cally repudiated. This case (Campbell v. Campbell), oftener spoken of as "The Breadalbane Case," has, since its decision, been universally accepted as the leading authority upon the doctrine of presumption of marriage. The facts of the case were these: James Campbell

than that which would be warranted by the consent interchanged at a time when it was insufficient. I should undoubtedly oppose to that another, and, I think, a sounder rule and principle of law, namely, that you must infer consent to have been given at the first moment contract.

had eloped with the young wife of a middle-when you find the parties able to enter into the

aged grocer named Ludlow. They fled to Canada, where they lived in connubial constancy and repute until after the death of Ludlow, of which, however, there was no proof that either of them ever heard. They returned to England, and, after the birth of a son, settled in Scotland, where they passed themselves off uniformly, unequivocally and constantly as man and wife. The case came before the courts, and ultimately before the house of lords, upon the claim of the grandson to the estates of Breadalbane in the right of his father. The claimant's father was born in England after the return of his parents from Canada, and after the death of Ludlow, the first husband of his mother. The case turned, therefore, upon the question of the legitimacy of the claimant's father, and that depended upon whether his parents were lawfully intermarried. The chief contention pressed, as matter of law, against the presumption of marriage was, that the original coming together of the parties having been meretricious, their subsequent conduct must be referred to that illicit relationship, and could not, in law, raise the presumption that the parties had contracted a subsequent marriage. In his opinion to the house of lords upon this point, Lord Westbury said: "The appellant objects that the cohabitation, which began when the parties were incapable of contracting marriage, and which was continued without change, is ineffectual to form the basis of the conclusion that consent to marry was interchanged after the impediment to marriage had been removed. That would be a very important rule if it were proved to be well founded; but I am unable to find any principle to justify the introduction of such a rule, and, what is more material to the purpose, I am unable to find any case or any book of authority in which that principle has been either followed out into a decision or has been laid down as a rule of Scotch law. It appears to be almost entirely derived by the appellant from what I conceive to be a misapprehension o of certain words found in the judgments delivered in Cunynghame's Settlement, and Lapsley v. Grierson, or rather (if I may venture to say so), from a misapprehension of part of a marginal note in one of those cases. There is nothing (in those cases), to warrant the proposition that the subsequent conduct of the parties shall be rendered ineffectual to prove marriage by reason of the existence at a previous period of some bar to the interchange of consent. It would be very unfortunate if it were so. There is no foundation for the argument that the matrimonial consent must, of necessity, be referred to the commencement of the cohabitation, nor any warrant for the appellant's ingenious argument, that as the consent interchanged must be referred to some particular point-which he insisted was at the commencement of the cohabitation, and therefore insufficient-the cohabitation which continued afterwards without in terruption would warrant no other conclusion

To the same effect were the opinions delivered by Lord Chelmsford, Lord Chancellor, and Lord Cranworth.

The Breadalbane Case was decided in 1867. (L. R. 1 H. L. Sc. 182.) At a later period, in 1876, the house of lords was called upon, in the case of DeThoren v. Atty-Gen., to deal with a set of facts in all respects the exact counterpart of the case which is now before this court. The case is reported in L. R. 1 App. Cas. 686.

The point before the court in that case is thus stated by Lord Chelmsford: "The question," he says, "to be determined is, whether there was a consent to a marriage between William Ellis Wall and Sarah Ogg, evinced by habit and repute, prior to the birth of the elder of their sons. If there were no other question than this in the case, there would be no difficulty in giving an answer in the affirmative. But the appellant, although he admits that there had been such cohabitation of the parties as husband and wife as in ordinary cases would have conclusively established the presumption of marriage by consent, yet contends that the circumstance of a previous ceremony of marriage having taken place between the parties which was invalid, though unknown to them to be so, prevented that presumption. The ground of this argument is, that the living together of the parties as busband and wife must be attributed to the invalid ceremony, and therefore that the habit and repute could not be evidence of any other consent."

The invalidity of the ceremonial marriage alluded to was, that the husband was not, at the time of his second marriage, lawfully divorced from his first wife, and although he became a divorced man shortly afterwards, neither he nor his second wife appear to have known of the removal of the impediment. It is evident that every question raised by the case in hand was presented also upon the facts of that case, By the unanimous judgment of the house of lords it was decided:

1. That the subsequent cohabitation and reputation were not to be referred to the inefficient ceremony, even though the parties did not know of the removal of the impediment to their original marriage.

2. Where parties are cohabiting matrimonially but unlawfully, because of an impediment to their marriage, matrimonial consent must be presumed to have been interchanged as soon as the parties were enabled, by the removal of the impediment, to enter into the contract.

3. The ceremony, although invalid, was a consent by the parties to a cohabitation which was matrimonial in character, and their subsequent cohabitation was proof of a continuing consent thereto.

To the principles thus announced I give an unqualified assent. It is especially material to the matter in hand to note that in every opinion delivered the doctrine of presumption of

consent is treated as a principle having its root | turned entirely upon the law relative to prein public policy. At no time was it regarded sumption of death, and does not touch the as a rule of evidence for determining whether doctrine concerning the presumptions of mar

the parties had interchanged consent. Such a consideration is evidently out of place, for the reason that the whole fabric of the doctrine rests upon the necessity of presuming something which is not proven, and that something is consent, and consent at a time favorable to the end which the rule of public policy has in view. That end is the uniform reference of matrimonial conduct to the status of marriage, for it is with the status of marriage that society is chiefly concerned. The contract is made by the parties without consulting society; the status is imposed by society without consulting the parties. The contract may be actual and ceremonial, or actual and nonceremonial, or it may be neither actual nor ceremonial, but simply presumed from the policy of the law. That policy is, as I have said, that all matrimonial conduct shall, if possible, be referred to a matrimonial status. Where the marriage is actual the status at once arises, in order that connubial conduct and repute may be under its sanction; and where the conduct and repute are matrimonial, consent is presumed in order that the status may at once arise. If, at the time of the commencement of matrimonial conduct and reputation, there is impediment to the application of this doctrine, the rule of public policy is not thereby defeated; it re mains in abeyance, to be imposed at the first moment when conduct and capacity shall so coexist as to render it possible. If an actual marriage has been solemnized, that circumstance, so far from frustrating the policy of the law, affords the strongest possible case for its application; for where the character of the consent is not in question, but simply its legality, the status of marriage should arise at the earliest moment when the parties are enabled lawfully to do that which they had theretofore ineffectually attempted.

From the broad principle thus laid down we turn to the decision of the case in hand, the doctrine of which is, that consent cannot be presumed from matrimonial conduct and reputation in any case in which the parties have actually celebrated a marriage to which, in their own minds, they referred their conduct. In support of this proposition two cases are cited in the opinion adopted by this court, Gara v. Eisenlohr, 38 N. Y. 296, and Cartwright v. McGown, 121 III. 388, 10 West. Rep. 589. No such doctrine is laid down by these cases, nor do the facts of either case call for or admit of such a conclusion.

riage. If it is possible to regard this case as an authority upon the proposition now before us, its weight is entirely against the position of the court below, in that it mentions with approval the cases of Fenton v Reed, 4 Johns. 52, and Rose v. Clark, 8 Paige, 574, 4 L. ed. 548, in both of which the doctrine which I am now seeking to enforce is declared in the clearest manner.

In Fenton v. Reed the facts were, that arter the prolonged absence of her husband the plaintiff married Reed. Subsequently the first husband came back, the plaintiff and Reed continuing, however, to live together as man and wife until and after the death of plaintiff's first husband. The court held that, upon this state of facts, it was a question for the jury whether the circumstance of this cohabitation evinced a marriage, other than the actual one, occurring after the death of the first husband.

In Rose v. Clark the facts were substantially those of Fenton v. Reed. Chancellor Walworth, in reviewing the cases, says: "It appears from the decisions in our own courts, as well as in England, that a subsequent marriage may be inferred from acts of recognition, continued matrimonial cohabitation and general reputation, even where the parties originally came together under a void contract of marriage."

It may. I think, be safely asserted that no case can be found in the New York reports from 1809, when Fenton v. Reed was decided, down to Gall v. Gall, 114 N. Y. 109, decided in 1889, in which any different doctrine has been held or even intimated.

The other case relied upon is Cartwright v. McGown, in which the facts did not raise the question presented by the case before us, but in which, strangely enough, the judge who delivered the opinion of the court imagined, as an illustration, just such a state of facts as that with which we have to deal, and said "that in such a case the presumption of marriage would apply even though the parties may not have known of the removal of the impediment to their original marriage."

The doctrine of the present case derives, therefore, no support from the only cases cited as sustaining it. If any authority for such a doctrine exists elsewhere I have failed to discover it. It stands, as it appears to me, as an innovation upon established law upon a most important branch of jurisprudence, and is radically destructive of the principle of public policy to which I have alluded, the uniform application of which is illustrated, amongst others, by the distinguished authorities to which I have referred.

'Gara v. Eisenlohr was a case in which the original union of the parties was illicit, because the man had a wife living the date of whose death was unknown. The court was asked to raise the presumption that her death had occurred between certain years. The case | judgment rendered in the court of chancery. 14 L. R. A.

24

For these reasons I cannot vote to affirm the FLORIDA SUPREME COURT.

NOTE.-Injury to abutter's easements of light, air | made for a taking of property by interfering with and access by vacating street, changing grade, etc.

A

quence from the lawful use or improvement of | The approaches were to be built up solidly of the street as a highway.

5. The erection by a municipal government within the limits of a street, and for street purposes and under street conditions justifying it, of a viaduct for the purpose of changing the grade of the street, and in the exercise of its power to change such grades, is not a "taking" or "appropriation" of private property within the constitutional guaranty against such taking or appropriation, even though the

mason work. Complainants own lots abutting on the portion of the street which will be occupied by the viaduct and the grade of the street will be raised in front of their premises to a considerable extent. To prevent the construction of this structure without making compensation this bill was filed.

Further facts appear in the opinion.

Messrs. A. W. Cockrell & Son, for ap

abutting owners' rights of ingress, egress, light pellants:

and air are destroyed thereby; nor is this result of law changed by the mere fact that other corporate bodies than the municipality have contributed to the expense of the erection of the viaduct. Whether, however, it would not be a diversion of the street from the street purposes, and a "taking" and "appropriation" for which compensation must be made, if the necessity for the viaduct was created by railroad tracks crossing the street, not presented.

A

(December 22, 1891.)

PPEAL by complainants from a decree of the Circuit Court for Duval County dismissing a bill filed to enjoin the construction of a viaduct on a street in the City of Jacksonville. Affirmed.

Commercial Street is a public street in the corporate limits of Jacksonville. It is crossed | by railroad tracks of several companies. For the alleged purpose of removing the danger to the public from being compelled to cross these tracks at grade the City undertook to construct a viaduct on the street above the tracks and carry the street over the top of the viaduct.

streets the consequential loss, if any, must be borne by those who suffer. McGee's App. 114 Pa. 471; Paul v. Carver, 24 Pa. 211, 64 Am. Dec. 649.

The vacation of a highway does not take from a person abutting thereon any property either for a public or private use for which he can recover compensation. Barr v. Oskaloosa, 45 Iowa, 278.

The making of compensation is an indispensable attendant of the exercise of public right, and the Legislature could not have intended, by the general powers conferred upon the city, to violate or interfere with private rights.

Gardner v. Newburgh, 2 Johns. Ch. 162, 1 L. ed. 332; United States v. Fisher, 6 U. S. 2 Cranch, 390.2 L. ed. 314.

The whole of the opinion in the latter case is valuable, and substantially repudiates decisions relied on, to the extent they tend to support defendants' contention in this case.

Cogswell v. New York, N. H. & H. R. R. Co. 4 Cent. Rep. 225, 103 N. Y.10; Terre Haute & 1. R. Co. v. Bissell, 6 West. Rep. 253, 108 Ind. 113.

When the wrong done arises from the construction, as distinguished from the operation of the "improvement," it stands upon the same footing, as to "consequential injuries, as if there had been an actual taking of a portion of plaintiff's property."

Pennsylvania Š. V. R. Co. v. Walsh, 124 Pa. 544; Pennsylvania R. Co. v. Marchant, 12 Cent. Rep. 261, 119 Pa. 541; Chester County v. Brower, 10 Cent. Rep. 909, 117 Pa. 647; Pennsylvania

grade of its streets without liability to abutting landowners. Radcliff v. Brooklyn, 4 N. Y. 205, 53 Am. Dec. 357, overruling Fletcher v. Auburn & S. R. Co. 25 Wend. 462; Callender v. Marsh, 1 Pick. 430; Burlington v. Gilbert, 31 Iowa, 356, 7 Am. Rep. 143; Fellowes v. New Haven, 44 Conn. 240, 26 Am. Rep. 447; Delphi v. Evans, 36 Ind. 90, 10 Am. Rep. 12; Shawneetown v. Mason, 82 Ill. 337, 25 Am. Rep. 321; Snyder v. Rockport, 6 Ind. 237; Goszler v. Georgetown, 19 U. S. 6 Wheat. 593, 5 L. ed. 339; Quincy v. Jones, 76 III. 231; Kepple v. Keokuk, 61 Iowa, 653, 2 Am. & Eng. Corp. Cas. 447, and note; Green v. Reading, 9 Watts, 382; O'Connor v. Pittsburgh, 18 Pa. 187; Taylor v. St. Louis, 14 Mo. 20, 55 Am. Dec. 89; Rounds v. Mumford, 2 R. I. 154; Humes v. Knox

It is quite commonly held, however, that although one public way to property is closed if there is another left the property owner sustains no actionable damage. Coster v. Albany, 43 N. Y. 399; Fearing v. Irwin, 55 N. Y. 486; Gerhard v. Seekonk River Bridge Comrs. 2 New Eng. Rep. 619, 15 R. I. 334; Smith v. Boston, 7 Cush. 254; Polack v. San Francisco Orphan Asylum, 48 Cal. 490; Kings County F. Ins. Co. v. Stevens, 2 Cent. Rep. 430, 101 N. Y. 417; | ville, 1 Humph. 403, 34 Am. Dec. 657; Hovey v. Mayo,

Helier v. Atchison, T. & S. F. R. Co. 28 Kan. 625;
Castle v. Berkshire, 11 Gray, 26; Fast St. Louis v.
O'Flynn, 8 West. Rep. 85, 119 111. 206; Chicago v.
Union Bldg. Asso. 102 111. 379, 40 Am. Rep. 598;
Wilson v. New York Cent. & H. R. R. Co. 2 N. Y.
Supp. 65; Hier v. New York W. S. & B. R. Co. 109 N.
Y. 659.

So the mere fact that by the discontinuance of a street complainant, instead of being able to reach a certain point by an unbroken separate line, has

43 Me. 322; Schattner v. Kansas City, 53 Mo. 162; Tate v. Missouri, K. & T. R. Co. 64 Mo. 149; Dorman v. Jacksonville, 13 Fla. 545, 7 Am. Rep. 253; Kehrer v. Richmond, 81 Va. 745.

This rule is so firmly established that it is laid down almost without qualification by the textbooks (Lewis, Em. Dom. § 98; Dillon, Mun. Corp. $990; Elliott, Roads & Streets, p. 336; Ang. Highways, $211 et seq.), which cite authorities almost without number, many of which however do not

to make a short turn and select other roads run-discuss or allude to the question of how far the

ning in the same direction, is not sufficient to entitle him to compensation. Kimball v. Homan, 74 Mich. 699.

Changing grade.

The abutter's claims to compensation for a taking of his easements by changing the grade of a street have been almost wholly rejected by the same courts, which have held that he was entitled to compensation if the street was vacated; and the rule is that a municipality may, in the absence of a constitutional or statutory provision, change the

abutter's easements are property. Since the New York Elevated Railroad Cases were decided the question has been brought up anew, but it is said that decisions sustaining the right of an individual proprietor of lands upon a street to the use of the same for access to his premises and giving him a remedy for interference with such rights are not applicable to cases of change of grade. Henderson v. Minneapolis, 32 Minn. 319, 6 Am. & Eng. Corp. Cas. 4.

Even the Story Case, 90 N. Y. 122, 43 Am. Rep. 146, recognized the right of the municipality to alter

R. Co. v. Lippincott, 8 Cent. Rep. 818, 116 Pa. | Rep. 146, decided in 1882, it was held, after

472; Edmundson v. Pittsburgh, M. & Y. R. Co. 1 Cent. Rep. 868, 111 Pa. 316; Shrunk v. Schuylkill Nav. Co. 14 Serg. & R. 71.

Dorman v. Jacksonville, 13 Fla. 545, 7 Am. Rep. 253, decided that, under the clause in the Bill of Rights "inhibiting the taking of private property, without just compensation," the easement of the abutting owner on a public street was not protected unless some tangible property of the abutting owner was taken. But the suggestion was made, that "it might be proper for the Legislature by some general Act" to provide compensation to the abutting owner.

There was, when the decision of Dorman v. Jacksonville, 13 Fla. 545, 7 Am. Rep. 253, was made, a conflict in the authorities as to whether the easement of the abutting owner, his right of way, of ingress and egress to and from the street in and upon his premises, was such property as came within this clause of the Bill of Rights, and in the Case of Story, 90 N. Y. 122, 43 Am.

the grade of the street by raising or lowering it without liability to the abutting property owner.

A city is not liable for change of grade because it is presumed that the owner has been compensated for loss resulting from such change. Buchner v. Chicago, M. & N. R. Co. 56 Wis. 414.

Rule in Ohio and Kentucky.

In Ohio the owner of a lot on an unimproved street in erecting buildings thereon assumes the risk of all damages which may result from a subsequent reasonable grading and improvement of it. But if buildings have been erected with reference to a grade once established the city is liable for damages resulting to their owners from a change of grade. Akron v. Chamberlain County, 34 Ohio St. 328, 32 Am. Rep. 367; McCombs v. Akron, 15 Ohio, 474; Akron v. McComb, 18 Ohio, 229, 51 Am. Dec. 453; Crawford v. Delaware, 7 Ohio St. 459.

In Kentucky the general rule was at first followed. Keasey v. Louisville, 4 Dana, 154, 29 Am. Dec. 395.

elaborate arguments by the ablest lawyers in the country, this right of way was property protected by the constitutional provision, inhibiting the "taking of private property" without just compensation.

The Legislature of the State of Florida did not respond to the appeal of the supreme court, but the Story Case, supra, gave in part the relief demanded, by declaring against Judge Gibson's views in O'Connor v. Pittsburgh, 18 Pa. 189, and against Judge Randall's views in Dorman v. Jacksonville, supra, that the constitutional protection inhibiting the taking of private property did extend to the easement or right of way of an abutting owner, in and upon and over his premises from and over the highway.

When the constitutional convention of 1885 met, it determined to avoid, on the one hand, holding those who were authorized to condemn property for a public purpose responsible for direct or indirect damages or injuries to adja

that although he owned the fee to the center of the street there was no actionable injury. Conklin v. New York, O. & W. R. Co. 3 Cent. Rep. 194, 102 N. Y. 107.

So where the grade in front of plaintiff's property was raised to carry the street over a railroad track, laid five feet and nine inches above the grade of an intersecting street in such manner that a space of but eighteen feet was left in front of plaintiff's property as a carriage-way on the old grade, while the centre of the street was raised from two to four feet, three of the judges thought there was no ground for damages, although the remainder of the judges concurred in reversing on other grounds. Ottenot v. New York, L. E. & W. R. Co. 119 N. Y. 603.

No damages can be recovered by an abutting property owner for the lowering of the grade of a street in order to separate it from the grade of a railroad which crossed it. Wilson v. New York, Cent. & H. R. R. Co. 2 N. Y. Supp. 65.

The city could permit a bridge company to conBut in Louisville v. Louisville Rolling Mill Co., 3 struct a bridge over a river and grade the street to Bush, 427, 96 Am. Dec. 243 (1867), the private rights reach the bridge, even though a railroad company of light, air, and access were distinctly recognized, was permitted to place its rails on the 'street and although it was not expressly ruled that they alone over the bridge where a space of twelve or fifteen constituted property which could not be destroyed feet was left between the supporting wall of the without compensation. In that case the street was grade and the sidewalk in front ofiplaintiff's propto be filled about twelve feet above the grade of erty. Newport & C. Bridge Co. v. Foote, 9 Bush, plaintiff's lot, and he was directed by the city au- 266. thorities to fill his lot even with that grade so as to support it or to build a supporting wall, either of which would have practically destroyed the value of his property, and the court held it could not be done.

The result of that case leaves it rather doubtful how far a city might destroy an easement of access by changing a grade, without liability.

Grading to cross bridges or railroads.

Where a city authorizes a railroad company to raise the grade of a street to carry it over the company's tracks which cross the street at right angles, an abutting property owner whose easements are thereby interfered with has no right of action against the company. Uline v. New York Cent. & H. R. R. Co. 2 Cent. Rep. 116, 101 N. Y. 108.

Where a railroad crossed a highway below grade and for the purpose of restoring the highway to the use of the public bridged its tracks and graded up the highway to the bridge level thereby raising the surface of the street in front of plaintiff's property so as to interfere with his easements, it was held

In conflict with the doctrine of the above cases is the following:

Where the grade of the street is lowered to make the street conform to a railroad crossing compensation must be made. Buchner v. Chicago, M. & N. R. Co. 56 Wis. 414.

Obstructing or destroying street.

Neither the municipality nor the State can appropriate a street to any purpose which will render valueless the abutting real estate. St. Paul & P. R. Co. v. Schurmeier, 74 U. S. 7 Wall. 272, 19 L. ed. 74; McCaffrey v. Smith, 41 Hun, 117; Mahon v. New York Cent. R. Co. 24 N. Y. 658.

A sale for the benefit of a town cannot be made of all of a street except an alley, even though it owns the fee. Moose v. Carson, 7 L. R. A. 548, 104 N. C. 431.

This question will be further developed in the note to the case next following this.

The rules as laid down above have been much changed by constitutional and statutory provisions in many of the States. H. P. F.