setting off one-half in value to her, and that her title be quieted. Some additional averments were contained in a second as well as a third paragraph. Issue being joined upon the complaint, the Wilsons filed a crosscomplaint, in two paragraphs, against the plaintiffs and their co-defendants. The first paragraph averred the conveyance of the lands by the plaintiff and her late husband to Cravens; that the conveyance was in consideration of the sum of $1,200, and the assumption by Cravens of a school-fund mortgage on one of the tracts of land for $139; that Cravens conveyed the lands to William D. Wilson by warranty deed, in consideration of the sum of $2,500; that the latter conveyed a one-fourth interest in the lands to Thomas E. Wilson, in consideration of $800; that in consequence the cross-complainants owned the lands in fee-simple; that the plaintiff had given out in speeches that the conveyance by her and her late husband to Cravens was only a mortgage, and that the crosscomplainants had purchased with knowledge of all the facts; that the plaintiff had commenced an action for the recovery of an interest in the lands based upon that pretended state of facts; that these speeches and proceedings had cast a cloud upon the title of the cross-complainants which they demanded should be removed, and their title thereby quieted. No question arises here upon the second paragraph of the cross-complaint. It need not, therefore, be further noticed. A demurrer being first overruled to the cross-complaint, issue was also joined upon it, and when the cause was called for trial, Sarah Kitts, the plaintiff in the original complaint, demanded that a jury be impaneled to try the issues formed between the parties, respectively, but that demand was refused and the circuit court proceeded to try the cause without a jury. After hearing the evidence, that court made a finding in favor of the Wilsons upon the first paragraph of their cross-complaint, and rendered judgment thereon quieting their title to the lands in controversy as against all the other parties to the proceeding.

It is first claimed that the circuit court ought to have sustained the demurrer to the first paragraph of the cross-complaint for its failure to aver that the claim of title set up by the widow and heirs of David H. Kitts was adverse to the title of the cross-complainants. As has been seen, the paragraph did not aver in terms that the claim of title so set up was adverse to the title of the cross-complainants, but the obvious. inference from the facts alleged was that the claim of title in question was inconsistent with, and hence adverse to, the claim asserted by the cross-complainants, and that made the paragraph, in respect to the adverse nature of the claim, sufficient upon demurrer. Second Nat. Bank v. Corey, 94 Ind. 457.

It is next claimed that the circuit court erred in refusing to impanel a jury to try the issues formed in the cause. The Revised Statutes of 1843, 811, § 114, provided that "all persons holding lands as joint tenants or tenants in common may be compelled to divide the same, either by writ of partition at common law, or by proceedings in chancery, or in the manner provided in this article;" the latter clause having reference to certain statutory proceedings for partition authorized by the articles v.5N.E.no.2-26

of the statute of which such section 114 was the first section. This provision on the subject of the partition of real estate was in force when the present constitution of the state was adopted, and continued in force until it was superseded by the Code of 1852. The partition of real estate was not, therefore, a matter of exclusively equitable jurisdiction in this state prior to the eighteenth day of June, 1852, within the meaning of section 409 of the Code of 1881. Nor is it a subject of exclusive equitable jurisdiction within the general principles governing proceedings in chancery. The common-law writ of partition is very ancient, and so, also, is the jurisdiction of courts of equity in cases of partition; a bill for that purpose having been brought as early as the reign of Queen Elizabeth. 5 Wait, Act. & Def. 82. Story, in his work on Equity Jurisprudence, says: "That the writ of partition is a very ancient course of proceeding at the common law is not doubted; but it by no means follows that the courts of common law had an exclusive jurisdiction over the subject of partition." See sections 646, 647, et seq. Pomeroy, in his work on the same subject, in referring to cases in which courts of law and courts of equity have concurrent jurisdiction, includes suits for partition as belonging to that class of cases. See sections 174-185. It follows, therefore, that from the earliest period in which we find precedents on the subject the courts of law, and the courts of chancery have had, and, except where otherwise expressly provided, still have, concurrent jurisdiction in suits for partition, and that hence such suits have not been, and are not now, the subjects of exclusive equitable jurisdiction.

Although this proceeding was primarily a suit for partition, it was also, in some of its features, an action to quiet title, and it was especially so in this latter respect, so far as it rested upon the cross-complaint. We have held that in an action to quiet title a trial by jury may be demanded, upon the ground that the relief sought in such a case is not within the exclusive jurisdiction of the court in the exercise of its chancery powers. Trittipo v. Morgan, 99 Ind. 269. There was consequently nothing in the proceeding which involved any controlling matter of exclusively equitable jurisdiction. It further follows that the circuit court erred in refusing to impanel a jury to try the cause. As having some relation to the manner in which particular causes must be tried, see the cases of Hendricks v. Frank, 86 Ind. 283; Evans v. Nealis, 87 Ind. 262; Clouser v. Ruckman, 89 Ind. 65; Helm v. First Nat. Bank, 91 Ind. 44; Anderson v. Caldwell, Id. 452; Carmichael v. Adams, Id. 526; Lake Erie & W. Ry. Co. v. Griffin, 92 Ind. 487; Pence v. Garrison, 93 Ind. 345; Israel v. Jackson, Id. 543; Edwards v. Dykeman, 95 Ind. 509; Redinbo v. Fretz, 99 Ind. 458; Rout v. King, 3 N. E. Rep. 249, (No. 11,794, at the present term.)

Cross-error is assigned upon the alleged insufficiency of the complaint, but no argument has been submitted in support of that allegation of error, and we have not, in consequence, considered the question of the sufficiency of the complaint. Besides, the judgment appealed from in this case rests entirely upon the cross-complaint as a pleading distinct from and independent of the complaint. Some light may be thrown, how

ever, upon the question of the sufficiency of the complaint by a reference to the case of Cravens v. Kitts, 64 Ind. 581.

The judgment is reversed, with costs, and the cause remanded for a new trial.

(106 Ind. 66)

CITY OF FT. WAYNE v. SHOAFF and others.

Filed March 2, 1886.

1. MUNICIPAL CORPORATION—ASSESSMENT FOR LOCAL IMPROVEMENT SPACE.

A municipal corporation has no authority to levy an assessment for paving a market space, upon adjoining lots.

Where the common council of a city levies an assessment in a case where it has no jurisdiction, injunction will lie.

Appeal from Allen superior court.

H. Colerick, for appellant.

Coombs, Bell & Morris, for appellees.

ELLIOTT, J. The first paragraph of the appellees' complaint alleges that they are the owners in fee of lots situated in the city of Fort Wayne abutting on a parcel of ground owned by the city, and known and designated as "Market Space;" that this space was dedicated to the city in June, 1837, for market purposes; that it has not been used as a street, and is not a street or alley; that in April, 1883, the common council of the city passed a resolution providing for the improvement of the space by macadamizing, and providing for the assessment of the cost of the improvement upon the adjoining property; that a contract was awarded, the improvement made, assessments laid upon the property, and precepts issued for the collection of the assessments. The allegations of the second paragraph of the complaint are substantially the same as the first, although the paragraph is not well drawn.

The appellant's principal contention is that the appellees are not entitled to relief by injunction, for the reason that there is a specific remedy, that of appeal, provided by statute. This contention cannot pre

vail. The common council had no jurisdiction to assess the cost of improving property, owned by the city for market purposes, upon adjoining property owners. The jurisdiction of the common council in such matters extends only to streets and alleys. It does not extend to property owned by the city for other municipal purposes. As there was a want of jurisdiction, the proceedings were void, and, where the proceedings of the common council are void, injunction is the appropriate remedy. Goring v. McTaggart, 92 Ind. 200; Wilson v. Poole, 33 Ind. 443. It is tacitly assumed by counsel that there was nothing more than a mere irregularity, but this assumption is palpably erroneous, for there was an absolute defect of jurisdiction. We have scores of cases holding that, where the proceedings of an inferior tribunal are taken in a matter where there was no jurisdiction of the subject-matter, they are destitute of validity, and injunction will lie. These cases plainly mark the dis

tinction between an irregular and a void proceeding, and that distinction we here recognize and enforce. If the space improved had been a highway, then a question of fact as to whether it was a street or alley of the city would have arisen, and in that event the decision in Palmer v. Stumph, 29 Ind. 329, would have been applicable; but the complaint avers, and the demurrer admits, that the space was the property of the city for market purposes, and was not a street or alley. There is therefore no question of fact, for the concession that it was part of the prop-erty owned and used by the city for market purposes closes the question. We suppose it to be quite clear that a city would have no jurisdiction to improve, at the cost of property owners, a school-house yard, a space in front of an engine-house, or the ground about a city hall, station-house, or prison; and there is not a particle of difference between such cases and the present. We put our decision on the ground that there was an absolute lack of jurisdiction to improve the property of the city, held and used for market purposes, at the expense of adjoining lotowners. The statute does not assume to confer jurisdiction upon the common council, in cases such as the present, to make improvements at the expense of lot-owners, but confines jurisdiction to streets and alleys, and there is therefore no jurisdiction of the subject-matter. It is a rudimentary principle that no proceeding, not even of a court of the highest dignity, can be valid where there is no jurisdiction.

The second paragraph of the complaint is not, as we have said, well drawn; but, although somewhat uncertain and indefinite, it is sufficient to repel the demurrer. There is enough in it to show the improvement of property owned and used by the city for market purposes exclusively, the assessment of the cost upon adjoining lot-owners, and the issuing of precepts for the collection of the assessments. These facts show that there is an attempt to collect assessments levied by the common council in a case where it had no jurisdiction. If the appellant had desired a more specific statement of facts, it should have moved the trial court to make the complaint more specific. Judgment affirmed.

(106 Ind. 55)

LOUISVILLE, N. A. & C. Ry. Co. v. SUMNER. 1

Filed March 2, 1886.

1. RAILROADS-RIGHT OF WAY-COVENANT TO FENCE-BREACH-SPECIAL DAM

AGES.

Where the right of way over land is granted to a railway company, by the owner, in consideration of a covenant by the company to fence the same, the company is liable for special damages, such as the value of cattle killed and the like, as well as for the cost of fencing, where there is a breach of such covenant on its part.

2. SAME AGREEMENT TO ERECT A DEPOT AT CERTAIN PLACE NOT Void as AGAINST PUBLIC POLICY.

Where, in consideration of the grant of a right of way over certain land, a railroad company covenants to erect a depot at a particular place, it is liable in damages for a breach of such covenant.

8. DEED-EXECUTION INCLUDES DELIVERY.

Proof of the execution of a deed is proof, prima facie at least, of a delivery..

1 Rehearing denied.

Appeal from Hamilton circuit court.

Kane & Davis, for appellant.

Moss & Stephenson, for appellee.

MITCHELL, J. On the fourteenth day of November, 1881, Green C. Sumner and wife conveyed a right of way, 66 feet in width, over two adJoining tracts of land, to the Louisville, New Albany & Chicago Railway Company. The deed recites that the conveyance was made in consideration of the payment of $200 and in further consideration of a covenant, on the part of the railway company, written in the deed, "to make a stock-pass under said road, and a farm-crossing over it, and to fence said strip, and further to locate and maintain a depot at the line between the above tracts." On the seventeenth day of January, 1885, Sumner brought this suit to recover damages for alleged breaches of the covenants above recited. The breaches assigned are (1) that the railway company wholly failed and refused to establish and maintain a depot at the place designated; (2) that it failed and refused to erect and maintain fences, whereby the plaintiff had sustained damages in various ways specified. At the trial the court permitted the plaintiff to prove, as an element of damage, that two of his hogs had been killed by the cars, the animals having gone upon the track by reason of the failure of the defendant to fence its right of way over plaintiff's land. Evidence was admitted to show that animals had gone upon and trespassed on the plaintiff's land, and that plaintiff, by reason of the failure of the company to build the fence, had been deprived of the pasturage upon lands adjacent to the right of way. Evidence was also admitted to show that the plaintiff's farm was worth less than it otherwise would have been because of the failure to erect and maintain a depot at the point designated in the deed. A general verdict for the plaintiff was returned, assessing damages at $955. By answers to special interrogatories the jury returned the following items of damage:

(1) The cost of erecting the fence,

(2) Damages for failure to erect fence, embracing the following items: Hogs killed,

Loss of pasture, three years, $50 per year,

Trespassing animals,

$250

25

150

30

205

500

$955

The record presents in various ways questions as to the correctness of the rule of damages, as applied by the court, for the failure to erect fences according to the stipulation in the deed. It is also claimed that the covenant contained in the deed by which the defendant agreed to erect and maintain a depot is void, as being against public policy.

It is argued that the measure of damages for the failure to erect the fence was the amount it fairly cost to erect it, and that the court erred in permitting the jury to hear and consider evidence of the value of hogs