value of the ground for the use of a street subject to the rights of the railroad company. In such a case the measure of compensation is the amount of decrease in the value of the use for railroad purposes which would be caused by the use for the purposes of the street. Where damages are claimed for injury to property not taken, the railroad company is entitled to be recompensed for the increased cost of transacting its business occasioned by the opening of the street, but it cannot recover the increased expense which it will incur on account of complying with measures for the preservation of the public safety. Chicago B. & 2. R. Co. v. City of Naperville, 166 Ill. 87 (47 N. E. Rep. 734). For consideration of particular questions of evidence and instructions in proceedings to condemn land of a railroad for street purposes, see Chicago & A. R. Co. v. City of Pontiac, 169 Ill. 155 (48 N. E. Rep. 485).

Sec. 272. Who entitled to receive the damagesRights of mortgagor and mortgagee-Lessor and lessee. Where land is condemned by a county for a public use, the holder of the legal title is entitled to receive the damages, and his right cannot be defeated by a release of damages executed to the county by one, for whom it claims, the holder of the legal title holds the land in trust. Propst v. Cass Co., 51 Neb. 736 (71 N. W. Rep. 748). Where mortgaged premises have been condemned and the damages therefor paid to the county treasurer, the mortgagor may maintain a bill to determine the proper application of the fund. Keller v. Bading, 169 Ill. 152 (48 N. E. Rep. 436; 61 Am. St. Rep. 159). As to who is entitled to damages when mortgaged land is condemned, see Patterson v. City of Binghampton, 154 N. Y. 391 (48 N. E. Rep. 739). For particular case determining the rights of mortgagees and execution creditors in an award given for the condemnation of land, see Commercial Nat. Bank v. Johnson, 16 Wash. 536 (48 Pac. Rep. 267). Where, after proceedings have been brought to condemn leased premises, the landlord makes a conveyance in consideration of the payment of an agreed sum, his tenant cannot claim any portion thereof where he has made no claim for damages. Mass. Pub. Stat. ch. 49, §§ 18, 19, as amended by Stat. 1883, ch.

253, applied. Uhland v. Schupbach, 168 Mass. 430 (47 N. E Rep. 113).

Sec. 273. Priority of award of damages-Lien of judgment. The priority of a landowner's claim for damages, awarded to him in condemnation proceedings by a railroad company to obtain a right of way, may be waived by his failure for several years to assert any claim to damages, during which time the company suffers itself to be dispossessed of the right of way by another company, to which the owner gives a warranty deed to the land. Ind. Rev. Stat. 1894, § 5160, applied. Coburn v. Sands, 150 Ind. 141 (48 N. E. Rep. 786). A judgment for damages in favor of a land owner against a railroad company on account of injuries resulting to his property from the construction of the road, constitutes a prior lien against the property of the railroad, and the proceeds arising from its sale as against subsequent purchasers, mortgagees and creditors. Ill. Const. art. 2, § 13, applied. Dickson v. Epling, 170 Ill. 329 (48 N. E. Rep. 1001). The court say: "The lien relied upon here is conferred by the constitution in language not of doubtful meaning. As has been said, that instrument declares: Private property shall not be taken or damaged for public use without just compensation.' This provision of the constitution provides a lien for the protection of the property owners. It confers security on the property owner to his property until compensation has been made. The lien or right conferred on the property owner does not depend upon any equitable proceeding, or whether an execution may or may not be issued, but it rests upon a principle ingrafted on the organic law,—that the property of the private citizen shall not be taken or damaged for public use without just compensation."

Sec. 274. Title acquired by condemnation of landEquities of third persons. Where the easement appropriated for the construction of a sewer is " the right to carry and conduct, under the following described lands and therein to construct, operate and forever maintain an underground main sewer and connecting sewers, drains, manholes, and underground appurtenances and to repair and renew the same", the

rights of the condemning party are limited to the easement taken; and it is not reasonably necessary for the maintenance of the main sewer to remove the soil from one part of the system to another in repairing and renewing the sewer and no right to do so is included in the taking. Butchers' Slaughtering & M. Ass'n v. Commonwealth, 169 Mass. 103 (47 N. E. Rep. 599). In condemning land for the right of way for a railroad, the railroad company has the same right to rely on the public records in determining who is the owner of the land to be condemned that any purchaser would have. Where a right of way is condenmed over land in the possession of one holding a duly-recorded tax deed thereto, and also a patent from the state based on such tax deed, under which the holder has paid the balance due the school fund on a certificate of purchase of such land as school land, a report of the commissioners making the condemnation, naming such patentee as the owner, followed by a deposit of the condemnation money with the county treasurer to his credit, and the subsequent payment to him thereof, after the expiration of the time allowed by law for an appeal from such proceedings, passes a valid title, as against the secret and undisclosed equities of the heirs of the holder of such certificate of purchase. Phipps v. Kansas & C. P. Ry. Co., 58 Kan. 142 (48 Pac. Rep. 573).

Sec. 275. Statutes amended and new statutes. Ariz. Laws 1899, p. 62-appropriation of lands for pipe lines. Conn. Laws 1899 p. 5-proceedings where the land condemned is subject to "an estate for life or years in one or more persons or corporations, with remainder, reversion or executory devise, to another or others." Ind. Laws, 1899, p. 74-condemnation. by county commissioners-procedure. Kan. Gen. Stat. 1897, §§ 1397, 1398-purposes for which land may be condemned -amended, Laws 1899, p. 191. Kan. Laws 1899, p. 316condemnation of land for storage of water. Minn. Gen. Stat. 1894, § 2604-appropriation for right of way-amended, Laws 1899, p. 49. Minn. Laws 1899, p. 461-appropriation by street railway companies. Mont. Civ. Code § 2211-for what uses the right of eminent domain may be exercised-amended, Laws 1899, p. 135. S. C. Rev. Stat. § 1744-condemnation of right of way-method of assessing damages-amended,

Laws 1899, p. 83. Tex. Rev. Civ. Stat. art. 4471-entry by condemning party pending condemnation proceedingsamended, Laws 1899, p. 105. Tex. Rev. Civ. Stat. art. 4445 -appropriation of new right of way by railroads to shorten lines or improve grades-amended, Laws 1899, p. 103. Tex. Laws 1899, p. 263-power of sewerage companies to condemn land. Wyo. Laws, 1899, p. 73-power of railroad companies to condemn land.

EQUITY.

Sec. 276.

EPITOME OF CASES.

Subrogation-General principles. The right of subrogation must, in every case, rest upon some recognized subject of equitable cognizance. Chicago Lum. Co. v. Anderson, 51 Neb. 159 (70 N. W. Rep. 919). It is not essential to a claim for subrogation that the debt be paid in money,but if the creditor accepts property in full satisfaction of the demand it is sufficient. Combs v Canbler, 95 Va. 7 (27 S. E. Rep. 815). One voluntarily discharging the mortgage debt of a third person cannot claim subrogation in the absence of an agreement to that effect. Martin v. Martin, 164 I11. 640 (45 N. E. Rep. 1007; 56 Am. St. Rep. 219). A purchaser of land cannot be subrogated to the benefit of an incumbrance he has agreed to pay. McDonald v. Quick, 139 Mo. 484 (41 S. W. Rep. 208); Campbell v. Hamilton, Tenn. (39 S. W. Rep. 895). Citing, Goodyear v. Goodyear, 72 Ia. 329 (33 N. W. Rep. 142); Bank v. Thompson, 72 Ia. 414 (34 N. W. Rep. 184); Carlton v. Jackson, 121 Mass. 592; Martin v, C. Aultman & Co., 80 Wis. 150 (49 N. W. Rep. 749; Willson v. Burton, 52 Vt. 394; Kellogg v. Colby, 83 Ia. 513 (49 N. W. Rep. 1001). Ordinarily a trustee advancing money to discharge an incumbrance upon the trust estate can claim the right of subrogation, but if such payment is made under circumstances which clearly indicate that the trustee did not intend to reclaim the money advanced, the right of subrogation will be held not to exist. Farleev. Field, N. J. Eq.

(36 Atl. Rep. 945). One who advances money for the

payment of an incumbrance, upon the promise merely of repayment, without any interest of his own to protect, without promise of subrogation, and without fraud or imposition upon him, is not entitled to subrogation. Heiney v. Lontz, 147 Ind. 417 (46 N. E. Rep. 665). The right of subrogation exists in favor of a creditor who has paid the amount of a mortgage or other incumbrance in order to protect his own subordinate lien, or when, as the holder of such subordinate lien, he has, through mistake or inadvertence, satisfied a prior lien upon the property covered thereby. The right must in every case rest upon some recognized principle of equity jurisprudence, such as a mistake of fact, an agreement or understanding that the money advanced was for the express purpose designated, or the like. Seieroe v. Homan, 50 Neb. 601 (70 N. W. Rep. 244).

Sec. 277.

Subrogation-Payment of the whole debt as a requisite. A second mortgagee, who, for the protection of his own security, pays an installment due on the first mortgage, will, to the extent of such advancement, as against the mortgagor, be subrogated to the rights of the holder of the first mortgage, and may, upon payment by the mortgagor of the balance due on the prior mortgage, enforce by action his lien for the amount so advanced. Skinkle v. Huffman, 52 Neb. 20 (71 N. W. Rep. 1004). In discussing the doctrine that payment of the entire debt is essential to the right of equitable subrogation, the court say: "Subrogation, it is settled, both upon reason and authority, will not, except in case of estoppel, be allowed to the prejudice of other rights. This principle was recognized in the leading case of Kyner v. Kyner, 6 Watts 221, holding that substitution of one creditor for another will be denied so long as the debt, or any part thereof, remains unsatisfied, because, as held therein, until the creditor shall be wholly satisfied, there ought and can be no interference with his rights or his securities which might even by a bare possibility prejudice or embarrass him in any way in the collection of the residue of his claim. See, also, Forest Oil Co.'s Appeals, 118 Pa. St. 138 (12 Atl. Rep. 442; 4 Am. St. Rep 584); Graff's Estate, 139 Pa. St. 69 (21 Atl. Rep. 233); Cason v. Laney, 82 Tex. 317 (18 S. W. Rep. 667);