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vault space and hence imposed not a mere, 68 N. E. 880; Lincoln Safe Deposit Co. v. license fee incident to the power to investi- City of New York, 210 N. Y. 34, 103 N. E. gate the application and regulate the use of 768, L. R. A. 1915F, 1009; City of New York v. the street, but a tax measured in amount by Rice, 198 N. Y. 124, 91 N. E. 283, 28 L. R. A. the rental value of the vault; the charter of (N. S.) 375. This right exists as to the ownthe defendant conferred upon the board of er of the land contiguous to the land of the aldermen power to regulate merely, which street, irrespective of the ownership of the does not include the power to tax. The Ap- fee of the latter, because it is an element in pellate Division made the finding of fact the authorized regulation and supervision (Ryan v. Franklin, 199 N. Y. 347, 92 N. E. of the street. 673) :

The provisions of the ordinances do not “That no proof was adduced by the plaintiffs, contain any evidence that the payment rewhich tended to show that the rate of compensa- quired from the applicant for the permission tion which was prescribed by the ordinances for to construct a vault is a tax and not a fee a vault permit was either excessive or unreasonable or in the nature of a tax or an assessment for the permission. They require him to or a rental for the use of the land."

state in his written application “the number And the conclusion of law :

of square feet of ground which is required "That even assuming that the plaintiffs are for the same, and the intended length and the owners of the bed of Cortlandt street, still width of the same," and to pay as a just they have not the right to construct vaults thereunder without the permission of the municipal compensation for the privilege a sum "calcuauthorities.

And as

a condition of granting lated at the rate of not less than 30 cents, such permission, the municipal authorities are nor more than $2 per foot for each square entitled to impose such terms and conditions as foot of ground mentioned as required for they may see fit to indemnify the city against

We cannot discern in the expenses which it would be subjected to in such vault. performing its duty of supervision and inspec- the fact that the licensing officer is required, tion and maintenance and repair."

in exercising his discretion as to the amount, There is not in the record any evidence to make the basis of his computation the supporting the finding of the Special Term number of square feet of the space to be octhat the defendant demanded of the plain- cupied, support for the legal conclusion that tiffs that they pay for and take out a permits the payment is a tax or assessment for revfor the use of the space or land occupied by enue. It does not tend to prove that a comthe vaults, or the conclusion that the ordi- putation so based would produce an unreanances provided or intended that the plain- sonable charge or fee for the expenses of the tiffs should pay a tax upon or for such defendant resulting from the ascertainment space. The language of the ordinances, up- as to whether or not the permission should on which ultimately the finding is based, be granted as requested and the regulation, does not support the finding or conclusion. supervision, and inspection incident to the It expresses that the privilege applied and construction and maintenance of the vault. to be compensated for is that os construct. The language carries no evidence that the ing a vault in the street. That privilege has ordinances apply only to vaults constructed not any relation to the ownership or a rent- in streets, the fee of which is in the defending of the land of the street or the use of ant, or that the compensation is a rental. the fee. It is a requisite preliminary to the The appellants take before us the further construction of the vault, because the land ground that the ordinances are unauthorconstituting the street is subject to all the ized and unlawful because they apply alike public uses, servitudes, and appropriations to all streets irrespective of ownership, and essential to or consistent with its status as therein refuse to recognize the superior a street, and, in the interest of public safety, rights of the individuals owning the fee of a convenience, security, and comfort, is, with street. Inasmuch as this ground assumes in all legitimate street uses, by statutory that the compensation required by them is grant, under the control, regulation, and dis- a rental, what we have already said makes position of the public authorities, whose further consideration of it unnecessary. right to exact a payment or fee, in the pro For the reasons stated, the judgment cess of regulation, for a permission or privi. should be affirmed, with costs. lege of exercising in it a private possession or advantage, consistent with the public WILLARD BARTLETT, C. J., and HISuses, is undoubted. Jorgensen v. Squires, COCK, CHASE, HOGAN, and CARDOZO, 144 N. Y. 280, 39 N. E. 373; City of Buffalo JJ., concur. V. Stevenson, 207 N. Y. 258, 100 N. E. 798; Deshong v. City of New York, 176 N. Y. 475, Judgment affirmed.

(225 Mass. 148)

judge in disallowing the exceptions, the In re KOCH et al.

truth of which in this respect is not disputed (Supreme Judicial Court of Massachusetts.

by the petitioners, shows that the facts statSuffolk. Nov. 24, 1916.)

ed in their motion were not verified by affi

davit, were not supported by any evidence, 1. REFERENCE O 101(2) RECOMMITMENT OF and were not admitted by the opposing parREPORT-DISCRETION OF TRIAL COURT,

Where the facts stated in a motion to recom- ty. Under these circumstances it is too clear mit a report to an auditor were not verified by for discussion that the granting of the moaffidavit, or supported by any evidence, and were tion to recommit the case to the auditor restnot admitted by the opposing party, the grant- ed wholly in the discretion of the judge. ing of the motion to recommit the case rested Randall V. Peerless Motor Car Co., 212 Mass. wholly in the discretion of the trial judge.

(Ed. Note.-For_other cases, see Reference, 352, 372, 99 N. E. 221. Cent. Dig. $ 170; Dec. Dig. Om101(2).]

[2] As no substantial question of law is 2. EXCEPTIONS, BILL OF Om55(4)—PETITION set forth in the bill of exceptions as filed and TO ESTABLISH DISMISSAL.

disallowed, the parties and the CommonWhere no substantial question of law was wealth ought not to be put to the expense set forth in a bill of exceptions as filed and dish of a hearing on the petition to establish the allowed, the parties and the commonwealth ought not to be put to the expense of a hearing ex ons, but the petition should be dison the petition to establish the exceptions, but missed. Bishop, Petr., 208 Mass. 405, 407, the petition will be dismissed.

94 N. E. 479. [Ed. Note.–For other cases, see Exceptions,

So ordered.
Bill of, Cent. Dig. $ 93; Dec. Dig. Om55(4).]
Petition by Henry A. Koch and others, to

(225 Mass. 146) prove exceptions filed by them in an action against them by one Lummus, disallowed as

WRIGHT v. BLINN et al. not conforming to the facts. Petition dis

(Supreme Judicial Court of Massachusetts. missed.

Plymouth. Nov. 14, 1916.) Original case was in contract by one Lummus to recover as assignee under a common 1. APPEAL AND ERROR Om694(1) – REVIEW

REPORT OF EVIDENCE. law assignment, rent alleged to be due from

A general exception that a master's finding defendants. After a judgment for plaintiff, of fact is erroneous presents no question of law defendants filed exceptions which were dis- or fact, where the evidence is not reported. allowed by the presiding judge as not con [Ed. Note.-For other cases, see Appeal and formable to the facts and the matter then Error, Cent. Dig. g 2915; Dec. Dig. Om694(1).] came before the full bench.

2. TRUSTS 276 EXECUTION OF TRUST

PAYMENT OF PRINCIPAL FOR BENEFICIARY'S J. S. Richardson and Josiah Bon, both of SUPPORT-REVIEW OF TRUSTEE'S DISCRETION. Boston, for petitioners. H. T. Lummus, of

Under a trust to pay the income of property

and such proportion of the principal as is necesLynn, for respondent.

sary for the support of the cestui for life, so RUGG, O. J. This is a petition to estab- arbitrarily, or capriciously, his discretion as to

long as the trustee acts in good faith and not lish exceptions. The respondent, plaintiff in payment from the principal of the fund cannot the original action, moves that the petition be reviewed. be dismissed on the ground that it is appar. Dig. ss 394, 393; Dec. Dig. Eww276.]

[Ed. Note.-For other cases, see Trusts, Cent. ent upon a cursory examination of the exceptions as filed that no substantial question Report from Supreme Judicial Court, of law is involved. The action is in contract. Plymouth County. It was referred to an auditor with agreement Petition of George L. Wright in the proby the parties that his findings of fact should bate court against George R. Blinn, trustee, be final. The auditor's report was in favor and others, to have an account paid from of the plaintiff. Thereafter, the plaintiff trust funds. The petition was dismissed and moved that it be confirmed and judgment petitioner appealed to the Supreme Judicial rendered against the defendants. The de Court. The master to whom the action was fendants, the present petitioners, moved that referred stated in his report that: “The petithe report be recommitted to the auditor be- tion was apparently drawn upon the theory cause he did not show that an objection had that said Blinn, as trustee, is indebted to the been made to the introduction in evidence of petitioner, but there was no evidence introa certain letter, whereas in truth such ob- duced sufficient to justify me in finding that jection had been made; and the auditor, al- the said Blinn ever made any contract with though requested to make a statement of the petitioner. The case, however, was tried such ruling in his report, had not done so. upon the theory that the trustee acted, in his St. 1914, c. 576, § 2, amending R. L. C. 165, capacity as trustee, in an arbitrary and ca§ 55. The judge denied the motion of the pricious manner, and that he ought to be comdefendants and granted that of the plaintiff. pelled by this court to reimburse the petitionTo this action exception was taken, and this er for the board of Ellen Maria Kimball from is the only exception alleged in the bill. the time of the death of the testator to the

[1] This exception raises no question of time of Blinn's appointment as trustee, and law. The certificate of the superior court | for the various sums of money expended by

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the petitioner in behalf of Ellen Maria Kim-, ported in substance that the trustee never ball and for her nursing for the period men- made any contract with the plaintiff but tioned in the account annexed”-and found steadfastly refused to do so; that the trustee that "said Blinn, trustee, acted in good faith paid directly to the beneficiary a sum in ex. and not in an arbitrary or capricious man-cess of the income of the trust fund, and aftner.” Plaintiff objected and excepted to the ler narrating at some length the conduct of master's report, and the case was reported the trustee, that the trustee acted in good for the determination of the full court. Ex- faith and not in an arbitrary or capricious ceptions overruled, and petition dismissed.

manner. Chas. G. Willard, of Brockton, for peti:

The first exception to the master's report tioner. Adams & Blinn and Amos. L. Tay is that it was obligatory upon the master to lor, all of Boston, for respondents.

find that the trustee acted capriciously and

arbitrarily in not paying for the support of PER CURIAM. The will of John Kimball the beneficiary from the death of the testacontained the provision for the benefit of his tor until the appointment of the trustee. sister Ellen printed in the margin.i

Manifestly this is only one element bearing The petitioner claims that he furnished on the question and is not decisive. It is board, lodging, medicine and nursing for the quite overborne by other circumstances statsister for several years, the fair price fored in the report. which he seeks to recover from the trustee.

[1, 2] The second exception is the general The case was referred to a master who re

one that the master's finding of fact is er2“The remaining three-fourths of all the rest, roneous. The familiar rule is that where, as residue and remainder of my estate whether real, here, the evidence is not reported, no quespersonal or mixed I give devise and bequeath unto tion of law or fact is presented by such an the said George R. Blinn to have and to hold the same together with the legacy under the second exception. So long as the trustee acted in item hereto to the said George R. Bling his heirs good faith and not arbitrarily or capriciously, and assigns but in trust nevertheless for the pur: his discretion as to payment from the principose following, namely; to keep the same safely invested and to pay over the net income and in- pal of the fund cannot be reviewed. Brown terest arising therefrom unto my sister, Ellen v. Lumbert, 221 Mass. 419, 108 N. E. 1079; Maria Kimball for and during the term of her nat- Corkery v. Dorsey, 223 Mass. 97, 111 N. E. ural life and it in the opinion of the trustee here- 795. The decree of the probate court may be under the said income and interest shall be insufficient for the comfortable maintenance and support reversed? and a new decree may be entered of the said Ellen Maria I hereby authorize and overruling the exceptions to and confirming empower my trustee to pay to or for the benefit of the master's report and dismissing the plainthe said Ellen Maria such portions of the principal of said trust estate as in the opinion of my trus- tiff's petition. tee may be necessary for her comfortable mainte So ordered. nance and support, it being expressly understood that said payments of principal are not obligatory 2 The decree of the probate court declared that upon my trustee but are left solely to his sound the acts of the trustee in exercising the discretion discretion and judgment and upon the death of the reposed in him by the will of John Kimball were said Ellen Maria i direct my trustee to transfer, not reviewable, and ordered that the petition be turn over, and convey all of the trust estate re dismissed, but it also declared "that the petitioner maining in his hands unto my two cousins Sarah has no valid claim against the respondents or the Simonds and her sister Jerusha Webber to have and said estate of John Kimball," which was a matter to hold to them and their heirs and assigns for not material to the exceptions passed upon by this ever and terminate this trust."

court and not necessary to the decision of the case.

(185 Ind. 593)

age of cars and no cars shall be allowed to rePITTSBURGH, C., C. & ST. L. RY. CO. v. main thereon longer than is necessary for loadBARTH. (No. 23184.)

ing and switching purposes, where the same

now is or may be surveyed and located. The (Supreme Court of Indiana. Nov. 23, 1916.) width of the land to be occupied for this pur

pose, however, not to exceed fourteen (14) feet; RAILROADS ~69_RIGHT OF War-GRANT also the right to cut and remove for my use, TERMINABLE AT WILL.

however, such trees as may be liable to fall The grant of a switch track right of way, upon said track; and also the right to said giving the railroad company the right at any company at any time it may see fit to do so, time it may see fit to remove the track ma

without further compensation to me, to take terial belonging to it, to hold for so long a time up and remove so much material as may belong only as such company shall elect to use said to it, used in the construction and maintenance side track, was a lease creating a tenancy ter- of said side track. To have and to hold the minable at the will of lessor, as well as of the above described rights and privileges unto the railroad company.

said Pittsburgh, Cincinnati, Chicago & St. Louis [Ed. Note. For other cases, see Railroads, for so long a time only as such company, its

Railway Company, its successors and assigns, Cent. Dig. 88 161-165; Dec. Dig. Om69.]

successors and assigns, shall elect to continuo Lairy, J., dissenting.

the existence and use of said side track No. 6

for the use of the August Barth LeathAppeal from Circuit Court, Washington er Company, its successors and assigns. And

after the removal of the same, as abov County; Wm. H. Paynter, Judge.

providAction by Elizabeth Barth against the burgh, Cincinnati, Chicago & St. Louis Railway

ed, all right, title and interest of the said PittsPittsburgh, Cincinnati, Chicago & St. Louis Company in and to the above described

premRailway Company. Judgment for plaintiff, ises shall cease and determine absolutely.' and defendant appeals. Case transferred

The trial court construed the above instrufrom the Appellate Court under section 1394, ment to be a lease creating a tenancy at will, Burns' Ann. St. 1914 (110 N. E. 574). Af- and to sustain that construction appellee firmed.

here relies on the decision of this court in M. Z. Stannard, of Jeffersonville, for appel- Knight v. Indiana, etc., Co., 47 Ind. 105, 107 lant. John D. Welman, of Evansville, Am. St. Rep. 692. The instrument there Charles L. Jewett, of New Albany, and W. W. under consideration purported to convey to Hottel, of Salem, for appellee.

a predecessor of the coal company, and to his assigns, all of the mineral coal, limestone,

iron ore, etc., on a certain tract of land in SPENCER, J. For a statement of the Clay county, and authorized his entry onto facts and circumstances leading up to the insti. said lands to search for and remove such tution of this action reference is here made minerals, if any were there found. It also to the opinion of this court in Barth v. Pitts

provided that he should have burgh, etc., R. Co., 175 Ind. 554, 93 N. E. 535. Subsequent to the decision in that the right to abandon said lands and mining

at any time, and remove all his buildings and case appellee instituted this proceeding to re fixtures from said lands." cover possession of certain lands over which

The instrument was construed to be a lease, appellant was maintaining switch tracks, and took the position that the instrument under containingwhich the railroad company operated such an express contract that, so far as the lessee

is concerned, he may terminate the lease, abantracks is a lease creating a tendency at will, don the lands and mining, and remove his and therefore terminable on the giving of one buildings and fixtures from the lands at any month's notice to quit. That instrument con- time. This must be regarded as the creation of tains the foilowing provisions :

an estate at will. It is a stipulation which

applies to the whole interest of both parties "Know all men by these presents, whereas, under the instrument, and every section and the Pittsburgh, Cincinnati, Chicago & St. Louis clause in it. The lessee has only to will it, Railway Company has entered into certain and every part of the instrument and every agreements with the August Barth Leather interest under it, whether of the lessor or of the Company and the New Albany Manufacturing lessee, is at once at an end. It is a well-setCompany for the construction and operation of tled and well-known rule of law that a lease certain side tracks Nos. 6 and 23;

or estate which is at the will of one of the parand whereas, the route of said proposed side ties is equally. at the will of the other party, track No. 6 passes over certain land owned by One of them is no more or no further bound Elizabeth Barth (widow of August_Barth) in than the other. As the lessee in this case had said city of New Albany, county of Floyd, state the clear right, at his will, to terminate the of Indiana, described as follows:

The tenancy at any time, so also had the lessor. route of said track being_shown on the plan It cannot be otherwise." attached hereto, marked "Exhibit A' and made part of this conveyance: That I, Elizabeth To defeat the application of the above de Barth, widow of August Barth, for and in con- cision in this case attention is called to the sideration of the sum of $1 and the fulfillment rule announced in New American, etc., Co. v. of aforesaid agreement, received to my full satisfaction, have granted, bargained and sold, Troyer, 166 Ind. 402, 76 N. E. 253, 77 N. E. and by these presents do grant, bargain and 739, to the effect that gas, oil, and similar sell unto the Pittsburgh, Cincinnati, Chicago & mining contracts are to be treated as in a St. Louis Railway Company, the right to enter class by themselves on account of the peculiar upon said premises and to construct, maintain and operate thereon said side track, provided characteristics of the business. The decision said side track shall not be used for the stor- in the Troyer Case is thus explained in Bry.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
114 N.E.-6

OB

son v. Crown 01l Co., 112 N. E. 1, at page 2struction of the lease agreement, and are de of the opinion:

termined by our conclusion above stated. "Conceding that we there held gas and oil Judgment affirmed. contracts to be in a class by themselves, and that certain elements peculiar thereto are to be LAIRY, J., dissents. considered in the construction of such contracts, such a decision does not determine that all matters relative to the development of gas and

(185 Ind. 715) oil properties, and to the rights of the parties GLEASON et al. v. CARR et al. (No. 23104.) in interest, are to be governed by a special system of jurisprudence founded on the peculiari. (Supreme Court of Indiana. Nov. 22, 1916.) ties of the business."

APPEAL AND ERROR 339(4), 621(1)

DER GRANTING TEMPORARY INJUNCTION In other words, when the nature and extent PERFECTING APPEAL. of the subject-matter of a mining contract is Appeal from order granting temporary insuch that it cannot be known to the parties junction must be perfected and transcript filed when the agreement is executed, that fact the order is made.

in the Supreme Court during the term at which may be taken into consideration in determin [Ed. Note.-For other cases, see Appeal and ing their rights under the instrument. So far Error, Cent. Dig. $8 1885, 2724, 2730; Dec. as applicable, however, the usual rules of Dig. C339(4), 621(1).] law are otherwise controlling, and we know Appeal from Superior Court, Lake Counof no reason why the terms of a lease con- ty ; Wm. Harweh, Special Judge. tract for a railroad right of way should not Suit by Drucilla Carr and another against be determined in accordance with such rules. William P. Gleason and others. From an or

In this connection, the further assertion der granting a temporary injunction, defendis made that the instrument here under con- ants appeal. Appeal dismissed. sideration is not a lease, but rather a grant 0. L. Wildermuth and C. V. Ridgely, both to use and occupy, which, when accepted and of Gary, for appellants. John H. Gillett, of acted on by the grantee, is not revocable at Hammond, and E. G. Ballard, of Gary, for the pleasure of the grantor. To support this appellees. position reliance is placed particularly on the decision in Gilmore v. Hamilton, 83 Ind. MORRIS, J. Appeal from an order grant196, in which the Knight Case is considered ing a temporary injunction. The order was and sought to be distinguished. Without de made at the March, 1916, term of the Lake termining whether a correct result was reach- superior court. The transcript was filed ed in Gilmore v. Hamilton, supra, it is suffi- here long after the expiration of such term. cient to state that the reasons there given for Appeals of this character must be perfected not treating the contract under considera- during the term at which the order is made. tion as a lease or a license are not controlling Perrott v. Glenn (1916) 112 N. E. 891, and in the present case. It is true that the instru- authorities cited. ment executed by Mrs. Barth granted certain

Appeal dismissed. "rights and privileges unto the said Pittsburgh, Cincinnati, Chicago & St. Louis Rail

(185 Ind. 580) way Company, its successors and assigns, for STATE V. TOTTEN. (No. 22976.) so long a time only as such company, its (Supreme Court of Indiana. Nov. 21, 1916.) successors and assigns, shall elect to continue CRIMINAL LAW E811(1) INSTRUCTIONS the existence and use" of the side tracks in REPETITIONS. question. It is true, also, that one purpose to one side or the other is not commendable.

Repeating in instructions vital questions for the execution of the contract was to en

[Ed. Note.-For other cases, see Criminal able appellant to carry out certain shipping Law, Cent. Dig. 88 1969, 1971, 1972; Dec. Dig. agreements which it had made with third per-w811(1).] sons, but whatever those circumstances may Appeal from Circuit Court, Spencer Counindicate as to the original intention of the ty; Elbert M. Swan, Judge. parties, there can be no doubt that when the Homer E. Totten was tried and acquitted, railroad company contracted for the right, and the State appeals on reserved questions. "at any time it may see fit to do so," to aban- Appeal not sustained. don the agreement, it created an estate at

Ora A. Davis, of Rochester, and E. B. will in itself which was terminable in like Stotsenburg, of New Albany, for the State. manner at the will of its grantor. Any other James L. Houston and August H. Hoch, both construction would destroy mutuality of ter- of Rockport, for appellee. mination, which is an element to be considered in the interpretation of such contracts. COX, C. J. Appellee was charged, by inThe decision in Knight v. Indiana, etc., Co., dictment returned by the grand jury Septemsupra., is authority here, both as determining ber 10, 1914, with having, as guardian of his the character of the instrument in question minor daughter, on May 4, 1914, embezzled and as fixing the estate which it created. the funds of his trust to the amount of $1,

The remaining questions presented by the 969.90. To this indictment he was arraigned appeal are dependent for solution on a con- ) and pleaded not guilty. After this, on May

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