to assert ownership and possession of the ant to Parker, the judgment is reversed, and property withheld by the defendant. the cause remanded. All concur, except WOODSON, J., not sitting.

It is undoubtedly the fact that there was other testimony in the record from which the jury, if they disbelieved defendant's version, might well have found that his possession and use of the farm and his acts of

ownership in respect thereto, and his appropriation of its products, were not antagonistic to the title of his grantee. And there was also other evidence in the record which would have authorized the jury to find that no notice, express or implied, was given by the defendant to Parker that the possession

was not thereafter to be maintained in subordination to his grant. But the jury were entitled to choose which of these two deductions of the facts they would credit, since both were within the legal compass of allowable inferences of fact. We accordingly rule there was no error in submitting this case to the jury.

On Motion to Modify Opinion. GRAVES, P. J. We are asked to modify reversed and remanded with directions to enour opinion so that this cause should be ter a judgment for plaintiff. We are also asked to so modify our opinion or to hold that under the facts in this case the defendant had failed to make out the defense of adverse possession for the period of 10 years.

This case from the start has given me much trouble. I was impressed that our Brother BOND had worked it out properly and so concurred in his opinion. We have been confronted with a vigorous motion to modify our opinion in the particulars stated

above.

[2, 3] I am convinced that our Brother BOND has properly said that even a fraudu

possession. In such case there must not only be clear evidence of an adverse holding, but there must be clear evidence of an adverse claim of the title itself. In this case I fear the defendant's admissions cut him out of his claim of adverse possession. It is admitted by him that the land was conveyed to Parker in 1883 to defeat the claim of Gaar, Scott & Co. When on the stand defendant thus testified.

[1] II. It is insisted for appellant that those instructions given on behalf of defend-lent grantee may reacquire title by adverse ant, which permitted the jury to find against the plaintiff upon the theory eo instante with the making of this deed to Parker an adverse possession was begun against him, were erroneous. This assignment is clearly well taken under the evidence in this case. The jury had before them the depositions of the defendant and his grantee, Parker, taken shortly after the making of the deed. If the statements then made by those witnesses were true, the sale was bona fide and the consideration was a valuable one, and hence the retention of possession by the grantor under the well-settled law was presumptively in accord with the conveyance of the land and was not adverse to the grantee and could not begin so to be until notice was thereafter given him, either expressly or impliedly, that the possession was intended to be adverse. For, if Parker was a bona fide purchaser, he could not be deprived of his title to the land by the retention of possession by by grantor for any length of time whatever, unless sufficient notice was given him of the cessation of the presumed friendly possession and the beginning of a hostile possession. McCune v. Goodwillie, 204 Mo. loc. cit. 339, 102 S. W. 997; Mo. Lbr. & Min. Co. v. Jewell, 200 Mo. loc. cit. 715, 98 S. W. 578.

On this point, the fault in some of the instructions for defendant is accurately stated in next to the last paragraph of appellant's brief, to wit:

"All of defendant's instructions overlook the rule that the grantor's possession immediately after a deed conveying full title is in subservience to the grantee, and that before adverse possession can begin there must be a change in the character of the possession brought home to the knowledge of the grantee, or so notorious that he must be presumed to have known it."

For these defects in the instructions of defendant, under the phase of the case presented by the evidence tending to show a ver

Did

"Q. It was your understanding when you conveyed it to Parker it was to remain in his hands until you did force terms with Gaar, Scott & Co.? A. Until I could compromise; yes, sir. Q. Now, will you say that you intended for Parker to hold this title until you got a compromise with Gaar, Scott & Co.? A. Until I got that straightened up. Q. That was your intention? A. Yes, sir. Q. Then Parker has since then continued to hold the title? you go to him and demand it? A. Went to him for a settlement to square up. He said would come out in a few days and fix everything up. Q. That was after you settled with Gaar, Scott & Co.? A. Yes, sir; I believe it was; yes, sir. to it that Parker might hold the title from 1883, Q. Then it was your purpose and you consented the time you made the deed to him, until you did settle with Gaar, Scott & Co.? A. Yes, sir. I thought when I was selling the land to Garrick I was going to settle right there, but didn't get the money. Q. You continued that relation between you and Parker until you settled with Gaar, Scott & Co.? A. Nothing was said bebeing done? A. Yes, sir." tween us about it. Q. You consented to that

It further appears in the record that this Gaar, Scott & Co. claim was not settled until December 23, 1905. The claim was first reduced to judgment in the federal court, and then in 1905 suit was brought upon that judgment in the circuit court of Jasper county, and judgment entered thereon for $1,773. December 23d, this judgment was assigned to the wife for $200. Under all the evidence, even if the assignment of the judgment to the wife was a settlement of the claim, there was no settlement of the claim until De

DAYLIGHT INV. CO. v. ST. LOUIS MER-line of Collins. Each rented for $13 a month. CHANTS' BRIDGE TERMINAL RY.

(Supreme Court of Missouri, Division No. 1. operate a switch or branch track leading

and the distances mentioned in the evidence | 12 feet in width to 3 feet, which materially shortly after the time the passage of the damages its property. The north rail of the ordinance mentioned and after the defendant spur track crosses the property line on the railway company had laid the spur track west side of Collins street at a point about mentioned in the ordinance, which is indicat- 18 feet south of plaintiff's south line and ed by the red lines appearing upon said plat: between 85 and 95 feet north of the north That part of the city The red lines referred to in the state-line of Cass avenue. ment of the case are indicated by the in the vicinity of Collins street is devoted heavy black lines. almost exclusively to railroads, manufactories, and warehouse purposes.

J

The defendant at the time of the institution of this suit had been operating cars over this spur track for some 18 to 20 years, which connects the freight depot of the Louisville & Nashville Railway Company, situated on the block 690, the one lying just south of the block on which plaintiff's property is located, which cost about $700,000. The plaintiff nor none of its grantors ever objected to the laying of said track or the operation of cars thereon until this suit was brought.

The Louisville & Nashville Railway Company is engaged in interstate commerce, and it built said depot believing and relying upon the validity of said ordinance and the agree ment of the defendant railway company to carry its freight and passengers from said depot to East St. Louis, the western terminus of its road. The latter railway has no other way to reach its said freighthouse, save over the tracks of the defendant railway company.

Kinealy & Kinealy, of St. Louis, for appellant. T. M. Pierce, G. T. Priest, S. P. McChesney, and H. R. Small, all of St. Louis, for respondent St. Louis Merchants' Bridge Terminal Ry. Co. William E. Baird and Everett Paul Griffin, both of St. Louis, for respondent City of St. Louis.

WOODSON, J. (after stating the facts as above). [1, 2] I. There are many legal propositions presented and discussed by counsel in brief and oral argument, but when the case is reduced to its last analysis there remains but one to be decided, and that is: What does the word "diverging" mean as used in the ordinance mentioned, authorizing the defendant railway company to lay its tracks in the streets mentioned. The word "diverge" means:

"To extend from a common point in different directions; to lead away from one another; to tend to spread apart; to turn aside or deviate (as from a given direction); as, rays of light diverge as they proceed from the sun; the path diverges from the main road;-opposed to "converge.' Webster.

"Diverging" is the present participle of the verb "diverge," modifying the noun "track," which means the track now at this common point may separate, turn, or diverge from the line of the right of way previously described in the ordinance.

Notwithstanding this simple definition of the word "diverging," counsel for the respective parties to this suit give to it different

lins street on account of the presence of the two other railroad tracks located in said street. Had the defendant company extended its tracks west on Florida street a distance sufficient to have enabled it to lay its tracks parallel with Collins street, then the curve at the intersection of the Florida and Collins streets would have been so sharp or acute it would have been almost an impossibility for the company to have operated its trains over it;. and the same curve, probably more acute, would have existed at the point where it would have entered block 245, and practically the same conditions would have existed at the point where the tracks would have entered block 690. Trains cannot turn corners like horses and buggies, nor like street cars; they must have more obtuse angles or curves; otherwise the engines and cars will jump the track, block commerce, obstruct streets, destroy property, and endanger life and limb.

is used in said ordinance. But it is just to its tracks parallel with the west line of Colboth to state that neither differ upon the principle elements which constitute the meaning of the word, but differ as to where the common point of the divergence is located, which the ordinance fixes. Counsel for plaintiff insist that from the plain language of the ordinance it grants to the defendant railway company a right of way in a straight line along, in, and parallel with, the west line of Collins street until it reacnes a point about 80 feet north of Cass avenue, and from that point the divergence should begin; while counsel for defendants contend that there is no language contained in the ordinance indicating in what direction the tracks should pass upon and along Collins street, and for that reason it had the legal right, under the supervision and with the approval of the city engineer (the ordinance provides that they should be laid under his supervision and with his approval), to lay its tracks in any part of Collins street until it reached a point about 80 feet north of Cass avenue, and from that point it was to diverge from the street into the southeast quarter of said block 245, and from there across Cass avenue and on to block 690; and, so believing that such was the right of way granted to it by the ordinance, the defendant railway company, under the supervision and with the approval of the city engineer, built the railroad tracks according to said grant, and when it reached a point between 85 and 95 feet north of Cass avenue, which is within the spirit and meaning of the ordinance, diverged the track from Collins street onto the southeast quarter of block 245, and from there across Cass avenue, and thence on to block 690, where the depot is located.

During the oral argument of the case I felt quite positive that the insistence of counsel for the plaintiff was sound, and that the track, according to the provisions of the ordinance, should have been laid parallel with the west line of Collins street from its intersection with south line of Florida, and thence south to a point about 80 feet north of Cass avenue, and from that point the tracks should have begun to diverge and pass onto said block 245; but, after a careful reading of the ordinance in connection with the plats offered in evidence by both parties, and applying the ordinance to the physical conditions as they then existed, I have changed my mind. If the language of the ordinance alone should be considered, then I would have no hesitancy in saying that the contention of counsel for plaintiff was correct; but in construing an ordinance the physical conditions existing and the object intended to be accomplished by its enactment should not be lost sight of. An inspection of the plats filed discloses the fact that it would have been almost a physical impossibility for the defendant railway company to have constructed

For these reasons, as before stated, I have changed my opinion as to the meaning of the ordinance, and, all things considered, I believe that the position of counsel for plaintiff is untenable, and that the defendants' construction of the ordinance is correct.

But, independent of this, all of my learned Associates from the first have been of the unalterable opinion that defendants constructed the tracks in strict compliance with the provisions of the ordinance, and that the circuit court properly denied the injunction prayed for.

For the reasons stated, the judgment of the circuit court is affirmed. All concur.

STATE ex rel. DONIPHAN STATE BANK v.
HARRIS et al. (No. 18040.)
(Supreme Court of Missouri, Division No. 1.
April 21, 1915.)

1. MANDAMUS 23-COUNTY DEPOSITARIES
-SELECTION.

Where relator bank, which had submitted the highest bid for selection as county deposiby mandamus to compel its own selection, the tary, upon appointment of another bank, sought only capacity in which it could sue was as a taxpayer, and not as an unsuccessful bidder.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 55-58; Dec. Dig. 23.] 2. DEPOSITARIES 6-SELECTION OF COUNTY

DEPOSITARY-DISCRETION OF COUNTY Court.

The statute relating to the selection of county depositaries by the county court, authorizing it to "reject any and all bids," vests that court with discretion.

Cent. Dig. § 20; Dec. Dig. 6.]
[Ed. Note. For other cases, see Depositaries,
3. MANDAMUS 72-ABUSE OF DISCRETION.

It being otherwise a proper remedy, mandamus will lie to correct the action of an officer so arbitrary or so manifestly unjust as to amount to no exercise of the discretion vested

in him.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. § 134; Dec. Dig. 72.]

4. MANDAMUS 100-RIGHT OF RELATORDISCRETION OF COURT.

Where a bank, unsuccessful candidate for county depositary, submitted a bid but slightly higher than that of another unsuccessful bank, and where such other unsuccessful candidate was a proper applicant, so far as its solvency and ability to comply with the law were concerned, the refusal of the county court to appoint the relator, the highest bidding bank, was not open to attack as such an unreasonable exercise of discretion by the court as to justify the issuance of a peremptory writ of mandamus, in view of the discretion of the issuing court, which will be exercised only to correct a clear infringement of right.

statute authorizes the county court to "reject any and all bids," thus vesting that tribunal with a discretion (Reagan v. County Court, 226 Mo. 79, 125 S. W. 1140) which is not subject to control or revision by mandamus without gravest reason.

[3] In case it clearly appears that in dealing with a matter committed to his discretion an officer has acted so arbitrarily or with such manifest injustice that it is tantamount to no exercise of the discretion vested in him, mandamus will lie to correct the abuse, if it is otherwise a proper remedy. State ex

[Ed. Note. For other cases, see Mandamus, rel. v. Jones, 155 Mo. loc. cit. 576, 56 S. W. Cent. Dig. §§ 205-210; Dec. Dig. 100.]

Appeal from Circuit Court, Ripley County; J. P. Foard, Judge.

Petition for mandamus, on the relation of the Doniphan State Bank, against Lafranier Harris and others. Judgment for defendants, and relator appeals. Affirmed.

C.

Sheppard & Green, of Poplar Bluff, and
C. B. Butler, of Doniphan, for appellant.
O. Borth, of Doniphan, and Abington & Phil-
lips, of Poplar Bluff, for respondents.

BLAIR, J. This is a proceeding by mandamus, instituted in the circuit court of Ripley county, to compel the county court of that county to select relator as the county depositary. There was judgment for respondents, and relator appealed.

307.

That

[4] In mandamus proceedings there is always a discretion vested in the court which is called upon to determine whether the peremptory writ shall go (State ex rel. v. Gibson, 187 Mo. loc. cit. 555, 86 S. W. 177), and it is settled law that in cases of doubtful right it will not be granted (State ex rel. v. McIntosh, 205 Mo. loc. cit. 635, 103 S. W. 1071). Unless relator, in this case, has shown in itself a clear legal right to the specific relief demanded, the action of the trial court in denying the peremptory writ must be affirmed. State ex rel. v. McIntosh, 205 Mo. loc. cit. 610, 103 S. W. 1078. Now, without regard to the effect of the general finding in the trial court against relator on the facts in this record, there is one other thing which precludes a reversal. The interest of the public, as above stated, is the basis of this proceeding. interest is to have the best bid, in all the circumstances, approved, and it is through the county court and the exercise of its discretion that this result is sought to be obtained. Section 3805, R. S. 1909. The Bank of Naylor is not a party here. There is evidence in the record, however, ample to afford a basis for awarding the county moneys to it, so far as the question of its solvency and ability to comply with the law are concerned. There is evidence to the contrary, though little of consequence. On the record as it stands, an approval of its bid by the county court could not have been characterized as an arbitrary or reasonless exercise of discretion-or refusal to exercise discretion. That being true, it does not appear from the record that relator has shown a clear legal right to the specific relief prayed. Let it be conceded, for argument's sake, that it is shown that the bid of the Ripley County Bank should not [1] Relator has no right to maintain this have been approved. That does not aid reproceeding simply in its capacity as an un-lator in this case, since the real purpose of successful bidder (Anderson et al. v. Public this proceeding is to secure a writ commandSchools, 122 Mo. 61, 27 S. W. 610, 26 L. R. A. ing the approval of its own bid. In view of 707; State ex rel. v. McGrath, 91 Mo. 386, 3 S. W. 846), but must maintain it, if at all, in its role as a taxpayer in Ripley county. In that capacity it represents the public, and it is the interest of the public which is to be considered, not that of relator as a bidder for the funds.

There was much evidence pro and con, but a brief statement is sufficient to disclose a ground upon which the judgment must be affirmed. The county court advertised for bids for the county, school, and drainage district moneys, and three bidders responded, relator, the respondent bank, and the Bank of Naylor. The latter is not a party to this proceeding. The Ripley County Bank, respondent here, bid 2.5 per cent. per annum on the county and public school funds and bid 3 per cent. on the drainage ditch funds, and, in addition, offered to act as fiscal agent for the county, free of charge, and maintain county warrants (then at discount) at par. The Bank of Naylor bid 6.01 per cent. per annum on the drainage ditch funds and 5.85 per cent. per annum on the county and public school funds. Relator bid 6.125 per cent. per annum on the county funds, including the public school funds, and bid 5.87 per cent. per annum on the drainage ditch funds.

the slight discrepancy between the bids of the Naylor Bank and relator, the county court might have permitted relatively slight circumstances to turn the scale either way without necessarily subjecting itself to control by mandamus. As between the two, it cannot be said that relator is entitled to [2] In selecting the county depositary, the have its bid accepted as a matter of strict