of that proposition and the questions related to it. This railroad corporation was created subject to all the provisions of the law then in force. In Railroad Commissioner v. Grand Rapids & Indiana Ry. Co., 130 Mich. 248, 89 N. W. 967, Mr. Justice Montgomery, speaking for this court said: 本 * It cannot admit of doubt that corporations formed under an existing law will not be heard to question the rates fixed by the statute. They cannot avail themselves of the provisions of the law which give them the right to do business, and disregard those provisions which are onerous. This was the view taken by this court in Jackson & Suburban Traction Co. v. Commissioner of Railroads, 128 Mich. 164, 87 N. W. 133, and has the support of authority in other jurisdictions. Thomp. Corp. 8 5257, and cases Grand Rapids & Indiana Ry. Co. v. Osborn, 193 U. S. 17, 24 Sup. Ct. 310, 48 L. Ed. 598.

See 4 cited."

This disposes of all questions raised by the assignments of error necessary to be passed upon in the disposition of this case.

The judgment of the circuit court is affirmed.

ROBINSON v. HARMON.

(Supreme Court of Michigan. Sept. 15, 1908.) 1. RECEIVERS-ACTION AGAINST TO ENFORCE PENAL STATUTES.

Comp. Laws, § 6235, provides that every railroad shall, on due payment of freight legally authorized, transport property to and from regular stopping places, under penalty of $100 for each violation, to be recovered by the party aggrieved. The federal statutes provide that a receiver shall operate the property according to the requirements of the laws of the state where situated, in the same manner that the owner would be bound to do if in possession, and that every receiver may be sued in connection with the property held by him, without previous leave of the court appointing such receiver. Held, that section 6235, not being penal, is enforceable against the receiver of a railroad. 2. STATUTES-PENAL STATUTES.

Comp. Laws, § 6235, providing that every railroad shall, on due payment of freight legally authorized, transport property to and from regulation stopping places, under penalty of $100 for each violation, to be recovered by the party aggrieved, is not a penal statute, strictly speaking, but is remedial in its effect.

Error to Circuit Court, Berrien County; Orville W. Coolidge, Judge.

Action by John Robinson against Judson Harmon, receiver. Judgment for plaintiff on a directed verdict, and defendant brings erAffirmed.

ror.

Argued before MONTGOMERY, P. J., and OSTRANDER, HOOKER, MOORE, and McALVAY, JJ.

Stevens, McPherson & Bills (Victor M. Gore, of counsel), for appellant. G. M. Valentine and E. B. Valentine, for appellee. John E. Bird, Atty. Gen., and George S. Law, Asst. Atty. Gen., for the State.

MCALVAY, J. This case involves the same transactions and the construction of the same

statute as in the preceding case. The decision in that case (117 N. W. 661) is controlling in this upon all the questions therein passed upon. The cases were heard and submitted together, and are designated in the records as the "Overcharge Case" and the "Penalty Case." Our disposition of the Overcharge Case leaves but one question to be considered in this, the Penalty Case.

Section 6235, Comp. Laws, provides that every such railroad corporation shall, on the due payment of freight legally authorized, transport property to and from regular stopping places established therefor, "under penalty, for each violation of this provision, of one hundred dollars, to be recovered by the party aggrieved, in an action of debt against such corporation." The contention is that the defendant receiver is not liable for the penalty imposed by the statute upon railroad corporations, and that the trial court was in error in directing a verdict for plaintiff and refusing to direct a verdict for defendant. The federal statutes provide that a receiver in possession shall manage and operate the property in charge "according to the requirements of the valid laws of the state where situated, in the same manner that the owner or possessor would be bound to do if in possession"; also "that every receiver may be sued in respect of any act or transaction of his in carrying out the business connected with such property without the previous leave of the court in which such receiver * was appointed." It is not disputed but that under this federal statute civil suits for damages may be maintained against receivers arising from the management or operation of the road in charge, in violation of the state laws. The contention is that "a receiver appointed by a court of chancery and operating a railroad under an order of the court is not liable for a penalty imposed by a statute upon railroad companies and corporations."

Defendant relies upon the case of United States v. Harris, 177 U. S. 305, 20 Sup. Ct. 609, 44 L. Ed. 780. This was an action brought against the receiver of a railroad company to recover a penalty for confining certain animals without food and water, contrary to the provisions of a federal statute. The penal provision is as follows: "Sec. 4388. Any company, owner or custodian of such animals, who knowingly and willfully fails to comply with the provisions of the two preceding sections shall, for every such failure, be liable for and forfeit and pay a penalty of not less than one hundred nor more than five hundred dollars. * **" U. S. Comp. St. 1901, p. 2996. The section following provides that such penalty shall be recovered by civil action in the name of the United States. This was purely a penal action. The penalty was solely for purposes of punishment. The case was disposed of upon the strict construction of this penal statute, the court holding that the words of the statute,

*

*

"any company, owner or custodian of such animals," in the section quoted, did not include receivers. The court said: "It is claimed that the effect of such legislation [referring to the statutes requiring receivers to manage and operate railroads in their charge according to the valid laws of the state where situated] is to place receivers upon the same plane with railway companies as respects their liability to be sued for acts done while operating a railroad. It may be conceded that it was the intention of Congress to subject receivers of railroad companies appointed such by courts of the United States to the valid laws and regulations of the states and of the United States, whose object is to promote the safety, comfort, and convenience of the traveling public. But we are not now concerned with the general intention of Congress, but with its special intention, manifested in the enactments under which this suit was brought.

* Can

we fairly bring receivers within the penal clause by reasoning from a supposed or an apparent motive in Congress in passing the act?

* It is not permitted to courts in this class of cases to attribute inadvertence or oversight to the Legislature when enumerating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words and phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute."

We think that the case at bar is distinguishable from United States v. Harris, supra, in that it is not a penal statute, strictly speaking, but is remedial in its effect. An examination of the original record and briefs in the Harris Case shows that the distinction between the two classes of cases was recognized. The right of action in the case at bar is limited to the person injured. The act complained of is not made a crime, and the statute is no more penal in its nature than those which provide for the doubling of damages in case of stock injured by railroad corporations which have neglected to properly fence their rights of way. Such statutes have been enforced against receivers. Central Trust Co. v. Wabash, etc., Ry. Co. (C. C.) 26 Fed. 12. The following is taken from the brief for the receivers in the Harris Case: "It is an old and unshaken rule in the construction of statutes that the intention of a remedial statute will always prevail over the literal sense of its terms, and therefore when the expression is special or particular, but the reason is general, the expression shall be deemed general." And again: "It may be stated in general terms that any statute which gives a remedy or means of redress where none existed before, or which creates a right of action in an individual, or a particular class of individuals, is remedial within the meaning of this rule. Black on Interpretation of Statutes, 307, 308."

This is the view taken by this court of this

statute under consideration, and we hold that the case at bar is not within the rule laid down in the Harris Case, supra. It follows, therefore, that the circuit court was not in error in instructing a verdict for plaintiff. The judgment is affirmed.

WEBSTER v. SHRINE TEMPLE CO. et al. (Supreme Court of Iowa. Sept. 22, 1908.) 1. ADVERSE POSSESSION-HOSTILE CHARACTER OF POSSESSION.

Possession held by a lot owner to a fence or building built by the owner of adjoining property, without any intention to assert title beyond the true boundary, is not adverse as to any part which may lie beyond such boundary, and without more, never ripens into title.

[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Adverse Possession, § 378.] 2. BOUNDARIES-ACTION TO DETERMine-BurDEN OF PROOF.

While the acquiescence of both the owners of adjoining property for 10 years in a certain line as the boundary between them will establish such boundary, the burden rests upon the one claiming such line, where it differs from the true boundary, to prove that it was recognized by both parties as the true boundary.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action to determine a disputed boundary line and quiet title. Decree for defendants, and plaintiff appeals. Affirmed.

Sullivan & Sullivan and Dunshee & Dorn, for appellant. Read & Read and C. L. Nourse, for appellees.

WEAVER, J. The plaintiff is the owner of the south half of lot 1 in block 4 in Holcomb's addition to Des Moines. The defendant Shrine Temple Company is in possession of the north half of said lot under a contract of purchase from the First Methodist Episcopal Church of Des Moines, which for many years prior to April, 1905, had occupied and used it as a site for its church building and parsonage. The lot as platted has a frontage of 66 feet and depth of 132 feet, but the evidence tends to show that in actual measurement it is somewhat in excess of the width named. The deeds in the line of the plaintiff's title describe her property as the south half of the lot, and in the line of the defendants' title as the north half thereof, and in neither case is the width of the property conveyed expressly mentioned. Plaintiff and her grantors have for many years occupied the south half of the lot as residence property. The parsonage building on the north half stands at or near the south line of the church property, and for some years a fence has extended from the east front of the lot to a point near the southeast corner of the parsonage building, and from at or near the southwest corner of said building to the west end of the lot. It is claimed by the plaintiff that these fences and the eaves line of the parsonage mark the division between the two tracts, and this division or

boundary she claims has been established and determined by adverse possession and by the acquiescence of all parties in interest for more than 10 years. The trial court found against plaintiff on both propositions, and she appeals.

1. Cases of this general character have been so frequently before the courts, and the law governing them is so well settled, that we do not deem it proper to consume the time or space to review them. The only debatable propositions presented by the appeal are those of fact, and nothing is to be gained by an extended statement of the testimony. We have first to inquire whether there is any showing of facts on which the court can uphold the claim of adverse possession. An examination of the record leads us to agree with the trial court that this inquiry must be answered in the negative. The plaintiff, testifying as a witness, expressly admits that she never at any time intended to make any claim to the property other than such as belonged to her, and that she claimed up to the alleged boundary because she believed and supposed it to be the correct line. Under the rule established in this state, possession thus taken and held by mistake, and without intention to assert title beyond the true boundary, is not adverse, and, without more, never ripens into title. See Miller v. Mills County, 111 Iowa, 654, 82 N. W. 1038, and cases there cited. Moreover, the conduct of the plaintiff on the one hand and the church authorities on the other, as developed in the testimony, tends strongly to rebut the theory that plaintiff and her grantors made any claim of right or title to the property, except so much thereof as was included within the true boundaries of the tract described in their deeds.

2. The only other question to be considered is whether the plaintiff has shown such acquiescence in the line marked by the fences and the eaves line of the parsonage as will entitle her to a decree under our statute. For the purposes of this case it may be admitted that, if the plaintiff has succeeded in showing that the owners of the property on both sides have recognized and acquiesced in the line to which she now claims for a period of 10 years or more, she is entitled to the relief demanded. But in our opinion the evidence does not bear out her contention. The fences to the east and to the west of the parsonage were not constructed to coincide with the extension of the eaves line which plaintiff claims marks the boundary. At the southeast corner of the parsonage there was an open passageway, and at the southwest corner a gateway, giving the occupant of the north half of the lot entrance to the strip now in dispute. The parsonage, which was originally built further to the north, was later moved to the south and so located as to project southward beyond the line of the fence. During the years since the fence was built the occupants of the north half of the

lot appear to have used and claimed the right to use the disputed strip, or parts thereof, and have exercised that right. I. N. Webster, who at one time held the title to the south half and is the principal witness for plaintiff, being asked whether persons representing the church during the last 20 or 25 years came over on the south side of the fence to paint and make repairs, replied: "Yes, sir; they used it just as though it was theirs. I have been furnishing a lot there for the last 25 years." Other indications are not wanting that the fence was mutually regarded as a merely tentative line; the location of the actual line having never been definitely ascertained. The burden was upon the plaintiff to show the necessary acquiescence, and we are satisfied that in this she has failed.

The surveys made and shown in evidence indicate that the true line is at the point fixed by the trial court, and the decree appealed from is affirmed.

Code, § 1622, declaring that, if the indebtedness of any corporation shall exceed the amount permitted by law, the directors "knowingly consenting thereto shall be personally" liable to the creditors of the corporation, does not permit recovery for mere inattention or negligence of the directors, but only where consent is given to indebtedness with actual knowledge that the limit has been reached or is thereby exceeded. Appeal from District Court, Polk County; W. H. McHenry, Judge.

"Not to be officially reported."

The opinion states the case. Affirmed.

Parker, Hewitt & Wright, Dunshee & Dorn, N. T. Guernsey, Charles S. Maxwell, Grace Ballantyne, and Dale & Harvison, for appellants. Read & Read, J. B. Weaver, Jr., and C. L. Nourse, for appellees.

PER CURIAM. The defendants Marquardt and Pearsall were directors and officers of the McCormick Manufacturing Company, a corporation doing business in the city of Des Moines. By its articles of incorporation the amount of the permissible indebtedness of the corporation at any one time was limited to 50 per cent. of its capital stock. The investment proving unprofitable, the corporation was placed in the hands of a receiver, who wound up its business. The indebtedness outstanding at the time the receivership proceedings were begun largely exceeded the limit above-mentioned. Indeed, it exceeded the full amount of the authorized capital stock. The plaintiffs herein bring this action in equity under Code, § 1622, seeking to hold the defendants personally liable for their claims on the theory that said de

require artificial means in holding them together, whether defendant applied the bandages during the first week, or not until the third week, and whether he exercised proper care to exclude the soft parts from between the bones when drawn together, and whether the bandages could have been worn had he done so, were all issues of fact raised by the evidence, and necessarily presented the sole inquiry as to whether defendant had exercised the degree of care and skill exacted by law in the treatment of the injury. The issue was for the jury.

2. That plaintiff had not fully recovered at the time of the trial, which occurred a little more than a year subsequent to her confinement, is certain; but, aside from a hitch in her walk, none of her difficulties are traced by the record to any neglect on the part of defendant. If she suffered from incontinency of urine, this was not shown to have resulted from his treatment. If she could not lift things, or walk far, or tired quickly, her weakness was not proven to have been caused by anything the defendant did. According to the physician who successfully treated her the union of the pubic bones was strong, but not perfect. The disk at the joint had thickened, which caused a kind of side movement, a kind of little hitch, and had no other effect on the health or bodily strength. No one ventured an opinion that this would be permanent. She was required to continue on her back with the bandages on about a month, but was not shown to have suffered, save from the weariness of her position. The jury might have found that she was confined to her bed this much longer than she would have been had bandages been properly applied, and that she may not have gotten about as soon after being able to sit up, and possibly the jury also might have allowed for the pain endured when the bandages were unsuccessfully applied for less than an hour each time, though this is doubtful. These matters furnish the only basis for the verdict and judgment of $5,000 against this defendant. The amount allowed was challenged in the motion for new trial as excessive, but this was denied by the court in overruling the motion. True, the judge declared, in an opinion delivered at the time, that the verdict was "grossly excessive," and seems to have thought that, as the case would come to this court, it was not incumbent on the trial court to pass on the point thus raised, but that it could as well leave the matter for this court to settle. Of course, the ruling on the motion as entered of record is decisive of what was done. Indeed, but for that ruling, the charge that the verdict was excessive could not be made the subject of review; for in actions at law our jurisdiction is limited to the correction of errors. We know of no avenue in the administration of "justice according to law" by which a ruling which is to be reviewed in this court may be successfully evaded by the

trial court. The litigant, as well as this court, is entitled, under the law, to its best judgment upon every question pertinent to the issues which may be raised, and only on such ruling can error be assigned. If we should accept the finding of its opinion that the verdict was "grossly excessive," it necessarily follows that the court erred in overruling the motion for new trial. Notwithstanding the difficulties experienced in measuring damages in such a case, it is apparent that the verdict is several times what it should have been under the evidence adduced. Neither party has suggested a remittitur, and we are inclined to regard the amount allowed so excessive as to leave no inference open save that the finding was the result of passion and prejudice.

Because of the error in not awarding a new trial, the judgment is reversed.

INDEPENDENT SCHOOL DIST. OF FAIRVIEW v. INDEPENDENT SCHOOL DIST. OF BURLINGTON et al. (Supreme Court of Iowa. Sept. 22, 1908.) 1. SCHOOLS AND SCHOOL DISTRICTS-STATUTES. Acts 19th Gen. Assem. p. 111, c. 118, declaring that all the territory of an incorporated city, whether included within the original incorporation or afterwards attached, shall be a part of the independent school district of said city, is not given retroactive force, when applied to such part of the territory of a school district, originally wholly outside a city, as was brought within the city limits prior to enactment of the statute; the enlargement of the city school district being operative only from the date of the statute.

2. SAME CONSTITUTIONAL LAW RIGHTS.

VESTED

Acts 19th Gen. Assem. p. 111, c. 118, declaring that all the territory of an incorporated city shall be a part of the independent school district of said city, is not unconstitutional as affecting vested rights of another school district, part of the territory of which had been brought within the limits of the city; school districts, like other municipal corporations, being creatures of the legislative will.

Appeal from District Court, Des Moines County; James D. Smyth, Judge.

Action in equity for an accounting and other relief. Demurrer to the petition being sustained, the plaintiff appeals. Affirmed.

Seerley & Clark, for appellant. A. M. Antrobus, for appellees.

WEAVER, J. The plaintiff and the principal defendant are independent school districts, and were both organized prior to the year 1881. The defendant district, as originally organized, comprised the territory within the city of Burlington, while the plaintiff district was organized of four sections of land lying immediately outside of said city. In 1881 the city by appropriate proceedings extended its boundaries in such manner as to include a part of the independent district of Fairview. On March 16, 1882, the Legislature of the state adopted a statute providing