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Toledo, St. Louis and Kansas City Railroad Company et al. v. Loop.

tify in his own behalf, as the defendant did not request such instruction. Grubb v. State, 117 Ind. 277 (280). We find no error in the record for which the judgment should be reversed.

Judgment affirmed.

Filed Nov. 27, 1894.

139 542 151 492

No. 16,955.

TOLEDO, ST. LOUIS AND KANSAS CITY RAILROAD COM-
PANY ET AL. v. LOOP.

RAILROAD.-Standing Timber Close to Right of Way.-Possibility of Fall-
ing on Railroad Track.-Right of Railroad Company to Cut Down.-
Damages.-Injunction.-Where a railroad company, by its agents,
without notice or permission, entered upon land adjoining its right
of way and cut down growing timber, the only reason for such act
being fear that the timber might fall upon the railroad track, owing
to the close proximity of such timber to the railroad company's
right of way, the railroad company is liable in damages for the
trees cut down, and may be enjoined from cutting other of such
timber; the danger not being shown to be immediate and probable,
but remote and barely possible, which was not sufficient to justify
the acts complained of.

From the Howard Circuit Court.

S. O. Bayless and C. G. Guenther, for appellants.

J. C. Blacklidge, C. C. Shirley and B. C. Moon, for appellee.

HOWARD, J.-This was an action brought by the appellee to enjoin the appellants from entering upon the lands of appellee, adjoining the railroad right of way, and from cutting the growing timber thereon; also, to collect damages for timber already cut.

Judgment for damages and a perpetual injunction were awarded as prayed for.

Toledo, St. Louis and Kansas City Railroad Company et al. v. Loop.

The only alleged error discussed in appellants' brief is the sustaining of the appellee's demurrer to the appellant railroad company's special paragraph of answer.

In this paragraph of answer the appellant company avers that it is the owner, controller, and in the daily use, of a right of way through the lands of appellee; that upon "said land, and near the right of way, are a few standing trees, varying in size; that the upper portions and tops of said trees extend over the defendant's right of way, and near to and along a line perpendicular with the defendant's railroad track; that because of the location of defendant's tracks and the close proximity of the standing trees upon the plaintiff's lands, at the time and immediately befere the cutting down of the same, as mentioned in plaintiff's petition, there was great and immediate danger of said standing trees falling upon the defendant's right of way and said defendant's railroad tracks '; that for the reason aforesaid the said defendant, by its employes,. peaceably entered upon the plaintiff's lands and cut down a few of said trees, standing as aforesaid and so interfering with the safe operation of defendant's said trains; that in cutting down said trees it did so in a proper and workmanlike manner and in no way whatever destroyed or injured the timber in said trees, more than would naturally result from a careful cutting down of the same.

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Appellant thus admits that without notice or permission, it entered upon appellee's land and cut down his growing timber. And this action counsel seek to justify.

The only reason given for fearing that the timber might fall upon the track was "the close proximity of the standing trees upon the plaintiff's lands.

Counsel refer us to no section of the statute authorizing the entry or the cutting of the timber.

By section 5160, R. S. 1894 (section 3907, R. S.

Toledo, St. Louis and Kansas City Railroad Company et al. v. Loop.

1881), a railroad company is permitted to enter upon land "for the purpose of examining and surveying its railroad line," with a view to appropriating a strip for its right of way. We have here no such case. The company was already in possession and use of its hundred foot strip of right of way.

Neither have counsel been able, as they confess, "to find a case anywhere in the books that passes directly upon this precise question." Indeed, we should marvel very much if any one were found, whether owner of the fee or of a right of way, who ever before seriously sought to justify his entry upon another's premises to cut down the timber, simply because it stood close to the line.

No doubt, if a boulder, a log or a decrepit tree threatened to roll or fall from adjoining land upon a railroad track or other highway, and there was no time to lose in seeking permission from the owner, any one might enter' upon the land to avert the danger. Mayhew v. Burns, 103 Ind. 328; Cooley Torts, p. 46; Wood Nuisances, section 107.

There is, however, no pretense of such a state of affairs in this case.

All peril may not be averted; it is the immediate and probable, not the remote and barely possible, that we are called upon to guard against. The tree along the roadside may grow on from year to year, increasing in strength even into the centuries; yet a hurricane may rise within an hour and overturn the stalwart oak upon the passing traveler. It is not, however, such merely possible injury, but an imminent and probable danger, that one may seek to avoid by entering unbidden upon the land of another.

As for trees that grow so close to the line that their branches extend over the adjoining premises, there is no doubt that if injury is shown the adjoining owner may

The Dorsey Machine Company et al. v. McCaffrey.

have his action in damages; or he may cut off the overhanging branches so far as they extend above his soil. He may not, though, cross his neighbor's line and cut down the trees. Wood Nuisances, section 108; Lemmon v. Webb, L. R. (1894), 3 Ch. Div. 1.

The judgment is affirmed.

Filed Dec. 13, 1894.

No. 15,777.

THE DORSEY MACHINE COMPANY ET AL. v. MCCAFFREY.

CORPORATION.-Conspiracy.-Fraudulent Increase of Stock.-Damages.
-A corporation may become a party to or participator in a conspira-
cy to increase its capital stock for a fraudulent purpose, and will be
liable for damages resulting therefrom.

SAME.-Stockholders.-All Need not Participate in Fraud in Order to
Bind Corporation.-It is not essential to bind the corporation for
wrongs resulting from a fraudulent increase of its capital stock that
all of its stockholders should participate in the act, but it is suffi-
cient if enough engage therein to bring about the increase under the
requirements of the law.
SAME.-Purchase of Stock.-Fraudulent Representations by President as
to Value.-Damages.—Assignment.-Parties.-Where one is induced
to purchase stock in a corporation by the false and fraudulent rep-
resentations of its president as to the value of the stock and the
solvency of the corporation, and the corporation receives and uses
the proceeds of the sale, the latter is liable for the damages thereby
sustained, without reference to the manner in which the stock was
issued, and a complaint to recover such damages will lie, although
the corporation is insolvent and is being wound up under a statu-
tory assignment, and in such case the assignee is a proper but not
a necessary party.

STATUTE OF LIMITATIONS.-Fraud.-Ignorance of.-In suits in equity,
where a party has been injured by the fraud of another, and such
fraud is concealed, or is of such a character as to conceal itself,
whereby the injured party remains in ignorance of it without fault
or want of diligence, the statute of limitations does not begin to run
VOL. 139-35

139 545

146 632

139 545

149 245 150 157

139 545 165 420

The Dorsey Machine Company et al. v. McCaffrey.

until the fraud is discovered, even though there be no affirmative acts of concealment.

SAME.-When Question of Raised by Demurrer and When Not.-Where a complaint shows upon its face that the action was commenced after the time limited, the question can be raised on demurrer, provided the statute is absolute, having no exceptions; if there be exceptions, however, and the complaint does not show that the action is not within any of them, a demurrer will not raise the question. SAME.-Corporation.-Sale of Stock.-Fraud.-Affirmative Concealment. -Where the president of a corporation, acting as such to induce an infant, inexperienced in business affairs, to purchase the corporation stock, and to mislead such infant as to the facts, falsely and fraudulently represents that the corporation is solvent and prosperous, but that the purchaser must not expect any dividends for three years, as it was intended to increase the business of the corporation, and the purchaser relies upon such representations and makes no investigation, there is such concealment as postpones the running of the statute of limitations until the discovery of the fraud. TRIAL.-Postponement After Commencement from One Term to Next.— Sick Juror.-Under section 1379, R. S. 1881 (Burns R. S. 1894, section 1442), the trial court has power, where a trial requiring many days is commenced on the next to the last day of a term, and a juror becomes ill and unable to then serve, to postpone the further hearing to a day in the next term, and to order the jury and witnesses to then attend and conclude the trial.

STRUCK JURY.-Party Present but Refusing to Strike.-Withdrawal of Demand.-Clerk May Strike.-Motion to Quash Venire.-Where a party demands a struck jury and attends at the time fixed for striking the same, and is furnished by the clerk with a list of the names selected which he considers, and then announces that he withdraws his demand for a struck jury and refuses to proceed further, the clerk is authorized to proceed as in the case of an absent party, and a motion by the party demanding such struck jury to quash the venire should be overruled.

From the Wayne Circuit Court.

C. H. Burchenal and J. L. Rupe, for appellants.
M. E. Forkner and T. J. Study, for appellee.

DAILEY, J.-The facts constituting the plaintiff's cause of action, as shown by the complaint, stated briefly, are substantially as follows:

The Dorsey Machine Company was organized on Oc

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