and many also object to receiving empty petroleum barrels, because of their combustible. character. And this construction of the meaning of the contract is enforced by that placed upon it by the parties themselves, all of whom seemed to concede that the master had prop· erly' proceeded to the place where he did proceed, and that under the qircumstances it was the duty of the respondents to provide a lighter to receive their barrels. If an instrument is ambiguous, and both parties have acted upon a particular construction of it, that construction, if in itself admissible, will be adopted by the court. Ohicago v. Sheldon, 9 Wall. 50,54; Jackson v. Perrine, 35 N.J. Law, 187; Stone v. Clark, 1 Mete. 378; Forbes v. Watt, L. R. 2 Sc. & D. 214. , The libelant followed the instructions of the consignees of the iron, and proceeded to a place of discharge within the port where the iron could be delivered on the dock, but where the dock-owners would not permit the petroleum barrels to be landed. No objection was made by the respondents when it was suggested thll.t they should provide a lighter; and they undertook to obtain one. They knew that the iron could not be discharged until their barrels were removed. In consequence of their delay the lay days expired. It must be held that the libelant was not in fal,llt because in selecting a place for the delivery of the cargo in conformity with the contract of the parties he selected one which was not altogether convenient for the respondents; that the lay days began to run after the ship reached the berth to which she was directed by the consignees of the rails; and that the detention of the ship was caused by respondents' delay. A decree for four days' demurrage, at £10 per day, and interest, is directed, with costs to the libelant in the district court, and the costs of this appeal.
(District Oourt, D. New Jersey.
Libel for damages received in a collision, alleged to have occurred through the fault of the respondent in blowing contradictory signal whistles. 'I'he court investigates the confiilltinp; testimony, and awards the damages as asked.
Libel in Rem.
Beebe rX for libelant. II. Kettell, for claimant.
NIXON, J. This libel is filed to recover damages for a collision which occurred on the twenty-first of November, 1883, on the Erie canal, about one-half mile west of Albion, between the libelant's boat, the Rapid, and the claimant's boat, known as No. 104, which was
the consort of another boat, also owned by the claimant, and called the Ashford. They were canal steam-boats, and were loaded, the Rapid having on board a full cargo of coal, and drawing about six feet of water. T11e Ashford and No. 104 were attached together, the latter in front of the former, ahd being propelled and controlled in all her movements by her. The Rapid was bound west towards Buffalo, and the Ashford east towards Troy. At a short distance from the point of collision there was a bend in the canal to the northward or tow-path side. The canal was about 100 feet wide where the 8u.face of the water touched the bank, but the banks were sloping, so that laden boats of the draught of siE: feet could not approach nearer than ten feet of the side of the canal without touching the bottom. The collision occurred between 4 and 5 o'clock in the morning, which was before daylight at that season of the year. The boats had their regulation lights burning. Their lights were seen, the one by the other, when the boats were from a quarter to half a mile apart. There is conflicting testimony in regard to their speed. The Ashford had the cunent in her favor, and was going about three miles an hour, while the Rapid was proceeding at a slower of speed. About the time of observing each other the Ashford first sounded one whistle, which was at once answered by the Rapid; then three whistles, which the Rapid replied to with three. Here the proofs radically diverge with regard to the subsequent whistles. The libelant contends that the Rapid shortly afterwards gave. three whistles, while the ()laimant insists that only two were gi'Ven, wllich be promptly answered with two, and turned his boat to the tow-path side of the canal, as the two whistles signaled him to do. The general rule of the road for boats passing on the canal is for each to go to the right. The signal of one whistle means that movement, the boats passing on the port side of each other. Two whistles are a call for boats to go to the left, giving their starboard side to each other. Three whistles are calls to slow up and slacken their speed. Remembering these rules and the signification of the whistles it is easy to account for the collision. The Ashford told the Rapid, by sounding the one whistle, that she wished to pass to the right. The Rapid assented by her reply. The collision took place on the tow-path side of the canal, where the Rapid was lying in obedience to the first signal. The Ashford, steaming from the heel-path, struck the port bow of the Rapid a few feet aft of the stem with such force that she almost immediately filled and sank. She claimed that she was governed by the signal of two whistles of the Rapid in thus going over to the tow-path side. On the other hand, the Rapid denied that she sounded two whistles, and insisted that she gave three to warn her to slow up. There is great conflict in the testimony on this point, but I think the weight is with the libelant, that three whistles were blown. The collision was caused by this mistake of the Ashford. and there must be a decree for the libelant, with costs.
.'ELROY V. KANSAS OITY.
McELROY V. KANSA.S CITY.
((Meuit Court, W. D. Misl1tJuri, W. D. August, 1884.)
CoNSTITUTIONAL LAW-MISSOURI CONST.-.:BILL Oll' RIGHTS, TAKEN OR DAMAGED-FUBLIC USE-COMPENSATION.
The damage to property, by the constitution of Missouri, is placed upon the same basis as the value of the property taken, and neither can be done without compensation first made. This constitutional guaranty needs no legisla.' tive support, and is beyond legislative control.
2. !iAME-CHANGE OF GRADE OF t:)·fREE'J'-DAMAGE.
Wl:lell property is i1amaged' by establishing the gl'ade of a street, or by low.. cring or raising the grade of a street previously IlStahhshed. it is damaged for public use, witllin the meaning of the constitution.
That a city was incorporated under a special charter before the adoption of the constitution of 187&, and Its charter continued in force, will not render the constitutional provision in respect to damages to property inopora'ive within the territorial limits of sUfh city.
S. SAME-lNCiORPORATIO:S OF CITY BY SPECIAL CHARTER BEIl'ORE ADOPTION OIl'
SAME-ENJOINING MUNICIPAL CoRPORATfON-MA'J'TERS CONSIDERED.
A chancellor. in determining an application for an injunction, must regard not only the rights of complainant which are sought to be protected, but the injuries Which may result from the granting of the injunction and in applying this rule in a case where it is sought to enjoin a municipal corporation against which an action for damages woul( l1e, from chang:ng the grade of a street, the court should consider II) the amount of injury to the complainant; (2) the solvency of the defendant. and (3) the character and importance of the public improvement. Where the defendant has an ultimate right to do the act sought to be rl:'strained, but only upon some condition precedent, and compliance with the condition is withi.n the power of the defendant, injunction will usually be granted until the condition is complied with.
SAME-CONDITION PRECEDENT 'PO,RIGHT TO PEltFORM ACT ENJOINED-ABILITY OIl' DEFENDANT TO PERFORM L:oNDl'l'ION.
6. SAME-INABILITY OF DEFENDAN'l' TO PERFORM CONDITIONS-FoRM OF ORDER. Where ..he defendant has an uitimate right to do the act sought to be en joined, upon certain conditions, and the means of complying with such condi are not at its command, the court will endeavor to adjust its order so on the one hand as to give to the complainant the substantial benefit of such conditions, while not restraining defendant flOm the exercise of its ultimate rights.
On Application for Injunction. Bryant et Holmes, James Scammon, and Botiford <l Williams, for plaintiff. Karnes et Ess, Jeff 3rumlJack, and Wash. Adams, for defendant. BREWER, J. The complainant in this case seelis an injunction to restrain the grading of a street in front of his lot. He is the owner corner of Sixth street and Tracy avenue, of a lot on the having a frontage on Tracy avenue of 41! feet and on Sixth street of 110 feet. The grade on Tracy avenue has been established, and the avenne graded in front of complainant's property. This grade was 220 feet at the corner of Tracy avenne and Sixth street above the city directrix, or base line from which the elevations of the streets in said city are determined. On February 95, 1884, the defendant, by an ordinance entitled"An ordinance to grade a part of Sixth street v.21F,no.o-17