great extent which is not broken up into closes, they must frame their deposited plans in such a way as to show how much of it they mean to acquire power to take. Protheroe v. Tottenham & Forrest Gate R. Co., (1891) 3 Ch. 278.

Deviation from Original Plan-Necessity for Plan of Deviation.-Under "The Railway Act of Ontario," R. S. O. chap. 170, a railway company having filed an original plan showing the location of its line and desiring to acquire other land compulsorily for the purpose of an alteration from the original location, however small the deviation may be, must file, under sub-section 7 of section 10, a plan of the proposed deviation. And where a railway company without having filed such plan applied for and obtained from a County Court Judge a warrant for possession on a notice in which in addition to a sum in cash certain crossings and station privileges were offered as compensation for the land and the damages, and which was accompanied by a surveyor's certificate that the sum offered was a fair compensation therefor: Held, that the foundation of the Judge's authority to issue a warrant rested on a proper compliance by the railway company with the above sub-sections, and that he had acted herein without jurisdiction. Brooke v. Toronto Belt Line R. Co., 21 Ont. 401. Petition Need Not Show Performance of Conditions Precedent. In proceedings to condemn land for railway purposes under New York Code Civil Procedure, § 3360 subd. 7 which provides, that the petition shall contain "a statement that it is the intention of the plaintiff, in good faith, to complete the work or improvement for which the property is to be condemned, and that all the preliminary steps required by law have been taken to entitle him to institute the proceeding," it is not necessary that such petition should set forth the facts in detail showing performance of all the conditions precedent to be observed by plaintiff before it can condemn the lands. Rochester R. Co. v. Robinson, 133 N. Y. 242. The court said: "The proceeding was dismissed, and the application for the appointment of commissioners of appraisal denied, upon the sole ground that the petition was fatally defective in not setting forth the facts showing that all the conditions precedent to be observed by the plaintiff before it can take property for a public use against the will of the owner had been performed. In this respect the averment in the petition is a literal compliance with the provisions of subdivision 7 of section 3360 of the Code. It is objected to this form of pleading that it does not state facts, but only the legal conclusions of the pleader; and that it is therefore insufficient to confer jurisdiction upon the court to proceed with the matter and enter final judgment of condemnation. We do not think the objection is tenable. It is a sufficient answer to such a criticism that the whole proceeding is regulated by statute, and that upon this point the law has defined with precision and exactness the form and substance of the allegation required. The legislature does not seem to have left any room for doubt or construction upon the subject. The section begins with a declaration that the proceeding shall be initiated by the presentation of a petition, which shall set forth certain specified facts enumerated in subdivisions 1 to 6, inclusive; and, wherever a general statement is regarded as insufficient, care has been taken to provide that facts shall be stated in detail.-as, where the name or place of residence of an owner cannot, after diligent inquiry, be ascertained, it may be so averred with a specific statement of the extent of the inquiry which has been made.' But when subdivision 7 is reached, a marked change in the phraseology and grammatical construction of the section occurs. Instead of requiring specific facts to be stated, it is provided that the petition shall contain a statement that it is the intention of the plaintiff, in good faith, to complete the work or improvement for which the property is to be condemned; and that all the preliminary steps required by law have been

taken to entitle him to institute the proceeding.' This change is significant, and was evidently intentional; and we are not at liberty to import into the paragraph provisions and requirements which the framers of the law have purposely omitted from it. While the plaintiff might, if he should so elect, set forth the several acts done by him, which constitute the preliminary steps referred to, yet he may adopt the language of the statute, and in the concise form there prescribed tender an issue to the defendant upon this branch of his case. The latter cannot be prejudiced by such a practice. What the law requires the plaintiff to do before the commencement of the proceeding is as well known to the one party as the other. If the defendant has knowledge that any preliminary step required has not been taken, he can, under section 3365, put the allegation in issue by a specific denial, or by including it in a general denial of all the averments of the petition, or, if he has no knowledge or information sufficient to form a belief upon the subject, by a denial in that form, and thus compel the plaintiff to make proof of compliance with all the statutory requirements, or fail in the proceeding. An allegation of this kind is not correctly described as a conclusion of law. It is the averment of a fact,-one, it is true, which is a deduction from other facts known to the pleader to have an existence. It is what is aptly described as a resultant fact or a conclusion of fact, and it is such facts, and not evidentiary facts, which should be alleged in a pleading. Badeau v. Niles, 9 Abb. N. Cas. (N. Y.) 48. A statement is not to be deemed any the less a statement of fact because its ascertainment may depend upon some principles of law applicable to various other facts and circumstances, (Prickhardt v. Robertson, 17 Fed. Rep. 500) and it has always been held to be good pleading under the Code to state facts according to their legal effect. Brown v. Champlin, 66 N. Y. 214; Thayer 7. Gile, 42 Hun, (N. Y.) 268. Pleadings are not now to be strictly construed against the pleader, and averments which sufficiently point out the nature of the pleader's claims are sufficient, if under them, upon a trial of the issue, he would be entitled to give all the necessary evidence to establish his claim.' Berney v. Drexel, 33 Hun, (N. Y.) 34-37. An allegation that due proceedings had been taken to establish a mechanic's lien was held, on demurrer, to be good. McCorkle v. Herrmann, (Sup.) 5 N. Y. Supp. 881. In providing that the plaintiff may allege in this general way the performance of the necessary statutory conditions precedent, the legislature has not introduced a novel rule of pleading. They have simply followed a declared policy upon this general subject, which first appeared in section 139 of the Code of 1848, and was re-enacted as section 533 of the present Code. It is there provided that in pleading the performance of a condition precedent in a contract it is not necessary to state the facts constituting performance; but the party may state, generally, that he duly performed all the conditions on his part, and, if the allegation is controverted, he must, on the trial, establish performance. The legislature evidently failed to discover any good reason why it would not be equally safe and proper to permit the performance of statutory conditions precedent to be pleaded in the same way. A like rule has been adopted with reference to pleading a judgment or other determination of a court or officer of special jurisdiction. Code, § 532. It works no hardship to the defendant, but really affords him greater latitude of pleading, for, if but a single step has been omitted, he can safely deny the general allegation, and thus compel the plaintiff to make proof of performance of every essential condition. These conclusions do not involve any relaxation of the rule of construction which requires that statutes which seek to deprive the citizen of his property against his will shall be strictly construed. The law under consideration does not authorize the taking of the property of any one. It merely prescribes the method of judicial procedure in those cases where, by

virtue of the provisions of some other law, the exercise of the right of eminent domain has been conferred for public purposes. It is to receive the same liberal construction as the other provisions of the Code, which regulate the practice in actions and proceedings in courts of justice, without regard to the magnitude or value of the property rights which may be involved. The plaintiff is not relieved of the necessity of making strict proof of its right to take the defendant's property, provided the allegations. of the petition are controverted. If, upon the trial, it is unable to show that every preliminary step which is of the substance of the proceedings has not been taken, its effort to impose an additional burden upon the premises of the defendant will be defeated; but the question here is one of pleading, and not of proofs."

Allegation of Ownership Necessary in Action for Damages. To recover damages caused to a city lot by the construction of a railway it is essential that the plaintiff, in the action to recover, allege that he was the owner of the lot at the time of the injury to the property. The court said: "It is the law of this state that a lot owner can only recover for those damages. which he has sustained from the construction or operation of a road subsequent to the time when he acquired his title to the property. If the road has been constructed and is in operation at the time he gets title, he is supposed to have taken it cum onere, and to have paid the lesser price because of the disadvantages. The damages arising from the construction inure to the holder of the fee, and do not pass by the deed which transfers the title. This principle, which has been recognized in the previous adjudications of the state, in no manner affects the right to recover any damages which may be sustained from those acts of the company which may further diminish the value of the property. The allegation of ownership with reference to the time of construction, is essential, because it bears largely on the measure of recovery. It is a traversable fact on which the company has the right to take issue and be heard. It is equally true that for the construction of a road along the streets of a city, when it is built under statutes which authorize its construction, and under ordinances which permit the use and occupation of the streets of the city, the abutting lot owner can only recover for the special damages which he sustains beyond what he suffers in common with the other denizens of the city. It is a necessary corollary that, if these special damages only are recoverable in this sort of an action, they must be averred, and averred in a traversable fashion, so that evidence may be taken upon the issue, and it submitted to the jury. The complaint was defective in these particulars, and, since they are of the substance, the ruling of the court may be complained of on this appeal. City of Denver v. Bayer, 7 Colo. 113, 2 Am. & Eng. Corp. Cas. 465; Denver & S. F. R. Co. v. Domke, 11 Colo. 247; Jackson v. Ackroyd, 15 Colo. 583; Town of Longmont v. Parker, 14 Colo. 387; Walley v. Platte & D. Ditch Co., 15 Colo. 579; Indianapolis, B. & W. R. Co. v. McLaughlin, 77 Ill. 275." Colorado Midland R. Co. v. Trevarthen (Colo. Oct. 26, 1891) 27 Pac. Rep. 1012.

Judgment for Damages Should be to Land Owner Personally.-Under the constitution and statutes of Illinois when the only question in condemnation proceedings is simply as to the damages resulting to a particular tract of land claimed by one whose ownership is not disputed and who has offered no evidence as to the nature or extent of his interest, the judgment upon the report or verdict should either direct payment to the plaintiff or a deposit with the county treasurer for his benefit, so as to secure to him personally, the entire damages awarded, and an order directing the same to be paid to the county treasurer "for the benefit of the owners and parties interested" in the lands is erroneous. The court said: "The bill of rights of the constitution of Illinois (Const. 1870, art. 2, § 13) declares:

Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the state, shall be ascertained by a jury, as shall be prescribed by law.'

"The eminent domain act, passed under this constitutional provision, (Rev. St. Ill. 1874, chap. 47, p. 475.) directs in terms that just compensation for private property taken shall be ascertained by a jury as hereinafter prescribed. Section 1. The procedure thereafter provided was a petition by the party authorized to take the property to a judge of the circuit or county court, describing the property and naming the owners appearing of record, if known, or, if not known, stating that fact, and praying that the compensation be assessed. Section 2. In the one petition any number of parcels of property might be included, and the compensation for each assessed separately by the same or different juries. Section 5. Process was to be served, as in cases in chancery, (section 4,) a trial had, and the verdict, or report of the jury,' as it is called, was to clearly set forth and show the compensation ascertained to each person thereto entitled.' Section 9. The oath to be taken by the jury contemplated also the same separate ascertainment. Section 8. Section 10. The judge or court shall, upon such a report, proceed to adjudge and make such order as to right and justice shall pertain, ordering that petitioner enter upon such property, and the use of the same, upon payment of full compensation, as ascertained as aforesaid.' Section 11 adds that any person not made a party may become such by filing his cross-petition,' and that his rights shall thereupon be fully considered and determined.' Section 14 is as follows: Payment of compensation adjudged may, in all cases, be made to the county treasurer, who shall, on demand, pay the same to the party thereto entitled, taking receipt therefor, or payment may be made to the party entitled, his, her, or their conservator or guardian.'

"These sections make it clear that under the pleadings the judgment entered upon this report or verdict should either have directed payment to the plaintiff, or that the_deposit with the county treasurer was for his benefit. In other words, Convers' right to this money should have been settled by the judgment, and not left open to further inquiry." Convers v. Atchison, T. & S. F. R. Co., 142 U. S. 671.

Collateral Attack on Condemnation Proceedings- Misjoinder of Parties.The misjoinder of parties defendant, or the omission to recite, in the order appointing commissioners, that they are disinterested, are not subjects for collateral attack upon condemnation proceedings. The court said: "The objections made by plaintiff to the condemnation proceedings, that the owners of other property were joined with plaintiff when all parties thus joined did not reside in the same circuit, and that the orders of the judge made in chambers did not recite that the commissioners were disinterested, cannot be heard in this collateral proceeding, having determined, as we have, that the court had jurisdiction of the subject matter and the persons of the land owners. These are all matters of exception, and come too late now. Quincy, M. & P. R. Co. v. Kellogg, 54 Mo. 334; Missouri Pac. R. Co. v. Carter, 85 Mo. 448, 28 Am. & Eng. R. Cas. 249; Evans v. Haefner, 29 Mo. 141; Quayle v. Missouri, K. & T. R. Co., 63 Mo. 465; Kellogg v. Price, 42 Ind. 366; Huling v. Kaw Valley R. & Improvement Co., 130 U. S. 559, 39 Am. & Eng. R. Cas. 52; Lewis, Em. Dom. 601." Thompson v. Chicago, S. F. & C. R. Co. (Mo. March 2, 1892) 19 S. W. Rep. 77.

AMERICAN CANNEL COAL CO.

ย.

HUNTINGBURG, TELL CITY & CANNELTON R. Co.

(Indiana Supreme Court, Jan. 5, 1892.)

Eminent Domain-Award of Appraisers.-The award agreed upon by two of three appraisers, in the appropriation of land by a railroad company, is valid.

Appraisal of Several Tracts of Same Owner--Award in Gross.—In appraising damages to several tracts of land belonging to the same owner, an award of a sum in gross covering damages to all the tracts is sufficient, without stating separately the damage to each.

Presumption of Qualification of Appraisers.-On appeal, it will be presumed, in the absence of a specific averment to the contrary, that the appraisers, in proceedings to appropriate lands for railroad purposes, were duly qualified.

APPEAL from Spencer County Circuit Court.
Proceedings for the appropriation of lands.
A. H. Garland and Heber 7. May, for appellant.
Iglehart & Taylor and W. Henning, for appellee.

of case.

MCBRIDE, J.-The appellee, a railroad corporation, appropriated for the purposes of its roadbed, depot, station, shops, etc., certain land belonging to the appellant. The apropriation was made pursuant to the provisions Statement of of sections 3996, 3907, Rev. St. 1881. Error is assigned on the action of the circuit court in sustaining demurrers to certain exceptions filed by the appellant to the award of the appraisers. The first exception is as follows: "Because the appraisers did not agree upon any award, but two of them fixed the amount of the damages at $300, and the other one at $1,438, so that there was no agreement of the. said appraisers." This exception proceeds on the theory that the award of appraisers in appropriation proceedings, like the verdict of a jury, must be agreed to by all of the appraisers to be valid. Unanimity among the appraisers is not required. An appraisement concurred in by two is sufficient. Rev. St. 1881, § 240, cl. 2; Piper v. Connersville & L. Turnpike Co., 12 Ind. 400; Cicero Hygiene Draining Co. v. Craighead, 28 Ind. 274; Hays v. Parrish, 52 Ind. 132; Scraper v. Pipes, 59 Ind. 158.

66

The third exception is as follows: Because it does not