If, however, this is a matter of right, open and common to all, and which may be enforced by mandamus, must not the proper authorities in such counties furnish suitable [room and facilities to accommodate all who may desire to exercise this right? If not, and there is to be any discrimination, who shall be favored -who shall be admitted and who excluded? How many clerks or assistants shall each applicant have the right to employ? Who shall determine what shall be considered a reasonable time within which each may complete his abstract? And as the use of the public records cannot be thus handed over to the indiscriininate use of those not interested in their future preservation, how shall the register protect them from mutilation? This he cannot do personally without neglecting his official duties, and if he must employ clerks or appoint deputies for such purposes, at whose expense shall it be, the law having made no provision for such emergencies? These and many other embarrassing questions must arise if this right is found to exist. It would not, however, end here. This being a right which we might term one not coupled with an interest, must apply equally to the records in each and every public office. True, the copies or abstracts from each of the several public offices might not be so profitable to the parties making the same as would those from the register's office, but this would not go to the right to make the abstract. May, then, parties in no way interested, other than as are these relators, insist upon the right to inspect and copy, or abstract, the records of our courts, of the treasurers of our counties, of the several This was right and proper, in order to define the respective rights and prevent conflict or confusion, but clearly this act does not extend to a case like the present. It follows that the writ must be denied, with costs to respondent. LEGALITY OF STOCK EXCHANGE RULES AS ENGLISH COURT OF APPEAL, FEB. 12, 1880. EX PARTE GRANT; RE PLUMBLY. (42 L. T. Rep., N. The rules of the stock exchange provide that a member A member of the stock exchange having become a de- county offices; and indeed, why with equal propriety THIS may it not be extended to a like right in each of the several State offices? The right once conceded there is no limit to it, until every public office is exhausted. The inconveniences which such a system would engraft upon public offices; the dangers, both of a public and private nature, from abuses which would inevitably follow in the carrying out of such a right, are conclusive against the existence thereof. It may be said that even admitting the right to exist, there would be no such number of persons desirous of making abstracts, and that the dangers pointed out would not, therefore, arise, and in corroboration thereof the past may be referred to. How far the uncertainty of the existence of such an unlimited right in the past may have kept the number of applicants within proper bounds, may have some bearing upon the question, and it may be true that the demand for abstracts of title would have some effect upon the supply offered for sale. We must bear in mind, however, that the larger and more populous the county, the greater would be the demand, and because of the larger number of volumes of records in such a county, a correspondingly increased time and force would be required for each person to perfect his abstract, and the greater danger from abuses exist. Besides, in ascertaining whether the right exists, we have a right to inquire into the evils which it would be likely to lead to, and may for this purpose follow up the natural and probable consequences likely to result therefrom, and thereby determine whether justified by the principle of the commonlaw decisions. From what has been said, a very brief reference to the statute will be sufficient. The language of the act referred to does not in clear and unmistakable terms include a case like the present, and such an one should not be conferred by construction. The object of the act was to enable persons having occasion to make examination of the records for any lawful purpose, and what would be we have already indicated, to have suitable facilities therefor, to point out their rights and limitations therein, and the right and duty of the official custodian of the records in connection therewith. THIS was an appeal from a decision of Mr. Registrar The facts of the case were as follows: On the 25th June, 1879, Plumbly, a stock-jobber, and a member of the London Stock Exchange, having given notice that he was unable to meet his engagements, was declared a defaulter in accordance with rule 142 of the stock exchange. The same day he filed a liquidation petition, and a trustee was afterward appointed. Grant, the official assignee of the stock exchange, in obedience to rule 168, closed all Plumbly's contracts with members of the stock exchange, which were open for the next account or settling day, the 27th June, at the maket prices on the 25th, of the various stocks and shares contracted for, and called upon those members who on that footing were debtors on their contracts with Plumbly, to pay to the official assignee the differences due from them. On hearing this the trustees gave notice to the debtors to pay the money to him instead of to the official assignee. They however paid them to the official assignee. The amount of these differences so received was 3,957., which sum was, under rule 168, divisible amongst those members of the stock exchange who on the above-mentioned footing were creditors for differences on their contracts with Plumbly. The rules of the stock exchange apply to jobbers or dealers as well as to brokers. It appeared to be the practice of stock-jobbers to make two contracts equal and opposite at once, so that a stock-jobber's legitimate profit is the difference between the buying and selling prices, and the fact of stocks going, up or down in price does not affect him. The jobbe does not deal with an outside principal, but only wit!" members of the stock exchange. By rule 64, payments can only be made by crosse checks to a banker whose checks go through the clea ing house. Rule 142 is as follows: A member unable to ful his engagements shall be publicly declared a defaul by direction of the chairman, deputy-chairman, or two members of the committee. Rule 168 runs thus: In every case of failure th d fill ter any cial assignee shall publicly fix the prices current be con-e offmarket immediately before the declaration, ary office in the ing on at which prices all persons having accounts open with the defaulter shall close their transactions by buying of or selling to him such stocks, shares, or other securities as he may have contracted to take or deliver, the differences arising from the defaulter's transactions being paid to or claimed from the official assignee. In the event of a dispute as to the prices named, they shall be fixed by two members of the committee. Rule 171 provides that the balances in the hands of the official assignee belonging to defaulter's estates shall be paid over once a month to the stock exchange benevolent fund. The trustee in the liquidation claimed the 3,9577. as part of the assets distributable among Plumbly's creditors. The registrar being of opinion that the case was within Tomkins v. Saffery, 37 L. T. Rep. (N. S.) 758; L. Rep., 3 App. Cas. 213, held that the trustee was entitled to the money. The official assignee appealed. Herschell, Q. C., and Romer, for the appellant. There is nothing illegal in the arrangement made by the stock exchange rules. By it, on a member's default, certain moneys which do not belong to the defaulter are paid by persons who had contracts with him in relation to those contracts, to the official assignee for the purpose of being paid over to other persons who also had contracts with the defaulter. By the arrangement made by the rules, margins on both sides are made to exist and are set off against each other. Suppose a number of persons, A, B, C, D, etc., have constant dealings together, and on the terms that on default, say by B in his contract with A, A shall have the security of B's contracts with the others. There would be nothing illegal in that. The arrangement under the stock exchange rules only affects the members of the stock exchange. A principal can come forward and adopt a contract according to the price on settling day. The trustee stands in Plumbly's shoes, and Plumbly's right to receive moneys due to him on his contracts would only arise on the 27th June, so that the trustee has no right on the 25th. They cited Rogers v. Kelly, 2 Camp. 123; Smith v. Union Bank of London, 33 L. T. Rep. (N. S.) 557; 1 Q. B. Div. 31. F. O. Crump (with him Benjamin, Q. C.), for the respondent. JAMES, L. J. We do not desire to hear you further, Mr. Herschell, nor is it necessary to the determination of the question that we should go into the case and say to what extent these contracts affect other contracts. I canuot conceive that the contracts of the outside world can be affected by what has been done in this case under the rules of the stock exchange. If they had any rights they still have them in their entirety, whatever they may be. I think in this case, beyond all question, that the money which was claimed by the official assignee of the stock exchange was not money which he was liable to pay to the trustee in bankruptcy. IIe claimed it hostilely to the trustee in bankruptcy; and how can the trustee in bankruptcy receive it from him as money paid to his use? In my idea the case is exactly this: Band C each say to A, "You owe me that 100l.; " A pays it to one of the two; the other has no right to sue the one who receives it. The official assignee claims in his own right the difference, that is, the claim of the first man, and of course the payment which was made would not discharge the debtor if the debtor had paid it to the wrong man; he would be still liable to pay it to the other. Whatever the liabilities and the rights may be of the outside world, they still remain. Either the rules of the stock exchange are binding on them, or they are not. they are binding, they are binding in their entirety. If they are not binding, or are in any way in violation If of the law of bankruptcy, what we call in fraud of the law of bankruptcy, they are utterly void and of no effect against the outside world. Any person of the outside world, e. g., the trustee in bankruptcy, retains all his rights against any debtor to the bankrupt, although he be a member of the stock exchange, just in the same way as he would if those rules for payment to the stock exchange assignee had never been passed. It appears to me, as Mr. Herschell has said, that his contention is not a technical one, but involves the whole of the merits of the case. BAGGALLAY, L. J. I am of the same opinion. The distinction to be drawn between this case and that of Tomkins v. Saffery is a very marked one. In the latter Mr. Cook became a defaulter, and the official assignee of the stock exchange being informed that he had no creditors except stock exchange creditors, pressed him to make over all his property for the benefit of his only creditors, and among other things he (Cooke) drew a check for 5,000l. against his account at the Bank of England. It turned out that he had other creditors, and it was held that the interposition of the official assignee of the stock exchange could not justify the separation from his general assets of the 5,000l. Here there is no division of Plumbly's money. The official assignee holds no private assets of Plumbly, and the fund which he has collected is a fund collected by virtue of certain rules of the stock exchange, certain sums ascertained in a particular way being raised from particular members of the stock exchange, and applied in a particular manner. In the view which I take of the case, these funds can in no respect be regarded as funds belonging to Plumbly. If, then, they are voluntary contributions of the members of the stock exchange to be applied in satisfaction of the stock exchange creditors, or if they are to be regarded as moneys handed over by persons who had become surety to meet the claims of the stock exchange, I am unable to understand how in either view of the case they can be claimed by the trustee. It certainly did at one time occur to me that some injustice might be done to the general creditors of Plumbly by the official assignee taking these sums. But the true view of the case appears to me to be this: As far as regards any losing contracts entered into by Plumbly, the trustee in bankruptcy or in liquidation is relieved from them, and if on the other hand it is said that there may be some winning contracts, the answer, as far as regards them, is, that it would be impossible to realize on them, because, when the time arrived for the completion of the contract, Plumbly could not and would not have been ready and willing to perform them. In making these observations I do not mean to imply that in such cases the contracts, whether losing or winning, are absolutely void, but in regard to the case now under consideration, I am satisfied that no injury could be done to the outside creditors by the course pursued. COTTON, L. J. All that we have to consider is, whether the trustee in bankruptcy can obtain from the official assignee of the stock exchange, as he is called, the fund in question, and it seems to me that question is shortly disposed of in this way: The fund is an artificial one, which has never belonged to the bankrupt, but has been created by the rules of the stock exchange for a particular purpose, and which only has existence for the purpose of being dealt with in a particular way. What is to be done with any surplus after all these purposes have been discharged is another question, but the trustee in bankruptcy wants to take from the official assignee of the stock exchange a fund created for a particular purpose without applying it to that particular purpose. In my opinion that he is not entitled to do. JAMES, L. J. The appeal will be allowed, and the costs will be allowed, unless there has been any arrangement between the parties. Appeal allowed. Leave to appeal to the House of Lords granted. WHEN CARRIER NOT LIABLE FOR INJURY TO PASSENGER. TEXAS SUPREME COURT, MARCH 16, 1880. INTERNATIONAL & GREAT NORTHERN RAILROAD Co. V. HALLOREN. Railroad companies are not insurers of the safety of their passengers further than could be required of the exercise of such high degree of foresight as to possible dangers, and such high degree of prudence in guarding against them as would be used by very cautious and prudent competent persons under similar circumstances. An unprecedentedly heavy rain, not general, fell in a locality upon a railroad which was built in the best manner with sound iron and ties, and was only three years old, causing the road-bed to be so impaired as to occasion the upsetting of a train in which plaintiff was a passenger, injuring him. At the place of the accident a train had passed over about two hours previous to its occurrence, leaving the track safe, as far as could be seen. An inspection had been made between that time and the time of the accident and the road found in good condition, and it was still so to all appearance when the injured train ran on to it. This train was then running at a reduced rate of speed and was in good condition and properly manned. Held, that the railroad company was not liable to plaintiff for his injury. A CTION for injury to plaintiff received from an accident to one of defendant's trains upon which plaintiff was a passenger. Sufficient facts appear in the opinion. From a judgment for plaintiff defendant appealed. BONNER, J. The first and second errors assigned in this case bring into review so much of the general charge of the court, as, in effect, instructed the jury that the liability of the defendant company depended upon "the manner and speed of running the train, considering the condition of the track and the state of the weather, if that in any way superinduced the accident." The ground of complaint against the company as alleged in the petition was, that "the gross negligence, carelessness and mismanagement of its agents and employees, and the unsafe and dangerous condition of its road, caused the car in which plaintiff was riding to be thrown from the track and upset; whereupon and by reason of said gross negligence, carelessness and mismanagement of defendant by its agents and employees, as aforesaid, and the unsafe and dangerous condition of its road, and the throwing off the car in which plaintiff was riding from the track and upsetting the same, plaintiff received great personal injury," etc. There was no special demurrer to the petition that it did not allege the particular acts of gross negligence, carelessness and mismanagement upon the part of the agents and employees of the company; and under the pleadings, had the evidence warranted the charge as given, the subject-matter of it was proper for the consideration of the jury. The testimony showed that about three or four hours before the accident happened an unprecedentedly heavy fall of rain occurred in that immediate locality, but that it had not been sufficient upon the line of the road, even on that part of it, to stop or impede the regular running of the trains, and it does not show that the agents and employees in charge of this particular train, either from information or their own per sonal observation, had notice of the character of the rainfall in that locality or the damage to the road-bed, but on the contrary, it appears that to all external appearance the road-bed and track were sound and in good order; that the train at the time was running at but little over half speed, not by reason of any apprehended danger, but to prevent passing a place at which it was intended to take on wood. The charge was calculated to mislead the jury by making the liability of the defendant turn upon the dangerous condition of the track and the state of the weather, without submitting, in this connection, the question of the knowledge of this condition on the part of those in charge of the train. The testimony having shown that the road-bed and track were in good condition until affected by this sudden heavy rainfall, the knowledge of this changed condition by those in charge of the train was a material ingredient in the alleged negligence, and as such should have been submitted to the jury. Withers v. North Kent R. Co., 27 L. J. Exch. 417. The third and fourth errors assigned involve the question of the liability of a railroad company for the safe carriage of its passengers. A carrier of passengers upon an ordinary road is not responsible for its condition, as it is not under his control and supervision. A different rule, however, prevails as regards a railroad corporation, which, under extraordinary grants of franchise, builds, controls, and generally has the exclusive use of its road-bed and track. A passenger on a railroad train, by reason of the risk naturally incident to this mode of travel, has the right to demand of the company for his safe passage, that high degree of care and skill which very cautious persons generally, in their line of business, are accustomed to use, under similar circumstances, to prevent danger. This care and skill pertains to the original construction, by competent engineers and workmen, of the road-bed, track, engines, cars, and other appliances necessary to carry on properly the business of its road, and to operate its trains; the frequent and careful examination of the same, to see that they have been thus constructed and have been kept in safe condition and repair to prevent accidents, so far as human skill and foresight could have reasonably anticipated and avoided; and also to the employment of a sufficient number of good, steady and competent agents and employees to so conduct and control the train as to insure its careful and skillful management. If the company is negligent in any of these particulars, and this negligence is the legal cause of injury to the passenger, it is liable in damages. Shearm. & Redf. on Neg., §§ 266, 269, 444; Angel on Carriers, §§ 538, 540. Railroad companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of such high degree of foresight as to possible dangers, and such high degree of prudence in guarding against them which would be used by very cautious and prudent competent persons under similar circumstances. Angell on Carriers, §§ 568, 570; Cooley on Torts, 642; Galena & Chicago R.R. Co. v. Fay, 16 Ill. 558; Bowen v. N. Y. C. R. R. Co., 18 N. Y. 411; McPadden v. N. Y. C. R. R. Co., 44 id. 478. This is not understood to require of the company every possible precaution which ingenuity might suggest or the skill of science might afford, by which accidents might be avoided; but means that it should adopt such precautions of known value which have been practically tested, and should employ such necessary skilled labor, service and experience, as is reasonably within its power to have secured. The test of liability is, not whether the company used such particular precautions as evidently, after the accident happened, might have averted it, had the THE ALBANY LAW JOURNAL. danger been known; but whether it used that degree of care and prudence which very cautious, competent persons would have used under the apparent circumstances of the case, to have prevented the accident, without reasonable knowledge that it was likely to have occurred. Shearm. & Redf. on Neg., § 266; Bowen v. N. Y. C. R. R. Co., 18 N. Y. 408. A railroad company is required to so construct its road-bed and track as to avoid such damages as could have been reasonably foreseen by competent and skillthe ordinary rainfalls and ful engineers, from freshets incident to the particular section of the country through which they are constructed, but would not have been guilty of such culpable negligence as to make it liable in damages, if it failed to provide against such extraordinary floods or other inevitable casualties, caused by some hidden force of nature, unknown to common experience, and which could not have been reasonably anticipated by the ordinary engineering skill and experience required in the prudent construction of such railroads. If an accident should happen from such cause on a road-bed and track which had been properly constructed and kept in good repair, when the agents and employees in charge of the train were in the due exercise of that degree of caution and prudence necessary at all times; and when they did not have, from information conveyed to them, or from their own personal observation, reasonable grounds to anticipate impending danger, and consequently did not use such extraordinary precaution as might have otherwise averted it, then the law characterizes it as an act of God, or such inevitable accident as is incidental to all human works, and which would relieve the company from liability. Even under the rigid rules of the common law, which made common carriers insurers of the safe delivery of all articles committed to their care, such cause would have excused them. Shearm. & Redf. on Neg., § 290; Withers v. North Kent R. R. Co., 27 L. J. Exch. 417; Railroad Co. v. Reeves, 10 Wall. 176; Livezey v. Philadelphia, 64 Penn. St. 106. The undisputed facts in this case show, substantially: 1. That defendant's road was of first-class, only three years old, and in good order at the place of the accident; that the ties and iron were sound and good. 2. That in the latter part of the day, and about the dark of the day of the accident, an unprecedentedly heavy rain fell in that locality, which was not general, but which caused the embankment to give way under the train as it passed over the place, and thus caused the disaster. 3. That the track at that place was sound and in good condition as far as could be seen only 125 minutes prior to the occurrence, when the north bound train passed over it. 4. That between that time and the occurrence of the accident, that section of the road embracing the place of the accident was inspected, and found and left in good condition, and was still in good condition at the time the wrecked train ran on it, as far as could be seen; had its usual appearance to an engineer who had been running over it ever since the road was built. 5. That the train and engine were in good condition, having been so found on examination only one hour before the accident, and were properly manned. 6. That the accident occurred seventy minutes after leaving Palestine, and sixteen miles from that place, when the train was running at about half speed, on a track which was apparently safe at all times for that rate. 7. That it had rained during the day at Palestine, but not so hard as to make it necessary to give orders in reference to the track. The evidence, as thus disclosed by the record, shows that the defendant company had used a commendable We are of opinion that the court erred in the charge MAINE SUPREME JUDICIAL COURT AB STRACT.* HUSBAND AND WIFE-ACTION OF ASSUMPSIT NOT OF MORTGAGED PREMISES MORTGAGE - RENT MORTGAGEE NOT ENTITLED TO.- A mortgagee is not entitled to the rent of the mortgaged premises from the tenant of the mortgagor till he takes possession, or requires the tenant to attorn to him. Prior thereto the mortgagor is entitled to the rent. The mortgagor, so long as he remains in possession, or until entry by the mortgagee, may receive the rents and profits to his own use and is not liable to answer for them to the mortgagee. Boston Bank v. Reed, 8 Pick. 459. He is not even liable for those accruing between the comniencement of action to foreclose and the time of taking possession upon execution. Mayo v. Fletcher, 14 Pick. 525. The purchaser of the equity stands in the place of the mortgagor, with a right to take the rents and profits to his own use until the mortgagee shall enter or do some equivalent act. Field v. Swan, 10 Metc. 112. Long v. Wade. Opinion by Appleton, C. J. PARTNERSHIP-PARTNERS SIGNING NOTES IN INDI- have estates both as partners and as individuals. It * To appear in 70 Maine Reports. Palmer v. Elliott, 1 Cliff. 63; Ex parte First National Bank of Portland; In re Thompson. Opinion by Peters, J. In re JOINT AND SEVERAL NOTE GIVEN BY PARTNERS WHEN CREDITOR MAY HOLD BOTH FIRM AND INDIVIDUAL PARTNERS-INSOLVENCY.-The holder of a joint and several note given by partners in their partnership name, they being in insolvency as partners and individuals, is entitled to prove his note against the joint estate of the firm and also against the several estates of the individual members of the firm, and to receive dividends from all the estates. In re Farnum, 6 Bost. L. Rep. 21, an important case upon this question not reported elsewhere. See, also, In re Weston, 12 Metc. 1; Borden v. Cuyler, 10 Cush. 476; Ex parte Farnsworth, 1 Low. 497; In re Holbrook, 2 id. 259; Mead v. National Bank, 6 Blatchf. 180; Cram, 1 B. R. 132; In re Bigelow, 2 id. 374; In re Tesson, 9 id. 378; Emery v. Canal Bank, 7 id. 217; In re Dow, 14 id. 307; Simpson v. Henning, L. R., 10 Q. B. 406; Ex parte Honey, L. R., 7 Ch. 178; Ex parte Stone, L.R., 8 Ch. 914; In re Plummer, 1 Phil. 56. The holder is entitled to receive dividends upon the whole claim, provided he does not receive in all more than his full due, unless he has received a dividend on one estate before making proof against another. Where a dividend has been paid, and generally when declared, on one estate before proof is made against another, the amount thereof should be deducted, and a dividend from the balance only allowed from the other. Sohier v. Loring, 6 Cush. 537; Ex parte Wildman, 1 Atk. 109; Ex parte Taylor, 1 De Gex and J. 302; Ex parte Talcott, 2 Low. 320; Ex parte Harris, id. 568. When the members of a firm, having no firm name and no joint estate other than that of the firm, give a joint note in their individual names for money borrowed for and used in their partnership business, such note is provable in insolvency against their partnership estate. This mode of signing partnership paper is as effectual as any other mode. Agawam Bank v. Morris, 4 Cush. 99; Trowbridge v. Cushman, 24 Pick. 310; In re Thomas, 17 B. R. 54; Richardson v. Higgins, 23 N. H. 106; Tucker v. Peaslee, 36 id. 167; Maynard v. Fellows, 43 id. 255; Kendrick v. Tarbell, 26 Vt. 512; Turner v. Jaycox, 40 N. Y. 470; Norton v. Seymour, 3 Man. G. & S. 792; Brackett v. Stokes, 58 Tenn. 442; Tilley v. Phelps, 18 Conn. 295; In re Warren, Davies, 324; Forsythe v. Woods, 11 Wall. 486; Hoare v. Oriental Bank, L. R., 2 Ch. 589; Waite v. Foster, 33 Me. 424; Paine v. Dwinel, 53 id. 52; 1 Pars. on Cont. 214. Berkshire Woolen Co. v. Julliard, 75 N. Y. 535. When partners make covenants under seal, the true mode of signing is individually. Ex parte Nason, In re Thompson. Opinion by Peters, J. KANSAS SUPREME COURT ABSTRACT.* JANUARY TERM, 1880. EMINENT DOMAIN-RAILROAD IN STREET-LIABILITY ΤΟ ABUTTING OWNER MEASURE OF DAMAGES.-While a railroad company may, when licensed by the proper authorities, occupy a street or alley with its track, yet if in laying down such track it so changes the established grade, or in any other manner so lays its track as to permanently obstruct access to an adjoining lot, or if it unnecessarily and unreasonably leaves its cars standing on the track so as to interfere with approach to the lot, the lot-owner may recover damages therefor, and a petition which in general terms charges such wrongs is good as against attack made simply by objecting to the admission of testimony. A. & N. R. R. Co. v. Garside, 10 Kans. 552; * To appear in 23 Kansas Reports. Venard v. Cross, 8 id. 248. A railroad company has no higher rights in a highway than an individual - it may share in its use, but cannot monopolize it; and the owner of a lot abutting on the highway, and who has special need thereof for ingress to and egress from his lot, is specially damaged by any monopolizing of the use of the highway by a railroad company. Where the appropriation charged is in the manner of construction, and in leaving its cars constantly standing upon the track, either is a wrong, giving plaintiff a cause of action. Haynes v. Thomas, 7 Ind. 38; E., etc., R. R. Co. v. Combs, 10 Bush, 382; J. M. & I. R. R. Co. v. Esterle, 13 Bush, 667; Stetson v. C., etc., R. R. Co., 75 Ill. 74; Street Railway v. Cumminsville, 14 Ohio St. 523. Where the wrong done by the railroad company is temporary in its nature, as in leaving cars unnecessarily on its track, or while engaged in the work of laying down its track, something existing to-day and not to-morrow, fluctuating in extent and depending on the ever-repeated action of the company, only such damages as have fully accrued prior to the commencement of the suit are recoverable, and none based upon any presumed continuance or repetition of the wrong. But where the wrong is of a permanent nature, and springs from the manner in which the track as fully completed affects approach to the lot, then, notwithstanding the right which the State retains to control the manner of use of a highway by a railroad company,even if deemed necessary to compel an entire removal of its track, the lot-owner may treat the act of the company as a permanent appropriation of the right of access to his lot, and recover as damages the consequent depreciation in value of the lot; and in such cases the recovery of damages is a consent on the part of the lot-owner to such manner of occupying the street, and concludes both him and any subsequent owner of the property. L., etc., R. R. v. Applegate, 8 Dana, 294; LeClercq v. Gallipolis, 7 Ohio, 217; Cincinnati v. White, 6 Pet. 431; Mix v. L. B. & M. Ry. Co., 67 Ill. 319; Stone v. F. P. & N. W. R. R. Co., 68 id. 394. Pacific Railroad Co. v. Twine. Central Branch Union Opinion by Brewer, J. HOMESTEAD MAY BE IN BUILDING UPON LEASED GROUND-USE OF PART OF PREMISES FOR BUSINESS PURPOSES. A party may acquire a homestead in a building occupied as a residence by his family, although the building is erected upon ground in which he has but a leasehold interest. Although a building upon leased ground is taxable by statute as personal property, and although the lessee has the right to remove the building at the termination of his lease, and although he mortgages it as personal property, yet the homestead character remains as long as the building is not removed and is occupied as a residence by his family; and such mortgage is of no validity unless his wife joins therein or consents thereto. In Sears v. Hanks, 14 Ohio St. 301, the court, speaking of the homestead law, says: "We think its provisions protect the debtor's family as against his creditor to the enjoyment of an actual homestead, irrespective of the title or tenure by which it is held." In Spencer v. Geissman, 37 Cal. 99, it was held that one having a mere naked possession, the title being in a stranger, may acquire a homestead right as against everybody but the true owner. See, further, on the general principle: Deere v. Chapman, 25 Ill. 612; Bartholomew v. West, 2 Dill. 293; McKee v. Wilcox, 11 Mich. 358; Thorn v. Thorn, 14 Iowa, 49; Pelan v. De Bevard 13 id. 53; Conklin v. Foster, 57 Ill. 104; Johnson v. Richardson, 33 Miss. 462. Where it is shown that a building is occupied as a residence by the family of the owner, and neither the size nor the number of rooms appears, further than that it is a one-and-oue-half story frame building, the homestead character is not destroyed by proof that one or two rooms therein are used by himself and wife for business purposes. In re |