upon the crossing. It was in broad daylight. The horse was one which might with propriety be termed gentle, not afraid of the cars, and going only at a walk. And it is appropriate to say here, as was said by Mr. Justice WALTON, in State v. Maine Central Railroad, supra: "One in the full possession of his faculties, who undertakes to cross a railroad track at the very moment a train of cars is passing, or when a train is so near that he is not liable to be, but is in fact, struck by it, is prima facie guilty of negligence; and in the absence of a satisfactory excuse, his negligence must be regarded as established.” The evidence offered fails to furnish any satisfactory excuse for the act of the deceased in this case. It is claimed by the prosecution that there were embankments and other obstacles to the view of approaching trains, and that it was the duty of the railroad company on account of this to exercise greater caution in approaching this crossing. Assuming that such obstacles existed, it may be true; but at the same time such a state of facts, with the knowledge of them such as the deceased must have had, would impose on him a corresponding duty of special caution also. The established doctrine by the great weight of authority and by numerous decisions is, that it is negligence to attempt to cross the track of a railroad without looking and listening to ascertain if a train is approaching, and that ordinary sense, prudence and discretion require this of a traveler, so far as he has an opportunity so to do. If the experiment is made without such precaution, the party acts at his peril, and in the event of an injury received by collision with a passing train, where such precaution is wanting, the traveler must be held. to have so far contributed to the catastrophe as to preclude any recovery by him against the company. This precaution is not only reasonable and proper on the part of the traveler for his own safety, but it is equally necessary for the safety of the multitude of passengers upon railroad trains liable to be killed by collision with obstacles, even of an animate nature, upon the track. As remarked by PAXSON, J., in Philadelphia, etc., Railroad v. Stinger, 78 Penn. St. 219, "The right of a man to risk his own life and that of his horse may be conceded; but not the right, by an act of negligence, if not of recklessness to place in peril the lives of hundreds of others who may happen to be traveling in a train of cars." Public welfare, as well as private danger to the individual, requires the enforcement of this rule, and consequently courts have been strict and rigid in adhering to it. But if it is negligence to attempt to cross the track of a railroad without calling into use the sense of seeing and hearing, it is still greater negligence for one seeing and hearing a train approaching at ordinary speed to make such attempt. It is recklessness. In Railroad Company v. Houston, 95 U. S. 697, the court held that if a person using his senses sees the train coming, and yet undertakes to cross the track instead of waiting for the train to pass, and is thereby injured, the consequences of such mistake and temerity cannot be cast upon the company; that no railroad company can be held for a failure of experiments of that kind; and if one chooses in such a position to take risks, he must bear the consequences of failure. Numerous cases might be cited sustaining like views, but we do not deem it necessary. From the evidence before us we can arrive at no other conclusion, than that if the deceased did not observe the train before reaching the crossing, it was by reason of his negligence; and if he did observe it, then his proceeding on and attempting to cross in front of the approaching train was an act of gross carelessness, and in either event, the verdict cannot be sustained. And if, as claimed by the prosecution, the train was at the time running at a higher rate of speed than six miles an hour, in violation of the statute, it may be conceded that such running would be evidence of negligence on the part of the railroad company, and might subject it to the penalty prescribed by statute. Nevertheless, the plaintiff's case would still fail of being made out unless it appeared that the injury was occasioned by such unauthorized speed of the train, without any direct contributory negligence on the part of the deceased himself. The relation of cause and effect would be wanting. And upon this branch of the case, the evidence is absolutely insufficient upon which to found a verdict. By agreement of counsel filed with the case the decision of this court was to make a final disposition of it; therefore the entry must be, motion sustained and verdict set aside. Judgment for defendant. PETERS, Ch. J., WALTON, DANFORTH, LIBBEY and EMERY, JJ., concurred. --- STOWE v. MERRILL. - DOWER. BOND MORTGAGE — DEFEASANCE- NOTE FORECLOSURE Where the grantee in an absolute deed, three years after its delivery, gives a bond to the grantor to reconvey to him upon certain conditions, that does not amount to a defeasance so as to constitute with the deed, a mortgage under the law of Maine. Rev. Stat., chap. 90, § 1. A note payable “in one after date," may be identified as one payable in one year to correspond with the one described in the mortgage given to secure it. An agreement inserted in a mortgage limiting the time of redemption to one year is binding upon the mortgagee without his signature to the mortgage; and it need not be inserted in the notice of the foreclosure of the mortgage. A notice of foreclosure published in three successive issues of a weekly newspaper and recorded the next day after the last publication is sufficient under the laws of Maine. Rev. Stat., chap. 90, § 5. A judgment of dower is not binding on one who was not a party or privy. R. A. Frye, for plaintiff. S. F. Gibson, for defendant. VIRGIN, J. Writ of entry. Both parties claim title from Joseph L. Merrill; the plaintiff, as assignee of an alleged foreclosed mortgage of the demandant premises given by J. W. Merrill, son of Joseph L., who derived his title through several mesne conveyances from his father; and the defendant, formerly the wife and now the widow of Joseph L. Merrill, by virtue of an alleged assignment of dower set out to her on a writ of seizin issued October 16, 1883, on a judgment for dower recovered on default against her son at the preceding September term. 1. Willis' bond to his grantor, Joseph L. Merrill, executed more than three years after the delivery of Merrill's absolute deed to him, cannot be considered an instrument of defeasance and thereby render the conveyance a mortgage, the bond not having been "executed at the same time with the deed or as a part of the same transaction." Rev. Stat., chap. 90, 1. And the fact that the defendant took a similar bond from Philbrook to herself more than a year after Willis conveyed to him, shows that she always also so understood it, and were it otherwise, the bond never having been recorded, it would not have operated as a defeasance as against the subsequent grantees, Philbrook or Twitchell, Rev. Stat. (1871) chap. 73, § 9. 2. While the mortgage under which the plaintiff claims, describes the note secured thereby as one payable in "one year," and the note produced has a blank space therein after the words "in one" and before the words "after date," the identity is established by the recital in the case that the "execution and delivery of the deed of assignment, also the note secured and unpaid are admitted." Moreover, if no such admission had been made, the note itself with the attending circumstances satisfy us, in the absence of any counter testimony, that the word "year was intended by the parties to fill the blank. Nichols v. Frothingham, 45 Me. 220, and cases cited in the opinion of the court. 3. It is contended that the agreement limiting the time of redemption to one year, as authorized by Stat. 1876, chap. 113 (now Rev. Stat., chap. 90, 86), although it was inserted in the mortgage" as the statute requires, it was not signed by the mortgagee, which the statute does not require. But both parties are not required to sign a deed of this character in order that its stipulations shall be binding on them; being a deed poll on acceptance by the grantee it became the mutual act of both parties thereto and therefore binding on them. Newell v. Hill, 2 Metc. 181. 66 4. Neither does the statute require such agreement to be incorporated in the notice of foreclosure. The notice of foreclosure contains every thing required by Rev. Stat., chap. 90, § 5, viz.: the claim by mortgage of premises so intelligibly described as to inform the party entitled to redeem with reasonable certainty what premises are intended-Chase v. McLellan, 49 Me. 375; mention of the date of the mortgage; and an allegation, of a breach of its condition together with a claim of foreclosure by reason thereof. 5. The law does not require publication of the notice twenty-one days before record. "It was published in three consecutive weekly issues of the newspaper. The record in the registry of deeds must be within thirty days after such last publication. Therefore, it may be day after." Wilson v. Page, 76 Me. 281. within one gage 6. It is contended that the transactions between. J. L. Merrill and Willis constituted a mortgage; that the conveyance of November 27, 1868, from Willis to Philbrook operated an assignment of that mortwhich was paid and thereby discharged April 5, 1871. The only evidence urged in support of such contention, is the nominal receipt of that date from Philbrook to Merrill. But, as already seen, the deed and bond did not constitute a mortgage; and the giving of another bond in 1868 shows the parties understood the former was no instru ment of defeasance. Moreover, as late as December 14, 1872, J. W. Merrill, son of J. L. Merrill and of this defendant, took a bond of the premises from Philbrook & Twitchell, Willis' successors in title, whereby they obligated themselves to convey it to him on payment of $650 at the various times therein specified; which he would not be likely to do, if the parties understood the title was one of mortgage and that discharged. We are of opinion, therefore, that the plaintiff has proved a regular chain of title from Willis to whom this defendant released her right of dower which she now sets up in defense; which title became absolute in one year after the first publication of his notice of foreclosure. To be sure, the defendant recovered judgment for dower against her son — who once held the title four years after he had conveyed it to the plaintiff's assignor, but assuming, without deciding, that the commissioners selected to set out the dower were legally sworn by the deputy sheriff, who held the writ of seizin, that judgment cannot bind this plaintiff who was neither party nor privy thereto; and hence there must be judgment for the plaintiff. PETERS, Ch. J., WALTON, LIBBEY and HASKELL, JJ., concurred. MONMOUTH V. PLIMPTON. WOODBURY v. SAME. December 7, 1885. DEED - WHEN GRANT OF RIGHT OF LAND CONVEYS FEE. A deed contained these words in the granting clause: “I, . . ., do hereby give, grant, bargain, sell and convey unto the said E. Plimpton and sons, their heirs and assigns forever, the right of having, building and maintaining, and repairing and keeping in repair, a dam across Purgatory stream, on premises conveyed to me by C. F. Dunn, at, on or near where the dam now is, with the right to so much of said premises as may be necessary on which to build and maintain said dam with its wings." Held, a dam having been erected thereon by the grantee, that the deed conveyed a fee in the land upon which the dam was built. Potter & Lancaster, for plaintiff in the first action. A. M. Spear, for plaintiff in the second action. Clay & Clay, for defendant. FOSTER, J. This is a complaint for flowage. It is a statutory proceeding. To be entitled to maintain it, the complainant must show that the conditions of the statute have been complied with. The only condition concerning which there is any controversy, and the only question involved in this case is whether the dam which causes the flowing, is erected and maintained on land of the defendants. It is admitted that the defendants own a mill, mill privilege and dam, on the stream some ways below the one in question, which is a reservoir dam, built and maintained by the defendants for the purpose of supplying water to their mills below. That such a dam is protected by the provisions of the statute, if erected and maintained on land of the defendants, there can be no question. Nelson v. Butterfield, 21 Me. 231; Dingley v. Gardiner, 73 id. 66. "Any man may, on his own land, erect and maintain a water-mill and dams to raise water for working it upon and across any stream not navigable." Rev. Stat., chap. 92, § 1. Whatever rights the defendants have in relation to this reservoir dam were derived by warranty deed from one John G. Robie, who was the owner of the land where the dam is situated. In that deed he says: “I, do hereby give, grant, bargain, sell and convey unto the said E. Plimpton and sons, their heirs and assigns forever, the right of having, building and maintaining and repairing and keeping in repair a dam across Purgatory stream on premises conveyed to me by C. F. Dunn, at, on or near where the dam now is, with the right to so much of said premises as may be necessary on which to build and maintain said dam with its wings." The same deed conveys to the defendants certain easements over the land of the grantor, such as the right to pass to and from said dam from the road, the right to flow to a certain height and to remove obstructions from the stream, etc. The habendum in said deed is in these words: "To have and to hold the aforegranted and bargained premises and rights, with all the privileges and appurtenances thereto belonging to them, the said E. Plimpton and sons, their heirs and assigns, to their use and behoof forever," and following which are the usual covenants of warranty. The question is whether by this deed the defendants obtained a fee to so much of the land as is covered by this dam. We think they did. Prof. Washburn - vol. II, p. 622-speaking of forms of conveyance by private grant, says that it is not necessary that the deed should, in terms, convey the land or thing intended to be granted, if such grant. is implied from what is described. Thus, a grant of the rents, issues and profits of a tract of land is the grant of the land itself. If the grant be of the uses of, and dominion over land, it carries the land itself." "Such designation and description, though usual, are not always essential. Land will often pass by other terms." Sheets v. Selden, 2 Wall. 187. The same is true in regard to devises, where the following words. have been held to convey an estate in the land, equivalent to a devise of the land itself, either in fee or for life according to the limitation expressed in the devise. The income of land -- Reed v. Reed, 9 Mass. 374; Andrews v. Boyd, 5 Me. 202- the income and interest of land -Blanchard v. Brooks, 12 Pick. 63; Fay v. Fay, 1 Cush. 101rents and profits- South v. South v. Alleine, 1 Salk. 228-improvement, use and benefits Gleason v. Fayerweather, 4 Gray, 351-all my right and benefit-Newkerk v. Newkerk, 2 Caines, 351. In Farrar v. Cooper, 34 Me. 397, the court held that a deed of "an undivided moiety forever of the privilege of a mill-yard" conveved a fee in the mill-yard. And in the same deed a moiety of a double saw-mill was conveyed "with the privilege of forever having and keeping a saw-mill on the same plot of ground whereon the same conveyed moiety now stands "; and these words were held to convey a fee; for," as SHEPLEY, C. J., remarked, "a conveyance of the use of the land forever' is equivalent to a conveyance of the land." This case is cited and approved in Dillingham v. Roberts, 75 Me. 471; S. C., 46 Am. Rep. 419, where a deed conveyed a parcel of land, bounded on one side by the shore of the sea at high-water mark, contained the VOL. III.-6 |