Defendants' argument is: (1) That the wife, on her husband's death, had a vested right to an undivided one-third interest in the land; (2) that the issuance of the patent did not affect such right; (3) that on the husband's death the wife and plaintiff's grantors became tenants in common, and that upon her death defendants, as her heirs at law, succeeded to her title and status; (4) and that this interest has never been divested, nor this status destroyed.

The second proposition is unsound. The whole argument fails with it. It ignores the natural and necessary legal effect of the issuance of a patent. The only authority cited to sustain it is McKinney v. Bode, 32 Minn. 450, 23 N. W. 851, involving an action of ejectment. Many considerations serve to differentiate it. It suffices for present purposes to call attention to the circumstances that the assignment of the certificate of purchase of school lands to one Angus, to whom the patent was issued, was void as a contract between the husband and wife relative to the real estate, and that the defendant was in no wise connected with the patent. Indeed, the subsequent history of this very case demonstrates the unsoundness of defendant's proposition; for Bode, the defendant in the case cited, after the first trial in ejectment acquired the patent title for Angus. Accordingly, on the second trial, the defendant prevailed through the patent title. See 33 Minn. 450, 23 N. W. 851. Gilfillan, C. J., there announced what is now the settled rule in this state, viz., that a patent regular on its face, in proper form, signed by the proper officers, with the proper seal, is conclusive evidence of regular title, and that accordingly one who holds it has a prior equitable right, and that accordingly one who has a prior equitable right to receive the patent superior to that of the patentee may enforce his equity by action, or, when he is defendant, by answer, in which the court may cause the legal title to be vested in him and may adjudge the possession to him. McKinney v. Bode, 33 Minn. 450, 23 N. W. 851. This rule is entirely consistent with the decision in Haaven v. Hoas, 60 Minn. 313, 62 N. W. 110, to which, in particular, defendants refer us. That case concerned the rights of the certificate holder, not as against a person to whom, as a purported assignee of the certificate, a patent had been issued, but as against another person claiming under a resulting trust which the statute had abolished.

Defendants insist in their brief that "this action is essentially an action at law, entirely statutory and in rem." Defendants did

On the contrary, they pleaded on the theory that defendants were the legal owners of the undivided one-third tract of the land described in the complaint. The issue of equitable relief is, therefore, not before the court. Stuart v. Lowry, 49 Minn. 91, 51 N. W. 662; Freeman v. Brewster, 70 Minn. 203, 72 N. W. 1068. The conclusion of the trial court must therefore be sustained. Morever, the defendants' ancestor, from 1882 until her death in 1898, made no objection to the payment of the balance due the state, nor to the use of the premises, nor to the patent issued in 1890, but abandoned the premises as completely as was possible. Nor have the heirs asserted any claim since then until after this action was commenced. Within the rule laid down in Murphy v. Burke, 47 Minn. 99, 49 N. W. 387, this constituted an abandonment. Defendants' equity was not superior to plaintiff's. McKinney v. Bode, 33 Minn. 450, 23 N. W. 851. The authorities to which defendants refer us, which concern co-tenants, are not in point.

Order affirmed.

STATE ex rel. YOUNG, Atty. Gen., v. VIL LAGE OF GILBERT et al. (Supreme Court of Minnesota. March 19, 1909.)

1. MUNICIPAL CORPORATIONS (§ 12*) VILLAGES-POWERS OF COUNTY COMMISSIONERS. Rev. Laws 1905, the county commissioners are Under the provisions of section 700 et seq., not vested with discretionary power to deter mine whether the unplatted portion of a village, proposed for incorporation, adjoins the to be subject to village government. platted part and is so conditioned as properly

[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 12.*]

2. MUNICIPAL CORPORATIONS (8 6*)

LAGES-INCORPORATION.

VIL

the limits of respondent village does not adThe unplatted territory embraced within join the platted portion and is not so conditioned as properly to be subject to village govern

ment.

3. WORDS AND PHRASES "VILLAGE."

A "village" means an assemblage of houses, or semiurban in its character.

less than a town or city, but nevertheless urban

[Ed. Note.-For other definitions, see Words and Phrases, vol. 8, pp. 7321-7324.] 4. MUNICIPAL CORPORATIONS (§ 6*) — “LANDS

ADJACENT THERETO"-"ADJACENT."

The term "lands adjacent thereto," as used in Gen. St. 1894, § 1200, providing for the incorporation of any district, sections or parts of sections not in any incorporated village which have been platted into lots and blocks, also the "lands adjacent thereto," etc, includes only those lands lying so near and in such close proximity to the platted portion as to be suburban in their character, and to have some unity of interest

The territory involved in this proceeding is not of so great extent as that involved in State v. Minnetonka Village, 57 Minn. 526, 59 N. W. 972, 25 L. R. A. 755, and State v. Village of Fridley Park, 61 Minn. 146, 63 N. W. 613. In amount of territory the case more nearly conforms to the territory involved in State v. Village of Holloway, 90 Minn. 271, 96 N. W. 40, but resembles the two former cases in that the proposed territory embraces several settlements having no natural connection and located at considerable distances from the platted portion.

The settlements around the several mines consist of miners and their families, and, although no stores are maintained at the mines, it is apparent that the general purposes for which villages are incorporated have no common relation between these clusters of people. Large tracts of undeveloped, wild, and uninhabited land intervene, and the territory, as a whole, does not constitute a village, within the definition so well expressed in State v. Minnetonka Village, supra: "A 'village' means an assemblage of houses, less than a town or city, but nevertheless urban or semiurban in its character; and the object of the law was to give these aggregations of people in a comparatively small territory greater powers of self-government and of enacting police regulations than are given to rural communities under the township laws. The law evidently contemplates, as a fundamental condition to a village organization, a compact center or nucleus of population on platted lands; and, in view of the expressed purposes of the act, it is also clear that by the term 'lands adjacent thereto' is meant only those lands lying so near and in such close proximity to the platted portion as to be suburban in their character, and to have some unity of interest with the platted portion in the maintenance of a village government. It was never designed that remote territory, having no natural connection with the village and no adaptability to village purposes, should be included." Here are several distinct mining settlements separated from each other, and from a half mile to a mile and a half from the village proper. It has not been made to appear how these separate communities can be brought together into one homogeneous people, and equitably and economically governed with respect to light, and police and fire protection, to say nothing of the benefits to be received by the distant settlements from the graded streets and sidewalks within the platted portion. As to these scattered communities, every element of "suburban character" and "unity of interest" is lacking.

But respondents insist that the statute, as amended, confers upon the county commissioners authority to determine whether the proposed unplatted territory adjoins the platted part and is “so conditioned as properly to

ment the statute read: "Any district, sections, or parts of sections, not in any incorporated. village in the state of Minnesota, which has been platted into lots and blocks, also the lands adjacent thereto, when said plat has been duly and legally certified according to the laws of this state, and filed in the office of the register of deeds for the county in which said lands, or the larger portion thereof lie, said territory containing a resident population of not less than one hundred and seventy-five, may become incorporated as a village under this act in the following manner." Section 1200, Gen. St. 1894. The amendment (section 700, Rev. Laws 1905) reads: "Territory not already incorporated, which has been wholly or partly platted into lots, with a view to village occupancy, and which has a resident population of not more than three thousand nor less than two hundred, may be incorporated as a village in the manner hereinafter prescribed. But the unplatted part of such territory must adjoin the platted portion, and be so conditioned as properly to be subject to village government." The amendment adopts the construction by this court of the previous statute, and emphasizes the principle that outside unplatted territory cannot be included in a village unless it is so situated that it is naturally connected with and so situated as to be subject to vil. lage government. As to the procedure, the following changes were made: Under the law in effect prior to the amendment, the statute (section 1201, Gen. St. 1894) provided that 30 or more of the electors then residents upon the lands to be incorporated might petition the county commissioners to appoint a time and place when and where the electors actually residing upon the lands should vote upon the question. The petition was to set forth the boundaries, the quantity of land therein embraced, and the number of persons actually residing in the territory, to be determined by a census to be taken under the direction of the petitioners; and section 1202 provided that the county commissioners, upon delivery to them of the petition, should post or cause to be posted in five of the most public places within the territory three copies of the petition, stating the time and place within the limits of the proposed village when and where the electors might vote for or against the incorporation, and the commissioners were required to appoint three inspectors to preside at the election. The law as amended (section 701) provides that 25 voters residing within the territory must sign the petition. Section 702 reads as follows: "If the county board approve said petition, it shall cause a copy thereof, with a notice attached fixing a time and place for holding such election, to be posted in three public places within the boundaries described. The time shall be not less than twenty nor more than thirty days after such posting, and the

But it is claimed that the Legislature intended to make a radical departure, and that section 702 vests in the county commissioners discretionary power to pass upon the merits of the proposition and determine whether or not the territory set out in the petition adjoined the platted part, and was so conditioned as properly to be subject to village government. It is argued that, the commissioners in this case having considered the merits, having exercised their discretion, and determined that the outlying territory did adjoin the platted part and was so connected as to be subject to village government, their decision is final and not subject to review. This occasion does not call for any extended consideration of the powers which may be delegated to bodies such as boards of county commissioners. It is a vexed question, concerning which there is a wide divergence of judicial opinion. It is the settled law of this state, so far as the incorporation of municipalities is concerned, that the Legislature may designate such bodies as the instrumentality to submit to the voters the question of incorporation. But in our examination of this class of cases we have failed to discover any instance where such a body has been vested with judicial or quasi judicial powers sufficient to consider and finally determine the merits of the question. That the Legislature intended to introduce so radical a change is not warranted by the language of the amendment. The significant words relied upon by respondents are: "If the county board approves such petition." What is meant by the word "approves"? Does it refer to the determination of the reasonableness of the proposition to include the outlying territory, or does it merely mean that the commissioners shall determine from the face of the petition whether it contains the requisite number of residents and signers, and is in proper form? It is our opinion that the amendment imposes no new duties on the board of commissioners. It is simply another way of stating the same duty imposed by the former statute. Upon the admitted facts, the village was not incorporated in accordance with the law.

While the acting officers of the supposed village have gone on and incurred certain ex

Let the writ of ouster be issued.

TWITCHELL v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. (Supreme Court of Minnesota. March 26, 1909.) MASTER AND SERVANT (§ 112*)-INJURIES TO SERVANT-DEFECTIVE APPLIANCES.

the rail.

Plaintiff applied to defendant for a motor velocipede. Defendant furnished a tricycle, propelled by hand and provided with a brake. Plaintiff attached a gasoline engine, in the use and construction of which he was an expert. With defendant's consent and approval he used ing it in the course of his employment, it this motor tricycle. While plaintiff was drivwas derailed at a frog, and plaintiff injured." The claim as to defendant's negligence was that the point of the frog was out of alignment with alignment. The frog was of the rigid or clamp type, and in the identical condition in which it was at the time of the accident had been used for two years daily by freight and passenger by hand cars, without accident or trouble. The coaches and by locomotive engines, and at times guard rail was properly placed. It is held that defendant's primary duty as to the frog was to furnish and maintain it so as to safely carry freight and passengers in the performance of its duty as a common carrier; that defendant's duty to plaintiff did not require it to provide a frog so mechanically perfect and in so precise alignment with its track that plainits wheels of small diameter, thin flanges, and tiff could safely run his light machine, with narrow tread, at such a rate of speed that the small guide wheel in front would climb the rail and the machine then run 15 feet with such force that, when it encountered a tie or other obstacle, its front axle would be broken.

There was proof of some lack of

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 112.*]

(Syllabus by the Court.)

Appeal from District Court, Hennepin County; Horace D. Dickinson, Judge.

Action by Stanley A. Twitchell against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Verdict for plaintiff. From an order denying motion for judgment notwithstanding the verdict or a new trial, defendant appeals. Reversed, and judgment for defendant ordered.

John L. Erdall (A. H. Bright, of counsel), for appellant. Larrabee & Davies, for respondent.

JAGGARD, J. Plaintiff and respondent, a gasoline expert, was employed by defendant and appellant as a pump repairer. His du