does not put him in the position of a debtor paying the mortgage
debt. (Wis.) Marling v. Jones, 996.
See Limitation of Actions, 6; Reformation of Instrument.
Note.
Mortgages, agreements making irredeemable, when void, 916.
character of which does not appear on their face, 919, 920.
conditional sales cannot be converted into, 920.
conveyances with agreements to reconvey, when amount to, 920.
contemporaneous contracts waiving equity of redemption, 922-
926.
definitions of equitable, 915.
difference between effect of at law and in equity, 915.
instruments which will be construed to be, 915.
evidence, extrinsic, to show whether a transaction amounts to, 921.
maxim "Once a mortgage, always a mortgage," conceded existence
of, 914, 915.
maxim, "Once a mortgage, always a mortgage," exceptions to the
rule of, 921.
maxim, "Once a mortgage, always a mortgage," origin, purpose
and meaning of, 916.
power of parties to to abandon their relation, 916.
purchase by the mortgagee of the mortgagor's interest in the
premises, 917.
redemption, agreements to waive the right of, 916, 917.
redemption, equity of, agreements respecting made simultaneously
with the mortgage, 922.
redemption, equity of, contracts to sell or release, how viewed,
927.
redemption of, equity of is an inseparable part of the mortgage,
redemption, equity of need not appear by the instrument, 909.
redemption, equity of, sale or release of by the mortgagor to the
mortgagee, 926.
redemption, equity of, sale or release of, consideration necessary
to support, 927, 928.
redemption, equity of, waiver of by subsequent agreements, 926-
928.
redemption of, equity of, waiver of, contemporaneous agreement
respecting, 922, 926.
redemption, equity of, when must be extinguished by foreclosure,
923.
Multiplicity of Suits, assessments, street, preventing multiplicity of
suits to enforce, 37, 38, 47.
assignee for the benefit of creditors, remedy to prevent, 36.
assignees in insolvency, whether may enjoin suits to prevent, 48.
bonds, enjoining separate suits upon, 40, 41.
by depositors of bank, when equity will prevent, 36, 37.
community of interest in questions of law and fact, cases holding
it to be sufficient to sustain bill to prevent, 42-51.
community of interest in questions of law and fact without such
interest in the subject matter of the controversy, 33-42.
community interest in the subject matter of a controversy, whether
necessary to sustain suits to prevent, 45.
damage, separate suits for, whether may be enjoined, 45.
damages for condition of streets, injunction against suits to re-
cover, 33, 34.
damages for personal injuries, separate suits for, whether may be
enjoined, 45, 46.
discretionary power of courts respecting, 31, 32.
Multiplicity of Suits, discretionary powers of courts respecting not to
be exercised arbitrarily, 32.
equity will assume jurisdiction to prevent, 30, 31.
escrows, delivery of, numerous suits to prevent, 36.
execution, preventing multiplicity of suits founded upon, 34, 35.
garnishment, separate suits based upon, whether may be enjoined,
insurance commissioners, remedy of to prevent, 35.
insurers, when may enjoin suits upon separate policies, 38.
nuisances, enjoining multiplicity of suits founded upon, 34-46.
penalties, injunctions against suits to recover, 33, 38.
Pomeroy's rule respecting suits to prevent, 32.
railways, suit by to enjoin separate actions for damages resulting
from fires, 43.
railways, suits by to prevent unauthorized brokers from dealing
with nontransferable tickets, 42.
railways, when may prevent separate suits of different passengers,
37-41.
railways, whether may prevent separate actions to recover for
excess of charges made to different persons, 48.
separate notes, enjoining separate suits upon, 39.
taxes, separate suits to recover, whether may be enjoined, 47.
tort-feasors, when entitled to injunction to prevent, 31.
1. MUNICIPAL ORDINANCE — Conflict with State Statute.—
When there is a conflict between a state statute and a municipal or-
dinance, the ordinance must give way and be held invalid rather than
the statute. (Tex. Cr.) Mantel v. State, 818.
2. MUNICIPAL CORPORATION.-A Grant of Power from the
State to a municipal corporation will be taken, in case of doubt, more
strongly in favor of the granting power and against the grantee.
(Tex. Cr.) Mantel v. State, 818.
Streets Extending in Navigable Water.
3. PUBLIC STREETS Extending to Navigable Waters, Effect of
Further Extensions.-The rule of law is well settled that a public
street leading to navigable waters will keep even pace with the ex-
tension of the land, whether the change in the land be due to natural
causes, or to the voluntary act of the owner of the land. (Fla.)
Frater v. Baylen Street Wharf Co., 1084.
4. NAVIGABLE WATERS-Public Streets, Extension of, When
Affects the Right of Wharfage.-When the shore line of a public
street in a city fronting upon navigable waters has been extended
out by natural or artificial causes, such public street keeps even pace
with such extension of the shore line, and when such extension reaches
privately owned abutting property, the owner of such abutting prop-
erty has the right to the full and free use of such extended street
to and from his abutting property, and when such abutting owner
lands goods from water craft directly upon his own abutting property,
he has the right to transport such goods across or along such exten-
sion of the street without liability to wharfage charges for the use of
such extended street. (Fla.) Frater v. Baylen Street Wharf Co.,
1084.
Removal of Trees from Street.
5. PUBLIC STREETS-Removal of Trees Against Will of Abut-
ting Owner.-Assuming that the question whether a shade tree
growing in the street should be removed is one to be determined by
the city officers, not subject to review by the courts, yet in order
for their determination to be conclusive, it must be made fairly and
in good faith; if made arbitrarily, action under it may be enjoined
as an abuse of discretion. (Kan.) City of Paola v. Wentz, 290.
6. PUBLIC STREETS-Removal of Trees Against Will of Abut-
ting Owner. The officers of a city may not, against the objection
of the abutting owner, remove a shade tree from the street merely
for the sake of enabling them to place a sidewalk in a position dif-
ferent from that prescribed by ordinance. (Kan.) City of Paola
v. Wentz, 290.
7. PUBLIC STREETS—Injunction Against Removal of Trees by
Officers. The removal by officers of the city of shade trees growing
in the street may be enjoined where the only reason offered to justify
such removal is insufficient as a matter of law, and no other pur-
pose is disclosed. (Kan.) City of Paola v. Wentz, 290.
PUBLIC STREETS-Duty to Light.-A City is Under No Com-
mon-law Obligation to light its streets; unless the duty is imposed by
statute, the failure to put up and maintain lights in streets is gener-
ally not negligence. (Utah) Herndon v. Salt Lake City, 827.
Dangerous Streets-Part of Street not in Condition for Travel.
9. PUBLIC STREETS.-The Gist of an Action Against a City for
Personal Injuries sustained from an alleged dangerous street is negli-
gence, and there can be no actionable negligence unless the city has
done or omitted to do something which in the exercise of ordinary
care and prudence it should have done or omitted. (Utah) Hern-
don v. Salt Lake City, 827.
10. PUBLIC STREETS-Duty to Put Whole Street in Condition
for Travel-If a city opens and undertakes to put the entire width
of a street in condition for travel, and invites the public to use the
whole thereof, it becomes the duty of the municipality to exercise
ordinary care to maintain the entire width of the street in a condition
reasonably safe; but if the city works only a part of the street and
puts it in condition for travel, then it is required to maintain only
that part in a reasonably safe condition. Whether the part that is
opened and worked is reasonably sufficient for public convenience may
be a question of fact. (Utah) Herndon v. Salt Lake City, 827.
11. PUBLIC STREETS-Maintenance of Whole or Part of Street
for Travel.-In opening a street, whatever may be its nominal or
platted width, it is primarily a matter within the discretion of the city
to say whether it will prepare the whole or only a portion of the
width of the street for travel. In the business portion of the city, or
where travel and the convenience of the public require it, the whole
width of the street must generally be made and maintained passable
and reasonably safe; where the whole width of the street has been
prepared and opened for travel, whether primarily necessary or not,
the city must thereafter maintain the whole street in a reasonably
safe condition throughout its entire width; but in some places, es-
pecially in outlying districts, it may ordinarily determine what por-
tions of the streets it will prepare for travel, and in such places it
need maintain in a reasonably safe condition only that portion which
is opened and set apart for travel. (Utah) Herndon v. Salt Lake
City, 827.
12. PUBLIC STREETS-Maintenance of Whole or Part for Travel.
Whether a city, in opening a street, has prepared a sufficient width
for passage to respond to the needs of the public may be a question
of fact for the jury, and whether a city has maintained its streets
in a reasonably safe condition for travel (whether throughout their
entire width if the whole width is opened, or over that portion which
is opened and prepared for travel) is always a question of fact to
be determined by the jury from all the facts and circumstances in
the particular case. (Utah) Herndon v. Salt Lake City, 827.
13. PUBLIC STREETS-Maintenance of Whole or Part for Travel.
If it is made to appear in an action for injuries caused by a danger-
ous street that the street is not one that has been prepared for travel
throughout its entire width, or that the particular place in question
is one where this has not been done, the court should instruct the
jury specially with regard to the duty of the city in this regard; and,
if the question arises as to whether the city has prepared a sufficient
width for travel where less than the whole width has been prepared,
the jury should be required to find from all the facts and circum-
stances whether or not the space prepared by the city was reasonably
sufficient. In case the claim is made that the space prepared is
insufficient, this should be alleged in the complaint as one of the
grounds of negligence, so that the city may be prepared to meet it at
the trial. (Utah) Herndon v. Salt Lake City, 827.
14. PUBLIC STREETS-Driver Departing from Traveled Track.-
It is not the law that a person driving on the streets in all parts of a
city may at will depart from the traveled track, either by day or
night, and if he encounters a natural or artificial obstruction and
sullers injury, that he may recover damages from the city. (Utah)
Herndon v. Salt Lake City, 827.
15. PUBLIC STREETS—Duty to Put Up Barriers.-As a Rule a
City is not required to put up barriers to prevent travelers from
driving off the traveled portion of the streets. Barriers are generally
required only where an obstruction or excavation is placed or made
in the traveled part of the street, or where the excavation or danger-
ous declivity is so near the traveled part of the street that it makes
it a dangerous place to pass over. In other words, barriers are in-
tended to make the passageway safe, and not to mark or define its
limits so as to warn travelers not to drive outside of them. (Utah)
Herndon v. Salt Lake City, 827.
16. PUBLIC STREETS-Duty to Place Signals or Barriers.—Where
a city opens and prepares only a part of a street for use, and the
remaining portion is rough or has obstructions upon it, it is not, as a
rule, the duty of the city to mark the limits of the traveled portion
or to place signals at or near such obstructions to warn travelers. It
is the duty of the traveler to remain within the wrought and trav-
eled portion of the street, and if that portion is not reasonably
sufficient for public use, he may complain upon that ground. (Utah)
Herndon v. Salt Lake City, 827.
17. PUBLIC STREETS Maintenance of Part of the Street for
Travel. Where a city prepares only a portion of a street for travel, it
may be a question of fact as to whether such portion is reasonably
sufficient. As to whether it is reasonably safe in view of all the
surrounding circumstances is always a question of fact. And the jury
should be instructed, in an action for injuries received by a traveler
in driving without the traveled portion, with regard to the duty of
the city in opening and preparing its streets, and when and for what
purpose barriers are required. (Utah) Herndon v. Salt Lake City,
18. PUBLIC STREETS-Duty to Place Lights or Signals. It is
not ordinarily the duty of a city to place lights or warning signals or
to put up barriers along the margins of its streets, or to mark or
define the wrongful or traveled portions of them. (Utah) Hern-
don v. Salt Lake City, 827.
PUBLIC STREETS-Departure from Traveled Course.-If the
part of a street that has been prepared for travel is of sufficient width
and reasonably safe within that width to permit a driver to pass
over it, and he departs therefrom without cause, he cannot complain
that the street was not worked to a wider extent, upon the sole
ground that others at other times may have required, or might require,
more space in passing over it. (Utah) Herndon v. Salt Lake City,
See Gaming, 1-3; Navigable Waters, 10.
National Banks, taxation of the franchises of, 883.
1. NAVIGABLE WATERS.-The Test of the Navigability of a
Stream is not whether the tide ebbs and flows there, but whether it
is navigable in fact. (Or.) Hume v. Rogue River Packing Co., 732..
Boundaries Between States-Concurrent Jurisdiction.
2. NAVIGABLE BOUNDARIES.—The Concurrent Jurisdiction
Given to States over navigable rivers constituting the boundary be
tween them is not joint in the sense that only legislative acts adopted
by both states can be effective on the boundary waters; it is not es-
sential to the right of one of the states to enforce its law thereon
that the same shall have been acquiesced in or approved by the other.
(Or.) State v. Nielsen, 765.
3. NAVIGABLE BOUNDARIES-Regulation of Right to Fish.-
Where adjoining states have concurrent jurisdiction on the navigable
waters forming their boundaries, the laws of each state regulating
the common right to take fish from such waters are valid and bind-
ing, when not in conflict; and if there is a conflict, the law of the
state which is the most restrictive in its character must prevail, and
to that extent the state which first assumes to act has jurisdiction
to the exclusion of the other. (Or.) State v. Nielsen, 765.
4. NAVIGABLE BOUNDARIES-Regulation of Right to Fish.—
Under the act of Congress giving the states of Oregon and Washing-
ton concurrent jurisdiction over the Columbia river so far as it forms
the boundary between them, the former state may prohibit fishing
with a purse-net over the entire river, and a license by the fish com-
missioner of Washington to a resident of that state to fish with a
purse-net confers no right on him to fish on the Washington side in
violation of the Oregon statute. (Or.) State v. Nielsen, 765.
NAVIGABLE WATERS-Right of State in Tide Lands.-By
virtue of its sovereignty, the state of Oregon, upon its admission
into the Union, became vested with the title to all the shores of the
sea and arms of the sea covered and uncovered by the ebb and flow
of the tide, usually called tide lands, as well as of the land under
all of the navigable waters within the state; subject, however, to the
public right of navigation and to the common right of the citizens
of the state to fish therein. (Or.) Hume v. Rogue River Packing
Co., 732.
6. NAVIGABLE WATERS Title and Rights of Owner of Upland.
The owner of upland bordering on navigable water has no title in
the adjoining lands below high-water mark, nor any rights in or
over the adjoining waters as appurtenant thereto. (Or.) Hume v.
Rogue River Packing Co., 732.
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