WE8TERN REFRIGERATOlfc6;tI., AMERICAN
INS. & SEC. 00.
f130dants had beEln in the aotual, continuous, and advetse posseSsion of the land, claiming and using it as a public park. Such possession vested the title to the park in the township, and was an effectual bar to the plaintiff's action, whether. the townshi}) did or did oot acquire &. right to ,; the park under theaet of the legislature repealing the act inabout which we express no bpillion. corporating, the city of The ground 'upon which the oourt excluqe,d this evidence is not disclosed by the record. In this court the counseL for the defendant in error seeks to support the ruling upon the ground that the claim of title to the land ,set up by'the township, and its open and, notorious use and occupation of the lands as apublje park for the village and township of Quindaro, 13:0 not <!onstitute such an adverlje possession as would start the statute. of limitation in favor of the, township. This conbmtioJ;1u. not sound.' It is well settled that to constitute adverse there on need not be a fence, a building, or other land. It is sufficient for tois purpose that visible and notorious acts of ownership are exercised over the premises in controversy, under claim. of title, forthe period required by the statute to bar the action. Ewing v. Burnet, 11 Pet. 41. The open and notorious use of this land as a public park, under claim of title, constituted a possession as effectnal to bar the plaintiff's action as if it had been inclosed by a,stone wall. Tqe boundaries of the park were distinctly marked on the p,lat of the town which dedicated it to the public use asa park. The only possession of which it was susceptible was a possession consistent with its use as a park, and its open, public,and notorious use for that purpose was all the possession requisite to support the defendants' plea. The court erred in excluding the evidence offered j and for this error the judgment must be reversed, and the case remanded for a new trial. '
fl. AMERICAN CASUALTY OF BALTIMORE.
In. & SEC. Co.
(CwcuU Court. N.D.
nZtnota. November 10,1891.)
mtmANCB-ACTlON ON POLICT-DECLARATION.
An insurance company issued a policy, one item of which was ",against all direct loss or damage [excepting all losses caused directly or indirectly by tire or light.ning] to the property" of the insured. Held, that a declaration attempting to state a cause of action under said item, without stating that the 10S8 was not caused, directly or indirectly, by fire, was demurrable.
At Law. On demurrer. A88'UmpBit by the Western Refrigerator Company against the American Casualty Insurance & Security Company of Baltimore. Fry « Babb and Tlwmal Bates, for complainant. W. B. Keep, for defendant. BLODGETT, District Judge. Defendant demurs to the 2d, 4th,6th. and 8th counts of the declaration. These counts state a cause of action
under .the fifth item of the policy, of insurance sued upon. This item i. in the following words:
";"(6) Against all direct 10as or damage [excepting 811108888 caused, directly or 1:)1 fire or lIghtningl to the, property, real or personal, of the assured, the above-,described premises, caused by any accident to or by the bW1ers,epgines, elevators, [enumerated in the this policy,] steam shaftIng. belting. bangers',and pulleys, sitllated on the premises and against loss or damage resulting from such accident to the properb" of others for which the assured may be liable."
.Ih cbrilitruing this policy it musfbe borne in mind that it is a policy strictly accidents, and not policy. The whole tenor of the instrumentilhows clearly that it was intended only.as an accident pol. ,. 'as, an insurance against fire. The true meaning of the fifth iteiri ,()fthe policy WOUld, lthink.be'more clearly expressed if the clause excepting had been omitted, and there had been 'Written at the end of the paragraph a proviso saying that" this polis' hot to cover any losses caused directly or indirectly by fire or light. ning." In other words, it is not 'a. policy against fire, even if fire is the resultor)inmediate consequence of the accident. With this view of the of the policy I think the demurrer is well taken to counts, because the pleader has not stated that the loss was not dii,-ectly or indirectly by fire. The demurrer is therefore sus-fAllied as to theseconli and third counts. r,"'
EASQN II. BUCKEYE BREWING
(C'Lrcu'Lt Cou,rt, N. D. OMo, W. D. July 21, 1892.)
,A by a corporation created under the laws ot Ohio, while solvent and engaged'm a:profitable business, to sell its plant and ,assets for a consideration, the greater part of which is stock and bonds. of another corporation to be organized to carry on ,the business, no exigency makmg such sale necessary for the protection of stockholders, is ultra ""'res, as, under the state laws, one corporation cannot become the oWiller of stock in another unle8S' authority' to do so is clearly conferred bv statute.
At by Harry WilliaJ;D Easun against the Buckeye Brew· ing Company' and others. On demurrer to petition. Demurrer sustained. Hurd & Scribner and E. W. Tollman, for plaintiff. R. Waite and Doyle, Scott & Lewi8, for defendants. Before TAFt, Circuit Judge, and RICKS, District Judge.
RICKS, District Judge. This is an action instituted by the plaintiff tl) recover $250,000 damages for the failure of the defendants to comply with the provisions of a contract for the sale of the defendants' property tG the 'plainti.fttlfhich contract was made between the parties on the 27th