vol. 41. beoply a loan by plaintiff to Mlditin bhhis $55,OOO,'and plaintiff only held the stock; as'eollateral; The certificates of stock were delivered to fthe plaititift'{btit by the t6rms'and:conditions of the con:tract'he was given 'until:tbe'l!st':of':January,1889ltodeoideorelect;whether he would keep the stdCk:or'return: ikThe' trans8<ltion seemstoi mean entirely natural and neither; withitt,the:terms'of the "Illinois statute, or 'the miscbiefdlt: was iIitendedtd remedy. ' It contains no element, as it seems to mee, a gambling ,oontract, when to this view of thehnport and lep;aVeffect of the contract thefactthlit the whole negotiations between the plaintiff' and Swan Bros; were conducted by defendant 8$ the agent of Swan Bros.; that plantiff tqok' the stock with the understanding and assurance that defendant would guaranty the contract, and that all the negotiations and the terms of the contract Were had and agreed upon in Ntlw York between the plaintiff and defendant eontractwas extlcutedj that the contract itself was executed 'in Nebraska, where it was entirely lawful,andthat,' in appending his guaranty in Chicago, the defendant had 'done Mmore than he had agreed to do in New York, and :without whichragreel:rient the plaintiff wot1ldnothave parted with his, money. It seems to rile defendant should not be heard to invoke this Illinois statute"as a defense. The issueR" are, therefore, found foJ.' the plaintiff, and judgment will be fo1' the full; amount of the money. ,to be paid with interest since January 1,,1889·. ,: .
UNITED STATEs t1. CDl.8trl.ct OO'UR't" L
, Maroh 15,1890.> ','
BOUNDAl1Ijlis-AnTI.,IOIAL-LINBS DJV.IjlBG.IjlNT nOM DBSORIPTION IN DJ!BD.
Where the grantor in a'deeld conveying land to the United States iii to fence the Same, tbe placing of a walllIpon a line diyer¥ing from that called fol' by the deed cannot be taken to designate the true line, In tile absenoe ot evideuoe of assent thereto by the United States. ''
.. ,S.ullI:--MoNUMBNTS.t.ND COtJRSBs"..M....sUBBMBNT&
Known and visible monuments and comp888 coursO& muat prevail over meaaurements in 'establishing boundaries. (IMlabui by the Oourt.) "
At Law. GeorgeE. Bird,)1. S. Atty. ' William R. Anthoine, £6rdefendant.
,
This is an'abtion of trespass quareclamumjregU, brought Cape Eliza. beth in this district, upon which the United States has erected two lighthouses, and the adjoining land ,owned by the defendant. ,. 'l'he plaintiff put in evidence two deeds. The first, from Edwardnnd Enoch Dyer, dated May 24, 1826, conveyed to the United States a tract of land con·taining about 12 acres, bounded, beginning at a stake at high-water marki
to determine the boundary lines between, a tract of land on
NELSON, J.
,UNITED STATES 11. HURRAY·.
86:3:
northerly of the most easterly point of the cape, in the' dividing line between the land of the grantors and land of Charles Staples; thence run": ning S. 63 deg. W. 87 rods; thence S. 27 deg. E. through the center of a never-failing spring of water, recently named "Weasel Spring," 18 rods; thence S. 63 deg. W. 13 rods and 12 links; thence S. 27 E. 13 rods and 12 links; thence N. 53 deg. E. 56 rods; thence N. 46 deg. E. a rods; thence N.47 deg. E.24 rods to high-water mark; thence northerly by high-water mark about 13 rods, to the stake first men" tioned,' together with the rocks and flats fronting the same to low-water inark.Thesecond deed, from Edward Dyer, dated November 10,1832, conveyed to the United States a tract of land adjoining that described above, containing 8 acres more or less, bounded, beginning on the northeasterly line ·of the first-described tract, at a stake 14 rods north-easterly from the south-easterly comer thence running S. 45 deg. E. 14 rods and 14 links to the comer of a stone wall; thence N. 50 deg.' E.by said stone wall 38 rods; thence N.55 deg. E. about 5 rods to high-water wark of the sea-shore; thence northerly and easterly by the sea-shore to the north-ea'Sterly corner of the land first described; thence southerly On aaid last,.mentioned land to the place of beginning. In this deed the covenanted to fence the land thereby conveyed, and aJso the land conveyed, by the deed IQf.Edward and Enoch Dyer, with a good and sufficient stone walland to have the fence completed within one year from the date of the deed, excepting, however, that part of the land which borderEld ontheseaJShore,and on the land of Charles Staples. In respect t<t the firsUhree.boundary lines of the deed of 1826 no controversy e.xists between the· pa:rtiea. The first line· is defined by an anoient stone wall which was :undoubtedly in existenee at the date of tM deed, and marked the division line between the land of the grantors and that of CharlesSfaples. The compass course,of the wall is substantially the same as that in the deed. .The second line drawn at right angles to t):le first, thrpUgh and this fixes it with certainty; The third line runs at right angles with the second, and is admitted to be oorrect. In regard to the true position of the fourth line, which is defined in the dped as runningS. 27 deg. E. 13 rods and 12 links, the parties are in disagreement. The defendant claims that it should follow a st{)ne wall built by Edward Dyer soon after the date of his deed in pursuance of his,covenant t(jdence; the reMains of whiCh are still visible. This. I cannot agree to. The line of the wall is not at right angles with the third line and is; l,lotll S,traigbt thaLdescribed in the deed. There is in it suoh a decided bend to the eastward that a line drawn from· one of its extremities to the othel' would pass throughona light-houses. The"e is, no evi'dence that the government as8entEid to this O"f, any part ofthe.·wall built by Edward Dyer aftel1the date of his deed, as the true division line. This line must be ruri"-but according to the compass course and .distance givenirfthe deed... The: present fence built. by the gQvernment is.on the true line. The defendant1s,e,ntry 'on, the, land betwee!l the wall and the fence was therefore l1n-
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'.
864
J'BDERAL REPORTER,
vol. 41.
On the plot of the government survey filed in the case and at the hearing, the southerly end of the fourth line of the first deed is designated by the letter "G." This is the south-easterly corner of the tract conveyed by that deed. .In the second deed the first bound is fixed at a pointin the easterly line of the first.tract 14 from corner G. Commencing at the point thus defined,and running S. 45 deg. E.14rods and 14 links, the course and distance given in the deed, the line would terminate about 40 feet outside of the end of the stone wall mentioned in the deed, which is still in existence, and would include in the government land a strip two rods wide outside of the old wall for its entire length. This is manifestly incorrect, and shows conclusively that a mistake occurred in making the first line of the second deed begin 14 rods from corner G. This distance is evidently too short. The true line must be ascertained by running back from the end of the wall OI!l. a course N. 45 deg. W. (the opposite of the S. 45 deg. E. course of the deed) until it strikes the line of the first lot; and the latter line must be found by running from corner G, N. 53 deg. E. As nearly as I CAn make out from the plot, the effect of this will be to place the point' of departure between 16 and 17 rods from corner G, and to shorten the first line of the second deed between one and two rods. But the end of the old stone wall, which isa visible and known monument, the corner G, the true position of which is fixed with certainty, together with the compass courses, must prevail over measurements in establish· ing the boundaries. 'The stone wall meJ.!tioned in the second deed must constitute the easterly boundary of the tract for a distance of 38 rods, an,d from thence the lines given in the deed must govern. The defendant's entry upon this part of the land in dispute was consequently lawful. I assess the plaintifl"sdamageson the first count at five dollars. Judgment will be fur the plaintiff on the first count for five dollars and costs of suit, and on the second count judgment for the defendant. So ordered. '
HENNING t1. WESTERN UNION TEL. (Cwcuit Oo'U/rt, D.
Co.
Bouth. OwroUna. April 11, 1890.)
1.
NUIl!.A.NOB-TBLBGRAPlI WmBs-MAsTBR AND SBRVANT-PBRSOIUL INlURIBs.
Where employes of a t.elea-raph company negligently allow Its wires to fall on the Wires of an electric light company, and to remain there hanging down, the telegraph company is liable for injurIes sustained by a passenger on the street who ac>cidentally oomes in oontact therewitl1· D..uu.GES. .
...
A perSOD. so inJured is entitled to damages, if the employes acted in a spirit of'mischief or criminal inditference; ana it was known to the company's man. agers t c:lr if:the managers did not exercise proper care in selecting the employes, or if they Knew or had means of knowing that they were not skillful, prudent, or careful.