that view we must accept. As to whether the opportunities of the occasion of appellee's first going over the tramway, and returning through the dormer, were sufficient to advise him of the projections from the carriage, by which he was injured, is a matter about which there might be reasonable differences of opinion; and the jury having construed the evidence, and adopted that favorable to the appellee, we are not permitted to disturb it.

We find no error for which the judgment of the circuit court should be reversed, and it is therefore affirmed.

CROW v. JUDY et al.1 (Supreme Court of Indiana. Oct. 18, 1894.) HIGHWAYS-CONSTRUCTION OF FREE GRAVEL ROAD -NECESSITY OF PRE-EXISTING HIGHWAY.

1. Rev. St. 1881, § 5015 (Rev. St. 1894, § 6742), providing for the establishment of public highways, is not superseded by Rev. St. 1881, § 5091, 5092 (Rev. St. 1894, $$ 6855, 6856), which provide merely for the improvement of such highways.

2. The board of county commissioners has no power in a proceeding under Rev. St. 1881, § 5091-5096 (Rev. St. 1894, §§ 6855-6860), for the establishment and construction of a free gravel road, to order the construction of a gravel road a mile long over a route where no highway exists, though this will connect two existing highways, it not appearing that such new road is for the purpose of straightening a highway, to secure better ground and drainage, or to shorten travel, or that some road is to be changed or affected thereby.

Appeal from circuit court, Warren county; J. M. Rabb, Judge.

Petition by Melville A. Judy and others for the construction of a free gravel road. From an order of the circuit court affirming the decision of the county commissioners in favor of petitioners, William Crow appeals. Reversed.

W. L. Rabourn, for appellant. Hanley, Stansbury & Stephens, for appellees.

DAILEY, J. On the 11th day of June, 1892, a petition and bond were filed before the board of commissioners of Warren county, praying for the establishment and construction of a free gravel road, under an act of the general assembly of the state of Indiana approved March 3, 1877, being sections 5091 to 5096, inclusive, Rev. St. 1881 (Rev. St. 1894, § 6855-6860). The petition shows on its face that one mile of the proposed improvement is to be over a route where no highway exists, but that it will connect with and join two existing highways, both of which are included in the petition. Such proceedings were had before the board as resulted in an order for the improvement prayed for. From this order the appellant appealed to the Warren circuit court, where, on motion of the petitioners, the court rendered judgment for the appellees, and from it this appeal is taken.

'Rehearing denied.

Without reciting the various motions made by the appellant before the board, and renewed by him in the circuit court, it is enough to say that appellant's “motion to reject the report of the commissioners," his "motion to strike out portions of the petition and report of the viewers," and his assertion that "the petition does not state facts sufficient to entitle appellees to the relief sought," are each and all based on a single proposition, viz. that the board of commissioners have no power, under the statute, to construct a gravel road over a route where no highway previously existed. The report of the commissioners who surveyed the route, and the decrees of the commissioners and circuit court, are silent upon the question as to whether or not any part of the improvement will be over a route where there is no highway, but each follows the way described in the petition. It will be observed that this petition is in part for the improvement of a highway, but in so far as it seeks to enter and pass through private territory to reach a highway beyond, or to connect two highways by extending the proposed improvement across one mile of intervening space over which the public had acquired no right, it is simply a petition for opening and locating a public highway, and presents a jurisdictional question,-had the commissioners' court power in this proceeding to so appropriate the appellant's land? Section 5015, Rev. St. 1881 (Rev. St. 1894, § 6742), defines the method by which public highways may be opened and established. Sections 5091, 5092, Rev. St. 1881 (Rev. St. 1894, §§ 6855, 6856), provide for the improvement of public highways, but we think it was not intended that these sections shall be so construed as to supersede section 5015, supra. It is to be presumed that a highway must exist before it can be improved, and, besides, sections 5091, 5092, Rev. St. 1881 (Rev. St. 1894, §§ 6855, 6856), make no provision for opening new roads, and are insufficient for that purpose. Section 5091, Rev. St. 1881 (Rev. St. 1894, § 6855), declares the power of the board to lay out, construct, or improve by straightening, grading, draining (in any di rection that may be required to reach the most convenient outlet, etc.), paving, gravel. ing, or macadamizing any state or county road within the limits of their respective counties. There is no doubt that if the proposed improvement had been laid upon new ground, for the purpose of straightening or shortening the old highway, or for the purpose of straightening and obtaining a better route, it would present a question not now before us, and the case of Gipson v. Heath, 98 Ind. 100, would be directly in point to sustain the appellees' contention. It is not claimed in the petition, nor is it shown in the report, nor does it appear in the order of the board of commissioners establishing the improvement, neither is it found by the decree of the circuit court, that this mile of road is

laid upon new ground for the purpose of straightening any public highway, nor that better ground may be obtained for said highway, nor that better drainage is secured thereby, nor that any route of travel for the public will be shortened, nor does it appear any place in the record that there is any road changed, improved, or affected by this particular mile of improvement. It does appear from the petition and the record that there is a jog of 20 feet to the west when entering upon this new ground, and back again when across it. There is nothing, however, to show that this departure of 20 feet was necessary for the straightening or shortening of the road, nor that better ground could be obtained or drainage secured by the deflection so made in the line thereof. It seems very clear to us that the board of commissioners have no right to invade private inclosures to open and establish a highway, except upon petition under the statute authorizing it, and that it is beyond the power of the board to lay out a new road under a statute providing for the improvement of an old one. If a gravel road can be extended one mile over private lands under these circumstances, there is no reason why it may not be extended ten miles for the purpose, and there would be no limitation upon the power of the board in such matters to impose burdens on one's land. In our opinion, the petition does not state facts sufficient to warrant the action of the court, and the court acquired no jurisdiction over the subjectmatter of the proceeding, and the defect is not cured by the report of the surveyor nor by the finding of the court. The judgment is therefore reversed, with instructions to the court below to sustain the appellant's motions to strike out part of the petition and report, and to reject the report of the viewers and dismiss the proceedings.

1. An objection to an application to the county commissioners to locate and open a highway that a sufficient number of freeholders have not joined therein must be raised by remonstrance.

2. After the commencement of proceedings before county commissioners to locate and open a highway, and before the jurisdiction of the board has been determined, the board may allow the petition to be amended by adding new names thereto.

3. Where the report of reviewers shows that they were sworn, it will be presumed that they were sworn to do the things they were appointed to do.

4. A report made by two out of three reviewers is sufficient.

5. Where, on appeal from the action of the county commissioners in locating and opening a highway, the evidence taken is not in the record, its sufficiency will not be considered.

6. In a proceeding to locate and open a highway situated partly in two counties, one whose land is situated wholly in one county cannot object because the judgment of the commis sioners provides that the damages awarded him shall be taxed against both counties.

7. A judgment of the board of county con missioners locating and opening a highway will not be set aside because it fails to provide that the road is not to be opened until the damages awarded landowners are paid, where it directed that the damages be paid as provided by statutes.

Appeal from circuit court, Madison county; E. H. Bundy, Judge.

Petition by Martin O'Bryant and others to the board of county commissioners of Madison and Delaware counties to locate and open

DAILEY, J. This was a proceeding originally brought by petition before the board of commissioners of Madison county for the purpose of locating and opening a highway in the counties of Madison and Delaware. The appellant appeared before the board, and became a remonstrant, and, by his attorneys, filed various motions to dismiss the proceeding, and to reject the report of the viewers and reviewers. All of said motions were overruled by the board, and a final order establishing the road was made, and an award of damages to the appellant. Thereupon an appeal was taken by him to the circuit court, where the same motions were refiled, presented to and overruled by the court. Trial was had, resulting in a finding for the petitioners. The road was ordered established, and damages were assessed in favor of the appellant in the sum of $225. There was an order of payment, and the matter was referred back to the board for further proceedings in accordance with the finding and judgment of the court. From this decision an appeal is prosecuted. are nine specifications of error by the appellant, but we will only consider such as have been discussed by counsel, the others having been waived.

There

One error complained of is "that neither the board of commissioners nor the circuit court that tried said cause had jurisdiction of the subject-matter of said cause." It is clear that the law does not sustain this contention. Sections 5001, 5002, Rev. St. 1881 (Burns' Rev. St. 1894, §§ 6726, 6727), expressly confer jurisdiction upon the board of commissioners in all such matters. Section 5027, Rev. St. 1881 (Burns' Rev. St. 1894, § 6754), provides that "any person aggrieved by any decision of any board of commissioners may appeal therefrom to the circuit court of such

county," etc. The appellant does not assign as error that the court had no jurisdiction of the persons affected, and such question is not before us for our consideration. It is urged that the board, in order to obtain jurisdiction, should have found as a separate fact that the 24 freeholders lived in Madison county, and that 6 of them lived in the immediate neighborhood of the proposed highway. An examination of the record discloses that the court found for the petitioners as to the public utility of the contemplated road, ordered the same opened to the width of 30 feet, and found for the remonstrant on his claim for damages, and awarded a judgment accordingly. In our opinion, the finding and judgment cover all the issues presented in this case. The only issue tendered by the remonstrance and submitted to the court related to the utility of the road, and the question of damages. It follows, therefore, that there was a complete finding upon all matters pertinent to the issues. It is a familiar rule of law that a remonstrance is in the nature of an answer to the petition, and raises the issue to be disposed of before the county board and upon appeal to the circuit court. Schmied v. Keeney, 72 Ind. 309. If appellant desired to contest the question as to whether the petition was represented by the requisite number of freeholders of Madison county, it should have been presented by the remonstrance.

Another specification of error is that "the court erred in overruling the motion to dismiss all the proceedings before the board of commissioners of Madison county." In support of this, appellant's counsel contend that the board of commissioners of Delaware county, upon motion or remonstrance, had found against the petitioners. The fact that the evidence is not in the record furnishes cogent reason why the question cannot arise in this court, and, in its absence, we must indulge no presumption against the regularity of the proceedings in that county.

Complaint is made that the court erred in overruling the motion to dismiss the petition, because it is claimed that new names were added thereto without the consent of the court. It seems the board permitted it to be done, and acted upon it as if it had been their order, and the inference is that leave was granted, and the new names properly affixed.

After the proceedings had been instituted, and before the question of jurisdiction was determined, it was clearly within the discretion of the board to permit the amendment of the petition, and there was no error in overruling the motion to dismiss.

Error is also predicated on the overruling of appellant's motion to strike out the report of the reviewers, because the report shows that it was made by two of the reviewers, instead of three; and it is not shown what they were sworn to do. It appears they were appointed to review the road, and the report shows that they were sworn. In such v.38N.E.no.10-27

case, the fair inference would be that they were sworn to do the thing they were ap pointed to do. The objection made is entirely too technical. It is now well settled by this court that a report made by two of the viewers or reviewers is sufficient. Hays v. Parrish, 52 Ind. 132; Scraper v. Pipes, 59 Ind. 158, 164, 165.

The appellant's motion for a new trial for the reason that the verdict is not supported by sufficient evidence, and is contrary to law, is not available, for the reason that the evidence is not in the record.

Another assignment of error is that the court erred in overruling the appellant's mo tion to modify the judgment. Under this specification, it is contended that the court ought not to have taxed the damages awarded the appellant to be paid by both counties. We do not see how the appellant is in a po sition to complain of a judgment assessed against the two counties, inasmuch as all his lands are shown to be situated in Madison county, and his burdens as a taxpayer would be lessened by such order. The court was clearly right in what it did, as section 5012, Rev. St. 1881 (section 6737, Rev. St. 1894), provides that "the damages declared assessed shall be paid equally by the counties interested."

The appellant's motion to modify the judgment by inserting an order that the road is not to be opened until the payment of damages possesses little merit. The court ordered the damages paid as the statute re quires, and then directed the commissioners: to order it opened. We perceive nothing in this order that can injure the appellant. The damages allowed must be paid before the road is opened. Board v. Small, 61 Ind. 318.

Although the judgment is informal, it is not erroneous nor misleading in this respect. In looking into the whole record, we perceive no error which authorizes a reversal. The judgment will therefore be and it is affirmed.

CONTINENTAL INS. CO. OF NEW YORK V. CHEW.

(Appellate Court of Indiana. Oct. 19, 1894.) INSURANCE-APPLICATION-FALSE ANSWERS WRITTEN BY AGENT-CONDITIONS OF POLICY-PROOFS OF LOSS WAIVED-EVIDENCE.

1. A clause in an insurance policy provid ing that the company shall not be liable for losses occurring while any part of the premium is overdue and unpaid is valid.

2. Acceptance of a premium by an insurance company after knowledge of a loss occurring while the premium was in default waives the forfeiture, and does not merely revive the policy as to the future.

3. Where an applicant for insurance answers all questions truly, but the agent who writes the application, through a misconcep tion of the purport of a question, writes an incorrect answer, the insurance company is bound.

4. Denial of liability by an insurance company when notified of a loss waives the neces sity for proofs of loss.

5. A witness may testify to the contents of a letter written him by defendant, after proof of its loss, though defendant was not notified to produce it, as provided by Rev. St. 1894, § 486 (Rev. St. 1881, § 478), there being no necessity for such notice, as the letter is not in defendant's possession.

Appeal from circuit court, Henry county; E. H. Bundy, Judge.

Action by Prudence Chew against the Continental Insurance Company of New York. There was a judgment for plaintiff, from which defendant appeals. Modified.

Thos. Baker and Brown & Brown, for appellant. L. P. Mitchell and M. E. Forkner, for appellee.

GAVIN, J. The appellee recovered judgment against appellant upon a fire insurance policy. The premium was $15, payable $3 in cash and $3 annually, in advance, a note for the deferred payments being given. The policy provides that the company shall not be liable for any loss occurring while any part of the premium is overdue and unpaid. The note contains a provision of the same import. It is well settled that provisions of this kind are valid and enforceable, and that under them the failure to pay the premium when due is a sufficient defense to the action upon the policy to recover for a loss happening during the time when such premium is thus overdue and unpaid. Insurance Co. v. Hawley, 60 Ind. 515; Insurance Co. v. Leonard, 80 Ind. 515; Insurance Co. v. Dorman, 125 Ind. 189, 25 N. E. 213. The establishment of this rule does not, however, by any means foreclose the company from waiving the right which is thus given it, nor is there anything in the decisions of the various cases which we have cited which forbids such waiver. Although the company has a right to rely upon such default by the insured as a defense, if it, with knowledge of a loss, accepts the premium, it thereby waives the forfeiture, and restores the policy to its full force and effect. Such acceptance does not simply revive the policy as to the future, but it thereby restores to it its power and force from the beginning. Whatever may be the holdings in some jurisdictions, the question cannot be regarded as an open one in Indiana. It has received quite a full and thorough investigation at the hands of our supreme court; and in an opinion by Elliott, J., it was adjudged that in such cases the insurance company could not take the benefit without assuming the burden, but must, if it accept the premium, respond for the loss. Insurance Co. v. Tomlinson, 125 Ind. 84, 25 N. E. 126. The principle of waiver asserted in this case has been approved by the same court in Insurance Co. v. Custer, 128 Ind. 25, 27 N. E. 124, and Replogle v. Insurance Co., 132 Ind. 360, 31 N. E. 947. To the same effect are Joliffe v. Insurance Co., 39 Wis. 111; Smith v. Insurance Co., 3 Dak. 80, 13 N. W. 355; Cohen v. Insurance Co., 67 Tex. 325, 3 S. W. 296

In the application, in answer to the question, it was stated that the insured held title by a warranty deed. An answer and the evidence shows that this was not strictly true, but that she held title by inheritance from her husband, who had a warranty deed, and died intestate, seised of the property, leaving, as his heirs, his widow and several of their children. It is claimed that this statement of her title was a warranty, the breach of which voids the policy. A careful examination of the terms of both application and policy leaves it at the most extremely doubtful whether there is any warranty of this fact at all. Insurance Co. v. Rundell (Ind. App.) 34 N. E. 588; Insurance Co. v. Pauley (Ind. App.) 35 N. E. 190. Passing this question, however, if the statement be regarded as a warranty, the reply and the evidence show that the facts concerning the title were well known to the agent who took the application, and that true answers were made to the questions by the appellee, who could not write, but that the agent who wrote the application, probably through some misconception as to the force and purport of the question, wrote an incorrect answer, of which appellee had no actual knowledge. Under such circumstances, the company must bear the results of the fault of its own agent. Howe v. Society (Ind. App.) 34 N. E. 830; Insurance Co. v. Lorenz (Ind. App.) 33 N. E. 444; Insurance Co. v. Leon (Ind. Sup.) 37 N. E. 584; Bowlus v. Insurance Co., 133 Ind. 106, 32 N. E. 319; Rogers v. Insurance Co., 121 Ind. 570, 23 N. E. 498; Steele v. Insurance Co., 93 Mich. 81, 53 N. W. 514; Robison v. Insurance Co., 93 Mich. 533, 53 N. W. 821; Wich v. Insurance Co. (Colo. App.) 31 Pac. 389; McMurray v. Insurance Co. (Iowa) 54 N. W. 354. We find nothing in Robinson v. Glass, 94 Ind. 211, which controverts this proposition.

No "proofs" of loss were made, as required by the terms of the policy, but the complaint alleges a waiver by the denial of liability through appellant's general agent when notified of the loss. Such a waiver obviates the necessity of furnishing proofs. Commercial Union Assur. Co. v. State, 113 Ind. 331, 15 N. E. 518; North British & M. Ins. Co. v. Crutchfield, 108 Ind. 518, 9 N. E. 458; May, Ins. § 469. Counsel deny the sufficiency of the proof upon this question. Without stopping to determine the extent of the authority of the local agent, we think it clear, according to his own evidence, that his denial of liability was authorized by those in charge of the general offices, to whom he communicated the fact of the loss. By his denial, he only repeated the statement made to him in the letter written him from the general office. The company has consistently and continually persisted in its denial of the validity of the policy at the time of the loss, from that time to the present, and thereby waived the proofs. This court cannot weigh the evidence to decide where lies the preponder

ance, but is only called upon to determine whether or not there is some evidence, either direct or inferential, fairly sustaining every fact essential to the maintenance of the finding or verdict. Haines v. Porch (Ind. App.) 36 N. E. 926; McDaneld v. McDaneld (Ind. Sup.) 36 N. E. 286. Under this rule, we cannot say the finding is unsupported by the evidence.

Coun

The policy provides for $450 insurance on the house, and $150 on the contents. Thus, there was not a general or blanket policy of $600 on both house and contents, but separable contracts for insurance to the amount of $450 on the house, and $150 on the personalty. Nappanee Furniture Co. v. Vernon Ins. Co. (Ind. App.) 37 N. E, 1064. There is also in the policy a provision that the company shall not be liable for an amount beyond the value of the interest of the assured in the property insured. It is conceded by counsel for the appellee that she owned but a one-third interest in the realty, and that, consequently, she was entitled to recover on account of the building, the value of which was $400, only the one-third thereof, or $133.33. The amount of the recovery was $433.34. sel seek to justify this amount upon the the ory that appellee is entitled to the full value of the personal property destroyed, which was shown to be $300. This position, however, cannot be maintained, because she could not in any event recover on account of the loss of the personalty more than the amount of insurance distributed to it in the policy. There was no error in permitting a witness to testify to the contents of a letter written to him by appellant after the proper preliminary proof as to loss had been made. The letter was not in appellant's possession. There was therefore no necessity for serving a notice upon appellant to produce it, under section 486, Rev. St. 1894 (section 478, Rev. St. 1881). Since the amount of the finding cannot be approved, the judgment is affirmed, at the costs of appellee, upon condition that she remits $150 of the judgment, as of the date thereof, within 50 days; otherwise, it will be reversed.

-

Oct. 12, 1894.) EXCUSING NONPERFORMREVOCATION - ALTERA

CURRENT v. FULTON. (Appellate Court of Indiana. ACTION ON CONTRACT ANCE SUBSCRIPTION TION OF INSTRUMENT. 1. The complaint in an action on defendant's agreement to pay plaintiff a certain amount when he had drilled a gas well, laid a pipe within 50 feet of defendant's house, etc., sufficiently excuses plaintiff's failure to lay the pipe by alleging that defendant refused to let him lay it, and ordered him and his workmen, who were laying it, off his premises; it not being necessary that plaintiff allege that he was on hand with men and material, and offered to lay the pipe.

2. A contract by which defendant and several others each agreed to pay plaintiff a cer

tain amount when he had drilled a gas well, etc., is several as to each of the persons so agreeing.

3. A contract, conditioned that when plaintiff had secured 20 subscribers thereto he should drill a gas well and lay a pipe line, becomes operative on 20 persons having subscribed, and thereafter one of them cannot revoke it without the consent of the others.

4. A contract by which plaintiff agreed to drill a gas well and lay a pipe along a proposed line, within 50 feet of the house of each subscriber thereto, who was to pay plaintiff a certain amount when this was done, is not changed by plaintiff's attaching thereto, after defendant signed it, a slip signed by plaintiff. agreeing that no part of the product of the well should be piped fo or marketed in certain places; such attachment not making it part of the contract, and it not being an alteration of the terms of the contract.

Appeal from circuit court, Jay county; D. D. Heller, Judge.

Action by Benjamin F. Fulton against James K. P. Current. Judgment for plaintiff. Defendant appeals. Affirmed.

Headington & La Follette, for appellant. D. T. Taylor, for appellee.

ROSS, J. Appellee sued and recovered judgment against the appellant for the sum of $136.59 upon the following contract, viz.: "We, the undersigned citizens of Jay county, Indiana, agree to pay B. F. Fulton or his assigns the sum of one hundred twenty-five dollars, without relief from valuation or appraisement laws of the state of Indiana, to be paid in aid of the execution of the following agreement on the part of said Fulton, and as hereinafter specified: Said Fulton agrees, as soon as twenty or more subscribers have been secured hereto (averaging three to each mile along the route selected), to drill a well for gas at such place as he may select as most convenient in his judgment, and, if gas is obtained in sufficient quantity for the purpose, to pipe the same, agrees to lay a pipe line of sufficient capacity to supply all the subscribers thereto, and to a point not exceeding fifty feet from the residence of each of the subscribers hereto, and turn the gas into the same, subject to the free use of gas therefrom for so long a term as said well continues to produce gas in sufficient quantity to supply the subscribers hereto, for lights and fuel in one dwelling, and for use under feed cooker for stock, and yard lights, if desired: provided, however, that yard lights must be inclosed in glass cage, as stipulated by the laws of the state of Indiana. B. F. Fulton agrees to limit the number of consumers on said well to one hundred, and to confine and retain the product of said well for the exclusive use and benefit of not exceeding the equivalent of one hundred consumers, and to look after and keep said well and pipe lines in as good condition and repair as possible (natural wear and tear excepted). Said Fulton also agrees that, in case of failure of gas in this well, that the pipe lines shall remain as a permanent plant,