DEMURRER. See APPEAL, 1. ARREST AND BAIL, 2. CERTIORARI, 4. MU-
NICIPAL CORPORATIONS, 20. PAYMENT, 1.

DEPOSITS. See EMINENT DOMAIN, 4, 6-8.

SLANDER, 4.

DIRECTING VERDICT. See CORPORATIONS, 3. MORTGAGES, 6.

DISCOUNTS. See BILLS AND NOTES, 3-5.

DISCOVERY. See ACTIONS, 1.

DISCRETION. See JUDGMENTS, 4-7. REPLEVIN, 3.

DOCKETS. See JUSTICES' COURTS, 1, 2, 4.

DOGS. See MUNICIPAL CORPORATIONS, 11, 12.

DOMINANT ESTATE. See EASEMENTS.

DOWER. See WILLS, 10-14.

DUPLICITY. See APPEAL, 2.

EASEMENTS.

LIMITATION OF ACTIONS, 3.

See ARBITRATION, 4.

In general the owner of an easement upon another's land is bound
to make all necessary repairs. The owner of the servient es-
tate is not bound to make repairs in the absence of an agree-
ment to do so. Koch v. Hustis,
599

EJECTMENT.

1. In an action of ejectment to recover a leasehold estate, a judg-
ment, rendered in an action for unlawful detainer, was offered
in evidence, but not preserved in the bill of exceptions. The
complaint in the action for unlawful detainer, preserved in the
bill of exceptions, alleged that the term created by the lease "by
the act and contract of the parties was terminated." The de-
mised premises constituted the homestead of the lessee, and the
written surrender was made by the husband without the wife's
signature. Held, that the judgment must be presumed to have
followed such complaint, and did not justify the eviction of the
wife from the premises. Beranek v. Beranek,
272

2. In actions of ejectment, subd. 7, sec. 3084, Stats. 1898, requires
that the "verdict," if rendered in plaintiff's favor, shall specify
the estate which shall have been established on the trial, and
sec. 3086 provides that the judgment in such actions shall be
in accordance with the verdict or decision of the court. Held,
that where a jury is waived, findings and judgment thereon
which fail to adjudicate the quality or extent of the title upon
which plaintiff's right to possession depends are erroneous.
Ibid.
3. Sec. 3092, Stats. 1898, provides that the court in which any judg-
ment in ejectment shall have been rendered shall, upon applica-
tion of the defeated party within one year from the rendition
thereof, vacate the judgment and grant a new trial "upon con-
dition that all costs recovered thereby . . . be paid," and
that "the applicant execute and file an undertaking" as therein

prescribed. Held, that the giving of such undertaking is a
condition precedent to the vacation of the judgment, and that
a new trial should not be granted until the judgment has been
vacated. Newland v. Morris,
394

4. Sec. 3092 further provides that the sureties on such undertaking
"shall justify their responsibility in the same manner as bail
on arrest;" and sec. 2704 provides that the qualification of each
bail on arrest must be that he is a resident and householder
or freeholder, and worth the amount specified in the order of
arrest "in property within the state," exclusive of property ex-
empt from execution. Held, that the right to a second trial in
ejectment being purely statutory, and the giving of the under-
taking prescribed being a condition precedent, omission to in-
sert in the justification attached to such an undertaking the
words, "in property within the state," is fatal to the order va-
cating the judgment and granting a second trial.
Ibid.

5. A deed by an executor or administrator pursuant to a contract
made by his decedent is declared by sec. 3911, Stats. 1898, to be
effectual to pass the estate contracted for as fully as if the con-
tracting party himself were still living, and then executed the
same. H., a life tenant in fact, but holding lands under an ad-
judication that she owned the fee, contracted to convey to D.
by "a good and sufficient deed," free from incumbrances except
taxes. On her death her administrator, pursuant to an order
of the proper court, conveyed to D. "all the right, title and in-
terest of the said H." in and to the lands described in said
contract. Held, that D.'s title being upon his contract, deed,
and the statute under which it was executed, it sustains a find-
ing that he had "color of title," and D. is therefore entitled,
under the provisions of sec. 3096, to recover for taxes he had
paid and improvements he had made. Falck v. Marsh, 88 Wis.
680, distinguished. Dorer v. Hood,
607
6. Sec. 3082, Stats. 1898, provides that a plaintiff in ejectment may,
in addition to the recovery of possession, recover for rents and
profits of the premises during the time they were withheld, not
exceeding six years prior to the commencement of the action.
In an action, by the unsuccessful defendant in an action of
ejectment, to recover for improvements, it appeared that the
plaintiff in the ejectment action had therein recovered judg-
ment for rents and profits, but for what period it was uncer-
tain, the evidence in that regard not being preserved in the bill
of exceptions. Held, that it will be presumed that the trial
court did not exclude evidence as to any rents and profits which
were properly a setoff against a recovery for improvements.

Ibid.
7. Secs. 3096 et seq., Stats. 1898, authorizing an unsuccessful de-
fendant in ejectment to recover for improvements, are not un-
constitutional.
Ibid.

8. The mere fact that improvements were made by the unsuccess-
ful defendant in ejectment after notice of plaintiff's claim, and
pending the ejectment action, is not evidence of bad faith. Ibid.
9. Where an unsuccessful defendant in ejectment takes possession
under a contract of purchase, and pursuant to its terms, the
deed of the vendor, when made, relates back to the date of pos-

session under the contract, and entitles him to recover for im-
provements from that date.

ELECTION by widow. See WILLS, 10-12.

ELECTIONS.

Ibid.

1. In proceedings to incorporate certain territory into a village, it
appeared from the certificate of the inspectors of the election
that ninety-one votes were cast by the electors of the territory.
The certificate further found and determined that, upon a can-
vass of the votes cast, eighty ballots were given by the qualified
electors resident in such territory, forty-four of which were in
favor of incorporation. Held, in the absence of any showing
to the contrary, that it will be presumed that the excess of
votes over eighty were illegal and were properly rejected. State
ex rel. Holland v. Lammers,
398

2. In such case the majority of the ballots, necessary under sec.
865, Stats. 1898, to determine the question of incorporation,
must be construed to mean the majority of legal ballots cast
on the question of incorporation.
Ibid.

EMINENT DOMAIN

Just compensation: Costs: Interest.

1. Since private property cannot be taken by the right of eminent
domain without just compensation therefor being first ascer-
tained and paid to the owner or deposited in court for his use,
the statutes designed to accomplish such ascertainment and
payment must be construed so as to fully satisfy the constitu-
tional guaranty in that regard or be held void. Stolze v. M. &
L. W. R. Co.
44
2. A just compensation for property taken by the right of eminent
domain, within the meaning of the constitution, includes such
reasonable costs and disbursements as are taxable in favor of
a prevailing party in similar proceedings incurred by the prop-
erty owner in securing both the ascertainment and payment of
such compensation.
Ibid.
3. Costs incurred by a property owner in fruitless endeavors to col-
lect his award in condemnation proceedings, which are ordi-
narily taxable in favor of a judgment creditor under similar
circumstances, must be paid to him as part of the compensa-
tion for his property taken or damaged.
Ibid.

4. If a party, seeking to acquire property by the right of eminent
domain, deposits money covering the award of the commis-
sioners pursuant to sec. 1850, Stats. 1898, but neglects to pay or
deposit, in the manner required by the statute, the additional
sum of money awarded to the landowner by the judgment on
appeal, or to pay the reasonable costs incurred in fruitless en-
deavors to collect such judgment, and such costs incurred, if
any, in an equity action to restrain the use of the property in-
volved until after just compensation is paid, and while such
equity action is pending he pays into court where the report of
the commissioners was recorded, money, sufficient with the first
deposit to cover the face of the judgment and interest thereon

up to the time of such payment, such payment alone will not
satisfy the right of the owner of the property to a just compen-
sation therefor.
Ibid.
5. If the facts as to payment as aforesaid be pleaded in the equity
action by supplemental answer as a defense and be established,
even if the amount paid were all the landowner was entitled to
receive, that would not show extinguishment of the cause of
action from the beginning, the plaintiff not having accepted
the money or done anything indicating assent to the payment
into court as a settlement of his suit. In such circumstances
the rule has not been applied that a cause of action which has
been extinguished during the pendency of a suit to enforce it ·
cannot be the basis of a judgment for costs.
Ibid.
6. In the situation indicated in No. 4, if the party seeking to ac-
quire property desires to submit to and satisfy the condition
precedent thereto and stop the litigation, it should pay, in the
proper way, sufficient money to cover the face of the judgment
and interest, the costs ordinarily recoverable in proceedings
to enforce payment of a judgment, and the costs of the equity
action up to the time of such payment; and for the purpose of
determining the amount required therefor the costs should be
ascertained by proper proceedings in the equity action. Ibid.

7. Where the right is sought, by sovereign authority, to take or
damage private property, the owner thereof may refuse to ac-
cept money deposited to satisfy his award in condemnation pro-
ceedings till the whole amount to which he is entitled shall
have been so deposited, and claim interest on the award as first
made from the date thereof to such time.
Ibid.

Same: Award: Title to deposits.

8. Money deposited with the clerk of the circuit court under secs.
1850, 1851, Stats. 1898, to cover an award of commissioners in
condemnation proceedings, cannot be diverted from the purpose
thereof by the depositor or its creditors. It must remain sub-
ject to the order of him for whom it was deposited until he
may choose to claim it in the manner prescribed by such sec-
tions. Stolze v. M. & L. W. R. Co.
44

Same: Judgment: Satisfaction.

9. The way money must be paid or tendered in condemnation pro-
ceedings, to satisfy the obligation of the party seeking to ob-
tain property by right of eminent domain, is governed by stat-
ute, not by common-law rules. Stolze v. M. & L. W. R. Co. 44
10. The final award in condemnation proceedings having been made
by a judgment on appeal from the award of commissioners, the
formal extinguishment of such judgment is not a condition pre-
cedent to the acquirement of the rights sought to be obtained.
The payment, in the manner indicated by statute, of money
sufficient to satisfy the constitutional guaranty of a just com-
pensation to the landowner for his property, taken or dam-
aged, is all that is necessary.
Ibid.

11. By payment, in the manner indicated in the statute, of the sum
of money required to compensate a landowner for his prop-
erty, taken or damaged by the right of eminent domain, a judg
ment finally determining the amount of such compensation is

VOL 113-45

thereby paid, and satisfaction thereof becomes a matter which
may be accomplished in any manner provided by law for ob-
taining satisfaction of record of a paid judgment.
Ibid.
12. The sum of money to cover an award in condemnation proceed-
ings, or a receipt showing payment thereof to the party en-
titled thereto, must be deposited in the office of the clerk of the
circuit court where the report of the commissioners was filed
and recorded, and the facts in that regard be noted by such
clerk at the foot of such record, to fully vest the title to the
right sought to be acquired in the party seeking to obtain the
same, regardless of whether the award as finally made is in
the form of a judgment rendered in another county to which
the condemnation proceedings were removed for trial on appeal
from the first award.
Ibid.

See ACTIONS, 2-7. CORPORATIONS, 5. EMINENT DOMAIN, 4, 5. QUIET-
ING TITLE. RAILROADS, 1. VENDORS.

1. Plaintiff's application to the trial court for leave to rescind a
land contract upon repaying the money he had received and to
require the defendants to reconvey, made in an action brought
to reform the contract and for other relief, comes too late, when
no claim therefor was made until after the cause had been
heard on appeal, followed by the completion of a trial before a
referee. Gates v. Parmly,
147

2. A vendor of lands sued to reform the contract, to collect the un-
paid purchase price, and for other relief. On appeal the su-
preme court directed defendants to quitclaim back certain
tracts, title to which was defective, and that plaintiff be
charged with the value thereof. On a retrial, such lands hav-
ing in the meanwhile been sold, defendants, in accordance with
such mandate, tendered a quitclaim deed but failed to make
full disclosures as to the facts relative to such sale. Held, that
defendants having voluntarily disenabled themselves from per-
forming such mandate, and having failed to make full dis-
closures so as to enable the court to adjust the equities thus
arising, were not entitled to have the value of such lands de-
ducted from the purchase price.
Ibid.

3. In such action where the items of credit to the plaintiff on which
no interest was allowed substantially offset items of credit to
defendants upon which interest was disallowed, and the trial
court in its findings of fact allowed to defendants amounts paid
for taxes, etc., on lands the title to which had failed, but with-
out interest, because interest was not allowed plaintiff on the
value of timber sold by defendants from the same lands, such
offset of interest was a fair and equitable adjustment between
the parties, and the failure of the court to carry such adjust-
ment into the judgment is prejudicial error.
Ibid.

4. If an aged parent conveys his property to his son to secure sup-
port for himself during the remainder of his life, whether the
agreement calls for support generally or by paying to the
grantor money or property in specific amounts at specified