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ed child shall have all the rights of a child and heir of the adopting parent, the court said: "It does not, however, give such a child the rights of a nephew or niece, and of a collateral heir of the brothers and sisters of the adopting parents; and if it had been the intention to change the intestate acts so that the intestate's estate should descend without his consent to a person not of his blood, surely such an intention would have been clearly expressed. It is suggested that if the adopted child has all the rights of a child, it necessarily has the right of inheritance, as a natural child of the adopting parents. If so, the child could inherit as such from the natural children, and it would not have been necessary to provide in the concluding part of the section that the adopted child and other children of the adopting parents should 'inherit from and through each other as if all had been the lawful children of the same parents.' The obvious purpose of the act was to provide for the adoption of children, and to amend the intestate laws only so that the adopted child, could inherit from the adopting parent and his children."

However, in Riley v. Day (1913) 88 Kan. 503, 44 L.R.A. (N.S.) 296, 129, Pac. 524, it is held that, under a statute providing in effect that adopted. children shall be entitled to the same rights of person and property as children or heirs at law of the person adopting them, an adopted daughter will inherit the property of the parent of the deceased foster mother. So, in Malaney v. Cameron (1916) 99 Kan. 70, 161 Pac. 1180, rehearing in (1917) 99 Kan. 424, 161 Pac. 1180, the court remarked that if the plaintiff was a legally adopted child, he would probably, under the Kansas statute, inherit from a son of the adopting parent (citing Riley v. Day (1913) 88 Kan. 503, 44 L.R.A. (N.S.) 296, 129 Pac. 524), although the contrary is usual elsewhere. And in Denton v. Miller (1922) 110 Kan. 292, 203 Pac. 693, it is held that under the Kansas statute an adopted child will take by inheritance the same interest in the estate of a collateral relative of the parent

as though the natural child of such parent.

In Re Masterson (1919) 108 Wash. 307, 183 Pac. 93, a sister by adoption was held entitled to participate in the distribution of the estate of a deceased brother, under a statute providing that an adopted child shall be to all intents and purposes the child and legal heir of his or her adopter or adopters, entitled to all the rights and privileges, and subject to all the obligations, of a child of the adopter or adopters begotten in lawful wedlock. The court said: "One of the rights or privileges of a natural child. is to inherit from a brother or sister, the natural son or daughter of the same parents. If the adopted child does not have the same right, then it is denied a right or privilege which the natural child has. The statute said that such adopted child shall be entitled to all the rights and privileges as though it were begotten in lawful wedlock, and to all intents and purposes shall be the child and legal heir of its adopter. To hold that the adopted child cannot take an heir's portion of the estate of the natural son of the adopting parents would require a strict and narrow construction of the statute. The authorities are not in harmony as to whether such statutes are to be construed strictly, or with a tendency to liberality in order that the primary purpose of such statute, which is to promote the welfare of unfortunate children, may be carried into effect."

So, in Re Waddell (1924) 131 Wash. 566, 230 Pac. 822, in holding that an adopted child will inherit the estate of a deceased brother of the adopting parent, where children by birth of such adopting parent would have inherited it, had there been such children, the court said: "One of the rights or privileges of a natural child under the law of this state is to inherit from an uncle, if such natural child is the nearest of kin according to the statute of descent, and if the adopted child does not have the same right, then it is denied a right or privilege which the natural child has.' The way to ascertain the meaning of

this statute is to simply observe its terms, which seem to be so simple, plain, and unambiguous that it may be said they are not open to construction. The descent and distribution of the property of a person dying intestate is a matter of legislative control, and it is no more the concern of one that the legislature has provided that his brother's adopted child shall inherit one's property, than it is to provide that his brother's natural child shall inherit it. There are cases from other jurisdictions that appear to hold contrary to our views, but upon examination they will be found to rest generally upon statutes or rules of construction different from ours."

Re Cadwell (1920) 26 Wyo. 412, 186 Pac. 499, also, sustains the right of an adopted child to inherit the child's portion of the estate of a deceased brother of his adoptive parent, under a statute providing that adopted children shall be entitled to the same rights of person and property as if they were the natural heirs at law of the person thus adopting them. Re

ferring to this statute, the court said: "The language is so plain, simple, broad, comprehensive, and unambiguous that it is not open to construction; it clearly, in terms, defines the right of an adopted child, so far as property is concerned, to be the same as the right of a natural child or heir at law of the adoptive parents. No other reasonable construction can be placed upon the language of the statute."

In Shick v. Howe (1908) 137 Iowa, 249, 14 L.R.A. (N.S.) 980, 114 N. W. 916, applying the New York Code, which in substance provides that the foster parents and the adopted child shall sustain toward each other the legal relation of parents and child, and have all the rights and be subject to all the duties of that relation, including the right of inheritance from each other, and such right of inheritance extends to the heirs and next of kin of the minor, and as to such heirs and next of kin he shall be the same as if he were the legitimate child of the person adopting, it is held that the adopted daughter of a son of a niece of the deceased is entitled to

take the deceased foster parent's share of the estate of the decedent. The court said: "It may be conceded that the weight of authority is the other way. . . . And possibly, but for the previous analogous holdings of this court, a different conclusion might be reached. But these decisions are in harmony with the humane and enlightened policy of the statutes referred to, and as a liberal construction, calculated to aid in effectuating their design, is enjoined upon the court, they should be adhered to."

b. Express limitation of heritable
quality.

In Clark v. Clark (1913) 76 N. H. 551, 85 Atl. 758, it is held that an adopted child is an heir in the descending line of its adoptive parents, under a statute providing that an adopted child shall bear the same relation to his adopting parents and their kindred, in respect to the inheritance of property and all other incidents of the relation of parent and child, as he would if he were the natural child of such parents, except he shall not take property expressly limited to the heirs of the body or bodies of the adopting parents. The court said: "Whatever view was taken of the collateral effect of an adoption, it is evident that, so far as the capacity of the child to take as heir or statutory successor in right of the parent is concerned, there is no difference between the natural and the adopted child, save only in the specifically excepted case of an estate tail." The point actually involved in this case was the right of the child to take a legacy to the deceased parents, a matter not within the scope of this annotation unless disposed of, as it was in this case, upon the ground that an adopted child takes as heir under right of representation of the adopting parent. Under the same statute, in Anderson v. French (1915) 77 N. H. 509, L.R.A.1916A, 660, 93 Atl. 1042, Ann. Cas. 1916B, 89, it is held that an adopted child is entitled to share in the estate of a deceased sister of his adoptive parents, they also having deceased. The court pointed.

out that under the adoption law of Massachusetts, in which state the adoption proceedings were had, such adopted child would not be entitled to participate in the estate, the law of that state providing that a child or person so adopted shall be deemed, for the purpose of inheritance and all other legal consequences of the natural relation of parent and child, to be the child of the parent or parents by adoption, as though born to them by lawful wedlock, except that he shall not take property expressly limited to the heirs of the body or bodies of the parents by adoption, or property from the lineal or collateral kindred of such parents by right of representation. So, in Rhode Island Hospital Trust Co. V. Humphrey (1911) 32 R. I. 318, 79 Atl. 829, it is held that an adopted child cannot participate as next of kin under the will of a brother of the adopting parent, under a statute providing that an adopted child shall not inherit by representation from its adopted parent's kindred.

In Batcheller-Durkee v. Batcheller (1916) 39 R. I. 45, L.R.A.1916E, 545, 97 Atl. 378, where it is held that the adoption statute confers upon the adopted child no right to inherit from a child of the adopting parent born to him in lawful wedlock, the statute contained a provision that the adopted child shall, to all legal intents and purposes, be the child of the adopting parent, and shall be deemed, for the purposes of inheritance by it and all other legal consequences and incidents of the natural relation of parents and children, the child of its parents by adoption the same as if it had been born to them in lawful wedlock, except that it shall not be capable of taking property expressly limited to the heirs of the body or bodies of its parents by adoption, or property from the lineal or collateral kindred of such parents by right of representation. The court denied that this exception conferred the right to take as next of kin, since it was limited to the right to take by representation, although admitting the fact that a child born to the parent in lawful

wedlock takes from such lineal or collateral kindred only by right of representation, except that a child takes from another child of its parents and the descendants of such child directly under the statute of descent.

In Warren v. Prescott (1892) 84 Me. 483, 17 L.R.A. 439, 30 Am. St. Rep. 670, 24 Atl. 948, it is held that an adopted child is a lineal descendant of his adopting parents within the meaning of a statute providing that, in case a legatee in a will shall die before the testator, his share shall not lapse, but go to his lineal descendants, and that hence, where the adopting parent was a legatee in a will and died before the testator, his share did not lapse, but went to the child. The adoption statute in this case provided, in effect, that an adopted child becomes to all intents and purposes the child of his adopters, the same as if born to them in lawful wedlock. is, however, provided that an adopted child shall not inherit property expressly limited to heirs of the body of the adopters, and, secondly, that an adopted child shall not inherit property from the adopters' lineal or collateral kindred by right of representation. These provisions were held not to apply to a will. It is to be noted that the present annotation does not include cases involving the construction of wills as to whether or not an adopted child is entitled to participate in the distribution of property thereunder as the child or heir of the adoptive parent.

It

Under the Massachusetts statute, which provides that, as to the succession or inheritance of property, an adopted child shall take of the property which the adopting parent could have devised by will the same as he would have taken if born to such parent in legal wedlock, and he shall stand in regard to the legal descendants, but to no other of the kindred of such parent, in the same position as if so born to him, it is clear that an adopted child will inherit from a child of the adoptive parents by birth. Stearns v. Allen (1903) 183 Mass. 404, 97 Am. St. Rep. 441, 67 N. E. 349. It has been held that the purpose of the

statute was that an adopted child shall take by succession or inheritance the same share of the property which the parent owns, so that he can dispose of it by his will, as if he were the parent's child born in wedlock, but he cannot take property not owned by the parent, which would come to a child born in wedlock by right of representation after the parent's death. He can inherit directly from the parent, but he cannot inherit in lieu of his parent by right of representation from any of his parent's kindred. Wyeth v. Stone (1897) 144 Mass. 441, 11 N. E. 729. In Gammons v. Gammons (1912) 212 Mass. 454, 99 N. E. 25, in holding that an adopted child is not entitled to a bequest to its adoptive father which, after his death, could be taken only by his issue, the court said that, under the statute, it is only as to the adopting parents and their lineal descendants that the adopted child has acquired the rights of a child born to those parents in lawful wedlock. And see Meader v. Archer (1889) 65 N. H. 214, 23 Atl. 521, applying the adoption law of Massachusetts, and holding that an adopted child is not an heir of the ancestors of the adopted parents.

Boaz v. Swinney (1909) 79 Kan. 332, 99 Pac. 621, denies the right of an adopted child to inherit from an uncle by adoption, under a statute providing that the relation between adopting parent and adopted child, as to their legal rights and liabilities, shall be the same as if the relation of

parent and child existed between them, except that to all other persons the adopted child shall stand related as if no such act of adoption had been taken.

c. Where there is no specific provision as to inheritance.

An adopted child is not an heir to the brother of her adoptive father under the Missouri statute providing that any person may adopt a child as his or her heir or devisee by deed, etc., and a married woman, by joining in the deed of adoption with her husband, shall, with her husband, be capable of adopting any child or children. Hockaday v. Lynn (1906) 200 Mo. 456, 8 L.R.A.(N.S.) 117, 118 Am. St. Rep. 672, 98 S. W. 585, 9 Ann. Cas. 775. The court said that, with reference to the language of this statute, it will be seen that in the legislative mind the effect of the adoption of a child is restricted to the adopting parent, and hence the adopted child does not become the child of a married woman by the adoption of her husband, but to become such child the adoption must be joined in by the wife. If this be true of a wife, how much more strongly must it be true of collateral kinsfolk. So, in Rauch v. Metz (1919) Mo., 212 S. W. 357, the rule is stated that, under the statute of adoption of that state, the adopted child inherits only from his adopting parent, and does not become the heir of collateral kindred of such parents. A. G. S.

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WILLIAM E. CRANE, Appt.,

V.

CITY OF HARRISON, Respt.

Idaho Supreme Court - January 3, 1925,

(Idaho, -, 232 Pac. 578.)

Eminent domain, § 226 - removal of lateral support as taking.

1. A city, in the exercise of its lawful powers in bringing a dedicated street to the established grade, causing the soil of an abutting lot to slide into the street, is not liable to the owner of such lot in damages for the

Headnotes by BUDGE, J.

removal of lateral support from such property, for taking property without just compensation; such damages being consequential, or damnum absque injuria.

[See note on this question beginning on page 19.]

Appeal, § 13-order on demurrer.

2. An order overruling or sustaining a demurrer is not an appealable order within the meaning of Comp. Stat. § 7152.

[See 2 R. C. L. 43; 1 R. C. L. Supp. 372; 5 R. C. L. Supp. 66.]

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demnor may lawfully put the property.

[See 10 R. C. L. 124 et seq.; 4 R. C. L. Supp. 654; 5 R. C. L. Supp. 545.] Eminent domain, § 228-changing grade of street as taking.

4. Changing the grade or regrading of streets by a municipality does not amount to a taking within the meaning of article 1, § 14, of the Constitution, even though occasioning damage to abutting landowner.

[See 10 R. C. L. 97.]

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APPEAL by plaintiff from a judgment of the District Court for Kootenai County (McNaughton, J.) in favor of defendant in an action brought to recover damages alleged to have been caused by the regrading of a public street. Affirmed.

The facts are stated in the opinion Messrs. Frederick D. Crane and J. Ward Arney for appellant.

Messrs. James F. Ailshie and James F. Ailshie, Jr., for respondent:

A municipal corporation must first pay a just compensation for the land which is to be used as a highway; and when it has so acquired the title, it has a continuing power to establish, lay out, alter, etc., such highway, and any damage which may be sustained by an abutting property owner is either included in the payment of a just compensation or is one which is damnum absque injuria.

Green v. Reading, 9 Watts, 382, 36 Am. Dec. 127; Taylor v. St. Louis, 14 Mo. 20, 55 Am. Dec. 89; Smith v. Washington, 20 How. 135, 15 L. ed. 858; Macy v. Indianapolis, 17 Ind. 267; 1 Elliott, Roads & Streets, 554; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336; Talcott Bros. v. Des Moines, 134 Iowa, 113, 12 L.R.A. (N.S.) 696, 120 Am. St. Rep. 419, 109 N. W. 311; Wilson v. New York, 1 Denio, 595, 43 Am. Dec. 719; Rome v. Omberg, 28 Ga. 46, 73 Am. Dec. 748; Talbot v. New York & H. R. Co. 151 N. Y. 155, 45 N. E. 382; Morris v. Indianapolis, 177 Ind. 369, 94 N. E.

of the court.

705, Ann. Cas. 1915A, 65; Nampa v. Nampa & M. Irrig. Dist, 19 Idaho, 779, 115 Pac. 979.

The Idaho Constitution has not authorized the collection of damages under the eminent domain statute previous to the taking, where there is no actual, physical taking of the property.

Idaho-Western R. Co. v. Columbia Conference, 20 Idaho, 568, 38 L.R.A. (N.S.) 497, 119 Pac. 60.

When, property is condemned, damages must be assessed once for all time, and upon a basis of the most injurious use to which the condemning party may lawfully put the property.

2 Lewis, Em. Dom. 3d ed. §§ 713, 819; Idaho-Western R. Co. v. Columbia Conference, supra.

Damages sustained by an abutting property owner by reason of the change of grade of a street to which the municipality has title does not amount to a taking, within the meaning of the Constitution.

1 Lewis, Em. Dom. §. 131; Callender v. Marsh, 1 Pick. 418; Green v. Reading, 9 Watts, 382, 36 Am. Dec. 127; Taylor v. St. Louis, 14 Mo. 20, 55 Am.

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