IN NOTES OF CASES. * * hotel and premises were conveyed with the appurtenances without reservation, such conveyance carN Badger Lumber Co. v. Marion Water Supply, ried the sign and post. It was there urged that as Electric Light & Power Co., Supreme Court of the owner of the hotel did not have the fee of the Kansas, March 5, 1892, an electric light and power street on which the post and sign were standing, company owned land on which was a building and they could not be regarded as appurtenances to the machinery for generating electricity, and it had a premises; but it was said, as the sign and post were franchise from a city to use its streets for the rightfully in the street, and necessary for the uses erection of poles on which to stretch wires and and purposes of the building to which they were suspend lamps to furnish light for the people of the incident, they remained the property of the owner city. Poles were purchased from plaintiff, planted of the hotel, and when he conveyed the hotel in the streets of the city, wires and lamps were premises he parted with his title to the sign and placed thereon, and all connected by the electric post. In Beatty v. Parker, 141 Mass. 523, the light wires with the machinery and premises of the plaintiff undertook to enforce a mechanic's lien for company. Held, that the poles and wires were an a drain-pipe from the cellar of a house through the appurtenance of the premises of the company, and cellar wall, front yard and out into the street, to a that the plaintiff was entitled to a lien upon the connection with the sewer. The house was built same for the poles furnished. The court said: "As upon a street of the city, and the 'piping inside of will be seen, the statute gives a lien for material the house and outside of it to the sewer was necesfurnished for a building or its appurtenances, and sary to the use of the house, and was included in the same is chargeable upon the land, building and the contract for building it. It extended twentyappurtenances. If the poles and wires can be seven feet beyond the street line, and the fee of the regarded as an appurtenance of the power-house, street was not in the owner of the house. The the plaintiff acquired a lien and is entitled to en- court ruled that the contractor was entitled to a force it against the property of the defendant. lien for the piping, and stated that it is immaterial What then, is an appurtenance? Bouvier's defini- whether it was inside or outside the walls of the tion is: "Things belonging to another thing as house, or whether it was above ground or under principal and which pass as incident to the princi- ground, or whether it extended one foot or thirty pal thing. * Thus, if a house and lot be feet. It is immaterial also whether the fee of the conveyed, every thing passes which is necessary to land in the street was or was not in the owner of the full enjoyment thereof and which is in use as the lot. It must be assumed that the pipe was incident or appurtenant thereto.' 'The grant of a rightfully laid to the sewer, even if the fee of the thing will include whatever the grantor had power street was not in the respondent. The pipe did not to convey which is reasonably necessary to the become the property of the owner of the fee of the enjoyment of the thing granted. Thus, the grant street, but belonged to the owner of the house, of a house with appurtenances passes a conduit by and he had an interest in the soil of the street to which water is conducted to it.' 3 Washb. Real sustain his pipe, which would pass by a deed of the Prop. (3d ed.) 419; Farmer v. Water Co., 56 Cal. 11; lot.' See also Philbrick v. Ewing, 97 Mass. 124; Meek v. Breckenridge, 29 Ohio St. 642; 1 Am, & Eng. Factory v. Batchelder, 3 N. H. 190; Carpenter v. Enc. Law, 641. Here the principal thing was the Leonard, 5 Minn. 155 (Gil. 119); Milling Co. v. Repower-house and the poles and wires attached mick, 1 Ore. 169; Pullis v. Hoffman, 28 Mo. App. thereto were an incident to the power-house and 666; McDermott v. Palmer, 8 N. Y. 387; Amis v. machinery. They were necessary to the enjoyment Louisa, 9 Mo. 629; Phil. Mech. Liens, § 202; Kneel. of the principal thing, and indispensable in the Mech. Liens, § 83. The defendant in error princitransmission of electricity and the lighting of the pally relies upon Parmelee v. Hambleton, 19 Ill. 615, city. If a conveyance of the property of the com- to defeat the lien and sustain the judgment that pany, with the appurtenances belonging, had been was rendered. The court there held that a person made by the defendant, we do not doubt that the who performed labor upon a vault under a sidepoles and wires would have passed as appurtenant | walk adjacent to a building was not entitled to a to the premises conveyed. The fact that the poles lien. The vault is there held to be an appurtenance were planted in the streets of the city, the fee of to the building, but as the appurtenance was in the which is in the public, will not change their charac-street, and not upon the lot on which the building ter or make them any the less an appurtenance to the premises of the electric light company. The city had granted the company a franchise to plant the poles upon the streets, and hence they were rightfully there; and there can be no question that they were owned by the electric light company. In Redlon v. Barker, 4 Kans. 445, it was held that an hotel sign, attached to a post planted in the street of a city, seven or eight feet from the front of the hotel, and placed there as a permanent sign, was an appurtenance to the hotel; and where the stood, the lien was denied. The case is not an authority here, and is based upon an Illinois statute, which provided that both the building and appurtenance shall be upon the lot sought to be subjected to the lien. Our statute does not require that the appurtenance shall be upon the land, but authorizes a lien where the structure or improvement is appurtenant to the land or building. While the lien rests upon a statute, and the remedy must be confined within the terms of the statute, yet such provisions are to receive a liberal construc tion in the interest of justice, and we think the term ' appurtenances,' as used in the statute, fairly includes the poles and wire attached to the premises of the defendant, and that the plaintiff is entitled to the lien which he claimed." for the defendant to the amount of £18. The work consisted generally of repairs to carriages, and was done with the intestate's tools and materials, with the exception of a shaft. After the death of the widow the plaintiff's wife took out administration de bonis non of Hepburn, January 14, 1870. On these facts it was objected that the cause of action was personal to the widow, and passed to her representative, and not to the representative of the original intestate; but it was held that the proper inference was that the first administratrix had carried on the business for the benefit of the estate; that the money recovered would therefore be a part of the assets of the intestate; and consequently that the action was rightly brought by the administratrix de bonis non. Cockburn, C. J. (page 342), clearly states the principle applicable to this class of cases. 'It appears to me,' he says, 'that the plaintiff as administratrix de bonis non is the proper person to sue, because, although the promise was made to the widow, and the defendant is not her representative, yet the promise was made to the widow, not in her personal capacity, but as adminis tratrix of her husband. It has long ago been laid down, that though the executor of an executor represents the original testator, yet that rule does not apply to the administrator of an administrator, and that, consequently when the estate of a deceased person has been left unadministered, it is necessary in order to complete the administration to take out administration de bonis non. Now, if the promise was made to the original administratrix as administratrix, the proceeds of the action would be assets, and the present plaintiffs are the proper persons to sue.' In this State the rule that the executor of a deceased executor represents the original testator has been annulled by statute, Pub. Stats. R. I., chap. 184, § 23. The contract in suit was a contract with Nichols, not individually, but in his In McGuinness v. Whalen, Supreme Court of Rhode Island, February 13, 1892, it was held that an administrator de bonis non may sue for the breach of a contract made by defendant with a preceding administrator de bonis non, where the latter failed to bring the action before his removal, and where the money, if recovered, will be assets of the estate. The court said: "The early cases, it is true, proceeded upon the principle that contracts made with an administrator were personal to him, and that he must sue upon them in his own right, and not in his representative capacity; but the later cases hold, that where the money to be recovered would be assets of the estate, an executor or administrator may sue in his representative capacity; and therefore, if the original administrator die, an administrator de bonis non, who succeeds to all the rights of the original administrator in the estate not administered, may also sue upon the contract. Elliott v. Kemp, 7 Mees. & W. 306; Catherwood v. C'haband, 1 Barn. & C. 150; Hirst v. Smith, 7 T. R. 182; Moseley v. Rendell, L. R., 6 Q. B. 338; Sullivan v. Holker, 15 Mass. 374; Sheets v. Peabody, 6 Black f. 120; Morse v. Clayton, 13 Smedes & M. 373; Matthews v. Meek, 23 Ohio St. 272. And compare Newhall v. Turney, 14 Ill. 338, 340, 341. The test appears to be whether the proceeds of the claim, when recovered, would be assets. In Catherwood v. Chaband, 1 Barn. & C. 150, 153, Abbott, C. J., remarks: 'It was clearly established by the evidence that the bill in question was given to S. C., as the administratrix of J. C., for money due to her intestate. She took it as assets, and if she had received the money, that must un-representative character. The damages when redoubtedly have been accounted for to his estate. The money not having been received in her lifetime, the bill remained as a part of J. C.'s estate, and the right to it devolved upon the person who afterward became his representative. It has been decided in a variety of modern cases that an administrator may sue as such upon a promise made to him in his representative character, and that principle governs my opinion in the present case; for, where the cause of action is such that the first administrator may sue in his representative character, the right of action devolves upon the OLEOMARGARINE administrator de bonis non of the estate.' And see remarks of Bailey, Holroyd and Best, JJ., in the same case. A more recent case is Moseley v. Rendell, L. R., 6 Q. B. 338. The defendant had employed Hepburn, a coach-builder, and there was due the latter at his decease on September 27, 1869, £47 168. Hepburn's widow took out administration, but died in December following. In the interval between the taking out of administration on October 21, 1869, and her death, the administratrix carried on the business on the same premises, and did work * * covered will be assets of the estate of the intestate. Nichols might have sued for them in his capacity as administrator. He however did nothing in relation to the claim; and upon his removal, and the appointment of the plaintiff as his successor, it remained as an asset of the estate, wholly unadministered, and passed with the right to bring suit upon it to the plaintiff, in his capacity as the representative of the intestate." -- MANUFACTURE — IN TENT. NEW YORK SUPREME COURT. PEOPLE V. DOLD.* A penalty is imposed by sections 8 and 19 of chapter 183 of the Laws of 1885, as amended by chapter 577 of the Laws of 1886, upon any person who shall mix certain foreign substances with milk, cream or butter, or manufacture any other oleaginous substance, with the intent to sell the same for butter or cheese, or have it in his possession or offer it for sale with that intent. In an action to recover * 63 Hun, 583. the penalty imposed for a violation of these statutes, the evidence showed the manufacture by the defendant of butterine or oleomargarine, but failed to show that he did so with an intent to sell it for natural butter. Held, that the offense had not been committed. stances not produced from milk or cream, with the intent to sell the same for butter or cheese, they cannot find in favor of the plaintiff, so far as this part of the case is concerned. The court declined so to charge, and the defendant APPEAL by the defendant Jacob Dold from a judg- duly excepted. The questi u is therefore disur thy ment of the Supreme Court, entered in the office of the clerk of Erie county on the 2d day of September, 1891, upou a verdict in favor of the plaintiff of $500 after a trial at the Erie Circuit before the court and a jury. Adelbert Moot, for appellant. A. C. Calkins, for respondent. LEWIS, J. This action was brought for the recovery of a penalty of $500, under sections 8 and 19 of chapter 183 of the Laws of 1885, as amended by chapter 577 of the Laws of 1886. Section 8, so far as is necessary to the present inquiry, is as follows: "No person shall manufacture, mix or compound with or add to natural milk, cream or butter any animal fats or animal or vegetable oils; nor shall he make or manufacture any oleaginous substance not produced from milk or cream with intent to sell the same for butter or cheese made from unadulterated milk or cream, or have the same in his possession, or offer the same for sale with such intent; nor shall any article or substance or compound so made or produced be sold intentionally or otherwise as and for butter or cheese, the product of the dairy." Then follows a clause prohibiting the using of coloring matter in the manufacture of butterine or oleomargarine. This section makes a violation of its provision a misdemeanor, to be punished by a fine of not less than $100 nor more than $1,000. Section 19 provides a penalty of $500 for the violation of the provisious of section 8, to be recovered, with costs, in any court of the State having jurisdiction thereof in a case to be prosecuted by the dairy commissioner in the name of the people of the State. The complaint in one and the same count charges that the defendant violated section 8 in that be did manufacture, mix and compound with, and add to, natural milk, cream and butter certain animal fats, and animal and vegetable oils, and did make and manufacture a certain oleaginous substance not produced from milk and cream, with intent to sell the same for butter made from unadulterated milk or cream, and did have the same in his possession, and offered the same for sale with such intent. Then follows a clause charging that he had in his possession butterine or oleomargarine which was colored with annotto or other coloring matter. The evidence tended to show that the defendant did manufacture batterine or oleomargarine by mixing animal fats and animal and vegetable oils with natural milk, cream and butter, but failed to show that he did so with the intent to sell the same for butter made from unadulterated milk or cream. There was no evidence which would warrant a verdict against Mr. Dold ou the theory that he made this oleomargarine or butterine, or offered it for sale, or intended to sell it as an article made from unadulterated milk or cream. The court charged the jury, that if they found from the evidence that the defendant did manufacture, mix or compound with or add to natural milk, cream or butter any animal fats or animal or vegetable oils, he was liable for the penalty. The defendant's counsel excepted to this part of the charge, because it left out of view the intent to sell the same for butter or cheese, and thereupon requested the court to charge the jury that unless they found that the defendant mixed or compounded natural milk, cream or butter with animal fats or animal or vegetable oils, or oleaginous sub | and clearly presented, did the defendant incur the penalty by mixing these substances, as stated, without any intention of selling the product for butter, but intending to sell it for just what it was, oleomargarine or butterine? The undisputed evidence was that in the manufacture of oleomargarine or butterine the use of milk or cream is indispensable. Without the use of milk or cream the compound would not be oleomargarine or butterine. In the case of People v. Marx, 99 N. Y. 377, the defendant was convicted of the violation of the 6th section of chapter 202 of the Laws of 1884, which provides that "No person shall manufacture out of any oleaginous substance or substances, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or shall sell or offer for sale the same as an article of food." Judge Rapallo, in his opinion, says: "It appears to us quite clear that the object and effect of the enactment under consideration were not to supplement the existing provisions against fraud and deception by means of imitation of dairy butter, but to take a further and bolder step, and by absolutely prohibiting the manufacture or sale of any article which could be used as a substitute for it, however openly and fairly the character of the substitute might be avowed and published, to drive the substituted article from the market, and protect those engaged in the manufacture of dairy products against the competition of cheaper substances capable of being applied to the same uses, as articles of food." The act, so far as it attempted to accomplish that, was held to be void as violative of the provisions of the Constitution securing freedom to all persons to follow any lawful pursuit not injurious to the community. After the argument of that case in the Court of Ap peals, but before the decision was announced, chapter 183 of the Laws of 1885 was passed, containing the section under review. The amendment of 1886 does not affect the question before us. If the construction given to this section by the trial court, that the mixing of animal fat or oils with milk or cream is prohibited without reference to an intent to sell the product for butter, be correct, then it seems to logically follow that the Legislature has by this act accomplished the very thing which the Court of Appeals held in People v. Marx, supra, could not be done by act of the Legislature. The act of 1884 sought to prohibit the manufacture or sale of oleomargarine as a substitute for butter, and was held to be void. The act of 1885 prohibits its manufacture for any purpose, unless section 8 permits it to be manufactured if the manufacturer intends to sell it for just what it is. In the case of People v. Arensberg, 105 N. Y. 123, being an appeal from a judgment of conviction of the defendant for violating the same act, Judge Rapallo says: "The statutory prohibition is aimed at a designed and intentional imitation of dairy butter in manufacturing the new product, and not at a resemblance in qualities, inherent in the articles themselves and common to both." While it appears from the record that the use of cream or milk does impart to the compound a butter taste, and in a slight degree give the substance the yellow hue of genuine butter, yet, as suggested, if the 66 cream or milk be not used, the product is not oleomargarine, and would not answer the purpose for which it is manufactured, to-wit, a cheap substitute for butter. It was concededly within the power of the Legislature to prohibit the mixing of the ingredients mentioned in the section with the intent to sell the product as or for butter. But as it was not within the province of the Legislature to prohibit its manufacture altogether, it must be held, to give it any force or effect, that the clause with intent to sell the same for butter" applies to that part of the section prohibiting the mixing of the animal or vegetable oils or animal fats with natural milk or cream or butter. It follows that it was error in the court to charge that the intent to sell was not necessary to constitute a violation of that part of the section. The complaint, as we have seen, also charged the defendant with having in his possession oleomargarine colored with annotto or other coloring matter, and there was evidence tending to sustain this allegation of the complaint; yet, as the court submitted to the jury the question whether the defendant was guilty of violating the provisions of the section first referred to, as well as the question of the use of coloring matter, we cannot know whether the jury found against the defendant for mixing the compound or for using coloring matter. Because of the error in the charge of the court, that the intent to sell was not necessary to constitute a violation of the section, a new trial should be granted, with costs to abide the event. DWIGHT, P. J., and MACOMBER, J., concurred. Judgment appealed from reversed and a new trial granted, with costs to abide the event. RUMSEY V. NEW YORK & N. E. R. Co. In an action against a railroad company by riparian owners for damages to their uplands, caused by the construction of defendant's roadbed across plaintiff's water-front, and thereby cutting off their access to the river, where it appears that the use of the uplands as a brick-yard was discontinued by plaintiffs some years prior to the construc. tion of defendant's road-bed, the proper measure of damages cannot be based on the rental or usable value of the property for a brick yard, but is the diminished rental or usable value of the property as it is, in consequence of the loss of access to the river. Evidence as to the rental value of the uplands without defendant's roadbed is competent, but insufficient, to establish the legal measure of damages, in the absence of other evidence of the rental or usable value of such uplands with the road-bed. In such case, evidence offered by defendant to prove the additional expense caused by the construction of defendant's road bed, of shipping bricks to market on the river, was improperly excluded. The owner of land on a public river is entitled to such damages as he may have sustained as against a railroad company that constructs its road across his water-front, and deprives him of access to the navigable part of the stream, unless the owner has granted the right, or it has been obtained by the power of eminent domain. 15 N. Y. 509, reversed. APPEAL from Supreme Court, General Term, Sec ond Department. Action for damages for obstructing plaintiff's means of access to the Hudson river. From a judgment of the General Term affirming a judgment of the Special Term for plaintiffs, defendant appeals. W. C. Anthony, for appellant. O'BRIEN, J. This appeal involves two important In this action the plaintiffs seek to recover damages to their uplands sustained by the act of the defendant in constructing its road-bed across the plaintiffs' water-front, and thereby cutting off their access to the river, and such damages are claimed from the time of the construction of the railroad to the commencement of the action. The court assessed the damages at $10,500. This result was reached upon the theory that the use of the plaintiffs' premises for the purpose of a brick-yard had been depreciated to that extent in consequence of the construction of defendant's road. At the same time the court found that the culvert, as a passage-way, was discontinued about the year 1875. and the dock, at the westerly end of the culvert, was allowed to go to decay, as was also the causeway which connected the dock with the brick-yard; that the plaintiffs' lands had no buildings or machinery on them to fit them for use for brick-making purposes, and that they had been in this situation since the year 1875, and that the defendant had in no wise injured the plaintiffs' lands, except only to prevent or delay the sale of the clay thereon for brick-making purposes. It appears therefore from these findings that the use of the premises for brick-making or as a brick-yard had been discontinued six years before the defendant's road was built. The plaintiffs asked to recover in this action only such damages as they bave sustained, up to the commence ment of the action, by reason of the acts complained of As a basis for the estimate, the land must be taken as it was used during the time embraced in the action. It does not appear that the use of the premises as a brick-yard was discontinued in consequence of the acts of the defendant, and that fact could not well be established, for it ceased to be used for such purpose long before the defendant's road was built. The proper measure of damages in such a case is the diminished rental or usable value of the property as it was, in consequence of the loss, by defendant's acts, of access to the river, in the manner enjoined by the owner prior to the construction of the embankment across the water-front by the defendant. The plaintiffs cannot be permitted to prove or allowed to recover damages that they might have sustained if they had put the property to some other use or placed other structures upon it. Tallman v. Railroad Co., 121 N. Y. 119. The damages could not be based upon the rental or usable value of the property for a brick-yard, any more than they could be based upon their use for some other specific or particular purpose to which they were not in fact put by the owners. The question is, what damages did the plaintiffs in part suffer by having the access to the river cut off? not what they might have suffered had the land been devoted to some particular use to which it was not put. The proof of damages on the part of the plaintiffs consisted entirely of the opinions of witnesses as to the rental value of the land in the absence of the structure built by defeudant. This proof was competent as far as it went, but it did not establish the legal measure of damages. It should also have been shown what was the rental or usable value of the premises as they were with the obstruction which interfered with the access to the river, as the difference in these two sums represented the actual loss caused by the defendant's acts. cult to show that the judgment in that case is a departure from precedent and contrary to reason and justice. It is no doubt true that even a single adjudication of this court, upon a question properly before it, is not to be questioned or disregarded except for the most cogent reasous, and then only in a case where it is plain that the judgment was the result of a mistaken view of the condition of the law applicable to the question. But the doctrine of stare decisis, like almost every other legal rule, is not without its exceptions. It does not apply to a case where it can be shown that the law has been misunderstood or misapplied, or where the former determination is evidently contrary to reason. The authorities are abundant to show that in such cases it is the duty of courts to re-examine the question. Chancellor Keut, commenting upon the rule of stare decisis, said that more than a thousand cases could then be pointed out, in the English and American reports, which had been overruled, doubted or limited in their application. He added that "it is probable that the records of many of the courts of this country are replete with hasty and crude decisions, and in such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed, by the perpetuity of error." 1 Kent Com. (13th ed.) 477; Broom Leg. Max. 153; Gifford v. Livingston, 2 Den. 392; Morse v. Goold, 11 N. Y. 281; Judson v. Gray, id. 408. The Goold Case has been frequently criticised and questioned, and it is believed has never been fully acquiesced in by the courts or the profession as a decisive authority or a correct exposition of the law respecting the rights of riparian owners. Kane v. Railroud Co., 125 N. Y. 184. The learned judge who gave the prevailing opinion in the case assumed, as the foundation of his argument that the question was conclusively determined by the Supreme Court adverse to the plaintiff in Lansing v. Smith, 8 Cow. 146, subsequently affirmed in the Court of Errors, 4 Weud. 9. That case grew out of the construction of the canal basin at Albany, a public im The defendant offered to prove the additional cost of shipping brick to market upon the river, rendered necessary by the construction of the embankment. This testimony was objected to by plaintiffs, and excluded | by the court, to which the defendant excepted. This ruling was erroneous. The additional expense, caused by the defendant's structure in the river, of transport-provement to promote commerce and navigation; and ing brick, or any other product of the land, to market, was an important element of the damage sustained, and the defendant should have been permitted to prove the facts in that regard, at least by way of answers to plaintiffs' theory of damages. The method adopted of establishing the plaintiffs' damages therefore demands a reversal of the judgment. the question was, whether as against such an improvement, the plaintiff's right to the use of his dock and water-front, as he had enjoyed it before, was exclusive. It may be conceded that the sovereign power in a work for the improvement of the navigation of a public river may incidentally interfere with the enjoyment and use of the water-front by riparian owners, but the power to grant to a private individual or cor communication with the stream, without compensation, is quite another and different question. There is really no authority in Lansing v. Smith for the support of such a proposition. On the contrary, as was pointed out by Judge Andrews in the Kane Case, supra, that question was excluded from the discussion, as the chancellor who delivered the opinion was careful to say: "Whether the Legislature could grant the right to any other person to build a wharf in front of the plaintiff, so as to destroy his entirely, is a question which it is not necessary now to discuss." The plaintiffs were permitted to recover for more than four years prior to their grant of the land underporation the right to cut such owner off entirely from water, on the 3d of March, 1885. During this period the plaintiffs' rights were those of ordinary riparian owners on the banks of navigable rivers. They owned the uplands bounded by the river, and as such owners had the right, under the statute, to apply to the commissioners of the land office for a grant of the land under water in front of their premises. In this respect, and on this branch of the case the facts are identical with those in the case of Gould v. Railroad Co., 6 N. Y. 522. If that case is to be followed, the plaintiffs cannot recover any damages prior to March 3, 1885. It was there held that the owner of lands on the Hudson river had no private right or property in the waters or the shore between high and low-water mark, and therefore is not entitled to compensation from a railroad company which, in pursuance of a grant from the Legislature, constructs a railroad along the shore, between high and low-water mark, so as to cut off all communications between the land and the river otherwise than across the railroad. It is believed that this proposition is not supported by any other judicial decision in the State, and if we were dealing with the question now as an original one, it would not be diffi It is not necessary to refer at much length to the numerous cases and the abundant learning to be found in the books respecting the rights of riparian owners. The authorities on the general subject are not all in harmony, and we are now concerned with but a single branch of an important and somewhat complicated subject, namely, the right of such owner, as against some other private interest, to have access to and enjoy the use of the highway. It may be observed however that since the decision of the Goold Case, in 1852, this question, and questions of a kindred nature, ha ve been elaborately examined, |