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Appeal from Scott County Circuit Court: The petition states that the plaintiff while driving a horse harnessed to a wagon along and up a street in the city, and without fault or negligence on her part, was violently thrown from the wagon by reason of the horse taking fright at a steam motor then being and on said street, under the authority and permission of the defendant. It is alleged that the plaintiff is greatly injured, and a recovery is therefore sought. There were two counts in the petition. To the first there was a demurrer, which was sustained, and to which the plaintiff excepted. And refusing to plead further, judgment was rendered against her.

It was stipulated by counsel when the demurrer was submitted, that it presented for determination the following question: “Whether or not it was negligence on the part of the defendant to permit the use of a steam motor on Brady street under the written authority set out in said petition, and allowing it to remain and be used thereon.” The written authority referred to is a written resolution of the city counsel granting permission to use the motor on Brady street for thirty days.

The second count, which set out a cause of action based on the use of a motor was substantially as the same was stated in the first count. There were also other acts of negligence alleged in the the second count, because of which the plaintiff claimed to recover. The defendant filed a motion to strike out of the second count allegations relating to the motor. The motion was sustained, and plaintiff excepted. But no judgment was rendered dismissing the action. The plaintiff appeals and assigns as error the action of the court in sustaining the motion and demurrer.

A. J Hirschl, for appellant; H. M. Martin, for appellee.

SEEVER, J., delivered the opinion of the court:

The appellee insists because no judgment was rendered on the motion other than merely sustaining it and striking out the allegations objected to, that the appeal must be dismissed. It is conceded that an appeal lies from the ruling on the demurrer, but it is stated and admitted in the abstract, the cause is pending and for trial in the court below, on the remaining cause of action in the second count. The argument briefly stated is: That an action can not be pending in this court and the court below at the same time. While here the cause may be tried below and recovery had. If so the prosecution of the appeal would be unnecessary, and that a cause can not be tried by piecemeal-a part before and another part after the appeal has been determined.

Appeals to this court are regulated by statute; by reference thereto the question presented can be readily solved. It is provided that an “appeal may be taken to the Supreme Court from an intermediate order involving the merits and materially affecting the final decision.” Code, sec. 3161.

The motion involved the merits, and when it was sustained the final decision was virtually affected, for as the pleadings now stand in the court below the plaintiff can not introduce any evidence in relation to the steam motor; nor can the right

of the defendant to authorize its use be controverted in this action. By sustaining the motion the circuit court has striken all allegations upon which such question can be based from the pleadings. By the express words of the statute an appeal lies in such a case. By what authority canan appeal properly taken be dismissed? None other, we think, than statutory authority. Counsel have not called our attention to such a statute and we kuow of none. If the remaining cause of action had been tried, it is possible, whatever might have been its result, it would be deemed a waiver of the appeal if brought to the attention of this court at the proper time. Code, sec. 3212. It is probable, also, that the court below would have the power to postpone the trial there until the appeal was disposed of. There is nothing in the record which tends to show the plaintiff has done anything since the appeal was taken which amounts to a waiver or will authorize a dismissal of the appeal. In fact, the record fails to show that an issue has been formed or that either party desires a trial below until this appeal is determined.

In 1870 the defendant granted to "The Davenport Central Railroad Company the exclusive right to lay and operate upon

* Brady street, in said city, a single horse railway, with the necessary side tracks." The right of the city to make this grant is not questioned. In 1878 the city granted “ J. M. Davies permission to run one of Baldwin's noiseless steam motors on Brady street hill on probation for thirty days." The motor was run and operated on the track of the street railway company.

It has been held that cities have the authority to grant railroad companies who use steam in operating their roads the right to occupy with their track street or streets of the city. Milburn v. Cedar Rapids, 12 Iowa 246, and numerous other cases. These decisions were based on a statute providing that any (railway) corparation may raise or lower any turnpike, plank road or other highway for the purpose of having its railway pass over or under the same, and in such cases said corporation shall put such highway as soon as may be in as good repair and condition as before such alteration." Code sec. 1262.

In the Milburn case the words 6 pass over were construed to mean “upon" or lengthwise, and this construction has been several times followed in subsequent cases. As thus construed the legislative assent had been given to the laying down of railway tracks in streets and the operation of the same by the use of steam, subject, however, to proper equitable control and police regulations. Chicago, etc. R. R. Co. v. Mayor of Newton, 36 Iowa, 299. But it never has been held that cities had the authority to grant such privileges in the absence of a legislative grant to that effect, whatever may have been said by judges who have written opinions in the cases in which this question has been determined or discussed. It is quite apparent, we think, that all the cases subsequent thereto are based on the Milburn case, which, as we understand it, is based on the, stat

It is worthy of note that, notwithstanding

ADAMS, J., dissenting.

Decisions in relation to the occupancy of streets hiy ordinary railroads not designed for street purposes are, in my judgment, not strictly applicable to this case. A street railway, whether operated by animal, steam or other power, is not an obstruction to the same extent. It is consistent with all the legitimate uses to which a street is put, and has come to be deemed a public necessity:

In my opinion the city council may regulate the use of streets without any special grant of power in this respect, and may in its discretion with a view of promoting its public interest, allow cars to be drawn thereon for street purposes, either by animal, steam, atmospheric pressure or other power, and that, too, though the cars or motors may be such as to cause fright, to some extent, to timid horses. It must, I think, be allowed in such a case, to judge of the objectionableness, if any, of proposed cars or motors, and whether the inconvenience, if any, resulting to any persons, as causing fright to horses, would be such as to overcome the considerations of public necessity or advantage. Steam fire engines are well calculated to frighten timid horses, yet no one supposes that a city council could not remit them to be drawn upon a street. Many other things may be done on the streets which are calculated to frighten timid horses, but they are not necessarily to be forbidden for that reason. Private convenience must sometimes yield to what is deemed a paramount public convenience.

When the city council of defendant city granted permission to use a motor upon one of its street railways, we must presume that it did so because it considered that the public convenience demanded it; and the defendant city should not, in my judgment, be held liable for the injury resulting from the fright of plaintiff's horse. Whether a city council, without express authority from the legislature, can grant an exclusive right to operate a street railroad by the use of a motor or otherwise, or what right it can grant, if any, are entirely different questions. Upon them, I think, the decisions have not been entirely uniform. If the city council can grant no right, then an attempt to do so would be void; and the ground of the plaintiff's complaint would be simple, that the city suffered the motor to be used, but such sufferance would not, in my judgment, be negligence, because I think that a city council may exercise a discretion in relation to what it shall suffer and what it shall forbid, so long as it acts in good faith, and with a view to promoting the public convenience. I see no errer in the ruling of the circuit court.

that place would be far less dangerous. Nine out of ten carriages might pass it without horse or driver noticing it. If seen, it could be easily avoided. The tent was almost certain to frighten any horse driven near it, and the safety of those concerned depended largely upon the skill of the driver, or strength of the harness." And bales of hay, even on margin of highway, made it defective. See Morse v. Richmond, 41 Vt 438 (with a valuable note by Redfield J.). So, also, a pig sty projecting into a highway, the pigs scampering around therein and causing fright to horses. Bartlett v. Hooksett, 48 N. II. 20. A pile of stones in highway, Clinton v. Howard, 42 Conn. 306. A burnt log, close beside the traveled path. Foshay v. Glen Haven, 25 Wis. 289. A large rock. Card v. City of Ellsworth, 65 Maine, 551. In all these, the horses, frightened at the objects mentioned and caused injuries, no other defects existing in the street, and defendant cities or town held liable. In Woods v. Groton, 111 Mass. 358, a horse shied at a puddle of water, which had been allowed to remain in the a highway, and threw the wagon off an embankment which was not guarded by a railing; on these facts, defendant was held liable for damages; but it does not appear whether the defect consisted in the puddle, or in the want of a railing, or in both. In all the above cases, the defendants were under the same obligations, generally, as was the city of Davenport in regard to keeping streets in good order and repair, and in a sufficient condition for the public use.

A city is, of course, liable for injuries occasioned by defects in its streets, existing with the knowledge of the city. Ewell v. Greenwood, 26 Iowa, 380; Hougham v. Harvey, 33 Iowa, 204; Parks v. Chicago, etc., R. Co., 43 Iowa, 638; Dillon on Munc. Corp., sec. 770, note 2 and sec. 778; Thayer v. Boston, 19 Pick. 515; Little v. City of Madison, 42 Wis. 632.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF MINNESOTA.

[Filed Oct. 14-17, 1879.]

PUBLICATION DESIGXATION OF NEWSPAPER.Under ch. 1 and 2, Gen. Laws of 1874, the designation by the board of county commissioners of a county of some newspaper to publish its delinquent tax list and the accompanying notice, is essential to a valid publication thereof, and to the validity of any judgment rendered thereon. The want of such jurisdictional fact may be shown to impeach the judgment or any sale had thereunder. The adoption by the board of a motion directing the county auditor to give the printing of the delinquent tax list to A. F. Daggett, editor of the Litchfield News Ledger, is not such a designation. So, also, as to a motion to give such printing “to Daggett and Joubert, editors of the Litchfield News Ledger." Opinion by CORNELL, J.-Eastman v. Linn.

DISQUALIFYING INTEREST-MOTIVES.-An ownership of land contiguous to the line of a proposed county highway which may affect or enhance the value of such land, is not such an interest as legally precludes the owner from acting as a member of the board of county commissioners, upon a petition signed by himself and others for establishing the road. As a general rule, the motives that may have influenced official conduct of members of such board can not be made the subject of practical inquiry for the purpose of impeaching their official acts. Opinion by CORNELL, J - Webster v. Board of County Commissioners.

NOTE.-A defect in the street may consist of any. thing that frightens horses and causes accidents in that way, as well as anything with which they come directly into contact, as where a city licensed an exhibition of bears on its streets, causing fright of a horse, and consequent injury to the driver, the city was held liable: Little v. City of Madison, 12 Wis. 652; or let a steam roller used in repairing streets remain there01. Young v. City of New Ilaven, 39 Conn. 435. Or a tent in the limits of a highway. Ayer y. Norwich, 39 Conn. 380, the court saying: “A hole in the road at

RIPARIAN RIGHTS INJUNCTION.- The riparian owner upon a navigable stream may use the water flowing past his land for any purpose, so long as he does not impede the navigation, in the absence of any counterclaim by the State, or the United States. The act incorporating the St. Anthony Falls Water Power Company does not authorize it to appropriate the water power opposite the land of any other riparian owner. For an unlawful interference with the right of a riparian owner to use the water flowing past his land, an injunction is a proper remedy. Mere delay of such an owner to assert his right does not work an estoppel. Opinion by GILFILLAN, C. J.-Morrill v. St. Anthony Falls Water Pover Co.

TAXATION- WATER POWER-REAL PROPERTY.The Minneapolis Mill Co. is the owner in fee of land upon the western bank of the Mississippi river at the Falls of St. Anthony, opposite which lands it has built and maintains a dam extending from each bank into the river. The company has leased to different parties four mill sites upon the dam, together with the right to use upon and at such respective sites the quantity of water in the lease specified, in all amounting to thirteen water powers, the said water and water powers being taken and used thereat directly from the main body of the said river running through said dam, and regulated by means of gates thereon. Morrill v. St. Anthony Falls Water Co., supra, fol. lowed as to the general rule that a riparian owner may use the waters of a navigable river (like the Mississippi) adjoining his land for any purpose, for his own advantage, so long as he does not impede navigation, and in the absence of any counterclaim by the State or the United States. The fact of this use rests upon the fact of riparian ownership; that is to say, the ri. parian proprietor possesses this right, because he owns the land upon the bank; or, in other words, the right is attached as an incident to the riparian land, and belongs and appertains to the same. It follows that defendant's right to the use of the water is, for all purposes of taxation, real property and not personal, since our tax law provides that real property, for the purposes of taxation, shall be construed to include the land itself and all rights and privileges belonging or in anywise appertaining thereto. Opinion by BERRY, J.--State v. Minneapolis Mill Co.

tax assessed May, 11875, to the defendant, as adminis. tratrix of her husband, for a stock of merchandise, it appeared that on April 28, 1875, an agreement was signed and delivered by J. M. & Co. to the said administratrix, which recited that the defendant ''sells'' and J. M. & Co. “buy” said stock, and provided that “the price is to be seventy-five per cent. of the invoice prices of the goods, according to the inventory in the possession of the administratrix, subject to corrections as to qualities. Delivery to be made and price paid as soon as the quantities can be veritied." The clerks of the defendant retained the key of the store until the examination and verification was complete, and until the goods were removed on the fifth or sixth of May to the store of J. M. & Co. Held, that the defendant was the owner of the goods on the first day of May, and was liable for the tax assessed thereon. Higgins v. Chessman, 9 Pick. 7, 10; Dresser Manf. Co. v. Watterson, 3 Met. 9, 17, Macomber v. Parker, 13 Pick. 175: Mason v. Thompson, 18 Pick. 305; Riddle v. Varnum, 20 Pick. 280; Foster v. Roper, 111 Mass. 10, 16. Opinion by GRAY, C. J.-Sherwin v. Mudge.

CRIMINAL LAW STATUTE CONSTRUCTION OF “SIMILAR OFFENSE." -The defendant was convicted under the Gen. Stats., ch. 87, secs. 6, 7, upon a complaint for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors. When he was brought before the court for sentence, it appeared that he had been previously convicted under statutes of 1875, ch. 99, of illegally keeping intoxicating liquors for sale, and that he had not previously been convicted of any other offense claimed to be similar to the one charged in this complaint. The court ruled, as a matter of law, that, under the statute of 1866, ch. 280, providing that “when it is provided by law that an offense shall be punished by a fine and imprisonment in the jail, or by a fine and imprisonment in the house of correction, such of. fender may, at the discretion of the court, be sentenced to be punished by such imprisoument without the fine, or by such fine without the imprisonment, in all cases where the offender shall prove or show to the satisfaction of the court, that he has not before been convicted of a similar offense,'' it had no discretion to impose a fine without imprisonment, or imprisonment without a fine, but was compelled to impose a sentence of both fine and imprisonment: Held, that the two offenses were distinct and different; the gist of one is the keeping and using a tenement for an illegal purpose, which makes it a nuisance; of the other, doing certain acts which constitute an offense, but which do not necessarily involve the keeping of any tenement or building. The word “similar'' is often used to denote a partial resemblance only, but it is also often used to denote sameness in all essential particulars. We think the legislature intended to use it in the latter sense in the statute we are considering. Opinion by MORTON, J.-Com. v. Fontain.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

October, 1879.

SUPREME COURT OF VERMONT.

SLANDER-ACTIONABLE WORDS-EVIDENCE.-Inan action for slander by words spoken concerning the plaintiff, a married woman, the defendant offered himself as a witness, and denied that he used the words charged against him, and denied that he knew the plaintiff or mentioned her name to a third person before her marriage. IIeld, that this evidence, being competent and material, might be contradicted. 2. If the subject of the discourse in relation to a female is chastity, the use of the word “bad”' might import the want of conjugal fidelity, if the woman were a married woman; and when the ge against a married woman is that she is a bad woman, a bitch and a whore, the court can not say, as matter of law, that the word bad does not import a want of chastity, but .it is for the jury to determine the sense in which the word was used. Opinion by LORD, J.-Riddel v. Thayer.

TAX - CONTRACT FOR SALE OF PERSONAL PROPERTY-TITLE.--In an action of contract to recover &

(Advance sheets of 51 Vt.

CONTRACT-IMPLIED PROMISE.- Plaintiff propos. ed to defendant that he take plaintiff and his wife to board, and, as defendant's wife, who owned the place where she and defendant lived, wished to repair and alter her house before taking them, offered to let defendant have money for that pupose. He accordingly paid defendant money to be so expended, and aid money for labor and materials so used, and de