The inquiry arises upon the facts and rules of law as stated, Did the appellants sustain an injury substantially impairing or destroying

the street in front of his lot had upon it no ob- | construction and operation, but it means those structions. The property rights of the lot- who reside in the immediate vicinity of the owner, as against the public, are coterminous railroad, and are subject to the inconveniences with the lines of his lot, but that property incident to such a structure. The location right may be obstructed, and its uses defeated, and operation of a railroad upon a public by cutting off ingress and egress to and from highway may occasion incidental inconvenisuch lines from points upon the street beyond ence to an abutting landowner, but until it such lines. In such case there should be, and cuts off or materially interrupts his means of is, a remedy. This conclusion is held in the access to his property, or imposes some addicase of Pennsylvania Co. v. Stanley, 10 Ind. tional burden on his soil, his injury is the App. 421, where the remote obstruction of an same in kind as the community in general. alley created a cul de sac which it was neces- Injuries which result from the careful consary to enter to gain access to the plaintiff's struction and operation of a railroad on the abutting lot, but from which there was no land of another are common to all those whose exit. The holding of the case cited finds sup- lands are in close proximity to such road, and port from the rule as to the character of inter- for such injuries there can be no recovery in est of the lotowner in the street, as stated in the absence of a statute entitling the owner to Indiana, B. & W. R. Co. v. Eberle, 110 Ind. maintain such action. Grand Rapids & I. R. 542, 59 Am. Rep. 225. And see Buhl v. Fort Co. v. Heisel, 38 Mich. 62, 31 Am. Rep. 306; Street Union Depot Co. 98 Mich. 596-608, 23 Chicago v. Union Bldg. Asso. 102 Ill. 379, 40 L. R. A. 392. Indianapolis v. Kingsbury, 101 Am. Rep. 598; Rigney v. Chicago, 102 Ill. 64; Ind. 200, 51 Am. Rep. 749, is cited by appel- Indiana, B. & W. R. Co. v. Eberle, supra. lants as enlarging the property rights of a lot- The same statement of the rule and the same owner in the street beyond that stated by us, definition were given by the late Judge Mitchell and as carrying it throughout the length of the of this court, in Indiana, B. & W. R. Co. v. street. In that case it was held that where Eberle, supra. The reason of the rule was one dedicates a street as part of an addition to stated in Fossion v. Landry, supra, by a quotaa city, and sells a lot with reference to such tion from Blackstone's Commentaries (book 3, street, his grantee takes, by implied grant, p. 219), to the effect that only private ways such an interest in the street so dedicated as have private remedies, while public ways are that said grantor could not vacate the street, the subjects of indictment only, and that speand thereby defeat that implied grant. No cial injury not suffered in common with the question is there made as to the rights of the public must appear before private remedy public in such street, nor as to municipal con- may be employed. trol as against such grantee. The importance of a distinction between the two cases is manifested when we suggest that the appellants could not be reasonably held to possess prop-access to their lots and building from the reerty rights in Illinois street 3 miles north of the union station, the obstruction of which would entitle them to damages; nor could it be said that they might defeat, at that distant point, the construction of a viaduct, a tunnel, or an elevated railway, as an impairment of this easement. There is, however, this limitation upon every right of action of this class: that the plaintiff must suffer an injury different in kind, and not simply in degree, from that suffered by the community in general. Decker v. Evansville, S. & N. R. Co. 133 Ind. 493; Fossion v. Landry, 123 Ind. 136; Indiana, B. & W. R. Co. v. Eberle, 110 Ind. 543, 59 Am. Rep. 225; Terre Haute & L. R. Co. v. Bissell, 108 Ind. 113; Sohn v. Cambern, 106 Ind. 302; Dienger v. Chicago & G. T. R. Co. 98 Ind. 153; Pennsylvania Co. v. Stanley, supra. This rule, with a definition of the phrase "community in general," was recently stated by this court in the case of Decker v. Evansville, S. & N. R. Co. supra, as follows: "Whether the owner of a lot abutting upon a street may maintain a common-law action, where a structure in the street imposes no new burden on the soil owned by him, depends upon whether or not the occupation of the street with such structure results in damage to his property peculiar and different in kind from that which is suffered by the community in general. . . The community in general does not mean those who use the street, and yet reside at such a distance from the railroad, if such be the obstruction of which complaint is made, as to suffer none of the annoyances incident to its

mote obstructions of Illinois and McNabb streets? If this inquiry were confined to McNabb street, and if the property of the appellants were upon the south side of that street, the decisions in this state would require us to answer this inquiry in the negative. Dicenger v. Chicago & G. T. R. Co., Terre Haute & L. R. Co. v. Bissell, Indiana, B. & N. R. Co. v. Eberle, and Decker v. Evansville, S. & N. R. Co. supra. In the Eberle Case the facts were as above supposed, and after a full consideration of the question and of many authorities it was held that in the location and proper operation of a railroad upon that side of the highway remote from the plaintiff's lots there was no material interruption of the plaintiff's means of access; that "his injury and damage, while different in degree, are the same in kind as are those of the community at large;" and it is said: "All that is found is that the obstruction forces the travel over the highway nearer his lot, and makes access thereto more difficult and inconvenient. That, however, does not show that the erection of the embankment presents any substantial interference with his right of access over the highway as it was previously enjoyed and used, nor does it show any inconvenience of a kind different from that to which the community at large is subjected. The highway may be more difficult and inconvenient of passage at that point by all who use it, precisely as it is inconvenient as a means of access to the plaintifi's, lot. That the plaintiff, on account of the proximity of his residence, and because he uses the highway

more frequently, may suffer inconvenience | 596, 23 L. R. A. 392; Stanwood v. Malden, 157 greater in degree than others, may be con- Mass. 17, 16 L. R. A. 591; McGee's Appeal, 114 ceded. Mere inconvenience or disadvan- Pa. 470; East St. Louis v. O'Flynn, 119 Ill. tage, so long as the obstruction complained of 200, 59 Am. Rep. 795; Parker v. Catholic does not in some substantial degree impair or Bishop of Chicago, 146 Ill. 158; Glasgow v. St. deprive the plaintiff of the usual and ordinary Louis, 107 Mo. 198; Smith v. Boston, 7 Cush. means of access to his property, cannot give a 254; Whitsett v. Union Depot & R. Co. 10 right of action. Cummins v. Seymour, 79 Ind. Colo. 243; Houck v. Wachter, 34 Md. 265, 491, 41 Am. Rep. 618; Powell v. Bunger, 91 6 Am. Rep. 332; Polack v. San Francisco OrInd. 64; Lansing v. Smith, 8 Cow. 146." In phan Asylum, 48 Cal. 490; Gerhard v. Seekonk Terre Haute & L. R. Co. v. Bissell, supra, a River Bridge Comrs. 15 R. I. 334; Kings case like that above supposed with reference County F. Ins. Co. v. Stevens, 101 N. Y. 411; to McNabb street, it was said: "In the ab- Coster v. Albany, 43 N. Y. 399; Barr v. Oskasence of any showing that the tracks of appel- loosa, 45 Iowa, 275; Heller v. Atchison, T. & S. lant's railroad were located, constructed, and F. R. Co. 28 Kan. 625. The last of these deused on and over that part of First street of cisions is by Mr. Justice Brewer, and is perwhich appellee claimed to be the owner in fee, fectly clear in maintaining the proposition that the grievances whereof he complained, caused one whose access is not cut off, and whose or occasioned by the occupation and use of property rights in the immediate front of his First street for railroad purposes, were such lot are not invaded, and who suffers only from incidental injuries merely as he sustained in the loss of convenience of access, which of itcommon with the public, and not different in self may turn the tide of travel from his premdegree or character from those sustained by ises, and occasion loss of business and deprecithe public generally. For such injuries appel- ation in value of property, sustains damage of lee cannot maintain an action against the ap- the same kind, but in greater degree, than that pellant. McCowan v. Whitesides, 31 Ind. 235; sustained by the public generally. We have Cummins v. Seymour, 79 Ind. 491, 41 Am. not endeavored to collect all of the cases holdRep. 618; Matlock v. Hawkins, 92 Ind. 225; ing this view, but have included, as will be obDienger v. Chicago & G. T. R. Co. 98 Ind. served, the decisions of many states. We con153." It will be observed that in the cases cede that the holding of some of the courts of cited the rule was extended, not only to the this country are not in harmony with this, the maintenance of an obstruction, but also to the great weight of authority; and it would seem not unlawful operation of a railway, while in that the English rule, urged by appellants' the present case there is no allegation of im- learned counsel, cannot be reconciled with the proper operation of the railways; and the rule current of authority in this country, but that applies to the appellants with additional force rule has met with frequent criticism in the when it is remembered that their lots and cases we have cited, and is in some justified building do not abut upon McNabb street, and under acts of Parliament. However, we are they are only affected by an inconvenience in constrained to hold with the best American traveling to and from their premises, an incon-authority, even if the conflict with the Engvenience suffered alike by all of the commu- lish rule were sharply drawn and free from nity. distinction.

By the cases cited, the rule that added inconvenience from such obstructions in the street upon the side of the center line of the street remote from the property, and not upon the property owner's fee, is damnum absque in juria, has become so firmly settled in this state that only legislative action can disturb it. It is therefore unnecessary to inquire as to the rule in other states or in England, as we are asked to do. The rules so found, in the absence of direct authority upon the question, would lead with unerring certainty to a decision of the remaining question, namely, the effect of the obstruction upon Illinois street. The easements of access, of light, and of air are all confined to the street in front of the lot, and, when it is ascertained that a remote obstruction does not affect these, there is no injury, in a legal sense, any more than in the cases above stated, of obstructions in front of the lot; and when it is established that a mere inconvenience of access, or a more circuitous route of access, does not constitute legal injury, no right of action exists. But we need not stop with the application of our own cases, since the direct question has been decided against the contention of the appellants in numerous cases from other states, involving like obstructions and like injury, and where all of the contentions made in this case were denied. Buhl v. Fort Street Union Depot Co. 98 Mich.

There is in this country a line of holdings which is sometimes thought to conflict with what we have said to be the current of authority, namely, those cases which include the holding of liability for obstructions by elevated railways. These, however, should be distinguished as not having relation to access, but to the easement of light or air, and as encroaching upon the immediate lot front. All of the cases we have cited to the question now under consideration involved the vacation of one or more of several avenues of access, and left other avenues which required a more circuitous course in reaching the property of the plaintiff. In several of the cases, provisions of the state Constitutions and statutes reserving damages for the taking of or injury to property were considered as not allowing damages where the injury was of the character suffered by the community in general. In some of the cases it was urged, as it has been in this case, that if, instead of vacating the street, the proceeding had been to establish a street, the appellants would have been subject to assessment for benefits therefrom, and for that reason they would be entitled to damages. It was held not to affect the question. Buhl v. Fort Street Union Depot Co., Stanwood v. Malden, and East St. Louis v. O'Flynn, supra; State, Kean, v. Elizabeth, 54 N. J. L. 462; Chicago v. Union Bldg. Asso.

as to deny a recovery by the appellants. They have ample means of access to their property, and the vacations complained of do not affect the access to their lot front, but are remote from it. If they have suffered in the depreciation of the value of their property by the in

102 Ill. 379, 40 Am. Rep. 598. In the case of State, Kean, v. Elizabeth, supra, it was said in this connection: "It is assumed by counsel for prosecutrix that, because the prosecutrix was assessed for a benefit resulting from the opening of this street peculiar to herself, that she got a vested right in the continued exist-convenience of the public travel to reach it, or ence of the street, of which she could not be of the appellants to reach other parts of the stripped without compensation. But this, I city, that inconvenience is suffered alike by all think, is more plausible than substantial. While who may desire to go to the appellants' propthe right she got may have been of peculiar erty, or from that property to other parts of benefit to her property, yet it was a right which the city. It is therefore an injury suffered in she shared with the public. The privilege of common by the appellants and the public in using the street was shared by each member of general, though the degree of appellants' inthe community. It may not have been of the jury may be, and probably is, the greater. same value to each member of the community We conclude that the circuit court did not but the right to use the street was in each citi-err in sustaining the appellee's demurrer to the zen the same. It was exclusively a public complaint, and the judgment is affirmed. right, put under the control of the representatives of the public. It was subject to alteration or abolition when, in the judgment of those to whom the public interests were confided, those interests demanded such action. The assessments of benefits is presumed to be based upon the recognized power of the state and its agencies to modify or destroy the immediately in front of his premises or not, and provement.'

It has been suggested by counsel for the ap pellants that the question as to whether there has been an injury is one for the jury under proper instructions. The question has, with but few, if any, exceptions, arisen upon demurrer to the petition, as it does in this case. A statement of the facts submitted, and tested by the rules of pleading and principles of law, which otherwise would be given as charges to the jury, constitute the case, and call for judicial determination as a question of law. As to whether one whose access was not cut off by the vacation of a part of a street may recover has been expressly held to be a question of law. East St. Louis v. O'Flynn, and Stanwood v. Malden, supra. It should be conceded, of course, that, if legal injury is pleaded, the degree of that injury, in ascertaining the amount of recovery, may be submitted to the jury, but as to whether a legal injury is pleaded is a question of law for the court. In the absence of authority from other states, there could be no escape from the conclusion that our court has gone so far in the direction we have shown

Howard, J., concurring:

I am of opinion that the owner of real estate abutting upon a street or highway should be allowed such damages as he suffers for obstruction to the freedom of his access to his property, whether such obstruction is located im

whether he is the owner of the fee in the street or not. I think, notwithstanding the decisions to the contrary, that such property owner suffers injury by such obstruction which is different in kind, as well as in degree, from that which is suffered by the general public. There can be no doubt, however, that the overwhelming weight of authority, at least in this state, is in favor of confining the award for such damages to those who are deprived, in whole or in part, of access to that section of the highway immediately abutting upon or in front of their own real estate. While, therefore, in this case, it is not a matter of doubt that appellants have suffered great damages on account of the obstruction complained of, yet, following the authorities, their damages constitute an injury which must be borne without compensation.

McCabe, J., dissenting:

I concur in the opinion as to McNabb street, but I do not concur as to the obstruction of Illinois street.

Rehearing denied June 14, 1895.

MARYLAND COURT OF APPEALS.

the declared policy of the positive law of the latter, although it may have been made without the form or ceremony required in the latter state. 2. A lawyer of another state who declares that he is familiar with the law there may be allowed to prove such law as to the requisites of a valid marriage.

3. It cannot be assumed on appeal that answers of witnesses were prejudicial when they did not appear on the record.

4. A witness cannot testify to the general reputation of a woman for chastity while living with an alleged husband from whom she has since separated, in order to repudiate a presumption of marriage.

As to proof of foreign laws, see State v. Behr- 5. A divided reputation in the community man (N. C.) 25 L. R. A. 449.

as to the marriage of persons cannot be proved

APPEAL by defendants from a judgment of Laws, 111; Wrightman, Law of Marriage &

The doctrine lex loci contractus is subject to the limitation of many exceptions, and also to the general principle that it must not be contra bonos mores, nor contrary to the settled policy and laws of the state, or to the best interest of the citizens of the state where they are to be enforced. Story, Confl. L. $$ 87, 97, 98; Doe, Birt-tain a marriage is different from that which whistle. v. Vardill, 5 Barn. & C. 438, 9 Bligh, N. R. 51; Munro v. Saunders, 6 Bligh, N. R. 468: Brook v. Brook, 9 H. L. Cas. 193.

1895.

JACKSON V. JACKSON.

were the appellants on the former occasion. Inition of the child as theirs, can have no There was but a single issue involved, and that extraterritorial operation, and therefore canwas whether the appellee is the legitimate not give to such child in another jurisdiction daughter of Richard Watson Jackson, who an inheritable status not accorded to it by the died intestate some years ago. In passing on law of the latter jurisdiction. By the law of this issue, two juries in different counties have England, a child born out of wedlock was a By the law of Scotland, the subsefound by their verdicts that she is. The rec- bastard. ord now before us contains twelve bills of excep- quent marriage of the father and the mother, But that statute could tion, but it will not be necessary to review and their recognition of the child as theirs, them separately, because they form several legitimated the child. distinct groups, presenting but few questions not operate upon real estate in England, where the law gave to such a marriage no effect as which require any discussion.. legitimating prior born children. The same principle was decided in Barnum v. Barnum, We have said that in general 42 Md. 251, and Smith v. Derr, 34 Pa. 126, 75 Am. Dec. 641.

To the

The alleged marriage of the appellee's mother and father, if it took place, as has been twice found by separate juries, took place in the state of Pennsylvania. The evidence relied on to establish this marriage was general reputa- a marriage valid where performed is valid everyTo this broad rule there are, however, tion, cohabitation, and acknowledgment. The where. admissibility and sufficiency of such evidence exceptions. "These exceptions or modificato prove a marriage were fully considered on tions of the general rule may be classified as folthe former appeal, and we need not repeat lows: First, marriages which are deemed conhere what was so recently decided there. trary to the law of nature, as generally recoga distinct nized in Christian countries; second, marriages There was no effort to prove as fact that the marriage had been performed which the local law-making power has declared with any religious ceremony. It is true that shall not be allowed any validity. one of the witnesses, in giving the declarations first class belong those which involve polyg are embraced only of the parties, stated that they (the mother and amy and incest; and in the sense in which the father of the appellee) upon one occasion said term 'incest' is used they had been married by a minister of the such marriages as are incestuous according to gospel; but it must be borne in mind that the generally accepted opinion of Christenthe appellee, who was seeking to prove her dom, which relates only to persons in direct legitimacy, did not set up a marriage of her line of consanguinity, and brothers and sisters. parents at a particular place, by a particular The second class, i. e., those prohibited in terms form or ceremony. Had she done this, and by the statute, presents difficulties that are failed, she would not have been at liberty to not always easy of solution, and have led to rely on general repute to establish the alleged conflicting decisions. This class may be submarriage. Barnum v. Barnum, 42 Md. 251. divided into two classes: First, where the statAssuming there was no religious ceremony utory prohibition relates to form, ceremony, proved, or attempted to be proved, as there and qualification, it is held that compliance was not, it has been insisted with great zeal with the law of the place of marriage is suffiand earnestness that, even if the marriage found cient, and its validity will be recognized, not by the verdict of the jury to have been con- only in other states generally, but in the state tracted and consummated in Pennsylvania were of the domicil of the parties, even where they valid by the laws of that state, yet the legiti- have left their own state to marry elsewhere, macy of the appellee, who was born in Penn- for the purpose of avoiding the laws of their sylvania, where her parents then lived, must domicil. Instead of being called a subdivision be determined, not by the laws of that state, of the second class of exceptions, it would be but by the laws of Maryland; and that if, more accurate to say that it is an exception to therefore, the marriage were, by reason of the the exception, and falls within the operation failure to show there had been some religious of the general rule first announced, of 'valid ceremony, one that would not, on that account, where performed, valid every where.' To the have been valid under the statutes of Mary- second subdivision of the second class of exland, the issue of such a marriage would in ceptions belong cases which, prohibited by Maryland be illegitimate, even though the statute, may or may not embody distinctive marriage of which that issue was the fruit state policy, as affecting the morals or good were conceded to be perfectly valid in the state order of society." Pennegar v. State, 87 Tenn. where it was contracted and consummated, 244, s. c., with copious notes, 2 L. R. A. 703; and the case of Doe, Birtwhistle. v. Vardill, 5 State v. Tutty, 41 Fed. Rep. 753, 7 L. R. A. Barn. & C. 438, was much pressed upon us to 50; Brook v. Brook, 9 H. L. Cas. 193; Com. v. But that case, and others Graham, 157 Mass. 73, 16 L. R. A. 578. It is support that view. founded on the same settled principle, are obvious, then, as there is no statute in Maryclearly distinguishable from the case at bar. land declaring that a marriage of whose exIt is a maxim as old as the common law that istence there is no other proof than general hares legitimus est quem nuptia demonstrant. reputation shall be void, and as, at most, the A marriage, if valid where solemnized, is, in statutory provisions relative to the methods of general, valid everywhere, and, of necessity, solemnizing marriages in Maryland relate to the offspring of that marriage would be treated form and ceremony only,-the courts of this as legitimate, wherever the marriage itself state will recognize the Pennsylvania marriage would be regarded as valid. But a local stat- as valid, if that marriage is valid by and under ute which makes an illegitimate child, or a the laws of the latter common wealth, and does child born out of wedlock, legitimate upon not contravene the declared policy of our own certain prescribed conditions, such as the sub-positive law. We are not to be understood as sequent marriage of the parents, and the recog-speaking of marriages tolerated elsewhere,