be to virtually subject the property of A. to the payment of the debt of B. If this property had been taken by virtue of any legal process against Miller, and was not exempt from seizure thereon, this instruction might be correct; but a process against Stewart would not be a justification to the sheriff in attaching the property of Miller, and whether he did so attach the property of Miller, as already stated, was the controverted question." "When goods have been wrongfully seized by an officer upon process, and the owner desires to contest the validity of the seizure, the question arises, in what court shall his suit be brought? There may be a court competent to take jurisdiction over the subject-matter of the controversy, as well as the person of the defendant, within easy access, while the court from which process issued, upon which the wrongful seizure was made, may be distant and difficult of There appears to be no good reason why the court issuing the process behind which the officer assumed to shelter himself should alone have jurisdiction in such cases." Wells, Repl. § 272.

access.

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From the authorities cited, and others we have examined, it may be said that, if there is any principle of law which may be considered as entirely settled by a long series of uniform decisions in the courts, both at home and abroad, at common law and under the code practice, it is that he who, whether an officer of the law or otherwise, takes the property of another without authority is a wrong-doer, and the taking is wrongful. The bare statement of the proposition carries its own proof with it, and cannot be made plainer by extended reasoning. The only innovation upon the rule, so far as our investigation shows, is the case of Freeman v. Howe, 24 How. 450, which is in this court, in Smith v. Bauer, Parks v. Wilcox, supra, and others. That replevin does not lie forgoods in the custody of the law is an ancient maxim, the application of which, though, applies only to cases where the seizure is rightful, and upon a valid and sufficient process. "If an officer, in attempting to execute process of execution or attachment, by mistake or design, takes goods not the property of defendant in the writ, or goods not lawfully subject to seizure on such writ, he is a trespasser, and acquires no right to the goods seized, and the injured party may have replevin for their recovery, or may proceed against the officer in trespass or trover, at his election." Wells, Repl. §§ 243-245; Stone v. Bird, 16 Kan. 488. An examination of the decisions in the various states having a code practice, with provisions similar to those contained in our Code, shows that this practice is proper and expressly warranted. The action of the court in overruling the demurrer to the fourth defense of defendant was error. The judgment should be reversed, and the cause remanded for further proceedings.

PATTISON and REED, CC., concur,

PER CURIAM. For the reasons stated in the foregoing opinion the judgment is reversed.

TODD V. RENNICK. RENNICK V. SAME.

(Supreme Court of Colorado. Dec. 24, 1839.) LOST WILLS-PROOF OF CONTENTS.

Under Gen. St. Colo. c. 114, § 21, which provides that a lost or destroyed will may be admitted to probate when its execution is established, and the contents thereof "shown by the testimony of two or more witnesses," the will, as an entirety, must be established by the united testimony of at least two witnesses, going to each and every part.

Commissioners' decision. Error to district court, Arapahoe county. H. C. Dillon, for plaintiff in error. Marsh, for defendant in error.

L. P.

REED, C. These two cases were consolidated for final hearing by an order of this court. In the former, on the 9th day of January, 1885, defendant in error filed in this court a motion to dismiss this cause for reasons assigned; also to strike from the supposed record all the testimony taken in such case in the county court. On the 10th day of February, 1885, an order was made striking out all the testimony and overruling the motion to dismiss the writ. The cause was not remanded, and no testimony taken. It is hardly necessary to say that, there being no proof to establish the supposed will as required by statute, the judgment denying the probate must be aifirmed for this cause alone, and further consideration of the case is not needed.

By the record in the second case, it ap pears that in the month of July, 1882, Atwell Rennick made, duly executed, and published his last will and testament, disposing of his entire estate, real and personal. On the 24th day of February, 1884, he died at his place of residence in the city of Denver, leaving a widow, Bettie A. D., (contestant,) but no children. After his death, the will could not be found. The envelope which was supposed to contain the will, sealed, stamped, and directed to the brother, Henry S. Rennick, on being opened, was found to contain no will, but bore evidence of having been opened and resealed. There was no evidence to show by whom or at what time the will had been taken from it, if it had ever contained it. The tin box or trunk wherein the package had been kept was in the possession of the deceased to the time of his death, the key to the same also remaining in his possession. Henry S. Rennick was shown to have been a devisee under the will to the extent of onefourth of the estate. He also claimed to be an executor, either sole, or jointly with others. The will having been lost or de stroyed, he attempted to make proof of its execution and contents, and have it admit ted to probate as a lost will, under sec tion 21, c. 114. Gen. St., which is as fol lows: Whenever any will shall have been lost or destroyed, and the fact of the exe cution thereof can be established as herein before provided, and the contents thereo! are likewise shown by the testimony of two or more witnesses, the county court may admit the same to probate and record as in other cases: provided, that in every such case the order admitting such will to pro bate shall set forth the contents of the will

at length, and the names of the witnesses by whom the same was proven, and such order shall be recorded in the records of wills: and provided, further, that no will shall be admitted to probate upon proof of the contents thereof unless it shall be proven that the same was in existence at the time of the death of the testator." The court, after hearing the testimony, refused probate of the supposed will, and the matter was brought by writ of error to this court for review; the refusal of the court to admit the will to probate being assigned for error. It will be observed, on examination of the statute, that, in order to have a lost will admitted to probate, it is necessary, First, to make proof of the execution of the will as in other cases; second, to make proof of the contents of the will by the testimony of two or more witnesses; and it is provided that the order admitting such will to probate shall set forth the contents of the will at length; "and provided, further, that no will shall be admitted to probate upon proof of the contents thereof, unless it shall be proven that the same was in existence at the time of the death of the testator." The making and execution of the will was satisfactorily proved. No question is raised on this proposition. Taking the second proposition in connection with the first proviso, and it is evident that, to make the proof necessary to allow probate, both witnesses must testify as to the contents, and the entire contents, of the will, so that the instrument can be substantially reproduced in writing, and, when so reproduced, written at length in the order admitting it to probate. It follows that the whole will, as an entirety, must be established by the united testimony of at least two witnesses, going to each and every part. If this construction is not adopted, and a lost will could be reconstructed by the testimony of one witness testifying to one portion, and another to another portion, a will could be created by less testimony than is required to establish the execution of an existing will when offered for probate, which could not have been the intention of the legislature. The evidence introduced was insufficient to establish the contents of the lost will. There

were three or four witnesses sworn, no two of whom agreed as to all the devisees, nor as to who were the executors. The court was warranted in finding that the contents had not been proved so as to enable the will to be substantially reconstructed and admitted to probate. There was also fatal lack of proof of the existence of the will at the time of the death of the supposed testator. Judge Marsh, who drew the will and attended to its execution, does not testify to having seen it after it was completed. Henry S. Rennick never saw it. Only knew of it by statements made to him by his brother. Boswell never saw it. The widow had not seen it since December, 1882, or January, 1883. There was an absolute want of proof of the existence of a will at the time of the death; hence the court was warranted in refusing to admit the supposed lost will to probate, and the judgment should be affirmed.

RICHMOND and PATTISON, CC., concur.

PER CURIAM. For the reasons stated fa the foregoing opinion the judgments of the court below are affirmed.

ELLIOTT, J., having presided at the trial below, did not participate in this decision.

MCQUAID V. PORTLAND & V. RY. Co. (Supreme Court of Oregon. Dec. 10, 1889.) OCCUPATION OF STREET BY RAILROAD-Damage to ABUTTER-TITLE TO FEE.

1. In a conveyance of land bounded by a public road or street, the grantee ordinarily takes a legal title to the center thereof, subject to the rights of the public therein; but he does not thereby secure such a title to the land embraced in the road or street as will enable him to claim compensation from a railway corporation which locates and operates its road thereon, under an appropriation of the same authorized by sections 3242, 3243, tit. 2, c. 32, Hill, Code Or., or by any similar statute.

2. Whether an owner of land which abuts upon a public road or street can maintain an action for damages against a railway corporation for locating, constructing, and operating its road thereon, under an appropriation thereof authorized by such statute, does not depend upon his ownership of the fee to the land included in the public road or street, but upon the fact as to whether the location and operation of the railway destroys or materially interferes with his access to his premises.

3. An owner of real property has a right to the use of the public road or street upon which it abuts, for the purposes of ingress and egress to and from the same.

4. This right is appurtenant to his premises, and constitutes such a property interest that it cannot be taken away or seriously impaired, against his will, for any purpose, without payment of just compensation therefor.

5. Where a railway corporation locates and constructs its road upon a public highway under an appropriation thereof authorized by the statute referred to, its occupation of the highway is a kind of sufferance.

6. It is permitted to appropriate so much of the highway as may be necessary or convenient for such purpose, but the use thereof by the public is not thereby restricted. The railway corporation is allowed to build and operate its road upon the highway, but it has no authority to change the grade thereof, or use it to the exclusion of the public, or in such a manner as will infringe upon the rights of adjoining property owners to its use.

7. The latter are compelled to submit to ordinary inconveniences and annoyances which the operation of a railway located upon a public road occasions; but they cannot be deprived of the right of ingress and egress to and from their premises, without their consent.

8. Where a railway corporation locates its road, under the provisions of such a statute, in such close proximity to the premises of an adjoining lot-owner that its use obstructs his communication with the street, and interferes with its enjoyment by those who occupy the premises to such an extent as to materially depreciate their value, the lot-owner is entitled to recover the amount of such depreciation.

9. In an action against a railway corporation to recover damages in consequence of its locating and constructing its road upon certain streets in a certain city, it was alleged in the complaint that the plaintiff was the owner of premises at the corner of two of the streets; that the defendant had located its road above the grade thereof, and made a large curve in its road; had built it so near the plaintiff's premises that a wagon could not pass between the curb of the sidewalk and its road; that it had so taken and appropriated such part of the streets at the corners of plaintiff's premises as to interrupt and greatly obstruct access thereto; and, it appearing that evidence was introduced upon the part of the plaintiff, at the trial of the said

action, tending to prove the truth of said allega tions, held, that it was the duty of the trial court to have submitted to the jury the question as to whether the location and operation of the defendant's road interfered with the plaintiff's ingress and egress to and from his premises, so as to depreciate the value thereof.

10. Held, further, that the plaintiff was entitled to recover damages for the amount of any depreciation in the value of his premises caused by the defendant in locating, conducting, and operating its railroad so near them as to prevent or materially affect access thereto by the plaintiff, or those occupying said premises, if found that they had suffered depreciation from such cause.

(Syllabus by the Court.)

Appeal from circuit court, Multnomah county; E. D. SHATTUCK, Judge.

The appellant commenced an action against the respondent, a private corporation formed under the laws of the state, to recover damages caused by its constructing and operating a railway in certain streets in the city of East Portland. He alleged in his complaint, that he was owner in fee of lots 7 and 8, block 67, situated at the south-west corner of Third and E streets, in said city, including 100 feet square, fronting and abutting upon said streets; and that his ownership thereof extended to the center of the part of said streets upon which his said lots so fronted and abutted, subject to the public easement therein. That the respondent constructed a railroad in said city extending from the intersection of N and Water streets north, along Water street, to J street; thence east, up J street, to third street; thence north, along Third street, to said E street; thence east, along said latter street, to Fourth street; and thence north, along Fourth street, to its northern termination. That, in constructing said railroad, the respondent unlawfully, and without the license or consent of appellant, and against his protest, and without making compensation to him for taking said streets, took and occupied the portion of said Third street owned by appellant as aforesaid, and constructed its railroad thereon a distance of 100 feet in front of appellant. That, in constructing said railroad in said portion of Third street, the respondent, negligently and willfully, built the railroad above the grade of the street the whole distance of the 100 feet, and made a large curve in its road at that point; building its road so near the curb of said lots that a wagon cannot pass between it and the railroad. That respondent wrongfully and unlawfully constructed the railroad on E street, between Third and Fourth, in the form of a reverse curve or letter S. That the portion of Third and E streets upon which the said lots fronted had been improved by appellant at a cost of $165. That respondent had since September 20, 1888, been operating the said railroad, carrying freight and passengers thereon, and has since said date and is now using, in operating the road, an old and defective locomotive, also a cheap and badly constructed locomotive engine, which is housed in, and a falsely called steam-motor," which is propelled along said streets, over its said road. That said locomotives, in propelling the cars on the railroad, emit large quantities of steam,

smoke, and cinders, make loud noises, which annoy the appellant, and disturb him, so as to injure his peaceful and quiet Possession of said property; and respondent has taken and appropriated said part of said streets, thereby interrupting and obstructing his access to his said lots, and has almost driven travel off said streets. That, in consequence thereof, the respondent has rendered the appellant's said lots of less value, and damaged him in the full sum of $3,000. The respondent, for answer to the said complaint, denied the alleged negligence in the construction of its road, or that it was above grade, or had a reverse curve, or that it retarded access to the appellant's lots, or that it used the alleged character of engines; denied the alleged ownership of appellant in the fee of the street; alleged that the road was constructed in pursuance of authority granted by the common council of the city of East Portland; denied that it was intended or suitable for, or operated for, the conduct of a general freight business, but alleged that it was only operated for the local passenger business along the streets of East Portland, and contiguous towns. and for such business as is usually carried on by cable or horse-car lines of street railways. The respondent further alleged that the town of East Portland was plat ted in 1865, and the streets thereof dedicated to public use, by James B. Stephens, who was then the owner of the land, and that at the time of such dedication the General Laws of Oregon made such streets subject to use for the construction and operation of railroads; and it denied that appellant had been damaged. A reply was filed, denying all the allegations of new matter alleged in the answer. The case was tried in the circuit court by jury, who returned a verdict in favor of the defendant, upon which verdict the judgment appealed from was entered. The appellant assigned a number of grounds of error, re lied upon on the appeal, which are noticed in the points of the respective counsel, and referred to in the opinion of the court herein.

E. O. Doud and R. Williams, for appellant. By the common-law rule, a grantee of a lot or block of land in a town-site took the fee to the center of the abutting streets. 3 Kent, Comm. (12th Ed.) 432, and cases cited; 2 Dill. Mun. Corp. 631, and note, 632; In re John & Cherry Streets, 19 Wend. 657; Willoughby v. Jenks, 20 Wend. 96; Carpenter v. Railroad Co., 24 N. Y. 655; Ford v. Railroad Co., 14 Wis. 663; Weyl v. Railroad Co., 69 Cal. 203, 10 Pac. Rep. 510; Bissell v. Railroad Co., 23 N. Y. 61; Hammond v. McLachlan, 1 Sandf. 323; Stiles v. Curtis, 4 Day, 328; Wager v. Railroad Co., 25 N. Y. 526; Railroad Co. v. Elevator Co., 50 Pa. St. 499; Woodruff y. Neal, 28 Conn. 168; section 4184, Hill, Code; Mahon v. Railroad Co., 21 N. Y. 658. The building and operating of such a railway on the streets upon which appellant's lots fronted and abutted was a further servitude upon such streets, and was a "taking," within the meaning of the constitution, of a property right without compensation; and the legislature, much less the common council of the city of East Portland, could not authorize the railroad