in Lincoln county in October, 1898, on a bill filed April 23, 1895, by the selectmen of Alna, wherein the Wiscasset & Quebec Railroad Company was ordered "to erect or cause to be erected by the first day of September, 1898 (?), a suitable and substantial highway bridge over and across its railroad track and over and across the excavation made by it across the highway in Alna, at the place named in the complainant's application, said bridge to be located in accordance with the adjudication and report of the railroad commissioners heretofore made." The adjudication of the railroad commissioners referred to was made June 12, 1894, and is in these words: "The railroad company [the Wiscasset & Quebec Railroad Company] is hereby authorized and empowered to excavate through and under said way at point of crossing, to such depth as may be necessary to grade said railroad, and said corporation shall thereupon erect and maintain a suitable and substantial highway bridge over said railroad track; said structure shall be supported on suitable stone abutments, or upon substantial wooden trestles. Said bridge shall be at such height above the railroad track as will give a space or head room of at least twenty feet between the track and the lower part of the stringers of said bridge. Said bridge and top of the approaches thereto shall not be less than 20 feet in width, and said bridge and the approaches thereto, within the location of said railroad, shall be constructed and maintained by said railroad company in such manner that the same shall be safe and convenient for travelers on said way with horses, teams and carriages."

Under this judgment of the railroad commissioners, the railroad company in June, 1894, excavated through the said highway, at the point of crossing, to the depth of about 33 feet, and about 120 feet in width at the surface of the ground, and constructed its railroad track across the way at the bottom of the excavation, and there operated its railroad.

The obligation of a railroad company when it builds its road across a public way to bear or share in the expenses of putting the way into a condition for travel is, in this state, a statutory one, of which the railroad commissioners have jurisdiction. They are to determine the manner and conditions of crossing. Laws 1889, p. 248, c. 282, § 2; Rev. St. 1883, c. 18, § 27. And it is not questioned that the railroad commissioners might lawfully require the railroad company to erect at its own expense a bridge over an excavation made by it and construct the approaches to it so far as the same were within the railroad location. Laws 1889, p. 248, c. 282, § 2; Rev. St. 1883, c. 18, § 27.

It is conceded that the decree of the court made in 1898 has not been performed, and that no bridge of any kind or length has ever been erected by any one. No reason is of

the Wiscasset, Waterville & Farmington Railway Company, upon which rests the obligations of the original railroad company, in its answer says that it "is under the obligation to construct and maintain so much of said bridge and the approaches thereto as are within the location of said railroad," but claims that it is not obliged to erect or maintain any part of a bridge or approaches outside the boundaries of its location. It claims that its location is only four rods wide. The company prays that its duty may be so determined and limited by the decree in this case. On the other hand, the plaintiffs contend that, under the former decree of the court, the railroad company is bound to build a bridge across the entire width of the excavation. Thus the only question which the court is called upon to determine is the length of the bridge and approaches which the company is bound to erect.

The decree of the court was that the bridge should be erected in accordance with the adjudication of the railroad commissioners, and that adjudication was that the bridge and the approaches thereto "within the location of said railroad" should be constructed by the railroad company. The statute did not give the commissioners any jurisdiction to order the building of a bridge, or a part of one, outside the railroad location, and they did not assume to do so. We think the statute giving the railroad commissioners jurisdiction in this class of cases contemplated that the excavation made in crossing a highway would all be within the railroad location, for another statute (Rev. St. 1883, c. 51, § 14) empowered a railroad to take, without regard to width, all the land for its location which excavations made necessary, though the width of a location was in general limited to four rods.

The statute also contemplated, and so expressly declared, that the manner and conditions of crossing should be determined before the company entered upon the construction of the railroad. Pub. Laws 1889, p. 248, c. 282, § 2. And since it might become proper in the course of actual construction to change the contemplated grade of the road, and for that purpose to deepen the excavation, and also its width, it could not be certainly known at the time of adjudication just how wide the excavation would be, and how much it would become necessary to take. And thus it might become necessary to take more land, which it could do under section 14 of chapter 51 of the Revised Statutes of 1883. And even if, after the roadway had been built, it was found that the land actually embraced by it had not been acquired by a previous taking, it might correct and perfect its location by a new taking under section 15. But it was to be presumed that a railroad company would exercise its rights in such instances and take land for locations wide enough for its necessities. If it exceed

had not legally taken, that fact did not extend the jurisdiction of the railroad commissioners, unless the statute method prescribed in section 15 was followed by the company. Other methods of prevention or remedy were open to injured parties.

We think the jurisdiction of the railroad commissioners extended to the full width of the railroad location as it then was, or as it might afterwards become by lawful taking, but no farther, and that their adjudication in 1894 must be so construed.

Nor did the court undertake, if, indeed, it had the power, to make its decree broader than the order of the railroad commissioners. So that the question resolves itself to this: How wide was the railroad location at the point of crossing, or how wide did it lawfully become? The defendant contends that it was never more than four rods wide. As already stated, the extreme width permitted by the statute was four rods, except when necessary to take more land by reason of excavations and embankments. Rev. St. 1883. c. 51, 14. To answer the questions we must first look to the records. By Rev. St. 1883, c. 51, § 6, it was provided, as a preliminary and essential step towards the taking of land for a railroad location, that the company should "file with the clerk of the county commissioners of each county through which the road passes a plan of the location of the road, defining its courses, distances and boundaries." A like copy was to be filed with the railroad commissioners, who were authorized to approve the location upon petition after notice and hearing. In 1893 or 1894, prior to the adjudication by the railroad commissioners, the Wiscasset & Quebec Railroad Company filed, as is alleged and admitted, with the county commissioners of Lincoln county, a "location" of its railroad from Wiscasset, through Alna to the county of Kennebec, which was, as we understand, in attempted compliance with the foregoing requirement of the statute. A copy of this location is in the record before us. It gives only the description of a single line, beginning at a definite point in Wiscasset and running with definite courses and distances, through Alna, to the Kennebec line. It does not state whether this is the center or the side line of the location. Nor does it state the width of the location. It fails, therefore, to give, as the statute required, the "boundaries of the location." Such a "location" was plainly imperfect and ineffective. By it the company did not take any land, and had no statutory location. The present defendant, however, does not seek to avoid its responsibility on this account. It shows that in 1897, after the original bill was filed, but before the decree, a new location was filed with the county commissioners, under section 15, which set out that the original location failed to acquire land actually embraced in its roadway, and that that location

cation described a location four rods in width, the center line of which was, so far as the Alna crossing is concerned, the line described in the original location. And the defendant contends that this corrected and perfected its location, and limited it at all places to a strip four rods wide, and, further, as we understand the contention, that it related back and made it a four rod location as of the time of the attempted location; and, further still, that, by relation back, the location referred to in the adjudication of the railroad commissioners must now be deemed to be of the width of the location, as corrected.

We may pass for a moment the effect of the later location. Though the original location was defective and ineffective, yet we think the Wiscasset & Quebec Railroad Company cannot now be permitted to deny in this proceeding, and as against these plaintiffs, that it had a location in Alna. Nor can this defendant, its successor, deny it. After securing the adjudication of the railroad commissioners, after the actual taking of the land under it, and after being heard in its defense in the original bill in equity, and after judgment thereon, it is estopped to deny that it had a location of some width. And so is this defendant. It is also now estopped to deny the necessity of taking as much land as was taken. But how wide was that location? Was it two rods, or three rods, or four rods, or more? It might have been either. We think the question is to be answered by the acts of the railroad company itself by the width of the land it actually took and used. We think, disregarding now the new location in 1897, that it is estopped to deny that it had a location as wide as it had a lawful right to acquire and which it actually did take. By actually tak ing land in the limits within which it might lawfully condemn, it fixed, as to the interests represented by these plaintiffs, the limits of the location.

But the defendant contends that the corrected location should control the conclusion thus reached, and that the decree made after the location was corrected may be presumed to have been made upon the changed situation. The decree is silent as to this, and properly it could only have been made upon the allegations of the bill filed in 1895. However, without resting our decision upon this ground, we think that the rights of the town of Alna had become fixed prior to the new location in 1897, and that it did not lie in the power of the railroad company to modify or limit them, by a subsequent location, narrower than the land actually taken. It follows that the bill must be sustained against the Wiscasset, Waterville & Farmington Railway Company. If that company shall not erect, or cause to be erected, within four months after the certificate of this decision is received a suitable and substan

more than 1 per cent. of alcohol at sixty degrees Fahrenheit, to wit, one gallon of spirituous or distilled liquors, wines, fermented, rectified spirits, spirituous, brewed, malt wines and other beverages containing more than one per cent. of alcohol at sixty degrees Fahrenheit," and that the respondent had been convicted of a prior offense of unlawfully keeping for sale fermented liquor by the police court of Lincoln on February 10, 1908.

To prevent any misunderstanding, we will add a word further. It appears that since 1898 the opening made by the excavation has been widened by the action of the natural elements. We do not think this has added to the defendant's responsibility. The location for which the defendant is responsible is the one which its predecessor made. The breaking down or the caving in of a bank of a railroad cut does not widen the location. If the parties cannot agree upon the width of the excavation and location as made by the railroad company, a master will be appointed to ascertain and report the fact. Decree in accordance with the opinion.

(75 N. H. 248)

STATE v. MALTAIS.

Grafton.

(Supreme Court of New Hampshire.
April 6, 1909.)
CRIMINAL LAW (§ 1200*)-HABITUAL OFFEND-
ERS-SECOND OFFENSE-STATUTES.

Pub. St. 1901, c. 112, § 15, provides that if any person shall sell or keep for sale any quantity of spirituous or distilled liquors, etc., by whatsoever name called, containing more than 1 per cent. of alcohol by volume, at 60 degrees Fahrenheit, he should be fined and imprisoned, and for any subsequent offense, he shall be fined a greater amount and imprisoned for a longer term. Held, that the increased penalties were not limited to cases where there had been a previous conviction of the identical offense, to wit, an offense proved by precisely the same evidence, but was confined to a prior conviction for violating one of the provisions of the same section, so that an allegation of prior conviction was not sustained by proof of a conviction of selling fermented cider in less quantities than a barrel, in violation of section 17, as amended by Laws 1903, p. 123, c. 122, § 2. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3253; Dec. Dig. § 1200.*]

Exceptions from Superior Court, Grafton County; Stone, Judge.

Eli Maltais was convicted of keeping for sale spirituous and distilled liquors containing more than 1 per cent, of alcohol at 60 degrees Fahrenheit, and of a prior offense, and he brings exceptions. Sustained.

Information charging that on May 1, 1908, at Lincoln, in said county, the respondent "did then and there unlawfully keep for sale a large quantity of vinous, fermented, distilled, rectified spirits, spirituous, brewed

There was evidence of sales of beverages composed mostly of some kind of wine and of whisky or alcohol. The record of the police court of Lincoln showed that on February 10, 1908, the respondent was arraigned on a complaint and warrant charging the sale of cider, and was fined upon his plea of guilty. The respondent requested the court to charge that, the first conviction being for the sale of cider and the evidence in this case being that spirituous liquor was sold, no conviction could be had for a greater offense than keeping spirituous liquor for sale on a first offense. The request was denied, subject to exception.

Edwin H. Shannon, for plaintiff. Marshall D. Cobleigh, for the State.

PARSONS, C. J. "If any person shall sell or keep for sale in any quantity any spirituous or distilled liquors, vinous, rectified spirits, fermented, brewed, or malt liquors, wines or any beverage, by whatever name called, containing more than one per cent. of alcohol by volume at 60 degrees Fahrenheit, he shall be fined not less than $25 or more than $100 and also shall be imprisoned not less than thirty days or more than sixty days. And for any subsequent offense he shall be fined not less than $100 or more than $200, and imprisoned not less than two months or more than 12 months." Pub. St. 1901, c. 112, § 15; Laws 1903, p. 122, c. 122, § 1; Laws 1905, p. 440, c. 46, § 1; Id. p. 528, c. 116, § 1. The information, to which no objection is made, appears to have been intended to charge a "subsequent offense" under this section. The increased penalties are not limited to cases where there has been

a previous conviction of the identical offense -a violation of the particular provisions now charged; i. e., an offense proved by precisely similar evidence. State v. Sawyer, 67 Vt. 239, 31 Atl. 285; State v. Haynes, 36 Vt. 667. But a respondent is not made liable to them because of a prior conviction of any criminal offense, or of any one of the various offenses created by the liquor law. The increased penalties are imposed for a subsequent violation of the prohibitions of the section. Hence it is necessary that the prior conviction must be founded upon a charge of such violation. Proof that the respondent had been convicted of a violation of the section, as, for example, of a sale or keeping for sale of "fer

tion the respondent is now accused of violating.

The substance of the rule asked for by the respondent was that he could not be convicted of a second violation of section 15, as amended, in the absence of evidence of a previous conviction thereunder. As there was no evidence of a previous charge against him of such violation, his conviction upon a plea of guilty to a charge of violating another statutory provision does not authorize the conclusion that he was convicted of a violation of the section under which he is now charged. In the entire absence of evidence tending to sustain the charge of "subsequent offense," the error involved in the failure to give the requested instruction is manifest.

The argument of the state appears to be that upon evidence sufficient to convict of a sale of cider a conviction of selling "fermented liquors" might have been had upon the ground that cider is included within that term, and that chapter 116, p. 528, Laws 1905, amending section 15, c. 112, Pub. St. 1901, repealed section 16 of the same chapter. But the guilt or innocence of a first offense is not involved. The only question is whether as an historical fact there has been a previous conviction. State v. Adams, 64 N. H. 440, 442, 13 Atl. 785; People v. Raymond, 96 N. Y. 38, 39. The suggestion of the repeal of section 16, c. 112, Pub. St. 1901, as amended by section 2, c. 122, p. 123, Laws 1903, need not be examined. If sound, it would only establish that the respondent ought to have been charged before the police court with violating section 15-not that he was so charged.

Under the complaint of February 10th, charging the unlawful sale of cider, whether the subject of sale was "fermented liquors" within the meaning of section 15, or was a "beverage containing more than one per cent. of alcohol," was not in issue. Proof of the sale of fermented cider in less quantity than one barrel made out the charge. State v. Jenkins, 64 N. H. 375, 10 Atl. 699. The charge of an offense in the language of the section was an allegation by the state that the section was in force. The claim of the state May 1st, that the statute was repealed as a foundation for the contention that February 10 the respondent was convicted of an offense with which he

(75 N. H. 228)

PIPER V. BOSTON & M. R. R. (Supreme Court of New Hampshire. Merrimack. June 2, 1908. On Rehearing, April 6, 1909.)

DENCE.

Where, in an action for personal injuries defendant pleads a release from liability therefor, evidence that defendant's agent, who obtained the release, subsequently attempted to conceal the nature of the transaction from no reference to defendant, is admissible to show plaintiff's wife, assuring her that the paper had fraud in securing such release.

[Ed. Note.-For other cases, see Release, Dec. Dig. § 56.*]

2. RAILROADS (§ 282*)—INJURIES TO LICENSEE -ACTION-DIRECTION OF VERDICT.

Evidence in an action against a railroad by an express company employé for personal injuries caused by being struck by an engine held, insufficient to warrant the direction of a verdict

for defendant.

[Ed. Note.-For other cases, see Railroads, Dec. Dig. 8 282.*1

EXAMINATION

3. WITNESSES (§ 248*) RESPONSIVENESS OF ANSWER.

In such action an answer to the question, "How far is it from the place where you left the H. car to the place on the W. M. track where you were hit? I don't know. They dragged me 117 feet"-was properly admitted.

[Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 248.*]

4. EVIDENCE (§ 508*)-OPINION EVIDENCEEXPERTS-DISTANCE.

Expert testimony based on such answer was properly admitted. [Ed. Note.-For other cases, see Evidence, Dec. Dig. § 508.*]

5. TRIAL (§ 121*)-ARGUMENT OF COUNSEL EVIDENCE TO SUSTAIN.

probable that, when plaintiff returned to work Argument of plaintiff's counsel that it was some two months after the accident, he would "go down and see how far they dragged him," was proper, as it stated no fact not in evidence, but properly urged on the jury's attention an established opportunity to obtain the knowledge testified to.

[Ed Note.-For other cases, see Trial, Cent. Dig. §§ 294-298; Dec. Dig. § 121.*] 6. RELEASE (§ 56*)-VALIDITY-FRAUD-EVI

DENCE.

did not understand that the agent of the express In such action, plaintiff's testimony that he company from whom he received a certain sum of money alleged to have been paid him in release of his claim represented the defendant railroad was admissible on the issue of fraud in obtaining the release.

[Ed. Note.-For other cases, see Release, Dec. Dig. § 56.*]

7. EVIDENCE (§ 584*)-DEPOSITIONS-WEIGHT -MENTAL CONDITION OF WITNESS.

Plaintiff's mental condition when giving his deposition was a fact to be considered in determining the weight to be given his answers. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 584.*]