884), 23 W. Va. 406, supra. 42 Story v. N. Y. Elevated R. Co., supra; Mahady v. Bushwick R. Co. (1883), 91 N. Y. 148.

43 Mattheisen, etc. Zinc Co. v. City of La Salle (1885), 3 N. E. Rep. 406; Village of Brooklyn v. Smith (1882), 104 Ill. 429.

44 Village of Brooklyn v. Smith, supra.

45 Mattheisen, etc., Co. v. City of La Salle (1886), 8N. E. Rep. 81.

VARIANCE BETWEEN RECITALS AND OPERATIVE PART OF DEED.

“(1). If the recitals are clear, and the operative part is ambiguous, the recitals. govern the construction. (2). If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. (3). If both the recitals and the operative part are clear, but they are inconsistent with each other, then the operative part is to be preferred." Lord Esher, M. R., laid down those canons of construction in Re Moon, Ex parte Dawes, reported in the last number of the Law Times, a case in which the deed had to be interpreted by what appeared on the face of it alone, it not being a question of rectification, and no help, as it happened, being derivable from looking at the circumstances which existed at the time of its exe

cution. They are pithy and comprehensive rules, codifying principles that have been illustrated by a cloud of previous authorities; but, lucid though they be, it is often by no means an easy matter to determine which applies to the construction of particular instruments. That was the substantial question at issue in the recent case referred to, and it led to an appeal from the judgment of Cave, J., in the Queen's Bench Division. to the court of appeal, upon a special case stated by the judge of the Salisbury county court.

It appears that William Moon filed a bankruptcy petition in the county court, and on the same day a receiving order was made, and F. A. Dawes became official receiver of the estate. At subsequent meetings of his creditors a resolution was passed and confirmed, providing for the execution of a composition deed, the draft of which was produced at the first meeting. The deed was executed, and it and the resolution were approved by the court. Together with recitals of the filing of the petition and the resolution of the creditors, the deed recited as follows: "And whereas the said William Moon is possessed of or entitled to all the real and personal estate specified in the schedule hereto, subject to the mortgages and charges specified in the said schedule, and whereas in accordance with the desire of the said William Moon to pay his creditors 20s. in the pound on their debts; and in order that the

said composition shall be secured, the said William Moon has agreed with the said Frederick Aston Dawes to assign to him all the said property set forth in the said schedule hereto, subject to the mortgages and charges affecting the same, upon the trusts and subject to the provisos, declarations, and agreements hereinafter contained." While this is how the operative part followed: "Now this indenture witnesseth that, for effectuating the said desire, and in pursuance of the said agreement, and in consideration of the premises, he, the said William Moon, doth hereby, subject to the mortgages and charges affecting the same, grant, bargain, assign, transfer, and set over unto the said Frederick Aston Dawes all and singular and several properties and chattels and effects set forth in the said schedule hereto, and all the estate, right, title, interest, claim and demand of him the said William Moon, in, to, and upon the said properties, chattels, and effects, and all other the estate (if any) of the said William Moon, upon the trusts and for the intents and purposes and with and subject to the powers, provisos, agreements, and declarations hereinafter declared, expressed, and contained, concerning the same. It happened, however, that the deb tor, was entitled, under a post-nuptial settlement, to a life interest in certain property, which was not mentioned in the schedule to the composition deed; and the contention of the trustee was that this interest passed under the words in the operative part, "all other the estate (if any)," which, it seems, had been inserted after the deed had been engrossed. The recitals, it was said, show that the object of the assignment was that the creditors should receive 20s. in the pound. Prima facie, therefore, the intention must have been that all the debtor's property should pass to the trustee of the deed, and unless the words "all other the estate (if any)" are read as including the debtor's life interest, they will have to be struck out entirely, and no effect whatever can be given to them. The general words which precede are quite sufficient to fulfill the ordinary function of general words. The additional words were, no doubt, intended to sweep in any property of the debtor not specified in the schedule. Although the operation of general words has sometimes been controlled by the recitals in a deed, the