District of Columbia v. Robinson

Mr. Justice Shepard

delivered the opinion of the Court:

The case was submitted to the jury with an elaborate charge, and twenty-eight assignments of error have been presented, upon exceptions taken to instructions both given and refused. As disclosed 'by the special instructions asked by defendant its special plea in bar is founded upon three separate claims-of public highway, any one of which the jury were told would be sufficient if established, namely: (1) By long user, survey, plat, record, and repair at public expense as provided in the Act of Congress of May 3, 1862; (2) by prescription; (3) by dedication.

1. In submitting the first ground of defense to the jury, the court gave them in charge, with some modifications, three special instructions prayed by the defendant, and refused one outright.

The several errors assigned on exceptions taken may be considered together.

In order to understand the bearing of these instructions upon the case made by the evidence, it will' be necessary to note the statute law of the District relating to highways, as well as to call attention to important facts, which the evidence tends to establish.

The law of Maryland in force-at the time of the cession of the District declared that the county courts “shall set down and ascertain in their records, once every year, what are the public roads of their respective counties.” Act 1704, Ch. 21, Sec. 3.

The Act of Congress, July 1, 1812, empowered the Levy Court to lay out public roads, condemn lands therefor and so forth, and provided that when a road shall have been so established, marked and opened, they shall return the courses, bounds and plat thereof to the clerk of the county to be by him recorded, and it shall thereafter be taken, held and adjudged to be a public road. 2 Stat. 771.

Section 2 of the act of May 3,1862, declares that all roads which have been used by the public for a period of 25 years or more as a highway, and have been recognized by the the Levy Court as public county roads, and for the repairs of which the Levy Court has appropriated and expended money, shall be public highways whether they have been recorded or not. Section 3 provides that within one year from its passage, the Levy Court shall cause the county surveyor to survey and plat all such roads and have the same recorded. In making the survey he was required to follow as near as possible the boundaries heretofore used and known for the highway and to mark the same at all angles with stones or posts. 12 Stat. 383. This time for surveying, platting and recording was extended three years by act of February 21,1863 (12 Stat. 658), and again for thre.e years from July 1, 1865, by act of June 25, 1864 (13 Stat. 193). The Revised Statutes of the District (A. D. 1874), also provide that all public roads which have been duly laid out, or declared and recorded as such, are public highways. (R. S. D. C.,Sec. 246); and that every public highway shall be surveyed and platted and that a certificate of the survey and plat shall be recorded in the records kept for that purpose. Idem, Sec. 248.

The penalty provided for the obstruction of public roads, as re-enacted in the Revised Statutes of June 22, 1874, is limited to such as had been used and recognized for twenty-five years prior to May 1, 1862, and which “were thereafter duly surveyed, recorded and declared public highways according to law.” R. S. D. C., Sec. 269.

No actual record of the road in controversy, either under the older or later laws, was offered in evidence.

There was no proof of a survey at any time unless it be inferred from the erection of the first boundary stones about 1867 or 1868. The maps found among the confused mass of old papers relating to the administration of District affairs by the governments preceding the present, were not shown to have been made from plats and official surveys of the various public roads of the District.

They are general maps of the territory showing divisions and roads, and two of them at least are such as might also have been in common use in private offices at the time.

The Boscke map of 1857 was made by a member of the United States Coast Survey who is not shown to have had any connection with the service of the Levy Court. Another— maker unknown — seems to have been made under the government succeeding the Levy Court. The third purports to be a copy, made in 1873, of a Levy Court map, the origin and date of which do not appear. Instead of proving with any certainty the required public use of the road as a highway for twenty-five years, that is to say, for a time beginning not later than May 3, 1837, and its recognition by the Levy Court, together with the appropriation and expenditure of money for repairs, before May 3, 1862, all of which were required by the statute of that date, the evidence rather tends to show a permissive use confined to the neighboring landowners and a few other persons who found it convenient to travel thereon, long after 1837. It passed through gates on each boundary of the Vineyard tract, after May, 1837, and one of these continued to stand until about the date of the conveyance to plaintiff’s testator, if not later. The gate posts stood sometime after the gate 'had fallen in decay. Agg, the plaintiffs’ grantor, changed the road at one time at his own expense. One witness testified that he had known repairs made at one time on the Harewood road, at the expense of the Levy Court, before 1861. He does not give the date, but it could not have been earlier than 1840. Nor does he say that the repairs were made at a point on the Vineyard tract. Another witness called by the defendant who lived for years on the adjoining tract, had no recollection of repairs having been made on the said road at any time before the close of the Civil War.

The general use of the road seems to have begun after the-beginning of the Civil War, and the consequent establishment of military camps and the National Cemetery in the vicinity. The deed to plaintiff’s testator had a descriptive plat attached which showed no road; it contained the usual covenants of warranty and made_ no exception of ground covered by a public road. He and those under whom he claimed paid taxes on the whole tract without deduction of the area within the boundaries of the road.

The instructions asked conformed in the main to the requirements of the act of 1862, but contained some .omissions which the court undertook to supply. To the sentence relating to the twenty-five years’ public use before May 3,1862, he added the words, “ adverse to the plaintiffs’ testator and those under whom he claimed.”

There was no error in this. The instruction was incomplete without it. Where user is relied upon to raise a right by prescription, it must not only be continhous and uninterrupted, but adverse also. Irwin v. Dixion, 9 How. 10, 33; 3 Kent Com. 444; Washburn, Easements (4th Ed.), 150; Elliott on Roads, 137; 9 Encyc. Law, 366, 367 ; 19 Idem, 11, 12; Oliver v. Hook, 47 Md. 301, 311; Cox v. Forrest, 60 Md. 74, 79; Pue v. Pue, 4 Md. Ch. 386, 390; State v. Green, 41 Iowa, 693, 695; Pentland v. Keep, 41 Wis. 490, 501; Mayberry v. Inhabitants of Standish, 56 Me. 342, 351; State v. Horn, 35 Kans. 717, 721; Plummer v. Ossipee, 59 N. H. 55, 58; Speir v. New Utrecht, 121 N. Y. 420, 430.

The addition, that the record of the road must have been made prior to the first day of July, 1868, was within the express requirement of the act of May 3, 1862, and the supplementary acts extending the time as above stated. The twelfth instruction was to the effect that, if the jury find from the evidence that boundary stones were erected along Harewood road at the place of the alleged trespass by the surveyor of the Levy Court in 1865, or thereabout, and that thereafter the Levy Court worked and kept the road in repair, then, in. the absence of evidence to the contrary, the presumption, is that the Levy Court caused said road to be surveyed, platted and recorded as a public highway in accordance with the act of Congress, requiring the same to be done, and such presumption is not overcome by the fact that the record of the survey and plat of said road is lost or can not be found. The court struck out the words — “ in the absence of evidence to the contrary the presumption is that” — and substituted these — “it is a question for the jury to determine whether.” The last part of the concluding sentence following the word Congress, was stricken out and the following substituted therefor: “ And it will be competent for them to so find if all of the evidence establishes the fact to their satisfaction, although no record of a survey and plat of said road has been given in evidence.” As an addition to the preceding instruction the court had told the jury that, “ the maps introduced by the defendant are not such surveys and records as the act of 1862 contemplated, but may be considered, together with all the other evidence in the case bearing upon that point,in determining whether such survey and record was made.” Clearly the presumption of the existence of a record from the existence of these maps and other facts referred to, was one of evidence for the jury, and not of law for the court. If any error"was committed in respect of the competency and effect of the maps referred to, it was in favor of the defendant. If the maps were in fact made by the Levy Court, they were, as the court said, “not such surveys and records as the act of 1862 contemplated.” At the same time the jury were told that they might be considered with the evidence of the erection of the boundary stones and of the working of the road, and so forth, as tending to show the fact of actual survey, plat and record required by the law.

It is exceedingly doubtful if these maps were competent evidence for the purpose at all, for, without regard to their origin and character, there was little or no diligence shown in the search for the records of the Levy Court. The records and papers of the Levy Court have lain for years in the vaulfof the District offices, and no attempt seems to have been made to put them in order.

It is to be presumed that the Levy Court kept books for the record of public roads as required by all the laws in force since A. D. 1704, and it seems probable that some of these might be found if diligent efforts were made, for there has been no fire in which they could have been destroyed. The custodian of the records of the District Government was not called as a witness, and there is no evidence of inquiry of him. William P. Richards, a civil engineer, and not an officer of the District apparently, testified that at the request of the Commissioners, he had, at some date not given, made “an examination of the archives of the District to find the records and maps of the old Levy Court relating to Harewood road.” He it was who produced the mgps as found in that search. Whether he saw all of the old records and papers, and carefully examined them, or who pointed them out to him, does not appear. The failure, under the circumstances, to find out and produce a record of the road, afforded, to say the least, some ground for a presumption that there had never been one.

The next instruction, however, gave the defendant the title to a public highway without the necessity of the record of the road at all, and rendered the maps, as evidence of a record, comparatively unimportant. It instructed the jury, that, if Harewood road had been used by the public adversely to the plaintiffs’ testator and those under whom he claimed for twenty-five years or more before May 3, 1862, as a highway, and had been recognized by the Levy Court prior to that date, and money had been appropriated and expended for repairs thereon, then it was a public highway at the time of the alleged trespass, of the width that had been so used, although it may not have been recorded.

The necessity of adverse use prior to May 3,1862, was an addition made by the court as in the case of the first instruction above referred to.

The limitation of the boundaries of the highway, acquired by long user only, to the lines of the ordinary use, was properly inserted in this instruction. An. easement so acquired can not be broader than the use. Elliott on Roads, 136; Washburn, Easements, (4th Ed.), 135; Plummer v. Ossipee, 59 N. H. 55, 56; Scheimer v. Price, 65 Mich. 639; West Rwy. Co. v. Ala. G. T. RR. Co., 96 Ala. 272, 279; Ehret v. K. C., etc., RR. Co., 20 Mo. App. 251, 262.

There was no error in refusing the twenty-first special instruction asked by the defendant in connection with those given as above. In some respects it conflicted with the others as modified by the court; in others it added nothing substantial that had not already been given.

2. This brings us to the defendant’s claim of public highway by prescription.

Having amended special instructions three, five and six, asked by the defendant, the court gave them in charge to the jury, in connection with number four, unamended, as follows:

“3. If the jury believe from the evidence that the place where the alleged trespasses were committed is part of the road called the ‘ Harewood road,’ in the District of Columbia, and that said road was a public county road, generally used and recognized as such by the public for an uninterrupted period of more than twenty years prior to 1880, and adversely to the plaintiffs’ testator and those under whom he claimed, under the control of and kept up and repaired by the public authorities and used by it publicly, openly, and notoriously for all the purposes of a public highway, under a claim of right, then the jury may. and ought to presume a grant of a right of way to the public over said road to the width it had been so used.”

“ 4. It is not necessary, in order to presume a grant of ‘ Harewood road ’ to the public for a highway, that the jury should believe from the evidence that a conveyance or grant thereof was in point of fact executed. It is sufficient if the evidence leads to the conclusion that such conveyance or grant, might have been executed, and that its existence would be a solution of the difficulty arising from • its non-execution.”

“5. If the jury believe from the evidence that the public used ‘Harewood road’ as'a public-highway whenever it saw fit, without leave of the owner and without objection from him, this is adverse, and uninterrupted adverse enjoyment for twenty years constitutes a title which can not after-wards be disputed. Such enjoyment, without evidence to explain how it began, is presumed to be in pursuance of a full and unqualified grant.”

“6. The jury are instructed that it will be sufficient ground for the presumption of a grant of Harewood road to the public as a highway for the defendant to show that such a grant might have issued; and if that appears from the evidence, then if there be no facts or circumstances proved by the evidence repelling such conclusion, the jury may assume also that all that might lawfully have been done to perfect the legal title of the public to the road to the width it was actually so used for twenty years was in fact done and in the form prescribed by law.”

From a general view of the changes made in the form of these instructions, we are satisfied of their correctness. It would involve a great consumption of time and space to point them out in detail and discuss their several effects, and there are no assignments of error that require us to do so.

They are all general in form, like this, for example : “The court erred in refusing to grant defendant’s third prayer as asked, and giving it to the jury as modified.” The rules of the court require them “to be separately and specifically stated.” Rule VIII, Sec. 3, clause. (2). “Errors not assigned according to the rule of the court will be disregarded, though the court, at its option, may notice and pass upon a plain error not^assigned.” Id., Sec. 5. •

The court next gave the second and twelfth instructions asked by the plaintiffs, as follows:

“ 2. In considering the evidence in this case with reference to the issue joined upon the defendant’s third additional plea of common and public highway, the jury are instructed that long use never ripens into such a right of way or easement unless it be an adverse uninterrupted enjoyment of such use under a claim of right for the full period of twenty years; and the |ury are further instructed that if the user is by permission, leave, license, or indulgence of the party over whose lands such use is enjoyed or can in view of all the evidence be placed upon any other footing than a claim or assertion of right, it will repel any presumption of a grant and will be what is called a precarious use, and such a precarious use never ripens into an adverse use, no matter how long it continues.”

“12. If the jury believe from the evidence that there was a lane or road over the land of the plaintiffs’ testator, yet if from the evidence the jury believe that travel over said lane or road originated for the accommodation of some prior owner or owners of that tract and the adjoining tract, or either of said tracts, and of those deriving title from or under such owner or owners of either or of both of said tracts, and believe that said lane or road was never surveyed, platted, or recorded as a public road or highway, as required by law, and believe that the various owners of said tract of land by mesne conveyances conveyed the same from one to the other, with covenants of warranty, without showing, mentioning, or excepting any lane or road over the same, either in the body of any of these deeds or in plats annexed to any of them, and believe that the location of said lane or road or part thereof over the land of the plaintiffs’ testator was changed by Mr. John Agg, a prior owner of said lane, for the reason that he wished it further from his bouse, and that he employed and paid the hands who made, this change, and believe that from about 1843 to about the time of the conveyance of May 15, 1857, to the plaintiffs’ testator, gates were maintained across said lane or road by the owner or owners of said tract or their tenants, and that the gate posts of such gates continued to stand for some time after the gates themselves wore out or disappeared, and stood there until some time in 1861, after the late war had commenced, and believe that taxes were assessed by the public authorities upon and paid by the owners of said land or their tenants upon said tract of land, as a whole, including land within the limits of said lane or road, and believe that acts of ownership over the land within the limits of said lane or road were exercised by the plaintiffs’ testator, and believe that said lane or road was not repaired by the public authorities until after the late Civil War, or recognized by the public authorities as a public road until after the late Civil War, or if the jury believe any of these facts, then the jury are instructed that these facts or any of them which the jury may believe would tend to prove that said lane or road was not a common or public highway, and would tend to rebut any presumption of its being a common or public highway, and any and all such facts, if believed by the jury, are to be considered in connection with the other evidence in the case, and if the jury .upon the whole evidence believe that said lane or road was not such a highway at the time of the acts complained of, which have been given in evidence, and was not a highway by dedication, then they should find the issue joined upon the defendant’s third additional plea of highway in favor of the plaintiffs.”

The court then explained to the jury that this last instruction recited merely the facts upon which the plaintiffs relied to rebut the presumption of a grant, or the idea of a road by prescription, and added:

“The instruction does not tell you that if you find those to be true that there is no road by prescription, but the instruction tells you that you are to consider all those facts recited there; that they have a tendency to rebut the idea of prescription, and that you should consider them in connection with all the other evidence in the case that tends to show prescription, and that tending against it, if there be any that is not recited .in that instruction, and that is for you to say, when you have considered all those matters together’, whether there is a road there by prescription. That is what that instruction means.”

We are of the opinion that the defendant has no just cause of complaint against the manner in which this defense was submitted to the jury. The issues of fact were fairly, fully and'plainly submitted to their finding upon instructions that appear to us to embody correct applications of the law to the whole of the evidence.

The burden was upon the defendant to establish its claim of public highway by proof of adverse and uninterrupted enjoyment by the public for a space of twenty years or more. It must be with the knowledge of the owner and under a claim of right, and nota tolerated or permissive use by him only. Irwin v. Dixion, 9 How. 10; Oliver v. Hook, 47 Md. 311; Cox v. Forrest, 60 Md. 79; Pue v. Pue, 4 Md. Ch. 387; Smith v. Miller, 11 Gray, 149; Com. v. Kelly, 8 Gratt. 632; Taylor v. Gerrish, 59 Conn. 571; State v. Green, 41 Iowa, 695; Pentland v. Keep, 41 Wis. 501; Shellhouse v. State, 110 Ind. 511, 512.

The trespass occurring in 1880 required this continuous adverse use by the public to be carried back to about June 1, 1860. We have already referred to the character of use shown until after the assembling of camps of soldiers after 1861. The public use then made and continuing until the close of the war in 1865, was of an extraordinary character, not likely to be permanent and still less likely to be resisted or even protested against. The only certain and substantial adverse claim of the District government to the road as a public highway would seem to have begun after 1865, when the road whs worked from time to time, and for the first time marked with boundary stones. We are not disinclined to agree with the contention of the appellant, that, as against such open, unmistakable claim of highway, the mere protest of the owner, without some step taken to bar or contest the public use and claim in fact, would not constitute an available interruption of the use.

The owner tolerated the public travel over his land, which seemed to be of no inconvenience to him, yet he denied the existence of the public right without his consent. Grant the insufficiency of this asan interruption, but the negative fact remains of a denial of the right as against a claim of grant or dedication.

Grant that his acquiescence in repairs made by the public created a strong presumption against him, not counteracted or interrupted by the undisputed fact that upon one occasion he objected to work that had been done and the public supervisor restored the road to its former condition in compliance with his demand; and yet all this occurred within 15 years. What occurred in these 15 years may be potent circumstances bearing upon precedent conditions and lending aid by inference in their elucidation; but their direct force is necessarily limited to their beginning.

At the same time, where, there is any evidence to warrant it, some, consideration may justly be extended to him who in the beginning, out of kindness to his neighbors, permits them to use a private road or crossing upon his land. “A private way opened by the owners of the land through which it passes for their own uses does not become a public highway merely because the public are also permitted for many years to travel over it.” Speir v. Town of New Utrecht, 121 N. Y. 430. See, also, Davis v. Ramsey, 5 Jones Law. (N. C.), 236; Shellhouse v. State, 110 Ind. 509, 511, 512.

If such permissive use were declared the certain beginning of a public claim of right, because some other persons than those intended to be favored may have taken the advantage of the open way, the result would be to deter private persons from giving such favors to their friends and neighbors for fear of being held to have granted, or irrevocably dedicated, their land to the public use. In such case, however, the grant or dedication would not be binding, unless at the same time, the public use be held a complete acceptance on the part of tjie representatives of the public interest. The foregoing views would be more readily appreciated by the defendant had it been sued by someone injured in traveling the road for failure to keep it in proper repair. We think it proper, therefore, that all of the circumstances attending the beginning and growth of the use should be left to the jury, accompanied, as in this case, by a charge defining the principles of law applicable to the several phases presented thereby.

■ 3. The next question is on the defendant’s claim of public highway by dedication.

The seventh special instruction asked by the defendant' reads as follows: “The jury are instructed that in order to constitute dedication of the land for the use of the public as a highway it is sufficient if its owner assented to its use by the public, and that the public actually enjoyed its use for that purpose for such a length of time prior to 1880, that the public accommodation might be materially affected by a denial of such enjoyment.”

This was amended by the court by striking out the words, “if its owner assented to its use by,” and inserting the following, in their stead: “If the jury find from the evidence that the plaintiffs’ testator intended to give or dedicate the land claimed as a road to,” — the public.

The twenty-second instruction asked by defendant was then given, with the addition by the court of the concluding sentence therein; the whole reading as follows:

“22, The jury are instructed that the plaintiffs’ testator was and the plaintiffs are estopped from asserting that Harewood road was not a public highway, if the jury believe from the evidence that the owner of the land and plaintiffs’ testator, after he became owner, allowed, it to re. main open, intending to dedicate it for a highway, and the public used it for such a length of time that they would be seriously inconvenienced by the interruption of the enjoyment. In determining whether the plaintiffs’ testator intended to dedicate the land or any part thereof, where the alleged trespasses were committed, to the public for the purposes of a road, the jury should take .into consideration all the evidence showing the use made by the public of said road, the acts of the public officers, and the acts and conduct of the said testator in relation thereto.”

The defendant excepted to the addition made by the court.

The court then of its own motion told the jury that the existence of a highway by dedication might be inferred in a much less time than would be required in case of prescription ; that dedication is a gift requiring no deed or conveyance of any kind; that they must look to all the circumstances attending the opening and use of the road, and the acts of the owner and the public authorities in determining whether there was such an intent to dedicate; and that if there had been such an intent to dedicate it could not be revoked by the owner or his successors.

We find no reversible error in the instructions as given. Dedication may be presumed from the long continued public user for the time required in case of prescription, where there is no evidence to the contrary and where the circumstances attending such use are not inconsistent therewith, without proof of a direct public act indicating the intention; or it may arise from unequivocal acts and declarations within a recent period if followed by an acceptance on the part of the public authorities.

In the first case mentioned, what has been heretofore said in respect of the claim by prescription applies. Indeed it would seem more accurate to say that the right to a public highway, founded in continuous adverse userfor twenty years or more, lies in the presumption of its former complete establishment by competent public authority, or of dedication and acceptance, rather than of a deed of conveyance. The presumption of a grant would seem properly to arise in a case where a private person claims a right in land through adverse possession and user.

' In the second case, where the act or acts relied on as constituting dedication are recent, they must admit of no other reasonable inference. The owner must unequivocally dedicate his land to the use of the public and the public must accept. Irwin v. Dixion, 9 How. 10, 30; McCormick v. Mayor, Baltimore, 45 Md. 523; Ill. Ins. Co. v. Littlefield, 67 Ill. 368, 372; State v. Green, 41 Iowa, 693, 695; Shellhouse v. State, 110 Ind. 509, 513; Cahill v. Clayton, 57 Wis. 609; City of Hartford v. N. Y. & N. E. RR. Co., 59 Conn. 250, 254; Cemetery Assn. v. Meninger, 14 Kans. 242, 245; The State v. Horn, 35 Kans. 720; Brinck v. Collier, 56 Mo. 160, 166; Hall v. McLeod, 2 Metc. (Ky.), 98; Mayberry v. Inhabitants of Standish, 56 Me. 342, 353; Cyr v. Madore, 73 Me. 53, 55.

Some of the foregoing cases apply to the first and others to the second of the two phases of the claim of public highway, by dedication and acceptance, submitted in the charge of the court, and enounce principles of law in respect thereof to which the charge substantially conforms.

4. The evidence tended to show that the width of the road as actually used was not more than twenty-five feet, and that of the excavation not less than thirty-three feet.

The jury were accordingly instructed that in the event they should find that the road had become a public.highway through any one of the three ways claimed by the defendant, but was not of greater width at the time of the excavation than indicated by the actual use, they should find for the plaintiffs and assess such damages as shall have accrued by reason of excavation and removal of gravel beyond the boundaries so ascertained. Referring to what has been hereinbefore said in respect of the restriction of an easement of this character, founded on long user, within the boundaries of actual use, we think that this instruction was also correct.

5. There was also evidence tending to show that the excavation made left the road in worse condition for travel than before, and that the work thereof was not done under any pretense of grading and improving the said road for public use, but expressly and solely for the purpose of obtaining gravel with which to improve another and recognized public road about one mile and three-quarters distant.

Upon the issue thereby raised the court instructed the jury, substantially, that if they should find the contention of the plaintiffs supported by the evidence, then it would be their duty to find a* verdict for them, assessing the damages for the injuries caused by the said excavation, and to the full extent of the value of the gravel removed therefrom, even though they should also find that the road at that point was a public highway under any one of the claims set up by the defendant.

We find no error in this charge. Roberts v. Sadler, 104 N. Y. 229, 232; City of Aurora v. Fox, 78 Ind. 1, 5, 9; City of Delphi v. Evans, 36 Ind. 90, 101; Rich v. City of Minneapolis, 37 Minn. 423; Voliski v. City of Minneapolis, 40 Minn. 304; Mayor of Macon v. Hills, 68 Ga. 595; Elliott on Roads, 523.

The court carefully explained to the jury that the right to recover for the gravel taken depended exclusively upon the fact whether the excavation had been in execution of a purpose to improve the road in controversy; if one of the purposes of the defendant was to improve the road, or render it better for public travel, then it had the right to remove the gravel obtained from the excavation and use it on' any other public road, regardless of locality, without becoming liable to the plaintiffs for any damage whatsoever.

6. The general charge clearly and correctly laid down for the guidance of the jury the rules by which plaintiffs’ damages were to be assessed in the event of finding in their ' favor upon any or all of the issues submitted, and no objection has been made thereto.

But error has been assigned on exception taken to a paragraph of a special instruction given on behalf of the plaintiffs, which informed the jury that "they might “enhance the damages by any sum not greater than the interest on the amount from August 28, 1882, when this action was brought, to the time of this trial, if the jury shall find from-the evidence that such allowance would be reasonable and just.”

There was no error in permitting the jury to exercise their discretion in the matter of interest. W. & G. RR. Co. v. Hickey, 12 App. D. C. 269, 275. See, also, Dyer v. Steam Nav. Co., 118 U. S. 507.

Having found no error in the proceedings on the trial the judgment will be affirmed.

Affirmed.