from the existence of an open street adjoining his property which belong to him by reason of his location, and these rights are indispensable to the proper and beneficial enjoyment of the property. These advantages belong to and constitute a part of the property itself, and pass by deed or lease, unless specially reserved in the 84 instrument. The owner, therefore, of abutting property, in order to have the full enjoyment of his property, must necessarily have the right to a free, open, and unobstructed street in front of his premises for access, ingress, egress, light, and air, subject to the easement of the public, and the rights of the municipality to improve the same, and to permit its use for such municipal purposes as are authorized by law. The lease of the premises to the defendant included all rights, incidents, and easements belonging to the property not specially reserved in the lease. In this case no reservation is shown: Taylor on Landlord and Tenant, sec. 161. The defendant, therefore, under his lease, acquired all rights to the use of the street in front of the leased premises, including the right to air and light, access, ingress, and egress, incident to the property, not only as against the public, but as against the plaintiffs. The defendant became entitled, by virtue of his lease, to a free and unobstructed street, encumbered only with the easement of the public and the rights of the municipality, and this right constituted a part of the leased premises. This being so, when the plaintiffs obstructed the street in front of the leased premises, and took possession of the same by depositing lumber and other building material therein, they evicted the defend. ant from an important part of the leased premises. The defendant's right to the free use of the street in front of his premises for the approach of carriages, expresswa-gons, and other vehicles, either belonging to himself, customers, or others, and of access, ingress, and egress by the public, subject to the easements and rights above mentioned, was as full and complete as his right to the part of the building he occupied, and his right to the one could no more be lawfully obstructed by the plaintiffs than that of the other. The case of Pridgeon v. Excelsior Boat Club, 66 Mich. 326, is quite analogous to the case at bar. The defendant, a boating club, leased premises from the plaintiff for a boathouse, fronting on a river, and by the terms of the lease the lot extended to the channel bank of the river, and included "all and singular the benefits, liberties, and privileges to the said premises be

longing." In a suit for rent the defendant pleaded an eviction during the last month of the term, though it retained possession of the demised 85 premises. The proof was that the plaintiff had moored his propeller in front of the leased premises, cutting it off from access to the river. The court in that case says: "We think counsel is correct in this position. If the facts stated are true the action of the plaintiff in the premises was a substantial eviction of the defendant from a part, if not the whole, of the rented lot. The subject cannot be discussed, except in connection with the object and purpose for which the lot was rented and occupied. The disturbance of the lessee's beneficial enjoyment of the waterfront of the premises amounts to an eviction, actual, if any exists, and not constructive. The right to enter upon the land leased was of no interest or benefit to the defendant, only as it furnished a water-front upon which the club could store its boats, and launch and land the same unobstructed. In a case like the present the technical rule which requires the element either of absolute expulsion from the property by the landlord or abandonment by the tenant, to be included in the act of eviction, does not and ought not to be applied. A party should be held evicted when the act of the landlord is of such a character as to deprive the tenant, or has the effect of depriving him, of the beneficial use and enjoyment of the whole or any part of the demised property, to the extent he is thus deprived." The judgment of the justice's court in favor of the plaintiff, and of the county court affirming the same, were reversed.

In Upton v. Townsend, 84 Eng. Com. L. 30, Jervis, Ld. C. J., says: "It is extremely difficult at the present day to define with technical accuracy what is an eviction. The word ' eviction' was formerly used to denote an expulsion by the assertion of a paramount title, and by process of law. But that sort of an eviction is not necessary to constitute a suspension of the rent, because it is now well settled that, if the tenant loses the benefit of the enjoyment of any portion of the demised premises by the act of the landlord, the rent is thereby suspended." In Hoeveler v. Fleming, 91 Pa. St. 322, the supreme court of the state of Pennsylvania, speaking by Mr. Justice Paxson, says: "The modern doctrine as to what constitutes an eviction is that actual physical expulsion is not necessary, but any interference with the tenant's beneficial 86 enjoyment of the demised premises will amount to an

eviction in law. Thus, in Doran v. Chase, 2 Week. Not. Cas. 609, this court affirmed the ruling of the court below, that a landlord's refusal to allow an undertenant to enter the premises, under threats of suit, whereby the lessee is deprived of underletting, is such an interruption of the latter's rights as amounts to an eviction.' So an eviction of the lessee from any part of the demised premises will suspend accruing rent: Linton v. Hart, 25 Pa. St. 193; 64 Am. Dec. 691. If the landlord claim and use certain privileges upon the demised premises, against the tenant's consent, he must show a reservation of them, or the rent is suspended: Vaughan v. Blanchard, 4 Dall. 124. And I apprehend there might be a legal eviction by confining the tenant to the demised premises, as by closing up a way which was his only means of egress and ingress. Any act of the landlord which deprives the tenant of that beneficial enjoyment of the premises to which he is entitled under the lease will amount in law to an eviction, and suspend the rent."

We are clearly of the opinion that, both upon principle and authority, the acts of the plaintiffs in obstructing the street in front of the demised premises constituted an actual eviction of the defendant from an important part of the property leased, and during its continuance suspended the rent: Leishman v. White, 1 Allen, 489; Grundin v. Carter, 99 Mass. 15; Colburn v. Morrill, 117 Mass. 262; 19 Am. Rep. 415; Christopher v. Austin, 11 N. Y. 216; Lawrence v. French, 25 Wend. 445; Dyett v. Pendleton, 8 Cow. 731; Hayner v. Smith, 63 Ill. 430; 14 Am. Rep. 124. Our conclusions are that the instructions of the court stated the law correctly, and that the jury were fully warranted by the evidence in finding that the acts of the plaintiffs constituted an actual eviction of the defendant from a part of the demised premises, and that plaintiffs were therefore not entitled to rent for the three months during which the jury find the defendant had been so evicted. The judgment of the court below is therefore affirmed. All the judges concur.

LANDLORD AND TENANT-EVICTION-WHAT AMOUNTS TO.-Acts by a landlord in interference with his tenant's possession to constitute an eviction must clearly indicate an intention that the tenant shall no longer continue to hold the premises: Grommes v. St. Paul Trust Co., 147 Ill. 634; 37 Am. St. Rep. 248, and note. In order to constitute an eviction it is not necessary that there should be an actual physical expulsion. Acts of a grave and permanent character, which amount to a clear indication of intention on the landlord's part to deprive the tenant of the enjoyment of the demised

premises, amount to an eviction: Keating v. Springer, 146 Ill. 481. 37 Am. St. Rep. 175, and note. See the extended note to De Witt v. Pierson, 17 Am. Rep. 62.

STREETS OWNERSHIP IN.-The fee does not pass by the dedication of land to public use, but only such interest as the purposes of dedication require, and the landowner retains the right to use the land for any lawful purpose compatible with the purposes for which the dedication was made: Note to O'Neal v. City of Sherman, 19 Am. St. Rep. 747. The presumption as to public streets is that the city has an easement only, and that the fee thereof is vested in the abutting owner: White v. Northwestern etc. R. R. Co., 113 N. C. 610; 37 Am. St. Rep. 639, and note. The owner of land over which a highway passes retains his right in the soil for all purposes consistent with the full enjoyment of the easement acquired by the public: Allen v. Boston, 159 Mass. 324; 38 Am. St. Rep. 423, and note.

PLYMOUTH COUNTY BANK v. GILMAN.

[3 SOUTH DAKOTA, 170.]

PRINCIPAL AND AGENT.-THE DECLARATION OF AN AGENT to the effect that his principal had been negligent with respect to a past transaction is not admissible, because it is a mere expression of his opinion. PRINCIPAL AND AGENT. THE DECLARATIONS OR STATEMENTS OF AN AGENT during the progress of a business transaction are admissible, as against his principal, if they purport to disclose the steps taken toward the accomplishment of the business. Hence a statement of a cashier of a bank as to the measures pursued toward the collection of notes left with it are admissible against it.

RES JUDICATA EVIDENCE.-The records on a former appeal in the same action may be looked into for the purpose of ascertaining what facts and questions were then before the court.

STARE DECISIS.-Where the facts presented in two appeals are the same the decision given on the first appeal becomes the law of the case in all its subsequent stages, and will not be reviewed on the second appeal.

Winsor & Kittredge, for the appellant.

Palmer & Rogde, for the respondent.

173 CORSON, J. Appeal by plaintiff from a judgment in favor of defendant for five hundred and thirty dollars, and interest on a counterclaim. This was an action by the plain. tiff to recover of the defendant four hundred and twelve dollars, and interest, on a certain promissory note, given by the defendant to the plaintiff, bearing date January 18, 1875. The defendant answered, admitting the execution and nonpayment of the note, and pleaded by way of counterclaim that at the time he executed said note he transferred to the appellant, which will be hereafter designated as the

bank, six promissory notes amounting to eleven hundred and fifty dollars, and a mortgage securing the same, executed by one Mason, as collateral security for the payment of his said notes; and also with the agreement that said bank should collect said Mason notes and mortgage for a commission of ten per cent and the costs of collection. He further alleges that at the time he so transferred said Mason notes and mortgage to the bank the mortgaged property was of greater value than the face of the said notes; that he had not received any thing on account of said notes and mortgage; that, through the negligence of said bank, said Mason notes were not collected; that the maker had become insolvent, and the mortgaged property had become worthless; and that by reason of said negligence the defendant has been damaged to the amount of the face value of said notes and interest; and prayed for a judgment against the bank for the amount of said notes and interest, less the amount due on his own note to the bank. The bank, in reply to said counterclaim, denied all negligence, and alleged affirmatively that it sent the said Mason notes and mortgage to a reputable firm of attorneys for collection, and instructed them to proceed and collect the same; that said attorneys did proceed to foreclose said mortgage, but failed to realize from such foreclosure and sale of the mortgaged property a sum more than sufficient to pay the expenses, costs, and charges of such sale. It further alleged that, if there was any negligence in enforcing the collection of said notes and mortgage, it was the negligence of the attorneys employed by it, and not of the bank, and that it was not, therefore, responsible for such negligence, as it had performed its duty by using due care in the selection of competent and reputable attorneys to conduct the forecloseure proceedings. On the 174 trial the defendant gave evidence tending to prove the facts substantially as alleged in his answer, subject to certain objections and exceptions that will be hereafter noticed. The plaintiff also gave evidence tending to prove the facts alleged in its reply, which were substantially as follows: That in the latter part of June, 1875, the said Mason notes not being paid, it sent them to a reputable firm of attorneys, with instructions to foreclose the mortgage given to secure them; that an action of foreclosure was in a short time thereafter commenced, and a judgment of foreclosure rendered in October, 1876, but no sale of the mort