seven, between John W. Snell, Joseph J. Snell, and Geo. H. Snell, of Salt Lake City, in the county of Salt Lake, and territory of Utah, parties of the first part, and John Taylor, trustee in trust for the Church of Jesus Christ of Latter-day Saints, of Salt Lake City, in the county of Salt Lake, and territory aforesaid, the party of the second part, witnesseth: that the said parties of the first part, for and in consideration of the sum of one thousand (1,000) dollars, lawful money of the United States of America, to them in hand paid by said party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, conveyed, and confirmed, and by these presents do grant, bargain, sell, convey, and confirm, unto the said party of the second part, and to his successors in the office of trustee in trust for the Church of Jesus Christ of Latter-day Saints, forever, the exclusive right to quarry and remove the rocks lying and being within the limits of the following-described pieces or parcels of land, to wit: the north half of the south-east quarter, and the north half of the north half of the south half of the south-east quarter of section seven (7), in township three (3), south of range two (2) east, in the district of land subject to sale at Salt Lake City, Utah territory, containing one hundred (100) acres. Together with the privilege to erect and occupy sheds or other buildings for the use and accommodation of all teams and workmen employed in quarrying and hauling said rock, or in any way associated therewith. Also the free right of way over and across any part of the said described premises, in any direction which may be requisite or necessary for the removal of said rock, or and (any) other rock that is located above said claim or tract of land, which the said party of the second part, or their successors in office, as aforesaid, may desire to remove over or across the said described premises."

Said instrument was properly executed, acknowledged, and recorded.

Plaintiffs' counsel objected to the admission of said indenture in evidence, upon the ground that the same was immaterial and irrelevant; upon which the court admitted said indenture in evidence, subject to be afterwards excluded if de

fendant failed to produce evidence connecting itself with the right conveyed by said indenture.

And the said defendant, further to maintain and prove the issues on its part, introduced as a witness James Livingstone, who testified in substance that he knew the premises mentioned in the foregoing indenture, and since about 1876 had been superintendent for and in the employ of the grantee, to work the granite quarry on said premises, to obtain rock. for the temple in Salt Lake City; that all the rock so quarried after the construction of the defendant's railroad has been transported from said quarry over said road from Wasatch station, consigned to said grantee in said indenture; that the rock so transported has been from the first at least half the entire freight carried by said road, and averaged about six hundred car-loads per year, each car-load being about eight

tons.

Defendant thereupon, without further or other proof, rested its case.

Wherefore the plaintiffs' attorneys moved the court to strike out the evidence, the said indenture, on the ground that the same was irrelevant and immaterial, and that defendant had not connected itself with the rights mentioned in said indenture, to which the counsel for the defendant objected. The court granted said motion, and ruled and decided that said indenture was wholly immaterial, and that defendant had not connected itself with the right granted by said indenture; and to said ruling the said defendant, by its attorney, then and there excepted.

Said court, at the request of said plaintiffs' attorneys, and notwithstanding an objection made by defendant's counsel, instructed the jury as follows: "You are instructed to return a verdict for plaintiffs for the restitution of the property described in the plaintiffs' complaint, which you may find that the defendant withholds, together with two hundred dollars. damages." To which instruction the defendant's attorneys then and there excepted.

Said court refused the following instruction requested by said defendant's attorneys: "The jury are instructed to find for the defendant, because the plaintiffs have not shown such joint title in themselves as entitles them to maintain this ac

tion." And to said refusal said defendant, by its attorneys, then and there excepted.

There was no error in striking out from the evidence the indenture referred to. It was neither material nor relevant. It appears that the defendant entered upon and took possession of the demanded premises, and built their railroad upon it, between 1872 and 1874, some years before the grant was given under which they attempt to justify the holding. The demanded premises is a strip of land extending across the premises described in said indenture, and other legal subdivisions not mentioned in it. The road was not constructed by or for the grantee, or for his use or benefit, any more than that of the public or any other patron of the road.

The defendant is a common carrier, doing a general business as such, for any and all who may require its services and will pay its charges, and as a part of its general business it transported rock delivered to it and consigned to Taylor. In doing this it was not his servant in any such sense as would give it any rights under the grant.

The defendant placed its whole defense upon the grant of the plaintiffs to Taylor, with this out of the case and withdrawn from the jury. The court properly instructed the jury to find for the plaintiff, and to assess the damages at the sum confessed by the answer.

The appellant contends that the instrument excluded was material, and should have been permitted to go to the jury, for the reason that it showed an outstanding title in a third person.

The grant did not give to Taylor an exclusive right of possession, or the right to any possession disconnected from his right to quarry and take away rock from and over a specified portion of the plaintiffs' premises. He can not authorize the defendant or any one else to occupy plaintiffs' land for any other purpose than that specified in the grant. The instrument is a grant of a private right of way, connected with the right to quarry, and plaintiffs retained the possession as against all but the grantee and those occupying under him pursuant to the grant, and for the sole purpose of enjoying the license and easement created by it. The fee to the soil is still in the plaintiffs.

The fact that the plaintiffs had granted to Taylor the right to quarry rock on their land, and a right of way to and from the quarry for the purpose of its removal, does not prevent them from maintaining ejectment against the defendant for the unauthorized use of the land. The owner of the soil over which even a public highway passes may maintain ejectment for an unauthorized use and occupation of the highway.

The decisions, rulings, and instructions of the court were right, and the judgment is affirmed.

HUNTER, C. J., and Twiss, J., concurred.

SALT LAKE CITY v. HOLLISTER.

WHERE A MUNICIPAL CORPORATION BY ITS OFFICERS AND AGENTS ENGAGES AS A DISTILLER in the distillation of spirits, sells the same without paying the gallon tax thereon, receives the benefits of such business, and appropriates the proceeds thereof to its public treasury, it is liable to the United States for the amount of the gallon tax on all spirits so distilled and sold, although all of such acts are unauthorized by its charter; money paid to a revenue officer upon the assessment of such tax, although paid under protest, can not be recovered back.

APPEAL from the third district court. The opinion states the facts.

Shecks & Rawlins, for the appellant.

A municipal corporation, although regarded as a legal, is not a physical, entity, and is incapable of acting, except within its corporate powers and by its authorized officers or agents. Therefore, the averment that a city has done a certain act involves the assertion of two things: 1. That it had the power under its charter to do it; and 2. That it has exercised that power. Unless the former be true, the latter is impossible.

The charter of the city is a public law of which all persons are bound to take notice: Comp. L. 708, charter, sec. 83; 1 Dillon's Mun. Corp., sec. 83, note 4; 1 Whart. Ev., secs. 287, 293; Cooley's Const. Lim. 237.

A coporation possesses no power not expressly granted or necessary to carry its granted powers into effect: 1 Dillon's

Mun. Corp., secs. 89, 91, notes; Cooley's Const. Lim. 235; 19 Alb. L. J. 455.

The business of distilling spirits is foreign to the objects of the corporation, and outside of the scope of its corporate powers.

Taxing statutes are to be strictly construed in favor of the citizen; Cooley on Taxation, 200 et seq.; and a delinquent tax upon spirits removed without having been deposited in the bonded warehouse can be assessed by the commissioner only upon the distiller: R. S., p. 630, sec. 3253. This the city could not be.

It was not only essential to the validity of this assessment against the city that it was the distiller of the spirits, but also that it removed the spirits without depositing them in the bonded warehouse.

The latter it not only had no power to do under its charter, but by law was expressly prohibited from doing under the severest penal consequences: R. S., p. 641, sec. 3296; namely, double the tax imposed, a fine of not less than two hundred dollars nor more than five thousand dollars, and imprisonment which may be three years. If in this case the city is liable to the tax, it has incurred these penalties, and the present inhabitants, which constitute the city, differing largely from its population of fifteen years ago, must endure the burden of the tax, fines, and imprisonment, although in no degree responsible for the acts out of which they are claimed. to arise.

It ought to require no argument that the charter of the city shields its inhabitants from any such consequences. Some persons, wholly without authority, assumed to set up and operate a distillery in behalf of the city; without authority, they take the money from the city treasury and misappropriate it for this purpose; without authority, they distill spirits, and falsely report the city as the distiller. The revenue officers of the United States, knowing that the city was not and could not be the distiller, because they are bound to know the law, pass the responsible parties and tax the city.

The persons, the real distillers, without any authority, again take the city's money to pay the illegal tax; without autho