alleged title within 30 days from the finality of the judgment, and, in default of thus acting, that the inscription of his title be erased from the conveyance records of the parish.

Jones obtained an order for a suspensive appeal, which he perfected by giving bond. Dodt did not appeal. On July 18, 1902, plaintiff filed a petition in which she alleged that Valsin Jones had appealed from the judgment, which appeal she declared she joined in, and asked for an increase of damages, and in which, alleging that she was otherwise aggrieved by the judgment on the exception dismissing her suit as to Felix Dreyfous, and the final judgment of the 26th of June, 1902, she prayed for an order of appeal returnable to the supreme court on the first Monday of November, 1902, and that John C. Dodt and Felix J. Dreyfous be cited according to law.

The court granted a devolutive appeal, returnable, as prayed for, on plaintiff's furnishing bond in the sum of $50. Plaintiff executed a bond, but neither Dodt nor Jones nor Dreyfous were cited, and her appeal has been dismissed.

The plaintiff filed no answer to Jones' appeal, and prayed for no amendment. The appeal is therefore before us solely as between plaintiff and Valsin Jones on the latter's appeal.

Plaintiff's only allegations in her original petition as to damages which she received are damages in the sum of $2,100, averred to have been occasioned by the false, malicious slanders and libels, not of Jones, but of Dodt and Dreyfous. The only allegations as to Valsin Jones were "that she had just learned that one Valsin Jones, of New Orleans, had just registered a spurious, slanderous title." There is no averment of any connection, collusion, or privity between Jones and the other defendants. The only reference to Jones in the supplemental petition which plaintiff filed was that "she had been unable to find by search the registry of the title so called by Valsin Jones, but that her counsel and agent had been informed and assured by John G. Robin, one of Dodt's lawyers, that he had seen said Jones' pretended registered title, which was exhibited to him and published slanderously, either by his counsel, Watt, or by Jones himself, and that the description covered plaintiff's said property."

The prayer of plaintiff's petitions were for Judgment in solido against John C. Dodt, Valsin Jones, and Felix Dreyfous in solido for $2,200, with legal interest from judicial demand, and for judgment that her title was good and valid in law, and quieting her in the same, with the enjoyment of her rights and possession of said property, and forever enjoining the defendants, John C. Dodt, Valsin Jones, and Felix Dreyfous, from disturbing her title and possession by slander or otherwise. There was no prayer that the defendant Valsin Jones be ordered to sue plaintiff on his alleged title within 30 days,

or at all, or that, in default of so doing, the inscription of his title be erased from the conveyance records.

Opinion.

We are not called on to discuss what may be the effect of the judgment appealed from as to John C. Dodt. We can only consider it as to its bearing upon Valsin Jones. It certainly was not intended to pass presently, as between plaintiff and Jones, upon the merits of their respective titles to this property. So far from doing this, the judgment ordered the latter to hereafter institute suit upon his title against the plaintiff. This decree is utterly inconsistent with the idea that the titles of these parties were already adjudicated upon. Plaintiff has not appealed, nor has she prayed in this court for an amendment of the judgment. We are powerless to change the situation otherwise than as it may prejudice Jones. The decree as it reads, while it leaves open the matter of title as between Jones and the plaintiff, mulcts the former in damages and costs for having placed of record a title which he had acquired to this property. The title so acquired may be of no value to him when tested hereafter by the rights which plaintiff may have acquired to the property, but whether this be so or not remains to be hereafter ascertained. There is no law prohibiting him from purchasing the property from other parties, and, having done so, from protecting his acquired rights (such as they were) by registry. There is nothing to show that he was acting in this matter otherwise than in his own supposed interests; nothing tending to connect him with Dodt, as being in collusion with Dodt either to assist him or to injure the plaintiff. Should Jones here. after institute suit on his title against the plaintiff for the recovery of this property, and succeed therein, matters would be in an anomalous condition, should he, in advance of judgment in his favor, have been forced to pay the losing party $150 and costs. There is error in the judgment in this respect. We think there was also error in ordering Jones to sue plaintiff upon his alleged title, and decreeing that, in default of his doing so, the inscription of his title be erased from the records. The judgment to that effect goes beyond the prayer of plaintiff's petition. Viewing matters from the standpoint of the final decree and the evidence disclosed in the record, we think the proper course to pursue is to reverse the judgment as to Valsin Jones and dismiss plaintiff's demand and suit as to him, without prejudice to any rights which either he or the plaintiff may have in respect to the property in litigation.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from, in so far as it is against and concerns the defendant Valsin Jones, be and the same is hereby annulled, avoided, and reversed, and it is now ordered, adjudg

ed, and decreed that plaintiff's demand and suit against Valsin Jones be and the same is dismissed, without prejudice to any rights which either the plaintiff or the defendant Valsin Jones may have in respect to the property in litigation. It is further ordered and decreed that the plaintiff and appellee pay the costs of appeal and of the court below.

(45 Fla. 559)

SILVER SPRINGS, O. & G. R. CO. v. VAN NESS et al.*

(Supreme Court of Florida. June 8, 1903.) SUMMONS-DEFECTIVE SERVICE-DEED-RIGHT

OF WAY-CONDITIONS-BREACH-CONSTRUCTION-RESERVATION OF MINING RIGHTSAGREEMENT TO REMOVE TRACKS-NOTICESUFFICIENCY-APPEAL REVIEW - BREACH OF CONTRACT-DAMAGES-BILL OF EXCEP

TIONS-JUDGMENT.

1. A defect in the service of a summons ad respondendum or the sheriff's return thereon constitutes no ground for quashing the summons or abating the suit.

2. A declaration against a railroad company, alleging that plaintiffs conveyed to defendant a right of way across certain land upon which it constructed and was then operating its railroad; that, knowing there were valuable deposits of phosphate in and upon said right of way, the defendant, at the time of and in and by said conveyance, stipulated, promised, and agreed that when plaintiffs desired to mine and remove said deposits it would, upon 60 days' written notice, remove its railroad track to adjacent or adjoining lands; that thereafter plaintifs gave defendant the 60 days' written notice, stating that they desired to commence mining at the expiration of said period; that defendant neglected and refused, and still neglects and refuses, to remove its railroad, or any part of same, from said strip or any part of said land; that by reason of the breach of said promise plaintiffs had been hindered, obstructed, and deprived of the use, enjoyment, and profits of the land, and hindered, delayed, and obstructed in mining and removing from said land the valuable phosphate rock deposited therein-states a cause of action for damages consequent upon breach of defendant's agreement to remove its track; and it is not necessary to allege the amount of phosphate which plaintiffs were prevented from mining, nor that it was possible for defendant to comply with the written notice alleged, nor is the alleged notice insufficient for failure to designate a place to which the track could be removed.

3. When the grantee accepts a deed, and enters into possession of the land conveyed, he is deemed by such acts to have expressly agreed to do what it is stipulated in the deed he should do, even though he did not sign the deed, and trial courts may in proper cases so instruct the jury.

4. Where the language used in a deed is ambiguous, and may import either a condition subsequent or a covenant, it will be construed to be the latter in preference to the former, and, in determining whether a particular provision is a condition subsequent or a covenant, the entire instrument and the object and purpose of the grant will be looked to in order to ascertain the real intent of the parties, and the instrument will be construed most favorably to the grantee, so as to avoid a forfeiture of the estate granted.

5. Where one sells a railroad right of way, or a parcel of land, reserving the minerals, with a reservation of the right to mine, the latter

*Rehearing denied.

3. See Deeds, vol. 16, Cent. Dig. § 94.

right must be so exercised as not to undermine the surface support or let down the tracks, unless that right is reserved by express words or by necessary implication. The court must be able to see clearly from the language used that the right reserved was to extend to letting down the road, or undermining the surface support, before the reservation will be construed as authorizing that to be done.

6. A deed conveying a right of way to a railroad company contained, immediately following the description of the property, a clause as follows: "Provided that should there be valuable phosphate beds or deposits along the aforesaid located line of survey, and the first party desire to mine, operate and remove said deposits of phosphate, then the said party of the second part shall upon sixty days' prior notice in writing remove said track of railroad to adjacent or adjoining lands, and the said second party shall have the right to change such track of railroad to original line after aforesaid deposits of phosphate shall have been removed." The deed also contained a covenant on the part of the grantors not in any manner to disturb, hinder, or molest the company in the use and enjoyment of its right of way, and a proviso at the end of the deed to the effect that, if the company should not within six months grade and tie its railroad over and across the land, then the conveyance should be wholly void and of no effect. The deed contained no clause declaring a forfeiture, nor right of re-entry or possession in the grantors, nor right to mine, regardless of the railroad tracks, upon failure to remove the tracks upon notice. Held, that the proviso quoted was neither a reservation, limitation, nor condition subsequent, but merely a covenant or promise on the part of the railroad company to remove its tracks upon the conditions named, for breach of which an action for damages lies. Taylor, C. J., and Maxwell, J., dissenting.

7. A written notice to a railroad company "to remove the track of said railroad from the phosphate deposits (for the purpose of mining the same) where they occur in the lands enumerated and described in a certain right of way deed," particularly described, is a sufficient notice under a clause in said right of way deed to the effect that, should there be valuable phosphate beds or deposits along the right of way granted, and the grantors desired to mine, operate, and remove same, then the railroad company should upon 60 days' prior notice in writing remove said track of railroad to adjacent or adjoining lands, where the company, upon receipt of such notice, sent an agent to see the party giving it, never requested a more specific one, and never claimed to have been ignorant of the precise location of the phosphate deposits which the grantors desired to mine. Taylor, C. J., dissenting.

8. Where a cause is heard in the Supreme Court upon abstracts of the record, and the bill of exceptions as abstracted fails to set forth such brief statements of the proofs as are necessary to show the propriety or impropriety of rulings admitting evidence as required by the rules of court, or fails to show that the matters of fact asserted as objections to the admission of such evidence are true, the Supreme Court cannot declare the trial court in error in admitting such evidence.

9. Where a cause is heard in the Supreme Court upon abstracts of the record, and the bill of exceptions as abstracted fails to set forth a statement of the facts upon which instructions refused were predicated as required by the rules of court, the Supreme Court cannot declare the trial court in error in refusing such instructions.

10. Instructions to the effect that, when two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and

reasonably be considered either arising naturally, i. e., according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the probable result of such breach of it; that the party which is in default, that is, the party who has broken the contract, should make good the damages sustained by his breach of contract, which were contemplated or might reasonably be supposed to have entered into the contemplation of the parties at the time of making the contract; and that gains prevented, as well as losses sustained, may be recovered as damages for breach of a contract, when they can be rendered reasonably certain by evidence and have naturally resulted from breach of contract-assert elementary principles of law, and are properly given where warranted by the evidence.

11. Where a bill of exceptions is deficient in showing facts required to be shown by it, the defect cannot be aided by reference to the evidentiary bill.

12. Where husband and wife, grantors in a right of way deed containing a promise on the part of the grantee railway company upon notice to remove its track from phosphate deposits upon its right of way to enable the grantors to mine same, brought suit for breach of such covenant, and it developed in the evidence that the wife had no interest in the land other than a right of dower, but no issue was made as to her right to recover as a joint plaintiff, the court properly entered judgment upon the verdict in favor of the husband and wife jointly. 13. The measure of damages for breach of an agreement on the part of a railroad company, to whom a right of way has been granted, to remove its track of railroad to adjacent or adjoining lands, upon written notice, in case valuable phosphate beds or deposits should be found to lie along said right of way and the grantors should desire to operate mine and remove same, is the value of the phosphate that could not be mined without letting down the tracks or injury to the surface of the right of

way.

14. Testimony proving a system of rodding, boring, pitting, and excavating sufficiently thorough for a reliable estimate as to the amount of phosphate in beds upon a railroad right of way 100 feet wide is not too loose, indefinite, and uncertain to form the basis for an award of damages for the value of the phosphate in such beds.

15. Evidence examined, and found sufficient to support the verdict. Taylor, C. J., and Maxwell, J., dissenting.

(Syllabus by the Court.)

In Banc. Error to Circuit Court, Citrus County; William A. Hocker, Judge.

Action by M. V. B. Van Ness and Annie L. Van Ness against the Silver Springs, Ocala & Gulf Railroad Company. Judgment for plaintiffs. Defendant brings error. Affirmed.

R. A. Burford, E. K. Foster, and J. B. Whitfield, for plaintiff in error. T. P. Lloyd,

for defendants in error.

CARTER, J. This cause was duly considered by Division B of the court, and, a difference of opinion among its members hav ing arisen as to certain questions involved, the cause was referred to the court in banc for decision, and in the early part of the present term the court in banc disposed of the case by a judgment of affirmance, with

out written opinion. A petition for a rehearing was filed in due course, which has been duly considered, and, in view of the importance of some of the questions involved, the court deems it proper, in disposing of the petition, to file this written opinion expressing its views upon the questions embraced in the assignment of errors.

On February 1, 1895, defendants in error began an action against plaintiff in error in the circuit court of Citrus county, claiming damages for failure of defendant to remove its track, build a side track, and to construct a depot. At the trial plaintiff's waived their claim for damages for failure to construct side track and depot, and obtained judgment for $15,000 damages on account of failure to remove track.

The summons was served upon a business agent of defendant resident in Citrus county, the sheriff stating in his return that the president, vice president, treasurer, cashier, secretary, general manager, and directors were absent from and could not be found in Citrus county. Defendant entered its special appearance for the purpose, as stated, of contesting the service and the jurisdiction of the court, and in pursuance thereof filed a paper stating that it contests the jurisdiction of the court upon five specified grounds relating to the sufficiency of the sheriff's return of service, and concluding as follows: "Wherefore defendant, in pursuance of its special appearance and its objections to jurisdiction and the service of process as above set forth, here moves the court to quash the writ in said cause and abate the action." The court denied the motion, and such ruling constitutes the basis of the first assignment of error. The court ruled correctly upon this motion. The motion was to quash the writ and abate the action-not to quash the service or return of service. A defect in the service or sheriff's return constitutes no ground for quashing the writ or abating the suit. Tidwell v. Witherspoon, 18 Fla. 282, text 286.

The declaration, filed March 4, 1895, so far as it claims damages for failure to remove track, alleged that on May 26, 1891, and prior thereto, plaintiffs were in possession and absolute owners in fee simple of certain lands therein described, containing 120 acres, more or less, situated in said county; that on said day, and at several times prior thereto, defendant made application to and requested plaintiffs to grant and convey to it a certain parcel of said described land 100 feet in width, and running across same, for a right of way for the railroad defendant was then building and constructing; that on said day, at the frequent solicitations and requests of defendant, and for the consideration thereinafter set out, plaintiffs made and delivered to defendant a certain deed in writing, conveying to it a strip or parallelogram of land 100 feet in width over and upon the above-described land for the

right of way of its railroad, and upon which strip or parallelogram of land defendant constructed and built its railroad, and upon which it maintains and keeps a railroad track upon which it runs and operates engines and cars daily; that the consideration moving plaintiffs to make and deliver to defendant said deed conveying said right of way was the promises, agreements, undertakings, and covenants made in writing at the time aforesaid, and before taking possession of said strip of land, to and with plaintiffs, as follows: That at the time of making and delivering said deed defendant had notice and knowledge that in and upon said strip there were deposits of valuable phosphate rock, and defendant then and there promised, agreed, undertook, engaged, and covenanted to and with plaintiffs that, when the latter desired to mine and remove the phosphate rock from said strip of land, upon 60 days' notice in writing given by plaintiffs to defendant that the former desired to mine said land, the defendant corporation should remove its railroad track to adjacent or adjoining lands, defendant reserving the right to move said railroad track to original line after plaintiffs had removed the phosphate rock; that said promise, agreement, undertaking, engagement, and covenant made by defendant with plaintiffs, and as the consideration for granting said right of way, are in writing, and incorporated in the deed granting and conveying said right of way; that on March 11, 1894, plaintiffs gave defendant the 60 days' notice in writing, stating therein that plaintiffs desired to commence mining at the expiration of said time on said strip of land and lands adjacent; that defendant acknowledged receipt and service of said notice; that plaintiffs, at the expenditure of much time and money, made preparations to commence mining the phosphate rock on said strip of land and lands adjacent, and were proceeding to mine said rock, and were procuring material for mining, and making negotiations for machinery, such as engines and washers, to commence mining on said strip of land and lands adjacent; that, notwithstanding such notice given by plaintiffs, defendant neglect ed and refused at the expiration of the 60 days stated in the notice, and still neglects and refuses, to remove its railroad, or any part of same, from said strip or any part of the land; that defendant had broken its aforesaid promise, agreement, undertaking, engagement, and covenant made as aforesaid, whereby plaintiffs had been hindered, obstructed, and deprived of the use, enjoyment, and profits of the land aforesaid, and hindered, delayed, and obstructed in mining and removing from said land the valuable phosphate rock deposited in and upon the same; and from such misfeasance, nonfeasance, and breaking of promise, agreement, undertaking, engagement, and covenant on the part of defendant, and other wrongs and

injuries done plaintiffs by defendant in manner and form aforesaid, plaintiffs have suf fered and sustained and claim damages in the sum of $75,000.

The defendant demurred to the declaration, noting many points of law to be argued. The demurrer was overruled, and the ruling is made the basis for the second assignment of error. Under this assignment it is argued that the declaration does not sufficiently allege the manner in which plaintiffs were damaged, the elements that fix the amount of damage, or the amount of phosphate to be mined, nor that it was possible for defendant to comply with the notice to remove tracks, nor that the notice was in accordance with the terms of the deed, nor that a place was designated to which defendant should move the track. It is also argued under this assignment of error that plaintiffs had mistaken their remedy, it being contended that the proper remedy was a proceeding to have the deed set aside, or to compel fulfillment of the conditions upon which it was made.

It appears to the court that the action is properly brought for damages consequent upon breach of the defendant's agreement to remove its track set up in the declaration; that the character of plaintiffs' damages is sufficiently stated without naming the amount of phosphate to be mined; that the notice given was sufficient under the terms of the agreement alleged; and that it was not necessary to allege that it was possible for defendant to comply with the. notice, nor to designate in the notice a place to which the track was to be removed, as that was a matter for the defendant to determine for itself. The declaration is sufficient as against the objections urged, and the second assignment of error is not well taken.

Defendant pleaded not guilty, non est factum, performance, non damnificatus, insufficient notice to remove track, want of good faith on the part of the plaintiffs in giving the notice, that plaintiffs voluntarily withdrew the notice given by them, and that plaintiff's began mining on the land beyond the limits of the right of way, but, finding it unprofitable, abandoned same before commencement of suit, at which time the excavations for mining had not approached sufficiently near the track to interfere with such excavations and the removal of phosphate. Issue was joined on these pleas.

At the trial plaintiffs, over defendant's objections, introduced in evidence a document, as follows:

"State of Florida, Citrus County: Know all men by these presents that Martin V. B. Van Ness and Annie L. Van Ness, his wife, of the county of Citrus, in the State of Florida, parties of the first part, for and in consideration of the sum of one dollar to them in hand paid by the Silver Springs, Ocala and Gulf Railway Company, a corporation of the State of Florida, party of the second

edged, have granted, bargained, sold and conveyed and by these presents do grant, bargain, sell and convey unto the party of the second part a strip .or parallelogram of land for its railroad right of way, and their necessary railroad purposes, one hundred feet in width at and near whatever point or points the said party of the second part may see proper to locate the same of, in, upon, over, through and across the following described land, situate, lying and being in Citrus county, in the State of Florida, particularly described as follows: The southeast quarter of the southwest quarter of section thirty-six (36), township eighteen (18) south, range nineteen (19) east, and the northeast quarter of the northwest quarter and the northwest quarter of the northeast quarter of section one (1), township nineteen (19) south, range nineteen (19) east. Provided that should there be valuable phosphate beds or deposits along the aforesaid located line of survey, and the first party desire to mine, operate and remove said deposits of phosphate, then the said party of the second part shall upon sixty days' prior notice in writing remove said track of railroad to adjacent or adjoining lands, and the said second party shall have the right to change such track of railroad to original line after aforesaid deposits of phosphate shall have been removed. The party of the second part agrees to construct necessary side track for the removal of phosphate taken from mines on the foregoing described lands, which mines are adjacent to said track of railroad and being operated by party of first part or assigns, said side track to be constructed without expense to party of first part, said way as aforesaid shall be as aforesaid one hundred feet wide and shall be located as aforesaid by party of the second part, its successors and assigns, and it shall be lawful for the party of the second part, its successors and assigns and all and every person for its benefit and advantage at all time hereafter, to construct its railroad and appurtenances upon, and to use, pass and repass with and without property and effects through and over its railroad lately surveyed and located by the party of the second part in, upon, over, through and across the same. And the said party of the second part, its successors and assigns is hereby granted and shall have the right and privilege, in consideration aforesaid, and in consideration of its constructing and operating its railroad, to go beyond the limits of said one hundred feet or way, hereby granted and conveyed, to drain said way and perpetually to keep the same drained by necessary drains or ditches over and across any adjacent lands which may be owned by said party of the first part. The party of the second part further agrees to maintain a station upon the aforesaid described lands, and parties of the first

land for such purpose. And the party of the first part hereby covenants and agrees not in any manner to disturb, hinder or molest the party of the second part, its successors or assigns, servants, agents or employés in use and enjoyment of said way and privilege. To have and to hold the above granted premises and privileges unto the said party of the second part, its successors and assigns against all and every person or persons lawfully claiming or to claim the same by, through or under the parties of the first part, their heirs, executors, administrators or assigns. Provided, however, that if the party of the second part, its successors or assigns shall not within six months from the date thereof locate, grade and tie its railroad over, through or across the said above mentioned or described premises, then this grant and conveyance to be wholly void and of no effect. In witness whereof the parties of the first part have hereunto set their hands and affixed their seals this 26th day of May, A. D. 1891.

"Martin V. B. Van Ness. [Seal.] "Annie L. Van Ness. [Seal.] "Signed, sealed and delivered in presence of as witnesses,

"L. R. Eichenlaub,

"E. J. Van Ness."

To this instrument was attached a proper acknowledgment on the part of Annie L. Van Ness, relinquishing all her rights, interests, title, claim to dower, or any other claim, executed before an officer, separate and apart from her husband. The ruling admitting this deed in evidence is the basis for the third assignment of error. The only contention made under this assignment is that the clause beginning "provided that." immediately following the description of the property in the deed, properly construed, is a condition subsequent for breach of which the plaintiffs might re-enter, and not a covenant or agreement on the part of defendant to remove its tracks for breach of which an action for damages will lie. The clause in question, being in form a proviso, possesses some of the attributes appropriate to a limitation, reservation, or condition subsequent; but, looking to the language of the entire deed and the evident intent and purpose of the parties, the court is of opinion it is neither, but that it is an agreement on the part of the defendant, in the nature of a covenant, whereby the defendant, by its acceptance of the deed and entry into possession under it, bound itself to remove its tracks under the circumstances therein stated, and upon which an action for damages for failure to move its tracks lies,

When the grantee accepts a deed and enters into possession of the land conveyed, he is deemed by such acts to have expressly agreed to do what it is stipulated in the deed he should do, even though he did not