Rensselaer Republican, Volume 25, Number 18, Rensselaer, Jasper County, 29 December 1892 — “What Saps the Law?" [ARTICLE]

“What Saps the Law?"

Digest of the Laws of 1 and FarmCROPS AND THE HOLDING OF PROPERTY. SPEECH OF JUDGE WM. JOHNSTON, BEFORE THE PORTER COUNTY FARMERS’ INSTITUTE. From Valparaiso Messenger: Mb President, Ladies and Gentlemen: —It is with misgiving that I appear before you ou this occasion. I doubt my ability to say anything on the subject assigned to me that will be of interest, and useful in keepiug you within the bounds of law, orauaid in applying its remedies. A subject so vital, one that comes so near to sH utus, ought yet it is, very prosy. Still when we remember that many kinds of grain, fruity, aud all kinds of nuts are best wheu dry, we may take some encouragement in the discussion of this, to the masses, the most dry cf 111 dry subjects. For after all laws are made to benefit, to improve our condition, and to enable us to maintain good fellowship with our neighbors and fellow men. To undertake to discuss ami expound »11 laws that are more especially applicable to the farmer would require more time than even your president has so generously placed at uiy disposal. I must therefore confine myself to such acts only p 9 arc mo?t vitnl to you and your vocation. ESTATES. As the problem of first impor- j tauce to the farmer is a home, we may very properly first enter upon J a discussion of est. tes. Every til-' ler is interetited in lire soil and likewise in. the method of ac-| quiring. ot occupying it, and the' extent of his possession. With usestates are held either in fee, for' life, or for a term of years. The • land may be owned by a single iihi dividual, which is most common,; or by a mimber of persons each' possessing an undivided interest: in the fee, in which case they are J called tenants in common; nr it! may be held by husband and wife; through a deed of conveyance toi them, in which case, unlike a con , veyanco to nther parties, they do 1 not hold as tenants in common but i as ttuuulb in entireties Eu,ch' qwns each particle of the soil in entireity and there can be no partition of interest between them. Neither can alienate, or incumber 1 it, nor can they, in any way, by. mortgage or utherwiac, make it liable for the debt of the husband, ( though they may join in a deed I conveying it away. At tlie death' of either it all goes to the surviv-i or. This law is of doubtful wisdom. • It has been handed down frrm : former generations and has out-' lived iis usefulness, if it ever had any. It is not generally under-

stood and by reason thereof people are sometimes deceived and suffer loss. The wife has an uu- , divided one-third inchoate interest , in all lands of her husband or one- I half if he has but one child. This interest ripens into a free simple title at hie death, or in his lifetime, on the sale of his lands under ; judicial process, to pay bis debts, j There are but two exceptions to 1 this rule. The first is where she' is the second or subsequent wife ! without children, and the husband dies leaving children by a former mrrt-ri’ige. In this case she takes only a life interest in the one-third and at her death it descends to his children. The second is where she marries a second or subsequent' time having children by virtue of the marriage with the husband from whence she receives the land. Her power to alienate the land is takenuway during such marriage, andst bur death it descends to the children cf the former husband unless in the meantime all the children bei ug of full age, unite with her and her husband in conveying it away. The wife takes this one-third interest where the value doos rot exceed SIO.OOO despite any id or conveyance the husband may make, and independent of all his debts, unless there are mortgages ou the land signed by her and her husband, or executed by th: husband alone for the purchase money. liisuch case she may compel the mortgagee to exhaust the other two-thirds covered by the mortgage before selling her omwlni rd. If the real-es-tate is worth more than §IO,OOO, and less than §20,000, she takes only a fourth as against debts, and if it exceeds §20,000 only a fifth. This law, in its practical working®, often lopdy togreat hardships; because not infrequently it exit first® all the estate to pay the decedent’s debts and leaves the children penniless, while the widow hai, un ab.<..dcxice. Especially is this hardship great when the widow is a second wife, having a child or children, and there are children by a former marriage. Forinthat event, at her death, it all goes to her children, and the children of the first wife receive nothing, though the property may all have been accumulated during the lifetime of their mother and mainly by her exertions or good management. The widow, likewise, and independent of all debts, except mortgages, first takes §SOO out of the estate, either in personal or real, or both, at her option; and then one-third of the personal property after paying debts. The husband lakes a like interest in the estate of the wife, except his one-third thus acquired is subject to the payment of one-third of her contracted before marriage. The wife is not liable as a surety for any person. Her name as surety on a note, whether so expressed or not, is not binding upton her; neither is her mortgage given for a like purpose on her land, though duly executed by herself and husband. At the death of a husband or wife intestate, the children each inherit an equal portion of his or her estate. But if any children of such intestate shall have died intestate having a child or children such child or children inherit the share which would have descended to. the parent But if at the death of the intestate he leave grand-children only surviving, they inherit equally regardless of the number left by each patent.

At the death of a husband childI less, leaving no will and an estate exceeding §1,6(10, one-fourth of it goes to his father and mother, or the survivor, and the balance to ! his widow. If the estate does not exceed §I.OOO, or he leave no fathi er or mother, then it all descends ito her. If an intestate die without | lawful issue, wife or other descendI rads alive, one-half of estate i goes to his father and mother, or the survivor, and the other half to his brothers aud sisters. v lf he ! has neither father nor mother living it all goes to his brothers and sisters. With certain exceptions kindred of the half-blood inherit equally with those of the whole j blood. i Tenancies at will can only be ; created by express contract. All i other tenancies are made by law | from year to year, unless otherwise ' expressly fixed. Tenancies may ibe created by occupancy with the ; cods ut of the landlord. In renting land much care should be taken in fixing the terms of the ten‘ancy not only as to time but t likewise as to what it is intended ieach party in interest shall do. [.Difficulties and hard feelings frequently result from a Want of [ proper attention to this elementary I principle. Without an agreement 1 to the contrary, the landlord is not' , uouud iu make repairs. The ten-1 j ant. however, must do so, and| without compensation, at least to I [ the extent of and har- i ! vesting his crops. When the time j for the determination of the ten-'

ancy is fixed, no notice to quit is necessary. To determine a tenancy from year to year three months notice given in writing at least three months before the expiration of a year’s tenancy is required. In all tenancies of less than three months, a notice to quit eoual to the length’of the tenancy is necessary. On default in payment of rent a ten days’ notice will determine the lease. All of these notices should contain a description of the land. TITLE. The next question of importance, in acquiring a home, is to determine the condition of the title. It should be so clear and secure that though the winds may whistle about you, or the cyclone destroy your abode, even the King, in the language of Blackstone, may not enter to taxe it away. To accomplish this you must have a good and indefeasable title—a fee simple without flaws or mistakes in conveyances—without mortgage incumbrances, or other liens. No one can be too careful in his investigation. You should see that the title is free from technicalities and misdescriptions. Mistakes of scriveners in preparing deeds as to boundaries and descriptions is the one most prolific source of trouble. At the risk of being charged with working in the interest of my profession, I will say that no person ought to, or is safe in buying real-estate without first procuring an abstract and having it examined and passed upon by a competent lawyer. In an early day. before so many conveyances had been made, when land was of less value, and when people apparently had more confidence in one aiivihef, very little attention was given to this subject. The result it> that many titles are cioiided by reason of unrecorded conveyances, by mistakes in the description, or by liens unsatisfied, or satisfied and not discharged of record. When this is discovered the owner is compelled to go to the expense and trouble of hunting the heirs, many of whom are unknown, and procuring deeds of release, or bringing his action in court to quiet his title. For thanks to our statute, notes and mortgages executed prior to September 19, 1881, are barred by limitation after remaining due twenty years, provided payments have not been made on them in the meantime, and in such case they are barred in twenty years after the last payment On all written obligations contracted since September 19, 1881, : the statute bars them after remaining due ten years, if no payment has been made. So likewise twenty years possession of land under claim of ownership ripens into as perfect a title as could be made by a warranty deed. There is but one exception to this rule, and that is, when at the time the statute commences to run the party owning the land or lien is a minor, a non compos mentis, or is laboring under the some other disability. In such case the title does not ripen until two years after the disability has been removed. But notwithstanding these statutes of repose, few men will take a deed of conveyance knowing of these clouds, without first requiring the owner to remove them. In case of mortgages, at least, it would not be safe to do otherwise. For though the mortgage debt may have been past due for fifty years, he could not tell how recently it had been revived and made a subeisting lien by reason of payments upon the debt secured by it. FENCES. There is scarcely any other subject controlled by legislation which leads to so many controversies and so much bad blood among farmers as poor fences. A lawfuT fence is a straight board, or wire, or board and wire, or a picket, or a hedge fence four feet in height, a straight rail fence four and one-half feet high, a worm rail fence five feet high and all sufficiently tight to hold hogs, sheep, cattle, mules and horses. Partition fences are to be maintained equally by theownersor occupants of the land, but by agreement each party may build and maintain a certain part of said fence. If either party should fail to perform his part in relation to such fence, then on a three days’ notice to the delinquent by the other party the township trustee will examine it and assess and furnish the necessary material and employ some person to build or repair the fence and charge the same to the owner together with a fee for his services, and all of which is a lien on the land until paid. If, by the inclosure of an uninclosed lot, a fence becomes a partition fence the owner is entitled i to have compensation for one-half j of it from the party joining lauds ; with him. When a person ceases i to use his land or lays open his in* i closure, he cannot take away any'

I ■——■l part of his partition fence until he has given six months notice of his intention. In case one party builds his fence on the land of another through mistake he may remove it within six months after discovering the mistake, subject however to equitable conditions. It is the duty of all persons owning a hedge along a highway to keep it cut so that it is not over five feet high and to burn the brush so cut from it. Upon failure to do this the supervisor may do so and charge the expense to such delinquent owner. Railroads are compelled to fence their tracks, and to escape liability for stock killed, they'-must have lawful fences. The farmerhas~a right to an opening through railroad fences and a crossing over the track to pass from one part of hit farm to another. But he musi have gates or bars at the openings and if stock gets through them and is killed while on the track the company is held blameless. ANIMALS,

In this connection it may not be unprofitable to briefly discuss the statutes relating to animals. Under the common law, and that prevails here, every owner is bound to keep his live stock on his own premises or respond in damages for their trespasses. But it is within the power of the Board of County Commissioners to allow stock to run at large, and in such case in order to recover for damages the person suffering must have a lawful fence inclosing his fields It is the duty of road supervisors upon view or information to causa all animals not permitted so to do, but found roaming at large upon the roads, commons, or unincloeed land, io be impounded. It is made a criminal offense to' knowingly permit any animal affected with glanders to Im tekwn from one’s premises or to run at large. It is likewise made a misdemeanor to over-drive, over-load, overwork, torture, or torment, or deprive of necessary sustenance any animal. Any person may adopt any mark or brand for his live stock, not already in use by another in his township, and have the same recorded. The law makes it a criminal offense for any unauthorzed person to alter such brand. Any dog found running, worrying, or killing sheep may be killed and the owner is liable for all damage done by him. Any dog that is known to kill or maim sheep may be killed and any person who shall own, keep or harbor such dog as ter knowing this fact is subject to a fine of not mote than §IOO. All money derived from the taxation of dogs is used in paying for sheep killed or maimed by them. AV e are next led to a consideration of our ways of public intercourse . Any road, street, alley, or place used by the public as a line of travel, is a public highway. There are three ways of establishing them. Ist. By petition before the Board of County Commissioners. 2d. By dedication. 3d. By prescription. When the highway is established by petition, the owners of the land over which it runs are entitled to be compensated for any damage sustained by them on account of such location. But in order to recover this, they must file their complaint or remonstrance before _fhe_Board of Commissioners after the report of the viewers finding the proposed road to ba of public utility. In determining what damages, if any, they will suffer, the value of the land, taken together with the manner in which their fields are cut, the inconvenience of passing from one part of the farm to the other, and the interference, if any, with stock water, should all be taken into consideration, also the cost of building and maintaining qny additional fences. Froin all this may be deducted the benefits accruing to the owners by reason of the location of the highway. These benefits to be deducted, however, must be special to the land owners, aud not such general benefits as accrue to the neighborhood in general by reason of the highway. A highway by dedication, under the statute, is one acquired by deed or grant from the owner of the land; and a highway by dedication under the common law is acquired by estoppel. For instance if a person should lay out a town plat or an addition to a town with streets and alleys and then sell lota to persona knowing of thia plat, he would be estopped to assert title to the streets and alleys though he hud uot conveyed them away. Because by his conduct in tlie premises he induced the purchasers to believe they were such, and to permit him then to assert title would be to permit him to do

an injury to them. The law does not permit a person to takeadvan-. tage of his own wrong. A highway by prescription is one acquired by reason of its long use aysuch. ' The proprietor of the land still retains the fee and the public has no more than an easement for travel over it. The soil, trees, stone, grass and everything else, except only what is necessary to build anti keep the road in repair^belongs to him. . He has a right to use the road in every way that does not interferrewith the public. Person s passing on the highway may stop on it for a reasonable time wheu necessary. There is another species of road, which-while not a public highway, law provides may be had. This is | way of necessity. If one owns a tract of land and sells a piece out of the center, or off of an end not coming to the highway, the law gives the purchaser a right over the grantor’s land to the highway . This right or easement follows the lands of both parties through all subsequent conveyances. ■

We are all, interested in having geejd highways. The time has conie when it would be beneficial to the people and profitable to the owners of land to have some of our roads graveled or otherwise improved:. In Carroll cdftnty they have 150 miles of this kind of road. They have a considerable number of miles in Cass and White counties, and a few in Fulton. Gravel makes splendid roads aud greatly enhances the value bf farins along which (they run. It is the duty of the supervisors and township trustee to see that the highways of the township are kept in a passable condition. For that purpose they can warn the residents to work on them until they are made good. A traveler may leave the public liighwriy aud go upon the adjoining land when he finds it to be impassable or dangerous. But when he doeb so he is bound to refrain from doing unnecessary damage. He mubt keep as near as practices! to the usyial traveled way. It is not essential to the right to go upon adjoining land, that the necessity should be absolute, but there must be a reasonable necessity therefor. If the obstruction in The toad is of a temporary character—one that can be readily removed and is not placed there by the land owner, then the traveler should remove it if it would not seriously delay him. Land owners may likewise work out their land tax in the fall of the year. This is one of the most pernicious of all laws and should be repealed. The work is done just as cold weather is coming on and it results in keeping the roads nearly impassable for the succeeding six months. They are much worse than if no work had been done on them. Certain rules and unwritten lawn have grown up with references to travel on the highway. One is, if two teams meet each shall give half of the way by turning to the right. This law is not fixed like the laws of the Medes and Persians, but a violation of it would subject the party guilty of its violation to the payment of auy resulting damages. It is, however, expected that a horseman or light vehicle will give way to a heavy loaded wagon. In crossing a road or street care should be taken that it is not unnecessarily obstructed, or that injury is d»ne to others. The caution must be proporti male to the danger. In the crowded city much more prudence must be exercised than in the country. Driving at an unusual rate of speed is carelessness. All persons have a right to walk in the highway as well as to ride or drive thereon. Transporting articles on it which are us unusual character and likely to frighten horses without giving warning to them, or reckless and noisy driving whereby animals are frightened and caused to run away or be injured constitutes actionable negligence. Within the last few years when engines have sprung into use as a motive power on streets and highways. The law requires that, when so used, some person be sent, not less than fifty yards iu advance of the engine to warn persons approaching with horses or teams, and that the engineer in charge of the, engine shall turn out to one side of the road, stop and not sound the whistle while such horses or teams are passing. Later the bicycle has grown into use as a means of travel and as such has its rights on the highways, the same as any other vehicle. li. is subjeci u> the law of the road, but, on account of this right, many erroneous impressions have grown up in relation to its privileges. The person in charge should use it in such way as uot to frighten animals on the highway, and if he sees a team that has become frightened he is bound to take all reasonable precautions to prevent accidcnt; Such as stopping or turning out of the way or approaching gent-

ly. If he does not do this he can be made to respond in damage& for any injury resulting. It h«*’ no rights upon the sidewalks of a town or city; it is an obstruction to travel in such places and is dangerous to pedestrians. / There is scarcely a better place to determine the" manners and good breeding of a person than to observe his methods on the public highway. It is here that we have the opportunity to become acquainted with the courtesy of our fellows and their respect for the rights of others. Probably there is not one in my hearing who has not made observations on this subject. " y~ DRAINAGE. , A well provided drainage law with well defined limits and powers is of great benefit to the farming commun? ity. There is scarcely a county in north half of the state where a system cf drainage of lands would not be beneficial; especially in this the case in the northwestern oountfes. We already have lass' upon this subject which, in so far as establishing and constructing surface drainage is concerned, are ample• The law under which most of this work is done provides that the proceedings shall be had in the Circuit Court A’< land owners who wiil be ber.cfitted may be brought in and made to contribute to the expenses. But the greatest objection to this law is that its machinery is too expensive, and parties can take advantage of it to exact Mger compensation fur ther services than they, should. Frequently as mtieh is expended : u prr’ircixr-ies before the digging is commenced, as it actually costs to do <he exeavation. Then again' Tl docs not make provision for ordinary tile drainage; Frequently the fanner needs an outlet for such drainage. There ought to be some method provided for extending such drains across the lands of others. Of conise thia siivuld be done on equitable terms. WATER. In this connection it might not be unprofitable to devoir e irlcf space to water privileges. No one has a right to divert a natural water course, or pollute or unnecsßiily hinder, or diminish the flow of water. What is a natural water course is subject to some diversity of opinion. But in this state it may be said, that is a natural water course, where the water has dug or washed out for itself a well defined channel with hanks through which it flows. This is true though the water does not run the year around. It may entirely dry up at times or only flow in periods of freshets. There is another kind of flowage,, however, that is governed by quite a different rule: that is surface water. This is looked upon as a common enemy, and every land owner may fight it as such. For instance the land owner below mav build a dam on his land to prevent it flowing on him, even though in doing so he may cause it to back od his neighbor. So long as the upper land owner allows it to flow as nature directs, he is not liable for demages done to the lower land owner. But he may not gather it together in artificial (hannels and cause it to suddenly discharge upon his neighbor to his damage. It will not be necessary to discuss underground streams and currents, for, in so far as I knew, they have no practical application here. A party may acquire the right by grant, license or prescription to divert and flow water in an- direction the grant, license or prescription may name. In conclusion let me say that from this discussion you can see how fearfully and wonderfully we are hedged in by law, in all our actions. Yet most of them are so natural, so gentle, and so just that one disposed todo right may pass through life scarcely knowing that an artificial law exists. Such is the wisdom of legislation—such is the policy of a Republican government. They concern all of us. It should De the aim of our legislators to unite all of our interests, the farmer’s, the miller’s, the mechanic’s, the common carrier’s, the trader’s, and the meichant’s, so that no one will suffer on account of the others; so that each w ill benefit and bless the others. We have a common interest with our fellow man; a common country; and should all be placed on an equal footing. We should all be privileged to have a common desire, and a common opportunity for prosperity. We could uot exist, except in a primitive state, if we were all farmers; because there would be no one to consume our surplus, no markets, no buyers; and life would be exceedingly short if we were all merchants, mechanics or common carriers. When anyone attempts to create antagonism between the different vocations or pursuits of our common country, or to iauu one calling at the expense of another, or all others, no matter what position he holds or occupation he follows, it is safe to class him among the demagogues, the cranks, the imbeciles, or the ignoramuses. He can be put to no good use. He is like the’ weed that saps the soil at the expense of useful vegetation, and should he cut down and consumed before he does further Injury.