Meantime, rival companies were formed whose competition threatened to reduce Western Union's business and profits. To avoid this danger, an arrangement was made, approved by a large majority of the shareholders, but not by all, whereby the Western Union bought out the two rival companies, paying their stockholders for the property and rights they relinquished in shares of Western Union stock newly issued for the purpose, while it at the same time issued to its old shareholders $15,000,000 in new shares representing the money which might have been paid from year to year in dividends, but had been, in fact, withheld for improving the property. The motive and expectation of the assenting shareholders at least was that, by wiping out the competition of the smaller companies, rates, and consequently profits, would be kept at a higher point than would be possible under competition; while their shareholders, by virtue of the new Western Union shares issued to them, would participate in these profits proportionately with old Western Unioners. These general facts might happen in the management of rival corporations anywhere. The appeal of the dissenting shareholders to the court raised the general question whether such sweeping and radical changes in corporate management can be made by mere majority vote, or whether they require the consent of all persons interested. And this was the question chiefly considered; the allegations of overvaluation and fraud were nearly disregarded.

The court appears to have chiefly considered the questions of power. Can directors accumulate profits in increasing the property of the company for a series of years, and then suddenly put forth a quantity of new stock as a substitute for money which might have been annually divided? The judges seem agreed that this is not within directors' power; that they have a certain discretion whether to divide profits or to invest them in repairs or improvements, but that property once acquired for a corporation must remain its assets and be represented by its original stock, unless special legislative authority exists for increasing the capital. Such is the positive dictate of a special law of this State, quoted in the opinion, which forbids directors of telegraph companies, directly or indirectly, to reduce the capital or part with the substantial assets of their companies. General principles of law, recognized everywhere, lead to the same result; for it is the duty of directors to manage the property with a view to realizing a money profit for stockholders; whereas if it were allowable that they should withhold the profits for a term of years, thus depressing the market price of the stock, they and their friends might buy the shares extensively and at a low price, and then absorb the greater part of the stock dividend ultimately declared. The proper course, as the court points out, for a board of directors to take, when desirous to invest any large portion of receipts in extending the business, is to report to the shareholders what gross

amount has been realized; that they hold it in the treasury in cash, and that they propose to use such and such a portion in the proposed improvement and to divide only the residue. This gives the stockholders an opportunity to make their choice between the enlargement of the enterprise and a large dividend.

Again, can the managers of a lesser company sell it out to a powerful rival, parting with all its assets and wiping out its existence? This may be in some instances an advantageous plan for shareholders if they receive a proper participation in their rival's prosperity in exchange for their expectations from the enterprise abandoned. But can directors, or a majority of shareholders even, force such a change upon those who disapprove it? Judge Arnoux, particularly, holds that any minority of the shareholders, or even the general public, have a claim that the junior enterprise shall be prosecuted as chartered. The younger telegraph companies, in soliciting their charters and the rights of way, undertook a duty to the public, and a majority can not override individual objectors in merging the corporate existence in the monopoly proposed. Whether the Court of Appeals will sustain these positions is yet to be seen; but there can be no doubt that the doctrines, if established, would have a salutary effect in protecting the rights of small shareholders in corporate enterprises.-V. Y. Times.

NOTES.

.

-In Germany a solicitor sent his bill of costs for business done. In the bill relating to a suit of divorce, he charged the lady one item, thus: "Further, 30 sous for being awake in the night, and having thought over your matter."-Lord Chief Baron Pollock was one of the most dexterous imitators of handwriting, and used to amuse himself by sending letters in other people's names and handwriting, so correct that the person imitated would swear to its being his own work. Many practical jokes arose out of this little amusement. Justice Maule was singularly dexterous in picking locks, and which he could not only open but close again, with no other appliance than a stout piece of wire. He had acquired the art by the frequent loss of his keys when at the bar. He used to tell the story how upon one occasion he astonished a country locksmith who had been called in and pronounced a portmanteau beyond his skill, and which the judge opened with ease.

-Vice-Chancellor Wickens amused himself with binding books, at which trade he was an adept, and had all the elaborate tools and machines to expedite his work, and he turned out his volumes in masterly style.-Curiosities of Law and Law

!ers.

use all the force necessary to overcome such

ST. LOUIS, DECEMBER 1, 1882.

CURRENT TOPICS.

Hull v. Bartlett is a recent decision of the Connecticut Supreme Court of Errors, illus. trating the rights and duties of an officer charged with the service of legal process in a civil proceeding. The facts were as follows: The defendant Bartlett, at the time, was deputy sheriff; a lawful writ of summons had been placed in his hands to be served on Mrs. Hall, who, knowing that service was about to be made upon her, fled from town to town, and hid herself in many ways and places, resorting to extraordinary expedients and subterfuges to elude the officer. At last the defendant traced her, as he believed, to the house of one Viets, where, upon inquiry, he was told that she had left in the morning. Permission to search was for a time denied, but afterwards granted; but she was not found in the house. Finally, the door of a small outbuilding was discovered fastened. But no response could be obtained from any person within, after repeated calls. At last the defendant (having first obtained permission of the owner for that purpose) forced the door and found a woman lying on the floor with her head and face closely wrapped to prevent identification. The defendant repeatedly requested her to uncover her face in order that he might know who she was, stating his business. But after waiting long, she still kept her position and the covering over her face. He then, as gently as possible, raised her up and uncovered her face for the mere purpose of identifying her, that he might complete the service and make truthful return upon the writ.

"Under the circumstances of this case," the court proceeded to say, after stating these facts, "will the law justify an act on the part of the officer which would otherwise constitute an assault and battery? It was the officer's duty, and he had a right to make personal service of the writ, and in the performance of this duty the plaintiff had no right to obstruct or resist him. If she did so, the defendant had an undoubted right to Vol. 15-No. 22.

Danforth, 20 Barb. 16. The right to overcome with necessary force all active resistance is clear, but is there the same right to overcome, by the same means, mere passive resistance? We think not. It is obvious that the plaintiff could do, or omit to do, many things to delay, hinder and embarrass the service of a writ not only with impunity, but without giving the officer any right to use force. She could flee from town to town and hide herself. She could make identification difficult by change of dress, by cutting or dyeing her hair, or blacking her face, or wearing a mask or a veil. The law must declare the circumstances and occasions when an assault is justifiable. It would not do to leave it to the jury to determine whether the conduct was reasonable unless the law first declares it to be a case for the use of such force.

There are no authorities that determine the precise question that controls this case. It must be settled by the analogies of the law, and in such manner as to secure those immunities and rights which the law holds most precious. Suppose Mrs. Hull had fled before the officer and had entered her own dwelling. house, closing after her the outer doors; the law surely would have said to the officer thus far and no farther,' but the dwelling surely is not more sacred than the person of the dweller. The law has given every one an inherent right to immunity from interference with or injury to his body at the hands of any other person. The exceptions where an assault is justifiable are all founded on the highest necessity. We do not think the mere importance of identifying a person for the service of civil process comes up to the spirit and reason of any of the recognized grounds for justifying an assault."

If views which are so strongly sustained by reason, common sense and logic, as those which from time to time, for nearly a year past, we have expressed upon the subject of the late lamented proposed amendment to the Constitution of Missouri, need any additional vindication of their soundness, they have it in the result of the recent election as officially announced. From

this it appears that while 81,146 votes were cast for the amendment, no less than 142,747 were cast against, being a clear majority of no less than 58,601 in favor of the correctness of our judgment. This indorsement is more than sufficiently gratifying to our vanity.

DEDICATION.

A dedication is an appropriation of property to some proper object, in such a manner as to conclude the owner. It is an act by which the owner of the fee gives the public an easement in his lands.1 The fee remains in the grantor.2 No particular form is necessary to make a dedication; it may be either by express grant, by parol, or may be implied from the acts of the owner. It is essential to a dedication, that the owner should intend what he does as a dedication; and this must be found affirmatively by a jury to constitute it such. All that is necessary is the consent of the owner, upon the faith of which there has been a public use. If the dedication is clearly proved, no particular length of time is necessary to acquire rights by use; the dedication takes effect on acceptance by the public; and acceptance may be presumed from an actual user.5

A dedication may be presumed from a continued use by the public, with the assent of the owner, for such a length of time that an interruption would materially affect the public accommodation or infringe upon private rights. The question whether land has been

1 Curtis v. Keesler, 14 Barb. 511.

2 Mayor of Mason v. Franklin, 12 Ga. 239; San Francisco v. Calderwood, 31 Cal. 585.

3 Mayor of Mason v. Franklin, 12 Ga. 239.

4 Harding v. Hale, 61 Ill. 192: McWilliams v. Morgan, 61 Ill. 89; Bougan v. Mann, 59 Ill. 492.

Barteau v. West, 23 Wis. 416; Holdane v. Trustees of Cold Springs, 23 Barb. 103. To constitute a dedication of land for a highway, the road must be made and accepted by the public; it is usually, if not always, proved by public use and enjoyment. Curtis v. Hoyt, 19 Conn. 154; David v. Municipality, 14 La. An. 872; Muzzey v. Davis, 54 Me. 361; Oswego v. Oswego Canal Co., 6 N. Y. 257; State v. Carver, 5 Strobh. 217. So, acts by a town or city, appropriating money or labor in making repairs of a way, manifest an intention to accept a dedication. Wright v. Tukey, 3 Cush. 290.

6 Parish v. Stevens, 1 Oreg. 59; Mayor of Macon v. Franklin, 12 Ga. 239; Case v. Favier, 12 Minn. 89; Cady v. Conger, 19 N. Y. 256; City of San Francisco v. Scott, 4 Cal. 114. Twenty-one years adverse enjoy.

dedicated to public use is one of interest, and where the acts may be referred to the owner's private convenience, it will not be construed a dedication. Thus, the omission by the owner to fence in a parcel of land or flats, bounding on the sea or salt water, and the occasional use of it by all persons having occasion to land wood and other articles thereon, does not prove a dedication of it to the public. And where a space is left open in private property bordering on a highway, for the accommodation of the owner, but over which the public are allowed to pass, it is not thereby dedicated to the public.9 So, the erection of a church for a religious society does not dedicate it; the owner may sell it if he pleases. To effect such a dedication, there must be a donation by the owner, or some unequivocal act united with an intent to divest himself, to some extent, of the ownership or power of control over the property, and to vest an independent and irrevocable interest in some other person or body. 10

The essence of a dedication to public use is, that it shall be for the use of the public at large.11 large. The public, and not merely a public corporation, must be the chief beneficiary. 12 But the dedication of land for the use of a limited portion of the public, as for a burial place or training ground, is valid as a charitable use. 13

ment is not necessary to perfect the presumption. Schneley v. Commonwealth, 36 Pa. St. 29. A mere silent acquiescence of the owner of land, in the use of a public road across it, for any period less than twenty-one years, is not conclusive proof of a dedication thereof to the public use, but only evidence more or less significant, tending to prove such dedication. Penquit v Lawrence, 11 Ohio St. 274.

7 Biddle v. Ash, 2 Ashm. (Pa.) 211.

8 Green v. Chelsea, 24 Pick. 71; Morse v. Ranno, 82 Vt. 600.

9 Gowen v. Philanelphia Exchange Co., 5 Watt. &

S. 141.

10 Attorney-General v. Merrimack Co., 14 Gray, 586. 604. The essence of a dedication is that it shall be for the use of the public at large; there can be no dedication, properly speaking, to a private use. Meth. Epis. Church v. Hoboken, 33 N. J. 13.

1 Methodist Episcopal Church v. Hoboken, 33 N. J. 13.

12 Todd v. Pittsburg, etc. R. Co., 19 Ohio St. 514. 18 Mowry v. Providence, 10 R. I. 52. In a plat recorded under the Iowa Rev. Stat. 608, a square was marked Church square." It was held that, although this may have amounted to a grant for church purposes, yet that it was not a specific grant conferring the title on the only church then existing in the place, so that future churches might not also have an interest therein. Christian Church v. Scolte, 2 Iowa, 27.

No one but the owner of land in fee can dedicate it, or the use of it, to the public. A mortgagor has no such power, as against his mortgagee and those claiming under him, although, as to all other persons, he is regarded as the owner.14 But if the mortgagee assents to the dedication made by the mortgagor, he will be bound by it, and also those claiming under him. 15 A municipal corporation may make a valid dedication of land belonging to it, as a public street, square or common, which it can not revoke. 16

Two parties are necessary to a dedication, as well as to a private grant; that is to say, there must be some party beneficially interested besides the grantor.17 But the general rule that the fee can not remain in abeyance, does not apply where property is dedicated to a public use, and where the object and purpose of the appropriation looks to a future grantee, in whom, or in which the fee is to vest, the dedication will preclude the party making the appropriation from re-asserting any right over the land, at least so long as it remains in public use, although there may never arise any grantee capable of taking the fee. 18 The dedication of lands to public uses in cities and town, does not require that they should be incorporated. 19 The public is an ever existing grantee, capable of taking dedications for public use; and its interests are a sufficient consideration to support them.20 When lands are dedicated and enjoyed as such, and rights are acquired by individuals in reference to such dedication, the law regards it as in the nature of an estoppel in pais, which precludes the owner of the fee from revoking it.21 This application in the case of

14 Hoole v. Attorney-general, 22 Ala. 190. And after foreclosure, a prior mortgagee in possession may maintain trespass against a street superintendent who interferes with the premises in his official capacity. McManis v. Butler, 49 Barb. 176.

15 Hoole v. Attorney-general, supra; Gentlamen v. Soule, 32 Ill. 271; Bushnell v. Scott, 21 Wis. 451.

16 Mayor of Macon v. Franklin, 12 Ga. 239; and, the corporation will be restrained by injunction at the suit of any citizen from afterwards selling such land.

17 Vick v. Mayor of Vicksburg, 1 How. (Miss.) 379. 18 Kennedy v. Jones, 11 Ala. 63; Proctor v. Lewiston, 25 Ill. 153; Indianapolis v. Croas, 7 Ind. 9; Cole v. Sproul, 35 Me. 161; Adams v. Saratoga, etc. R. Co., 11 Barb. 414; Arkenburgh v. Wood, 23 Barb. 360; Abbott v. Mills, 3 Vt. 512; State v. Catlin, 3 Vt. 530. 19 New Orleans v. United States, 10 Pet. 662; City of Cincinnati v. Lessees of White, 6 Pet. 431. 20 Warren v. Jacksonville, 15 Ill. 236.

21 Haynes v. Thomas, 7 Ind. 38; Mankato v. Willard, 13 Minn. 18; Mayor of Macon v. Franklin, 12 Ga. 239.

a dedication of the use of one's land to the public, as a public common, landing place or highway, where private and individual rights have been acquired in reference to it. 22

A dedication to a pious or charitable use may be effectual, though not distinctly a public one. 28 And if so made that the holder of the estate because a trustee for the purposes of charity, no subsequent conveyance to one having notice could change the use -the grantee would himself become the trustee.24 So, a dedication of land to the public for the use of a burying ground, is valid and can not be revoked.25 Where, by act of the assembly, certain officers were directed to lay off a town on lands of the State, "and to reserve for the use of the State, so so much land as they should deem necessary for a court house, jail and market, for places of public worship and for burying the dead," the city being afterwards incorporated, the rights of the State were by the act of incorporation, vested in it, and the land was to be held for the public use specified, and for such other public uses as the city council should ordain and direct. The city council ordered a part of the land, so reserved, to be sold to pay off the water debt of the city, and a purchaser of the lot proceeded to build on it, when an injunction was applied for, upon the hearing of which the court held that there had been a dedication in e act of laying out the town, of the lands reserved to the public, for the purposes specified, or any other use consistent with such purposes; and that it was in the nature of a contract by which the city held the property, and that it could not be sold for any purpose.26 So where a county received a donation of land for the purpose of laying out a county seat, and a town was accordingly laid out, and a plat thereof filed in the recorder's office, and an order was entered on the records of the county court declaring that certain lots should be held for public use. A court house was af

The dedication of a street or highway to the public does not operate as a grant, but as an estoppel in pais of the owner from resuming the exclusive use of his own property, or any use inconsistent with that of the public. Dubuque v. Maloney, 9 Iowa, 450.

222 Washburn Ease. (3d ed.) 185.

23 Cooper v. First Church, 32 Barb. 222. See Atkin. son v. Bell, 18 Texas, 474.

24 3 Wash. Real Prop. (4th ed.) 72.

25 Hunter v. Sandy Hill, 6 Hill, 407.

26 Commonwealth v. Rush, 14 Pa. St. 186.

terwards built upon two of the lots, and the place was called "Court House Square," and none of the lots composing the square were ever used for any private purpose. Afterwards the county court made an order appointing a commissioner, and authorized him to sell forty-two feet off of each end of the public square, and, in pursuance of this order, the commissioner sold the lot in question, it was held, upon application, that there had been a dedication to the public, and that a perpetual injunction should issue restraining the sale.27 So where there has been a dedication of a square for the use of public buildings, and, the county seat being removed, the county justices leased the public buildings for private purposes, it was held that there had been a dedication of the square to eth use of the public, and that the justices could not appropriate it to private uses. 28 And a law authorizing land, which had been dedicated by its owner for the purpose of a public square, to be used for a different purpose, impairs the obligation of a contract, and is void. 49 But where a deed conveys land to a town in fee, it will not be construed as a dedication to the public use. 30 Land which has been dedicated to the public use, can not be taken as an execution against the municipality. 31 Probably the most numerous cases of dedication are those where the owners of land in a city or village, with a view to their own as well as the public advantage, lay it out into lots, with streets and avenues intersecting the same, and sell the lots with reference to such streets and avenues. In such cases the orig. inal grantor can not afterwards deprive his grantee of the benefit of having such streets or avenues kept open. The purchaser is

32

27 Rutherford v. Taylor, 38 Mo. 315.

28 C, C. Court v. Newport, 12 B. Mon. (Ky.) 538. The exclusive use of streets, alleys and public grounds, which have been dedicated to the public, can not be transferred to a private individual by a deed executed by the authorities, and approved by all the citizens of the town in which such streets, alleys and public grounds are located. Alves v. Henderson, 16 B. Mon. (Ky.) 131.

29 Warren v. Lyon City, 22 Iowa, 351; Leclercq v. Gallipolis, 7 Ohio, 217.

30 State v. Woodward, 23 Vt. 92. Although it be expressed that the land is conveyed for the use of the town as a meeting-house green.

31 President, etc. v. Indianapolis, 12 Ind. 620, where a square was laid out by the State as a city market place.

32 Vick v. Mayor of Vicksburg, 1 How. (Miss.) 379; Boyer v. State, 16 Ind. 451.

The stat

presumed to pay an advanced price for the anticipated easement, and therefore the original owner has no equitable claim to a remuneration from the public. And the same principle is applicable to a similar dedication of lands to be used as an open square, or for any other proper purpose. This was very fully discussed by the Supreme Court of the United States in the case of City of Cincinnati v. Lessees of White.33 The equitable owners of a tract of land, before they had perfected their title by a patent from the government, laid out a part of it into a town, which now constitutes the City of Cincinnati, upon the plat of which they laid out and designated a part of the land as a public common, or open square, for the use of the inhabitants of the town. This was held to be a sufficient dedication of the land to the public, to vest the title to this common, or square, in the City of Cincinnati, although the city was not incorporated until many years after.34 utes of the several States provide that the proprietors of land, who wish to lay it out into town or city lots, shall cause a plat thereof to be made, acknowledged and recorded, on which the lots, streets and alleys are to be particularly described, and which, when so acknowledged and recorded, shall have all the force and effect of an express grant of the lands designated therein as streets, alleys, etc., for the use and benefit of of the public.35 Similar provisions for the dedication of lands, are made by the most if not all the States, differing, perhaps, more or less, in the formalities prescribed; but a dedication good at common law is not avoided by a non-compliance with such statute, unless so provided by statute.36 If one owning lands, or having an equitable interest therein, subsequently acquiring the title, lays out a town thereon, and makes and exhibits a map or plan thereof, with spaces marked streets, alleys, public squares and parks, and sells

33 6 Peters, 431.

34 Trustees of Watertown v. Cowen, 4 Paige, 510; Huber v. Gazley, 18 Ohio, 18. Lands dedicated by the record of a town plat as "public ground" is presumed to be intended for a public square, if suitable for that purpose, in the absence of other evidence. Lebanon v. Warren County, 9 Ohio, 80.

35 Canal Trustees v. Havens, 11 Ill. 554; Randall v. Elder, 12 Harr. 257.

36 Sargeant v. State Bank of Indiana, 4 McLean, 339. See Fulton v. Mehernfield, 8 Ohio St. 440; Williams v. Smith, 12 Wis. 594; Field v. Carr, 59 Ill. 198.