except as provided, could not be closed unless by common consent.
Before the action was brought the plaintiff had become the owner of
the fee of all the sub-lots constituting original lot one. Held, (1) If
the plaintiff did not own all of original lot one, she was entitled to
recover damages for any injury done to such part of it as she did own;
(2) The plaintiff, being the owner of all the sub-lots, was entitled,
under the deed, to close the alleys altogether; and therefore it was
error to instruct the jury that she could not have conveyed a good title
to the land marked on the plat as alleys; (3) The plaintiff was entitled
to recover such damages as were equivalent to or would fairly compen-
sate her for the injury done to her land by the defendant. Absolute
certainty as to damages in such cases is impossible. All that the law
requires is that such damages be allowed as, in the judgment of fair
men, directly and naturally resulted from the injury for which suit is
brought. What the plaintiff was entitled to was reasonable compensa-
tion for the wrongs done to her. Hetzel v. Baltimore & Ohio Railroad, 26.
DISEASED CATTLE, INTERSTATE TRANSPORTATION OF.
1. The act of Kansas, 1891, c. 201, as amended and as it appears in 2 Gen.
Stats. Kansas, 1897, 761, c. 139, relating to bringing into the State cattle
liable or capable of communicating Texas, splenic or Spanish fever to
any domestic cattle of the State, and providing for the trial of civil
actions brought to recover damages therefor, is not overridden by the
act of Congress of May 29, 1884, 23 Stat. 31, c. 60, known as the
Animal Industry Act, nor by the act of March 3, 1891, 26 Stat. 1044,
1049, с. 544, appropriating money to carry out the provisions of the
above act, nor by section 5258 of the Revised Statutes, authorizing
every railroad company in the United States, operated by steam, its
successors and assigns, "to carry upon and over its road, boats, bridges
and ferries all passengers, troops, Government supplies, mails, freight
and property on their way from any State to another State, and to re-
ceive compensation therefor, and to connect with roads of other States
so as to form continuous lines for the transportation of the same to
the place of destination; as Congress has not assumed to give to any
corporation, company or person, the affirmative right to transport
from one State to another State cattle that were liable to impart or
capable of communicating contagious, infectious or communicable
diseases. Missouri Kansas & Texas Railway Co. v. Haber, 613.
2. Whether a corporation transporting, or the person causing to be trans-
ported from one State to another, cattle of the class specified in the
Kansas statute should be liable in a civil action for any damages sus-
tained by the owners of domestic cattle by reason of the introduction
into their State of such diseased cattle, is a subject about which the
act of May 29, 1884, c. 60, 23 Stat. 31, known as the Animal Industry
Act, did not make any provision. Ib.
3. The provision in the Kansas act imposing such civil liability is in aid
of the objects which Congress had in view when it passed the Animal
Industry Act, and it was passed in execution of a power with which
the State did not part when entering the Union, namely, the power to
protect the people in the enjoyment of their rights of property, and
to provide for the redress of wrongs within its limits, and is not, within
the meaning of the Constitution, nor in any just sense, a regulation
of commerce among the States. Ib.
4. A state statute, although enacted in pursuance of a power not surren-
dered to the General Government, must in the execution of its provi-
sions yield in case of conflict to a statute constitutionally enacted under
authority conferred upon Congress; and this, without regard to the
source of power whence the state legislature derived its enactment. Ib.
5. Neither corporations nor individuals are entitled by force alone of the
Constitution of the United States and without liability for injuries
resulting therefrom to others, to bring into one State from another
State came liable to impart or capable of communicating disease to
domestic cattle. Ib.
6. Although the powers of a State must in their exercise give way to a
power exerted by Congress under the Constitution, it has never been
adjudged that that instrument by its own force gives any one the
right to introduce into a State, against its will, cattle so affected with
disease that their presence in the State will be dangerous to domestic
cattle. Ib.
7. Prior cases reviewed and held to proceed upon the ground that the
regulation of the enjoyment of the relative rights, and the perform-
ance of the duties, of all persons within the jurisdiction of a State
belongs primarily to such State under its reserved power to provide
for the safety of all persons and property within its limits; and that
even if the subject of such regulations be one that may be taken under
the exclusive control of Congress, and be reached by national legisla-
tion, any action taken by the State upon that subject that does not
directly interfere with rights secured by the Constitution of the United
States or by some valid act of Congress, must be respected until Con-
gress intervenes. Ib.
8. An act of Congress that does no more than give authority to railroad
companies to carry "freight and property" over their respective roads.
from one State to another State, will not authorize a railroad company
to carry into a State cattle known, or which by due diligence may be
known, to be in such a condition as to impart or communicate disease
to the domestic cattle of such State. Ib.
9. If the carrier takes diseased cattle into a State, it does so subject for
any injury thereby done to domestic cattle to such liability as may
arise under any law of the State that does not go beyond the necessi-
ties of the case and burden or prohibit interstate commerce; and a
statute prescribing as a rule of civil conduct that a person or corpora-
tion shall not bring into the State cattle that are known, or which by
proper diligence could be known, to be capable of communicating dis-
ease to domestic cattle, cannot be regarded as beyond the necessities
of the case, nor as interfering with any right intended to be given or
recognized by section 5258 of the Revised Statutes. Ib.
10. Congress could authorize the carrying of such cattle from one State
into another State, and by legislation protect the carrier against all
suits for damages arising therefrom; but it has not done so, nor has it
enacted any statute that prevents a State from prescribing such a rule
of civil conduct as that found in the statute of Kansas. Ib.
1. A summary process to recover possession of land, under the landlord
and tenant act of the District of Columbia, (Rev. Stat. D. C. c. 19,)
can be maintained only when the conventional relation of landlord
and tenant exists or has existed between the parties; and cannot be
maintained by a mortgagee against his mortgagor in possession after
breach of condition of the mortgage, although the mortgage contains a
provision that until default the mortgagor shall be permitted to pos-
sess and enjoy the premises, and to take and use the rents and profits
thereof, "in the same manner, to the same extent, and with the same
effect, as if this deed had not been made." Willis v. Eastern Trust
& Banking Co., 295.
2. In the District of Columbia it is the rule that when, upon a purchase
of real estate the conveyance of the legal title is to one person while
the consideration is paid by another, an implied or resulting trust
arises, which may be shown by parol proof; and the grantee in the
conveyance will be held, on such evidence, as trustee for the party
from whom the consideration proceeds, whose rights will be enforced
as against those claiming under the record title. Smithsonian Institu-
tion v. Meech, 398.
3. This case comes within that rule, the evidence being clear and satisfac-
tory that the oral agreement made between Mr. and Mrs. Avery, at
the time when the property was conveyed to the latter, was made as
asserted by the Smithsonian Institution. Ib.
4. Such being established as the fact, it is the duty of a court of equity to
recognize that agreement as against the legal effect of the conveyance
to Mrs. Avery. Ib.
5. The presumption that when the consideration for a deed is paid by a
husband, and the conveyance is made to his wife, the conveyance is
intended for her benefit, is one of fact which can be overthrown by
proof of the real intent of the parties. Ib.
6. When a testator declares in his will that his several bequests are made
upon the condition that the legatees acquiesce in the provisions of his
will, no legatee can, without compliance with that condition, receive
his bounty, or be put in a position to use it in an effort to thwart his
expressed purposes. Ib.
EJECTMENT.
See JURISDICTION, C, 1.
1. The settled rule of this court in cases for the determination of the
amount of damages to be paid for private property condemned and
taken for public use, is that it accepts the construction placed by the
Supreme Court of the State upon its own constitution and statutes.
Backus v. Fort Street Union Depot Co., 557.
2. In case of such condemnation and taking, a State may authorize posses-
sion to be taken prior to the final determination of the amount of com-
pensation, provided adequate provision for compensation is made. Ib.
3. As to the court to determine the question, or the form of procedure, all
that is essential is that, in some appropriate way, before some properly
constituted tribunal, inquiry shall be made as to the amount of com-
pensation; and when this has been provided for there is that due pro-
cess of law which is required by the Federal Constitution. Ib.
4. There is no vested right in a mode of procedure established by state
law for the condemnation of property for public use; but each suc-
ceeding legislature may establish a different one, provided only that
in each is preserved the essential element of protection. Ib.
5. This court is bound to accept the construction placed upon the state
statute by the Supreme Court of the State, and to hold that it means
that if the second appraisal was less than the first, and the amount of
the first had been paid, the company was entitled to recover the differ-
ence from the party to whom it had been paid. Ib.
See DISTRICT OF COLUMBIA, 2, 4;
JURISDICTION, C, 7;
LACHES, 1;
LIMITATION, STATUTES OF.
When a bill of exceptions does not contain the evidence, it is impossible
for this court to know the ground on which the trial court proceeded
in overruling a motion on the evidence to compel the district attorney
to elect, and an exception in that regard will not be considered.
Barrett v. United States, No. 1, 218.
Stuart v. Hayden, 169 U. S. 1, affirmed to the point that when two courts
have reached the same conclusion on a question of fact, their finding
will not be disturbed unless it be clear that their conclusion was
erroneous.
1. Application for leave to file a petition for a writ of habeas corpus will
be denied if it be apparent that the only result, if the writ were
issued, would be the remanding of the petitioner. In re Board-
man, 39.
2. The action of a Circuit Court in refusing an appeal from a final order
dismissing a petition for habeas corpus and denying the writ cannot
be revised by this court on habeas corpus. Ib.
3. The fact that, when an appeal from a final order of a Circuit Court,
denying a writ of habeas corpus and dismissing the petition therefor,
of a person confined under state authority, has been prosecuted
to this court and the order affirmed, the state court proceeds
to direct sentence of death to be enforced before the issue of the
mandate from this court, does not justify the interposition of this
court by the writ of habeas corpus. Ib.
4. Where the statutes of a State provide that execution under a sentence
of death shall not be stayed by an appeal to the highest tribunal
of the State unless a certificate of probable cause be granted as pro-
vided, and such certificate has been refused, and application for
supersedeas denied, this court canhot interfere on habeas corpus on
the ground, if Federal questions were raised on such appeal, that
thereby the party condemned is deprived of the privilege or immu-
nity of suing out a writ of error from this court. Ib.
See JURISDICTION, C, 5, 6.
HUSBAND AND WIFE.
See DISTRICT OF COLUMBIA, 3, 4, 5.
INSURANCE.
See LIFE INSURANCE.
Section 1295 of the Virginia Code of 1887, enacting that "when a com-
mon carrier accepts for transportation anything, directed to a point
of destination beyond the terminus of his own line or route, he shall
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