citizens, is in conflict with the provisions of the constitution of this state, and therefore void. This decision is not intended to in any manner affect the remaining provisions of said act, or of said section 27, except so far as it prohibits any individual or firm from transacting such banking business as is authorized by the act, that being the only question raised in this case or considered by the court.

The judgment of the court below is affirmed.
All the judges concur.

FRANCHISES WHAT ARE.-A franchise is a certain privilege conferred by grant from the government, and vested in individuals: Higgins v. Downward, 8 Houst. 227; 40 Am. St. Rep. 141, and note, with the cases collected.

CONSTITUTIONAL LAW-POLICE POWER-REGULATION OF OCCUPATIONS.— The right of every person to pursue any lawful business, occupation, or profession is subject to the paramount right inherent in every government as a part of its police power to impose such restrictions and regulations as the protection of the public may require: State v. Randolph, 23 Or. 74; 37 Am. St. Rep. 655, and note. See, also, the extended note to Butler v. Chambers, 1 Am. St. Rep. 644, and further, the note to Phillips v. Denver, 41 Am. St. Rep. 235.

EDMISON V. LOWRY.

[3 SOUTH DAKOTA, 77.]

LANDLORD AND TENANT-EVICTION.-The depositing by a landlord in a public street in front of premises leased for business purposes of lumber and other material, so that the public is deprived of easy access to the premises and caused not to approach them, and the tenant's business is greatly injured and his sales largely diminished, and the keeping of such material in the street, after being requested to remove it, constitute an eviction, and justify the tenant in his refusal to pay rent. PUBLIC STREETS-PRESUMPTION OF OWNERSHIP.-The owner of land abutting on a public street is presumed to own the soil and freehold to the center of the street, encumbered only by the easement and right of passage in the public.

LANDLORD AND TENANT-PUBLIC STREET, RIGHT OF TENANT IN.-By a lease of lands abutting upon a public street the tenant acquires all the rights in the street to which the landlord was entitled, and therefore a subsequent use and obstruction of the street by the landlord so as to interfere with free access to and from the leased premises, and to substantially diminish their value for the purposes for which they were let, may be treated by the tenant as an eviction warranting his refusal to pay rent during the continuance of such obstruction and use. LANDLORD AND TENANT-EVICTION.-AN ACTUAL EXPULSION from the property is not essential to an eviction to the extent of sustaining the right of the tenant to refuse the payment of rent. It may consist of any

interference with the tenant's beneficial enjoyment of the demised premises, as where the landlord occupies and obstructs the street in front of premises leased for business purposes, so as to prevent free access to and from them, to the substantial diminution of their value for the purposes for which they were leased.

William A. Wilkes, for the appellants.

Bailey & Stoddard, for the respondent.

79 CORSON, J. This was an action for rent. Verdict and judgment for defendant, and the plaintiffs appeal. The complaint is in the usual form, and demands judgment for rent for the months of August, September, and October, 1890, amounting to two hundred and twenty-five dollars. The defendant admits that the rent for those months has not been paid, and sets up a counterclaim, pleaded by way of recoupment, in substance, that during the months mentioned the plaintiffs obstructed the sidewalk and street in front of the premises leased, so so as to close up the entrance to the same, and prevent access, ingress, and egress to and from the street to the same, and thereby deprived the defendant of the quiet and peaceable enjoyment of the premises. The facts, as disclosed by the evidence, briefly stated, are as follows: The plaintiffs were the owners of a three-story brick building fronting on Ninth street in the city of Sioux Falls, the first story and cellar of which they leased to defendant to be used as a drug-store. The lease was made November 1, 1889, and was for a period of two years, the rent to be paid monthly. During the season of 1890 the plaintiffs erected a large stone building on the corner of Phillips avenue and Ninth street, extending back on Ninth street to or near to the leased premises. In erecting this building the sidewalk from Phillips avenue along Ninth street to the leased premises was taken up, and a fence erected across the sidewalk on the side of the leased premises nearest the avenue. The defendant, being thus shut off from the avenue-which appears to be one of the principal business streets in Sioux Falls-constructed a crosswalk at his own expense across Ninth street to the opposite sidewalk, thereby enabling the public to cross the street at that point in front of his drug-store, and pass by the same in going to and from the postoffice on the corner of Main and Ninth streets. There was evidence tending to prove that about August the plaintiffs commenced to deposit lumber on the street directly in front of defendant's drug

store, but outside of his sidewalk, and lumber, stone, sand, and other building material in the street upon the crosswalk, and so continued to use the street for depositing such building material during the three months mentioned, and for which rent is claimed. There was also evidence tending to prove that carriages and teams were, by reason of this building material deposited in the street in front of said premises, prevented from approaching the sidewalk in front of defendant's drug-store, and that the public was prevented from crossing the street on the crosswalk erected by defendant, by reason of the obstructions mentioned, during a large portion of the time during those months. There was also evidence tending to prove that defendant's business was greatly injured, and his sales largely diminished, during those months, and that defendant objected 81 to this building material being deposited and kept in front of his premises, and upon this crosswalk, and that plaintiffs refused to remove the same, insisting they had the right, as owners of the leased premises, to use the street for depositing the building material therein.

The case was submitted to the jury, with certain instructions, the more important of which are as follows: "If you shall find that the plaintiffs assumed exclusive control in front of the place of business, and have prevented enjoyment in the use of the premises leased for the purposes for which it was leased, then such possession and use by the plaintiffs is, for the purposes of this action, a sufficient eviction. Now, understand me about this matter: If you shall find from the testimony introduced in this action the plaintiffs used the street in front of this place of business to the exclusion of any rights which this defendant had in the street, and if, by that act, the defendant has been wronged by being deprived of the free use and enjoyment of these premises, that amounts to an eviction." "As to the matter of eviction. It is not necessary there should be any act of a permanent character, but any act which has the effect of depriving a tenant of the free enjoyment of the premises, or any part thereof, or any appurtenances pertaining to these premises, must be treated as an eviction; and I charge you that any act of the plaintiffs which has deprived the defendant of the enjoyment of the free right pertaining to and belonging to him as tenant may be treated as an eviction." The giving of these instructions is assigned, with a large number of other alleged errors; but as they are all embraced in these instructions, and the

four propositions contended for by the counsel for the appellants, it will not be necessary to further notice them.

The learned counsel for plaintiffs (appellants) contends: 1. That the covenant of quiet enjoyment in a lease relates only to the possession of the leased premises, and is the contract of the landlord that during the term of the tenancy the lessee shall not be evicted. The covenant is only broken by entry and expulsion, or by some actual disturbance of the tenant's possession of the leased premises. 2. That to constitute a breach of this covenant there must be shown an eviction, actual or constructive, from the 82 leased premises or some part thereof; and it must be an act of a permanent character, done by the landlord with the intention of depriving the tenant of the enjoyment of the property. 3. That, in case of a constructive eviction, the tenant must quit possession and abandon the premises. He cannot retain possession, and plead eviction, and refuse to pay the rent. 4. That the obstruction shown in this case did not constitute an actual eviction, the street not being any part of leased premises.

The learned counsel for the defendant insists that the lease of the premises fronting on a street for a drug-store carries with it every right of ingress and egress, and the easement of access which belonged to the property when leased; and that one of these rights was that of an unobstructed use of the street in front of the leased premises to the center thereof, for all purposes of access, ingress, and egress, subject to the easement of the public; and that the depriving of the defendant of the free and unobstructed use of the street in front of the leased premises for such purposes was in law an eviction of the defendant from a portion of the premises leased, and, while such eviction continued, the right to the rent was suspended. In determining these questions it will be necessary to ascertain the rights, and the nature of the rights, of the owner of property abutting upon a street or highway. At common law the owner of property fronting upon a street or highway was presumed to be the owner of the soil and freehold to the center of such street or highway, encumbered only with the easement or right of passage in the public: 3 Kent's Commentaries, 432, and notes. This principle of the common law has become a part of the statute law of this state (Comp. Laws, sec. 2783), which provides that "An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown."

And this principle has been also adopted in our state consti. tution, the last clause of section 13, article 6, providing that "the fee of land taken for railroad tracks or other highways shall remain in the owners, subject to the use for which it is taken." In this case no evidence was given or offered upon the subject; hence we must presume that the plaintiffs were the owners of the soil and freehold to the center of the street, encumbered only 83 by the easement or right of passage in the public. This right of an abutting owner in the street in front of his premises to the center thereof constitutes a valuable part of the property. By it the owner is enabled at all times to prevent the unlawful use of such street and its obstruction by unauthorized persons. Such owner may maintain an action of ejectment for unlawful encroachments upon the street, and trespass for digging up or otherwise injuring the same by persons uuauthorized by law so to do; and he may restrain by injunction parties from occupying the street in front of his premises for hack or carriage stands, and from otherwise unlawfully obstructing the street in any other manner: 3 Kent's Commentaries, 433, and cases cited; Branahan v. Hotel Co., 39 Ohio St. 333; 48 Am. Rep. 457; Brayton v. Fall River, 113 Mass. 218; 18 Am. Rep. 470; Pratt v. Lewis, 39 Mich. 7; Lippincott v. Lasher, 44 N. J. Eq. 120; Elliott on Roads and Streets, 524; 2 Dillon on Municipal Corporations, sec. 656. This right of the abutting owner is a peculiar, distinct, and separate right from that of the general public to use such street as a public highway. It includes, not only the rights of the general public, but the further right to the street for light and air, access, ingress, and egress, at all times, subject only to the easement of the public and the rights of the municipality. This right to an unobstructed street in front of his premises for light and air, access, ingress, and egress, belonging to an abutting owner, constitutes the most valuable part of the property, especially in crowded thoroughfares and on business streets, and without these rights the property, in many instances, would be greatly diminished in value. These rights, therefore, constitute property that cannot be taken for public use, except upon payment of just compensation: Story v. New York etc. R. R. Co., 90 N. Y. 122; 43 Am. Rep. 146; Lahr v. Metropolitan etc. Ry. Co., 104 N. Y. 268; 2 Dillon on Municipal Corporations, sec. 656; Elliott on Roads and Streets, 527.

An abutting owner necessarily enjoys certain advantages