of Alabama, Georgia, Michigan, New York, | person interested in the property "to be Vermont, and West Virginia."

taken or injured to be ascertained," etc. In The supreme court of the state of Massa- other words, it is a statute authorizing the chusetts, and other courts, and the Su- taking or injuring of private property preme Court of the United States, have sus- under the right of eminent domain. If it tained acts which gave the right to have the were otherwise, there could be no question, damages assessed for overflowing the lands under our decisions, and in fact under the of another by the erection of dams for decisions of all the courts, including the operating mills and other machinery, not Supreme Court of the United States, that upon the right of eminent domain, but on the right which appellant seeks to enforce the theory that the statutes do not author- by his petition-that is, to overflow apize the taking or damaging of private pellee's lands—would amount to taking its property at all; that is, that "it is not a property. Nevins v. Peoria, 41 Ill. 502, 89 right to take and use the land of the pro-Am. Dec. 392; Rigney v. Chicago, 102 Ill. prietor above against his will, but it is an 64. Lewis, in his work on Eminent Domain, authority to use his own land and water privilege to his own advantage and for the benefit of the community. It is a provision by law for regulating the rights of proprietors on one and the same stream, from its rise to its outlet, in a manner best calculated, on the whole to promote and secure their coinmon rights in it." Bates v. Weymouth Iron Co. 8 Cush. 548, approved and adopted in Head v. Amoskeag Mfg. Co. 113 U. S. 9, 28 L. ed. 889, 5 Sup. Ct. Rep. 441. These and other cases also seem to proceed upon the idea that that which is a public benefit amounts to a public use.

2d ed. § 183, says: "There can be no question, it seems to us, but that the flooding of land by a milldam is a taking. It interteres with the right to have the water of the stream flow off in its accustomed manner, and excludes the owner from the use and enjoyment of so much of the land as is covered by water, and may greatly deteriorate that which is not flooded. This has been expressly held to be a taking by the Supreme Court of the United States and by almost every court in the Union;" citing Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557. At § 67 he further says: "Where works are constructed below the lands of a proprietor, such as a bridge or dam or alteration of the channel, which causes the water to set back and overflow the land of such proprietor, there is a violation of such right, and if the works are authorized by law there is a taking, for which compensation must be made," citing cases from almost all the states.

It is also the settled doctrine of this court that, to constitute a public use, something more than a mere benefit to the publie must flow from the contemplated im

As already said, the validity of our present statute, in so far as it extends the right of condemnation to sawmills or other public mills or machinery, or to improve the navigation of any stream or water course on which the same may be situated, “for the use of such mill or machinery," has never been passed upon by this court; and it seems clear that, in view of the language of the statute, the Constitution of this state, and the holdings of this court as to what is a public use, within the meaning of the Constitution, and what a taking or damag-provement. ing of private property, there is no escape from the conclusion that it must be held unconstitutional and void. In reaching this conclusion it is not necessary to dissent from the views of the Supreme Court of the United States and other courts holding a similar doctrine, for the reason that our statute is in no sense confined to the ascertainment of damages or just compensation for overflowing the lands of another, but authorizes the proceeding whenever "it shall be necessary to take or injure private property without the owner's consent, and the compensation therefor cannot be agreed upon by the parties interested." The necessity may or may not arise from the flowage is meant by the expression, "other public of the lands of another. Moreover, it, by express terins, authorizes the owner, etc., "to take or injure private property," and allows the assessment of damages or compensation to be paid to the owner or other

The public must be to some extent entitled to use or enjoy the property, not as a mere favor or by permission of the owner, but by right. Chicago & E. I. R. Co. v. Wiltse, 116 Ill. 449, 6 N. E. 49; Sholl v. German Coal Co. 118 Ill. 427, 59 Am. Rep. 379, 10 N. E. 199; Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155, 3 N. E. 448; Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. E. 631. It may be doubted whether the legislature, in fact, intended to extend the right of eminent domain to other than public gristmills. It carefully defines such mills, and prescribes the duties of the proprietors thereof, and the rights of the public, making no mention whatever as to what

mill or machinery." What is a public mill? What is a public machinery? We find nothing in the statute or elsewhere answering these inquiries, nor is there anything in petitioner's petition indicating what kind

of "other public machinery" he is about to question would be somewhat different from build. It is apparent that he does not seek what it is now. But even in such case it merely to establish the right to build a pub- would be essential that the statute should lic gristmill, but, as shown by his petition, require the use to be public in fact; in other his purpose was and is to take or injure the words, that it should contain provisions enproperty of appellee for the purposes of titling the public to accommodations. A other mills or machinery. The evidence flouring mill in this state may grind exwhich was heard by the court below fully clusively the wheat of Wisconsin, and justifies the conclusion that for all the sell the product exclusively in Europe; purposes of a public gristmill his own and it is manifest that in such 1 property affords ample facilities for the pro- case the proprietor can have no valid duction of more power than could be prac- claim to the interposition of the law ticably used for a gristmill. Moreover, if to compel his neighbor to sell a business the taking of private property for other site to him, any more than could the manupublic mills or machinery is not for a pub-facturer of shoes or the retailer of groceries, lic use, it must be conceded, at most, that The statute appears to have been he seeks to condemn private property for a drawn with studious care to avoid any republic and a private use, which the law will quirement that the person availing himself not permit him to do. Chicago & N. W. R. of its provisions shall consult any interest Co. v. Galt, 133 Ill. 657, 23 N. E. 425, 24 N. except his own, and it therefore seems E. 674. In 1 Lewis Em. Dom. 2d ed. § perfectly manifest that, when a public use 206, note 33, it is said: "Thus, under an is spoken of in this statute, nothing further act for the erection of gristmills, an order is intended than that the use shall be one of the court condemning land for a grist-that, in the opinion of the commission or mill, sawmill, and papermill is void;" jury, will in some manner advance the pubciting authorities. Our statute does not lic interest. But incidentally every lawful authorize a condemnation proceeding for the business does this. . . Undoubtedly improvement of the navigation of a stream there may arise circumstances under which generally, as counsel seem to argue, but it would be convenient if a power to cononly "for the use of such mill or machinery." demn lands for mill purposes might be exerHence, if the object is to improve the navi- cised, but they are so rare that a stretch of gation of the Des Plaines river for the use governmental power in order to provide for of public mills or machinery other than them would be more harmful than benefipublic gristmills, the improvement of the cial." This reasoning is peculiarly applicanavigation is no less a taking of private ble to our statute and this case. The property for private use than the erection Michigan statute was in that decision held of "other public mills or machinery." If unconstitutional, and the proceeding disthe petitioner can maintain this petition, he can undoubtedly establish and operate, by the water power acquired, every species of machinery, and establish any kind of manufactories, or he may transmit and sell the power wherever he can find a market for it. This would certainly be carrying the right | Am. Dec. 546, the petitioners sought to conof eminent domain to an alarming and dangerous extent.

Passing upon the validity of an act of the state of Michigan, enacted in 1865, not materially different from the Illinois statute of 1872, the supreme court of that state, in Ryerson v. Brown, 35 Mich. 333, 24 Am. Rep. 564, said (Mr. Chief Justice Cooley rendering the opinion): "Unlike the act of 1824, the act of 1865 [Laws 1865, p. 651, No. 304] clearly appears to contemplate other mills than those for the grinding of grain. The title of the act would indicate a purpose to give every species of manufacture which could profitably be carried on by means of water power the benefit of its provisions. If the act were limited in its scope to manufactures which are of local necessity, as gristmills are in a new country not yet penetrated by railroads, the'

missed. To the same effect are Lough-
bridge v. Harris, 42 Ga. 500; Tyler v.
Beacher, 44 Vt. 648, 8 Am. Rep. 398; Sad-
ler v. Langham, 34 Ala. 311; and McCulley
7. Cunningham, 96 Ala. 583, 11 So. 694.
In Harding v. Goodlett, 3 Yerg. 41, 24

demn land for a gristmill, sawmill, and
paper mill under a statute of that state
giving the right of eminent domain to one
desiring to erect a water gristmill. The
supreme court sustained the statute on the
ground that a gristmill is a public mill, and
the miller a public servant, under the
statutes of Tennessee, but denied the peti-
tion, and in its opinion used the following
language: "The petitioners say they are
desirous to build a gristmill, sawmill, and
paper mill. .
The sawmill and
paper mill have no public character. The
erection of these mills would be wholly for
the private use of these petitioners. Το
take Harding's land for such use would be
unconstitutional. The act of 1777 (chap.
3) contemplates no such violation of the
rights of one man for the private benefit of
another. Had the application been con-

2.

fined to the sawmill and paper mill, no one
could for a moment hesitate in rejecting it.
Does the introduction of the gristmill,
thereby asking the land for these compli-
cated purposes, alter the case? In my
opinion, the application is entitled to no
more favor than if nothing were said about
the gristmill. If an application of this sort
were granted, a like application for, the
erection of iron works, or any other estab-
lishment requiring water power, might be
made, and would be entitled to equal favor,
provided the applicant, as a pretext, were 3.
to associate a gristmill with his ther
works. Thus the gristmill, the only thing
mentioned in the act of assembly as having
any claim to be of a public character,
would be made the subterfuge for vesting in
one citizen the land of another, and of giv-
ing to the whole establishment, of which it
would be but an inconsiderable appendage,
the high appellation of a public mill. This
would be mocking the citizen, who would

thus be despoiled of his land to enrich an-
other. It would be holding out the idea
that his land was taken for a public use,
and that the public exigencies required it,
when in fact this was only used as a pretext
for obtaining the land for private emolu-
ment."

ing a stockholder's lifetime, but not distributed as dividends until after his death, is income, and goes to a life tenant under his will, and not to a remainderman, although the dividend amounts to 20 per cent of the face value of his stock.

Stock dividends declared after the death of a stockholder who has devised his stock in trust to pay the net income to a life tenant and the principal to a remainderman are to be held for the benefit of the remainderman, whether the earnings which they represent accrue before or after the death of the testator.

The right to subscribe to additional stock at par, accorded to persons holding shares of stock in trust to pay the net income to life tenants and the principal to a remainderman, is part of the capital to be held for the benefit of the remainderman, whether the shares are actually subscribed for, or the right is sold for a valuable consideration.

(October 26, 1903.)

APPEAL by plaintiffs from a judgment of the Branch Appellate Court, First District, reversing a decree of the Circuit Court for Cook County in favor of the life tenant in a proceeding to determine the ownership of dividends declared by corporations. Affirmed.

The facts are stated in the opinion. Mr. David Fales, for appellants: The cash dividend declared by the Pullman Palace Car Company is income, and belongs to the life tenant.

We are clearly of the opinion that, in so far as the statute of 1872 attempts to authorize the condemnation of private property for the purposes of public mills or machinery other than public gristmills, it 9 Am. & Eng. Enc. Law, 2d ed. pp. 710is violative of that provision of our Consti- 713; Cook, Stock & Stockholders, §§ 552 et tution which declares that private property seq.; Bates v. Mackinley, 31 Beav. 280; shall not be taken or damaged for public | Richardson v. Richardson, 75 Me. 570, 46 use without just compensation, the meaning Am. Rep. 428; Minot v. Paine, 99 Mass. 101, of which is that private property shall be 96 Am. Dec. 705; Johnson v. Johnson, 15 taken for no other than a public use, and Jur. 714; Perry, Trusts, § 544; Reed v. then only upon the payment of just compen Head, 6 Allen, 174; Leland v. Hayden, 102 sation, and that on that ground alone the Mass. 542; Waterman v. Alden, 42 Ill. App. circuit court would have been justified in 295. sustaining the motion to dismiss appellant's petition.

The stock dividends issued by the Pullman Palace Car Company, the Chicago TelWithout reference, therefore, to other ephone Company, the Pullman Loan & Savquestions raised and discussed in the arguings Bank, and the Chicago, Rock Island, & ment of counsel, the order and judgment of the Circuit Court of Will County will be affirmed.

Annie L. DE KOVEN et al., Trustees, etc., of John DeKoven, Deceased, et al., Appts.,

บ.

John DeKoven ALSOP et al.

(205 II. 309.)

1. Money earned by a corporation dur

NOTE. As to rights of life tenants and remaindermen with respect to stock dividends, see also, in this series, Spooner v. Phillips, 16 L. R. A. 461, and note; Hite v. Hite, 19 L. R. A. 173; Mills v. Britton, 24 L. R. A. 530;

Pacific Railway Company are all dividends of the earnings and income of the said corporations, respectively, and belong to the life tenant.

N. Y. 137, 64 N. E. 796; 2 Thomp. Corp. Lowry v. Farmers' Loan & T. Co. 172 §§ 2192, 2193; Cook, Stock & Stockholders, $$ 552 et seq.; Clarkson v. Clarkson, 18 Barb. 646; Riggs v. Cragg, 26 Hun, 89; Goldsmith v. Smith, 25 Hun, 201; Re Kernochan's Estate, 104 N. Y. 618, 11 N. E. 149;

Pritchett v. National Trust Co. 33 L. R. A. 856; McLouth v. Sexton, 39 L. R. A. 230; Quinn v. Safe Deposit & T Co. 53 L. R. A. 169.

Re Warren, 2 Connolly, 411, 11 N. Y. Supp. Bouch v. Sproule, L. R. 12 App. Cas. 398; 787; McLouth v. Hunt, 154 N. Y. 179, 39 L. | Gibbons v. Mahon, 136 U. S. 551, 34 L. ed. R. A. 230, 48 N. E. 548; Downing's Estate, 525, 10 Sup. Ct. Rep. 1057. Law Journal, July 8th, 1899; Hite v. Hite, 93 Ky. 257, 19 L. R. A. 173, 40 Am. St. Rep. 189, 20 S. W. 778; Pritchitt v. Nashville | death of testator was a fund of one characTrust Co. 96 Tenn. 472, 33 L. R. A. 856, 36 S. W. 1064; Waterman v. Alden, 42 Ill. App. 295; Thomas v. Gregg, 78 Md. 545, 28 Atl. 565.

The courts look at the substance and form p. 716. of the transaction.

the Massachusetts rule is not in force in Illinois, then the stock dividends in controversy must be controlled by the Pennsylvania rule. Under it the court, in disposing of stock or property dividends as between life tenant and remainderman, may properly inquire as to the time when the fund, out of which the extraordinary dividend is to be paid, was earned or accumulated. If it is found to have accrued or been earned before the life estate arose, it is held to be principal, and, without reference to the time when it is declared or made payable, to be long to the corpus of the estate, and not to go to the life tenant.

2 Cook, Corp. § 554; Earp's Appeal, 28 Pa. 368; Biddle's Appeal, 99 Pa. 282; Smith's Estate, 140 Pa. 355, 23 Am. St. Rep. 237, 21 Atl. 438; Van Doren v. Olden, 19 N. J. Eq. 176, 97 Am. Dec. 650; Pritchitt v. Nashville Trust Co. 96 Tenn. 472, 33 L. R. A. 856, 36 S. W. 1064.

All the rights to subscribe at par referred to in the bill belong to the capital of the trust fund, and are not net income under the will.

2 Cook, Corp. § 559; Atkins v. Albree, 12 Allen, 359; Biddle's Appeal, 99 Pa. 278; Eidman v. Bowman, 58 Ill. 444, 11 Am. Rep. 90.

court:

stocks are a part of the capital or corpus of said estate, to be held by the trustees as a part thereof. That decree, upon appeal to the appellate court for the first district, was reversed by the branch of that court, in part, in a carefully considered opinion by Freeman, J. The reasoning and much of the language of that opinion will be adopted here.

The question for determination is whether any or all of these dividends and rights are to be considered "net income," within the meaning of the provision of the will above referred to, payable to the testator's wife as the life tenant, or whether they constitute a part of the capital or body of the estate, which by the will is, upon the expiration of the life tenancy, to be divided between appellees as remaindermen. These dividends and rights arrange themselves in three classes. The first of these is an extraordinary cash dividend of 20 per cent, declared July 1, 1898, upon the shares of stock in the Pullman Palace Car Company. The dividend amounted to $6,000, and it is to be determined whether this is payable, under the will, to testator's wife as "net income," or to the remaindermen as a part of the corpus of the estate. The money out of which it was paid appears to have been earned, for the most part, at least, during

Wilkin, J., delivered the opinion of the the lifetime of the deceased, and was retained by the company as surplus assets reThis is an appeal from the appellate court maining in the company's treasury as undisfor the first district in a proceeding in eq-tributed earnings. While thus in the comuity begun in the circuit court of Cook pany's treasury it was subject to such uses county by the trustees of the estate of John as the directors might see fit to make of it De Koven, deceased, to construe certain pro- for corporation purposes, and its ownership visions of his will, wherein the "rest and was in the corporation. It had not, thereresidue" of his estate is given to trustees, fore, become the property of the testator "to hold, invest, rent, manage, and care for during his life. In Gibbons v. Mahon, 136 the same, and to pay the net income there- U. S. 549, 34 L. ed. 525, 10 Sup. Ct. Rep. of" to the testator's widow "during her life, 1057, the court, by Mr. Justice Gray, says: so long as she remains unmarried, and up. "The distinction between the title of a coron her death or remarriage" to divide such poration and the interest of its members or residue between the appellees herein, if liv- stockholders in the property of the corporaing at the expiration of the wife's life ten- tion is familiar and well settled. The ownancy. ership of that property is in the corporation, and not in the holders of shares of its stock. The interest of each stockholder consists in the right to a proportionate part of the profits whenever dividends are declared by the corporation, during its existence, under its charter, and to a like proportion of the property remaining upon the termination or dissolution of the corporation, after payment of its debts." Minot v. Paine, 99 Mass. 101, 96 Am. Dec. 705; Greeff v. Equitable Life Assur. Soc. 160 N. Y. 19, 46 L. R. A. 288, 73 Am. St. Rep. 659, 54 N. E. 712; Hyatt v. Allen, 56 N. Y. 553, 15 Am. Rep. 449. Applying the principle in the present case, no part of the earnings of the Pullman Palace Car Company out of

There is no controversy as to the facts. The testator died April 30, 1898, leaving as a part of his estate a number of shares of the capital stock of several corporations, railroads, telephone companies, etc. These corporations have since his death declared, in one case an extraordinary cash dividend, in another, stock dividends, and in others, stock dividends and rights to subscribe at par for certain shares of stock. The circuit court held the cash dividends and the stock dividends (including the right to subscribe belonging to each of the said stock dividends) to be a part of the net income of the estate belonging to testator's wife, and that the rights to subscribe to certain other