trial court comes to erroneous conclusions of fact, the revision of its action by correcting the errors in its conclusions is a determination of the facts only as a mode of the redress of errors. In many cases, indeed, a finding of fact may be of itself an error of law. It is so when it is made without any evidence of the fact as to matters not the subject The E. A. Packer, 140 U. of judicial notice. The E. A. Packer, 140 U. S. 360, 11 Sup. Ct. 794; Mason v. Lord, 40 N. Y. 476. And to refuse to find a material fact which was in issue and was proved by uncontradicted evidence is also an error of law. U. S. v. Adams, 9 Wall. 661; Assurance Co. v. Scammon, 126 Ill. 355, 18 N. E. 562; Whitman v. Arms Co., 55 Conn. 247, 10 Atl. 571; Kennedy v. Porter, 109 N. Y. 526, 17 N. E. 426; Bedlow v. Dry-Dock Co., 112 N. Y. 263, 19 N. E. 800; Fernald v. Bush, 131 Mass. 591. The word "errors" certainly includes such errors of fact as were at common law grounds for a writ of error coram nobis. It seems to me a sticking in the bark to say that it can include no others. In the Dartmouth College Case a similar claim was pressed. There were, it was argued, few corporations in existence when the constitution of the United States was adopted, and the theory that the charter of a corporation was a contract with the state was unknown. But Chief Justice Marshall replied: "It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case, being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous or repug nant to the general spirit of the instrument as to justify those who expound the constitution in making it an exception." College v. Woodward, 4 Wheat. 518.

The act of 1893, it is decided in this case, is an enlargement of the jurisdiction of this court, by which it can now, to a greater extent, or with more facility, than formerly, redress errors in the finding of a trial court as to conclusions of fact. Whether the general assembly can hereafter, should it deem proper, extend our powers in this direction still further, is a question which, it seems to me, is beyond the issues now presented for our determination. It is one that may never arise, but, if some future statute should present it, the rule of construction announced in the opinion of the court, although, if I am right in my view of this case, it is but an obiter dictum, would certainly be appealed to as an authority by those who might then contend that the legislature had transcended its powers. It is for this reason that I have expressed at length the grounds of my dis sent from it.

STATE ex rel. ZIMMERMANN v. TOWNSHIP COMMITTEES OF BERGEN AND BOILING SPRINGS.

(Supreme Court of New Jersey. Oct. 13, 1894.) ABANDONED TURNPIKE-OBLIGATION OF Township TO WORK.

1. Townships are not obliged to work an laid upon a highway. abandoned turnpike, unless it was originally

2. Such duty will only arise if the road is laid out as a highway, or perhaps if accepted as a highway by a township committee. (Syllabus by the Court.)

Petition by the state, on relation of George Zimmermann, for a writ of mandamus to compel the township committees of the townships of Bergen and Boiling Springs, Bergen county, N. J., to proceed under Road Act, § 63 (Revision, 1008), to have a certain road apportioned to the the respective townships. Heard on rule to show cause why the writ should not issue. Rule discharged.

Argued at February term, 1894, before DEPUE and REED, JJ.

Addison Ely, for relator. Campbell & Debaun, for Bergen township.

REED, J. It is admitted that there has been for a great number of years an old road dividing the two townships. It is admitted that this road is now almost impassable. It is therefore claimed by the relator that the" duty is imposed upon each of the respective township committees to proceed under section 63 of the road act (Revision, 1008) to have the road apportioned to the respective townships.

The first objection urged by the township of Bergen is that the duty of working the said road has been transferred from that township to another municipal corporation, known as the village of Carlstadt, one side of which village borders on the said road. I think this objection is without substance. If we assume that the territorial limits of this village run to the middle of this road, there is nothing in the feeble corporate powers conferred upon this nondescript municipality, which strips the township of its powers, or relieves it of its duties, to treat this road as any other highway, if it is a highway. The power conferred upon the village over streets was only in respect to sidewalks. A supplement to the original act conferring this power over sidewalks was passed in 1873 (page 770), and professed to confer broader powers; but its operation was confined by its title to sidewalks. So, in all other respects, the control over streets or highways remained in the township authorities. I therefore find no substance in this objection.

There is, however, a difficulty presented which I think stands in the way of the re lator. The evidence in respect of the evolu tion of this piece of road is not clear, and from it I am unable to find that any duty to work this road rests upon either of the re spective townships. As I understand the evi

barrassment, inconvenience, and probably to injustice in the present case to pay over only a portion of the fund. It is well settled that the statutory lien of a creditor upon the lands of his deceased debtor continues, not only for a year, but until such lands are aliened by the heir or devisee. Haston y. Castner, 31 N. J. Eq. 697, at page 699; Westervelt v. Voorhis, 42 N. J. Eq. 180, 6 Atl. 665. The devise by Felix O'Rourke to Lerché and Teressa is relied upon as an alienation which divested the lien in this case. But I think it comes within neither the letter nor the spirit of the act. It is not a conveyance for value, and I think such is contemplated by the statute. Not only is a valuable consideration wanting, but there is present notice to the second devisee, inherent in Felix's title, that Felix held subject to the payment of Mary's debts. The devise by Felix, at best, amounts to a voluntary alienation by a devisee of the lands devised, subject to the debts of his devisor. Such an alienation cannot have the effect of divesting the statutory lien of the debts of the first devisor. Besides, here we have the lien created by the terms of the first devise, and the proper mode of enforcing that lien is to pay the money to the personal representative, who will distribute it among the creditors according to law. From an equitable standpoint, the right of Mr. Conover is entirely clear. But, if I had come to a different conclusion as to Conover's rights, I should have been of the opinion that Connelly's judgment in our supreme court should be paid, because it was founded on the joint debt of Mary and Felix, and was a joint judgment against Lerché and Teressa as devisees of Felix: and further, for the same reason, I should have thought that the attachment of Wenzel was a like lien on these lands. The order to pay over the money to the administrator of Mary will be without prejudice to the right of any person interested in the estate to contest the claims of Connelly and Wenzel, or either of them.

1. Under the general railroad law (Revision, p. 925), an application to condemn the lands of a corporation chartered for the purpose of facilitating transportation will be deemed an application to condemn such lands for the purpose of crossing only, unless it avers that the lands are not necessary for the purposes of the franchises of the present owner.

2. Under that law, land in a public street may be condemned, as against the private owner of the fee.

3. Under that law, if a railroad company requiring certain lands cannot make an agree ment with the owner which will secure to the

company the use or the purchase of the lands, because the lands are held under a long lease by a tenant who refuses to sell, a case arises for the exercise of the power of condemnation.

4. Under that law, a lessor and lessee of lands are not entitled to have their estates condemned separately.

5. Under that law, a railroad company may condemn land to provide for not only its present, but also its prospective, necessities, within the limits of the statute.

(Syllabus by the Court.)

Petition by the National Docks & New Jersey Junction Connecting Railroad Company for the appointment of commissioners to appraise certain lands which petitioner desired to use in the construction of its railroad. The commissioners were appointed, and the Pennsylvania Railroad Company and the United New Jersey Railroad & Canal Company, in the name of the state, prosecute a certiorari to test the legality of such appointment. Appointment affirmed.

Argued June term, 1894, before REED, ABBETT, and DIXON, JJ.

Jos. D. Bedle and J. B. Vredenburgh, for prosecutors. Chas. L. Corbin and C. D. Thompson, for defendants.

DIXON, J. On March 17, 1894, the National Docks & New Jersey Junction Connecting Railway Company presented to one of the justices of this court an application for the appointment of commissioners to appraise certain lands described therein, belonging to the United New Jersey Railroad & Canal Company, and by it leased to the Pennsyl vania Railroad Company, which lands the petitioner desired to use in the construction of its railroad. On this application commissioners were appointed under the general railroad act (Revision, p. 925), and thereupon a certiorari was allowed to test the legality of the appointment.

The first objection made by the prosecutors of the certiorari is that the application fails to show either that the land is to be taken merely for the purpose of crossing, or that the land is not necessary for the franchises of the present owners. The provisions of the statute by which the strength of this objection must be tried are found in the eleventh, twelfth, and thirty-sixth sections of the act. By the eleventh and twelfth sections authority is given to railroad corporations organized under the act to acquire by condemnation any lands which may be necessary for the construction of their roads, and the procedure for such condemnation is prescribed in terms applicable alike to all lands, irrespective of their ownership. This general grant is, however, limited by the thirty-sixth section, which provides "that no corporation *** shall be authorized to take, use, or occupy by condemnation any lands * *of any bridge, railroad, canal, turnpike, or other corporation chartered for the purpose of facilitating transportation, except for the purpose of crossing said lands * and except the lands of such other

corporations not necessary for the purposes of their franchises." But there are no other directions as to procedure. The effect of these enactments is, we think, to permit the lands of railroad corporations to be condemned by the same forms as may be employed in condemning the lands of private owners without stating the intended uses; but under such forms the lands of railroad corporations will be taken only for the purpose of crossing the same. If the condemn"If the condemning company seeks to acquire such lands for other purposes, another fact must exist to warrant its proceeding, viz. that the lands are not necessary for the franchises of the owning corporation, and under legal rules that jurisdictional fact should be averred in the application. By legal intendment, therefore, the present application, showing that the lands to be taken belong to railroad corporations, and not showing that the lands are unnecessary for the franchises of the owners, does, when construed with the statute, import that the lands are to be acquired only for the purpose of crossing the same. The opinion expressed in United Companies v. National Docks, etc., Co., 52 N. J. Law, 90, 97. 18 Atl. 574, that the petition for condemnation must allege that the land is to be taken merely for the purpose of crossing, was overruled on error in 53 N. J. Law, 217, 21 Atl. 570; Pennsylvania R. Co. v. National Docks, etc., Co., 51 Fed. 858. This objection is invalid.

The next objection to the proceedings is that the land lies in a public street of Jersey City, and that the condemning company intends to cross it in such a way as will exclude ordinary travel, and be, as against the public. illegal. The condemning company insists that the street has been lawfully vacated, and the land is mere private property. Which is right in this contention need not now be decided, for the object of the present proceeding is merely to render the estate of the prosecutors, whatever it is, subject to the defendant's right to cross the land. In fixing the compensation which the prosecutors are to receive, the character of their title will, of course, be matter for consideration; but it does not at all affect the power of the defendant to acquire a right of crossing against that title. Laing v. Canal Co., 54 N. J. Law, 576, 578, 25 Atl. 409. The mode, and even the possibility, of enjoying the right may depend on the existence or nonexistence of the public easement, but as the prosecutors are, under this proceeding, to be compensated for any mode of crossing now lawful, or which may become lawful in the future (National Docks, etc.. Co. v. United Companies, 53 N. J. Law, 217. 21 Atl. 570), they can suffer no wrong by the condemnation.

The third objection is that no attempt was made to agree with the United New Jersey Railroad & Canal Company for the purchase of the right to cross. The statute authorizes

proceedings to condemn only when the company requiring the lands cannot agree with the owner or owners for the use or purchase thereof. In a general sense, the United Company is the owner of this land; but the land is in the possession and control of the Pennsylvania Railroad Company under a lease made in 1871 for 999 years. Evidently no agreement for the use or purchase of the land, no agreement which will secure to the applicant the use or purchase of the land, can be made with the United Company without the concurrence of the Pennsylvania Company; and the petition alleges and the evidence shows that the Pennsylvania Company will not concur. An attempt to agree with the United Company would therefore have been fruitless, and was not required.

It is further insisted by the prosecutors that their estates, as lessor and lessee, must. be condemned separately. The language of the general railroad law, defining the duty of the commissioners who are to make the appraisement in these proceedings, is the same as that before the court of appeals in Bright v. Platt, 32 N. J. Eq. 362, 370, and it was there considered to be the duty of the commissioners simply to ascertain what sum of money is an equivalent for the whole right which the condemning company is to acquire, and the whole injury which it is to inflict, leaving to other tribunals the distribution of the fund among the claimants of particular estates and interests. The present proceeding is in accordance with this view.

The last objection urged is that more land is taken than is reasonably necessary for a crossing. The strip of land described in the application is about 75 feet in width. The prosecutors contend that, as the present plan of the the defendant contemplates only two tracks, a width of 55 feet would be ample. But the statute under which the defendant is acting authorizes it to construct a railroad 100 feet wide, and within that limit it has power to provide for not only its present, but also its prospective, necessities. There is no evidence that in the condemnation now sought this power is being abused. Railway Co. v. Peet, 152 Pa. St. 488, 25 Atl. 612.

None of the objections appears to us to be well founded, and the proceedings under review are affirmed, with costs.

STATE ex rel. DAVIS et al. v. DAVIS et al. (Supreme Court of New Jersey. Oct. 11, 1894.) QUO WARRANTO — INFORMATION PLEA -SUFFI CIENCY-OFFICE-VACANCY-WHAT CONSTITUTES.

1. A plea to an information must, as a general rule, set out the title of the respondent.

2. To an information which set out that the act under which the respondents had been elected chosen freeholders had been repealed, and that their official terms had been terminated in express language by an act of the leg islature, a plea was filed, stating that the respondents were elected under the repealed statute, and their terms had not expired. The plea held bad.