pany entered upon the land, and laid down tracks and performed its
part of the contract until it became insolvent, and a mortgage upon
its property was foreclosed. The property was purchased by a new
railway company, which continued to carry on the business as it had
been carried on before, but without making any new contract, or any
special agreement for rent. After continuing to carry on the business
in this way for some time, the railway company diverted a portion of
its transportation across the river to other carriers. Subsequently a
further diversion was made, and then the company became insolvent,
and a receiver was appointed. This officer also continued to carry
on the business, and without making any special agreement: but event-
ually he wholly diverted the business and removed all the rails and
tracks from the premises. The ferry company then intervened in the
suit against the railway company in which a receiver had been appointed,
claiming to recover compensation for the use of its property by the
railway company and by the receiver, and for the value of the mate-
rials removed from the premises when possession was surrendered.
The court below dismissed this petition and allowed an appeal. Held,
(1) That the contract did not create the relation of landlord and tenant;
that no rent having been reserved, or claimed, or paid during the
whole occupation, the conduct of the parties was inconsistent with
such a relation; and that under such circumstances such a relation
would not be implied;
(2) That the railway company, under the circumstances, acquired an equi-
table estate in the premises of like character with the legal estate
previously held by the railroad company; and that both parties were
equitably estopped from denying that such was the case;
(3) That the ferry company having, up to the argument in this court,
conducted the litigation solely on the theory that it was entitled as
landlord to recover the rental value of the premises in question, this
presented a serious obstacle in the way of doing substantial justice
between the parties; but,
(4) That a mistaken view of one's rights or remedies should not be per-
mitted wholly to defeat a claim founded upon principles of equity
and justice, and if the pleadings can be so amended as to admit proof
of such claim, and such amendment does not introduce a new cause
of action, though it may set up a new measure of damages, or work
a real hardship to the party defendant, it is within the discretion,
even of the appellate court, to permit such amendment to be made;
(5) That the ferry company was not entitled to recover the value of the
rails removed by the receiver. Wiggins Ferry Co. v. Ohio & Missis-
sippi Railway Co., 396.
See CONSTITUTIONAL LAW, A, 7, 10; B, 2;
EQUITY, 2;
LOCAL LAW, 2;
MANDAMUS, 2, 3.
1. The act of March 3, 1887, 27 Stat. 552, c. 373, with regard to the re-
moval of causes from state courts, (corrected by the act of August 13,
1888, 25 Stat. 433, c. 866,) repealed subdivision 3 of Rev. Stat. § 639.*
Fisk v. Henarie, 459.
2. The words in that act "at any time before the trial thereof," used in
regard to removals "from prejudice or local influence" were used by
Congress with reference to the construction put on similar language
in the act of March 3, 1875, 18 Stat. 470, c. 137, by this court, and are
to receive the same construction, which required the petition to be filed
before or at the term at which the cause could first be tried, and before
the trial thereof. Ib.
1. In a suit in equity for the rescission of a contract of purchase, and to
recover the moneys paid thereon on the ground that it was induced by
the false and fraudulent representations of the vendors, if the means
of knowledge respecting the matters falsely represented are equally
open to purchaser and vendor, the former is charged with knowledge
of all that by the use of such means he could have ascertained: and a
fortiori he is precluded from rescinding the contract and from recovery
of the consideration money if it appears that he availed himself of
those means, and made investigations, and relied upon the evidences
they furnished, and not upon the representations of the vendor.
Farnsworth v. Duffner, 43.
2. It is no ground for rescinding such a contract that the agents of the
vendors, who had received the full purchase money agreed upon, mis-
appropriated a part of it.
3. Statements by a vendor of real estate to the vendee, (made during the
negotiations for the sale,) as to his own social and political position
and religious associations, are held, even if false, not to be fraudulent
so as to work a rescission of the contract of sale. Ib.
1. In Wisconsin the ownership of riparian proprietors extends to the
centre or thread of the stream, subject, if such stream be navigable, to
the right of the public to its use as a public highway for the passage of
vessels; and the law, so settled by the highest court of the State, is
controlling in this court as a rule of property. Kaukauna Water
Power Co. v. Green Bay & Miss. Canal Co., 254.
2. A state legislature may authorize the taking of land upon or riparian
rights in a navigable stream, for the purpose of improving its naviga-
tion, and if a surplus of water is created, incident to the improvement,
it may be leased to private parties under authority of the State, or
retained within control of the State; but so far as land is taken for
the purpose of the improvement, either for the dam itself or the em-
bankments, or for the overflow, or so far as water is diverted from its
natural course, or from the uses to which the riparian owner would
otherwise be entitled to devote it, such owner is entitled to compensa-
tion.
3. The act of March 3, 1875, 18 Stat. 506, c. 166, "to aid in the improvement
of the Fox and Wisconsin Rivers, in the State of Wisconsin," provided
a mode for obtaining compensation to persons injured by the taking
of their land or their riparian rights in making such improvements;
and, as it remained in force for thirteen years, it gave to persons
injured a reasonable opportunity for obtaining such compensation,
and if they failed to avail themselves of it, they must be deemed to
have waived their rights in this respect. Ib.
4. Such an owner, who fails to obtain compensation, for the taking of his
property for use in a public improvement, by reason of his own neglect
in applying for it, cannot violently interfere with the public use, or
divert the surplus water for his own use.
5. It is not decided whether or not a bill in equity, framed upon the basis
of a large amount of surplus water not used, will lie to compel an
equitable division of the same upon the ground that it would other-
wise run to waste. Ib.
SECRETARY OF THE TREASURY.
See INSPECTOR OF IMMIGRATION.
The law of self-defence justifies an act done in honest and reasonable
belief of immediate danger; and, if an injury be thereby inflicted
upon the person from whom the danger was apprehended, no liability,
civil or criminal, follows. New Orleans & North Eastern Railroad
Co. v. Jopes, 18.
SERVICE OF PROCESS.
See LACHES, 1.
A. CONSTRUCTION OF STATUTES.
1. Upon the construction of the constitution and laws of a State, this
court, as a general rule, follows the decisions of its highest court,
unless they conflict with or impair the efficacy of some provision of
the Constitution or of a law of the United States, or a rule of general
commercial law. Stutsman County v. Wallace, 293.
2. In the case of an appeal from a judgment of the Supreme Court of a
Territory, which was admitted as a State after the appeal was taken,
a subsequent judgment of the highest court of the State upon the con-
struction of a territorial law involved in the appeal is entitled to be
VOL. CXLII-47
followed by this court in preference to its construction by the
Supreme Court of the Territory. 1b.
3. The rule that the known and settled construction of a statute of one
State will be regarded as accompanying its adoption by another is not
applicable where that construction had not been announced when the
statute was adopted; nor is it when the statute is varied and changed
in the adoption. Ib.
4. When the Executive Department charged with the execution of a stat-
ute gives a construction to it, and acts upon that construction for a
series of years, the court looks with disfavor upon a change whereby
parties who have contracted with the government on the faith of the
old construction may be injured; especially when it is attempted to
make the change retroactive, and to require from the contractor repay-
ment of moneys paid to him under the former construction. United
States v. Alabama Great Southern Railroad Co., 615.
See ASSIGNMENT FOR THE BENEFIT OF CREDITORS, 2, 4;
JURISDICTION, A, 7.
B. STATUTES OF THE UNITED STATES.
JURISDICTION, A, 1, 5, 12;
CONSTITUTIONAL LAW, A, 13, 17, 24; MAILS, TRANSPORTATION OF;
Louisiana.
Maine.
Missouri.
See TRUST, 3.
See JURISDICTION, A, 5;
MUNICIPAL BOND, 1.
See TAX AND TAXATION.
See LOCAL LAW, 1.
See ASSIGNMENT FOR BENEFIT OF CREditors, 3;
MUNICIPAL BOND, 3.
See EQUITY, 1;
LOCAL LAW, 2.
See CONSTITUTIONAL LAW, A, 5.
See CONSTITUTIONAL LAW, A, 7.
See BILL OF EXCHANGE;
CONSTITUTIONAL LAW, B, 1;
MECHANICS' LIEN, 2.
See CONSTITUTIONAL LAW, A, 6.
South Carolina. See CONSTITUTIONAL LAW, A, 10.
See ASSIGNMENT FOR BENEFIT OF CREDitors, 1.
STOCK EXCHANGE.
See BANKRUPT, 1.
1. Following the decision of the Supreme Court of North Dakota as to the
tax laws of Dakota Territory; Held, (1) That an erroneous decision
of an assessor of taxes under those laws in the matter of exemptions
does not deprive the tax proceedings of jurisdiction, and that, until
such erroneous decision is modified or set aside by the proper tribunal,
all officers with subsequent functions may safely act thereon; and that
the rule of caveat emptor applies to a purchaser at a tax sale there-
under; (2) That under those laws a county treasurer, in making a
sale for non-payment of taxes, acts ministerially, the law furnishing
the authority for selling the property for delinquent taxes, and the
warrant indicating the subjects upon which that authority is to be
exercised; and he is protected, so long as he acts within the statute;
(3) That in the case of lands granted to the Northern Pacific Rail-
road Company, on which the costs of survey had not been paid and
for which no patents had been issued, it was his duty to proceed to
sell, notwithstanding those facts; and that, when the title of the pur-
chaser at the tax sale failed, by reason of the lands not being subject
to taxation, the county was not liable for the purchase money, under
c. 28, § 78, of the Political Code of 1877. Stutsman County v. Wal-
lace, 293.
2. Diversity of taxation, both with respect to the amount imposed and the
various species of property selected, either for bearing its burdens or
for being exempt from them, is not inconsistent with a perfect uni-
formity and equality in taxation, and of a just adaptation of property
to its burdens. Pacific Express Co. v. Seibert, 339.
3. A system of taxation which imposes the same tax upon every species of
property, irrespective of its nature, or condition, or class, will be
destructive of the principle of uniformity and equality in taxation,
and of a just adaptation of property to its burdens. Ib.
See CONSTITUTIONAL LAW, A, 7; B, 1, 2;
JURISDICTION, A, 10;
LOCAL LAW, 1.
TOWN SITE ACT.
See JURISDICTION, A, 5.
TRESPASS.
1. G. conveyed to S. a "mining claim and lode" in Utah, and S. executed
a declaration of trust that the conveyance had been made to him
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