court, in its special finding of the facts, made at the instance of the plaintiff, found that it was the intention of the parties to the deed of trust under consideration to except from the operation thereof only such right or easements as the city had acquired or might acquire for the street purposes, and thereupon refused a peremptory instruction for the plaintiff, and gave an instruction in the nature of a demurrer to the evidence for defendants, and rendered judgment accordingly, in favor of defendants, from which the plaintiff duly appeals to this court.

The only question presented by the record for our determination is as to the proper construction of the above-quoted clause in the Bayless deed of trust. The plaintiff contends that the true meaning of the description contained in the deed of trust is that the disputed strip had been taken for TwentyThird street, and that, therefore, the feesimple title thereto was excepted from the operation of the deed of trust, and did not pass thereby, but remained in Bayless, who conveyed the same to F. W. McCabe, under whom the plaintiff claims title, long before Havemeyer acquired any claim whatever thereto. The defendants, on the other hand, contend that the strip in dispute never had been "taken for 23rd street," within the meaning of the clause above mentioned, and that even if it should be held that the strip in question had been taken for street purposes, within the meaning of those words, yet the parties to said deed, by the words "that part thereof taken for 23rd street," referred only to the existing right which Kansas City had, by the passage of the ordinance, acquired to take the strip in dispute for Twenty-Third street; that the fee of the 30-foot strip passes to the trustee named in the deed of trust, subject only to this right of the city; and that, insomuch as the right was afterwards extinguished, the whole title remained in the trustee, and the trustee's deed passed such title to defendant Havemeyer.

It is a well-settled canon of construction that, in construing a deed or any other written instrument whose terms are susceptible of more than one meaning, it is proper to place the court in the position of the parties thereto at the time the instrument was executed, and to show what was subsequently done by the parties themselves in carrying out the contract, as showing their understanding of its provisions. Bollinger Co. v. McDowell, 99 Mo. 632, 13 S. W. 100; Hammond v. Johnson, 93 Mo. 198, 6 S. W. 83; Edwards v. Smith, 63 Mo. 119; Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; Knight v. Worsted Co., 2 Cush. 271. The rule is thus stated in the latter case: "In expounding a written contract, although parol evidence is not admissible to prove that other terms were agreed to which are not expressed in the writing, or that the parties had other intentions than those to be inferred from it,

yet it is competent to offer parol evidence to prove facts and circumstances respecting the relations of the parties, and the nature, quality, and condition of the real and personal property, which constitute the subjectmatter respecting which it is made. It is also competent to prove by parol evidenceindeed, it can hardly be done by any other -the acts of the parties at and subject to the date of the contract, as a means of showing their own understanding of its terms." The words of the exception in this deed of trust are "excepting that part thereof taken for Holmes and 23rd street." Five days before the deed of trust was executed, the city of Kansas City passed an ordinance providing that the 30-foot strip in controversy should be taken for Twenty-Third street, and directing that proceedings should be had to assess the value of the lands to be taken, and the benefits accruing to lards not taken. No further proceedings, however, seem to have been taken under said ordinances; and, as before observed, by the charter of Kansas City, all proceeding with respect thereto, including the ordinance itself, became null and void for want of confirmation of the verdict of the jury within the time limited. Clearly, then, it cannot be said that the strip in controversy was taken by the passage of the ordinance without anything more having been done. Section 21, art. 2, of the constitution of Missouri, in defining when land shall be deemed to have been taken for public uses, after declaring that private property shall not be taken or damaged for public uses without just compensation, and providing for the manner of ascertaining the amount of compensation, says: "And until the same shall be paid to the owner or into court for the owner, the property shall not be disturbed or the proprietary rights therein of the owners divested."

In Kiebler v. Holmes, 58 Mo. App. 119, Kiebler and Freeman conveyed a lot on E. Ninth street, in Kansas City, to Mrs. Wright, by warranty deed. At the time the deed was made, an ordinance had been passed to take five feet of said lot, but nothing had been done thereunder. Afterwards damages were assessed by the mayor's jury, and both Kiebler and Mrs. Wright claimed same. Gill, J., who wrote the opinion of the court, said: "The mere passage of the ordinance of February 27th, 1887 [an ordinance like the one in question], did not amount to an appropriation of the real estate, nor did it commit any damage to which the then owner was entitled. The city did not by the passage of the ordinance, take the property. This was the only initial step to an appropriation or taking in the future. After passing such ordinance, and even after the proceedings were begun before the mayor to assess damages and benefits, the city might have abandoned the condemnation, because too expensive or for other reasons." In Re Board of Street Opening and

Improvement of New York (Sup.) 22 N. Y. Supp. 1021, after describing a tract by metes and bounds, the deed continued: "Excepting therefrom, however, so much of said lot as has been taken for the opening of One Hundred and Twenty-Seventh street and the widening of Manhattan street." There, as here, a part of said lots had been taken for Manhattan street, and prior to the deed a street commissioner had filed a map designating certain portions of the lots to be taken for 127th street; the filing of the map in that case being a step corresponding to the passing of the ordinance in the case at bar. In that case, as in this, the proceedings to assess damages for the part to be taken for said street was taken after the deed was made. Upon the termination of the condemnation proceeding, both the grantor and grantee claimed the damages so assessed; and the merits of the controversy involved the question as to whether the land taken for 127th street passed to the grantee under the deed, with the excepting clause as above indicated. On account of the importance of the case and the similarity in many respects to the case at bar, we will quote from the opinion of that court on this question. The court said: "The court below held that it was excluded from the conveyance, and remained vested in the heirs at law of Thomas Land. We think, however, that it was not the intention of the parties to that deed that any portion of the two lots, Nos. 104 and 106 on the Loss map, to which they still had title, should be excepted from the conveyance; that all that was intended to be excepted was those portions of the lots to which they had lost title by reason of the proceedings of the city in actually taking the land for street purposes. The language used clearly implied that the exception was to relate only to so much of the lots as had been, before the execution of the conveyance, actually taken for the opening of these streets, and not to any portion of the property which might in the future be taken for the opening of the streets in question. There was nothing to show that the grantors had any intention to reserve these small pieces of land that would in the future be necessary to be taken for 127th street. So far as appears, they owned no property in the vicinity to which these pieces of land could be useful; and, in the face of the clear language used, we fail to see how any other intention could be implied." In the cases of Blackman v. Striker, 142 N. Y. 555, 37 N. E. 484, Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, and Winston v. Johnson (Minn.) 45 N. W. 958, exceptions similar to the clause in question were under discussion, and the courts, construing their meaning, gave effect to the intention of the parties very much as was done in 22 N. Y. Supp. 1021, and by the circuit court in the case at bar. The decision in Re Board of Street Opening and Improvement of New York, supra, was after

wards affirmed on appeal by the court of appeals of New York. This decision was rendered by the same court that decided Munn v. Worrall, 53 N. Y. 44, cited and so much relied upon by counsel for plaintiff, but is clearly distinguishable from it. In the latter case the land sought to be excepted from the deed exactly fulfilled the call in the deed. It had already been taken, paid for, and occupied by the public. A careful reading of the opinion will show that the court's reason for holding as it did was that the words of the exception could not possibly refer to the right of the city. The words of the exception were "saving and excepting from the premises hereby conveyed all and so much and such part or parts as has or have been lawfully taken for the public road or roads." It is quite different language from that used in the deed here under consideration. Besides, there was no evidence in that case as to the intention of the parties. Consequently, the court held that the word "premises," which is not used in this case, in its technical signification, together with the connection in which it was used, must be held to mean the tract of land described in the deed, and not the estate or interest of the grantor. The present case, however, does not present the peculiar feature of the exception from the "premises," as in the Munn Case. same distinction is observed in Langdon v Mayor, etc., 6 Abb. N. C. 314, relied upon by the plaintiff. There the words of the deed were "saving and reserving out of the several water lots and soil under the water," etc. In construing these words, the court said: "It is not the streets which are saved and reserved, but the land under water upon which the streets were to be built." In this connection, it will be observed that, under the decisions of this state, the city only acquires an easement or use of the streets limited strictly to the public use. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121; Snoddy v. Bolen, 122 Mo. 479, 24 S. W. 142, and 25 S. W. 932. Besides, in the Langdon Case the city was the grantor; and, even if the exception had been held to refer to such interest as the city ordinarily had in its streets, yet, under the laws of New York, the city usually acquired the entire fee, and the language would naturally refer to the fee-simple title. The same remarks are alike applicable to Mayor, etc., of New York v. New York Cent. & H. R. R. Co., 69 Hun, 324, 23 N. Y. Supp. 562, cited by plaintiff.

The

The especial and particular right of the city to appropriate the strip in controversy, as distinguished from its general power of eminent domain, might be said to have sprung into existence upon the passage of the ordinance in question. To be sure, the general right of the city to condemn property for public use existed under its charter; but the especial and particular right to appropriate this identical parcel of land arose out of the ordinance itself. This was a

valid and subsisting right existing at the time of the execution of the deed of trust. It was this right, and no other, upon which the exception was intended to operate. In the light of the evidence, giving to the words of that clause of the deed of trust relating to the exception the meaning which all the surrounding circumstances show to be the obvious one, the language used clearly implies that it was the intention of the parties that the exception was to relate only to the right which the city, by the passage of the ordinance, had acquired to take the strip in controversy for Twenty-Third street. There is nothing in the deed under consideration which warrants the construction contended for by plaintiff. The evidential tendency of the Boyd application, upon which the loan in question as made, was to show that the parties intended to give, as security for the money borrowed, the entire 76-foot strip of land; but, as they understood the matter, the 76 feet then consisted of the estate remaining in the land, together with the right to receive the money from the city; and, in order to effectuate their intentions, the right to which the city had to acquire the strip in question was excepted from the operation of the deed of trust, and Bayless, by a separate contract, transferred to Hicks merely the proceeds of such excepted rights, thereby more effectually carrying out the original intention of the parties. The contract in question, to that extent, becomes important as tending to show the intentions of the parties. While the contract cannot in anywise be said to import to the deed of trust a meaning that is not contained in its words, it tends most conclusively to show what was intended by the parties by the exception contained therein. The contract in substance states that the debt therein referred to was secured by the land, with the exceptions as stated. The exceptions in question appeared in the first part of the contract. Manifestly, then, it was these exceptions that Bayless refers to when he states that the deed in question is secured by the entire 76-foot tract of land, with the exceptions, as stated. When we come to examine the opening paragraphs of the contract, stating the exceptions, we find the following significant words employed: "Excepting further the N. thirty feet thereof is subject to an ordinance which has been enacted by the said city of Kansas providing for the opening and establishing of 23rd street." This is equivalent to saying Bayless meant, by the exception in question, that the land covered by the deed of trust was subject to the thenexisting right of the city of Kansas City to take the 30-foot strip in controversy for the opening of Twenty-Third street, and nothing more; and this is precisely what the circuit court found was the true meaning of the deed of trust.

Another fact that probably had much inquence upon the court in determining the

question as to the intention of the parties in making and accepting the deed of trust is that the 76-foot strip had always been used as one lot, and that the dwelling, as it then stood upon the ground, was partly on the 30-foot strip in controversy, and partly on the remaining 46 feet; 6 feet of the house standing upon the strip for which plaintiff contends. It would have been so unusual a transaction for one to have offered as security for a loan a strip of ground so divided as to cut in two the rooms of a dwelling house owned by the borrower, and so unlike the business methods pursued by the money lender to have accepted it in that condition, when a foreclosure on his security would necessarily result in its permanent impairment, that a court might well be justified in determining that such was not the intention of the parties, when the language of the deed as to what was intended was of doubtful or uncertain import. The finding of the trial court has ample sanction in the facts developed. Its judgment is therefore affirmed. All concur.

C. F. SIMMONS MEDICINE CO. et al. v.
ZIEGENHEIN, City Collector.
(Supreme Court of Missouri. July 6, 1898.)
TAXATION-PUBLIC PURPOSES.

Acts 1895, p. 278, § 3, providing that every manufacturer of patent medicines shall pay a license, which shall be turned into a fund for maintaining free scholarships in the state university for students without means, is in violation of Const. art. 10, § 3, ordaining that taxes may be levied and collected for public purposes only.

In banc. Appeal from St. Louis circuit court.

Bill by the C. F. Simmons Medicine Company and others against Henry Ziegenhein, collector of the city of St. Louis. There was a judgment for defendant, and plaintiffs appeal. Reversed.

D. P. Dyer, for appellants. Judson & Taussig, for respondent.

ROBINSON, J. This is a suit in equity, by 14 manufacturers of and dealers in patent medicines in the city of St. Louis, to restrain the defendant, as collector of that city, from enforcing against them the provisions of section 3 of "An act providing for the endowment of the state university, and for the establishment and endowment of free scholarship of merit herein in each county," approved April 1, 1895. Acts 1895, p. 278. Said section provides: "Every manufacturer of medicines or remedies commonly known as patent medicines shall pay a license tax of twenty-five dollars, and every traveling vender of such medicines or remedies shall pay a license as now provided by law; and every such traveling vender shall take out a license in every county in which he vends such articles," etc.

The petition, after stating the business of each of the plaintiffs, and that they have joined in this action to avoid a multiplicity of suits, charges that the defendant, as collector of the city of St. Louis, claiming to act under and in pursuance of section 3 of said act as aforesaid, has demanded of each of them the license tax of $25 provided in said section, and, upon their refusal to pay same, has threatened, and is now threatening, to seize, distrain, levy upon, and sell the property of each of said plaintiffs to pay said license tax, required by said section 3 of said act as aforesaid, and that he will do so unless enjoined. The petition then charges that said act of April 1, 1895, is violative of section 28 of article 4, and of section 3 of article 10, of the constitution of the state of Missouri, and for that reason its provisions are of no binding force upon them, or either of them. The petitioners further charge that the seizure and sale of their property by the collector under the pretended authority of the act of April 1, 1895, would cast a cloud upon its title, that the damages to each of them would be irreparable, and that they are without an adequate remedy at law, hence have come into a court of equity, where such complaints are properly cognizable, and pray for injunctive relief. To plaintiffs' petition defendant filed a general demurrer, which being by the court sustained, and final judgment entered thereon, the plaintiffs, after the usual preliminaries, have prosecuted their appeal to this court.

Although a general demurrer was filed to plaintiffs' petition, the counsel for defendant request that nothing may be considered by the court to prevent it from passing upon the constitutionality of the act under which the defendant is threatening to proceed. We will then treat the case as if the demurrer in no wise went to the question of the remedy pursued, but as if plaintiffs had the right to maintain their action, if the act under consideration is adjudged unconstitutional for either of the reasons alleged. Since this case reached this court, an original proceeding has been instituted herein for a writ of certiorari to the judge of the probate court of Boone county, commanding him to send up the record of his proceedings, in the matter of the assessment and levy of a collateral succession tax upon the estate of John C. Conley, deceased, under the provisions of the act of April 1, 1895, and an act of March 17, 1897, amendatory thereof. In that proceeding (State v. Switzler) the constitutionality of the act of April 1, 1895, as in this, was directly assailed upon numerous grounds, and this court, in an elaborate opinion prepared by Gantt, C. J., reported in 45 S. W. 245, held the act unconstitutional, for the reason that the tax provided for therein was not levied for public purposes within the meaning of section 3 of article 10 of the constitution of Missouri,

which ordains that "taxes may be levied and collected for public purposes only." The money sought to be collected, under section 3 of the act in controversy, from the petitioners herein, as manufacturers of and dealers in patent medicines, goes to the same fund, and is to be used for the same purpose, as does the collateral succession tax provided for in section 1 of the act in controversy, under consideration in the certiorari proceeding against the probate judge of Boone county, supra. The opinion in that case determines the law of this, and upon its authority, and for the reasons therein given, without further comment or elaboration, it is held that the tax sought to be levied and collected against the petitioners herein, by the defendant, as collector of the city of St. Louis, under said act, is unconstitutional, because levied for the use and benefit of a special class of students of the state university, named and designated in the act, and not for public purposes, within the meaning of section 3 of article 10 of the constitution of this state, and that the writ of injunction staying its collection should be awarded. The judgment of the circuit court will be reversed, and the cause remanded, with directions that it enter an order making the injunction perpetual, as prayed for in plaintiffs' petition. All concur, except MARSHALL, J., who does not sit in the case, having been of counsel.

1. In condemnation proceedings, an instruction to allow the value of the land actually taken for the right of way, and such further sum as represents the damage to the whole tract of which the right of way forms a part, is not erroneous as allowing double damages.

2. A reference in a charge in condemnation proceedings to "the farm of defendant of which the right of way forms a part' does not include a tract of land a quarter of a mile distant, of which the right of way formed no part.

3. In an action to condemn a railroad right of way, a charge is proper that, if the maintenance of a pond is not affected by the construction of the road, no sum should be allowed as damages to the pond, and that this is true even though the pond may extend upon the right of

judgment for defendant, and plaintiff appeals. Affirmed.

M. A. Low and W. F. Evans, for appellant. Harber & Knight, for respondent.

BURGESS, J. This is a proceeding commenced by plaintiff corporation to condemn a right of way over a tract of land owned by defendant, Abner B. George. When the petition for condemnation was filed, on July 29, 1895, in the circuit court of Mercer county, Mo., commissioners were appointed to assess the damages, who viewed the premises, assessed the damages at $2,500, made their report, and filed the same with the clerk of the circuit court of said county. Thereafter, upon motion of plaintiff, the report was set aside, and inquiry of damages ordered before a jury. At the September term, 1895, of said court, the case was tried by a jury, who returned a verdict in favor of defendant, assessing his damages at $3,750.

After unsuccessful motions for a new trial and in arrest, plaintiff appealed.

The evidence showed that defendant owned a tract of land containing about 447 acres in one body, through which plaintiff sought to condemn a strip 100 feet wide for right of way, upon which to move its roadbed and track from where it was then located. The weight of the evidence showed that this land was worth $45 or $50 per acre. The strip taken runs diagonally across part of the land, and between the present right of way and the proposed there are about 17.9 acres of defendant's land, and there are 10.41 acres in the proposed right of way. Between the proposed right of way and the public road there are 9.49 acres, and there are 4.47 acres lying east of the highway running through the land. Then south of the public highway, and east of the proposed railroad, there are 47.44 acres in the northeast quarter. Where the land taken joins the present road there is a fill of 300 or 400 feet in length, and 15 feet high. The proposed roadbed runs mostly to the surface of the ground for 200 or 300 feet, and then there is another fill, about the same as the other, for about 300 or 400 feet, then a light cut, and then a fill of from 15 to 18 feet, then another cut of 29.06 feet at the center and 33 feet at the upper edge of the slope. That cut extends about 1,400 feet, and then there is another fill of 21 to 23 feet, which extends on defendant's land about 700 feet, including the bridge. There was a valuable pond on the land, which the evidence tended to show would be substantially destroyed by the construction of the road. Defendant also owned 40 acres of land which lie a quarter of a mile from the 447-acre tract, which plaintiff contends were considered by the jury in estimating the damages, but this position is not sustained by the record.

Plaintiff prayed the court to instruct the jury as follows: "(1) The court instructs the

jury that it is the duty of the railway company to erect and maintain all necessary farm crossings for the use of the proprietors or owners of the lands adjoining said railroad. You are therefore instructed to entirely exclude in your estimate of the damages all necessary expenses to erect and maintain all such crossings. (2) The court instructs the jury that you will not allow any damages that may result from the construction and operation of the railroad in question over the public highway or highways near or in the vicinity of defendant's lands. (3) The court instructs the jury that you will not allow any sum as damages to the lands lying, south and east of the public highway extending through section 3, in an easterly and westerly direction, by reason of the location and construction of the proposed railway over the lands north of said public highway. (4) The court instructs the jury that the only damages that you can allow to the lands lying east and south of the public highway, referred to by the witnesses, extending in an easterly and westerly direction through section 3, are such damages, if any, as will be caused by the location and construction of the railway over the lands south and east of said public highway. (5) The court instructs the jury that you are not authorized to allow any damages because of the liability, if any, to persons or any stock being injured or killed by reason of the construction and operation of said railroad. (6) Under the law of this state, it is the duty of the plaintiff to build and maintain good and substantial fences on each side of its right of way. You are therefore to exclude entirely from your estimate of the damages all expenses necessary for the construction and maintenance of such fences. (7) The court instructs the jury that if you find from the evidence that the maintenance of the pond referred to by the witnesses, at its present location, will not be affected or disturbed by the proper construction or maintenance of the railway, then you should not allow any sum as damages to said pond. (8) The court instructs the jury that, under the law of this state, the plaintiff, by the condemnation proceedings, did not, has not, and will not acquire the absolute ownership of the lands condemned through the defendant's lands for right of way, and only has and will, by such proceedings, acquire, the right to use such lands as and for the purposes, needs, and necessities of a railway, so long as it continues to use the same for such purposes. The legal title in fee simple of such lands remains in the defendant, subject only to the right of user on the part of the plaintiff. (9) The court instructs the jury that in estimating the amount of damages to the lands north and west of the public highway which extends through section 3, as shown by the map introduced in evidence, in an easterly and westerly direction, you will only consider the location and construc