"private ways of necessity," and prescribe the procedure for their establishment. Long v. Billings et al., 7 Wash. 267 (34 Pac. Rep. 936). Mo. Const. art. 2, § 21, provides that compensation for property taken under the right of eminent domain shall be ascertained by a jury or board of commissioners of not less than three freeholders in such manner as may be prescribed by law, and until the same be paid to the owner, or into the court for him, the property shall not be disturbed, or his proprietary rights divested, is self enforcing; and although the legislature may have enacted no law providing a mode for the ascertainment and payment of such compensa. tion, the party entitled to the right may resort to any common law action which will afford him adequate and appropriate means of redress. Hickman v. City of Kansas, 120 Mo. 110 (25 S. W. Rep. 225; 23 L. R. A. 658). Under How. Mich. Stat. ch. 93, § 10, which provides that upon the report being made by the commissioners or jury appointed in proceedings to condemn land by union depot companies, "the court, on motion, shall confirm the same, *** unless for good cause shown by either party; *** said court as to the confirmation of such report shall have the powers usual in other cases," it is held that the circuit court was not thereby limited to the rejection of the report to defects of jurisdiction, but could set the same aside for any improper conduct on the part of the jury materially affecting the merits of the case. Fort St. U. D. Co. v. Backus, 92 Mich. 33 (52 N. W. Rep. 790). Overruling Backus v. Gartner, 89 Mich. 209 (50 N. W. Rep. 646). Under Tex. Gen. Laws 1889, pp. 3, 4, Rev. Stat. arts. 4197, 4202, 4205 and 4208 making provision concerning condemnation of property for a street it is held that a judgment for damages, rendered on trial after objection to the award of commissioners, may be enforced by execution against a city, though it has not taken possession of the property condemned for a street. City of Laredo v. Benavides, Tex. (25 S. W. Rep. 482).

Under Ala. Code §§ 3216, 3218; Sess. Acts 1889-90, p. 112; 1890-91, p. 1134, the damages assessed must be paid within six months, or the assessment is no longer binding. Ala. Midland R. R. Co. v. Newton, 94 Ala. 443 (10 So. Rep. 89). Under Cal. Pol. Code, § 2692, condemnation proceed

ings to open a private way over land may be maintained in the name of the county. Lake County v. Allman, 102 Cal. 432 (36 Pac. Rep. 767). Colo. Gen. Laws 1883, ch. 21, § 242 construed-decree in condemnation proceedings. San Luis, C. & I. Co. v. Kenilworth Canal Co., 3 Colo. App. 244 (32 Pac. Rep. 860). Ind. Act, March 6, 1889, applied-condemnation for waterworks. Werley v. Huntington Waterworks Co.,

Ind. (37 N. E. Rep. 582). Ind. Acts 1889, p. 22, held constitutional-condemnation of land by natural gas companies. The Consumers' Gas Trust Company v. Harless et al., 131 Ind. 446 (29 N. E. Rep. 1062; 15 L. R. A. 505). Iowa Code 1873, §§ 465, 479 construed and applied-condemnation of land by cities for public parks. Arnold v. City of Council Bluffs, 85 Ia. 441 (52 N. W. Rep. 347). Kan. Sess. Laws 1889, ch. 110, construed and applied-condemnation of land for county-seat site. Jockheck v. Board of Com'rs, 53 Kan. 780 (37 Pac. Rep. 621). Mass. Stat. 1885, ch. 217, § 4 construed and applied-assessment of damages for the appropriation of water for mills. Proprietors of Mills v. Randolph, 157 Mass. 345 (32 N. E. Rep. 153). How. Mich. Stat. ch. 93 construed and applied-Union Depot Act. Fort St. U. D. Co. v. Backus, 92 Mich. 33 (52 N. W. Rep. 790). Mich. Local Acts 1889, Act. No. 388, construed-condemnation by commissioners of parks and boulevards of the City of Detroit. Com'rs of P. & B. of Detroit v. Moesta, 91 Mich. 149 (51 N. W. Rep. 903). Mo. Rev. Stat. 1889, § 2566, construed-proceedings by railway company before a justice of the peace to condemn land. Musick v. Kansas City, S. & M. Ry. Co., 114 Mo. 309 (21 S. W. Rep. 491). N.. Y. Laws 1888, ch. 193 applied. Matter of City of Rochester, 137 N. Y. 243 (33 N. E. Rep. 320). N. Y. Code Civ. Proc. § 3357 et seq. applied. Matter of Trustees of N. Y. & B. Bridge to acquire Lands of Clark, 137 N. Y. 95 (32 N. E. Rep. 1054). Under the S. Dak. Stat. a proceeding to condemn land is a special one, and the jurisdiction of a judge to act must be affirmatively shown by a proper petition stating the necessary jurisdictional facts. Lewis et al. v. St. Paul, M. &. M. Ry. Co., S. Dak. (58 N. W. Rep. 580). Wis. Rev. Stat. § 1849 applied-taxation of costs. Taylor v. Chicago, M. & St. P. R. Co., 83 Wis. 645 (53 N. W. Rep. 855). Wis. Laws 1891, ch. 59,

subd. 20, § 6, construed-sufficiency of notice in case of condemnation of land in the City of Oshkosh. State ex rel. Andrews v. City of Oshkosh, 84 Wis. 548 (54 N. W. Rep. 1095).

EQUITY.

EPITOME OF CASES.

Sec. 283. Equitable relief from written instruments and forfeitures. Before a court of conscience will relieve against a forfeiture of a lease, there must be a fair and reasonable commutation as alternative for the main thing to be done, or the damages from failure to do such main thing must be measurable in money with some reasonable degree of certainty, or there must be some special circumstances calling for relief from the forfeiture caused by the party's failure to perform the specific act which he covenanted to perform. Hukill v. Guffey et al., 37 W. Va. 425 (16 S. E. Rep. 544). Where a written instrument fails to express the intention of the parties and to permit it to have its legal effect, will work a fraud upon one of the parties, courts of equity will grant relief either by reforming the instrument, or by restraining the assertion of rights under it, or where the right of reformation is shown by treating the instrument as reformed. Scofield v. Quinn, 54 Minn. 9 (55 N. W. Rep. 745). Where, in a chain of title, there is a deed from the county and a sheriff's deed, both without seal, and the regularity of the proceedings on which the sheriff's deed was based is not questioned, the defects of title occasioned by the want of these seals may be cured by a suit in equity. Gilbreath v. Dilday, Ill. (38 N. E. Rep. 572).

Sec. 284. Equitable relief from mistakes. Where a contract was entered into under a mutual mistake as to the existence of a workable vein of coal in the land, it is held that it may be rescinded by an equitable proceeding. Bluestone Coal Co. v. Bell et al., 38 W. Va. 297 (18 S. E. Rep. 493).

Where, by mistake, a building is omitted from the description in a mortgage and after foreclosure and purchase by the mortgagee the mortgagor remains in possession as the tenant of the mortgagee, it cannot be sold on an execution issued upon a judgment against the mortgagor. Barton v. Beno, 84 Ia. 543 (51 N. W. Rep. 36). While a court of equity will not reform a written contract upon the ground of mistake, unless the mistake is shown to be common to both parties, yet it may exercise its powers to grant relief in a proper case, by rescinding and cancelling the writing upon the ground of a mistake of facts material to the contract by one party only. Werner v. Rawson, 89 Ga. 619 (15 S. E. Rep. 813). Equity will relieve against an honest mistake of fact. Root v. King, 91 Mich. 488 (51 N. W. Rep. 1118). Where a grantor in conveying land which he actually sold, by mistake refers to it in the description as the land of another, such mistake does not invalidate the conveyance. Grant et al. v. Armstrong, Ky.

(16 S. W. Rep. 531). Equity will not grant relief from a mistake of law. Kleimann v. Gieselman et al., 114 Mo. 437 (21 S. W. Rep. 796); Porter et al. v. Jefferies et al., 40 S. C. 92 (18 S. E. Rep. 229). See Reformation.

Sec. 285. Subrogation. "The doctrine of subrogation in equity requires-First, that the person seeking its benefit must have paid a debt due to a third party before he can subrogate to that party's right; second, that in doing this he must not act as a mere volunteer, but on compulsion to save himself from loss by reason of a superior lien or claim on the part of the person to whom he pay the debt. * * * The right is never accorded in equity to one who is a mere volunteer in the paying of a debt of one person to another." Washburn v. Osgood, 38 Neb. 804 (57 N. W. Rep. 529). The right does not depend upon the contract, privity or strict surety; and while it is true that the principle of abrogation cannot be invoked by a volunteer or a stranger, yet where one loans money upon real estate security for the express purpose of paying off and discharging liens upon the same property, expecting in good faith that his security will be substituted in place of that which he discharges, he is not a volunteer, a stranger, or an intermeddler and the original debt or lien can

not be considered extinguished if justice requires that it shall be kept alive for his benefit. Emmert v. Thompson et al., 49 Minn. 386 (52 N. W. Rep. 31; 32 Am. St. Rep. 566). This doctrine is supported by Hart et ux. v. Davidson et al., 84 Tex. 112 (19 S. W. Rep. 454); Bohn Sash & Door Co. v. Case, Neb. (60 N. W. Rep. 576); Heisler v. C. Aultman & Co., 56 Minn. 454 (57 N. W. Rep. 1053). Where the mortgagee, or a stranger to the record, purchases the mortgaged premises at a void sale under foreclosure proceedings, and then conveys by warranty deed said premises to a third party, he becomes subrogated in equity to the rights of the mortgagee in said mortgaged premises, as well as the mortgage debt thereon, to the extent of his purchase, and may demand a valid foreclosure of said mortgage for his protection. His right to be subrogated to the extent of his purchase, in such a case, to the mortgage security, does not depend upon a contractual assignment of the mortgage debt, but it comes about by operation of law. Jordan v. Sayre et al., 29 Fla. 100 (10 So. Rep. 823). Where a vendor sold and conveyed land to a corporation and reserved in the deed a vendor's lien, and a third person at the instance of the corporation advanced the money to pay off the purchase-money notes with the understanding that he was to hold them as additional security for the money thus loaned, it was held that such third person should be subrogated to the vendor's rights under the lien. Hulings v. Hulings Lumber Co., 38 W. Va. 351 (18 S. E. Rep. 620).

Sec. 286. As to when the right of subrogation will be enforced. A purchaser of real estate who has paid off a prior mortgage thereon, in the belief that he was the owner of the property purchased, will on failure of his title, be subrogated to the rights of the mortgagee, as against the mortgagor and others who are in equity liable for the mortgage debt. Betts v. Sims, 35 Neb. 840 (53 N. W. Rep. 1005; 37 Am. St. Rep. 470). One who pays a mortgage debt under an agreement of an assignment of the old mortgage or for a new mortgage for his own benefit or protection, acquires a right to the security held by the first mortgagee.

cut Mut. Life Ins. Co., Ind.

Thompson v. Connecti(38 N. E. Rep. 796);