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the cars to the railroad company, for hire | 77, 78 [32: 854, 857, 858], the agreement in
for four months, and delivering them for use Harkness v. Russell was upon the express
for hire, it is manifest that no mere bailment condition that neither the title, ownership
for hire was intended. No price for the hire nor possession of the engine and saw-mill
was mentioned or alluded to, and in every which was the subject of the transaction
bailment or letting for hire a price or com- should pass from the vendor until the note
pensation for the hire is essential.
given by the vendee for the stipulated price
was paid. Turning to the notes here in suit,
we find every element of a sale and trans-
mission of ownership, despite the provision
that the title to the cars should remain in
the payee, until all the notes of the series
were fully paid. The notes, upon their face,
show they were given for the "purchase
price" of cars "sold" by the payee to the
maker, and they are "secured" equally and
ratably on the cars, in order to prevent the
holder of one of the notes from obtaining
out of the common security a preference over
holders of others of the same series. This
provision placed the parties upon the same
footing they would have occupied if a chat-
tel mortgage, covering all the notes, had
been executed by the purchaser of the cars.
If the notes had been in the usual form of
promissory notes, and the maker had given a
mortgage back to the payee, the title would
technically have been in the payee until
they were paid. But they would, in such
case, have been negotiable securities pro-
tected in the hands of bona fide holders for
value against secret defenses, and their im-
munity from such defenses would have been
communicated to the mortgage itself.
Kenicott v. Wayne County, 83 U. S. 16 Wall.
452, 469 [21: 319, 321], it was said that
where a note secured by a mortgage is trans-
ferred to a bona fide holder for value before
maturity, and a bill is filed to foreclose the
mortgage, no other or further defenses are
allowed against the mortgage than would be
allowed were the action brought in a court
of law upon the_note. To the same effect.
is Carpenter v. Longan, 83 U. S. 16 Wall.
271, 274 [21: 313, 315]. See also Swift v
Smith, 102 U. 8. 442, 444 [26: 193, 194];
Collins v. Bradbury, 64 Me. 37; Towne v. Rice,
122 Mass. 67, 73.

It is quite unmeaning for parties to a con-
tract to say it shall not amount to a sale,
when it contains every element of a sale,
and transmission of ownership. This part
of the contract is to be construed in connec-
tion with the other provisions, so that if
possible, or so far as is possible, they may
all harmonize. Thus construed, it is quite
plain these stipulations were inserted to en-
able the manufacturing company to enforce
payment, not of any rent or hire, but of the
selling price of the cars for which the com-
pany took the notes of the railroad company.
They were intended as additional security
for the payment of the debt the latter com-
pany assumed. This is shown most clearly
by the other provisions of the contract. The
notes became the absolute property of the
vendors. As has been stated, they all fell
due within four months, and it was expected
they would be paid. The vendors were ex-
pressly allowed to collect them at their ma-
turity, and it was agreed that whatever sums
should be collected on account of them
should be retained by the vendors for their
own use. No part of the money was to be
returned to the railroad company in any
event, not even if the cars should be returned.
What was this but treating the
notes given for the sum agreed to be the
price of the cars as a debt absolutely due to
the vendors? What was it but treating the
cars as a security for the debt?
In
view of these provisions, we can come to no
other conclusion than that it was the inten-
tion of the parties, manifested by the agree-
ment, the ownership of the cars should pass
at once to the railroad company in consider-
ation of their becoming debtors for the price.
Notwithstanding the efforts to cover up the
real nature of the contract, its substance was
an hypothecation of the cars to secure a debt
due to the vendors for the price of a sale.
The railroad company was not accorded an
option to buy or not. They were bound to
pay the price, either by paying their notes
or surrendering the property to be sold in
order to make payment. This was in no
sense a conditional sale. This giving prop-
erty as security for the payment of a debt is
the very essence of a mortgage, which has
no existence in a case of conditional sale."
It is a mistake to suppose that there is any
conflict between these views and those ex-
pressed in the subsequent case of Harkness
v. Russell, 118 U. S. 663, 680 [30: 285, 291],
where the whole doctrine of conditional sales
of personal property was carefully examined,
and in which the particular instrument there
in question was held to import not an abso-
lute sale but only an agreement to sell upon
condition that the purchasers should pay
their notes at maturity. With the principles
laid down in the latter case we are entirely
satisfied. But as pointed out in Arkansas
Valley L. & C. Co. v. Mann, 130 U. S. 69,

In

The agreement that the title should remain
in the payee until the notes were paid-it
being expressly stated that they were given
for the price of the cars sold by the payee to
the maker, and were secured equally and rata-
bly on the property-is a short form of chattel
mortgage. The transaction is, in legal effect,
what it would have been if the maker, who
purchased the cars, had given a mortgage back
to the payee, securing the notes on the prop-
erty until they were all fully paid. The
agreement, by which the vendor retains the
title and by which the notes are secured on
the cars, is collateral to the notes, and does.
not affect their negotiability. It does not
qualify the promise to pay at the time fixed,
any more than would be done by an agree
ment, of the same kind, embodied in a separate
instrument, in the form of a mortgage. So far
as the notes upon their face show, the payee
did not retain possession of the cars, but pos-
session was delivered to the maker.
marks on the cars showed that they were to go.
into the possession of the maker, or of its
transferee, to be used. The suggestion that

The

[283]

the maker could not have been compelled to C. 360, is that it was made payable at a pay if the cars had been destroyed before the time which we must suppose would arrive. '" maturity of the notes is without any found- To the same effect are Cota v. Buck, 7 Met. (284] ation upon which to rest. The agreement 588; Walker v. Woollen, 54 Ind. 164; Woolcannot properly be so construed. The cars len v. Ulrich, 64 Ind. 120; Charlton v. Reed, having been sold and delivered to the maker, 61 Iowa, 166; Andrews v. Franklin, 1 Strange, the payee had no interest remaining in them 24; Cooke v. Horn, 29 L. T. N. S. 369. except by way of security for the_payment Upon like grounds it has been held that the of the notes given for the price. The reser-negotiability of the note is not affected by vation of the title as security for such pay- its being made payable on or before a named ment was not the reservation of anything in favor of the maker, but was for the benefit of the payee and all subsequent holders of the paper. The promise of the maker was unconditional.

date, or in installments of a particular amount. In Ackley School Dist. v. Hall, 113 U. S. 135, 140 [28: 954, 956], it was held that municipal bonds, issued under a statute providing that they should be payable at the Without deciding whether the notes here pleasure of the district at any time before in suit would or would not have been nego- duc, were negotiable; for, the court said: tiable securities if the transaction between "By their terms, they were payable at a time the parties had been a conditional sale, we are which must certainly arrive; the holder could of opinion that they are of the class of in- not exact payment before the day fixed in struments that are negotiable according to the bonds; the debtor incurred no legal li. the mercantile law, and which, in the hands ability for nonpayment until that day of a bona fide holder for value, are protected passed." In Mattison v. Marks, 31 Mich. against defenses of which the maker might 421, which was the case of a note payable avail himself if sued by the payee. They "on or before" a day named, it was said: are promises in writing to pay a fixed sum "True, the maker may pay sooner if he of money to a named person or order, at all shall choose, but this option, if exercised, events, and at a time which must certainly would be a payment in advance of the legal arrive. Ackley School Dist. v. Hall, 113 U. liability to pay, and nothing more. Notes S. 135, 139, 140 [28: 954, 956]; Story on like this are common in commercial transPromissory Notes, 27; Cota v. Buck, 7 actions, and we are not aware that their neMet. 588. It is true that, upon the failure gotiable quality is ever questioned in busiof the maker to pay the principal and in- ness dealings. Carlon v. Kenealy, 12 Mees. terest of any note of the whole series of & W. 139; Colehan v. Cooke, Willes, 393; twenty-five, the others would become due Jordan v. Tate, 19 Ohio St. 586; Curtis v. and payable, that is, due and payable at the Horn, 58 N. H. 504; Howard v. Simpkins, option of the holder. But a contingency 69 Ga. 773; Protection Ins. Co. v. Bill, 31 under which a note may become due earlier Conn. 534, 538; Goodloe v. Taylor, 3 Hawks, than the date fixed is not one that affects its 458; Riker v. A. & W. Sprague Mfg. Co. 14 negotiability. In Ernst v. Steckman, 74 Pa. R. I. 402. In the last-named case it was 13, 15, cited with approval in Cisne v. Chi- said that if the time of payment named in dester, 85 Ill. 523, the question was whether the note must certainly come, although the the following instrument was a negotiable precise date may not be specified, it is suffipromissory note: "$375. Paradise, Lan ciently certain as to time. It was consecaster Co., Pa., June 11, 1869. Twelve quently held that a reservation in a note of months after date (or before if made out of the right to pay it before maturity, in inthe sale of W. S. Coffman's Improved Broad-stallments of not less than five per cent of cast Seeding Machine), I promise to pay the principal at any time the semi-annual J. S. Huston, or bearer, at the First National interest becomes payable, did not impair its Bank of Lancaster, three hundred and seventy-negotiability, the court observing that a five dollars, without defalcation, for value note is negotiable if one certain time of payreceived, with interest." It was there contended that the character of the instrument was changed by the fact that in the contingency of the sum being sooner realized from the sale of the machinery it might become payable within the year. The court, after (285] observing that the general rule to be extracted from the authorities undoubtedly requires that, to constitute a valid promissory note, it must be for the payment of money at some fixed period of time, or upon some event which must inevitably happen, and that its character as a promissory note cannot depend upon future events, but solely upon its character when created, said: "Yet it is an equally well-settled rule of commercial law that it may be made payable at sight, or at a fixed period after sight, or at a fixed period after notice, or on request, or on demand, without destroying its negotiable character. The reason for this, said Lord Tenterden, in Clayton v. Gosling, 5 Barn. &

ment is fixed, although the option of another
time of payment be given. In view of these
authorities, as well as upon principle, we
adjudge that the negotiability of the notes
in suit was not affected by the provision that
upon the failure of the maker to pay any
one of the notes of the series to which those
in suit belonged, the rest should become due
and payable to the holder.

Our conclusion is that the court below did
not err in holding the notes in suit to be
negotiable according to the custom and usage
of merchants. They bear upon their face
evidence that they were so intended by the
maker and the payee. It was well said by
Judge Bunn, at the trial, that the inference
that anyone contemplating the purchase
of the notes would naturally and properly
draw would be (25 Fed. Rep. 809, 811),
"that the freighters had already been sold
by the payee toe maker, and that the
payee was to retain a lien and security upon

[286]

them, in the way of mortgage, for the pay: ment of the purchase price, which would inure equally and ratably to all the holders of the notes, according to their several amounts, without regard to the time when such notes should fall due. If this be so, the contract was an executed one, the consideration for the notes had already passed and the payment of the notes would not be made to depend upon any condition whatsoever." Judgment affirmed.

THE HOT SPRINGS RAILROAD COM-
PANY, Piff. in Err.,

v.

FANNIE G. WILLIAMSON.

(See S. C. Reporter's ed. 121-180

Refusal to charge-railroad company liable for damages to adjoining lot owners, by using street for its track-constitutional right.

1. The refusal of the court to charge upon an abstract question in relation to which the plaintiff has introduced no evidence, and which is not, therefore, before it, is not error.

2. Under a State Constitution which forbids the taking or damaging of private property for public use without compensation, a railroad company cannot use a street for its track, even under legislative or municipal authority, without compensation to adjoining lot owners for injury to their property and its consequent diminution of value.

ing lot owner to compensation for injury to his
ingress and egress.
[No. 93.]

Submitted Nov. 11, 1889. Decided May 19, 1890.

IN
ERROR to the Supreme Court of the
State of Arkansas to review a judgment for
damages for injuries to plaintiff's real estate
by the construction of a railroad track and
embankment in the street on which said real
estate is situated. Affirmed.

The facts are stated in the opinion.

Mr. John M. Moore, for plaintiff in er

ror:

The grant was in præsenti, vesting the title at once in the Railroad Company, according to the grant.

Glasgow v. Hortiz, 66 U. S. 1 Black, 595 (17: 110); Schulenberg v. Harriman, 88 U. S. 21 Wall. 60 (22: 554).

The Company may erect on the land, except at crossings, all such structures as are necessary to the maintenance and operation of the road.

Pierce, Railroads (2d ed.) 159, 160; Atlantic & P. Teleg. Co. v. Chicago, R. 1. & P. R. Co. 6 Biss. 158; Jackson v. Rutland & B. R. Co. 25 Vt. 159; Grand Trunk R. Co. v. Richardson, 91 U. S. 468 (23: 361); Lewis, Em. Dom. §§ 584, 586.

Where a right of way has been acquired by a railroad company in a city or town, the city council cannot open a street through grounds occupied by the railroad and needed for railroad purposes.

New Jersey 8. R. Co. v. Long Branch, 39 N. & An ordinance by a city, having the power, au- J. L. 28; Bridgeport v. New York & N. H. R. thorizing such company to construct and main- Co. 36 Conn. 255; St. Paul U.D. Co. v. St. Paul, tain its track and embankment in the street, does 30 Minn. 359; St. Joseph & D. C. R. Co. v. Bald not impair the constitutional right of an adjoin-win, 103 U. S. 428 (26: 579).

294.

NOTE.-As to payment for private property taken | therefor. Louisville & N. R. Co. v. Finley, 86 Ky. for public use, see note to Withers v. Buckley, 15:816. Railroads occupying streets; rights of, and liability for damages to adjoining owners. Appropriating a public street to use for an ordinary commercial railroad is not a proper street use. Adams v. Chicago, B. & N. R. Co. 1 L. R. A. 493, 39 Minn. 286, 38 Alb. L. J. 888; Ruttles v. Covington <Ky.) 10 Ky. L. Rep. 766.

The construction and operation of a steam railway in a city street cannot be allowed except by the consent of the abutting lot owners or by right of eminent domain, whether such owners possess the fee to the street or only an easement therein. Theobold v. Louisville, N. O. & T. R. Co. 66 Miss. 279, 4 L. R. A. 735.

sold lots thereon, a reservation of "the exclusive Where a corporation made a plat of a town and right to lay a plank or railroad track through and across any of the streets recorded in this map; also the exclusive right to use the same, with cars, engines or any other vehicle they may choose," gives the dedicator or its assigns no power to use the street for a railroad so as to destroy the public use for which it is dedicated. Riedinger v. Marquette & W. R. Co. 62 Mich. 29; Ward v. Detroit, M. & M. R. Co. 62 Mich. 46.

The necessity or convenience of obstructing a highway by a railroad company in making up trains and switching cars is not a matter to be considered in determining the question of guilt or innocence The use of steam as a motive power for the move-on an indictment for obstructing the street. State ment of cars on a highway, at a place where there v. Chicago, M. & St. P. R. Co. 77 Iowa, 442, 4 L. R. is no authority for such use, in consequence of A. 298. which the buildings of an abutting owner are shaken, and cinders, smoke and dust discharged upon his premises, depreciating the value of his prop-side next to the property, by means of which the erty, constitutes a nuisance. Hussner v. Brooklyn City R. Co. 114 N. Y. 433.

The injury sustained by the owzer of property when the railroad track is laid in the street on the

access thereto is rendered dangerous, is an injury for which a recovery may be had, under Pa. Const., art. 16, sec. 8. Pennsylvania 8. V. R. Co. v. Walsh, 124 Pa. 544.

A statute giving a railroad authority to construct a railway "to" a city does not give it authority to use any street or alley in such city, where the city has no authority to give the right. Ruttles v. Cov-company, under lawful authority, which makes it ington (Ky.) 10 Ky. L. Rep. 766.

A railroad company has no right, in constructing its road, to change the location or grade of a public way so as to deprive the adjoining owner of his right to enjoy his premises, by preventing ingress or egress, and, if it does so, must answer in damages

An excavation across a public street by a railroad

necessary, in order to pass the railroad, to make a detour by some adjacent street where crossings are provided, is not an injury for which damages can be recovered by an individual, although such inconvenience to the public and to him may depreciate the value of his property fronting on such street,

SUPREME COURT OF THE UNITED STATES.

Mr. A. H. Garland, for defendant in er

The right to use streets of a city by the adjoining lot owners is property, and no such right can be taken, or injured, or appropriated to the use of any corporation, until full compensation therefor shall be first made to the

Elizabeth, L. & B. S. R. Co. v. Combs, 19 Am. Rep. 67, 10 Bush, 382; Ark. Const. art. 12, § 9, art. 2, § 22; 2 Dill. Mun. Corp. 620, § 625, note. The City of Hot Springs had no right to grant a right of way along Benton Street. Const. 1874, art. 2, § 23; Acts 1874, p. 9, § 14; Angell, Highways, SS 33, 34.

The difference between the present value of the lot or lots so damaged with the embankment and the said track thereon existing, and what such values would be if the embankment and track were removed, or had never existed, is the measure of damages.

St. Louis, A. & T. R. Co. v. Anderson, 39 Ark. 167.

The cession of the control of the highways should not be construed to affect the rights or equities of those who own abutting lots. Dovaston v. Payne, 2 Smith, Lead. Cas. *199; Peck v. Smith, 1 Conn. 103, 132.

The fact that a street dedicated to the public use is in an incorporated town, or that the street was laid out by the corporation, makes no difference as to the ownership of the soil; the title remains in the owner.

Philadelphia & T. R. Co's Case, 6 Whart. 25; Louisville v. United States Bank, 3 B. Mon. 138, 158.

Where the street is called for as a boundary,

a short distance from the railroad. Fairchild v. St., owners of such property will be entitled to comLouis, 97 Mo. 85.

pensation. Southern P. R. Co. v. Reed, 41 Cal. 256. purpose of a passenger railway is held not to be a The use of a portion of a turnpike road for the land along the line of such turnpike, who havenew and distinct servitude, entitling the owners of of their property, to fresh compensation. Pedalready been compensated for the condemnation dicord v. Baltimore, C. & E. M. P. R. Co. 34 Md. 463.

ting owner against an elevated railroad company The measure of damages in an action by an abutto recover damages for the interference with his easement of light, is the difference of value with the full and unobstructed use of the easement and the value without it. Re New York C. & H. R. R. Co. 15 Hun, 63, 67, 69; Re New York, L. & W. R. Co. 29 Hun, 1; Re New York, W. S. & B. R. Co. 35 Hun, 260; Pond v. Metropolitan E. R. Co. 42 Hun, 567.

abutting owner for the operation of its trains and An elevated railroad company is liable to an the consequences flowing therefrom, where the evidence establishes the fact that they were destructive of the easements of light, air and access. Lahr v. Metropolitan E. R. Co. 6 Cent. Rep. 371, 104 N. Y. 268; Peyser v. Metropolitan E. R. Co. 13 Daly, 122.

value of the use of the plaintiff's lots without the The correct rule of damages is the difference in elevated railroad and with it between the date of its building and the commencement of the action. Tallman v. Metropolitan E. R. Co. 16 N. Y. S. R. 684.

In an abutter's action for damages by reason of of noise may be considered. Lahr v. Metropolitan the operation of an elevated railway, the element E. R. Co. supra; Story v. New York E. R. Co. 90 N. Y. 122; Kane v. Metropolitan E. R. Co. 25 N. Y. 8. R. 587.

[122]

scribed in the petition, and averring that those
lots were located upon Malvern Avenue, one
of the original streets of the City of Hot
Springs, which was laid off by the city and
opened and continuously used thereafter as
a street, and was never vacated by the city.
Further answering, it alleged that its rail-
road was constructed in and upon its right
of way granted it by Congress under the Act
of March 3, 1877, entitled "An Act in Re-
State of Arkansas, and under the alleged
ordinance of the city, which it denied had
been passed clandestinely or through any
fraud on its part; and also alleged that the
turn-table complained of was constructed on
its right of way, and upon lots 10 and 11,
in block 69, in the city, which were defend-
ant's own property.
As a further answer,
the defendant alleged that Curnel S. Wil-
liamson was improperly joined as a plaintiff
in the action.

This is an action at law brought in the
Circuit Court of Garland County, Arkansas,
at its February Term, 1883, by Curnel S.
Williamson and Fannie G. Williamson, his
wife, against the Hot Springs Railroad Com-lation to the Hot Springs Reservation, in the
pany, a corporation organized under the
laws of that State, to recover damages for
alleged injuries done to certain described
real estate belonging to Mrs. Williamson,
in the City of Hot Springs, by the defendant
Company.

At the trial of the case before the court

and a jury, the following agreed statement
of facts, together with a map also agreed
upon as correct, was filed:

location of Malvern Avenue, Benton Street,
"1st. The accompanying map shows the
the plaintiff's lots and the right of way
the Act referred to in defendant's answer,
granted by Congress to the defendant under
and approved by the Hot Springs Commission
and the Secretary of the Interior.

The declaration alleged that the plaintiff,
Fannie G. Williamson, was the owner in
fee of lots 1 and 2 in block No. 78 and lot 9 in
block No. 69 in that city; that lots 1 and 2
are separated from lot 9 by Benton Street,
which is one hundred and forty feet wide,
and was laid out by the general government
and dedicated to the city, with the other
streets in the city, before the damages for
which suit was brought were committed;
that lot 9 lies south of Benton Street, lot 1
directly across the street on the north, and
lot 2 lies immediately north of lot 1; that
the defendant, a Railroad Company, organized
as aforesaid, with its termini at Hot Springs
and at Malvern, in Hot Springs County, in
that State, by and through its agents and
employés, on and prior to the 10th of Decem-ant under the ordinance of the City of Hot
"2d. The extension claimed by the defend-
ber, 1881, constructed, threw up and com-
pleted in and along the center of Benton Springs consists of a strip fifty feet wide,
Street, between lots 1 and 9, and running the the center thereof on a direct line with the
center of the right of way granted by Con-
full length of those lots, a permanent em-
bankment of earth and stone, fifty feet wide gress and extending westward to Malvern
and of great height, to serve as a road-bed Avenue, a distance of 130 feet.
for its railroad track, under a fraudulent and
unauthorized contract secretly and clandes-
*inely entered into between it and the city,
for the purpose of defrauding and injuring
plaintiffs; that the defendant also constructed
a turning table at the southeast corner of that

embankment and the northeast corner of lot

"3d. The turn-table is fifty feet in diame Lots 10 and 11, in block 69, upon which a ter; it is located as marked on the map. part of the turn-table is located, belong to the defendant.

"4th. Gaines Avenue was located as a street

subject to explanation."

of said City of Hot Springs and opened and 9, and immediately thereafter proceeded to lay tember; it was 80 feet wide and the northern accepted by the city in 1876, October or Sepand fix its railroad track permanently on the embankment, which thereby became and there-boundary thereof was about coterminous with after was a part or extension of its railroad; of way. The right of way is 100 feet wide, the northern boundary of defendant's right that by the embankment, extension and turning table plaintiffs and others were cut off from and deprived of the use of that street in connection with said lots, and their egress and ingress therefrom and therein impaired and destroyed; that said lots, which, by reason of their lateral frontage upon Benton Street, were of great value, were thereby greatly damaged and decreased in value to the extent of five thousand dollars; and that since the dedication of Benton Street to the city, the defendant had wrongfully appropriated almost the whole of it for its roadbed and other purposes, thereby wantonly [128] injuring plaintiffs and all other owners of land adjoining that street. The prayer of the petition was for a judgment against the defendant for $5,000, and for other relief. The defendant answered, pleading ignorance as to whether the plaintiff, Fannie G. Williamson, was the owner of the lots de

The map referred to shows that Benton Street and the right of way run almost east and west, the right of way extending south to the south line of Benton Street. Immediately east of lot 9, and also adjacent to the right of way, is lot 10, and immediately beyond that is lot 11. The turn-table is located partly on the right of way and in part on the Company's lots 10 and 11; and appears to be about 40 feet east of the east line of lot 9, and nearly the same distance east of the western extremity of the right of way granted by Congress. Malvern Avenue runs nearly from the southeast to the northwest, and is 130 feet west of the western terminus of the right of way.

Considerable testimony was introduced on both sides, on the question of damages as presented by the pleadings, and upon that

[124]