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“its course, was well defined”; that "it was rights by dedication or by estoppel. Larned not a mere tract through open and wild v. Larned, 11 Met: 421; Pope v. Devereux, 5 lands"; that “it was not a way that could Gray, 409; Smith v. Lee, 14 Gray, 473; Smith be mistaken for anything else than an ordi- v. Barnes, 101 Mass. 275; Epstein v. Dunbar, nary country road"; that "it was worked as 221 Mass. 579, 109 N. E. 730. well as any country road through the woods The facts found rebut the inference of perwould be worked;" and that “it was used by missive use that arises when a way runs all persons in the vicinity having occasion to entirely through an uninclosed forest or unpass on foot or with vehicles between the improved lands, and give rise to a conclusive regular road to New Boston and Locust street presumption that the old way was originally for farm purposes, in connection with the laid out and established by competent au. quarries and ice houses in the neighborhood thority. Hewins v. Smith, 11 Met. 241 ; and for through travel."

Com, v, Coupe, 128 Mass. 63; Bassett v. Har [2] In 1893 the owner of the Whittaker lot wich, 180 Mass. 585, 62 N. E. 974. "put a fence across the Old New Boston road It was settled in the case of Hobbs v. as traveled on the ground at the point where Lowell, 19 Pick. 405, 31 Am. Dec. 145, that a it entered his lot from the lot of the petition- highway could be established in this common. ers for which registration is now asked, but wealth by dedication (see, also, Larned v. tbis fence was almost immediately removed Larned, supra), with the assent express or and destroyed by the predecessor of the re- implied of the city or town bound by law to spondent. Thereupon Whittaker straightened keep it in repair. Bowers V. Suffolk Mfg. the old road as traveled so as to carry it Co., 4. Cush, 332. But after st. 1846, c. 203, in its present location down through the lot “this assent and acceptance,

could for which registration is now asked into only be given by laying out the street accordLocust street, this lot being then covered with ing to the ordinary mode prescribed by law; woods and its ownership not being known to and any throwing open of a way to the pub Whittaker. Whittaker then filled his land lic, or permitting the public to use it, would through which the old road had run from the only amount to a license by the owner, which present locus to Hill street, making it into would afford a justification to all persons a front yard, building a wall and planting who should avail themselves of it, so that trees and the way so built by him in place of they would not be trespassers while it conthe portion of the old road thus destroyed tinued, but revocable at his pleasure.” Morse continued to be used as the old road had v. Stocker, 1 Allen, 150, 154; Moffatt v. Kenbeen by the public and as part thereof." The ney, 174 Mass. 311, 313, 54 N. E. 850; Guild action of Whittaker in diverting public travel v. Shedd, 150, Mass. 255, 22 N. E. 896. from the highway over his lot to a way that In the case at bar no fact other than he had without right constructed over the mere permissive acquiescence in the publocus for a distance of two hundred feet to lic use of the substituted way appears from Locust street, and the ruling of the judge which the intent of the owner of the lot to that a public easement of travel was there dedicate the way may be inferred, and this upon created over the substituted way, bring alone is not sufficient. There is no evidence us to the consideration of the principal and that the city of Fall River ever laid out the dominant question, whether as matter of law, way according to the ordinary mode prescribthe owner of land subject to the easement of ed by law, nor any of a way created by a a public highway can terminate that burden public adverse use for more than twenty and impose it upon adjacent land by con- years, within the principles recognized and structing another equally sufficient and con- followed in Bassett v. Harwich, supra, and venient way upon the contiguous land in sub- Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, stitution of the existing way, the owner of 95 N. E. 938. the last-named land not being a party. to It follows that the way across the locus such substitution but acquiescing therein with and across the Whittaker lot, as it existed all other parties in interest, for a period of and was used prior to 1893, has never been eighteen years.

legally discontinued, that the substituted way It is well settled that the owner of land across the locus is not a servitude which subject to a right of way may, with the as- that land must bear, that the ruling of the sent of the owner of the dominant estate, judge that the substituted way was a pub: substitute on his own land a new way for the lic easement over the southerly portion of the old way, and that when the change is actually locus. was error, and that the exception in made and a new way is thus adopted by this regard must be sustained. them, it fixes and determines their respective So ordered.

(275 Ill. 694)

struction of the tunnel was properly charged to MERLE V. BEIFELD et al.

the amusement corporation. (Nos. 10497, 10498.)

(Ed. Note.-For other cases, see Landlord and

Tenant, Cent. Dig. 88 576, 585, 590-595; Dec. (Supreme Court of Illinois. Oct. 24, 1916.

Dig. 157(6).]
Rehearing Denied Dec. 21, 1916.)



SALABY. A court of chancery properly took jurisdic

Under the contract between an amusement tion of a suit brought by a minority stockholder of a corporation charging that a major the cost of construction of buildings should be

corporation and a concessionaire, providing that ity stockholder, who also had control of another charged against the amusement corporation, corporation, was controlling the first corpora. where the salary of a superintendent of contion for the benefit of the second, as if in fact struction of the buildings was not so grossly the second owned and controlled a majority of excessive as to indicate that the directors of the the stock of the first.

amusement company were actuated by fraud, the (Ed. Note. For other cases, see Corporations, contract being one within the discretion of its Cent. Dig, 88 783–790; Dec. Dig. Om 204.] officers, the amount was properly charged 2. CORPORATIONS 206(4)—MINORITY STOCK- against the amusement corporation. HOLDERS-SUIT ON BEHALF OF CORPORATION

[Ed. Note.--For other cases, see Landlord and -EXCUSE FOB FAILING TO MAKE DEMAND.

Tenant, Cent. Dig. 88 586–588; Dec. Dig. Om Where it appeared that a majority stock- 157(7).) holder acquiesced in the making of improper charges against the corporation by another 7. CORPORATIONS Cam 308(6)-SALARY-PRESIcorporation which he also controlled, and resist DENT—INTEREST ON WITHHELD SALARY. ed crediting the first corporation for items for Where the president of a corporation neglectwbich it should bave received credit by the sex ed to draw his salary for 11 months, there being ond corporation, a minority stockholder could no agreement that he was to be allowed interest bring suit in behalf of himself, other stockhold- upon salary not drawn and his action being ers, and the corporation without first making purely voluntary, the corporation was not liable demand upon the corporation and its officers and for interest. directors for redress.

(Ed. Note.-For other cases, see Corporations, [Ed. Note.-For other cases, see Corporations, Cent. Dig. 38 1341, 1342; Dec. Dig. Om 308(6).) Cent. Dig. $ 795; Dec. Dig. Om 206(4).] 3. FIXTURES 27(2) - CONTRACT GRANTING


TRACT OF CONCESSION CONSTRUCTION In a minority stockholder's suit in behalf


Where the contract between an amusement of an amusement corporation, a contract, granting concessions to a second corporation, and pro- corporation and a concessionaire provided that viding that for the purpose of determining the the corporation should furnish the concessioncost of buildings the concessionaire was to fur- aire with sufficient electric light to properly nish full statement of costs and amounts ex- light the building and grounds at a certain pended, appurtenances and fixtures of a perma- profit, the fact that the light on concessionaire's nent character attached to the buildings to be building helped to light the amusement grounds considered as a portion of the cost of the build- did not warrant a deviation from such contract, ings, and in determining the cost no account or the allowance of a rebate on the electric shall be taken of movable fixtures such as tables light bill of concessionaire. and chairs, nor of any linen, silver, tableware,

[Ed. Note.-For other cases, see Landlord and or kitchen utensils, was merely declaratory of Tenant, Cent. Dig. 88 840, 844, 845; Dec. Dig. the law on the subject of appurtenances and firem 211(1).] tures, and must be determined in accordance with the rule of law applicable between land- 9. LANDLORD AND TENANT 122 CONTRACT lord and tenant.

OF CONCESSION-CONSTBUCTION. [Ed. Note. For other cases, see Fixtures, Where the contract between an amusement Cent. Dig. $8 5, 22, 25; Dec, Dig. Om 27(2).] corporation and concessionaire granted exclu

sive rights and privileges for the sale of cer4. LANDLORD AND TENANT O157(6) Con.

tain commodities, but fixed the exact space upon CESSION-AMUSEMENT PARK-MATTERS Not which such right may be exercised, and providINCLUDED IN CONTRACT OF CONCESSION. Where the concessionaire, by authority of designated on the general ground plans, the exer

ed that the "exact space" will be shown and the executive committee of the amusement concise of the rights and privileges granted is limitporation, built and occupied a building, which ed to the space mentioned in the contract. was an improvement which might properly have been constructed by the amusement corporation, [Ed. Note. For other cases, see Landlord and and which was not included in the provisions Tenant, Cent. Dig. $ 435; Dec. Dig. Om 122.] of the contract granting the concession, the cost of construction was properly charged against 10. LANDLORD AND TENANT 182 CONthe amusement corporation, but the concession

TRACT OF CONCESSION-CONSTRUCTION. aire must pay a reasonable rental or commission.

Where a contract between an amusement [Ed. Note.-For other cases, see Landlord and corporation and a concessionaire, providing for Tenant, Cent Dig. 88 576, 585, 590-595; Dec. commissions on certain drinks to be sold by the Dig. Bu 157(6).)

concessionaire, did not exempt wines or other

drinks served at banquets, and there was no 5. LANDLORD AND TENANT O157(6)--CONCES- showing that any modification of the contract

STON-AVUSEMENT PARK-MATTERS Not IN- based upon a valuable consideration was subCLUDED IN CONTRACT OF CONCESSION.

Where the object of a tunnel leading from sequently made, the contract as originally made the concessionaire's building to a band stand must govern, so that the amusement corporation was to facilitate the sale of drinks at the band is entitled to commissions on sales of liquors at stand, from which the amusement corporation

banquets. derived a commission, and it was therefore ap [Ed. Note.-For other cases, see Landlord and parently as much for the benefit of the amuse- Tenant, Cent. Dig. 88 732–735; Dec. Dig. ment company as the concessionaire, the con- (182.)

For other cases see same topic and KEY. NUMBER in all Key-Numbered Digests and Indexes
114 N.E.--24





The allowance of costs in a chancery case, The fact that the concessionaire made a mis- resting very largely in the discretion of the take in agreeing to pay a bigh rate of commis- chancellor, will only be interfered with in cases sion for the privilege granted would not be suffi- of abuse in the exercise of such discretion. cient ground for altering the contract, fairly (Ed. Note.-For other cases, see Appeal and made and entered into, in the absence of fraud Error, Cent. Dig. $ 3882; Dec. Dig. Om984(2); or imposition in its making.

Costs, Cent. Dig. 88 327, 820, 821.) [Ed. Note.-For other cases, see Landlord and

Cook and Dunn, JJ., dissenting. Tenant, Cent. Dig. 88 840, 844, 845; Dec. Dig. mw211(1).]

Error to Branch D Appellate Court, First 12. LANDLORD AND TENANT 182 CON- District, on Appeal from Circuit Court, Cook TRACT OF CONCESSION-CONSTRUCTION. County; E. M. Mangan, Judge. Where the contract between an amusement

Suit by William F. Merle against Joseph corporation and concessionaire, exempting payment of commissions on eatables, was first con- Beifeld and others. From a decree finding strued by the parties not to exempt ice cream that the proceedings were properly brought when not served with meals, the contemporane and approving a master's report as to cerous construction placed upon the contract by the parties being entitled to great weight in de tain items and overruling as to others, both termining their intention and being a proper parties appealed to the appellate court. construction of the contract, the concessionaire From a judgment of the Appellate Court (194 must pay a commission on ice cream when not 11. App. 364), affirming the decree in part sold with meals. (Ed. Note.-For other cases, see Landlord and cause for further proceedings, plaintiff brings

and reversing it in part and remanding the Tenant, Cent. Dig. $$ 732–735; Dec. Dig. 182.]

certiorari. Reversed and remanded. 13. LANDLORD AND TENANT @213(1) CON Helmer, Moulton, Whitman & Whitman, of TRACT OF CONCESSION INTEREST ON Com Chicago (Roland D. Whitman and Lloyd C.

Whitman, both of Chicago, of counsel), for Where commissions derived from the sale of

Felsenthal & Wilson, of commodities provided for under the contract plaintiff in error. were to be paid daily to the amusement coin Chicago, for defendants in error Joseph Beipany, and were not so paid, but were credit- feld and Sherman House Hotel Co. Farlin ed on a construction account under another H. Ball, of Oak Park, for defendant in error contract between the parties, the amusement corporation is entitled to interest

on such

White City Const. Co. amounts so wrongfully credited from the time they should have been paid.

CRAIG, C. J. William F. Merle, a stock[Ed. Note.-For other cases, see Landlord and holder of the White City Construction ComTenant, Cent. Dig. 88 846–848, 854, 856; Dec. pany, a corporation (hereinafter called the Dig. Om 213(1).)

White City Company) filed a bill in chancery 14. APPEAL_AND ERROR Om877(3)–REVIEW, in the circuit court of Cook county on behalf PARTIES ENTITLED TO ALLEGE ERROR.

of himself and all other stockholders of said Where no appeal was perfected by a de corporation who might choose to join with fendant from decree finding that a certain amount should be accounted for by such defend- him in said suit, against the Sherman House ant to the amusement corporation, the decree Hotel Company (hereinafter called the hotel is final and conclusive and will not be con- company) Joseph Beifeld, Morris Beifeld, Eusidered on writ of error by other parties.

gene V. Beifeld, Frank Behring, Lillian Bei[Ed. Note.-For other cases, see Appeal and Er: feld, L. A, Deben, Aaron J. Jones, Samuel J. ror, Cent.Dig. 88 3565, 3566; Dec. Dig. ww877(3).] Kline, Paul D. Howse, Edward B. Grossman, 15. APPEAL AND ERBOR Om877(3)-PARTIES the Chicago Fire Exhibition Company, and

NORITY STOCKHOLDER-ALLOWANCE OF Ex- the White City Construction Company, charg-

ing a misappropriation of the corporate funds A majority stockholder in the amusement of said White City Company to his prejudice, corporation, who was also a majority stockhold- and asking for an accounting of the funds er in the second corporation concerned in the alleged to have been misappropriated, and alleged misappropriation of funds, could not assign errors in behalf of the first corporation, for other relief. Answers were filed by all to an allowance for plaintiff's expenses of suit of the defendants. A preliminary hearing

[Ed. Note.-For other cases, see Appeal and Er- was had before the court, at which was fixed, ror, Cent.Dig. 88 3565, 3566; Dec.Dig. Om877(3).] in a general way, the rules to govern the ac16. APPEAL AND ERROR 1078(1)-REVIEW-counting, and the cause was referred to a BRIEFS.

master in chancery to take the evidence and Where the amusement corporation did not report the same, with his conclusions of appeal, and the question of an allowance for law and fact. The master made his report, plaintiff's expenses in prosecuting suit, complained of, was not raised or argued in the briefs finding the bill was properly brought, and filed in the Appellate Court, such question stating an account between the parties up should not have been considered by the Appel- to the time of filing the bill. Exceptions late Court, and will not be considered by the were filed to the master's report, and on the Supreme Court. [Ed. Note. For other cases, see Appeal and that the proceedings were properly brought,

hearing the court entered a decree, finding Error, Cent. Dig. $ 4256; Dec. Dig. Om 1078(1).]

and approving the master's report as to cer


tain items allowed and overruling it as to Beifeld has, in other instances than those others. From this decree plaintiff in error, specifically enumerated, wronged the White and Joseph Beifeld, the hotel company, and City Company by à personal conversion of the Chicago Fire Exhibition Company pray- its funds and by being interested in other ed, and were allowed, an appeal to the Ap- corporations or business inimical to the pellate Court for the First District. Plaintiff White City Company, and that by reason of in error and Joseph Beifeld and the hotel the facts set forth a demand upon defendcompany perfected their appeals to that ants, or any of them, including the White court. The appeals were consolidated in that City Company, for the righting of the allegcourt for hearing, and judgment was render-ed wrongs, would have been futile, and coned, affirming the decree of the lower court includes with a prayer for an accounting, the part and reversing it in part, and remanding appointment of a receiver, and for other rethe cause for further proceedings in the cir- lief. cuit court. A writ of certiorari was allowed All of the defendants, by their answers, by this court, and the cause is now in this denied the charges of combination and concourt pursuant to the mandate of such writ. spiracy alleged in the bill. The answer of

The bill was filed in the circuit court of the White City Company further averred it Cook county on January 11, 1908, by plain- was a solvent, going concern; that it objecttiff in error on behalf of himself and all oth-ed to any interference with its internal afer stockholders and bondholders of the White fairs by this suit, and it denied plaintiff in City Company who might choose to join with error's right to the relief prayed, and averred him, alleging its organization under the its willingness to produce its books and reclaws of Illinois on August 26, 1904, with a ords for examination by the court and to capital stock of $1,000,000, divided into 10,- abide by any order the court might enter in 000 shares of the par value of $100 each; the premises. The answer of Joseph Beifeld that ever since its organization a majority also denied the charges of combination and of its capital stock has been owned or con- conspiracy, and further denied that any detrolled by Joseph Beifeld; that while from mand for rectification of the grievances comtime to time shares of stock appeared on the plained of had been made upon him or the books of the company in the name of Lillian corporation or its officers and directors, or, Beifeld, Morris Beifeld, Eugene V. Beifeld, if made, would have been futile, and containFrank Behring, Samuel J. Kline, L. A. Deh- ed other allegations in respect to the maten, and E. B. Grossman, they were, in fact, ters charged in the bill which will be hereineither held in the interest of Joseph Beifeld after noted in so far as they are material to or controlled by him, and that by means of be considered at this time. The hotel com-. his stock ownership or control he has con- pany adopted the answer of Joseph Beifeld. tinually dominated the directors in the con- The answers of the other defendants raised duct of the business of the company; that, no issue not presented by the answers of the the hotel company is an Illinois corporation, others, and require no further notice at this in which Joseph Beifeld owns and controls time, except the statement that they likewise substantially all of the capital stock; that denied all charges of combination and conJoseph, Morris, Eugene V. and Lillian Bei- spiracy made in the bill. Upon the filing of feld conspired for the purpose of fraudulent- these answers plaintiff in error amended his ly depriving the stockholders of the White bill by alleging that certain facts set forth City Company, including the plaintiff in er- in Joseph Beifeld's answer were additional ror, of their rights and interests as such evidence of his charge against him. Replistockholders by converting its funds, profits, cations were filed to the answers, the anand property for the benefit of themselves swers to the original bill being ordered to and the hotel company, and in pursuance of stand as answers to the amended bill. such conspiracy have, from time to time It appears from the pleadings and proofs since August 26, 1904, fraudulently caused that the White City project as an amuseand ermitted large sums of money to be ment park was first brought to the attention paid out of the funds of the White City of Joseph Beifeld in June, 1904, by Paul Company to the hotel company, to the Bei- D. Howse and Aaron J. Jones, men of exfelds and other persons unknown to plain-perience in the amusement business. At that tiff in error, in their business and financial time Joseph Beifeld was president and printransactions with the White City Company, cipal owner of the hotel company, a corporato which sums of money thus allowed, paid tion which conducted the Hotel Sherman and out, or credited the parties were not legally the College Inn restaurant, in Chicago. He entitled, and sets forth specifically a number was without experience in the amusement of the transactions of the hotel company, business, but became interested in the prop Joseph and Morris Beifeld and their agents, osition because he believed it would afford in whic it is alleged the White City Com- him an opportunity for extending restaupany was defrauded and suffered financial | rant business. A lease of ground was taken loss, which transactions will be referred to by these three men at Sixty-Third street and later and more in detail in deciding the spe South Park avenue. The White City Comcific items in controversy between the par- pany was organized in August, 1904, with ties. The bill further sets forth that Joseph la capital stock of $1,000,000, and the lease

was assigned to it and a bond issue of $500,- y essary properly to Úght said building or 000 authorized by that corporation to raise buildings. Until said building or buildings money with which to build and equip the shall bave become the property of said compark. Joseph Beifeld, Howse, Jones and pany, as hereinafter provided, the conces E. C. Boyce, the architect who drew the plans sionaire will pay all the expense connected and supervised the construction of the park, with the repair and maintenance thereof and took $300,000 of the capital stock for pro- of the grounds whereon the same are situmoting the enterprise. The remainder of the ated. capital stock was to be used in selling the Fifth. For the purpose of determining the bonds, $200,000 as a commission for selling cost of the buildings, the concessionaire to and $500,000 to be given as a bonus with furnish, after the completion of the same, the sale of the bonds. Joseph Beifeld pur- full statement of the cost, together with chased $235,000 worth of the bonds and sold amounts expended by him for all appurte$125,000 more to his friends, and $50,000, nances and fixtures of a permanent charworth was otherwise disposed of. Plaintiff | acter attached to the building, all of which in error became interested in the enterprise shall be a part of the cost of the building. in the fall of 1904, at which time he pur. In determining the cost no account shall be chased $1,000 worth of bonds, with which taken of movable fixtures, as tables and he received $1,000 worth of stock. He has chairs, nor of any linen, silver or table or since purchased other stock and bonds to kitchen utensils. such an amount that at the time of filing Ninth. The concessionaire covenants and the bill he owned practically one-seventh of agrees to pay to said company as compensathe entire capital stock of the White City tion for this grant, concession, and license, Company. He received no bonus with the in lieu of all other rents or charges, 25 per purchase of any of the stock or bonds ex.cent, of the gross receipts from the sales of cept the first $1,000 worth. He was also drinks and 10 per cent. of the gross receipts interested in several concession contracts, from the sales of cigars, cigarettes, and to among which was that of the Chicago Fire baccos, but shall not pay any commission Exhibition Company, one of the defendants or percentage on the sale or sales of eatables. to his bill.

Tenth. The concessionaire shall not pay to The White City was built and opened to the company any portion of the 25 per cent. the public on May 27, 1905. Its construc- and the 10 per cent. of the gross receipts, tion involved an expenditure of more than but shall retain the same until such per $800,000, aside from the amount expended by cent. shall equal the total original cost of the the hotel company in constructing the Cole building or buildings, appurtenances and lege Inn building, otherwise known as the equipments, as shown by the statement Casino, pursuant to the terms of the con- which shall be furnished to the company by cession contract, granting to it the restau- the concessionaire, and until the concessionrant privileges of the premises. This con- aire shall be reimbursed for all outlays in tract is dated November 9, 1904, and here maintaining buildings, appurtenances, and after will be referred to as contract A. It's moneys expended for insurance thereon. provisions material to be noted at this time when the total amount of retained percentare substantially as follows:

ages by the concessionaire shall equal the First. The company (the White City Com- cost of the buildings, appurtenances, and pany) leased to the concessionaire (the hotel cost of maintenance the buildings shall be company) the concession known as the White come the property of the company, and the City concession No. 1, for the exclusive right concessionaire shall then execute and delivof sale of foods, drinks, cigars, cigarettes, er to the company any conveyance which and tobacco within the premises occupied by may be necessary. Upon receiving due comthe company as lessee of a tract of land pensation the concessionaire shall assign to situated at the corner of Sixty-Third street the company all insurance then upon the and Park avenue, upon which the company buildings and equipment. Thereafter the is constructing the White City.

concessionaire shall pay 25 per cent of the Second. “And for the purpose aforesaid” gross receipts from the sales of drinks and the company granted to the concessionaire 10 per cent. of the gross receipts from the the use of space approximately 100 by 200 sale of cigars, cigarettes, and tobacco, in feet on the east side of said grounds, on the the manner hereinafter provided. Therenorth end thereof, the exact space being after the company shall be liable for and shown on the ground plan drawn by Ed- shall pay the cost of making repairs to the ward C. Boyce, adopted by the company and buildings and cost or charges of mainteissued by Joseph Beifeld, president.

nance, exceptiog for water and cost of lightThird. Said concessionaire is hereby given ing and heating. the right to and will construct upon said Twelfth. The conc naire shall install space so allotted to him, a building or build- and keep for sale such soft drinks, being ings at a minimum cost of $25,000, the same drinks other than spirituous and malt liqto be erected at his own cost and expense, uors, as the company may, from time to time, except that the company will install and pay in writing request. In case of failure to do

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