But earlier in the same day Patterson was, make this defense has been waived or lost on accidentally killed. Nothing further seems account of the failure to return or tender to have been done by any one. Patterson back the 41 cents which was paid as an aswas not reported to the supreme officers as sessment for the benefit fund. We do not having been admitted or initiated. No bene- think so. There are many cases which hold fit certificate was ever issued. The assess- that, when a forfeiture has arisen by reason ment of 41 cents which Patterson paid was of the failure of the member to pay an asnot, as we infer from the agreed statement, sessment within the prescribed time, the rereported or forwarded to the supreme treas ceipt and retention of the assessment afterurer, but remained in the hands of the sub-wards by the proper officer is a waiver of the ordinate commandery. It has never been re- forfeiture. But here there was no forfeiture turned or tendered. by a member. Patterson had no beneficial This action is brought to recover $500, the interest or right to be forfeited. He never amount of death benefit for which application was a beneficial member. And after his was made. It is resisted on the ground that death we do not think it lay in the power of Patterson never became a beneficial member any of the defendants' officers by any acts of the order, that the terms and conditions of to make him a member in effect. Swett v. membership which were necessary to be per- Citizens' Mut. Rel. Soc., 78 Me. 541, 7 Atl. formed before he would be a beneficial mem-394. If not, how could that result be effected ber were not all performed in his lifetime, by failure to act. Certainly not. As none of and that at the time of his death there was the elements of an estoppel exist, it is unno contractual liability on the part of the necessary to inquire whether the defendant defendant. I could be estopped under any circumstances. Nor is it necessary to inquire whether the 41 cents, conditionally paid by Patterson, but never in the supreme treasury, should be returned to Patterson's estate by those who hold it. Judgment for the defendant. (104 Me. 360) STATE v. YATES et al. (Supreme Judicial Court of Maine. Sept. 12, 1908.) TION. We think this contention must be sustained. The defendant, if liable at all, must be liable as upon a contract-a contract of insurance. The terms and conditions of the contract of this defendant with its members are to be found, in part at least, in its Constitution and laws. It had a right to impose terms and conditions upon those who sought membership. All applications must be held to have been made subject to those terms and conditions. In this case, one of those terms and conditions was that the approval of the application by the Supreme Medical Director 1. NAVIGABLE WATERS (§ 44*)-WAY-ACCREshould be a condition precedent to beneficial membership, and that until such approval neither the applicant nor his beneficiary should have any claim on the benefit fund. This was the sine qua non. The election was not sufficient, nor was a satisfactory medical examination by the local examiner. The initiation was not enough. It was a step, but it was only a step. It gave the applicant a certain status, as, if his medical examination was finally disapproved, the laws of the order gave him the option of remaining as a social member. Approval of the application by the supreme medical director was made essential. It was probably a wise requirement; but, whether it was or not, it was one which the defendant had a right to make. chard in 1871 was "high-water mark." Since The terminus of a street laid out at Old Or1871 high-water mark at this point in Old Orchard has been moved by accretions about 88 feet seaward. Held (1) that when high-water mark changed, and the land above high-water mark gradually extended seaward by accretion. the public easement which was attached to it originally at high-water mark went with it, and the street has ended at all times at high-water mark, wherever it has been. [Ed. Note. For other cases, see Navigable Waters, Cent. Dig. § 271; Dec. Dig. § 44.*] 2. EMINENT DOMAIN (§ 127*)-COMPENSATION -EXTENSION OF EASEMENT BY OPERATION OF LAW. That, although the fee of the land made by not deprived of their property in it, and of a accretion belongs to the defendants, they are just compensation, by this extension of the street. The original compensation awarded is presumed to have been full and just. It covered all damages to the defendants' estate, and for all time, including such damages as might be occasioned later than the taking by an extension of the easement by operation of law. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 348; Dec. Dig. § 127.*] (Official.) Patterson died before his application was so approved. The intended contract was not completed in his lifetime. At the time he died the defendant was under no liability to his beneficiary. Cases in point are Matkin v. Sup. Lodge, K. of H., 82 Tex. 301, 18 S. W. 306, 27 Am. St. Rep. 886; Bruner v. Brotherhood of American Yeomen, 136 Iowa, 612, 111 N. W. 977; Sup. Lodge Knights and Ladies of Honor v. Johnson, 82 Ark. 512, 99 Frederick C. Yates and others were indictS. W. 834. ed for creating a nuisance by obstructing a But the plaintiff contends that the right to way. Defendants pleaded not guilty, and an Report from Supreme Judicial Court, York County. agreed statement of facts was then filed, and the case reported to the law court for decision. Judgment for the state. Indictment for creating a nuisance by obstructing a way at Old Orchard, York county. The indictment contains two counts. The first count charges that the defendants "on the first day of October in the year of our Lord one thousand nine hundred seven, at Old Orchard, in said county of York, did unlawfully and injuriously erect, maintain, and continue a nuisance, to wit, a certain platform attached to the Old Orchard pier which obstructed a certain public highway known as Old Orchard street, in said Old Orchard." The second count charges that the defendants "on the first day of October, A. D. 1907, did unlawfully and injuriously erect and build and cause to be erected and built in and upon the lower easterly side of said Old Orchard street a certain wooden structure, to wit, a platform, thereby obstructing said highway and endangering travel thereon, and thereby erecting, maintaining and continuing a nuisance against the peace of said state, and contrary to the form of the statute in such case made and provided." The defendants pleaded not guilty. An agreed statement of facts was then filed, and by agreement the case was reported to the law court for decision. The material facts are stated in the opin ion. Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ. Frederick A. Hobbs, Co. Atty., for the State. George F. & Leroy Haley, for defendants. SAVAGE, J. The defendants stand indicted for creating a nuisance by obstructing a way. The case comes up on report. It appears that in 1871 a way, known as Old Orchard street, was laid out in Old Orchard, beginning "at the north corner of Ebenezer C. Staple's field, thence running south 41 degrees 15 minutes east 76 rods or to highwater mark." The street was built, and has since been constantly used, by the public. At the time the street was laid out it was exactly 76 rods from the point of beginning to high-water mark on Old Orchard beach. This street was connected with the sea, which is a great natural highway. But since 1871 high-water mark at this point in Old Orchard has been moved by accretions about 88 feet seaward. The defendants own a lot of land on the shore bounded westerly by Old Orchard street. They claim to own the fee to the center of the street, and we assume that they do own it. The obstruction complained of is on the 88-foot strip of land made by accretion since 1871, and is in front of that half of the way as originally laid out, It is settled law that the owner of land bordering on a stream, a lake, or the sea, which is added to by accretion-that is, by the gradual and imperceptible accumulation or deposit of land by natural causes-becomes thereby the owner also of the new made land. It follows that the defendants owning to the center of the street as originally described have gained title by accretion to so much of the added land as lies in front of their half of the street, and that the obstruction is on land of which they own the Banks v. Ogden, 2 Wall. 57, 17 L. Ed. fee. 818. So far there is no controversy. But the state contends that as far and as fast as the ground in front of high-water mark as it was in 1871 has been added to by accretion, so far and so fast has the public easement extended seaward by operation of law, that the definite terminus of the street in 1871 was "high-water mark," and that it continued to be and is now at "high-water mark," wherever that may be. In short, it is contended that the end of the street has kept pace with the receding high-water mark, and hence that the locus of the obstruction is within the street. We think that this contention must be sustained. The cases involving this precise question are very few, if there are any, but the trend of judicial thought appears in many decided Lambier, 5 Denio (N. Y.) 9, 47 Am. Dec. 273, cases, some of which we cite. In People v. the court said that in case of accretions from would become the property or the owner of the land against which the deposit is made, "it would hardly admit of a question that in such a case a public street leading to navigable waters would keep even pace with the extension of the land so as to preserve an unbroken union between the easement on land and that on such navigable waters." This expression was doubtless a dictum when used, but it was restated and approved by the same court in Mark v. Village of West Troy, 151 N. Y. 453, 45 N. E. 842. In the last-named case the court stated specifically that the rule held good "whether the change in the land be due to natural causes, or to the voluntary act of the owner of the land." In Newark Lime & Cement Mfg. Co. v. Mayor and City Council of Newark, 15 N. J. Eq. 64, where a highway had been laid out to a river as determined at the trial by a survey, the court said: "The survey carries the highway to the river, and wherever the river is found there the highway extends. If the shore is extended into the water by alluvial deposits, or is filled in by the proprietor of the soil, the public easement is, by operation of law, extended from its former terminus over the new made land to the water." In Hoboken Land & Improvement Co. v. Mayor, etc., of Hoboken, 36 N. J. Law, 540, the same doctrine was restated with approval. In Dana natural causes, while the alluvial additions held that a highway laid out to "a spike on the margin of the lake" goes to the lake in all stages of the water. The court said: "The road extends to the changeable margin of the water, whether that line is moved by natural causes by the construction of a wharf." See, also, Re Riverside Park Extension, 27 Misc. Rep. 873, 58 N. Y. Supp. 963; 1 Farnham on Waters, 326. There are in the books many cases of ways by dedication bordering on waterways. While ways by dedication are not strictly analogous to ways by statutory location, since the construction to be given to dedication depends upon the intent of the person dedicating, as a question of fact, and the construction of a statutory laying out is a question of law, still the cases touching dedicated ways are useful as illustrations of the reasons which underlie the legal rule in statutory cases. It is said that, when a highway to a waterway is acquired by dedication, the presumption is that the intent was that the way would reach the water so as to enable the public to enjoy the navigation of the stream. The result is that, if the adjoining land is gradually extended into the stream, the highway will follow the extension and continue to reach the water. And it will extend over natural accretions ipso facto. 1 Farnham on Waters, 673; Saulet v. Shepherd, 4 Wall. 502, 18 L. Ed. 442; Cook v. Burlington, 30 Iowa, 94, 6 Am. Rep. 649; Freedom v. Norris, 128 Ind. 377, 27 N. E. 869; Lockwood v. N. Y. & N. H. R. R. Co., 37 Conn. 387; Mayor of Jersey City v. Morris Canal & Banking Co., 12 N. J. Eq. 547; Godfrey v. Alton, 12 Ill. 29, 52 Am. Dec. 476. The principles declared in the cases we have cited seem to be consonant with rea The defendants contend, however, that this conclusion is in violation of article I, § 21, of the Constitution, which declares that "private property shall not be taken for public uses without just compensation." They say they have received no compensation, and that none has been awarded to them on account of the way which we have said extends over their new made land by virtue of the laying out in 1871. We think this ground is not tenable. When the street was originally laid out, if any damages were sustained, compensation was awarded to and received by the defendants or their predecessors in title or was waived. The law conclusively presumes that the compensation was full and just. It covered all damages to the defendIt was made ants' estate and for all time. once for all. It covered the damages which were incident to the taking to the limit of the easement as first used. It also covered such damages as might be occasioned later by an extension of the easement by operation of law. These are all presumed to have been estimated in the first place. Joy v. Grindstone-Neck Water Co., 85 Me. 109, 26 Atl. 1052; Taylor v. P. K. & Y. St. Ry., 91 Me. 193, 39 Atl. 560, 64 Am. St. Rep. 216. In fact, when the defendants gained their soil by accretion, they gained it subject to the public easement. They have never owned it free from the easement. So that in no event It follows that the entry must be: (104 Me. 366) E. A. STROUT CO. v. HUBBARD. 1908.) 1. BROKERS (§ 86*) COMPENSATION - EVI son. Here is the case of a street laid out (Supreme Judicial Court of Maine. Sept. 12, to connect with the sea, a continuous way on land and water. The apparent purpose of extending the street to high-water mark was to make such a continuous way. And yet, unless it be true that the terminus of the street followed "high-water mark" as it might be removed seaward by accretions, we have this curious result. In order to afford the public continuous access to the waterway, it would have been necessary for the authorities to lay out new additions to the street at least as often as the imperceptible accretion by accumulation became perceptible. Such a conclusion is not reasonable. The defendant placed his farm in the plaintiff's agency for sale, and agreed that, if it was sold to any party through the plaintiff's influence by an advertisement or otherwise, he would pay a commission of all that was obtainthat, in case he should sell the property to the ed in excess of $1,800. He further agreed plaintiff's customer for less than $2,000, he would pay a commission of $200. In case the defendant withdrew the farm from plaintiff's agency before sale, the defendant agreed to pay $20, and if the farm should be sold, either before or after withdrawal, to a customer to whom the plaintiff recommended it, or who had learned On the other hand, in the light of judicial through the plaintiff, he would pay a commisthat it was for sale, directly or indirectly, reason and expression, we hold that when sion of $200. The defendant withdrew his farm high-water mark changed and the defend- from the plaintiff's agency, and afterwards sold it. ants' land above high-water mark was gradu- for the jury to find from the evidence that the Held, (1) that it would have been competent ally extended seaward by accretion the pub-purchaser was the plaintiff's customer, and that lic easement which was attached to it originally at high-water mark went with it pari passu. The street ended at all times at "high-water mark," which was declared in the laying out to be the terminus. the farm was sold to a customer to whom the plaintiff or its agents had recommended it, or who had learned that it was for sale, indirectly at least, through the plaintiff's advertisements. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 116, 117; Dec. Dig. § 86.*] 2. BROKERS (8 56*) - COMPENSATION CIENCY OF SERVICES. SUFFI- | Sonal, of which a description has been given, in your hands for sale. If the same is sold to any party through your influence by ad vertisement or otherwise, I will pay to you or your order a commission of all you get in excess of $1,800, clear to me. In case I should sell the property to your customer for less than $2,000, I will pay to you or your order a commission of two hundred dollars; or, if the sale exceeds $2,000, ten per cent. on the full amount of the sale. The commission to be due and payable the day sale is effected. That a requested instruction to the effect that "if the listed place was sold, either before or after withdrawal, to a customer to whom the plaintiff or its agents in good faith recommended it, then the defendant is liable for a commission of $200, whether such sale was effected in whole or in part by reason of such recommendation or not," was correct, and should have been given. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 85-89; Dec. Dig. § 56.*] 3. BROKERS (§ 56*) — COMPENSATION-SUFFICIENCY OF SERVICES. That an instruction to the jury to the effect that it was for the plaintiff to satisfy them that the same was by reason of the plaintiff's influence in some way and in some degree, and without which it would not have been sold to the purchaser, injected into the contract an element which the parties did not put into it. It was not necessary for the plaintiff to show that the purchaser was influenced by the plaintiff or its agents in making the purchase, if, in fact, he was the plaintiff's customer. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 85-89; Dec. Dig. § 56.*] (Official.) Exceptions from Supreme Judicial Court, Kennebec County. Assumpsit by the E. A. Strout Company against Leslie Hubbard. Verdict for plaintiff, and plaintiff excepts and moves for a new trial. Exceptions sustained. "Should I withdraw the said estate from your hands before you have effected a sale. I will, in consideration of your having listed the property, pay you forthwith $20.00 or two per cent. of the asking price, if above $1,000. "Should the estate be sold either before or after withdrawal to a customer to whom you or your agents have recommended it, or who has learned that it was for sale, directly or indirectly, through you, your agents or your advertisements, I will pay your commission as agreed." The plaintiff in two counts has declared on the clauses in the contract whereby the defendant agreed to pay a commission in case he sold a farm to a customer of the plaintiff, or in case he should sell the farm before or after withdrawal to a customer to whom the plaintiff or its agents has recomAction of assumpsit brought by the plain-mended it, or who had learned that it was tiff in the superior court, Kennebec county, to recover the sum of $200 as commission on the sale of a farm under a written contract between the plaintiff and the defendant. Plea, the general issue. Verdict for plaintiff for $36. The plaintiff excepted to certain rulings made by the presiding justice during the trial, and after verdict filed a general motion for a new trial. Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ. Williamson & Burleigh, for plaintiff. H. Patten, for defendant. for sale, directly or indirectly, through the plaintiff or its agents or advertisements. The plaintiff did not sue for the $36, for which the verdict was returned. At the same time the defendant signed and delivered to the plaintiff's agent a written description of the estate. Thereupon the plaintiff "listed" the defendant's farm. That is to say, it included a condensed description of the farm in a list or catalogue of estates which it had for sale, which it published and sent to its agents in Bangor and Newport in H. the early part.of 1907. It also sent pictures of the buildings from a photograph furnished by the defendant. Afterwards, by a letter dated April 8, 1907, the defendant withdrew his farm from the plaintiff's hands, and a week later sold and conveyed it to one Blanchard for $1,820. SAVAGE, J. Action to recover commissions on the sale of a farm. The plaintiff claimed $200. The verdict was for the plaintiff for $36. The case comes up on the plaintiff's exceptions and a motion for a new trial. The evidence is made a part of the bill of exceptions, and, in order properly to inquire into the merits of the exceptions, it is necessary to ascertain the facts to which they relate, or rather such facts, favorable to the plaintiff, as the jury would have been warranted in finding from the evidence. It is admitted that on November 30, 1906, the defendant made and signed a written contract with the plaintiff of the following tenor, so far as material to this case: "The E. A. Strout Farm Agency. BostonNew York. It was admitted that the plaintiff recommended the farm to Blanchard, obtained an offer of $1,700 from Blanchard, and brought him to the defendant's house on April 3, 1907. There was testimony that the plaintiff's agent then communicated Blanchard's offer to the defendant, who declined to accept it. It was also admitted that Blanchard knew that the farm was for sale previous to its being recommended by the plaintiff. The defendant testified that Blanchard asked him in February, 1907, what he would take for the farm, if he would take $1,500, and that he "I hereby place the property, real and per- declined to sell for that price. Blanchard testified that previous to this conversation and whom it had produced to the defendant he knew the farm was "listed"; that is, in the plaintiff's agency, as we interpret the testimony. It also appears that Blanchard had lived only a mile or two away, and knew the farm well. as a purchaser at some price. Such a person would fairly be the plaintiff's "customer." In that case the plaintiff was to be entitled to a commission of $200, whatever the selling price might be. There was another contingency, and one which may have happened in this case. After the plaintiff had thus produced a custom farm, and perhaps specifically away from others, after it had recommended the farm and advised its purchase, after the customer had begun to nibble at the hook, the defendant might withdraw the farm from the plain. tiff's agency, as provided in another clause in the contract, and thus deprive the plaintiff of the $200 commissions. Further than this, the jury would have been warranted by the evidence in finding that about April 1, 1907, Blanchard called on the plaintiff's agent in Bangor with a viewer, after it had directed his attention to this to the purchase of a farm somewhere; that the agent showed him among others the description and picture of the defendant's place; that this agent recommended it, and advised him to see the plaintiff's agent in Newport, who would show him the defendant's farm and another one of which he had heard and to which he was inclined; that he went to Newport, and saw the agent This contingency was provided for in the there; that that agent showed him the de- other clause which we have referred to, scription of the Hubbard farm, and recom- which was to the effect that if the farm mended it; that he then offered $1,700 for should be sold by the defendant after withit; that the agent took him to the defend-drawal to a customer to whom the plaintiff ant's house to see if a trade could be made; had recommended it, or who had learned that that while there he and the defendant tried it was for sale, directly or indirectly through to negotiate a trade; but disagreed upon the plaintiff, the defendant would pay a comthe price, and that the defendant five days mission of $200. And under this clause the afterwards, disregarding the plaintiff's agents plaintiff now bases its right to recover. in Bangor and Newport, whom he knew, and with whom thus far he had been in communication, sent his letter of withdrawal direct to the plaintiff's New York office. From these facts we think it would have been competent for the jury under proper instructions to find that Blanchard was the plaintiff's "customer," and that the farm was sold to a customer to whom the plaintiff or its agents had recommended it, or who had learned that it was for sale, indirectly, at least, through the plaintiff's advertisements. In either case, we are left to inquire whether any right to commissions accrued to the plaintiff by reason of the sale by defendant to Blanchard after the letter of withdrawal. And the answer will depend upon a construction of the contract which the defendant made, and not upon the rights which arise by implication when one leaves his property in the hands of a broker for sale, without mention of specific conditions, as between owner and broker. The contract was a comprehensive one. It fully protected the rights of the plaintiff in every contingency. It may seem a hard and uneven contract, but it was one which the parties had a right to make, and it must be enforced according to its terms. The first clause in the contract relating to commissions seems to contemplate a sale directly through the plaintiff by its bringing a customer ready and willing to pay a price of $1,800 or more, in which case the plaintiff was to have all in excess of $1,800. The next clause contemplates that the defendant might himself sell the farm for any price he pleased to a customer of the plaintiff; that is, one whom the plaintiff had interested in We have already defined what is meant by "customer" of the plaintiff, as applied to this case. It will be noticed that the defendant agreed in the last-named contingency to pay a commission in case of sale to a customer to whom it had recommended the farm, or who had learned that it was for sale through the plaintiff. The agreement was not limited to a sale to a customer whom the plaintiff had influenced to purchase. These are distinct propositions. Now, with the case in this situation, and under this contract which we have construed, the plaintiff asked the court to give the following instruction to the jury: "If the listed place was sold either before or after withdrawal to a customer to whom the plaintiff or its agents in good faith recommended it, then the defendant is liable for a commission of $200, whether such sale was effected in whole or in part by reason of such recommendation or not." The judge declined to give this instruction, but, instead, instructed the jury as follows: "Was Mr. Blanchard influenced in any way by any act, conversation, without which he would not have purchased that place, to purchase it of Mr. Hubbard? He may have looked at the place before, but had he without the influence of the Strout Company or its agents made up his mind to purchase it, or did he without their influence, and without what was said by them, finally purchase this place? And that is the nub of this case, in my opinion, for your determination. * It is for the plaintiffs to satisfy you that it was by reason of their influence in some way and in some degree and without which would not have been sold to Mr. Blanchard before they * * |