ture are justly regarded with suspicion, unless it clearly appears that the consideration was paid out of her separate estate. Such is the community of interest between husband and wife; such purchases are so often made a cover for a debtor's property; are so frequently resorted to for the purpose of withdrawing his property from the reach of his creditors and preserving it or his own use, and they hold forth such temptations for fraud that they require close scrutiny. In a contest between the creditors of the husband and the wife there is, and there should be, a presumption against her which she must overcome by affirmative proof. Such has always been the rule of the common law; and the rule continues, though statutes have modified the doctrine that gave to the husband absolutely the personal property of the wife in possession, and the right to reduce into his possession and ownership all her choses in action." And in support of the doctrine just stated many decided cases are referred to by the court.

In this case the rights of the parties and the validity of the transactions involved depend upon the law as it stood before the adoption of the Code in 1860.

By the common law, before it was modified by the adoption of the Code, as between husband and wife, the personal property of the latter, such as money, goods and chattels, became vested immediately and absolutely in the husband, and he could dispose of it as he pleased. Co. Litt. 351, b; 2 Kent Com. 143. And if a debtor of the married woman paid to her during coverture the debt, or if money was given to her by any third person, unless it was expressed to be to her sole and separate use, the money so received inured to the benefit of the husband, and became his property absolutely, And so the husband was entitled absolutely to all sums of money received by a third person on account of his wife during coverture. These principles are among the elementary doctrines of the common law, and they have been adopted and applied by repeated decisions of this court. Turton v. Turton, 6 Md. 375, 381; Taggart v. Boldin & Thayer, 10 id.

104.

If therefore it be conceded, as it may well be, upon the proof in the case, that the money came to the wife and was received or paid over to the husband, as and in the manner stated in the answer, and as testifled to by the wife, still there is nothing to show that it came to the wife as her sole and separate estate, and consequently it vested in the husband at once and absolutely, by virtue of his marital relation. Unlike a chose in action belonging to the wife, which did not vest absolutely in the husband except at his own election to reduce it into possession, the receipt of the money by the wife was the receipt of the same to the use of the husband, and the money became his instantly it was received by the wife. Carroll v. Lee, 3 G. & J. 504.

It would doubtless have been competent to the husband to settle the money upon the wife, to her sole and separate use by gift; but as has been said by this court, "the act by which he divests himself of his property must be clear and unequivocal" (Thurton v. Thurton, supra); or as was said by the late Chancellor Johnson, to establish such gift from the husband to wife, courts of equity require clear and incontrovertible evidence. George v. Spencer, 2 Md. Ch. Dec. 353, 360. The marital rights of the husband having attached, the mere promises of the husband to the wife to repay her the various sums of money received by him were without consideration, and could form no ground for a valid claim against him. Oswald v. Hoover, 43 Md. 368; Plummer and Wife v. Jarman, 44 id. 637; Sabel v. Slingluff, 52 id. 132, 135.

Such promises amounted to nothing more than mere voluntary agreements to make future donations to

the wife by the return of like sums of money. Being without consideration, they could not be enforced, for a mere promise to make a voluntary gift is not sufficient. To make the intended gift effectual the intention must have been executed; and the evidence should show clearly and distinctly that the husband had by positive act divested himself of his right of property and vested the same in the wife.

This case is entirely unlike those cases where the husband contracts with his wife in respect to her separate estate, or where the fund in respect to which the promise is made is or could be made, subject to the control of a court of equity, and the promise is to do what the court would compel the husband to do, by virtue of the wife's right to equitable settlement out of the fund; or where in consideration of the wife's agreement to sell her real estate, and allow the husband to receive the proceeds thereof, under a promise to invest such proceeds for her benefit, or to pay her the money; as in all such cases the promise is founded upon good and sufficient consideration, and the relation of debtor and creditor is created as between the husband and wife. The propositions find apt and pointed illustration in the cases of Stevenson v. Reigart, 1 Gill. 1; Bowie v. Stonestreet, 6 Md. 418; Stockett v. Holliday and Wife, 9 id. 480; Jones v. Jones & Wife, 18 id. 464; Kuhn v. Stansfield, 28 id. 210; Mayfield v. Kilgour, 31 id. 242; Oswald v. Hoover, 43 id. 360; Crane v. Barkdoll, 59 id. 534.

The case of Stevenson v. Reigart, 1 Gill. 1, is much relied upon by the defendants, but that case is not an authority in a case like the present. In that case certain executors held the legacy, a chose in action, due the wife as her trustees, and they paid over such legacy to the husband upon a special agreement with them, that the money should be invested for the exclusive benefit of the wife. It was upon the validity of this agreement with the trustees that the case turned. The court declared that the husband received the money from the trustees on the agreement, not by virtue of his marital rights, but as trustee for his wife. He received the money, say the court, upon a special trust and confidence that it would be invested for her benefit; he received it as her trustee, and upon his failure to make that investment, the consideration upon which he received it failed, and the wife had a right to consider it as so much money had and received for her use. That case therefore has but slight, if any, the remotest bearing upon this case.

No case could well occur where greater injustice would be done to the creditors of the husband by upholding the deed of the wife than in this. Bayne, the husband, became surety on the guardian's bond of Monroe, given for the protection of the complainants, then minor children, in 1855. He was then the owner of the farm that he subsequently conveyed to his wife. We may well suppose that it was upon the faith of such ownership of the farm that he was accepted as surety. So soon as he was sued on the bond in 1868 he at once divested himself of his entire property by the deed to his wife, and from the position of owner he descended to and assumed that of agent, but still remaining in the full possession and enjoyment of the farm, while his creditors were left without any possible means from which to get payment of their just demands. This transfer of his property is sought to be supported by proof of mere verbal promises made to the wife, some of the most material of them twenty odd years before the making of the deed.

Mr. and Mrs. Bayne were both examined and re-examined as witnesses, and their several statements are not in all respects consistent as to the circumstances under which the money was obtained by Mr. Bayne. Their respective statements in regard to the making and delivery of the deed are essentially variant. And

though this may be attributed to the imperfection of memory, yet it shows the great necessity for caution, and the danger in proceeding upon such evidence after such great lapse of time.

[Omitting discussion of evidence.]

According to the established legal principles, as we have seen, the money became the property of the husband immediately upon its receipt by the wife, as the law stood at the time. His promises to return it to the wife where nothing more than promises to restore money to her possession, which the law had vested in him as his own absolute property; and such promises created no legal obligations that could be enforced against the husband. At most only the money coming to the wife after the act of 1853, ch. 245, could be protected from the debts of the husband.

Upon the whole this deed, so manifestly in prejudice of the rights of the complaining creditors, ought not to stand as against them. The deed is perfectly

good as between the husband and wife, but not as against the subsisting creditors of the husband at the time the deed was made. The decree of the court below is as favorable to the wife as she could reasonably ask it to be; and but for a technical objection taken to the frame of the bill, we should simply affirm the decree. But the bill is erroneously filed in the name of the State as legal plaintiff, for the use of the parties beneficially entitled to the judgments; thus following the form of the recovery at law upon the bond. This is clearly an irregularity, as the State should not have been introduced as a party; but it is such an irregularity as may be corrected by amendment. We shall therefore, without affirming or reversing the decree remand the cause that the amendment in the particulars mentioned may be made, and that a decree similar to the one appealed from be passed by the court below. Cause remanded under art. 5, sec. 28 of the Code. Yellott, J., dissents.

NEW YORK COURT OF APPEALS ABSTRACT.

CRIMINAL LAW-FORGERY WIFE AS PRINCIPALPRESUMPTION OF COERCION-EVIDENCE-CODE CRIM. PROC.,$ 399-TESTIMONY OF ACCOMPLICE.-Defendant, with her husband and another, was indicted for forgery in the third degree, in raising a check. It appeared on the trial that defendant suggested the idea of obtaining the check, and went alone to a store where she procured a check for $6, upon the representation that she desired to send the money that evening to her sister or mother in Philadelphia, and she could not obtain an order at the post-office, as it was closed. This check she delivered to her husband, who in her presence, erased with an acid the name of the payee and the amount. Subsequently, when it did not appear that she was present, the check was filled in for the $165.50, the money was obtained thereon, and $74 of that sum paid to defendant. Held, that the evidence was sufficient to authorize a finding that defendant's participation in the affair was voluntary and under no coercion from her husband, and also was sufficient to justify a conviction of defendant as a principal, not simply as an accessory before the fact. The rule undoubtedly is, that whatever of a criminal nature the wife does in the presence of her husband is presumed to be compelled by him (1 Bish. Crim. Law [7th ed.], $359); but this presumption is prima facie and not conclusive, and if it appears that she was not urged or drawn to the offense by him, but was an inciter of it, she is liable as well as he. Seiler v. People, 77 N. Y. 413; Goldstein v. People, 82 id. 233. (2) The proof as to what occurred, after defendant returned with the check, in reference to the alteration thereof, was the

uncorroborated testimony of an accomplice. Held, that there was other testimony tending "to connect the defendant with the commission of the crime," sufficient to meet the requirements of $399 Code Crim. Proc., prohibiting a conviction on the uncorroborated testimony of an accomplice. People v. Ryland. Opinion by Miller. J. [As to coercion see 1 Allen, 4; 2 Gray, 510; 11 id. 437; 38 N. Y. 178; 13 Eng. Rep. 453; 42 Vt. 495; 59 Me. 298.-ED.]

ASSIGNEE declarations of

-

[Decided Oct. 28, 1884, affirming 16 W. Dig. 232.] TRUST-DECLARATION OF STATUTE OF FRAUDSPAROL LEASE-SPECIFIC PERFORMANCE- ASSIGNMENT FOR CREDITORS RIGHT TO LEASE PASSES TO DISTRIBUTION OF PROCEEDS.-If the a party can, under any circuma trust or create stances, be received to raise an interest in lands in another, they must be subject-matter, and the extent of the beneficial interclear and explicit, and point out with certainty the est. Equity cannot, under any circumstances, compel the performance of a parol agreement vague in its terms, and standing upon testimony of the accuracy of which the witness is himself uncertain. In an action brought by plaintiffs as judgment creditors of the defendant R., to have certain real estate in which they claimed R. had an interest charged with the paythe owner of the land, by procurement of the defendment of their judgment, the court found that R. being ant A. F., conveyed it to the wife of the latter, by deed, reciting a consideration of $2,300; that as a further consideration it was agreed between R. and A. F. that the former should have the use for three years of the cellar and first floor of the building to be erected upon the premises. The only evidence upon which the last finding was made was testimony of admissions made by R. after the conveyance and in the absence of A. F., except the testimony of one witness as to a conversation with A. F. and R., in which the former said he had bought the premises, and that R. was to have the use for "either several years or two or three years," the witness could not say which, as it was out of his memory. Held, that the evidence was insufficient to sustain the finding; but if the evidence was sufficient to establish an agreement to give A. F. the use of any portion of the premises, it was in the nature of a lease, and as it was by parol, and for more than a year, it was void by the statute of frauds; and that it was not such a contract as equity would decree performance of after the execution of the deed, and before the recovery of plaintiffs' judgment. R. made a general assignment for the benefit of his creditors. The assignee accepted the trust, entered upon the performance of his duties, and it appeared that the assignor's debts greatly exceeded his assets. Held, that if R. was then entitled to a lease, or to any benefit in the premises, the right passed to the assignee, and plaintiffs had no claim which they could enforce against it. Emigrant Industrial Savings Bank v. Roche, 93 N. Y. 374; Spring v. Short, 90 id. 538. If such an assignee refuses in a proper case to proceed and get in the assigned property, the creditors collectively, or one in behalf of all who may come in and join, may compel the execution of the trust in equity. So he could be removed and a more efficient trustee appointed, but in either case a decree for a single debt would be erroneous. Nor is it possible for an assignee by any word or act of disclaimer, to relieve himself from the obligation to collect the estate and distribute it according to the terms of the assignment. He is bound to all the creditors, and their rights cannot be varied at his option. If otherwise, a preference might be created when the assignment was silent, and by refusing to sue or enforce a right of property, as the respondent alleges was done in the case before us, an

against public policy a court of equity will rescind, notwithstanding the party plaintiff has participated therein, if public policy would be defeated by allowing the instrument to stand. Id., §§ 695, 695a. So long as the contract continues executory, the maxim "in pari delicto" does not apply at all. Ad. Eq. *175; Spring Co. v. Knowlton, 103 U. S. 49. These principles open the way for equitable intervention here, and nothing appears to induce a denial of the relief sought. It is indeed inferable from the evidence that all the stockholders of the plaintiff company either expressly assented to the contract of October 5, 1883, or acquiesced for a season therein. But it is shown in Thomas v. Railroad Co., 101 U. S. 71, 83, that a contract not within the scope of the powers conferred on a corporation, and against public policy, cannot be made valid by the assent of every one of the shareholders. Nor is it a sufficient reason for refusing to interfere, that some of the directors who were parties to the indefensible scheme for private speculation heretofore referred to were active in promoting this suit and in its prosecution. Even for them there is a locus penitentiæ. Spring Co. v. Knowlton, supra. They however are not the complainants. The suit is by the corporation, which owes a paramount duty to the public. Its former course was inexcusable indeed; but having retraced its false steps, it is now in the right pathway. Having entered into a contract forbidden by public | policy (as was said in Thomas v. Railroad Co., supra), "it was the duty of the company to rescind or abandon it at the earliest moment." This it has done: but to the end that it may the better discharge its obligation to the public, it needs the aid of a court of equity to set aside the improvident and illegal contract with which it is embarrassed. The railroad is unfinished. The work of construction has ceased. Although free to proceed, the defendant for many months has done nothing. His inaction is doubtless wise, for were this bill dismissed he could not expect a court of equity to decree the specific performance of his construction contract; and if at law he could recover at all for future work it would be as upou a quantum meruit only. Cir. Ct., W. D. Penn., Aug. 13, 1884. New Castle, etc., R. Co. v. Simpson. Opinion by Acheson, J.

PATENT-SUIT FOR INFRINGEMENT-LACHES -DEMURRER. Bill for the infringement of patent, alleging unauthorized construction and use of patented invention by defendant for thirteen years, and making no excuse for complainant's failure to assert his rights during that period, held, demurrable. That the general principles of equity jurisprudence control in patent cases cannot be doubted. Rev. Stat., § 629, 19; also § 4921, which last section contains these words: "The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity to prevent the violation of any rights secured by a patent, upon such terms as the court may deem reasonable." Now generally speaking the laches of complainant is sufficient ground for non-interference on the part of a court of equity. Nearly all the life-time of this patent the complainant has remained silent, by his silence consenting to, or at least acquiescing in, the acts of the defendant. To interfere now by injunction would seem manifestly inequitable. That this question of laches can be raised by demurrer and that it is a good defense to a bill in equity, is abundantly sustained by the authorities. In Walk. Pat., § 597, it is said: "The defense of laches can be made in a demurrer, or in an answer, or in argument on the hearing, without any pleading to support it. But a plea is not appropriate in such a defense; because if the bill shows delay, and is silent about ex

cuses therefor, the method of a plea would be to state that there is no such excuse, and because by taking issue on such a plea and framing an excuse the complainant could cut off all excuses and win the case. To guard against a demurrer based on laches, in a case where long delay intervened between the infringement and filing of the bill, the bill ought to state the existing excuses for that delay; and to guard against such defense being started on the hearing the evidence ought to show whatever excuse the complainant can interpose." See also the following authorities: Maxwell v. Kennedy, 8 How. 222; Lewis v. Chapman, 3 Beav. 133; Saunders v. Smith, 3 Mylne & C. 711; Collard v. Allison, 4 id. 487; Wyeth v. Stone, 1 Story, 273: Root v. Railway Co., 105 U. S. 215; Curt. Pat., § 440, in which the author says: "Where a patentee seeks an injunction against an alleged infringer, and the evidence shows that this infringer, or others, have been in the habit of disregarding the exclusive right conferred upon the patentee, and this with knowledge, either actual or implied, on the part of the patentee, the court will dismiss the bill on the ground that the complainant has been guilty of laches, or that there is a want of that exclusive possession which lies at the foundation of every claim for an injunction." These authorities, enforcing the general rule of equity jurisprudence, compel the sustaining of the demurrer. Cir. Ct., E. D. Mo., Sept. 19, 1884. McLoughlin v. People's Ry. Co. Opinion by Brewer, J.

MINNESOTA SUPREME COURT ABSTRACT.

CHATTEL MORTGAGE EXECUTION AND RECORDMORTGAGOR REMOVING FROM STATE-LACHES IN TAKING POSSESSION-EFFECT OF RECORDING ACTS.A chattel mortgage executed and recorded in another State, where the mortgagor resides and the property is situated, and according to the laws of that State, need not, to preserve the rights of the mortgagee, be filed in this State, upon the mortgagor, with the property in his possession, removing to and becoming a resident of this State. The rule is that the validity and effect of contracts relating to personal property are to be determined by the laws of the State or country where they are made, and as a matter of comity they will, if valid there, be enforced in another State or country, although not executed or recorded according to the law of the latter. And this rule has been applied in a great number of cases to chattel mortgages, where the mortgagor removes with the property into another State, continuing in possession of it, permissible by the law of the former, under circumstances that, had the mortgage been executed in the latter State, by one resident therein, would have made it invalid as against creditors or purchasers. Jones Chat. Mort., §§ 260, 299301; Offutt v. Flagg, 10 N. H. 46; Ferguson v. Clifford, 37 id. 86; Cobb v. Buswell, 37 Vt. 337; Jones v. Taylor, 30 id. 42; Taylor v. Boardman, 25 id. 581; Ballard v. Winter, 39 Conn. 179; Langworthy v. Little, 12 Cush. 109; Bank v. Danforth, 14 Gray, 123; Martin v. Hill, 12 Barb. 631; Kanaga v. Taylor, 7 Ohio St. 134; Wilson v. Carson, 12 Md. 54; Smith v. McLean, 24 Iowa, 322; Simms v. McKee, 25 id.341; Feurt v. Rowell, 62 Mo. 524. The court below disposed of the case mainly upon the proposition that the mortgagees were guilty of laches in not taking possession of the property within a reasonable time after they had the right to take possession. It stated this to be the rule: "The law requires a mortgagee, when default is made, to take possession of the property within a reasonable time thereafter in order to maintain and protect his lien as against subsequent creditors and purchasers; and if he suffers the property to remain in the possession and under the

control of the mortgagor, after the expiration of such reasonable time after default, it is evidence of fraud, and he is guilty of laches, which should not protect his rights against bona fide purchasers of the property without actual notice.' This is not supported by authority. See Hudson v. Warner, 2 Har. & G. 415; Shurtleff v. Willard, 19 Pick. 202; Fuert v. Rowell, 62 Mo. 524; Steele v. Adams, 21 Ala. 534; Spraights v. Hawley, 39 N. Y. 441. (2) Where the statute gives to the filing or recording of a chattel mortgage the same effect as to subsequent purchasers or mortgagees, as the delivery of the property to the mortgagee, leaving the mortgagor in possession, will not while such effect continues postpone the rights of the mortgagee to those of subsequent purchasers or mortgagees. Keenan v. Stimson. Opinion by Gilfillan, J. [Decided Aug. 6, 1884.]

In

MUNICIPAL CORPORATION-CARE OF STREETS-NEGLIGENCE-PROXIMATE CAUSE.-A municipal corporation is not relieved of the care and responsibility for the condition of one of its streets, merely by permitting a railway company to lay out and operate its track upon and along it. Where several concurring acts or conditions of things, one of them a wrongful act or omission, produce an injury, such wrongful act or omission is to be regarded the proximate cause of the injury, if the injury be one which might reasonably be anticipated from the act or omission, and which would not have occurred without it. McMahon v. Davidson, 12 Minn. 357 (Gil. 232) it was stated as the rule that it is immaterial how many others may have been in fault if the defendant's act or negligence was an efficient cause of the injury. In Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62), the defendant negligently left his horses unhitched in a city street, and they ran away, came into collision with and frightened another team properly hitched, which also ran away, and came into collision with and injured plaintiff's horse. The court held that defendant s negligence in leaving his horses unhitched was the cause of the injury, saying: "The running away of the defendant's team was the efficient cause of the injury to plaintiff's horse, because it put in operation the force which was the immediate and direct cause of the injury." In Johnson v. Chicago, M. & St. P. Ry. Co., 16 N. W. Rep. 488, a fire caused by a spark from defendant's engine commenced in a pile of corn-stalks negligently left by N. near the track, passed from the corn-stalks to his barn, from his barn to another, and from that to plaintiff's. It was held that the negligence of the defendant in allowing the sparks to escape from the engine was a proximate cause of the injury to plaintiff. In Nelson v. Chicago, M. & St. P. Ry. Co., 30 Minn. 74, which was an action for injuries caused by defendant's failure to fence its road, the rule was stated that if the injury was one which a man of ordinary experience and sagacity could foresee might probably ensue from a failure to fence, then the damage would be sufficiently proximate and direct to entitle the injured party to recover. ,, This was followed and applied in Maher v. Winona & St. P. R. Co., 18 N. W. Rep. 105, in which it was held that the failure to fence the railroad might be the proximate cause of the injury, where the plaintiff's horses, which he was driving along the highway, were frightened by a train of cars passing, got beyond his control, got away from him, ran upon and along the track into a culvert, and one was killed and the other injured. This court sustained an instruction to the jury in the language which we have quoted from the Nelson case. Campbell v. City of Stillwater. Opinion by Gilfillan, C. J. [Decided July 18, 1884.]

MUNICIPAL CORPORATION-CHANGE OF GRADE OF STREET-DAMAGES-SURFACE WATER.-An action will

not lie against a city for consequential injuries to property adjacent to a public street, caused by a change of the established grade of the street lawfully made by the public authorities, and in a proper manner (being such an act as one might rightfully do upon his own premises), even though the property had been improved with reference to the previously established grade. The municipal charter expressly empowers the city council to establish the grade of any street, and by a vote of two-thirds of the members to change the grade of any street after it has been established. Ses. Laws 1881, ch. 76, subc. 8, § 2. By a long current of decisions, almost without dissent, the law has been declared to be that the owner of property adjacent to a public street is not entitled to a remedy for injuries resulting from the exercise in a proper manner of lawful authority in establishing or changing the grade of the street. British Cast Plate Manuf'rs v. Meredith, 4 T. R. 794; Boulton v. Crowther, 2 B. & C. 703; Smith v. Washington, 20 How.135; Callender v. Marsh, 1 Pick. 418; Skinner v. Hartford Bridge Co., 29 Conn. 523; Burritt v. New Haven, 42 id. 174; Radcliff v. Brooklyn, 4 N. Y. 195; Plum v. Morris Canal & Banking Co., 10 N. J. Eq. 256; O'Connor v. Pittsburgh, 18 Penn. St. 187; Green v. Borough of Reading, 9 Watts, 382; Rounds v. Mumford, 2 R. I. 154; Pontiac v. Carter, 32 Mich. 164; Burlington v. Gilbert, 31 Iowa, 356; Roberts v. Chicago, 26 Ill. 249; Quincy v. Jones, 76 id. 231; Hoffman v. St. Louis, 15 Mo. 651; Wabash v. Alber, 88 Ind. 428; Shaw v. Crocker, 42 Cal. 435; White v. Yazoo City, 27 Miss. 357. To the extent of denying a right of recovery for consequential injuries from an original establishment of grade this court has recognized the law to be as here declared in Lee v. City of Minneapolis, 22 Minn. 13; Alden v. City of Minneapolis, 24 id. 254; O'Brien v. City of St. Paul, 25 id. 331-334. We have however considered that a municipal corporation will be liable for damages caused to private property by grading streets, when a private owner of the soil over which the streets are laid would be liable if he were making the same improvement upon his own land for his own use. O'Brien v. City of St. Paul, supra; Dyer v. City of St. Paul, 27 Minn. 457; Armstrong v. City of St. Paul, 30 id. 299. But this case is obviously not within the limitation of the general principle upon which those cases rest, and is to be governed by the general rule of law above asserted. In principle there is no difference between the case of injuries resulting from an original establishment of a grade and those resulting from an authorized change of an established grade. Authorities above cited; and see Karst v. St. Paul, S. & T. F. R. Co., 22 Minu. 118. In both cases the principle is the same; that is, a public right acquired to which individual convenience and interest are subject. Upon the acquisition of the public from the original owner of the soil of the right to use the land for the purposes of a street, whether that right is acquired by purchase as by condemnation proceedings, or by gift or estoppel, as by dedication and acceptance, the right of the public to such use of the land as may be consistent with those purposes becomes as absolute as is the right of any owner of land to the use of it for his own purposes. Thenceforth it is the right of the public, subject to any statutory restrictions which may be imposed, to have the land prepared and kept in fit condition for use as a street; to have it improved and changed from time to time, as the public need, and the changing circumstances attending its use shall require. That changes might be required must be presumed to have been contemplated when the land was taken and devoted to the purposes of a street, as incident to the enjoyment of the easement which was then acquired. The individual proprietor holds his property subject to the public right. He necessarily takes upon him