KAISER et ux. v. SOMERS et ux.
(No. 11205.)

1. Easements

Feb. 2, 1923.)

quent Legislature is entitled to consideration, and, if doubt and uncertainty exist as to the meaning of language used in the first statute, such construction given by a later statute (Appellate Court of Indiana, Division No. 2. may be persuasive of the legislative intent. Middleton v. Greeson, 106 Ind. 18, 28, 5 N. E. 755; Ex parte Brown, 166 Ind. 593, 608, 609, 78 N. E. 553; Taylor v. State ex rel., 168 Ind. 294, 297, 298, 80 N. E. 849. In 1909, the Legislature enacted a statute as follows:

"Section 1. That no action shall be brought • to foreclose or enforce the lien of any mortgage on real estate in this state when the last installment of the debt secured by such mortgage as shown by the record thereof has been due more than twenty years. If the record of any mortgage does not show when the debt thereby secured becomes due, then no action shall hereafter be brought or maintained to foreclose or enforce the lien of such mortgage after twenty years from the date of such mortgage.

"Sec. 2. The lien of all mortgages upon real estate in this state shall cease and expire twenty years from the time the last installment of the debt secured by such mortgage becomes due as shown by the record thereof. If the record of such mortgage does not show when the debt thereby secured becomes due, the lien of such mortgage upon the real estate therein described shall cease and expire twenty years from the date of such mortgage."

Sections 308a, 308b, Burns' 1914; Acts 1909, c. 137, pp. 334, 335.

3(2)-Where use of lane absolutely or reasonably necessary to proper enjoyment of tracts into which land partitioned, way was appurtenant to each tract.

Where lane used by landowner in going to the different tracts into which his heirs partitioned the land was absolutely necessary to the use of one of such tracts, and reasonably necessary to the proper enjoyment of others, the owners of such tracts had a right to use a way thereover as an appurtenance to their

tracts.

2. Easements 24-Right to use way as appurtenance continued, unless surrendered and passed to grantees.

As heirs of a landowner had a right, as appurtenant to tracts acquired by them upon a partition, to use a lane used by the ancestor and absolutely or reasonably necessary to the enjoyment of their tracts, such right continued unless voluntarily surrendered, and passed by conveyance to successive grantees.

3. Easements 8 (2, 3)—Use by heirs, among whom land partitioned, of way used by ancestor, held adverse, and not permissive.

Where heirs, partitioning among themselves the land of their ancestor, continued to use a lane which the ancestor had used in going to the different parts of the land, and the use of which was absolutely and reasonably necessary to the enjoyment of their several tracts, such use was not permissive, but ad

Other sections of the act relate to mechan-verse to the owner of the fee.

Where lane used by ancestor in going to different parts of his land was reasonably necessary to the enjoyment of the different tracts into which his heirs partitioned the land, the way which the heirs had a right to use was the one used by the ancestor, and as located at the time of the partition, and its exact location with reference to a section line was immaterial.

ics' liens, and liens for municipal assessments 4. Easements 48 (3)-Way which heirs had for streets, sidewalks, ditches, and other pub- right to use held way as it existed at date lic improvements, and make the facts shown of partition. by the record conclusive as to when a cause of action accrues and the statutes of limitations begin to run, but do not change the time within which an action of either kind may be commenced after the right of action shall accrue, as fixed by statutes previously in force. Sections 308c et seq., 8299, 8721, Burns' 1914; Acts 1909, c. 137, p. 335; chapter 116, p. 297, § 5, and chapter 172, p. 429, $7. Obviously the Legislature, when considering and enacting that statute, construed the one under consideration as limiting to 20 years the time for commencing an action on a mortgage.

For the reasons stated above, we are convinced that such is the correct construction. The language above quoted from Tennant v. Hulet, 65 Ind. App. 24, 34, 116 N. E. 748, is disapproved.

The judgment is reversed, with directions to restate the conclusions of law to the effect that the plaintiff is not entitled to recover anything in this action, and to render judgment accordingly.

TRAVIS, C. J., dissents.

Appeal from Superior Court, Allen County; Carl Yaple, Special Judge.

Action by Ernest Kaiser and wife against Simon W. Somers and wife. From a judg ment for defendants, plaintiffs appeal. Reversed, with instruction.

Harry H. Hilgemann and Leonard, Rose & Zollars, all of Ft. Wayne, for appellants.

D. Burns Douglass, Breen & Morris and Aiken, Douglass & Aiken, all of Ft. Wayne, for appellees.

NICHOLS, C. J. Action by appellant Ernest Kaiser to enjoin appellee Simon W. Somers from the closing of a lane. After the commencement of the action, Amanda Kaiser, wife of appellant Ernest, and Mary E. Somers, wife of appellee Simon W., were on motion made parties defendant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(138 N.E.)

Numerous errors are assigned by appel-tember 21, 1885, when he acquired title therelants, but, as we view this case, we need to from the heirs of his father Henry Kaiser, only to consider error of the court in overrul- deceased. That appellees have been the owning appellant Ernest Kaiser's motion for a ers and in possession of No. 4 since April, new trial. The following plat will be useful 1905, when they acquired title thereto by suc in helping to understand the situation: cessive conveyances from the heirs of said

b 192in voll to elu oli to podto-200H 9/11 mot gulugur ok,908
galbau 91 107 10

said Ernest Kaiser, William Kaiser, Simon | Kaiser, as trustees of Edward Kaiser one W. Somers, and Mary E. Somers, his wife, as of the heirs of Henry Kaiser, for there! tenants by entirety, and that said land, so was no other means of ingress or egress. owned by said Henry Kaiser at the date of to such tract, and such way was reasonably his death, was partitioned among his said necessary to the proper enjoyment of the heirs by partition deeds, September 21, 1885. tracts adjoining the same, and set apart to That the lane, No. 5, running from the Hoag- others of the heirs of Henry Kaiser, deceased, land public highway, south to the Somers as it is apparent from the undisputed eviland, No. 4, was in existence long prior to dence that these heirs and their grantees at 1870, and was in existence during the time that time and ever since, to the time of the Henry Kaiser owned all the tracts above obstruction of the way by appellees, continmentioned, and was used by him and his ued to use it as a means of ingress to and tenants as an outlet, and in going to his dif- egress from their fields adjoining the same. ferent tracts of land. That it was there when The use of the way in the manner aforesaid he died, and when his said heirs partitioned continued by the parties owning the real his lands among themselves, and so continued estate contiguous thereto for more than 30 to the time of this action, except for its ob- years, each by his conduct, if not his declarastruction by appellees, the right so to ob- tion, recognizing the others' right so to use, struct appellants challenge, and seek to en- until appellees made their purchase from Wiljoin appellees from so doing. liam Kaiser of tract No. 5, and thereupon, [1-3] In findings 11, 14, and 15, the court while, of necessity, claiming their right to use finds that the land or way was not used by the south part of such way, they say by their appellant Ernest Kaiser, adversely, contin-act that the owners of real estate contiguous uously, and uninterruptedly, under claim of to such south part of the way shall not have right, with the knowledge and acquiescence further right of ingress and egress over the of the owner of the land, and that the use north part. made of such way was permissive. These findings are not sustained by the evidence. It will be observed that Henry Kaiser, the ancestor, owned tracts 1, 3, and 4 of the real estate mentioned above, all of which tracts were contiguous to the way, that he used such way in going to his various tracts of land, and that the way was there when he died, and when his heirs divided the lands, making partition deeds.

We are unable to see the equity of appellants' contention. As all of the owners of the tracts of land adjoining the way involved had their absolute right to use such way as an appurtenance at the time of the partition of the real estate, such right continued in each of them, unless in some manner voluntarily surrendered. We see nothing in the facts in this case that indicate that there has ever been such a surrender. The way being appurtenant to each of the tracts at the time of the partition, it passed by conveyance to the successive grantees, Ellis v. Bassett, supra; Robinson v. Thrailkill, 110 Ind. 117, 10 N. E. 647. The use which each of the heirs and "It may be laid down as a general rule that their grantees, including appellants and apa partition of real estate among heirs carpellees, made of such way, by virtue of the ries with it by implication the same right of way from one part to and over the other as had been plainly and obviously enjoyed by the common ancestor, in so far as it is reasonably necessary for the enjoyment of each part."

The rule that must govern under such circumstances is well stated in Ellis v. Bassett. 128 Ind. 118, where the court says, on page 120, 27 N. E. 344, on page 345 (25 Am. St. Rep. 421), that:

partition deeds was not a permissive use, but was a use under absolute right by reason of the implied covenants of partition deeds. Such use was therefore under claim of right, and the same was adverse to the owners of the fee, and whatever title appellees acquired by their purchase and the deed from: Wil

respective owners of the real estate adjoining the way to use the same. r

Numerous authorities are cited to sustain this principle. The court further says: "Where the owner of an estate imposes up-liam Kaiser, was subject to the right of the on one part an apparent and obvious servitude in favor of another, and at the time of the severance of the ownership such servitude is [4] There is some controversy as to the ex-: in use, and is reasonably necessary for the act location of the lane with reference to the fair enjoyment of the other, then, whether the section line. This question is unimportant severance is by voluntary alienation or by judi-under the issues in this case. The way that cial proceedings, the use is continued by oper

ation of law."

It is apparent that the way involved was appurtenant to each of the tracts of land as severed from the whole tract owned by the ancestor, at the time that the deeds of partition were executed September 21, 1885. At that time the way was an absolute necessity to the use of tract No. 4, then severed and set apart to William Kaiser and Ernest

both appellees and appellants have a right to use is the one used by Henry Kaiser, and as located at the time of the partition of his lands among his heirs, without any regard to its location with reference to the section line.

Judgment reversed, with instruction to the trial court to grant a new trial, both on the issues joined on the complaint and the crosscomplaint.

(234 N. Y. 366.)

(128 N.E.)

MORRIS v. SHEEHAN. (Court of Appeals of New York. 1922.)

Dec. 15,

1. Gifts 47(1)-Presumption of gift by de

posit in trust is rebuttable.

The presumption that a person, who deposits money in his own name as trustee for another and leaves the deposit undisturbed until his death, thereby intends a gift to the other is not conclusive but may be rebutted by the circumstances under which the deposit was made and continued.

2. Appeal and error 1094(3) — Uñanimous affirmance by Appellate Division is conclusive evidence was sufficient to sustain finding.

The unanimous affirmance of a judgment by the Appellate Division is conclusive that there was sufficient evidence to justify the trial court's finding that the circumstances under which a deposit in trust for another was made rebutted the presumption of a gift.

Appeal from Supreme Court, Appellate vision, First Department.

trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration. In case, however, the depositor dies before the beneficiary without revocation

or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. We have never held, however, that the presumption of which we spoke was a conclusive one. Indeed, in the case cited, we said:

"When a deposit is made in trust and the depositor dies intestate leaving it undisturbed, in the absence of other evidence, the presumption seems to arise that a trust was intended in order to avoid the trouble of making a will.” 179 N. Y. 112, 124, 71 N. E. 748, 752, 70 L. R. A. 711.

And in Tierney v. Fitzpatrick, 195 N. Y 433, 88 N. E. 750, we impliedly held that this presumption could be contradicted by eviDi-dence as to the circumstances under which the deposit was made. We reversed that case only because certain evidence offered on the subject was incompetent.

Action by Bridget Morris against John T. Sheehan as ancillary executor of Francis J. [2] Therefore the trial court was entitled Lynch, deceased. A judgment for defendant, entered on a dismissal of the complaint, was to find that the presumption spoken of had unanimously affirmed by the Appellate Divi-been overcome in view of the evidence on this

sion (199 App. Div. 968, 191 N. Y. Supp. 939), and plaintiff appeals. "Affirmed.

Melvin G. Palliser, of New York City, for appellant.

Luke D. Stapleton, of New York City, and Nicholas Dietz, of Brooklyn, for respondent.

ANDREWS, J. In his lifetime Francis J. Lynch made a deposit in the East River Savings Institution in the name of "Francis J. Lynch in trust for Bridget Farley," the appellant. Of it she had no knowledge. At his death this account, amounting to about $4,500, still stood as originally made unrevoked and unchanged. Nor was it disposed of by the will of Father Lynch, except as it may have been included in a general residuary bequest. Claimed by both the appellant and the respondent, the trial court found as a matter of fact that when he made the deposit Father Lynch made it for his own, personal convenience and with no intention of creating any trust in favor of the appellant. A judgment was directed for the respondent, and this judgment has been unanimously affirmed by the Appellate Division. The only question before us, therefore, is whether the findings that the deposit was in fact made as stated are inconsistent with this result.

[1] In Matter of Totten, 179 N. Y. 112, 71 N. E. 748, 70 L. R. A. 711, we held that such a deposit does not establish an irrevocable

subject before it.

That there was sufficient évidence to justify the finding is conclusively determined by the unanimous attirmance of the Appellate Division.

The judgment of the court below should be affirmed, with costs.

HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, and CRANE, JJ., concur. HOGAN, J., concurs in result. 71 Judgment affirmed.

2. Negligence 136(14, 26)—Stevedore's neg- | easily have been lifted above the height of a ligence and merchandise checker's contribu- man, and then dropped into the hatch. Intory negligence held for Jury.

stead it was swung at the level of the plaintiff's head, with the intervening shower baths cutting off, at least to some extent, if we accept the plaintiff's statement, his view of its approach. There was a practice, or so a witness for the defendant tells us, to shout a warning to any one whose coming was seen in time, if there was danger of collision. The signal was omitted here. The defendant

In an action against a stevedore employed to load a cargo for injuries to one employed by the owners to check the merchandise who was walking beside a hatchway when he was struck by draft of merchandise swung across the ship's deck without warning, held, on the evidence, that defendant's negligence and plaintiff's contributory negligence were questions for the jury. McLaughlin, Crane, and Andrews, JJ., dis- knew, or was chargeable with knowledge, that senting.

men were likely from time to time to walk beside the hatch. Either the path should

Appeal from Supreme Court, Appellate have been cleared, or a warning should have Division, First Department.

been given. At least a jury might so find. Action by Daniel F. Kruger against T. HoThe defendant argues that the presence of gan & Son, Inc. From a judgment of the workmen at the winches should have put the Appellate Division of the Supreme Court for plaintiff on his guard, and brought him to the the First Department (201 App. Div. 886, other side of the ship where the course would 193 N. Y. Supp. 940), affirming a Judgment have been open. The significance of these of the Trial Term entered on a verdict for and other circumstances must be weighed in the defendant under the direction of the the light of the plaintiff's testimony that sigcourt, plaintiff appeals by permission. versed, and new trial granted.

Re-nalmen were absent from their customary places. His negligence, like the defendant's, is to be determined by the jury.

Ralph Stout, of New York City, for appellant.

The judgment of the Appellate Division and that of the Trial Term should be re

I. R. Oeland and Robert H. Woody, both versed, and a new trial granted, with costs to of New York City, for respondent.

On

abide the event.

HISCOCK, C. J., and HOGAN and POUND, JJ., concur.

MCLAUGHLIN, CRANE, and ANDREWS, JJ., dissent.

Judgment reversed, etc.

(234 N. Y. 372)

WULFSOHN et al. v. RUSSIAN SOCIALIST
FEDERATED SOVIET REPUBLIC.
(Court of Appeals of New York. Jan. 9, 1923.)

International law 10-Unrecognized de facto government cannot be sued.

CARDOZO, J. In the summer of 1918 the plaintiff was employed by the British War Mission to check merchandise as it was loaded on vessels in the harbor of New York. the morning of July 1 he checked a quantity of copper loaded from a lighter to the steamship Ceramic. This work over, he went to the dock where he received the orders of his superior. The orders were to return to the vessel and bring back a fellow checker, one Horn, whom he had left behind in the hold. The plaintiff found Horn, and came upstairs upon the deck. A few feet ahead of him was an open hatchway. Abreast of the hatchway, by the rail of the deck, were covered shower baths for the soldiers. As the plaintiff. moved forward in the space between the hatch and the showers, a draft of bacon, lifted from a lighter, was swung without warning across the deck. It struck him on the head, and caused injuries for which he sues. [1, 2] The plaintiff was on the ship in the performance of his duty. Quinn v. Staten Island Rapid Transit Ry. Co., 224 N. Y. 493, 121 N. E. 340; Constantino v. Watson Contracting Co., 219 N. Y. 443, 114 N. E. 802. The defendant, a stevedore, employed to load the cargo, should have been watchful for While recognition of a foreign government his safety. Quinn v. Staten Island Rapid is conclusive as to the existence of the governTransit Ry. Co., supra. We think the evi- ment recognized, and may for many purposes dence permits the inference that watch was be important, whether or not a foreign governnot maintained. The draft of bacon might ment exists, clothed with power to enforce its

A de facto foreign government, the existence of which is admitted, cannot be sued for ritories, though its act, if committed by an inan exercise of sovereignty within its own terdividual here, would be a tort, and though such government has not been recognized by the United States, as a foreign sovereign, without his consent, cannot be subjected to our laws. 2. International law 10-Existence of government is question of fact, not dependent on recognition.