purpose, still, if they are safe, and he makes any change, rendering them unsafe, after they have been used for a long time by the public, those using it are entitled to be protected from such dangers created by him, in so far as ordinary care on his part should provide. Graves v. Thompson, 95 Ind. 364, 48 Am. Rep. 727; Vanderbeck v. Hendry, 34 N. J. Law, 471; Lepnick v. Gaddis (Miss.) 16 South. 213, 26 L. R. A. 686, 48 Am. St. Rep. 547. In an exhaustive note to the last case the rule is thus stated: "The decisions are not entirely harmonious upon this question. But the weight of authority is in favor of the following rules: The owner of private property is not obliged to make it safe for trespassers, or even for mere licensees. If, however, the circumstances have been such as to amount to a devotion of the property temporarily to the public use, care must be taken not to make it unsafe until proper notice of the change has been given. Nothing which amounts to a trap can be placed where the public has been in the habit of resorting, and excavations cannot be made so near the line of an existing highway as to render travel on the highway unsafe." In this case the accident happened in the forenoon of a bright day. If the two wires had remained at the height at which they were placed, with the cedar post standing in the road, they would have given reasonable warning that the passway was closed. They remained in this condition for something like three months, and the question is, was appellant liable to appellee because they afterwards got down, and were allowed to remain down? In Louisville & Portland Canal Company v. Murphy, Adm'r, 72 Ky. 522, it was held that the owner of a private bridge was not liable for the death of a child from a defect in the bridge, although it permitted the public to walk over the bridge. This decision is rested on the ground that the mere acquiescence of the owner of the property in the use of the bridge by the public did not impose any obligation on him to keep it in repair for those so using it. It is insisted for appellee that this case has no application to the one before us, for the reason that the complaint here is not that the railroad company allowed the passway to get out of repair, but that the complaint is that, after it had allowed the public for years to use the passway, it placed an obstruction across it, which was dangerous, and not proper to be used to give notice that the passway was closed, and that it failed to maintain in a safe condition for a reasonable time the obstruction so placed in the passway, and thus did not give the traveling public notice of the closing of the passway, but, on the contrary, in substance, set a trap for the unwary. In considering whether the proper obstruction was placed across the passway to give notice to the public that the license to use it was withdrawn, we must bear in mind not only the two wires and the post at B, but the fence at C. Considering the fence at C, and the post in the traveled passway, with the two wires fastened to it, one two feet from the ground, and the other four feet from the ground, and extending from the garden fence to the telegraph pole, we are of opinion the structure was reasonably sufficient, as it originally stood, to notify the traveling public that the passway was closed. Appellant was not bound to keep this obstruction in its original condition permanently, but only to use ordinary care in its construction to make it safe and sufficient for a reasonable time to give notice to the traveling public that authority to use the passway had been withdrawn. After this those who used the passway were not licensees, but trespassers, for the fact that the passway had once been used by consent did not authorize its continued use after the permission to use it had been withdrawn. As the obstruction across the passway at B was maintained in its original condition from the time it was erected until September following, and as the accident to appellee did not occur until three months later, in December, we are of opinion that a reasonable time for such notice had elapsed. In 1 Thompson on Negligence, § 946, it is said: "As a general rule, the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who came upon them, not by any invitation, express or implied, but for their own purposes, their pleasure, or to gratify their curiosity, however innocent or laudable their purpose may be." Again, in section 1016, it is said: "It is a sound and just conclusion that an owner or occupier of land, who has given to the public, or to a particular person or corporation, a license to come upon or to cross his premises, or to establish a private way, or even a railway, thereon, must, before exercising his power to revoke such license, anticipate that danger may accrue therefrom to those who have been accustomed to use the license, and is therefore bound to notify them of such revocation, and to warn them of any fence, obstruction, or other dangerous means to which he may have resorted to exclude them from his premises. So, if the public have been accustomed to drive, though without right, across the land of a proprietor, who, in order to stop them from doing so, stretches across the traveled way, without any warning to the public, a barb wire fence, which is invisible after dark, and, not knowing the existence of the obstruction, a traveler drives upon it, injuring his horse, he will have an action for damages against the landowner. On the other hand, if an old road on private property within the limits of a city has been fenced for three months, the landowner will not be liable to one injured by driving upon the fence while attempting to use the road, especially where there were other streets regularly laid out for such public use, along which he might have driven to his destination. The reason is that the open and notorious fencing up of the private way for such a length of time is of itself tantamount to a public warning of the fact, and creates a presumption that the fact is known." In the case before us, if the passway had run over a farm, and the owner had constructed a fence of logs across the passway, and this after three months had been thrown down, so that appellee, while galloping over it in the dark, had been thrown to the ground by reason of his horse stumbling over one of the logs, it would hardly be maintained that the farmer would be answerable for the injury. The wire was no more likely to throw a horse down than a log or pole, after dark, and the case seems to us to rest, in the end, on the idea-that cannot be maintained-that it was the duty of the railroad company to keep the fence up. For the reasons indicated, the court, under all the evidence, should have instructed the jury peremptorily to find for the defendant. Judgment reversed and cause remanded for a new trial. CHICAGO, ST. L. & N. O. RY. CO. et al. v. COMMONWEALTH. (Court of Appeals of Kentucky. 1903.) March 25, SEPARATE TAXATION RAILROAD BRIDGE 1. Where a railroad bridge is part of one system, built and operated under one charter, and owned by the same company as the railway line with which it is connected, it does not have a separate franchise value for the purpose of assessment for taxation. 2. Action of the State Board of Assessment and Valuation in fixing the valuation of property liable to assessment for taxation is conclusive alike on the state and on the property owner, after the expiration of the time allowed for hearing complaints. 3. Act May 23, 1890, which gives the right to the commonwealth to institute actions to recover all taxes which have accrued or may accrue, and which cannot be collected by the ordinary methods of distraint and sale, but provides that no action shall be instituted upon any claim for taxes that have been assessed more than five years, deals more directly with actions to recover taxes, where the assessment and levy have been made, than with cases of omitted assessments. 4. It is the policy of the law to put at rest stale demands, of whatever character, including demands for taxes. 5. Ky. St. 8 2523, provides that "the limitations prescribed in this chapter" shall apply to actions by the commonwealth, as well as to actions by private persons, except where a different time is otherwise prescribed. One of the actions mentioned in the chapter is section 2515 -"an action upon a liability created by statute, when no other time is fixed by the statute creating the liability." Section 469 declares that the term "action" shall include all proceedings in any court in the commonwealth. Section 4021 provides, inter alia, that "when any lands or improvements shall not be assessed in any one year it may be assessed retrospectively, in the manner provided by law, for that year, at any time not later than five years thereafter.' Held, that a proceeding to compel a taxpayer to list property for any one year, if not begun within five years from the time when it could first have been instituted, is barred. 6. A state is not a citizen, and an action by it is not removable into the federal courts under Act Cong. Aug. 13. 1888, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], which provides for removal of a suit "wholly between citizens of different states.' 7. A proceeding commenced in the county court to cause the assessment for taxation of omitted property is not such an action as might have originally been commenced in the United States Circuit Court, and is not removable thereto. Appeal from Circuit Court, Ballard County. "To be officially reported." Proceeding by A. L. Shelbourne, auditor's agent, on behalf of the commonwealth of Kentucky, against the Chicago, St. Louis & New Orleans Railway Company and another, to compel the assessment for taxation of certain omitted property. Judgment assessing the property, except for certain years, and the defendants appeal, and the commonwealth and Shelbourne bring a cross-appeal. Reversed on defendants' appeal, and affirmed on cross-appeal. J. M. Dickinson, Pirtle & Trabue, and Corbett & White, for appellants. Jno. W. Ray, for appellees. O'REAR, J. This proceeding was instituted June, 1900, in the Ballard county court, by A. L. Shelbourne, auditor's agent, on behalf of the commonwealth, against the Chicago, St. Louis & New Orleans Railway Company and its lessee, the Illinois Central Railroad Company, to cause the assessment, as omitted property, of the franchise of the firstnamed railway company, represented by the net value of the intangible property in its bridge across the Ohio river, near Cairo, and known as the "Cairo Bridge." The taxes claimed were for the years 1893 to 1899, inclusive. By an act of the Legislature of 1885-86 (page 1088, c. 446), the railroad companies named were authorized to build the bridge. It was done by the Chicago, St. Louis & New Orleans Railway Company, and became part of its line of road, the whole of which is being operated by the Illinois Central Railroad Company under a 400-year lease. It is the contention of appellee that this bridge has a franchise value separable from the general franchise of the railway company. We think not. When a bridge is a part of one system, built and operated under one charter, and owned by the same company as the railway line with which it is connected it does not have a separate franchise value for the purpose of assessment for taxation. The whole scheme of such assessment, under our statute, contemplates the valuation of the franchises of railway companies as entireties. It was shown by the facts in this case that the State Board of Assessment and Valuation had included the earning capacity and earnings of this bridge, together with appellant's other property and earnings, in arriving at the valuation placed upon the franchises of the companies for each of the years 1895 to 1899, inclusive. The record of the board's action was kept in a uniform manner during those years, and the taxes levied upon the valuation of the franchises, fixed as stated, were paid to the state by appellants before this proceeding was begun. Under the authority of Coulter, Auditor, v. Louisville Bridge Co. (Ky.) 70 S. W. 29, we hold that the action of the board was conclusive, and, after the expiration of the time for hearing complaints for reduction, was binding alike upon the state and the railway companies. For the years 1893 and 1894 the plea of the statute of limitation interposed by appellants must prevail. The act of May 23, 1890, held by this court, in Louisville Water Company v. Commonwealth, 34 S. W. 1064, and Commonwealth v. City of Louisville, 47 S. W. 865, to be yet in force, and not repealed by the chapter on "Revenue and Taxation" adopted November 11, 1892, is cited in argument by appellants as being applicable in part. It is as follows: "That the right and power is hereby vested in the commonwealth to institute and maintain its action to recover all taxes which may heretofore have accrued to the commonwealth, or which may hereafter accrue, and which cannot be collected by the ordinary methods of distraint and sale. Said suits may be instituted in courts of equity jurisdiction for the purpose of enforcing the state's lien on property which, for any reason, cannot be sold, or for the purpose of reaching intangible property which cannot be otherwise reached; but no action shall be instituted or maintained under the provisions of this act upon any claims for taxes that have been assessed, or might have been assessed, more than five years before the commencement of the same." Railroad and other public service property had been held not subject to ordinary distraint for taxes. Louisville Water Co. V. Commonwealth, 89 Ky. 244, 12 S. W. 300, 6 L. R. A. 69; Same v. Hamilton, 81 Ky. 517; Clark v. Louisville Water Co., 90 Ky. 515, 14 S. W. 502. It was to meet this precise condition that the act quoted was enacted. This act really deals more directly with actions to recover taxes, where the assessment and levy have been made. Although it says that no action shall be instituted or maintained, under the provisions of the act, upon any claim for taxes which have been or might have been assessed more than five years before, the words "might have been assessed" are merely a recognition of the limitation elsewhere provided by the statute law of the state. What the Legislature was providing by the act just quoted was a means of coercing the payment of taxes by that class of property not subject to distraint. It is the policy of the law to put at rest stale demands, of whatever character. This applies as well to taxes as to other matters. On the subject of limitations generally it is declared by section 2523, Ky. St.: "The limitations prescribed in this chapter shall apply to actions brought by or in the name of the commonwealth, in the same manner as to actions by private persons, except where a different time is prescribed by some other chapter in this revision." One of the actions mentioned in that chapter is (section 2515) "an action upon a liability created by statute, when no other time is fixed by the statute creating the liability." By section 469, Ky. St., in the chapter on "Construction of Statutes," it is provided: "The term 'action,' when used in this revision, shall be construed to include all proceedings in any court of this commonwealth." By section 4021 it is provided: "The commonwealth, and each county, incorporated city, town, and taxing district, shall have a lien on the property as sessed for the taxes due them respectively, which shall not be defeated by gift, devise, sale, alienation, or any means whatever, unless the gift, devise, sale or alienation shall have been made for more than five years before the institution of proceedings to enforce the lien, and nothing shall be exempt from levy and sale for taxes and cost incident to the sale. When any lands or improvements shall not be assessed in any one year, it may be assessed retrospectively, in the manner provided by law, for that year, at any time not later than five years thereafter; but the lien thereby accruing shall not prejudice the rights of purchasers acquired in the meantime." The section of the general statute (the act of 1886) of which section 4021 is a re-enactment of and amendment to reads: "The commonwealth shall have a lien for all taxes, and the counties for the county levy and other taxes due the county, on the property assessed, and on all other property of each person which shall not be defeated by gift, devise, sales, alienation, or by any means whatever, provided, the lien herein provided for shall not exist longer than five years." Chapter 92, art. 1, § 2, Gen. St. It will be noted that the subject in hand and under treatment by the sections last quoted is the one of the lien of the taxing district or state, even after the property has passed into the hands of others than the person owning it when it should have been assessed. The last clause of section 4021, referring to the power of the state to assess omitted property for back taxes for five years, must be under stood as referring to that class of property. That section recognizes, as does the act of 1890, that the right to assess omitted property is limited to five years from the time when it should have been assessed. This limitation is found in sections 2523, 2515, and 469 of Kentucky Statutes, above quoted. The cases of Louisville & Nashville R. Co. v. Commonwealth, 1 Bush, 250, McAlister's Executor v. Commonwealth, 6 Bush, 581, Baldwin v. Shine, 84 Ky. 502, 2 S. W. 164, and Louisville & Nashville R. Co. v. Commonwealth, 85 Ky. 211, 3 S. W. 139, arose under statutes having different provisions, and when the policy of the state appears to have been different from that embodied in our present statutes. In the case of Louisville & Jeffersonville Ferry Co. v. Commonwealth (Ky.) 57 S. W. 626, the question of the limitation applicable to proceedings to list omitted property was not involved, and, of course, was not intended to be decided. We are of opinion that a proceeding to compel a taxpayer to list property for any one year is such a proceeding as is embraced by the statutes, supra, and, if not begun in the proper court within five years from the time when the action could first have been instituted, the state is barred of her right to thereafter maintain the action. A question of practice is presented upon the record and argued, that we deem of importance to notice. After the service of the summons on appellants, they tendered their petition and bond to the county court, and moved to transfer the proceeding to the Circuit Court of the United States for the Western District of Kentucky, upon an allegation of diverse citizenship. It was asserted that the only necessary and actual parties to the litigation were Shelbourne, auditor's agent, 72 S.W.-71 a citizen of Kentucky, on the one side, and the Illinois Central Railroad Company, a citizen of the state of Illinois, upon the other. The value of the matter in dispute was over $2,000. We are of opinion that the act of Congress providing for the removal of causes from a state to the federal court does not apply to this case. The commonwealth of Kentucky is the real party plaintiff-the only one beneficially interested as plaintiff. A state is not a citizen, and actions by it are not removable under the act of August 13, 1888, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508]. Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. Ed. 962; In re Ayres, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. Ed. 216; Ferguson v. Ross (C. C.) 38 Fed. 161, 3 L. R. A. 322; Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192, 39 L. Ed. 231. Furthermore, this proceeding was in the county court-a tribunal exercising ministerial as well as quasi judicial functions in the matter of listing omitted property for assessment. Baldwin v. Shine, 84 Ky. 502, 2 S. W. 164; Baldwin v. Hewitt, 88 Ky. 673, 11 S. W. 803. It was not such an action as might have been brought originally in the United States Circuit Court, and was therefore an action of which that tribunal has not jurisdiction. The motion to transfer was properly overruled. The judgment of the county and of the circuit courts, assessing the franchise value of appellants' bridge for the years 1893 and 1894, is reversed. The cross-appeal of the commonwealth and of Shelbourne, auditor's agent, because of the refusal of the courts to list the property for the years 1895, 1896, 1897, 1898, and 1899, is affirmed. The cause is remanded, with directions to dismiss the proceeding. MORTGAGES-FORECLOSURE-PARTIES- 1. A mortgage is a deed, within Ky. St. § 2135, providing that the wife shall not be endowed of land sold to satisfy a lien or incumbrance created by deed in which she joined. 2. Under Ky. St. § 2135, providing that the wife shall not be endowed of land sold to satisfy an incumbrance created by deed in which she joined, but that, if there is a surplus after satisfying the lien, she may have dower out of such surplus, a wife who joins with her husband in a mortgage on the husband's land has no interest therein, and is not a necessary party to a suit to foreclose the mortgage. Burnam, C. J., and O'Rear, J., dissenting. "To be officially reported." On rehearing. Affirmed. Former opinion (70 S. W. 680) withdrawn. Thos. A. Morgan and L. P. Little, for appellant. Jep C. Jonson, for appellee. PAYNTER, J. The appellant, Morgan, executed to appellee, Wickliffe, a note for the sum of $2,127.40, and, to secure the payment of it, executed a mortgage upon a tract of land in Daviess county, Ky. The property belonged to Morgan, but his wife joined in the execution of the mortgage. This action was instituted to enforce it, to which the wife was made a party, and was proceeded against as a nonresident. The husband appeared and made a defense to the action. warning order was made against the wife, but she never answered. The court rendered judgment decreeing a sale of the land to satisfy the mortgage debt, but made no reference to the wife's rights in the land; nor was a bond executed to her as a nonresident, under section 410 of the Civil Code of Practice. A reversal is sought upon the ground that such bond was not executed. A The wife was not a necessary party to the action. The effect of the mortgage which she executed was to release her potential right of dower in the land, except the surplus proceeds arising from the sale of the land, if any. Section 2135, Ky. St., reads as follows: "The wife shall not be endowed of land sold, in good faith, but not conveyed by the husband before marriage, nor of land sold, in good faith, after marriage, to satisfy a lien or incumbrance created before marriage, or created by deed in which she joined, or to satisfy a lien for the purchase money; but if there is a surplus of the land or proceeds of the land after satisfying the lien she may have dower out of such surplus of the proceeds, unless they were received or disposed of by the husband in his life time." In this section it is expressly stated that the wife is not entitled to dower in land 2. See Mortgages, vol. 35, Cent. Dig. § 1281. which is sold in satisfaction of a lien or incumbrance created before marriage, or created by deed in which she joined, except, if there is a surplus of the land, or proceeds of the land, after satisfying the lien, she may have dower out of such surplus of the proceeds, unless they were received or disposed of by the husband in his lifetime. In Schweitzer v. Wagner, 94 Ky. 458, 22 S. W. 883, the court had under consideration the construction of the statute above quoted. In that case it appeared that the wife joined in the mortgage. In the proceedings to sell the land she was not made a party. Afterwards she brought a suit to have dower assigned her out of the land. It was claimed that she was not a party to the proceeding to enforce the lien, and therefore was entitled to recover dower. The court held that the mortgage in which she joined was a deed, within the meaning of the statute. In effect, the court held that she by the mortgage divested herself of any interest in the land; her interest being in the surplus proceeds which the statute gave her, and only in this if the husband did not dispose of it during his lifetime. In that case the court said: "It is urged by the appellee that by the term 'deed,' in this statute, is meant 'mortgage,' or, rather, that the former embraces the latter, and that the appellant, having joined in the mortgage or deed creating the lien, to satisfy which the sale was made, is not endowed of the land. There is much plausibility in this construction. The intention certainly seems to be that if the wife joins in a conveyance creating a lien, and the land so incumbered be sold to satisfy it, she shall not be endowed thereof, but may have compensation out of the surplus, etc. A deed, in the ordinary sense of that term, is not what is meant in the statute, as by it no lien is created against the grantors, to satisfy which a sale of the land can be made. A mortgage of land is a conveyance of it for the purpose of securing the payment of debt. It is a deed creating a lien, and seems to be the very instrument designated in the statute, in which, if the wife joins, she is divested of dower, save in the surplus proceeds of the sale, if one be made, to satisfy the lien so created. Such has been the construction of this statute in cases of sales for purchase money. * * So it would seem, if it be sold in good faith, because there is a lien for debt created by deed or mortgage, in which the wife has joined, and with a view to satisfy it, she should not be entitled to dower, in the absence of any design to deprive her of her inchoate right. The statute makes no distinction between sales made under an order of court and those made by the owner, and liens for purchase money are placed in the same class with liens created by deed in which the wife joined. She occupies the same relation to the one class as to the other. In neither case |