exercise continuing oversight and care. The court therefore correctly instructed the jury that, if the accident and resultant injury were occasioned by reason of a defect in this appliance, a prima facie case of negligence was established, and it was incumbent upon appellant to produce evidence which would excuse such apparent failure of duty.

We have re-examined all the questions raised by the petition for a rehearing, and find no reason to depart from the holdings announced in the original opinion.

Appellant's petition for a rehearing is therefore overruled.

INDIANA SUPREME COURT.

FORT

fastened, and there being no evidence that defendant's employees raised the window, plaintiff could not recover." The case of Strembel v. Brooklyn Heights R. Co. 110 App. Div. 23, 96 N. Y. Supp. 903, is to the same effect, in which Jenks, J., said: "The fall of the window cannot be attributed to defective construction any more than to the failure of the last passenger who raised it to put it all the way up, so as to have it engage the catch, or to see that it did engage the catch firmly." The case of Goss v. Northern P. R. Co. 48 Or. 439, 87 Pac. 149, was ruled by the same principle, and the court said, furthermore, that "the evidence given on the trial was so clear and convincing that the accident was not due to the negligence charged in the complaint as to completely overcome any presumption which may have risen from the mere happening of the accident." An approved general statement of the application of the doctrine res ipsa loquitur is found in the case of Price v. St. Louis, I. M. & S. R. Co. FORT WAYNE & WABASH RAILWAY 75 Ark. 479, 112 Am. St. Rep. 79, 88 S. W. 575, cited in appellant's brief, and is as follows: "The true rule would seem to be that when the injury and circumstances attending it are so unusual and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road over which the company has entire control, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of any. thing to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury."

It is manifest, even from appellant's contentions, that the unexplained falling of the window while crossing the bridge was not sufficient to charge appellee with knowledge that the catch was defective, and subject her to an imputation of contributory negligence in thereafter using the window. Her injury was not the result of the protruding arm coming in contact with an outside object near to the track, as was the case in Indianapolis & C. R. Co. v. Rutherford, supra. Appellee had a right to hoist the window for any proper purpose, and to

assume that the catch with which it was

equipped was suitable and sufficient to hold it when latched. The evidence above set out affirmatively shows that she raised the window until the latch caught, and, assuming the truth of this statement, the fall could only have occurred because the latch was defective and insufficient in some respect. This was an appliance of the car over which the appellant was required to

WAYNE & SOUTHWESTERN TRACTION COMPANY, Appt.,

v.

COMPANY et al.

(Ind., 83 N. E. 665.)

Eminent domain-right to award.

1. The owner of land condemned for public use at the time the instrument of appropriation is filed, and not one taking a conveyance thereof prior to publication of entitled to the compensation, under a stat notice for assessment of the damages, is ute providing for the appropriation of land needed for public use which declares that the corporation shall deposit the description of

Case Note. Eminent domain; when title passes in eminent domain proceedings.

Usually a considerable length of time elapses between the beginning of eminentdomain proceedings and their final close. During this time many changes may take place in the ownership of the property sought to be condemned, in the value of the property, and in its desirability for the intended purposes, giving rise to questions, the proper solution of which involves the determination of the precise time at which title passes from the landowner to the state or other condemning body.

Most states have constitutional provisions forbidding the taking of private property without just compensation, or without just compensation being first paid, or first paid or secured, and the like. It may be laid down as a universal rule that, under Constitutions forbidding the taking of private property without just compensation being first made, actual payment or tender of the amount of the final award is a condition precedent to the devesting of the title of the owner to his land or easemen and its vesting in the condemning party. New Orleans & S. R. Co. v. Jones, 68 Ala.

the rights and interests intended to be appropriated, and such land shall belong to such corporation by making or tendering assessing damages for a right of way. payment, although provision is also made for assessing damages in case of disagree ment of the parties.

the street railways act, on March 29, 1901,, deed is made for the express purpose filed its instrument of appropriation with of aiding said grantee in constructing, the clerk of the Huntington circuit court maintaining, and operating a railroad over, for the appropriation of certain real estate upon, and along the line of said canal, and belonging to Aaron Dukes, the same being for no other purpose whatever." Upon the that part of the towpath of the Wabash maturity of the publication, appellant pre& Erie canal, lying between the town of sented to the judge of the Huntington Roanoke and the city of Huntington, in circuit court its petition for the appointHuntington county. Dukes at the time re- ment of appraisers to assess the damage. sided in the city of Peru, and, not being a Dukes appeared and filed his statement and resident of the county of Huntington, objections to the appointment of appraisers, notice of the filing of said instrument of reciting therein that, prior to April 1, 1901, appropriation was given by publication, the he was the owner in fee of the lands defirst of which was published April 2, 1901. scribed in appellant's instrument of apOn April 1, 1901, Dukes and wife conveyed propriation, but on that day he and his to appellee the Ft. Wayne & Wabash Rail- wife conveyed the same to the Ft. Wayne road Company, by quitclaim deed for the & Wabash Railway Company, appellee, expressed consideration of $1, the canal since which time they had had no personal property, embracing the portion described interest in the controversy, and said comin appellant's appropriation proceeding. pany is the owner of said real estate, and The deed contains this provision: "This is a necessary party to this proceeding, and that case did not demand a more precise, v. Hug, 44 Mo. 116; Chicago & N. W. R. Co. ruling. v. Chicago, 148 Ill. 141, 35 N. E. 881; Rice v. Chicago, 57 Ill. App. 558.

Some of these cases hold that, although title does not pass until payment, yet the state may constitutionally allow a temporary occupation and use of the premises pending condemnation proceedings. Kennedy v. Indianapolis; Rubottom v. M'Clure; Hankins v. Lawrence; Cushman v. Smith; and Rexford v. Knight,-supra.

To the same effect, Fox v. Western P. R. Co. supra, and Cherokee Nation v. Southern Kansas R. Co. 135 U. S. 641, 34 L. ed. 295, 10 Sup. Ct. Rep. 965, if security is given. Contra, even if security is given, Sanborn v. Belden, 51 Cal. 266.

But, if payment is not made within a reasonable time after the award, the occupation becomes a trespass ab initio. Cushman v. Smith: Nichols v. Somerset & K. R. Co.; and Hankins v. Lawrence (semble), supra.

So, also, under statutes and charters providing that, upon payment, or upon payment or deposit, of the compensation awarded, the party seeking condemnation may take possession and appropriate the land, title does not pass until such payment or deposit is made. Baltimore & S. R. Co. v. Nesbit, 10 How. 395, 13 L. ed. 469; Stacey v. Vermont C. R. Co. 27 Vt. 39: Cherokee Nation v. Southern Kansas R. Co. 135 U. S. 641, 658, 34 L. ed. 295, 303, 10 Sup. Ct. Rep. 965; Salt Lake City Water & Electric Power Co. v. Salt Lake City, 24 Utah, 297, 67 Pac. 791; Chicago v. Barbian, 80 III. 482; Schreiber v. Chicago & E. R. Co. 115 Ill. 344, 3 N. E. 427; St. Louis & S. F. R. Co. v. Teters, 68 II. 144; Chicago & I. R. Co. v. Hopkins, 90 Ill. 317; Chicago v. Hayward, 176 III. 130, 52 N. E. 26; Chandler v. Morey, 195 Ill. 596, 63 N. E. 512; Graff v. Baltimore, 10 Md. 544; Norris v. Baltimore, 44 Md. 598; Baltimore v. Hook, 62 Md. 371; Derby v. Gage, 60 Mich. 1, 26 N. W. 820; Carli v. Stillwater & St. P. R. Co. 16 Minn. 260, Gil. 234; St. Joseph v. Hamilton, 43 Mo. 282; State ex rel. Rogers

And, until such time as payment is made or deposited, the condemnation proceedings may be abandoned. Chicago v. Barbian; Schreiber v. Chicago & E. R. Co.; St. Louis & S. E. R. Co. v. Teters; Chicago & I. R. Co. v. Hopkins; Chicago v. Hayward; Graff v. Baltimore; Norris v. Baltimore; State ex rel. Rogers v. Hug; and Chicago & N. W. R. Co. v. Chicago,-supra.

And a grantee of the land after the award, but before payment, is entitled to the damages (Carli v. Stillwater & St. P. R. Co.; Chandler v. Morey; and Rice v. Chicago,-supra); unless the right to the damages is reserved (Chandler v. Morey, supra). And before payment suit cannot be maintained for the amount of the award (Stacey v. Vermont C. R. Co. supra); and until then, the legislature may constitutionally order a new inquisition (Baltimore & S. R. Co. v. Nesbit, supra).

It is held by most of the New York cases that title does not vest in the condemning body until the confirmation of the award of the commissioners by the court. Re Syracuse, B. & N. Y. R. Co. 4 Hun, 311: Hudson River R. Co. v. Outwater, 3 Sandf. 689; Re Washington Park, 56 N. Y. 144; Re Military Parade Ground, 60 N. Y. 319; New York v. Mapes, 6 Johns. Ch. 46, semble. The effect of constitutional questions is not there discussed.

This ruling is followed in Re New Orleans, 4 Rob. (La.) 357. And, to the same effect, are Re Penn Alley, 1 Pa. Dist. R. 141, and Kiebler v. Holmes, 58 Mo. App. 119, which latter case further held that on sale before confirmation the vendee was entitled to the award.

And until confirmation the proceedings may be abandoned. Hudson River R. Co. v. Outwater and Re Washington Park, supra (by statute; said by the court to follow the rule in the absence of statute); Re Military Parade Ground, supra; Re Rhine

praying that it may be made such party. | pellee railway company as a party, there The objections were overruled, and, it appearing that the petitioner was unable to agree with the owner, appraisers were appointed to assess the damage, who returned and filed their assessment in the sum of $6,500, which sum was paid into the clerk's office for the use of the party authorized to receive it. Within ten days of the filing of the appraisers' report, upon its publication appellee railway company was made a party to the proceeding and filed exceptions to the report, challenging the regularity of the proceedings and the inadequacy of the damages awarded. Dukes filed no exceptions to the report of the appraisers, and so far as appears, made no assignment of his claim for damages, by deed or otherwise. Subsequent to the admission of apbeck & C. R. Co. 67 N. Y. 242; Re Penn Alley and New York v. Mapes, supra.

It is held in some cases that title passes to a railroad company as soon as the location of its line is fixed (Old Colony R. Co. v. Miller, 125 Mass. 1, 28 Am. Rep. 194; Arthur v. Pennsylvania R. Co. 27 Phila. Leg. Int. 237; Paducah & M. R. Co. v. Stovall, 12 Heisk. 1); although for convenience damages are not assessed until afterwards (Old Colony R. Co. v. Miller, supra).

And one buying between the time of the survey and the location is entitled to the damages. Paducah & M. R. Co. v. Stovall, supra. But one buying after the location, but before the road is built, is not entitled to the damages, unless he bought without notice, actual or constructive. Arthur v. Pennsylvania R. Co. supra. The effect of constitutional provisions is not discussed in these cases.

In Dowie v. Chicago, W. & S. R. Co. 214 Ill. 54, 73 N. E. 354, the court said: "The rule seems to be clear that the rights and interests of the parties .

was a change of venue to the Kosciusko circuit court, wherein appellee filed exceptions to the appraisers' report, and, after numerous counter pleadings and rulings, finally the case went to the jury on the single question of damages, with an instruction given at the request of appellee railway company, to the effect that it appears from the deed offered in evidence that, soon after the plaintiff filed the instrument of appropriation, and before the appointment of appraisers, Aaron Dukes and wife conveyed to the defendant, the Ft. Wayne & Wabash Railway Company, the lands described in the plaintiff's instrument of appropriation. The jury will, therefore, take it as a fact in the case that the defendant is the owner of the real pany and a landowner arbitrated the amount of the damage, instead of having it ascertained in eminent domain proceedings, that the owner did not thereby extend credit to the railroad company for the amount of the damages; and no title passed until he was actually paid, and, until payment, the railroad company had no right to enter.

In North Missouri R. Co. v. Lackland, 25 Mo. 515, under a charter of a railroad company providing that, upon confirming the report of commissioners, "the court shall enter judgment in favor of such owner, against such company, for the amount of damages assessed, and shall make an order vesting in said company the fee-simple title of the land," it was held that no title vested in the company until such judgment; and, until then, it was at liberty to change its route and abandon the proceedings.

In Northeastern Nebraska R. Co. Frazier, 25 Neb. 42, 40 N. W. 604, it was held that when, after the filing of the petition for condemnation, but before the appraisement, the land was sold, the vendee, [be-on showing that fact, is entitled to the award, as he is the party in interest. The effect of statutory or constitutional provisions was not discussed.

came fixed] from the time of the filing of the condemnation petition." This was said with respect to the time as for which damages are assessed. The time of passing of title was not directly in issue.

In Atchison, T. & S. F. R. Co. v. Wilson, 66 Kan. 233, 69 Pac. 342, it was held that title to land does not pass to a railroad company by a deposit of the amount of the award with the county treasurer, even though the time of appeal from the award has passed, when the company has not entered the land, but has signified its intention not to take; and it may reclaim the deposit from the treasurer against the opposition of the owner. Title to the easement does not pass until the company actually constructs the road, although the owner has a vested right to the amount deposited after the time for appeal has expired, if the company has not then signified its intention to abandon the work.

In Stewart v. Raymond R. Co. 7 Smedes & M. 568, it was held, when a railroad com

In Ballou v. Ballou, 78 N. Y. 325, under a statute providing that "the fee simple of all premises so appropriated, in relation to which such estimate and appraisements shall have been made and recorded, shall be vested in the people of this state," it was held that, after the state has appropriated and gone into possession, but before the appraisement is made and recorded, title to the land is still in the individual, and descends to his heir as realty; but that, upon the recording of the appraisement, title passes and the right to the compensation is personalty, passing to the adminis trator.

In Crowner v. Watertown & R. R. Co. 9 How. Pr. 457, a statute provided that, when a railroad company, upon an award of commissioners, has recorded the order and deposited the money, title vests in the company; and it further provided that if, on

estate proposed to be appropriated, and the are assessable with reference to the time defendant is entitled to all the damages the appraisal is made, title does not pass pertaining to the appropriation. A verdict to the corporation until the damages have was returned assessing the damages at $13,- been assessed, and paid or tendered. If ap791, upon which judgment was rendered in pellant's contention is right, then Dukes, favor of appellee. being the owner in fee when the instrument of appropriation was filed, was the only sufferer from the taking, and because thereof became simultaneously vested with a claim against the corporation for full compensation for all damages that should result to his land by reason of the taking, and the construction of the railroad; and such claim, being for a money demand for a taking and injury to the property, was not an incident of the remaining estate, and, being purely personal and unassigned, by deed or otherwise, did not pass with the land to appellee railway company by the the party seeking condemnation, in case of appeal, to enter upon the land and construct its works by depositing the amount of the commissioners' award into court,-it was held that title did not pass by such entry pending appeal, nor until final judgment and payment of the compensation to the party entitled, or into court; and hence a vendee after entry, but before final confirmation and payment, was entitled to the damages.

The important and real question in the case arises from the following controversy: Appellant contends that, in the condemnation proceedings by an authorized corporation, the right of appropriation becomes fixed in the corporation eo instanti, on the filing of the instrument of appropriation, and that all damage resulting to the owner from the taking must have reference to the act of the filing as the appropriating act, and the time to which all assessable damages must relate; while, on the other hand, the appellee maintains that, while damages appeal, the damages should be increased, the additional amount should be a lien upon the land. It was held that the appeal did not devest the title which had vested on recording the order, and hence the railroad company, by changing its route after the first appraisal, could not escape paying the increased award, as the original owner had then acquired a vested right to the compensation.

In People ex rel. Gaslight Co. v. Syracuse, 78 N. Y. 56, a municipal charter provided that, if no appeal is taken from the report of the commissioners within ten days, the common council shall direct the commis sioners making the award to assess the amount awarded for damages upon the property benefited; and that, upon payment or tender of the amount awarded, the fee of the land vests in the city. It was held that, after the time for appeal expired, the right of the owner to compensation was finally fixed, and that payment might be enforced by mandamus, although, by the terms of its charter, title did not actually vest in the city until payment was made or tendered.

Meginnis v. Nunamaker, 64 Pa. 374, held that, until an order is finally made to open a road, the proceedings are in fieri, and may result in no road being opened at all; hence, a vendee of land who bought pending condemnation proceedings, but before the final order opening the road, is entitled to the compensation.

In Paris v. Tucker (Tex.) 104 S. W. 1046, it was held that payment or tender of the proper compensation is necessary to pass title, and a deposit of a lump sum for several landowners is an insufficient tender. No statute or constitutional provision was cited or alluded to.

In Virginia-Carolina R. Co. v. Booker, 99 Va. 633, 39 S. E. 591, under a stateute providing that no title to land passes in eminent-domain proceedings until there is a final judgment confirming the report of the commissioners and payment of the amount of compensation to the party entitled, or into court; but which also allows

re

In England there are no constitutional provisions to be considered, as Parliament is omnipotent, and the proceedings are based on a somewhat different theory than here. In that country the proceedings are garded as a kind of forced sale, the necessity for which has been previously determined by Parliament or some other public body, and the giving of the notice of intention to take is an election to take the land described in the notice, makes a contract, and creates the relation of vendor and vendee, binding upon the giver of the notice. The notice, having once been given, cannot be countermanded or altered (King v. Hungerford Market Co. 4 Barn. & Ad. 327; King v. Market Street Comrs. 4 Barn. & Ad. 333; Tawney v. Lynn & E. R. Co. 16 L. J. Ch. N. S. 282; Walker v. Eastern Counties R. Co. 6 Hare, 594; Stone v. Commercial R. Co. 4 Myl. & C. 122); and the giver of the notice may be compelled to have the damages assessed by mandamus (King v. Hungerford Market Co. supra); or an action in the nature of specific performance may be brought (Walker v. Eastern Counties R. Co. supra); and a person who, after giving a notice, afterwards gives a new notice describing different land, may be enjoined from entering upon the land mentioned in the changed notice (Tawney v. Lynn & E. R. Co. and Stone v. Commercial R. Co. supra).

There are many other cases, not here discussed, which inferentially, at least, would strongly tend to fix the time of the passing of title; but, as the question of title was not specifically mentioned or discussed therein, they are not here cited.